Putting Teeth in the Biological Weapons Convention

JONATHAN B. TUCKER

Putting Teeth in the Biological Weapons Convention

The Bush administration’s proposals for bolstering the treaty are useful but inadequate.

In the fall of 2001, letters sent through the U.S. mail containing powdered anthrax bacterial spores killed five people, infected 18 others, disrupted the operations of all three branches of the U.S. government, forced tens of thousands to take prophylactic antibiotics, and frightened millions of Americans. This incident demonstrated the deadly potential of bioterrorism and raised serious concerns about the nation’s ability to defend itself against more extensive attacks.

The anthrax crisis also made more urgent the need to prevent the acquisition and use of biological and toxin weapons–disease-causing microorganisms and natural poisons–by states as well as terrorist organizations. At present, the legal prohibitions on biological warfare (BW) are flawed and incomplete. The 1925 Geneva Protocol bans the use in war of biological weapons but not their possession, whereas the 1972 Biological and Toxin Weapons Convention (BWC) prohibits the development, possession, stockpiling, and transfer of biological and toxin agents and delivery systems intended for hostile purposes or armed conflict, but it has no formal measures to ensure that the treaty’s 144 member countries are complying with the ban.

Because the materials and equipment used to develop and produce biological weapons are dual use (suitable both for military ends and legitimate commercial or therapeutic applications), the BWC bans microbial and toxin agents “of types and quantities that have no justification for prophylactic, protective, or other peaceful purposes.” Given this inherent ambiguity, assessing compliance with the BWC is extremely difficult and often involves a judgment of intent. Moreover, the treaty lacks effective verification measures: Article VI offers only the weak option of petitioning the United Nations (UN) Security Council to investigate cases of suspected noncompliance, which has proven to be a political nonstarter.

The BWC’s lack of teeth has reduced the treaty to little more than a gentleman’s agreement. About 12 countries, including parties to the BWC such as Iraq, Iran, Libya, China, Russia, and North Korea, are considered to have active biological warfare (BW) programs. This level of noncompliance suggests that the legal restraints enshrined in the treaty are not strong enough to prevent some governments from acquiring and stockpiling biological weapons. Thus, it is essential to take concrete steps to reinforce the biological disarmament regime.

Despite the fall 2001 terrorist attacks, however, recent efforts to adopt monitoring and enforcement provisions for the BWC have gone nowhere. Indeed, negotiations at a meeting of the BWC member states in November and December 2001 broke down, in large part because of actions taken by the United States. Instead of the mandatory and multilateral approach favored by most Western countries, the Bush administration has advocated a package of nine voluntary measures, most of which would be implemented through national legislation. Although the administration’s approach has some value for combating bioterrorism, it is doubtful that it will be sufficient to address the problem of state-level noncompliance with the biological weapons ban.

History of failure

Efforts to strengthen the BWC have a long history. At the Second and Third Review Conferences of the treaty in 1986 and 1991, member states sought to bolster the BWC by adopting a set of confidence-building measures that were politically rather than legally binding. These measures included exchanges of information on vaccine production plants (which can be easily diverted to the production of BW agents), past activities related to BW, national biodefense programs, and unusual outbreaks of disease. The level of participation in the confidence-building measures, however, has been poor. From 1987 to 1995, only 70 of the then 139 member states of the BWC submitted data declarations, and only 11 took part in all rounds of the information exchange.

In 1992 and 1993, a panel of government verification experts known as VEREX assessed the feasibility of monitoring the BWC from a scientific and technical standpoint. The VEREX group concluded that a combination of declarations and on-site inspections could enhance confidence in treaty compliance and deter violations. Consequently, BWC member states established the Ad Hoc Group in September 1994 to “strengthen the effectiveness of and improve the implementation” of the BWC, including the development of a system of on-site inspections to monitor compliance with the treaty. In July 1997, the Ad Hoc Group began to negotiate a compliance protocol to supplement the BWC, but differences in national positions were significant.

In April 2001, the chairman of the Ad Hoc Group, Tibor Tóth of Hungary, proposed a compromise text that sought to bridge the gaps. It contained these key elements:

  • Mandatory declarations of biodefense and biotechnology facilities and activities that could be diverted most easily to the development or production of biological weapons
  • Consultation procedures to clarify questions that might arise from declarations, including the possibility of on-site visits
  • Transparency visits to randomly selected declared facilities to check the accuracy of declarations
  • Short-notice challenge investigations of facilities suspected of violating the BWC, declared or undeclared, as well as field investigations of alleged biological weapons use

Although most delegations were prepared to accept the chairman’s text as a basis for further negotiations, the new Bush administration conducted an interagency review and found 37 serious problems with the document. U.S. officials argued that the draft protocol would be ineffective in catching violators, create a false sense of security, impose undue burdens on the U.S. pharmaceutical and biotechnology industries, and could compromise government biodefense secrets. Other delegations countered that the protocol, though flawed, offered a reasonable balance between conducting on-site inspections intrusive enough to increase confidence in compliance and safeguarding legitimate national security and business information. Nevertheless, the United States declared that the draft protocol could not be salvaged and withdrew from the Ad Hoc Group negotiations on July 25, 2001. Although other countries considered proceeding with the talks without the United States, they quickly rejected this option. Instead, the mandate of the Ad Hoc Group was preserved so that the negotiations could potentially resume at a later date, after a change in the political climate.

The next opportunity for progress came in November 2001, during the Fifth Review Conference of the BWC in Geneva. On the first day of the meeting, John Bolton, the head of the U.S. delegation and Under Secretary of State for Arms Control and International Security, accused six states of violating the BWC: Iran, Iraq, Libya, and North Korea (all parties to the BWC); Syria (which has signed but not ratified); and Sudan (which has neither signed nor ratified). Bolton said that additional unnamed member states were also violating the convention and insisted that the review conference address the problem of noncompliance.

As an alternative to the BWC Protocol, which Bolton bluntly stated was “dead, and is not going to be resurrected,” the United States offered an “alternatives package” of nine voluntary measures that could be implemented through national legislation or by adapting existing multilateral mechanisms. They include:

  • Criminalizing the acquisition and possession of biological weapons
  • Restricting access to dangerous microbial pathogens and toxins
  • Supporting the World Health Organization’s (WHO’s) global system for disease surveillance and control
  • Establishing an ethical code of conduct for scientists working with dangerous pathogens
  • Contributing to an international team that would provide assistance in fighting outbreaks of infectious disease
  • Strengthening an existing UN mechanism for conducting field investigations of alleged biological weapons use so that BWC member states would be required to accept investigations on their territory.
Controls on access to dangerous pathogens must be implemented internationally, not just in the United States.

Several delegations welcomed the U.S. package but suggested that it did not go far enough and that some type of legally binding agreement among BWC member states would be necessary. On the last day of the conference, however, the United States insisted that the mandate of the Ad Hoc Group be terminated, thereby eliminating the sole forum for negotiating multilateral measures to strengthen the treaty. Because preserving the Ad Hoc Group’s mandate had long been a bottom line for many delegations, the U.S. proposal prevented the consensus needed to adopt a politically binding Final Declaration. In a desperate bid to prevent the BWC Review Conference from failing completely, chairman Tóth suspended the meeting for a year.

The Review Conference will reconvene in Geneva on November 11, 2002. Whether progress can be achieved before the conference resumes remains to be seen. One problem is that the United States continues to resist any formal multilateral agreements, creating a split between Washington and other Western countries. Moreover, without the Ad Hoc Group, no multilateral forum exists to negotiate the ideas in the U.S. alternatives package. During the period preceding the resumption of the conference, it will be important for the participating states to hammer out their differences; creative thinking will be needed to find a way out of the current impasse.

The U.S. alternatives package

The Bush administration’s current approach to strengthening the BWC, which emphasizes voluntary national measures, may have some benefit in reducing the threat of bioterrorism, but it will not be sufficient to address the problem of state-level noncompliance. There are ways, however, in which the U.S. proposals could be improved.

The first set of measures proposed by the United States relates to Article IV of the BWC, which deals with national implementation. This article requires each member state, in accordance with its constitutional processes, to take any necessary steps to prohibit and prevent the activities banned by the BWC on its territory or anywhere under its jurisdiction. Because Article IV is vaguely worded, it has been interpreted in various ways, and few of the 144 BWC member states have enacted domestic implementing legislation imposing criminal penalties on individuals who engage in illicit biological weapons activities. Not until 1989 did the United States develop its own implementing legislation, the Biological Weapons Antiterrorism Act, which imposes criminal penalties up to life imprisonment, plus fines, for anyone who acquires a biological weapon or assists a foreign state or terrorist organization in doing so.

Under the new U.S. proposal, the legislatures of BWC member states that have not already done so would adopt domestic legislation criminalizing the acquisition, possession, and use of biological weapons. As a key element of such laws, states would improve their ability to extradite biological weapons fugitives to countries prepared to assume criminal jurisdiction, either by amending existing bilateral extradition treaties to include biological weapons offenses, or by arranging to extradite for BW offenses even when a bilateral treaty is not in place with the country seeking extradition. In addition, BWC member states would commit to adopt and implement strict national regulations for access to particularly dangerous pathogens, along with guidelines for the physical security and protection of culture collections and laboratory stocks.

Within the United States, the federal Centers for Disease Control and Prevention (CDC) regulates the interstate transport of 36 particularly hazardous human pathogens and toxins, permitting the transfer of these agents only between registered facilities that are equipped to handle them safely and have a legitimate reason for working with them. Similar regulations on transfers of dangerous plant and animal pathogens are administered by the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS). In response to the anthrax letter attacks, Congress is strengthening the statutory framework relating to biological weapons by extending the current controls on transfers of dangerous pathogens to prohibit the possession of such agents by unauthorized individuals or for other than peaceful purposes. Presumably, the U.S. government hopes that other nations will adopt similar legislation.

Enhanced UN field investigation powers should be part of a legally binding multilateral agreement.

The proposed U.S. measures to strengthen Article IV also include urging BWC member states to sensitize scientists to the risks of genetic engineering and to explore national oversight of high-risk experiments (see sidebar). In addition, states would be encouraged to develop and adopt a professional code of conduct for scientists working with pathogenic microorganisms, possibly building on existing ethical codes such as the Hippocratic oath.

A second set of measures in the U.S. package aims to strengthen the BWC’s Article VII, on assisting the victims of a biological attack, and Article X, on technical and scientific cooperation in the peaceful uses of biotechnology. The U.S.-proposed measures for assistance and cooperation would require member states to adopt and implement strict biosafety procedures for handling dangerous pathogens, based on those developed by WHO or equivalent national guidelines, and to enhance WHO’s capabilities for the global monitoring of infectious diseases. This latter measure could help to deter the covert use of biological weapons by detecting and containing the resulting outbreak at an early stage, thereby reducing its impact. An enhanced global disease surveillance system would also increase the probability that an epidemic arising from the deliberate release of a biological agent would be promptly investigated, recognized as unnatural in origin, and attributed to a state or terrorist organization. Further, the United States has proposed the creation of international rapid response teams that would provide emergency and investigative assistance, if required, in the event of a serious outbreak of infectious disease. BWC member states would be expected to indicate in advance what types of assistance they would be prepared to provide.

The third set of measures proposed by the United States is designed to strengthen the BWC’s Article V, on consultation and cooperation, by addressing concerns over treaty compliance. One proposed measure would augment the consultation procedures in Article V by creating a “voluntary cooperative mechanism” for clarifying and resolving compliance concerns by mutual consent, through exchanges of information, visits, and other procedures. The other measure would adapt a little-known procedure by which the UN secretary general can initiate field investigations of alleged chemical or BW incidents. If the secretary general determines that an allegation of use could constitute a violation of international law, he or she has the authority to assemble an international team of experts to conduct an objective scientific inquiry.

When the UN field investigations mechanism was first developed in 1980, the General Assembly or Security Council had to pass a resolution requesting the secretary general to launch an investigation. This procedure was used for investigations of alleged chemical warfare by the Soviet Union and its allies in Southeast Asia and Afghanistan in 1980-83, and by Iraq and Iran in 1984-88, during the Iran-Iraq War. Experience demonstrated, however, that it was essential to conduct a field investigation while the forensic evidence was still fresh, and that the procedure of requiring a UN body to make a formal request was too cumbersome and lengthy to permit a rapid response.

In view of this problem, on November 30, 1987, the General Assembly adopted Resolution 42/37 empowering the secretary general to launch, on his or her own authority, an immediate field investigation of any credible complaint of alleged chemical or biological weapons use. The Security Council adopted a similar resolution on August 26, 1988, making the secretary general the sole arbiter of which allegations to investigate and the level of effort devoted to each investigation. In 1992, the secretary general launched investigations of the alleged use of chemical weapons by RENAMO insurgents in Mozambique and by Armenian forces in Azerbaijan. In both cases, UN expert teams concluded that the allegations were false.

No UN field investigations have been requested since 1992. Now that the BWC Protocol negotiations have been placed on indefinite hold, however, the ability of the secretary general to initiate investigations of alleged biological weapons use could fill a major gap in the disarmament regime. Although all the UN investigations conducted to date have involved the alleged use of chemical or toxin warfare agents, the United States has proposed expanding the existing mechanism to cover suspicious outbreaks of infectious disease that might result from the covert development, production, testing, or use of biological weapons. The U.S. proposal would also require BWC member countries to accept UN investigations on their territory without right of refusal, which is not currently the case.

Will they work?

The various U.S. measures presented at the Fifth Review Conference are modest steps for reducing the threats of BW and bioterrorism, but they would do little to reinforce the biological disarmament regime. Although the Bush administration has good reason to be troubled by the evidence of widespread noncompliance by members of the BWC, the remedies it has proposed are not commensurate with the gravity of the problem.

A key weakness of relying almost exclusively on domestic legislation to address biosecurity concerns is that national laws cannot impose uniform international standards. Legislation criminalizing the possession and use of biological weapons by individuals may vary considerably from country to country, resulting in an uneven patchwork that could create loopholes and areas of lax enforcement exploitable by terrorists. Moreover, some states will fail to pass such laws or will not enforce them. As an alternative to national legislation, the Harvard Sussex Program on CBW Armament and Arms Limitation, a nongovernmental group, has developed a draft treaty criminalizing the possession and use of biological weapons. This text could serve as a starting point for multilateral negotiations to strengthen the BWC.

Similarly, tighter U.S. regulations on access to dangerous pathogens, although desirable, will not significantly reduce the global threat of bioterrorism unless such controls are implemented internationally. Hundreds of laboratories and companies throughout the world work with dangerous pathogens, yet restrictions on access vary from country to country. To harmonize these national regulations, the United States should pressure the UN General Assembly to negotiate a “Biosecurity Convention” requiring all participating states to impose uniform limits on access to dangerous pathogens, so that only bona fide scientists are authorized to work with these materials. In addition, the treaty should establish common international standards of biosafety and physical security for microbial culture collections that contain dangerous pathogens, whether they are under commercial, academic, or government auspices.

The U.S. proposal for an expanded global disease-monitoring system run by WHO could play an important, albeit indirect, role in strengthening the BWC. Nevertheless, it is essential that WHO’s public health activities not be linked explicitly to monitoring state compliance with the BWC. Because WHO epidemiologists conduct investigations of unusual disease outbreaks only at the invitation of the affected country, the organization must preserve its political neutrality; any suspicions about WHO’s motives could seriously compromise its ability to operate. Accordingly, although the U.S. proposal for greater funding of global disease surveillance is welcome, the money for this purpose should be provided directly in the WHO budget and kept separate from efforts to strengthen the BWC.

As for UN field investigations of alleged biological weapons use, the historical record suggests that such efforts can yield useful findings if they are carried out shortly after an alleged attack and if the expert group is granted full access to the affected sites and personnel. Under optimal conditions, small groups of three to five experts can carry out field investigations rapidly and cheaply. Nevertheless, it is unrealistic to expect UN member countries to waive all right of refusal and accept international investigations on their territory in the absence of a formal treaty that provides legally binding rights and obligations.

Without such a treaty, countries accused of using biological weapons could simply deny investigators access to the alleged attack sites and the affected populations. Because such countries would be under no legal obligation to cooperate with the UN, the political consequences of a refusal would be minimal. Indeed, UN investigations of chemical and toxin weapons use in Laos, Cambodia, and Afghanistan during the early 1980s failed to yield conclusive results because the accused countries refused the UN experts access to the alleged attack sites. If, however, the obligation to accept UN investigators were legally binding, a denial of access would have far more serious consequences, possibly leading to the imposition of economic sanctions on the refusing country.

Finally, although the existence of a measure to investigate allegations of use could help to deter countries from employing biological weapons, is it really desirable to wait until such weapons have been used before the secretary general can initiate an investigation? Would it not be preferable to prevent states or terrorists from developing, producing, and testing them in the first place? This more ambitious objective would mean granting the secretary general the authority to investigate not only the alleged use of biological weapons but also facilities suspected of their illicit development and production, an option that the U.S. proposal does not include. To this end, BWC member states should negotiate a legally binding agreement that obligates them to cooperate with UN field investigations on their territories of the alleged development, production, and use of biological weapons, as well as suspicious outbreaks of disease.

U.S. flexibility needed

The use of anthrax-tainted letters sent through the mail to kill and terrorize U.S. citizens has seriously challenged the international norm against BW and terrorism and made it imperative to strengthen the existing disarmament and nonproliferation regime. Although the Bush administration’s package of proposals for strengthening the BWC is a useful step in the right direction, the United States must show greater flexibility by permitting meaningful efforts to expand on these ideas and to negotiate them in a multilateral forum. Should the administration persist in its ideological opposition to multilateral arrangements of any kind, efforts to strengthen the BWC will probably remain in limbo indefinitely.

If the resumption of the Fifth Review Conference in November 2002 fails to yield constructive results, the credibility of the international biological disarmament regime will continue to erode. The consequences of such an outcome could be grim indeed. As the know-how and dual-use technologies needed to develop, produce, and deliver biological weapons continue to diffuse worldwide, the ability to inflict mass injury and death will cease to be a monopoly of the great powers and will become accessible to small groups of terrorists, and even to mentally deranged individuals. To prevent this nightmare from becoming a reality, the United States should join with other nations in taking urgent and meaningful steps to reinforce the BWC.


Jonathan B. Tucker (jtucker@miis.edu) directs the Chemical and Biological Weapons Nonproliferation Program in the Washington office of the Monterey Institute of International Studies.

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