Days of Future Past

Russia proposed to return to negotiations on a legally binding protocol to strengthen treaty implementation at the Meeting of Experts of the Biological and Toxin Weapons Convention (BTWC), which was held in Geneva from 4–8 August. Its informal note discusses the creation of an international body, the Organisation for the Prohibition of Biological Weapons (OPBW). It also tackles two frustrations prevalent among states parties: the convention’s institutional deficit and the lack of any progress in the so-called intersessional process—a series of annual Meetings of Experts (MX) during the summer followed by Meetings of States Parties (MSP) in December in between the quinquennial review conferences.

This posting offers an initial assessment of the proposal and reflects on whether returning to a future that existed in the past could actually propel the BTWC forward.

 A skilful building of anticipation

Last May the Russian Foreign Ministry sent out a brief questionnaire asking states parties whether they are in favour of a legally binding protocol based on the mandate agreed for the Ad Hoc Group (AHG) at the 1994 Special Conference, even if not all BTWC parties were to sign up to the document. The questionnaire offered four possible replies, an unconditional yes or no, a yes with certain conditions, or a no, which might shift to a yes depending on circumstances.

Russia’s opening statement to the MX on 4 August summarised the results:

As of late July, we have received replies—written and verbal—from 28 States Parties: Belarus, India, United States, Brazil, Iraq, Cuba, Pakistan, China, New Zealand, Algeria, Cyprus, Rwanda, Switzerland, Saint Lucia, Australia, Latvia, South Africa, Peru, Malaysia, Republic of Korea, Lebanon, Mexico, Cambodia, Estonia, Colombia, Sweden, United Kingdom, and Lithuania. Of them only three replies contain a negative answer. Other States Parties have not sent in negative answers while many have clearly spoken in favour of resuming negotiations.

Twenty-eight (29, if we may assume that Russia favours its own proposal) out of a total of 170 states parties represents a response rate of about 17%. As only three states checked the unreserved ‘no’, we must therefore assume that Russia interprets the other three possible answers (including the ‘no, but …’) to varying degrees as endorsements. It seems to treat the silence from the majority of states parties likewise.

In all fairness, Russia did not attempt a statistically sound survey. The questionnaire, followed by the opening statement, cunningly built anticipation to the full presentation of ideas at a side event on the second day of the MX. Russia’s opening statement also promised a further exchange of ideas during December’s MSP.

For sure, Moscow’s gambit caught the attention of the delegates. Even opponents of the proposal realise that the discussion will not fade away before the 2016 Review Conference.

 Analysis of the proposal

Russia’s proposal stands on three legs: (1) foundation in the 1994 negotiation mandate, (2) selective adoption of elements once considered by the AHG, including the establishment of an OPBW as implementing agency; and (3) flexibility about the issues that can be considered under the future ‘legally binding protocol’ chapeau. In its current state of conceptualisation, the discussion note does not require all parties to the BTWC to sign up to the envisaged protocol. However, any benefits resulting from the pooling of resources would be shared only among those who do. This raises a fourth element for analysis: the relationship of the proposed protocol to the BTWC and of the OPBW to the Implementation Support Unit (ISU).

Foundation in the 1994 negotiation mandate

Russia roots its proposal in the mandate given to the AHG by the Special Conference of States Parties in 1994. This mandate is still in effect despite the collapse of the AHG negotiations in the summer of 2001. In December of that year, an explicit last-hour effort by the United States to terminate the AHG mandate failed, but caused the 5th Review Conference to be suspended for one year. (The resumed 5th Review Conference adopted the framework for the first intersessional meetings in December 2002.) Russia furthermore argues that the ‘negotiation mandate’ contains ‘a lot of flexibility and does not presuppose the outcome of negotiations in terms of the shape of the future legally binding instrument’.

While it is unquestionably true that the outcome of future negotiations does not necessarily have to be predetermined by the past, the assertion that the 1994 Special Conference granted a negotiation mandate to the AHG is incorrect. Paragraph 36 of the Final Report of the Special Conference (p. 10) created the AHG with a view of considering ‘appropriate measures, including possible verification measures, and draft proposals to strengthen’ the BTWC. The AHG was to submit its report to all states parties for consideration at the 4th Review Conference or a later Special Conference (§38). It was actually the 4th Review Conference that after having considered the report submitted to it ‘encouraged’ the AHG ‘to review its method of work and to move to a negotiating format in order to fulfil its mandate’ (Final Document, p. 29).

This correction is of major significance to the prospects for success of the Russian initiative. The ‘negotiation mandate’ is not as clear-cut or open-ended as the proposal suggests. First, the establishment of the AHG in 1994 built on the work by an earlier Ad Hoc Group of Verification Experts (VEREX), which held four session in 1992 and 1993. The Special Conference had been called to further consider possible verification measures identified by VEREX. Paragraph 36 of the Final Report of the Special Conference outlined four important areas of work for the new AHG (but did not limit them to those four only) and curtailed the acceptable impact of measures the AHG might forward to states parties for further consideration. This was the framework for the AHG report to the 4th Review Conference. Second, to grant the negotiation mandate the 4th Review Conference took into consideration the AHG report. The article-by-article review section of the Final Document is speckled with references to the AHG report, indicating expectations and to a certain degree preferences for further development.

In summary, what now appears an attractive proposition  may actually become the object of heated debates before any discussion on substance. Furthermore, biology, biotechnology and their commercial applications have evolved considerably during the two decades since the Special Conference. States parties would therefore even have to review the VEREX recommendations that served as starting point for the AHG. Expectations from verification have evolved, new stakeholders have emerged on the scene, and novel technologies and processes can be applied to enhance transparency and confidence in compliance.

Selective adoption of elements considered by the AHG

The mischaracterisation of the AHG’s mandate need not necessarily frustrate Russia’s ambitions, because the proposal excludes the most contentious topic from consideration: verification, and its associated concepts of routine and challenge inspections. This leaves two domains in the 1994 AHG mandate for future consideration: enhancement of confidence building and transparency (if viewed in the context of confidence-building measures (CBMs) and national implementation), and implementation of Article X of the BTWC (on international cooperation, technology transfers and scientific exchanges for peaceful purposes). A third domain has limited bearing on this discussion, because definitions and criteria serve the verification modalities. The two broad issue areas that Moscow proposes for the future protocol discussions unsurprisingly also feature among the intersessional themes selected over the past 10 years.

Despite the call to use the 1994 mandate as starting point, the discussion note repeatedly reminds the reader of the draft protocol under consideration by the AHG. It is not just the sprinkling of certain terminology (which was unavoidable in order to kindle interest among certain members of the Non-Aligned Movement, NAM), but also the references to an international organisation, which in the late 1990s people informally referred to as the OPBW (after the Organisation for the Prohibition of Chemical Weapons, or OPCW). One concrete element drawn from the draft protocol is the Cooperation Committee, which was an organ envisaged to focus on Article X implementation. Other roles proposed for the OPBW are investigations of alleged BW use, the maintenance of capacity to assist with investigations of suspicious disease outbreaks, and the administration of assistance and protection against BW. It would also assume administrative responsibilities of the current ISU (see below). As in the 1990s, the OPCW still serves as an example. A Conference of States Parties and an Executive Council would make up the key decision making bodies, while an equivalent of the OPCW’s Scientific Advisory Board would monitor and report on science and technology developments.

The deliberate omission of verification machinery makes for a strange, if not awkward institutional set up. In many respects, the proposed OPBW would be an enhanced and enlarged ISU, weighted towards international cooperation and assistance (which make up a single division within the OPCW) and supplemented with networks of certified laboratories and qualified national experts to be called upon for investigations.

Furthermore, proposed investigations of alleged use or suspicious outbreaks of disease are initiated by the affected state party and conducted on its territory only. Although the Russian note does not clarify the procedure’s relationship to the UN Secretary-General’s mechanism to investigate alleged use of chemical and biological weapons (which was used last year following repeated allegations of chemical warfare in Syria), the proposal not only appears a considerably weaker version of that mechanism, it also risks undermining it. Under the UN Secretary-General’s mechanism, any state can request an investigation of alleged use within the borders of another state. This is of particular importance if the site of the incident is no longer under government control or in internal wars involving insurgent forces.

The OPBW, as proposed, could never acquire the OPCW’s high level of competence and expertise with regard to investigations, if only because of the absence of systematic, advanced training of an international (rather than multinational) inspectorate. Two key ingredients of the OPCW’s effectiveness in supporting the UN Secretary-General’s mechanism and its own investigations after Syria became a party to the Chemical Weapons Convention (CWC) are the development and adherence of its staff to rigorous operational procedures and the maintenance of an autonomous internal chain of command. Both aspects have contributed significantly to the integrity of the investigations and findings.

Flexibility about topics

Russia honed its proposal carefully to avoid death on delivery. Conscious of political pitfalls, the note omits those elements, such as verification, that would have run into an unreserved American no. At the same time it lists a set of issues important to the West under discussion in the intersessional meetings. And it caters to the desire of developing countries to enhance international cooperation for peaceful purposes. Here too, however, Moscow inserted elements the West is happy to promote, such as preventing, detecting and responding to disease outbreaks, or building capacity in biorisk management. The OPBW would be constructed around those tasks. Perhaps the greatest surprise in the note is the relative emphasis on investigations of alleged use of biological weapons and toxins, and of suspicious outbreaks of disease.

During his presentation, the Russian delegate insisted several times that generation of the broadest possible appeal was a key consideration in the crafting of the note. When questioned about whether he considered particular issues riper for negotiation or the possibility of a modular approach to strengthening the BTWC, he responded that the proposed package can be changed and that other elements can be added to it.

Relationship between BTWC and Protocol

Two sentences in the Russian discussion note point to the envisaged relationship between the BTWC and the proposed protocol, and as a natural consequence, between the ISU and the OPBW:

One of the advantages of such an approach to the Protocol is that it does not require all States Parties to become Parties to it. This Protocol will constitute a pooling of resources for mutually beneficial aims for states that choose to become parties to it. (Emphasis added)

By presenting adhesion to the protocol as a voluntary choice and omitting a desire to universality, Moscow describes a problematic relationship between the disarmament treaty and the instrument that is supposed to strengthen it. First, it will create a two-tiered system of rights and obligations. For instance, would the resources and capacities to assist parties to the protocol in cases of emergencies be made available to all parties to the BTWC? If affirmative, how could a non-party to the protocol apply for such assistance? And, if such a mechanism were to be devised, where is the incentive for a party to the BTWC to sign up to the protocol?

Second, the proposal as it stands would create two separate disarmament regimes, each of which will tend to develop independently. Without information about the conditions that will trigger entry into force of the protocol (e.g., minimum number of BTWC states parties that must ratify it; minimum time to prepare for its entry into force, etc.), formulating sensible scenarios about the early stages of protocol development is difficult. History teaches us that the absence of particular countries during the first months after the CWC entered into force affected  the course plotted in the first meetings of the Conference of the States Parties. In other words, a protocol that is neither legally nor politically firmly bolted to the BTWC could quickly move along a different trajectory, cause confusion about obligations and compliance expectations, and undermine existing mechanisms (such as the UN Secretary-General’s tool to investigate alleged CBW use, or a different status of the CBMs under the respective treaty arrangements).

Similar questions about the relationship of the OPBW to the ISU abound. The Russian text specifies that the new international organisation serves the protocol only. As such the scenario does not assume that the OPBW will subsume the ISU, even if only as a subunit to serve the BTWC states parties who have not joined the protocol.

The ISU is, as its name indicates, an implementation support unit without an executive council or a conference of states parties. It is therefore not a source of decision making. If, as the Russian proposal suggests, the OPBW has autonomous decision-making bodies then an additional question arises about the relationship of their decisions and those taken by the community of states parties convening in review or special conferences. Who defines the contours of the decision-making capacity of the other body, lest that they—as mentioned earlier— embark on different trajectories?

The Russian discussion note does not indicate whether the OPBW would be embedded in the UN Office for Disarmament Affairs (UNODA) like the ISU, or whether it would be an independent organism outside of the UN structure like the OPCW. Assuming the latter preference, a real risk exists that an ISU serving only those BTWC parties that have not become a member of the OPBW will become orphaned. Indeed, would budget-conscious governments wish to pay for two different structures serving a single disarmament treaty?

 Political context of the proposal

Anybody vaguely familiar with the AHG negotiations knows that the USA remains adamantly opposed to any initiative that might revive the Protocol in whole or part. As a US  delegation member noted at one point during the MX, any legally binding agreement is out of the question. The V-word—verification—is absolutely taboo. An initiative at the 7th Review Conference (2011) to reflect on the meaning of ‘compliance’ and how states could demonstrate compliance proposed by Australia, Japan and New Zealand was stillborn. A follow-on move at the 2012 MSP—this time with the additional endorsements from Canada and Switzerland—sought to link reflection on ‘compliance’ to the current intersessional process’s standing agenda item on strengthening national implementation for 2013. General silence, a consequence of quiet US diplomatic pressure. When a Belgian delegate dared to make a vague reference to the concept at last year’s MSP, the US shot down the trial balloon faster than an Iron Dome interceptor.

A swelling chorus of frustration is meeting Washington’s obstinance, not just from some NAM members (who must score some cheap points without offering any alternative), but also increasingly from members of the Western European and Others Group (WEOG) and other friends. The Russian proposal taps into this dissatisfaction, but avoids the most obvious pitfalls. Upon deeper consideration, the anticipatory concessions to the USA and its allies are what is not included in the text, the benchmark being the Russian official’s comment in response to a question that Moscow’s basic position remains the full compliance protocol as it was under consideration more than a decade ago.

Even bearing this context in mind, the final section of the discussion remains an oddity. Instead of simply not listing what is not on offer, it explicitly draws attention to the absence of routine and challenge inspections as disadvantages, stating that they are ‘reflective of prevailing political realities’. The discussion note is the result of careful preparation over several months by the Russian Foreign Ministry. This diplomatic non-paper must have been approved by different government agencies and institutions. So the question must be posed whether any degree of intrusive verification is actually palatable to them? After all, Russia was not exactly the greatest champion of the draft protocol under negotiation in the AHG until it became clear that Washington was going to block the document. Several countries that offered (cautious) backing to the Russian initiative at the side event also flip-flopped in the spring of 2001.

Forward is the way to go

Moscow’s initiative will not vanish into thin air. Three scenarios could unfold, two of which are fraught with danger: the USA remains inflexible with regard to future options for the BTWC, the Russian text becomes the basis for reflection and future discussions, and the international community starts constructive thinking on options based on current and predictable realities.

An undercurrent pressuring for more substantive discussions on core disarmament elements has been rising since the 2011 Review Conference. The opening statements by multiple countries produced a tangible sense that lest the USA wants to avoid isolation, it might have to budge on issues such as compliance or enhanced transparency by 2016. With the Russian discussion note the dissatisfaction with the intersessional process in its current form broke the surface. States will have to react one way or another. If the USA were to refuse discussion on the points raised by Russia or stymie significant change in the selection of topics for the next intersessional process, it may block consensus on a variety of issues at the 8th Review Conference. A crisis not unlike the one in 2001 would definitely be among the possible outcomes. It would certainly saddle President Barack Obama with a legacy of failed Nobel Peace Prize laureate as he prepares to leave the White House.

The second scenario concerns the adoption of the Russian discussion note as basis for fresh discussions on a supplementary protocol and an OPBW. Here the biggest potential problem is Moscow’s stated willingness to consider additional topics. Parties to the BTWC can be expected to haggle to place preferred topics on the agenda. The net outcome would be that states either have to compromise on core positions to allow the start or continuation of negotiations. Or they refuse to make concessions, in which case the BTWC will be put back in limbo.

The third—and hopeful—scenario is that states reflect on their security expectations from the BTWC and  take the opportunity offered by the Russian initiative to reflect on new possibilities to enhance transparency and generate confidence in compliance, taking into account all the fresh opportunities offered by new technologies and past efforts to increase stakeholdership of many types of actors in the treaty.

The Russian proposal presents risks and offers opportunities. It is up to the states parties to seize the opportunities.

[Cross-posted from The Trench.]