The BWC: A Status Report
Kalpana Chittaranjan, Research Officer
Biological weapons are increasingly being viewed as a looming threat that in the hands of state sponsors or non-state actors could result in catastrophic doom if used as a weapon of mass destruction. In this scenario, it becomes imperative that biological agents, that are dual-use in nature, are controlled by a verification and compliance regime. This article covers the Biological Weapons Convention from its origin to its present status (up to February 2001) and includes the Four Review Conferences held so far, and the efforts of the Ad Hoc Group to agree on a Verification Protocol at its sessions in Geneva in time to be considered for the Fifth Review Conference scheduled for November 2001.
The outbreak of foot-and-mouth disease, a viral infection that is highly contagious, has turned Britain into an "agricultural inferno," only adding to that country's reputation as the "agricultural pariah of Europe".
Though the disease has very little chance of affecting humans, it is highly contagious for animals and can be carried by the wind, birds, the wheels of cars or soles of shoes. The only way to stop the disease from spreading once it has struck a herd of cows, or a flock of sheep, is to isolate the infected animals and destroy them, i.e, any cloven-hooved animals on the lot-like pigs, sheep or cattle-which must be slaughtered and in many cases their carcasses must be burned.1 So far, more than 1,70,000 sheep, cows and pigs have had to be slaughtered since the outbreak began about a month ago. While British farmers' leaders warned that agriculture could grind to a standstill until the end of the year as veterinarians admitted they were still a long way from defeating the foot-and-mouth epidemic devastating the industry, economists warned that the effect of the epidemic on farming industries, sports events and tourism could cost Britain's economy as much as £9 billion, which is equivalent to 1.1 per cent of the annual gross domestic product.2
In these days of globalisation, it takes little to imagine what the catastrophic scenario would be like if a case of viral infection that was highly contagious to human beings was brought about by bioterrorists. D.A. Henderson, director of the John Hopkins School of Medicine, who had earlier directed the World Health Organisation's global smallpox eradication campaign (1966-1977), on a recent visit to New Delhi, gives four points of view that prevailed among national policy circles and the academic community at various times that served to dismiss biological terrorism as nothing more than a theoretical possibility. These were: (a) Since biological weapons have been used so seldom-precedent suggests they will not be used. (b) No one would deign to use them as their use is so morally repugnant. (c) Only the most sophisticated laboratories would be capable of the science of producing enough organisms and dispersing them which is otherwise so difficult. (d) Much like the concept of a "nuclear winter" the potential destructiveness of bioweapons is essentially unthinkable and, therefore, to be dismissed. Henderson states that each of these arguments is without validity and adds, "Nations and dissident groups exist that have both the motivation and access to skills to selectively cultivate some of the most dangerous pathogens and to deploy them as agents in acts of terrorism or war".3
What then has the international community been doing to stop the spread of biological weapons? What follows is the history of the Biological Weapons Convention (BWC) and its status today.
The year 2000 marked the dawn of not only a new millennium, but also the 25th anniversary of the coming into effect of the Biological and Toxin Weapons Convention (BWC or BTWC), the specific date being March 26. When the BTWC was signed in 1972, it was the world's first disarmament agreement-in that it banned not just the use, but also the production of a whole class of weapons. However, concerns about the effectiveness of this post-War multilateral arms control treaty existed from the very beginning because of its lack of verification or enforcement measures that made it a paper tiger-a treaty without teeth or bite. This 'pact-with-no-punch' can be remedied if the negotiators conclude the proposed Verification Protocol in time to be considered at the Fifth Review Conference slated for November 2001. In order to get a clearer picture of the period between March 1975 and the agenda before the next Review Conference, one must start at the origin of the BWC.
Biological weapons/warfare (BW) have been in sporadic use over the centuries4 and when looked at from a military perspective, it is the deliberate use of diseases to attack and affect an adversary's military force, population, crops and/or livestock.5 It was only with the discovery at the end of the 19th century, when it became increasingly evident that specific organisms cause specific diseases in humans, animals and plants, that countries have attempted to develop biological weapons.6 During World War I, the process began with efforts by both sides (the Central Powers and the Allied Powers) to damage the draft animal stocks of their enemies. It later went on to encompass the Japanese offensive biological warfare programme in China during the 1930s and 1940s, resulting in thousands of deaths and the huge British, US and Soviet programmes of the mid and latter half of the 20th century. The effects of the Japanese biological programme are still being felt. The fifth hearing was held recently of a case before the Tokyo District Court, which was first filed in 1997 by 180 Chinese citizens, victims of the Japanese Imperial Army Unit 731, which had been based in northeast China, and had carried out grotesque medical experiments on thousands of prisoners. Unit 731 had tested and developed biological weapons which spread bubonic plague, cholera and typhus, and though the estimated number of victims is considered largely guesswork, the Chinese government says the diseases killed 270,000 civilians.7
The precursor to the BWC is the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare better known as the 1925 Geneva Protocol, which was signed at Geneva on June 17, 1925 and entered into force on February 8, 1928,8 which states:
The Undersigned Plenipotentiaries, in the name of their respective Governments,
Whereas the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilized world; and
Whereas the prohibition of such use has been declared in Treaties to which the majority of the Powers of the World are Parties; and
To the end that this prohibition shall be universally accepted as a part of International Law, binding alike the conscience and the practice of nations;
That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration.
The forerunner to the 1925 Geneva Protocol is the First Hague Convention of 1899 and in the history of humanitarian law-the predecessor to the latter is the Declaration of St Petersburg of 1868, wherein its contracting parties "reserved to themselves the right to come to an understanding, wherever a precise proposition should be drawn up to reconcile the necessities of war with the laws of humanity."9
The nature of the agreement of the 1925 Geneva Protocol, alongwith the reservations entered by many states, essentially reduced it to a no-first-use agreement as it did not outlaw research, development or production of biological and toxin weapons. It is evident now that a number of states proceeded to do these very things in the inter-War period and during World War II. However, considerable efforts were made to find better means of restricting these weapons within the League of Nations system. It was only after World War II that chemical and biological weapons (CBW) came to be classed alongwith nuclear weapons as weapons of mass destruction (WMD). Very little effort went into finding an arms control mechanism for dealing with these weapons in the decades following World War II in spite of various accusations of the use of CBW-that is, until the large scale use of non-lethal chemical riot control agents and herbicides by the US in Vietnam.10
It has been mentioned that efforts to ban the production of BW, in conjunction with a ban on chemical weapons, took up many years of discussion in a variety of fora. Suggestions for the control and elimination of CBW were explicitly included in various proposals, but it was only towards the end of the 1960s that this question moved to the forefront of disarmament negotiations. A move towards this end occurred during the 1968 session of the Eighteen-Nation Committee on Disarmament (ENDC) which envisaged the consideration of the question of chemical and bacteriological warfare under the heading "non-nuclear measures". A number of other specific proposals on the subject followed which were submitted during the session. Among these, a working paper on microbiological warfare was submitted by the UK on August 6, 1968.11 This paper was of particular importance for two reasons: first, it asserted that, for a number of reasons, the 1925 Geneva Protocol was not an entirely satisfactory instrument to deal with the questions of chemical and microbiological warfare, and, second, it suggested that the problem could become more manageable by considering chemical and biological methods of warfare separately. In the light of this, the UK proposed the early conclusion of a convention for the prohibition of biological methods of warfare, which would "supplement but not supersede" the Geneva Protocol. Such a convention would ban the use for hostile purposes of microbiological agents causing death or disease by infection in man, other animals, or crops, and it would also include a ban on the production of biological agents "which was so worded as to take account of the fact that most of the microbiological agents that could be used in hostilities are also needed for peaceful purposes."12
Reaction to this proposal was varied. It was seen that, basically, the Western countries were sympathetic to it and found the British arguments convincing, while the non-aligned and socialist countries viewed it with serious misgivings as they believed that the adoption of this approach would inevitably result in the reopening of issues which had long been solved. They were of the opinion that the Geneva Protocol was not obsolete as its provisions covered not only methods and agents of warfare which existed at the time the Protocol was signed, but also the new methods and agents of warfare that had emerged since then.13
As a result of the consideration of the question, the General Assembly adopted on December 20, 1968, Resolution 2454 A (XXIII) which requested the secretary general to prepare, with the assistance of a group of experts, a report on the effects of the possible use of chemical and bacteriological means of warfare. After this report was submitted in 196914 the ENDC devoted considerable attention to the question of chemical and bacteriological weapons.
During the negotiations on the subject matter which started in the course of the 1969 session of the Committee15 the principal question was that of scope. Regarding this, there were two distinctly different approaches that were proposed. The UK submitted a draft convention on July 10, 1969, which was limited in scope to the prohibition of biological methods of warfare.16 The other draft convention, submitted on September 19, 1969, by the former Soviet Union alongwith Bulgaria, Czechoslovakia, Hungary, Mongolia, Poland, Romania and Ukraine dealt with the prohibition of the development, production, stockpiling and the destruction of CBW.17 Support was given to both draft conventions. While the US supported the British proposal, it stressed the difference between the two types of weapons, pointed out that chemical weapons (CW) had actually been used in war and, therefore, many states would be reluctant to give them up, and finally, that BW presented less intractable problems and, therefore, an agreement on banning them should not be delayed until agreement on a reliable prohibition of CW could be reached.
Outside developments also influenced the course of further negotiations on the scope. On November 25, 1969, the US announced a unilateral renunciation of the first use of lethal or incapacitating chemical agents and weapons and an unconditional renunciation of all methods of biological warfare. This ban was extended on February 14, 1970, to cover toxins. Similar announcements were made by other countries like Canada, Sweden and the UK which announced that they had no BW nor did they intend to produce them. These declarations were generally welcomed and also contributed towards creating an atmosphere that was conducive for undertaking a commitment in the form of a binding international instrument. As a result, the Soviet Union, together with Bulgaria, Czechoslovakia, Hungary, Mongolia, Poland and Romania, submitted to the Conference of the Committee on Disarmament on March 30, 1971, a new draft convention confined in scope to biological weapons and toxins.18
The BWC/BTWC that was negotiated from 1969-1971 was signed as the Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, on April 10, 1972, at London, Moscow and Washington DC., and entered into force on March 26, 1975 with 43 member countries, upon ratification by the three depository states - the USA, the Soviet Union and the UK.19 India ratified the Convention on July 5, 1974.20
The treaty has fifteen Articles and prohibits the development, production, stockpiling or acquisition by other means or retention of microbial or other biological agents, or toxins whatever their origin and method of production, of types and in quantities that have no justification of prophylactic, protective or other peaceful purposes, as well as weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict. The destruction of the agents, toxins, weapons, equipment and means of delivery in the possession of the parties, or their diversion to peaceful purposes, should be effected not later than nine months after the entry into force of the Convention.21
The heart of the BWC, found in Article 1 states:22
Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain:
(1) Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;
(2) Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.
Summary of Articles of BWC23
1. Not to Develop, Produce, Stockpile or Acquire Agents, Weapons, etc.
2. To Destroy Stocks
3. Not to Transfer or Assist Others
4. To Take National Measures
5. To Consult and Cooperate in Solving Problems
6. May Lodge Complaints with the Security Council
7. To Provide Assistance in the Event of a Violation
8. No Detraction from the Geneva Protocol
9. Obliged to Continue Negotiations on Chemical Weapons
10. Cooperate for Peaceful Purposes
13, 14, 15. Duration, Signature, Ratification, Deposition, Languages (3)
The BWC Review Conferences
The BWC, which has an unlimited duration, called for only one review (Article XII) and the First Review Conference was held from March 3-21, 1980. A UN resolution in November 1982 called on the signatories to establish compliance procedures.
The Second Review Conference met in Geneva from September 8-26, 1986. This conference, which was generally positive, strengthened the procedures for consultation in the case of compliance concerns. The participating states tried to strengthen the convention by establishing several politically binding confidence-building measures (CBMs), including annual declarations of high-containment biological facilities designed for work with dangerous microorganisms, and reports of unusual disease outbreaks. It also called for a meeting of experts that worked out CBM details from March 31 to April 15, 1987, in particular, a call for annual exchanges of data about biological research. As there is no penalty for failing to file declarations and no central secretariat urging countries to do so, fewer than half of the states that are party to the BWC have participated in the CBMs.
The BWC Third Review Conference was held from September 9-27, 1991. During this conference, it was decided that future review conferences would be held every five years at least. This conference recognised the need for stronger measures and mandated the convening of an ad hoc group of government experts (also known as "verification experts" or VEREX group) to identify and examine potential verification measures from a scientific and technical viewpoint.
Eventually, 21 measures were identified and grouped in two categories. Surveillance of scientific publications, data declarations, notifications of activities, remote sensing, and environment sampling and analysis were included as possible "off-site" measures, while possible "on-site" measures included scientific exchanges, visual inspection, interviews, identification of relevant equipment, sampling and analysis and continuous monitoring with cameras or other sensors.24 Four meetings were held by VEREX in Geneva (March 30-April 10, 1992; November 23 to December 4, 1992; May 24 to June 6, 1993; and its final session from September 13 to 24, 1993, where it submitted its consensus final report to all BWC member states). In the report, the experts found that because of the dual-use nature of BW-related facilities, equipment and materials, no single measure could fulfill all of the mandated criteria for a stand-alone verification measure. The group, however, concluded that some measures, used singly or in combination, could strengthen the regime by helping to differentiate prohibited from permitted activities, thus, reducing ambiguities about issues of compliance.25
In September 1994, a special conference of BWC states parties met at Geneva to consider the VEREX final report and decide on further actions. It was agreed that an Ad Hoc Group (AHG) would be established "to consider appropriate measures, including possible verification measures, and draft proposals to strengthen the convention."26 Between 1995 and 1996, the AHG held five meetings, but it was unable to complete its mandate of providing draft proposals prior to the Fourth Review Conference that was held from November 25 to December 6, 1996.
Article I which defines the basic prohibitions, or the "scope" of the convention, Article IV, which addresses national implementation measures, Article V, which deals with the consultative process for problems arising from treaty implementation and Article X, which concerns cooperation among states parties for peaceful purposes were the key issues at the Fourth Review Conference.27 The conference was unable to achieve a consensus for setting a deadline for the AHG's work,28 but agreed that it (AHG) should intensify its work so as to try and complete it possibly before the commencement of the Fifth Review Conference, scheduled to start in November 2001.
Currently, as per the mandate given at the Fourth Review Conference, the AHG of states parties to the BWC is negotiating a protocol, in order to strengthen the convention, which includes measures for verification. Generally, there is agreement that there should be an international operating organisation which is similar to that of the Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons (OPCW)29 and that there should be initial declarations of past offensive and defensive BW activities and of current biodefence programmes and facilities, vaccine production facilities, maximum containment facilities, and work with listed agents. Also, there is general agreement for challenge investigations at the request of a state party, including investigation on-site, of a suspected breach of the convention.
However, almost all of the elements of the potential protocol are subject to disputes and among disagreements of greatest concern are those relating to: the future form and operation of biological-related export controls; the extent of commitments to sharing and cooperation for peaceful purposes; the purpose and effectiveness of certain kinds of visits and related activities; the level of detail of the information provided in declarations; the prospect for conducting clarification visits at undeclared sites; and procedures for initiating a challenge investigation at a facility or in the field.30
Status and Schedule for 2001
The BWC AHG negotiating dates for 2001 are:
l Twenty-second session, February 12-23
l Twenty-third session, April 23-May 11
l Twenty-fourth session, July 23-August 23
l Preparatory Commission for Fifth Review Conference-April 25 - 27
l BWC Fifth Review Conference-November 19-December 7.31
Jenni Rissanen, the Acronym Institute's analyst monitoring the BWC AHG negotiations in Geneva was pessimistic about an agreement for a BWC Protocol being reached in time for the Review Conference to consider it. In her summary on the first day's proceedings of the twenty-second session in Geneva (February 12, 2001), she noted, "Statements during the first day proved that the AHG is faced with a significant challenge in completing the negotiations on a verification protocol to the BWC on time, before the Fifth BWC Review Conference scheduled for November 19-December 7 this year. Ambassador Tibor Toth of Hungary, the Chair of the Group, is under pressure from different sides on the introduction of a so-called 'vision text', the Chair's proposal of what the end product should look like. However, it is becoming increasingly clear that with only nine weeks of negotiations this year, a breakthrough enabling agreement cannot be reached without a major political push and some vigorous and efficient negotiations. While many feel that introducing the vision text is essential to stimulate such negotiations, the heated exchanges during the first day of the negotiations showed that some important countries hold a diametrically opposed view."32
In order to be effective, the BWC must be strengthened with a Verification Protocol:
l as this would define agreed norms;
l the procedures for declarations and on-site visits, monitoring, and investigation, including challenge investigation, pose the threat of exposing non-compliance and cover-up, creating a disincentive for potential violators and increasing the security of compliant states;
l these procedures have the potential to resolve unfounded suspicions and to counteract erroneous or mischievous allegations;
l the legal obligations and national implementation measures of such a protocol would act to keep compliant states compliant, even when they may be tempted to encroach at the limits, or to ignore violations out of political expediency;
l a treaty-based regime would legitimate and facilitate international cooperation to encourage compliance and to take collective action against violators, thereby enhancing deterrence; and
l finally, as membership in the BWC approaches universality and its prohibitions and obligations enter into international customary law, holdout states become conspicuously isolated and subject to penalty.33
A little more than a quarter century has elapsed since the BWC came into existence. It becomes clear that after more than five years of negotiation, the AHG must "seize the moment" and do what it takes to have a Verification Protocol ready before the Fifth Review Conference. Otherwise, the BWC would remain just the paper-tiger that it presently seems to be.
To conclude, should a Verification Protocol not be forthcoming, prevention is better than cure, but when a bioattack cannot be averted, it is best that a country remains prepared with the cure. To end with Dr Henderson's advice on this matter, "In the longer term, we need to be as prepared to detect, diagnose, characterise epidemiologically, and respond appropriately to biological weapons use as to the threat of new and reemerging infections. In fact, the needs are convergent. We need at international, state, and local levels a greater capacity for surveillance; a far better network of laboratories and better diagnostic instruments; and a more adequate cadre of trained epidemiologists, clinicians, and researchers. On the immediate horizon, we cannot delay the development and implementation of strategic plans for coping with civilian bioterrorism. The needed stocking of vaccines and drugs as well as the training and mobilization of health workers, both public and private, at state, city, and local levels will require time. Knowing well what little has been done, I can only say that a mammoth task lies before us."34
1. Felicity Spector, "Britain, the Isle of Contagion," The New York Times, March 3, 2001.
2. "Foot and Mouth May Halt British Agriculture for Year," Reuters, The New York Times, March 18, 2001.
3. D.A.Henderson, "Bioterrorism as a Public Health Threat," Emerging Infectious Diseases, vol.4, no. 3, July-September 1998, p.488.
4. For a comprehensive review of use and alleged use of biological weapons over the years and the likely devastating impact of use of such weapons, see Kalpana Chittaranjan, "Biological Weapons: An Insidious WMD," Strategic Analysis, vol. XXII, no. 9, December 1998, pp. 1427-1443.
5. Terry N Mayer, Biological Weapons-The Poor Man's Nuke (Springfield, VA: US Dept. of Commerce, April 1995), p.3.
6. M.R. Dando, "The Impact of the Development of Modern Biology and Medicine on the Evolution of Offensive Biological Warfare Programmes in the Twentieth Century," Defense Analysis 15, no.1, 1999, pp. 43-62.
7. Doug Struck, "Chinese Confront Japan in Court," The Washington Post, March 9, 2001, p.A20.
8. Jozef Goldblat, Arms Control (London: Sage Publications, 1994), p. 227.
9. See Janos Martonyi, "Special Comment" in UNIDIR Disarmament Forum, no. 4, 2000, "Biological Weapons: From the BWC to Biotech," p. 5.
10. Malcolm Dando, The New Biological Weapons: Threat, Proliferation, and Control (Boulder: Lynne Rienner, 2001), p. 134.
11. Official Records of the Disarmament Commission, Supplement for 1967 and 1968, document DC/231, annex I (ENDC/231).
12. Erhard Geissler, ed., Biological and Toxin Weapons Today (Oxford: SIPRI, 1986), p. 138.
14. United Nations publication, Sales No. 69. I. 24 (document A/7575 or S/9292).
15. The ENDC was known as the Conference of the Committee on Disarmament (CCD) in 1970 following its enlargement with the addition of new member states.
16. Supplement for 1969, document DC/232, annex C (ENDC/253 and Rev.1).
17. Official Records of the General Assembly, Twenty-fourth Session, Annexes, agenda item 104, document A/7655.
18. Supplement for 1971, document DC/234 (CCD/325/Rev.1). For provisions of this document, see Geissler, n.12, pp. 139-146.
19. There are presently 144 states parties that have ratified the BWC while the number of unratified signatories is 18 (as of May 26, 2000)-Source: <http://www.sipri.se/cbw/docs/bw-btwc-rat.html>
20. Goldblat, n.8, p. 374. In a statement made on the occasion of the convention, India reiterated its understanding that the objective of the convention is to eliminate biological and toxin weapons, thereby excluding completely the possibility of their use, and that the exemption with regard to biological agents or toxins, which would be permitted for prophylactic, protective or other peaceful purposes, would not in any way create a loophole in regard to the production or retention of biological and toxin weapons. Also, any assistance which might be furnished under the terms of the convention would be of a medical or humanitarian nature and in conformity with the UN Charter. The statement was repeated at the time of the deposit of the instrument of ratification.
21. SIPRI Yearbook 1996: Armaments, Disarmament and International Security (London: Oxford University Press, 1996), pp.778-779.
22. Text of treaty at website: <http://www.sipri.se/cbw/docs/bw-btwc-text.html>
23. Dando, n.10, p. 135.
24. Jonathan B Tucker, "Strengthening the Biological Weapons Convention," Arms Control Today, vol.25, no.3, April 1995, p. 10.
27. The Arms Control Reporter: A Chronicle of Treaties, Negotiations, Proposals, Weapons and Policy (Massachusetts: IDDS, 1997), p. 701.A.2.
27. For a comprehensive coverage of the Fourth Review Conference, see Graham S. Pearson, "The Fourth BWC Review Conference: An Important Step Forward", Arms Control Today, vol. 26, no. 10, January/February 1997, pp. 14-18.
28. BWC-related text and documents, including the Final Declaration of Four Review Conferences held so far and that of the Special Conference of 1994, can be accessed from website: <http://www.fas.org/bwc/bio.htm.>
29. The Technical Secretariat of the OPCW, established in April 1997 at The Hague is the international operating arm of the Chemical Weapons Convention. It had carried out by the latter part of 2000, 700 inspections at declared sites, which included 60 chemical weapons production facilities in nine states (China, France, India, Iran, Russia, the UK and the USA and the Aum facility in Japan) and 31 chemical weapons storage sites in four states-holding 8.4 million chemical munitions and bulk containers, most of them in Russia and the US. See website <http://www.fas.org/faspir/v53n5.htm> for Matthew Meselson, "Averting the Exploitation of Biotechnology," FAS Public Interest Report, vol 53, no. 5, September/October 2000.
30. Michael Moodie "Fighting the Proliferation of Biological Weapons: Beyond the BWC Protocol" UNIDIR Disarmament Forum, no. 4, 2000, "Biological Weapons: from the BWC to Biotech," p. 34.
31. See Press release DC/2751/L/T/4360-February 13, 2001, " Ad Hoc Group of States Parties to Biological Weapons Convention Opens Twenty-Second Session". The latest information on the BWC Protocol can be accessed from website <http://www.acronym.org.uk/bwcdesc.htm>
32. Jenni Rissanen, "BWC AHG Faced With a Major Challenge," BWC Protocol Bulletin, February 12, 2001 at website <http://acronym.org.uk/bwc01.htm>
33. Meselson, n. 29.
34. Henderson, n.3, p.492.