Graham S. Pearson
The Biological Weapons Convention (BWC), which was opened for signature nearly 25 years ago, is a key if often unappreciated element in international efforts to combat the proliferation of weapons of mass destruction. The first arms control treaty to seek the elimination of an entire class of weapons, the BWC established a strong legal norm against the development, possession, stockpiling and use of biological agents and toxins for offensive purposes. As of January 1997, 140 countries had become states parties to the treaty; an additional 18 states have signed but not yet ratified the accord. (See Factfile.)
Despite the comprehensive nature of the treaty, the specter of biological warfare has assumed a new urgency during the past several years. The United States believes that twice as many states now have or are actively pursuing offensive biological weapons capabilities as when the convention entered into force in 1975.1 The growing threat posed by biological weapons proliferation has focused increasing attention on the operation of the BWC and highlighted the convention's key weakness: the absence of an effective verification regime. From November 25 through December 6, 1996, the states parties to the BWC held their fourth review conference in Geneva to review the operation of the convention. Although BWC parties have not completed the negotiation of a legally binding instrument to strengthen the treaty, the fourth review conference nonetheless provided important impetus to the convention's evolution into an effective component of international non proliferation efforts.
A Changing World
The fourth BWC review conference was a particularly important meeting as there had been significant progress in international arms control since the third review conference in September 1991. In May 1995, more than 170 states parties to the nuclear Non Proliferation Treaty (NPT) agreed without dissent to indefinitely extend the accord. In September 1996, after an overwhelming vote of approval by the UN General Assembly, the Comprehensive Test Ban Treaty (CTBT) was opened for signature and signed by all five declared nuclear weapon states. (As of February 1, 1997, 140 countries had signed.) On October 31, 1996, Hungary became the 65th signatory to the Chemical Weapons Convention (CWC) to deposit its instrument of ratification, starting the clock ticking for the treaty's entry into force on April 29, 1997.
In contrast to these positive developments, the principal shortcoming of the BWC—its lack of effective verification provisions—was thrown into sharp focus by a growing awareness during the past five years that biological weapons remain a real concern.
In early 1992, Russian President Boris Yeltsin acknowledged that the former Soviet Union, despite being one of three depositary states along with the United States and the United Kingdom, had continued an offensive biological weapons program through March 1992. In September 1992, the United States, the United Kingdom and Russia issued a joint statement, initiating a process aimed at building confidence that Russia's offensive biological warfare program had been terminated. However, in its July 1996 compliance report to Congress, the Arms Control and Disarmament Agency (ACDA) said, "[W]hile there had been progress towards achieving the openness intended in the Joint Statement, the progress has not resolved all U.S. concerns," and that the United States remains "actively engaged in efforts to work with the Russian leadership to ensure complete termination of the illegal program ..." The United Kingdom has closely similar views.
The UN Special Commission on Iraq (UNSCOM), tasked with ensuring the elimination of Iraq's weapons of mass destruction programs and its proscribed ballistic missile activities, had by October 1995 determined that Baghdad—although a 1972 signatory of the BWC—had produced and weaponized large quantities of biological warfare agents. In addition, Iraq had deployed aerial bombs and Scud missile warheads filled with biological agents to four locations prior to the 1991 Gulf War, and had predelegated authority to launch these weapons if Iraq had been attacked with nuclear weapons. Iraq was also working on a 3,000 kilometer range missiles that was reportedly capable of delivering biological warheads to most European capitals.2
In Japan, the Aum Shinrikyo sect, which launched attacks in the Tokyo subway in March 1995 using the nerve gas Sarin, had initially worked on biological weapons. According to some analysts, it appears that biological agents were the group's preferred weapon of choice.
These vivid instances of the threat posed by biological weapons proliferation highlighted the urgent need to address the limitations of the BWC. In his September 1996 address to the UN General Assembly, President Bill Clinton underscored this important objective, saying, "[W]e must better protect our people from those who would use disease as a weapon of war, by giving the Biological Weapons Convention the means to strengthen compliance ..."
An Evolutionary Process
The fourth review conference represented yet another marker along the path of the BWC's evolution. In the five years since the last review conference, states parties have engaged in a series of steps aimed at strengthening the convention. The third review conference had mandated the establishment of an Ad Hoc Group of Governmental Experts (commonly referred to as VEREX, for "verification experts") to examine possible verification measures from a scientific and technical viewpoint. VEREX, which met four times in 1992 and 1993, evaluated 21 possible on site and off site measures.
The final VEREX report emphasized that "declarations" were the most frequently identified measure for application in combination with other measures. The most frequently identified on site measure for application with other measures was "inspections" (including interviewing, visual inspection, identification of key equipment, sampling and auditing).
The VEREX report was considered by a special conference in September 1994, which mandated the convening of another Ad Hoc Group (AHG) to consider appropriate measures to strengthen the BWC to be included, as appropriate, in a legally binding instrument. Building on the work of VEREX, the Ad Hoc Group has, through four "Friends of the Chair," produced papers that reflect the discussions that have so far taken place but without prejudice to the positions of delegations. Some these papers have gone through several iterations. The AHG had held four substantive meetings—two in 1995 and two in 1996—and produced a progress report that was considered by the fourth review conference. The next step is to start negotiations on an integrated text so that unresolved issues can be debated. The principal area requiring resolution is the precise nature of the on site visits/inspections, how such visits/inspections will be triggered and what measures will be available to the inspectors. Given the political will demonstrated at the review conference for the strengthening of the BWC, the AHG should be able to make rapid progress toward completing its work within the next year or two.
Seventy seven states parties participated in the fourth review conference. Three countries (Egypt, Morocco and Myanmar) which have signed but not ratified the BWC also attended, and Algeria, Kazakhstan, Israel and Macedonia were granted observer status. The United Kingdom's ambassador to the Geneva based Conference on Disarmament (CD), Sir Michael Weston, served as president of the review conference, and Ogunsola Ogunbanwo served as secretary general.
Although this fourth review conference had a two week duration, unlike the previous review conferences which lasted three weeks, the approach adopted paralleled that of previous years, with a general debate followed by detailed consideration of each of the convention's 15 articles. The conference's Committee of the Whole, chaired by Ambassador Jorge Berguno of Chile, reviewed the operation of the convention and the work of the Ad Hoc Group and addressed other relevant issues. The Drafting Committee, under the chairmanship of Ambassador Tibor Tóth of Hungary, prepared the final document for consideration by the conference.
One valuable innovation of the fourth review conference was the adjournment of the Committee of the Whole on the final day of its meetings to enable representatives from non governmental organizations (NGOs) to make statements to the conference in an informal session. Eleven of the 16 NGOs that attended the conference made statements, including the Federation of American Scientists, the Pharmaceutical Research and Manufacturers of America and the Chemical and Biological Arms Control Institute.
During the general debate, 31 states parties as well as the International Committee of the Red Cross (ICRC), which was granted observer status, made statements. The U.S. statement was given by John Holum, director of the Arms Control and Disarmament Agency. It was evident at the review conference that there existed a clear political will to strengthen the convention, as every state which spoke in the general debate expressed support for the work of the Ad Hoc Group. The United Kingdom's minister of state for foreign affairs, David Davis, neatly summed up the task before the conference:
...Biological weapons have for 25 years remained something of a Cinderella in international efforts to control the spread of weapons of mass destruction ... A general perception held that the biological weapons problem was solved; that it did not present a real risk or threat ... But over the last decade, we have seen these comfortable assumptions overturned ... The conference would be failing in its duty if it did not do all it could to ensure that—well before the millennium—there is in place a verification system which will consolidate and strengthen the ... convention's total ban on biological weapons.
The key issues at the fourth review conference related to four of the treaty's articles: Article I, which defines the basic prohibitions, or the "scope," of the convention; Article IV, which addresses national implementation measures; Article V, which deals with the consultative process for problems arising from treaty implementation; and Article X, which concerns cooperation among states parties for peaceful purposes.
The conference, in its Final Declaration, (BWC/CONF.IV/9), adopted important new language regarding the scope of the convention, moving beyond that approved at the third review conference. The new declaration stated:
The Conference, conscious of apprehensions arising from relevant scientific and technological developments, inter alia, in the fields of microbiology, biotechnology, molecular biology, genetic engineering and any applications resulting from genome studies, and the possibilities of their use for purposes inconsistent with the objectives and the provisions of the Convention, reaffirms that the undertaking given by the States Parties in Article I applies to all such developments. [Emphasis added.]
The language regarding developments in the fields of microbiology, genetic engineering and biotechnology reiterated that contained in the final declaration of the previous review conference. However, the fourth review conference's addition of "molecular biology" and "any applications resulting from genome studies" makes it clear that any misuse of genome information for the design of weapons targeted against specific ethnic or racial groups would be a clear contravention of the convention. This point was made in the background paper prepared for the conference on new scientific and technological developments relevant to the treaty.3
The Final Declaration also reaffirmed that the convention "unequivocally covers all microbial or other biological agents or toxins, naturally or artificially created or altered, as well as their components, whatever their origin or method of production ..." [Emphasis added.] The inclusion by the conference of "as well as their components" represents a significant extension of the BWC's scope because it avoids any possibility of ambiguity as to whether components of living micro organisms or toxins— an area in which rapid progress has been made in understanding how they may be produced and how they may act—are included in the prohibition of the convention.
...The final language adopted by the conference on treaty non compliance was weaker than some states had hoped for. In the general debate, Australia, France, the United Kingdom and the United States all named Iraq and the former Soviet Union as being in non compliance with the BWC. In his statement to the conference, the representative from the United Kingdom referred to "The existence of a massive offensive biological weapons programme conducted illegally for years in the Soviet Union [that] has recently come to light."
However, the negotiations leading to the Final Declaration were difficult. Although both Iraq and Russia had openly acknowledged, since the third review conference, having had offensive biological weapons programs, neither country wanted to see any specific mention of these treaty violations. The United States had proposed relatively mild language with regard to the issue of non compliance:
...The Conference notes the efforts of UNSCOM to address some of these concerns and expresses its support for the early and satisfactory completion of UNSCOM's important work. The Conference also notes the important decree by the President of the Russian Federation in April 1992 indicating that his country would accomplish its obligations under the Convention. The Conference expressed the hope that the objectives outlined in that decree would rapidly be fulfilled.But in the final debate even this was rejected and the Final Declaration made no mention of UNSCOM, Iraq or the Russian Federation. Rather, it simply stated:
...The Conference emphasizes, once more, the vital importance of full implementation by all States of all the provisions of the Convention, especially Articles I, II and III. The Conference agrees that the application by States Parties of positive approaches in accordance with the provisions of the Convention is in the interests of all States Parties and that any non compliance with its provisions would undermine confidence in the Convention. Non compliance should be treated with determination in all cases, without selectivity or discrimination.
A Debate Over Use'
An unexpected development arose during the first day of the fourth review conference when Iran put forward a formal proposal to amend the convention by adding the word "use" to the title of the treaty and to the prohibition in Article. In the general debate, the Iranian delegation said it remained "a major oversight for the Convention not to prohibit the use of biological weapons expressly and categorically." The Iranians argued that there is a need for a total ban that is explicit and devoid of judgmental interpretations, and that the lack of explicit reference in the convention itself and the persistence of reservations to the 1925 Geneva Protocol can leave the door ajar for those states that may hold a different opinion on the question of use. The Iranians viewed such an amendment as a way of ending any inconsistency in interpretations of the convention's prohibitions.
The Iranian proposal was discussed at length during the meetings of the Committee of the Whole.4 Many participants held the opinion that Article I's prohibition on developing, producing, stockpiling or otherwise acquiring or retaining biological weapons implicitly and effectively prohibits any use of such weapons. They also suggested that the final declarations of previous review conferences had clearly restated this view. In addition, some delegations expressed caution about the idea of amending the BWC, noting that an amendment to one article would open up the convention for possible amendments to other provisions, thereby weakening the regime. Moreover, they said, such an amendment might create a two tier regime under which states parties that had not accepted the amendment would appear to condone the use of biological weapons.
In the end, the review conference's Final Declaration made two strong statements with respect to Article I, making it very clear that the use of biological weapons is prohibited by the convention. The first statement said:
...The Conference reaffirms that the use by the States Parties, in any way and under any circumstances, of microbial or other biological agents or toxins, that is not consistent with prophylactic, protective or other peaceful purposes, is effectively a violation of Article I of the Convention.The declaration also stated:
The Conference reaffirms the undertaking in Article I never in any circumstance to develop, produce, stockpile or otherwise acquire or retain weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict, in order to exclude completely and forever the possibility of their use.In light of this clear and strong prohibition against use, states parties will be considering whether there is indeed any need to modify the convention as proposed by Iran, bearing in mind what such a modification could entail. Nevertheless, the conference's Final Declaration concerning Article XI (which deals with the amendment process) notes that Iran has formally presented a proposal to amend Article I and the title of the convention, and that the depositary states are notifying all parties of the proposal. In addition, states parties have been encouraged to convey their views to the depositaries regarding the need to amend the treaty to explicitly prohibit the use of biological weapons. The review conference also requested that the depositary states take such measures as may be requested by a majority of states parties, including the option of convening an amendment conference open to all parties.
As expected, following the June 1996 meeting of the leaders of the Group of Seven (G 7) industrialized states and a subsequent ministerial meeting the following month, the conference Final Declaration language on Article IV gave added emphasis to the importance of national measures for effective BWC implementation.
Surprisingly, during the general debate only six states parties (Brazil, Canada, France, Romania, the Slovak Republic and the United States) mentioned the possible terrorist use of biological materials and the relevance of national measures to prevent their use for terrorist purposes.
The Final Declaration stated:
...The Conference ... reaffirms the commitment of States Parties to take the necessary national measures under [Article IV] ... to ensure the prohibition and prevention of the production, development, production, stockpiling, acquisition or retention of the agents, toxins, weapons, equipment and means of delivery ... anywhere within their territory, under their jurisdiction or under their control, in order to prevent their use for purposes contrary to the Convention. The States Parties recognize the need to ensure, through the review and/or adoption of national measures, the effective fulfillment of their obligations under the Convention in order, inter alia, to exclude use of biological and toxin weapons in terrorist or criminal activity.
The fourth review conference addressed two principal issues with respect to Article V's call for consultation and cooperation for treaty implementation: confidence building measures (CBMs) and the ongoing work of the Ad Hoc Group. Beginning with the second review conference, BWC parties have sought to enhance transparency through a series of politically binding declarations, data exchanges and other CBMs addressing a broad spectrum of treaty relevant activities. Unfortunately, participation in these measures has remained limited.
During the most recent review, several states parties emphasized the importance of CBMs in the general debate, but two countries (Brazil and India) referred to the problem of the resources needed to complete such measures. Two other parties (Nigeria and the Slovak Republic) said the CBMs should be further modified and improved, while Australia said it would be a mistake to consider any amendment before the Ad Hoc Group concluded it work. Disappointingly, there was little recognition that BWC parties regarded current confidence building efforts to be of continuing importance up to the entry into force of the proposed verification protocol and beyond. There were, in fact, no agreements to modify the modalities of existing CBMs and an attempt to clarify what the existing measures required failed.
The Final Declaration simply declared:
...The Conference welcomes the exchange of information carried out under the confidence building measures, and notes this has contributed to enhancing transparency and building confidence. The Conference recognizes that participation in the confidence building measures since the last Review Conference has not been universal, and that not all responses have been prompt or complete. In this regard, the Conference also recognizes the technical difficulties experienced by some States parties with respect to preparing CBM responses. In this regard, the Conference urges all States Parties to complete full and timely declarations in future.With respect to the work of the Ad Hoc Group, every country that offered a statement during the general debate spoke in favor of the work of the panel and the need to strengthen the BWC. However, a South African proposal for Final Declaration language outlining the elements of a new protocol failed to find consensus, even though several countries had all mentioned similar elements during the general debate. Among the elements included in the South African proposal were comprehensive annual declarations; on site measures, including investigations on non compliance concerns; voluntary confidence building measures; and measures to implement Article X (cooperation for peaceful purposes).
In addition, a proposal calling on the Ad Hoc Group to complete its work by 1998 also failed to generate a consensus despite strong support by the United States, European Union countries, Australia, New Zealand, Romania and the Slovak Republic. Russia, India, Pakistan, Indonesia and Bangladesh, among other states, argued against setting such a deadline.
To some extent, this reluctance to set a deadline stemmed from the experience of the CD in negotiating the Comprehensive Test Ban Treaty (CTBT) against a deadline during 1995 and 1996. It is likely that Indonesia's representative had this in mind when he told the conference, "Recent developments the Conference of Disarmament has gone through teach us a very valuable lesson."
During the general debate, the statements of five states (Australia, Canada, South Africa, South Korea and Russia) addressed the need for the Ad Hoc Group to move on to a new form of negotiation based on a "rolling text." The Australian statement said, "To date the papers produced by the Friends of the Chair have served us well in consolidating and developing the ideas put forward by delegations. However, we believe that the usefulness of this form of negotiations has run its course and that we should be looking to move to some form of text based negotiations at the March session."
This view was agreed to by the conference and reflected in the Final Declaration, which endorsed the work of the Ad Hoc Group and encouraged it to move on to a negotiating format:
The Conference welcomed the decision of the Ad Hoc Group, in order to fulfil its mandate, to intensify its work with a view to completing it as soon as possible before the commencement of the Fifth Review Conference and submit its report, which shall be adopted by consensus, to the States Parties, to be considered at a Special Conference. The Conference encourages the Ad Hoc Group to review its method of work and to move to a negotiating format in order to fulfil its mandate.There appears to be growing recognition that no new measures are needed for an enhanced BWC verification regime—the necessary measures currently exist as part of other agreed arms control regimes. What the AHG needs to do is to integrate and tailor the essential measures to meet the requirements of the BWC. Given the political will demonstrated at the review conference, there is a real opportunity for the Ad Hoc Group to make substantial progress when it resumes its negotiations in Geneva in March 1997.
It would be a real service to the Ad Hoc Group if participants at the March meeting arrived in Geneva with draft language that draws upon the deliberations of the AHG to date. Indeed, it is possible that a party such as South Africa, which put forward excellent proposals at the review conference, could table a draft text for a verification protocol at the outset of the meeting. It would be even better if South Africa were able to do this in consultation with other states that had also made clear their wish to see the AHG talks move on to text based negotiations.
Since the third review conference, the 1992 UN Conference on Environment and Development (the Rio Earth summit) and the signing and entry into force of the conventions on biological diversity and on climate change meant that the developed world had acknowledged to a much greater extent the needs of the developing world. Consequently, at the fourth review conference there was an appreciation that there is no strong argument for BWC parties to duplicate actions being taken in other fora for environmental and health reasons. Instead, the states parties emphasized the potential synergy between such actions and the increased transparency and confidence being sought through the BWC for improved international security.
As a result, the review conference took note of the significant steps to promote cooperation in the biological field taken at the Rio summit (including the adoption of "Agenda 21" and the Rio declaration) and through the Convention on Biological Diversity, and underlined their importance in the context of implementing Article X of the BWC. The conference also shared the worldwide concern about new, emerging and re emerging infectious diseases and considered that the international response to them offered opportunities for increased cooperation in the context of Article X.
There was also much discussion by BWC parties of the relationship between Article X and Article III (under which states parties undertake not to transfer or to assist any state in manufacturing or acquiring any of the agents, toxins, weapons or means of delivery specified in Article I). It is this relationship that lies at the heart of the perceived tension between developing and developed countries, with the former seeking to emphasize Article X while the latter are conscious of their obligations under Article III to counter proliferation. The developing countries are arguing for multilaterally agreed guidelines to counter proliferation. This debate will clearly continue into the future. However, the review conference usefully agreed that states parties should consider ways and means to ensure that individuals and subnational groups are effectively prevented from acquiring, through transfers, biological agents and toxins for other than peaceful purposes, thereby helping to counter possible terrorist use of such materials.
The fourth review conference took an important step forward in reaffirming the importance of the BWC and the norm against biological warfare. The language in the Final Declaration making it clear that all advances in molecular biology and any applications of genome studies are covered by the regime, and the strong statements that use of biological weapons—at any time and under any circumstances—is prohibited represent valuable advances.
In the wake of the Japanese experience with nerve gas attacks, the importance of national measures to exclude use of biological and toxin weapons in terrorist or criminal activity was rightly emphasized. The need to strengthen the convention was clearly recognized by the widespread support for the work of the Ad Hoc Group, as was the continued importance of providing full and timely declarations under the agreed confidence building measures.
There is consequently no doubt that biological weapons are totally prohibited and that there are no loopholes resulting from advances in biotechnology and related sciences over the years since the BWC entered into force. The weakness of the convention—its lack of verification provisions—was universally recognized, and the political will by states parties to strengthen the regime was demonstrated by encouraging the Ad Hoc group to intensify its work to negotiate a legally binding instrument. In its meetings this year, the AHG should make good progress in developing the text of the instrument as nothing novel is required for strengthening the BWC. Rather, measures already internationally accepted in other arms control regimes need to be tailored and integrated into a verification regime for the BWC. The developments since the third review conference make it clear that the strengthening of the BWC is an urgent task, and as President Clinton said in September 1996, "We should aim to complete this task by 1998." The time for action is now.
Graham S. Pearson is honorary senior visiting research fellow in peace studies at the University of Bradford in Bradford, England. He was formerly director general and chief executive of the Chemical and Biological Defence Establishment at Porton Down, Wiltshire, England.
- Statement of John D. Holum, director of the Arms Control and Disarmament Agency to the Fourth BWC Review Conference, November 26, 1996.
- UN Security Council Document S/1995/864, 11 October 1995, paragraph 42.
- BWC/CONF.IV/4, Add.1; Add.2.
- A useful summary of the debate is provided in Annex I to the Report of the Committee of the Whole, BWC/CONF.IV/COW/CRP.1 and Corr.1.