The Trench

Biological

‘Within the next 5 to 10 years, it would probably be possible…’

(Science and technology review under the BTWC, Part 1)

The next series of Meetings of Experts (MX) of the Biological and Toxin Weapons Convention (BTWC) is due to take place between 30 August and 8 September, a year later than originally scheduled because of the COVID-19 pandemic. Of course, provided there is no fresh resurgence in the number of infections forcing fresh meeting and travel restrictions. If the MXs proceed as planned (albeit with reduced in-person attendance), the Meeting of States Parties (MSP) will likely convene before the end of the year. The pandemic has also pushed back the 9th Review Conference until next year, making this the second six-year interval between review conferences in the BTWC’s 46-year history.

Even with no formal meetings since the MSP in December 2019, the BTWC Implementation Support Unit (ISU) has not sat idly. Between the end of October 2020 and mid-July 2021 it organised 13 informal webinars and virtual workshops, each lasting around 90 minutes and covering the topics of all five MXs. Unsurprisingly, many speakers looked beyond the forthcoming MX meetings to contemplate possible outcomes for the 9th Review Conference. This was particularly the case for MX2 on review of developments in science and technology (S&T) related to the BTWC.

Since the 7th Review Conference in 2011, S&T review has become a fixture in the intersessional meetings between review conferences. As a result, several states parties and scientific associations have outlined their views on a mechanism for systematic and structured monitoring of S&T advances and their implications for the BTWC. This time around the UN Institute for Disarmament Research (UNIDIR) has published a detailed research report entitled ‘Exploring Science and Technology Review Mechanisms under the Biological Weapons Convention’. It presents different possible configurations for organising this work with their respective budgetary implications.

DNA (Graphic by Mahmoud Ahmed, pixabay.com)

While momentum for a review mechanism seems to build (again), the ISU webinars also suggest that political consensus on its necessity at the 9th Review Conference is not a given. Whereas differences on the setup and financing of the review mechanism seem bridgeable, it is far from clear whether states parties can set aside other disagreements to pave the way for compromise on the principle of S&T review, or whether domestic constituencies will allow their delegation to make trade-offs in Geneva.

With the past always running ahead of the present

That the community of states parties wishes to review advances in the life sciences and many domains of biotechnology during the 9th Review Conference is no surprise. When the UK first circulated its ideas for a treaty banning biological weapons (BW) in 1968, awareness about the possibility of genetically engineered pathogens already existed. According to a 1969 briefing by the US Department of Defense to a Congressional committee,

‘Within the next 5 to 10 years, it would probably be possible to make a new infective microorganism which could differ in certain important aspects from any known disease-causing organisms.’ (SIPRI, The Problem of Chemical and Biological Warfare Vol. II: CB Weapons Today, 1973, pp. 313-14.)

The concern contributed to the US decision to abandon its offensive BW programme that same year and eventual support for the future BTWC.

BTWC Article XII instructs that a review conference ‘shall take into account any new scientific and technological developments relevant to the Convention’. The provision only called for a single stock-taking exercise five years after the BTWC’s entry into force, but states parties have maintained a quinquennial review process with its attendant S&T assessments.

Notwithstanding, the S&T review is neither structured nor systematic. Even before the BTWC’s entry into force in 1975, many future states parties regretted the lack of an international organisation to oversee its implementation. Until the 3rd Review Conference in 1991, they had not met regularly to deepen treaty implementation during the intersessional periods. However, inspired by the verification regime of the Chemical Weapons Convention (CWC) whose negotiation was entering the end phase, they embarked on a process to assess verification options for the BTWC and negotiate a legally binding protocol, which shrieked to a halt just before the 5th Review Conference in 2001.

They salvaged the convention by adopting an intersessional process consisting of MXs in July or August and MSPs towards year’s end. Even so, the new format has had its detractors, requiring states parties to negotiate at each review conference a fresh delicate balance of topics that the MXs and MSPs could consider over the next four years. As with the other agreed issue areas for the MXs, this has placed severe limitations on S&T review in terms of process, time allocation and depth of considerations, and the formulation of political conclusions in the MSPs. Since no consensus exits whether MSPs can have decision-making authority, review of the intersessional work and drawing possible conclusions happen only at review conferences.

This lack of an international organisation and clear decision-making procedures is exactly why for the BTWC the past keeps on preceding the future.

S&T review under the BTWC

Without an international organisation overseeing treaty implementation and no provision for any multilateral diplomatic engagement except for a single review conference five years after entry into force, review conferences became the highest decision-making institution by default. Until today, no consensus to turn the BTWC into a more dynamic enterprise has emerged. Worse, actions by individual states parties have ensured that even the acquis of common agreements and understandings has no guaranteed lifespan beyond the next review conference – as the process of ‘consensus by deletion’ like at the 7th Review Conference (2011) or failure of the 8th Review Conference (2016) remind everybody.

Thus, while Article XII refers to a review of S&T relevant to the convention, no institution or other channel for decision-making came into being to act upon the conclusions of such review.

Modest proposals at the 2nd Review Conference (1986) to create a standing or interim committee to facilitate operation of the BTWC, and particularly its process of confidence-building measures, met with opposition from the Non-Aligned Movement. The closest the BTWC ever got to a major regime upgrade were the Ad Hoc Group (AHG) negotiations between 1996 and 2001 on a legally binding protocol. The new document would have created a verification and compliance regime, set up an international organisation, widely called the Organisation for the Prohibition of Biological Weapons (OPBW), representing all states parties that also signed up to the protocol, and fostered procedures for building consensus and substantive decision-making whenever required.

The final reiteration of the draft protocol did not mandate the creation of a Scientific Advisory Board but instead left the option to do so to a separate future decision by the Conference of States Parties (CSP) of the OPBW:

Consider and review scientific and technological developments that could affect the operation of this Protocol. In this context, the Conference may direct the Director-General to establish a Scientific Advisory Board to render specialised advice in areas of science and technology relevant to this Protocol to the Conference, the Executive Council or to States Parties. In that case, the Scientific Advisory Board shall be composed of independent experts and appointed, in accordance with terms of reference adopted by the Conference, on the basis of their expertise and experience in the particular scientific fields relevant to the implementation of this Protocol and on as wide an equitable geographic basis as possible (Document BWC/Ad Hoc Group/CRP.8, Technically corrected version, 30 May 2001, p. 88; emphasis added)

Even though the ten references to the Scientific Advisory Board in the final version of draft protocol text mirrored the CWC in many respects, the mere fact that at this late stage of the negotiations the future legally binding document would not have established the subsidiary body upon its entry into force demonstrates that negotiators never got close to consensus on the principle. This absence therefore renders any reference by a state party or independent think tank to the AHG negotiations inutile.

The example points to another reality of disarmament politics: a compromise achieved for one disarmament agreement does not mean that negotiators will adopt it for a similar issue in another treaty. Rather, the earlier compromise becomes a starting position for a new trade-off either on the mechanism itself or in exchange for a gain somewhere else.

Key obstacles to external consensus

If the draft protocol text indicated the lack of external consensus on an S&T review mechanism for the BTWC 20 years ago, there is no reason to assume that beyond broad support for an advisory process and a sense of convergence of views on many features of an advisory body, the situation has changed since then. The cause for scepticism is straightforward: how will parties latch any proposal for institutional development onto the BTWC? And maintain it?

A treaty in force

The first issue is that the BTWC is a treaty in force. It embodies a strong norm but remains extrinsically weak because of its institutional deficit. Any endeavour to upgrade the agreement requires amendments or an agreement on a supplementary legally binding instrument. Either effort would lead to new demands for compromises elsewhere.

With an amendment proposal, states parties would most likely hesitate to open other parts of the BTWC for renegotiation. For instance, Iran proposed to revise the title of the convention and Article I at the 4th Review Conference in 1996 to explicitly include BW use in the prohibition. Iran had legitimate grounds for its request. The BTWC relies on the 1925 Geneva Protocol for banning biological warfare (Article VIII) as states did not want to undermine that document’s relevancy pending a global ban on chemical weapons (CW). However, the limited international action against Iraq for its CW use against Iran during the 1980-88 Gulf War had seriously undermined the Geneva Protocol’s value. Other states parties, however, balked at the possible cascade of requests for changes in other BTWC provisions and instead agreed to expand the understanding of Article I to explicitly include BW use.

Concerns arose several times in the AHG that certain suggestions for the projected legally binding document might alter the scope of the BTWC. This was for instance the case with developing lists of pathogens and toxins needed for national declarations and OPBW verification activities. Some states might have wanted to interpret those lists as the range of the convention’s application, a limitation that would have contravened the General Purpose Criterion in BTWC Article I. The last version of the draft protocol circulated before the collapse of the talks (BWC/AD HOC GROUP/CRP.8, Technically corrected version, 30 May 2001) included language that apparently cut off any such restrictive interpretation. Draft protocol Article 3 identified the purposes of the list in Annex A, adding

The list is not exhaustive. It does not exclude the relevance for the Protocol either of unlisted microbial or of other biological agents or toxins, which potentially can be used deliberately as weapons or as vectors to spread disease.

The CWC, which uses three lists or schedules with toxic chemicals and their precursors for verification, states in a less convoluted way that under Article II, para. 1, the schedules do not constitute a definition of CW (CWC, Annex on Chemicals, Part B)

In sum, any effort to reinforce the BTWC must take care not to compromise those provisions that define the core of the BW prohibition.

The AHG process also uncovered another consequence of the BTWC’s existence. Its strong norm creates a wide comfort zone for potential stakeholder communities because they can posit that their economic, industrial or research activities nowhere near violating that norm. In contrast to the CWC negotiations, the scientific and industrial communities failed to become deeply engaged in the negotiation process, clearly preferring a regulatory status quo. In part this situation reflected a lack of domestic consensus building among government bureaucracies and with key stakeholder communities, including science and manufacturing entrepreneurs. The stimuli for stakeholders to actively engage themselves in designing or streamlining transparency and verification measures and arguing their views in Geneva were few and weak.

Limited decision-making opportunities

As noted earlier, the BTWC has no formal decision-making organs and the five-yearly review conferences have by default become the highest decision-making authority (a unique special conference in 1994 notwithstanding). Commentators most often discuss the absence of an OPBW in relation to compliance and verification. However, the lack also has a major bearing on decision-making and continuation, and by extension, on how institutional or governance initiatives may be linked to the convention and allocated resources.

The CWC defines the CSP as the highest decision-making organ of the Organisation for the Prohibition of Chemical Weapons (OPCW). It meets at least once a year to adopt the programme of work and budget. The CSP also convenes every five years in special session to review the operation of the treaty (Article VIII, para. 22). Both processes have different decision-making procedures. Whereas adoption of a review conference report requires consensus, the annual sessions of the CSP allow majority voting according to the CSP Rules of Procedure. Because of this procedural differentiation between the regular CSP sessions and the review process, failure of a review conference is not as consequential as for the BTWC. Although states parties have not formally assessed the functioning of the CWC or laid out a medium to longer-term vision on priorities and strategic direction for the OPCW, non-accomplishment of the review process does not affect continuation of the organisation’s daily functioning.

With the adoption and maturing of the BTWC intersessional process after 2002, some delegations have suggested to grant the annual MSPs certain decision power because they also bring together all states parties. Iran, for one, has been consistently vocal in its opposition and the consensus principle has prevented the idea from taking root. Except for some administrative issues, opportunities for substantive decision-making occur only every five years. Any intersessional activities take place within the parameters agreed at the previous review conference. For this reason alone, progress with regime development is glacial.

Even so, nobody can assume that the consensus in one review conference will survive the next one. Not infrequently states have attempted to reverse previous common agreements and understandings by proposing to delete a particular clause in a section carried over from the previous review conference or to insert language that reinterprets previous consensus language.

This means that any decision to set up an institution or provide resources for its functioning can be nullified. For instance, every five years states parties must renew the ISU’s mandate, staffing levels and budget commitments. Adding staff, assigning the ISU additional responsibilities, or increasing the ISU’s budget may reflect growing appreciation of the unit’s work and confidence in its abilities, but they do not change the uncertainties about the unit’s continuation beyond the next review conference. The outcome of the 8th Review Conference in 2016 – a procedural report without final declaration and decisions – required a special MSP the next year to decide on a new intersessional work programme and budget, which included operational funds for the ISU.

Conclusion to Part 1

Upon finalisation of negotiations in September 1971, contemporaries were all too conscious of the BTWC’s powerlessness with no form of verification or international organisation. These lacks, combined with diplomatic dilatoriness over the next half a century, still affect any discussion on strengthening the convention, including the organisation of a seemingly straightforward, self-evident and treaty-mandated activity, which S&T review is. S&T review is not even an outlandish proposal: the UNIDIR study (p. 3) identified 20 organisations and treaties that maintain such a mechanism.

Yet, the negotiation history, lingering anger over the failed AHG deliberations and frustration over intersessional stationariness raise the question whether and when states parties can strike the critical compromises demanded by disarmament politics even before they consider the format, logistics and financing of the activity.

Part 2 describes how science review became an integral part of the CWC.

 

Part 1: ‘Within the next 5 to 10 years, it would probably be possible…’

Part 2: Constructive ambiguity, or the insertion of science review in the CWC

Part 3: External consensus building at the 9th BTWC Review Conference

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