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Marie Isabelle Chevrier
Preventing Biological Proliferation: Strengthening the Biological Weapons Convention


An American Perspective

Policies to prevent the proliferation of biological weapons (BW) have two targets: states and non-state actors. Proliferation to states is particularly dangerous; they have the apparatus of government - the power, authority, fiscal resources, and freedom from criminal prosecution - to enhance the probability of establishing a successful program. Moreover, the proliferation of biological weapons to states makes their acquisition by non-state individuals or groups more likely. [ Marie Isabelle Chevrier, „The Threat That Won't Disperse: Why Biological Weapons Have Taken Center Stage", Washington Post , 21 December 1997, p. C1. The article makes the point that terrorists, if successful, may be more likely to use BW than a state.] Despite the greater danger of BW weapons in the hands of states, the bulk of attention in the United State has been directed to the possible proliferation of BW to terrorists and the attendant potential of their use.

During the past four years we have seen a massive outpouring of movies, fiction, and nonfiction books and academic, popular, and news articles on the threat of a biological attack on U.S. citizens or cities. Two events triggered this avalanche of concern. When the Japanese group Aum Shinrikyo released nerve gas on the Tokyo subway on 20 March 1995 the world was warned that terrorist use of chemical weapons (CW) was no longer a matter of speculation. A few weeks later, the bombing of the federal building in Oklahoma City alerted Americans to the fact that we are vulnerable to terrorist acts on our own soil, involving mass casualties. [ Although the bombing of the World Trade Center in New York had also demonstrated U.S. domestic vulnerability to large-scale terrorism, the low number of fatalities and Muslim fundamentalist perpetrators muted public reaction to a certain extent. ] Moreover, we could no longer always blame „foreigners". The Oklahoma City bombers were homegrown boys.

Because of their correlation in time, the public perception of the two events tends to be connected. Moreover, nonexperts rarely distinguish chemical from biological weapons. When it was reported that Aum Shinrikyo had attempted to produce botulinum toxin and cultivate the bacteria that causes anthrax, both apparently unsuccessfully, [ Milton Leitenberg, „The Widespread Distortions of Information on the Efforts to Produce Biological Warfare Agents by the Japanese Aum Shinrikyo Group", A case study in the serial propagation of misinformation, Center for International Security Studies, University of Maryland. (Unpublished, 1999). ] the final link was forged: America is vulnerable to biological weapons terrorism. Not that this threat was brand new, but it did not have the public salience wrought by the events in 1995. Thus, the publicity attached to BW programs in Iraq and the Soviet Union - and its likely continuation in Russia - has been eclipsed by fears of terrorism.

This paper examines the role of arms control as one instrument in controlling the spread of biological weapons. First, it presents the conceptual possibilities of preventing the proliferation of BW through arms control. Second, it describes the different actors on the U.S. stage that influence, or would like to influence, U.S. policy in this arena. Third, it gives a detailed description and critique of the U.S. government position in the negotiations to strengthen the Biological Weapons Convention (BWC), the principal arms control instrument. Finally it describes the views of the other actors in the policy debate.

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Possibilities for Arms Control

Conceptually, arms control, as it has been envisioned and practiced in the latter half of the twentieth century, can prevent the spread of weaponry through a number of instruments. At the core of most arms control initiatives is a promise by governments not to acquire, use, or further develop certain weapons. The international treaties attempting to thwart the proliferation of biological and toxin weapons - the Geneva Protocol and the BWC - do little more than to secure the pledges of governments. Between the two agreements, countries (or states parties or SP as they are known in official language) agree not to use, acquire, transfer, or obtain biological or toxin weapons. In addition, the BWC is a disarmament treaty, requiring the destruction of existing weapons. Widespread adherence to arms control is thought to enhance the security of countries through security assurances and the absence of arms build-ups. [ See for example Gregory J. Rattray, „Introduction", in J. A. Larsen and G. J. Rattray, eds., Arms Control: Toward the 21St Century (Boulder: Lynne Rienner Publishers, 1996), p. 9.] Upon this basic architecture, many arms control agreements attach the means for countries to demonstrate their compliance with agreements. Examples are declarations of weapons and production capabilities, inspections of facilities capable of dual-use activities, investigations of facilities or activities that raise suspicions of non-compliance, and exercises or other demonstrations of openness.

Although the BWC does not contain any of these legally binding measures to verify its provisions or enhance confidence in compliance, its member states have mandated an Ad Hoc Group (AHG) open to all states parties to draft a legally binding protocol to strengthen the effectiveness of the treaty. Since January 1995, the AHG meets regularly in Geneva. Thus, the states parties have the opportunity to augment the BWC so that it can function more effectively as an instrument against proliferation.

How could arms control, in the form of a reinforced BWC, counter proliferation? What are the theoretical possibilities?

First, it could detect the existence of offensive BW programs by investigating

  • the alleged use of BW,
  • disease outbreaks, or
  • facilities or activities that raise suspicions of noncompliance.

Second, arms control can influence or deter countries from establishing offensive BW weapons programs or expanding the scale or scope of existing programs. In contrast to classic deterrence theory, the deterrence aspect of BW arms control is more complex in every dimension. It is directed against all countries, even those not party to the treaty. It seeks to deter the acquisition of BW, and the expansion of existing programs, as well as its use. [ Classic deterrence was directed toward one country only, the Soviet Union, and sought to deter an attack on the West and/or Soviet use of nuclear weapons through guaranteed, painful nuclear punishment.] BW arms control could achieve its deterrence goals by ensuring that undesirable consequences follow behavior that violates the treaty. [ Those consequences, however, would be different from the nuclear retaliation of the classic theory.] Theoretically, if governments act rationally, they will refrain from BW activities if they calculate that the probable consequences outweigh the gains. Thus, deterrence is thought to function by making the acquisition of BW more expensive, and more costly, where expensive refers to fiscal expenses and costly refers to other possible losses to reputation, trade, and so forth.

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In addition to detection and deterrence, arms control sets international norms of behavior. Behavioral norms can affect countries directly; some countries will act in accordance with norms without further persuasion. Indirectly, behavioral norms are a necessary precondition to concerted international action when and if countries violate those norms. Arms control agreements create an international infrastructure that enables states to respond to misdeeds more quickly and more easily.

The Players

Before we turn to the specific views in the United States regarding the role of arms control in preventing the proliferation of BW, we must first understand the players and their relationships to one another. The executive branch of the U.S. government sets U.S. policy regarding BW arms control. The lead agency is the National Security Council, which runs the interagency group that makes policy recommendations. Next in authority, and leading the U.S. delegation to the talks to strengthen the BWC, is the newly established branch of the State Department, International Security and Arms Control, which was formerly the Arms Control and Disarmament Agency. Representatives of many other U.S. government departments and agencies also take part. Among them are the Departments of Defense, Commerce, Energy, and Agriculture and the Central Intelligence Agency. Other agencies such as the Federal Bureau of Investigation, the Food and Drug Administration, the Department of Health and Human Services, and other offices in the State Department have a stake in the outcome of the negotiations and may be involved in intra-agency discussions. The U.S. government participants have different priorities and interests. The Commerce Department, for example, is concerned primarily with the effects of US arms control policy on industry and trade.

The legislative branch of the Federal Government takes an occasional interest in BW arms control, but its primary arms control function is Senate ratification of treaties. When the BWC protocol is submitted to the Senate for its advice and consent, Senate attention to its provisions will be intense. In the meantime some Senate staff members take an interest in the protocol negotiations, but they tend to follow the issue rather than taking a lead in policy development.

Outside government, three main groups seek to influence or comment on government policy on BW arms control:

  • Representatives of the pharmaceutical and biotechnology industry;
  • Non-governmental organizations and other independent researchers and academics; and
  • the press and others in the media.

The Pharmaceutical Research and Manufacturers of America (PhRMA) represents about 100 of the largest U.S. pharmaceutical and biotechnology companies; PhRMA also includes research associates and international affiliates. The Biotechnology Industry Organization (BIO) represents biotechnology companies. [ BIO has many more members that PhRMA, but its member companies, on average, are much smaller than PhRMA’s. Some companies are members of both. Membership information for both companies can be found on their respective websites: www.Phrma.org.;www.bio.org] Both industry organizations have taken an active interest in the BWC Protocol negotiations.

Non-government organizations (NGOs) in the United States that take a primary or strong interest in BW arms control include the Chemical and Biological Arms Control Institute, the Federation of American Scientists, the Henry L. Stimson Center, the Harvard Sussex Program

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on Chemical and Biological Warfare Armament and Arms Limitation, and the Monterey Institute of International Studies. In addition to these organizations, there are many individual academic and policy researchers with substantial publications on biological weapons issues who are too numerous to single out by name.

Policy Agreements

Although the actors in BW arms control in the United States form a reasonably tight-knit group, there are significant professional disagreements among the groups and individuals on the role of arms control in preventing BW proliferation. [ There are many with interconnections among the group members. Some of the prominent people in the NGOs are former government employees and vice versa. NGO representatives meet with industry representatives, and the government meets with both. ] Before describing the range of disagreements, it is important to note that there are points of agreement among nearly all people and institutions - government, non-government, and industry - that seriously examine the problem of biological weapons. Most believe that arms control, in the form of a strengthened BWC, should play some, most would say an essential, role in halting proliferation. Disagreement is widespread on the extent of that role and on the degree of success that any role for arms control is likely to entail. In addition to agreeing that arms control has some role in preventing BW proliferation, there seems virtual consensus that arms control alone is not a sufficient barrier to prevent continued proliferation.

There is widespread agreement that the BWC needs to be strengthened to investigate:

  • alleged use;
  • disease outbreaks that may be the result of exposure to agents or toxins originating from an offensive BW program; and
  • clandestine offensive programs without a disease outbreak. [ Some members of the network have supported the case for disease outbreak investigations (including alleged use) without explicit support for investigations of, for instance, facilities alleged to be engaged in activities in violation of the convention.]

The capacity of the BWC organization to conduct investigations of suspicious facilities, activities, or events would have the potential to

  • convince present violators to get rid of offensive programs before the protocol enters into force because of positive risk of discovery and/or accompanying negative publicity;
  • detect existing or future programs;
  • shine the spotlight on countries that refuse to ratify the protocol, implying that they may have something to hide; and
  • change the stakes for those that do not presently possess BW but are contemplating BW acquisition or may do so in the future.

Other measures under consideration by the AHG that would reinforce the likelihood of these potential outcomes have garnered significant, but not countrywide, support.

The role of declarations in a strengthened BWC is little disputed. Again, there is virtual consensus that legally binding declarations of the facilities and activities most relevant to the convention are needed to provide transparency and as a foundation for other components of the protocol. But here, also, the devil is in the details, and disagreements remain on the scope of facilities and activities to declare and the level of detail within declarations.

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Arms Control as a Deterrent to the Acquisition of Biological Weapons

In the U.S., there seem to be three general schools of thought about the role of arms control to prevent BW acquisition. The first school focuses on the perceived futility of BW arms control to hinder the determined proliferator. According to this school, a country resolved to acquire an offensive BW program will not be deterred by the BWC even if it is strengthened. These countries will either stay out of the regime, or pursue their programs clandestinely. If another state party to the BWC requests a challenge investigation they will refuse to admit inspectors or delay and hinder the investigation until a facility can be „cleaned up". Because arms control cannot stop these countries from acquiring BW, it is not a successful deterrent. This school has adherents inside government and academia. Joshua Lederberg summed up the thinking of this school:

„Unlike nuclear weapons, the capability for BW is unlikely to be reliably contained by any degree of legal prohibition and formal verification…. Lacking robust technical solutions to the malevolent use of BW, the United States has little to call upon besides this moral ground to prevent attack." [ Joshua Lederberg, „Introduction", in Biological Weapons: Limiting the Threat , Joshua Lederberg, ed., BCSIA Studies in International Security (Cambridge, Mass.: MIT Press, 1999), p. 7. Within the U.S. government, Allan P. Zelicoff, Sandia National Laboratory, Robert P. Kadlec, Office of the Secretary of Defense, and Ann M. Vrtis, Andrews Air Force Base, have expressed this view. Describing the „harsh realities" of BW proliferation they conclude that, „The on-going efforts to strengthen the BWC should not be considered curative for the biological weapons proliferation problem. Recent events strongly suggest that any future biological weapons arms control agreement may only be palliative against nations intent on pursuing a biological weapons capability." Robert P. Kadlec, Allan P. Zelicoff, and Ann M. Vrtis, „Biological Weapons Control: Prospects and Implications of the Future", in Biological Weapons: Limiting the Threat , p. 110.]

The second school of thought recognizes that a strengthened BWC is not a perfect deterrent. Nevertheless, this school contends that arms control will deter some countries some of the time, and should be strengthened to deter more countries more of the time. Those in this school believe that challenge investigations must be augmented by other on-site measures to bolster the deterrent aspect of the BWC. Douglas MacEachin, the former deputy director of the Central Intelligence Agency, stated this view:

„As a practical objective, the most important contribution of non-refusable visits to declared facilities is to impede a potential violator’s ability to mask signs of a prohibited weapons program behind the cover of legitimate activities." [ Douglas J. MacEachin, „Routine and Challenge: Two Pillars of Verification", The CBW Conventions Bulletin, no. 38 (March 1998), pp. 1-2.]

The third school recognizes that arms control plays an important role in establishing norms of behavior and the rule of international law. As one observer put it, „the level of [nuclear, biological and chemical] NBC activity in the international system over the past decades would almost certainly have been higher if there had been no treaties or principles to violate." [ Richard A. Falkenrath, Robert D. Newman, and Bradley A. Thayer, America’s Achilles Heel: Nuclear, Biological, and Chemical Terrorism and Covert Attack, BCSIA Studies in International Security (Cambridge/Mass: MIT Press, 1998), p. 329.] Some have suggested that the expectations for behavior under arms control need to change:

„Over time, the burden of proof on states to demonstrate compliance with international conventions must shift. International norms should adapt so that states are obliged to

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reassure other states that are worried and to take reasonable measures to prove they are not secretly developing weapons of mass destruction." [ Ashton Carter, John Deutch, and Philip Zelikow, „Catastrophic Terrorism", Foreign Affairs 77, no. 6 (November/December 1998), pp. 86-87.]

Although this quote implies that countries may have to open dual-capable facilities for international visits, the authors are not explicit about what actions would constitute reasonable measures to prove they are not secretly developing weapons.

U.S. Government Position

The clearest indication of the U.S. government position on the role of arms control in preventing BW proliferation starts with an examination of the U.S. position in the negotiations to strengthen the BWC. For three years, the United States took a back seat in these negotiations. [ The United States, for example, put forward only four papers through the first 10 sessions. They are: 1) a „non-paper" on international development programs introduced in the second session: BWC/AD HOC GROUP/CRP.2); a working paper on the potential of Article X issues: BWC/AD HOC GROUP/23); 3) a working paper on the role of epidemiology in unusual/suspicious outbreaks of disease introduced in the fourth session: BWC/AD HOC GROUP/WP.73, 17 July 1996); and 4) one on the preamble submitted at the seventh session: BWC/AD HOC GROUP/WP.176, 21 July 1997.) The paucity of U.S. contributions of working papers to the negotiations is in stark contrast to nations such as South Africa, which introduced 47 papers through the first 10 sessions, or the United Kingdom, which introduced 31. For a nearly complete list and the text of most Ad Hoc Group papers see the Joint SIPRI-Bradford website at http://www.sipri.se/cbw/cbw-sipri-bradford.html. ] On 27 January 1998, however, President Clinton announced that „the United States would lead the effort to erect stronger international barriers against the proliferation and use of biological weapons." [ The White House, Office of the Press Secretary, Fact Sheet, The Biological Weapons Convention , 27 January 1998, Washington D.C. ] A fact sheet issued by the White House on the same day laid out the rough outlines of a new U.S. policy in the negotiations for a protocol to strengthen the effectiveness of the BWC. [ Ibid.] The U.S. policy would support four broad provisions:

  1. Declarations of „facilities and/or activities that are especially suited for possible BW purposes";
  2. Voluntary Visits to facilities declared under no. 1 above;
  3. Non-Challenge Visits to clarify an ambiguity, uncertainty, anomaly, omission, or other issues related to declarations; and
  4. Challenge Investigations if there is evidence of noncompliance, subject to a filter allowing them to proceed only if a majority of the governing body approved.

The fact sheet also set the end of 1998 as a goal for completing the framework of the protocol.

Declarations

An October 1998 working paper of the U.S. delegation to the AHG elaborated the activities and facilities the United States proposed be declared in the category of „Current Biological Defense". [ BWC/AD HOC GROUP/WP.319.] Its working paper included a proposal for declarations of:

  • Whether a country has conducted activities that directly protect or directly defend humans, animals, or plants against the use of agents or toxins for hostile purposes or in armed conflict (requiring a yes or no answer).

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  • If the first point is yes, a declaration of research and development activities, including the purpose and a summary of activities on prophylaxis (protection against an agent), pathogenicity and virulence (ways to make an agent more or less harmful), diagnostic techniques, aerobiology (ways to disperse an agent through the air), medical treatment, or toxinology/toxicology.
  • Government and non-government facilities where such activities have taken place, if they are above a certain scale, measured in person-years of staff effort.
  • If fewer than a certain number facilities met the scale criteria, the country would still need to declare general information about some facilities.

The paper also includes a minimum declaration requirement. In other words, if a country declares that it has conducted any defense activities it must declare those of the greatest scale; if it has only conducted small-scale activities it must declare those.

The concern of the U.S. government that led to the formulation of this working paper appears to be threefold. First, the United States believes that its declarations will come under close scrutiny. Therefore, it wants to be certain that it can fulfill its declaration obligations completely and accurately. Second, the United States wants the organization that implements the protocol to concentrate on the facilities of greatest relevance. It does not want the organization to be overwhelmed by a large volume of declarations of small, not particularly relevant, facilities, many (if not most) of which would be located in the United States. Third, it does not want a country that has a BW defensive program, however small, to be entirely exempt from declaring information about its program. In addition, the United States may want to limit intrusion into its own defense facilities, particularly those that may conduct a combination of biological defense activities and sensitive activities unrelated to biological defense. [ This interpretation of the U.S. position is, understandably, not one that is presented by the U.S. government. Nevertheless, it can be inferred from the stated U.S. position. ]

In light of these concerns, the U.S. proposal is an attempt to require declaration of the largest - which would be a proxy for most relevant - defensive facilities in every country that has a program. In effect this declaration provision would exempt countries that have lots of different kinds of biological defensive activities from declaring their small-scale activities, but would require countries that conducted only small-scale activities to declare them.

The advantage of this requirement is that it would limit the amount of declaration information that the BWC organization would have to handle. The disadvantage is that identical programs would be subject to declaration in some states but not others. Moreover, the full-time employee (FTE) proxy for most relevant facilities could be manipulated. The amount of time someone spends on a project, which is usually self-reported, could easily be exaggerated or downplayed. Moreover, the most relevant defensive programs could be very secret, small-scale research programs that employ few FTEs. A calculating country could very well construct a larger-scale defensive program in order to shield its most relevant programs from declaration. Thus, it appears that the U.S. emphasis is on its own declaration obligations rather than on the nonproliferation effect of its proposals.

Although the United States has not spelled out its position on the full scale of facilities and activities that ought to be declared, the absence of commentary implies that the „Rolling Text" (April 1999), which is used as the basis for negotiations [ BWC/AD HOC GROUP/45 14 April 1999. Hereinafter cited as „Rolling Text".] is more or less acceptable. The text contains 15 pages describing the facilities and activities that would be declared under

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a protocol. The following summary, therefore, is a very broad description. Declaration requirements are divided into an initial declaration and annual declarations thereafter. The annual declaration is further divided into

  • declarations of facilities that meet specific criteria, and
  • certain other activities.

The initial declaration would require declaration of offensive and/or defensive programs that existed in the past, and any national legislation and regulations concerning pathogens and toxins. Annual facility declarations would be required for programs to defend against BW, vaccine production facilities, maximum and high containment facilities, facilities that work with listed agents or toxins, certain other facilities producing products relevant to the convention, and facilities with aerosol capacities or those conducting certain modifications of agents or toxins. The activities portion of the annual declaration would include transfers of listed agents, toxins and certain equipment, actions taken to implement Article X of the convention, and notifications of disease outbreaks that meet certain criteria.

Once all declarable facilities and activities are accurately specified (triggered), the question of what specific information about these facilities and activities should be declared remains. Again, the U.S. position is not explicitly put forward in a working paper. However, there are disagreements regarding the degree of detail about a facility that should be declared. Detailed declarations of a facility’s activities and equipment would strengthen confidence in compliance, increase transparency, and deter countries from concealing prohibited activities within facilities also conducting legitimate activities better than would more general declarations. On the other hand, detailed declarations would likely be more prone to errors leading to uncertainties, anomalies, ambiguities, or omissions that could lead to the need for a clarification process (discussed herein).

Beyond the concerns about which facilities and activities will be declared and what information about these facilities and activities will be declared, the United States wants the protocol to include „means to ensure that all sites whose activities merit declaration are in fact declared, and that the declarations are accurate." [ Assistant Secretary of State for Arms Control and International Security Affairs John Holum, quoted in „Text: Holum calls for completion of BWC Protocol in 1999", USIS Washington File, 6 October 1998.] The U.S. government proposed that declaration accuracy could be accomplished through a clarification process that could include on-site visits.

Visits

The United States elaborated its position in support of clarification visits in a working paper that describes a multi-step clarification process. [ „Proposed Elements of Clarification Visits", Working Paper submitted by the United States, BWC/AD HOC GROUP/WP.294, 9 July 1998.] The first step would be to resolve the issue arising from the declaration through correspondence between the BWC organization and the affected party or between two state parties. The second step would be a meeting in the national capital of the state party whose declarations are of concern. Only if these two steps were unable to resolve the issue could a request for a clarification visit to the facility in question be initiated. As a consequence, several months could elapse between the initial identification of an ambiguity, uncertainty, anomaly, or omission in a declaration and the arrival of a visiting team on site.

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The U.S. position paper on clarification visits applies to both declared facilities and facilities that should have been declared but were not. The latter would constitute omissions in declarations. [ The term „undeclared facilities" could have the connotation of all relevant facilities that have not been declared under the protocol. In contrast, in this paper the term „undeclared facilities" refers specifically to those facilities that meet the requirements for declaration under the BWC protocol and, therefore, should have been declared but have not.] The U.S.-proposed elements for visits to the two types of facilities share some features:

  • there would be no annual quotas or limits on the number of clarification visits;
  • managed access procedures would be used;
  • sampling would be prohibited;
  • there would be limits on the duration of the visit and the size of the visiting team;
  • the mandate would be signed by the director general and would be limited to clarifying the specific declaration issue or omission; and,
  • the visiting team would prepare a factual summary and the state party visited could comment on the summary.

The United States proposed a few important differences between clarification visits to declared and undeclared facilities. First, only the Technical Secretariat could initiate the clarification process for declared facilities, while the Secretariat or a state party could initiate the process for an omission in a declaration. Second, the clarification visit would proceed presumably automatically to a declared facility if the previous consultations did not resolve the issue, while a clarification to a facility that was not declared would be subject to a filter - a red-light silence procedure of the Executive Council. [ A number of proposed changes have been made to the portion of the rolling text concerning clarification visits since the United States introduced its working paper in July 1998. For example, under the U.S. proposal, the Technical Secretariat of the BWC organization would initiate the clarification process if it identified an uncertainty, ambiguity, anomaly, or omission in a state party’s declaration. That has been changed such that a state party or the Technical Secretariat may initiate the process. Second, the U.S. proposal set no limits on the number of clarification visits. The January 1999 rolling text contained a proposal to limit the total number of clarification visits to 20 in one year, with no more than two visits to any state party. The language limiting the number of clarification visits, however, does not appear in the April 1999 rolling text. Third, in the U.S. proposal, clarification visits to declared facilities would occur automatically, that is, without going through any type of political process in the Executive Council of the BWC organization. Current responses to a request for a clarification visit, which would follow written attempts to resolve the issues and a consultative meeting, include an invitation to visit, a refusal to be visited, and a request that the Executive Council review the request as a matter of procedure.] Proponents of clarification visits argue that the process could resolve questions about declarations at a low political level. Despite recent rumors to the contrary, the United States continues to support the clarification process, including on-site visits. [ Conversation with a U.S. government official, 14 July 1999.]

The U.S. approach to ensuring that declarations are complete and accurate seems to incorporate a criminal justice model. Only if there is evidence of a failure to comply completely with protocol obligations, in the form of an ambiguity, uncertainty, anomaly, or omission in a declaration, will there be a procedure to look into the alleged breach of obligation. The consultation process could be considered comparable to questioning witnesses or possible suspects prior to an arrest. The proposed procedure in the Executive Council approving a visit is somewhat analogous to a requirement to find probable cause before issuing a warrant to conduct a search of premises that may reveal relevant information about a crime.

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A contrasting approach to ensure that declarations are complete and accurate, advocated by many outside of government in the United States, is to incorporate an Internal Revenue Service (IRS) [ The IRS collects U.S. federal income taxes. ] approach of random audits of declared information. Randomly selected visits could occur in a small number of facilities every year. These visits are not intended to be intrusive, and their purpose is analogous to IRS income tax audits to follow up on declarations and make sure that activities at a facility are consistent with declared information, thereby creating an incentive to submit complete and accurate declarations. [ Randomly selected visits are supported by a large number of delegations in the AHG. Their purpose would include enhancing transparency of declared facilities and activities and ensuring that the Technical Secretariat is familiar with and up to date on all the types of facilities and activities that are declared. An additional proposed purpose is to provide technical assistance and information, most likely associated with obligations under Article X of the treaty.] The two approaches are not mutually exclusive. If the IRS discovers that a taxpayer has not declared all of his income it can initiate what is similar to a clarification process. This clarification does not preclude the IRS from conducting an audit at a later time.

Another type of visit, „transparency visits", is under consideration by several countries. One putative proposal for transparency visits differs significantly from randomly selected visits. Most important, the purpose of a transparency visit would not be to confirm the accuracy of declaration information. Thus, there would be no standard to guide the inspectors on their visit. Second, the mandate of the visit would be different. In the case of randomly selected visits the mandate would be to confirm that activities at the selected facility are consistent with information submitted in the declaration. The mandate of transparency visits would be unrelated to declarations; it would be related to transparency and training inspectors (3 and 4 above.). It is unclear how the purposes of transparency and training inspectors would be translated into a clear and narrow visit mandate. Third, notice to the visited state party in a transparency visit might increase from the two to 10 days proposed for randomly selected visits to as long as 30 days. Fourth, access in transparency visits would be at the discretion of the visited state party, and the facility would be under no obligation to satisfy requests of the inspectors.

Consequently, transparency visits would not give inspectors any experience in using managed access techniques effectively. A thorough working knowledge of managed access techniques could prove critical in any investigation of alleged noncompliance. In contrast, randomly selected visits would carry managed access obligations for the visited state party. [ Random access includes an obligation to provide an alternative means for satisfying inspectors’ queries if the facility or the state party concludes that the original request for information would threaten confidential proprietary information, trade secrets, or national security.] Because of these differences, transparency visits would seem to be a poor substitute for randomly selected visits in their ability to control proliferation. All three visits would have the value of training inspectors and keeping them up to date and aware of practices in different countries. Supporters of transparency visits stress the importance of being on site, and asking questions of facility personnel, to achieve transparency.

Finally, while promoting accurate declarations is mentioned as a possible purpose of transparency visits, it is difficult to understand how this purpose could be achieved without a mandate for the inspectors to compare actual facility activities with declared information. Thus it appears that the greatest value of non-challenge visits (NCVs), to deter countries from placing prohibited activities under cover of declared facilities, would be compromised if the features of randomly selected visits were replaced with those envisioned for transparency visits. A recent proposal by the German delegation replaces randomly selected visits with

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transparency visits. [ Working Paper submitted by Germany, „Follow-up After Submission of Declarations", BWC/AD HOC GROUP/WP.380, 29 June 1999.] However, transparency visits in the German working paper do not have all of the features described above. The proposal leaves the language on purpose and mandate intact. Nevertheless, it is impossible to determine from the written proposal which of the bracketed portions of the purpose paragraph of the rolling text the German proposal supports, those related to confirming declarations, or those related to enhancing transparency and promoting declaration accuracy. [ The April 1999 rolling text on the purpose of randomly selected visits reads: [7. The Technical [Secretariat] [Body] shall conduct, in accordance with this Article and the detailed provisions contained in [Annex B], a limited number per year of randomly-selected visits, which shall be confidence-building in nature, to declared facilities. [These visits shall be conducted only to facilities with maximum containment level and to biodefence facilities as set out in Article II and Article III, section D.] The purpose of these visits shall be to confirm, in cooperation with the State Party to be visited, that declarations are consistent with the obligations under this Protocol, [to enhance transparency of declared facilities and activities, promote accuracy of declarations, [provide, as appropriate, technical assistance and information to the facility,] and to ensure that the Technical [Secretariat] [Body] acquires and retains a comprehensive and up-to-date understanding of the different types of facilities and activities declared globally].]] It is important to note the difference between confirming the accuracy of declarations that have already been made, and promoting accurate declarations in the future. Nor does the German proposal recommend changes to the notice to the states parties of up to 10 days. The proposal deletes all obligations of the SP to provide access to the visiting team (described above) and replaces it with the following language:

„On completion of the briefing and tour, the visiting team may ask questions about the briefing, the tour or the visited facility's declaration. In responding to the visiting team, the visited State Party and visited facility shall take into account the overall purpose of the visit and shall endeavour to be as transparent as possible, without prejudice to the right to protect commercial proprietary information and national security information and any obligations in force under national health, safety or other regulatory requirements."

In addition the proposal requires the facility to include specific information about declared activities in its briefing to inspectors. Thus, the proposal on the table in Geneva has not loosened the connection to previously declared information as much as earlier, unofficial proposals of transparency visits. It remains to be seen how other delegations will react to and possibly amend the German proposal. The key features of any NCVs remain undecided: purpose, mandate, length of notice, access obligations or lack thereof, right of refusal, and political filters. The combination of these features will likely determine the strength of NCVs’ role in deterring proliferation.

U.S. Industry Position

In conversations, U.S. government officials imply that their opposition to the salient features of randomly selected visits - to confirm declared information, with short notice, using managed access techniques and obligations - is based on the pharmaceutical industry’s opposition to non-challenge visits. Yet, PhRMA opposes all mandatory non-challenge visits, including clarification visits, which the U.S. government supports and, at least until recently, has actively promoted. Thus, the argument that the U.S. government cannot support randomly selected visits because U.S. industry opposes them is not convincing. It is an insufficient explanation, given their support of clarification visits in spite of PhRMA’s opposition to them.

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Indeed, although U.S. industry organizations oppose all but voluntary non-challenge visits, their opposition to clarification visits may be stronger than to randomly selected visits. [ As they are defined in the April 1999 rolling text.] PhRMA and BIO oppose clarification visits because they view them as a form of challenge investigation with a lower evidentiary burden for the country wishing to conduct the visit. PhRMA worries that the reputation of its member companies could suffer damage from a clarification visit. [ Letter from Alan F. Holmer, president of PhRMA, Carl B. Feldbaum, president of BIO, and Alexander S. Matthews, president and CEO of Animal Health Institute to Samuel R. Berger, assistant to the president for national security affairs, William M. Daley, secretary of commerce and John D. Holum, under secretary of state on 24 July 1998. Copy received from PhRMA representatives. ] Moreover, PhRMA appears to resent the U.S. government’s taking an active role to promote clarification visits.

PhRMA has changed its position since its first public statements. PhRMA at one time called for a two-thirds green-light filter for challenge investigations, but now supports a simple majority green-light procedure. Other changes in position may be forthcoming as the negotiations proceed. Moreover, while PhRMA is the official voice for its members, not all of them may share such a limited view of arms control. Nor does PhRMA speak for the entire industry that would be affected by the BWC protocol.

Executives from one biotechnology firm recently expressed strong support for a strengthened BWC and declared their willingness to submit to random inspections. Rejecting arguments that on-site measures in a BWC protocol „posed a special threat" to confidential information, they accepted the need for inspections and non-challenge visits. They stated:

„As representatives of an industry engaged in defensive programs, we consider such declarations and visits to be non-threatening and manageable. The risks of losing confidential business information, genetic material, or proprietary cultures, including the constant threat of corporate espionage, are the day-to-day concerns of industry. The specialized problems associated with a BTWC compliance regime should be easily managed." [ Thomas Monath, Lance Gordon, „Strengthening the Biological Weapons Convention", Science 282, November 20, 1998, p. 1423.]

PhRMA spokespersons convey a deep distrust of the U.S. government to implement the BWC protocol in a way that protects its members’ interest. That distrust goes back to the international inspection of a PhRMA company as part of the 1992 trilateral agreement between Russia, the United Kingdom, and the United States to conduct reciprocal inspections of facilities of concern. [ For an account of the trilateral inspections in the United States, see Amy E. Smithson, „Man Versus Microbe: The Negotiations to Strengthen the Biological Weapons Convention", in Biological Weapons Proliferation: Reasons for Concern, Courses of Action, Henry L. Stimson Center, Report No. 24, January 1998, pp.112-114.] In addition, according to PhRMA, the U.S. government has not always submitted accurate declarations under the annual confidence building measures adopted by BWC member states in 1986 and 1991. [ Iris Hunger, „Article V: Confidence Building Measures" in Strengthening the Biological Weapons Convention: Key Points for the Fourth Review Conference , ed. G. S. Pearson and M. R. Dando (Geneva: Quaker United Nations Office, 1996), pp.77-92.] The US government’s failure to submit its industry declaration required by the CWC has also added to the distrust. Consequently, PhRMA has supported provisions in the BWC protocol or through implementing legislation that would give decision-making power regarding access to the facility rather than to the state party.

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PhRMA has a strong ally in U.S. Secretary of Commerce William Daley. In a letter to Secretary of State Madeleine Albright, Commerce rejected the State Department’s apparent proposition to support transparency visits. Instead, Daley argued that transparency visits would „offer no national security benefits." [ Letter from William M. Daley, secretary of commerce to Madeleine K. Albright, secretary of state, dated 24 May 1999.] Positioning himself firmly in the first school of thought described above, Daley reaches this conclusion because inspections have „virtually no chance of discovering biological weapons activities." In the letter he does not indicate that he has even considered that there may be nonproliferation benefits to on-site visits.

Fighting Proliferation – Alternatives to Arms Control

To the extent that a portion of the U.S. community concerned with biological weapons proliferation remains skeptical of the potential success of arms control, they necessarily look to alternatives to, or ways to bolster, arms control. In the United States, export controls are generally considered a vital complement to arms control restrictions. Many in the United States emphasize export control connections to the BWC through the obligations of Article III, which bars the transfer of BW to any recipient whatsoever as well as agents, toxins, and equipment if the transferring party does not think they will be used for peaceful purposes. Thus the continued existence of the Australia Group - an informal group of countries that share intelligence information on BW and CW proliferation and coordinate export policies - receives strong support in the United States.

Secretary of the Navy Richard Danzig believes the United States must meet the BW threat by preparing to defend against it. He has listed a range of activities that would augment arms control:

  • the development and fielding of state-of-the-art biodetectors;
  • the creation and designation of selected military units with expertise in medical prophylaxis, hazard mitigation and decontamination;
  • investments in vaccine and antibiotic research, development and stockpiling;
  • refinement and acquisition of masks and improvements in air filtration systems to preclude infection via inhalation;
  • improved intelligence collection and analysis;
  • enhanced training; and
  • the development of doctrine regarding how to preempt and, when necessary, respond to a biological attack. [ Richard Danzig and Pamela B. Berkowsky, „Why Should We Be Concerned About Biological Warfare?" in Lederberg, ed., Biological Weapons: Limiting the Threat , p. 12.]

Other authors recommend similar measures to prepare domestically to minimize the effects of a BW attack. [ See Philip B. Heymann, Terrorism and America: A Commonsense Strategy for a Democratic Society ( Cambridge, Mass.: MIT Press, 1998) and Falkenrath, Newman, and Thayer, America’s Achilles Heel.] Indeed the United States is planning to spend substantial resources to help cities’ first responders to respond to BW. To the extent that these steps would reduce U.S. vulnerability to BW, they could play a role in a country’s decision to use BW or acquire it in the first place. But measures to limit the damage BW would wreak on U.S. citizens or soldiers would add little to the security of other countries that depend on international cooperation to reduce the BW threat.

Joshua Lederberg has recognized that other countries may be tempted to develop offensive BW programs:

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„As for the smaller and more marginal states, the United States should anticipate some ambivalence about forgoing weapons that might mitigate the overwhelming military power of a super-state. To enlist their unreserved cooperation in denying the use of BW, the United States should be far more proactive in mobilizing its health technology to stamp out rampant infectious disease globally." [ Lederberg, „Introduction", in Lederberg, ed., Biological Weapons, Limiting the Threat, p. 7.]

In recommending U.S. action to eradicate disease, Lederberg is suggesting a measure that could well fulfill the obligations under Article X of the BWC.

Conclusion

Toward the end of „Song of Myself" Walt Whitman, the quintessential American poet, writes, „Do I contradict myself? Well then I contradict myself, (I am large, I contain multitudes)." [ Walt Whitman, „Song of Myself", Stanza 51, Leaves of Grass (New York: Doubleday, Doran & Co. Inc, 1940), p. 101.] Such is the position within the United States on the role of arms control to prevent the proliferation of biological weapons. Most knowledgeable participants and observers of the efforts to strengthen the Biological Weapons Convention agree on a baseline of activities that could contribute to nonproliferation efforts. Nevertheless, to say there are differences of opinion within the U.S. government and between the government, industry, nongovernmental organizations, and individuals fails to convey the intense disagreement on the value of specific on-site measures, and on the likelihood that they will have any effect on states with a current or future interest in acquiring BW. The bitter debate in the United States on the wisdom of incorporating on-site measures that are familiar features of other arms control agreements continues to wage.

The support of the United States, as well as the United Kingdom and the Russian Federation as fellow depositaries of the BWC, would seem to be critical to completing the protocol, let alone its widespread ratification and effective implementation. Yet, the lack of consensus within the United States has hampered the government’s ability to develop a detailed position on the negotiations, much less provide reasoned leadership. The final outcome within the United States seems to be one of several possibilities. First, the negotiations in Geneva could move closer to consensus, and the United States could gradually lose its ability to fundamentally alter the negotiating text as it gathers more supporters. Second, the president could reiterate the importance of completing the BWC protocol in 2000 and resolve the interagency squabbling at a higher political level. Third, the negotiations could be prolonged until after a new administration takes over in January 2001. In that event, the attitude of the new administration toward arms control and the priority it places on arms control would be prime factors in determining the final contours of the U.S. government position. Which of these factors comes to pass depends on the political will of the president as well as the actions of other countries to accommodate the U.S. position or urge changes in it.

© Friedrich Ebert Stiftung | technical support | net edition fes-library | Februar 2000

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