The Biological and Toxin Weapons Convention (BTWC) Database
Strengthening the Biological Weapons Convention
Evaluation Paper No 7
Series Editors : Graham S Pearson and Malcolm R Dando
Department of Peace Studies, University of Bradford, Bradford, UK
visit the full list of Briefing and Evaluation Papers
ARTICLE XXII: DEPOSITARY/IES
by Graham S. Pearson* & Nicholas A Sims†
Introduction
1. The Ad Hoc Group (AHG) is considering measures to strengthen the Biological and Toxin Weapons Convention (BTWC) through a legally binding instrument. The pace of the AHG negotiations has quickened during the past year and there is now a clear political will to see the negotiation of the Protocol completed as soon as possible before the Fifth Review Conference in 2001. It is now evident that several Articles in the draft Protocol are now largely agreed and will not develop significantly from their current form although a certain amount of restructuring may be agreed at a later stage.
2. In Evaluation Paper No 1 it was concluded1 that "the majority of the Articles in the draft Protocol have now reached the stage when they have had multiple readings and are unlikely to change significantly during the coming months as the negotiations enter the end-game. It is therefore timely to commence the production of a series of Evaluation Papers which will consider Article by Article the current state of each Article of the Protocol." This Evaluation Paper continues this series by considering Article XXII Depositary/ies on which the AHG has made good progress with the current rolling text containing six sets of square brackets providing for two alternative options for the depositary/ies.
Article XXII
3. In July 1999, the text2 for Article XXII was unchanged from its earlier version and was as follows:
ARTICLE XXII
DEPOSITARY/IES
The [Secretary-General of the United Nations] [Governments of the Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America] [is] [are] hereby designated as the [Depositary] [Depositaries] of this Protocol and shall, inter alia:(a) Promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification or accession and the date of the entry into force of this Protocol, and of the receipt of other notices;
(b) Transmit duly certified copies of this Protocol to the governments of all signatory and acceding States; and
(c) Register this Protocol pursuant to Article 102 of the Charter of the United Nations.
The strikethrough version of Article XXII
provided3 by the FOC on Legal Issues for further consideration
is identical to that in the draft Protocol as no changes are proposed.
Evaluation
4. The square brackets show that designation of a Depositary or Depositaries for the Protocol is still under debate: the listing of formal depositary functions is not. That listing follows the pattern of the BTWC4 which states:
in Article XIV that
5. The Depositary Governments shall promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification or of accession and the date of entry into force of this Convention, and of the receipt of other notices.
6. This Convention shall be registered by the Depositary Governments pursuant to Article 102 of the Charter of the United Nations.
and in the second sentence of Article XV that:
Duly certified copies of the Convention shall be transmitted by the Depositary Governments to the Governments of the signatory and acceding States.
of Article XXIII in the Chemical Weapons Convention (CWC) 5which states:
ARTICLE XXIII
DEPOSITARY
The Secretary-General of the United Nations is hereby designated as the Depositary of this Convention and shall, inter alia:
(a) Promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification or accession and the date of the entry into force of this Convention, and of the receipt of other notices;
(b) Transmit duly certified copies of this Convention to the Governments of all signatory and acceding States; and
(c) Register this Convention pursuant to Article 102 of the Charter of the United Nations.
and of Article XVI in the Comprehensive Test Ban Treaty (CTBT)6 which states:
ARTICLE XVI
DEPOSITARY
1. The Secretary-General of the United Nations is hereby designated as the Depositary of this Treaty and shall receive signatures, instruments of ratification and instruments of accession.
2. The Depositary shall promptly inform all States Signatories and acceding States of the date of each signature, the date of deposit of each instrument of ratification or accession and the date of the entry into force of this Treaty and of any amendments and changes thereto, and the receipt of other notices.
3. The Depositary shall send duly certified copies of this Treaty to the Governments of the States Signatories and acceding States.
4. This Treaty shall be registered by the Depositary pursuant to Article 102 of the Charter of the United Nations.
The depositary functions in Article XXII of the draft Protocol are thus not in contention.
5. The designation of Depositary. The current draft Protocol contains language for two alternative depositaries: the Secretary-General of the United Nations; or the Governments of the Russian Federation, United Kingdom and United States.
6. Insofar as the designation of the three named governments as Depositaries is concerned, it can be argued that because they are the three Depositary Governments for the BTWC, it would be illogical to have a different Depositary for its Protocol, especially given the close relationship between the two instruments in respect of the review process foreseen under Article XIII of the Protocol. Moreover, the three governments have special responsibilities for the operation of the contingency mechanism addressing compliance concerns under Article V which were conferred upon the Depositaries by the Third Review Conference7 in 1991 and put into practice for the first time when the Consultative Meeting of States Parties to the BTWC addressed the Thrips palmi question in 1997 at the request of Cuba8. It can, however, be argued that this contingency mechanism is -- on the assumption that all BTWC States Parties also become parties to the Protocol -- but an interim arrangement pending the entry into force of the Protocol -- as it is noted that the outcome of the Consultative Meeting specifically stated that "the Bureau agreed that the experience of conducting this process and consultation had shown the importance of establishing as soon as possible an effective Protocol to strengthen the Convention which is being negotiated in the Ad Hoc Group."
7. It could also be argued that the Depositaries have special responsibilities for bringing to a successful conclusion the trilateral process10 which they launched in Moscow on 14 September 1992, although their obligations towards the other States Parties to the BTWC are less clear in respect of this process than when operating the Convention's own machinery, as in the 1997 Consultative Meeting, for the handling of compliance concerns.
8. As for the designation of the UN Secretary-General as Depositary, it can be argued that the precedents of the 1993 CWC, the 1996 CTBT and the 1997 Anti-Personnel Mines Convention11 are more relevant to a protocol drafted in the late 1990s than the pattern of 1963 to 1972. Indeed, if we examine the pattern of depositaries in some of the treaties that opened for signature in the 1960s and early 1970s, it can be seen that the designation of the three named Governments was not universal and ceased after the 1972 BTWC.
|
Date |
Treaty |
Article |
Depositary |
Depositary ratification for EIF? |
18 Apr 1961 |
Vienna Convention on Diplomatic Relations12 |
49 |
UN S-G |
No |
24 Apr 1963 |
Vienna Convention on Consular Relations13 |
75 |
UN S-G |
No |
5 Aug 1963 |
Limited Test Ban Treaty14 |
III.2 |
UK, US and Soviet Union |
Yes |
7 Mar 1966 |
Elimination of all Forms of Racial Discrimination15 |
19.1 |
UN S-G |
No |
27 Jan 1967 |
Peaceful Uses of Outer Space16 |
XIV.2 |
UK, US and Soviet Union |
Yes |
|
Date |
Treaty |
Article |
Depositary |
Depositary ratification for EIF? |
22 Apr 1968 |
Rescue and Return of Astronauts and Objects17 |
7.2 |
UK, US and Soviet Union |
Yes |
1 Jul 1968 |
Nuclear Non-Proliferation Treaty18 |
IX.2 |
UK, US and Soviet Union |
Yes |
23 May 1969 |
Vienna Convention on the Law of Treaties19 |
82 |
UN S-G |
No |
16 Dec 1970 |
Suppression of Unlawful Seizure of Aircraft20 |
13.2 |
UK, US and Soviet Union |
No |
11 Feb 1971 |
Sea-Bed Treaty21 |
X.2
|
UK, US and Soviet Union |
Yes |
23 Sept 1971 |
Suppression of Unlawful Acts Against the Safety of Civil Aviation22 |
15.3 |
UK, US and Soviet Union |
No |
29 Mar 1972 |
International Liability for Damage caused by Space Objects23 |
XXIV. 2 |
UK, US and Soviet Union |
No |
10 Apr 1972 |
Biological and Toxin Weapons Convention24 |
XIV.2 |
UK, US and Soviet Union |
Yes |
30 Nov 1973 |
Suppression and Punishment of Apartheid25 |
14.1 |
UN S-G |
No |
14 Dec 1973 |
Prevention and Punishment of Crimes against Internationally Protected Persons26 |
15 |
UN S-G |
No |
14 Jan 1975 |
Registration of Objects Launched into Outer Space27 |
VIII.2 |
UN S-G |
No |
|
Date |
Treaty |
Article |
Depositary |
Depositary ratification for EIF? |
18 May 1977 |
Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques28 |
IX.2 |
UN S-G |
No |
9. As we have noted in our Evaluation Paper on Article XX Entry into Force29 , there is a clear transition during the 1960s and 1970s away from the triple-depositary mechanism and from the requirement for prior deposit of instruments by the three states to a system in which the UN Secretary-General is the Depositary and deposit by a varying number of States is required for entry into force. In this respect, there is particular interest that although the 1967 Peaceful Uses of Outer Space Convention requires the deposit of instruments of ratification by the three Depositaries for entry into force, the two subsequent associated Conventions -- the 1972 International Liability for Damage caused by Space Objects Convention and the 1975 Registration of Objects Launched into Outer Space Convention -- do not, with the former having the triple-depositary mechanism and the latter having the UN Secretary-General as Depositary. Similarly, this same trend is also shown by the much more recent 1996 CTBT, which can be regarded as a successor to the LTBT, and which has the Secretary-General of the UN as the Depositary as do the CWC and the Anti-Personnel Mines Treaty.
10. The use of the triple-depositary mechanism in nine treaties, of which the BTWC was the last, can be seen as a temporary device limited to alleviating the adverse impact of East-West problems on participation in multilateral treaties. It was designed to get round problems of non-recognition or absence of diplomatic relations by offering a choice among the three Depositary Governments with which to deposit instruments of ratification and accession. It lost much of its usefulness once the Federal Republic of Germany and the German Democratic Republic were admitted simultaneously to membership of the United Nations in 1973, and of the Conference of the Committee on Disarmament in 1975, with corresponding extension of recognition and diplomatic relations. Although the German case is only one of several which the triple-depositary mechanism was designed to address, it is evident that no treaty has chosen to make use of that mechanism since the BTWC in 1972. The use of the mechanism in the Protocol would thus be anachronistic: it cannot offer the prospect of increasing the overall roster of States Parties to the Protocol by overcoming East-West problems, as it could -- if only marginally and for a short time -- for the BTWC in 1972. The UN Secretary-General is thus the 'natural' choice of Depositary and does not require special justification.
11. There are clearly further arguments that can be considered. For example, it could be argued that the Depositary Governments are vital to the functioning of the BTWC and that it would make for an awkward, and unnecessary, dislocation if they were not also to be designated as Depositaries for the Protocol. However, it should not be overlooked that the triple-depositary mechanism in some respects is cumbersome. It has not been outstandingly effective in providing reliably definitive lists of States Parties and of Signatory States. Such lists have fortunately been produced periodically by the United Nations, most recently by the Secretariat for the Ad Hoc Group30, but the requirement to respect the Depositaries' position as the only authoritative source of such information has been a complicating factor.
12. The words inter alia preceding (a), (b) and (c) in Article XXII of the draft Protocol show that the formal responsibilities specified in those three sub-paragraphs do not exhaust the functions of the Depositary/ies for the Protocol. They constitute a permissive provision and suggest that the assumption of further functions is clearly envisaged. One of the most important additional functions which needs to be performed for the Protocol is recruitment. This includes, in particular, the encouragement of ratification by original signatories so as to bring the Protocol into force, and thereafter the promotion of universality, although at that stage the future BTWC Protocol Organization will have a major role to play as noted below. It is worth considering the potential role of the Depositary/ies in encouraging wider participation in the Protocol, before and after entry into force, as this is not a responsibility which the Protocol formally allocates to anyone.
13. Efforts at recruitment to the BTWC itself have been spasmodic at best, and not confined to the Depositary Governments. Australia was particularly active in encouraging wider BTWC participation in the Asia-Pacific region before the Third Review Conference in 1991, and the European Union countries (including one of the Depositaries) likewise undertook demarches, particularly towards African non-parties, at that time. Non-governmental organizations have also sought to encourage non-parties to ratify or accede to the BTWC; and successive Review Conferences have attempted to encourage the process of widening participation by issuing general exhortations. Nevertheless almost 50 states remain outside, so the combined effect of all these efforts has thus far fallen short of universality.
14. However, it needs to be recognised that once the Protocol has entered into force then the BTWC Organization can, under the guidance of its Conference of States Parties, be expected to undertake many of the promotional functions that encourage universality. The Organisation for the Prohibition of Chemical Weapons (OPCW) has been energetic in recruiting new States Parties to the CWC and the OPCW report31 on the implementation of the CWC in 1998 noted that
the number of States parties, which had increased from 87 at EIF to 105 on 31 December 1997, grew further to 121 exactly one year later. This rapid rate of continuing accession to the Convention (16 States parties, or 15%, in the past year), unprecedented in the history of multilateral disarmament agreements, reflected the growing recognition by the international community of the urgency of the task of the global elimination of chemical weapons and of the pivotal role which the OPCW plays in this endeavour....The Organisation's efforts to achieve universality of the Convention continued at various levels.
It can therefore be expected that the future BTWC Organization will be equally energetic in pursuing universality for the Protocol. This will be particularly important for the BTWC Protocol because of the importance of minimizing the extent and duration of a two-tier structure of obligation as between those BTWC States Parties that accept the Protocol and those which do not.
15. As we conclude in our Evaluation Paper on Article XX Entry into Force32 that entry into force should not require the prior deposit of the instruments of ratification of the three Depositaries of the BTWC, the option of having the three BTWC Depositaries being designated as Depositaries for the Protocol without requiring the three Depositaries to deposit their instruments of ratification prior to entry into force of the Protocol could also be considered; such an arrangement would effectively follow the precedent of the 1971 Convention on the Suppression of Unlawful Acts against the Safety of Civil Aviation33 and the 1972 Convention on International Liability for Damage caused by Space Objects34. However, such an option appears to offer no advantages and is therefore not considered further.
16. We conclude that the case for the three Depositaries of the BTWC also being the Depositaries of the Protocol is not compelling and therefore based on the overall argument we recommend that the Depositary in Article XXII should be the UN Secretary-General in line with prevailing practice in the multilateral disarmament agreements of the 1990s.
Strike-through text for Article XXII
17. Our view is that Article XXII should be based on the UN Secretary-General as the Depositary as follows:
ARTICLE XXII
DEPOSITARY/IES
The
[Secretary-General of the United Nations] [Governments of the Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America][is][are]hereby designated as the[Depositary][Depositaries]of this Protocol and shall, inter alia:(a) Promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification or accession and the date of the entry into force of this Protocol, and of the receipt of other notices;
(b) Transmit duly certified copies of this Protocol to the governments of all signatory and acceding States; and
(c) Register this Protocol pursuant to Article 102 of the Charter of the United Nations.
--------------------------------------------
* Graham S. Pearson is a Visiting Professor of International Security in the Department of Peace Studies at the University of Bradford, Bradford, West Yorkshire BD7 1DP, UK.
† Nicholas A. Sims is a Senior Lecturer in International Relations in the Department of International Relations at the London School of Economics and Political Science, University of London, Houghton Street, London WC2A 2AE, UK.
1. Graham S. Pearson, The Strengthened BTWC Protocol: An Overall Evaluation, Evaluation Paper No. 1, University of Bradford, July 1999. Available on http://www.brad.ac.uk/acad/sbtwc
2. United Nations, 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, BWC/AD HOC GROUP/46 (Part I), 30 July 1999, Geneva.
3. United Nations, Proposals for further consideration by the Friend of the Chair on Legal Issues, BWC/AD HOC GROUP/FOC/22, 28 July 1999 in Annex IV of 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, BWC/AD HOC GROUP/46 (Part II), 4 August 1999, Geneva.
4. United Nations, Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, General Assembly Resolution 2826 (XXVI), 16 December 1971.
5. Organization for the Prohibition of Chemical Weapons, Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Available on the web at http://www.opcw.nl
6. Comprehensive Nuclear-Test-Ban Treaty. Available at http://www.ctbto.org/ctbto/pdf/cbten.pdf
7. United Nations, The Third Review Conference 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, Final Document, Geneva, 9-27 September 1991, BWC/CONF.III/23, Geneva 1992, Part II, page 15-16.
8. Graham S. Pearson, Cuban Allegation of BW Attack: The Final Report, The ASA Newsletter, 98-2, 30 April 1998, p.28.
9. United Kingdom Permanent Representation to the Conference on Disarmament, Letter to All States Parties to the Biological and Toxin Weapons Convention dated 15 December 1997, Geneva.
10.Richard Boucher, US Department of State, Spokesman, Joint US/UK/Russian Statement on Biological Weapons, 14 September 1992.
11.Convention on the Prohibition of the Use, Stockpiling, Production and Transfer or Anti-Personnel Mines and on Their Destruction, 18 September 1997. Available on the web at http://www.mines.gc.ca/english/documents/ treaty.html
12.Vienna Convention on Diplomatic Relations and Optional Protocols. Available at http://www.tufts.edu/ departments/fletcher/multi/texts/BH408.txt
13.Vienna Convention on Consular Relations and Optional Protocol. Available at http://www.tufts.edu/ departments/fletcher/multi/texts/BH444.txt
14.Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and under Water. Known as the Limited Test Ban Treaty or the Partial Test Ban Treaty. Available at http://www.acda.gov/treaties/itbt1.htm#2
15.International Convention on the Elimination of All Forms of Racial Discrimination. Available at http:// www. tufts.edu/departments/fletcher/multi/texts/BH490.txt
16.Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. Available at http://www.acda.gov/treaties/ space1. htm
17.Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space. Available at http://www.tufts.edu/departments/fletcher/multi/texts/BH523.txt
18.United Nations, Treaty on the Non-Proliferation of Nuclear Weapons, Treaty Series, Vol. 729, I. No. 10485, 168-175, 1970.
19.Vienna Convention on the Law of Treaties. Available at http://www.tufts.edu/departments/fletcher/multi/ texts/BH538.txt
20.Convention on the Suppression of Unlawful Seizure of Aircraft, The Hague, 16 December 1970.
21.Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof. Available at http://www.acda.gov/treaties/ seabed1.htm
22.Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation. Available at http:// www.tufts.edu/departments/fletcher/multi/ texts/BH586.txt
23.Convention on International Liability for Damage caused by Space Objects. Available at http://www.tufts. edu/departments/fletcher/multi/ texts/BH595.txt
24.United Nations, Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, General Assembly Resolution 2826 (XXVI), 16 December 1971.
25.International Convention on the Suppression and Punishment of the International Crime of Apartheid, 30 November 1973, New York.
26.Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, 14 December 1973, New York.
27.Convention on Registration of Objects Launched into Outer Space. Available at http://www.tufts.edu/ departments/fletcher/multi/ texts/BH653.txt
28.Convention on Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques. Available at http://www.tufts.edu/departments/fletcher/multi/ texts/BH700.txt
29.Graham S. Pearson & Nicholas A. Sims, Article XX: Entry into Force, Evaluation Paper No. 5, University of Bradford, September 1999. Available on http://www.brad.ac.uk/acad/sbtwc
30.The latest such listing is United Nations, List of States Parties and List of Signatories to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, BWC/AD HOC GROUP/INF.20, 20 July 1999
31.Organization for the Prohibition of Chemical Weapons, Report of the Organization on the Implementation of the Convention (1 January - 31 December 1998), Conference of States Parties, Fourth Session, 28 June - 2 July 1999, C-IV/5, 2 July 1999.
32.Graham S. Pearson & Nicholas A. Sims, Article XX: Entry into Force, Evaluation Paper No. 5, University of Bradford, September 1999. Available on http://www.brad.ac.uk/acad/sbtwc
33.Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation. Available at http:// www.tufts.edu/departments/fletcher/multi/ texts/BH586.txt
34.Convention on International Liability for Damage caused by Space Objects. Available at http://www.tufts. edu/departments/fletcher/multi/ texts/BH595.txt