Posted on: June 20, 2020 Posted by: Rugveda Satbhai Comments: 0
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Biotechnology is advancing rapidly and the security context is evolving. Accordingly, there is a need to strengthen the international legal regime prohibiting biological weapons.

Biological weapons (BW) have been defined by the WHO as weapons that achieve their “intended target effects through the infectivity of disease-causing microorganisms and othersuch entities”. These weapons are prohibited under the 1972 Biological and Toxin Weapons Convention (BWC), which was the first multilateral disarmament treaty to abolish an entire class of weapons. Despite a small number of public allegations of non-compliance, the treaty can largely be seen as successful with biological weapons seemingly excluded from the arsenals of state and non-state actors. Moreover, unlike chemical weapons, which are being used with alarming frequency, the use of biological weapons remains rare. However, biotechnology is advancing rapidly and the security context is evolving, potentially creating new opportunities for new (and old) biological weapons.

Origin

The BWC is a product of Cold War détente that was negotiated in the early 1970s, a point at which biotechnology was of limited commercial value and biological weapons were of relatively minor military value for the nuclear-armed superpowers. The final draft text that emerged in 1972 from bilateral US-USSR negotiations was a short document that prohibited the development, production, stockpiling or otherwise acquiring or retaining biological weapons. Although, unlike the earlier draft treaty proposed by the British, the final text of the treaty contained no provision for verification.

Evolution 

As early as the First BWC Review Conference in 1980, some states expressed frustration at the absence of measures to verify the provisions of the convention and build confidence in compliance, something compounded by allegations of toxin-weapons use in South East Asia. The end of the Cold War provided an opportunity to substantially redress this deficit, and in the 1990s state parties sought to explore technical aspects of BW verification through the work of collective of verification experts, a process that became known as “VEREX“. This was followed in the mid-1990s by political negotiations to develop a protocol, which included a provision for a verification regime for the BWC in what became known as the Ad Hoc Group. Despite making some progress throughout the mid to late 1990s, significant political differences remained, and ultimately the protocol discussions collapsed in 2001 with the United States rejecting what they saw as the “flawed” draft protocol.

The evolution of the convention has also been stifled by continued frustration over international cooperation under Article X. This article contains two paragraphs:

  • One promotional paragraph that encourages the transfer for peaceful purposes of materials, equipment and knowledge along with peaceful cooperation “for the prevention of disease, or other peaceful purposes”;
  • A second paragraph, which that is regulatory in that it obligates states to “avoid hampering the economic or technological development of States Parties”.

Many Neutral and Non-Aligned (NAM) states from the Global South have expressed frustration over what they see as the poor implementation of the promotional aspect of this article and the incompatibility of obligations under Article X with the existence of the Western-led Australia Group export control regime. Many Western states, in contrast, have pointed to the extensive international cooperation and technology transfer that has been and is being undertaken, albeit largely outside the convention. Moreover, they likely regard the Australia Group as an important and effective tool for preventing the proliferation of dual-use of biological equipment and materials.

Finally, the evolution of the BWC has been influenced by wider scientific developments and shifts in the international security discourse. Bioterrorism was not a major concern in the 1970s. However, over the course of the evolution of the convention, the ‘deskilling’ and ‘democratization’ of aspects of biology has enabled a wider range of actors to engage in biology, something evident in the expansion of the DIY Bio movement. Combined with the growing salience of terrorism (particularly following the September the 11th attacks and the subsequent anthrax letter attacks in the US in 2001) this has made bioterrorism a more significant policy issue. This has resulted in growing international attention to the domestic implementation of the BWC since 2001.

Status Quo

Following the collapse of protocol negotiations in 2001, the BWC has embarked upon a series of inter-sessional processes between the five-yearly reviews conferences. These meetings are less about negotiations; rather they are mandated “to discuss and promote common understanding and effective action” on particular selected topics.

Currently, neither states nor non-state-actors admit to having biological weapons programs, and, unlike the increasing incidents of chemical weapons use, incidents of biological weapons development and/or use are rare. However, biotechnology is growing ever more powerful with new developments in areas, such as genome editing, and continues to benefit from convergence with other technological developments. Moreover, the security environment has significantly evolved since 1972 with a growth in “New Wars-type” conflicts, in which biological weapons may be seen as potentially useful tools for harming but also punishing, and terrifying local opposition. Syria provides one such example of these sorts of conflicts and raises the possibility that state (and to a lesser extent, non-state) actors, maybe inspired by the use of unconventional weapons in Syria – thus far – with relative impunity.

Following the recent global issue of COVID 19′ faced internationally and devastating the entire planet, The US Joint Chiefs of Staff Committee Chairman Mark Miley recently declared that US intelligence is taking a “hard look” at whether the coronavirus originated in a Wuhan research lab rather than in an open-air market. Meanwhile, US Republican Senator Tom Cotton has hinted that the outbreak might have come from a weapons programme.

Such allegations, which have been floated since the early days of the pandemic, have been vigorously denied by the Chinese authorities and have not been scientifically substantiated. But uncertainties surrounding the origins of the pandemic remind us of the dual nature, civilian and military, of biological sciences and their inherent weapons potential.

Shortcomings

To this day, the BWC remains the pillar of international biological arms control. Although not substantially but it does contribute to international peace and security. Still, the Convention is unable to verify and deal with violations. And it has other shortcomings:

  • In response to a perceived violation, states under the BWC only have the choice of consulting with one another or of lodging a complaint with the United Nations Security Council (UNSC) in the hope of securing an enforceable UNSC Resolution with the consensus of all five permanent members of the Council (P5). A state can also appeal to the International Court of Justice but not all states are legally bound by the BWC nor have they necessarily all accepted the compulsory jurisdiction of the ICJ in all legal disputes.
  • There is no standing body to ensure the implementation of the BWC. At present, this function is performed by a Review Conference, which only takes place once every five years, and through periodic meetings of member states and of experts. Since 2007, a small Implementation Support Unit (ISU) has been put in place. It has performed efficiently but its mandate and staffing (mostly financed by the European Union) are too limited.
  • The Convention lacks verification and inspection capabilities. After lengthy negotiations, an initiative to equip the BWC with a verification protocol was in the end wrecked by the United States at the 2002 BWC Review Conference.
  • 14 countries have still not ratified the BWC, including states in regions of major tension.

In short, the present international regime is inadequate for handling a biological weapons crisis and addressing its humanitarian and legal consequences.

Recommendations

The following measures to strengthen the regime can be taken into consideration

  • In the absence of a standing international body to oversee implementation of the BWC, the option of placing biological weapons under the jurisdiction of the existing Hague-based Organisation for the Prohibition of Chemical Weapons (OPCW) should be explored. There are already instances, such as the 1925 Protocol, the Australia Group, the UNSCOM and UNMOVIC Commissions dealing with weapons of mass destruction in Iraq, and UNSC Resolution 1540, in which biological and chemical weapons are or have been dealt with jointly. The 2016 BWC Review Conference noted “the increasing convergence of biology and chemistry and its possible challenges and opportunities for the implementation of the Conventions”.
  • More generally, despite the failure in 2002, the idea of equipping the BWC with a verification or investigation mechanism should be revisited. Even if, as some believe, verification cannot fully ensure the implementation of the BWC, that must not become a pretext for doing anything. The precedents of UNSCOM and UNMOVIC in Iraq show that bio-verification is at least feasible. By defeating the verification initiative in 2002, the United States deprived itself and the rest of the international community of a tool that would have been useful today for investigating the origins of the coronavirus outbreak. Relying purely on US national intelligence is not credible internationally.
  • A concerted effort must be made to encourage strategically significant countries such as Egypt, Israel, and Syria to join the rest of the world in renouncing these hideous weapons, which are capable of indiscriminately killing thousands upon thousands of civilians. They are weapons of terror with no strategic value.
  • The next Biological Weapons Convention Review Conference will meet in 2021. The present pandemic must be the catalyst for strengthening the Biological Weapons Convention and apart from the international agitations, China might have to face serious reparations if claims of US get proved and accepted.

Conclusion:

The problem is still with some signatory countries that they signed but yet not ratified. They are not implementing the guidelines given by the Biological Weapon Convention to their countries. BWC was opened to make the world peaceful and safe from Biological weapon warfare. But till now some countries are misusing their biological and scientific advancement power to destroy the world. Advancement in bioscience and biotechnology development in these areas is rapid and increases the risk that biological weapons will spread. Some states have violated the BWC and others are suspected of operating illegal biological weapon programs. The treaty regime mandates that states-parties consult with one another and cooperate, bilaterally or multilaterally, to solve compliance concerns. It also allows states-parties to complain with the UN Security Council if they believe other member states are violating the convention. The convention will have its 45th anniversary in 2020 but still, viruses like corona come out and try to destroy the world’s peace.

Rugveda Satbhai
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