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Back to Basics: Steering Constructive Evolution of the BWC
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Nicholas A. Sims

When the Sixth Review Conference of States-Parties to the Biological Weapons Convention (BWC) meets later this year, it will mark the first full review of this 155-member treaty since 1991. The previous two gatherings of this once-every-five-years event took a backseat to somewhat separate and ultimately unsuccessful efforts to strengthen the convention with a legally binding instrument.

This year’s meeting would be well served if it resumed the process sidetracked for the past 15 years of steering the constructive evolution of the treaty regime, drawing on the latent strength of the BWC as it stands, and resisting the temptation to amend, supplement, or diminish it.

Resuming this path will not be easy. States-parties have agreed to numerous “extended understandings,” definitions, and politically binding commitments. These commitments recorded in the form of Final Declarations at the review conferences of 1980, 1986, and 1991 were reaffirmed and in some cases strengthened during the fourth review conference of 1996. Even reaffirming all the individual points of agreement achieved in past years will be difficult.

A Preparatory Committee (PrepCom) meeting later this month in Geneva could be crucial to shaping the success of the review conference. Traditionally, the BWC PrepCom has limited itself to strictly organizational tasks: approving the agenda, budget, documentation and committee structure for each review conference; allocating vice presidencies; and nominating chairs and vice-chairs for its committees.

This month’s PrepCom, however, should do more than merely approve routine organizational decisions. Ambassador Paul Meyer of Canada recently called for the PrepCom to “be structured in such a way as to foster substantive discussions” and to look for ways to create “review conference deliverables.”[1] The April 26-28 meetings will not allow much time for negotiation, but the PrepCom could usefully spend this time in part by commissioning technical work from its secretariat—a small staff complement provided by the UN Department for Disarmament Affairs—so that the conference itself could consider draft budgets and programs.

The Agenda

To arrive at a consensus agenda, however, the states-parties will first have to find a way to patch over the wounds that still remain from the failed 1995-2001 Ad Hoc Group effort to craft a strengthening protocol (see sidebar) and the deeper differences that lay behind that breakdown. Those differences include deep U.S. reluctance to support binding multilateral instruments, the feasibility of effective verification in the biological weapons field, and the relative value of national versus international measures in this arena. Indeed, the continuing divisions have reportedly already been reflected in the inability so far of the three treaty depositaries (Russia, the United Kingdom, and the United States) to decide whether the review conference needs to take up all of the three-week period (Nov. 20-Dec. 8) that it has been allocated.

The Europeans can be expected to play a key role in resolving such differences and in keeping the issue of the strengthening protocol on the long-term review conference agenda without hampering the ability of this year’s gathering to carry out effective work. In particular, the Europeans made clear in recent statements that the European Union “remains committed to developing measures to verify compliance” with the BWC. Yet, they also seem to recognize that, given the intransigence of the United States (and others) on the subject of verification, this could only be a distant prospect. They have said that at the review conference, “efforts should focus on specific, feasible and practical enhancements to strengthen the Convention and its implementation.”[2]

If the EU efforts to bridge the gaps are successful, it should be possible for the PrepCom to tee up several useful proposals for the review conference to consider and ultimately agree on. Indeed, several practical proposals, particularly from Canada and the EU, have already drawn widespread interest.

 Action Plans for Universalization and National Implementation

Efforts to encourage countries to sign and ratify the treaty have thus far been diffuse and spasmodic. Sixteen states have yet to ratify the treaty despite signing it more than three decades ago; more than 20 states have not even signed the treaty. State-party action plans for universalization and national implementation could make this effort more systematic and durable.

Action plans could persuade states- parties to take more seriously their treaty obligations to take legislative or other “necessary measures to prohibit and prevent” banned activities. Prohibition on its own is not enough; the “prevention criterion” quoted from Article IV of the convention is a stringent one and rightly so. There has been an increasing emphasis too on the need for national legislation to include penalties that can be imposed directly on individuals and on the need to close jurisdictional loopholes.

The first step, however, is to take the measures required by Article IV of the convention. In March 1980, the first review conference called on all states-parties that had not yet taken such measures to do so “immediately.” Twenty-six years later, no one knows exactly how many have done so, but the most comprehensive survey, published in 2003, found many gaps.[3]

National implementation, like universalization, is incomplete, hence the need for action coordinated on behalf of the states-parties as a whole.

The Chemical Weapons Convention (CWC) experience offers some useful tips. CWC states-parties inaugurated action plans both for universalization and national implementation in 2003 with some success. The CWC, although only in force since 1997, already has a membership of 178. By contrast, the BWC has been in force since 1975 but only claims 155 states-parties. Yet, the BWC is no less vital a treaty.

The CWC experience of 2003-2005 also shows that many governments welcome help in drafting legislation on implementing such international conventions. Many are willing to acknowledge that past legislation has sometimes been less than comprehensive in meeting its coverage of CWC obligations, a point on which BWC states-parties should be usefully forewarned in launching their own action plan for BWC national implementation. They should keep the “prevention criterion” of Article IV at the forefront of their minds and demand the highest standards both in the drafting and the application of national implementation measures. Fortunately, BWC states-parties can benefit from useful initiatives in national implementation technical assistance and capacity building, including draft model legislation, by the Verification Research, Training and Information Centre (VERTIC) and the International Committee of the Red Cross.

Additional Transparency and Confidence-Building Measures

Confidence-building measures (CBMs) were formally introduced into the BWC regime in 1986-1987. They were enhanced and expanded in 1991, and since 1992 every state-party has been under a politically binding commitment to make an annual declaration on or before April 15, supplying information in eight categories. User-friendly options of “nothing to declare” and “no change” make the task minimal for many, yet participation remains patchy. Some states-parties report scrupulously and even put their declarations online for all the world to see; others ignore the entire program. Most states-parties have reported occasionally, but very few report every year and in every category. The United Nations has neither the authority nor the resources to add value in processing the CBM declarations. Indeed, the only true systematic work has been done by a private group: the Study Group on Biological Arms Control at the University of Hamburg, which has conducted exhaustive surveys of the CBM declarations from 1987 to 2003 to ensure that this aspect of the BWC receives attention.

At both the 1996 and 2001 review conferences, proposals were made to improve this process, but the measures did not advance. This year’s conference should introduce a long overdue rationalization so that the program actually builds confidence in the BWC and in states’ compliance with the obligations flowing from it.

Transparency measures are particularly needed to govern countries actions to protect against a biological weapons attack. Biodefense is not forbidden, but any biological agents and toxins held must be of types and quantities that match the treaty’s criteria in Article I—prophylactic, protective or other peaceful purposes—and so too must any development or production activities. There are legal issues that await authoritative resolution over where the BWC places the limits of permissible biodefense, especially when programs extend to the design of weapons and equipment for purposes of threat assessment, that is, employing weapons and agents to develop antidotes and other defenses.[4]

In principle, it should be possible to conduct biodefense without transgressing the limits.

Nonetheless, some aspects of such work continue to generate apprehensions of malign intent. The CBM program was supposed to include biodefense information so that countries could be reassured that other states’ protective programs are just that and are not tipping over into the development of an offensive capability or preparing for breakout from the BWC’s restrictions Yet, an understandable reluctance to reveal areas of vulnerability has sometimes prevailed over the good intentions of those who made CBMs an integral part of the BWC in force. It is a problem of long standing and there are no easy solutions, but a thorough review of the BWC cannot afford to ignore it.

A partial solution, proposed in Arms Control Today by Jonathan Tucker in 2004, may bear re-examination. Tucker called for integrating Canada, the European Union, and the United States into a collaborative biodefense network in order to “give the international community greater confidence that Washington is not pursuing a unilateral path in this highly sensitive area and that its biodefense [research and development] program is fully compliant with the BWC.”[5]

Annual Meetings

One good thing to come out of the “work program” of 2003-2005 was two sets of annual meetings in between the review conferences. Governments acquired the habit of spending two weeks each year in BWC experts meetings and one week each year in BWC states-parties gatherings.

Annual meetings of states-parties through 2007-2010 would be a natural development to help the BWC bridge the long interval between the sixth and seventh review conferences. The EU has already started appropriate action in this direction, having begun to draft a proposed second “work program” for 2007-2010 to be considered by the re view conference.

Hopefully, narrow topics will be replaced by broader themes for this second “work program.” The 2003-2005 series was limited to five topics in all, with minimal integration of outcomes across years. So, for example, there was no opportunity in 2005 to take stock of developments in national implementation since 2003 or of subsequent progress on the 2004 topics. Additionally, much of the BWC was officially off-limits, so no BWC-wide impetus could build up.

It would be best to supersede the 2003- 2005 pattern of agenda-limited separate meetings of experts and states-parties with single combined two-week-long and BWC-wide annual meetings that include states-parties and experts. If that is not possible, the aim should be to cover the entire range of BWC issues systematically, with no aspect of the treaty regime ruled off-limits. Moreover, the agenda should be reorganized to put the time available to better use each year, with analysis and synthesis documents leading to more substantive final-document outcomes than were obtained in 2003-2005 despite the best efforts of the successive chairs.[6]

Continuity might be enhanced through working groups on particular themes brought together at the annual meetings. Alternatively or additionally, the meetings of experts, if retained, might be used in part to exchange views systematically on scientific and technological developments relevant to the BWC. These are all possibilities which states-parties should consider, seeking agreement on the best of them, between now and November.

Establishing a Scientific Advisory Body

Some mechanism is needed to provide expert advice to states-parties, collectively, on developments in science and technology relevant to the BWC. Review conferences have attended increasingly to developments in genetics and other life sciences. Yet, the pace of change is such that conducting these collective assessments of BWC-relevant developments only every five years is not satisfactory.

Scientific advisers meeting at least once a year, as or within the meeting of experts, to pool their assessments and formulate advice for the annual meeting would con tribute much to the health of the BWC by keeping states-parties up to date. They might also suggest prudent constraints on research. For example, Tucker has suggested “developing an international mechanism to regulate hazardous ‘dual-use’ research”[7] through review and oversight by the scientific community, a difficult but ultimately necessary enterprise.

Providing Implementation Support

Canada has usefully proposed that some resources be dedicated on an ongoing basis to implement tasks assigned by the review conference or between reviews by the annual meeting of states-parties. This vehicle could be financially supported by BWC states-parties and be built on the small staff complement provided to the review conference by the UN Department for Disarmament Affairs.

Such a process would significantly enhance the chances of success of any action plans or the further-elaborated programs of CBMs and transparency measures. It would also be an appropriate channel for financial support to the BWC, such as what the EU has provided under its joint action funding “to enhance the universality of the convention through outreach and to help states-parties improve their national implementation through the provision of assistance.”[8]

Final Declaration

Will the conference produce a final declaration? When the last review conference concluded without even having tried to agree on one, having been persuaded not to resume work on the nearly completed draft left over from its first session in December 2001, there was some talk of the BWC being better served by the simple decision of November 2002. According to conference president Ambassador Tibor Tóth, the new process was going to pro duce “concrete actions with results.” Brave words, but not justified by events.

A final declaration is essential. In the his tory of the BWC, it is the means by which states-parties record their points of agreement, exhort one another to further efforts, and accept for themselves collectively politically binding commitments. It is also the vehicle for extended understandings, definitions, and procedures to be accumulated. Without a final declaration as the goal of the sixth review conference, momentum and progress will be much more difficult to achieve. The PrepCom is likely, following precedent, to include in the agenda for the conference an item, “preparation and adoption of the final document(s),” which does not guarantee a final declaration.

It will, however, make that outcome more likely if it recommends integrating the lessons learned from the 2003-2005 work program into an article-by-article re view of the convention and structures the agenda accordingly. Moreover, the PrepCom should aim to achieve a firm under standing among delegations that the conference will be organized around the task of agreeing on producing a full, substantive, final declaration as its central activity.

Conclusion

Going back to basics means emphasizing the worth of the BWC as a disarmament treaty in its own right, to be reviewed on its own terms. It is not primarily a counterproliferation device because that would distort the perspective into an essentially discriminatory mentality in which only some states are of concern. It is also not primarily a counterterrorism device be cause that would distort the perspective into an essentially discriminatory mentality in which only nonstate actors are of concern. Either perspective tends to down play reciprocity and to let most governments off the hook too easily, as if they are tangential to the threat rather than central to the treaty relationship. It is their obligations that matter and their compliance with those obligations which must be, first and foremost, subject to review.

The BWC is an absolute renunciation—note the “never in any circumstances” language of Article I—applying to the governments of all states-parties as much as to the individuals on their territory, within their jurisdiction, and under—or sometimes not sufficiently under—their control anywhere. The world is not to be divided between “responsible” and “irresponsible” possessors of biological weapons. There are to be no possessors at all.

It is not just a moral or humanitarian norm against which national actions and legislative and administrative provisions are to be measured. It is not just a hollow framework within which control measures are to be inserted. It is much more than merely a norm or a framework; it is a legally binding set of carefully negotiated obligations, the full implications of which are still being drawn out, constituting a global treaty that needs cherishing and nurturing. Its distinct treaty regime is in the process of evolution, capable of reinforcement within the terms of the treaty text as it stands. The task for this month’s PrepCom is to lay the groundwork for November so that the sixth review conference can reach agreement on where that treaty regime stands in 2006 and how best to steer its constructive and balanced evolution cautiously through to the seventh review conference in 2011, when conditions may be more favorable to advance.

 

BWC Verification: A Decade-Long Detour?

Michael Nguyen

During the early 1990s, revelations about the biological weapons programs of Iraq and the Soviet Union raised concerns about the ability of the Biological Weapons Convention (BWC) to verify compliance by states- parties. The treaty bans the development, acquisition, or stockpiling of bacteriological and toxin weaponry, but has weak measures to verify compliance. States-parties can either seek consultations or pursue a complaint with the UN Security Council, permitting the permanent members of the Security Council to veto a BWC investigation. These weaknesses became even more apparent in the early 1990s as negotiators wrapped up work on the Chemical Weapons Convention, which includes far more comprehensive verification and compliance measures.

These concerns led in 1991 to the formation of the Ad Hoc Group of Governmental Experts (VEREX) during the treaty’s review conference that year. VEREX was charged with studying the scientific and technical feasibility of verification measures. After evaluating 21 possible on-site and off-site measures, the group produced a final re port in 1993 that suggested a compliance regime that required a combination of declarations and on-site inspections. (See ACT, June 1994.)

A special conference in September 1994 approved the formation of another Ad Hoc Group (AHG) that would be open to all states-parties. For the next six years, the AHG worked on crafting a legally binding protocol to the BWC under the direction of its chairman, Hungarian diplomat Tibor Tóth. Negotiations on an integrated text focused on resolving differences over definitions and various inspection procedures. In March 2001, with the review conference just months away, Tóth released a “chairman’s text,” incorporated compromises based on his private discussions with various delegations, and proposed solutions to other outstanding issues. At a meeting in May 2001, many states expressed reservations about the text but did not reject it outright. (See ACT, May 2001.)

However, at the final meeting of the AHG prior to the 2001 review conference in July, the United States declared that it would not support the draft protocol or continuation of the AHG. Ambassador Donald Mahley, head of the U.S. delegation, told the group that the United States was concerned that the on-site inspection measures would jeopardize commercial proprietary information while having “almost no chance of discovering anything useful to the BWC” in “less-than-innocent” facilities in other countries. He said the United States was also concerned that the protocol would not provide adequate protections for U.S. biodefense programs, while the negotiations themselves were providing some states with the leverage to undermine national export control agreements, such as the Australia Group. (See ACT, September 2001.)

Although no other state joined the U.S. position and many states agreed that the group’s mandate remained valid, the meeting was unable to produce a final report for the review conference.

In December 2001, the review conference itself got off to a rocky start when, on the opening day of the meeting, the United States generated controversy by taking the unprecedented step of naming states it believed to be harboring active biological weapons programs. John Bolton, then undersecretary of state for arms control and international security, accused Iraq and North Korea of harboring biological weapons programs. Bolton, the head of the U.S. delegation, also said that the United States was concerned about possible programs in Iran, Libya, Syria, and Sudan. (See ACT, December 2001.)

Bolton threw the entire conference into turmoil on Dec. 7, the last day of the meeting, when he announced that the United States would seek the formal end of the AHG’s mandate. Although Bolton claimed that the United States had made its views on the group’s work clear during its last meeting, many diplomats were still caught off-guard by the sudden announcement. The sudden U.S. move forced Tóth to suspend the review conference for one year. (See ACT, January/February 2002.)

During that next year, states-parties discussed various proposals for moving forward, but given the strong U.S. resistance, the review conference avoided a discussion of verification or compliance issues entirely. Instead, states-parties approved Tóth’s plan to hold a series of annual meetings before the next review conference. During those meetings, BWC states-parties would discuss several national implementation and nonproliferation measures, but the agenda did not address verification issues or the fate of the AHG.

 

 


Nicholas A. Sims is a reader at the London School of Economics and Political Science. He is author of International Organization for Chemical Disarmament (1987), The Diplomacy of Biological Disarmament (1988), and The Evolution of Biological Disarmament (2001).


ENDNOTES

1. Paul Meyer, Statement to the Biological Weapons Convention (BWC) Meeting of States Parties, Geneva, December 5, 2005.

2. Fiona Paterson, Statement to the BWC Meeting of States Parties, Geneva, December 5, 2005 (hereinafter Paterson statement). Her statement was made on behalf of the 25 member states of the European Union and 11 other European states.

3. Angela Woodward, Time to Lay Down the Law ( London: Verification Research, Training and Information Centre, 2003).

4. Nicholas A. Sims, “Legal Constraints on Biological Weapons,” in Deadly Cultures: Biological Weapons Since 1945, eds. Mark Wheelis, Lajos Rózsa, and Malcolm Dando ( Cambridge, MA: Harvard University Press, 2006), pp. 329-354.

5. Jonathan B. Tucker, “Biological Threat Assessment: Is the Cure Worse Than the Disease?Arms Control Today, October 2004, pp. 13-19.

6. The BWC Meetings of Experts and Meetings of States Parties were chaired by Tibor Tóth of Hungary in 2003, Peter Goosen of South Africa in 2004, and John Freeman of the United Kingdom in 2005.

7. Jonathan B. Tucker, “In The Shadow of Anthrax: Strengthening the Biological Disarmament Regime,” TheNonproliferation Review, Vol. 9, No. 1 (Spring 2002), pp. 112-121.

8. Paterson statement.

 

Posted: April 1, 2006