Compliance mechanisms and their implementation: the contrast between the Biological and Chemical Weapons Conventions

ABSTRACT

The 1993 Chemical Weapons Convention (CWC) and the 1972 Biological and Toxin Weapons Convention (BWC) are key components of the international arms-control landscape. Yet the two conventions differ widely, particularly in the ways that are available to treaty parties to resolve any questions about compliance with the treaties. Both contain language concerning consultation and cooperation, but the CWC also has extensive procedures available to investigate allegations of noncompliance. This article reviews these differences in the conventions and explains, in part, how and why they came about. The Organisation for the Prohibition of Chemical Weapons (OPCW) has engaged in several consultations regarding compliance issues, but the OPCW publishes virtually nothing about the topics of the consultations or their frequency, findings, or conclusions. An exception, perhaps, is the OPCW’s work regarding Syrian use of chemical weapons (CW). Moreover, thus far, no treaty party has called for a challenge inspection to officially investigate perhaps the most serious allegations of treaty violations: Syrian and Russian alleged use of CW. The BWC states parties conducted one formal consultation raised by Cuba, alleging that the United States dropped biological agents on the island nation from airplanes to cause an animal epidemic. The consultation reached no official conclusion. The article goes on to praise the work of Raymond Zilinskas debunking the allegations through a careful scientific review of the Cuban claims. The article discusses the consequences of secrecy surrounding the CWC consultation process and laments that the BWC does not have the institutional capacity to carry on the type of analysis that Zilinskas undertook discrediting the Cuban allegations.

KEYWORDS:

• Biological Weapons Convention
• Chemical Weapons Convention
• compliance
• verification
• challenge inspection
• Syria
• Cuba
• Russia

Acknowledgments

My thanks to Paul Walker and Gregory Koblentz for assistance in completing this manuscript, as well as to Kathleen Vogel and the staff of the Nonproliferaion Review for their careful editing and helpful comments.

Notes

1 Chris Miller argues that China’s intermediate-range nuclear missiles were more important to the United States than any alleged treaty violations. Chris Miller, “The INF Treaty Is Dead, and Russia Is the Biggest Loser,” Foreign Policy, August 2, 2019, <https://foreignpolicy.com/2019/08/02/the-inf-treaty-is-dead-and-russia-is-the-biggest-loser/>.

2 Compliance is simply whether a state party to an agreement is abiding by the terms of a treaty it has signed. Verification is more complicated and has different modifiers, such as “absolute,” “adequate,” “effective,” each with a somewhat different twist. “Verification” is also understood differently by different governments. The US government considers it a judgment on whether others are complying, while many others consider it to be the activities, such as declarations, visits, and even intelligence, that allow a state to make that judgment. For more, see Marie Isabelle Chevrier, “Verifying the Unverifiable: Lessons from the Biological Weapons Convention,” Politics and the Life Sciences, Vol. 9, No. 1 (1990), pp. 93–105.

3 See Mark Wheelis, Lajos Rozsam, and Malcolm Dando, eds., Deadly Cultures: Biological Weapons since 1945 (Cambridge, MA: Harvard University Press, 2006); Milton Leitenberg and Raymond A. Zilinskas, The Soviet Biological Weapons Program: A History (Cambridge, MA: Harvard University Press, 2012). Also see W. Seth Carus, A Short History of Biological Warfare: From Pre-history to the 21st Century (Washington, DC: National Defense University Press, 2017).

4 For a more in-depth discussion of the development of the BWC, see Marie Isabelle Chevrier, “The Politics of Biological Weapons Disarmament,” in Wheelis, Rozsa and Dando, Deadly Cultures.

5 Convention on the Prohibition of the Development, Production and Stockpiling of Biological and Toxin Weapons and on Their Destruction (BWC), April 10, 1972, <disarmament.un.org/treaties/t/bwc/text>.

6 Convention on the Prohibition of the Development, Production Stockpiling and Use of Chemical Weapons and on Their Destruction (CWC), January 13, 1993, <www.opcw.org/chemical-weapons-convention>.

7 The Executive Council of the OPCW consists of some permanent and some rotating members, all of which are states parties to the CWC.

8 See Gregory D. Koblentz, “Chemical-Weapon Use in Syria: Atrocities, Attribution and Accountability,” Nonproliferation Review, Vol. 26, Nos. 5–6 (2019), pp. 575–98.

9 Both the CWC and the BWC also require states parties to declare various information. The CWC’s declaration requirements are legally binding while the BWC’s requirements are not; they are politically binding. In addition, the CWC has an elaborate process under which OPCW inspectors visit a number of declared sites each year. These visits, however, are not linked to any allegations or concerns of noncompliance with the convention.

10 Statement by John Bolton, US Under Secretary of State for Arms Control and International Security, to the Conference on Disarmament, Geneva, January 24, 2002, <www.acronym.org.uk/old/archive/docs/0201/doc09.htm>.

11 Because Syria was not a CWC state party, this mission could only occur under the auspices of the United Nations, but the expertise to investigate alleged use rested within the OPCW.

12 UNSC Resolution 2235 (2015), S/RES/2235 (2015), August 7, 2015.

13 Note by the Technical Secretariat, Work of the Investigations and Identification Team Established by Decision C-SS-4/DEC.3, June 27, 2018; OPCW Executive Council, EC-91/S/3, June 28, 2019, <www.opcw.org/sites/default/files/documents/2019/07/ec91s03%28e%29.pdf>.

14 UNSC, Report of the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic on the Alleged Use of Chemical Weapons in the Ghouta Area of Damascus on 21 August 2013, September 16, 2013, A/67/997-S/2013/553, Annex 3, <www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2013_735.pdf>.

15 Ibid., p 8.

16 White House, Office of the Press Secretary, “Government Assessment of the Syrian Government's Use of Chemical Weapons on August 21, 2013,” August 30, 2013, <https://obamawhitehouse.archives.gov/the-press-office/2013/08/30/government-assessment-syrian-government-s-use-chemical-weapons-august-21>; OPCW Executive Council, Statement by Sir Geoffrey Adams, Permanent Representative of the United Kingdom to the OPCW at the Thirty-Third Meeting of the Executive Council, EC-M-33/NAT.7. Some reports disagreed that the evidence pointed to Assad; see Seymour M. Hersh, “Whose Sarin?” London Review of Books, Vol. 35, No. 24 (2013), <www.lrb.co.uk/v35/n24/seymour-m-hersh/whose-sarin>.

17 Indeed, a host of other countries including China, Finland, Norway, Germany, Italy, Norway, Spain, and the United Kingdom all made contributions to the effort. See Phillip C. Bleek and Nicholas J. Kramer, “Eliminating Syria’s Chemical Weapons: Implications for Addressing Nuclear, Biological and Chemical Threats,” Nonproliferation Review, Vol. 23, Nos. 1–2 (2016), pp. 197–230.

18 OPCW, Note by the Technical Secretariat, Second Report of the Director-General 2014, OPCW Fact-Finding Mission in Syria, Key Findings, S/1212/2014, September 10, 2014, p. 8.

19 Ibid., Annex 2.

20 Ibid., p. 58.

21 Rick Gladstone, “Syria Used Chlorine in Bombs against Civilians, Report Says,” New York Times, August 24, 2016, <www.nytimes.com/2016/08/25/world/middleeast/syria-used-chlorine-in-bombs-against-civilians-report-says.html>.

22 Colum Lynch, “U.N. Claims Syrian Regime and Islamic State Used Chemical Weapons,” Foreign Policy, August 24, 2016, <http://foreignpolicy.com/2016/08/24/u-n-claims-syrian-regime-and-islamic-state-used-chemical-weapons/>.

23 In 2016, the author interviewed many current and past OPCW officials as part of a project to write the history of the OPCW’s first 20 years. The OPCW has declined to publish the manuscript, citing its potential to offend some states parties.

24 OPCW, Note by the Technical Secretariat, Summary of the Report on Activities Carried out in Support of a Request for Technical Assistance by the United Kingdom of Great Britain and Northern Ireland (Technical Assistance Visit TAV/02/18), S/1612/2018, April 12, 2018, <www.opcw.org/sites/default/files/documents/S_series/2018/en/s-1612-2018_e_.pdf>.

25 UN News, “Russian Operatives Carried Out Salisbury Chemical Attack Alleges UK; Accusations Part of ‘Post-Truth World’ Asserts Moscow,” September 6, 2018, <https://news.un.org/en/story/2018/09/1018641>.

26 Michael Schwirtz and Melissa Eddy, “Aleksei Navalny Was Posioned with Novichok, Germany Says,” New York Times, September 2, 2020, <www.nytimes.com/2020/09/02/world/europe/navalny-poison-novichok.html>.

27 OPCW, “OPCW Issues Report on Technical Assistance Requested by Germany,” October 6, 2020, <www.opcw.org/media-centre/news/2020/10/opcw-issues-report-technical-assistance-requested-germany>.

28 Declan Butler, “U.S.–Cuba Row Over Inspections Goes to Weapons Meeting,” Nature, Vol. 338, No. 705 (1997), <www.nature.com/articles/41846>; Associated Press, “Cuba Accuses the U.S. of an Insect Attack,” New York Times, August 26, 1997, Sec. A, p. 9.

29 Raymond A. Zilinskas, “Cuban Allegations of Biological Warfare by the United States: Assessing the Evidence,” Critical Reviews in Microbiology, Vol. 25, No. 3 (1999), pp. 173–227.

30 “With one exception, all Cuban allegations have been ‘unofficial’, that is, they were made in speeches delivered by high government officials, including President Fidel Castro, for the consumption of local and international audiences.” Ibid., p. 173.

31 S.I. Soutar, “Report to All State Parties to the Biological and Toxin Weapons Convention on the Results of the Formal Consultative Meeting of State Parties to the Biological and Toxin Weapons Convention held from August 25–27, 1997, ” UK Permanent Representation, Geneva, 1997, quoted in Zilinskas, “Cuban Allegations of Biological Warfare.”

32 Zilinskas, “Cuban Allegations of Biological Warfare,” p. 215.