WRITTEN TESTIMONY
OF
PROFESSOR GRAHAM S. PEARSON
VISITING PROFESSOR OF
INTERNATIONAL SECURITY
DEPARTMENT OF PEACE STUDIES
UNIVERSITY OF BRADFORD
BRADFORD, WEST YORKSHIRE,
UNITED KINGDOM
AND PREVIOUSLY
DIRECTOR GENERAL AND CHIEF
EXECUTIVE
CHEMICAL AND BIOLOGICAL
DEFENCE ESTABLISHMENT
MINISTRY OF DEFENCE
PORTON DOWN, SALISBURY,
WILTSHIRE, UNITED KINGDOM
TO THE SUBCOMMITTEE ON
NATIONAL SECURITY,
VETERAN AFFAIRS &
INTERNATIONAL RELATIONS
OF THE COMMITTEE ON
GOVERNMENT REFORM
Washington, D.C.
10 July 2001
EXECUTIVE
SUMMARY
*********
This
testimony starts by examining the development of the Protocol showing how it
has developed from the Confidence-Building Measures agreed at the Second Review
Conference in 1986 and extended at the Third Review Conference in 1991 through
the considerations by VEREX in 1992 and 1993 leading to the establishment of
the Ad Hoc Group in 1994 and its subsequent negotiations.
It
goes on to address the value of the composite Protocol text by making
comparisons, first between the Biological and Toxin Weapons Convention (BTWC)
with its Protocol regime and the BTWC alone, and then between the BTWC with its
Protocol regime and the Chemical Weapons Convention (CWC) regime, given that
both Conventions overlap -- and rightly so -- in the areas of toxins,
bioregulators and peptides. The
comparison with the BTWC alone shows that the Protocol brings significant and
worthwhile benefits to all States Parties whilst the comparison with the CWC
shows that in respect of the monitoring of dual-purpose materials and
facilities, the two regimes are very comparable, with the Protocol regime
imposing a less onerous but more focussed burden in respect of declarations and
visits whilst the international cooperation provisions are much more extensive
than those of the CWC.
Attention
is then paid to a number of key issues:
a.
The Effectiveness of the Protocol
b.
Export Controls
c.
The Burden of the Protocol
d.
Industry Concerns
e.
Additional Mechanisms under Discussion
f.
Other International Monitoring Systems
g.
More time needed?
In
the final section, a tabular comparison is made between the costs and gains of
signing the composite Protocol text and rejecting the composite Protocol. This leads to the conclusions that:
a.
In signing the composite Protocol text, the US will be seen to have
continued in its leadership role and having
taken all possible multilateral steps
to prevent biological weapons.
b.
Signing the composite Protocol text will reduce the risk of biological weapons proliferation and use. Rejection of the Protocol would send the
opposite signal and it can be argued that the risk of biological weapons
proliferation and use will be increased.
c.
Overall, signing the composite Protocol text enhances US security. It
provides a net gain to US
security. Rejection of the Protocol
misses this opportunity and decreases US security.
Mr
Chairman and members of the Subcommittee.
It is an honour and a pleasure to be invited to submit written testimony
on the “Biological Weapons Convention Protocol: Status and Implications”.
I
am Dr Graham S. Pearson, a Visiting Professor of International Security in the
Department of Peace Studies of the University of Bradford in the United
Kingdom. I was previously, from 1984 to
1995 when I reached the mandatory retirement age in the British Civil Service,
the Director General and Chief Executive of the Chemical and Biological Defence
Establishment of the United Kingdom Ministry of Defence at Porton Down, the
oldest chemical and biological defence establishment in the world established
in 1916.
During
my time as Director-General at Porton Down, I was responsible for changing the
name of the establishment from the Chemical Defence Establishment to the
Chemical and Biological Defence Establishment reflecting the increased
attention and effort paid to biological defence from 1986 onwards. I was responsible for the contributions of
the Chemical and Biological Defence Establishment during the Gulf War of
1990/91 to ensuring that the Armed Forces of the United Kingdom were protected
against the threat that Saddam Hussein might use chemical or biological weapons
against them.
I
was also a member of the UK delegation to the VEREX group identifying and
evaluating potential verification measures in Geneva in 1992 and 1993: I served as the rapporteur to VEREX for
“measures in combination”. I was also a
member of the UK delegation to the Ad Hoc Group prior to my retirement in 1995
and for a short period in 1995, I served as the Assistant Chief Scientific
Adviser (Non-Proliferation) in the headquarters of the United Kingdom Ministry
of Defence.
Since
my retirement from the Ministry of Defence in 1995, I sought and was awarded a
John D. and Catherine T. MacArthur Foundation grant for Research and Writing
which enabled me to write a book “The UNSCOM Saga: Chemical and Biological
Non-Proliferation” published in May 2000 by St. Martin’s Press. In this I have examined the work of UNSCOM
in respect of chemical and biological weapons in order to extract the lessons
for chemical and biological weapons non-proliferation.
My principal activity over the past five years, which is currently financed by a grant from the Carnegie Corporation of New York, has, however, been to closely follow the negotiations in the Ad Hoc Group of a Protocol to strengthen the effectiveness and improve the implementation of the Biological and Toxin Weapons Convention. In this context, I have written or edited over 30 Briefing Papers and 20 Evaluation Papers which have been presented and distributed to the delegations engaged in the Ad Hoc Group negotiations in Geneva. I have visited Geneva to make these presentations to each session of the Ad Hoc Group and also to discuss with representatives of delegations the progress of the negotiations. I have consequently followed the negotiations and the developments in the Ad Hoc Group more closely than anyone else who is not a member of a delegation. I have written quarterly progress reports over the past four years on the negotiations which have been published in The CBW Conventions Bulletin.
In
my written testimony to the Subcommittee, I am therefore drawing upon my
experience as Director General and Chief Executive of the Chemical and
Biological Defence Establishment, Porton Down where I was responsible for over
ten years for the United Kingdom research and development programme in chemical
and biological defence, my detailed study and analysis of the work of UNSCOM in
uncovering the Iraqi chemical and biological weapons programmes and my close
involvement over the past decade, both within government and then outside
government, in the negotiations first in VEREX and then in the Ad Hoc Group to
strengthen the regime to prevent biological weapons.
The
Biological and Toxin Weapons Convention (BTWC) was opened for signature in 1972
and entered into force in 1975. This
totally prohibits the development, production, storage or acquisition of
biological weapons and was the first international treaty to totally ban an
entire class of weapons. This
Convention has established an international norm that biological weapons are
totally prohibited to which over 160 States have bound themselves -- 143 States
Parties and 18 Signatory States. The
United States together with the United Kingdom and the then Soviet Union are
the co-Depositaries of the Convention which reflected an initiative by both the
United States and the United Kingdom to ensure that biological weapons are
totally banned.
It has,
however, become increasingly clear over the past 25 years that the absence of
an organization and of measures to demonstrate compliance and address
non-compliance concerns is resulting in an erosion of confidence in the
effectiveness of the Convention. This
was highlighted by the admission in 1992 that the former Soviet Union, despite
being a co-Depositary, had continued a massive offensive biological weapons
programme until at least 1992. Further
concerns about the Convention were underlined when the United States at the
Fourth Review Conference in 1996 stated that twice as many states were
currently seeking or had already obtained biological weapons than when the
Convention entered into force in 1975.
The
Convention, however, has no provisions for verification -- other than to take
compliance concerns to the Security Council (which has not happened during the
past 26 years) or for the monitoring of compliance. The developments in the 1970s and 1980s including the release of
anthrax at Sverdlovsk (now Ekatinerburg) in 1980 and the advances in genetic
engineering and biotechnology led the States Parties to the Biological and Toxin
Weapons Convention at the Second Review Conference in 1986 to agree four
politically binding Confidence Building Measures. These were extended and a further three Confidence Building
Measures agreed at the Third Review Conference in 1991. As these Confidence
Building Measures were not amended at the Fourth Review Conference in 1996,
they have since 1991 been as follows:
* A simplified proforma on which to
indicate "Nothing to declare" or "Nothing new to declare"
1.
The exchange of data on research centres and laboratories (CBM A, Part 1
& Part 2), extended to include information on biological defence programmes
and activities
2.
The exchange of information on outbreaks of disease and similar
occurrences caused by toxins (CBM B)
3.
The encouragement of publication of results and promotion of use of
knowledge (CBM C)
4.
The active promotion of contacts (CBM D)together with the three new
confidence-building measures added in 1991:
5.
Declaration of legislation, regulations and other measures (CBM E),
6.
Declaration of past activities in offensive and/or defensive biological
research and development programmes (CBM F), and
7.
Declaration of vaccine production facilities (CBM G).
It
has, however, become apparent that these Confidence Building Measures are of
strictly limited value as the data submitted by the States Parties has been
patchy and variable. Just over one half
of all the States Parties have made a single submission and only about 11 have
made the required annual submissions.
The submissions are simply collated as and when they are received and
circulated to the States Parties. They
are not translated into the UN languages and there is no analysis of the
information provided. In sum, they do
not achieve their objective of building confidence because of the variability
between States Parties as to what is considered appropriate to be submitted and
the absence of any means of either seeking missing submissions or clarifying
any uncertainties or ambiguities in the submissions.
At
the Third Review Conference in 1991 following the Gulf War of 1990/91 and the
changes in the Soviet Union and the Warsaw pact, the States Parties agreed to
establish an Ad Hoc Group of Governmental Experts (known as VEREX) “to identify and examine potential
verification measures from a scientific and technical viewpoint”. VEREX met twice in both 1992 and 1993
producing a Final Report evaluating 21 off-site and on-site measures. This report was considered by a Special
Conference in September 1994 which established an Ad Hoc Group to consider
appropriate measures, including possible verification measures, and draft
proposals to strengthen the Convention, to be included, as appropriate, in a
legally binding instrument.
The
Ad Hoc Group first met in January 1995 and by the time of the last Ad Hoc Group
session in April/May 2001 had held 23 sessions. Initially, Friends of the Chair (FOCs) examined issues such as
compliance measures, definitions and objective criteria, confidence building
measures and measures related to
Article X of the Convention on international cooperation and technical
exchange. It is worth recalling now
precisely what the mandate of the Ad Hoc Group said about compliance measures:
- A system of measures to promote
compliance with the Convention, including, as
appropriate, measures identified, examined and evaluated in the VEREX
Report. Such measures should apply to
all relevant facilities and activities, be reliable, cost effective,
non-discriminatory and as non-intrusive as possible, consistent with the
effective implementation of the system and should not lead to abuse;
It is thus clear that the mandate agreed
by all States Parties is for a
system of measures to promote compliance
with the Convention. During the initial Ad Hoc Group sessions, the FOCs chaired
sessions addressing their particular areas of responsibility and produced
papers that reflected the discussions that had taken place yet were without
prejudice to the positions of delegations on the issues under consideration in
the AHG and did not imply agreement on the scope or content of the paper. However, these FOC papers were considered
by the Ad Hoc Group in plenary session and amended as requested by delegations
so that they reflect the views expressed before they are accepted for
attachment to the procedural reports of the meetings. It is also clear from the reports of the meetings that some FOC
papers have gone through several iterations and have thus been refined and
improved.
In July 1997,
the Ad Hoc Group successfully transitioned to consideration of a rolling text
of a draft Protocol in which square brackets were used to indicate alternative
forms of language. This has now
reached its sixteenth version. As might
be expected, the number of square brackets has passed through a peak and has
subsequently decreased as the language for a number of Articles satisfactorily
met the requirements of States Parties and became free from square
brackets. The remaining issues were,
however, ones which could not be resolved in meetings chaired by individual
Friends of the Chair and by mid 2000, the reduction in the number of square
brackets had reached stagnation.
This led the Chairman, Ambassador Tibor
Tóth, in mid 2000 to commence a series of extensive and intensive bilateral
consultations with delegations and with Friends of the Chair in order to
explore conceptual solutions to the outstanding issues. Following these
consultations the Chairman provided written elements in a stripped down form of text which contained
some ideas which might form the basis of a compromise in some of the areas
where there were differing views. By the end of the February 2001 Ad Hoc Group
session written elements had been provided for almost the whole of the
Protocol. The stripped down text used
in these written elements could not be readily compared with the rolling text
and therefore forced a de novo consideration
of the conceptual solutions identified by Ambassador Tóth in his bilateral
consultations. This led in the February
2001 Ad Hoc Group session to calls by a number of States Parties for the
provision of a complete text.
On 30th March 2001, in capitals as well
as in Geneva, Ambassador Tóth provided the States Parties with the Chairman’s
composite Protocol text that is in its entirety based on language in the
rolling text and incorporating compromises where necessary to strike a balance
in those parts of the text where differing views still remained. It is important to stress that this
composite text was based in very large measure on text that had already been
agreed by all delegations during the negotiations, including the United States.
At the 23rd session of the Ad Hoc Group in April/May 2001, Ambassador Tibor
Tóth provided detailed explanations on an Article by Article basis of the
compromises which were significant for delegations.
Ambassador Tóth in his press conference
at the end of the 23rd Ad Hoc Group session on 11 May 2001 said that the States
Parties at the Ad Hoc Group had welcomed the provision of the Chairman’s
composite Protocol text. In their view it demonstrated that it was possible to
meet the mandate of the Ad Hoc group to complete the Protocol by the Fifth
Review Conference in November/December 2001.
He went on to say that quite a number of delegations had welcomed the
balance of compromises although, as might be expected from the nature of
compromises, there were delegations who were unhappy with the compromises. He said that:
“What was
emerging as a climate in the negotiations was that the delegations which used
to form a silent majority in the negotiations had spoken massively in the
course of the session. They spoke in
favour of the fulfilment of the mandate and concluding the negotiations in the
next session. … the question was whether delegations and capitals participating
in these negotiations for practically seven plus three years would say yes or
no to a Protocol, which in his judgement, would respect legitimate bio-defense,
industrial and non-proliferation interests while providing for efficient,
additional tools to strengthen the Biological Weapons Convention.”
The
Chairman’s composite Protocol text is firmly based on the rolling text – indeed
over 99% is identical to language in the rolling text – in which compromises
have been adopted where necessary. . A
detailed evaluation[1], Article by Article, of the Chairman’s
composite Protocol text prepared by Graham Pearson, Malcolm Dando[2] and Nicholas Sims[3] and distributed to the delegations to
the Ad Hoc Group in April 2001 concluded that "Whilst these compromises will not satisfy the aspirations of all
the delegations to the Ad Hoc Group, they do, in our view, successfully ensure
that the composite Protocol text achieves its mandate of strengthening the
effectiveness and improving the implementation of the Convention. The composite
Protocol text has successfully retained all the essential elements for an
effective Protocol ranging from definitions and objective criteria, through
compliance measures to measures for scientific and technological exchange for
peaceful purposes and technical cooperation." [Emphasis added]
It
is critically important to consider what is actually in the Chairman’s composite text and not to comment, as
several testimonies have, on misperceptions based on incorrect or dated
appreciations; the terminology used in several testimonies indicates a failure
to read or study the Chairman’s composite Protocol text. It has also to be recognized that the
Protocol negotiations have seen the
evolution of a text that reflects the
inputs of the negotiators and the strengths and validity of the arguments put
forward. It is, however, true that the
elements identified in the first version of the rolling text in mid-1997 are
all still there in the Chairman’s composite Protocol text. It is the detail that has been developed and
refined in the light of the negotiations.
It
is now timely and necessary after years of detailed negotiation about
words and paragraphs in the Articles to stand back and examine the Chairman’s
composite Protocol text as a whole in order to consider its value. It is also necessary to recognize that what
has been negotiated is a Protocol to strengthen the effectiveness and improve
the implementation of the Convention – it is not and never has been a
“verification” Protocol. Rather its
whole thrust has been to focus on compliance – to increase transparency as well
as the quantity and quality of information about activities and facilities
within States Parties of particular relevance to the Convention. Over time this
transparency will help to build confidence between States Parties that they are
in compliance with the Convention. Whilst
the Protocol could have been stronger, it has to be recognized that
stronger measures would not have attracted wide support and that the composite
Protocol text is the best that can
be negotiated at this time. A further
period of negotiation would not strengthen the composite Protocol text and
could well lead to unravelling of what is already a good Protocol. In standing
back to examine the Protocol, a useful analogy is to a tree where the Ad Hoc
Group have been considering which way the branches will go and what the shape
of the leaves should be. It is now time
to consider the whole tree.
In
considering the Chairman’s composite Protocol text, it is important to remember
that the BTWC with its basic prohibitions and obligations has been in force for over 25 years and that the
Protocol is to strengthen the effectiveness and improve the implementation of
the Convention. The Protocol makes no changes to the basic prohibitions
and obligations. The Protocol regime is
supplementary and additional to the Convention. It does not undermine the
prohibitions in Article I, but rather the Protocol safeguards Article I -- a
long standing objective of the United States and other delegations.
The
key comparison is thus between the BTWC Protocol regime and the BTWC alone (including
the procedures devolved from its provisions).
A tabulation of the principal measures in the regime, compared with the
procedures of the BTWC alone, clearly brings out the significant benefits from
the Protocol.
Table
1. Comparison of the Convention and its
Protocol Regime with the Convention alone
|
BTWC
and its Protocol Regime |
BTWC
alone |
|
Mandatory
declarations -- measures to ensure submission |
Confidence-Building
Measures -- patchy and variable (if made) |
|
Declaration
follow-up procedures -- analysis of declarations -- randomly-selected transparency visits |
None -- none -- none |
|
Declaration
clarification procedures -- clarification visits |
None -- none |
|
Voluntary
assistance visits |
None
|
|
Non-compliance
concerns -- Consultations >>>
Investigations |
Art
V consultation procedures Art
VI complaint to UN Security Council |
|
Field
investigation |
Possible
UN Secretary-General investigation if invited by State Party concerned |
|
Facility
investigation |
None
|
|
Transfer
procedures |
None |
|
Assistance -- provisions detailed |
Art
VII assistance if UN Security Council decides a Party has been exposed to
danger |
|
International
Cooperation -- elaborated in detail -- Cooperation Committee |
Art
X provisions -- no
implementation procedures -- none |
|
Organization -- CoSP, ExC & Technical Secretariat |
None
|
|
National
implementation -- Penal legislation required -- National Authority |
Art
IV National implementation -- No
penal legislation requirement -- None |
Considering
all the elements that make up the BTWC Protocol regime as a whole, it is clear
that there are overall three particularly
significant benefits that will accrue from the BTWC Protocol regime and which
are not available with the Convention alone:
Table
2: Principal benefits from the BTWC and
its Protocol Regime compared to the BTWC alone.
|
BTWC
and its Protocol Regime |
BTWC
alone |
|
Measures
to increase transparency and build confidence |
Suspicions
not addressed -- and over time reduce international confidence in
the regime |
|
Procedures
to address non-compliance concerns |
Art
V consultations (no teeth) Art
VI complaints to UN SC (not used) |
|
International
cooperation and assistance provisions enhancing infrastructure, transparency
and building confidence |
No action despite aspirations at
successive Review Conferences |
The
above comparisons show that the Protocol regime brings significant and
worthwhile benefits to all States
Parties -- both developed and developing
-- over and above the provisions to uphold the basic prohibitions and
obligations of the BTWC, which remain unchanged. In addition, the Protocol will be effective, over time, in
building confidence between States Parties that other States Parties are indeed
in compliance with the Convention, thereby reinforcing the norm that work on
biological weapons, whether directed against humans, animals or plants, is
totally prohibited. The international
cooperation and assistance provisions address a genuine need to counter
outbreaks of disease and through improvements in infrastructure in areas such
as biosafety and good manufacturing practice to meet internationally accepted
standards bring benefits for health and safety as well as for prosperity. The
Protocol as a whole thus brings improved health, safety, security and
prosperity to all States Parties.
It is
also appropriate to compare the BTWC Protocol regime with the CWC regime --
both Conventions address toxins, bioregulators and peptides and thus rightly have a significant area of overlap,
both have general purpose criteria which embrace all possible agents, past, present
and future, and both address dual use materials and technology.

The
CWC regime is the one of greatest
relevance to the BTWC Protocol regime and it is already evident that National Authorities
for the two regimes are likely to be colocated in a number of countries.
It
is hardly surprising that the BTWC Protocol regime has adopted some concepts
where appropriate from the CWC regime. The Protocol is, however, much more
elaborated than the CWC and has been finely tailored to address the fundamental
difference in the nature of biological agents as well as to capture the
facilities of greatest relevance to the Convention. If we ignore the chemical weapon and chemical weapon production
facility elements[4] of the CWC, then the basic architecture
of the BTWC Protocol regime and the CWC regime is the same. The qualitative
differences between the regimes are in the detail: the BTWC Protocol regime has
built on the confidence-building measures agreed by the States Parties
including the United States at the Second Review Conference in 1986 and
extended at the Third Review Conference in 1991. In respect of the monitoring of dual-purpose materials and facilities,
the two regimes are very comparable, with the Protocol regime imposing a less
onerous but more focussed burden in respect of declarations and visits whilst
the international cooperation provisions are much more extensive than those of
the CWC.
Table
3. Comparison of the BTWC and its Protocol
Regime with that of the CWC
|
BTWC
and its Protocol Regime |
CWC
Regime |
|
Mandatory
declarations -- range of facilities (BL-4, BL-3*, work
with listed agents*, production, …) -- requires declaration of biological
defence -- measures to ensure submission |
Mandatory
declarations -- focussed on chemical production
facilities -- no
declarations yet of chemical defence -- no
measures to ensure submission |
|
Declaration
follow-up procedures -- explicit and structured -- analysis of declarations -- randomly-selected transparency visits |
Declaration
follow-up procedures --implicit and unstructured -- routine inspections of production
facilities for scheduled chemicals and DOCs (discrete organic chemical) |
|
Declaration
clarification procedures -- clarification visits |
No declaration clarification procedures -- implicit not elaborated |
|
Voluntary
assistance visits |
No provision for voluntary assistance
visits -- implicit not elaborated |
|
Non-compliance
concerns -- Consultations >>>
Investigations |
Non-compliance
concerns -- Consultations >>>
Investigations |
|
BTWC
and its Protocol Regime |
CWC
Regime |
|
Field
investigation -- includes investigation of releases |
Investigation
of alleged use -- no
investigation of other releases |
|
Facility
investigation --
team size and duration limited |
Challenge
inspection --
duration limited |
|
Transfer
procedures |
Transfer
controls |
|
Assistance -- provisions similar to CWC |
Assistance |
|
International
Cooperation -- elaborated in detail -- Cooperation Committee --targeted on genuine need to counter
disease -- real benefits over time >>health,
prosperity |
International
Cooperation -- not
elaborated in detail -- no
provision for Cooperation Committee |
|
Organization -- CoSP, ExC & Technical Secretariat -- TS has role to analyse epidemiological
info |
Organization -- CoSP, ExC & Technical Secretariat -- no
parallel role |
|
Confidentiality
Provisions -- elaborated in detail in Article and
Annex |
Confidentiality
Provisions -- no
Article but an Annex -- not as elaborated |
|
National
implementation -- Penal legislation required -- National Authority |
National
implementation -- Penal legislation required -- National Authority |
* Indicates that only selected facilities
meeting certain combinations of conditions, not all such facilities are to be declared.
This
comparison demonstrates that the two regimes are indeed comparable and effective.
Indeed, the quality of the Protocol regime is certainly as good as, if not better
than, that of the CWC. Both
address dual purpose materials and technologies. Lessons have been learned from
the CWC implementation experience. The Protocol text has successfully been
crafted so that it will achieve the requirement for an effective and reliable
regime which, in accordance with the AHG mandate, will strengthen the
effectiveness and improve the implementation of the BTWC and thereby strengthen
the norm against biological weapons.
There is no doubt that the value of the Protocol will be of immense
value to all States Parties -- both
developed and developing – bringing improved health, safety, security and
prosperity. Indeed it should be noted that there is a relationship between the
co-operative measures and international security: improving the international
community’s ability to deal with the consequences of infectious disease will
help make it easier to identify deliberate outbreaks of disease that are the
result of the use of biological weapons.
National improvements in biosafety, good manufacturing practice and the
regulations covering the handling, transportation and use of biological agents
and toxins through the Protocol cooperation measures will improve national
infrastructure as well as transparency and over time will contribute to
building confidence.
The
Protocol is also important for its contribution to the web of deterrence which
comprises:
• A strong international and national
prohibition regime reinforcing the norm that biological weapons are totally
prohibited
• Broad international and national
controls on the handling, storage, use and transfer of dangerous pathogens
• Preparedness including both active and passive
protective measures and response plans that have been exercised
• Determined national and international
response to any use or threat of use of biological weapons ranging from
diplomatic sanctions through to armed intervention,
which
are together mutually reinforcing and lead a would-be possessor, whether a
"rogue State" or a non-State actor to judge that acquisition and use
of BW would not be valuable, would be detected and incur an unacceptable
penalty. Any single element of the web
of deterrence alone is insufficient -- all elements are vital and all need to
be strengthened as they thereby reinforce the deterrent effect. The Protocol through its strengthening of
the international prohibition regime not only reinforces the norm that
biological weapons are totally prohibited.
Its requirements also strengthen the international and national controls
on the handling, storage, use and transfer of dangerous pathogens and the
determined international response to
any use or threat of use of biological weapons.
The
States Parties to the Protocol will over time gain confidence in the compliance
of the other States Parties and any State Party contemplating breaching the
Convention will be deterred through the prospect that such a breach will be
detected by the measures in the Protocol.
Increasingly, States not Party to the Protocol will be isolated and will
effectively be declaring themselves as rogue states -- who can be countered
better by the multilateral body of the States Parties to the Protocol.
The
aim of the Protocol throughout has been to create a package of measures that
will increase transparency and build confidence between States Parties that they
are in compliance with the Convention. It is a compliance Protocol not a
verification Protocol – it is misleading to suggest otherwise. The heart of the
Protocol is thus made up of mandatory declarations, the declaration follow-up
procedures and the provisions for investigations. A balance has necessarily to be struck as to which facilities are
to be declared: the Protocol declaration triggers embrace a wide range of the
facilities and activities of most relevance to the Convention:
a. Biodefence programmes and facilities.
b. Maximum biological containment
facilities
c.
High biological containment facilities engaged in certain specified
production or genetic modification activities
d.
Plant pathogen containment facilities over a particular floor area
e.
Work with listed agents and/or toxins of a particular character:
production above a certain capacity; genetic modification activities; and
intentional aerosolisation
f.
Production facilities in excess of certain capacities or producing human
or animal vaccines.
The
scope of the facilities to be declared is thus much broader than those required
to be declared under the comparable elements of the CWC. The CWC declarations primarily address
chemical production facilities and have yet to include agreed modalities, as
required under Article X of the CWC, for declarations of chemical defence
programmes or facilities required under Article X of the CWC. Furthermore, the Protocol has provisions to
help ensure submissions of declarations – provisions that have no parallels in
the CWC, with a variety of tiered penalties, some automatic and some after
consideration – should declarations fail to be submitted.
Those
who argue that the CWC regime is not relevant to considerations of the BTWC
Protocol regime are ignoring the fact that both
regimes address dual-use materials and technology, both have general purpose criteria in the basic prohibition which
ensures that past, present and future agents are all covered and both cover the prohibition of toxins,
bioregulators and peptides. It is
evident that the Protocol regime has been developed from that of the CWC and
had been tailored to address the particular nature of biological agents and
toxins.
The
declaration follow-up procedures comprising the randomly-selected transparency
visits and the carefully tiered provisions for clarification of any ambiguity,
uncertainty, anomaly or omission in a declaration made by a State Party are
vital for ensuring the consistency of declarations. No State Party would make inaccurate or incomplete declarations
if they recognize that the deficiencies in their declaration will be exposed
either by the randomly-selected transparency visits or by the declaration clarification
procedures. The Protocol provisions
enable either the future Organization or individual States Parties to initiate
the declaration clarification procedures.
Consequently, a State Party to the Protocol contemplating violation of
the Convention would have either to carry out its activities in a declared
facility -- and risk exposure both through the Organization or through another
State Party seeking clarification -- or to use an undeclared facility and again
risk exposure both through the Organization or through another State Party
seeking clarification of the omission of that facility from the
declarations. A useful analogy in
considering the necessity of backing up mandatory declarations with follow-up procedures
comes from self assessment under the US (and the UK) tax systems – how accurate
would self assessment be if there were to be no follow up by the IRS?
In
considering the numbers of randomly-selected transparency visits carried out
each year under the Protocol – limited to greater than 60 and less than 90 –
their duration of no more than 2 days involving no more than 4 members in the
visiting team. It has to be recognised that this is a remarkably effective way
of enhancing transparency and generating confidence in the consistency of declarations.
Remember that the purpose is to demonstrate compliance and to deter would-be
violators rather than to find cheaters or catch out States Parties. In building compliance, there is indeed a
bonus in that a State Party would be highly unlikely to carry out prohibited
activities at declared facilities because of the risk that inconsistencies
would be detected. If such prohibited
activities were to be carried out at undeclared facilities, then again there
would be a risk that inconsistencies would lead to clarification being sought
about ambiguities, uncertainties, anomalies or omissions – and such
clarification can be sought directly by a State Party and is not dependent on
the future Organization. Regular visits to States Parties means that the inspectorate
will develop an appreciation of how regulatory frameworks apply in specific
States parties, the national standards that apply and improve understanding of
national processes. All this will be indispensable knowledge in the event of an
investigation. If a facility investigation were ever called in the United
States, would it not better if the inspectorate had some prior knowledge or the
regulatory frameworks (FDA and EPA for example), norms, practices and degree of
sophistication that applied? Such understandings will go a long way in
preventing investigation teams misinterpreting what they see and reduce the
risk that they might draw the wrong conclusion.
The
investigation provisions are for both field and facility investigations of
non-compliance concerns. The Protocol
includes within field investigations provisions for the investigation of
releases of biological agents or toxins.
In
sum, the Protocol regime of declarations, follow-up procedures and
investigations provides a structured and elaborated framework for the provision
of accurate information about the activities and facilities of the most
relevance to the Convention. This
brings immense benefits as was noted by Dr John Gee, Deputy Director General of
the OPCW when he spoke about the success of the declarations made under the CWC
when he said that:
What is significant is the fact that declarations have been made and the key parts of each State Party’s declarations are available to all other States Parties….This has been a considerable confidence-building measure….This process has answered a lot of questions that were out there prior to entry into force….all the other countries had to go on were press reports and intelligence estimates and so forth. The whole process of having declarations available to other States Parties has been a great success and a very substantial confidence-building measure.
If the situation with the Protocol in place is compared with the alternative of simply continuing with the Convention, it is impossible to see how the conclusion -- in other testimony to your Committee -- can reached that “a Protocol would not improve our ability to effectively verify compliance with the BWC either in terms of certifying that a country is in compliance with, or in violation of, its obligation”. Without the Protocol all that any country has to go on are press reports, intelligence estimates and so on; intelligence estimates have necessarily to be worst case assumptions and may well give undue credence to rumour and innuendo or simply fail to recognise perfectly legal reasons for an activity. However, with the Protocol in place, there will also be mandatory declarations from States Parties with the means to clarify any ambiguities, uncertainties, anomalies or uncertainties, providing hard evidence as to activities and facilities within the State Party. Any inconsistencies between parts of declarations can be addressed by States Parties as well as by the future Organization leading to a more comprehensive and soundly based appreciation of the activities and facilities within the State Party.
Export Controls
It is
widely recognised that the provisions in the Protocol relating to controls of
transfers of biological agents or equipment have been one of the most
controversial issues. It is, however,
essential to examine the issue in perspective and not to get carried away by
unsound arguments. First of all, it has
to be recognised that the formula adopted in the CWC in the early 1990s in its
Article XI that the States Parties shall:
c. Not maintain among themselves any
restrictions, including those in any international agreements, incompatible
with the obligations undertaken with the Convention, which would restrict or
impede trade and the development and promotion of scientific and technological
knowledge in the field of chemistry for industrial, agricultural, research,
medical, pharmaceutical or other peaceful purpose.
would
not be acceptable some 10 years later for the Protocol. To think that time has stopped and the same language
would be acceptable would be naďve.
However, it is equally naďve to think that the world has moved to a
situation in which controls of transfers are no longer required and can be
dismantled. The facts are that
governments around the world, especially in the developing countries, are
increasingly requiring prior notification of the imports of any potentially
harmful materials – whether these be banned and severely restricted chemicals
under the Rotterdam Prior Informed Consent Convention, genetically modified
organisms under the Cartagena Protocol on Biosafety, narcotic drugs and
psychotropic chemicals and their precursors under the various UN Drug
Conventions or chemical and biological materials relevant to chemical and
biological weapons under the CWC and the Biological and Toxin Weapons
Convention.
The
obligation under Article III of the BTWC is very clear:
Each
State Party to this Convention undertakes not to transfer to any recipient
whatsoever, directly or indirectly, and not in any way to assist, encourage, or
induce any State, group of States or international organizations to manufacture
or otherwise acquire any of the agents, toxins, weapons, equipment or means of
delivery specified in article I of this Convention.
The
mandate of the Ad Hoc Group – to
strengthen the effectiveness and improve the implementation of the Convention
-- is also clear. The
language in the Chairman’s composite Protocol text does precisely that – it
seeks to improve the implementation of Article III of the Convention – by
requiring Each State Party…to review and,
if necessary, amend or establish any legislation, regulatory or administrative
provisions to regulate the transfer of agents, toxins, equipment and
technologies relevant to Article III of the Convention…. There are thus clear benefits – both in
countering proliferation and the availability of materials and equipment for
bioterrorism – for the international
community from this requirement for all
States Parties to establish the regulation of such transfers.
The Burden of the Protocol
The
mandate for the Ad Hoc Group required that consideration be given to:
A
system of measures to promote compliance with the Convention, including, as
appropriate, measures identified, examined and evaluated in the VEREX
Report. Such measures should apply to
all relevant facilities and activities, be reliable, cost effective,
non-discriminatory and as non-intrusive as possible, consistent with the
effective implementation of the system and should not lead to abuse;