Global Security: Non-Proliferation - Foreign Affairs Committee Contents


Further submission from Daniel Feakes, Harvard Sussex Programme on Chemical and Biological Weapons, University of Sussex

Requests for notes on additional points

  1.  The Committee would be grateful for any further information that you could provide regarding the Al-Qaeda laboratory discovered at Kandahar, mentioned in Dr Jones's evidence and by Sir John Stanley when he asked Dr Jones "Can you tell us, from your background in government, what factors were driving al-Qaeda to believe that their laboratory work might end up with a usable biological weapon, which they could use against those parts of the world and individual countries of whose culture and behaviour they disapproved? From which sources were they able to get the basic expertise that they presumably required to get their laboratory going in the first place?". (Question 57)

  This question was directed to Dr Jones and there is little that I can add except to suggest reading pages 29-39 of Milton Leitenberg's Assessing the Biological Weapons and Bioterrorism Threat on the subject of the suspected BW laboratory at Kandahar.[398]

  2.  The Committee would be grateful for further details of the UK chemical company Mr Feakes mentioned that was fined for an export "made either last year or the year before". This was in response to a question asked by Sir John Stanley regarding controls of dual-use items exported from the EU. (Question 75-76)

  The company to which I was referring was Avocado Research Chemicals Ltd (ARC Ltd) which was fined £600 and ordered to pay £100 costs on 27 July 2007. In July 2005, ARC Ltd exported 100g of 2-diisopropylaminoethyl chloride hydrochloride (also known as DCH) and 10g of hafnium, with a total value of around £60. DCH can be used as a pre-cursor to VX nerve gas. Hafnium can be used in the production of nuclear control rods. Both substances were exported without a necessary license to a broker in Egypt, a non-signatory to the CWC. A press release on the Revenue and Customs Prosecutions Office website at http://www.rcpo.gov.uk/rcpo/pressoffice/news/20070727_1.shtml gives more details.

  3.  The Chairman requested further information on the following aspects of the Chemical Weapons Convention:

a.  Whether the Organisation for the Prohibition of Chemical Weapons possesses all the possible and necessary means of enforcement in relation to the Chemical Weapons Convention? What impact does the USA's Presidential Veto have on the authority of the inspection regime?

  The CWC itself does not specify in great detail provisions for its enforcement. Article VIII allows for the Executive Council to take action when considering "doubts or concerns regarding compliance and cases of non compliance." Action can include consulting with the states parties involved and requesting the situation to be redressed within a specified time. If further action is required, the Council can inform all states parties of the issue, bring it to the attention of the Conference of the States Parties and make recommendations to the Conference regarding measures to redress the situation and to ensure compliance. In cases of "particular gravity and urgency" the Council can bring the issue directly to the attention of the UN General Assembly and Security Council. CWC Article XII on "Measures to Redress a Situation and to Ensure Compliance, Including Sanctions" states 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" (eg 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. One way in which the enforcement of both the BWC and CWC could be strengthened would be through the adoption of a new international treaty criminalising acts of chemical and biological warfare including preparatory actions, as proposed by the Harvard Sussex Program.[399] Such a measure would be targeted on individuals rather than states.

  I am not clear what is being referred to by the term "the USA's Presidential Veto". I am assuming that the Chairman is referring to Condition 18 of the US Senate's resolution of ratification for the CWC which was mirrored in a declaration submitted along with the USA's instrument of ratification and also appears in the US CWC implementing legislation. Under this condition, no sample taken by OPCW inspectors in the US can be transferred for analysis to any laboratory outside the country. This is controversial as the OPCW had originally been expected to transfer samples to its network of designated laboratories. It is possible that the Chairman might also be referring to the "national security exception" in the US implementing legislation which allows the President to deny a request to inspect any facility in the US in cases where he "determines that the inspection may pose a threat to the national security interests of the United States." The US Permanent Representative at the time stated his belief that the provisions would not harm CWC verification in the US. However, while that might be the case, such provisions set a precedent and have been copied by other CWC states parties. They thus represents a potential weakening of the treaty's verification regime although, to date and to my knowledge, they have not caused any practical problems.

b.  Many signatories are yet to legislate in order to implement the Chemical Weapons Convention and some are yet to even designate a National Authority. What does this indicate about their intentions to comply with their obligations?

  According to the most recent report from the OPCW, 96 per cent of states parties have fulfilled the requirement to "designate or establish" a National Authority. For the future, it will be 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. The OPCW and states parties can support National Authorities, but prime responsibility rests with their own national governments. Only 68 percent of states parties have submitted to the OPCW information on their national implementing legislation and only 45 per cent have legislation which covers "all key areas". The low level of effective national implementation reflected in these figures is of serious concern. However, these figures may mask an even more serious situation as 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". The UK should encourage the OPCW to turn its attention to supporting comprehensive national CWC implementation, including implementation of the "general purpose criterion". In addition, the focus of the OPCW should not only be on legislation, important as that is. Legislation is only the first step in what should be seen as a process of national implementation which must also include systems for monitoring compliance and enforcement.[400]

  For many states parties, CWC implementation is not a high priority falling behind poverty, disease, famine, drought, instability and civil war, or a more straightforward lack of resources or of parliamentary attention. In the vast majority of cases, the lack of implementing legislation does not indicate an intention to violate the fundamental provisions of the CWC, rather it is a symptom of the low priority given to the CWC. Countering this requires ongoing long-term outreach by the OPCW and states parties to ministers, officials and parliamentarians in the recalcitrant states parties. There are examples of good practice among states parties with regard to national implementation and these should be shared widely. In the UK, it would be helpful if the annual report submitted to Parliament by the CWC National Authority was considered in more detail, either in debate or in committee. Similar governmental and parliamentary attention to UK implementation of the BWC would also be welcome.

c.  Is the UK doing enough to assist in the destruction of chemical weapons stocks and aiding other States to implement the Chemical Weapons Convention? (Question 79)

  The UK is contributing to CW destruction in Russia through the G8 Global Partnership programme. UK assistance is focused on the Shchuch'ye CW destruction facility in the Urals which holds 1.9 million artillery and rocket munitions, containing some 5,500 tonnes of the nerve agents sarin, soman and VR. The Ministry of Defence has placed contracts worth over £44 million at Shchuch'ye on behalf of the UK and other international donors. The UK has also announced assistance to the construction of another destruction facility, at Kizner in the Udmurt Republic. This is a significant contribution to the Russian CW destruction programme and, while more funding would be welcome, it must be remembered that CW possessor states bear ultimate responsibility for destruction. To my knowledge the UK is not contributing to destruction activities in any other remaining declared CW possessor states (India, Libya and the US).

  The UK has always spoken strongly in support of activities to improve national implementation. The 2004 annual report of the UK CWC National Authority stated that "the UK offers, where possible, both technical and legal expertise to any requesting States Party." It has also participated in many OPCW regional meetings offering UK experiences of CWC implementation. One aspect which the UK could perhaps promote more actively is its National Authority Advisory Committee made up of industrialists, experts and scientists to advise BERR and ensure UK compliance with the CWC and UK legislation. To my knowledge, the UK is the only CWC state party to have established such a committee but it plays a key role in facilitating contacts between government, industry and academia which are likely to become more important in future years.

  4.  Sir John Stanley requested a note on the status of defoliants and herbicides under the Chemical Weapons Convention and whether it would be permissible for these to be used as they were by the USA during the Vietnam War. He asked further for a view on whether "if it is merely in the preamble, is it a policy development that the British Government should press for when we come to the next review?". (Question 82-83)

  Nicholas Sims has already submitted to the Committee a note on this subject with which I wholeheartedly agree and I do not feel the need to add anything further to his note.

Additional Questions for all witnesses

1.  Once existing stocks are destroyed what will be the role of the Organisation for the Prohibition of Chemical Weapons and the Chemical Weapons Convention?

  The role of the OPCW and CWC will certainly not disappear with the destruction of existing stocks. Partly this is because there are likely additional (undeclared) stockpiles in countries which have not yet joined the CWC. More importantly it is because destroying existing stocks is only one part of preventing chemical warfare. The other, potentially more difficult, part is ensuring that chemical weapons do not re-emerge in the future. Chemical weapons cannot be "un-invented" and there is a risk that legitimate activities could be diverted for malign purposes. The other major goal of the OPCW and CWC is therefore to prevent the re-emergence of CW. The OPCW refers to this objective as "non-proliferation" although it might be better thought of as "non-diversion" since non-proliferation implies the spread of actual weapons and the term has associations with nuclear weapons which are unhelpful in a CW context. Non-diversion in contrast emphasizes that the main threat is likely to stem from the diversion of legitimate activities such as industrial applications, defensive protection programmes or other "dual use" technology. The OPCW will therefore need to focus much more on verification within the chemical industry, particularly at the so-called Other Chemical Production Facilities (OCPFs), and on monitoring advances in science and technology. This will increase the importance of effective national implementation (legislation, monitoring and enforcement) and of the scientific reviews undertaken by states parties and the OPCW's own Scientific Advisory Board.

2.  What practical steps should be taken to accelerate universal membership of the Biological and Toxic Weapons Convention?

  The BWC now has 163 states parties and 13 other signatory states. A total of 19 states have neither signed nor ratified the treaty. This compares poorly with the much younger CWC which has 186 states parties and four signatory states with only five that have neither signed nor ratified. The BWC lacks a secretariat to undertake outreach activities to non-states parties on its behalf and what activities have taken place have traditionally been undertaken by the governments of the three depositary states (Russia, the UK and the US). The Sixth BWC Review Conference in 2006 agreed a slightly more ambitious programme of activities with national points of contact and the empowerment of the chairs of the annual meetings to coordinate universalization activities. This programme should be reinforced by strengthening the role of the chairs and by mandating the three-person Implementation Support Unit (ISU) set up by the states parties to conduct outreach events such as seminars and bilateral visits to non-states parties. Additional effort should be made to engage parliamentarians in non-states parties. Such events could be coordinated with related organizations such as the OPCW and CTBTO. Existing outreach work by civil society should also be built upon, such as the successful work of the BioWeapons Prevention Project (BWPP) in Africa. Local civil society groups are able to sustain an ongoing dialogue with government officials and parliamentarians which foreign governments or international organizations cannot.

3.  Are there sufficient measures to deal with non-compliance with the Biological and Toxic Weapons Convention?

  No, the BWC has an underdeveloped compliance regime, particularly in comparison to the CWC. Existing BWC provisions include bilateral and multilateral consultations under Article V, including the possibility of a formal consultative meeting as held in 1997 over Cuban allegations against the US, and the complaint procedure involving the UN Security Council under Article VI. One way in which both the BWC and CWC could be strengthened is through measures to criminalise—at an individual level—chemical and biological weapons as proposed in the initiative of the Harvard Sussex Program mentioned on page 2 of this submission. Since 9/11 many countries have invested heavily in biodefence programmes and concerns have been raised that such programmes could serve as "cover" for the development of biological weapons in violation of the BWC. The lack of transparency of such programmes raises the risk of a "biological arms race" as countries try to keep pace with what they think their rivals are developing. One way to address this problem is by strengthening the BWC Confidence-Building Measures (CBMs). The UK is a particularly diligent submitter of CBMs but other states parties are not, and the CBMs have not been collectively reviewed by BWC states parties for many years. Another complementary way to address the problem would be through improved national compliance review processes with information shared at the annual BWC meetings. Such a proposal can be found in a recent issue of Nature.[401]

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 Biological and Toxic Weapons Convention and would it be achievable?

  A return to the BWC verification protocol negotiations of the 1990s is extremely unlikely. The topic of verification has been off the agenda in BWC meetings since 2001. With the new administration in the US, it is possible that verification may re-emerge in a BWC context, possibly at the Seventh Review Conference in 2011. At the time of the verification protocol, it was argued that if the US did not support it, then various other key countries such as Russia, China, India, Pakistan and Iran would also not join. Such a protocol would likely only include countries such as Australia, Canada and member states of the EU and would therefore not really address proliferation concerns. The draft BWC Protocol of the 1990s was largely modelled on the CWC and, as my answer to question 1 demonstrates, CWC verification will soon be needing to be conceptualised differently as the focus shifts from stockpile destruction to non-diversion. The BWC is already in a "post-disarmament" situation and, given advances in the life sciences, any scheme for verification of the BWC would likely look very different to that developed in the 1990s. In the short-term, continued focus on national implementation (meaning legislation, monitoring and enforcement) offers the best chance for progress, with discussion of new verification approaches as a medium-term goal.

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

  The UK's approach rests on the Biological Weapons Act 1974, the Chemical Weapons Act 1996, the Export Control Act 2002 and the relevant sections of the Anti-Terrorism, Crime and Security Act 2001. These acts need to be firmly implemented but, aside from the CWA the implementation of which is the subject of an annual report and which established a National Authority Advisory Committee, there is little publicly available information on which to assess their effectiveness. In recent years, the amount of information provided in the annual report has also been reduced. Beyond legislation, in November 2007 the Foreign and Commonwealth Office introduced the Academic Technology Approval Scheme (ATAS) to replace the Voluntary Vetting Scheme (VVS). ATAS is designed to ensure that non-EU students applying to study certain subjects at postgraduate level at UK universities do not have links to WMD programmes. Additional initiatives which should be supported include awareness-raising about the BWC and CWC among scientists and students, the development of codes of conduct and the oversight of biodefence research activities. On the latter, the Defence Science and Technology Laboratory at Porton Down has apparently issued new guidance on its BWC compliance review process to ensure its research complies with the provisions of the BWC. Without intrusive and impractical regulation and surveillance it is probably impossible to be totally confident that incidents like the 2001 US anthrax attacks can be prevented. However, a vigorously implemented national web of measures from legislation and regulation down to ethics courses for students and codes of conduct covering all relevant sectors (civil, military, academic, industrial, public, private etc) would provide a strong safeguard.

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

  The secretive nature of the Australia Group makes it extremely difficult to offer any definitive assessment of its effectiveness using open sources. According to a 2002 report by the US Government Accountability Office "the Australia Group has helped raise the costs of attaining a chemical weapons capability by cutting off sources of supply and forcing proliferators to use less efficient means to produce chemical weapons."[402] The GAO report states that multilateral export control regimes have helped set international standards for limiting exports of sensitive items and helped stem proliferation in particular countries of concern. However, the report also states that not all regime participants share complete and timely information, that some countries are slow in implementing regime decisions, that there are differences in how regime decisions are implemented and that some participants do not have effective export control systems in place. Much attention has focused on export controls since 2002 so hopefully some of these problems have been rectified.

  However, without accurate information and assurance that the Government has criteria in place by which to measure the effectiveness of the Australia Group, it is impossible to credibly assess the Group's effectiveness. The Committee could usefully inquire into how the Government assesses the effectiveness of the multilateral export control regimes, particularly in an age of ever increasing diffusion of technology and know-how. On this last point, a recent US National Academies report declared that "the system of export controls on the international flow of science, technology, and commerce is fundamentally broken" and it went on to state that "the current list-based systems are unwieldy, slow, difficult to administer rationally, and are overly proscriptive given global developments in science and technology."[403]

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

  The informal nature of the Australia Group means that there are no explicit tools to enforce participants' compliance with their commitments. Unlike the CWC which has enforcement provisions and institutions able to assist states parties in meeting their obligations, the Australia Group relies largely on the fact that its participants all profess to share a common approach to CBW proliferation. Countries are only allowed to join with the agreement of all existing participants and provided they are in good standing with their BWC and CWC obligations. However, while the Australia Group can set standards and share information and best practice, it cannot oblige states to implement its decisions and there are examples of participants taking many months to implement Group decisions and of a lack of harmonization with regard to how decisions are actually implemented. Therefore, while the Australia Group is useful, it is essential to also have legally-binding obligations with which states must comply, such as those under the BWC, CWC and UNSCR 1540. In this way, states can be held to account and those which experience difficulties can be identified and offered assistance.

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

  I am not clear if this question refers to geographical expansion, expansion of the control lists or expansion of the Group's mechanisms. Geographically, the Group has been expanding gradually over the course of its existence to reach its current total of 40 participating countries plus the European Commission. A further significant expansion of the Group seems unlikely as its main function is to bring together the world's primary manufacturers, exporters and transshippers of controlled items. There are of course countries in these categories not in the Australia Group (eg China and India) but these are members of the Non-Aligned Movement and have been strident critics of the Group since its inception, and particularly since the completion of the CWC in 1992. It would be quite a reversal for such countries to join. However, the Group does conduct outreach activities to such countries and, particularly since the adoption of UN Security Council resolution 1540 in April 2004, many more countries (even critics of the Australia Group) have implemented their own national export control systems, sometimes even using the Group's control lists. The most likely scenario is therefore an incremental geographical expansion in the Group, coupled with more extensive outreach activities to non-participants.

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

  Like the Australia Group, the PSI conducts much of its work in secret and it is therefore difficult to come to any conclusions about its sufficiency. In 2005, the former US Secretary of State Condoleezza Rice said that some PSI partners had "quietly cooperated" on 11 successful interdiction efforts but gave few additional details. PSI partners stress that their activities are in support of their BWC and CWC obligations so it might be helpful for them to provide more information to non-PSI partners in the BWC and CWC. Transfers of chemical or biological weapons would be violations of the respective treaties and, if discovered by PSI partners, should therefore be discussed and dealt with within the BWC and CWC. In 2005, the International Maritime Organization adopted a protocol to the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation designed to create a legally-binding prohibition on the transfer of weapons of mass destruction. Entry into force of this Protocol would strengthen PSI and also serve to give it added legitimacy in the eyes of its critics.

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

  Both the BWC and CWC were specifically designed to be able to keep pace with developments in science and technology. Both include a general purpose criterion which means that their prohibitions apply to intentions rather than to particular chemical or biological agents. There are thus no loopholes in the scope of either treaty's prohibitions. However, loopholes can emerge during the implementation of the treaties and through disagreements between states parties. Institutionally, the CWC seems best prepared to meet the challenges posed by scientific advances as it possesses a Scientific Advisory Board and an annual Conference of the States Parties with decision-making powers. However, the recommendations of the SAB are not always heeded by the states parties and the Second CWC Review Conference clearly demonstrated that not all states parties acknowledge the challenges. It should be an urgent task to endow the BWC with similar scientific review mechanisms as proposed by the Royal Society, among others,[404] and to give its annual Meetings of States Parties more power. More fundamentally, both treaties need to be aware of, and prepared for, the growing convergence of chemistry and biology. Emerging disciplines such as synthetic biology and new developments in, for example, "non-lethal" weapons, straddle both treaties and raise the possibility of gaps developing in the anti-CBW regime. While it is traditionally hard for international regimes and organizations to cooperate effectively, the scientific convergence of chemistry and biology requires it. In recent years, the BWC has become more outward-looking and inclusive, while the CWC has continued to focus on the detail of implementing its complex verification regime. The OPCW and its member states now need to learn from the example of the BWC and engage more actively with other international organizations, industry, scientists, academia and civil society. The UK Government should do all it can to encourage and facilitate synergy between the BWC and CWC and with other related sectors.

4 February 2009












398   Milton Leitenberg, Assessing the Biological Weapons and Bioterrorism Threat, United States Army War College, Strategic Studies Institute, December 2005, http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm?PubID=639. Back

399   "A Draft Convention to Prohibit Biological and Chemical Weapons Under International Criminal Law", The CBW Conventions Bulletin, no. 42 (December 1998), pp. 1-2, http://www.sussex.ac.uk/Units/spru/hsp/documents/cbwcb42.pdf. Back

400   Daniel Feakes, Filippa Lentzos, Caitriona McLeish and Angela Woodward, "Making Legislation Work", 15 May 2007, www.lse.ac.uk/collections/BIOS/biosecurity/pdf/MLW_Briefing_Note.pdf. Back

401   Matthew Meselson, "Vast biosecurity expenditures require better oversight and monitoring", Nature, 457, pp. 258-261 (15 January 2009) | doi:10.1038/457258a; Published online 14 January 2009. Back

402   US, General Accounting Office, Nonproliferation: Strategy Needed to Strengthen Multilateral Export Control Regimes, GAO-03-43 (October 2002), www.gao.gov/cgi-bin/getrpt?GAO-03-43. Back

403   National Research Council, Beyond "Fortress America": National Security Controls on Science and Technology in a Globalized World, National Academies Press, 2009, http://www.nap.edu/catalog.php?record_id=12567. Back

404   UK, Royal Society, "The individual and collective roles scientists can play in strengthening international treaties", Policy Document 05/04 (April 2004), http://royalsociety.org/displaypagedoc.asp?id=11499. Back


 
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