APPENDIX 2
Memorandum from Professor J P Perry Robinson
Here is a response to the invitation contained
in paragraphs 11 and 58 of the FCO Green Paper, Strengthening
the Biological and Toxin Weapons Convention. It comes to you
from an interested individual who also heads a university research
programme involving the subject-area of the Green Paper.
1. The problem of biological weapons is
not going to go away quickly, however ingenious the arms-control
solutions proposed. In biotechnology today we are seeing a great
surge of commercial and scientific venture that promises to yield—is
already yielding—much benefit at individual, corporate and
societal levels. The surge will continue to gather momentum as
scientists' understanding of life processes continues to accelerate.
That biotechnology has maleficent as well as beneficent potential
is commonly recognised, and there is astute reflection in the
Green Paper on the dual applicability of some biotechnology both
to the common good and to threatening new weapons. The FCO is
not alone in perceiving this duality to lie at the heart of the
problem today. Yet the disdain evident in the United States for
internationally negotiated measures of dual-use control suggests
that some policy-makers see dual use as a relatively trivial consideration,
and not one that need constrain the great upward surge of biotechnological
opportunity. Is that tunnel vision on their part, or expedient
recognition that the interests arrayed against multilateral controls
are, for the moment, overwhelming? Or is it simply that the general
economic and political context of the surge is a climate that
favours promotion, not constraint? Whatever it is, remedies cannot
be expected soon, if, as they surely must, they are to involve
the United States in multilateral co-operative effort.
2. In the meanwhile, as paragraph 45 of
the Green Paper rightly says, the potential threats presented
by biological weapons will continue to expand, and have now done
so to the point where they reach beyond the national security,
thus becoming a supranational or global problem that requires,
ever more urgently, a global solution. The forward strategy thus
has to be one of not allowing the situation to get worse while
still keeping alive the prospect of advancing the global solution.
For the resumed Fifth BWC Review Conference, such a holding strategy
would translate into a policy of promoting reaffirmation of the
norm embodied in the BWC and of instituting processes that would
serve both to make that reaffirmation continuous and to facilitate
multilateral negotiation when the time for it becomes more propitious.
That is exactly what the concluding Way Forward section
of the Green Paper seems to contemplate. Of course, if even that
modest approach were to inspire active US opposition at the resumed
review conference, then, provided there were no distance between
the UK and its EU allies on the issue, the time would have come
for departing from decision by consensus, which is one of the
"traditional trappings of arms control", to decision
by vote.
3. The three specific types of Way Forward
measure proposed for discussion would, as a package, advance the
holding strategy well: (a) an annual BWC review conducted by the
states parties that is guided by non-open-ended expert groups;
(b) greater involvement of non-governmental organisations, such
as professional and trade associations, for example in developing
codes of ethical conduct; and (c) an annual national conference
on the health of the BWC that has both governmental and non-governmental
participation. That triad of measures, however, seems rather paltry
in comparison with the hopes and expectations evident in the Rolling
Text of the projected BWC Protocol. It also stands in some contrast
to the five specific areas "for immediate action" specified
in paragraph 54 of the Green Paper. A stimulus to thinking about
possible additional measures is the four-pillar concept used in
paragraph seven of the Green Paper to explain UK policy for CBW
risk-management. The concept sets arms control alongside preventing
supply, deterring use and defending against use as a pillar of
that policy. It thereby postulates both that arms-control measures
cannot suffice on their own and that they are a necessary adjunct
to the other three pillars. The suggestion is, in other words,
that an interdependency exists between arms control and other
elements in a diverse array of available countermeasures. It is
thus not so much that the BWC is one of several free-standing
columns supporting the policy, but more that the BWC can lend
strength to, and derive strength from, that overall array. This
is surely correct. A way further forward, then, is to identify
possible mechanisms for such interdependency and seek enhancement
of them.
4. One might, for example, locate a part
of the interdependency in the legitimation that the BWC and its
underlying norm provide for measures not otherwise recognised
in international law, such as the harmonisation of export controls
that the Australia Group promotes, or even covert operations to
disrupt the supply of possible BW armament programmes. Whether
BWC-compliance-monitoring procedures, as have been sought through
the BWC Protocol, would strengthen such an interdependence is
a moot point, but certainly the interdependence would be lost
if the norm codified in the BWC were allowed to fade. So it is
most important, as the Green Paper underlines, that there be reaffirmation
of the norm.
5. The verification procedures that were
being negotiated as part of the BWC Protocol would, unless negotiating
compromises had rendered them altogether nugatory, have reduced
the probability of clandestine BW armament. A direct interdependence
would then have existed between the BWC and preventing supply.
The verification procedures would have been focussed on lists
of agents judged especially threatening. Among such agents, paragraph
21 of the Green Paper places particular stress on toxins and peptide
bioregulators. All such substances are toxic chemicals within
the meaning of the Chemical Weapons Convention, so an alternative
route is open for bringing them under control and thus strengthening
this interdependence: proposing that an additional schedule of
chemicals be added to the CWC so as to establish a verification
regime for particular toxins and peptides. No doubt the negotiation
of such an amendment would encounter obstacles similar to those
that confronted the BWC Protocol; but the First CWC Review Conference
takes place next April, providing opportunity for exploring the
option further.
6. Then there is the interdependence between
the BWC regime and deterrence of BW armament, including use of
biological weapons. Strengthening it would be measures to remedy
another deficiency of the current regime, namely its absence of
provision for sanctions against violators. This presumably is
why paragraph 54 of the Green Paper has included "criminalisation
of violations of the Convention" among the "five specific
areas for immediate action". Set out in the box in paragraph
seven, are the three mechanisms that the UK believes "essential
to deter CBW use". One mechanism is assuring any potential
aggressor that "those at every level responsible for any
breach of international law relating to the use of such weapons
will be held personally accountable". In fact, unless some
sort of criminalisation initiative is pressed forward, this deterrent
sanction scarcely exists, for there is little international law
whereby individuals—as opposed to states—can be held
accountable for acts of BW armament or use. Such acts are not,
for example, expressly among the war crimes that can be tried
by the International Criminal Court. True, the BWC obliges its
states parties to "take any necessary measures to prohibit
and prevent" individuals within their jurisdictions undertaking
activities prohibited to states under the Convention. This implies
the enactment of penal legislation, so there already exists the
basis for national criminalisation initiatives, although in fact
rather few states have yet availed themselves of it. The deterrence
mechanism, however, requires more than that. It needs an international
criminalisation initiative, one that would endanger "those
at every level responsible" the moment they set foot in countries
other than their own. The proposed new international convention
on criminalisation of CBW armament noted as a potential measure
in paragraph 47(g) is designed to achieve this. It should be observed
here that, in order to ensure that the proposed convention reaches
"every level responsible", it is applicable to governmental
officials, even to heads of state. Like the 1996 Chemical Weapons
Act, which implements the Chemical Weapons Convention into UK
law, but unlike the 1974 Biological Weapons Act even as amended
by the 2001 Anti-terrorism, Crime and Security Act, the proposed
convention denies Crown immunity.
7. The triad of Way Forward measures
places emphasis on possible roles for non-governmental organisations.
The NGO roles that are proposed for consideration are primarily
at the national and regional levels. Should the Green Paper not
also have envisaged roles at the international level, given its
emphasis on international cooperative efforts to counter BW? There
are several possibilities that HMG might judge worth supporting.
8. One such possibility lies within the
international academic community where new capacity now exists
for conducting soundly based policy-orientated research into core
BWC problems (such as dual use). The new capacity has been brought
into being by the ad hoc studies of different aspects of
bioterrorism commissioned by EU bodies in the aftermath of the
events of 11 September 2001. These studies have required the convening
of EU-wide working parties of scientists, other academics and
people from both industry and government—networks that will
dissolve once the studies are done, thereupon dissipating a rare
international resource that could be deployed in other efforts
to strengthen the BWC. FCO support could enable such work to be
carried forward. The work might proceed within the framework of,
for example, the impending ESRC National Security Challenges programme,
or possibly even under the auspices of an EU Council or Commission
subsidiary, provided the framework favoured internationally networked
research, especially in projects that could link American researchers
into the work.
9. Taking shape under the stimulus of the
threat to the BWC is a different sort of international NGO activity
that is potentially also worthy of support. The principal NGOs
that concern themselves with the BWC, based in countries such
as Germany, South Africa, Switzerland, the UK and the USA, are
discussing possible ways of coming together in order to concert
their activities globally. The coalition is developing a programme
that would combine global networking and publication, including
publication of an annual state-of-the treaty report, so as to
increase awareness of the BWC and to monitor its implementation
by individual states parties, including implementation of its
associated confidence-building measures. Two US charitable bodies
have provided seed money for the project-definition that is currently
in progress, which now seems likely to result in a launch of the
project during the resumed Fifth BWC Review Conference. Additional
backers are being sought. On the precedent, not least, of its
financial support for a rather similar international NGO enterprise,
Small Arms Survey, HMG might want to consider helping this one
too.
10. My research programme and the people
in it stand ready to contribute to the proposed annual meetings
on the health of the BWC.
(Memorandum originally submitted to the FCO
Non Proliferation Department)
J.P. Perry Robinson, Professional Fellow
SPRU, Science and Technology Policy Research, University
of Sussex, Brighton
12 September 2002
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