The Meaning of ‘Emergency Assistance’

[Cross-posted from The Trench]

 

Origins and negotiation of Article VII of the Biological and Toxin Weapons Convention

A new research report

 

Article VII of the Biological and Toxin Weapons Convention (BTWC) belongs to the more obscure provisions. It reads as follows:

Each State Party to this Convention undertakes to provide or support assistance, in accordance with the United Nations Charter, to any Party to the Convention which so requests, if the Security Council decides that such Party has been exposed to danger as a result of violation of the Convention.

Since the treaty’s entry into force in 1975, states parties hardly looked at the one-paragraph article. Up to the 7th Review Conference (2011) the only additional understandings and agreements concerned general implementation procedures and possible roles of appropriate international organisations, including the World Health Organisation (WHO), the World Organisation for Animal Health (OIE) and the Food and Agricultural Organisation (FAO), as well as coordination functions for the United Nations (UN). Attention to the article increased markedly at the 7th Review Conference, a consequence of a heightened perceived worldwide risk from emerging and re-emerging diseases, fears of outbreaks resulting from biosecurity and -safety lapses in high-containment laboratories, concerns about scientific and technological advances in the life sciences that could be misused for hostile purposes, potential terrorist or criminal interest in highly contagious pathogens, and so on. The Ebola outbreak in West Africa between 2013–16 and subsequent evaluation of the international response raised concerns among the BTWC states parties about how the international community might respond to a deliberate disease outbreak, whether as a consequence of an act of war or terrorism.

These trends have led to an affirmation of the humanitarian dimension of Article VII. As Nicholas Sims noted in his study of the treaty’s early functioning (The Diplomacy of Biological Disarmament. 1988, p. 24): ‘Statements made in the UN, with an eye on future references to the negotiating history of the convention, indicate that this article is generally understood to refer to humanitarian, not military, assistance.’ With nothing seemingly contradicting today’s humanitarian imperative, most attention has so far gone to the organisation and coordination of international response to the release of a highly infectious biological weapon (BW).

Questions about triggering Article VII

Much less understood is how Article VII can be activated. There are no procedures; there has not been any determination who should be involved in the process. Which are the (possible) roles for the BTWC Implementation Support Unit (ISU), the treaty’s three depositary states (Russia, United Kingdom and United States), the UN Secretary-General (UNSG), or the UNSC is a question that remains unanswered. It should be added in this context that some actors or available tools are of much more recent origin and were consequently not envisaged during the treaty negotiation. The mandate for the ISU was decided at the 6th Review Conference (2006). The UNSG’s mechanism to investigate allegations of chemical and biological weapons (CBW) use received endorsement from the UNSC and the UN General Assembly (UNGA) in 1988 and has since then been strengthened. Through the review process, BTWC states parties have elaborated a consultative mechanism under Article V to address compliance concerns.

Moreover, given the humanitarian framework guiding today’s debates on implementing Article VII, from the perspective of triggering the provision there are several dissonant elements. The article has its origins in a 1968 working paper by the United Kingdom proposing a separate treaty banning biological warfare. The language underwent several reiterations over the next three years and at one point disappeared entirely from the draft convention, only to resurface in its current formulation just before the conclusion of the negotiations. The different versions of the article left traces from earlier intentions and understandings, meaning that the intent behind certain phrases that may be uncertain or appear confusing today. This is particularly the case for the following:

  • provide or support assistance: what is the nature of the assistance, humanitarian, military, or any other type?
  • in accordance with the United Nations Charter: why does the article include a reference to the UN Charter, particularly since the Charter allows for punitive actions and even resort to military force under Chapter VII? In addition, if the assistance is humanitarian, as assumed today, what prompted the reference to the UN Charter? The word ‘humanitarian’ features only once in the founding text (Chapter I, Article 1, 3); the words ‘aid’ or ‘assistance’ (in the sense of humanitarian or non-military aid) are absent. Furthermore, while the UN’s mandate includes the promotion of arms control and disarmament, nothing in the Charter makes it responsible for monitoring treaty compliance or addressing treaty violations. Besides Article VII, only Articles V and VI refer to the Charter or UNSC. The context concerns the resolution of any problems relating to the BTWC’s objective, way of implementation, or breaches of the convention.
    Article V raises the possibility of organising bi- and multilateral consultations and cooperation ‘through appropriate international procedures within the framework of the United Nations and in accordance with its Charter’ in case direct interaction between the parties concerned is impossible or unproductive. Overall the provision is vague. Review conferences have tried to clarify it, in particular with regard to the convening of a consultative meeting. Article VI grants a state party the right to lodge a complaint with the UNSC if it believes that another state party has breached its treaty obligations. Furthermore, should the UNSC initiate an investigation, all states parties undertake to cooperate with such investigation. However, states parties have not elaborated on the references to the UN Charter and the UNSC. They have also not answered whether there is or should be any linkage between either Articles V or VI and Article VII.
  • if the Security Council decides that such Party has been exposed to danger: why is there a requirement for Security Council action if assistance can be provided under basic humanitarian principles? On what basis will the UNSC make this decision? The Third and Fourth Review Conferences (1991 and 1996) noted under both Articles V and VI the UNSG’s investigative mechanism as endorsed in UNSC Resolution 620 (1988) and UNGA Resolution 45/57 (1990) and ‘to consult, at the request of any State Party, regarding allegations of use or threat of use of bacteriological (biological) or toxin weapons and to cooperate fully with the United Nations Secretary-General in carrying out such investigations’. Later review conferences refer back to this text and have not elaborated any further on the references to the UN Charter or the UNSC. The UNSC, as its name indicates, bears primary responsibility for the maintenance of international peace and security (Chapter V, Article 24, 1). Logic therefore suggests that Article VII applies exclusively to the deliberate use of a pathogen or toxin as a weapon. This would thus exclude a situation of a country facing an outbreak after an accidental release of a disease-causing agent from a neighbour’s secret BW research or production facility (similar to the anthrax outbreak near Sverdlovsk in 1979). In other words, according to this interpretation Article VII refers to an act of war, even though the BTWC lacks references to ‘use’ in both its title and Article I.
  • as a result of violation of the Convention: does this clause imply violation of any part of the BTWC? If affirmative, this could include illicit weapon programmes or outbreaks resulting from illicit activities. How would this square with the interpretation that Article VII only refers to an act of war?
    Furthermore, only states parties can violate the BTWC, which implies that dangers arising from other actors—non-states parties (signatory or non-signatory states) or non-state actors—could not be the subject of Security Council action, and therefore not of state party assistance.

Aim of the research paper

In November 2016, in the margins of the 8th Review Conference of the BTWC, the Fondation pour la recherche stratégique (FRS) and UN Institute for Disarmament Research (UNIDIR) held a tabletop exercise (TTX) to understand better the elements that would have to be in place to trigger Article VII and the consequences such action may have on the organisation of international assistance. The TTX revealed that decision-making was severely hampered because of the article’s lack of clarity, uncertainty about possible procedures and their consequences on the process as a whole, and the types of actors that could be called upon (e.g. UNSG, ISU, depositary states, etc.).

Discussions at a workshop on ‘Article VII of the BWC and the UN System’, held in New York on 12–13 December 2017 as part of the Project on strengthening global mechanisms and capacities for responding to deliberate use of biological agents, also touched upon the specific responsibilities of UN organs following activation of Article VII. The question was raised whether there was any relevancy in trying to recover the negotiators’ original intentions. In reply, UN officials said that since the implications of triggering Article VII had never been studied and no procedures have ever been put in place, following a request the first task for the UN would be to study legal and negotiation documents to determine which types of action might be possible and which roles the UNSC and UNSG might play.

This research paper traces the article’s negotiation history between 1968 and 1971. During those three years negotiations took some sharp turns, and draft treaty texts were dropped and replaced by alternatives that framed BW control in radically different ways. In the final two months of negotiation, some degree of synthesis between different approaches took place. With respect to Article VII, when Morocco introduced an amendment to reinsert language based on the British proposal of August 1971, the context had completely changed, not in the least because the original draft provisions banning methods of biological warfare and a mechanism to investigate allegations of BW use had been dropped. Whereas Article IV in the original British draft convention formed part of the fabric to prevent biological warfare, the later Article VII had no obvious connections to the BTWC’s core prohibitions in Articles I – III. It also lacked direct or explicit links to Articles V and VI.

Moreover, the humanitarian intent, systematically affirmed by British government officials and diplomats, became blurred at times, especially after an addition to a draft UNSC resolution that was to accompany the BTWC made explicit reference to Article 51 of the UN Charter on individual and collective self-defence. It shifted the focus away from aiding the victim of a biological attack to possible assistance in countering the aggressor.

Download the full research report

 

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15 Comments on “The Meaning of ‘Emergency Assistance’”

  1. El roam says:

    Interesting post ( as usual ) but it seems , that such research , lacks the ” Universal jurisdiction ” view or angel . For , when the SC is sitting under chapter VII , the whole world or all the states which are UN members , should comply with its resolutions ( generally speaking ) .Surly when we deal with the sphere of ” jus cogens ” . Let’s take analogy from article 13 to the ” Rome statute ” :

    This article , forms universal jurisdiction for the ICC . That is to say , that the SC , can refer a situation ( for investigation ) to the prosecutor , even if the state referred is not a party member to the Rome statute . In accordance ( like in the case of Libya , and Sudan ) The pre trial chamber , issues arrest warrants , addressed in fact to all states ( even if not party to the Rome statute ) for handing over the person , to the ICC . And why ?? Because we deal with jus cogens . Because it is CIL , to prevent and deal with atrocities ( like genocide ) .

    The same should go , for such acute situation of war , or outbreak of disease due to toxic materials of whatever terror attack and alike .

    So , being party member , wouldn’t change much . And just worth to mention : The UN charter , clearly assert , that the SC ,should clearly deal , with promoting and guarding humanitarian rights all over the world .

    I shall cite later some ….

    Thanks

  2. El roam says:

    Just citing from the UN charter , article 1 (3 ) for example :

    ” To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion….. ”

    So , humanitarian aspects , are one of the main concerns or principles of the UN , and here concerning the SC , I quote article 24 (2) :

    In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations…..

    So , one of the principles or purpose of the UN as mentioned , is promoting and taking care of humanitarian aspects . And The SC should stick to it then as mentioned as one of the principles of the UN .

    And here for example concerning the Universal jurisdiction of the SC , I quote article 43 :

    All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

    So we read clearly : All members of the United Nations . They are all obliged to comply ( agreement is not a constituting element of course , but rather having more procedural aspect ) .

    Thanks

  3. El roam says:

    And here , one may read , the arrest warrant , issued by the pre trial chamber of the ICC , to Omar Al Bashir ( president of Sudan ) despite the fact that Sudan is of course , not party member to the Rome statute , but , it is simply that the situation has been referred at the time , to the prosecutor , by the SC , here :

    https://www.icc-cpi.int/CourtRecords/CR2009_01514.PDF

    Thanks

  4. El roam says:

    just correcting it :

    Issued by the pre trial chamber , against Omar Al Bashir , and not as stated : to Omar ….

    Thanks

  5. El roam says:

    One may read here , in this regard , about the obligation to prevent genocide , obligation of third party state , not involved of course , and may draw certain analogy concerning the situations , described in that post , here :

    https://www.ejiltalk.org/ignoring-the-elephant-in-the-room-in-mothers-of-srebrenica-is-the-obligation-to-prevent-genocide-jus-cogens/

    http://opiniojuris.org/2016/04/06/daesh-and-the-duty-to-prevent-genocide/

    Thanks

  6. El roam says:

    Comment of mine , has entered a state of moderation , due to the links , so I shall separate both links , here :

    One may read here , in this regard , about the obligation to prevent genocide , obligation of third party state , not involved of course , and may draw certain analogy concerning the situations , described in that post , here :

    https://www.ejiltalk.org/ignoring-the-elephant-in-the-room-in-mothers-of-srebrenica-is-the-obligation-to-prevent-genocide-jus-cogens/

  7. JP Zanders says:

    Thank you for your comments and references, which seem relevant to another project I am working on.

    However, I fear that you have misread the purpose of the article. First, this is not a legal study, but a historical analysis to help diplomats in Geneva understand the meaning of certain parts of an article in the Biological and Toxin Weapons Convention (BTWC) that was originally proposed 50 years ago and has never been invoked. The article was introduced as part of a ban on USE of biological weapons; it was resurrected at the end of the negotiation process in August 1971 when the draft treaty was no longer about banning use (laws of war), but about prohibiting acquisition and possession of biological weapons (disarmament law). As a consequence, the original ideas for an investigative mechanism (under UN Secretary-General responsibility) and procedures for victim assistance disappeared from the draft treaty.

    Furthermore, the UK in its original proposal clearly indicated that ‘assistance’ was intended to be humanitarian. At a later stage, a direct reference to UN Charter Article 51 was inserted in a draft UN Security Council resolution that was to accompany the treaty’s entry into force. This caused confusion about the term ‘assistance’ (eventually leading the formally neutral countries Austria and Switzerland to submit legal reservations against the article).

    And most importantly, regarding the arguments you have advanced, with its original proposal the UK sought to explicitly avoid the UNSC regarding the investigation phase and make UNSC action on the allegation automatic, i.e. not subject to ‘consideration’ (and hence subject to a possible veto). It sought to separate fact-finding from political judgement (the same root issue which is now bedevilling the OPCW with regard to chemical weapon use in Syria).

    Today, parties to the BTWC wish to operationalise Article VII in case of BW use by a country or terrorists. Crises such as the Ebola outbreak in West Africa have prompted action. However, there is no explicit procedure for triggering the provision. And nobody really knows what mechanisms to operationalise. There is no international organisation equivalent to the OPCW to prepare contingency plans.

    A tabletop exercise we organised in November 2016 has shown that governments avoid invoking the provision because it may imply that the disease outbreak is deliberate even before the investigation is carried out. In case of a conflict, this could exacerbate the crisis. (The TTX report is here: http://www.the-trench.org/wp-content/uploads/2013/06/201707-FRS-BTWC-Article-VII-TTX-report.pdf.)

    In summary, the paper seeks to clarify the original meaning of the article, something the UN would have to do should the UNSC of the UNSG ever receive a request under the provision.

    The full text of the study (38 pages) is here: http://www.the-trench.org/wp-content/uploads/2018/08/Meaning-of-Emergency-Assistance-Final.pdf
    (The link was included in the blog post.)

    • El roam says:

      JP zanderes ,

      OK , the original meaning indeed , in order to better understand the purpose and the right interpretation of this article , this days if needed , as written by you finally in the comment :

      Today, parties to the BTWC wish to operationalise Article VII in case of BW use by a country or terrorists. Crises such as the Ebola outbreak in West Africa have prompted action. However, there is no explicit procedure for triggering the provision. And nobody really knows what mechanisms to operationalise. There is no international organisation equivalent to the OPCW to prepare contingency plans.

      End of quotation :

      Those are the right methods for interpretating the law ( if there is certain ambiguity or unclarity ) .

      Even so , issues of ” jus cogens ” are always relevant , were always relevant , once and today . Issues of ” jus cogens ” are even beyond any interpretation . Can one say that terrorist attack , with chemichal or biological weapons and having huge amounts of victims , is not to be percieved or at least associated with issues of ” jus cogens ” ?? Suppose , that France is attacked so , can Germany for example , claims , that it is not her business at all ?? With or without being party to the convention ??

      Thanks

    • El roam says:

      Just correcting :

      Can Germany for example , claim that it is not its business at all ?? and not of course :

      ” can Germany for example , claims , that it is not her business at all ”

      Thanks

    • El roam says:

      And just concerning procedure :

      As I have suggested in my first comment , procedure , should not be confused with the essential law or practice or obligation . The procedure , does only create the path , procedural path , for fulfilling legal obligations . Not to confuse them both .

      As analogy , one may take again , the ICC . An arrest warrant , issued against Omar Al Bashir , despite the fact , that Sudan is not a state party to the ” Rome statute ” . But moreover :

      If he would travel ( see link ) to a state , also not party to the Rome statute , the court shall issue a request , to that state ( Indonesia in our case ) to hand him over to the ICC , once he steps in or enters the country .

      Here , requesting Indonesia , to arrest him in case of :

      https://www.icc-cpi.int/CourtRecords/CR2015_03993.PDF

      Thanks

  8. El roam says:

    And just one clarification :

    What is described above by me , is the right legal objective and correct legal analysis , yet , that is not to say , that in reality , states follow it actually . For example , South Africa , in 2015 ( state party to the Rome statue ) didn’t cooperate actually with the arrest warrant had been issued by the ICC , and letting so Omar Al Bashir ( apparently accidentally as had been claimed by them ) escape arrest , after visiting the state during the AU summit .

    Thanks

  9. JP Zanders says:

    I still fail to see how jus cogens applies to the organisation of emergency / humanitarian assistance in the case of a disease outbreak (whether natural or deliberate).

    • El roam says:

      JP Zanders ,

      I was rather reffering to terrorist attack . Concerning outbreak , well , you will have to elaborate it further .This is because , It is not manifestly , prima facie related ( unless clear and conclusive resolution of the SC , sitting under chapter VII is made ) .

      I was only stating in my comments , very important aspect ( Universal jurisdiction , and jus cogens ) gone missing it seems , and trying to point into that important and very relevant direction.

      Thanks

  10. El roam says:

    By the way Zanders, you may find great interest here I guess :

    https://news.un.org/en/story/2018/08/1017352


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