Federation of American Scientists Working Group on BW Verification

 

Gradual Phase-in of Protocol Measures[1]

              

Revised October 2000

 

 

Rationale                    

 

A Protocol to strengthen the effectiveness of the Biological and Toxin Weapons Convention of 1972 may soon be ready for signing.  Much can be learned about initiating the operations of the Protocol from the recent experience of the Organization for the Prohibition of Chemical Weapons (OPCW).  Although the Chemical Weapons Convention (CWC) Preparatory

Commission had been in operation for four years before the treaty entered into force in 1997, the OPCW encountered many difficulties in trying to establish itself and begin normal operations without delay, as required by the Convention.  A number of operational issues are just now being resolved. 

 

Many of these politically dangerous operational issues, uneven treatment of States Parties, for example, could have been avoided by phasing-in over time the activities and operations of the OPCW.  To avoid similar problems when the BTWC Protocol enters into force, we propose here a gradual phasing-in of Protocol measures and some specific procedures for accomplishing this.  We also propose that the The Biological and Toxic Weapons Protocol Organization regularly conduct mock challenge investigations to, among other reasons, maintain the skills of the inspectorate.

 

 

Background

 

The Biological Weapons Convention of 1972 (BWC)[2] prohibits the possession, development, and stockpiling of biological weapons but lacks verification measures.  The States Parties agreed to a politically-binding information exchange that started in 1987 to attempt to address suspicions of non-compliance and to increase transparency in biodefense activities and other activities related to the Convention.  When these "Confidence-Building Measures" appeared inadequate, international concern and the end of the Cold War created a window of opportunity and provided impetus for enhancing global security by negotiating a legally-binding regime to strengthen the effectiveness of the BWC.  In 1991 a two-year study of the feasibility of measures to verify compliance was undertaken by verification experts from the Convention's Parties.  The "VEREX" report, was presented at a Special Conference in 1994, which then established an Ad Hoc Group to negotiate a protocol to strengthen the BWC.  Their mandate includes matters of trade and scientific cooperation as well as measures to promote compliance. The draft Protocol is to be presented to the States Parties at another Special Conference before the Sixth BWC Review Conference is held in 2001.

 

The Protocol will address a number of areas including, among others: Compliance Measures, Confidentiality Provisions (i.e. for Confidential Business Information and National Security Information), Assistance and Protection Against Biological and Toxin Weapons, Scientific And Technological Exchange For Peaceful Purposes And Technical Cooperation, Confidence

Building Measures, and National Implementation Measures. 

 

Three major elements of the compliance component of the Protocol under negotiation by the Ad Hoc Group are: (1) Annual declaration of dual-capable facilities; (2) challenge investigations; (3) non challenge visits.  Dual-capable facilities are those that could be used for either BW or peaceful purposes.  While the Pharmaceutical Research and Manufacturers of America (PhRMA) and the Federation of American Scientists (FAS) disagree on the usefulness of non challenge visits, with industry concerns in mind FAS has developed phase-in suggestions, whenever applicable, for all elements of the Protocol now under consideration, without prejudice regarding the final measures that may be adopted.

 

 

Phase-in Suggestions

 

Many of our phase-in suggestions address concerns about the Protocol that have been expressed during the negotiations.  Therefore, a phasing-in of operations may make the Protocol more palatable to States and their institutions, as well as facilitating the operations of the BW Organization to be established.  For many reasons it would be desirable to include an explicit phase-in schedule as part of the Protocol (e.g., as an Annex).  

 

In general, we suggest delaying or carrying out operations in a simplified form for a period of years before instituting full operations.  Operational experience would thus be gained gradually and cautiously.  Efficient, even-handed standard operating procedures (SOPs) would be developed before full implementation of the Protocol took place.

 

The first year following Entry into Force (EIF) should be devoted entirely to organizational activities and the provision of administrative assistance to States Parties.  If some of this could be accomplished under the Preparatory Commission, this period could perhaps be shortened somewhat.  The experience of the OPCW suggests, however, that a significant time lag is essential in any case before any declarations are submitted or on-site activities are initiated.

 

In the suggestions below, the time-lines refer to years after EIF of the Protocol.  Prefacing comments, some highlighting issues and problems encountered during the three years of operation of the OPCW, are in italics.  Recent versions of the Rolling Text contain draft wording for the following compliance measures: declarations, follow up procedures, random/transparency visits, and investigations.  Without presupposing the inclusion of these measures or their specific wording in the final version of the Protocol, we suggest the following phase-in schedule.

 

 

1.  Phase-in of declarations and clarification procedures

 

For the CWC, nearly two-thirds of States Parties had failed to file initial declarations by three years from EIF[3].  In addition, the content of those declarations that were submitted was often inaccurate.  Identifying declarable facilities and preparing declarations in a short period of time can be a daunting task for the National Authorities of both developed and developing countries, for different reasons:  the number of declarable facilities may be very large, or the infrastructure to handle the task may be insufficient.

 

Ø                  DURING YEARS 1 AND 2.  The Organization set up under the Protocol would provide assistance upon request to States Parties in setting up National Authorities (e.g., computerization of declaration forms, identification of declarable facilities, etc.).

 

Ø                  END OF YEAR 1.  All States Parties would submit a provisional list of facilities expected to be declared or a null statement.  Name, address, contact information, and type of facility (e.g., defense, research, manufacturing) would be the only required information.

 

Ø                  DURING YEAR 2.  The Organization would offer assistance in preparing facility declarations, which could include voluntary on-site visits if requested by the State Party.

 

Ø                  END OF YEAR 2.  All States Parties would submit an amended list of declarable facilities, and trial declarations would be required for all these.  States Parties without declarable facilities would be required to file a statement to that effect.

 

Ø                  DURING YEAR 3.  The Organization would respond to apparent uncertainties, ambiguities, anomalies or omissions in the trial declarations by conducting trial clarification consultations (without on-site activities).  Clarification consultation procedures could thereby be tested and standard operating procedures (SOPs) developed.

 

Ø                  END OF YEAR 3.  Full, official "initial declarations" of all facilities would be required; Measures to Ensure Submission of Declarations (Art. III D III) would become operative for the first time. 

 

Ø                  DURING YEARS 4 AND 5.  Final clarification procedures would be implemented, but without any followup actions by the Executive Council.

 

Ø                  END OF YEAR 5.  End of phase-in period for declarations and clarification procedures; start of fully normal operations.

 

 

2.  Phase-in of [randomly-selected/transparency] visits

 

The OPCW has encountered a number of difficulties with on-site activities, including imbalance of inspections (with some nations hosting many and others none), imbalance in kinds of facilities inspected, inconsistent approach by inspection teams and the need for inspection SOPs, and under-utilization of inspectors.

 

Ø                  END OF YEAR 1.  Each State Party would nominate one facility of each type (eg, defense, research, production) from its provisional list for a possible trial visit.  If a State Party failed to nominate, the Organization would choose representative facilities from the provisional list of declarable facilities, or from the facilities declared in the past under the Confidence-Building Measures. 

 

Ø                  DURING YEARS 2 AND 3.  An agreed number of trial visits would be carried out at facilities selected from those nominated, using a random process that ensured that, to the extent possible, every State Party received a visit and every type of facility was visited.  For these trial visits, each facility would have complete control over on-site activities. Managed access procedures would generally not be necessary, but could be tested if the facility wished.  These visits would familiarize inspectors with the customs and operational methods within different States.  The inspectors and facility personnel could exchange ideas on SOPs and the future conduct of managed access.  Periodically, the inspectors would submit a summary of what they had learned, without identifying particular facilities.  Aggregate information from these visits and discussions would be valuable in developing SOPs and other on-site details. 

 

During this period the Organization would provide, both on-site and off-site, information on managed access if requested by a State Party.

 

Ø                  DURING YEARS 4 AND 5.  Normal visits, with the prescribed purpose and scope, would commence, but would be conducted primarily for learning purposes on both sides.

 

Ø                  END OF YEAR 5.  End of phase-in period, start of fully normal operations.

 

3.  Phase-in of investigations

 

The OPCW encountered many surprises, including the need for inspection SOPs, during two mock but realistic challenge inspections.  Since there have been no real challenge inspections to date, the OPCW is worried that States Parties have forgotten about safeguards that have been built into the system and are beginning to view challenge inspections with fear and suspicion.  If challenge inspection is not utilized, there is concern that the option will disappear from consideration. Under the BTWC Protocol, adoption of a fair voting green-light procedure for launching investigations, together with regular mock investigations, could help to mitigate such concerns.

 

The phase-in measures proposed below apply to facility investigations.  Because of the potential seriousness of field investigations, no phase-in period is proposed for them.  For field investigations, the Organization will have to rely largely on other institutions for ad hoc personnel appropriate for each individual situation, and will have to develop procedures in consultation with experienced institutions.

 

Ø                  AT EIF.  Requests for facility or field investigations would be acceptable at any time after EIF.

 

Ø                  END OF YEAR 1.  Each State Party would nominate one facility from its provisional list of declarable facilities for a mock investigation. 

 

Ø                  DURING YEARS 2 AND 3.  A total of [6] mock facility investigations would be conducted over the two-year period to develop SOPs and provide a degree of familiarity with the process.  Issues concerning sampling and analysis would be discussed, and mock or trial sampling and analysis (see below) could be practiced.  Host facilities would be selected from among those nominated, using an appropriate random mechanism that ensured selection of at least one facility from each regional group of States Parties during the two-year period.  Each State Party could change its nominated facility at any time. Once selected for a mock facility investigation, a facility would be removed from the list and a new nomination would be required.

 

Ø                  SUBSEQUENT YEARS.  Standard operations would include two mock facility investigations per year, which would be replaced by real investigations if they should take place.  This would keep the concept fresh, increase confidence in its utility, and maintain the skills of the inspectorate.

 

4.  Sampling and identification

 

At present there are a number of rapid, reliable and portable identification methodologies for microorganisms and toxins, including potential BW agents, that are either ready for use or under development..  It seems clear that there will be a number of packaged methodologies for the Organization  to choose from; however, they will have to be adapted to meet the needs of inspectors and to address the concerns of States Parties and their institutions.  Such adaptation would include (1) expanding identification to a wide range of biological warfare agents and cloning vehicles and (2) developing procedures that meet international industrial standards.  In addition, the Organization will have to have at least two, preferably three, orthogonal methods available for each purpose, in order to reduce false positive or false negative results.  Orthogonal methods utilize fundamentally different identification methodologies so that any methodology-dependent errors produced by one method are highly unlikely to occur when another method is used to analyze the same sample.

 

Ø                  END OF YEAR 1 or as soon as at least two appropriate orthogonal methodologies appear to be field-ready, the Organization would adopt them for testing.  The methods would be tested extensively by the Organization and by States Parties and facilities that volunteered to do so.  When the Organization believed it had an adequate arsenal, it would begin to conduct trial sampling and analysis during mock facility investigations, using samples agreed by the parties involved, to gain practice in utilizing the procedures on-site and to compare the results of orthogonal methods under field conditions.  Results at particular facilities would be kept confidential within the Organization, which would present aggregate data when it requested authorization to commence normal utilization of the selected analytical procedures.

 

 

Conclusion

 

The gradual phasing-in of Protocol measures, as in the scheme presented here, would lessen concern and lead eventually to more effective Standard Operating Procedures, compared with the immediate implementation of permanent measures upon Entry Into Force of the Protocol.  We recommend that the Protocol specify explicitly that declarations and on-site measures would be phased in, with specified time-lines and with limited freedom for the Executive Council to adjust the time-lines as experience is gained. 

 

States Parties that ratified the Protocol after EIF could be given a [six-month] lag period before being expected to comply with the requirements in effect at that time.  The Organization would make an effort to assist new States Parties during their lag periods.

 

 


[1]We have consulted with senior operations managers from major US pharmaceutical companies during the preparation of this working paper.

[2]The formal documents discussed in this paper, The BWC of 1972, the draft BWC Protocol (Rolling Text of October, 1999) and the Chemical Weapons Convention may be found on the FAS web site (www.fas.org) or the PhRMA web site (www.phrma.org).

[3]Talk by Ambassador Serguei Batsanov, Director, Special Projects, OPCW, given at the Harvard University JF Kennedy School of Government, April, 2000.