Global Security: Non-Proliferation - Foreign Affairs Committee Contents

 Submission from Nicholas A Sims, Reader in International Relations, London School of Economics And Political Science

  1.  This Memorandum is addressed to that part of the Inquiry which concerns the Biological Weapons Convention (BWC).

  2.  My involvement with the BWC goes back to its prehistory as a supporter of the British initiatives of 1968-69 towards a Convention and a critical commentator on the dilution of the British proposals in subsequent negotiations. I was a guest of the FCO at the BWC's entry into force ceremony at Lancaster House in 1975 and gave a keynote address on the 25th anniversary in the Palais des Nations at Geneva in 2000, to celebrate its first quarter-century in force. In 1980 I was seconded to the FCO as a member of the UK Delegation to the BWC First Review Conference and played a full part in it, but my role in following or observing subsequent Review Conferences and other BWC meetings has been non-governmental (as also at the CWC First Review Conference at The Hague in 2003).

  3.  By profession I am a university teacher, employed in the Department of International Relations at LSE since 1968 (Assistant Lecturer 1968-69, Lecturer 1969-89, Senior Lecturer 1989-2002, Reader since 2002). I have taught courses mainly on the United Nations and other International Organisations, Disarmament and Arms Limitation and International Verification. My research and publications have mostly concerned disarmament diplomacy in the UN and related contexts, with particular reference to the BWC and CWC. Not being a scientist or a weapons expert I have concentrated on the more diplomatic, legal and institutional aspects, especially the treaty regimes flowing from the BWC and CWC and punctuated by their respective Review Conferences. My interest lies in how they can be strengthened, by making fuller use of the Conventions as they stand, unamended, and adding politically-binding commitments. In the case of the BWC this means reinforcing the treaty regime by various means short of verification, which include recording extended understandings of the implications of particular Articles and remedying the institutional deficit. This has been a consistent theme through my books The Diplomacy of Biological Disarmament (1988), The Evolution of Biological Disarmament (2001) and The Future of Biological Disarmament (in press) as well as policy briefs and many other writings. I have been a Trustee since 2004 of the Verification Research, Training and Information Centre (VERTIC) and a member since 2000 of the Pugwash Study Group on the Implementation of the Biological and Chemical Weapons Conventions where several of my proposals for reinforcing the BWC and CWC have been tried out in conference papers.

  4.  The FCO Memorandum, at paragraph 8.9, reaffirms that the UK sees international cooperation in the framework of the BWC as key to defeating the threat from biological weapons. I see the BWC as key to the attainment of the UK's goals, which cohere with the wider common interest, because it is the cornerstone of an international structure of biological disarmament. It embodies the treaty approach, which I strongly support. A treaty has the advantage of simplicity in recording obligations to which all the parties have consented as legally binding. In the case of the BWC these obligations are equally binding on everyone and, importantly, the same for everyone. There are no permitted possessors, but an absolute and unconditional renunciation of the possession of biological weapons and activities logically prior to possession.

  5.  This is why it belongs to the realm of disarmament. Non-proliferation is an awkward and potentially misleading category in which to place the BWC because it is redolent of the implication that the problem to be addressed is the spread of biological weapons, and even that there are some permitted possessors of BW and others who must be prevented from acquiring them. The overshadowing effect of the nuclear NPT it so powerful that it is difficult to disentangle the concept of non-proliferation from that single treaty. The BWC is a quite different kind of treaty. It introduces a permanent regime of disarmament. It requires there to be no stockpiles whatever; so any move away from zero would be in breach of the BWC whichever state party committed it. The CWC belongs to the same category (which will be even more clearly apparent after the last remaining stockpiles of chemical weapons have been destroyed by the extended deadline of 29 April 2012). The NPT does not; but its eventual supersession by a treaty for nuclear disarmament, providing for total abolition of nuclear weapons, is the logical end-goal of the good-faith negotiations to which its Article VI commits the parties and which at the Sixth Review Conference in 2000 the UK, with the other four nuclear-weapon states parties to the NPT, reinforced through their unequivocal undertaking to complete the elimination of their nuclear arsenals. The BWC and CWC would then be complemented by a Nuclear Weapons Convention. Until abolition is achieved, from a disarmer's standpoint nuclear weapons are the odd ones out.

  6.  Non-diversion of materials or technologies from permitted purposes to those banned by the BWC and CWC will always remain a vital element in the permanent regimes of biological and chemical disarmament. I welcome the use of this term in the Memorandum from Daniel Feakes. He applies it (at the end of paragraph 9, and in paragraph 14) to the CWC but it is equally applicable to the BWC. Unlike non-proliferation, it carries no implication of a division into two categories of states, respectively permitted and not permitted to have certain weapons.

  7.  The FCO Memorandum in the same sentence of paragraph 8.9 says the UK is committed to strengthening the Convention. It details the Intersessional Work Programme for 2007-2010, which is indeed important and must be used to the full; but I hope the Committee will encourage the FCO also to look further ahead and start putting together a concerted effort constructed around the Seventh Review Conference, in 2011, to push ahead the systematic reinforcement of the treaty regime. There is much from the Sixth Review Conference that needs to be reaffirmed or extended, and much else that can be taken forward as next steps in the life of the BWC.

  8.  I suggest seven policy points to be pursued with high priority:

  8.1  Accountability Framework. This Canadian proposal of 2006[369] is independently developed in my forthcoming book The Future of Biological Disarmament (to be published by Routledge in April 2009 in the series LSE International Studies) where I argue for it as a key concept in exploring next steps for the BWC. States parties have always been under an obligation to cooperate and consult with one another over compliance concerns in the broadest sense (Article V) but their reports on compliance have been few and haphazard. Making the reports more systematic and the scrutiny of them more searching would be a step towards an enhanced compliance regime for the BWC and many ambiguities could be clarified and suspicions allayed by fuller answers. And what if they were not allayed? States parties which did not answer one another's questions could always be subjected to the more formal Consultative Meeting procedure under the Article V contingency mechanism (only invoked once so far, in 1997) or a complaint to the UN Security Council under Article VI. The Accountability Framework would not alter the existing provisions of the BWC. It would simply organise an opportunity to give yearly expression (through the "accountability sessions" proposed by Canada for the Annual Meetings) to the basic idea that states in a treaty relationship are accountable at least to one another — if not to the wider world of peoples too — and should take steps positively to demonstrate how they are complying with their own obligations as well as questioning others about theirs.

  8.2  Action Plan for Comprehensive Implementation. Article IV on national implementation of the BWC obligations ("any necessary measures to prohibit and prevent") and Article X on international cooperation in the application of microbiology for prevention of disease or other peaceful purposes were the subject of separate Action Plan proposals in 2006, which cancelled each other out. Eventually an Action Plan for Comprehensive Implementation, combining the two, was proposed by the President of the Sixth Review Conference — but unfortunately too late in the day to succeed. In 2011 something of the kind if well prepared in time for advance consideration should be acceptable, and the UK should make an effort to ensure that much more substance than hitherto should go into the Plan. One element, for example, might be a request to states parties to create or designate National Authorities for the BWC, as they are already required for the CWC under Article VII; some countries (eg the Czech Republic) have combined the two. Such a request could be an extended understanding of Article IV, as the requirement for penal legislation already is. This (the request for BWC National Authorities) would again be using the experience of CWC Article VII to inform the working out in practice of BWC Article IV: what is needed to give it full effect.

  8.3  Collective scrutiny of BWC-relevant developments in science and technology (S&T). The creation of something like a Scientific Advisory Panel in the service of the BWC states parties as a collectivity seems to have been UK policy since at least 2002, but we are no nearer seeing it in practice. The FCO Memorandum at paragraph 8.11 rightly draws attention to what the FCO has been doing nationally, both to monitor S&T developments and to hold awareness-raising seminars; but what is happening internationally about collective scrutiny? S&T is not even allowed to be a "recurrent topic" on the agenda of the 2007-2010 Meetings of States Parties. So the infrequency of collective scrutiny, which the UK was seeking to remedy back in 2001, continues to weaken the treaty regime. Scientific advisers to delegations may still foregather only every five years in Review Conferences, when there is all too little time (or structure) for their expertise to be drawn on productively. It would be a good idea to make S&T a subject for collective scrutiny more frequently, if possible on the agenda of each Annual Meeting. As long ago as 1979 the UK[370] was proposing a group of experts, with an elected Chairman and a Scientific Secretary, whose assessments (the words used in 1979 were "comments" and "recommendations") of S&T in the general areas identified at the experts' first meeting would be circulated for the experts' scrutiny, with their comments incorporated into a draft review for consideration by the experts collectively at a second meeting, the definitive review going on to the States Parties at the Review Conference. This was in the context of preparation for the First Review Conference but it could provide a model for the relationship between a Scientific Advisory Panel and the collective scrutiny of S&T assessments when Annual Meetings have been appropriately mandated by the Seventh Review Conference.

  8.4  Implementation Support Unit. The creation of an Implementation Support Unit (ISU) for the BWC was the most concrete achievement of the Sixth Review Conference. It authorised three full-time posts guaranteed for four years and funded pro rata by all the states parties. It also gave the unit a carefully crafted, and fairly restrictive, mandate. The UK should promote the case for extending the mandate of the ISU for a further five years with a slightly expanded staff complement (perhaps from three to five full-time posts) and a clearer authority to support the comprehensive implementation of the BWC in the round. This depends particularly on the United States and Japan (as the two largest financial contributors) being satisfied with the performance of the three-person unit over its first four years, and the US being less grudging in its attitude to BWC institutions — because less suspicious of multilateral approaches to security in general — under a new Administration. The FCO should be encouraged to work with the new US Administration to produce a less restrictive, more enabling, attitude in US policy on BWC institutions generally and the ISU in particular. An expanded staff complement would enable the ISU to give specialist support to a Scientific Advisory Panel or equivalent, to the Action Plan for Comprehensive Implementation in respect of both Article IV and Article X, to the processing of CBM returns, to the promotion of universalisation and to the development of an Accountability Framework. All are functions in respect of which the BWC states parties should, it is hoped, be readier by 2011 to look to the ISU for support.

  8.5  BWC Annual Meetings. This change of title and function should be authorised by the Seventh Review Conference so SPs can make fuller use of the occasions on which they foregather between review conferences. This would be a development from the single-topic or two-topics Meetings of States Parties preceded by Meetings of Experts which have constituted the agreed inter-sessional work programmes of 2003-2005 and 2007-2010. The BWC Annual Meeting would be a natural evolution from the pattern of meeting at Geneva for two or three weeks every year which has been practised by the States Parties since the Fifth Review Conference. All that is needed is to lift the constraints on the agenda of these annual gatherings so that their subject-matter can range over the whole of the BWC. More "recurrent topics" must appear on the agenda every year. At present the only ones allowed (since 2007) are the annual report of the ISU and the Chairman's report on progress towards universalisation. The collective scrutiny of S&T needs to be added. So too does the Accountability Framework. So does progress on the Action Plan for Comprehensive Implementation (assuming one has been adopted in 2011). There are still other topics which may not need consideration every year but the aim should be to add them on to the core agenda of "recurrent topics" in such a way as to ensure that the BWC is considered in the round within each quinquennium. Review Conferences would then be better prepared and their outcome documents could add extended understandings based on thorough work in the inter-sessional period. Acceptable language for the final declaration or other outcome document of each Review Conference would reflect the collective thinking of the States Parties expressed in the preceding Annual Meetings.

  8.6  Sorting out the Confidence-Building Measures (CBMs).The CBMs, dating from 1986, were enhanced and expanded in 1991 but have remained unchanged ever since. The Sixth Review Conference got itself into a tangle over how and when to deal with CBMs which meant it ended up only taking decisions on confidentiality of information provided and minor procedural matters but missed the chance to engage with the CBMs in substantive terms. Are they the right measures and correctly defined? Are they the ones most relevant to the BWC? Do they provide a full enough account of the normal pattern of permitted activities and facilities for anything abnormal to stand out the more clearly? Does the information provided under each CBM actually build confidence? There has been an understandable reluctance on the part of those who fulfil their politically-binding commitments of 1986 and 1991 by making annual declarations under each CBM to refine or replace the existing CBMs until more of the non-respondents join in. But by 2011 there will be an accumulation of useful ideas on improving the CBMs' content and process. Some are in working papers from France and Switzerland which received insufficient attention at the Sixth Review Conference; more are in studies published by academic research centres and NGOs.[371]

  8.7  Completing the "consolidation agenda" of politically-binding commitments agreed by consensus at earlier Review Conferences and recorded in their Final Declarations but still not fulfilled. The most important is the withdrawal of reservations purporting to reserve a right of retaliation with "bacteriological methods of warfare" which some states attached when ratifying or acceding to the Geneva Protocol of 17 June 1925. Maintenance of such reservations is evidently incompatible with the renunciation made on becoming party to the BWC, yet nearly twenty of the states parties to the BWC still maintain them. This may be through inattention, but the BWC states parties have collectively appealed for such reservations to be withdrawn, first at the Third Review Conference in 1991 and then in even stronger terms at the Fourth Review Conference in 1996 — repeated in 2006. It is now 36 years since the Irish reservation was withdrawn on the grounds that to maintain it could undermine the BWC (which Ireland was then about to sign): "Ireland considers that the [BW] Convention could be undermined if reservations made by the parties to the 1925 Geneva Protocol were allowed to stand, as the prohibition of possession is incompatible with the right to retaliate. As the Convention purports to strengthen the Geneva Protocol, there should be an absolute and universal prohibition of the use of the weapons in question."[372] This Irish initiative was followed by others, mostly withdrawing their retaliatory reservations in respect of both BW and CW at the same time,[373] but in respect of BW alone by Canada and the UK in 1991 (both, however, later renouncing the right of retaliation with CW too, following the 1997 entry into force of the CWC) and by South Korea in 2002. However, some states parties to the BWC have not withdrawn their Geneva Protocol reservations even in respect of BW. Lists vary, mainly because there are uncertainties in international law over the status of historic reservations "inherited" (or not) upon succession of states to treaties; but it is fairly certain that between 17 and 19 of the BWC states parties do still have such reservations in force, as well as two states outside the BWC (Angola and Israel). The seventeen are: Algeria, Bahrain, Bangladesh, China, Fiji, India, Iraq, Jordan, North Korea, Kuwait, Libya, Nigeria, Papua New Guinea, Serbia, Solomon Islands, Vietnam and Yemen. Some lists add Cambodia and Pakistan. In some cases interest was expressed during the 1990s in withdrawing reservations but not followed through; in a very few cases lack of resources within the foreign ministry of a small state may be a partial excuse for inaction. Whatever reason do the others have? Completing the "consolidation agenda" in 2011 could usefully include demarches to the governments of these seventeen or nineteen states parties to the BWC, unless they have withdrawn their reservations in the meantime, by the President of the Seventh Review Conference, perhaps acting jointly with the French government (as Depositary for the Geneva Protocol and since 1996 a keen advocate of everyone withdrawing the remaining reservations). Reports could be made twice a year on the state of play in these demarches, as has been done since 2007 by successive Chairmen of the Meetings of States Parties reporting case by case on progress in persuading non-parties to the BWC to ratify their signatures or to accede, under the mandate for promoting universalisation of the BWC which the Sixth Review Conference agreed.

  9.  These policy points for high priority attention, if pursued to fruition, would enable the Seventh Review Conference to build on the partial success of the Sixth in generating new hope for the BWC. The Final Declaration and other outcome documents of 2011 could then reinforce the treaty regime and propel it on an upward trajectory to the review conference of 2016. It is assumed that, however regrettably, neither a Verification Protocol nor the closely related concept of an OPBW is attainable in the short or medium term (although that may change in the longer term, perhaps as early as the 2020s). In their absence, the states parties to the BWC would be well advised to pursue a process of reinforcement of their treaty regime through drawing out the latent potential of the text as it stands and agreeing extended understandings, definitions and procedures to make it work more fully in the common interest. This process was revived in 2006, but tentatively, after a long interval which had included major setbacks. It would be good if the Committee could encourage the FCO to start working with others on the broad set of proposals outlined in paragraph 8 above, so that they are thoroughly prepared and promoted well in advance of the Seventh Review Conference, in order to achieve a much more confident outcome in 2011.

  10.  The BWC could usefully be complemented by a firmer attribution of individual criminal responsibility, with BW (and also CW) activities defined as an international crime more unambiguously than has been done in the 1998 Rome Statute for the International Criminal Court. A stand-alone Convention to Prohibit Biological and Chemical Weapons under International Criminal Law would help to fill the gaps which may be left by patchy national legislation and the imperfections of the Rome Statute. I therefore support the criminalisation initiative of Professors Matthew Meselson of Harvard and Julian Perry Robinson of Sussex.[374] Daniel Feakes points out, in paragraph 18 of his Memorandum, that the Government has already stated UK support for this proposal during the Committee's Inquiry into the FCO's Green Paper of April 2002.[375] I would like to see the FCO promoting international criminalisation of BW activities with individual criminal responsibility, including (but not limited to) discussions on the possibility of proposing the Harvard-Sussex Draft Convention in the Sixth Committee (Legal) of the UN General Assembly or an equivalent forum.

28 November 2008

369   Canada, "Accountability Framework" (BWC/CONF.VI/WP.1: 20 October 2006). Back

370   United Kingdom, "Preparatory Committee for the [First] Review Conference: Working Paper on Background Documentation" (BWC/CONF.I/PC.3: 10 July 1979) paragraph 6. Back

371   France, "Enhancement of the CBM Process" (BWC/CONF.VI/WP.4: 20 October 2006); Switzerland, "Actions to Improve Confidence-Building Measures" (BWC/CONF.VI/WP.14: 15 November 2006); Nicolas Isla, "Transparency in past offensive biological weapons programmes: an analysis of Confidence Building Measures Form F, 1992-2003", Occasional Paper no.1 (Hamburg: Research Group for Biological Arms Control at Hamburg University, 2006); Iris Hunger and Nicolas Isla, "Confidence-building needs transparency: an analysis of the BTWC's confidence-building measures", Disarmament Forum 2006/3 (Geneva: UNIDIR, 2006) pp 27-36; Nicolas Isla, "Strengthening the BWC's Confidence-Building Measures regime: a catalogue of recommendations, Occasional Paper no.3 (Hamburg: Research Group for Biological Arms Control at Hamburg University, 2007); Filippa Lentzos and Angela Woodward, National Data Collection Processes for CBM Submissions (London: BIOS and VERTIC, 2007); Jez Littlewood, "Confidence-Building Measures and the Biological Weapons Convention: where to from here?", Compliance Chronicles no.6 (Ottawa: Canadian Centre for Treaty Compliance, 2008). Back

372   World Armaments and Disarmament: SIPRI Yearbook 1976 (Stockholm: Almqvist & Wiksell; Cambridge, Mass. and London: The MIT Press, 1976) p 468 and p 474. The Irish declaration of 7 February 1972 was a Note received by the (French) Depositary for the Geneva Protocol on 10 February 1972 and in slightly adapted form was attached to the Irish signature to the BWC on 10 April 1972. It thereby links the two treaties and forms part of the legal documentation of both. Back

373   The BWC States Parties which withdrew their retaliatory reservations to the 1925 Geneva Protocol after the 1972 Irish initiative were Barbados 1976, Australia 1986, New Zealand 1989, Mongolia 1990, Czechoslovakia 1990, Romania 1991, Bulgaria 1991, Chile 1991, Spain 1992, South Africa 1996, France 1996, Belgium 1997, Estonia 1999, Russia 2001 and Portugal 2002. It should be noted that many states had never attached a retaliatory reservation at all, and two (Netherlands in 1930, United States in 1975) had ratified the Geneva Protocol with a retaliatory reservation which only ever applied to CW. (The Netherlands withdrew its CW reservation in 1997 following the entry into force of the CWC.) For such states there was no problem of inconsistency between their status under the 1925 Geneva Protocol and their obligations under the BWC. Back

374   "A Draft Convention to Prohibit Biological and Chemical Weapons under International Criminal Law", Fletcher Forum of World Affairs, vol.28, no.1 (Winter 2004) pp 57-72. Back

375   Foreign Affairs Committee, The Biological Weapons Green Paper, First Report of Session 2002-03, HC 150, 11 December 2002, Ev.35. The FCO's Green Paper was Strengthening the Biological and Toxin Weapons Convention: Countering the Threat from Biological Weapons, April 2002, Cm. 5484. Back

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