Ambassador Mahley Gives Status Report on BWC Compliance Protocol
Testimony of Ambassador Donald A. Mahley
Special Negotiator for Chemical and Biological Arms Control
Department of State
Before the House Government Reform Committee
Subcommittee on National Security, Veterans Affairs
And International Relations
The Biological Weapons Convention: Status and Implications
September 13, 2000
Mr. Chairman, members of the subcommittee, I would like to express my
appreciation on behalf of the Secretary of State and the
Administration for this opportunity to appear before you. I understand
the purpose of this hearing is to gain additional insight on the
current negotiations pursuing a Compliance Protocol to the Biological
and Toxin Weapons Convention. As the United States Representative to
the negotiations, my testimony will focus on the state of the
negotiations, developments in Geneva, and the United States view of
the implications of those negotiations for national security and the
potential proliferation of biological weapons.
As a brief background, let me review the development of these
negotiations. You are familiar with the fact that the Biological and
Toxin Weapons Convention, commonly referred to as the BWC, entered
into force in 1975, and now has expanded to include 143 states as
parties to the Convention. The BWC is one of the few arms control
agreements having no verification or compliance provisions. In order
to review the functioning of the Convention, the States Parties
convene a Review Conference every five years. In the 1986 Review
Conference, the States Parties agreed that parties should submit, on
an annual basis, a series of declarations about certain
biologically-related activities in their respective countries. These
"confidence building measures", which were not legally binding, were
designed to provide additional confidence to all States Parties that
countries were not engaging in clandestine offensive biological
weapons development or production. The content of these measures was
expanded (or "enhanced") at the 1991 Review Conference.
By the time of the 1991 Review Conference, there was dissatisfaction
with the efficacy of the confidence building measures. Many countries
were not submitting annual reports. In fact, as of today, only some 75
States Parties have ever submitted an annual confidence building
measures report, even though all States Parties agreed to provide
"negative reports" when there were no activities. As a result of such
incomplete responses, at the 1991 Review Conference the States Parties
decided to undertake a more rigorous examination of potential ways to
strengthen the BWC.
The final document of the 1991 Review Conference established the "Ad
Hoc group of Governmental Experts" (later known by the nickname
"Verex") to explore potential measures to strengthen the BWC. This
group met frequently for over two years, and produced a report
containing 21 measures they recommended for further study as potential
mechanisms to strengthen the BWC.
In 1994, the States Parties convened a Special Conference to review
and accept the report of the Ad Hoc Group of Experts. The final
document of the Special Conference established a further group, the Ad
Hoc Group of States Parties to the Biological and Toxin Weapons
Convention, chartered to develop a legally binding addition to the BWC
(a Protocol) to strengthen confidence in compliance with the
That Ad Hoc Group has been meeting several times a year in Geneva
since 1995 in an effort to negotiate such a Protocol. I would note
that even though the negotiations have been spread over five years, if
we took the Conference on Disarmament schedule as a model, the total
time of active negotiation would amount to only two years in the
Conference on Disarmament. These are the negotiations that we are
providing a status report on today. I apologize for this detailed
history, but the lineage of the Ad Hoc Group is relevant to the nature
of the negotiations and the issues now outstanding in the draft
At the 1996 Review Conference of the BWC, the States Parties agreed as
part of the consensus final document to urge the Ad Hoc Group to
expedite its work. They set as a target date for completion of a
Protocol and its recommendation for adoption by all States Parties the
timing of "as soon as possible before the next Review Conference." The
Review Conference in question is scheduled for 2001, likely in
November. The impending arrival of the target date has had the effect,
as Mark Twain once observed in a different context, of "focusing the
minds" of the participants in the negotiations on prospects for
completing a Protocol in the remaining time.
As Secretary (of State Madeleine) Albright has informed key allied
counterparts, and as Under Secretary (of State John) Holum has told
the Ad Hoc Group, we still hope a satisfactory Protocol can be
achieved by the 2001 target date. Substantial progress has been made
in Geneva over the past year toward achieving this goal. But the
United States will not accept a Protocol that undermines rather than
strengthens national and international efforts to address the BW
There is much serious work still to be done. I will not try to catalog
all of the outstanding issues. However, some of the most crucial
-- How will on-site activities allow for the protection of both
national security information not connected to biological weapons
activity and commercial proprietary information of great intellectual
and financial value to our industry?
-- How will the Protocol protect the United States, with the largest
biodefense program in the world, from having to reveal either the
promising defensive capabilities we are exploring or the areas of
vulnerability where we have not yet been able to find appropriate
biodefense against a potential enemy?
-- How will the United States be able to continue to work with
like-minded states to stem the potential proliferation of biological
weapons capability to states of concern by reducing, or at least
complicating, their access to the equipment, technology, and materiel
that would most easily be misappropriated for illicit purposes?
These and other questions must be answered constructively for the
United States to be able to accept the outcome of the negotiations. At
the same time, answers that are constructive from our perspective may
be contrary to the wishes of other participants in the negotiations.
Thus, having made a lot of progress in the negotiations does not mean
we have reached a point where an "end game" is either present or on
the predictable horizon.
One of the things that makes progress in the negotiations
unpredictable is the unique nature of this effort when compared to the
other experiences usually cited as models for our work. A classic
example of an overstated parallel is with the Chemical Weapons
One of the levers available to forge a successful conclusion to the
Chemical Weapons Convention negotiations was the fact that the
Convention provided the legal basis for banning chemical weapons. This
was a valuable component of the overall Convention. In the biological
weapons case, the ban on such weapons is already in place, and has
been since 1975. This means that in the negotiating dynamic between
the states seeking greater security and the states seeking greater
access to technology and benefits, the security benefit is weakened.
Conversely, security costs associated with any protocol would also
differ The same pre-existing ban on BW reflected in the Convention
means there would be no forfeited military option by agreeing to a BWC
The a priori existence of the BWC complicates negotiating trade
restrictions against non-parties to the Protocol. In the Chemical
Weapons Convention, trade with non-parties in Schedule 2 chemicals was
deliberately prohibited three years after entry into force. This was
done in part to provide an economic incentive for states to join the
There are states proposing a like ban on trade in some biological
technology, equipment, and materiel with those states that choose not
to become parties to the Protocol. However, only States Parties to the
BWC are eligible to become parties to the Protocol. Thus, all the
future parties to the Protocol will previously have undertaken the
obligations of the BWC, including those in Article X of that
Convention. Article X says that you shall implement the Convention in
a fashion to "...avoid hampering the economic or technological
development of States Parties to the Convention .... "
An outright ban on trade in some biological commodities against other
states that are party to the Convention but not to the Protocol would
thus contradict the Article X obligation in the BWC. We can debate the
utility of such an incentive tool. However, it is simply not available
in this instance.
The Chemical Weapons Convention is also frequently cited as a parallel
because of its provisions to protect proprietary information during on
site-activities at commercial installations. However, the nature of
proprietary information is very different between the chemical and
biological industries. Some entities, including both states and
non-government organizations, argue that the success of the Chemical
Weapons Convention and the relatively straightforward procedures used
to protect industry interests there means that biological firms are
equally safe from damaging disclosure under any BWC Protocol regime.
In one sense, there is an accurate parallel between the Chemical
Weapons Convention and the draft BWC Protocol. That is the principle
of "managed access." This principle is the concept that national
security or proprietary information rightfully can be protected during
an on-site activity, by devising alternative methods to those
requested by members of the international organization to answer any
questions they ask. However, application of the principle is very
different between chemistry and biology. While proprietary or national
security concerns have proven to be relatively localized and
manageable in Chemical Weapons Convention inspections, there is
legitimate concern that managed access could be much more complicated
to apply in the context of activity at a biological facility, and thus
while being useful, would not necessarily provide the level of
security we require.
To supplement managed access, the United States is seeking other
provisions to the Protocol to add protection. These include tightly
crafted declaration language, provision for a majority vote in the
international organization before a clarification visit or
investigation could be authorized, timelines to allow thorough
preparation of a facility in advance of a visit or investigation, and
far less intrusive activities in any non-challenge visit.
I would only point out a few fairly simple differences.
-- The most sensitive proprietary elements of chemical processes
frequently are temperature, pressure, duration, and proprietary
catalysts to improve the reactions. The relevant interaction of
corrosive chemicals takes place inside opaque reactor vessels. Thus,
by concealing the computer monitoring screens and controlling
sampling, the proprietary values can be protected. In biology, the
very configuration of the operation or the kind of media being used to
stimulate activity is frequently proprietary, and much more difficult
-- In chemical reactions, it is reasonably straightforward to do mass
balancing equations to demonstrate what reactions are being carried
out. In biology, given the living nature of some of the activity, such
input-output balancing is not sufficient to demonstrate the nature of
the intermediate activity.
-- A sample of a chemical product will only confirm that which has
already been stated -- what the product is. In biology, even a small
process or proprietary organism sample could well reveal not only what
the product is, but the proprietary process from which it was
These difficulties do not mean that managed access can not be used
successfully during BWC Protocol on-site activities, or that we have
not learned several useful lessons from previous negotiations to guide
work on the BWC Protocol. However, the nature of biotechnology will
complicate employment of managed access provisions.
In the Chemical Weapons Convention negotiations and PrepCom, a great
deal of effort was devoted to making declarations as unambiguous as
possible. Despite those efforts, it has required a great deal of
outreach work by the United States Government and the American
Chemical Council to make our own declarations as accurate as possible.
Even then we have not achieved total accuracy in the initial
declarations. Other countries have done an even less accurate job.
This result puts severe pressure on the task of drafting declarations
for the BWC Protocol. The correspondence of information provided by
declarations to unique capability for biological weapons work is more
dubious. Thus, we have tried to focus on the most relevant activity
for declaration. However, a much wider variety of activities could
become part of a BW capability. A much smaller magnitude of activity
is required to reach a militarily significant capability.
At the same time, since there are legitimate activities involving the
same kind of actions and even the same materials, the issue of
compliance hinges largely on intent. This means that accusations could
require addressing the issue of "things not being done." You recognize
the logical difficulty which proving such a negative premise entails.
All of this means that the U.S. and the Ad Hoc Group face a real
challenge to develop a set of declaration requirements that will be
-- relevant to possible proliferation activity;
-- unambiguous enough to be accurately declared by both U.S.
government facilities and commercial facilities;
-- widely enough located in the world to provide access to countries
-- not overly burdensome on U.S. activities or unbalanced, either from
a commercial or security perspective;
-- free from the political complication of leaving unanswered
questions that could impair the ethical reputation of U.S. facilities.
I have outlined a number of remaining issues and obstacles to reaching
a useful agreement in Geneva. I do not wish to convey the impression
that there is no potential benefit from a satisfactory Protocol, nor
that it is a hopeless technical problem. It is extraordinarily
difficult, but that makes it a worthy challenge.
First of all, this is not an issue of verification. As you know, the
United States has substantive requirements for attributing effective
verifiability to a treaty. it involves being able to make a judgment
of high confidence in detecting a violation before it can become a
militarily significant threat. I have already noted that a small
program can become a threat. Likewise, the inherent "cover" for an
illicit program in legitimate activity makes differentiation much more
imprecise. The United States has never, therefore, judged that the
Protocol would produce what is to us an effectively verifiable BWC.
There is, however, real value in increasing the transparency
associated with biological activity. What we have sought in the
negotiations is greater transparency into the dual-capable activities
and facilities that could be misdirected for BW purposes. This could,
in our view, complicate the efforts of countries to cheat on their BWC
Let me be clear -- the United States already faces a BW proliferation
problem. Our objective for a Protocol is to enable us to gain more
information about and insight into activities of potential concern.
The United States believes investigations are one of the most
essential elements of a BWC transparency regime. Actually talking to
scientists and production workers on the ground, as well as observing
the atmospherics at a facility, are ways for experienced observers to
detect anomalies. One can never discount either the "whistleblower"
prospect of an employee or the ineptitude of a cover-up of an illicit
activity. While there is no way to judge the likelihood of such an
outcome, the deterrence component is useful since it complicates the
life of a potential proliferator.
The obverse of the previous proposition is the issue of impact on
United States installations and firms from the same kind of on-site
activity. The differences between chemical and biological
technologies, as well as the different challenges in defining total
prohibition of chemical weapons in the Chemical Weapons Convention
vice the prohibition of only offensive BW activity in the BWC remain
relevant. However, there are some principles learned in the Chemical
Weapons Convention that inform the procedures we are negotiating for
the BWC Protocol.
The principle of managed access, we believe, can effectively prevent
loss of national security or proprietary information, while still
allowing U.S. installations to demonstrate the benign nature of their
activities. With respect to private sector installations, I would like
to assure the committee that the executive branch is fully cognizant
of our responsibility to be a supportive interlocutor with the
international organization conducting on-site activity.
The Chemical Weapons Convention inspections already conducted on both
Department of Defense facilities and at commercial firms have thus far
demonstrated our ability to fulfill the obligations of the Chemical
Weapons Convention without sacrificing sensitive national security or
commercial proprietary information. We are using the lessons and
experience learned to explore ways to achieve an equal level of
protection in biological activities, and we are confident we can do so
by the time any BWC Protocol is in place.
The advantage United States installations possess is that we have a
good story to tell. Our commercial firms are actively engaged in
researching, developing, and producing products that benefit mankind.
Our defense installations are pursuing ways to detect biological
weapons early enough to minimize their impact and to protect our armed
forces and civilian population in the event of a biological weapons
attack. We believe, if the declaration requirements and on-site access
provisions are properly crafted, it is possible to portray those
efforts completely enough to satisfy any on-site interrogator while
still protecting the sensitive elements of the activity. Thus, the
impact on U.S. facilities should be manageable, while the value of
on-site activity in other countries to transparency and our BW
nonproliferation efforts is real.
This statement has attempted to address the specific topics raised by
the committee, as well as to provide a general picture of the current
negotiations. I would be happy to answer any questions.