Status quo or evolution: What next for the intersessional process of the Biological and Toxin Weapons Convention?

Abstract

Treaties are more than just pieces of paper. In order to fulfill the obligations set forth on paper, a vitalized process is created that can be affected both positively and negatively by the actions of those who are members and by the geopolitical context in which the treaty resides. It is the actions of those who are party to a treaty that largely determine the success or failure, as each member periodically examines whether the benefits of being part of the treaty outweigh any negative obligations and other costs. In 2001, the members of the Biological Weapons Convention (BWC) decided upon a series of intersessional meetings which, although instigated as a rescue operation from a series of major internal and external shocks, were judged as useful, and a second series was approved. In December, States Parties to the BWC will gather for a seventh time to review the operation of the treaty and make decisions about the next five years, including whether to approve a third series of annual meetings. But would a third series in its current format be for the good of the BWC? Would a third intersessional process support States Parties in their evaluation that they are better off as members of the BWC? By reviewing the origins of the intersessional process and providing an analysis of activities thus far, the author offers suggestions to be considered for organizing a third intersessional review process.

Over the past 20 years, the Biological Weapons Convention (BWC) has been exposed to massive shocks from the external geopolitical environment. Proven violations of the treaty, geopolitical transitions, changes in the sources of risk for biological weapons development and use, ¹ as well as rapid advances in relevant science and technology, have led some to say that the BWC is disconnected from the realities of biothreats (see Bolton, 2001, and Kellman, 2006). However, as none of the 163 States Parties to the BWC has withdrawn its membership, it can be assumed that each continues to believe that the benefits they enjoy as being party to this treaty outweigh any negative obligations and costs.

In 2002, reacting to internal discord, States Parties to the BWC agreed to an annual program of work to take place between 2003 and 2005 where topics pertinent to strengthening the treaty, excluding compliance verification, were to be discussed. Known as the intersessional process, these meetings, a second round of which took place between 2007 and 2010, have been regarded by States Parties as an unexpected success, contributing to a changed atmosphere that has healed past wounds. But, as we approach the seventh time that States Parties will come together to review the operation of the treaty, will a third work program, mandated along the same lines as the previous two, be good for the future health of the treaty? Will a third round of international discourse covering similar topics continue to be assessed positively or will it instead be seen as “tinkering around the edges … when real progress is politically difficult” (Robinson, 2009: 89)?

Born from conflict

Critical examination of the future must begin with an examination of history. November 14, 2002 can be considered as the official birth of the intersessional process. Like any birth, there was an element of pain involved. In this case, it was the collapse of negotiations to craft a legally binding protocol to strengthen the BWC, negotiations that had dominated the BWC calendar for more than seven years (1995–2001).

The effort collapsed, at least publicly, in a two-stage process in 2001. The first stage occurred in July, when the US delegation rejected the text that had been drafted by the chairman and announced that it could not support the approach of the protocol. Up until this point, it had been widely assumed by States Parties—and civil society observers—that the main task of the Fifth Review Conference in November and December would be to adopt the draft protocol. With that now not an option, States Parties demonstrated “constructive pragmatism” by adopting a strategy that aimed for a final declaration but that “somehow kept options open on … the Protocol, while establishing some interim follow-up activities to fill the gap in the meantime” (Lennane, 2006: 9).

The second stage of collapse occurred on the afternoon of the final day of the Fifth Review Conference in December, when the US delegation circulated a proposal for follow-up activities that included explicit termination of the mandate of the group that was negotiating the legally binding protocol. ² The immediate reaction was described:

Suddenly, the conference room erupted. Flags flew up, junior diplomats scurried to retrieve their ambassadors from the coffee lounge, indignant delegates expressed their astonishment and dismay. Tempers flared, accusations of betrayal and treachery flew back and forth, distinguished heads of delegations, faces purple with rage, bellowed at each other nose to nose. Aggrieved spokespeople lectured startled journalists, or anyone else who would listen. Nobody actually banged a shoe on the table, but for the normally placid world of multilateral disarmament meetings, it was quite a show. (Lennane, 2006: 5)

Following a year’s respite, the president of the review conference presented States Parties with a non-negotiable package of follow-up activities. The package, which was eventually adopted, established the first intersessional process in which States Parties agreed to meet for one week each year between 2003 and 2005 to discuss and promote common understanding and effective action on national implementation, security, and oversight of pathogenic micro-organisms and toxins; international capabilities for responding to cases of alleged use; disease surveillance, detection, and diagnosis; and codes of conduct for scientists. Each of these meetings was to be preceded by a two-week meeting of experts that would prepare a factual report describing their work. Both types of meetings were to reach any conclusions or results by consensus, and an assessment of the process, including decisions regarding further action, would occur in 2006 during the Sixth Review Conference (Fifth Review Conference Final Document, 2002).

When that conference did perform a somewhat limited assessment, the process was regarded by States Parties as being useful and they agreed that a second intersessional program would take place between 2007 and 2010. Adopting the same mandate, this work program included topics previously discussed that would benefit from an additional round of discussion (national implementation, biosafety and biosecurity, codes of conduct) and new topics (international cooperation, technological exchange and capacity building to counter infectious diseases, outreach and education, and assistance and preparedness in the case of biological weapons use). Each of these meetings would again be preceded by a meeting of experts, which was now to last one week, and again, assessment of the work and further decisions would be considered at the Seventh Review Conference in 2011 (Sixth Review Conference Final Document, 2006). ³

One important additional decision made at the Sixth Review Conference was the establishment of an Implementation Support Unit that would provide, among other things, administrative support to these intersessional meetings.

Out of the valley

Despite an inauspicious birth, the first and second intersessional processes have assisted in leading States Parties out of the “metaphorical valley” they were in following the collapse of the protocol negotiations in 2001 (Littlewood, 2007: 15). In particular, the process has helped restore harmony between States Parties, revitalized the atmosphere, opened channels of communication, and helped “develop a renewed sense of ownership of the Convention” (France and the UK, 2006: 2). The meetings have also helped create a much-needed new governance space with an inclusiveness that is more appropriate to the challenges posed by the potential for misuse of the life sciences (McLeish and Feakes, 2008). A number of national delegations, for example, now include officials from government ministries such as health, the interior, and the environment, and agencies such as health and safety and law enforcement. However, the inclusive approach goes beyond national delegations: international organizations, such as the World Health Organization, the Food and Agriculture Organization, and the World Organisation for Animal Health, now regularly attend meetings, as do representatives from the BWC’s sister convention for chemical weapons. And in part because of the topics chosen, the intersessional process has permitted a space for active involvement by private industry, including trade associations, the scientific community—most often in the form of representatives from national academies of science—nongovernmental organizations, and other civil society actors.

Innovative work practices have also been developed as a result of the intersessional process: International organizations like those listed above are now permitted to make statements to formal sessions of the meetings, and a similar opportunity is offered to nongovernmental organizations. Expert industry and nongovernmental panels have been convened and nongovernmental experts have, on occasion, been invited to act as “Guests of the Meeting.” Other innovations include webcasting the BWC meetings, poster sessions to focus on ancillary issues, and “speed networking” sessions (Millet, 2010: 35).

These positives aside, the current format of the intersessional process is not without serious limitations. For example, topics for the intersessional meetings are currently determined at review conferences. For the first intersessional meetings, the five topics to be addressed over three meetings between 2003 and 2005 were presented as part of the non-negotiable package that initiated the process; and for the second intersessional meetings, the six topics to be addressed in the three meetings between 2007 and 2010 were decided through a negotiated process during the Sixth Review Conference. ⁴ Negotiation of a consensus agenda means topic selection becomes prey to politics, with states pushing and bargaining to add, remove, or ignore different topics depending on their political interests. One result of this can be that agendas are adopted that are too full and comprehensive. At the Sixth Review Conference, for example, the agenda required that two topics be addressed in 2008 and 2009. When this is considered in parallel with the reduction of the experts meetings to one week, one commentator noted that it meant that the consideration of each topic would be limited to about a day (once time was allowed for the opening of the meeting of experts and for agreement on the report of the meeting) (Pearson, 2006). A further consequence of a review conference adopting a full agenda and pre-assigning discussion dates is that States Parties are prevented from revisiting topics already discussed or introducing new topics that have come up since the negotiation of the consensus agenda.

Another limitation of the current intersessional process is the expectation that no binding decisions are to be made until the review conference. Commentators noted this limitation when the current mandate was first formulated in 2002 (see Littlewood, 2005; Pearson and Sims, 2005; Sims, 2003; Tucker, 2004). One commentator, for example, noted that the current mandate means any understandings reached at the annual meetings have no legal basis unless their respective review conferences incorporate them into their final declarations (Tucker, 2004). However, the Geneva Forum (2006: 9) noted in its assessment of the first intersessional process that “the lack of pressure to agree on binding decisions kept the intersessional meetings focussed on the substance of the topics at hand … [and] tended to reduce any polarization of views, contributing to an atmosphere of collegial collaboration.” Nevertheless, the inability of the meetings to make decisions has led to the recent criticism that it has “degenerated into nothing more than a talk shop” (Bansak, 2010)

Considerations for a third intersessional process

The usefulness of the first intersessional process has been widely recognized by States Parties in their statements, and it is likely that the second intersessional process will receive a similarly positive evaluation in December. The potential for a third series of intersessional meetings provides States Parties with an opportunity to evolve the process through re-examination of whether strictures imposed on the first and second processes remain beneficial to the aims of the process and to the health of the treaty as a whole. ⁵

The first area that might be re-examined relates to the current framing of the meetings. Even though the first and second intersessional meetings occurred on an annual basis and the final document of the Sixth Review Conference refers to “annual meetings,” the title “annual meeting” is not formally recognized, which has led to the meetings being self-contained events (Sims, 2010: 6). Not officially recognizing the meetings as annual events limits the potential to discuss certain longer-term issues central to the future health of the treaty. This small evolution would help further increase investment by States Parties and stakeholders in the intersessional process and open up the possibility for expanding the nature of the topics chosen for discussion, promotion of common understanding, and effective action.

In this regard, some form of negotiated agenda is not only necessary to gain support for a third intersessional process, but also pragmatic in ensuring that a balance of issue interests are addressed. However, a second area that States Parties might wish to re-examine is whether pre-selecting all topics for discussion would be beneficial for a third intersessional process. Various agenda models incorporating more flexibility into the meetings of the third intersessional process can be developed for consideration at the Seventh Review Conference. States Parties could, for example, agree to dedicate space in each annual meeting for “topics of the day” to be addressed or to revisit previous topics. How to fill this space could be decided the year before or used only when needed.

Another model to increase flexibility might be to organize the agenda of the next intersessional process around themes of critical importance in assuring the future health of the treaty. This would recognize and evolve the iterative approach already taken in the agenda of the second intersessional process. Potential themes are easily identifiable: universality; implementation; outreach and awareness-raising activities, especially regarding synergies with other organizations and processes; capacity building; and specific topics such as confidence-building measures and developments in science and technology. ⁶ Such topics require, and deserve, special attention from States Parties and would do much to help ensure the robustness of the treaty. In practice, themes could either be taken in turn or a single theme discussed per year. Several also lend themselves to the sort of action plans proposed during the Sixth Review Conference, including those for national implementation, universality, and Article X. ⁷

Potentially controversial, though of vital importance, would be to include historically more difficult themes such as compliance and verification of compliance. Given the BWC’s recent history, dedicating time to this topic would require courage from States Parties, but it is hard to conceive of a more important topic than this for the future health of the treaty. Indeed, not having the means to discuss compliance is likely to cause the sort of internal discord that is threatening to treaty health. This is because having confidence that all are complying with their obligations tips the balance when assessing the relative costs and benefits of being members of a treaty.

One way of introducing compliance as a theme for an intersessional process could be to have what Canada in 2006 proposed as an “accountability session” (Canada, 2006). The aim of these sessions would be to make States Parties accountable to each other in how they implement the provisions of the Convention. In practice, accountability sessions could be tailored in a variety of ways, for example accounting for actions related to issues such as national implementation, cooperation and assistance, confidence-building measures, and science and technology, taking each of these in turn, or accounting for actions via cross-cutting themes (see also Sims, 2009). However, it would be necessary to dedicate time for a conceptual discussion so that States Parties discuss and develop common understandings on how each uses the term “compliance” and “verification of compliance.” Doing this would assist in managing expectations, and would be essential for practical assessment of mechanisms such as confidence-building measures, consultation mechanisms for resolving concerns about implementation, and mechanisms available to investigate cases of alleged use, as well as any future discussions on whether new mechanisms are needed.

In line with the innovative work practices and inclusiveness thus far seen, a third intersessional process might be organized around differing tracks of activity according to the issue or topic. Some topics lend themselves to an action-orientated approach, in which progress can be reported back to the meetings; others lend themselves better to in-depth examination by special working groups or standing committees than to general debate. Such groups might be constituted of government experts, but to further develop the inclusive approach of the intersessional process and outreach to stakeholders, where appropriate, nongovernmental representatives from industry, science, and academia might also be engaged in the process.

If any of the above were to be considered for the third intersessional process, a third area that should be re-examined is the current mandate of the meetings, which presupposes that decisions cannot be made. Where consensus can be found, decisions should be allowed without having to wait for the Eighth Review Conference in 2016.

Given the circumstances and negative atmosphere that preceded the beginning of the intersessional process, it is understandable why a mandate for the first intersessional process—which allowed only for the production of factual reports of the meetings (later evolved to become the Chair’s Synthesis Paper of Considerations) to be sent to the Sixth Review Conference for consideration—was adopted. Equally, it is understandable that the need to actually review the operation of the treaty, a task not completed at the Fifth Review Conference in 2001, and the need to avoid open dispute and “a return to the ‘trench warfare’” (Khan, 2007: 14) meant the mandate continued for the 2007–2010 meetings. However, adopting a mandate which for a third time carries over the idea that decisions cannot be made is unlikely to be beneficial if States Parties wish to get serious about strengthening the BWC.

It should be noted that having the authority to make decisions does not necessarily mean that decisions will be made, nor indeed that every issue or topic requires a decision to be made. Any decision would, of course, need to be made by consensus and as Pearson (2006) notes, this ensures that there would be no sense in which meetings of States Parties are given a blank check. Just such a potential mandate was raised at the Sixth Review Conference in 2006 by a number of States Parties and again at the meeting of States Parties in 2010, but other states are less supportive of the idea. ⁸ As a result, reformulating the mandate to allow binding decisions would require some States Parties to leave their comfort zone and undertake necessary but ambitious steps toward strengthening the treaty.