The Biological and Toxin Weapons Convention (BTWC) Database
Strengthening the Biological Weapons Convention
Briefing Paper No 15: Non-Compliance Concern Investigations
Executive Summary
Ian R Kenyon
Series Editors, Graham S. Pearson and Malcolm R. Dando
Department of Peace Studies, University of Bradford
Click here to see a full list of Briefing Papers
Please note: the page numbers given below are those which appear in the original text; these appear at the top of the relevant page. Click here to view the Disclaimer.
page 1
Attention is being given by the Ad Hoc Group (AHG) to the contents of Article III Compliance Measures F. III. Investigations which in Section (E) "Follow-up after Submission of an Investigation Request and [Executive][Consultative][Council] Decision-making" addresses the action to be taken should a request be received for an investigation into a compliance concern. Negotiation of international legal instruments which provide for non-compliance concern investigations, or any other form of verification, require the creation of a careful balance been two seemingly incompatible imperatives for each State involved. On the one hand, States accepting obligations which impact directly on national security must achieve confidence that other States which accept the same obligations are fulfilling them. On the other hand there is a necessity to protect legitimate State secrets and to provide protection for national industry regarding commercially valuable business information. The first requires a progressive series of procedures to address non-compliance concerns leading ultimately, if necessary, to a sufficiently rigorous on-site investigation to provide complete confidence that the relevant facts have been established. The second requires, not only properly defined investigation procedures such as managed access and carefully designed confidentiality provisions but also political mechanisms to deal with frivolous or abusive requests for such investigations.
This Briefing Paper first considers the provisions in the current version of the draft Protocol to strengthen the BTWC before examining the political processes involved in decision taking by an Executive Council. It is concluded that there is a strong case for an Executive Council to have the power to stop an investigation but not be required to approve its initiation.
AD HOC GROUP DEVELOPMENTS
The current language in the Protocol of Article III Compliance Measures in the Sections on Consultation, Clarification and Cooperation, Decisions on Investigations and safeguards against Frivolous or Abusive Investigations is reproduced.
CHEMICAL WEAPONS CONVENTION (CWC)
The relevant provisions in the CWC are reviewed recognising that the negotiators of the CWC faced the same problems as those being faced by the Ad Hoc Group. The CWC sets out in Article IX requirements for Consultations, Cooperation and Fact-Finding and makes provision for the Executive Council to be involved in assisting the clarification process. As a last resort, a State Party can request an on-site challenge inspection. Although provisions are made to ensure that the inspection request is within the scope of the Convention and to avoid unfounded requests, some of the negotiators were still concerned that some States might use the challenge inspection provisions as a tool for intelligence gathering targeted on non-related military objectives, for commercial espionage against industry, or simply as a means of causing political embarrassment. The CWC Article was therefore extended to give the Executive Council (within the very tight time constraint of twelve hours) the right to consider the inspection request before
page 2
it is carried out and, if it considered the inspection request to be "frivolous, abusive or clearly beyond the scope of [the] Convention" to decide to stop the inspection.
In order to stop a challenge inspection the Executive Council must decide by a three-quarter majority of all its members (red-light screening mechanism). This precise format was the result of long and difficult negotiation. In the end it was agreed that the assumption should be that a challenge inspection request would normally be implemented. In other words, no decision of the Executive Council should be necessary to allow the inspection to proceed. Only if there is a clear wish to prevent it is a decision required.
The requirement for a three quarter majority of all the members of the Council, not simply those present and voting, was deliberately set high. The reason for this was an understanding of the political processes involved in the operation of a body such as the Executive Council. In the judicial processes of most States it is possible for a group of independent judges to be tasked to find whether there is a case to be answered in particular circumstances. These judges are chosen for their impartiality and should not participate if they have any direct personal interest the outcome. The Executive Council, however, is composed of State representatives who are obliged to take account of their Government's interests. Most Governments will have an interest in the proper operation of the Convention but they will also be obliged to consider their relations with both the challenging and challenged States. Even if the evidence for concern about compliance with the Convention is strong it could be difficult for a Government to instruct its representative to vote positively in favour of an investigation. An instruction to abstain on a vote to stop an investigation would, however, be much easier to issue and would still have the effect of permitting the investigation to proceed.
The level of three quarters majority rather than simple majority was felt to be important because of the tendency in international bodies for States to vote in blocs. This construction meant that a group of States which commanded at least one quarter of the votes available could ensure that the inspection went ahead and no single group could prevent it without support from at least some members of other groups. Although the bloc structure has become much less rigid since the end of the Cold War, it still cannot be discounted entirely.
ANALYSIS
It is evident that the draft text for the Protocol contains closely similar provisions to those within the CWC which achieve a careful balance between the requirement, on the one hand, for a progressive series of measures to address non-compliance concerns leading ultimately, if necessary, to a sufficiently rigorous on-site investigation to provide complete confidence that the relevant facts have been established and the other requirement for a regime comprising not only properly defined investigation procedures such as managed access and carefully designed confidentiality provisions but also political mechanisms to deal with frivolous or abusive requests for such investigations.
CONCLUSION
The provisions in the draft Protocol for a series of measures to address non-compliance measures coupled with those for the protection of sensitive commercial proprietary information and legitimate national security needs are such that the screening of requests for investigations can confidently be dealt with by a process requiring a three-quarters majority of the Executive Council to vote to stop an investigation (the so-called red-light procedure). Any process, requiring formal approval before an investigation could begin (green-light), would, for the reasons outlined above, be ineffective and would have the result of effectively removing the underpinning and essential investigation pillar of the strengthened BTWC regime. The Protocol language needs to provide for the Executive Council to have the power to stop an investigation but not be required to approve its initiation.
Click here to see the complete list of Briefing Papers
The Biological and Toxin Weapons Convention Database forms part of the Project on Strengthening the Biological and Toxin Weapons Convention and Preventing Biological Warfare, which is based in the Department of Peace Studies, University of Bradford, UK.
Updated 30 September 1998