Federation of American Scientists Working Group on BW Verification

Visits Are Crucial

September 1998

Seven years have passed since the Third Review Conference took the first steps toward strengthening the Biological Weapons Convention with a compliance regime. The original challenge was to find measures strong enough to make an effective regime. With the focus now on elaborating a treaty text full of detailed requirements, each exacting a cost, the new challenge is to retain the original vision of an effective regime and the political will to make it a reality. An historic opportunity hangs in the balance.

Non-challenge visits are the crux of the matter. A compliance regime consisting of declarations without mandatory visits of suitable types will amount to little more than the present Confidence-Building Measures, which have been tried and judged inadequate. Although a challenge investigation mechanism will probably be adopted, it is likely to be so restrictive that it will rarely be used. We submit that, by engendering a false sense of confidence, such a regime could be more dangerous than none.

In light of the basic purposes of a compliance regime, to deter non-compliance and increase confidence in compliance, it is evident that an effective regime must:

1. Require annual declaration by facilities with relevant dual-use capabilities;

2. Provide means for clarifying ambiguities in declarations;

3. Provide an incentive for submitting accurate declarations and avoiding illegitimate activities in declared facilities, by creating and maintaining uncertainty as to whether or when a declared facility may be visited to confirm its declarations;

4. Provide a mechanism for on-site investigation of any event or site, whether declared or not, at which there is reason to suspect a violation of the BWC.

The second and third criteria listed above require non-challenge visits. If consultations fail to clarify ambiguities or omissions in declarations, clarification visits will be needed. They are an essential element for resolving specific concerns other than those based on direct evidence for BWC non-compliance. Clarification visits, however, can be invoked only when there is a specific question about a declaration. They entail little uncertainty because the preceding consultations would allow ample time to prepare for a visit. Another type of visit is needed as a general means of confirming declarations and inhibiting the misuse of declared facilities. These could be called transparency visits.

Transparency Visits

· Short Notice: To be effective in discouraging the illicit use of declared facilities and narrowing the number of sites of concern, transparency visits have to be carried out at short notice. Illicit activities would be difficult to conduct in a facility that could never be sure it was not about to receive a transparency visit within a day or two.⁽¹⁾ If all non-challenge visits were to allow for several weeks advance notice, the compliance regime would forfeit the essential functions of deterrence at declared facilities and encouragement of (and confidence in) accurate declarations.

· Equity: Truly random selection of sites for transparency visits is not desireable because it would risk inequities. Certain qualifications are essential. To ensure equity as well as uncertainty, transparency visits should be capped with a maximum number per facility and should be geographically distributed. The maximum number of visits per facility should not be less than two, in a period of one or, at most, two years (or multiples for multiple-year periods), in order to maintain uncertainty about visits. It is the uncertainty that will deter, as much as the actual visit.

The number of transparency visits per State Party could be limited by ensuring geographical distribution. For this purpose (only), States Parties could be divided into [4] geographical units, each with roughly similar numbers of declared facilities.⁽²⁾ The BWC organization could assure that each region receives [1/4] of the total number of transparency visits.⁽³⁾ Thus, if there were a total of 52 transparency visits each year and about 2800 declared facilities,⁽⁴⁾ each of four regions would receive transparency visits at 13 facilities from among the approximately 700 in each region. Each facility would have a 1.7% chance of a transparency visit in a given year, and would, on the average, receive one visit every 54 years. Nevertheless, the possibility of one or even two visits in any given year could never be ruled out by any facility. A small country with only four declared facilities would have only a 6% chance that any facility in that country would be visited. The organization could also assure (footnote 3), over a longer period (eg, 6 years), that the transparency visits are equitably distributed among all the States Parties and facilities in a region, and that the visits cover all the various types of declared facilities.

A modification that could be considered is the exemption of a State Party from visits for a year when it has had [10] consecutive transparency and clarification visits leaving no unresolved questions.

· Protection of Confidential Information: To make short-notice, mandatory transparency visits more acceptable to facilities concerned about the protection of confidential information, States Parties might consider allowing the visited facility to control access directly. This could be incorporated in national implementing legislation (not in the protocol, which has to place ultimate responsibility on States Parties). States Parties and facilities will have to plan for protecting confidential information in challenge investigations, in any event. A National Authority will be needed, and most BWC States Parties will already have national authorities that support routine and challenge inspections under the Chemical Weapons Convention.

Other protections for confidential information in the BWC compliance regime are likely to include the following:

a) No highly sensitive information required in declarations.

b) Limited, specific mandate issued for each visit.

c) Negotiated access on site, using managed access procedures.

d) Restricted use of sampling and analysis (to be elaborated in a later FAS paper).

e) Rules for safe handling and non-disclosure of confidential information by the BWC organization and its inspectors, and penalties for disclosure.

f) Permanent, professional Inspectorate.

g) Right of each State Party to accept or reject appointment of inspectors.

Some additional protective measures have been proposed by the FAS Working Group.⁽⁵⁾

Most facilities that will be declared, at least in the industrialized countries, are already subject to a variety of inspections, most of which have far fewer protections than these.

Clarification Visits⁽⁶⁾

The use of clarification visits to resolve questions about declarations cannot be limited by prescribed quotas or distributions. When consultations have not been successful, clarification visits must be mandatory in order to prevent suspicions from arising and undermining the treaty. In cases where the clarification visit is to be conducted at an undeclared site, however, some form of review is appropriate. Procedures should be adopted to ensure that clarification visits, and transparency visits as well, are seen as non-confrontational, are conducted in a friendly manner, and are strictly unpublicized. Initiation of clarification procedures by the BWC organization rather than States Parties will help to keep the process low-key.

Voluntary and Other Types of Visits

Clearly, voluntary visits could not fulfill the functions of transparency or clarification visits, and we believe they are not worth the expenditure of the BWC organization's sure-to-be-limited resources. However, as a confidence-building measure, declared facilities might want to "volunteer" by expressing their willingness, in advance, to receive non-challenge visits. This would enhance their reputations by emphasizing their valuable contribution to the control of biological weapons.

It should be possible to request a visit for assistance, but these would have an entirely different purpose and require different expertise altogether.

Number of Non-Challenge Visits

The capabilities of the BWC organization will determine the number of visits it can make in a year. If the organization's capacity is 100 visits (of all kinds), a minimum of 50 transparency visits could be mandated, allowing for 50 clarification visits if they should be needed. If there were fewer than 50 clarification visits, the number of transparency visits would increase to maintain a total of about 100 visits. If the regime works properly there should be numerous clarification visits during the initial period of learning and adjustment to the new requirements, but as time goes on it is likely that fewer questions will arise and the number of clarification visits will diminish.

Discussion

Besides increasing transparency and facilitating the assessment of compliance, visits would provide inspectors with broad-spectrum experience of normal conditions, enabling them to recognize more easily when something is amiss. Transparency visits make it difficult to cheat at declared sites; challenge investigations perform that function for undeclared sites; and clarification visits contribute to both. Without visits to declared facilities, the intrinsic difficulties of conducting clandestine operations in an undeclared facility would make declared, dual-use sites the obvious choice for a new BW program.⁽⁷⁾ But the cost that suitable visits would set for the illicit use of declared facilities would significantly deter countries considering biological weapons,⁽⁸⁾ and put most dual-use facilities off-limits. The much lower cost to legitimate facilities, in preparing for and hosting visits, is the price that has to be paid for living under the rule of law.

Non-challenge visits can be effective without assuring the discovery of smoking guns. They can raise or banish suspicions, on the basis of which individual States Parties can focus their national means on monitoring the sites of greatest risk, making it difficult or impossible for those sites to hide violations and avoid challenge investigations.