International Network of Engineers and Scientists Against Proliferation

Bulletin 19 - Bioterror and Bioweapons Control

BWC Conference Fails

What Needs To Be Done Next?

Iris Hunger

Amidst renewed bio-weapon fears raised by the recent anthrax letters that caused disease and five deaths in the USA, 91 of the 144 States Parties to the 1972 Biological and Toxin Weapons Convention (BWC)^[1] met in Geneva from 19 November to 7 December 2001 for their Fifth Review Conference. BWC review conferences take place every five years. During these conferences, States Parties review the operation and effectiveness of the treaty and usually agree on necessary future action. The results of a review conference are documented in its "Final Declaration".

The Fifth Review Conference had three particularly complicated issues on its plate:
1.   compliance with the BWC,
2.   the scope of Article I of the BWC - which lays down the basic BW prohibition - in light of recent scientific, technological and political developments, and
3.   legally binding, multilaterally negotiated mechanisms to enhance compliance with the BWC.

The political atmosphere during the Fifth Review Conference was poisoned by recent developments, most importantly the abrupt halt - in August 2001 - to the work of the BWC Ad Hoc Group, which is mandated to develop a legally binding compliance enhancement mechanism for the BWC. Ultimately, it was this third issue that brought the Fifth Review Conference to an impasse on the last day, making a one-year adjournment necessary to avoid open and total failure.

In this article I describe firstly the three most important issues that were discussed at the Fifth BWC Review Conference. Secondly, I suggest four ways of future action, all of which would contribute to a tighter control of biological and toxin weapons (BW) and the technologies associated with their development and production.

Compliance with the BWC

States Parties have discussed their concerns about compliance with the BWC during all previous review conferences. Mostly, those concerns were expressed without naming names. Sometimes, however, specific countries were identified. During the 1986 Review Conference, for instance, the US expressed its belief that the Soviet Union maintained an offensive BW programme.^[2] It therefore was, strictly speaking, nothing new when the US opened the Fifth Review Conference on 19 November 2001 with what it called "Straight Talk About BWC Compliance", accusing the BWC member states Iraq, North Korea, Iran and Libya, the BWC signatory Syria, and Sudan of developing and/or producing BW.^[3] Lists of states that the US government believes are developing BW have been publicly available for years.^[4] With the exception of Sudan, the states the US accused are on those lists, as are others, which were not named in the US statement.

The US reason for naming names in the unusually blunt way it did, remains unclear. The US did not indicate any follow-up action that it took or planned to take concerning these accusations. Without such an indication, especially keeping in mind that the accusations had been voiced repeatedly in public before, these allegations were nothing more than irritating and provoking words, negatively charging the conference atmosphere even further. The most obvious possible follow-up action would have been to implement Articles V and/or VI of the BWC. Article V and the associated mechanism agreed during the Third Review Conference in 1991 provide for consultation procedures including a consultative meeting to solve any problem which arises in relation to the BWC. Article VI sets down a basic complaint and investigation procedure for cases where a state believes another state is developing or producing or has used BW.

When the Fifth Review Conference adjourned on 7 December 2001, the paragraph in the Final Declaration dealing with the issue of compliance was not agreed; the issue therefore has to be revisited during the second part of the Fifth Review Conference in November 2002.

The scope of Article I

Reaffirming the comprehensive scope of Article I - Article I defines the prohibition of BW - has been an important issue during all review conferences. During the Third Review Conference in 1991, for instance, States Parties made it clear that the BWC prohibits not just BW against humans, but also against animals and plants.^[5] The BWC itself prohibits any use of biological agents or toxins if it is for hostile purposes. Arguably, this automatically prohibits the use against not only humans, animals or plants, but also against materials such as fuel, rubber or concrete, as well as the use of biological vectors to deliver BW agents.

While no state proposed during the Fifth Review Conference to affirm that BW against materials is prohibited under the BWC, Iran made a proposal to include in the final declaration a reference to the prohibition of the use of vectors of biological origin, such as insects.^[6] This Iranian proposal was included in the draft final declaration and appropriate language had been agreed when the conference adjourned on 7 December 2001.

Another issue discussed in relation to the scope of Article I of the BWC was the use of BW by a state within its own territory. Concern over such a possibility arises due to two developments. First, the Iraqi government used chemical weapons against its own population when bombarding Halabja in March 1988.^[7] And second, efforts are under way to develop fungal agents that kill illicit crops of coca, opium poppy and cannabis in forced crop eradication programmes. Whether the use of such anti-plant agents by a state within its own territory in police-type actions is prohibited under the BWC is still open to discussion.^[8] During the Fifth Review Conference, Mexico proposed to include in the final declaration a reference to the prohibition of such use.^[9] The relevant language in the final declaration was not settled during the first part of the conference and has to be revisited in November 2002.

The third issue in the context of the scope of Article I of the BWC were biodefence programmes. On 4 September 2001, the New York Times revealed three secret biodefence programmes conducted by the US.^[10] These programmes are dangerously close to the thin line dividing offensive and defensive activities. Although the intent of these programmes as stated by the US is defensive, the programmes reproduce components of offensive programmes, such as a BW agent production facilities and bombs. During the Fifth Review Conference, Brazil proposed that states focus special attention on such ambiguous programmes and apply, when necessary, consultation and inspection procedures.^[11] The Brazilian proposal was not included in the draft final declaration of the conference.

Mechanisms to enhance compliance with the BWC

Most controversial, and ultimately the stumbling block for the Fifth Review Conference, was the issue of multilateral efforts to add a legally binding compliance enhancement mechanism to the BWC. An Ad Hoc Group of BWC States Parties (AHG) had been mandated by a Special Conference in 1994 to develop such an instrument, and had worked on it since January 1995. In June 1997, the first draft of such an instrument, the Rolling Text of a Protocol to the BWC, was tabled. A newly revised Rolling Text was issued after nearly all of the subsequent sessions of the AHG. In March 2001, the Chairman tabled a compromise text, aiming to move the negotiations towards conclusion.^[12] At the AHG session in July/August 2001, the US categorically rejected the results of the 6.5 years of work in the AHG. From the point of view of the US, the draft protocol is not acceptable and could not become acceptable, even with further changes; for the US, the approach taken by the AHG to develop a protocol is not a workable structure.^[13] Multilateral efforts to complement the BWC with a protocol came to an abrupt halt. No group of states was prepared to go forward without the US. At the end of the AHG session in July/August, in the early morning hours of 18 August 2001, delegations did not even manage to agree on a short report of their work to the upcoming Fifth Review Conference. The overwhelming majority of diplomats left in anger and frustration.

During the Fifth Review Conference, the question of how to move forward on multilateral negotiations was discussed mostly in small informal meetings chaired by the President of the conference himself. The hope was that thus the controversial issue would not poison the rest of the work. During the last week, agreement seemed to emerge around a package of annual conferences followed up by expert discussions. It was left to each delegation's own interpretation whether such annual conferences would replace the AHG or be an interim activity until the AHG can restart working.

Almost worst outcome

On the last day, two hours before the Fifth Review Conference was scheduled to conclude its work, the US tabled a paper in which it agreed to annual meetings of states and expert group sessions. The US, however, linked this agreement to termination of the AHG. This explicit request to terminate the AHG destroyed the shaky implicit agreement to leave the fate of the AHG open. Why the US tabled that paper at that point is difficult to assess. With its diplomatic experience, the US knew well what disastrous effect a paper like that would have at such a late hour. Was this a deliberate attempt to lead the conference into total failure as some have argued?^[14] Or was the US "innocently" caught up in its own diplomatic manoeuvres? It is difficult to believe the latter. Whatever the reason, the result was an angry round of diplomatically expressed rejection and disappointment. The President, fearful of a repetition of the disaster in August 2001, proposed to adjourn. All delegations agreed. The second part of the Fifth Review Conference will now take place on 11 - 22 November 2002 in Geneva.

Adjournment is the second worst outcome possible for the Fifth Review Conference. Of course, it is better than closing the conference without a final document. But it still leaves the international community with no decision on how to tackle the increasingly worrisome threat from BW.

What needs to be done next?^[15]

Improving and ensuring compliance with the BWC remains the most important task for BWC member states. The overwhelming majority of states want to tackle that task by negotiating a legally binding instrument. The US rejected the attempts already made in that direction by the AHG. The alternative measures the US proposed as well as US statements prove that it is not interested in a multilaterally negotiated legally binding instrument. The measures proposed by the US focus on national legal action (e.g. making it a criminal offence for a person to develop, produce or use BW) and on ad hoc international action if BW are used (e.g. international investigations of suspicious disease outbreaks).^[16]

A long-term sustainable approach towards control of BW needs to fulfil several criteria.
1.   It should focus on prevention and not on reactions after BW have been used.
2.   Given the geographically wide availability of technologies that could be used for the development of BW, such an approach has to be multilateral; it must be acceptable for a large number of states.
3.   To guarantee the permanence of such an approach, it has to be incorporated into a legally binding treaty. Otherwise it can be dismissed too easily when the political situation suggests that casting it aside is the preferable option. The existing politically binding confidence-building measures under the BWC show that measures are not implemented comprehensively when there is no dedicated powerful organisation overseeing their implementation.^[17]

Given the current situation, in order to develop a legally binding multilateral instrument two dogmas should be questioned that a number of states have come to believe in:
1.   It is impossible to have an effective legally binding instrument without the US being involved right from the start.
2.   We need to stick to the established form of negotiations, which is the AHG, and continue working on the draft protocol as developed by the AHG.

In the following, I suggest four lines of action that could help states with getting out of the current mental and organisational dead-lock.

1. Start studies and trial runs of possible elements of a legally binding BWC enforcement instrument^[18]

Studies and practical trials could involve elements from the draft protocol (e.g. declarations, clarification visits or investigations of BW development), activities suggested by the US (e.g. the development of standards for national legislation) and new concepts (e.g. monitoring of open sources). They should be carried out on a multilateral basis so as to develop a truly common base of understanding and knowledge of the strengths and weaknesses of the different elements. It would be important that such efforts bring together states in different regional groups and involve states which have not been at the forefront of pushing the process of strengthening the BWC forward, such as China and Russia. When designing such studies and trials, the input of industry and civil society should be sought.^[19] Active and constructive participation in such efforts would indicate a high level of support for a strong BW control regime.

2. Start regional initiatives to strengthen the BWC

Countries can take a number of steps to strengthen the BW control regime without waiting for international consensus on a legally binding instrument. Such steps are more likely to be successful in a regional context, where there is more direct interaction and control among states. One could think about a "seal of quality" for regions with high degrees of control and transparency in BW-related technology areas. Regional activities could include implementing and harmonising national legislation, holding regional conferences to increase transparency in bio-defence activities, setting up regional networks to monitor the pattern of disease outbreaks, or organising exchange visits to particularly relevant facilities, such as bio-defence facilities.

3. Support civil society monitoring^[20]

In the absence of immediate action by governments, specialised and dedicated non-governmental organisations (NGOs) could fulfil a watchdog and transparency-promoting function. In the case of the anti-personnel landmine ban, NGOs are fulfilling the verification function through the publication of the "Landmine Monitor". An equivalent to this in the BW arena is unlikely any time soon, given the limited number of NGOs dedicated to BW control.

There is another difficulty associated with this concept. Civil society monitoring is easiest and therefore most likely and effective in open societies, where the suspicion of BW activity is generally lower. However, NGOs, particularly professional associations, can increase awareness among their members about the risks involved in specific types of scientific research. Given that the scientific community is a rather open international community, such efforts might even allow certain insight into countries where access to information is usually difficult. In order to make such an approach work, however, money needs to be funnelled into it by interested governments.

4. Conclude and implement a legally binding BWC enforcement instrument without the US, if necessary

If over the next few years a sufficiently widespread consensus emerges that a legally binding enforcement mechanism for the BWC is feasible, the international community should not hesitate to conclude and implement such an instrument, even without the US initially joining it. Opponents of this view usually argue that without the US other important states will not join either, paralysing the instrument from the start. Apart from the fact that this is not certain, making a multilateral instrument dependent on one country's approval gives this country the unacceptable power of definition over what that "multilateral" instrument looks like.

On a more practical level, an up and running international organisation dedicated to the implementation of a legally binding multilateral enforcement mechanism will allow civil society to put pressure on states not to remain outside the mechanism. This works best in open societies, of which the US is one.

Conclusions

All of the proposed activities will require intellectual, political and financial dedication over an extended period of time. However, without this investment we could end up with all forms of BW - from lethal to non-lethal, from anti-human to anti-material - contaminating the earth. If there is no tight control of the military use of biotechnologies, we also run the risk that people will start seeing biotechnology in general as a harmful and undesirable technology, which would deprive us of one possibility to solve some of the world's most pressing problems - environmental pollution, insufficient nutrition and disease.

Iris Hunger is a PhD student at the Institute for Political Science, Technical University Darmstadt. From 1997 to 2001 she worked as professional assistant to the BWC Ad Hoc Group in Geneva. tel. +44-20-8969 5620; irishunger@yahoo.com.