Limiting the Acquisition and Use of Biological Weapons
by Strengthening the BWC

Issue. The 1972 Biological and Toxin Weapons Convention (BWC) prohibits the development, production, possession, stockpiling, and transfer of biological weapons (BW). It complements the Geneva Protocol banning the use of chemical and biological weapons in war. The BWC has a fundamental weakness, however: it lacks a formal inspection system to ensure that the treaty's 144 member-states are complying with their obligations. Instead, Article VI of the BWC offers only the ineffective option of appealing to the United Nations Security Council in cases of suspected noncompliance.

Since the BWC entered into force over 25 years ago, the number of countries possessing or actively pursuing BW has more than doubled, from five to roughly a dozen today, including some member-states of the Convention. The spread of these weapons has increased the risk that they will be used or will fall into the hands of terrorists. Even if BW agents are not employed deliberately, they could escape from a clandestine production plant and cause a deadly epidemic in the civilian population. In 1979, for example, anthrax bacteria leaked from a BW plant in the Soviet city of Sverdlovsk, triggering a serious outbreak of the disease.

In an effort to strengthen the BWC, member-states to the Convention held a special conference in September 1994. They established the Ad Hoc Group to negotiate a legally binding BWC Protocol that would help to deter violations of the BWC. Over the ensuing six and a half years, the Ad Hoc Group convened periodically in Geneva, although the negotiations progressed at a slow pace. One reason for the difficulty is that the BWC is more difficult to monitor than international treaties controlling nuclear or even chemical weapons (CW), for the following reasons:

• Although CW must be produced in multi-ton quantities, relatively small amounts of BW agents can be militarily significant.
• Whereas chemical warfare agents (such as sarin and mustard gas) have no legitimate uses and can be banned outright, dangerous organisms and toxins have a number of peaceful or defensive applications. In addition to the use of pathogens and toxins to make protective vaccines, several toxins with a history of military development are employed as tools in biomedical research. A few toxins, such as botulinum toxin (Bottox), have therapeutic value in medical practice.
• Legitimate biodefense programs and advanced pharmaceutical facilities have similar capabilities to offensive BW sites, including special ventilation systems, sterilization and decontamination practices, and specialized production equipment. Thus, a legitimate facility may come under suspicion, while a weapons facility could hide behind a seemingly legitimate cover.
• Since the BWC prohibits the possession of biological agents for offensive military ends while permitting their use for peaceful scientific, therapeutic, or defensive purposes, judgments of treaty compliance may hinge on an assessment of intent.
• As technology continues to improve, detecting the clandestine production of BW agents at dual-capable facilities, such as vaccine plants, will become even more difficult. Production facilities could produce militarily significant quantities of a pathogen from a seed culture in a matter of days.
• Advanced biopharmaceutical plants use "clean-in-place" systems that flush fermenters and pipes with chemicals and hot water to kill microorganisms. Such systems could eliminate all traces of a BW agent in a few hours. Thus, even short-notice inspections may not turn up conclusive evidence of illicit production.

Because of these dual-use dilemmas, the BWC Protocol was not designed to be capable of detecting violations with a level of confidence equal to that of treaties controlling nuclear or chemical arms. Instead, the primary aim of the BWC Protocol was to provide greater information about, and access to, dual-capable facilities and activities that could potentially be misdirected for BW purposes. This increased transparency was believed to provide a useful deterrent by complicating the efforts of countries that try to cheat on their BWC obligations.

The monitoring regime contained in the draft BWC Protocol had four basic elements:

1. mandatory declarations of dual-capable activities and facilities that could be easily diverted to develop or produce biological weapons;
2. random transparency visits to declared facilities, without specific evidence of a treaty violation, to ensure that the observed activities are consistent with the facility declaration;
3. consultation procedures to clarify questions that might arise from declarations, including the possibility of on-site visits; and
4. short-notice challenge investigations, requested by a member-state, of a suspect facility, an alleged use of BW, or a suspicious outbreak of disease, to address concerns about possible noncompliance.

The "golden rule" of multilateral arms control is that the rights and obligations established by a treaty must apply equally to all participating states. If the U.S. government wishes to inspect biotechnology sites in countries of proliferation concern, such as Russia and Iran, it must be willing to accept the same types of monitoring activities at plants on U.S. soil. Thus, a key challenge facing the BWC Protocol negotiators in Geneva was to design an on-site inspection system that was intrusive enough to give member-states a reasonable level of confidence in compliance, on the one hand, while reassuring private biotechnology and pharmaceutical companies that their commercial interests would be protected, on the other.

Progress in the BWC Protocol negotiations was hampered by major differences between national positions and skepticism from private industry groups toward the proposed regime. For example, in return for accepting the compliance monitoring provisions, a number of developing countries demanded expanded transfers of technology and liberalization of trade to promote the peaceful uses of biotechnology.

In June 2001, in an effort to move the talks forward, Ad Hoc Group chairman Tibor Tóth compiled a 210-page "composite text" that attempted to finesse many of the outstanding issues. Under the rules of the negotiations, the draft Protocol would have to be adopted by a consensus of all 56 participating countries, any one of which could block approval.

After the Bush administration took office in January 2001, a U.S. government committee undertook a comprehensive review of the draft BWC Protocol and identified 37 serious problems with the chairman's text. In July 2001, the United States decided to reject the draft Protocol and withdraw from the negotiations. U.S. officials concluded that the proposed regime would subject U.S. biotechnology firms to intrusive, burdensome inspections. Companies might be falsely accused of treaty violations and could lose valuable trade secrets to international competitors. In addition, U.S. government biodefense programs would be at risk of foreign espionage by hostile countries seeking to circumvent U.S. defenses. The United States also argued that the BWC Protocol would also be ineffective in stopping would-be proliferators from acquiring a BW arsenal.

Other participating countries countered that the draft Protocol, while flawed, offered a reasonable balance between on-site inspections intrusive enough to increase confidence in compliance and the protection of legitimate national security and trade secrets. But the United States, calling the draft Protocol "unfixable," withdrew from further Ad Hoc Group deliberations.

Initially, some members of the Ad Hoc Group recommended approving the BWC Protocol without the United States. But chairman Tóth decided that it did not make sense to continue the negotiations without the United States, which has one of the world's largest biotechnology industries. Instead, the multilateral Protocol negotiations were suspended, with the possibility of resuming them at a later date when political conditions changed.

The next opportunity for progress came at the Fifth BWC Review Conference, which convened in Geneva from November 19 to December 7, 2001, at a time when anthrax-tainted letters were terrorizing the United States. The meeting was the fifth in a series of BWC review conferences, which are held at five-year intervals to assess the implementation of the Convention and to devise measures for strengthening it. In attendance were 91 of the 144 states parties to the BWC. Many of the member-states had hoped that the Fifth Review Conference would approve a formal mechanism for checking compliance with the BWC, but that was not the case.

Given the collapse of the Ad Hoc Group negotiations, a key objective of the Fifth Review Conference was to develop alternative strategies for strengthening the BWC. At the outset of the conference, the head of the U.S. delegation, Undersecretary of State for Arms Control and International Security John Bolton, accused six states of violating the BWC: Iran, Iraq, Libya, and North Korea (all parties to the Convention); Syria (which has signed but not ratified); and Sudan (which has neither signed nor ratified). Bolton insisted that the Conference's Final Declaration refer to the problem of noncompliance, but several countries, led by Iran, objected to the U.S.-proposed language.

As an alternative to the BWC Protocol, which Bolton stated bluntly was "dead, and is not going to be resurrected," the United States offered a package of nine measures that could be implemented through national legislation. The U.S.-proposed measures include:

• criminalizing the acquisition and possession of biological weapons;
• restricting access to dangerous microbial pathogens and toxins;
• supporting the World Health Organization's global system for disease surveillance and control;
• establishing an ethical code of conduct for scientists working with dangerous pathogens;
• contributing to an international team that would provide assistance in fighting outbreaks of infectious disease; and
• strengthening an existing UN mechanism for conducting field investigations of alleged biological weapons use so that BWC member states would be required to accept investigations on their territory.

Options:

• Option 1: Continue the Ad Hoc Group Negotiations Without the U.S. (Counterarguments)
• Option 2: Adopt the Package of Alternative Measures Proposed by the U.S. (Counterarguments)

Further Reading:

	University of Bradford, The Biological and Toxin Weapons Convention (BTWC) Database
	University of Bradford, "BWC Review Conference Final Documents"
	University of Bradford, "Preventing Biological Warfare: Strengthening the Biological and Toxin Weapons Convention (BTWC)"
	Ambassador Tibor Toth, Written Testimony to U.S. House of Representatives
	Address by the Chairman of the Ad Hoc Group Ambassador Tibor Toth
	Barbara Hatch Rosenberg, "Allergic Reaction: Washington's Response to the BWC Protocol"
	Jonathan B. Tucker, "Another Chance to Join In Is Wasted"
	Seth Brugger, "BWC Conference Suspended After Controversial End," Arms Control Today, January/February 2002, pp. 34-35
	Jenni Rissanen, "BWC Review Conference Report," Disarmament Diplomacy
	U.S. Department of State, "U.S. Says Biological Weapons Protocol 'Would Not Achieve Its Objectives'"
	VERTIC, "News Release: Bioweapons Conference Fails," December 7, 2001
	VERTIC, Oliver Meier, "A Biological Weapons Protocol: Verification Lite?"
	Michael Barletta, Amy Sands, and Jonathan Tucker, "Keeping Track of Anthrax: The Case for a Biosecurity Convention"
	CNS, CBW Resource Page
	Chemical and Biological Arms Control Institute CBACI)
	WMD 411 Bibliography, Biological Weapons, Multilateral Treaties and International Nonproliferation Regimes

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