US Rejection of the Protocol at the Eleventh Hour Endangers Collective Security Against Biological Weapons
by Graham S. Pearson

The Promising Scene for a Protocol
           The BTWC Protocol: The Final Stage (ASA 01-2) reported that Ambassador Tibor Tóth, Chairman of the Ad Hoc Group had provided a Chairman's composite Protocol text to delegations on 30 March 2001, which is entirely based on the rolling text with compromises adopted to resolve the remaining differing views. The BTWC Protocol: The Chairman's Composite Text analyzed the composite Protocol text and reported on the twenty-third session of the Ad Hoc Group, which met in Geneva from Monday 23 April to Friday 11 May 2001. The April/May session saw a significant step forward with the introduction of the Chairman's composite text and the recognition by the Ad Hoc Group that while the rolling text was the underlying basis for negotiations, delegations had expressed their views on the composite text making it clear that there were only a few specific differences remaining.
          There was a continuing commitment by all delegations in the April/May session to the completion of the negotiations by the Fifth Review Conference in November/December 2001 coupled with a recognition that the Chairman's composite text could provide the basis to achieve this. The analysis of the composite Protocol text as a whole shows that this brings significant benefits to all States Parties when compared to the existing regime based on the Convention alone. A comparison of the Protocol regime with that of the CWC showed that the two regimes to be closely comparable with several elements elaborated in the Protocol regime that have no explicit counterpart in the CWC. It was evident that the Protocol negotiation could indeed be completed before the Fifth Review Conference and result in an effective and valuable strengthening of the prohibition regime against biological weapons.
           The Ad Hoc Group was thus poised at the start of its twenty-fourth session from 23 July to 17 August 2001 to move forward to successfully finalise the negotiation of almost seven years for a Protocol to strengthen the effectiveness and improve the implementation of the Biological and Toxin Weapons Convention. In his opening remarks, Ambassador Tibor Tóth said that first, the session was about developing a Protocol and thus strengthening the Biological Weapons Convention. Second, that the Ad Hoc Group must consolidate the Composite Text at this session. Third, that the Ad Hoc Group must continue to negotiate based on the reality before it. In the nine-week period between its sessions Ambassador Tóth hoped that every delegation had undertaken a long and detailed study of the Composite Text: what it contains for each State Party and what it contains for others; what is does not contain for each State Party and equally what it does not contain for others; how the Composite Text fulfils the mandate of the Ad Hoc Group and how it balances the existing mutually exclusive parts of the rolling text and the different objectives of all States Parties into a coherent, workable and meaningful Protocol. He concluded by noting that negotiating the Protocol has been an act of co-operation among the States Parties to the Convention and, as happens in most areas of co-operation, there has to be compromise in order to gain in the long run collectively. Ambassador Tóth said that now is the time for compromise and now is the time to really deliver on those promises of negotiation in the spirit of co-operation.
          On the first two days of the session, over 50 of the 55 or so States Parties engaged in the negotiation of the Protocol spoke in favour of completing the negotiation on the basis of the Chairman's composite Protocol text. Belgium, speaking on behalf of the European Union and the associated States (totalling 28 States in total) said that "the European Union reiterated its determination to respect the decision of the Fourth Review Conference to complete the negotiation of the Protocol prior to the Fifth Review Conference. The statement went on to say that the European Union reaffirms that even if on certain points the Composite Text does not fully correspond to what we would like to see, nevertheless we think that it is a basis on which political decisions could be taken. Indeed a Protocol based on the Composite Text and which would respect the general balance of it could certainly consolidate the Convention and would be a useful supplement to existing multilateral regimes in the field of disarmament and non-proliferation and therefore would enhance everyone's security.
          Brazil spoke on behalf of 36 States, including some of those who had been associated with the EU statement, saying that we continue to believe that the Chairman's Composite Text (CRP.8) provides the basis to conclude our work expeditiously in accordance with the mandate of the Ad Hoc Group and the undertakings regarding the conclusion of the negotiations as agreed by consensus at the 1996 Review Conference. We consider that CRP.8 reflects a careful and sustained endeavour to reach comprehensive and balanced compromises.
          We believe that a Protocol based on your text would enhance international confidence that the prohibitions of the Convention are being upheld and that its provisions are being implemented.

The United States Rejection
          On the morning of the third day, 25 July 2001, statements were made by Switzerland and India supporting the early completion of the Protocol based on the Chairman's composite text. The United States then delivered a 10 page detailed statement rejecting not only the Chairman's composite Protocol but also the approach to the Protocol. A detailed evaluation has been made (Bradford Evaluation Paper No 22 The US Rejection of the Composite Protocol: A Huge Mistake based on Illogical Assessments available at http://www.brad.ac.uk/ acad/sbtwc) which examines the United States statement of 25 July 2001 in detail and analyses its various elements. It is concluded that these elements and assertions are based on illogical assessments and are incorrect and not valid. Several are based on alleged concerns that have no basis in the actual composite Protocol text. It is evident that the United States is indeed making a huge mistake and is failing to take all possible steps to strengthen the international norm totally prohibiting biological weapons and to counter the proliferation of biological weapons. It is primarily evaluating the Protocol against some national standards -- and not against the Protocol mandate that the United States not only agreed to but was instrumental in drawing up having proposed many of the elements. The end result of the rejection of the Protocol by the United States is that it will not be trusted by other States Parties as a state that lives up to its earlier promises and official statements at the highest level. The damage that this mistrust -- as it involves the world's leading power -- will cause to international security will be incalculable.
          The essence of the United States rejection of the Protocol is encapsulated in the State Department briefing of 25 July 2001 which said "The protocol, which was proposed, adds nothing new to our verification capabilities. And it was the unanimous view in the United States government that there were significant risks to US national interests and that is why we could not support the protocol. Implementation of such a protocol would have caused problems...for our biological weapons defense programmes, would have risked intellectual property problems for our pharmaceutical and biotech industries and risked the loss of integrity and utility to our very rigorous multilateral export control regimes." These assertions are all incorrect.
          First, the assertion that the composite Protocol adds nothing new to our verification capabilities is simply not true. The Protocol requires mandatory declarations of the activities and facilities of greatest relevance to the Convention, the declaration follow-up procedures promote the consistency of declarations and address any ambiguity, uncertainty, anomaly or omission, and also provide for field and facility investigations of compliance concerns. To assert that these add nothing new to our verification capabilities fails completely to recognize that there are no such provisions under the Convention alone (see table comparing the BTWC Protocol regime with that available with the BTWC alone on page 24 of ASA 01-2).
          Second, the assertion that the Protocol would cause problems for the biological weapons defense programs of the United States is at complete variance with the assessments of all the other States Parties engaged in the negotiations who also have biological weapons defence programmes. Nor is there anything in the Protocol that requires the provision of any national security information in the declarations of biological weapons defence programmes. Indeed, Protocol Article 13 explicitly protects the right of States Parties to carry out such programmes. This assertion is in sharp contrast to the fact that already, without the obligations in the composite Protocol, the United States is much more open and provides more information to the public about its biological defence programme than does any other country.
          Third, the assertion that the Protocol would have risked intellectual property problems for the US pharmaceutical and biotech industries ignores the fact that the Protocol contains stronger provisions for the protection of commercial proprietary information than did the Chemical Weapons Convention when that emerged from its negotiations in Geneva. Furthermore, there are no requirements for the provision of commercial proprietary information in any of the mandatory declarations. Moreover, the frequency of visits to such facilities in the United States under the Protocol is necessarily seven or less per year -- a minute fraction of the thousands of inspections carried out by regulatory agencies in the United States.
          Fourth, the assertion that the Protocol would have risked the loss of integrity and utility to the US very rigorous multilateral export control regimes is simply not true. The Protocol includes provisions in Article 7, requiring all States Parties to review, amend or establish controls over the transfer of biological materials and technology, that bring clear benefits - both in countering proliferation and limiting the availability of materials and equipment for bioterrorism - for the international community and the United States as all States Parties are required under the Protocol to regulate of such transfers.

The Consequences for the Ad Hoc Group
          This US rejection of both the composite Protocol and the approach to the Protocol at the eleventh hour caused much disappointment for the other delegations as it is evident that many States Parties had come to this session expecting hard negotiations leading to acceptance of a Protocol. The first to respond on the afternoon of 25 July 2001 were Cuba, Canada, Japan and South Africa regretting the US rejection but reiterating the importance of the Protocol to strengthen international peace and security. The following day, Belgium (on behalf of the European Union and the associated states), Russia, Brazil, Australia, Iran and Norway all spoke expressing regret that the US had rejected the Protocol. Further reactions followed later in the session. The overall tone was in general moderate as there had been press reports prior to the session indicating that the US was likely to reject the Protocol although testimony on 10 July 2001 to the House Subcommittee in the US Congress by Ambassador Don Mahley had not indicated which way the US would finally go. It seems clear from the way in which the session developed that many of the States Parties in Geneva had not developed a clear strategy as to how to proceed if the US were indeed to reject the Protocol. Consequently, when that rejection came on the third day of a four week session -- and the completeness of the rejection -- it apparently caught delegations on the hop without political guidance as to whether the other States Parties would be better off with a Protocol without United States participation or with staying with the Convention alone until some uncertain later date -- which might be some years ahead -- when the US was prepared to re-engage. This was probably compounded by the presence of the principal policy-making officials at the negotiation in Geneva and the difficulty of obtaining new political direction long range during what is the holiday season in many countries.
          The Ad Hoc Group, after some confusion during the rest of the first and second weeks, then turned to drafting the report of the Ad Hoc Group focussing on what should be reported to the Fifth Review Conference. The drafting during the third and fourth weeks was difficult -- there were diverging views, for example, as to whether this should be a report to a Special Conference, given that the Ad Hoc Group had been established by a Special Conference, or to the Review Conference; what reference should be made to the mandate of the Ad Hoc Group; how the events at this, the twenty-fourth, session should be reported; and what should be included on future activity. Eventually, there was agreement that this should be a report to the Fifth Review Conference modelled on that to the Fourth Review Conference and that the mandate should be included together with language along the lines of "The Ad Hoc Group has not been able to fulfil its mandate, since by the end of the twenty-fourth session it was not able to complete its work and submit its report....This mandate, as agreed by the Special Conference in 1994...remains in force and determines future work of the Ad Hoc Group." There was also agreement on language that the rolling text and the composite text should be annexed to the procedural report as two texts that have emerged as a result of the negotiations. There was close to agreement on language relating to future activity of the Ad Hoc Group that would invite the Fifth Review Conference to consider the procedural report and how the Ad Hoc Group can fulfil its mandate.
          The nub of the disagreement related to how to report the events at the twenty-fourth session, with the United States making it clear that they would block any report which named the United States as being the reason for the Ad Hoc Group being unable to complete its work -- and indeed that references to "one delegation" or to "a delegation" would not be accepted. Although there appeared to be acceptance of a possible solution in which language along the lines of "During the plenary meetings at the twenty-fourth session delegations expressed their views in national and group statements on the work of the Ad Hoc group and its completion as soon as possible before commencement of the Fifth Review Conference. After undertaking intensive consultations, the Chairman informed the Ad Hoc Group that there was no consensus for continuing substantial negotiations to that effect at the twenty-fourth session. The Ad Hoc Group proceeded to drafting its procedural report.", it was clear that something was missing between the first and second sentences because as the European Union had said in their response to the US statement that "...it cannot be business as usual." Although a proposal was made to fill this gap by annexing the statements made by all States Parties in plenary meetings of the twenty-fourth session being attached as a separate annex, this was not acceptable to the Western Group because of the precedent that this would establish even though such a solution had been adopted during the VEREX process at a difficult session when a statement had been annexed to the report.
           In the end in the early hours of the morning of Saturday 18th August the delegations in the Ad Hoc Group were unable to agree even on a single paragraph report and the session ended with no report.

Bleak Prospects
          In retrospect, it is clear that despite the negative indications regarding the United States, many of the delegations came to the twenty-fourth session with high expectations that a Protocol would be completed or at least further progress would be made possibly with some sort of accommodation to allow more time to persuade the United States to join the Protocol. In the event, the United States rejection at the eleventh hour of the Protocol and of the approach to the Protocol was much more absolute than had been anticipated. Consequently, a number of delegations were understandably upset that, despite the United States rejection being based on illogical assessments and not standing up to detailed examination, the work of almost seven years of negotiation was coming to naught.
          This US rejection of the Protocol at the eleventh hour has caused the Ad Hoc Group to fail to even agree a report and has put the Fifth Review Conference in November 2001 at serious risk of failure. The US position is a complete U-turn to the approach consistently taken by the United States over the past decade during which every approach to counter the threat of biological weapons and their proliferation has been pursued. The end result of the rejection of the Protocol by the United States is that it will not be trusted by other States Parties as a state that lives up to its earlier promises and official statements at the highest level. The damage that this mistrust -- as it involves the world's leading power -- will cause to international security will be incalculable. Regardless of the merits of any US future proposals for alternatives to the Protocol, such proposals will be dead on arrival because of the political animosity that the US has itself created. Any US sponsored proposals are likely to be rejected by some States Parties as a matter of principle.
          The future is bleak for the multilateral prohibition regime for biological weapons. The States Parties to the BTWC need to take stock and recognize that a failure of the Fifth Review Conference would indeed make the world a more dangerous place. The United States whose rejection of the Protocol and of the approach to the Protocol has precipitated this crisis has made a huge mistake which puts the lie to its assertion of the importance of the biological weapons prohibition regime -- the United States is urged to reconsider its position. The other States Parties to the BTWC need to address whether to enhance their collective security through the completion of the composite Protocol, whilst urging the United States to reconsider, or to do nothing and continue with the status quo of the Convention alone. Critical analysis shows that there is no doubt whatsoever that the composite Protocol will substantially strengthen their collective security against biological weapons and their proliferation. The other States Parties should have the courage of their convictions and take the Protocol forward through a resolution to the United Nations General Assembly and thus not miss the opportunity that the Protocol provides now to enhance their collective security. History will show that in so doing the other States Parties have taken a significant step forward to make the world a safer more secure place for all mankind.

Editor's Note: Graham Pearson is Visiting Professor of International Security, Department of Peace Studies, University of Bradford, West Yorkshire and previously Director General and Chief Executive, Chemical and Biological Defence Establishment, Porton Down., UK.

Additional ASA Editorial Note: Graham Pearson is to be commended. He is the only professional to have taken the considerable time and energy required to document in detail AHG progress and lack of progress towards Protocol finalization. And he has done this throughout; he has documented each meeting.

          ASA's position is that more could be done to strengthen the Protocol or perhaps we should say the BWC (and leave the Protocol out of it for now). ASA will spell more of this out in ASA 01-5 in October. Protocol approval should not be perceived as a reward for showing up on time for the last five years nor should it be dismissed out of hand without specifics on the whys and wherefores. The Protocol efforts or changes to the BWC could use more input from professional scientists rather than the input of the political (scientists?) whose detection expertise may very well be limited to finding the nearest good Geneva restaurant that would fit into their per diem allowance.

An ASA Invitation: ASA welcomes additional comments, both pro and con towards the Protocol as written. What should have been done, what was not done, and most importantly what can or should be done now?

01-4, issue no. 85