COMPLIANCE MATTERS

Recent developments relating to compliance with multilateral treaties in the
area of disarmament and international security.

The newsletter of the Markland Group

Issue No. 18, October 2002

This newsletter was originally published as part of the Canadian Council on International Law Bulletin, Vol. 28, No. 2, Summer 2002.

In this Issue:

I. Regulating Scientific Research of Potential Relevance to Biological Warfare’, by Jonathan B. Tucker, Monterey Institute Occasional Paper No. 8, June 2002: Reviewed by Sean Howard

II. OPCW – Problems with Making Decisions: by Douglas Scott

I. Regulating Scientific Research of Potential Relevance to Biological Warfare’, by Jonathan B. Tucker, Monterey Institute Occasional Paper No. 8, June 2002

Reviewed by Sean Howard, Ph.D.*

Dr. Jonathan B. Tucker, Director of the Chemical and Biological Weapons Program at the Center for Nonproliferation Studies of the Monterey Institute of International Studies, has long been a prominent advocate of concerted international action to counter the threat of the proliferation and use of biological weapons (BW). In the Center’s Occasional Paper No. 8 (‘After 9/11: Preventing Mass-Destruction Terrorism and Weapons Proliferation’, Michael Barletta, ed., June 2002), Dr. Tucker identifies the need for a new international mechanism to regulate biotechnology research with potentially “direct offensive applications in biological warfare”. Having argued the case for such a mechanism, Tucker assesses the many objections likely to be raised against it.

Although a brief review cannot do justice to the paper, its basic premise can be simply stated: if research in such rapidly developing areas of biotechnology as genetic engineering and plant pathology proceeds in the absence of “prudential review” by “an international oversight regime”, there is a high risk of either the inadvertent or deliberate development of new types and variants of BW. While no regulatory mechanism can hope to provide watertight assurances against accident or subterfuge, an unregulated environment – or a patchwork of uneven national oversight systems – invites abuse and spurns the opportunity of intervention in ill-advised or inappropriate research.

But how to define such research? Lessons can, of course, be learnt from recent experiments. In 2001, to give an example cited by Tucker, an Australian project deploying genetic-modification techniques to develop a contraceptive vaccine for mice inadvertently led to the creation of a new, virulent strain of mousepox. Publication of such results can potentially serve as a spur to the deliberate production of new pathogens; the gene generating the mousepox variant, for example, interleukin-4, is common to humans, leading to speculation it could be deployed to trigger new strains of smallpox. But exactly what lessons should be drawn from the example? Should an oversight body be required, or have the option, to veto all similar research? Should it rather monitor such work, intervening in or terminating the project if necessary? Or, if similar experimental mistakes recur, should it prohibit publication of the results? Might not open reporting of such events prevent similar errors, or should the potential for wilful misapplication of the findings outweigh all other scruples?

Such technical considerations are, of course, also political. Who should run the new regime, and how should its performance be reviewed? How could the mechanism simultaneously allay the fears of developing world countries that it was simply another device to exclude them from the biotechnology sector, while respecting the importance attached by that sector to the commercial confidentiality of its research? Would the regime also seek to regulate state research into ‘biodefence’ against new BW? If so, why would the governments concerned agree to risk ‘showing their hand’ by divulging potentially valuable information, e.g. with regard to the effectiveness of existing or possible countermeasures? If not, what credibility would the new regime have when such a major area of advanced biotechnology fell outside its purview?

Tucker’s intent is not to provide answers so much as encourage his readers to address these questions. He does, however, outline the main features of any effective system of review, arguing for a commitment by participating governments to withhold funding or permission for “high-risk” projects until the research in question has been approved by an independent, international scientific oversight board. In particular, work involving “the cloning and transfer of toxic genes and virulence factors, and the developing of antibiotic- and vaccine-resistant strains of micro-organisms and genetically engineered toxins” would be subject to scrutiny. As an additional safeguard, Tucker proposes that the oversight board “establish anonymous web sites and other mechanisms to facilitate whistle blowing by scientists who suspect that a colleague is engaged in the development of pathogens for military purposes”. The paper also grasps the nettle of commercial confidentiality, concluding that “proprietary industrial information must not be exempt” from reporting requirements.

Given the power of the oversight board to prohibit, curtail and strictly monitor research, agreement on its scientific guidelines and operating procedures will doubtless be a matter of vexed and protracted negotiation. Tucker concludes: “The devil will be in the details: it will be extremely difficult to achieve consensus within the scientific community on any regulatory mechanism.” The merit of his paper is precisely in presenting such an honest account of the task ahead – and in his insistence that these difficulties be weighed against the huge dangers involved in not making the attempt.

II. OPCW – Problems with Making Decisions

By Douglas Scott*

Note: An expanded version of this article entitled Logjam in the OPCW – Time to Limit Consensus? was published by the Acronym Institute as CWC Special Paper No. 1 – December 2002 and appears on the Markland Group website under the heading Markland Group Papers.

The practice of making decisions only by consensus appears to be hampering the effectiveness of the Organization for the Prohibition of Chemical Weapons (OPCW). When the OPCW was established in 1997 (with a mandate to ensure the implementation of the Chemical Weapons Convention), the treaty negotiators had agreed that its two policy-making bodies, the Executive Council and the Conference of the States Parties (CSP), should make decisions by two-thirds majority vote. (In the case of the CSP, the rule is consensus if possible, otherwise two-thirds majority.)[1] Despite these provisions in the Convention, however, during the Organization’s five-year history, with only three exceptions, all decisions by both bodies have been made by consensus. The exceptions were two decisions made in April 2002 calling for the dismissal of José Bustani as Director General and one decision in 1997 relating to the salary of the Director General of the Organization.

It appears that there is an informal understanding among all 143 States Parties to the Chemical Weapons Convention (CWC) that decisions will normally be made by consensus and that no State Party will stand up and call for a vote. Diplomats at the OPCW argue that by insisting on consensus, they are avoiding problems with compliance. If decisions are forced through Council by majority vote, they argue, the nay-sayers are likely to refuse to comply. They point to the fact that the Organization has had an impressive record with compliance and they want to keep it that way.

The other side of the coin is less encouraging. The policy of insisting on consensus is causing two problems. Achieving consensus takes time, and in the case of the OPCW, the Council is constantly deferring important decisions. The point has been reached where a large backlog of undecided matters has developed. Included are matters that need to be decided in order for the Organization to do the work mandated under the Convention. In April 2001, Council’s report to the CSP contained a list of 52 “matters under consideration by the Council”. Among the items listed are:

· Guidelines for determining the frequency of systematic on-site inspections of facilities where chemical weapons are stored or stockpiled pending their destruction;

· Methodology for selecting certain types of industrial chemical facilities for inspection;

· Understandings on the degree of access to be given to inspectors to review records when inspecting certain types of facilities.

· Guidelines for the number, intensity, duration, timing and mode of inspection of certain highly weapons-relevant facilities.[2]

The Council has not published a report outlining the decisions made by it since the date of the above report. Nevertheless, a recent periodic report issued by the Harvard Sussex Program on the activities of the OPCW indicates that very few decisions have been taken by the Council within the last two years. In fact, the report spoke of “the increasing paralysis in the policy-making organs of the Organization, especially the Council.”[3] It can be assumed that most of the 52 matters on the list referred to above remain undecided, and that responsibility for these deferrals lies mainly with the consensus policy.

The second difficulty with making decisions by consensus is that it is likely to produce decisions that are watered down. Either they are expressed in terms that are deliberately vague or ambiguous in order to satisfy competing interests. Or the decisions are such that they weaken the effectiveness of the OPCW – especially in the case of decisions dealing with inspections or the budget.

For instance, in a previous issue of Compliance Matters[4], an account is given of how the consensus policy was responsible for the adoption of an inadequate budget for the year 2002. Following the adoption of this budget, it was widely predicted that the resulting shortage of funds would mean severe cutbacks in the number of inspections performed in the year 2002. Such indeed is proving to be the case; the Secretariat recently calculated that there will be enough money to conduct 107 inspections in 2002 – 50% of the total inspections programmed (by the CSP) for the year.[5]

Faced with this bleak prospect, the Executive Council is currently considering a proposal to adopt a supplementary budget for 2002. As has happened so often in the past, however, consensus is again interfering; the only thing the Council has been able to agree upon as of this writing is that the budget deficit for 2002 is a “matter of extreme concern”.

What is baffling about the craze for deciding everything by consensus is its unanimity. Despite the fact that any individual State Party among the 143 is entitled to call for a vote on any issue under discussion, no such thing has ever happened.

The key to explaining this anomaly may lie in the fact that the U.S. seems to be in the minority not only on budget matters, but on many of the undecided issues. Such a scenario suggests that the U.S. may have let it be known that it is insisting on all decisions being made by consensus except where it has persuaded the required majority to vote its way (as was the case in the two votes to dismiss Bustani). Furthermore, it seems possible that the U.S. has sent clear signals that any deviation from this arrangement will result in the withdrawal of U.S. support for the OPCW and possibly withdrawal from membership in the Treaty.

If this indeed is the U.S. position, it would explain why there has never been a call for a vote on a resolution even when it is clear that the substance of the resolution is supported by a two-thirds majority. The assumption seems to be that if a vote were taken, most would feel compelled to vote with the U.S. in order to prevent the Organization from collapsing.

This thinking probably explains the large majority that voted for the US motion to dismiss Bustani in April 2002. It was never clear that the required majority had agreed with the substance of the US complaints against Bustani. Very few of the countries voting with the U.S. have explained their vote in terms of agreeing with the complaints levelled by the U.S. against Bustani. Most have remained silent, while some have asserted, as Canada did unofficially, that the prime reason they voted with the U.S. was to avoid a harmful dispute which could bring about the downfall of the Organization.[6]

All of which suggests that, in addition to the reasons referred to above for insisting on consensus as the method for making decisions, there is another reason in the minds of the States Parties to the CWC, namely that the U.S. has insisted on consensus and has made it a condition of its continued support for the OPCW.×

* Sean Howard Ph.D. (University of Bradford) is the editor of Disarmament Diplomacy www.acronym.org.uk and Adjunct Professor in the Department of Politics, Government and Public Administration at the University College of Cape Breton. He lives in Louisbourg, Nova Scotia.

* Douglas Scott is a lawyer in Ancaster, Ontario. He is the President of the Markland Group.

[1] Chemical Weapons Convention, Article VIII, paragraphs 18 and 29.

[2] OPCW document: EC-XXIV/3, 6 April 2001, paragraph 6, subparagraphs (l), (o), (p) and (v).

[3] Harvard Sussex Program Quarterly Review No. 34, published as part of the Chemical and Biological Weapons Conventions Bulletin, No 52 (June 2001), page 3.

[4] Compliance Matters, Number 16, December 2001

[5] Harvard Sussex Program Quarterly Review No. 38, in CBWCB No. 56 (June 2002), p. 12.

[6] Author’s conversation with officials at the Department of Foreign Affairs and International Trade.