Selected Considerations Regarding the Future Control of Chemical and Biological Weapons
by John Hart (SIPRI)*
The views expressed are those of the author and do not necessarily reflect those of SIPRI.
Introduction
The use of chemical and biological weapons (CBW) is prohibited under both customary and conventional international law. That States take this prohibition seriously is reflected by the fact that, with some (including notable) exceptions, nearly all countries are party to the 1972 Biological and Toxin Weapons Convention (BTWC) and the 1993 Chemical Weapons Convention (CWC). Although a small number of states appear to continue to see some political utility in there being ambiguity as to whether they do or do not possess CBW, such states no longer openly admit to having them. There is also suspicion that a small number of states are intent on maintaining offensive "capabilities." Partly for these reasons, there is concern that the CBW problem has not been fully resolved or that further difficulties can be expected. There are various views on the current nature and scope of the CBW problem. Uncertainty also exists about how the international community can ensure that the current prohibitions are effectively maintained in future.
Nature and scope of the problem
The number of States that have or are seeking to acquire CBW has been a perennial question dating from the end of WW I. Over the past two to three decades, the number of countries that are said to possess or to be seeking to acquire CBW has usually been put at 5 to 15. The US Government is the principal source of such information. It is generally difficult, or impossible, for outside observers to ascertain the veracity of such estimates as they do not have access to the relevant intelligence information. This is mainly because governments, understandably, wish to protect the sources and methods of their intelligence services. The amount and quality of national intelligence information varies widely according to country. Most countries have little or no worldwide intelligence capabilities. Despite efforts to ensure that this does not occur, political considerations and organizational interests can also affect the integrity of such information. Intelligence information is usually somewhat ambiguous and therefore not of a type or nature that would allow for a conviction in a proper court of law. Finally, statements, including those made by the US in recent years about the "Axis of Evil," contain caveated language that, when strictly read, have the effect of leaving open the possibility that the country in question does not possess CBW stockpiles or is not pursuing offensive CBW programs.
The proliferation question is also complicated by the difficulty in distinguishing between an offensive (and therefore prohibited) and a defensive (and therefore permitted) program.[1] Drawing such a distinction is particularly difficult in the biological area, given the fact that most materials, technology and equipment that can be used in a defensive biological weapon (BW) program are dual-purpose and therefore equally able to support an offensive program. States are generally reluctant to release internal policy documentation that shows the workings of their CBW programs. Such documentation would, in principle, resolve the question of whether a program is offensive or defensive. (This assumes that the integrity of the documentation can be assured.) Such documentation would be less useful if the program policy had not been fully developed or if the work were still at the basic research stage (as opposed to the development or production stage).
At least three other points are relevant to the consideration of the nature and type of threat posed by CBW. First, there are the difficulties associated with defining and quantifying risk. Second, is how to distinguish between the type of threat posed by state actors and that posed by non-state actors (i.e., terrorists). Third, is the appropriateness of categorizing chemical, nuclear and biological weapons as "weapons of mass destruction" (WMD).
There are fundamental difficulties associated with defining and quantifying risk. This is especially true in cases where there is little or no historical record to serve as a guide. It is often said that the risk of an attack with CBW is "low," but that the consequences of such an attack would be "high" or even catastrophic -- either in terms of casualties and deaths, or in economic terms. The principal mechanism for predicting the future is to look at past experience. However, in the CBW field past experience is limited and may, in any case, not be an accurate predictor of future developments in the case of CBW.
Quantification of risk is generally done by assigning values to risk factors, combining them (e.g., in a summation series) and then expressing the resulting value in terms of the percentage likelihood of an event occurring over a given period of time. A subjective element exists, however, in all risk assessments. This is particularly true in cases where a clearly established historical pattern of actual occurrences -- together with a strong level of assurance that such a pattern will continue in future -- are absent. Thus personal judgement plays an important role in all risk assessments, including those expressed quantitatively. For example, the selection of risk factors (by necessity, limited in number) and the numerical weighting given to each factor involve some degree of subjectivity which takes the form of an individual's "best judgement."
Some have argued that non-state actors cannot develop and use CBW effectively without state assistance. Others disagree. The case of Aum Shinrikyo is often cited as evidence to support the view that non-state actors are faced with formidable obstacles, despite having access to ample financial and human resources. Perhaps the major distinction drawn between the perceived threat posed by state and non-state actors respectively is that the latter might not be "deterrable" and that they are more likely to engage in acts that cause indiscriminate casualties and deaths among civilians.
Characterizing weapons as a "means of mass destruction" originated in British and US WW II policy documents. Its use was partly reflective of the fact that CBW were generally considered to be strategic weapons. Following the end of the war, the term was taken up by the United Nations. CBW agents vary widely in terms of their ability to cause harm. Some are incapacitants (e.g., BZ), while others have the potential to cause a worldwide pandemic (e.g., smallpox). Response strategies should take such factors into consideration. For example, justifying the use of low-yield nuclear weapons against facilities where it is suspected that CBW agents are manufactured or stored by saying the CBW agents are WMD is questionable.
Mechanisms and structures for meeting the threat
States have a variety of mechanisms or structures at their disposal to meet perceived CBW threats and related concerns. The principal mechanisms or structures are multilateral arms control and disarmament regimes and ad hoc arrangements of like-minded states. The former, which are characterized by some as "nonproliferation" regimes, include the BTWC and CWC. Examples of the latter include the Australia Group, the Group of Eight (G8) Global Partnership Against the Spread of Weapons and Materials of Mass Destruction and the Proliferation Security Initiative (PSI). The G8 Global Partnership (established in 2002) and PSI (established in 2003) contain a coercive, or "counter-proliferation" element ("the sharp end of the stick") whereby military force can be used. While there is some degree of overlap between these two types of structures and mechanisms, each has a distinct set of interests or political imperatives. Multilateral arms control and disarmament regimes are implemented through organizations and structures that are open to universal membership. The operation of these regimes is based on the understanding that all of the parties have equal rights and responsibilities and that they be treated equally unless it becomes clear that the state has committed a fundamental (as opposed to a technical) treaty violation. Ad hoc arrangements may not be organizations as such. Nor are they, in practice, open to universal participation. (Such participation would only occur in the unlikely event that the relevant, broader political considerations change.) The work of ad hoc arrangements is often more of a law enforcement or intelligence nature.
One potential weakness of international arms control and disarmament regimes is that they are primarily aimed at states, rather than individuals or groups. Currently, great emphasis is, therefore, being placed within the BTWC and CWC regimes on ensuring that the parties to the conventions have adopted effective national implementing legislation that extends treaty prohibitions to individuals and groups. In October 2003 the Eighth Conference of the States Parties (CSP) to the CWC adopted a "plan of action" to ensure that all the parties effectively implement their obligations in this area.[2] To assist in this effort, the OPCW is sending experts to individual member states. In addition, a number of governments have provided cost-free consultants to the OPCW Technical Secretariat (TS). Efforts to strengthen and improve BTWC implementation are currently being carried out partly through the holding of annual political and technical meetings. These meetings will continue through 2005. The nature and type of any such meetings in future will be considered by the Sixth Review Conference when it convenes in 2006. Such efforts are being taken partly because most of the parties to the BTWC and CWC had failed to put in place effective national implementing legislation (or had not passed any legislation at all). The parties also wish to ensure that the treaty prohibitions, which are state-based, are effectively extended to non-state state actors (e.g., terrorists).
Treaty implementation
To effectively implement a treaty, the parties must transform the relatively general treaty provisions into operational procedures. Cost, scope and level of intrusiveness are key factors that affect how this is done. For example, the CWC is, on the one hand, rather complicated, especially with respect to its reporting requirements. However, in other respects it is in danger of being "flattened" through a narrow or literal interpretation of convention provisions which some parties take in attempt to limit the treaty's cost. A related concern is that CWC implementation will, on some issues, be driven by implementation practice rather than explicit policy decisions. This is especially true with regard to whether and how the CWC should cover programs for the development of non-lethal weapons and incapacitants.
It is important that the parties to the CWC actively consider, on a regular basis, how to operationalize the General Purpose Criterion (GPC), which prohibits the development, production, stockpiling and use of all toxic chemicals except where for peaceful purposes.[3] This can be done partly through the continued implementation of the provisions of Article IX on informal consultation, cooperation and fact-finding. It could also be done through the way in which the provisions for the declaration and verification of "other chemical production facilities" that produce by synthesis certain discrete organic chemicals that may contain the elements phosphorus, sulfur or fluorine (DOC/PSFs) are implemented.[4] (see below)
Verification of the chemical industry is key to ensuring that prohibited activities do not occur in future. It is also an area where one sees how the parties attempt to balance the need for an effective, credible verification regime against a desire to limit costs (which, in turn, are related to treaty's scope and the level of intrusiveness).[5] The parties to the CWC are continuing to consider and develop the methodologies for declaring DOC/PSFs and selecting them for inspection. These discussions have been carried out mostly by the Industry Cluster, an OPCW working group. In particular, the group has devoted considerable attention to the implementation of paragraph 11 (c) of Part IX of the Verification Annex under which mechanisms are considered on how to randomly select DOC/PSFs for inspection.
Although some problems with how the OPCW's budget is structured remain, the organization's recent budget crisis has been effectively addressed for the present and full program delivery is expected for 2004. In 2003 the seven-year tenure policy agreed in 1999 by the Fourth CSP began to be implemented [6] The first TS staff to be let go under the policy departed in December 2003. After 31 December 2009, no TS staff with more than 7 years service, with the exception of translators and locally-recruited personnel, will remain. It is important that the parties remain actively engaged to ensure that the OPCW's institutional memory and expertise is maintained as this policy is implemented.
The parties to the BTWC agree that the convention needs to be strengthened. (There are at least four multilateral mechanisms for investigating compliance concerns in relation to BW development or use.[7]) Negotiations by the parties to the BTWC on a protocol to strengthen compliance are suspended indefinitely. However, the issue could be revisited as political circumstances change in future. The parties are continuing to meet periodically to discuss the implementation of the convention. In future, the parties might also elect to make the current annual politically binding exchanges of information on biological-related activities legally binding. The parties to the BTWC might also consider whether and how suspected "black" bio-defense programs should be covered. The principal difficulty here is how to determine the point at which a bio-defense program becomes an offensive BW program. Countries take note of how the US implements treaties and, not infrequently, follow suit. For example, India indicated that it would follow the US example of not allowing the taking of samples by OPCW inspectors out of the country for national security reasons. In principle, any country could therefore justify the construction and testing of a BW munition by referring to the CIA's Project Clear Vision that involved replicating and testing a Soviet BW bomblet.[8] Such programs have been undertaken at least in part to ensure that the states can maintain their technical capabilities to accurately assess CBW threats. Finally, there is no consensus among the parties on the extent to which such efforts can or should be carried out within other fora (e.g., the AG, PSI) and the extent to which such efforts should be institutionalized within the BTWC regime itself.
Trends
There is currently a trend towards counter-proliferation and treaty enforcement measures. The PSI, for example, consists of a coalition of like-minded states who have agreed a set of "interdiction principles" to prevent the transfer of WMD, their delivery systems and related materials globally. The possibilities for applying the Cooperative Threat Reduction (CTR) model that is currently being implemented on the territory of the former Soviet Union to India and Pakistan have been discussed for a number of years. If that were to be done, the latter two countries would be provided with information, technology and equipment to improve the command and control of their nuclear weapon-related assets. It is possible that CTR programs could be integrated into a global partnership model and extended worldwide to secure or render harmless elements of the nuclear-fuel cycles of other countries. An example of how this could be done would be to secretly airlift highly enriched uranium out of a country with or without its formal permission. Such actions could take the form of special forces operations during which lethal force might be threatened or used. These activities will have implications for the national sovereignty of states who are seen as being outside the group. This, in turn, could have broader political and economic repercussions over time.
Conclusion
Multilateral arms control and disarmament regimes offer a framework for states to agree politically sensitive matters that might not otherwise be resolved. The implementation of systematic and routine verification measures also offers a degree of transparency and confidence that ad hoc coalitions cannot provide. Most countries do not have the resources or capabilities to follow international developments relevant to the possible misuse of chemical and biological substances. The BTWC and CWC offer a framework for states to keep themselves informed of these developments. Given sustained political interest and support, these treaty regimes will continue to play a necessary and useful role in the current and future international security environment.
The interaction between bilateral, regional and multilateral efforts to meet perceived CBW threats and the extent to which these efforts should be integrated remained unclear. The decision by Libya to verifiably demonstrate to the international community that it no longer possesses CBW and nuclear programs suggests that, in at least some cases, maintaining a policy of ambiguity as to whether or not a country possesses CBW weapon programs is less tenable in the current international security environment. The decision also suggests that ad hoc coalitions of like-minded states acting on specific issues of concern to meet perceived CBW threats can be effective under certain circumstances. Conversely, the manner in which some intelligence information was characterized and used by the UK and US regarding Iraq has raised doubts as to whether ad hoc coalitions can be sufficiently certain of the accuracy of their information. The actions of such coalitions should also be seen to be justified by the existence of reliable information and not unduly influenced or driven by political considerations alone. Otherwise there is a risk that the international credibility of their actions will be fundamentally undermined or weakened over the medium to long-term.
Reference:
- The term defensive program has historically included the understanding that a country might use BW after first being attacked with the weapons. What is meant here is that BW will not be used under any circumstances and that a defensive program is for protective purposes only.
- Decision, plan of action regarding the implementation of Article VII obligations, OPCW document C-8/DEC.16, 24 Oct. 2003.
- CWC, Article II, para. 1.
- See CWC, Part IX of the Verification Annex.
- Chemical industry-related issues include (a) agreeing a final decision on the boundaries of production issue, (b) agreeing a final decision on captive use, (c) the methodologies for selecting Schedule 2 and Schedule 3 plant sites and DOC/PSF plant sites for declaration and inspection, and (d) harmonizing the methodologies for collecting and reporting the production and transfer of chemicals appearing on Schedule 2 and Schedule 3 of the CWC's Annex on Chemicals. For a discussion of these and related issues, see Hart, J. Chemical Industry Inspections Under the Chemical Weapons Convention, Verification Matters, VERTIC (Verification, Research, Training and Information Centre), Research Report no. 1 (VERTIC: London, 2001).
- Decision, OPCW staff regulations, OPCW document C-IV/DEC.25, 2 July 1999, regulation 4.4; and Decision, tenure policy of the OPCW, OPCW document C-SS-2/Dec. 1, 30 Apr. 2003, para. 1(b).
- The UN Secretary-General has the authority to send teams to investigate allegations of use of BW (provided the allegation is raised by a UN member state) without the authorization of the UN Security Council. Under Article VI of the BTWC, the parties can initiate a process to clarify compliance concerns. Under Article V of the BTWC, the parties can refer a compliance matter to the UN Security Council. Finally, the development, production, stockpiling or use of toxins is covered by the CWC.
- See Miller, J., Engelberg, S. And Broad, W., Germs: Biological Weapons and America's Secret War (Simon & Schuster: New York, 2001), pp. 290-96, 299, 309.
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