A Tough Call

John Steinbruner, Nancy Gallagher, and Stacy Gunther

The draft protocol presented by the chairman's text is, of course, a suggested compromise. It attempts to balance the primary purpose of reinforcing compliance with the Biological Weapons Convention (BWC) among the states-parties genuinely committed to that objective against the threat of violation by those who are not so committed. It attempts to resolve political differences about the relative importance of those considerations.

The suggested provisions would enhance the state of compliance among the willing, and that would be a meaningful accomplishment. The declarations and inspection arrangements envisaged would set standards of acceptable practice and would provide a positively documented record of compliance. Those effects would strengthen the central norm of the convention and diminish the scope for misperceived or inadvertent violation. The provisions of the draft protocol would not provide robust protection against deliberate violation, however, and might induce suspicion among states that are themselves committed to compliance but are inclined to distrust the intentions of others.

Because of that latter effect, it is admittedly an uncomfortably close question whether implementation of the chairman's text would do more good than harm. Ceding the benefit of doubt, we judge that the suggested protocol would be a positive accomplishment, provided that the initial transparency provisions are strengthened on a reasonably brisk schedule. The chairman has suggested a judicious start but certainly not a final destination or even an interim station.

The Problem of Exempted Facilities

The most serious defect has to do with exempted facilities. The suggested provisions would require mandatory declarations of biodefense facilities and would impose penalties for failure to comply. That can be expected to improve the poor record of compliance with voluntary declarations—for those facilities subjected to the requirement. The criteria used to impose the requirement are quite extensive, however, and many relevant facilities will not be included. Moreover, under the suggested rules, if fewer than 10 facilities in any given country do meet the demanding standards for mandatory declaration, then only the largest 80 percent of them need to be declared based on measurements the country in question selects. Any facilities excluded under these restrictions will not be subject to random visits and not necessarily even to clarification visits. A state could therefore keep much of its biodefense operations legally exempt from routine international scrutiny, subject only to the unusual process of facility investigation that will be difficult to initiate. In general, although the chairman's text requires more information on declared facilities than is currently provided and does so more authoritatively, it does not provide for comprehensive transparency of biodefense programs. Exempted facilities will be a natural source of suspicion, potentially capable of negating whatever reassurance the mandatory declarations convey.

The restrictions on mandatory declarations were introduced largely at the insistence of the United States against the inclination of major European governments. Those governments favored a more inclusive requirement for declarations and more extensive inspections to validate the declarations. In justifying its restrictive position, the United States asserted an overriding interest in protecting both the proprietary interests of its pharmaceutical industry and the "threat assessments" it is conducting in response to surging fears of bioterrorism. But there are deeper roots as well. The evident desire to restrict the application of mandatory declarations reflects a general reluctance to rely on international collaboration or to engage in systematic prevention. With the world's most capable military establishment at its disposal, the United States is currently more interested in deterring threats or fighting them than it is in avoiding them. As a result of that prevailing attitude, the United States does not currently gather the information that would be required to comply with even the restricted requirements of the chairman's draft protocol, let alone a more comprehensive arrangement.

Information Limitations

In addition to restricting the number of facilities subject to declaration, the draft protocol also limits the extent of independent auditing that declared facilities would experience. It does provide for several types of nonadversarial visits that could increase confidence in the accuracy of declarations, enhance the transparency of declared facilities, and resolve concerns over the completeness of submissions. The BWC does not currently have any such provisions. But a visited facility would be able to manage the access of inspectors under the suggested rules, and the inspectors would not have the authority to collect samples at the facility. The visited facility would also be able to exercise some control over the content of the final report, thereby impeding transparency. For example, it would be able to remove from the report any information it deems to be unrelated to the visit, and reports on random visits would be made available upon request to any state-party "unless otherwise indicated by the visited State Party."

Unlike the routine inspection arrangements established under the Chemical Weapons Convention (CWC), the suggested BWC protocol would impose binding limits on the overall number of visits, team sizes, and duration of visits. There would also be an upper and lower limit on the number of random visits each year, making the likelihood of such visits quite low for any given facility. Also unlike the CWC, visits under the draft protocol would not vary in intensity with the type of declared facility.¹ Despite these limitations, several reports on trial visits exercising the suggested rules have emphasized that "information can be achieved without intrusive on-site activities, without compromising confidential proprietary or national security information and without checking any quantitative data."²

The draft protocol provides for more penetrating inspection rules under the investigation procedure to be undertaken when there is a documented reason to suspect violation. That provision would establish an international right that does not currently exist, but facility investigations could only be exercised after a simple majority vote to proceed by the Executive Council that would be established to oversee administration of the protocol. As with the less intrusive visits, inspections would be managed by the visited facility and would be regulated by numerous measures designed to protect proprietary data and sensitive information.

In general, if the protections against unreasonable intrusiveness during on-site measures are assertively applied, as they undoubtedly would be in many instances, they could readily compromise the overall degree of transparency actually achieved and would certainly diminish the impression of transparency even among cooperative parties. There is little chance as a practical matter that the protocol's provisions would detect a deliberate violation competently concealed, although they would impose some restraint on how extensive such a violation could safely be.

Constructive Evolution

It seems evident that evolution of the suggested protocol into a more decisively constructive arrangement would depend primarily on attitudes within the United States. There are, of course, many other parties to the BWC, and, other than the major European governments, most of them have been at least as cautious about the degree of transparency they are willing to contemplate. Nonetheless, the United States is the leading venue of biological research and operates the predominant military establishment. For better or worse, like it or not, the United States sets the standard of behavior on this subject more than anyone else does. A large international coalition might override its judgment, but such an event is not imminent and is not likely in this instance.

As best one can judge from the limited official explanation offered so far, the obvious reluctance of the United States to sponsor extensive transparency is based on the familiar fear that some evil party might take advantage of it. The basic argument is that, if an aggressor knew what agents the United States had defenses against and what our specific response plans were, it would exploit that knowledge by using an unfamiliar agent in an unanticipated area. The larger truth, however, is that there is no effective defense against a truly willful and skillful attack. Such an attack would be clandestine and hence not susceptible to military reaction. It would be manifest as a public health emergency large enough to overwhelm any emergency response—one whose origins could be determined, if ever, only with extensive investigation long after the episode had run its course.

For the massively destructive pathogens that widely known advances in fundamental science have made conceivable, systematic prevention is the only feasible option. It is wildly unrealistic, irresponsible in fact, to imagine that any emergency response or punitive reaction would be even remotely adequate. Systematic prevention requires comprehensive transparency and judicious international monitoring. That means that the United States will have to reveal protective information in order to acquire it—something that its recent and current leaders have been so reluctant to do that they have not worked out the many essential details that would be necessary. The draft protocol is a manifestation of that underlying fact.

One can be reasonably sure that eventually this error of judgment will be corrected as the inherent dangers and opportunities of biotechnology relentlessly emerge. It is far less clear how soon that correction might occur or how much grief might have to be absorbed before it does. For that reason, one cannot endorse the draft protocol with supreme and immediate confidence, but one can hold firm to the conviction that in the end its suggested provisions—and far more extensive ones—will have to be enacted.

NOTES

1. Graham Pearson, Malcolm Dando, and Nicholas Sims, "The Composite Protocol Text: An Effective Strengthening of the BTWC," p. 27-28.

2. "Report on Two Trial Visits Based on a Transparency Visit Concept," working paper submitted by Germany, August 24, 1999, BWC/AD HOC GROUP/WP.398.

John Steinbruner is director of the Center for International and Security Studies at Maryland (CISSM). Nancy Gallagher is associate director and Stacy Gunther is research associate of the Cooperative Security and Arms Control Project at CISSM.