HARD TO PROVE

Abstract

How can compliance with the Biological Weapons Convention (BWC) best be ensured? The verification quandary—the difficulty in providing a high level of assurance that each state party is fully complying with its treaty obligations—has troubled the BWC since its inception in 1972. This article considers past difficulties in negotiating compliance monitoring provisions—such as states’ views on inspection procedures—and lays out short-, medium-, and long-term strategies to tackle what has been a very divisive issue. It argues that state parties should undertake conceptual discussions to develop common understandings on the most effective mechanisms to enhance compliance with the treaty, and that it will ultimately be up to state parties to demonstrate the political will necessary to develop measures to strengthen the BWC through effective compliance monitoring and verification measures, either through a new legally binding instrument or through building and augmenting existing provisions.

Keywords:

• Biological Weapons Convention
• verification and compliance
• treaty negotiations

Notes

1. Statement by Frederick W. Mulley, minister of state at the Foreign Office, United Kingdom, ENDC/PV.387, Eighteen-Nation Disarmament Committee, Geneva, August 6, 1968.

2. For example, effective verification of the 1988 Intermediate-Range Nuclear Forces Treaty was defined by the United States as follows: “If the other side moves beyond the limits of the treaty in any militarily significant way, we would be able to detect such violations in time to respond effectively and thereby deny the other side the benefit of the violation.” See Thomas Graham Jr. and David Hafemeister, “Nuclear Testing and Proliferation: An Inextricable Connection,” Disarmament Diplomacy, No. 91 (Summer 2009), pp. 15–24.

3. Statement by Frederick W. Mulley, August 6, 1968.

4. Draft Microbiological Warfare Convention, ENDC/255, Eighteen-Nation Disarmament Committee, Geneva, July 10, 1969; ENDC/255/Rev.1, August 26, 1969, Eighteen-Nation Disarmament Committee, Geneva, August 26, 1969; and CCD/255/Rev.2, Conference of the Committee on Disarmament, Geneva, August 18, 1970.

5. For more details, see Nicholas A. Sims, The Evolution of Biological Disarmament (Oxford: Oxford University Press/Stockholm International Peace Research Institute, 2001), p. 24.

6. For more details, see Nicholas A. Sims, The Evolution of Biological Disarmament (Oxford: Oxford University Press/Stockholm International Peace Research Institute, 2001), p. 24.

7. Thomas Dashiell, “A Review of US Biological Warfare Policies,” in Brad Roberts, ed., Biological Weapons: Weapons of the Future (Washington, DC: Center for International and Strategic Studies, 1993), p. 4.

8. Many would regard national implementation under Article IV and assistance when under threat of attack under Article VII as provisions that are complementary to verification provisions, rather than as substitutes for verification.

9. In 1992, Russian President Boris Yeltsin admitted that the Soviet Union had conducted an offensive biological weapons program during the previous twenty years and acknowledged that the 1979 Sverdlovsk anthrax outbreak was the result of military research to make bioweapons. See SIPRI Yearbook 1993: World Armaments and Disarmament (Oxford: Oxford University Press, 1993), pp. 287–88. For a discussion of the original allegations of the use of biological toxins in Southeast Asia and subsequent criticism of the allegations, see Julian Perry Robinson, Jeanne Guillemin, and Matthew Meselson, “Yellow Rain in Southeast Asia: The Story Collapses,” Foreign Policy, No. 68 (Fall 1987), pp. 100–117.

10. Office of Technology Assessment, Proliferation of Weapons of Mass Destruction: Assessing the Risks (Washington, DC: US Government Printing Office, 1993), p. 65; Yevgeny Primakov, A New Challenge after the Cold War: The Proliferation of Weapons of Mass Destruction (Moscow: Foreign Intelligence Service of the Russian Federation, 1993).

11. In the late 1980s, there were strong suspicions that Iraq was attempting to develop an offensive biological weapons program, based on information from international traders that Iraq was seeking to acquire the types of biological materials and biotechnology equipment that would be needed for an offensive program. See Robert J. Mathews, “The Development of the Australia Group Export Control Lists of Biological Pathogens, Toxins and Dual-Use Equipment,” CBW Conventions Bulletin, No. 66 (December 2004), pp. 1–4.

12. These measures were: information monitoring (namely surveillance of publications; surveillance of legislation; data on transfers, transfer requests, and production; multilateral information sharing; exchange visits; and declarations, including notifications); remote sensing (or surveillance by satellite or aircraft or with ground-based means); inspections (including sampling and identification, observations, and auditing); on-site measures (meaning exchange visits and international arrangements, interviews, visual inspection, identification of key equipment, auditing, sampling and identification, and medical examination); and continuous monitoring (by instruments and personnel).

13. “Final Report,” BWC/SPCONF/1, Special Conference of the States Parties to the BWC, Geneva, September 19–30, 1994, pp. 9–10.

14. In fact, agreement was not reached until the early morning hours of October 1, a number of hours after the scheduled September 30 conclusion of the conference.

15. For insight into the roiling US verification debate, see the classic Fred Charles Iklé, “After Detection-What?” Foreign Affairs 39 (January 1961), pp. 208–20; and John G. Tower, James Brown, and William K. Cheek, eds., Verification: The Key to Arms Control in the 1990s (Washington: Brassey's, 1992). For more on the use of “compliance monitoring,” see, for example, J.B. Poole and Richard Guthrie, eds., Verification 1996: Arms Control, Peacekeeping and the Environment (London: Verification Research, Training, and Information Centre, 1996), pp. 151–70.

16. John R. Walker, “Update: Verification of the Biological and Toxin Weapons Convention and the UK's Practice Compliance Inspection Programme,” in J.B. Poole and Richard Guthrie, eds., Verification 1993: Arms Control, Peacekeeping and the Environment (London: Verification Research, Training, and Information Centre, 1993), pp. 193–96.

17. This situation was in marked contrast to the negotiation of the CWC in the late 1980s, during which there had been a number of workshops, both within the Conference on Disarmament and also organized by nongovernmental organizations, including the Stockholm International Peace Research Institute and Pugwash, which considered the lessons learned from the large number of trial inspections and practice challenge inspections conducted at various chemical and military sites by many negotiating and observer states. The experiences obtained during these trial inspections allowed fine-tuning of the draft inspection procedures and resulted in increasing convergence of views among the negotiators in the utility of these types of inspections to verify the future CWC. See Robert J. Mathews, “Verification of Chemical Industry under the Chemical Weapons Convention,” in Poole and Guthrie, eds., Verification 1993, pp. 41–54.

18. This approach was adopted in the end game of the negotiation of the CWC in relation to the routine inspections of the other chemical production facilities. Robert J. Mathews, “Approaching an ‘End-Game’ in the Negotiation of the BWC Protocol: Lessons from the Chemical Weapons Convention,” CBW Conventions Bulletin, No. 47 (March 2000), pp. 1–4.

19. “Procedural Report of the Ad Hoc Group 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/AD HOC GROUP/49, Geneva, November 22–December 10, 1999. In many of the provisions of the rolling text, alternative wording was placed in square brackets (indicating that there was still some disagreement about the final wording) and footnotes (usually registering either dissent of a delegation to wording adopted or the view of a delegation that an issue needed further discussion and clarification).

20. “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/CRP.8, April 3, 2001.

21. Donald Mahley, “Statement of the United States to the Ad Hoc Group of Biological Weapons Convention States Parties,” Geneva, July 25, 2001, <usinfo.org/wf-archive/2001/010725/epf314.htm>.

22. Indeed, the impression that one might obtain from reading media reports is that a verification protocol for the BWC would have been agreed if the United States had been prepared to accept it. See, for example, Jenni Rissanen, “BWC Update: A Turning Point to Nowhere? BWC in Trouble as US Turns Its Back on Verification Protocol,” Disarmament Diplomacy, No. 59 (July/August 2001), <www.acronym.org.uk/dd/dd59/59bwc.htm>. However, this result was far from certain, as several other state parties had serious difficulties with some of the proposed provisions, including the scope of declarations, investigation procedures, and national export licensing arrangements.

23. The proposals advanced so far include presenting the collated CBM information differently and translating returns into all UN languages, mandating the ISU to analyze the returns, and establishing some kind of forum for the regular consideration of declarations.

24. Belgian representative, “EU Statement at the Annual Meeting of States Parties of the Biological and Toxin Weapons Convention,” BWC Meeting of States Parties, Geneva, December 6, 2010.

25. Laura Kennedy, “US Statement at the Annual Meeting of States Parties of the Biological and Toxin Weapons Convention,” BWC Meeting of States Parties, Geneva, December 6, 2010, <geneva.usmission.gov/2010/12/06/1206-bwc/>.

26. “Report of the Panel of Government Experts on Verification in All Its Aspects, Including the Role of the United Nations in the Field of Verification,” A/61/1028, United Nations, August 15, 2007, para. 9.

27. Sims, The Evolution of Biological Disarmament.

28. For example, the CWC Article IX states, “Nothing in this Convention shall affect the right of any two or more States Parties to arrange by mutual consent for inspections or any other procedures among themselves to clarify and resolve any matter which may cause doubt about compliance or gives rise to a concern about a related matter which may be considered ambiguous.” Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction April 29, 1997, Article IV.

29. For a summary of recent advances in biological sciences, including in genomics, proteomics, computational biology, systems biology, and synthetic biology, see Implementation Support Unit, “Background Information Document on New Scientific and Technological Developments Relevant to the Convention,” BWC/CONF.VI/INF.4, United Nations, September 28, 2006.

30. “Report of the Panel of Government Experts on Verification in All Its Aspects, Including the Role of the United Nations in the Field of Verification,” paras. 41–44.

31. The timing and duration of such a meeting would be a decision to be taken by the Seventh BWC Review Conference. However, a two- or three-day meeting, ideally held back-to-back with other BWC expert meetings, would provide an opportunity for an exploratory discussion of the various issues and a useful basis for recommending the way ahead to the 2012 Meeting of States Parties.

32. Annabelle Duncan and Robert J. Mathews, “Development of a Verification Protocol for the Biological Weapons Convention,” in Richard Guthrie, ed., Verification 1996: The VERTIC Yearbook (Boulder: Westview Press, 1997, pp. 151–70.

33. See Note 11.

34. Veronica T. Borrett, Robert J. Mathews, Annabelle Duncan, and John C. Traeger, “Investigation of Negative Ion Electrospray Mass Spectra of Phospholipids Extracted from Bacteria Following Inactivation Treatments,” European Journal of Mass Spectrometry, No. 3 (1997), pp. 251–55.

35. “Chemical and Bacteriological (Biological) Weapons: Report of the Secretary General,” A/44/561, United Nations, October 4, 1989.