WRITTEN TESTIMONY

BY

AMBASSADOR TIBOR TÓTH

CHAIRMAN OF THE AD HOC GROUP OF THE STATES PARTIES TO THE

BIOLOGICAL AND TOXIN WEAPONS CONVENTION

AND

PERMANENT REPRESENTATIVE OF HUNGARY

TO THE UNITED NATIONS OFFICE IN VIENNA

AND PREVIOUSLY

DEPUTY SECRETARY OF STATE,

MINISTRY OF DEFENCE, BUDAPEST, HUNGARY

TO THE

SUBCOMMITTEE ON NATIONAL SECURITY, VETERANS AFFAIRS, AND INTERNATIONAL RELATIONS

OF THE COMMITTEE ON GOVERNMENT REFORM

U.S. HOUSE OF REPRESENTATIVES

10 JULY 2001

It is an honour and a privilege to provide you a written testimony on the issue of the Ad Hoc Group negotiations. I am Tibor Tóth, Chairman of the Ad Hoc Group of States Parties to the Biological and Toxin Weapons Convention (BTWC). I also served as Chairman to the 1992-93 VEREX talks preceding the AHG negotiations, to the 1994 BTWC Special Conference giving the mandate to the AHG negotiations, to the Drafting Committee of both the 1991 and 1996 BTWC Review Conferences. I participated in the Chemical Weapons Convention negotiations, assisted the Chairman of the CWC negotiations as a Friend of the Chair and served as a Permanent Representative to the Preparatory Commission of the Organization for the Prohibition of Chemical Weapons. Since 1997 I am chairing the subsidiary organ of the Preparatory Commission of the Comprehensive Test Ban Treaty responsible for administrative, financial and legal matters. In between 1990-93 and 1997-2001 I served as Ambassador to the United Nations Office in Geneva and Vienna, respectively. During 1994-96 I served in the Ministry of Defense as Deputy Secretary of State in charge of international matters and NATO expansion.

The Ad Hoc Group has been negotiating since January 1995. Predecessors of the Ad Hoc Group include the Confidence Building Measures agreed at the Second Review Conference of the BTWC in 1986 and amended and enlarged at the Third Review Conference of the BTWC in 1991. The Third Review Conference set up by consensus the VEREX group, which identified and assessed possible verification measures for the BTWC and worked in 1992 and 1993. The Ad Hoc Group moved to a draft Protocol text (the Rolling Text) in mid 1997. The Rolling Text developed and matured over the next three years. Since the autumn of 2000 progress has been very slow; the remaining differences were inter-linked and interdependent and required compromises across issues in the text. It was with that situation in mind, and conscious of the long history of the negotiations and the fast approaching 2001 Review Conference timeline that I introduced a Composite Text in which I have adopted compromises to address the remaining outstanding issues in March this year. The presentation of my Composite Text was preceded since the middle of 2000 in three AHG sessions by long series of informal bilateral consultations with all delegations – including the United States – in which I explored conceptual solutions to the differences in views. This lead to the production of written elements for virtually the whole of the Protocol by the March AHG session.

There are different views among the around 60 delegations participating in the Ad Hoc Group negotiations in Geneva, to what degree the term “verification” is appropriate in respect of the BTWC. A number of delegations, among them your country, have repeatedly expressed their view, that the BTWC is either impossible or very difficult to verify. As the negotiating history reflects this view has been taken into account while the mandate for the Ad Hoc Group was drafted. The Ad Hoc Group is not working on a “verification instrument” to the BTWC, but - as the mandate, agreed by all the States Parties, specifies - on “draft proposals to strengthen the Convention, to be included, as appropriate, in a legally binding instrument”.

Therefore, the ultimate aim of the Protocol can not be and is not verification of the BTWC, certainly not in terms of how verification is understood in the United States. Instead the Protocol will create enhanced transparency of relevant areas of dual-use civilian and military activities. One key objective, which I believe the Composite text fulfils, is to create a mechanism which will improve our ability to deal with compliance questions. It will do this firstly by improving the availability of information on microbiological activities, and secondly by providing a mechanism to investigate serous case of potential non-compliance with the BWC. These aspects of the Protocol are distinct mechanisms with inherently different aims and therefore very different provisions and procedures. Together they will foster a stronger BTWC. When assessing the different measures in the Protocol, the difference between these two aspects has to firmly be kept in mind. One can not expect a measure that is conceived and designed to enhance transparency, for example, to address non-compliance concerns in regard to Article I of the BTWC. To be clear: randomly selected transparency visits are not intended to catch non-compliant activity. Another point that is well worth making is that randomly-selected visits and the declaration clarification procedures will together provide a significant deterrent effect to States contemplating breaches of the Convention as they run the risk of being exposed.

The transparency measures covering relevant areas of civilian and military activities consist of initial and annual declarations by States Parties to the Protocol and the necessary mechanisms to ensure the correct and complete fulfillment of these declarations - randomly-selected transparency visits and clarification procedures. The latter are an innovation in the Protocol and go further than the CWC. I should add here that a similar idea for this mechanism came from the United States, and its inclusion in the Composite text is one area where US preferences have been reflected. Without these follow-up procedures we would create little more than reworded Confidence Building Measures - the limitations of which are obvious to everyone. When assessing the advantages of the follow-up procedures and their risks and burdens on declared facilities, one needs to keep in mind that they are not in any way connected to finding out about non-compliance with Article I of the BTWC. I would like to make a few observations on this point.

First, the limited size of the visiting team, the limited amount of equipment that the team can bring to the facility, and the limited range of on-site activities are perfectly adequate for the purpose of finding out whether the declaration of a facility is consistent with the activities of that facility, as has been demonstrated in trial visits carried out and reported in working papers by a number of States Parties. Second, not least due to the input of the United States, the definition of what a declarable facility is, differs from the common understanding of the term, considerably limiting the buildings and rooms that fall under the declaration requirement. A facility in the case of declarations is defined as “any room or suite of rooms, laboratory (ies), building(s), structure(s) or parts of a building(s) or other structures which is or are used to conduct activity (ies) as specified in Article 4”, i.e. only the room where the declarable activity is carried out has to be declared, which can be the fermenter hall in an industrial facility, or the BL4 laboratory in a research facility. The declaration triggers are carefully focussed onto the most relevant set of activities and the places where those activities take place. There is therefore no requirement for a visiting team to visit other areas of what might well be a large and complex site.

The provisions for randomly-selected transparency visits in the Protocol reflect a balance between the limited purpose that these visits are designed and able to fulfil - namely to help ensure that the declared information that form the underlying basis of the work of States Parties in the future Organization are correct, reliable and complete - and the burden that they place on declared facilities, especially on industrial facilities. The interests of industry are fully protected at all stages of the visit. The protection of confidential business information has in fact guided most delegations’ views on these visits right from the beginning of the negotiations. Let me point out some of the provisions that guarantee that randomly-selected transparency visits are under the full control of the visited State Party and facility:

1. Only a very limited range of specified equipment can be brought to the visited State Party, and the procedures for the use of such equipment guarantee that the visited State Party has full control over the amount and type of information collected.

2. The access provisions, while obliging the visited State Party to provide access within the facility, leave the nature and extent of all access at the discretion of the visited State Party.

3. Only a very limited range of on-site activities can be conducted by the visiting team, again guaranteeing that the visited State Party has full control over the amount and type of information collected.

4. The visiting team is not allowed to comment in its report on any requests for access or information that was made and which the visited State Party did not accede to.

It has also been argued that in general the transparency-oriented regime of declarations and visits is focussed on the wrong facilities and activities. The Ad Hoc Group has constantly focussed on the most relevant legitimate activities under the BTWC; these are activities, which beside their legitimate purposes are also essential components of an offensive biological and toxin weapons (BTW) program. These most relevant activities then need to be subject to the transparency regime under the Protocol. The first of these relevant activities are biological defensive activities; these are not only relevant because of their dual-use character, but also because effective biodefence would arguably be a necessary prerequisite for the use of BTW. Other necessary or likely elements of an offensive BTW programs are:

· work with especially dangerous pathogens and the biological containment that might or might not accompany such work – it should be noted that it is not the presence of these pathogens as such, but the particular type of work done with them that serves as the trigger (production above specific levels, certain types of genetic modification work and aerobiological experimental work);

· certain industrial microbiological production capabilities - here we do not talk only about the presence of big fermentation equipment, but more importantly about the know-how that large-scale production requires. The declaration triggers here and listing requirements in the Protocol reflect exactly these most relevant activities. The listing of specified industrial facilities is designed to limit the direct impact on the pharmaceutical industry since the information requirements are modest and there are no randomly-selected transparency visits.

The transparency provisions in the Protocol will, over time, create a climate of openness and candor around significant dual-use activities. We are about creating light where there is darkness. This is an environment in which proliferators may well find it more difficult to operate in flourish. Those who might wish to breach the Convention would rather do so in the shade rather than in the spotlight.

As Doug MacEachin (a former high-ranking CIA official) has pointed out, a would-be violator of the BTWC has two options. First, he can disguise the prohibited BTW program by putting it under the cover of legitimate activities. In that case it is likely that the relevant facility falls under the declaration obligations. It can convincingly be argued that the openness that is created through the declaration obligation, the declaration clarification procedures addressing any anomalies, uncertainties, ambiguities or omissions which can be initiated directly by a State Party as well as by the future Organization, and the possibility of randomly-selected transparency and clarification visits may well influence the decision making process of the would-be violator. He will at least have to live with the unquantifiable risk of exposing the hidden program, having the visiting team ask questions, and risking that his employees say the wrong thing in the wrong place at the wrong time. Please note that the argument and objective is not that the visiting team might uncover a hidden program during a visit. Instead we can, with some reason, submit that a would be violator might well have to think twice before putting a prohibited program in a legitimate and declarable facility. We are about shaping and re-directing intentions in the first instance and generating new information flows which aid understanding and serve as an adjunct to other efforts.

The second option that a would-be violator has is to conduct his prohibited program in a secret facility. In that case such a program has to be leak-proof, not just for today or tomorrow or throughout next week but for all time. The would-be violator has to conduct all activities in total secrecy, a task that will become increasingly difficult if the general transparency in relevant legitimate areas is growing. And even in a secret facility, the would-be violator runs the risk of on-site activities. Another State Party might have evidence that there are declarable activities going on in that facility and initiates the declaration clarification procedure. Alternatively, a State Party might possess compelling evidence of prohibited activities and in which case it can request a challenge investigation. Again, both options will make the life of a would-be violator more difficult. We are putting obstacle in his path. Undoubtedly some of the obstacle we could have erected could have been higher, but the prevailing view in Geneva, including that of the United States, was that other national security and commercial equities could not be exposed to significant risk of compromise through the application of compliance measures. In the end we had to strike a balance.

As mentioned above the Protocol will provide States Parties to the BTWC not only with enhanced transparency of relevant legitimate activities, but also with instruments to address concerns over possible non-compliance with Article I of the BTWC. The most important mechanism in this regard is challenge investigation. Challenge investigations have nothing in common with visits as described so far. Investigations address non-compliance concerns in a rapid and thorough way. The Ad Hoc Group always was in agreement that provisions for investigations are one of the most important elements of the Protocol. Investigation teams consist of 25 to 30 investigators and remain on site between 84 hours in the case of a facility investigation and 30 days in a field investigation. Investigators are allowed to use a variety of on-site activities with relative freedom. In the most serious cases of investigation requests the investigation goes ahead unless a three-quarter majority of the members of the Executive Council present and voting decide against it. These provisions are just a few examples to illustrate the qualitative difference between this challenge on-site activity and visits. I should add here that managed access provisions apply to the conduct of all on-site activities. Inclusion of such a provision was certainly a requirement oft expressed by PhRMA. Indeed the initiation process for launching a facility investigation uses the “green light” approach, a policy requirement of the Untied States and its industry.

Let me also remind you, that in the case of the 1992 Joint Statement between the US/UK and Russia, addressing the remains of the Soviet BTW program, the possibility of being on-site was the ultimate proof of transparency and openness. The Protocol provides exactly for this, a non-refutable possibility for on-site activities, without the involvement of the Security Council of the United Nations.

Let me draw your attention also to the fact that the Protocol provides for additional mechanisms to strengthen the effectiveness and improve the implementation of the BTWC. First, it requires all States Parties to implement national penal legislation prohibiting natural and legal persons anywhere on its territory and its own nationals anywhere in the world to carry out activities that are prohibited for a State Party under the BTWC, and to report on this to the Organization. This provision is valuable in countering the bio-terrorism problem. Second, the Protocol foresees extensive cooperation in “monitoring, diagnosis, detection, prevention and control of outbreaks of diseases”. This activity will create information on the disease outbreak pattern around the world, thereby indirectly facilitate the identification of unusual outbreaks of disease which could be the result of BTW activities. Third, the Protocol requires all States Parties to establish and implement national export controls and report accordingly to the Organization.

The Protocol’s scientific and technological cooperation provisions set out a framework in which a greater coordinated international effort on the surveillance, detection diagnosis and treatment of infectious disease can take place. This is the practical heart to Article 14. Such an emphasis does not undermine existing national or international efforts, which in any case are much less than they could be. Indeed this whole area, and greater efforts in it, are fully consistent with US national objectives. It is oft said that disease knows no frontiers. The outbreak of West Nile Fever in New York is but one illustration of this phenomenon. Therefore efforts to contain and improve the international community’s ability to combat infectious disease is in everyone's interest. The Protocol provides a golden opportunity to combine in a complementary manner both public health and international security objectives.

Finally, I would like to address the question of review of the Protocol’s transfer provisions. Article 7 were carefully drafted to take into account the compelling need to maintain national sovereignty on all decisions on transfer questions and not to interfere with arrangements that States Parties have to fulfill their obligations under the Convention. Article 7’s Review mechanisms are just that, they cannot result in any new legal obligation. Any change must and can only be pursued the full Protocol amendment provisions.

In conclusion, let me point out that over the past 6.5 years the Ad Hoc Group has made great progress towards a viable and effective agreement to strengthen the BTWC. No delegation in the Ad Hoc Group is completely satisfied with the outcome, simply because their national positions are only partly reflected in my Composite Text. But this applies in any multilateral agreement. Of course all delegations would wish to write the text differently had they the opportunity to do so. It has at times been painful and difficult to overcome the differences in views among delegations on a multitude of issues. The draft instrument before the Ad Hoc Group will provide the international community with a permanent legally binding mechanism to address the problem of biological weapons proliferation. It will not absolve us from all our worries in this regard, but with it we will have an additional and complementary tool to address the threat. Failure in Geneva will, I fear make other efforts, including unilateral ones, much more difficult to sustain and prosecute. I would therefore urge all States Parties not dismiss this opportunity of strengthening the international BTW control regime lightheartedly.

I sincerely hope that the United States will be able to further demonstrate its commitment to this process and provide the necessary leadership in the common struggle against biological weapons, as it did in the negotiation and completion of the Biological Weapons Convention three decades ago and the Chemical Weapons Convention nearly ten years ago.

I thank you.