Abstract
The Biological Weapons Convention (BWC) was negotiated as a simple treaty but its fulfillment has not been so simple: The convention has no monitoring or verification agency, no governing council, and no permanent secretariat. Instead, in an effort to make the treaty more robust, a body of extended understandings, definitions, and procedures have gradually been agreed upon at its first six review conferences. The Seventh Review Conference, in December 2011, can take forward this evolutionary process by building on the best elements in the treaty regime. The author writes that the upcoming review conference needs to renew the mandate of its Implementation Support Unit; authorize BWC annual meetings to make decisions to be included in a comprehensive agenda; enable States Parties to report systematically on their compliance with BWC obligations through an accountability framework; organize collective assessment of BWC-relevant developments in science and technology; update states’ annual reporting arrangements on information measures to increase transparency; and appoint a working group to consider whether confidence is best generated in the longer term by such measures or by new methods.
Keywords
Like its Cold War allies, the United Kingdom was concerned, first and foremost, with containing the Soviet Union’s nuclear threat. But when the landmark Nuclear Non-Proliferation Treaty was signed at Washington, London, and Moscow in July 1968, Britain pushed another pressing security concern to the top of its disarmament agenda. Densely populated and encircled by the sea, the country had long seen itself as especially vulnerable to attack from biological weapons. That year, British sponsors began rallying behind a treaty that would ban them across the globe—and, if enacted, become the first multilateral treaty to outlaw an entire class of weapons.
By September 1971, negotiators in Geneva, Switzerland, were racing against the clock to put the finishing touches on a treaty they planned to have ready by the end of the month. A sense of urgency hung in the air. The United States and Soviet Union were about to reach agreements in the bilateral Strategic Arms Limitation Talks (SALT)—an incredible breakthrough. As ever, though, nuclear diplomacy between the two Cold War powers threatened to overshadow all other disarmament negotiations. The closer SALT talks neared to fruition, Britain knew, the less likely America would be to risk interfering with the process by insisting on a stronger biological weapons treaty. And so the Biological Weapons Convention (BWC) was scuttled through, with the British ambassador remarking ruefully that the United Kingdom had compromised as much as it could.
Despite obvious shortcomings, such as the absence of a means to verify states’ adherence to the compact, the BWC remained a real achievement for the United Kingdom—and for the scientists and other leading voices who had lobbied hard for a biological weapons ban. Though weakened, the BWC was not beyond repair.
First and foremost a disarmament treaty, the convention is deliberately comprehensive. It requires the destruction of any existing biological weapons stockpiles within nine months of enactment, and it bans a broad range of biological weapons activities: development, production, stockpiling, acquisition, retention and transfer, encouragement, and inducement. In other words, all biological agents and toxins are banned unless they’re being used for prophylactic or protective means, or for other peaceful purposes, such as making vaccines. In addition to the biological agents and toxins themselves, meanwhile, weapons for deploying them, equipment for storing them, and means for delivering them are prohibited.
The treaty does not limit its scope to existing biological agents and toxins, but instead anticipates future developments. It bans any weaponization of disease, as well as preparatory steps toward weaponization.
The above stipulations apply to every country that joins the treaty, regardless of whether it has possessed biological weapons in the past. And unlike the 1968 Nuclear Non-Proliferation Treaty, as one example, the convention makes no distinction between haves and have-nots: No country is permitted to possess biological weapons. The convention’s strength lies in the simplicity of its absolute prohibition.
Not so easy
The treaty did not enter into force without controversy, however. It largely ignored chemical weapons, and this, coupled with the lack of a verification system to check on states’ compliance with their obligations, led critics to worry that the compact was too lenient. France and China, in fact, did not join the treaty until 1984. 1
Chemical weapons
The treaty was limited to biological weapons and toxins, leaving unaddressed the large stockpiles of chemical weapons in the US and Soviet armories. Many states believed that chemical disarmament required a stringent verification process, including on-site inspections, and East–West positions on this subject remained far apart until late in the Cold War. Negotiating a treaty limited to biological weapons and toxins, however, was an attainable goal in 1971 because states were more relaxed about the need for its verification. 2 Chemical weapons were more fully assimilated into armed forces and military planning than biological weapons had ever been. Consequently, reassurance that no one was cheating would be all the more necessary as a condition of their global renunciation.
Verification
The convention’s lack of verification provisions has been hard to tackle. Pro-verification sentiment built up in the late 1980s, thanks to pressure from governments of the so-called “Western Group” 3 of more than 30 of the treaty’s member states—although not, it should be noted, the United States. The initiative gained widespread support, especially among life scientists and other segments of nongovernmental opinion. How could the world be sure that no existing biological weapons had slipped under the radar, or that new ones weren’t being secretly amassed? The United States alone had openly destroyed its biological weapons stockpile, between 1971 and 1973, leaving other governments open to US suspicion. In lieu of verification provisions, America now seemed content with a more unilateral approach—that is, it opted to express non-compliance concerns as official “findings.” The United States reasoned that multilateral procedures for handling compliance concerns were too weak to be reliable, or too easily blocked by a Soviet—or, after 1991, a Russian or Chinese—veto. This left accusations hanging in the air, to the detriment of the treaty’s credibility.
The role of review conferences in the BWC
On the day the Biological Weapons Convention entered into force—March 26, 1975—it had 46 States Parties. Today, it has 163. A very basic, short treaty, the BWC has no international agency or governing council, nor even a permanent secretariat. 4 Instead, States Parties meet for a review conference every five years. The gatherings serve to reaffirm the treaty’s binding power and record its implications. From the bare text of the BWC, the first six review conferences have combined to generate a slender but growing treaty regime, which this December in Geneva will now be shaped and steered by the seventh. The review conference’s agenda is established by Article XII of the convention: (1) the operation of the convention, with a view to assuring that its purposes and provisions are being realized; (2) relevant developments in science and technology; and (3) progress on chemical disarmament.
Review conferences 5 cannot amend the BWC, but they can—and do—record consensus on what the BWC requires of its States Parties. Cumulatively, these conferences have built up a significant body of interpretative statements, politically binding commitments, definitions, and procedures. These “additional understandings and agreements,” as they are collectively known, establish the implications of the BWC. They put flesh on the skeleton, so to speak, of a rather emaciated treaty text.
The net effect of the review conferences has been to shape an evolving BWC treaty system and enable the States Parties to make the BWC more effective, recording additional points of agreement wherever they are able to achieve consensus. While this consensus may be only politically, and not legally, binding, it steers the treaty regime through its next five years. It determines the next step forward as States Parties expand their collective understanding of the convention and what is required to strengthen it. But consensus can only proceed on the basis of review—and so the conferences, with the sole authority for review, are the only means of obtaining it. 6
This authority has been exercised only in particular ways, however, with the scope of “review” afforded a narrower meaning than Article XII might suggest. In practice, this has meant reviewing only the overall operation of the BWC, in broad strokes, rather than reviewing each state’s individual performance. Those who want the conference to review compliance with BWC obligations on a case-by-case basis—as the only way to be sure that its purposes are realized and provisions followed—have been disappointed. A more systematic option for States Parties to demonstrate their own compliance, and to scrutinize one another’s, is long overdue.
Main features of the first six BWC review conferences
Ahead of December’s Seventh Review Conference, it is wise to reflect on past reviews in order to highlight both their weaknesses and successes. For example, the conferences have never successfully reviewed scientific and technological developments relevant to the Convention, even though that requirement is specifically written into Article XII. Although some delegations regularly bring scientific advisers, they have been under-used. Preparatory papers on relevant scientific and technological topics have been made available, but they, too, have been neglected, in part because successive review conferences have failed to make time for their consideration. Without a dedicated session or working group to discuss these issues, they have fallen into a procedural void.
1980
The First Review Conference met under the shadow of the second phase of the Cold War, with the Soviet Union under heavy criticism from both the Non-Aligned Movement and the West for its invasion of Afghanistan. The conference worked to clarify the implications of the BWC. It laid the foundation for future information exchanges by requesting that national legislation from member states be made available through the United Nations for consultation purposes. It established how members should cooperate in the peaceful uses of microbiology. And its final declaration considered how states could handle compliance concerns without going straight to the UN Security Council, as envisioned under Article VI. Wary that any request would be vetoed in the Security Council and suspicious of both its reliability and impartiality, members developed a contingency mechanism, which was deemed one of the “appropriate international procedures” available under Article V: A consultative meeting could be convened at the request of any State Party and would be open to all States Parties. 7
The United States, however, refused to use this procedure, and both the Carter and Reagan administrations continued to question the Soviet Union on their own. For example, in discussions of the infamous Sverdlovsk outbreak from the previous year, in which spores of anthrax accidentally leaked from a military facility, killing scores of residents, the United States rejected the Soviet position that the outbreak had resulted from tainted meat.
1986
Though proposals for verification were received for the Second Review Conference, States Parties deferred decision on them until 1991. Instead, the conference decided to launch a set of information exchanges, which were soon termed confidence-building measures. The measures made States Parties politically committed to reporting annually, through the UN, on the following four criteria: research laboratories with high biosafety levels or biodefense involvement; unusual outbreaks of disease; relevant publications; and relevant personnel contacts. The hope was that greater transparency, along with enhanced capacity for identifying deviations from a declared norm, would help to dispel the fog of ambiguity in which suspicions of non-compliance could arise and fester, unresolved. The conference approved the first four measures, and the ways in which States Parties are expected to report were finalized in 1987.
1991
During the Third Review Conference, States Parties moved to enhance the original four confidence-building measures, expanding them to include annual reports on relevant national legislation and regulations, human vaccine production facilities, and past biological weapons programs. They also decided that research and development in biodefense should be presented in fuller detail. Finally, the States Parties asked a group of governmental experts to, over the next two years, investigate verification measures from a scientific and technical standpoint. The resulting VEREX report was delivered to a special BWC conference in 1994, which appointed an ad hoc group—with diplomats from all States Parties—to work on proposals for strengthening the Convention, including possible verification measures.
1996
The Fourth Review Conference confirmed the mandate of the ad hoc group, and it carefully avoided any decisions that might oppose or conflict with the group’s work. It reaffirmed existing understandings and insisted that the renunciation of biological weapons must be absolute. A procedural innovation, much valued by advocacy and research groups and other nongovernmental organizations (NGOs) since, was an extra session in which NGOs could deliver short statements to the conference—as they continue to do, with permission, at review conferences and other BWC meetings.
2001–2002
The Fifth Review Conference made international headlines when the US undersecretary of state for arms control, John Bolton, single-handedly complicated the session, causing it to adjourn for a year. On the initial conference’s final day, Bolton called for the dissolution of the ad hoc group and its mandate, threatening that the United States would veto any decisions reached at the review conference. The deadlock remained until late 2002, when the other nations in the Western Group persuaded Bolton to allow three carefully prepared meetings on specified topics that appealed to the United States, which would take place before the Sixth Review Conference, instead of simply prohibiting multilateral meetings of any kind until the next review. The Fifth Review Conference therefore reconvened for a week in 2002 to adopt this non-negotiable rescue plan in a mood of barely concealed resentment.
It took no other decisions and, unlike all other review conferences, did not even attempt to record consensus on extended understandings. There was no final declaration. The ad hoc group and its mandate were not abolished, as the United States had demanded, but neither was there any prospect of reconvening it for a return to the interrupted negotiations on developing a protocol to strengthen the BWC.
2006
Compared to the previous gathering, the Sixth Review Conference had a more hopeful air. The inter-sessional meetings from 2003 to 2005 had worked out better than many had expected, especially for pooling national experience and technical expertise, and a second set of meetings was approved to take place between 2007 and 2010. The sixth conference recorded decisions on procedure for confidence-building measures and on persuading more countries to sign onto the treaty. The States Parties also wrote a final declaration with much fuller (and more positive) sets of understandings on national implementation of BWC obligations, and on international cooperation in peaceful uses of microbiology. The most significant breakthrough of the conference, however, was the agreement to establish an Implementation Support Unit, which appointed three people, with four-year terms, to help States Parties implement the BWC, and particularly the confidence-building measures. These appointees now work full-time on the BWC from the UN’s Geneva offices, and their posts are funded by all States Parties, to which they report annually.
Conclusion: The importance of the Seventh Review Conference
The upcoming review conference will be of great importance, as it meets with a good chance of further strengthening the BWC treaty regime. To achieve this result, however, it must do five things:
Since 2006, the BWC has enjoyed an upswing of confidence. But this year’s conference must make significant advances in steering the constructive evolution of this pioneering disarmament treaty regime over the next five years. The BWC’s momentum can continue, but only if the right decisions are made.
Footnotes
Notes
Author biography