Enhancing BWC Compliance – Options for the EU

The Biological and Toxin Weapons Convention (BWC) is neither in crisis nor at a cross roads, and hyperbole to the contrary is unhelpful. Yet it is perhaps because the BWC continues to trundle steadily along towards an undecided destination, that the period of relative calm should be exploited to bolster the Convention, to future proof the BWC and the norm against the hostile exploitation of infection that it embodies. To do this, there is a need for a more ambitious approach. The first two intersessional processes may have proved unexpectedly fruitful; however, this approach appears to have moved beyond its ‘best-before-date’ and gone stale. Accordingly, several states have proposed alternative approaches to building the BWC: France has proposed and piloted a peer review mechanism, something taken further forward by the Netherlands, Belgium and Luxembourg; the Czech Republic along with Canada and Switzerland have explored compliance assessment; Russia has proposed returning to the 1994 mandate (see discussion at Days of Future Past); and several countries, including the UK, Australia, Canada, Finland, Lithuania, Spain and the US, have constructively engaged in a debate on compliance. Although there is little agreement on exactly what should be done, there does appear to be an emerging critical mass, seeking to move beyond ‘tinkering around the edges’ and, once again, deal with the difficult topic of compliance.

Compliance

Compliance with the BWC can be understood as the observation of the obligations, both positive and negative, that the States Parties have agreed to in the process of signing and ratifying the Convention. Compliance with these undertakings is, however, complicated with matters of clarity, change and capacity obfuscating what it means to be in compliance.

  • Clarity: The succinct nature of the BWC text means some of the obligations are ambiguous. For example, is it acceptable under Article I to aerosolize Ebola for biodefence purposes, or conduct Gain-of-Function research? What “necessary measures to prohibit and prevent” biological weapons must States Parties undertake to be compliant with Article IV?
  • Change: Such ambiguity is compounded by the temporal nature of disarmament treaties.  Such agreements do not operate in a vacuum, but rather must evolve and adapt with the changing context. Particularly important in this regard are changes in the capacity, geography and practices of science and technology (S&T) along with changes in perceptions of the biological weapons threat and biotechnology, which have led to the growing importance of Articles IV and X over the last decade.
  • Capacity: Finally, although the BWC was created by and for states, in its implementation, States are required to transpose the positive and negative obligations onto the national level. This can be a ‘heavy burden’ for many States Parties, particularly those that lack either the resources or capacity to implement the Convention.

There is, thus, a great deal to be done to work out what is meant by compliance, let alone how this can be demonstrated or evaluated in the 21st century.

Enhancing compliance

History suggests that incremental approaches appear a safer course of action than placing all the ‘eggs in one basket’. In this regard, states might consider disaggregating compliance into component parts and concentrating on modules or blocks that can be dealt with, if and when there is sufficient political interest amongst States Parties. The following building blocks could be considered in seeking to enhance BWC compliance:

  • VEREX 2.0 – One starting place surely has to be a review of how changes in S&T have affected understanding, demonstrating and evaluating compliance.  Whilst the overarching conclusions of VEREX may still have value, the Final Report from VEREX explicitly acknowledged the scientific and technological shortcomings of the time. More than two decades later, we now have new actors engaged in biology, including those from outside the traditional community of practice;new practices, such as the use of fully disposable bio-manufacturing processes, that can perhaps make non-compliance harder to detect; and new knowledge and access to information which could be employed to facilitate bio-weaponeering. Yet we also have new or improved technologies of detection and surveillance; and new knowledge and experience from past programs which could be employed to improve detection. Additionally, experience in Syria suggests open source data and social media could have implications for demonstrating compliance. There is thus a need to revisit the S&T of relevance to compliance, something that could be done through a standalone review, a compliance focused VEREX 2.0 if you will. Such a review could build a more solid foundation for political and conceptual discussions that are rooted in the 21st rather than the 20th century.
  • Article I – A second block could be to look at how to draw a line between permitted and prohibited activities. This is a longstanding problem posed by dual use biology, yet it is one that is not going to get easier and should not be neglected.
  • Article IV – States could build on the work undertaken over the course of the intersessional processes, but also as part of the French Peer Review process and the Czech, Canadian and Swiss initiative, and look at what it means to be in compliance with Article IV, specifically the obligation to prevent biological weapons at the national level. The work done through OPCW and UNSC Resolution 1540 may also have some guiding value in this regard.
  • Article V – States could further consider elaborating on the provisions of Article V and perhaps building a mechanism for resolving disputes and managing disagreement over compliance.
  • Article X – a further step could be to try to narrow down the focus of expectations under Article X, something attempted with limited success over the course of past intersessional processes.
  • Visits More ambitious states could also seek to explore the role of visits to facilities or, given the attention DIY bio has received, DIY bio labs. This could serve to assess and share best practices on inter alia safety and security procedures but potentially, in time, begin to re-explore how visits can be employed to confirm Confidence Building Measures or even help with international cooperation.

Procedural developments

Beyond changes in the substance of discussion, there would be clear benefits to procedural changes in future inter-review conference activities. Perhaps most important would be the provision of decision making powers which are important to ensure that ‘effective action’ is taken on those issues where there is clearly consensus. A second step could be the creation of some form of ‘working group’ or ‘task group’ to look at compliance. In time, such a working group approach could ‘routinize’ discussion on compliance and make the process of clarifying compliance queries the norm, rather than something exceptional.

With or without you

To achieve this, one short-term approach could be to forge ‘collectives of the willing’ who could embark upon an exploratory process of looking at building blocks. Where necessary, this could be done through some exogenous route, essentially taking the discussion on a topic or topics temporarily outside of the Convention, with a geographically diverse collective of states, testing ideas and proposals and then reporting back to the States Parties as a whole. There are several precedents for this approach, and it could enable ambitious states to circumvent an ‘opportunistic coalition of the decidedly unwilling’ and arrive at the 2016 Review Conference better prepared and informed.

First do no harm

Whatever the EU chooses to do, a guiding principle should be first do-no-harm. Unfortunately, at the last review conference, it was not the ‘usual suspects’ that created last minute problems, but the unexpected budgetary constraints of a small number of EU states that prevented agreement on a modest expansion to the Implementation Support Unit. Pearson has described this as a failure on the part of the EU “to think and plan ahead in a coordinated way”, and suggests a need for better preparedness and coordination by EU states in the run up to 2016.

Conclusions

There is growing interest amongst states in doing something on enhancing BWC compliance. Regardless of whether this is achieved through the 1994 mandate, the 2001 Composite Text or from scratch, there are several blocks of activity that need to be addressed in order to lay the foundations for a realistic, contemporary discussion on enhancing compliance. The EU’s collective expertise is well placed to lead in the exploration of these building blocks either working through the Convention or, if needs be, building collectives of the willing with as geographically representative as possible set of actors, working outside the Convention and reporting back to BWC states through working papers and presentations. This may not always be successful, but building an understanding of what works and equally importantly what doesn’t work in the 21st century certainly appears preferable to the current process of ‘tinkering around the edges’ and trundling along a road to nowhere.