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Procedural Report and outcome of discussions
Ad Hoc Group 10th Session (pages 1 - 15)
Pages 1 - 15 of the Procedural Report and outcome of discussions are provided below. This material is from the 10th Session of the Ad Hoc Group of States Parties to the Convention.
Please note: the page numbers given are those which appear in the original text, these appear at the top of the page. The detailed footnotes are provided at the end of the main text.
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BWC/AD HOC GROUP/40
17 March 1998
Original: ENGLISH
PROCEDURAL REPORT OF THE AD HOC GROUP OF THE
STATES PARTIES TO THE CONVENTION ON THE PROHIBITION
OF THE DEVELOPMENT, PRODUCTION AND STOCKPILING OF
BACTERIOLOGICAL (BIOLOGICAL) AND TOXIN WEAPONS
AND ON THEIR DESTRUCTION
1. The Ad Hoc Group of States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction held its tenth session at the Palais des Nations, Geneva from 9-13 March 1998, in accordance with the decision taken at its ninth session. The Group held 10 meetings during that period under the chairmanship of Ambassador Tibor Tóth of Hungary. Ambassador John Campbell of Australia and Ambassador Javier Illanes of Chile served as Vice-Chairmen of the Group. Mr. Ogunsola Ogunbanwo, the Senior Coordinator of the Disarmament Fellowship and Training Programme, Department of Disarmament Affairs, served as Secretary of the Group.
2. At the tenth session of the Ad Hoc Group, the following States Parties to the Convention participated in the work of the Group: Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Chile, China, Colombia, Croatia, Cuba, Czech Republic, Democratic People's Republic of Korea, Denmark, Finland, France, Germany, Greece, Hungary, India, Indonesia, Iran (Islamic Republic of), Ireland, Italy, Japan, Kenya, Malaysia, Mauritius, Mexico, Netherlands, New Zealand, Norway, Pakistan, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Turkey, United Kingdom of Great Britain and Northern Ireland, United States of America, and Viet Nam. The following signatory States to the Convention also participated in the work of the Group: Egypt, Morocco and Myanmar.
3. At the 1st meeting, the Ad Hoc Group decided to continue its consideration of Agenda Item 9 entitled "Strengthening of the Convention in Accordance with the Mandate as it is contained in the Final Report of the Special Conference of the States Parties to the Biological Weapons Convention".
GE.98-60795
BWC/AD HOC GROUP/40
page 2
4. At its tenth session, the Chairman of the Ad Hoc Group was assisted by Friends of the Chair in his consultations and negotiations on particular issues as follows:
Measures to Promote Compliance
- Mr. Richard Tauwhare (United Kingdom of Great Britain
and Northern Ireland)
Investigations Annex
- Mr. Peter Goosen (South Africa)
Measures Related to Article X
- Mr. Carlos S. Duarte (Brazil)
5. Out of the 10 meetings the Ad Hoc Group held in accordance with the programme of work, 4 meetings were devoted to issues related to "Measures to Promote Compliance", 2 meetings were devoted to "Measures Related to Article X" and 4 meetings were devoted to "Investigations Annex". In accordance with the understanding reached at the ninth session, other issues in front of the Ad Hoc Group were not addressed during the session due to the limited time available. The Friends of the Chair were assisted by Mr. Vladimir Bogomolov, Political Affairs Officer of the Department of Disarmament Affairs and Ms. Iris Hunger, Professional Assistant.
6. The results of discussions on the issues addressed during the session are attached to this report. (Annex I) In addition to the statement of the Chairman that the position of delegations is not prejudiced by this paper, individual brackets have been introduced to cover specific preliminary concerns of delegations and it is recognized that further and detailed consideration of all elements will be required at future sessions.
7. In addition to the documents presented at its previous sessions, the Ad Hoc Group had before it 10 working papers covering those elements of the mandate under discussion and which are listed in Annex III.
8. The Ad Hoc Group considered and adopted the Programme of Work for the eleventh session to be held from 22 June to 10 July 1998. (Annex II)
9. At its 10th meeting on 13 March 1998, the Ad Hoc Group considered and adopted its draft procedural report (BWC/AD HOC GROUP/L.15).
1. The format on Transfers developed by the Friend of the Chair on CBMs on "Data on Transfers and Transfer Requests and on Production" in pages 208-209 of BWC/AD HOC GROUP/39 would need to be modified in this context. Paragraph 2 above may be considered for Annex.
2. Further consideration should be given to possible humanitarian implications of such a prohibition.
BWC/AD HOC GROUP/40
Annex 1
page 3
ANNEX I
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Outcome of discussions on Measures to Promote Compliance
Replace paragraphs 18 and 19 (including related headings) of Article III, section F, subsection I of BWC/AD HOC GROUP/39, p. 41, by the following:
(C) [Voluntary Visits]
[18. Each State Party may [request] [volunteer for] [invite] [the Organisation] to undertake visits to facilities on its territory or in any other place under its jurisdiction or control in order to fulfil one or more of the following objectives:
[(a) To help compile individual facility and national declarations [and/or to clarify a specific ambiguity that may be contained in it;]
[(b) To further the cooperation and assistance provisions of this Protocol;]
[(c) To resolve a specific concern related to declarations, including any ambiguity;]
[(d) To resolve a specific concern, as provided for in paragraph 8 (d) of section E of this Article, on Consultation, Clarification and Cooperation.]
19. The Director-General shall [in consultation with the Executive Council] decide on the [implementation] [initiation] of [requests for] such visits in accordance with the [procedures set out in Annex B] [relevant criteria and guidelines approved by the [Executive Council] [Conference of the States Parties]] [taking into account, [inter alia, the resource implications] [the availability of resources within the [Technical] Secretariat and the nature and purposes of the visit]].
20. The detailed arrangements for, and contents of, a Voluntary Visit shall be agreed beforehand between the Director-General and the State Party concerned.
21. The Director-General shall [, in accordance with Annex B,] issue a [standard] mandate for each visit [which shall be completed in cooperation with the State Party to be visited].
[22. The visits shall be conducted in the least intrusive manner [and shall not affect or interrupt [in any way] the activities taking place in the facility].]]
[(D) Voluntary Confidence-Building Visits
23. For the purpose of confidence-building, the number, intensity, duration, timing and mode of voluntary visits to particular facilities shall be arranged and agreed between States Parties in accordance with Annex G, section VI.]
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Outcome of discussions on Measures to Promote Compliance
Replace paragraphs 1 to 4 (including related headings) of Article III, section F, subsection II of BWC/AD HOC GROUP/39, p. 44 to 46, by the following:
[II. [MEASURES TO STRENGTHEN THE IMPLEMENTATION OF ARTICLE III]
[1. States Parties, in order to ensure compliance with Article III of the BTWC, shall only transfer dual-use microbial and other biological agents, toxins and equipment for purposes not prohibited by the Convention, in accordance with the following guidelines.
2. In pursuance of paragraph 1, and recognizing that most of the agents, toxins, equipment and technologies are of a dual-use nature and with the objective of preventing dual-use items from being utilized for purposes prohibited by BTWC, the guidelines shall be as follows:
(a) Any request made by a State Party for the procurement of a specific agent/toxin reagent shall be accompanied by information on purpose, quantity required, site or facility for proposed use, quantity to be produced at the site or facility, place where intended to be stored and end-use certificate;1
(b) Any request for transfer or procurement of equipment envisaged to be declared under CBMs, for use by a State participating in the compliance regime in a BL4 facility, including details of its proposed application and the site/facility for intended use, shall be intimated to [the BTWC Organization];
(c) Any transfer of technology related to means of delivery, aerosol dispersion of toxins and pathogens, stabilization of agents/toxins to environmental stress shall be intimated to [the BTWC Organization];
(d) Transfer of agents, equipment and material shall not be allowed to non-States Parties of the compliance regime under the Convention without prior approval of [the BTWC Organization].]
[3. (a) To ensure compliance with Article III of the BTWC, [no] [each] State Party shall [only] authorize transfers to any recipient whatsoever, of microbial or other biological agents, or toxins whatever their origin or method of production, or equipment which [is capable of using such agents or toxins for hostile purposes] [can be used in contravention of
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Article I of the Convention], [unless that State Party has] [if it is] determined that these will be used solely for prophylactic, protective or other peaceful purposes.
(b) (i) Each State Party shall report to [the Organization] on the national laws and regulations it has adopted to implement Article III of the BTWC not later than [...] days after the entry into force of this Protocol for that State Party and whenever an amendment thereto is made.
(ii) Each State Party shall report to [the Organization] on its administrative and other national measures to implement Article III of the BTWC not later than [...] days after the entry into force of this Protocol for that State Party and whenever an amendment thereto is made.
[(iii) Such reports shall contain detailed information. If available, the information contained in these reports may be subject to examination during a visit under the Article I investigation procedures of this Protocol.]
[(c) No transfer of microbial or other biological agents or toxins, whatever their origin or method of production, or equipment which is capable of using such agents or toxins for [hostile purposes] [for purposes which would contravene Article I of the Convention], shall be allowed to non-States Parties of the Convention and the Protocol.]2
[(d) Each State Party, in implementing these measures, shall ensure that they do not impede the peaceful economic and technological development of States.]]
[4. [Proposed] Transfer guidelines
(a) The provisions of the Convention shall not be used to impose restrictions and/or limitations on the transfer of scientific knowledge, technology, equipment and materials for purposes not prohibited under the Convention.
(b) In order to promote transparency in the biological trade, the States Parties may agree on arrangements for exchanging the end-user certificate related to biological exports in a manner that will entail no restrictions or impediments on access to biological materials, equipment or technological information by all States Parties. This would replace all existing ad hoc regulations in the biological trade at the time of entry into force of the Protocol for States Parties.
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(c) An end-user certificate may be required from the recipients stating, in relation to the transferred biological agents or toxins and equipment (to be identified as relevant by the Ad Hoc Group), the following:
(i) That they will only be used for purposes not prohibited under this Convention for the States not party to the Convention;
(ii) That they will not be retransferred without receiving the authorization from the supplier(s);
(iii) Their types and quantities;
(iv) Their end-use(s); and
(v) The name and address(es) of the end-user(s).
(d) States Parties shall resolve suspicions arising from such transfers through the process of consultation and clarification in accordance with Article V of the Convention.]]
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Outcome of discussions on Measures to Promote Compliance
Replace paragraphs 1 to 19 (including related headings) of Article III, section F, subsection III of BWC/AD HOC GROUP/39, p. 47 to 52, by the following:
III. INVESTIGATIONS1
(A) INITIATION AND TYPES OF INVESTIGATIONS
[1. The provisions of this section shall only be available to address non-compliance concerns that occur after the entry into force of this Protocol.]
2. Each State Party shall have the right to request an investigation for the sole purpose of determining the facts relating to a specific concern about possible non-compliance with the Convention by any other State Party.
3. Each State Party shall be under the obligation to keep all requests within the scope of the Convention and refrain from unfounded requests.
4. The requesting State Party shall specify in each request which one of the following types of investigation it is seeking:
(1) [Field] investigations [of the alleged use of biological weapons] [, to be conducted in geographic areas where the release of, or exposure of humans, animals or plants to microbial or other biological agents and/or toxins has given rise to a concern about non-compliance with Article I of the Convention by a State Party].
(2) [Facility] investigations [of any other alleged breach of obligations under the provisions of the Convention] [, to be conducted inside the perimeter of a particular facility(ies) for which there is a concern that it is involved in activities prohibited by Article I of the Convention].
[(3) Investigations where there is a concern that a transfer has taken place in violation of Article III of the Convention.]
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5. All natural outbreaks of disease do not pose a compliance concern to the Convention [and therefore shall not be cause for an investigation of a non-compliance concern] [as set out in Annex ...].2 3
[5 bis Accidents which are a result of activities not prohibited under the Convention do not pose a compliance concern to the Convention and therefore shall not be cause for an investigation of a non-compliance concern as set out in Annex ... .]
6. An investigation may be requested to be conducted on the territory of a State Party, or in any other place under its jurisdiction or control, regardless of the form of ownership of the facility or the geographic area subject to the investigation, in accordance with the provisions of this Protocol and its Annexes.
[7. A [field] investigation [of alleged use of biological weapons] may also be requested to be conducted on the territory of a non-State Party, or in any other place under its jurisdiction or control, if there are concerns that a State Party [which shall be identified in the request] is the cause of the non-compliance concern. Consultations shall be undertaken with the non-State Party concerned in order to secure its agreement that the provisions and rights with regard to access and conduct of investigations foreseen for States Parties under the Protocol, or any other investigation arrangements which are deemed mutually acceptable by the non-State Party and the [Director-General] [Executive Council], may be applied, as appropriate, to an investigation on its territory or at any other place under its jurisdiction or control.]
[8. In the case of a non-compliance concern involving a State which is a party to the Convention but not to the Protocol, States Parties, where appropriate, shall use the relevant provisions of the Convention to seek to resolve the concern. In cases where an investigation is initiated under the Convention, the provisions and rights with regard to access and conduct of investigations foreseen under the Protocol may be applied, as agreed and appropriate.]
[9. In cases of concerns with respect to biological or toxin weapons involving a State not party to the Convention, [the Organization] shall closely cooperate with the [Security Council and the] Secretary-General of the United Nations. If so requested, [the Organization] shall put its resources at the disposal of the [Security Council and the] Secretary-General.]
10. Requests for investigations shall be submitted in writing by the requesting State Party to [the United Nations Security Council, in accordance with Article VI of the Biological Weapons Convention] [[the Executive Council and at the same time to] the Director-General
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for immediate processing] [and circulation to the Executive Council] in accordance with procedures as set out in this Protocol and its Annexes.
(C) CONSULTATION, CLARIFICATION, AND COOPERATION4
11. States Parties [shall] [may] [first] make [every effort] [full] [use [where possible and as appropriate] of opportunities] for bilateral and multilateral clarification and consultation [through the Organization] [in accordance with Article V of the BTWC] [[and established procedures under the Protocol] to resolve a concern about non-compliance with the Convention [[prior to] [or] [in parallel to] a request]].
12. Other States Parties may undertake to assist, on a voluntary basis and to the extent they may be capable and/or are requested, by the States Parties concerned [or by the BTWC Organization] in clarifying or resolving matters related to a concern about non-compliance, which has been raised as a matter for consultation, clarification and cooperation. [[International organizations such as WHO, FAO and IOE] may play a role in such consultation and clarification procedures.]
(D) INFORMATION TO BE SUBMITTED WITH A REQUEST FOR AN INVESTIGATION TO ADDRESS A CONCERN OF NON-COMPLIANCE
WITH THE CONVENTION
13. A State Party requesting an investigation shall provide [, to the extent possible,] [all] relevant [available] [necessary] information [and evidence] indicating a non-compliance concern [as specified in paragraphs ... of this section] [including location, how the concern arose, the type of non-compliant activity, the specific event or activities which gave rise to the concern, the date and place of any such event or activities]. All such information shall be as precise as possible.
[14. Other States Parties may provide information relevant to the request. Any such submission shall not delay the consideration of the request by the Executive Council described in paragraph ... .]
[15. States Parties which provide information pursuant to paragraphs 13 and 14 shall also provide relevant information about the source of such information, [confirming [proving] [and demonstrating] its [reliability] [and impartiality,] [its non-discriminatory nature] [that it is well-founded] [and open to multilateral scrutiny]].]
16. Requests for [field] investigations [into alleged use of biological weapons] shall at least include the following information: 5 6
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NB: The proposed changes would render this chapeau consistent with paragraph 18. The requirement for information to be precise is already specified in paragraph 16. Discussion on whether information should be provided "to the extent possible" might also best be focussed in paragraph 16, where the same issue is raised.
(a) Name of the State Party in whose territory or under whose jurisdiction or control the alleged [event which has given rise to a concern about non-compliance] [use] has taken place;
(b) A description of the [event] [use], including all available information on:
(i) The [use] [release] of microbial or other biological agent(s) or toxin(s) for other than peaceful purposes;
(ii) The use of weapons, equipment or means of delivery;
(c) The circumstances under which the [event] [use] took place;
(d) An indication of whether it was a single [event] [use] or a series of [events] [uses];
(e) An indication of the suspected cause and/or perpetrator of the [event] [use];
NB: The above proposed new paragraphs (b) to (e) reproduce, in this new location, former paragraph (h); this would be consistent with the order followed in paragraph 18.
(f) As precisely as possible, the date, time and duration of the alleged [event] [use];
(g) The location, geographic coordinates and the characteristics of the area(s) involved , whether the area is on the territory of the requesting State Party, and if not, the
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name of the State who controls that territory as well as whether that State is a State Party to the Protocol and/or the Convention;
NB: The contents of this paragraph, except for the issue of epidemiological data, might be moved to become new (b) to (e). The issue of whether to include epidemiological data is addressed below.
(h) All available epidemiological data, including details of the victims (humans, animals or plants), the [effects on them,] [symptoms,] the number affected, the treatment and the results of the treatment;
NB: It is proposed to move the contents of this paragraph to (b) above.
[ (i) Any epidemiological data substantiating an allegation why the event shall not be considered to be a natural outbreak of disease [including data on natural disease profiles and occurrences in the area affected, as well as demographic data];]
(j) Information from and/or the outcome or results of [any] prior consultations/clarifications relevant to the request.
The following other types of information should also be submitted as appropriate and to the extent possible:
(k) Reports of any internal investigation including results of any laboratory investigations;
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NB: It is proposed to move the contents of this paragraph to (h) above.
(l) [Any] affidavits of eye witness accounts, photographs, samples or other physical evidence;
(m) Data on natural disease profiles and occurrences in the area affected, as well as demographic data;
(n) A description of the control measures and their result in the affected area, if available;
(o) Other corroborative information;
(p) Requests for specific assistance, if applicable.
17. Requests for [facility] investigations [of any other alleged breach of obligations under the provisions of the Convention ] shall at least include the following information: 7
NB: Since there was no agreement to move the sub-paragraphs below to Annex D, it may be most practical to work on the section on the assumption that it will remain in the Protocol. If it should later be decided to move it, or parts of it, appropriate cross-references could be inserted.
(a) Name of the State Party in whose territory or under whose jurisdiction or control the non-compliant activity has allegedly taken place;
(b) The specific event(s) or activity(ies) which gave rise to a non-compliance concern, including all available information on the development, production, stockpiling, acquisition or retention of
(i) Microbial or other biological agents or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;
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(ii) Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict;
(c) The location of any alleged non-compliant activity. This shall include as much detail as possible including a description, the location, boundaries and geographic coordinates, specified to the nearest second, if possible;
(d) The approximate period during which the non-compliant activity or event is alleged to have taken place;
(e) Information from and/or the outcome or results of [any] prior consultations/clarifications or prior [field investigation] [ investigation of the alleged use of biological weapons] relevant to the request;
[(f) Information to demonstrate that the non-compliance concern is not a natural outbreak of disease.]
The following other types of information should also be submitted as appropriate and to the extent possible:
(g) Whether any facility concerned has been declared under the Protocol; and any information included in or absent from the declaration return relevant to the allegations;
(h) If not, any information to suggest that the facility concerned should have been declared under the Protocol;
(i) Details of the ownership and/or operation of the facility concerned;
(j) Any additional relevant information, e.g. on extent and nature of the alleged non-compliant activity.
[(E) FOLLOW-UP AFTER SUBMISSION OF AN INVESTIGATION REQUEST8
18. The Executive Council shall begin its consideration of an investigation request immediately upon its receipt.
19. The Director-General, after receiving an investigation request, shall acknowledge receipt of it to the requesting State Party within two hours and shall communicate the request to the State Party sought to be investigated within six hours and to all other States Parties within 24 hours.
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20. The Director-General shall also immediately ascertain that the investigation request meets the requirements set out above and, if necessary, shall assist the requesting State Party in filing the investigation request accordingly and shall communicate any revised request to the Executive Council and to all other States Parties within 24 hours.
21. When the investigation request fulfils the requirements, the Director-General shall begin preparations for the investigation without delay.]
Notes
1. There is no agreement on terminology of investigations. One possible term is "Investigation to Address a Non-Compliance Concern". Another possible term is "Challenge Inspection (under Article VI)".
2. Specific language on this issue for inclusion in the Annex will be formulated drawing on, without prejudice to other possible proposals, BWC/AD HOC GROUP/WP.262, submitted by the Group of NAM and other countries (attached), which was not addressed at the ninth Ad Hoc Group session.
3. A view was expressed that the appropriate placement of this text required further consideration.
4.. The inclusion of this section is without prejudice to any final decision on whether such procedures shall be mandatory and/or whether they shall take place prior to the initiation of an investigation.
5. A view was expressed that information supporting a request will be lacking many precise details regarding the essential elements described above. This should not be allowed to prevent an allegation receiving serious consideration. It may be that one single item of evidence will be sufficient to be decisive. The burden of proof must not be placed unreasonably on to the complainant State. Further consideration needs to be given to whether or how these requirements might be modified in respect of a request for an investigation on the territory of another State Party or a non-State Party.
6. Subparagraphs (a) to (p) of this paragraph have been reproduced in Annex D.
7. Subparagraphs (a) to (j) of this paragraph have been reproduced in Annex D.
8. This section was not discussed during the tenth session of the Ad Hoc Group. Paragraphs 18 to 21 reproduce the text of BWC/AD HOC GROUP/WP.268.