The US Rejection of Bioweapons Verification, and Implications for Future Negotiations
Oliver Meier 
This article briefly analyses reasons for the US rejection of a Verification Protocol for the Biological and Toxin Weapons Convention (BWC), and describes implications for future talks on a strengthened bioweapons ban.[1] US opposition to a BWC Verification Protocol can be analysed from two perspectives. First, there are factors specific to biological weapons that contributed to a rejection of a verification mechanism by the Bush administration. Second, the shift in the United States' general attitude towards multilateralism, arms control, and multilateral non-proliferation regimes after the Bush administration took office affected Washington's approach to the control of bioweapons. This article looks at both issues separately and describes implications for future talks on a strengthened BWC as well as for other arms control measures.
The US Rejection of Biological Weapons Verification
In the early 1970s, the United States pressed for a complete prohibition of biological weapons. In 1972, the BWC was concluded. It was the first treaty to ban a whole category of weapons, but the threepage treaty contains only rudimentary provisions for verification and enforcing compliance. This deficit makes the control of biological weapons today the weakest in the area of weapons of mass destruction.[2]
After the end of the Cold War, in 1992, BWC States Parties began in earnest to work towards a Verification Protocol. The US was an active, though at times sceptical, participant in the Geneva talks on a monitoring mechanism for the BWC. Protocol negotiations broke down in the summer of 2001, after the Bush administration had rejected a draft of the Protocol that had been proposed by the Chairman of the so-called Ad Hoc Group of States Parties. The Ad Hoc Group, which had been working on a treaty text since 1995, could not conclude its work because other states participating in the negotiations were unwilling to conclude a Protocol without US support for a monitoring and compliance mechanism.
After the collapse of the Ad Hoc Group hopes for saving the multilateral negotiations on a Verification Protocol focussed on the Fifth Review Conference of the BWC. The regular meeting of States Parties was scheduled to take place 19 November –7 December 2001. The meeting had been expected to adopt the Protocol. Now, it had to pick up the pieces after the collapse of the Ad Hoc Group.
Just before the start of that Review Conference in November 2001, the US had presented alternative proposals to strengthen the bioweapons ban. The Bush administration proposed the exploration and implementation of measures in three areas:
national legislation,
investigation of bioweapons use, and
assistance to victims, and
regulation of the biosciences. This signalled a move away from multilateral, legally-binding measures, towards national measures on a voluntary basis. It also was a move away from international measures to improve monitoring and prevention, towards ad hoc reactions to cases of non-compliance.
The Review Conference had to answer two questions: What was the future of the Ad Hoc Group? Should there be a follow-up process to strengthen implementation of the Convention which would take place independently of talks on a Verification Protocol? The meeting ended in acrimony when the USA, on the last day of the conference, requested to abolish the Ad Hoc Group. The Chairman had to adjourn the conference for a year in order to avoid complete failure.[3]
Between December 2001 and the opening of the resumed session of the Fifth Review Conference on 11 November 2002, the Chairman conducted intensive consultations to find a way forward. In the end, there was no critical mass of states to resume negotiations on a Verification Protocol, let alone a willingness to adopt the draft Protocol. The US proposal for a modest follow-up process proved to be the bottom-line of what was achievable. According to the final document of the meeting:
"[T]he Conference decided ... [t]o hold three annual meetings of the States Parties of one week duration each year commencing in 2003 until the Sixth Review Conference, to be held not later than the end of 2006. ... Each meeting of the States Parties will be prepared by a two week meeting of experts."[4] The stated aim of the annual meetings is the discussion and promotion of common understanding on three different topics:
2003 – national legislation and regulations,
2004 – surveillance of infectious diseases and investigation of biological weapons use,
2005 – codes of conduct for scientists.
Addressing US Concerns
While the agenda for meetings between now and the Sixth Review Conference in 2006 contains important issues, it is not sufficient to address the threat of biological weapons. In particular, the agenda excludes any discussions on multilateral, legally-binding measures to verify compliance with the Convention.
In order to get back to the negotiating table and eventually reach agreement on a Verification Protocol, it remains important to address US concerns about the effectiveness of a BWC monitoring mechanism. When US Ambassador Donald Mahley announced Washington's withdrawal from talks on 25 July 2001, he gave three reasons for US opposition towards a bioweapons verification mechanism. Mahley stated that
"[t]he draft Protocol will not improve our ability to verify BWC compliance. It will not enhance our confidence in compliance and will do little to deter those countries seeking to develop biological weapons. In our assessment, the draft Protocol would put national security and confidential business information at risk."[5]
Mahley also argued that a multilateral, legally-binding verification regime could damage export control regimes.
Since the terrorist attacks on New York and Washington on 11 September 2001, the Bush administration has increasingly argued that the proposed BWC verification regime would not improve compliance with the Convention and that terrorists in particular would ignore the obligations under such a mechanism. As US Undersecretary of State for Arms Control and International Security John Bolton argued at the opening of the Fifth BWC Review Conference:
"[C]ountries that joined the BWC and then ignore their commitments and certain non-state actors would never have been hampered by the Protocol. They would not have declared their current covert offensive programs or the locations of their illegal work—nor would the draft Protocol have required them to do so."[6]
To address these US concerns, future negotiations would have to tackle three issues:
First, future talks would have to discuss measures to address non-compliance. Publicly pointing the finger at alleged treaty violators has become a convenient tactic of Bush administration officials intent on poisoning the atmosphere in multilateral negotiations. John Bolton, for example, opened the BWC Fifth Review Conference by publicly accusing four BWC States Parties (Iran, Iraq, Libya, and North Korea) and one BWC signatory (Syria) of violating the BWC.
Many have criticised the confrontational manner in which Bush administration officials "name names" and the hidden agenda behind such accusations, but the US is highlighting an unsolved problem of arms control and non-proliferation regimes. These regimes codify international norms of behaviour. Effective regimes are able to achieve a high degree of confidence in compliance through good verification. However, none of these regimes has effective mechanisms to respond to treaty violations.
Second, a monitoring and verification regime for the BWC would have to reflect the conceptual differences between weapons control and technology control. In the past, arms control was all about weapons. The growing threat of the misuse of biology or chemistry for hostile purposes has highlighted the need to rethink the line between arms control and technology control. According to one observer, the US delegation in the Geneva Ad Hoc Group noted "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."[7]
Arms control, especially if the norm is disarmament, is already looking at early stages of weapons development. The dualuse problem is particularly acute at these initial stages of development and research because the intent behind such programmes is difficult to identify. Control efforts will increasingly affect civilian activities, such as industry and academic research. This tendency is bound to have profound effects on the shape of an arms control regime, which are not well understood.
Third, future negotiations will have to address the question of how arms control and verification can help to diminish the threat from non-state actors armed with weapons of mass destruction. Non-state actors have already used biological weapons, and the growing availability of relevant technology will make this problem worse. Arms control regimes, therefore, have to look at how to deal with the issue of non-state actors in a still statebased treaty environment. For example, most regimes already require parties to pass national legislation, but it may be worthwhile to consider strengthening such provisions.
US Anti-Multilateralism and Biological Weapons Control
The Bush administration took office shortly before the endgame of the Protocol negotiations began. Since summer 2001, when the US rejected the BWC verification protocol, the Bush administration's radical and new approach towards multilateral regimes has become clearer. In addition, new facts have surfaced about US biological weapons activities. Taken together, these developments call into question the argument that the inherent difficulties of verifying compliance with the BWC were the main reason for the US rejection of the BWC Verification Protocol.
Since the failure of the Ad Hoc Group, the Bush administration has adopted a range of policy documents that codify a new US non-proliferation approach. From these documents, as well as from a series of statements by senior officials, it has become clear that many in the US government now see proliferation of weapons of mass destruction as inevitable.[8] There is a general belief that arms control can do little, if anything, to stop the spread of biological and chemical weapons. According to this view, prevention through multilateral regimes is not possible.
Thus, the main task is to manage the consequences of the spread of biological weapons by political and military means. The US increasingly seeks technological and military responses to a threat it perceives to be real, rather than to work on political answers to the problem of bioweapon proliferation. Or in the words of John Bolton:
"Instead of a situation where the cops and robbers sit down in a room to discuss how they are going to address civil society, those countries that have a real concern about biological weapons could take action among themselves."[9]
The US believes that arms control agreements do nothing to affect the behaviour of rogue states because such countries do not play by the rules and, therefore, are not affected by arms control. At worst, arms control agreements can build a "Maginot line of treaties"[10] that lures the international community into a false sense of security. A variant of the same argument is that arms control agreements do nothing to affect the behaviour of terrorists.
Reciprocity and the acceptance of equal obligations are preconditions for arms control. However, the Bush administration is ever more unwilling to accept limitations on its own military capabilities as a result of being party to arms control treaties. This has led to a changed attitude towards bi- and multilateral regimes which could restrict US military superiority. The withdrawal from the ABM (Anti-Ballistic Missile)Treaty, the willingness to drop the START II treaty on reductions of strategic nuclear arms, and the further distancing from the Comprehensive Nuclear Test Ban Treaty are all symptoms of this development.
Since July 2001, new facts have come to light which strengthen the argument that the Bush administration withdrew from the BWC Protocol because it does not want to limit its own military capabilities in the area of biological weapons. This has two different aspects.
First, the US wants to keep its biodefense programmes secret. On the surface this is about the fear of espionage and enemies exploring and exploiting US vulnerabilities. In fact, it is also about keeping those US biodefense activities secret that may well violate the BWC. Some of these activities have been revealed by the New York Times in the aftermath of the US rejection in September 2001.[11] There are many experts who believe that there have been, and may still be, other secret biodefence programmes.[12]
Second, and most controversially, the US may have rejected the Protocol to keep certain offensive options open. This concerns so called non-lethal biochemical weapons, as well as biological weapons to be used against materials or plants.[13]
Making Progress on Arms Control Without the US?
The fact that the Bush Administration is rejecting two basic principles of arms control, reciprocity and transparency, has fundamental implications for multilateral arms control. This changed attitude not only calls into questions many hard-won achievements, but also makes progress much more difficult. The current US scepticism towards arms control, however, does not necessarily mean that progress is impossible. The empirical record shows that important multilateral regimes were created even when the US was in opposition. Thus, the Ottawa Convention on Landmines, the International Court of Justice, and the Kyoto Protocol on global warming were all agreed upon despite US opposition.
Arms control practitioners and analysts are still trying to come to terms with the change in the US, from a strong verification proponent to its fiercest opponent. Three points may be important to keep in mind for making progress on arms control under conditions of US anti-multilateralism.
First, the principle of consensus may be overvalued and outdated. The main purpose of the principle of consensus is to protect the interests of relatively small and weak actors by giving them a de facto veto over possible outcomes. Today, the consensus rule seems to protect mainly the interests of the strongest states. Regional systems, such as the Organization for Security and Co-Operation in Europe (OSCE), have overcome the strict consensus rule without taking damage. It is time for arms control negotiating fora to reconsider whether consensus is still necessary and functional in each and every case.
Loosening the consensus requirement could have a positive effect on negotiations. In the past, the search for consensus and compromise has sometimes made negotiation products unworkable or meaningless. The BWC Protocol negotiations are a point in case: in order to accommodate US concerns about intrusiveness, inspection procedures had been watered down to a degree that the outcome was criticised by many as weak.[14] Sensible compromise does not always lie in the middle of conflicting positions.
Second, reforming the traditional group system in negotiations can facilitate progress even in the face of US opposition. Negotiating in temporary, issueoriented alliances which cut across political groups can help to circumvent possible blockades by individual states. Throughout the AHG negotiations, and in particular during the Fifth Review Conference, the positions of many Western Group countries on bioweapons control were much closer to moderate, non-aligned countries, than to its Western Group ally, the US. Moderate countries in the non-aligned movement proved to be extremely helpful partners for the European Union during the Ad Hoc Group negotiations. In the end, however, states acted in their traditional political groupings. By exploiting the political reflex to show solidarity with traditional negotiating groupings, the administration effectively took the Western Group hostage, which provided convenient cover for Washington from criticism of non-aligned states.[15]
A third way to make progress may be to move things forward on a regional basis. Progress on biological weapons control does not necessarily have to be global, at least not from the beginning. Legallybinding and plurilateral measures can also be agreed regionally, among interested parties. Such measures can serve as stepping stones for multilateral regimes, and they can help to set global norms to which other states may accede when they are ready to do so.[15]
Conclusion
For the next three years, until the Sixth BWC Review Conference takes place in 2006 in Geneva, efforts to strengthen the bioweapons ban will centre on the annual meetings of experts and States Parties in Geneva. Governments should aim to expand the limited agenda, and to discuss issues of real concern. In addition, regional efforts should be increased to strengthen bioweapons control. Such efforts should be undertaken with a view to paving the way for a universal, legally-binding global regime at a later date. Apart from multilateral and regional efforts by governments, civil society has a new role to play in strengthening the bioweapons ban. Non-governmental organisations have an important contribution to make to increased transparency on biological weapons issues. The Bio Weapons Prevention Project, an international effort of various groups to monitor compliance with the norms against biological weapons, was launched at the Fifth Review Conference and is a prime example of civil society activities in this regard.[17]17 By pursuing these different tracks in parallel, the international community can improve biological control and keep on working towards a legally-binding and universal verification regime. In the end, successful prevention of the spread of biological weapons will depend on the establishment of such a regime.
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This paper was written for the conference "International Arms Control, Transparency and Verification in a European Russian Framework of Cooperative Security" organized by INESAP and the Nuclear Age Peace Foundation on January 24-26, 2003, in Berlin, Germany.
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