Strengthening the Biological Weapons Convention confidence-building measures: Toward a cycle of engagement

Abstract

Central to the compliance structure of the Biological and Toxin Weapons Convention (BWC) are the confidence-building measures—the means by which States Parties disclose information annually. Improving this process is one of the key agenda items garnering a great deal of interest among State Parties and non-governmental organizations leading up to the Seventh BWC Review Conference in December. This article considers the challenges of enforcing the measures and the current efforts to strengthen them. The author presents additional approaches to enhance these measures and to build greater confidence in national compliance with the BWC, arguing particularly that civil society involvement and periodic, collective reviews of submissions have essential roles to play.

In early 2000, a series of secret projects were reportedly underway in the United States to improve biodefenses. The Pentagon was buying commercially available equipment to build a small-scale germ factory to produce anthrax simulants—Bacillus thuringiensis, the biopesticide made at the main Iraqi bioweapons center before it was blown up by United Nations inspectors in 1997. Another US project involved genetically modifying anthrax to make a vaccine-resistant superbug. Meanwhile the CIA, in one of its projects, was building Soviet-style bio-bomblets and testing them for dissemination characteristics and performance in different atmospheric conditions (Miller et al., 2001).

Pentagon and CIA lawyers said the projects were legitimate defensive activities: Building and operating a bioweapons facility helped uncover the telltale clues of distinctive patterns of equipment buying; genetically modifying anthrax was essential to check whether the current vaccines administered to soldiers were effective; and building and testing bomblets was a defensive response to specific intelligence about a possible adversary. Others disagreed, saying the projects were not permitted by the Biological and Toxin Weapons Convention (BWC), signed and ratified by the United States in 1975 (Miller et al., 2001).

The treaty permits almost any kind of research in the name of defense. Some of this work is unquestionably justifiable. Other research edges closer to the blurred line between defensive and offensive work. The trouble with distinguishing permitted biodefense projects from non-permitted projects is that it is not just about the facilities, equipment, and activities, but also about the purpose or intent of those activities. An essential component in reaching a compliance judgment with the treaty is therefore an analysis of justifications provided by states for the activities in question.

The US State Department has noted in its annual compliance report to Congress that both China and Russia are engaged in dual-use activities—such as identifying factors that enhance the virulence, toxicity, or antibiotic resistance of pathogens (including through the use of genetic engineering), synthetic production of toxins, and examining biological aerosols—but that available information does not indicate that the purpose of these activities were prohibited by the BWC (US Department of State, 2010). By keeping secret projects like building germ plants, creating superbugs, and testing germ bomblets, the United States undermines the treaty it helped to create and its own moral authority, because such activities, regardless of their legitimacy, will inevitably stir suspicion when they come to light. While there is defensive research that a nation might legitimately keep secret—such as experiments exploring the vulnerabilities of existing vaccines—the existence of such research and its general outlines should be disclosed whenever possible to allay fears and suspicions. This is the main purpose of the confidence-building measures of the BWC.

The confidence-building measures

These measures are essentially an annual exchange of information between States Parties, and encourages states to be transparent about their biodefense programs and to provide justification for their activities. ¹ The primary aim of the measures is to build trust between states that no activities are taking place in breach of the convention.

They emerged in the early 1980s following the crisis of confidence among states that resulted from unresolved allegations of non-compliance, rapid developments in science and technology, and other pressures. They were conceived, developed, and agreed to at a time when it seemed plausible that a verification mechanism was going to be put in place that resembled the declarations and on-site inspections of the Chemical Weapons Convention (CWC) then under negotiation. The measures were therefore not conceived of as a verification tool, but merely as a layer within a larger “regime of compliance” (Sims, 2001). While they demonstrate compliance, they do not guarantee it.

The emphasis on seeking verification between the end of the Cold War and the Fifth BWC Review Conference in 2001 led, however, to a lack of interest in developing the measures, and they have remained unmodified since the Third BWC Review Conference in 1991, ² and have therefore not kept pace with the new threats, risks, and security challenges that have emerged since the end of the Cold War. Nor have they been updated to take into account the significant advances in the biological and life sciences that—coupled with knowledge and technology becoming increasingly available, accessible, and affordable—have increased the potential for misuse. Moreover, some of the modalities agreed need clarification for better understanding; some of the references are outdated; and some information requested is now available on the Internet and a declaration under the measures’ forms may no longer be required.

To further complicate the picture, the failure of States Parties to arrive at a verification agreement akin to that of the CWC—or even at a strengthening protocol with some elements approximating verification—have left these measures playing a role for which they were not well suited, at least not without regular review and strengthening in both substance and procedure. Revising these measures to bring them more up to date is therefore one of the major tasks facing the Seventh BWC Review Conference.

Updating the measures

Discussions on how to revise the measures and enhance the quality of information exchanged through them are already underway. These have primarily been led by the Geneva Forum in collaboration with the London School of Economics, and together with the governments of Switzerland, Norway, and Germany, through a series of three workshops in 2009 and 2010 and through a follow-on electronic discussion forum (Lentzos and Hamilton, 2010).

Some of the key messages coming out of this initiative are, first, that much of the information currently requested on the measures’ forms is still considered relevant today, but that the forms should be updated to reflect the present political and security contexts—in which the biological weapons threat from non-state actors has become much more prominent—as well as to reflect scientific and technological advances. Second, the update should take an evolutionary approach, favoring incremental modifications to the existing forms. Third, a number of concrete suggestions have been made by participants on how to modify the questions asked on the forms to make them clearer and more relevant in today’s context. ³

Key among these is clarifying that the forms also cover civil biodefense programs, not just military programs. The United States, for example, has by one estimate spent more than $50 billion since 2001 on expanding its civil biodefense infrastructure of high-containment labs and personnel, and its vast array of threat- and vulnerability-assessment exercises, prevention-and-protection efforts, surveillance-and-detection programs, and response-and-recovery initiatives (Center for Arms Control and Non-Proliferation, 2008). Capturing this information on the forms is crucial to provide an accurate reflection of the national biodefense capacity and of the research, projects, and programs carried out. It is also particularly important because, although the primary aim of the measures is to enhance transparency about military biodefense programs, their main use today is more likely to be in ensuring that the rapidly expanding civil biodefense programs—built up in a number of countries over the last decade—are not “creatively interpreting” the treaty, and the line between offensive and defensive activities, to their own ends.

Several workshops, as well as the September 2010 Wilton Park meeting on the BWC and the meeting in Beijing in November 2010, ended with the same conclusion: More substantial compliance-related questions—such as whether to replace the measures with something entirely new—would best be left for discussion until after the review conference. ⁴

Additional challenges

There are, however, a number of additional challenges with the measures that the review conference will also have to tackle. The summary report on the measures prepared yearly by the Implementation Support Unit (ISU)—an administrative arm of the BWC established at the UN offices in Geneva after the Sixth BWC Review Conference—indicates that over the last 20-odd years, the annual number of submissions under the measures has been somewhere between 30 at its lowest (in 1987) and 70 at its highest (in 2010). Annual submissions are thus made by substantially less than half, and often less than one-third, of States Parties to the BWC. This relative lack of participation in the process is particularly unfortunate as the mechanism will only command limited confidence until more States Parties honor their commitments and submit declarations. Indeed, ignoring the mechanism weakens the concept of the measures and may ultimately reduce, rather than build, confidence among states.

The relative lack of participation in the measures is compounded by inconsistent submissions, where states submit returns in some years but not in others. Completing the forms can, of course, be a lengthy and difficult exercise, especially the first time it is done. Collecting the necessary information typically requires contacting several different government ministries and agencies. In larger countries, the necessary information may be held at a state or local level, rather than national level, further complicating the task. However, there is a wide perception that updating information annually requires little work once a state has already made the effort to collate and submit previous returns.

The measures not only face low and inconsistent participation, but are also challenged by incomplete submissions where only some of the seven forms are submitted (Lentzos, 2009). A notably bad year was 1991, for example, in which approximately half of the returns submitted were incomplete. In other years somewhere between 15 percent and 25 percent of submissions have been incomplete. Where forms are submitted, they are sometimes only partially filled out, or filled out with information that provides little transparency about national programs and activities related to the BWC. Inconsistent participation and incomplete submissions make it more difficult to establish national patterns of normal activity, and thereby reduce transparency.

Further enhancing the measures

There have been some efforts to address the low and inconsistent participation by States Parties in the measures. Of particular note is the 2009 European Union guide drawn up to provide practical advice and guidance to the national officials responsible for preparing the submissions. There have also been workshops and repeated offers of help in preparing national submissions from the ISU, the EU, and individual States Parties.

To supplement these efforts, it would be helpful, coming out of the upcoming review conference, to have an action plan on states’ participation in confidence-building measures, which could stimulate involvement in them by sustaining the political focus on improving these measures during the intersessional years. ⁵ In addition to such a plan, it would be helpful to have a reaffirmation at the review conference that participation in the measures is not voluntary but a requirement for all States Parties to the treaty, as was agreed by consensus at the Second BWC Review Conference.

In the interest of maximizing transparency, or disseminating the relevant information as widely as possible, many States Parties are now making their submissions under the measures publicly available or are working toward doing so. ⁶ Making these submissions public can greatly enhance their function, ⁷ and States Parties should be actively encouraged by other parties and civil society to make their returns freely available.

Transparency, though, is about something more than just the availability of relevant information. It is also about analyzing that information and ensuring that any outstanding questions are answered. There is currently little knowledge of how States Parties use the completed returns submitted by other states. We do not know to what extent States Parties feel these measures provide the necessary level of transparency or whether they actually build confidence. We do not know if the language of submission is a hindrance to their use. We do not have periodic, collective reviews of the returns and opportunities to seek clarification about the information submitted. A discussion on how best to utilize returns is therefore an essential element in preparing for the review conference that goes hand-in-hand with the discussions on how to update and revise the forms.

One very welcome outcome of such discussions would be a review conference decision to establish some kind of forum for the regular consideration of declarations; such a session could, for instance, be introduced at each of the annual meetings between review conferences. The repeated and collective scrutiny of declarations in the dedicated sessions would enable more accurate assessments of national compliance with the BWC and should provide a powerful incentive for States Parties to take the reporting seriously.

The bigger compliance picture

Declaring biodefense activities, and particularly dual-use projects that edge close to the offensive and defensive line, provides an opportunity for States Parties to clearly convey the intent of their activities to the international community. On a national level, combining projects from different funders, like the Pentagon and the CIA, provides an opportunity for an additional layer of oversight on the full range of biodefense efforts undertaken countrywide; had the White House known about the entire package of secret projects carried out in early 2000, it, for instance, could have initiated a legal review to ensure compliance with the BWC (Miller et al., 2001). Transparency about biodefense activities is ultimately in everyone’s interest, as the BWC reminds us when it states that the use of biological weapons “would be repugnant to the conscience of mankind and no effort should be spared to minimize this risk.”

Yet, however well these measures are improved at the upcoming review conference, their scope will still not cover every aspect of compliance. There will remain aspects of compliance on which States Parties can, and should, account for their full range of actions beyond those they report (Sims, 2009).

Each State Party is accountable to the other parties (and through them to the general public), for its own compliance. The choice of how to demonstrate compliance is its own. But to demonstrate compliance is essential. There has been some national compliance reporting before review conferences since the 1979 Preparatory Committee first called for it, but it has been patchy and disorganized and above all overlooked because no space is set aside for considering such reporting, even quinquennially.

Coupling a confidence-building measures review session with an accountability session at each of the annual meetings between the review conferences would encourage more States Parties to submit national compliance reports and enable a collective review of the reports submitted. This review could offer useful feedback to States Parties, and where questions arise these could be answered and points clarified. The accountability session would not therefore be envisioned as inherently antagonistic. It should be flexible enough to allow reasonably amicable relationships to flourish among States Parties as they pool experience and exhort one another to make the BWC work to its fullest extent. It is by generating such a “cycle of engagement” that the greatest amount of confidence between States Parties will be attained and the BWC regime of compliance will be most convincing.