A (F)UTILE INTERSESSIONAL PROCESS?

Abstract

During its thirty-five years, the Biological Weapons Convention (BWC) has been scarred by treaty violations, failed compliance negotiations, and ambiguous treaty language. Essentially a bruised paper tiger, the BWC adds no clarification to its distinction between biological activities for peaceful versus hostile purposes and has amplified—rather than lessened—mistrust in states' biological research and development potential. For the past two decades, these circumstances have generated multilateral annual discussions on BWC issues. From 2003 to 2010, intersessional talks centered on less controversial topics in an attempt to save the treaty from spiraling political tensions. States generally agree that this intersessional process was not futile and that it cooled some of the negative effects of the failed negotiations over a compliance protocol. At the upcoming Seventh BWC Review Conference this December, treaty members will weigh the utility of extending the process and its accompanying administrative Implementation Support Unit. The challenge will be to stimulate the evolution of the BWC beyond its hollow characterization to strengthen and inspire confidence in the treaty regime. This article examines the BWC's ambiguous language and how it has affected diplomacy, reflects on intersessional discussions, acknowledges the (limited) scope of appropriate peaceful activities that can be identified under the BWC, and addresses ways in which to reinvigorate the treaty.

Keywords:

• Biological Weapons Convention
• biological weapons
• nonproliferation regime
• treaty process

Notes

1. The BWC has 164 state parties. See “Disarmament: Membership of the Biological Weapons Convention,” UN Office in Geneva, undated, <www.unog.ch/80256EE600585943/(httpPages)/7BE6CBBEA0477B52C12571860035FD5C?OpenDocument>.

2. State parties however did meet in 1996 for the Fourth BWC Review Conference.

3. For an extensive account of the compliance protocol negotiations, see Jez Littlewood, The Biological Weapons Convention: A Failed Revolution (Burlington, VT: Ashgate Publishing, 2005).

4. “Final Document,” Fifth BWC Review Conference, BWC/CONF.V/17, Geneva, 2002, p. 3, <www.un.org/disarmament/WMD/Bio/pdf/bwccnfv17.pdf>.

5. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, March 26, 1975, Article I.

6. Jack M. Beard, “The Shortcomings of Indeterminacy in Arms Control Regimes: The Case of the Biological Weapons Convention,” American Journal of International Law 101 (April 2007), p. 288.

7. Roger Roffey and Chandré Gould, “Misuse of the Life Sciences: Implications for the BWC and Enhanced Need for Transparency in Biodefense Research,” Nonproliferation Review 18 (November 2011), pp. 557–69.

8. For a good overview of the communication and credibility of BWC commitments, see Beard, “The Shortcomings of Indeterminacy in Arms Control Regimes,” pp. 271–321.

9. RevCon Reports Nos. 1–16, BioWeapons Prevention Project, November 20–December 10, 2006, <bwpp.org/documents/2006_RevCon_reports.pdf>.

10. Joint Statement by Dr. José A. Díaz Duque, Deputy Minister of the Ministry of Science, Technology, and Environment of the Republic of Cuba on Behalf of the States Parties of the Non-Aligned Movement to the Chemical Weapons Convention and China, Second Special Session of the Conference of States Parties to Review the Operation of the Chemical Weapons Convention, April 8, 2007.

11. For NAM's effort in this regard, see: “Article X of the Convention,” Paper Submitted by the States Parties of the Non-Aligned Movement and Other States, BWC/CONF.VI/WP.29, Sixth Review Conference of the BWC States Parties, November 26, 2006; “Proposal for a Plan of Action on Implementation of Article X,” Paper Submitted by the States Parties of the Non-Aligned Movement and Other States, BWC/CONF.VI/WP.39, Sixth Review Conference of the BWC States Parties, December 8, 2006; and “The Establishment of a Mechanism for the Full Implementation of Article X of the Convention,” Paper Submitted by the States Parties of the Non-Aligned Movement and other States, BWC/MSP/2009/MX/WP.24, BWC Meeting of Experts, August 25, 2009.

12. The Australia Group (AG) is an informal grouping of countries that harmonize their export controls to ensure that technology transfers do not contribute to the development of chemical or biological weapons. AG countries thereby restrict the export of dual-use technology and equipment to states of proliferation concern irrespective of their BWC (or CWC) membership status, potentially hindering full implementation of Article X. Statement of R.R. Rodriguez, Permanent Representative of Cuba, on behalf of the Non Aligned Movement and Other States Parties to the Biological Weapons Convention, to the BWC Meeting of States Parties, December 6–10, 2010.

13. For a description of the intersessional process up til 2008 and how it has added to a layered concept of BWC obligations, see Piers D. Millett, “The Biological Weapons Convention: Content, Review Process and Efforts to Strengthen the Convention,” in Kathryn McLaughlin, and Kathryn Nixdorf, eds., BWPP Biological Weapons Reader, 2009, pp. 19–32.

14. The Geneva Forum, “Meeting the Challenges of Reviewing the Biological and Toxin Weapons Convention,” Glion, Switzerland, Summary Report, March 9–10, 2006, p. 13.

15. Nicholas A. Sims and Jez Littlewood, “Implementing Mechanisms in the Absence of a Verification Protocol,” Nonproliferation Review 18 (November 2011), pp. 499–511.

16. “The Intersessional Programme of Work: Its Utility and Contribution to Fulfilling the Objectives and Purpose of the BTWC between 2003–2005 and a Case for Further Intersessional Work after 2006,” BWC/CONF.VI/WP.8, October 20, 2006, p. 3, <www.opbw.org/rev_cons/6rc/docs/WP/BWC_CONF.VI_WP.8_EN.pdf>.

17. Hamid Ali Rao, “Statement by Ambassador Hamid Ali Rao, Permanent Representative of India,” BWC Meeting of the States Parties, Geneva, December 6, 2010, <www.mea.gov.in/mystart.php?id=500416829>; Zamir Akram, “Statement by Ambassador Zamir Akram, Permanent Representative of Pakistan to The UN and Other International Organizations, at the BWC Meeting of the States Parties,” Geneva, December 6, 2010.

18. “Additional Understandings and Agreements Reached by Review Conferences Relating to Each Article of the BWC,” prepared by the BWC ISU, August 2007.

19. “Additional Understandings and Agreements Reached by Review Conferences Relating to Each Article of the BWC,” prepared by the BWC ISU, August 2007.

20. “Transcription of the English Interpretation of the Statement by Algeria,” BWC Meeting of States Parties, December 6, 2010, <www.unog.ch/80256EDD006B8954/(httpAssets)/69F0C7B3FD41B40CC12577F40036C519/$file/BWC_MSP_2010-Statement-101206-AM-Algeria.pdf>.

21. Ellen O. Tauscher, US Undersecretary of State for Arms Control and International Security, “Address to the Annual Meeting of the States Parties to the Biological Weapons Convention,” December 9, 2009, <geneva.usmission.gov/2009/12/09/tauscher-bwc/>.

22. “United States Initiative Building on the 2007–2010 BWC Work Program,” paper presented at the Meeting of States Parties, December 7, 2010.

23. Jez Littlewood, “Biological and Toxin Weapons Convention: Policy Issues for the Seventh BTWC Review Conference in 2011,” Canadian Department of Foreign Affairs International Security Research and Outreach Programme, November 2009.

24. For further information on the BWC Conference of States Parties as envisaged in the compliance protocol, see the Chairman's Text, BWC/AD HOC GROUP/CRP.8, April 3, 2001, <www.armscontrol.org/pdf/bwcprotocol.pdf>.

25. These states collectively are known as the JACKSNNZ. See Marius Grinius, “Joint Statement on Behalf of the JACKSNNZ (Japan, Australia, Canada, Republic of Korea, Switzerland, Norway, and New Zealand) to the Biological and Toxins Weapons Convention Meeting of States Parties,” December 6, 2010, <www.unog.ch/80256EDD006B8954/(httpAssets)/879D123FC48A1591C12577F1005BB6B4/$file/BWC+MSP+2010+-+Canada+-+101206.pdf>.

26. On this issue, India's position in the NAM will be particularly important to watch at the Seventh BWC Review Conference, as it and the United States desire India's full participation in the Australia Group (AG) and three other informal export control groups. President Barack Obama endorsed India's membership in Australia Group during his November 2010 visit to India. Along with the AG, the United States and India desire Indian membership in the Nuclear Suppliers Group, the Missile Technology Control Regime, and the Zangger Committee. See “Statement by Dr. Mohammad Hassan Daryaei, Permanent Mission of the Islamic Republic of Iran, before the Preparatory Committee of the Seventh Review Conference of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons Convention,” Geneva, April 2011, <www.unog.ch/80256EDD006B8954/(httpAssets)/3017AB8F07365062C1257873004F9308/$file/BWC-7RC-PC-Statement-110413-Iran.pdf>; Laura Kennedy, “The BWC Review Conference Should Focus on Concrete Actions,” statement of US Ambassador Laura Kennedy at the Preparatory Committee Meeting for the BWC Review Conference, Geneva, April 14, 2011; D.B. Venkatesh Varma, “Statement on Behalf of India by D.B. Venkatesh Varma at the Prepcom for the Seventh Review Conference,”Geneva, April 13–15, 2011, <www.unog.ch/80256EDD006B8954/(httpAssets)/083E0F07CA2134EDC1257873004F9FF7/$file/BWC-7RC-PC-Statement-110413-India.pdf>.