An Impractical Protocol

Alan P. Zelicoff

The Biological Weapons Convention (BWC) entered into force in 1975 without a formal compliance monitoring regime. The text of the convention is mercifully short, consisting of only 15 articles, and, procedural items aside, these articles fall into three broad areas: arms control and non-proliferation; scientific cooperation and technical exchange; and restrictions on transfer of materials or equipment that facilitate biological weapons development or manufacture, sometimes called "export control."

This grouping of the BWC articles served as the basis for negotiations—begun in 1992 after the third review conference—to seek new measures that, in the words of the groundbreaking Verification Expert Group of 1992-1994, "could be useful to strengthen the Convention." Indeed, the chairman's text on a protocol to the BWC that has emerged from nearly a decade of debate is organized largely along these lines. The appropriate question now is whether the new text establishes an acceptable set of measures that enhances compliance with the convention. The answer requires an examination of the disagreements that arose in the negotiations and the ways the chairman's text tries to resolve them.

Throughout the protocol talks, individual countries' interests segregated along well-established political groupings, and their disagreements provide measure of the political and technical constraints in the complicated and usually contentious effort to address the obvious failings of the convention. The nations of the Non-Aligned Movement (NAM) were most engaged in export control, which limits trade in technologies that can be used for illicit purposes. They also sought to achieve formal commitments addressing the benefits of scientific and technical exchange among states-parties. The Western Group (composed of the United States, Canada, western European countries, Australia, New Zealand, and Japan) and Russia were most focused on arms control and non-proliferation.

The NAM, led primarily by Iran, India, and Pakistan, was intent on removing export controls supported by the Western Group, asserting that they were both arbitrary and at odds with the "fullest possible technical exchange" provided for in the convention. Succumbing to a call for "balance" from the NAM, Chairman Tibor Tóth devoted large amounts of precious negotiating time to debates over language that would undo Australia Group agreements to limit trade in biological materials and equipment that could be used for illegal purposes. For example, in the last version of the draft rolling text, one finds sentences, such as "The States Parties undertake to refrain from establishing new discriminatory ad hoc export control regimes and to invalidate the existing ones." There were countless attempts to soften (and then harden) and restrict (and then expand) such wording, but in the end only more brackets appeared, hinting at the deep disagreements over the a priori purpose of the negotiations.¹

Russia focused its efforts on the arms control provisions of the treaty, but, from the perspective of the Western Group, it actually sought to undermine them by insisting on precise definitions of the terms in Article I of the BWC, "biological weapons" key among them, which could have narrowed the scope of the convention. The Russians also proposed specific thresholds for limits on "justifiable" quantities of biological weapons agents, even though all technical experts recognize that the inherent and unlimited capacity of organisms to reproduce makes a mockery of arbitrary thresholds. As with the NAM, non-proliferation was clearly not a priority for Russia in the protocol negotiations.

But these differences among states-parties are small in comparison to the disagreements that have become evident within the Western Group throughout the negotiations. Most of the Western Group, led by the United Kingdom, Sweden, and Germany, has long asserted that, with properly chosen measures, the BWC could be "verified," much like the Chemical Weapons Convention (CWC).

The U.S. delegation questioned this view, noting that in other arms control treaties the treaty-limited items were countable (e.g., missiles in the Intermediate-Range Nuclear Forces Treaty), visible (e.g., atmospheric explosions in the Limited Test Ban Treaty), measurable (e.g., yield of nuclear explosions in the Threshold Test-Ban Treaty or Comprehensive Test Ban Treaty), or unique and non-naturally occurring (e.g., toxic chemicals in the CWC). None of these characteristics pertain in biological weapons control. Further, the United States argued that "verification," although imperfect in each of agreements noted above, has a standard that cannot be met for biological materials with current technologies. In the U.S. view, that standard is, at a minimum, a "more probable than not" metric. In other words, in order to achieve "verifiability," the measures in the protocol must be able to identify violations with a 50 percent probability or greater—and be able to do so before weapons were deployed or used. This standard was never discussed in detail by any other states party throughout the 10-year history of BWC protocol negotiations.

Unlike any other states party to the convention, the United States has conducted a series of scientifically controlled mock inspections designed to test the measures (alone and in combination) under consideration in the protocol negotiations. These inspections took place from 1994 to 1996 at vaccine production facilities, university and medical school laboratories, and U.S. biodefense sites. Several "verification" scenarios were tested, including "confidence building," "transparency," "declaration checking," "investigation of allegation of production of biological weapons," and "investigation of allegations of use of biological weapons." Such mock inspections are expensive and difficult to arrange. Inspectors must be "blinded" to the site they may be visiting (that is, they must be unfamiliar with the site or any of its personnel), and they must be selected so that the inspection team possesses the variety of skills necessary to do its job. Industrial microbiologists; bench scientists with expertise in virology, bacteriology, and toxinology; biological defense and weapons experts; and interpreters are all required to simulate the make-up of a "real" inspection team.

The results, shared with members of the Western Group,² were anathema to BW verification advocates: only investigations into specific allegations of use had sufficient robustness to rule in or rule out a violation. "Confidence building," "declaration checking," and other transparency visits failed miserably. Indeed, the inspecting teams in these mock exercises left with less confidence that a perfectly legal facility was in compliance with the convention than they had before the visit took place.

Straightforward analysis identified the reasons for these findings. First, legitimate activities in vaccine or pharmaceutical production facilities have all of the hallmarks of biological weapons production, save the final fill of material into delivery vehicles. Second, even in small laboratories, records of organisms and toxins are rarely, if ever, centrally stored. Hence, preparation of declaration forms is fraught with error, giving the appearance of intentional violation to inspectors. And third, practices in the use, handling, storing, and disposition of micro-organisms and toxins varies widely from site to site.

Although such mock investigations were far from exhaustive, they suggested that the more non-specific the scenario—e.g., a "clarification visit" to examine a facility generally versus an investigation into a particular allegation of BW use—the less likely that ambiguity can be avoided. Given that the vast majority of activities advocated for the protocol would be visits rather than formal investigations, the United States came to believe that the protocol could actually weaken the convention, unless such visits were severely limited and were characterized as "familiarization" visits rather than as clarification procedures.

But, foremost in the mind of U.S. negotiators was the experience of the biological weapons inspectors with the United Nations Special Commission in Iraq (UNSCOM). Operating under full UN Security Council authority, UNSCOM personnel had unlimited access to sites suspected of participating in the illegal offensive BW program and were empowered to undertake no-notice inspections anywhere in the country. No document or piece of physical evidence could be considered "off-limits" by the Iraqis. In short, the scope and intrusiveness of this inspection regime was unparalleled in the history of arms control. Yet, each of the UNSCOM executive directors has lamented the failure of the UN inspections to reveal the extent of the Iraqi BW program and has questioned the utility of traditional verification approaches to the biological weapons field.

Thus, the United States strongly opposed labeling the protocol as a "verification" regime and advocated only challenge inspections as a meaningful contribution to strengthening the convention. This approach met with profound disapproval within the Western Group, whose other members continued to insist that "verification" was an achievable goal in the new protocol.

The Chairman's Text

In addressing the disparate goals of the participants in the negotiations, the chairman's text has provided something in part for everyone, but too little in toto for anyone.

From the U.S. perspective, the presence of challenge inspections (called "field investigations" and "facility investigations") is certainly a plus, but requests for these inspections on another state-party's territory can be blocked by a simple majority. Because it is unlikely that the United States (or other Western Group countries) would ever request a challenge inspection for less than overwhelming circumstantial evidence, the possibility that a coalition of 26 states (a majority of the 51 members of the protocol organization's Executive Council) could negate such requests will almost certainly be seen as disappointing. In addition, the emphasis on transparency "visits" will almost certainly lead the new administration to reject the chairman's text because, in the U.S. view, such visits will be burdensome to U.S. government and private facilities, they will offer no demonstrable value to the convention, and they may actually detract from it by creating ambiguity. Instead, the United States will probably seek a much more limited protocol—based on challenge inspections alone—with a view toward continued negotiations after some time has passed to evaluate the effectiveness of this more modest approach.

The NAM will probably be unhappy with the chairman's text as well. There is nothing new in the export control language of the text to remove what they see as an unacceptable element of the existing international non-proliferation structure. Iran and Pakistan in particular will want to see Western export restrictions completely eliminated as the price for their participation in the new protocol. And, despite the universal benefit of sharing information regarding disease outbreaks, the NAM will see field investigations for this indication as a requirement that will fall all too often on their group.

The Russian delegation, the largest in attendance throughout the protocol talks, will have realized that its attempts to limit the scope of the treaty have largely failed. It has been evident to most observers that Russians have desperately sought a way to undo past violations (and perhaps to obscure ongoing weapons work) by defining the terms in Article I and proposing thresholds for biological materials that are unverifiable and meaningless. This disingenuous tactic was more or less universally rejected in the Ad Hoc Group's work, but a small portion of it—declarations of possession of quantities of listed agents based on various thresholds—has survived in the chairman's text. But this will probably be insufficient to meet the Russian government's desires. Alternatively, it is possible that they may be counting on the impenetrable vastness of the Russian biological laboratory archipelago to hide clandestine offensive work. It is certain that failure to declare items such as 50-liter fermenters—as the chairman's text demands—would go unnoticed amid the thousands of laboratory buildings in BW labs scattered across Russia, and no challenge inspection or clarification visit could be reasonably expected to identify this non-compliance.

The members of the Western Group sans the United States may be the most satisfied with the current text. There is an extensive declaration regime that conveniently puts the bulk of declaratory burden on countries with large biological defense programs, such as the United States, and that calls for all facilities working with listed agents to submit detailed descriptions of equipment and raw materials, such as growth media. High-containment laboratories at Biosafety Level 3 must also be declared. Though not providing as complete an inventory as they originally envisioned, the declarations and follow-on visits represent the types of classical arms control measures so attractive to many members of the Western Group.

The lessons of UNSCOM notwithstanding, delegations from the United Kingdom, Germany, Sweden, and other countries will probably view the current text as a stepping stone to even broader (and more impractical) requirements in future protocol revisions. That the overwhelming majority of declarations will take place in the West seems not to bother these countries much at all. Do serious students of proliferation believe that Iran, Syria, Libya, and North Korea have the same high safety standards for work with dangerous organisms as do Western countries, requiring exquisite bio-containment facilities that would need to be declared? Would they declare them even if they did?

All of this suggests that little high-level attention has been given to the negotiations in London and Berlin, much as was the case throughout the Clinton administration. Indeed, the absence of strong leadership, both from within the U.S. government's interagency working group on biological weapons and from senior Clinton administration advisers, doubtless undermined any hope of a unified Western Group position from the beginning. As a result, pro forma arms control—a representation of historic bureaucratic inertia—has come to dominate in the chairman's text.

What Next?

Consensus is difficult to achieve in multilateral arms control, especially when so many conflicting agendas confront negotiators. There is little question that the vacuum created by minimal American engagement both on and off the floor contributed to the chaos and resulted in a chairman's text that is technically impractical, politically illogical, and dead on arrival in the U.S. Senate. But the final outcome need not be tragic. There are areas in which BWC states-parties share immediate interests, such as technical cooperation in the identification and mitigation of infectious disease.

Infectious disease continues to be the leading cause of death and economic loss throughout the world. Tuberculosis, new influenza strains, AIDS, foot-and-mouth disease in animals, and novel hemorrhagic fevers are clear dangers to the vitality of nations, and in some cases their very survival. Most of these diseases cannot be treated, only prevented. Yet we have almost no understanding of their sources and how they spread. The simplest of reporting systems, based in clinics and hospitals around the world and linked through low-speed Internet connections, would begin a new era in the control of these scourges.

The cost of such a data-sharing system is very modest, but the knowledge gained is actionable and invaluable to all. The states-parties to the BWC should establish this network as a substantive demonstration of the importance of scientific and technical exchange, emphasized so strongly in the convention. The United States would do well to promote and fund a large share of this system, paying for several thousand computers and Internet links in medically underserved areas of the world and linking clinics and hospitals in the West as well. The investment, probably in the range of $100 million, would salvage U.S. credibility in the BW non-proliferation arena, particularly if the Bush administration abjures support for the chairman's text.

On rare but important occasions, the network would also identify the emergence of unusual disease (unusual, that is, in either scope or symptoms) that may represent either the use of a biological agent for hostile purposes, or an experiment with a weapon gone awry. There is little doubt that the techniques of modern epidemiology could identify the source of the disease and distinguish between a natural focus and intentional introduction of organisms or toxins.

The negotiations on a protocol for the BWC have failed to produce a document that strengthens the convention or increases the security of its member states. We must await new technologies in order to verify non-proliferation of biological weapons; only a political sea change will permit the elimination of existing (some would say "discriminatory") export controls; and the current turmoil in Russia makes it unlikely that the largest biological weapons program in the world can come under control, protocol or not. But nations of goodwill can immediately address the pervasive problems of infectious disease, and the BWC provides the best possible forum for meeting that need.

NOTES

1. Discussions on "the full implementation of Article X" commanded a share of negotiating time equal to that spent on measures to enforce the non-proliferation of biological weapons.

2. Within the U.S. interagency group, there was even disagreement over revealing the results of these valuable (and costly) mock-inspection studies. Most agencies believed that this information would make debate more productive as there was strong indication that unfocused "visits" were problematic in the biological weapons context. Yet, a single staffer on the National Security Council successfully suppressed release of the study results until late in the negotiations.

Alan P. Zelicoff, senior scientist in the Center for Arms Control and National Security at Sandia National Laboratories, served as a U.S. delegate to the Ad Hoc Group from 1991 to 1999.