Select Committee on Foreign Affairs Appendices to the Minutes of Evidence


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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