A toothless tiger? The Biological Weapons Convention and its challenges

The so-called Biological Weapons Convention was recommended for adherence by the General Assembly on 16 December 1971. Its full title is “Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction”. Before then, the Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare of 1925 had already banned the use of biological and chemical weapons, but the production and stockpiling of these weapons remained legal. Additionally, major countries, such as the United States had not signed the Protocol because it did not consider pesticides and non-lethal chemical war agents to be used as counterinsurgency measures chemical weapons in the sense of the Geneva Protocol.

In the 1960s, the United Nations increased its efforts in drafting a convention that was to address the ban on chemical and biological weapons. One reason for this was the deployment of “Agent Orange”, a chemical warfare agent, by the United States in the Vietnam War. While non-allied countries and the Soviet Union aimed at including the ban on chemical and biological weapons in one single convention or at least simultaneously, the United States and other Western powers rejected this. The United States, in particular, was then of the opinion that chemical weapons could be useful to the military while it considered biological weapons to be less so and was, therefore, prepared to enter into a separate biological weapons agreement.

When, in spring 1971, the Soviet Union declared its readiness to agree to a separate biological weapons agreement, this paved the way for the Biological Weapons Convention. After it had been opened for signature in 1972, it entered into force on 26 March 1975. It was the first international treaty after World War II that banned an entire category of weapons and foresaw its destruction. 178 countries were party to the Convention in 2017. Another six countries (Egypt, Syria, Somalia, Central African Republic, Haiti and Tanzania) have signed the Convention but not yet ratified it. Another 12 have not even signed it, amongst them Israel, some Pacific island states and African countries.

The most relevant provision of the Convention

In Article I, the Biological Weapons Convention states that each state party to the Convention “undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain microbial or other biological agents, or toxins” for military purposes. It prohibits the production and possession of “weapons, equipment or means of delivery designed to use such agents or toxins”. According to Article II, each state party shall “undertake to destroy (…) all agents, toxins, weapons, equipment and means of delivery”. It is true that the Convention does not explicitly forbid the use of biological weapons, but it underlines the provisions of the Geneva Protocol. The Convention von 1972 binds all state parties to “take any necessary measures to prohibit and prevent” such development and production on their territory (Article IV). Finally, Article X stipulates that international research and development cooperation for the peaceful use of biological substances be facilitated.

Challenges of the Convention

One challenge of the Biological Weapons Convention is the fact that it explicitly permits the work with microbial or other biological agents and toxins that have the “justification for prophylactic, protective or other peaceful purposes” (Article II) but that could be used as warfare agents. This allows research on substances to defend against biological weapons, which includes not only current but also possible future biological weapons. This, in turn, provides opportunities for misusing such research for developing new biological weapons. As, however, a general ban on research on and with dangerous microbiological substances or toxins is neither possible nor makes sense, a military use can only be limited by transparency and verification measures.

This, however, is the Convention’s second loophole as, contrary to treaties banning chemical weapons or treaties on nuclear disarmament, it does not name any organization or mechanism that is to verify adherence to the Convention. It is true that Article VI foresees that the Security Council is to be informed of any breach of obligations deriving from the Convention and that it may initiate any investigation into the complaint. In reality, however, this right has never yet been acted upon, as the veto-countries of China, France, Great Britain, Russia and the United States may block such investigations. Presently, experts, such as Gunnar Jeremias, Head of the Research Group for Biological Arms Control at the Carl Friedrich von Weizsäcker Centre for Science and Peace Research at the University of Hamburg, are of the opinion that no “country in the world is developing biological weapons”. US-American secret services, too, have corrected their previous statements that there is a growing number of countries with biological weapons programmes, Milton Leitenberg, from the University of Maryland, one of the leading US experts on biological weapons, notes. He comes to the conclusion that the dangers of bioterrorism are much smaller than feared in the early 21st century.

Still, it would make sense to complement the Convention by a verification mechanism, as countries with highly developed technologies, in particular, could use progress in microtechnology and genetic engineering in future for military purposes. It would be necessary for the parties to the Convention to agree on a verification mechanism that permits mandatory inspections of suspicious activities and research- and production facilities.

Discussion about verification provisions

Efforts regarding verification provisions have so far only had limited progress. The Review Conferences of the Biological Weapons Convention take place every five years. In 1986 and 1991, certain confidence-building measures were agreed upon. They foresee that the parties to the Convention voluntarily exchange information on their civilian biological research and production activities annually to address concerns about compliance. Programmes in connection with research on means of how to defend against biological weapons, in particular, were to be made transparent. But only one-third of all state parties have provided such voluntary information.

Since 2002, intersessional work programmes where experts and states parties met annually to discuss and promote a common understanding on several topics have been taking place. But, again, these meetings are pure fora for discussion and have no decision-making powers.

At the 2006 Review Conference, the states agreed on establishing a standing working group, called Implementation Support Unit, located at the United Nations Office for Disarmament Affairs. The Unit consists of three members.

With a change in the political climate and the general stance of the US government under George W. Bush that had low esteem for arms control treaties and doubted the reliability of verification measures, negotiations about such measures failed to succeed. In addition to this, there were newspaper reports on secret US biological weapons defence projects in which a biological bomb and genetically modified, more powerful anthrax bacteria were to be generated. According to the US armaments expert Seth Brugger, the Bush administration intended to “protect such defense projects from international verification” by rejecting verification procedures in general.

The Obama administration, too, contrary to the overwhelming majority of the states parties, is against taking up the talks about verification procedures. The current US government, too, considers an effective monitoring of the Biological Weapons Convention to be impossible.

Sources and further information:

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