FAS Public Interest Report
The Journal of the Federation of American Scientists
May-August 2001
Volume 54, Number 3-4
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Front Page
The Central Deception of National Missile Defense
If Not NMD, Then What?
Sharing Missile Defense
US Government Fails to Lead on Small Arms
US Policy and the BWC Protocol
Intelligence Oversight Faces New Obstacles
Controversy over Wen Ho Lee Persists
FAS Status Report

US Policy and the BWC Protocol

In what has become a depressingly consistent pattern of resistance to international agreements, the U.S. has effectively scuttled a six-year effort to draft a verification protocol to the Biological Weapons Convention. The US chief negotiator Donald A. Mahley, said that the US had concluded that "… the draft protocol would put national security and confidential business information at risk." This administration apparently sees no risk in failing to use internationally agreed mechanisms for verifying the treaty or the encouragement that potential violators will take from this failure. The irony, of course, is that the weakness of the protocol is there largely at US insistence. Instead of using its position as the world's single superpower with humility, the US is once again parting ways with its closest allies and taking a position that can only be read as an insistence that other nations should lay themselves open to intrusive inspection, while the US accepts no obligations.

The following material is excerpted from testimony by Barbara Hatch Rosenberg, Director of the FAS Chemical and Biological Weapons Arms Control Project, made before the House Committee on Government Reform Subcommittee on National Security, Veterans Affairs and International Relations on June 5 urging the US not to abandon the verification protocol. Its logic remains compelling.

Ever since President Nixon unilaterally renounced biological weapons, there has been bipartisan support for the BWC and, under Ronald Reagan, George Bush (Sr.) and Bill Clinton, vocal US support for strengthening it. Throughout the six years of Protocol negotiations, however, virtual deadlock in the inter-agency process prevented US leadership and greatly limited US contributions. With each agency most interested in protecting its own turf, there has been no participant who has had both the vision and the power to insist on the public interest. Only high-level determination will override these narrow interests.

Consequently, at the Protocol negotiations the ball has been carried by our allies, particularly the United Kingdom, which served as Friend of the Chair for Compliance Measures. The UK has devoted great effort to research and develop an effective compliance regime. If the Western Group had stood solidly behind the original British contributions to the rolling text we would have a much stronger Protocol text now. But US objections forced continual weakening of the text, and the obvious split in the Western Group prevented the West from negotiating from a position of strength with other Blocks. Countries like China have been able to use the US as a shield for their views. Rejection of the Chairman's Text for the Protocol puts the US in a position more extreme than that of the radical fringe — China, Libya, Cuba, Iran and Pakistan — which have expressed significant objections but not outright rejection of the text.

US objections to the strong Protocol measures originally advocated by our allies centered around the declaration of Biological Defense facilities. This year, new objections were added, including opposition to declaration of non-governmental production facilities. Once US objections were voiced, it became essentially impossible to reach consensus on anything stronger. Incorporation of US demands in his compromise text left the Chairman in a weakened position to deal with the demands of other countries. Our allies consider the Chairman's text to be the best that can now be achieved. At the same time, they consider it the bottom line and want no further compromises. Moreover, the negotiators are close to the end of their patience and our allies see no point in continuing to spar unproductively with the US. We are within reach of the goal. If consensus cannot be reached soon with minor adjustment of the Chairman's text, it means that there is no political will to strengthen the BWC.

Unless it can be seen by the end of the negotiation that agreement is near, there is sure to be a contentious row at the fifth BWC Review Conference in November, with quite likely a lack of agreement on what to do next. The US is certain to receive most of the blame. By turning down an international step toward prevention that is almost within our grasp, the US is telling potential proliferators that the international community is not prepared to enforce the ban on biological weapons. As citizens of the lone superpower, Americans would be a prime target if these weapons were used either strategically or as an instrument of terror. Even without use, the proliferation of biological weapons entails a serious risk of escape and the possible establishment of new and uncontrollable diseases in the biosphere. There are no military weapons that can "take out" an emerging disease.

US military experts, and studies by many non-governmental experts, agree that, at present and for some time to come, terrorist groups are highly unlikely to have sufficient expertise and resources to succeed in a mass attack with biological weapons. Aum Shinrikyo, the Japanese terrorist group, had plenty of both but failed in nine attempts to mount a biological attack. Although the US has so far concentrated on preparations for mopping up after a bioterrorist disaster, it would be foolhardy to ignore the more important goal of cutting off the source by preventing the proliferation of biological weapons. That is not something the US can do unilaterally. The first step must be international, and strengthening the BWC is the available tool. That is why our European and other allies are so angered and dismayed by the US stance.

A verification regime that can be relied upon to detect violations of the BWC is impossible. That is not what the Protocol is about, and not what the negotiators have ever tried to do. Too much of what is needed to develop biological weapons also has peaceful uses. In such "dual-use" situations, the objective is transparency with regard to relevant capabilities. This was an intrinsic premise in the VEREX feasibility study and its positive outcome.

Sufficient transparency can be achieved by requiring declaration of relevant installations and providing means for clarifying any questions that may arise regarding the declarations, including whether or not relevant sites have NOT been declared. The Chairman's text does this. It requires declaration of the sites of greatest potential threat, and it provides several different means for getting on site (which, if blocked by the party in question, would also yield information).

The intrinsic tension between transparency and confidentiality means that, in any biological weapons regime, no smoking guns are likely to be found. Although inspectors' on-site activities have to be subject to limits in order to protect confidential information, that doesn't mean that nothing will be learned. Raising suspicions, or resolving them, is what the Protocol is about. National means can then be focused on the sites or questions of concern. The Protocol's compliance regime would effectively complement national intelligence, military power and diplomacy. In serious situations the Protocol would provide a basis, broader than we now have, for international action.

The Chairman's text provides a variety of on-site measures:

  • mandatory randomly-selected visits to declared facilities;
  • visits to clarify remaining questions when consultations fail (these may be voluntary or can be pursued through the Executive Council to become mandatory);
  • mandatory challenge investigations anywhere, including both facility and field investigations.

Douglas MacEachin, former Deputy Director of the CIA, has made a persuasive case for the deterrent effect of non-challenge visits. In a recent article he points out that, ideally, a proliferator would use a commercial plant as a cover for a biological weapons program, thereby facilitating operations and the procurement of dual-use equipment and materials. But if the plant had to be declared, he would not take the chance that inspectors might obtain enough information during a visit to raise new suspicions. Instead, the illicit activity would be forced into undeclared, clandestine operation, with all the attendant risks. Any evidence of suspicious activity at an undeclared site could lead to intense surveillance, a clarification process under the Protocol or a challenge investigation. The Chairman's Protocol text calls for a 50% vote of Executive Council members present and voting to authorize a challenge investigation at a suspected facility. An FAS study recommended this formula as the best means for preventing ill-founded investigations without unduly inhibiting the use of this important measure or impeding its deterrent effect.

It is ironic that, while suspecting Iraq of continuing its biological weapons program and decrying its refusal to allow UN inspections, the US is turning down a treaty that would provide a variety of means for probing suspicious installations by going on site.

The US policy review has rejected the Chairman's text on the grounds that

  1. it is too weak,
  2. it would threaten national security and commercial proprietary information, and
  3. it threatens the Australia Group and its "dual use" export control regime.

a) Weakness:

With regard to weakness of the text, the old argument of not being able to detect violations (meaning always, and with certainty) is frequently invoked. As discussed already, this is not and could not possibly be the purpose of the Protocol. If this were the only criterion of interest to the US, we should never have participated in the negotiations in the first place.

Furthermore, the US delegation has made it known in Geneva that they will not support any Protocol based on the present negotiation mandate, but would prefer a much more limited mandate — which would inevitably lead to a more limited Protocol. A more limited Protocol — say, containing only challenge investigations—would be weaker, not stronger.

Finally, the weaknesses in the text are largely there in compliance with past US demands, including the following:

—The text does not require declaration of all biodefense facilities; only those conducting certain activities, and only those above a certain size. There are ample loopholes to satisfy DoD specifications.

—The text requires no significant information about production facilities for pharmaceuticals (other than licensed vaccines), and exempts them from visits! No problem there for American pharmaceutical companies.

—All on-site activities of inspectors during visits are at the discretion of the host government, and all procedures during challenge investigations are subject to managed access.

—All visits require at least two weeks notice.

b) Confidentiality:

The Chairman's text possesses more safeguards for confidential information than the Chemical Weapons Convention of 1993 (CWC), to which we are already a party and which covers most of the same facilities: those handling toxins (including the US biodefense program), for example, fall under both treaties; most pharmaceuticals are manufactured chemically, and therefore are "discrete organic chemicals" covered by the CWC. Challenge inspections under the CWC can take place "anytime, anywhere," as President George Bush (Sr.) insisted.

Unlike the CWC, for example, the Protocol text allows no sampling and analysis in non-challenge visits, and gives control of access to the host country. These aspects of the Protocol text comply with the wishes of US bioindustry, which is particularly concerned about protecting its proprietary microbial strains. There are, in addition, all the protections for confidentiality that were developed for the CWC with the help of the chemical industry. The exemption of certain defense facilities and of most pharmaceutical facilities from declaration under the Protocol, discussed above, provides additional protections for confidential information. The Chairman's text more than meets all the essential confidentiality concerns of the pharmaceutical and biotech industries. Further safeguards for industry could be incorporated into US Protocol implementing legislation.

c) Export Controls

One only need read Article 7 of the Chairman's text to realize that its rhetoric is meant to please the critics of the Australia Group but its substance tilts heavily toward the West. The text contains only guidelines, with no hard obligations regarding exports; each State Party has full discretion over implementation of the suggestions in the text.

One thing is certain: any weaknesses in the Protocol do not stem from inadequate technical information. Although the US has submitted no reports on trial visits or investigations to the Protocol negotiations, twelve trial visits have been reported by other countries, most of them US allies. Half of these trials involved more than one country, or included foreign observers. All of them concluded that non-challenge visits would be effective in strengthening the BWC and increasing confidence in compliance. They also concluded that confidential information could be protected at the same time. Americans should be aware that protection of their defense establishments and bio-industry is of great importance to our allies, as it is to us. In formulating their policies our allies have worked productively with the same multinational corporations that are the major players in the US.

In addition, copious amounts of information were available from trial inspections conducted by the US and many other countries not so long ago during negotiation of the CWC, from the UNSCOM experience in Iraq, and from the experience of multiple types of national and international inspections carried out routinely at sites relevant to the Protocol by many countries. It would be desirable for the US to carry out on-site trials of its own in order to allay the fears of those potentially affected, but to be credible, such trials would have to be multilateral and would have to make a special effort to demonstrate the absence of bias.