Global Security: Non-Proliferation - Foreign Affairs Committee Contents

Supplementary written evidence from Nicholas A. Sims, Reader in International Relations, London School of Economics and Political Science

1.  Once existing stocks are destroyed what will be the role of the OPCW and the CWC?

  The OPCW will then be able to devote its verification efforts more single-mindedly to its permanent role of non-production verification (NPV). This means making sure that all States Parties are complying with their CWC obligations and not clandestinely developing or producing CW by diversion from industrial or medical or other non-prohibited purposes, or by masking it under the guise of commercial or academic research programmes, or by secretly modifying their armed forces' legitimate protective programmes to offensive ones. Inspection of varying degrees of stringency under the different Verification Annex regimes of the CWC should then apply equally to all States Parties, irrespective of their previous CW-possessor or non-possessor status. This is the "non-diversion" aspect of the CWC as a permanent disarmament regime, something which ought to have become more prominent since 2007 but is now due to become apparent after 29 April 2012, the final, extended, date for completion of destruction of the Russian and US stockpiles.

  I say "more single-mindedly" advisedly, because of the possibility that the OPCW will have to revive, alongside its permanent NPV functions, its time-limited functions of verifying the complete destruction of stocks and keeping CW storage and destruction facilities under inspection until then. This could occur in either of two eventualities, which one might call the "Albanian" and "Libyan" scenarios respectively: (1) an existing State Party, which had joined the CWC as a non-possessor, belatedly discovering hitherto overlooked CW stocks under its jurisdiction and control; (2) a CW-possessor, hitherto a non-party, deciding to ratify or accede to the CWC. It would be up to the OPCW Executive Council to negotiate CW destruction schedules individually in either eventuality, and the OPCW Technical Secretariat under its Director-General to conduct the necessary verification.

  Up to now no State Party to the CWC has invoked its provision for challenge inspection. A great deal of work, not least from the UK, went into devising acceptable arrangements for "iterative managed access" during the CWC negotiations of the I 980s, and although these were regrettably watered down by the USA in 1991 the challenge inspection is still the most intrusive and politically-charged form of verification in the CWC repertoire. It is essential that the OPCW maintains a state of high readiness to mount a challenge inspection should this provision ever be invoked. Practice challenge inspections should continue after the destruction of existing stocks so that preparations for the eventuality of challenge inspection do not grow rusty.

  The CWC is, of course, not just about verification. The other tasks in which the OPCW is already engaged will continue. These include, for example, promoting national implementation and universality of membership, through regional seminars and in other ways, organising annual meetings of CWC National Authority personnel, encouraging "peaceful uses" technical cooperation, and standing ready to coordinate members' obligations to provide assistance and protection against any incident involving use of CW.

2.  What practical steps should be taken to accelerate universal membership of the BWC?

  Since the Sixth Review Conference there has been much greater transparency over progress towards universal membership of the BWC. Successive Chairmen of the Meetings of States Parties in 2007 and 2008 (Ambassador Masood Khan of Pakistan in 2007, who wrote to the Foreign Ministers of all the remaining non-parties on 29 October 2007, and Ambassador Georgi Avramchev of The Former Yugoslav Republic of Macedonia in 2008) have reported on their correspondence and meetings with the governments of non-parties and have grouped the individual non-parties by perceived likelihood of ratification or accession, from the imminent to the remote. This is a marked improvement on the reliance on an unsystematic practice of occasional demarches, and following up vague rumours of interest in joining the BWC, which used to prevail. (It is to the credit of the UK and other EU members, and of Australia, that the demarches to non-parties had become more systematic in the run-up to the Sixth Review Conference.) Since 2006 clear responsibility has been placed on the Chairmen of the Meetings of States Parties for carrying forward the commitment to promotion of universality, which they do on behalf of the States Parties as a whole.

  Accordingly, any practical steps to accelerate universal membership should be coordinated with the Chairman (Ambassador Marius Grinius of Canada) of the 2009 Meeting of States Parties through the BWC Implementation Support Unit which was tasked in 2006 to assist the successive Chairmen with the promotion of universality.

  Gradually the roster of States Parties to the BWC is approximating more closely to that of the CWC. However the BWC with 163 States Parties is still about 20 short of the CWC despite having been in force 22 years longer (26 March 1975 as against 29 April 1997). It would be highly desirable for this gap to be closed more expeditiously, bringing the BWC roster up into the 180s like the CWC and leaving just the "hard cases" which are party to neither treaty.

  Seven of the eighteen UN member-states which have never signed the BWC and have yet to accede are also fellow-members with the UK in the Commonwealth: Cameroon, Kiribati, Mozambique, Namibia, Nauru, Samoa and Tuvalu. The two of these seven where the accession process was reported as being most advanced in August 2008 were Cameroon and Mozambique. Another Commonwealth member (Canada) has the Chairmanship in 2009 and it would be good if the UK could join Canada in persuading Cameroon and Mozambique to complete their accession processes and the other five Commonwealth members to start theirs. The most likely of these five to accede according to the 2007 Chairman's report was Namibia.

  Of the thirteen "signatories-only" to the BWC, all of them UN member-states, only three are also members of the Commonwealth, with Tanzania reported as further advanced towards ratification than Guyana or Malawi. Again, it would be good if the UK could join Canada in persuading Tanzania to complete its ratification process and Guyana and Malawi to start theirs. The unratified signatures date from 1972 in the case of the two African countries and 1973 in the case of Guyana.

  In my view the most important ratifications to obtain are those of (in alphabetical order) Burma, Egypt, Somalia and Syria; and the most important accessions, those of Angola and Israel. However I am under no illusion as regards the difficulty of persuading the last few "hold-outs" to join. Nor am I aware (although the Committee may be) of any particular leverage which the UK could exert in these cases.

3.  Are there sufficient measures to deal with non-compliance with the BWC?

  No, but in their absence I see the first step towards an enhanced compliance regime for the BWC as being to develop the Accountability Framework recommended in paragraph 8.1 of my Memorandum for the Committee. The key decision here needs to be taken by the Seventh Review Conference in 2011.

  In the medium and longer term I advocate a stronger institutional structure for the BWC, including the possibility of negotiating a BWC-specific regime of verification in the 2020s; but well short of that eventuality I would expect the BWC States Parties on their current upward trajectory to grow in confidence to deal more decisively with compliance issues. They can do this through the existing provisions of the Convention: bilateral and multilateral consultation under Article V, including the contingency mechanism of Consultative Meetings, and the complaint procedure involving the UN Security Council under Article VI.

4.  What would be the likely success of a negotiated verification protocol which did not include the USA? Would this be a useful tool for the BWC and would it be achievable?

  In July/August 2001 the UK and other long-term proponents of the strengthening Protocol then under negotiation in the BWC Ad Hoc Group seem to have concluded that the answer to the first question was none. A Protocol without the USA would not be worth having. At the time, and since, I understand the assessment was made that a Protocol without the USA would also be a Protocol without Russia, China, India, Pakistan or Iran. It may be significant that in 1997 Russia, China, Pakistan and Iran had only ratified the CWC once it was certain that the USA would ratify and thereby be obliged to subject itself to verification. (India's instrument of ratification, like the UK's, had been deposited earlier, in 1996.)

  As for the future, I would expect the pharmaceutical and biotechnology industries in EU and other Western countries to raise strenuous objections to the "burdens" of liability to inspections and compilation and updating of declarations, invoking the perceived inequality of compliance costs vis-a-vis their competitors in the USA and other non-participants in a new verification regime, even if steps had been taken to reassure them against loss of confidential proprietary information (a major issue in 1995-2001). Whether their opposition would be insuperable is impossible to estimate, but I can imagine governmental and parliamentary approval for ratification of a verification protocol which the USA and other key states were unwilling to join would be all the harder to obtain in countries otherwise supportive of verification because of these commercial considerations and the resultant lobbying.

  Whether a negotiated verification protocol would be a useful tool for the BWC with the USA is a question which arises only if the long-established doctrine, held almost as dogma, that the BWC is unverifiable begins to lose its grip on the US political class. My view is that it could be useful, and achievable, but only if designed to fit the BWC's distinctive needs (ie not a straight copy of the CWC) and shaped in recognition of the BWCs long history (ie not assuming tabula rasa). It would need to be constructed around the limitations that (unless much has changed by the 2020s) some of the BWC prohibitions are more evidently verifiable than others, and certainty is seldom, if ever, attainable. Moreover, it should be pursued only after the BWC has exhausted all the latent potential for strengthening its treaty regime from within which is contained within the Convention as it stands and can be tapped through mechanisms developed within its review process, such as those recommended in paragraph 8 of my Memorandum for the Committee as policy points for the Seventh Review Conference to be pursued with high priority. Until then it should remain a long-term aspiration.

5.  How effective is the UK's approach to the control of the expertise necessary to create chemical and biological weapons? Can incidents such the 2001 anthrax attacks in the USA be prevented?

  The key to effectiveness is the vigour with which existing legislation is implemented —the Biological Weapons Act 1974 and the Chemical Weapons Act 1996. Beyond that, and limiting myself to the biological side because the chemical side benefits from a UK National Authority and Advisory Committee, I support raising awareness of the BWC as part of the education of life scientists and others in their social and ethical responsibilities (a cause in which academic researchers in UK universities have been among the most active pioneers in defining the need and laying the foundations); developing codes of conduct (whom the Royal Society has likewise been a pioneer); and the close monitoring of all involved in biodefence research and development, including threat analysis and protective programmes (although I have no reason to suppose that internal controls have failed here as they evidently did at Fort Detrick in 2001). All these are ways in which the UK can demonstrate compliance with its BWC obligations, bearing in mind that Article IV requires national implementation of a stringency and rigour sufficient not just to prohibit but to prevent BW activities occurring anywhere on its territory or anywhere else under its jurisdiction or control, and that this requires constant vigilance.

  I am not complacent about threats from elsewhere but the first responsibility of the UK, having renounced BW absolutely and for all time, is to honour its own obligations and ensure that no one here involves it in a breach of the BWC. The "rogue scientist" scenario implicated in the US anthrax letters is but one potential risk to be guarded against in a state of vigilance which must also extend to the armed forces, industry and the universities, the private and public sectors and non-state actors.

6.  How effective is the Australia Group in preventing export of materials for biological and chemical weapon production?

  I regret I am not competent to answer this question.

7.  Is an informal forum such as the Australia Group the most effective way to go about harmonising export controls?

  I regret I am not competent to answer this question.

8.  What are the prospects of an expansion of the Australia Group regime? Is this desirable?

  I regret I am not competent to answer this question.

9.  Is the Proliferation Security initiative sufficient to intercept smuggling of materials for WMD production or should additional measures be pursued?

  I regret I am not competent to answer this question.

10.  Are the CWC and BWC able to meet the changing threats that will arise as science advances, for example the development of incapacitating biochemical weapons?

  Legally I have no doubt that the prohibitions in the CWC and BWC taken together are sufficiently comprehensive to encompass future developments in science and technology. Both treaties were drafted in conscious recognition of the need to prohibit in advance the sources of future threats. Hence the importance of the General Purpose Criterion which governs both.

  On the subject of incapacitants, I observe that neither the CWC nor the BWC is limited to lethal weapons in terms of prohibitions on development (or production, stockpiling, acquisition, retention or transfer).

  But legal comprehensiveness, on its own, is not enough. Both treaty regimes need to institutionalise collective scrutiny, at frequent intervals, of relevant developments in science and technology (S&T) so that new threats do not take them unawares. There is a need for everyone to be kept aware at the political and diplomatic levels of what is already covered at the legal level. Then they can record, by consensus, agreed understandings of definitions and implications of the two treaties, so as to reassure the world that this legal comprehensiveness is fully understood and reaffirmed. This is an important responsibility of the States Parties, accountable one to another and to the world at large, and drawing on the best S&T expertise at their disposal.

  The CWC has the means to do this through its Scientific Advisory Board which is a statutory organ of the OPCW established, as a formal treaty body, under Article VIII paragraph 21(h) of the CWC. Article VIII paragraph 45 requires the OPCW Director-General in consultation with States Parties to appoint members of this Board (who serve in their individual capacity); moreover, under the same paragraph 45 there is also provision for "temporary working groups of scientific experts to provide recommendations on specific issues" to be established by the Director-General, as appropriate, in consultation with members of the Board. This might be a good way of starting to address international public policy questions over such matters as the development of incapacitants and related classes of agent, preparatory to establishing, with legal and diplomatic input added, the relationship of the so-called "non-lethals" generally (including herbicides and defoilants) to the CWC where uncertainties remain.

  The BWC does not have an equivalent treaty provision; such collective scrutiny as does take place is conducted only once every five years, at Review Conferences, and up to now has been inadequately handled even then because the conferences have not been organised in such a way as to make time for systematic consideration of the S&T papers produced individually by States Parties or national academies of science or NGOs. In paragraph 82 of my Memorandum for the Committee I drew attention to UK thinking since 1979 which has favoured a Group of Experts with a Chairman and a Scientific Secretary, or a Scientific Advisory Panel, in the service of the BWC States Parties as a whole; and I urged that the Seventh Review Conference in 2011 should be encouraged to mandate a Scientific Advisory Panel possibly based on the UK 1979 model for the First Review Conference which would advise the BWC States Parties, preferably through the Annual Meetings of States Parties. This would meet the need, recognised by the UK at least since 2001, for more frequent consideration of S&T developments within the BWC than only at five-year intervals.

  Although not a scientist myself I am aware of a consensus among scientists supportive of the BWC and CWC that, as science advances, convergences of chemistry with the life sciences are likely to erode still further the accepted distinctions between "chemical" and "biological" categories. Conceptually, there is already a "mid-spectrum" area on any spectrum of CBW agents. Does this matter? Overlap of coverage between the two Conventions, for example in the case of toxins, should not be cause for concern. It does not matter if something is banned twice over. It does matter if something noxious falls between the two and is not banned at all. At present (as stated at the beginning of this answer) I have no doubt over the comprehensiveness of legal coverage. But if others do have doubts, and can identify the S&T areas in which doubts arise, then there could be value in bringing together expert groups of BWC and CWC scientists to examine the problem and make agreed recommendations. Comprehensiveness of prohibitions—with nothing noxious falling between the two Conventions —could then be reaffirmed by the respective Review Conferences (or, between Review Conferences, by the CWC Conference of the States Parties in annual regular session and the BWC Annual Meeting of States Parties if the "intersessional" Meetings of States Parties are allowed a wider mandate in 2011).

16 December 2008

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