Abstract The Biological Weapons Convention (BWC) was negotiated as a simple treaty but its fulfillment has not been so simple: The convention has no monitoring or verification agency, no governing council, and no permanent secretariat. Instead, in an effort to make the treaty more robust, a body of extended understandings, defini- tions, and procedures have gradually been agreed upon at its first six review conferences. The Seventh Review Conference, in December 2011, can take forward this evolutionary process by building on the best elements in the treaty regime. The author writes that the upcoming review conference needs to renew the mandate of its Implementation Support Unit; authorize BWC annual meetings to make decisions to be included in a com- prehensive agenda; enable States Parties to report systematically on their compliance with BWC obligations through an accountability framework; organize collective assessment of BWC-relevant developments in sci- ence and technology; update statesÕ annual reporting arrangements on information measures to increase transparency; and appoint a working group to consider whether confidence is best generated in the longer term by such measures or by new methods.

Keywords biological weapons, Biological Weapons Convention, chemical weapons, review conference, Seventh Review Conference, verification

L ike its Cold War allies, the United Kingdom was concerned, first and foremost, with containing the

Soviet UnionÕs nuclear threat. But when the landmark Nuclear Non- Proliferation Treaty was signed at Washington, London, and Moscow in July 1968, Britain pushed another

pressing security concern to the top of its disarmament agenda. Densely popu- lated and encircled by the sea, the coun- try had long seen itself as especially vulnerable to attack from biological weapons. That year, British sponsors began rallying behind a treaty that would ban them across the globeÑand,

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if enacted, become the first multilateral treaty to outlaw an entire class of weapons.

By September 1971, negotiators in Geneva, Switzerland, were racing against the clock to put the finishing touches on a treaty they planned to have ready by the end of the month. A sense of urgency hung in the air. The United States and Soviet Union were about to reach agreements in the bilat- eral Strategic Arms Limitation Talks (SALT)Ñan incredible breakthrough. As ever, though, nuclear diplomacy between the two Cold War powers threatened to overshadow all other dis- armament negotiations. The closer SALT talks neared to fruition, Britain knew, the less likely America would be to risk interfering with the process by insisting on a stronger biological weap- ons treaty. And so the Biological Weapons Convention (BWC) was scut- tled through, with the British ambassa- dor remarking ruefully that the United Kingdom had compromised as much as it could.

Despite obvious shortcomings, such as the absence of a means to verify statesÕ adherence to the compact, the BWC remained a real achievement for the United KingdomÑand for the scien- tists and other leading voices who had lobbied hard for a biological weapons ban. Though weakened, the BWC was not beyond repair.

First and foremost a disarmament treaty, the convention is deliberately comprehensive. It requires the destruc- tion of any existing biological weapons stockpiles within nine months of enact- ment, and it bans a broad range of bio- logical weapons activities: development, production, stockpiling, acquisition, retention and transfer, encouragement,

and inducement. In other words, all bio- logical agents and toxins are banned unless theyÕre being used for prophylac- tic or protective means, or for other peaceful purposes, such as making vac- cines. In addition to the biological agents and toxins themselves, meanwhile, weapons for deploying them, equipment for storing them, and means for deliver- ing them are prohibited.

The treaty does not limit its scope to existing biological agents and toxins, but instead anticipates future develop- ments. It bans any weaponization of dis- ease, as well as preparatory steps toward weaponization.

The above stipulations apply to every country that joins the treaty, regardless of whether it has possessed biological weapons in the past. And unlike the 1968 Nuclear Non-Proliferation Treaty, as one example, the convention makes no distinction between haves and have- nots: No country is permitted to possess biological weapons. The conventionÕs strength lies in the simplicity of its abso- lute prohibition.

Not so easy

The treaty did not enter into force with- out controversy, however. It largely ignored chemical weapons, and this, coupled with the lack of a verification system to check on statesÕ compliance with their obligations, led critics to worry that the compact was too lenient. France and China, in fact, did not join the treaty until 1984.1

Chemical weapons

The treaty was limited to biological weapons and toxins, leaving unad- dressed the large stockpiles of chemical

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weapons in the US and Soviet armories. Many states believed that chemical dis- armament required a stringent verifica- tion process, including on-site inspections, and East”West positions on this subject remained far apart until late in the Cold War. Negotiating a treaty limited to biological weapons and toxins, however, was an attainable goal in 1971 because states were more relaxed about the need for its verifica- tion.2 Chemical weapons were more fully assimilated into armed forces and military planning than biological weap- ons had ever been. Consequently, reas- surance that no one was cheating would be all the more necessary as a condition of their global renunciation.

Verification

The conventionÕs lack of verification provisions has been hard to tackle. Pro- verification sentiment built up in the late 1980s, thanks to pressure from govern- ments of the so-called ÒWestern GroupÓ3 of more than 30 of the treatyÕs member statesÑalthough not, it should be noted, the United States. The initia- tive gained widespread support, espe- cially among life scientists and other segments of nongovernmental opinion. How could the world be sure that no existing biological weapons had slipped under the radar, or that new ones werenÕt being secretly amassed? The United States alone had openly destroyed its biological weapons stock- pile, between 1971 and 1973, leaving other governments open to US suspicion. In lieu of verification provisions, America now seemed content with a more unilateral approachÑthat is, it opted to express non-compliance con- cerns as official Òfindings.Ó The United

States reasoned that multilateral proce- dures for handling compliance concerns were too weak to be reliable, or too easily blocked by a SovietÑor, after 1991, a Russian or ChineseÑveto. This left accusations hanging in the air, to the detriment of the treatyÕs credibility.

The role of review conferences in the BWC

On the day the Biological Weapons Convention entered into forceÑMarch 26, 1975Ñit had 46 States Parties. Today, it has 163. A very basic, short treaty, the BWC has no international agency or governing council, nor even a permanent secretariat.4 Instead, States Parties meet for a review confer- ence every five years. The gatherings serve to reaffirm the treatyÕs binding power and record its implications. From the bare text of the BWC, the first six review conferences have com- bined to generate a slender but growing treaty regime, which this December in Geneva will now be shaped and steered by the seventh. The review conferenceÕs agenda is established by Article XII of the convention: (1) the operation of the convention, with a view to assuring that its purposes and provisions are being realized; (2) relevant developments in science and technology; and (3) progress on chemical disarmament.

Review conferences5 cannot amend the BWC, but they canÑand doÑrecord consensus on what the BWC requires of its States Parties. Cumulatively, these conferences have built up a significant body of interpretative statements, polit- ically binding commitments, definitions, and procedures. These Òadditional understandings and agreements,Ó as they are collectively known, establish

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the implications of the BWC. They put flesh on the skeleton, so to speak, of a rather emaciated treaty text.

The net effect of the review confer- ences has been to shape an evolving BWC treaty system and enable the States Parties to make the BWC more effective, recording additional points of agreement wherever they are able to achieve consensus. While this consen- sus may be only politically, and not leg- ally, binding, it steers the treaty regime through its next five years. It determines the next step forward as States Parties expand their collective understanding of the convention and what is required to strengthen it. But consensus can only proceed on the basis of reviewÑand so the conferences, with the sole authority for review, are the only means of obtain- ing it.6

This authority has been exercised only in particular ways, however, with the scope of ÒreviewÓ afforded a nar- rower meaning than Article XII might suggest. In practice, this has meant reviewing only the overall operation of the BWC, in broad strokes, rather than reviewing each stateÕs individual perfor- mance. Those who want the conference to review compliance with BWC obliga- tions on a case-by-case basisÑas the only way to be sure that its purposes are realized and provisions fol- lowedÑhave been disappointed. A more systematic option for States Parties to demonstrate their own com- pliance, and to scrutinize one anotherÕs, is long overdue.

Main features of the first six BWC review conferences

Ahead of DecemberÕs Seventh Review Conference, it is wise to reflect on past

reviews in order to highlight both their weaknesses and successes. For example, the conferences have never successfully reviewed scientific and technological developments relevant to the Convention, even though that require- ment is specifically written into Article XII. Although some delegations regu- larly bring scientific advisers, they have been under-used. Preparatory papers on relevant scientific and technological topics have been made available, but they, too, have been neglected, in part because successive review confer- ences have failed to make time for their consideration. Without a dedicated session or working group to discuss these issues, they have fallen into a pro- cedural void.

1980

The First Review Conference met under the shadow of the second phase of the Cold War, with the Soviet Union under heavy criticism from both the Non- Aligned Movement and the West for its invasion of Afghanistan. The confer- ence worked to clarify the implications of the BWC. It laid the foundation for future information exchanges by requesting that national legislation from member states be made available through the United Nations for consul- tation purposes. It established how members should cooperate in the peaceful uses of microbiology. And its final declaration considered how states could handle compliance concerns without going straight to the UN Security Council, as envisioned under Article VI. Wary that any request would be vetoed in the Security Council and suspicious of both its reli- ability and impartiality, members

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developed a contingency mechanism, which was deemed one of the Òappro- priate international proceduresÓ avail- able under Article V: A consultative meeting could be convened at the request of any State Party and would be open to all States Parties.7

The United States, however, refused to use this procedure, and both the Carter and Reagan administrations con- tinued to question the Soviet Union on their own. For example, in discussions of the infamous Sverdlovsk outbreak from the previous year, in which spores of anthrax accidentally leaked from a mili- tary facility, killing scores of residents, the United States rejected the Soviet position that the outbreak had resulted from tainted meat.

1986

Though proposals for verification were received for the Second Review Conference, States Parties deferred decision on them until 1991. Instead, the conference decided to launch a set of information exchanges, which were soon termed confidence-building mea- sures. The measures made States Parties politically committed to report- ing annually, through the UN, on the fol- lowing four criteria: research laboratories with high biosafety levels or biodefense involvement; unusual out- breaks of disease; relevant publications; and relevant personnel contacts. The hope was that greater transparency, along with enhanced capacity for identi- fying deviations from a declared norm, would help to dispel the fog of ambiguity in which suspicions of non-compliance could arise and fester, unresolved. The conference approved the first four mea- sures, and the ways in which States

Parties are expected to report were final- ized in 1987.

1991

During the Third Review Conference, States Parties moved to enhance the original four confidence-building measures, expanding them to include annual reports on relevant national legislation and regulations, human vac- cine production facilities, and past biological weapons programs. They also decided that research and develop- ment in biodefense should be presented in fuller detail. Finally, the States Parties asked a group of governmental experts to, over the next two years, investigate verification measures from a scientific and technical standpoint. The resulting VEREX report was deliv- ered to a special BWC conference in 1994, which appointed an ad hoc groupÑwith diplomats from all States PartiesÑto work on proposals for strengthening the Convention, includ- ing possible verification measures.

1996

The Fourth Review Conference con- firmed the mandate of the ad hoc group, and it carefully avoided any decisions that might oppose or conflict with the groupÕs work. It reaffirmed existing understandings and insisted that the renunciation of biological weapons must be absolute. A proce- dural innovation, much valued by advocacy and research groups and other nongovernmental organizations (NGOs) since, was an extra session in which NGOs could deliver short statements to the conferenceÑas they continue to do, with permission,

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at review conferences and other BWC meetings.

2001”2002

The Fifth Review Conference made inter- national headlines when the US under- secretary of state for arms control, John Bolton, single-handedly complicated the session, causing it to adjourn for a year. On the initial conferenceÕs final day, Bolton called for the dissolution of the ad hoc group and its mandate, threaten- ing that the United States would veto any decisions reached at the review con- ference. The deadlock remained until late 2002, when the other nations in the Western Group persuaded Bolton to allow three carefully prepared meetings on specified topics that appealed to the United States, which would take place before the Sixth Review Conference, instead of simply prohibiting multilat- eral meetings of any kind until the next review. The Fifth Review Conference therefore reconvened for a week in 2002 to adopt this non-negotiable rescue plan in a mood of barely con- cealed resentment.

It took no other decisions and, unlike all other review conferences, did not even attempt to record consensus on extended understandings. There was no final declaration. The ad hoc group and its mandate were not abolished, as the United States had demanded, but neither was there any prospect of recon- vening it for a return to the interrupted negotiations on developing a protocol to strengthen the BWC.

2006

Compared to the previous gathering, the Sixth Review Conference had a more

hopeful air. The inter-sessional meet- ings from 2003 to 2005 had worked out better than many had expected, espe- cially for pooling national experience and technical expertise, and a second set of meetings was approved to take place between 2007 and 2010. The sixth conference recorded decisions on pro- cedure for confidence-building mea- sures and on persuading more countries to sign onto the treaty. The States Parties also wrote a final declara- tion with much fuller (and more posi- tive) sets of understandings on national implementation of BWC obligations, and on international cooperation in peaceful uses of microbiology. The most significant breakthrough of the conference, however, was the agreement to establish an Implementation Support Unit, which appointed three people, with four-year terms, to help States Parties implement the BWC, and parti- cularly the confidence-building mea- sures. These appointees now work full-time on the BWC from the UNÕs Geneva offices, and their posts are funded by all States Parties, to which they report annually.

Conclusion: The importance of the Seventh Review Conference

The upcoming review conference will be of great importance, as it meets with a good chance of further strengthening the BWC treaty regime. To achieve this result, however, it must do five things:

1. Annual meetings. The practice of meeting every year, on specific topics, is well established among BWC States Parties. Now, the time is ripe to take the next logical step, recognize the annual meeting for

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what it is, and allow it to make deci- sions across a wider agenda. A well- structured annual meeting, dealing comprehensively with the ongoing life of the BWC, would also help future review conferences by pro- viding a sharper focus for their longer-term review.

2. A BWC accountability frame- work. A structure that encourages accountability would add sub- stance to the treaty relationship. States strengthen the BWC when they demonstrate their compliance with BWC obligations regularly, as a matter of good practice, instead of waiting for raised voices of accusa- tion. It is for each State Party to decide how it demonstrates its own compliance, but there must be an opportunity to consider one anotherÕs performance systemati- cally, in a forum devoted to collec- tive scrutiny. Accountability sessions within the annual meeting could organize this scrutiny over a four-year cycle. An accountability framework should promote a devel- oping sense of common purpose and shared experience within the BWC as a community-in-the- making. It should also clarify ambi- guities, allay doubts, and resolve uncertainties.

3. Science and technology. Science and technology do not stand still. And developments relevant to the BWC need to be assessed and con- sidered collectively. The Seventh Review Conference must do two things. It must set aside time during the 14-day conference to do justice to the science and technol- ogy papers submitted. And it must decide how best to organize regular

collective assessment between con- ferences, bringing together scien- tific advisers more frequently in order to keep pace with these developments.

4. Implementation Support Unit. Since its launch in 2007, this unit has proven its value time and again. For example, it has maintained a collection of national laws and regulations on BWC implementationÑconcerning issues such as biosafety, biosecurity, and export controlsÑand a compendium of national approaches, allowing it to act as an enquiry point for states who want to strengthen their BWC compliance as well as prospective members who want to learn what they need to do. But the unit will lapse unless it is renewed. This yearÕs conference should not only renew the Implementation Support Unit but also put its existence on firmer footing. Its mandate should be strengthened and its resources increased, so that it can perform its functions more effectively.

5. Confidence-building measures. A review of the confidence-build- ing measures is long overdue. The Seventh Review Conference should update the forms on which States Parties report, provide for collec- tive scrutiny of one anotherÕs reports at the annual meeting, and set up a new standing group to revi- sit the role these measures play in a context very different from that of the 1980s. This new group will need to assess whether the structure of the measures and the questions they ask still represent the best practice for increasing transpar- ency. Do they generate greater

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confidence, or have they become formulaic and fossilized?

Since 2006, the BWC has enjoyed an upswing of confidence. But this yearÕs conference must make significant advances in steering the constructive evolution of this pioneering disarma- ment treaty regime over the next five years. The BWCÕs momentum can con- tinue, but only if the right decisions are made.

Notes

1. In the UN General Assembly vote in 1971 to welcome the BWC and commend it for signature, France abstained and China was absent from the vote. The lack of verification was again criticized by France when it acceded to the BWC in 1984, and China crit- icized the general weakness of the BWC when it acceded, also in 1984.

2. To cope with the criticism that biological weapons and toxins had been hived off from the rest of the chemical weapons disar- mament enterprise for prior negotiation, and that this might somehow confer a perverse legitimacy on chemical weapons because they were not being banned straight away, the treaty committed the States Parties to continuing negotiations in good faith on chemical weapons in order to reach agree- ment at an early date. Although negotiations were continuous from 1972, the parties took 21 years before they opened the Chemical Weapons Convention (CWC) for signature in 1993. The treaty did not enter into force until 1997: hardly an early date.

3. The Western Group comprises: Argentina, Australia, Austria, Belgium, Canada, Cyprus, Denmark, Finland, France, Germany, Greece, Holy See, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, Republic

of Korea, San Marino, Spain, Sweden, Switzerland, Turkey, the United Kingdom, and the United States.

4. This institutional deficit contrasts unfavor- ably with the Chemical Weapons Convention and with major nuclear arms control treaties (such as the 1968 Non- Proliferation Treaty, in force since 1970, and the 1996 Comprehensive Test Ban Treaty, not yet in force).

5. This would require a separate procedure under Article XI.

6. This is true absent the negotiation of a sep- arate legal instrument such as the strength- ening protocol sought from 1995 to 2001.

7. This procedure, as elaborated by later review conferences, was invoked by Cuba in 1997 (the only time it has ever been used), when it alleged a breach of the Convention by the US in October, 1996. The BWC Consultative Meeting investi- gated, but was unable, partly because of the passage of time, to reach a conclusion over whether the Thrips palmi infestation which hit the Cuban potato crop in December, 1996, was the result of a permitted US over- flight the previous October, or whether, as the US asserted, the two events were com- pletely unconnected.

Author biography

Nicholas A. Sims is an Emeritus Reader in International Relations at the London School of Economics and Political Science (University of London), where he taught from 1968 to 2010. His research and writing have spe- cialized in disarmament treaties and their review and reinforcement. His books on the Biological Weapons Convention include The Diplomacy of Biological Disarmament (St MartinÕs Press, 1988), The Evolution of Biological Disarmament (Oxford University Press for SIPRI, 2001) and The Future of Biological Disarmament (Routledge, 2009).

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