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ABSTRACT
This article looks at verification and implementation as two aspects of the 1972 Biological and Toxin Weapons Convention (BWC) that Ray Zilinskas had identified as weaknesses. Based on his predictions and suggestions to develop a comprehensive and effective verification regime, the first part of this article offers some reflections on the status and prospects of BWC verification. It provides a brief overview of persisting controversies surrounding aspects Zilinskas discussed, and considers the effectiveness of the BWC despite the absence of verification, including verification “alternatives” that Zilinskas had also anticipated. The second part of this article focuses on the national legislative implementation of the BWC. This topic has received less attention in Zilinskas’s publications but remains an important component of the BWC regime, with expanding obligations to adopt laws and regulations relating to biological weapons, yet persisting gaps in national legal regimes.
Acknowledgments
The author would like to thank Yasemin Balci and Thomas Brown for their thorough review and helpful comments. This article has been developed in the context of VERTIC's Project on “Legislative assistance for national implementation of the BTWC and CWC” funded by the Norwegian Ministry of Foreign Affairs. The views expressed in the article are the author's and do not necessarily reflect those of VERTIC or the Norwegian Ministry of Foreign Affairs.
Notes
1 Ray A. Zilinskas, “Verification of the Biological Weapons Convention,” in Erhard Geissler, ed., Biological and Toxin Weapons Today (New York: Oxford University Press, 1986), p. 86.
2 Ibid., p. 82.
3 Ray A. Zilinskas, “Verifying Compliance to the Biological and Toxin Weapons Convention,” Critical Reviews in Microbiology, Vol. 24, No. 3 (1998), p. 195.
4 On verification of arms control, non-proliferation, and disarmament instruments, including the BWC, see, for example, Allan S. Krass, Verification: How Much Is Enough? (London: Taylor & Francis, 1985), Serge Sur, ed., Verification of Current Disarmament and Arms Limitation Agreements: Ways, Means and Practices (New York: United Nations, 1991); Serge Sur, ed., Verification of Disarmament of Limitation of Armaments: Instruments, Negotiations, Proposals (New York: United Nations, 1992); UNIDIR and VERTIC, Coming to Terms with Security: A Handbook on Verification and Compliance (New York: United Nations, 2003); The Verification Research, Training and Information Centre (VERTIC), Verification Yearbook 2000, (London: VERTIC, 2000); VERTIC (ed.), Verification Yearbook 2001, (London: VERTIC, 2001); VERTIC (ed.), Verification Yearbook 2002, (London: VERTIC, 2002); VERTIC (ed.), Verification Yearbook 2003, (London: VERTIC, 2003); VERTIC (ed.), Verification Yearbook 2004, (London: VERTIC, 2004); VERTIC (ed.), Verification & Implementation. A biennial collection of analysis on international agreements for security and developments. 2015, (London, VERTIC, 2015); Verification & Implementation. A collection of analysis on international agreements for security and developments. 2019, (London, VERTIC, 2019); VERTIC’s Verification and Implementation 2015 and 2019. See also Filippa Lentzos, “Hard to Prove: The Verification Quandary of the Biological Weapons Convention”, Nonproliferation Review, Vol. 18, No. 3 (2011), pp. 571–82: Filipa Lentzos, “Compliance and Enforcement in the Biological Weapons Regime,” UNIDIR WMD Compliance & Enforcement Series, Paper 4, 2019.
5 Sur, Verification of Disarmament of Limitation of Armaments, p. 1.
6 Ibid.
7 Ibid.
8 Ibid.
9 Ibid.
10 UNIDIR and VERTIC, Coming to Terms with Security, p. 1; Angela Woodward, Time to Lay down the Law: National Laws to Enforce the BWC (London: VERTIC, November 2003), p. 7.
11 Zilinskas, “Verifying Compliance to the Biological and Toxin Weapons Convention”. On the objectives of verification, see for example UNIDIR and VERTIC, Coming to Terms with Security, pp. 1–4.
12 Exchange of Greek and Turkish Populations (Lausanne Convention VI, January 30, 1923, Article 2), Permanent Court of International Justice, Series B, No. 10, February 21, 1925, p. 20
13 Woodward, Time to Lay down the Law, p. 6.
14 Zilinskas, “Verifying Compliance to the Biological and Toxin Weapons Convention,” p. 195.
15 Final Declaration of the Third Review Conference of the Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, BWC/CONF.III/23, 1992, p. 16.
16 Ad Hoc Group of Governmental Experts to Identify and Examine Potential Verification Measures from a Scientific and Technical Standpoint Report, Geneva, 1993, BWC/CONF.III/VEREX/9.
17 Ad Hoc Group, Summary Report, BWC/CONF.III/VEREX/8, para. 31.
18 Special Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Final Report, Geneva 1994, BWC/SPCONF/1, para. 36.
19 Rolling text of a protocol to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, BWC/Ad Hoc Group/35, June 6, 1997.
20 For a summary of the negotiations and related politics, see Marie Chevrier, “The Biological Weapons Convention: The Protocol that Almost Was,” Verification Yearbook 2001 (London: VERTIC, 2001), pp. 79–97.
21 Protocol to the Convention on the Prohibition of Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, BWC/AD HOC GROUP/CRP.8, May 30, 2001. Official documents of the Ad Hoc Group are available at <www.unog.ch/80256EE600585943/(httpPages)/FCA0866229E27290C12572BC00327DC2?OpenDocument>.
22 Institutional Strengthening of the Convention: Reflections on the 2001 Protocol and the Verification Challenge, Submitted by the United Kingdom of Great Britain and Northern Ireland, BWC/MSP/2019/MX.5/WP.1, July 10, 2019, p. 1. More detailed articles on those issues have been published; see, for example, Lentzos, “Hard to Prove.”
23 Institutional Strengthening of the Convention, paras. 5–6.
24 Zilinskas, “Verifying Compliance to the Biological and Toxin Weapons Convention,” p. 212.
25 As Zilinskas continues, it is only “If most of the nations that belong to the BWC ratify the protocol” that it could be successful.
26 See, for example, Richard Lenanne, “Verification for the BTWC: If Not the Protocol, then What?” Disarmament Forum, Vol. 1 (2011), p. 44: “As the experience of the CWC has shown, even having a legally binding regime supported by a well-resourced and active international organization is no guarantee that states parties will submit declarations, or that the declarations will be accurate and comprehensive. One advantage of not having a legally binding regime is that it is much easier to adapt and develop, both to encourage participation and to improve the effectiveness of the system in increasing confidence in compliance.” See also James Revill, “Compliance Revisited: An Incremental Approach to Compliance in the Biological and Toxin Weapons Convention,” CNS Occasional Paper #31, August 2017, p. 4: “Although many states insist strengthening the convention can only be achieved through a multilaterally negotiated, legally binding verification protocol, this is not politically feasible for the foreseeable future. Nor is this necessarily true; an incremental approach to strengthening the convention could be pursued, dealing with mutually reinforcing components of the regime in a balanced manner and laying the foundations for future work, if and when it becomes politically expedient to proceed.” See also Filippa Lentzos, “3d bio: declare, document and demonstrate,” EU Non-Proliferation Consortium Non-Proliferation Papers, No. 45, April 2015, p. 3: “The position of a number of states parties, particularly within NAM, is that the BWC as it stands is so defective that nothing short of a legally binding mechanism will suffice to make it work. However, there are others who maintain that a legally binding mechanism is not necessary and that giving the treaty wholehearted support would suffice. They believe that it is only the conduct of the states parties in practice that really matters; they just need to comply wholeheartedly with their existing obligations, not add new ones, in order to make the BWC work.”
27 Summary Report of the 2019 Meeting of Experts on Institutional Strengthening of the Convention, Submitted by the Chairperson, para. 8, Annex I to the Report of the 2019 Meeting of Experts on Institutional Strengthening of the Convention, BWC/MSP/2019/MX.5/2, October 4, 2019.
28 Ibid., para. 10.
29 Ibid., para. 10.
30 See for example <www.onug.ch/unog/website/disarmament.nsf/(httpPages)/6ADE0825F14C011EC12583C1003FA678?OpenDocument>.
31 See, for example, Revill, “Compliance Revisited”; and Lentzos, “3d bio: declare, document and demonstrate.” Some have therefore noted that a broader conception of verification has emerged, with several “quasi-verification options.” See Trevor Findlay, “Verification and the BWC: Last Gasp or Signs of Life,” Arms Control Today, Vol. 36. No. 7, September 2006.
32 Report of the 2019 Meeting of Experts on Institutional Strengthening of the Convention, BWC/MSP/2019/MX.5/2, October 4, 2019, para. 11. See, for example, Utilizing the Convention’s Tools to Strengthen Its Institutional Functions Submitted by the United States of America, BWC/MSP/2019/MX.5/WP.2, July 18, 2019.
33 Zilinskas, “Verification of the Biological Weapons Convention,” p. 105.
34 Final Declaration of the Second Review Conference of the Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, BWC/CONF. II/13/II, p. 6.
35 Filippa Lentzos, “Revisiting BWC Verification: Information Sharing,” Policy Brief 3 of 7. King’s College London, August 2018, p. 1.
36 Ibid., p. 4.
37 Zilinskas, “Verifying Compliance to the Biological and Toxin Weapons Convention,” p. 201.
38 Ibid., p. 200.
39 Summary Report of the Fourth Session of the Ad Hoc Group of Governmental Experts to Identify and Examine Potential Verification Measures from a Scientific and Technical Standpoint, Attachment, BWC/CONF.III/VEREX.8, September 24, 1993, p. 11.
40 Zilinskas, “Verification of the Biological Weapons Convention,” p. 86.
41 Zilinskas, “Verifying Compliance to the Biological and Toxin Weapons Convention,” p. 195.
42 See Final Declaration of the Eight Review Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, BWC/CONF.VIII/4, paras. 23–24. See also Filippa Lentzos, “Strengthening the Biological Weapons Convention Confidence-Building Measures: Toward a Cycle of Engagement,” Bulletin of the Atomic Scientists, Vol. 67, No. 3 (2011), p. 29.
43 See, for example, Revill, “Compliance Revisited,” p. 24; Lentzos, “Revisiting BWC Verification,” pp. 3–4.
44 For a summary of the development of state-level offensive BW programs in Iraq, South Africa, and Soviet Union, see Malcolm R. Dando and Kathryn Nixdorff, “An Introduction to Biological Weapons,” in Kathryn McLaughlin and Kathryn Nixdorff, eds., BWPP Biological Weapons Reader (Geneva: BioWeapons Prevention Project, 2009), pp. 6–8. As with most international norms, major violations of the BW norm by a few, which certainly undermine the regime, should not overshadow the majority that still support the norm, generally comply with it, and condemn any violation of it. In the context of the COVID-19 pandemic and the false claims that the virus has been deliberately engineered as a BW, the chair of the 2018 BWC Meeting of States Parties also recently suggested that the UN Security Council adopt a resolution to “reconfirm the collective sentiment that biological weapons are morally revolting and should not be used or pursued under any circumstance. Such a resolution may and should contain a paragraph on the danger of false information on the use of bioweapons.” Jivan Gjorgjinski, “COVID-19 Is Not a Bioweapon and It Is Dangerous to Claim that It Is,” Medium, March 31, 2019, <https://medium.com/@ljupcog/covid-19-is-not-a-bioweapon-929ba4c3055f>.
45 See Final Declaration of the Fourth Review Conference of the Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, BWC/CONF.IV/9, p. 15; and final declarations of subsequent review conferences.
46 Ray A. Zilinskas, “Iraq’s Biological Weapons: The Past as Future?” Journal of the American Medical Association, Vol. 278, No. 5 (1997), p. 423.
47 UNSCR 1540 (2004), operative para. 6.
48 See 1997 Convention for the Suppression of Terrorist Bombings; 2010 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation; 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and 2005 Protocol to the Convention; 1988 Convention for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf and 2005 Protocol.
49 Final Document of the Eighth Review Conference, BWC/CONF.VIII/4, para. 11.
50 UNSCR 1540 (2004), operative para. 2.
51 Ibid., operative para. 3.
52 See, for example, 2010 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, Articles 3, 4, 8.
53 Article 4.
54 Some of these measures had been envisioned in the text of the 2001 protocol. See, for example, articles 17.1, 17.4, 7.1, 15.3 of the protocol.
55 National Implementation Measures Programme, Biological Weapons Convention, Report on National Implementing Legislation (London: VERTIC, 2016), p. 16.
56 Ibid.
57 Report of the Committee Established Pursuant to Security Council Resolution 1540 (2004), S/AC.44/2016/OC.79, December 9, 2016, para. 68.
58 Ibid., para. 69.
59 See, for example, National Implementation Measures Programme, Biological Weapons Convention, Report on National Implementing Legislation, p. 16; Summary Report Submitted by the Chairperson of the Meeting of Experts on Strengthening National Implementation, Annex I to Report of the 2019 Meeting of Experts on Strengthening National Implementation, August 5, 2019, BWC/MSP/2019/MX.3/2, para. 8.
60 See Yasemin Balci, “Error in US Biological Weapons Law Leads to Dropping of Criminal Charges,” Trust & Verify, No. 162 (2018), p. 13. See also Yasemin Balci, “Error in US Biological Weapons Law Corrected,” Trust & Verify, No. 165 (2020), p. 8.
61 See, for example, the Verification Research, Training and Information Centre’s National Implementation Measures Programme BWC legislative assistance offer at <www.vertic.org/programmes/biological-weapons-and-materials/>; Parliamentarians for Global Actions’ Campaign for Universality and Implementation of the Biological and Toxin Weapons Convention (BWC) and Implementation of UN Security Council Resolution 1540 (2004), < www.pgaction.org/ips/bwc.html>.
62 Resolution 74/66 adopted on December 12, 2019, in A/RES/74/66.
63 Including references in note 4 and throughout the article, and the work of, amongst others, the United Nations Institute for Disarmament Research and the Verification Research Training and Information Centre.