Challenges to the BTWC, and Some Reasons for Optimism

The taboo against the use of biological weapons goes back a long way in history. This stigma is reflected in the international efforts to prevent any individual from becoming a victim of biological weapons. The effort to define the rules of war and the use of particular weapons systems puts the Biological and Toxin Weapons Convention (BTWC) at the centre of humanitarian law.

The first international agreement on chemical and biological weapons was the Brussels Convention in 1874 on the law and customs of war which “forbids the employment of poison or poisoned weapons” under Article 13a. In 1899, states pledged as part of Declaration II not to employ asphyxiating or deleterious gases under The Hague Convention. In 1928, the Geneva Protocol came into force prohibiting the use of “asphyxiating, poisonous or other gases and of bacteriological methods of warfare.”1 Finally, in the late 1960s, negotiations on a bioweapons treaty began. The treaty opened for signature in 1972 and came into force in 1975.

There is, however, a new dimension to this issue. Rapidly spreading biotechnology such as gene engineering and cutting-edge techniques such as RNA interference have the extraordinary potential to help those suffering from disease. However, at the same time they can make the dissemination of a biological weapon more lethal, more targeted and more concealed. We are faced, therefore, with a dilemma of possibly burdensome security measures against stifling global health and industrial benefits.

This article will describe the current status of the BTWC and highlight some of the challenges it is now facing in an evolving international arms control climate.

The Biological and Toxin Weapons Convention

Article I of the BTWC reads:

“Each State Party to this Convention undertakes never in any circumstance to develop, produce, stockpile or otherwise acquire or retain:

(1) Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes.”2

This prohibition provides the basis of the norm set against biological weapons and is referred to as the General Purpose Criterion for its emphasis on the intention of the actor.

The General Purpose Criterion provides an obvious thin line between prohibited activities and those allowed under the Convention and makes reference to the particular dual-use nature of the biological sciences. It is intended to prevent the proliferation of biological weapons while defending the sovereign rights of States Party to develop defences against any form of biological attack.

There are three instruments within the framework of the Convention designed to enforce the ban on bioweapons. The first are the Confidence Building Measures which are a politically-binding information exchange regime on treaty relevant activities and events aimed at building transparency. They cover the following topics:

• maximum containment facilities,
• biodefense programmes and facilities,
• outbreaks of concern,
• publications and contacts between scientists,
• national implementation,
• past offensive and defensive biological weapons programmes, and
• vaccine production facilities.3

This mechanism, however, has been plagued with weak participation and an inconsistent quality of submissions. They have not yet been able to the build confidence in compliance for which they were designed.4

The second mechanism is that of a consultative meeting which can be called by any state in order to “clarify any problem in the application or provisions of the Convention.”5 This mechanism has been invoked once when the United States was accused by Cuba of disseminating a plant control agent on Cuban territory in 1997.

The third is a mechanism for challenge inspections under Article VI of the BTWC. Any state can lodge a complaint to the Security Council of the United Nations on compliance to the provisions of the Convention of another state. The Security Council votes on conducting an investigation with which all States must comply. This mechanism has never been enacted.

Verification under the BTWC

Verification is one of the central elements of any arms control agreement. In efforts to prevent the proliferation of nuclear and chemical weapons, States Parties successfully negotiated verification mechanisms bringing strength through compliance monitoring to each convention. The BTWC, on the other hand, does not have a legally binding verification mechanism for assessing state compliance. The three instruments mentioned above are by no means substitutes for such a system. Verification under the BTWC has been discussed before but poses a particular problem due to the widespreadedness of biosciences. In other words, for verification to be comprehensive, all relevant public, private, government, or academic facilities must be covered by the system. Verification must provide reliable enough data to ensure high confidence in treaty compliance.

Discussion on a verification mechanism began at the Third Review Conference in 1991. The Ad Hoc Group of Governmental Experts, which came to be known as VEREX, was directed to study possible verification measures. VEREX laid the groundwork for the Ad Hoc Group, which became the negotiating body assigned to produce a legally binding instrument. To this end, the Ad Hoc Group met 24 times between 1995 and 2001 and was able to produce a text basing a Verification Protocol on three major principles:

• a legally binding declaration system,
• routine and challenge inspections,
• a central organisation, Organisation for the Prohibition of Biological Weapons.

This was a long process and there was still some dissatisfaction by the time the Ad Hoc Group chairman introduced a compromised text. At the last session of the Ad Hoc Group, the United States withdrew its support for the Verification Protocol, citing blatant risks to the economic viability of its pharmaceutical and biotech industries. Later, at the 5th Review Conference, the Verification Protocol was suspended indefinitely with the US’s insistence that the AHG no longer meet. The US suggested that States Parties seek other mechanisms for strengthening the treaty other than multilateral verification.

Challenges to Biological Arms Control

The lack of a multilateral verification system and the threat that non-state actors acquire biological weapons are two of the major challenges to the Convention. These represent, on the one hand, state compliance, and on the other, the individual’s compliance. Thus enforcement of the treaty must be achieved through a variety of means. While it is clear that an international verification system will build accountability for state compliance, a multilateral instrument will not help to uncover potential terrorist plots using biological weapons. Efforts to prevent the development of bioweapons by terrorist individuals must rely on efficient implementation of the provisions of the Convention into national legislation and regulation. This is the reason national implementation occupies a central position in the international efforts to strengthen the BTWC and other regimes including Security Council Resolution 1540.6 Ultimately, terrorist use of biological weapons is rare, and there is no indication of an increase effort on the part of terrorist organisations to acquire biological weapons. The BTWC must nevertheless be enforceable domestically.

There are, however, other challenges facing the Convention.

Universality of the BTWC

A fundamental issue that plagues the Convention is its relatively low membership. As of April 2008, 33 years after the coming into force, there are 161 Member States from 192 UN recognised countries. Furthermore, when the age of the Convention is factored, the BTWC compares badly to other arms control treaties:

• Chemical Weapons Convention: 182 member states in 10 years,
• Nuclear Non-Proliferation Treaty: 190 member states in 37 years,
• Mine Ban Treaty: 155 member states in 10 years.

Weak participation brings little legitimacy and importance to its obligations. Not to mention that non-member states, such as Israel, Egypt and Syria, are not bound by the international law prohibiting biological weapon development.

Biological and Biochemical Non-Lethal Weapons

As advances in the biological sciences are made, an increased interest in the development of biological and biochemical “non-lethal” weapons has been seen. Non-lethal weapons supposedly promise a more humane conflict with fewer casualties. Non-lethal biochemical weapons have been used before. Fentanyl was allegedly used by Russian police in the 2002 siege of a Moscow theatre being held by Chechen militants. The theatre was flooded with the incapacitant resulting in the deaths of at least 168 people.

However, non-lethal weapons are an increasingly problematic issue in the arms control arena. Firstly, they threaten to erode the pillars of the Chemical Weapons Convention and the BTWC if States Parties have increasing know-how on the development and use of non-lethal biochemical weapons. Secondly, there are operational issues. In conflict, these substances might be used as a force amplifier when used in combination with conventional lethal weapons, i.e. first the incapacitating agent is used indiscriminately followed by lethal force on incapacitated enemies.7 Furthermore, there is a concern that non-lethal weapons proliferate to non-state terrorist organisations. Their use in warfare or in domestic situations will likely only speed their proliferation to actors who will be more likely to use them and less concerned by their non-lethal nature. Thirdly, there are technical concerns. The lethality of non lethal biochemical weapons, like any drug, is always dependent on dosage and duration of exposure. Finally, there is the issue of retaliation. In conflict retaliation is rarely proportional. There is a concern, therefore, that the use of non-lethal weapons in conflict will lead to increasingly lethal responses.

The position of non-lethal biochemical weapons within the international arms control regime is unclear. The Chemical Weapons Convention allows the use of chemical agents in law enforcement and riot control scenarios. In the BTWC no reference is made to the lethality of an agent. However, the General Purpose Criterion might also allow the use of non-lethal agents in domestic riot control if riot control is interpreted as “prophylactic, protective and other peaceful purposes.” Furthermore, biochemical non-lethal weapons, as substances acting on the biochemical processes of the organism, may not necessarily fall under the “microbial or other biological agents, toxins whatever their origin or method of production” as prescribed in Article I.8

National Implementation

Effective national implementation is important for preventing terrorist actors from acquiring biological weapons. It allows individuals to be prosecuted and penalized under domestic law as well as providing local law enforcement to take preventative and investigatory actions against infringements. Without effective national implementation, although the state would be bound by the BTWC’s obligations by international law, there would be no mechanism to enforce the treaty domestically. Many States Parties to the BTWC have not yet implemented adequate national legislation.

National implementation is required under Article IV of the Convention, as well as under Security Council Resolution 1540 of 2004. The relevant sections read as follows:

BTWC Article IV: “Each State Party to this Convention shall, in accordance with its constitutional processes, take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition, or retention of the agents, toxins, weapons, equipment and means of delivery specified in article I of the Convention, within the territory of such State, under its jurisdiction or under its control anywhere.”

Security Council Resolution 1540: “…all States, in accordance with their national procedures, shall adopt and enforce appropriate effective laws which prohibit any non-State actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons…”

National implementation therefore implies passing legislation and regulations in the following areas:

• penal law which should include assisting forbidden activities and specifying penalties,
• procedural criminal law allowing the enforcement of treaty provisions and prosecution,
• regulations in biosafety and biosecurity, and
• regulation in the transfer of biological material or equipment, including domestic and international exports and imports.9
  

Addressing the BTWC’s Deficits

There are two levels on which the challenges highlighted above can be addressed. First, the Convention and its States Parties can provide a platform through which new instruments and regimes can be designed to fill the BTWC’s deficits. And second, outside the framework of the Convention there are a number of international and non-governmental organisations that are focused on strengthening the norm.

With verification off the negotiating table, and without any prospect for it being put back on, States have had to adopt other measures under the Convention. One such measure are the intersessional process meetings. These meetings bring States Parties to Geneva on a regular basis to discuss issues related to the Convention. Between the 6th and the 7th Review Conferences10 these topics will be:

• ways and means to enhance national implementation,
• regional and sub-regional cooperation and implementation of the Convention,
• national, regional, and international measures on biosafety and biosecurity,
• oversight, education, and awareness-raising and/or development of codes of conduct,
• enhancing international cooperation, assistance, and exchange in biological sciences and technology for peaceful purposes, and
• provisions of assistance and coordination with relevant organisations.

While the purpose of these meetings is to have constructive dialogues, it is also intended to allow more frequent contact between States Parties. It is hoped that this will help build common ground, if only through more personal and frank discussions.

Also within the framework of the Convention is the work of the Implementation Support Unit which was created at the Sixth Review Conference in December 2006. This body functions as the gravitational centre of the Convention. It coordinates the meetings and collects, assembles, and distributes the information submitted by the States Parties in fulfilment of the Confidence Building Measures. The Implementation Support Unit provides help with national implementation and creates a constant link between all States Parties and between States Parties, non-governmental organisations, and the general public.

Bridging the goals of the European Union and the BTWC is the European Union’s Joint Action in Support of the Biological and Toxin Weapons Convention of 2006.11 Originating in the European Union’s own foreign policy interest, it seeks to strengthen the Convention by means of achieving universality for the BTWC and improving national implementation. The universality programme consisted of five workshops carried out in areas of low BTWC membership in order to raise awareness of and support for the Convention. The goal was to promote greater membership. The programme for national implementation consisted of technical expert visits organised in countries who requested assistance with drafting or ameliorating national legislation. The Joint Action is scheduled to come to an end in the near future and initial indications suggest positive results although more analysis has to explore the success. A second Joint Action in the area of biosafety and biosecurity is being planned for 2008. This programme will focus on education and awareness-raising and on technical assistance in laboratories. In parallel, the EU has planned to explore the idea of a fact-finding mission on the physical protection of bio-laboratories.12

Outside the BTWC, there is a mechanism which allows the Office of the UN Secretary General to investigate alleged uses of chemical or biological weapons. These investigations allow an independent ad hoc inspection with which States Parties must comply. How ever serious, “alleged use” is a very restrictive definition for invoking this mechanism. Many would have the instruments widened to include any alleged breaches of the BTWC.

While non-governmental organisations have limited access to the multilateral decision making process, the small community of biological weapons experts is often sought for its opinions. In this light, non-governmental organisations have had mixed successes in lobbying states. There are, nevertheless, a number of projects that aim to strengthen the ability to prevent the use and proliferation of biological weapons, for example:

• VERTIC: National Implementation of Treaties and Norms Prohibiting Weapons of Mass Destruction (WMD)
• BioWeapons Prevention Project: BioWeapons Monitor
• Research Group for Biological Weapons and Arms Control, University of Hamburg: National Implementation of Treaties and Norms Prohibiting Weapons of Mass Destruction (WMD)
• Sunshine Project: Transparency and Public Accountability in Biodefense
• Outreach to scientists, education, and awareness-raising being carried out by a number of institutions, including Bradford University, Harvard Sussex Program, BioWeapons Prevention Project.13
  

Conclusion

The Biological Weapons Conventions, despite its numerous deficiencies, is the strongest legal norm against the proliferation and development of biological weapons. Although we face different challenges today than at the time it was created, the BTWC still has a role to play in international security and should not be abandoned. Rather, it should be adapted to current challenges while keeping in mind the broader issues and its original goal, namely the multilateral dimension of biological arms control.

Nicolas Isla is a researcher at the Hamburg Research Group for Biological Arms Control and has in the last three years concentrated on the strengthening of the Confidence Building Measures regime under the BTWC; isla [at] biological-arms-control [dot] org.

1. 1. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, 1928.
2. 2. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 1975. Lacking an Organisation for the Prohibition of Biological Weapons, at the request of the President of the Sixth Review Conference, the Department of Peace Studies of the University of Bradford maintains a website for the BTWC where the full text of the Convention and other treaty-relevant documents mentioned in this article can be found: www.opbw.org.
3. 3. Final Declaration of the Third Review Conference of the Biological Weapons Convention, 1991, BWC/CONF.III/23.
4. 4. Nicolas Isla, Strengthening the Confidence Building Measures: A Catalogue of Recommendations, Research Group for Biological Arms Control, University of Hamburg, Occasional Paper No. 3, March 2007.
5. 5. Final Declaration of the First Review Conference of the Biological Weapons Convention, 1980, BWC/CONF.I/10.
6. 6. United Nations Security Council Resolution 1540 of April 28, 2004, obliges States, inter alia, to refrain from supporting by any means non-State actors from developing, acquiring, manufacturing, possessing, transporting, transferring or using nuclear, chemical or biological weapons and their delivery systems. The UNSC 1540 Committee maintains a website at www.un.org/sc/1540.
7. 7. Robin M. Coupland, Incapacitating Biochemical Weapons: Risks and Uncertainties, in: Alan M. Pearson, Marie Isabelle Chevrier and Mark Wheelis (eds.), Incapacitating Biochemical Weapons. Promise or Peril, M. Lexington Books, 2007; Chapter 12.
8. 8. British Medical Association, The Use of Drugs as Weapons – The Concerns and Responsibilities of Healthcare Professionals, BMA Marketing & Publications, 2007.
9. 9. VERTIC, Why and What to Implement? Ensuring Effective National Laws on Nuclear, Biological and Chemical Weapons, Fact Sheet 1, June 2006; www.vertic.org/assets/Factsheet%20FS1_WHY.pdf.
10. 10. Review Conferences are organised every five years in order to review implementation of the Convention. The 6th Review Conference took place in December 2006, and the 7th will be held at the end of 2011.
11. 11. The Council of the European Union maintains a website for this support programme at www.euja-btwc.eu.
12. 12. The Council of the European Union, Eighth Progress Report on the implementation of the EU Strategy against the Proliferation of Weapons of Mass Destruction, Document No. 16411/07, 11 December 2007; http://register.consilium.europa.eu/pdf/en/07/
    st16/st16411.en07.pdf.
13. 13. VERTIC: www.vertic.org; BioWeapons Prevention Project: www.bwpp.org; research group of Hamburg University: www.biological-arms-control.org/index.htm; Sunshine Project: www.sunshine-project.org.