Understanding the Dutch export licence requirement for publishing life science research

[Cross-posted from The Trench]

During the Meeting of Experts of states parties to the Biological and Toxin Weapons Convention (BTWC) last August, the Netherlands organised or co-hosted three side events relating to safeguarding the life sciences. A significant incident, in which the Dutch virologist Ron Fouchier and his team were required to obtain an export licence to publish their research on how they had mutated H5N1 into an aerosol-transmissible avian influenza virus variant, undeniably informed the need to clarify national policies and approaches to biorisk management. A month earlier the Appellate Court had annulled the ruling by a lower court in support of the government position on procedural grounds. Does this annulment validate the Dutch government’s position or does it imply that the whole debate about the publication of so-called dual-use research in the life sciences is back to square one? Moreover, in the meantime the debate had evolved from a terrorist proliferation risk to one of health security in which the ethics and utility of this type of gain-of-function research stand central. In other words, do biosafety worries warrant biosecurity policy measures, such as the imposition of non-proliferation export controls?

Some background to the Netherlands decision

In September 2011 the European Scientific Working Group on Influenza (ESWI) held its fourth conference in Malta. Europe and the world were then confronting an outbreak of avian influenza caused by the H5N1 virus. Its rapid spread among birds over long distances caused governments worldwide to order drastic measures in efforts to stem the epidemic. Over 500 humans (representing some 60% of all people who had contracted the disease) had already died, but all deaths thus far had resulted from direct interaction with fowl and not from human-to-human transmission.

In Malta Ron Fouchier announced that he and his team at the Erasmus Medical Center in Rotterdam had succeeded in transforming H5N1 into a viable aerosol virus. According one conference report he applied rather colourful language: his team ‘mutated the hell out of H5N1’. The discovery that it required as few as three single mutations to gain the ability to latch onto cells in the nasal and tracheal passageways, he described as ‘very bad news’. Transmission among ferrets, a mammal that offers the best laboratory model to study influenza in humans, still did not occur easily when, in Fouchier’s recorded words, ‘someone finally convinced me to do something really, really stupid’. They provoked two further mutations by transferring mutated viruses from the nose of one sick ferret to that of a healthy one, in the process creating the viable aerosol virus.

Initial articles on the gain-of-function research did not suggest any link with bioterrorism, but sometimes carried dramatic titles evoking cataclysmic consequences reminiscent of the 1918 Spanish flu epidemic that killed tens of millions worldwide. However, Fouchier’s dramatic speech caught the attention of counter-terrorism officials on both sides of the Atlantic. When he offered his research results for publication in Science, the  US National Science Advisory Board for Biosecurity (NSABB) intervened and eventually accepted publication provided some methodological details were removed from the text. (A parallel paper on H5N1 submitted to Nature by a team led by US scientist Yoshihiro Kawaoka fared a similar fate.) NSABB considered the biosecurity risks outweighed any scientific merit in this type of research: rogue laboratory researchers or terrorists might wish to unleash the deadly virus on the human race to devastating effect.

NSABB’s intervention caused controversy with one side calling it censorship and the other side up in arms that publication had been authorised at all. In the United States, self-publication on the internet was not legally restricted at the time. In the Netherlands too the affair had caught the attention of authorities, many of whom wanted to block publication outright, but lacked the appropriate legal tools to do so. The only way to appraise the risks for malfeasance posed by information in the research manuscript was to implement non-proliferation export controls, which according to European Union regulations must be enforced for applied (but not fundamental) research in the life sciences.

The Netherlands decision caused shockwaves among European life scientists. After initial defiance, Fouchier and his team eventually applied for and received an export licence. Otherwise he might have faced up to six years imprisonment and $102,000 in fines.  The Erasmus Medical Center subsequently took the government to court to have the principle of export licences for scientific research overturned. On 20 September 2013 the District Court of North Holland ruled in favour of the government, but on 15 July 2015 the Appellate Court in Amsterdam annulled the ruling, saying that the case was without merit in view of the application and granting of an export licence. Put differently, the lower court should have never taken up the case. As presented during the BTWC Meeting of Experts in August 2015, the Dutch Government believes that the juridical process vindicated its approach to research with potential dual-use implications.

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Inserting useful tools into the BTWC

[Cross-posted from The Trench]

Since that fateful year of 2001, when the Ad Hoc Group (AHG) negotiations on a legally binding protocol to strengthen the Biological and Toxin Weapons Convention (BTWC) collapsed and the 5th Review Conference failed following an attempt by the Bush Administration to terminate the AHG mandate, states parties have been trying to develop useful activities to keep the ailing treaty alive.

A lot of what has been going on since then I would qualify as Beschäftigungstherapie—you know, engaging in games, energising dexterity and developing practical skills to strengthen and motivate an ailing patient. It worked to a large extent. But like any treatment continuing for too long, its efficacy dwindles and the patient begins to question why he has to go to yet another session.

And then there are moments when inspired creativity flickers. Moments when one senses that some tangible, meaningful progress could be made. Such a moment occurred on 7 August, when the BTWC Implementation Support Unit (ISU) and the UN Institute for Disarmament Research (UNIDIR) organised a one-day workshop on ‘Implications and lessons learned from the Ebola virus disease outbreak for the Biological Weapons Convention’ at the Palais des Nations in Geneva. The theme was closely linked to the item of Article VII of the BTWC on the agenda of next week’s Meeting of Experts. A packed room, overwhelmingly from missions to the UN, joined in the discussions. The event was structured around a research project run by the US Departments of State and Health and Human Services. Investigators are looking into how the recent experiences with the Ebola epidemic in West Africa have challenged existing understanding of international assistance and how such assistance might be affected if the outbreak had been determined to be a biological weapon (BW) attack. The researchers will present their report at the December Meeting of States Parties (MSP).

Based on close analysis of events in West Africa and the evolving mobilisation of international assistance, the researchers designed a scenario around an Ebola epidemic caused by non-state actors. Outbreak characteristics included the impossibility to link the virus strain epidemiologically to earlier cases and the location of some of the affected people in areas not under government control. Furthermore, in the opening stages the deliberate nature of the outbreak was not entirely clear. The researchers sent the scenario to government officials, intergovernmental and other international or non-governmental organisations (NGOs) involved with health or assistance and relief, financial donors and other concerned parties. The survey yielded preliminary results regarding the opportunities and issues for NGOs, safety and security of medical staff, command and control, and confusion about the involvement of militaries or peacekeepers.

These issues informed the two breakout sessions, each of which covered three themes. I participated in the one on military engagements and facilitated the one on the role of international cooperation and capacity-building efforts. The notes below are personal impressions rather than a comprehensive report on the discussions. They highlight certain issues as they pertain to the BTWC.

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The Geneva Protocol at 90, Part 1: Discovery of the dual-use dilemma

[Cross-posted from The Trench.]

Today, 17 June, the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare celebrates its 90th anniversary. Short as the document is, it laid the foundations for the 1972 Biological and Toxin Weapons Convention (BTWC) and the 1993 Chemical Weapons Convention (CWC). How critical that document was to disarmament—the total elimination of a given weapon category—the global community can only appreciate through the growing frustration with the lack of progress in the elimination of nuclear weapons. As the negotiators of the Geneva Protocol came to understand in 1925, without a global ban on use, no other weapon-related activities could legally be curtailed.

This three-part analysis retraces the origins of the Geneva Protocol and identifies its implications for disarmament.

Part 1 focusses on the discovery of the dual-use dilemma posed by toxic chemicals and the conclusions the negotiators drew from their new insights.

Part 2 analyses how the negotiators resolved the dual-use dilemma in meetings preparing the disarmament conference of the 1930s, and in the process came up with solutions that make up the pillars of disarmament today.

Part 3 reflects on how the Geneva Protocol experience may point to a tangible nuclear disarmament strategy in view of the failure of the 2015 review conference of the Nuclear Non-Proliferation Treaty (NPT) and the difficulties in reaching a satisfactory agreement with Iran to shed more transparency on its nuclear activities.

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On suicide, riot control and ‘other peaceful purposes’ under the BTWC

In the Greater Manchester area a 16-year old boy stands trial for having tried to buy 10 milligrams of abrin on the dark web. Abrin is a toxin found in the seeds of Abrus precatorius, otherwise known as jequirity or rosary pea.

UK authorities arrested him in February and have charged him under the Biological Weapons Act 1974 and Criminal Attempts Act 1981. In particular, the charge refers to the General Purpose Criterion (GPC) as framed in Article I of the Biological and Toxin Weapons Convention (BTWC) and transposed into British criminal law. As reported in The Guardian on 19 February:

The full charge against the boy is that between 24 December 2014 and 16 February 2015 he attempted to acquire a biological toxin or agent of a type and in a quantity that has no justification or prophylactic, protective or other peaceful purpose, namely Abrin.

The maximum sentence for the offence is life imprisonment.

During the trial the boy’s defence argued that he sought to buy the toxin to commit suicide. Under those circumstances, possession of abrin could technically have been for ‘peaceful purposes’, so the defence argued to have the charges dropped.

Judge Khalid Jamil Qureshi dismissed the claim:

The question is whether suicide is peaceful. Suicide, by definition, is an act of violence, so the defence will not be applicable.

By which he opposes ‘peaceful’ to ‘violence’, rather than the idea of ‘war’ or ‘armed conflict’ more prevalent in the disarmament communities and intended by the BTWC negotiators.

This is the second recent case—the other one was Bond versus the United States, which went twice to the US Supreme Court—in which a domestic criminal trial causes a judge to interpret key terms in a national law that originated with a disarmament treaty. Especially since there has been a growing debate on the understanding of ‘compliance’ with disarmament and arms control treaties and an emphasis on national implementation of such treaties to counter terrorist threats, these domestic court cases raise questions about how domestic judgements may begin to affect common understanding of treaty obligations and expectations. Depending on the legal system, judgements may be precedent-setting. However, whichever may be the case, the interpretations apply to the country in question only. Divergencies about compliance expectations over time are therefore not beyond imagination.

The law enforcement debate

One area where domestic legal interpretation of concepts derived from multilateral disarmament treaties may have profound impact is that of law enforcement. The BTWC and the Chemical Weapons Convention (CWC) proscribe the use of infective agents, toxins and toxic chemicals as methods of warfare. The CWC, however, does not consider riot control agents, toxic chemicals that by definition cease to have an impact on the target as soon as exposure stops, to be chemical weapons if used for law enforcement purposes (including domestic riot control). The BTWC contains no similar provision.

Last October I wrote a blog contribution on the use of pepper spray in new naval anti-piracy tactics. My main question then was how the authority for the release of the agent under the CWC could be determined. Under the proposed scenarios, nationals from different parties to the CWC operating outside the territory of their own country would likely be involved in any such chain of decisions. Moreover, private security companies might be in charge of safeguarding ships threatened by pirates. Some comments to the blog contribution (posted to Arms Control Law) pointed out that under different international treaties, including the Law of the Sea, authority to take action against pirates is clearer. So, the matter becomes an issue of fragmentation in international law.

In my subsidiary question I wondered whether the use of pepper spray (which involves a toxin) could fall under ‘other peaceful purposes’ in Article I of the BTWC. Indeed, the BTWC does not specifically list law enforcement as an authorised purpose. To the best of my knowledge, law enforcement has never been listed as an additional understanding of the rest category of ‘other peaceful purposes’. The issue is less clear and government officials tend to avoid answering that question.

However, in light of Judge Qureshi’s argument, the use of violence (rather than the application as a method of warfare) contradicts the ‘peaceful purpose’ criterion. So, applying a toxin to deny pirates access to a ship would amount to a violation of the BTWC. If this is the case, then what to think of the experiments in India to deploy drones armed with pepper spray for crowd control? Under the CWC, perhaps yes, but the BTWC?

Keep thinking. Keep thinking.


The future of confidence building in biological arms control

By Gunnar Jeremias

[Presentation at the civil society event commemorating the 40th anniversary of the entry into force of the Biological and Toxin Weapons Convention, 30 March 2015 – Cross-posted from The Trench.]

Distinguished representatives, colleagues, let me first stress that I am very honoured to be invited to contribute to this event. May I thank the organisers and sponsors very much,

In the next 15 minutes I would like to draw a picture of possible developments of confidence building in the BWC. To that end I will briefly introduce the term confidence and its sources, and will then mainly concentrate on transparency as one of these sources. Finally I am going to consider the possible involvement of new actors and mechanisms in confidence building.

Confidence is a term that is used throughout from the level of private arrangements, via societal and economic contexts (contracts), but of course also in the field of international relations. The main function of agreements is, besides the ‘technical’ overcoming of specified problems, the fostering of mutual trust in compliance with treaty obligations. Obviously there is a central role of information, but neither will it be possible to access all relevant information, nor is the judgement of such information—the decision if it is sufficient to build confidence—a scientific exercise. This is even more evident, since many parties will have different understandings of compliance. Accordingly confidence can hardly be measured in a binary system, but will rather be perceived as gradually changing when trust in compliant behaviour is growing or decreasing.

Trying to get an idea about confidence in the BWC regime one would basically have to measure that level in every single member state. On a general level it can be stated that whenever there exists an arrangement, a contract or an international treaty there was obviously a ground level of confidence when it was agreed. On the other hand, the stakeholders must have seen the need for a mutual system to enhance confidence in compliance.

Confidence is, however, not only fostered by knowledge enabling to make qualified guesses on the level of implementation of the prohibitive obligations, but also by factors that have no direct link with the technical requirements of arms control. Among these factors are the perception of parties as being subject to a just treatment and the perception that those parties with the greatest BW-relevant capacities are really committed to the treaty obligations.

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If the success of a treaty is an indicator for the level of confidence, we might face a satisfactory level of confidence in the BWC. There were offensive BW programmes before the BWC came into force; and we have then seen offensive programmes while it was in force, among them a very large one. But now we have since 25 years not witnessed a BW programme (the ricin-programme in the non-BWC member Syria can be discussed as a case, however).

That BW programmes were seldom developed after the coming into force of the BWC might rather be a result of the limited military value of BW (still we don’t know much about the scenarios in which the Soviet bio weapons could have been used). Today there are reasons to believe that there are no offensive programmes anywhere in the world. It is certainly worth learning about military defence programmes, but it is also true that few states have the means or the interest to run critical programs. Hence, biological arms control is today, as far as we know, preventive arms control. However, the idea that there are no BW programmes is based on the unorganised information gathering we have to rely on.

With the possible absence of illicit military activities, confidence building does in many cases concentrate on civil academic or commercial activities with dual-use potential and will try to identify growing misuse potentials and qualified questions about applications and actors (this touches the debate about dual-use research of concern (DURC) that others have touched upon in more detail earlier today).

The widespread dual-use phenomenon and the involvement of many civil facilities is a characteristic of biological arms control, which is probably more distinctive here than in any other arms control field. At least since a number of years, if not back to the early 1970s, the potential for misuse of civil technology and civil research is in the focus, even if the buzzwords biosafety and biosecurity popped up only in the recent years. The trend that the direction of technology diffusion is nowadays rather from civil innovation systems to the military sphere has been known in the bio field for many years.

Besides the fast development of the ground laying technology, it’s methods and scientific capabilities, the spread of capacities to ever more states is a major change to the early 1970s. Back then only in relatively few states in northern America, Western and Eastern Europe and in the USSR relevant capacities in biotechnology were present. Today biotechnology with its imminent and widely spread dual-use potential is a global multi-billion dollar business, still fast growing in many places – and still not developed in many others. This spread might be reason for concerns from an arms control perspective, but the amalgamation with economic interests can also not be rationalised away.

With a much smaller geographical spread of biotechnology and with the block confrontation of the Cold War one of the obligations of the BWC was possibly less central than it appears today: the obligation for technical cooperation under article X. However, there can’t be confidence without the perception of a just treatment of all members as partners with equal chances in the indigenous development of one of the most important industries of our time. For the development of confidence on this provision information plays again a central role, although the questions raised in this context differ from those concerning articles I and III. But here as well transparency is quintessential in helping to base the debate on empirical data.

That there is a problem with transparency in the BWC on different levels is not a secret, really. Given that transparency is main source for confidence (for both the prohibitive and obligatory provisions of the treaty) the look on confidence mainly deals with the question of how to enhance transparency.

Types and sources of transparency

One can think of transparency in different types and as being fed by different sources.

Types of transparency can be defined by its different ranges, namely greater or smaller groups of actors that have access to the information in a transparency system. Starting with the greatest possible extent, public transparency reaches the public as a whole, while in inter-state transparency systems only the parties of a treaty are provided with information. The CBM mechanism is an example for such a practice (although some states make their CBMs transparent for the public sphere). I don’t want to talk much about CBMs. We all know that the number of states participating in this mechanism is not satisfactory. I hope, however, that during this talk it will become clear why they should play a central role in the BWC’s future. A third type of transparency besides the public and inter-governmental transparency, is the exclusive access to information by just one actor (typically a state) when a phenomenon is being made transparent by (and only for) that single actor.

Since transparency is (or should be) a practical exercise, it is maybe helpful to concentrate on the different technical means that are applied in the three different transparency systems. I propose to differentiate in between national technical means (NTMs), international technical means (ITMs), and public technical means (PTMs).

First, NTMs are technical means under the exclusive ownership of single states, hence also the gathered information is exclusively with that state. Their use leads to the single actor type of transparency.

Second, ITMs (not established in the BWC regime) are those technical means that States Parties allow treaty organisations to use.

Third, PTMs are the technical means that rely on open sources and are used to the end to release the gathered information to the public sphere. Their rage has grown significantly over the past years. The digital revolution allows access to a broad range of information. For example:

  • Real time epidemiologic information
  • Information on biotechnological capacities, products, and research projects
  • Free (including commercial) satellite images – here is also a link to the reconnaissance revolution in the last 20 years
  • Patent databases
  • Trade data (dual-use goods and biotech end-products)
  • Scientific publications (PubMed and other databases)
  • Digital meta information about companies and research facilities
  • Exchanges on social media
  • … This list can be expanded any further;
  • And besides the use of this universe of existing data that can be identified and filtered from Big Data it is also thinkable that innovative ways to measure environmental data with newly developed technology can contribute to transparency.

The use of these PTMs produces no proof, but will enable actors to ask qualified questions.

Just three examples for questions that occured when working on our current project on the identification of compliance relevant parameters that can be accessed via open sources:

  • Why are the security perimeters of a certain facility with known dual-use character being modernised (information accessed by google.earth images)?
  • Why do we see certain relevant research activities at institutes that are linked to the military information accessed by PubMed or turn up in google and twitter?
  • How can the consumption of unusual amounts of biological growth media in a county be explained (information accessed via UN COMTRADE database)?

It is hence no verification, but it is much more than what is actually being done in the regime.

In an ideal world the mentioned information sources would be accesses at the widest possible extent as ITMs to contribute to a verification mechanism. In the BWC, however, we had to realise that ITMs will not be implemented in the foreseeable future. Since confidence building by enhancing transparency is quintessential for the function of the regime other actors will have to play the role that in other cases is allocated to International Organisations.

I would like to briefly come back to a more theoretical reasoning of transparency to answer the question which actors could/should do so. Transparency can also be described by looking at the direction of the distribution of information: Information can be provided actively by states or biotech stakeholders, or they can be extracted out of the (mostly) electronic/digital universe of information. This can be called passive transparency.

Active transparency

As parties, states would be at the forefront of stakeholders who would be asked to actively provide information to enhance confidence. In the BWC the related mechanism are the CBMs. But also other actors can contribute to active transparency building. For a look into the future it might be helpful to look into the roots of the regime: Already back in 1964 the Pugwash CBW-group had initiated a voluntary inspection mechanism. Participating were commercial and academic facilities from eastern and western European facilities (indeed only one larger non-western biotech production facility in Yugoslavia was involved). The project was later continued by the then newly founded Stockholm International Peace Research Institute (SIPRI). The aim of the overall project was to prove that on-site verification is possible without endangering commercial secrets. A lesson that was learned but seems to have been forgotten is that commercial actors could get involved in active transparency building, also on a voluntary base.

Passive transparency

The passive extraction of relevant information is also not a new idea—neither in other contexts nor in the BWC. When the BWC was negotiated in the early 1970s the just mentioned SIPRI was also innovative in the development of passive transparency tools, and demonstrated the value of Open Source information already back then. By the application of innovative investigative tools the SIPRI researchers already showed that even non-governmental actors could gather relevant information. In 1971 the mechanism was meant as proof that these methods could contribute to a then debated verification mechanism.

And indeed, when it came to the question which would be the best confidence building mechanism, the development of a formal verification mechanism based on on-site inspections was for many years seen as the silver bullet—possibly, it still is. But there is obviously the need to identify alternatives.

In this context it has to be stated that 40 years after SIPRI’s engagement the possibilities to enhance passive transparency by the use of the above mentioned open source information has grown exponentially. Some states may have the capacities to use these information in Open-source intelligence (OSINT) procedures, but many others will not be able to do so on a global scale. This is the reason why often international organisations are installed for information gathering. This is also not to come here (please surprise me at the Review Conference).

Civil society actors should in a best case scenario be a corrective and/or undertake parallel independent control activities. NGOs could be watchdogs, but not the only actors in the production of transparency. However, there are also cases as in the landmines and cluster munition regimes where in the absence of a formal verification system civil society actors do what has been called “Quasi verification” by a number of States Parties. In biological arms control they might also be able (or be enabled) to play a more central role, as long as no information system becomes institutionalised.

The current development of capacities in applying PTMs in passive transparency building might be a “technical” environment that fosters new formats and civil society monitoring networks. With the idea that relevant information will be recognised in a regime regardless by what type of actor it was gathered, NGOs could play a greater role in confidence building in biological arms control.

However, this also means that states should do as much as they can to proof their commitment with the treaty provisions. And that means first of all, better participation in the CBM mechanism. May I add that I don’t think that any state would lose anything if its CBM submission is being made public.

If every actor—state, private, and civil society—improves confidence by enhancing transparency through the use of the specific means at its disposal and therewith contributes to an open, evidence-based debate about compliance relevant factors, I am optimistic that biological arms control will remain successfully based on the BWC for at least another 40 years.

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What future for biological disarmament?

By Nicholas A. Sims

[Presentation at the civil society event commemorating the 40th anniversary of the entry into force of the Biological and Toxin Weapons Convention, 30 March 2015 – Cross-posted from The Trench]

In posing the question this way I am making two points. First, the BWC is a disarmament treaty before anything else. It has other functions, certainly, but its disarmament function is primordial. Second, it is not guaranteed a bright future. It could find itself trapped in an acceptance of immobility, an empty ritual exchange of predictable arguments but no forward movement. It risks becoming marginalised as the world moves on. Let us all resolve to make sure that does not happen.

I am conscious of a strong sense of obligation to the people who brought the BWC into being. Last year I took part in a witness seminar for an inter-university research project on the prehistory and early history of the BWC when we surviving ‘old hands’ shared our recollections of its context, the politics and personalities of the time, and this brought home to me how few of the pioneers are still living. We owe it to the pioneers to reinvigorate this disarmament treaty and steer it towards a brighter future. Some of us have been trying to do this for a long time. We used to pursue this goal under the name of clarification, then reinforcement, then strengthening. Whichever word we use, the goal is the same. It is to make the BWC work better, to build on its strengths and remedy its main weakness. I will identify its main weakness in a few minutes, but first let us examine its strengths.

The strengths of the BWC

The strengths of the BWC lie in its comprehensive scope and its essential logic. The deliberate infliction of disease, whatever the disease, is an affront to humanity which almost all governments have renounced, comprehensively, as even a distant military option.   They are saying “We don’t have BW but we could be vulnerable to BW attack by other people so we want to be sure that no one else has BW either.” That is what I mean by the essential logic. I first heard it expressed in 1969 when the UK initiative which led to the BWC was gathering support. It struck me as good common sense then and it still does now. It required those who at the time still possessed BW stockpiles to renounce and destroy them and everyone else to make their renunciation permanent. What the BWC does is fix that renunciation of BW in a lasting treaty relationship of legal equality. In that treaty relationship common sense further requires the parties to reassure one another that they are honouring their obligations; and to find ways of demonstrating that fact.   They owe that much to one another as treaty partners. Some would say they owe that to humanity as a whole.

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In 1986 there was some worry lest there were some novel micro-organisms or toxins or bioregulators not covered by the legal scope of the Convention. But this worry was misplaced. Once the comprehensiveness of the BWC’s legal scope was reasserted, the concern shifted back – and it remains rightly a concern – to whether there might occur changes in the balance of incentives and disincentives for a State Party to break out of the BWC’s treaty constraints or for a non-party to attack. That is one reason why relevant developments in science and technology (S&T) require close and continuous scrutiny.   These S&T reviews, like regular assessments of the Convention’s health more generally, are made easier by its comprehensive scope and the legal equality of obligations on all its treaty partners.

The main weakness

The main weakness of the BWC lies: where? Not so much, now, in its definitional imprecision or lack of universality or even its famous institutional deficit, because all of those are, albeit very slowly, on their way to being alleviated. No, it lies in the area of reassurance. That is the perennial gap at the heart of the BWC. It flows from the failure of the States Parties, building on the text as it stands, to derive a common understanding as to how to reassure one another and demonstrate that their shared commitment to biological disarmament governs what they are doing and what they allow to be done.   Without it, doubts and suspicions persist and erode the credibility of the Convention as they stay unresolved.

Some attempts have been made to remedy this weakness. Individual States Parties have come up with concepts of an accountability framework, or peer review, or compliance assessment, or transparency measures, or a compliance framework, or fuller use of Article V. A few of these concepts have developed into joint initiatives. These initiatives are to be commended and they invite emulation. None of them makes an exclusive claim.   And none of them on its own bridges the gap. But instead of calling them distractions their critics should come up with better initiatives of their own. At some stage there may be a collective decision on how to integrate these patchwork initiatives into the BWC treaty regime. But first they need to be encouraged and developed, and this can best be done in a conceptual discussion of compliance, what it is and how it can be demonstrated. Such a conceptual discussion of compliance needs to be open-ended, without preconditions. I do urge the States Parties at the Eighth Review Conference next year to revive this proposal and give its implementation high priority and a serious allocation of resources in shaping the constructive evolution of the BWC.

This is only one of several proposals which the Seventh Review Conference failed to adopt but are just as relevant now and challenge the Eighth Review Conference to shape a better future for biological disarmament. In this category I would also put the many good ideas for reshaping the CBMs into a set of measures that really do build confidence, a modest expansion of the Implementation Support Unit to match a realistic mandate, an Open-Ended Working Group to improve on the present arrangement for review of developments in S&T, and the restructuring of the whole intersessional process to make it robust and effective. If time allowed I could add more. We all have our wish-lists. But nothing is more important than the effort to find solutions to the problem of reassurance: to develop a common understanding and effective action to remedy this main weakness of the Convention.

The perspective of 1975-2015 and the next 40 years

I want to spend the remaining few minutes on the perspective of 1975-2015 and the next 40 years. I can assure you as one who was there to witness entry into force on 26 March 1975 that it had felt like a long time arriving. There had been many disagreements and obstacles to overcome in the seven years since the BWC had first been conceived.

And talking of disagreements and obstacles, those of us who took part in the 25th anniversary event at the other end of the Palais could not have imagined how much grimmer the outlook would be when we returned for the 30th. What happened between 2000 and 2005 set back the constructive evolution of the BWC by several years.   The same could be said of the period 1981-1986. But neither setback was fatal. And all credit to those who kept the faith and championed the Convention in those bleak years for the BWC, when it seemed to be under attack and needed all the champions it could find. The challenge now is to reinforce the Convention so it can survive whatever may assail it in the next 40 years and remain the preferred instrument of biological disarmament, reliably effective in performing that function.

At the entry into force ceremony in London which I attended David Ennals presided. He was the UK Minister of State responsible for arms control and disarmament.   The tone of his speech, and of those made by Nikolai Lunkov and Ronald Spiers on behalf of the co-depositaries sitting beside him, was forward-looking and optimistic. It was an uplifting occasion. I will quote just one sentence. David Ennals said: “From today over 40 states are parties to this Convention, and have both renounced this entire class of weapons and undertaken to prevent their future development by appropriate measures. [emphasis added]”

That’s the point. What are the “appropriate measures” to prevent BW over the next 40 years?

There has long been a fruitless argument over whether states or non-state actors present the greater risk. My answer is: no one knows. Surely everything we do to reinforce the BWC must be designed to guard against any BW threat, from whatever source it may come. That is the other side of the comprehensive scope and essential logic that I see as the strengths of the BWC.

Only constant vigilance will suffice. And it follows from this that renunciation of BW is only the beginning. The Article IV obligation to prohibit and prevent implies continual reinforcement of the defences against BW. Renunciation and prohibition on their own are not enough. The “appropriate measures” applied in both national and international implementation of the BWC must always be measured against the more stringent criterion of prevention.

Let me give a few examples. If governments really value the BWC they will be readier to restrict risky gain-of-function (GOF) experiments on dangerous pathogens and to regulate all dual-use research of concern (DURC).   GOF and DURC are not banned by the BWC, but the BWC can only retain credibility if there is a parallel regime of research with an emphasis on comprehensive risk analysis and the precautionary principle.   National implementation and codes of conduct must cover all government programmes so there are no suspicions of rogue agencies or individuals taking an unhealthy interest in BW. Everyone must share their latest knowledge for the S&T reviews crucial to the application of the BWC remaining up to date. And there should be a renewed emphasis on international cooperation for the prevention of disease – the only “peaceful purposes” application of scientific discoveries in biology singled out for mention in Article X – as well as on capacity-building and planning for emergency responses to outbreaks of disease when they occur. Such precautionary approaches should increase the disincentives to BW, which is why they have attracted attention under Article VII, as well as being evidently worth pursuing in their own right.

These are just a few examples. To identify and then apply “appropriate measures” and build them into the practice of every State Party, responding to fresh perceptions of BW threat and S&T developments as they emerge, offers a full agenda for the next 40 years.

Finally, a few words about trajectories for the BWC as a distinct treaty regime.

Trajectories for the BWC

In my book THE FUTURE OF BIOLOGICAL DISARMAMENT (London: Routledge, 2009), I outlined possible trajectories good and bad. I would like to outline what is now my preferred trajectory for the BWC, assuming its States Parties can overcome the temptation to fall back on what I called an acceptance of immobility, an empty ritual exchange of predictable statements. My preferred trajectory has three elements: (1) that the BWC should pursue its own programme for the reinforcement of biological disarmament, by developing “appropriate measures” and applying them; (2) that it should steer towards a functional, not legal, convergence with the CWC, especially through close cooperation in the conduct of S&T reviews, to the benefit of both as distinct treaty regimes; (3) that it should finally fit into the wider universe of disarmament treaties so long awaited, when the gaping void in that universe is eventually filled by an NWC to complement the BWC and CWC. From where I stand nuclear weapons are the glaring anomaly in the disarmament enterprise, and nuclear disarmament must be pursued by all governments with reinvigorated commitment.

Whatever our preferred trajectory, there is much that we unofficial ‘friends of the Convention’ can do: to know the history and maintain a long-term perspective, to report and analyse the current diplomacy of the BWC meeting by meeting, to feed in ideas and propose acceptable language, to track the textual intricacies of the intersessional process (hard work, I assure you), and always to encourage the States Parties to move the BWC forward. For above all we look to the States Parties to make the BWC work better. Those of you who represent them should count it a privilege to be in a position here in Geneva to engage your energies and diplomatic skills in this process.   The next 40 years are bound to contain setbacks and in confronting them you should bear in mind that when the BWC was at its most unpopular in 1981-1986 and 2001-2005 it was only the determined efforts of diplomats and others that brought it through those bleak years. Those same determined efforts will be needed to overcome whatever crises the next 40 years may bring. Otherwise the answer to my question “What future for biological disarmament?” will not be a comfortable one.

About Nicholas Sims

Nicholas A. Sims holds an Emeritus Readership in International Relations at the London School of Economics & Political Science (LSE) in the University of London. He was a member of the LSE Department of International Relations from 1968 until retirement in 2010, specialising in disarmament and arms limitation treaties, verification, and international organisations. He has written on the BWC ever since it was under negotiation, with particular reference to its review and reinforcement, his books including The Diplomacy of Biological Disarmament (1988), The Evolution of Biological Disarmament (2001) and The Future of Biological Disarmament (2009). His involvement with the BWC derives from a life-long commitment to the enterprise of disarmament and a continuing interest in the interaction of science, law and diplomacy to strengthen the BWC treaty regime.


BTWC @ 40: Afternoon impressions

On 30 March 2015 the 40th anniversary of the entry into force of the Biological and Toxin Weapons Convention (BTWC) was celebrated in the Council Chamber at the United Nations in Geneva, the same room inwhich the treaty had been negotiated.

In the afternoon , the Centre on Conflict, Development and Peacebuilding (CCDP) of the Graduate Institute of International and Development Studies, the Geneva Centre for Security Policy (GCSP) and the United Nations Institute for Disarmament Research (UNIDIR) convened a civil society academic seminar. Below are some impressions of that session (Please click for full-size images).

The full programme and texts of remarks are available from the website of the BTWC Implementation Support Unit.

(All pictures with my camera.)

1st panel: Making progress in strengthening the BWC

Chair: Dr Jean Pascal Zanders (CCDP)

Speakers: Dr Ursula Jenal, Dr Gary Burns, and Dr Piers Millett

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20150330 BTWC 40 Burns     20150330 BTWC 40 Millett

2nd panel: Future challenges for strengthening the BWC

Chair: Mr Jarmo Sareva (UNIDIR)

Speakers: Mr Nicholas Sims, Dr Gunnar Jeremias, and Dr Iris Hunger

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20150330 BTWC 40 Jeremias     20150330 BTWC 40 Hunger

 

(Impressions from the formal commemoration in the morning can be viewed here.)


BTWC @ 40: Morning impressions

On 30 March 2015 the 40th anniversary of the entry into force of the Biological and Toxin Weapons Convention (BTWC) was celebrated in the Council Chamber at the United Nations in Geneva, the same room in which the treaty had been negotiated.

In the morning the formal commemoration took place. About 100 people attended the celebration. Below are some impressions of that session (Please click for full-size images).

The full programme and texts of remarks are available from the website of the BTWC Implementation Support Unit.

(All pictures by myself.)

The general setting of the 40th anniversary event

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Opening speeches

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Addresses by the three Depository States: Russia, UK and USA

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Guests of honour: Amb. Masood Khan and Dr Caitriona McLeish

20150330 BTWC 40 Khan     20150330 BTWC 40 McLeish

(Civil society academic session to follow.)


Flashback: 30th anniversary of the BTWC (2005)

On 24 March 2005 the BioWeapons Prevention Project  (BWPP) and the Geneva Forum co-organised a seminar in the Palais des Nations in Geneva to celebrate the 30th anniversary of the Biological and Toxin Weapons Convention.

It was a tense time: the 5th review conference in 2001 had basically failed and following a one-year suspension, the states parties were able to agree on a work programme that eventually became known as the ‘intersessional process’ — a series of meetings of experts followed by meetings of states parties. In 2005 people began looking towards the 6th review conference that was to take place the next year. Expectations were not very high: saving a troubled treaty was back then the primary goal, The BTWC Implementation Support Unit did not yet exist; the small unit was to be one of the positive outcomes of that review conference.

For the meeting the BWPP and the Geneva Forum invited three speakers to highlight the (then) past, present and future of the BTWC: Erhard Geißler (Max Delbrück Center for Molecular Medicine), Nicholas A. Sims (London School of Economics and Political Science) and John Borrie (United Nations Institute for Disarmament Research).

Today, a commemorative event will take place in Geneva; the academic session in the afternoon jointly organised by the Centre on Conflict, Development and Peacebuilding (CCDP) of the Graduate Institute of International and Development Studies, the Geneva Centre for Security Policy (GCSP) and the United Nations Institute for Disarmament Research (UNIDIR) will revisit some of the themes raised 10 years ago.

It is a good moment to reflect on what the issues were back then. The BWPP published an Occasion Paper with the three presentations: 30 Years of the BTWC: Looking Back, Looking Forward (June 2005), which is here now again available for download.


BTWC — A weird kind of 40th anniversary

Four decades have passed since the entry into force of the Biological and Toxin Weapons Convention (BTWC). The 173 states parties happily blew out the 40 candles on 26 March.  Rejoice we all did, and tomorrow, 30 March, a special commemorative event will take place at the United Nations in Geneva. In the very same room where the Conference of the Committee on Disarmament (the forbear of the current Conference on Disarmament) negotiated the document. (For a brief overview of the birth of the BTWC, check out the dedicated web page prepared by the BTWC Implementation Support Unit.)

Yet, there is something weird about this anniversary.

First, in the United States a researcher published a commentary on the website of the Bulletin of the Atomic Scientists expressing his deep concern about the impact of a nuclear winter on the future of humanity following the use of this class of weapons. He argued that most of the the nuclear devices currently in the military arsenals should be replaced with other weapon categories that possess an equivalent deterrence value. In passing he mentioned non-contagious biologicial agents. The biological weapons (BW) community reacted strongly, and several academics have responded that BW are and should remain beyond the pale. Rightly so.

One can say many things about the BTWC, but one cannot deny that today not a single state — whether a party to the convention or not — will admit to possessing BW or maintaining an offensive BW programme. The treaty may have its intrinsic flaws, but the norm it embodies is strong. So, yes, it was strange to read on the eve of the 40th anniversary of a global disarmament treaty that an academic could still discern a future role for this class of weaponry.

Second, friends of the treaty sent out congratulatory messages via Twitter, blog postings or newspaper Op-Eds. The British daily The Guardian managed to publish two contributions on a single day. James Revill and Caitríona McLeish of the Harvard-Sussex Program, University of Sussex let the bells ring out (Happy birthday to the bioweapons convention), before warning on the possibility of creeping legitimisation of BW for deterrence purposes, as proposed by the US scholar mentioned earlier.

The other piece was written by Alex Spelling and Brian Balmer of University College London and entitled ‘Remembering an Overlooked Treaty‘.

An overlooked treaty? Since 2 March 2015, 173 states are party to the BTWC. This makes it the third most universal agreement regulating the acquisition, possession and use of weaponry after the Nuclear Non-Proliferation Treaty (191 parties, including the State of Palestine) and the CWC (190 states parties).

Later in the piece, the authors ask: So, why has this disarmament treaty been neglected? This is a remarkable question, considering that the community of states parties has met twice or more annually in Geneva since the third review conference in 1991 and continuously engages in various regional or bilateral activities to strengthen regulatory frameworks or capacities to address challenges identified in the Geneva meetings.

The authors, of course, zoomed in on one formal characteristic of an arms control or disarmament treaty lacking in the BTWC: a verification machinery to systematically monitor compliance and detect treaty violations. However, neither they nor any of the commentators on the zany idea of BW deterrence offer an idea on how to remedy this deficiency — and I agree, it is a major one — in the near future.

2016 will be the year of the 8th review conference and the states parties will gather to plot the course of the BTWC for the ensuing five years and beyond. Now is really a time for bright ideas and thinking out of the box. Otherwise, on the 50th anniversary of the convention, people will still be lamenting an imperfect past or happily consider future roles for prohibited weapons.

Yes, happy anniversary to the BTWC. The future is challenging, but there is a future. People willing.