The BTWC Protocol: The Chairman's Composite Text

by Graham S. Pearson

The BTWC Protocol: The Final Stage (ASA 01-2) reported on the twenty-first (three weeks in November /December 2000) and the twenty-second (two weeks in February 2001) sessions of the Ad Hoc Group. That article recorded in a Stop Press that the requests by several delegations during the February 2001 Ad Hoc Group session had been answered with the provision on 30th March by Ambassador Toth of a composite text that is clearly based on the rolling text with compromises adopted to address the remaining differing views. This article examines the Chairman's composite Protocol text and reports on the twenty-third Ad Hoc Group session.

Twenty-third Session

A three week session, the twenty-third, of the Ad Hoc Group to consider a legally binding instrument to strengthen the Biological and Toxin Weapons Convention (BWC) were held in Geneva from Monday 23 April to Friday 11 May 2001. This session saw a distinct change in the pattern of the negotiations because the Chairman had on 30th March 2001 provided to capitals as well as to delegations in Geneva a composite Protocol text entirely based on the rolling text and containing compromises to bridge the remaining gaps based on the informal conceptual consultations that the Chairman had had with delegations and the Friends of the Chair over the past nine months. The composite text retains the clean parts of the rolling text, while adopting a conservative approach with regard to any new ideas necessary for compromises. Consequently, the Ad Hoc group met primarily in plenary session when during the first two weeks of the session the Chairman provided a detailed explanation of the composite text on an Article by Article basis. During the third week, the Chairman conducted both formal and informal discussions on the comments and feedback provided both formally and informally on the composite text. The procedural report of the session (BWC/ADHOCGROUP/AHG/56) contains both the composite text (Annex B) and the rolling text (Annex A) and stated that "While recognizing the Rolling Text as the underlying basis for negotiations, the delegations expressed their views with regard to the compromise proposals contained in the Composite Text, both in formal and informal sessions."

In the April/May session, 56 States Parties and 2 Signatory States participated; two more States Parties than in the February session as five States (Bangladesh, Jordan, Slovenia, Thailand and Tunisia) participated in April/May whilst three States (Portugal, Singapore and Yemen) did not. One less Signatory State (Myanmar) participated than in February.

There was no change to the Friends of the Chair although the list of Friends of the Chair in the procedural report only showed one Friend -- that for the Seat of the Organization -- as this was the only Friend to hold a meeting. The list of the Facilitators to assist the Ad Hoc Group saw the omission of the Australian and Pakistan names from the list of those assisting Ambassador Don Mahley as facilitator for the Headquarters Agreement with the Host Country which now read as follows:

The Headquarters Agreement with the Host Country -- Ambassador Donald A. Mahley of the USA who will be assisted by Ambassador Krzystof Jakubowski of Poland, Ms Katarina Rangnitt of Sweden, Sra. Anayansi Rodriguez Camejo of Cuba and Mr Reza Pourmand Tehrani of Iran as well as additional personnel as considered necessary.

There was again a slight increase to 10 in the number of new Working Papers -- up from the 7 in February and the same as the 10 in November/December 2000. Of the ten WP (WP.445 to WP.454) five related to the Seat of the Organization with three being submitted by the Friend of the Chair (WP.445-7) and two (WP.448-9) by Switzerland, with single papers by the Netherlands (WP.450), China (WP.453) and Iran (WP.454) and one paper (WP.452) by China, Cuba, Iran, Indonesia, Libya, Pakistan and Sri Lanka and another (WP.451) by China, Cuba, India, Indonesia, Iran, Libya, Mexico, Pakistan and Sri Lanka. The latter five addressed a number of issues -- a workshop on the practical aspects of the future organization (WP.450), two on export controls (WP.452-3), one on entry into force (WP.454) and one on the progress of the negotiations (WP.451).

The outcome of the April/May session include both the composite Protocol text and the rolling text as Annexes to the procedural report (BWC/AD HOC GROUP/56 -- which because of the number of pages, has again been issued in two pieces: 56-1 and 56-2). This was thus the sixteenth version of the rolling text.

The April/May session as usual saw a number of associated events involving NGOs. First on Monday, 23 April, in Salle XII there was briefing from 1400 to 1700 for NGOs. The aim of this briefing is to update representatives of environmental, disarmament, peace, human rights and other NGOs on biological weapons, their history, current situations and policy questions.

On Tuesday, 24 April, in Salle XII, from 1300 to 1500 the Sunshine Project gave a briefing to an audience of about 36 individuals including delegations to the Ad Hoc Group entitled "Closing Loopholes in the Bioweapons Convention" which included the presentations on the Colombian chemical and biological war on drugs; why forced drug plant eradication is not biological control; and the scope of the Convention under threat. During this briefing, an international petition in which more than 100 civil society organizations from 28 countries was presented to Ambassador Tibor TÛth of Hungary as Chairman of the Ad Hoc Group and prospective Chairman of the Fifth Review Conference. This petition called on all governments to reinforce the global ban on biological weapons through the completion of a strong Protocol. In addition, the petition calls upon the Fifth Review Conference to reiterate the broad prohibition of all non-peaceful applications of living organisms and toxins, regardless of whether they target humans, animals or plants; to reaffirm in their Final Declaration that there is no exemption in the BTWC for law enforcement, and; to state that any use of biological agents against a nation, a regional group or individuals against their will is not a peaceful purpose and thus banned by the BTWC.

On Wednesday 25 April in Salle XXV from 1300 to 1500 there was a further European Union/NGO meeting this time hosted by Sweden who currently hold the EU Presidency. There were some 50 participants from the EU delegations and from NGOs. Short papers were presented by Ambassador Jim Leonard representing the Federation of American Scientists (FAS) entitled "Prospects for the BWC Protocol", by Professor Graham Pearson of the Department of Peace Studies at the University of Bradford entitled "The Composite Protocol Text: An Effective Strengthening of the Biological and Toxin Weapons Convention", and by Daniel Feakes of the Harvard Sussex Program entitled "The architecture of compliance verification in the draft BWC Protocol." Oral presentations were also made by Oliver Meier of VERTIC and Professor Marie Chevrier of the University of Texas at Dallas and FAS. These were then followed by a very lively debate and discussion between the representatives of the EU delegations and the NGOs.

On Thursday 26 April in Salle XXV from 0930 to 1000, the Department of Peace Studies of the University of Bradford, UK presented and distributed to an audience of 55 individuals from 28 Ad Hoc Group delegations the first two papers in a new series of Review Conference Papers: No 1, The Fifth BTWC Review Conference: Opportunities and Challenges, March 2001 and No 2, The Functions of the BTWC Review Conferences: Maximizing the Benefits from the Fifth Review Conference, April 2001. In addition, a further Evaluation Paper was presented and distributed entitled Evaluation Paper No 20, The Composite Protocol Text: An Effective Strengthening of the Biological and Toxin Weapons Convention, April 2001 (available at http://www.brad.ac.uk/acad/ sbtwc).

Later the same day, Thursday 26 April in Salle XXVI from 1500 to 1700 the Geneva Forum and the Department of Peace Studies, University of Bradford held a seminar entitled An Analysis of the Chairman's Composite BTWC Protocol Text. Patricia Lewis, Director of the United Nations Institute for Disarmament Research (UNIDIR) was in the Chair. Five presentations were made analysing the Chairman's composite Protocol text by Ambassador Jim Leonard (FAS), by Jenni Rissanen, Geneva Analyst, Acronym Institute entitled "Preamble, General Provisions and Legal Issues", by Graham Pearson, Department of Peace Studies, University of Bradford entitled "Compliance Measures (including Definitions and Objective Criteria", by Malcolm Dando, Department of Peace Studies, University of Bradford entitled "Technical Cooperation and Assistance" and by Marie Chevrier, University of Texas at Dallas entitled "Organization and National Implementation Measures." The seminar was attended by about 100 to 120 participants and there was lively discussion following the presentations.

In addition, in the third week of the session, on Monday 7 May, Amy Smithson of the Stimson Centre, accompanied by George Pierce and Steven Projan, presented the findings of its latest study "House of Cards: The Pivotal Importance of a Technically Sound BWC Monitoring Protocol".

Political Developments

A number of statements were made during the April/May session. At the Ad Hoc Group, on the opening day, Monday 23 April 2001, Ambassador Tibor TÛth, Chairman of the Ad Hoc Group, in his opening remarks said that he believed that everyone was aware of the importance of this specific session of the Ad Hoc Group as it was the penultimate session for this year and secondly, all delegations had before them the composite Protocol text (BWC/AD HOC GROUP/CRP.8) with the Chair had adopted compromises to the outstanding issues. He undertook to walk the delegations through the composite text in detail explaining the main compromises and pointing out the changes in the text.

Ambassador TÛth then gave his appreciation of the overall status of the negotiations noting that the rolling text had been under negotiation for almost four years since July 1997 and much progress had been made in developing the text with the draft Protocol now well developed with a large part of the text agreed by consensus and therefore free from square brackets. He pointed out that every delegation can point to parts of the rolling text where their specific preferences are reflected and likewise that every delegation can indicate parts of the rolling text where they have already made compromises. However, despite the fact that great progress had been made since mid-1997, quantifiable progress had come to a halt for more than a year even though there are still a number of issues that require resolution.

He recalled that the Ad Hoc Group had sought new ways of addressing the outstanding issues with one of the most visible outcomes being the circulation of building blocks which had, by the end of the February 2001 session, covered most of the draft Protocol. By the end of the February 2001 session the Ad Hoc Group had become more and more aware that only a composite text to resolve the outstanding issues would help to move the Ad Hoc Group forward as the remaining issues were so interrelated that solutions simply are not possible if attention is focussed on one issue at a time, or even on a cluster of issues at a time. Consequently, the challenge that had faced the Chairman was to provide the Ad Hoc Group with a composite text while at the same time not endangering the efforts and great progress made by the Ad Hoc Group so far. The Ad Hoc Group had recognised that a more holistic approach is needed to complete its work and that it is necessary and timely to take the work of the Ad Hoc Group into its final stage. He had therefore presented both in States capitals and to delegations in Geneva a composite text in which he had adopted compromises on the unresolved issues.

Ambassador TÛth pointed out that the composite Protocol text in CRP.8 should look very familiar to delegations as it is in its entirety based on the rolling text. In the composite Protocol text he had developed language to bridge the remaining gaps, drawing upon the Chairman's exploration of these issues in the informal consultations that had been conducted since July 2000 with all delegations and in very close cooperation with the Friends of the Chair and the Facilitators. He said that he had retained the clean parts of the rolling text, while remaining as conservative as possible with any new ideas needed for compromises. The composite text therefore would not contain any great surprises for delegations. It is, however, a composite text that would achieve the mandate of the Ad Hoc Group and will strengthen all the provisions of the Convention. However, the compromises would require compromises by all delegations as the compromises adopted represented a carefully judged balance of the views of all delegations. Consequently, Ambassador TÛth urged all delegations to take a holistic view of the composite text.

He went on to say that in circulating the composite text, his intention was to break the impasse of the negotiations and facilitate the work of the Ad Hoc Group so as to fulfil its mandate in a timely manner. He noted that the Ad Hoc Group had spent quite a number of years and expensive negotiation sessions on the development of a Protocol to the Convention and said that "We cannot allow ourselves to now fall short of reaching agreement."

He called on all delegations to give serious consideration to the composite text with the customary flexibility on the side of all delegations. He expected all delegations to consider and examine the text with a view to what benefits they are gaining. These benefits have two aspects: first, which compromises in the composite text originate from their favoured options; and, secondly, and more importantly, what is to be gained collectively by agreeing and, ultimately, becoming a State Party to the Protocol. Conversely, delegations needed to recognise what will be lost if the Ad Hoc Group cannot agree to strengthen the Convention during a period when biological sciences become more and more important each day and important new moral, political and legal barriers have been raised in the way of other types of weapons of mass destruction during the past ten years when there have been negotiations to strengthen the Biological and Toxin Weapons Convention.

In the subsequent plenary session, a number of statements were made. Sweden spoke on behalf of the fifteen member States of the European Union (EU) as well as the Central and Eastern European countries associated with the EU -- Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia, Slovenia -- and the associated countries Cyprus, Malta and Turkey. It was noted that the negotiations had been ongoing since 1995 and the Ad Hoc Group is now within reach of a Protocol which will strengthen confidence in compliance with the Convention. A successful conclusion of these negotiations would not only strengthen the Convention, but will also be a demonstration that multilateral negotiations are capable of achieving progress towards disarmament and non-proliferation. Sweden went on to say that it was apparent that the negotiations had reached a point where compromises and solutions to critical issues have to be found. In respect of the composite text, the EU was looking forward during this session to the Chairman's comments and explanations of the composite text to clarify understandings of the compromises. However, the EU already wished to underline that the text does not meet all EU expectations. The Chairman's composite Protocol text constituted a new phase in the negotiations and it was the view of the EU and the associated countries that "Your text, Mr Chairman, should be the platform for the political decisions that are needed now. Mr Chairman, at this point of the negotiations finalising a Protocol to strengthen the BTWC is within reach."

A further 21 political statements were then made on the first and second days by Switzerland, Iran, Chile, China, Pakistan, Japan, Libya, Cuba, South Africa, the Russian Federation, Australia, Brazil, the Republic of Korea, New Zealand, Argentina, the Netherlands, the Director General of the Agency of the Russian Federation for Munitions, Canada, Poland, Croatia, and the United Kingdom. These statements generally welcomed the Chairman's composite text and in most cases expressed reservations about specific aspects. They are reported in more detail in the "Report from Geneva -- Friday 27 April 2001" available on the web at http://www.brad.ac.uk/acad/sbtwc.

In the second week of the Ad Hoc Group session, New Zealand made a statement on behalf of Austria, Brazil, Chile, Guatemala, Ireland, the Netherlands, New Zealand, Norway, Peru and South Africa that acknowledged that the composite text "establishes the basis to conclude the work of our negotiations in accordance with our mandate." Three particular concerns were noted: entry into force, the visit regime and provisions for declarations. A simple numeric formula was argued for entry into force noting that this is gathering overwhelming support across all regional groups. In respect of the visit regime, randomly selected visits are regarded as an essential component in the toolbox of visits and their purpose, level of access and reporting arrangements should be strengthened. Declarations should encompass all the most relevant facilities, including biodefence with triggers that should apply in a uniform and non-discriminatory way. Finally, New Zealand noted that the wider benefits in capacity building terms of the measures in the composite text will provide an additional incentive for all countries to join the Protocol.

Later in the same week, a statement was made by China, Cuba, Indonesia, Iran, Libya, Pakistan and Sri Lanka which emphasised the great importance attached to the objective of strengthening the effectiveness of the Convention in a comprehensive manner. However, wide differences continue to exist on several issues and with less than 30 working days remaining for the Ad Hoc Group to conclude its negotiations, there was concern that the Ad Hoc Group may not be able to conclude its work as mandated. Accordingly, they firmly believed that the Ad Hoc group should immediately resume substantive negotiations based on the rolling text to achieve consensus on outstanding issues.

The Emerging Regime

As noted above, the Chairman on 30th March 2001 had provided capitals and delegations with a composite Protocol text entirely based on the rolling text and containing compromises, based on the written elements of the text issued by the Chairman following his extensive and intensive bilateral negotiations over the last nine months with delegations to explore conceptual solutions based on the rolling text, to address the remaining issues where there were differing views. The attention of the April/May Ad Hoc Group session was very much focussed on the Chairman's composite text and the compromises contained therein. It was evident that whilst all States Parties had reservations about some of the compromises adopted, a number of States regarded the Chairman's composite Protocol text as the basis for further negotiation. Consequently, this Progress Report provides a description and analysis of the composite Protocol text.

The following Table provides a comparison between the composite Protocol text (BWC/AD HOC GROUP/AHG/56 (Annex B)) and the latest version of the rolling text (BWC/AD HOC GROUP/AHG/56(Annex A)):

In this description and analysis, the composite Protocol text is compared to the rolling text. It should be noted that there have been some editorial changes made in the composite Protocol text such as the replacement of "pursuant to" by "in accordance with" which have not changed the substance. Consequently the composite Protocol text is described as being identical to that in the rolling text any minor editorial changes that have no effect on the substance have been disregarded.

Preamble

The composite text has taken all the paragraphs in the rolling text that were out of overall square brackets and omitted five of the six that were in overall square brackets. The sixth one that had been within overall square brackets is included thus achieving a balance between paragraphs addressing the implementation of Article X of the Convention and a paragraph reaffirming the obligations under Article III of the Convention. There is no diminution in the overall thrust of the Preamble.

Article 1 General Provisions

The composite text has taken all the paragraphs that were in the rolling text that were out of overall square brackets and omitted all but one of those paragraphs that were within overall square brackets. A new opening paragraph stating the purpose of the Protocol has been added that draws upon some of the concepts within two of the paragraphs within overall square brackets and a new final paragraph has been added which usefully makes it clear that the definitions and objective criteria shall be used solely for the application of specific measures set out in the Protocol.. The single paragraph that was within overall square brackets that has been included is the one which requires the States Parties and the Director-General, as appropriate, to take into account existing agreements and competencies of other relevant international organisations and agencies in order to avoid duplication and to ensure an effective and co-ordinated use of resources. This paragraph had previously been included within Article VII of the rolling text and its inclusion in Article 1 General Provisions thereby makes it applicable to the entire Protocol.

Article 2 Definitions

Article 2 is based on the language and definitions in Article II Definitions of the rolling text. The composite Protocol text has rightly concentrated as required by the mandate for the Ad Hoc Group on definitions of terms where relevant for specific measures designed to strengthen the Convention. Three basic definitions have been included in Article 2 for Bacteriological (biological) and toxin weapons, Purposes not prohibited by the Convention, and a new definition of Biological materials which is for use with the transparency threshold levels for facilities involved in national biological defence programmes and/or activities. The first two of these basic definitions are drawn directly from the relevant language in Article I of the Convention thereby ensuring that the definitions used in the Protocol in no way amend the basic prohibitions in the Convention. The compromise is the inclusion of these three basic definitions and the omission of three other basic definitions from the rolling text.

The remaining definitions in Article 2 are all based on the definitions in the rolling text; 15 of these have essentially identical language to that in the rolling text with the removal of square brackets and the adoption of appropriate compromises. The definition of facility has been clarified with one definition for the purposes of declarations and follow-up after declarations and another definitionfor the purpose of investigations. A useful definition has also been added for national biological defence programmes and/or activities. Three additional definitions are now included in Article 2 for Conference, Director-General and Organisation. The compromises in Article 2 ensure that there are no definitions in the Protocol which have the effect of amending the Convention itself and that the definitions in Article 2 are for the purpose of implementation of the Protocol alone.

Article 3 Lists and Criteria, Equipment and Thresholds

Article 3 comprises three sections:

which are based upon language previously contained in Annex A of the rolling text. Each of the sections is considered in turn:

Article 4 Declarations

Article 4 which sets out the declaration triggers is closely based on the language in Article III. D. Declarations I. Submission of Declarations in the rolling text. It is subdivided into three sections:

Section A consists of two paragraphs which set out first the requirement for States Parties to declare all activities and facilities listed in this Article and for the appropriate declaration format in the Appendices to be submitted not later than 180 days after the entry into force of the Protocol for initial declarations and no later than 30 April each year for annual declarations. This language is essentially identical to that in the two paragraphs out of square brackets in the initial section of Article III. D. I of the rolling text. The other paragraphs which had been in square brackets in the initial section of Article III. D. I are now addressed in Articles 10 and 21 of the composite Protocol text and are therefore removed from Article 4.

Section B requires two initial declarations -- first of offensive biological weapons programmes and/or activities conducted in the period between 1 January 1946 and entry into force of the Convention for that State Party and secondly of defensive biological weapons programmes and/or activities conducted during the 10 years prior to the entry into force of the Protocol for that State Party. These provisions are based on the language in Article III. D. I of the rolling text and have adopted the same date for the start of past offensive programmes and/or activities as in the Confidence-Building Measure F agreed by the States Parties at the Third Review Conference in 1991. Any information on past offensive programmes that subsequently comes to light has also to be declared within a specified time period. The information required in these initial declarations is to be provided as specified in the declaration format in Appendix A and seeks additional detail for the 10 years prior to entry into force of the Convention or of the Protocol.

14. Section C sets out the requirements for annual declarations of national biological defence programmes and/or activities, maximum biological containment facilities, high biological containment facilities which exceed 100 m2 and have produced vaccines or other specified production or have carried out genetic modification of any agent or toxin listed in Annex A, plant pathogen containment, specified work with listed agents and toxins and specified production facilities. These provisions are based on the language in Article III. D. I of the rolling text. The compromises adopted in respect of these various declaration triggers ensure that facilities of very little relevance are excluded. Consequently, biodefence programmes/activities involving perhaps a single person monitoring developments in the literature are excluded as are high biological containment facilities with a working area of less than 100 m2 and similarly plant pathogen containment facilities with a working area of less than 100 m2.

The compromise adopted for biological defence programmes/activities requires a summary of the objectives and elements of the programme -- rightly including research and development, testing, evaluation and production -- as well as a summary of the research and development carried out in accordance with Appendix B. The requirements for the declaration of national biodefence facilities in accordance with Appendix C strikes a balance between the requirements for States Parties with large programmes and many facilities and those States Parties with much smaller programmes and fewer facilities.

The requirements in Article 4 for maximum biological containment facilities and for plant pathogen containment facilities are closely similar to those in Article III. D. I of the rolling text. In respect of high biological containment, the requirement in Article 4 has usefully been more sharply focussed onto relevant production facilities and facilities in which genetic engineering of listed agents and toxins than the previous language in the rolling text. The requirements for facilities which have engaged in work with listed agents and/or toxins is based on the language in Article III. D. I of the rolling text with the removal of square brackets and the adoption of reasonable compromises in respect of the various capacities that had previously been in square brackets. The requirement is that a declaration is necessary if work with the listed agent and/or toxin is associated with specified production and recovery features, certain forms of genetic engineering or certain types of aerosolisation activities.

The requirements for the declaration of production facilities have usefully been brought together requiring the declaration of vaccine, microorganism and biological control agent production under specified circumstances. A final paragraph additionally requires general information to be provided on certain facilities producing for public sale microbially produced substances. Provision is made for the First Review Conference of the Protocol to consider whether such facilities should become subject to randomly-selected transparency visits in the light of the experience that will then have been gained on the implementation of the Protocol.

It is evident that Article 4 has focussed on requiring States Parties to declare those facilities and activities of the greatest relevance to the Convention.

Article 5 Measures to ensure submission of declarations

Article 5 follows closely the language in Article III. D. III. Measures to ensure the submission of declarations in the rolling text. The first three paragraphs are identical to those in the rolling text. Article 5 in its subsequent six paragraphs has struck a balance in relation to the options within square brackets in the rolling text relating to the consequences should a State Party not have submitted its initial declarations within one year or its annual declarations within six months after the deadlines specified in Article 4. It has adopted a three tier approach which combines some automatic measures with some conditional measures which have to be considered by the Executive Council:

Article 6 Follow-up after submission of declarations

Article 6 is developed from and is based on the provisions and language in Article III. Declarations II. Follow-up after the submission of declarations in the rolling text. Article 6 is subdivided into four sections:

Section A on the role of the Technical Secretariat starts with two paragraphs identical to the first two in Article III. D. II of the rolling text. Its third paragraph states what the Technical Secretariat is to do to promote the fulfilment of the declaration obligations under the Protocol. These are to process and make a technical analysis of the declarations, conduct a limited number of randomly-selected transparency visitsto facilities declared in accordance with certain paragraphs in Article 4, seek clarification should any ambiguity, uncertainty, anomaly or omission be identified in the content of a declaration, provide technical assistance to States Parties and help them compile their declarations including a voluntary assistance visit, if requested. The fourth paragraph relates to the procedures whereby a State Party may seek a clarification regarding the declaration of another State Party; the State Party seeking clarification can do so either using the provisions of Article 8 Consultation, Clarification and Cooperation or by using the clarification process in this Article.

The next ten paragraphs relate to the allocation of the different types of visits, the selection of facilities for randomly-selected transparency visits, the limitations on such visits and on voluntary clarification visits, the review of these provisions by the first and subsequent Review Conferences and the annual programme of visits and its review by the Executive Council. The key elements are the following:

Provision is also made for the first and subsequent Review Conferences to revise the total number of visits and their allocation between the different categories in the lightof the experience gained in the implementation of the Protocol.

In addition limits are placed on the numbers of visits so that they are distributed equably among the States Parties as follows:

Insofar as voluntary clarification visits are concerned, no State Party shall receive more than five such visits in any five-year period.

It is thus evident that the composite Protocol text has adopted a number of compromises which together ensure an effective follow-up after the submission of declarations with an equable spread of visits between States Parties and across the range of facilities subject to this Article.

Section B is closely based on the provisions and language in Article III. D. II (A) Randomly-selected Visits in the rolling text. The purpose of randomly-selected transparency visits is clearly set out as:

In addition, randomly-selected transparency visits can be extended by up to two days if requested in order for the visiting team to provide assistance on any of the subjects or programmes listed in the relevant paragraphs of Article 14.

The detailed provisions for carrying out such randomly-selected transparency visits are essentially the same as in the rolling text. It is made clear that the visited State Party shall provide access to the visiting team within the facility sufficient to fulfil its mandate whilst leaving the nature and extent of all access inside the facility, and to the information it contains, to the discretion of the visited State Party.

Section C. The provisions for voluntary assistance visits are essentially the same as in Article III. D. II (A) Voluntary Assistance Visits in the rolling text.

Section D is closely based on the provisions and language in Article III. D. II (A) Declaration Clarification Procedures in the rolling text. The composite Protocol text has adopted a compromise in that it provides an option as to whether such clarification is carried out using the procedures set out in Article 6 or by the consultation, clarification and cooperation procedures set out in Article 8. In the particular case of clarification requests relating to a facility which is believed to meet the criteria for declaration and which has not been declared, then the State party from whom clarification is requested may at its discretion respond either using theprocedures in Article 8 or the procedures in Article 6.

Insofar as the Director-General is concerned, a compromise has been adopted under which the Director-General can initiate the declaration clarification procedure in regard to the content of a declaration submitted by a State Party but in respect of a facility which is believed to meet the criteria for declaration and which has not been declared, the Director-General may request the State Party to submit a declaration for the facility concerned.

The detailed procedures are closely similar to those in the rolling text. However, should the declaration clarification procedure not resolve the issue and if a suggested voluntary clarification visit is not offered, then the Director-General shall make a report to the Executive Council. The composite Protocol text sets out a range of decisions that might be taken by the Executive Council including the decision initiate a clarification visit. It is clear that the composite Protocol text has taken care to strike a balance between the interests of all delegations.

Article 7 Measures to strengthen implementation of Article III of the Convention

Article 7 has been developed from the provisions and language in Article III. F. Measures to strengthen the implementation of Article III. The title of Article 7 has been modified to make it clear that these are measures related to Article III of the Convention. Article 7 has been restructured thereby improving clarity into five sections:

Article 7 has struck a balance between the range of different views as to how the implementation of Article III of the Convention should be improved. It has addressed the difficult issue of how to improve the implementation of Article IIIof the Convention through requiring States Parties to take necessary implementing legislation; setting out transfer guidelines; requiring annual notifications of aggregate data for four particular dual-use items; providing for consultations; and requiringthe implementation of these provisions to be kept under review. The approach adopted in Article 7 provides a compromise that will contribute over time to the strengthened effectiveness and improved implementation of the Convention.

Article 8 Consultation, Clarification and Cooperation

Article 8 sets out the provision that States Parties should consult and cooperate directly among themselves on any matter relating to the purpose and objective of the Convention, or the implementation of the provisions of the Protocol, and clarify and resolve any matter which may raise concern about possible non-compliance with the obligations of this Protocol or the Convention. It follows closely the language in Article III. E Consultation, Clarification and Cooperation of the rolling text. Article 8 has in some paragraphs simplified the rolling text by removing unnecessary duplication or repetition and striking a balance between the options within square brackets in the rolling text; for example, the time within which clarification shall be provided is set at 20 days after receipt of the request.

Article 9 Investigations

Article 9 is largely based on the provisions and language in Article III. G. Investigations of the rolling text. It is subdivided into nine subsections:

Section A sets out the two types of investigation: field and facility investigations using language that is essentially identical to that in the rolling text.

Section B has language that is essentially identical to that in the rolling text with some small variations in the titles of subheadings and of the language. This section deals with outbreaks of disease and the circumstances under which a field investigation of an outbreak of disease can be requested to address a non-compliance concern. It is also made clear that reports coming exclusively from the mass media cannot be regarded as evidence.

Section C has language that is closely based on that in the rolling text and requires that States Parties should, whenever possible, consult between themselves in accordance with Article 8 about any matter that causes concern about compliance with the Convention.

Sections D and E have language that is essentially identical to that in the rolling text.

Section F addresses the follow-up after submission of an investigation request and Executive Council decision making. This is based upon and developed from the language in the rolling text. Section F has adopted a compromise in respect of the Executive Council decision making in which different decision-making procedures are to be followed depending on the particular circumstances relating to the investigation:

The key thing is that in all these cases an investigation will take place if the Executive Council so decides thereby providing the Protocol with the essential ultimate measure to address concerns about non-compliance with the Convention.

Section G is closely similar to the language in the rolling text. Essentially the receiving State Party is obliged to make every reasonable effort to demonstrate its compliance with the Convention and to enable the investigation team complete its mandate.However, the nature and extent of access shall be negotiated between the investigation team and the receiving State Party with the receiving State party having the right to make the final decision on the nature and extent of access, taking into account its rights and obligations under the Protocol. The composite Protocol text has thus struck a reasonable balance to ensure that investigations can be carried out effectively whilst safeguarding the interests of the receiving State Party.

Section H is essentially identical to the language in the rolling text.

Section I is essentially identical to the language in the rolling text with the addition of a new paragraph which usefully specifies that, in the event of non-compliance being determined, the Executive Council shall circulate the final report to all State Parties before the meeting of the Conference of State Parties.

Article 10 Additional provisions on declarations, visits and investigations

The additional provisions of Article 10, which addresses declarations, visits and investigations on the territory of a State Party but falling under the control of another State Party/Party, closely follow the language in Article III H. Additional Provisions of the rolling text. Article 10 has struck a balance between the alternative language in the rolling text and has also introduced a new Appendix G Facilities existing in the territory of a State Party but falling under the control of another State Party/Party which is to be completed by the State Party on whose territory the facility exists; this simply requires answers to some YES/NO questions. The overall thrust of Article 10 is not substantively different from that in the rolling text; Article 10 provides a useful complement to the regime in regard to declarations, visits and investigations under such circumstances.

Article 11 Confidentiality provisions

The six paragraphs of Article 11 are essentially identical to the first six paragraphs of Article IV Confidentiality Provisions in the rolling text. Theother paragraphs in Article IV in the rolling text which were within square brackets and which reproduced the language of Annex D which was out of square brackets apart from a single paragraph are included in the Chairman's composite Protocol text in theAnnex on Confidentiality Provisions (Annex C). The square brackets have been removed from the only paragraph in Annex D which had been within square brackets -- this obliges observers and States Parties sending observers to an investigation to protect confidential information should such information be disclosed to or acquired by such observers during an investigation.

Article 13 Assistance and protection against bacteriological (biological) weapons

Article 13 is largely unchanged from Article VI Assistance and Protection against Biological and Toxin Weapons in the rolling text. There are a number of small changes relating to text that had been within square brackets in the rolling text. These changes are as follows:

Article 14 Scientific and technological exchange for peaceful purposes and technical co-operation

Article 14 is largely unchanged from Article VII Scientific and Technological Exchange for Peaceful Purposes and Technical Cooperation in the rolling text. Article 14 is subdivided into seven subsections:

Section A is closely based on the language in Article VII (A) General Provisions. In paragraph 1 (c) the composite Protocol text has simplified the text and has struck a balance by adopting the word "through" and in the second paragraph it has simplified the language so that the Organization shall provide a forum for the review of the implementation of Article X of the Convention.

Section B is closely similar to that in Article VII (B) Measures to Promote Scientific and Technological Exchanges. The composite Protocol text has adopted a different formulation in paragraph 3 -- and elsewhere in the composite Protocol text -- using "microbial and other biological agents" instead of the formulation "bacteriological (biological) agents" in the rolling text. The different formulation reflects the language in Article I of the Convention. In paragraph 4, the composite Protocol text has removed the square brackets around "where appropriate" in the rolling text and has given the names of the various international organizations and agencies in full instead of using their abbreviations as in the rolling text. There are a number of changes to the subparagraphs in paragraph 4:

Section C. The composite Protocol text has struck a balance in paragraph 6 between the different alternatives within square brackets within the rolling text. It also removes the paragraph in the rolling text which had stated the obvious that States Parties have theright to seek measures in accordance with Article V of the Protocol.

Section D is closely based on the language in Article VII (D) Institutional Mechanisms for International Cooperation and Protocol Implementation Assistance in the rolling text. In respect of the Cooperation Committee, paragraph 7 of the composite Protocol text in the first sentence has added a formulation that links this paragraph back to paragraph 2 of this Article. In the second sentence it has removed from square brackets the word "monitor" in the rolling text and removed the additional wording in square brackets in the rolling text. The final sentence has been streamlined through a further reference back to paragraph 2 of this Article. The composite Protocol text has in paragraph 8 adopted language on the size of the Cooperation Committee and its distribution amongst the regional groups. The size of 57 is six larger than the Executive Council with each regional group having one more representative than in the Executive Council. The remaining paragraphs relating to the Cooperation Committee set out more clearly the provisions already agreed in the rolling text.

In respect of the role of the Technical Secretariat the composite Protocol text in paragraph 21 (a) has adopted a compromise drawing upon language and ideas in the three alternatives in the rolling text. In subparagraphs (h) and (i), the composite Protocol text has removed language within square brackets in the rolling text. The composite Protocol text then includes at this point a paragraph which occurred later in the rolling text and requires the Technical Secretariat to contain a department devoted to implementation of this Article thereby underlining the importance to the regime of the contribution coming from the implementation of Article X of the Convention.

Section E. The composite Protocol text has adopted streamlined language in paragraph 28 which addresses the concepts relating to the actions that may be taken by the Executive Council in considering concerns about the implementation of Article X of the Convention and this Article which has been contained in two paragraphs within square brackets in the rolling text.

Section F. The composite Protocol text in paragraph 29 has added an introductory phrase outlining the objectives of such co-operative relationships. It has also given the names of the various international organizations and agencies in full instead of using theirabbreviations as in the rolling text. In paragraph 30 it has removed this paragraph from the square brackets in the rolling textthereby including possible ad hoc collaborative arrangements with non-governmental organisations as it is not possible to predict what future non-governmental organisations might exist and be appropriate to enter into such arrangements.

Section G is essentially identical to the language in the rolling text apart from the removal of the paragraph within square brackets.

Article 15 Confidence-building measures

Article 15 has identical language to that previously within overall square brackets in Article VIII of the rolling text.

Article 16 The Organization

Article 16 is essentially identical to the language in Article IX The Organization in the rolling text apart from a few areas where compromises have been adopted. One such area relates to the size of the Executive Council in which the composite Protocol text has a membership of 51 comprising of 11 States Parties from Africa, 7 States Parties from East Asia and the Pacific, 7 States Parties from Eastern Europe, 9 States Parties from Latin America and the Caribbean, 12 States Parties from the Western European and other States and 5 States Parties from West and South Asia. A second area is in Section E. Privileges and Immunities where language providing for the concept of the waiving of the immunity of the Organization or of the Director-General has not been included. This exclusion parallels the situation that applies under the Chemical Weapons Convention to the Organization for the Prohibition of Chemical Weapons.

Legal Issues

The term legal issues is used in this description and analysis to refer to those Articles in the composite Protocol text that in the rolling text had been developed by the Friend of the Chair on Legal Issues together with Article 17 National Implementation Measures which in the rolling text had been developed by the Friend of the Chair on national implementation/assistance. As most of these Articles had already reached the stage of clean text, free from square brackets, the composite Protocol text is identical in many Articles to that in the rolling text. The following Table indicates which Articles have essentially identical text to that in the rolling text.

Those Articles for which there have been changes from the rolling text are considered briefly:

It is thus evident that for these 15 Articles in the Chairman's composite Protocol text that the language is essentially identical to that in the rolling text; the single Article in which new language has usefully been introduced is in relation to Article 27 Entry into Force. The provisions in the Chairman's composite Protocol text are essentially identical to those in the corresponding Articles of the CWC.

Annexes and Appendices

The composite Protocol text has three Annexes:

The Annex on Lists (Annex A) is, as already discussed under Article 3, closely related to the language in Annex A Declarations I Lists and Criteria (Agents and Toxins) and Annex A Declarations II List of Equipment of the rolling text. The Annex on Investigations (Annex B) is largely based on the language in Annex C Investigations of the rolling text although compromises have been adopted to resolve issues previously within square brackets in the rolling text. The Annex on Confidentiality Provisions (Annex C) is, as already discussed under Article 11, essentially identical to Annex D Confidentiality Provisions in the rolling text.

The composite Protocol text has nine Appendices:

These provide the formats for the various declarations and listing of facilities required under the Protocol.

Analysis of the composite Protocol text

The composite Protocol text is in many areas identical to the language in the rolling text and is firmly based on the agreed language out of square brackets in the rolling text. Compromises have been adopted to address those issues where there continuedto be a divergence of views. These compromises have emerged from the bilateral informal consultations held by the Chairman and have been explored through the writtenelements addressing conceptual solutions based on the rolling text which had been circulated by the Chairman for virtually the whole of the Protocol to all delegations by February 2001. Whilst these compromises will not satisfy the aspirations of all thedelegations to the Ad Hoc Group, they do successfully ensure that the composite Protocol text achieves its mandate of strengthening the effectiveness and improving the implementation of the Convention. The composite Protocol text has retained all the essential elements for an effective Protocol ranging from definitions and objective criteria, through compliance measures to measures for scientific and technological exchange for peaceful purposes and technical cooperation.

In considering the composite Protocol text, it is important to remember that the BTWC with its basic prohibitions and obligations has been in force for over 25 years and that the Protocol is to strengthen the effectiveness and improve the implementation of the Convention. It makes no changes to the basic prohibitions and obligations. The Protocol regime is supplementary and additional to the Convention.

The key comparison is thus between the BTWC Protocol regime and the BTWC alone, including the procedures devolved from its provisions. A tabulation of the principal measures in the regime, compared with the procedures of the BTWC alone, brings out the significant benefits from the Protocol.

Considering all of the elements of the BTWC Protocol regime as a whole, there are overall three particularly significant benefits that will accrue from the BTWC Protocol regime and which are not available with the Convention alone:

The Protocol regime thus brings significant and worthwhile benefits to all States Parties -- both developed and developing -- over and above the procedures to uphold the basic prohibitions and obligations of the BTWC, which remain unchanged. In addition, the Protocol will be effective, over time, in building confidence between States Parties that other States Parties are indeed in compliance with the Convention, thereby reinforcing the norm that work on biological weapons, whether directed against humans, animals or plants, is totally prohibited. The Protocol thus brings improved health, safety, security and prosperity to all States Parties.

It is also appropriate to compare the BTWC Protocol regime with the CWC regime. The CWC regime is of considerable relevance to the BTWC Protocol regime for a number of reasons. First, there is a close relationship between chemical and biological weapons which is evident from the CBW spectrum with the two regimes overlapping for the materials of biological origin such as toxins. Both regimes address dual use materials and technology and both have general purpose criteria which embrace all possible agents, past, present and future. Indeed the CWC regime is the one of greatest relevance to the BTWC Protocol regime and it is already evident that National Authorities for the two regimes are likely to be colocated in a number of countries.

It is hardly surprising that the BTWC Protocol regime has been largely developed from the CWC regime; it is, however, much more elaborated than the CWC and has been finely tailored to address those biological agents and facilities of greatest relevance tothe Convention. There are, however, some particular differences between the CWC regime and the BTWC Protocol regime largely arising from the fact that the CWC came into force in 1997 with a number of States known to be possessors of chemical weapons and chemical weapon production facilities whilst the BTWC came into force over 25 years ago. These differences are summarised in the Table:

If the CW and CWPF elements of the CWC are ignored, then the basic architecture of the BTWC Protocol regime and the CWC regime is the same. The differences between the regimes are in the detail with the BTWC Protocol regime having built on the confidence-building measures agreed at the Second Review Conference in 1986 and extended at the Third Review Conference in 1991 as well as being developed from the CWC regime. In respect of the monitoring of dual-purpose materials and facilities, the two regimes are very comparable with the Protocol regime imposing a less onerous but more focussed burden in respect of declarations and visits whilst the international cooperation provisions are much more extensive than those of the CWC. In comparing the BTWC Protocol regime with that of the CWC, the fact that the BTWC is already in force needs to be remembered.

The two regimes are compared in the following Table.

The similarities between the two regimes are apparent. It is evident that the BTWC Protocol regime is considerably more elaborated, with limitations on the overall number of visits, team sizes and durations, than the CWC regime. There are, however, de facto limitations within the CWC regime through the annual scrutiny of the Organization's programme and budget by the Executive Council and the Conference of the States Parties. On the other hand, there are several areas where the BTWC Protocol regime has additional provisions that are not specifically included in the CWC regime.

In making an overall comparison of these two regimes, consideration also has to be given to the intensity of the visits/inspections of the facilities declared under the two regimes (and ignoring the CWC inspection regime for chemical weapon and chemical weapon production and destruction facilities). It needs to be recalled also that the numbers of facilities declared under the BTWC Protocol regime has been estimated by several European countries as being of the order of tens of facilities per European country; this can be compared to the UK declaration (Department of Trade and Industry, 1997 Annual Report on the Operation of the Chemical Weapons Act 1996 by the Secretary of State for Trade and Industry, February 1998) under the CWC of over 550 plants at over 150 sites. Consequently, it can be expected that the number of declared facilities under the BTWC Protocol regime will be smaller by a factor of ten. The CWC regime has an intensity that varies depending on which Scheduled chemical is produced or used in a facility and reflects the risk to the Convention with Discrete Organic Chemical (DOC) facilities having a much smaller intensity of routine inspection. The BTWC Protocol regime has an intensity of visits that is not dependent on the type of declared facility and should therefore ensure that all declared facilities that are subject to randomly-selected visits will over time receive such visits.

Prospects

During the final two days of the Ad Hoc Group, a number of delegations made statements which expressed their appreciation for the hard work that the Chairman had put into the detailed explanations of the composite Protocol text. For example, on the final morning, the United States spoke to express thanks to the Chairman for hisuntiring efforts to guide the work of the Ad Hoc Group to a successful conclusion as most recently reflected in the production of the Chairman's composite text, CRP.8. The US was particularly appreciative of the hard work that went into the Chairman's extensive explanations and commentary regarding CRP.8. The US concluded by saying that the positions of the United States on the substance of this Protocol are well known and that many of those national positions are not reflected in the Chairman's text. Nonetheless, the United States are carefully studying the text as a whole, recognizing the many views in this room that it can help move us forward towards our objective of strengthening the Biological Weapons Convention. Japan then spoke saying that detailed explan