Strengthening BWC Prevention of State-Sponsored Bioweapons

Abstract

The BWC needs to return to its core business: preventing state-level bioweapon programs. Enhancing the regime toward this end will also hinder the trickle down of bioweapon technologies to sub-state actors and individuals.

Historically, biosecurity has been achieved by biodefense measures at the national level and multilateral chemical and biological disarmament and nonproliferation treaties around which global prohibition regimes have developed. The expectation is that international regimes will keep in check state-level offensive bioweapon programs while also preventing the malign use of these weapons by hostile sub-state actors and individuals. Particularly since 9/11 and the subsequent anthrax attacks in the United States, much attention has been paid to the threat from sub-state groups. However, terrorists rarely used biological agents in the twentieth century. 1 The historical record clearly shows that states developed major offensive bioweapon programs after microorganisms were established as the causative agents of infectious diseases in the late nineteenth century. Consider, for example, that biological weapons were used by the Germans against animals in World War I; by Japan against humans just before and during World War II; and by the United States against plants in the Vietnam War. 2

It stands to reason, then, that the core business of those concerned about the large-scale misuse of the modern life sciences is to prevent, as far as possible, the instigation of state-level offensive bioweapon programs. After all, if such programs are allowed to operate, leakage of biological agents to hostile sub-state groups or individuals becomes increasingly likely. Since the Biological Weapons Convention (BWC) is the primary international means of preventing offensive state-level bioweapon programs and is central to any overall “web of prevention” aimed at minimizing the malign use of developments in the life sciences, it is important to revisit the question: Are States Parties to the BWC effectively carrying out their core responsibility? 3

The current state of the regime.

The BWC itself is a relatively simple agreement. It adds a ban on the development, production, acquisition, stockpiling, and retention of biological and toxin agents (including mid-spectrum agents such as bioregulators) for non-peaceful purposes to the ban on use found in the 1925 Geneva Protocol. 4 Article I of the BWC defines these additional prohibitions, while other articles in the convention deal with the use of modern biology to assist in economic development (Article X) and with the development of the convention through its review conferences every five years (Article XII). However, the convention also has substantial weaknesses in that it lacks an effective means of ensuring that States Parties live up to their obligations. In addition, it has no major international organization to oversee its implementation and evolution.

The BWC's weaknesses are perhaps nowhere better recognized than in a scenario put forth by three U.S. military analysts, who outlined what could happen in a twenty-first century offensive or defensive biological arms race, in the context of a three-phase evolution. 5 In the first phase a state would go on the offensive, using a traditional biological agent such as anthrax. But since there are only a limited number of such agents, a defender could be expected to cope. In the second phase, the offense would seek to modify an agent genetically, for example by adding genes for antibiotic resistance. As there are only a limited range of effective genetic modifications, the defense could ably respond. Given the ongoing advances in the life sciences, however, in phase three the offense could then turn its attention away from a particular agent and toward the increasing number of identified physiological targets (e.g., the immune and nervous systems) and the many ways in which each could be attacked. With an endless array of advances in biowarfare agents, such an offensive would likely result in a long period of offensive domination.

Such a three-phase scenario has the potential to take place during a period in which senior military analysts are coming to accept that large-scale, force-on-force warfare will be replaced by the kind of chaotic wars that we have seen in recent years and that chemical and biological weapons may be more attractive forms of weaponry in these less traditional wars. 6 High-level investigations by senior scientists have concluded that the ongoing advances in, for example, functional genomics, synthetic biology, systems biology, neuroscience, and drug delivery systems, could clearly be subject to misuse. 7 Furthermore, there are concerns that the rush to develop biodefense capabilities could be easily misunderstood and lead to a biological arms race similar to the weapons races of the past. 8 This disparate evidence taken together suggests that the core business of the BWC establishing a regime that minimizes the possibility of state-level offensive biological weapon program development remains unfulfilled and could soon come under increasing pressure.

A range of ideas for improving confidence in the regime–from better designed and implemented “politically binding” annual submission of confidence building measures to a new attempt at agreeing to “legally binding” measures such as a verification protocol–could be taken up.

Refocusing on the core business of the BWC.

Efforts to develop a compliance protocol for the BWC (the lack of which is a principle complaint among its supporters) were stymied in 2001, and the regime saw a difficult period of dissention thereafter. 9 The Fifth Review Conference was suspended for a year, but it was resumed in 2002 and an agreement was made that annual meetings (known collectively as an Intersessional Process) would be held through 2006 to discuss less contentious issues. The Intersessional Process allows States Parties to adopt appropriate and effective national measures–such as laws or regulations–in order to carry out and enforce the obligations to which they have committed. This first series of annual meetings was reasonably successful in that it allowed a more intense discussion about national implementation, which, according to some, should have been carried out long ago. 10 But while it was evident that the States Parties came together to “discuss and promote common understanding,” they failed in many cases to take collective, “effective action” on the issues. 11

There has been some progress in strengthening the regime since then. The Sixth Review Conference in 2006 included an article-by-article review of the BWC as well as a review and assessment of new developments in science and technology. A further significant accomplishment of the Sixth Review Conference was the establishment of a three-person Implementation Support Unit within the Geneva branch of the U.N. Department for Disarmament Affairs to provide administrative support and facilitates communication among States Parties, international organizations, scientific and academic institutions, and nongovernmental organizations. This new administrative arm also serves as a type of clearinghouse to receive and distribute information and data on BWC confidence building measures and to inform on States Parties' participation in these measures. 12 Although still a far cry from that of a permanent treaty-support organization such as the Organisation for the Prohibition of Chemical Weapons (OPCW), the implementation arm of the Chemical Weapons Convention (CWC), it is certainly a step forward in supporting the regime.

Since 2006 there has been a new Intersessional Process working toward the Seventh Review Conference in 2011. Again, this has been reasonably successful and involved a wide range of people from industry and academia. Yet many people involved doubt that these meetings will build a sufficient foundation on which to agree to a third Intersessional Process in 2011. A range of ideas for improving confidence in the regime–from better designed and implemented “politically binding” annual submission of confidence building measures to a new attempt at agreeing to “legally binding” measures such as a verification protocol–could be taken up. But so far these have been little discussed in the open literature. Indeed, it could be argued that the focus on issues of lesser importance at these annual meetings has crowded out the attention necessary to accomplish the core business of the BWC.

Refocusing also may require looking outside of the regime, specifically to the CWC. While the architecture of the CWC compliance mechanism has the same design as that envisaged for the verification protocol for the BWC, it actually has been implemented in the CWC and, despite numerous stumbling blocks, the destruction of declared chemical warfare agents is moving toward a conclusion. 13 However, even after the process is complete, the CWC and the OPCW will have to be substantially reconfigured in order to turn to the same business as the BWC: nonproliferation. A related problem concerns the viability of cooperation between the BWC and the CWC. For example, both conventions, in principle, are designed to cover mid-spectrum agents such as toxins and bioregulators. But in this area where many more dual-use possibilities are arising, there is a danger that rather than duplicating work, a gap will develop as each convention fails to properly address this overlap–an overlap that is directly related to the BWC's primary responsibility. 14

It seems quite strange to have to conclude therefore that the main danger for the future of biosecurity that states will direct their huge resources and talent to the misuse of advances in the life sciences in new offensive programs is the core business that is not being properly addressed within the key international mechanisms of the BWC. How long this situation can be allowed to continue before new offensive programs bring the norms of the convention into disrepute is an unanswered question. Certainly the scope and pace of scientific and technological change and the inherent possibilities for new forms of misuse are unlikely to lessen.

In the run-up to the 2011 Review Conference there will be much discussion that it is not politically possible to negotiate a verification protocol that will enhance the ability to identify violators of the BWC. Opponents of verification will suggest that in order to increase its effectiveness, the BWC States Parties should increase the number of annual data submissions (the aforementioned confidence building measures) or that States Parties' submission forms should be improved. However, given the ongoing advancements in science, technology, and warfare, a return to core business is the singular option for progress. Seemingly moderate options, in fact, only provide a false sense of security from bioweapons.