House of Commons - Global Security: Non-Proliferation

Global Security: Non-Proliferation - Foreign Affairs Committee Contents

4 Biological and chemical weapons

Biological and chemical weapons: the threat

166. The public profile of biological and chemical weapons is low by comparison with that of nuclear weapons. The image of the mushroom cloud has haunted public imagination since 1945, and there is widespread awareness of the devastation, as well as the long-term radioactive effects, likely to be caused by any use of nuclear weapons. Although chemical weapons have also been used in warfare, during the First World War and since, their effects are not nearly as great in terms of the number of casualties arising from a single use. Public awareness of the threat posed by biological weapons is even lower, arising from the fact that, as Dr Jones told us, "to all intents and purposes biological weapons have never actually been applied, although my view is that they are possibly the most worrying of the three".[356] Daniel Feakes pointed out that an attack using biological weapons "would be less obvious. It would be more of a public health event, rather than an explosion and the attendant effects."[357]

167. Much of the recent debate on non-proliferation and disarmament has focussed on nuclear weapons, leading Dr Jones to argue that control of biological and chemical weapons has been neglected:

358

Dr Jones believed that "the strong pursuit of nuclear non-proliferation, even as a precursor to total nuclear disarmament, also threatens the control of biological weapons and chemical weapons which some nations will see as the next best thing to nuclear."[359]

DEFINITIONS OF BIOLOGICAL AND CHEMICAL WEAPONS

168. Chemical weapons attack the body in various ways, for example, by being nerve or blister agents. The major disarmament treaty relating to chemical weapons, the Chemical Weapons Convention (CWC), prohibits:

together or separately:

(a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes;

(b) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in subparagraph (a), which would be released as a result of employment of such munitions and devices;

360

169. Biological weapons are biological agents or toxins used to cause disease or toxicity. The major disarmament treaty relating to biological weapons, the Biological and Toxin Weapons Convention (BTWC), prohibits:

(1) Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;

361

RECENT AND HISTORICAL USES OF BIOLOGICAL AND CHEMICAL WEAPONS

170. The first major use of industrially produced chemical weapons was during the First World War, although they have also been used recently by both states and non-state actors. Iraq is widely reported to have used chemical weapons in the Iran-Iraq war and against the Kurds at Halabja in 1988.[362] In 1995 members of the terrorist group Aum Shinrikyo released sarin gas into the Tokyo subway system, killing 12 people. Chemical weapons are often considered to be of little use in conventional warfare. Dr Jones assessed them as:

363

In a recent assessment of the threat of terrorist uses of such weapons, Dr Paul Cornish, Head of the International Security Programme at Chatham House, also concluded that they were of limited use in warfare, but he pointed out that they might still be potentially useful to terrorists (see Chapter 6 below).[364]

171. 'Weaponisation' of biological material is challenging and biological weapons can be comparatively slow to produce their effects, which reduces their usefulness in conventional warfare.[365] Historically, the UK has been amongst those states with biological and chemical weapons programmes, for example having its own offensive biological weapons programme until the late 1950s.[366] For some decades after this, the UK retained stocks of old chemical weapons, but these have been progressively destroyed, a process completed in March 2007.[367] Research continues, but addresses defensive responses to chemical and biological weapons.[368]

172. Daniel Feakes commented that "it is hard to imagine any country being able to use CB [chemical and biological] weapons without provoking widespread condemnation and sanction from the international community. Even the possession of CB weapons has been delegitimised to the extent that no country openly admits to it."[369]

173. At present there appears to be a greater threat of the use of biological weapons by terrorists than by states. Historical use of infected cadavers or animal carcasses as biological weapons demonstrates that biological warfare does not necessarily require cutting-edge technology. There are recent examples of the use of such weapons by non-state actors. In 1984 a religious cult in the US infected 750 people with salmonella after contaminating food[370] and in 2001, also in the US, anthrax attacks killed 5 people.[371] Daniel Feakes told us that despite the stigma attaching to states' use of chemical and biological weapons, "such normative considerations may not dissuade terrorists from acquiring and using CB weapons".[372]

Control of chemical and biological weapons

174. Control of chemical and biological weapons has evolved since the 1925 Geneva Convention which banned first use whilst continuing to allow retaliation-in-kind. This was superseded by two disarmament treaties, the Chemical Weapons Convention (CWC) and the Biological and Toxin Weapons Convention (BTWC), which are supplemented by commitments such as those made by members of the Australia Group controlling exports (see paragraph 26 above) or under UN Security Council Resolution 1540 (see paragraphs 270-273 below). A wide range of organisations is currently involved in the control of CB weapons. Daniel Feakes listed these as including the EU, the Financial Action Task Force (FATF), the G8, the Global Health Security Initiative, the International Committee of the Red Cross, the International Maritime Organization, Interpol, NATO, the Organisation for Economic Cooperation and Development, the Proliferation Security Initiative (PSI), the World Customs Organization and the World Health Organization (WHO).[373]

175. As we noted in Chapter 3, both the CWC and BTWC are disarmament treaties, unlike those dealing with nuclear weapons, which primarily seek non-proliferation or only to limit nuclear arsenals.[374] Nicholas Sims told us that disarmament has been an achievable aim because "biological and chemical weapons were marginal to the armouries of most states when nuclear weapons were very far from marginal for several."[375] Daniel Feakes told us that the term 'non-proliferation' is less applicable to biological or chemical weapons:

376

Mr Feakes told us that he prefers the term 'non-diversion' to 'non-proliferation' in the CBW context,[377] and Nicholas Sims concurred, for the reason that "it carries no implication of a division into two categories of states, respectively permitted and not permitted to have certain weapons,"[378] but rather emphasises that "the diversion of biological or chemical materials, or know-how, to weapons purposes is forbidden equally".[379]

176. Both treaties are based on the principle of a 'general purpose criterion'. They do not contain a list of prohibited agents but rather assert a general principle that all agents are prohibited unless intended for a permitted purpose, and in types and quantities consistent with such a purpose. Mr Feakes commented that:

380

The Chemical Weapons Convention (CWC)

177. The primary instrument in the effort to eliminate chemical weapons is the Chemical Weapons Convention (CWC), which entered into force on 29 April 1997.[381] Daniel Feakes described the CWC as "one of the most significant multilateral achievements of the past 15 years, although it is among the least known or appreciated by the public."[382] The CWC "bans the development, production, stockpiling and the use of chemical weapons and requires the destruction of existing stockpiles by no later than 29 April 2012".[383] It was the first arms control treaty targeted at a verifiable ban on an entire class of weapons of mass destruction. CWC implementation is facilitated by the Organisation for the Prohibition of Chemical Weapons (OPCW), based in The Hague, which aims to "achieve the object and purpose of the Convention, to ensure the implementation of its provisions, including those for international verification of compliance with it, and to provide a forum for consultation and cooperation among States Parties".[384] The UK contribution to the OPCW's £51 million budget for 2009 is £3.8 million.[385]

UNIVERSALITY

178. One way of measuring the success of the Convention is the number of states that remain outside it. At present the total number of States Parties to the CWC is 186, Lebanon and Iraq having recently (in December 2008 and February 2009 respectively) acceded to the treaty. At present nine states remain outside the CWC: the Bahamas, the Dominican Republic, Israel and Burma have signed but not ratified, whilst Angola, North Korea, Egypt, Somalia and Syria have not signed.[386]

179. In October 2003 the Executive Council of the OPCW adopted an Action Plan for the Universality of the Chemical Weapons Convention. Daniel Feakes has said that the Action Plan has been instrumental in the recent progress in moving towards universality.[387] On 20 February 2009 the Director-General of the OPCW updated its Executive Council on developments, reporting that the Bahamas intended to join and that the Dominican Republic was preparing the instrument of ratification. The organisation was due to hold a workshop on universality in the Middle East and the Mediterranean Basin, in Istanbul, in April 2009.[388] Whilst the number of non-signatories is small, Daniel Feakes told us that Egypt, Israel, North Korea and Syria are suspected of possessing chemical weapons.[389] He added that "there are efforts by the OPCW and by states such as the UK to get Israel, Syria, Egypt and North Korea on board, but it is difficult—particularly in the Middle East."[390]

180. The FCO stated that UK priorities in relation to the CWC are:

391

When asked whether in his opinion the UK was doing enough to encourage further progress towards universality, Daniel Feakes told us that:

392

181. We conclude that the fact that the UK has no chemical weapons, and that the process of destroying its past stocks of such weapons was completed in 2007, is to be welcomed.

182. We conclude that the Government has correctly identified further progress towards universality of the Chemical Weapons Convention as a priority, given that a number of key states of concern remain outside the Convention, some of which are thought to possess chemical weapons. We recommend that the Government should set out in its response to this Report what it believes to be the obstacles to the accession of each of these states and how it assesses the likelihood of overcoming these obstacles.

IMPLEMENTATION OF THE CWC

183. The Government told us that it "attaches the utmost importance to the full implementation of the CWC".[393] Daniel Feakes commented that both the Biological and Toxin Weapons Convention (discussed below) and the CWC

394

Article VII of the CWC obliges States Parties to enact legislation to implement the Convention and to designate a National Authority to implement it. In the UK this is the Department for Business, Enterprise and Regulatory Reform (BERR), whose powers derive from the Chemical Weapons Act 1996 under which BERR is required to prepare an annual report on the operation of the act.[395] The Government told us that BERR aims to involve business, academia and NGOs via a National Authority Advisory Committee which advises Ministers, and through CWC outreach seminars with universities which include discussion of dual-use research.[396]

184. National Authorities act as a point of contact with other states, and for the OPCW Technical Secretariat which co-ordinates meetings, and provides advice and assistance to support "effective, autonomous, national implementation".[397] However, such implementation may be of low priority in some countries where other, more pressing considerations dominate, such as "poverty, disease, famine, drought, instability and civil war, or a more straightforward lack of resources or of parliamentary attention".[398] Despite the requirements implicit in being a CWC signatory, by February 2009 only 178 of the 186 signatories had established a National Authority. Daniel Feakes stressed that as well as ensuring National Authorities are established it is "important to ensure that these National Authorities are provided with ongoing funding and resources and are not simply identified to fulfil a one-off request from the OPCW."[399] Even fewer States Parties (126) had informed the Organisation of the legislative and administrative measures they had taken to implement the Convention, and only 83 States Parties had legislation covering all key areas.[400] Even this may overestimate the number of States Parties whose implementation of the treaty is complete. Daniel Feakes noted that:

the criteria by which the OPCW assess 'all key areas' are unclear and do not appear to include implementation of the comprehensive scope of the CWC which is enshrined in the 'general purpose criterion' [for which, see paragraph 176 above]. The UK should encourage the OPCW to turn its attention to supporting comprehensive national CWC implementation, including implementation of the 'general purpose criterion'.

Mr Feakes further suggested that States Parties should also introduce systems for monitoring compliance and for enforcement. He added that the OPCW had now adopted a policy of naming and shaming those countries which shirked their obligations.[401]

185. Bill Rammell told us that the Government "across the board, advise[s] and help[s] states with the legislative requirements necessary for them to comply with the Convention".[402] He stated that "bilateral assistance has included the provision of National Authority training courses, contributions to the OPCW's 'Associate Programme' [and] support for Protection Assistance courses (against the use of chemical weapons)."[403] Daniel Feakes described BERR's National Authority Advisory Committee as "unique", adding that "the UK deserves praise for this innovation and the Government should encourage other CWC States Parties to establish similar committees."[404]

186. We conclude that the relatively small number of States Parties which have comprehensively implemented the Chemical Weapons Convention is a matter of concern. We recommend that the Government should continue to put pressure on those states which have not implemented the Convention in full to do so. We further recommend that the Government should take positive steps to promote the Department for Business, Enterprise and Regulatory Reform's National Authority Advisory Committee as an example of good practice that might usefully be adopted by other countries, and that it should maintain its current programmes of bilateral assistance.

DESTRUCTION OF EXISTING CHEMICAL WEAPONS

187. The CWC prohibits the development, production, acquisition, transfer and retention of chemical weapons, as well as their use. Within 30 days of the CWC coming into force each State Party is obliged to make a detailed declaration of the chemical weapons and production facilities that it possesses, or has possessed since 1946. It must draw up plans for the destruction of stocks and for facilities to be destroyed or converted for use for peaceful purposes. The deadline for the destruction of existing stockpiles is 29 April 2012.[405] Bill Rammell told us that "real progress" was being made towards meeting this deadline.[406] Albania, India, Libya, Russia, South Korea and the US have declared that they possess chemical weapons.[407] The FCO commented that in practice:

408

Daniel Feakes identified Albania and South Korea as the states which had completed destruction of their stockpiles, stated that "India is due to destroy its stockpile by the end of next year, I think, and Libya by the end of 2010"[409] and predicted that Russia and the US would miss their 2012 deadline for chemical weapons destruction:[410]

411

Nicholas Sims told us that in the first six years in which the Convention was in operation, Russia had only destroyed 1% of its arsenal.[412] Mr Feakes argued that this was largely a result of insufficient financing of destruction programmes in the past and that in both countries there were technical and environmental obstacles:

413

He believed a lack of progress could have serious consequences for the OPCW:

414

188. The FCO described assistance provided by the UK Government for destruction of chemical weapons,

415

Bill Rammell told us that "with Russia we have committed about £23 million to help develop the necessary facilities for destroying chemical weapons stockpiles".[416] Daniel Feakes described in more detail how this assistance is:

417

Whilst the FCO in its written evidence identified as a future challenge "addressing the potential failure by one or more State Party to fully comply with the 2012 deadline",[418] Bill Rammell was positive about the progress made so far, telling us that the Government's "intention remains that every state should get there by 2012. In respect of the United States and Russia, there is commitment and there has been considerable progress. Russia has reduced by about 25%."[419] However, Nicholas Sims emphasised that greater focus was required, and that it was reasonable for other states "to expect the United States and the Russian Federation, which is far behind the United States on the percentage it has destroyed, to get a move on and devote far greater resources to [the destruction of stockpiles]."[420]

189. Another future challenge for the CWC is identified by the FCO as "securing consensus on the future priorities of the OPCW once all declared stockpiles have been destroyed".[421] Daniel Feakes believed that:

422

190. We conclude that the likely failure to meet the global 2012 deadline for destruction of chemical weapons stockpiles could erode the credibility of the Organisation for the Prohibition of Chemical Weapons and undermine progress towards elimination of chemical weapons. We further conclude that the Government is to be commended for the measures it has taken to assist other states, such as Russia and Libya, with their destruction of chemical weapons. We recommend that the Government should step up its assistance activities in this area, and that it should encourage the US and Russia in particular to devote greater resources to the task of destroying their chemical weapons stockpiles. We further recommend that the Government should set out in its response to this Report what its position will be at the next Chemical Weapons Convention (CWC) Conference in relation to the failure of any state to destroy its stocks of chemical weapons and in relation to the future priorities for the CWC once stockpiles have been eradicated.

COMPLIANCE WITH THE CWC

191. In order to verify compliance with the CWC, facilities that produce certain chemicals are subject to control by the National Authority and inspection by the OPCW.[423] The Convention provides for a "challenge inspection" if there are doubts over compliance. Although this may be requested by any State Party of any other State Party,[424] Nicholas Sims told us that this provision has not been used.[425] Daniel Feakes described the extent of the verification activities under the Chemical Weapons Convention:

426

The FCO informed us that the UK actively supports the OPCW's verification activities, including the challenge inspection mechanism.[427] Compliance is the responsibility of an Executive Council, responsible to the Conference. Daniel Feakes explained that:

if a State Party has failed to fulfil the Council's request to redress the situation within the specified time, the Conference can restrict or suspend the State Party's rights and privileges until it undertakes the necessary action to conform with its obligations. In cases which could cause serious damage to the CWC, the Conference can recommend 'collective measures' (e.g. sanctions) to States Parties in conformity with international law. None of these provisions have yet been utilised so it is impossible to comment on their effectiveness. What is apparent from other incidents though is that enforcement is frequently linked to wider political considerations and that finding a united front among key states can often prove extremely difficult.

Ultimately issues can be referred to the UN General Assembly and Security Council.[428]

192. Two issues arise in respect of the status of the US under the inspection regime. Firstly, a condition of CWC ratification by the US was that samples taken during inspections could not be analysed outside the country. Secondly, the implementing legislation allows the US President to make a "national security exception" and deny a request to inspect any US facility. Daniel Feakes told us that whilst this provision "has to date and to my knowledge, […] not caused any practical problems", it has "set a precedent" which has been "copied by other CWC States Parties", potentially weakening the treaty.[429] In response to one of our previous reports on weapons of mass destruction, published in 2000, the Government undertook to urge the US to rescind the Presidential veto over challenge inspections.[430]

193. The Harvard-Sussex Program on Chemical and Biological Weapons has proposed that, in addition to the provisions of the CWC and BTWC which are directed at States, the enforcement of both conventions could be strengthened by the introduction of a new treaty which criminalised CBW activities at the individual level. This proposal was supported by our witnesses, Nicholas Sims and Daniel Feakes.[431] Mr Feakes noted that the proposal had previously received the support of the Government, expressed during our predecessor Committee's inquiry into the 2002 Biological Weapons Green Paper.[432]

194. We conclude that the enforcement mechanisms of the Chemical Weapons Convention are yet to be fully tested. We recommend that the Government should continue to make representations to the new US Administration to rescind the Presidential veto over challenge inspections. We further recommend that the Government should commit to press for a new convention criminalising chemical and biological weapons at the individual level.

The Biological and Toxin Weapons Convention (BTWC)

195. The Biological and Toxin Weapons Convention (BTWC) was signed in 1972 and entered into force in 1975. Its full title is the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction.[433] It bans the "development, production, stockpiling, acquisition, retention or transfer of biological and toxin weapons".[434]In addition, States Parties agree not to assist or encourage other States Parties or international organisations to acquire biological weapons and to take necessary national measures to implement the convention.[435] The UK was one of the three depositories of the Convention, along with the US and Soviet Governments.[436] Each State Party to the BTWC:

437

In the UK these principles are enshrined in the Biological Weapons Act 1974.

Implementation Support Unit

196. The Sixth BTWC Review Conference in December 2006 established an Implementation Support Unit (ISU) with three full-time staff based in Geneva, whose role is to provide administrative support to the BWC and to work on confidence-building measures.[438] In 2008 the UK contributed £33,412 to the ISU towards its total budget of £280,013.[439]

UNIVERSALITY

197. Since the Sixth Review Conference in December 2006, seven accessions have been made to the BTWC (most recently the United Arab Emirates, in June 2008), giving a current total of 163 States Parties. Israel, Egypt, Syria and Burma are amongst what the Government termed "notable non-ratifiers".[440] Masood Khan, chairman of the 2007 inter-sessional meeting of the BTWC, stated that Egypt, Israel and Syria had declared outright unwillingness to join in the near future as a result of "regional security circumstances".[441] Significantly fewer States Parties have signed the BTWC than the CWC, despite the fact that it has existed for considerably longer.[442]States Parties agreed at the Sixth BTWC Review Conference that "a concerted effort by States Parties is needed to persuade states not party to join the Convention"[443] and the FCO told us that the UK "continues to play an active role in promoting the universality of the BTWC".[444] Nicholas Sims said that "since 2006 clear responsibility has been placed on the Chairmen of the Meetings of States Parties for carrying forward the commitment to promote universality."[445] However, the BTWC has no secretariat equivalent to the OPCW which could work to achieve this end.[446] Daniel Feakes suggested that instead this could be accomplished by:

447

198. A number of the states outside the BTWC are members of the Commonwealth, including some which have never signed the treaty (Cameroon, Kiribati, Mozambique, Namibia, Nauru, Samoa and Tuvalu) and some which have signed but are yet to ratify (Tanzania, Guyana and Malawi). Nicholas Sims argued that the UK could play a useful role in persuading these states to become party to the Convention.[448]

199. We recommend that the Government should set out in its response to this Report what efforts it is making to persuade other states to join the Biological and Toxin Weapons Convention and outline what it believes to be the obstacles to universality. We further recommend that the Government should seek to persuade those members of the Commonwealth who are yet to sign or ratify the Convention to do so.

IMPLEMENTATION OF THE BTWC: THE ABSENCE OF VERIFICATION

200. The Government told us that effective national implementation of the BTWC is one of the "key UK priorities":

449

The BTWC differs from the CWC in two important respects. Firstly, the BTWC requires no declarations to be made and there is no verification procedure in place.[450] Secondly, there is no equivalent of the Organisation for the Prohibition of Chemical Weapons in relation to the BTWC.

The failed verification protocol

201. Between 1995 and 2001 negotiations took place to design a verification protocol for the BTWC, but these ended without agreement. The FCO told us that the failure of these negotiations related to the nature of biological weapons:

451

EU Member States agreed on a common position but could not prevent a breakdown in talks. A number of states would not commit their support to the draft protocol—these included China, Cuba, Iran, India, Libya and Pakistan.[452] Critically, the US opposed the draft protocol, with John Bolton, the then US Under Secretary of State, commenting that:

453

Dr Jones concurred that there might be difficulty with verification in the case of biological weapons "by virtue of their greater potency, low cost, ease of production, small size, ease of transport and difficulty of detection", adding that "for many concepts of use, which tend to the covert and pre-emptive, the accumulation of a stockpile of weapons for a rapid response is not a pre-requisite of an offensive BW [biological weapons] capability."[454]

202. We previously expressed support for a verification protocol in our Fifth Report of Session 2002-03 on the Government's Biological Weapons Green Paper, questioning whether the inclusion of the US in such a protocol was essential for its success.[455] The Government's response noted that whilst it had been in favour of a protocol "there was a widespread view amongst delegations at the 24th AHG [Ad Hoc Group] session that, without US participation, it was not worth pursuing a Protocol", and that "it is not politically feasible to resurrect the Protocol given the strong opposition in Washington, as well as the continuing reluctance of many others to move forward without the US."[456] Nicholas Sims told us that he "[understood] the assessment was made that a Protocol without the USA would also be a Protocol without Russia, China, India, Pakistan or Iran".[457]

203. President Obama has not indicated yet whether he will support a resumption of negotiations. Nicholas Sims' view was that it is unlikely that even the new Administration will support a verification protocol:

458

459

Mr Feakes agreed that this was likely to be the case, but expressed hope that verification "might start to come back onto the agenda. At the end of the day, you need something with boots on the ground and people on site."[460]

204. Bill Rammell was clear that the Government remain "long-standing supporters of a verification regime"[461] and other witnesses emphasised that whilst they supported a protocol in principle, it was not an achievable short-term objective.[462] In the meantime, as Nicholas Sims told us, an alternative would be to strengthen the BTWC using other mechanisms:

tabula rasa

463

205. We conclude that securing a verification protocol for the Biological and Toxin Weapons Convention should remain a key objective for the Government. We recommend that the Government should work to persuade the new US Administration that such a protocol for the Convention is essential. We further recommend that the Government should, in conjunction with other States Parties, explore ways in which the Convention can be strengthened by other means until such time as a verification protocol can be achieved.

NON-COMPLIANCE WITH THE BTWC

206. It is clear that some States Parties have continued to develop biological weapons, despite having signed the BTWC.[464] Disputes in relation to the BTWC are settled through "appropriate international procedures within the framework of the United Nations", with any State Party being able to report alleged cases of non-compliance to the UN Security Council.[465] Whilst there has been one Consultative Meeting of States Parties to review a case of non-compliance which related to the United States' alleged use of biological weapons against crops in Cuba,[466] no compliance concern has ever been raised at the UN Security Council.[467]

STRENGTHENING THE BTWC

207. The FCO told us that since the failure to agree a verification protocol it has been focussed on "identifying and implementing other measures to strengthen the BTWC".[468] It has expressed a commitment to strengthening the Convention, believing that "international cooperation in the framework of the BTWC is key to defeating the threat from biological weapons".[469] At the Sixth BTWC Review Conference in December 2006 an Inter-sessional Work Programme for 2007-2010 was agreed. The FCO told us that it "promotes discussion, common agreements and the sharing of best practice on these topics through the contribution of working papers and active participation in BTWC and other meetings." The topics included in the programme are:

470

However, when questioned on the UK's specific proposals for strengthening the BTWC Bill Rammell was unable to provide much detail, confirming that "inspection has a key role to play", emphasising that the Government has a "determination to find a way through" and stating that "moving forward to the next review in 2011 has to be a priority."[471]

208. Nicholas Sims proposed a programme of specific measures which the FCO should pursue at the Seventh BTWC Review Conference in 2011. The first of these is an Accountability Framework, proposed by Canada in 2006:

The idea at its simplest is that the States Parties should show that they are accountable one to another in respect of demonstrating compliance, much more positively than they have done hitherto. [...] There could be regular accountability sessions where questions of doubtful activities could be raised and where there would be reassurance, if there can be reassurance, but also a working out of real compliance ambiguities and calls for clarification.

Mr Sims also supported the "Action Plan for Comprehensive Implementation […] proposed by the President of the Sixth Review Conference—but unfortunately too late in the day to succeed." Such a plan could include "a request to States Parties to create or designate National Authorities for the BWC, as they are already required for the CWC". He suggested better collective scrutiny of developments in technology through, for example, a Scientific Advisory Panel meeting regularly, and advocated that in the absence of an equivalent to the OPCW the mandate and staff of the Implementation Support Unit should be expanded, allowing it to support a Scientific Advisory Panel, an Action Plan for Comprehensive Implementation, processing of Confidence Building Measure returns, the promotion of universality and the development of an Accountability Framework. The Government told us that in the absence of a verification protocol and subsequent creation of an OPCW equivalent "or any expansion of its mandate, the ISU is likely to remain sufficient to manage the day to day administration of the BTWC."[472]

209. Mr Sims suggested that formal 'BWC Annual Meetings' should replace gatherings held in support of the inter-sessional work programmes and that there should be fewer constraints on the agenda and more recurring items. He also supported work to refine and improve the Confidence-Building Measures (as did Daniel Feakes)[473] and to complete the 'consolidation agenda' of politically-binding commitments agreed by consensus at earlier Review Conferences and recorded in their Final Declarations but still not fulfilled—for example, withdrawal of the right of retaliation held under the Geneva Protocol. As we noted above (see paragraph 193), both Daniel Feakes and Nicholas Sims supported the Harvard-Sussex Program on Chemical and Biological Weapon's proposal to enable criminal prosecutions of individuals involved in illegal preparation or use of biological weapons.[474]

210. Progress on strengthening the BTWC is likely to depend, in part, on the attitude taken by the US. Nicholas Sims argued that in the past the US had "a very good national record"[475] in the area of biological weapons, having given them up before the BTWC came into force.[476] However, he commented that the US "certainly are not engaged", adding that:

In the BWC, they have been remarkably discouraging to multilateral endeavours ever since 2001, and therefore the predominant mode in BWC diplomacy in Geneva has been, 'How much will the Americans allow us to do? How fast can we move towards recovery from the debacle of the ending of the protocol negotiations in July 2001? How far and how fast can we move towards something that is almost a secretariat?' The Americans will not let us call it a secretariat, so we have to call it an Implementation Support Unit. It is a tremendous achievement to be allowed to employ three people full-time for four years. That is the sort of grudgingness that I hope the new US Administration will get right away from.

I would like them to be encouraged to be far more positive on reinforcing the BWC from within, allowing the treaty regime to develop in the sorts of ways that plenty of European Union and other NATO members, such as Canada and Norway, have put forward. Those members have, however, found themselves held back by the constraints that the US has placed since 2001 on any development of multilateralism within the BWC—very severe agenda constraints, very severe constraints on linking progress in one year's meeting of States Parties to the next, very severe constraints on any negotiation or addition of commitments at all and, unfortunately, no secretariat.

211. We conclude that strengthening the Biological and Toxin Weapons Convention should be a priority for the Government in the absence of a verification protocol. We recommend that in its response to this Report the Government should comment on the specific suggestions aimed at achieving this end, set out in previous paragraphs, and outline what measures it intends to pursue further at the Seventh Review Conference in 2011. The suggested measures include an Accountability Framework, Action Plan for Comprehensive Implementation, better collective scrutiny of developments in technology, an expansion of the role and staff of the Implementation Support Unit, formal annual meetings, work to refine and improve the Confidence-Building Measures, a consolidation agenda of politically-binding commitments agreed at earlier Review Conferences and criminalisation of biological weapons activities at the individual level.

The BTWC and CWC and new technologies

212. Technological advances are likely to pose significant challenges to the CWC and BTWC. The British Medical Association drew our attention to "the risks associated with the rapid advances in biotechnology". It emphasised the need to engage with scientists and the medical profession about the "control of biological experimentation, and the dissemination of the results of such research", particularly "how they make decisions on whether to publish the results of potentially 'dangerous' research."[477] The development of whole new fields such as synthetic biology, and the likely future convergence of chemistry and biology, mean that "the BWC and CWC will have to demonstrate adaptability and devote time to investigating the areas of overlap between them".[478]

213. As we noted in paragraph 176, general purpose criteria were included in the CWC and BTWC "in conscious recognition of the need to prohibit in advance the sources of future threats",[479] and as Mr Feakes put it these apply to "intentions rather than to particular chemical or biological agents."[480] The intention has been that such criteria should be incorporated into national implementing legislation,[481] but Mr Feakes explained that "loopholes can emerge during the implementation of the treaties and through disagreements between States Parties."[482] Nicholas Sims told us that:

483

It is important that suitable mechanisms are in place to monitor developments in science and technology. Daniel Feakes explained that the CWC already has a Scientific Advisory Board but that its recommendations "are not always heeded by the States Parties". Both he and Nicholas Sims proposed a similar body for the BTWC.[484]

NON-LETHAL BIOLOGICAL AND CHEMICAL WEAPONS

214. One of the significant recent developments in science is in the area of incapacitating biochemical weapons.[485] A recent publication by the British Medical Association, entitled "The use of drugs as weapons", "highlights how the development and use of medicines as a means of incapacitating people in law enforcement and combat situations, risks undermining chemical and biological weapons conventions."[486] These weapons were also the focus of a submission from the Bradford Non-lethal Weapons Research Project, at the Department of Peace Studies, Bradford University, which pointed out that, despite their name, so-called non-lethal weapons carry significant risk of death and are being developed by a number of states. In October 2002 Russian forces used an unidentified gas in a building where Chechen separatists were holding over 800 hostages, resulting in the death of 129 hostages, largely as a result of the gas. The CWC permits use of toxic chemicals for "law enforcement" without defining the term and there is no obligation to declare substances used for this purpose.[487] Daniel Feakes stated that one danger of non-lethal weapons would be that "the norm against using poison and disease in warfare might start to unravel."[488] However, Nicholas Sims noted that "neither the CWC nor the BWC is limited to lethal weapons in terms of prohibitions",[489] suggesting that they would be covered.

215. We also examined the status of herbicides and defoliants under the CWC. Nicholas Sims told us that following the Vietnam War, "the sensitivity for the United States of the issue of defoliants and herbicides resulted in special handling of this issue".[490] Therefore, whilst these chemicals are in no way a new technology, the final Convention did not explicitly refer to such agents. Instead, a compromise was reached in which preambular paragraph seven contained the text "recognizing the prohibition, embodied in the pertinent agreements and relevant principles of international law, of the use of herbicides as a method of warfare". As Mr Sims pointed out, "by its very nature a preambular reference does not constitute a treaty obligation but reflects the intentions of the negotiators and the context of existing law and institutions which they regarded as particularly relevant to the new treaty."[491]

216. Mr Sims cited a legal commentary on the CWC by Dr Walter Krutzsch and Dr Ralph Trapp which highlights the fact that the Convention specifically defines toxic chemicals in terms of their effects on humans or animals, excluding plants. The implication of this is that herbicides would be covered only if they also caused harm to humans and animals. Whilst use of agents directed against plants is covered by the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD) of 18 May 1977, the ban extends only to the use of such weapons, and then "only if the use is for military or any other hostile purpose and has effects which are widespread, long-lasting or severe as the means of destruction, damage or injury to another State Party." The CWC, in contrast, prohibits a wider range of activities including development, production and stockpiling.[492] Mr Sims told us that "it would indeed be desirable to revisit the issue of defoliants and herbicides, but within the wider category of toxic chemicals" which could also include consideration of the status of other 'non-lethal' chemical agents that have been discussed. For this item to appear on the agenda of the CWC Third Review Conference in 2013 accompanied by useful proposals, the Government would need to press for this for several years in advance.

217. We conclude that whilst general purpose criteria provide the means by which the Biological and Toxin Weapons Convention and Chemical Weapons Convention can keep pace with advances in technology, this is still an area which requires close attention. We recommend that the Government should set out its proposals for ensuring that the Conventions are able to keep pace adequately with future technologies, particularly in areas of overlap.

218. We recommend that in its response to this Report the Government should set out its view on non-lethal agents such as herbicides, defoliants and incapacitating biochemical weapons and the status of such agents under the Biological and Toxin Weapons Convention and Chemical Weapons Convention. We conclude that there is a case for certain biological and chemical agents which are non-lethal or which target plants, including crops and vegetation, to be prohibited from use as weapons for the purposes of these Conventions. We further recommend that the Government should press for negotiations on an unambiguous prohibition of their use as weapons to commence at the next Review Conferences.

356 Q 54 Back

357 Q 54 Back

358 Ev 105 Back

359 Ev 105 Back

360 Chemical Weapons Convention, Article II, http://www.opcw.org/chemical-weapons-convention/articles/article-ii-definitions-and-criteria/ Back

361 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, April 1972, Article I Back

362 Ev 103 Back

363 Ev 100 Back

364 Paul Cornish, "The CBRN System, Assessing the threat of terrorist use of chemical, biological, radiological and nuclear weapons in the United Kingdom", Chatham House, February 2007 Back

365 Ibid., p 13 Back

366 FCO, Strengthening the Biological and Toxin Weapons Convention: Countering the Threat from Biological Weapons, Cm 5484, April 2002, para 17 Back

367 Hart and Clevestig, "Reducing security threats from chemical and biological materials", SIPRI Yearbook 2008, pp 439-442 Back