ASA welcomes dialog in the BTWC discussion.
The Biological and Toxin Weapons Convention:
Its Current Status and Prospects
by Graham S. Pearson
During the years up to 2001, regular articles in the ASA Newsletter addressed the progress of the Ad Hoc Group (AHG) of the States Parties to the Biological and Toxin Weapons Convention (BTWC) in negotiating a legally binding instrument to strengthen the effectiveness and improve the implementation of the Convention. These articles culminated in one entitled “The BTWC Protocol: The Chairman’s Composite Text” in ASA Newsletter 01-04 on 31 August 2001. This appeared in the same ASA Newsletter as one entitled “US Rejection of the Protocol at the Eleventh Hour Endangers Collective Security Against Biological Weapons” reporting the US rejection on 25 July 2001.
This article considers the developments since then and assesses the prospects for the future. It starts by recalling the key elements in the over 200 page Chairman’s composite text, which appeared in March 2001 after six years of negotiation.
The Chairman’s composite text
The key elements were for all States Parties to make:
• Initial Declarations of offensive biological weapons programmes and/or activities conducted between 1 January 1946 and entry into force of the Convention for that State Party and of defensive biological weapons programmes and/or activities conducted during the 10 years prior to the entry into force of the legally-binding instrument for that State Party. These were developed from the CBMs agreed at the Third Review Conference in 1991.
• Annual Declarations of national biological defence programmes and/or activities, maximum biological containment facilities, high biological containment facilities which exceed 100m2 and have produced vaccines or other specified production or have carried out genetic modification of any agent or toxin listed in an Annex, plant pathogen containment, specified work with listed agents and toxins and specified production facilities. Again these were developed from the CBMs agreed at the Third Review Conference in 1991.
These declarations were followed up by three categories of visits to declared facilities:
• Randomly-selected transparency visits to increase confidence in the consistency of declarations and to encourage submission of complete and consistent declarations.
• Voluntary assistance visits to provide technical assistance and information.
• Declaration clarification procedures to resolve any ambiguity, uncertainty, anomaly or omission.
Provisions were also made for investigations in two categories:
• Field investigations where exposure of humans, animals or plants gave concern about possible non-compliance with Article I of the Convention, and
• Facility investigations where there was a substantiated concern about activities prohibited under Article I of the Convention.
Other elements of the Chairman’s composite text included provisions for assistance and protection against biological weapons, for scientific and technological exchange for peaceful purposes and technical co-operation, for strengthening the implementation of Article III of the Convention (which prohibits transfers of agents, weapons, equipment and means of delivery), for establishing an organization to implement the legally binding instrument and for national implementation measures, including penal legislation, to be taken by each State Party.
There were high hopes at the July-August 2001 meeting of the AHG that negotiations could be completed by the Fifth Review Conference in November/December 2001. The article on the Chairman’s text concluded that “Consideration of the composite Protocol text as a whole shows that this brings significant benefits to all States Parties when compared to the existing regime based on the Convention alone. A comparison of the Protocol regime with that of the CWC [in the article] shows the two regimes to be closely comparable with several elements elaborated in the Protocol regime that have no explicit counterpart in the CWC. It is evident that the Protocol negotiation can indeed be completed before the Fifth Review Conference and result in an effective and valuable strengthening of the prohibition regime against biological weapons.”
The US Rejection
This promise was not fulfilled. The next meeting of the AHG from 23 July to 17 August 2001 started well with on the first two days, over 50 of the 55 or so States Parties engaged in the negotiation of the Protocol speaking in favour of completing the negotiation on the basis of the Chairman's composite text. Belgium, speaking on behalf of the European Union and the associated States (totaling 28 States) said that “a Protocol based on the Composite Text … would be a useful supplement to existing multilateral regimes in the field of disarmament and non-proliferation and therefore would enhance everyone's security.” Brazil spoke on behalf of 36 States, including some of those who had been associated with the EU statement, saying that “we continue to believe that the Chairman's Composite Text (CRP.8) provides the basis to conclude our work…. a Protocol based on your text would enhance international confidence that the prohibitions of the Convention are being upheld and that its provisions are being implemented.”
Then on the third day, 25 July 2001, the US delivered a 10 page detailed statement rejecting both the Chairman's composite Protocol and the approach to the Protocol. A detailed evaluation in August 2001 (Bradford Evaluation Paper No 22 The US Rejection of the Composite Protocol: A Huge Mistake based on Illogical Assessments available at http://www.brad.ac.uk/acad/sbtwc) analysed the US statement in detail. It concluded that the US assertions were based on illogical assessments and were incorrect and not valid. Several were based on alleged concerns that had no basis in the actual composite Protocol text.
The US rejection of the Protocol was encapsulated in the State Department briefing of 25 July 2001 which said "The protocol … adds nothing new to our verification capabilities. …. Implementation of such a protocol would have caused problems...for our biological weapons defense programs, would have risked intellectual property problems for our pharmaceutical and biotech industries and risked the loss of integrity and utility to our very rigorous multilateral export control regimes." These assertions are all incorrect.
First, the assertion that the composite Protocol added nothing new to our verification capabilities was simply untrue. The Protocol required mandatory declarations of the activities/facilities of greatest relevance to the Convention, the declaration follow-up procedures promoted the consistency of declarations and addressed any ambiguity, uncertainty, anomaly or omission, and also provided for field and facility investigations of compliance concerns. To assert that these added nothing new failed completely to recognize that there are no such provisions under the Convention alone (see table comparing the BTWC Protocol regime with that of the BTWC alone on page 24 of ASA 01-2).
Second, the assertion that the Protocol would cause problems for the biological weapons defense programs of the United States was at complete variance with the assessments of all the other States Parties who also have biological weapons defence programmes. Nothing in the Protocol required the provision of any national security information in the declarations of such programmes.
Third, the assertion that the Protocol would have risked intellectual property problems for the US pharmaceutical and biotech industries ignored the fact that the Protocol contained stronger provisions for the protection of commercial proprietary information than did the CWC. There were no requirements for the provision of such information in any of the mandatory declarations. Moreover, the frequency of visits to such facilities in the US under the Protocol was seven or less per year – a minute fraction of the thousands of inspections carried out by regulatory agencies in the US.
Fourth, the assertion that the Protocol would have risked the loss of integrity and utility to the US’s very rigorous multilateral export control regimes was untrue. The Protocol required all States Parties to review, amend or establish controls over the transfer of biological materials and technology thus bringing clear benefits – both in countering proliferation and limiting the availability of materials and equipment for bioterrorism – for the international community and the US.
Subsequent developments
The events of 11 September 2001 and the subsequent anthrax letter attacks which caused immense public alarm and concern in the US raised hopes that, prior to the Review Conference starting on 19 November 2001, the US might reconsider its decision to reject the legally binding instrument to strengthen the effectiveness and improve the implementation of the Convention. However, there was no sign of any such reconsideration by the Bush administration.
Instead, the State Department on 19 October 2001 issued two fact sheets on new ways to strengthen the international regime against biological weapons. This was followed on 1 November 2001 by a statement by President George W. Bush that “The United States is committed to strengthening the Biological Weapons Convention (BWC) as part of a comprehensive strategy for combating the complex threats of mass destruction and terrorism.” It proposed that all Parties enact criminal legislation, establish an effective United Nations procedure for investigating allegations of use, establish procedures for compliance concerns, improve international disease control, establish national oversight of security and genetic engineering, devise a universal code for bioscientists and promote responsible conduct with pathogenic microorgansisms. It concluded “Our objective is to fashion an effective international approach to strengthen the Biological Weapons Convention. The ideas we propose do not constitute a complete solution to the use of pathogens and biotechnology for evil purposes. However, if we can strengthen the Convention against the threat of biological weapons, we will contribute to the security of the people of the United States and mankind as a whole.” The State Department fact sheets show these proposals were crafted for action by individual States Parties rather than for multilaterally negotiated action.
Fifth Review Conference, November—December 2001
The President of the Review Conference, Ambassador Tibor Tóth of Hungary, in his opening remarks noted that the negotiations on the compliance protocol had come to an abrupt halt in August and that another challenge was posed by the recent use of biological weapons in the incidents using anthrax as a weapon of terror which led to the notion that the use of these weapons is becoming part of our everyday life. He said that "Such a notion is slowly eroding all the prohibition layers, both politically and legally binding, as contained in the consensus final declarations of all the previous Review Conferences and in the Biological Weapons Convention itself. The Convention is facing perhaps the greatest challenges in its 26-year history.... this… puts us in a situation profoundly different to that faced by previous Review Conferences." He concluded that "We will have to reconfirm at the Conference the importance the international community attaches to the integrity of each and every prohibition norm...We must not accept the slow erosion of the norms that served us for decades, if not longer. We must comprehend that in the light of political and public expectations we have no other viable choice but to overcome these challenges."
The Review Conference made good progress during its three week meeting and had, by the morning of the final day, reached the position where the President of the Review Conference was reporting to the media that 75 per cent of the Final Declaration had been consolidated and that the outstanding critical issues were non-compliance with the Convention, follow-up to the Review Conference, and the question of the Ad Hoc Group and whether or not this should resume its work.
Late in the afternoon of the final day, Friday 7 December 2001, agreement had been reached on the language in the Final Declaration relating to the first eleven Articles of the Convention -- and consensus language was available for Articles XIII, XIV and XV making the Final Declaration 95 per cent complete -- when the US tabled new language for Article XII, without prior consultation with any of the other States Parties, which included:
3. The Conference takes note of the work of the Ad Hoc Group, and decides that the Ad Hoc Group and its mandate are hereby terminated and replaced with the process elaborated in paragraphs 1 and 2.
This proposal by the United States was received with shock and anger not only because of its proposed termination of the Ad Hoc Group and its mandate but also because of its unexpected introduction less than two hours before the end of the Review Conference thereby jeopardizing the Conference and the progress towards agreement of a Final Declaration. In order to avoid a complete failure, there was no alternative other than to adjourn the Review Conference until 11 to 22 November 2002.
In an analysis made in December 2001 in the detailed report on the Fifth Review Conference in The CBW Conventions Bulletin no 54 (December 2001) (This and other issues of the Bulletin are available at http://www.sussex.ac.uk/Units/spru/hsp/pdfbulletin.html), I noted that in considering the reasons for the failure of the Review Conference to agree its Final Declaration, the onus has to be placed squarely upon the US. It became evident during the Review Conference that the US, whilst content to call for national measures, would not consent to any language which required multilateral action or sought to arrive at legally binding measures to strengthen the regime. The tabling, within two hours of the end of the Review Conference, of language, without any prior consultation even with close allies, proposing termination of the Ad Hoc Group and its mandate showed a serious misreading of the widespread desire of all the other States Parties to strengthen the Convention. The attitude of the US to the Review Conference and BTWC was very hard to understand let alone explain. Following the events of 11 September and the subsequent anthrax attacks in the US, it would have been expected that the US would have been aware of -- and would have wished to benefit from -- the considerable benefits that could accrue from multilaterally strengthening the BWC regime as national measures are always going to be subject to national interpretation and unlikely to be harmonised internationally. The US missed an opportunity to help to protect itself, and its fellow States Parties, from the dangers of biological weapons.
Resumed Fifth Review Conference, November 2002
At the resumed Fifth Review Conference on 11 to 22 November 2003, the President presented a proposal, following wide consultations throughout the year, for a draft decision establishing follow-up meetings over the next three years as he believed this was the only realistic achievable outcome to ensure a continued multilateral approach to the implementation and strengthening of the Convention. This decision called for a one-week annual meeting of States Parties each year until 2006, with each such meeting being preceded by a two-week meeting of experts. Five topics were set for these meetings: (i) national measures to implement the prohibitions in the BTWC; (ii) national mechanisms for the security and oversight of pathogens and toxins; (iii) enhancing international capabilities relating to alleged use of biological or toxin weapons; (iv) strengthening national and international efforts for the surveillance of infectious diseases in humans, animals or plants; and (v) codes of conduct for scientists. Topics i and ii would be addressed in 2003, iii and iv in 2004 and v in 2005.
It was evident that the draft decision was not for negotiation and, although many States Parties expressed concern, the draft was eventually agreed and incorporated into the Final Report of the Review Conference which made it clear that these annual meetings would be to discuss, and promote common understanding and effective action on the identified topics. There was no Final Declaration from the Fifth Review Conference.
The decision agreed by the resumed Fifth Review Conference represented a modest step forward which found consensus support by all States Parties. It was, however, regrettable that there was no Final Declaration as the reaffirmations and extended understandings provided by such Final Declarations contribute significantly to the strengthening of the norm and regime totally prohibiting biological weapons “The resumed Fifth Review Conference was reported in The CBW Conventions Bulletin no 58 (December 2003)".
The New Process
In 2003, the States Parties held a one week Meeting of States Parties in November 2003 prepared by a two week Meeting of Experts in August 2003 under an Eastern Group Chairman, Ambassador Tóth of Hungary, to consider the two topics:
i. The adoption of necessary, national measures to implement the prohibitions set forth in the Convention, including the enactment of penal legislation;
ii. National mechanisms to establish and maintain the security and oversight of pathogenic microorganisms and toxins;
The outcome of the Meeting of Experts was a 4 page factual report to which was annexed an undigested collation, in the languages of submission, of all the presentations, statements and contributions to the discussion that were provided in writing.
Although there were hopes that the Meeting of States Parties would focus on the requirement in the mandate to discuss, and promote common understanding and effective action on the two topics, the outcome was a modest statement that the States Parties agreed:
To review, and where necessary, enact or update national legal, including regulatory and penal, measures which ensure effective implementation of the prohibition of the BTWC, and which enhance effective security of pathogens and toxins.
The positive effect of cooperation between States Parties with differing legal and constitutional arrangements.…
The need for comprehensive and concrete national measures to secure pathogen collections and the control of their use for peaceful purposes….
In an analysis at the time (The CBW Conventions Bulletin no 62 (December 2003)) it was noted that the Meeting of States Parties had barely managed to reach agreement on this modest statement. It could not be said to have successfully promoted common understanding and effective action as required by the mandate.
In 2004, the Meeting of States Parties will be held in Geneva from 6 to 10 December 2004. It was preceded by the Meeting of Experts under a NAM Chairman, Mr Peter Goosen of South Africa, on 19 to 30 July 2004 which addressed the two topics for consideration in 2004:
iii. Enhancing international capabilities for responding to, investigating and mitigating the effects of cases of alleged use of biological and toxin weapons or suspicious outbreaks of disease;
iv. Strengthening and broadening national and international institutional efforts and existing mechanisms for the surveillance, detection, diagnosis and combating of infectious diseases affecting humans, animals and plants;
The Meeting of Experts in July 2004 made significant progress especially through its decision to annex to its report the list of “considerations, lessons, recommendations, conclusions and proposals” prepared by the Chairman. This provides the States Parties with an excellent starting point from which to develop language to meet the requirement of the mandate for the Meeting of State Parties in December 2004 to ‘discuss, and promote common understandings and effective action’. It remains to be seen whether the outcome of the December 2004 meeting of States Parties lives up to this expectation.
The topic for 2005 under a Western Group Chairman from the United Kingdom will be:
v. The content, promulgation, and adoption of codes of conduct for scientists.
Attention is already being given to this by several States Parties.
Prospects for the Sixth Review Conference
It is timely now to consider the prospects for the Sixth Review Conference as the States Parties are half way through the period between the Fifth and Sixth Review Conferences and an appraisal can be made as to the effectiveness of the new process thus far. In the new process, it needs to be recognised that the consideration by the States Parties of the five topics being addressed in 2003 to 2005 is tightly constrained. The outcome in 2003 was minimal with no clear statement of actions, let alone any action plans.
The relevance of the five topics to the strengthening of the BTWC regime needs consideration. The two topics in 2003 – national measures to implement the prohibitions in the Convention and national measures for the security and oversight of pathogenic microorganisms and toxins – are both directly relevant to the strengthening of the regime but the outcome of the 2003 meetings was minimal and ineffective – a missed opportunity. In 2004 the first topic – responding to alleged use – is directly relevant whilst the second – surveillance of human, animal and plant diseases – is more related to international health and less to the BTWC regime. The topic for 2005 – codes of conduct for scientists – is loosely related to the BTWC regime. Consequently, the new process should be seen for what it is – a means of enabling the States Parties to maintain dialogue and to exchange much information on national practices without actually strengthening the BTWC regime in an effective way.
In looking ahead to the Sixth Review Conference, it has to be recognised that the disagreement about the negotiations of a legally binding instrument to strengthen the Convention is still unresolved. At the Meeting of Experts in July 2004, at least two States Parties – Russia and Iran – made it clear that they still regarded a legally binding instrument as being necessary for the strengthening and improvement of its implementation of the BTWC. Germany noted the failure saying that ‘following the failure in 2001 to achieve a legally binding instrument to verify compliance with the Convention, the States Parties took a pragmatic decision … to launch a new process to strengthen the Convention.’ The Russian Federation said that ‘We would like to recall here … that for a long time the mechanism to investigate an alleged use of biological weapons has been the subject for negotiations on the development of a control mechanism under the Convention. …. I would like to underscore the following: the consideration of this issue at our meeting cannot be an adequate replacement for elaboration of the BWC control mechanism. This is only an intermediate stage.’ Iran said that ‘after failure and suspension of seven years negotiations on the Protocol to the Convention, world has faced rapid development of biotechnology and escalation of bioterrorism threats thus it has become more imperative and important to discuss, within a multilateral legally binding frameworks, the concrete measures to strengthen the effectiveness of the Convention. The preference of a certain country for unilateral actions to combat weapons of mass destruction including biological weapons cannot obliterate the primacy of the principles and rules of multilateralism on this matter. The lack of multilateral coordination will result in the failure of the regime established by the BWC. Legitimate action in the area of international security must be founded on multilateral agreements.‘ The US opposition to multilateral developments was evident in its statement regarding allegations of use when it said that understandings were being promoted of the international processes available for addressing allegations of BW use and suspicious outbreaks of disease: resorting to the UN Security Council under Article VI, convening a formal consultative meeting under procedures developed to implement Article V, and conducting international investigations authorized by the UN Secretary-General. However, “The United States believes that all three of these mechanisms remain viable and that revisions to their scope or procedures are neither necessary nor appropriate.” There is consequently a real risk that the Sixth Review Conference may start from where the resumed Fifth Review Conference ended – with the Convention regime in a state of crisis.
It should be clear to all States Parties, large and small, that the BTWC is the vital counter to those considering the use of disease or toxins as a means of attacking humans, animal or plants. Consequently, it is simply too dangerous for the international community not to reaffirm at the Sixth Review Conference the comprehensiveness of the prohibitions under the Convention as well as the extended understandings cumulated over the successive Review Conferences. States Parties need to be aware in this age of increased global concern about weapons of mass destruction and the fears of terrorism acquiring such weapons that it would be quite unacceptable to simply agree on a further set of annual topics to bridge the gap to the Seventh Review Conference.
The real requirement is for a resumption of negotiations towards a legally binding instrument to strengthen the effectiveness and improve the implementation of the Convention. It should be obvious to every State Party, and to the US, that the provisions in the Chairman’s composite text compared to the Convention alone were such that the draft legally binding instrument would have provided all States Parties with a far better regime for international peace, security and safety than that available from the Convention alone.
As there is clearly tension among the States Parties regarding the resumption of negotiations towards a legally binding instrument, there would be prudence in those States Parties who recognise the importance of strengthening the effectiveness and improving the implementation of the Convention preparing a contingency plan for the possibility that the Sixth Review Conference is, like the Fifth Review Conference, a near failure. This contingency plan could be based on a troika of States Parties taking an initiative to revive the negotiations of a legally binding instrument. It should be recalled that Australia initiated a Ministerial meeting on 23 September 1998 in New York at which 57 States Parties (including the United States) to the BTWC agreed a declaration (see WP.324 available at http://opbw.org) about the AHG negotiations that ‘The Ministers are determined to see this essential negotiation brought to a successful conclusion as soon as possible …’. This represented a political commitment by all the principal States Parties engaged in the negotiations, including China, Iran, Russia, the United States as well as South Africa and many other States. Consequently, a troika made up of Australia (as the initiator of the political commitment of 1998), South Africa (as a NAM state that has made an immense contribution to the negotiation of the legally binding instrument) and Norway (as a State outside the European Union which has experience of the Ottawa process which led to the land mines Convention) should arrange a meeting of States Parties to the BTWC to discuss a legally binding instrument to strengthen the effectiveness and improve the implementation of the Convention and which could use the Chairman’s composite text as a starting point.
Conclusions
The BTWC is the central pillar of the regime totally prohibiting biological and toxin weapons. There is no alternative to this regime. However, the regime totally prohibiting biological and toxin weapons is the weakest of the regimes addressing weapons of mass destruction and, consequently, is the one most in need of being strengthened. The dangers that humans, animals or plants might be attacked by biological or toxin agents is of greater concern today with concern being expressed especially in the United States to the dangers of bioterrorism. Global peace and security demands that the effectiveness of the BTWC be strengthened and its implementation improved. Whilst the preferred solution would be for the Sixth Review Conference in 2006 to reaffirm the extended understandings gained in previous Review Conference and to restart the negotiations of a legally binding instrument to strengthen the Convention, there are indications in 2004 that the US does not see the benefits, which other States Parties do recognize. Consequently, those States Parties who recognize the vital importance for global peace and security of strengthening the effectiveness and improving the implementation of the Convention are urged to develop a contingency plan that builds upon the political commitment made by Ministers of 57 States Parties in 1998 to the early completion of such negotiations.
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