Giving teeth to the Biological Weapons Convention
Sir Michael Weston
United Kingdom Permanent Representative to the Conference on Disarmement at Geneva
Despite being in force for over 20 years, the Biological Weapons Convention (BWC) has been perceived since then as increasingly inadequate to tackle the proliferation of these dreadful weapons. Things began to change after the Third Review Conference in 1991, when States Parties took the first steps towards devising means to strengthen the convention. In the five years since then, slow but significant progress has been made. From the initial exploration at expert meetings ("VEREX") in 1992/93 of whether verification was at all possible for the BWC, we are now in the midst of negotiations (by an "Ad Hoc Group" which meets regularly in Geneva) on a legally-binding protocol including verification measures - measures which could effectively deter potential proliferators, by greatly increasing the likelihood that actual proliferators will be caught out.
National statements in the first two days revealed a strong consensus that the Conference must send out a clear message of support both for the Convention, and for the work of the Ad Hoc Group. The Final Declaration of the Conference therefore commends the decision of the Ad Hoc Group to intensify its efforts towards completion of a protocol, and calls for an early move to a negotiating format.
It is important to note that there was general agreement at the Conference that it was not the right place for debate on the detailed provisions of a future verification regime, or other measures, to strengthen the Convention. This is the preserve of the Ad Hoc Group. But a full account of the results of the Group's work to date was given to the Conference by Ambassador Tibor Toth of Hungary, who has been chairing its sessions with great skill since the establishment of the Group in September 1994.
Ambassador Toth's account highlighted the important progress made up to September 1996 in all four areas of the Group's mandate: compliance measures, definitions and terms, confidence-building measures and measures to strengthen implementation of Article X of the Convention (technical cooperation and assistance). Of particular importance is the emerging shape of the compliance measures' elements: a system of mandatory declarations of facilities relevant to the BWC, including biodefence facilities; and procedures for the launching of investigations of suspected violations of the Convention, both at facilities and in the context of other events such as the use of BW 'in the field'. The Group is also continuing to examine whether other types of 'information' visits or inspections might have a role in the regime, and how the definitions and lists it is drawing up might be used in all these specific measures.
While these complex issues addressed in the Ad Hoc Group were rightly not covered in detail at the conference, it was not a meeting without important debate or significant content - however formulaic its final conclusions may appear to the outside observer. There were many issues and developments in the BW field which did get a full airing and on which the Conference reached important conclusions.
Genetic weaponsAmong these, many participating states rightly drew attention to significant and rapid advances in microbiology since the last Review Conference. The clear view that the blanket prohibitions in Article I of the Convention (which essentially defines BW as the use of microbial agents and toxins for other than peaceful purposes) do apply to all such actual or future developments, such as those genetic engineering and genome studies, was again confirmed. Implicitly, this meant that the BWC could also ban so-called 'genetic weapons' - in the unlikely event that they ever become anything more than a theoretical possibility.
The Conference also concluded that, while measures were needed to prevent misuse by, in particular, terrorist groups and individuals of such materials and techniques, this should not inhibit legitimate access by States Parties to the benefits flowing from scientific and technological developments.
An important debate was sparked off by the proposal made by Iran shortly before the Conference, that the Convention be amended to include in both its title and Article I an explicit ban on the use of biological weapons. The BWC only explicitly prohibits the "development, production and stockpiling" and other acquisition or retention of BW. It was argued at the time of the Convention's negotiation that, as the Geneva Protocol of 1925 already prohibited the use of BW, a second iteration of the ban was not necessary here. The BWC was intended to complement, not subsume the Geneva Protocol, by preventing nations from actually developing the weapons.
Iran however argued that many countries in fact continue to retain reservations on their obligations under the Geneva Protocol with respect to retaliation with BW, when such weapons have been used against them. Iran argued that there was a need to close what it saw as a potentially dangerous loophole, which could be exploited by unscrupulous States Parties.
While the Review Conference was not itself competent to make a final decision on the proposal (all States Parties must participate in amendment decisions: only a little over half were present in Geneva), there was a full and productive debate on the issues involved. While the three Co-Depositaries (the UK, Russia and the US) were left to pursue the formal decision-making process, the Conference did give a pretty clear steer, concluding unambiguously in the final Declaration that "the use by the States Parties, in any way and under any circumstances, of microbial or other biological agents or toxins, that is not consistent with prophylactic, protective or other peaceful purposes, is effectively a violation of Article I of the Convention".
In short, the Convention already bans the use of BW, because any State Party using BW must have already carried out one or more of the activities specified in Article I (development, stockpiling, acquisition, etc.). A common view at the Review Conference was that amendment to the Convention was not therefore necessary. Furthermore, the issue could complicate and delay the work of the Ad Hoc Group. All that said, we await formal responses to Iran's proposal.
Flouting the provisionsPerhaps one of the most contentious aspects of the Review Conference was the fact - noted and commented on by some participants and outside observers - that the Final Declaration made no specific reference whatsoever to the two specific cases of flouting of the Convention's provisions that have come to light since the last Review Conference. (Iraq was a signatory to the convention at the time it was developing its BW programme; the Soviet Union was a State Party and depository power when its later avowed BW programme was at its height.) Commentators have rightly questioned what a Review Conference of States Parties to a Convention which bans biological weapons is for, if not to consider the implementation of the ban over the review period.
I admit openly to sharing this concern and frustration. Many interventions were made during this Conference condemning these violations, several of them linking them to the need to strengthen the Convention. UN Special Commission Executive Chairman, Rolf Ekeus, submitted a memorandum on the progress UNSCOM had made so far on uncovering the whole truth about the Iraqi programme; while the US and UK noted that their efforts together with Russia to address issues arising from the Soviet Union's non-compliance with the Convention were continuing. However, it became rapidly clear in the final stages of negotiation that it would have proved impossible to agree to any Final Declaration with the inclusion of even the most limited references to either of these specific cases.
I cannot say that this was a wholly satisfactory outcome. It leaves the Conference's Final Declaration rather unbalanced as a full reflection of its deliberations and preoccupations. But it seemed, both to me as President of the Conference and to the majority of participating states, that there was a greater good to be gained from pursuing consensus and finalising the document. Above all there was the forward-looking goal of a clear statement of support for the Ad Hoc Group's objectives, endorsement of its work so far, and a call for both intensification of its work and the move to text-based negotiations. In the end, this was fully achieved.
A compliance regimeA Review Conference must, after all, not simply be backward-looking: the point is to take stock of the Convention and its implementation and effects and to take the necessary decisions to improve, strengthen or adapt it in the future. The difficulties we encountered on this issue have certainly underlined for me the overriding importance for States Parties to this Convention to complete work urgently on a compliance regime. Measures which can effectively tackle violations - and thereby help prevent others occurring - must surely be a better way of dealing with compliance issues than by the kind of prolonged discussion and drafting exercise of a Conference such as this.
Bearing in mind that such a regime is our long term objective, the Fourth BWC Review Conference was overall a success. It was, fortunately, held just two months after a key session of the Ad Hoc Group, when the first real strides towards text-based negotiations were taken. The Conference gave the necessary broad-based political backing to these efforts which so far had been fuelled by diplomatic momentum. This shift in gear of the Ad Hoc Group's work was maintained when it reconvened in March, for the first of three three-week sessions in 1997, when I had a first hand opportunity to judge, taking over the United Kingdom's role as Friend of the Chair for the key area of compliance measures. A particularly satisfactory aspect of the March meeting was its agreement on an outline structure of the future Protocol. On this basis the Chairman, Ambassador Toth, will now prepare a Rolling Text drawing on the Friend of the Chair papers adopted in March. Negotiations on this text will commence in July.
My view, shared by the majority of the participants to the Ad Hoc Group, is that this work can and should be completed by the end of 1998; and that the Fifth Review Conference in 2001 should be able to look back with satisfaction on the first period of implementation of an effective, universal, and firmly entrenched Verification Protocol to the BWC.