Since the summer, Russia has been adding chapters to the history of the Biological and Toxin Weapons Convention (BTWC) with its allegations of treaty violations against Ukraine and the USA. So far, it has culminated in convening a Formal Consultative Committee (FCM) under BTWC Article V in September and filing an Article VI complaint accompanied by a draft resolution proposing an investigative commission with the United Nations Security Council (UNSC) in October. The FCM was inconclusive because states parties reached no consensus on whether Moscow’s allegations have merit. Notwithstanding, a large majority of participating states rejected the accusations in their national statements. On 2 November, the draft resolution failed to garner sufficient votes.

Notwithstanding, both outcomes will impact the BTWC. The Ninth Review Conference will start in two weeks (28 November – 16 December). In their review of the articles, state parties will have to acknowledge the invocation of Articles V and VI. In the latter case, it was the first time in the BTWC’s 47 years. Finding consensus language reflecting the demarche may be problematic and could contribute to the review conference’s failure. In a statement after the UNSC vote on the draft resolution, the Russian delegate vowed that his country ‘will continue to further act within the framework of the [BTWC] and make the efforts needed to establish all of the facts having to do with the violations by the United States and Ukraine of their obligations under the Convention in the context of the activities of biological laboratories on the territory of Ukraine’.

At the same time, how Russia triggered Article VI and sought to establish an investigative committee and define its modalities elicited responses from UNSC members. These positions will likely influence discussions during and after the review conference whenever questions arise about the UNSC mandate and procedures in case of an Article VI complaint.

Getting to the UNSC

For years now, Russia has been complaining about US-funded biological research in former Soviet states. Russia’s campaign accusing Ukraine and the USA of running biological weapon (BW) activities in violation of the BTWC became more forceful in the months before it invaded Ukraine and an international issue afterwards. Having scurried through Ukrainian laboratories in occupied territory searching for incriminating evidence, Moscow compiled a dossier with documents and held press conferences to voice its allegations. It also convened three UNSC meetings in March and May. In this respect, it is interesting to note that Russia – a permanent member of the UNSC – buttresses its accusations with explicit references to so-called ‘evidence’ collected after occupying parts of Ukraine in blatant violation of the UN Charter. More specifically, Article 2(4) obliges UN members to ‘refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. In other words, by its admission, the evidence only became ‘available’ to Russia as a consequence of a significant crime against international law.

Over the summer, Russia shifted into higher gear when it called for an FCM under BTWC Article V. This gathering ended without consensus on whether Russia’s claims were valid. However, an overwhelming majority of participating states rejected them as being meritless.

Dissatisfied again, Russia raised the matter once more before the First Committee of the UN General Assembly in October. It announced its preparation of a formal complaint under BTWC Article VI and an accompanying draft resolution to set up an investigative commission comprising all UNSC members. It lodged its complaint with the UNSC on 24 October.

Like at each of the previous UN meetings, the UN Office for Disarmament Affairs (UNODA) categorically stated that it had no evidence whatsoever that Ukraine was conducting biological research and development activities in violation of the BTWC. Moscow, however, dismissed those statements, arguing that UNODA based itself on Ukraine’s confidence-building declarations but is unable to verify their accuracy. In his right of reply towards the end of the UNSC meeting of 27 October, Russia’s Permanent Representative Vassily Nebenzia mocked UNODA’s capacity to collect relevant information.

Russia’s approach to triggering Article VI for the BTWC

On 24 October, Nebenzia addressed a letter to the President of the UNSC. It summarises Moscow’s grievances against Ukraine and the USA, reiterates outstanding questions after the FCM, and lodges a formal complaint with the UNSC under Article VI. The letter also has two annexes. The first one comprises lists of questions addressed to Ukraine and the USA and links to the working papers presented by Russia at the FCM. (The Russian letter of 24 October, which the UNSC president circulated in its original form – i.e. without a UNSC reference number – the next day, comprised 309 pages and included all the materials presented at press conferences and previous UNSC sessions.) The second one contains a draft resolution proposing the establishment of a commission consisting of all UNSC members to investigate its claims against Ukraine and the USA. As Nebenzia made clear during his statement to the UNSC on 27 October,

We also expect that the commission will present a relevant report on the issue containing recommendations to the Council no later than 30 November and inform the [BTWC] States parties of the results of the investigation at the Ninth Review Conference, to be held in Geneva from 28 November to 16 December.

Article VI (1) grants BTWC states parties the right to take a complaint to the UNSC. In terms of procedure, it only states that the complaint ‘should include all possible evidence confirming its validity’ and a ‘request for its consideration’ by the UNSC. The provision lacks guidance on the type of investigation the UNSC may initiate, and states parties have never elaborated investigation modalities. In the words of Director and Deputy to the High Representative for Disarmament Affairs Adedeji Ebo on 27 October:

The Convention does not provide any guidance on the type of investigation that the Council may initiate. States parties have also not developed any specific guidance or procedures concerning the modalities to be employed for the purposes of an article VI investigation. Should the Council initiate an investigation, the United Nations Office for Disarmament Affairs stands ready to support it.

Put differently, a process to develop both mandate and procedures would have to precede a UNSC investigation in response to Russia’s complaint.

Neither the treaty text nor the common understandings reached at review conferences grant a complainant a right to propose the investigation’s mandate, the investigative team’s composition, and the time frame within which the team should report back. Russia thus not only triggered Article VI but also introduced a concurrent draft resolution determining the make-up of the investigative commission (experts from the current UNSC members, thus including Russia and the USA but excluding Ukraine) and setting a deadline for the investigative report (30 November 2022).

Did the UNSC veto the Russian draft resolution or not?

When put to the vote on 2 November, the UNSC did not adopt Russia’s draft resolution. The abstentions by all ten non-permanent members surprised: countries with outspoken views against Russia’s allegations, those that sought to balance their position with other geopolitical or economic interests, or the ones wishing to avoid setting precedents for Article VI in the absence of a majority behind Moscow’s proposal all adopted a common strategy. By denying the possibility of nine affirmative votes (as required by Article 27 of the UN Charter), they ensured rejection of the draft resolution irrespective of the permanent members’ actions. The five permanent members split, with China and Russia endorsing the proposal and France, the UK and USA rejecting it. The table below summarises the action by UNSC members (the linked document also contains each country’s justification of its vote).

Despite three permanent members’ rejecting the Russian draft resolution, their vote did not amount to a veto. This result suggests that the UNSC addressed a procedural matter rather than any ‘other matter’ (as stipulated in Article 27(3) of the UN Charter). The difference between both is that a procedural matter only needs nine affirmative votes, whereas any non-procedural matter requires nine affirmative votes, including the permanent members’ concurring votes. A procedural matter may pass despite a negative vote by one or more permanent members; a negative vote by a permanent member would defeat any ‘other matter’ of substance.

It is challenging to distinguish when the UNSC votes on a procedural or non-procedural matter because ‘most votes in the Council do not indicate by themselves whether the Council considers the matter voted upon as procedural or non-procedural’. However, the difference does become visible afterwards. The phrasing of the UNSC President’s statement of failure reveals the absence of vetoes in procedural matters:

• In a procedural matter, the announcement will include the phrase ‘… has not been adopted, having failed to obtain the required number of votes’.
• In all other matters, the standard phrase will be ‘… has not been adopted, owing to the negative vote of a permanent member of the Council’.

Thus the President (Ghana) announced the outcome as follows, thereby indicating that the vote was procedural:

The draft resolution received 2 votes in favour, 3 against and 10 abstentions.
The draft resolution has not been adopted, having failed to obtain the required number of votes.

We should add that had the UNSC adopted the Russian draft, the procedural nature of the vote would not have been outwardly apparent because the President would not have explained the result.

Consequences of the vote on the draft resolution

From the preceding, there is a clear need to distinguish between the formal complaint under Article VI and the accompanying draft resolution. With the latter, Russia used its position as a permanent UNSC member to undertake an action that is not available to any ‘ordinary’ BTWC state party (not seated in the UNSC). Earlier, we noted that Article VI(1) requires a state party to accompany the complaint with all relevant evidentiary materials and a request for the complaint’s consideration by the UNSC. Russia, however, phrased the request part differently (emphasis added):

In accordance with article VI of the Convention, the Russian Federation lodges to the Security Council a formal complaint, which includes all possible evidence confirming its validity, and reiterates its request to convene on 27 October 2022, in New York, a United Nations Security Council meeting to consider the attached draft resolution of the Council (see annex II).

Russia did not call for the UNSC’s consideration of the formal complaint. Instead, it requested a meeting to adopt the draft resolution. Given that the draft resolution called for establishing an investigative commission and designation of the current UNSC members as commission members, the proposal was a typical case for a procedural rather than substantive vote. In other words, the UNSC did not take up the matter of substance, namely the Article VI complaint. Had this been the case, France, the UK and USA would most likely have heard their opposition described as a ‘negative vote’.

Responses to the Russian complaint

The UNSC met twice after Russia had sent its letter invoking BTWC Article VI to the President on 27 October and 2 November. UNODA only spoke in the October meeting, reiterating that it had no information on illicit BW-related activities in Ukraine supported by the USA. In both instances, Russia was the first member to address the UNSC, during which it summarised its core allegations and the steps it had undertaken leading up to the triggering of the BTWC complaints procedure. It also presented the draft resolution on both occasions. In his statement on 27 October, Nebenzia introduced an element not featured in the letter to the President or the accompanying draft resolution. No Russian official seems to have repeated it since.

We have submitted a draft resolution to the Security Council. In accordance with article VI of the [BTWC], the draft is aimed at establishing and dispatching a Security Council commission to investigate into the claims against the United States and Ukraine […]

The reference to ‘dispatching’ is the only hint at onsite visits, possibly at an expert level in Ukraine. This activity would have raised the question of access to Ukrainian territory, especially those regions occupied by Russian forces. Without authorisation from Kyiv, a UN-mandated team cannot enter the Ukrainian territory as defined by its internationally recognised borders. (In March 1988, UN investigators could not travel to Halabja after Iraq’s chemical attacks against the city despite Iran’s control over large swaths of Iraqi Kurdistan.) An onsite visit to laboratories would also have raised serious issues about the forensic value of evidence collected in occupied Ukraine.

The draft resolution immediately became the subject of discussions at the expert level. An unofficial account has suggested that several UNSC members raised concerns about the investigative commission, mainly because of the absence of modalities for an Article VI complaint. While those countries did not reject the idea of an investigation outright, they were concerned that adopting the resolution would have precedent-setting implications for future UNSC-mandated investigations under Article VI. They, therefore, suggested that the draft text should include a precise mandate, structure and modalities for the commission. Russia reportedly did not consider the suggestion, maybe because its negotiation would considerably delay the resolution vote, making the finalisation of the investigative report before the end of November or the Ninth Review Conference mid-December all but impossible. Moscow’s apparent intransigence may have played a role in the non-permanent members’ abstention.

Three other principal factors may have also influenced their stance. First, UNODA’s repeated statements before the UNSC since March that it is not aware of any BW programmes in Ukraine, as alleged by Moscow, held strong sway over the representatives. The Russian delegation consequently faced a high barrier to arguing its allegations’ validity convincingly. In addition to the progressive loss of diplomatic clout over the war in Ukraine, the outcome of the FCM a mere two months before the UNSC vote added to Russia’s challenges of persuading the meeting. The outright, systematic refusal to accept any of the explanations offered by Ukraine and the USA also raised issues about Moscow’s motives behind the allegations.

Second, several UNSC members prized the quality of evidential materials. While Article VI(1) conditions UNSC action on a complaint including ‘all possible evidence confirming its validity’, states parties have never precised the nature of such proof. After their vote, several non-permanent members clarified that a complainant should not simply recycle evidence if it failed to convince the membership of another formal consultative body considering its allegations. Moscow had not only presented its accusations three times before to the UNSC, but it also called for an FCM during which it raised numerous questions and to which Ukraine and the USA answered in detail. While the substantive nature of the discussion in the FCM – in Nebenzia’s words – ‘confirm[s] the relevance of the problem that we raised’, the fact of the matter is that the gathering ended without a unanimous view. Consensus among nations when considering an international dispute sets an impossibly high bar. Still, in this instance, Russia only managed to convince a tiny coterie of satellite or aligned states of its case. In other words, if a BTWC state party triggers Article VI after unsuccessfully invoking Article V, UNSC members have now declared their expectation of substantial additional evidence before deciding on follow-on action.

Third, the USA especially argued that much of the assistance offered to Ukraine falls under BTWC Article X on assistance and cooperation on non-prohibited and other peaceful activities. Several countries belonging to the Global South voiced their concern that the accusations and proposed investigation without a proper mandate or procedures might delegitimise Article X projects.

Interventions by France, the UK and USA on 27 October and 2 November did not engage Russia on the substance of its allegations or merits of an investigative commission. Instead, they decried Russia’s political motives behind its manoeuvres, suggesting in passing that the country would never under any circumstances accept an evidence-based explanation of the biological research activities. In their mind, this also renders moot the idea of an investigative commission because Moscow would reject any finding that does not match its desired truth.

China finally voted in favour of the Russian draft resolution. It justified its stance by arguing that ‘the series of questions raised by Russia at the meeting were not fully answered’ during the FCM and therefore thought that Russia’s complaint to the UNSC and request to initiate an investigation were ‘reasonable and legitimate and should not be blocked’. It concluded ‘that a fair and transparent investigation by the Council can effectively address compliance concerns and help uphold the authority and effectiveness of the Convention’.

Despite its sustained declaratory support for President Vladimir Putin concerning Russia’s military operations in Syria and Ukraine, China is not Russia’s ally. Instead, it has interests that may be aligned with Moscow’s, particularly when countering Western and US influence in geopolitical and economic spheres. Reducing transparency about certain activities inside China, including ones that are subject to international oversight or verification (e.g. in terms of disarmament and arms control or incident notification), seems one part of the way Beijing presently aims to project itself on the world scene. Reading its statements on 27 October and 2 November carefully, it never endorsed Russia’s claims but couched its arguments to let procedures foreseen in the BTWC run their course. If adopted, Russia’s precedent-setting draft resolution would have given China a permanent place in the proposed investigative commission and hence a role in any investigation, including those called against it. The manner in which Beijing delayed investigations into the origins of the COVID-19 pandemic by the World Health Organisation, despite its reporting obligations under the International Health Regulations, blocked off access to the Wuhan Institute of Virology, or influenced report writing may be instructive in this respect.

In conclusion

Three issues stand out after the convening of the FCM and Russia’s invocation of Article VI, which BTWC states parties will have to consider during the forthcoming review conference:

First, in BTWC’s lifespan, the FCM process under Article V was invoked only twice: in 1997, after Cuba’s allegations that the USA had deliberately spread Thrips palmi insects over the island and last summer concerning Russia’s allegations of illicit biological research activities in Ukraine funded and controlled by the USA. In both instances, the FCM did not resolve the controversies for lack of consensus among the participating BTWC state parties.

This difficulty in reaching a consensus points to a fundamental flaw in the FCM design. As long as the accuser and the accused play their part in consensus building, the mechanism cannot arrive at a clear determination, one way or the other.

However, it is also an illusion that the Article V process might function effectively by excluding the adversary parties. To this end, BTWC states parties should be able to agree on a (reinforced) qualified majority vote and (ideally) inscribe in the procedure the expectation of state parties to accept the outcome of the vote.

After all, the outcome of such a vote is a collective judgement based on individual opinions by participating state parties, not a statement of fact. The truth is always political, not (necessarily) scientific. Russia, Iran and China have shown this principle time and time again by rejecting the scientific findings of the investigative teams of the Organisation for the Prohibition of Chemical Weapons (OPCW) in Syria and accusing other members of politicising the OPCW’s work.

Second, Article VI has now been triggered for the first time. As the first paragraph stipulates: ‘Such a complaint should include all possible evidence confirming its validity, as well as a request for its consideration by the Security Council’. In this instance, Russia did not just file a complaint with the UNSC; it also used its status as a permanent member to simultaneously submit a draft resolution aiming to set up an investigative commission. The document also proposed specific modalities for that investigation, which BTWC states parties had not previously considered or agreed to.

As we noted earlier, the convention lacks a detailed procedure to trigger the provision. Because of the vote in the UNSC, proposals to enhance Article VI may now have to address whether a permanent member of the UNSC can submit a resolution proposal accompanying a complaint. In addition, they also have to determine whether a request to act on a concurrent draft resolution amounts to the request to have the complaint considered by the UNSC as explicitly stipulated in Article VI. The issue holds the potential of a consensus breaker at the review conference.

Finally, Russia resubmitted its previously circulated documentation whose value UNODA questioned four times (twice in March, May and October) when stating to the UNSC that it is unaware of the alleged BW programmes in Ukraine.

However one may interpret its outcome, the FCM did not conclude there were indications of a BTWC violation. Based on the national statements during the FCM, it is clear that an overwhelming majority of participating state parties did not accept Russia’s assertions. The question, therefore, arises whether Russia did not brutalise Article VI by submitting documents in evidence that the international community had already repeatedly judged as wanting.

State parties should stipulate that recirculated evidence cannot support an Article VI complaint if other formal consultative bodies have previously found such documentation inconclusive, deficient or insufficient.

To summarise, a sustained disinformation campaign highlights the BTWC’s weaknesses regarding verification and compliance. Article V may have some relevancy in conflict mitigation but cannot resolve allegations of breaches of the treaty unless the process is modified because of the experiences in 1997 and 2022. Russia’s invocation of Article VI using its position as a permanent member of the UNSC leads the BTWC into uncharted waters.

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