Implementing BTWC Article VII: Some thoughts for the Meeting of Experts and the Review Conference
[Text of a pre-recorded video ahead of an international webinar on 12 November providing an opportunity for informal discussions on topics to be considered by the Meeting of Experts on Assistance, Response and Preparedness (MX4).]
Excellencies, Ladies and Gentlemen, Colleagues,
I am Dr Jean Pascal Zanders from Belgium and an independent disarmament researcher and consultant at The Trench. My focus is on the elimination and prevention of re-emergence of chemical and biological weapons. I have been regularly following meetings of the Biological and Toxin Weapons Convention (BTWC) since the Fourth Review Conference in 1996.
I am honoured to introduce the topic for the MX4 on Assistance, Response and Preparedness from an academic perspective and would therefore like to thank the co-organisers Ambassador Elena Kuzmanovska Biondic of North Macedonia and Mr Kazuhiro Nakai of Japan, and Mr Daniel Feakes, Chief of the BTWC Implementation Support Unit (ISU) for the invitation.
Significance of emergency assistance in disarmament
From implementing the Chemical Weapons Convention (CWC), we know that Article X ‘Assistance and Protection Against Chemical Weapons’ plays an important role in preventing and mitigating the consequences of chemical warfare, terrorism with chemical weapons (CW), and building national and regional capacities to address these contingencies. In this context, work has also expanded to chemical safety and security. Parties to the CWC adopted in 2017 a decision that links different parts of the convention to addressing the threat posed by non-state actor use of CW.
The BTWC underwent a similar type of evolution via the review conference process and now also looks at various facets of possible deliberate use of biological weapons (BW) and toxins, and the mitigation of threats and consequences of the release of pathogens or toxins. However, unlike the CWC, the BTWC does not have an international body like the Organisation for the Prohibition of Chemical Weapons to oversee implementation of decisions or a Technical Secretariat to assist states parties with the preparation and implementation of decisions.
Through the quinquennial review process of the BTWC, states parties may adopt ‘additional agreements’ via consensus, which comprise:
- interpretation, definition or elaboration of the meaning or scope of a treaty provision; or
- instructions, guidelines or recommendations on how a BTWC provision should be implemented.
One consequence of this process building the treaty regime is the focus on a specific BTWC article with limited consideration of implications for other provisions or elaboration of how other articles might support an additional agreement. The need for consensus all the way instead of on a final, fully considered and elaborated product prevents this. This stands in stark contrast to the CWC process in which state party working groups prepare stand-alone decisions interpreting treaty provisions or expanding their application. They are supported by the different divisions and branches of the Technical Secretariat and receive input from subsidiary bodies, such as Scientific Advisory Board, or external experts. By the time a draft decision goes to the Executive Council and the Conference of States Parties, consensus has already been achieved.
Why this elaboration? If we consider ‘Assistance, Response and Preparedness’, then we think mainly of Article VII of the BTWC. To what extent do we consider the adoption of additional agreements under other treaty articles that would facilitate the implementation of instructions, guidelines or recommendations agreed upon under Article VII? To what extent do we – or perhaps, can we – integrate similar types of initiatives under a single heading instead of keeping them as separate projects (e.g. various databases)?
Framework for considering Article VII
As mentioned in the introduction, I am to provide an academic perspective on the issue. For the remainder of the presentation, I will follow three guiding principles, namely:
- First, the BTWC is a disarmament treaty, therefore an instrument of international security relating to weapons, their acquisition and retention, and their use. An outbreak or epidemic is most often a natural phenomenon, occasionally the consequence of an accident, and rarely the effect of a deliberate release to harm humans, animals or plants. Issues considered under Article VII overlap greatly with global health questions – remember how the Ebola crisis in West Africa was reaching its peak when the intersessional process first began considering the provision after the Seventh Review Conference, or consider how states parties may invoke the COVID-19 pandemic in their statements over the next year. Yet, the scope of the BTWC is different; it is more limited.
- Second, how unique are the considerations and proposals to the BTWC? In other words, are we considering or deciding on matters to be implemented by other organisations or institutions, or processes that fall outside of the BTWC scope? Conversely, what decision-making structures do we have under the BTWC and what types of actions can BTWC states parties manage, control or oversee?
- Third, what are the lateral consequences of concrete proposals? With that question I mean: do proposals have implications for other parts of the BTWC or would proposals benefit from additional agreements under other articles?
Article VII is arguably one of the most unclear provisions in the BTWC. Its clauses do not fit well together; the reference to the UN Security Council (UNSC) has its roots in the original UK draft convention of 1969 that outlined specific responsibilities and obligations for the body. Today, it makes little sense to wait for a decision in New York to authorise emergency assistance. Fortunately, states parties have already clarified that assistance as meant in the article is not military, but rather humanitarian. They have also agreed that humanitarian assistance may be provided before any such UNSC decision. Article VII also circumscribes the context for an assistance request, namely exposure to a danger that is the consequence of a treaty breach.
A process-oriented approach to considering Article VII
States parties have adopted an issue-oriented approach to Article VII: ways of organising assistance and assistance requests (e.g. the assistance database proposed by France and India), specific assistance proposals (e.g. mobile biomedical units by Russia), or a procedure for requesting assistance (e.g. the evolving proposal for triggering Article VII by South Africa). However, if we take a more process-oriented approach, we note that different issues arise.
First, let us consider a deliberate disease outbreak. If sufficiently severe, national, regional or international responses will likely already have been mobilised before the first indications of deliberate origin emerge. This interval between first indication of the outbreak and realisation that something may be amiss may range from several weeks to months. The questions to consider are therefore:
- What could BTWC states parties contribute to emergency relief not yet being supplied under other response mechanisms?
- What will the consequences be of adding another layer of decision-making and bureaucratic organisation to the emergency response already underway?
- What will the consequences be of a security overlay? Will or can all response parties remain in place? What might the consequences be of, say, peacekeeping forces in the region moving to a higher state of alert, simply because certain types of protective or emergency equipment can only be released according to alert levels?
However, thinking in terms of a process, BTWC states parties might wish to consider preparedness. How does one put capacities in place to prevent or deal with potential deliberate outbreaks? Many concrete projects or programmes can be set up but may involve other BTWC articles. Material assistance, infrastructure and training could be provided under Article X. The same goes for detection and analytical capacities, and so on. Specific biorisk management capacities could be provided under both Articles IV and X. In addition, states parties could consider parallel legislation to authorise the transport and handling of samples across borders as well as protocols to maintain the integrity of the chain of custody.
As mentioned before, the BTWC has no international body to oversee and promote such initiatives, so states parties would have to decide on ways to organise and finance them. Given that under a global disarmament treaty all states parties have equal obligations and enjoy equal rights, how can the community of states parties ensure that everybody benefits from these preparations? Here too, the absence of an implementing agency may be felt.
A second point for consideration is the procedure for requesting emergency assistance. Right now, submitting a request to the UNSC is the only course of action available. Neither Article VII proper, nor common agreements offer any guidance. Three tabletop exercises I organised for the Fondation pour la recherche stratégique in collaboration with the UN Institute for Disarmament Research and the BTWC ISU between 2016 and 2019 revealed great hesitation to invoke the provision due to lack of clarity about the steps to take and the consequences these may entail. Participants were particularly concerned about the potential for conflict escalation if the article were to be invoked. The deliberate release of a pathogen indeed amounts to an act of war and represents a most egregious breach of the BTWC. In addition, can the UNSC Permanent Members wield their veto power? And also: what role is left for the states parties once the UNSC has received the request? How does the crisis end? Do states parties take over the helm from the UNSC once that body has declared an end to the crisis, even when the health emergency might not necessarily be completely over?
During the tabletop exercises participants also requested proof supporting the allegation. It was clear that all available international investigative instruments lay outside the BTWC and states parties had no control over the process or follow-up actions once the results of the investigations are available. This applies both to the UN Secretary-General’s investigative mechanism or any forensic investigation. Moreover, participants were not in agreement about the level of confidence the advance evidence should have: reasonable grounds to trigger the provision of emergency assistance, or beyond any doubt? Should a potential perpetrator be identified? How fast must the process of investigation and analysis be to make emergency assistance relevant?
One way states parties might retain a certain control over the process would be to call a consultative meeting under Article V. There are additional agreements on the organisation of such a meeting. However, if we consider the time frames for certain actions foreseen in the additional agreements, half a year may easily pass before the consultative meeting issues its findings and recommendations. This is diametrically opposed to the need for speed.
The final tabletop exercise pointed to a possible solution. The scenario drew on a paragraph in the final report of the Third Review Conference, namely ‘A formal consultative meeting could be preceded by bilateral or other consultations by agreement among those States Parties involved in the problems which had arisen’. The potential thus exists for consultations at short notice, possibly in a regional context, to consider matters pertaining to Article VII. This additional agreement could be elaborated at next year’s review conference in function of expected emergency conditions relating to Article VII. In the tabletop exercise, participants used the tool to de-escalate the conflict and organise regional cooperation and communication.
From confidence-building to assurance?
A final thought connects our current experiences with COVID-19 with the proposal made by Kazakh President Kassym-Jomart Tokayev in his address on 23 September to the UN General Assembly to establish an International Agency for Biological Safety based on the BTWC.
As we are all aware, in the present era of misinformation and disinformation, doubts have been raised and repeated ad nauseam about the origins of the Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2). Some persons even went to the point of claiming that the pandemic has its origins in a deliberate release or a laboratory accident involving either offensive or defensive BW-related laboratory work. The latter type of accusations brings the matter within the ambit of the BTWC.
So, would it make sense to set up an institution, say within the ISU or UN Office for Disarmament Affairs, to which (among other responsibilities) states parties would report immediately any unusual disease outbreak or serious mishap in a biodefence programme? In so doing, states parties may elevate the current confidence-building measures (CBM A, parts 1 and 2, and CBM B) to assurance instruments, not only by making such reporting mandatory but also instantaneously.
Combined with the earlier suggestion to further elaborate the option of bilateral or other consultations, this idea would give the BTWC states parties already considerable tools to manage any emergency assistance request before involving institutions over which they have no control.
Excellencies, Ladies and Gentlemen, Colleagues, given the request to present an assessment from an academic perspective, I have not commented on the political feasibility of individual proposals. Instead, I have tried to sketch a more holistic outlook on how to make Article VII, or at least some its aspects under consideration, more relevant if connected with other parts of the BTWC. In particular, I have looked into how the community of BTWC states parties can remain seized by developments in the field and after the end of the crisis once Article VII has been invoked. As said in my introduction, guarantees for emergency assistance, response and preparedness – taken together – are a key pillar for the long-term relevancy of the BTWC or indeed, any disarmament treaty. I hope you will find some ideas useful for your considerations.
I wish you success with the Meetings of Experts in December and the review conference next year. Meanwhile, stay healthy! Thank you.
Article VII publications
Jean Pascal Zanders, Elisande Nexon and Ralf Trapp, Report of the (First) Tabletop Exercise (TTX) on the Implementation of Article VII of the Biological and Toxin Weapons Convention (BTWC) (Fondation pour la recherche stratégique: Paris, July 2017)
Jean Pascal Zanders, Ralf Trapp and Elisande Nexon, Report of the (Second) Tabletop Exercise (TTX) on the Implementation of Article VII of the Biological and Toxin Weapons Convention (BTWC) (Fondation pour la recherche stratégique, Paris, August 2019)
Jean Pascal Zanders, Ralf Trapp and Elisande Nexon, Report of the (Third) Tabletop Exercise (TTX) on the Implementation of Article VII of the Biological and Toxin Weapons Convention (BTWC) (Fondation pour la recherche stratégique, Paris, December 2019)
Jean Pascal Zanders, The Meaning of ‘Emergency Assistance’: Origins and negotiation of Article VII of the Biological and Toxin Weapons Convention (The Trench and the Fondation pour la recherche stratégique: Ferney-Voltaire and Paris, August 2018)