Beneath the Crust …

… the lava continues to flow unseen by the casual observer standing above

On 3 November I was invited to speak at an international conference in Brussels organised by the European Union (EU) Non-Proliferation Consortium. The session was called: The Biological and Toxin Weapons Convention (BTWC) – Maintaining Relevance. I found the title intriguing. Is the BTWC losing its relevance one way or another? Is this treaty in jeopardy?

Brasil’s BW preparedness: demonstration during the Brasilia workshop (23 August 2016)

A widely shared opinion has it that the BTWC is a weak treaty. Yet always unspoken  remain the criteria by which people assess the treaty’s weakness. They often point to the Chemical Weapons Convention (CWC) as a strong agreement because it has an international organisation, a verification regime and mechanisms to enforce compliance. Notwithstanding, in its almost twenty years of existence, war and terrorism in the Middle East accounts for about 2,000 fatalities as a direct consequence of chemical warfare and terrorism with chemical weapons. The BTWC, in contrast, lacks an international organisation or verification mechanism, yet in its 41 years since entry into force, deliberate use of disease or toxins has killed fewer than 100 persons. What does that say about the strength of a treaty?

Moreover, the BTWC is actually a very active treaty. Since 1991—the 3rd Review Conference—states parties have come together in Geneva at least twice a year, sometimes even more, particularly while negotiating a legally-binding protocol between 1997 and 2001. Of course there is a lot of frustration with the formal process and its lack of tangible progress in upgrading the treaty, its institutional support and procedures. In contrast a lot moves on the local and regional levels.

The BTWC World Tour 2016

To that conclusion I arrived after having organised four regional and sub-regional seminars between March and the end of September 2016 on behalf of the BTWC Implementation Support Unit (ISU). Those meetings took place in the framework of the EU Council Decision 2016/51 of 18 January 2016 supporting the BTWC and are part of a much broader package of activities envisaged between 2016 and 2019.

This Council Decision is the fourth in a series over the past decade. The first one covered the period 2006–08; the second one 2009–11 and the third one 2012–15. In total the EU has now invested some 6.3 million Euros in the strengthening of the BTWC, including 2.3 million for the current programme.

En route to Brasilia: The island of Madeira as seen from BioForce One (17 August 2016)

As Director of the international non-governmental organisation BioWeapons Prevention Project, I had the privilege of being entrusted with the implementation of the first Joint Action (as actionable Council Decisions were then known), part of which was designed to prepare the 6th Review Conference at the end of 2006. At this point the ISU, which was to carry out the next EU support plans, had not yet been established .The Joint action consisted mainly of BTWC universalisation and national implementation assistance activities. The former comprised five regional seminars: Southern and East Africa (Nairobi, Kenya on 21–22 June 2006; Asia and the Pacific Islands (Bangkok, Thailand on 8–9 November 2006; Latin America and the Caribbean (San José, Costa Rica on 18–19 January 2007); West and Central Africa (Dakar, Senegal on 17–18 April 2007); and the Middle East (Rome, Italy on 16–17 April 2008).

Ed Force One landing in the East Midlands, UK (June 2016)

The current Council Decision envisages four regional workshops in preparation of the 8th Review Conference to be held between 7 and 25 November 2016. Because of the short intervals between the events, the series became jokingly known as the BTWC World Tour 2016 and the organisers flew on BioForce One, a wink to Iron Maiden’s Ed Force One carrying the rock band’s members and crew to concert venues across the planet.

The four events targeted Eastern Europe and Central Asia (Astana, Kazakhstan on 15–16 June); South and Central America (Brasilia, Brazil on 22–23 August); South and South-East Asia (New Delhi, India on 29–30 August) and Africa (African Union Commission, Addis Ababa, Ethiopia on 13–14 September).

My remarks at the EU Non-Proliferation Consortium conference drew on insights from the four regional workshops this year and earlier experiences with the first EU Joint Action.

Evolution of a treaty regime and trends in state practice

Anyone participating in meetings on science and technology review, developments in industrial capacities, new production processes and technologies hears a lot of anxiety and a lot of talk of threats to the convention or possible weakening of the norm. However, such developments never take place in a vacuum, even if substantive progress in the Geneva negotiations remains elusive. Looking at several states that participated in this year’s regional meetings, I can only observe how much things have evolved.

India is a prime example. I recall a seminar the BWPP organised at the United Nations in Geneva in 2004 or 2005. We had an Indian scientist present  and she described how her country was on the verge of becoming a net exporter of biotechnology, whereas before it had been a net importer. She predicted that India would soon assume new types of responsibilities to govern the new science and technologies. Last August I was in New Delhi for the third regional seminar. At one point a discussion between Iran and India over the latter country’s export control legislation started up. It was interesting to note the evolution in India’s position on export controls. It had adopted principles that only 5–10 years ago were extremely controversial internationally. China has undergone a similar evolution with respect to national technology transfer policies and its adoption of a certain rationale behind them. These developments testify to a convergence of ideas, a convergence of approaches among states in different parts of the world. In turn they lead to circumstances that enable and promote cross-continental, cross-regional cooperation in a number of issue areas. In preparation of the 8th Review Conference the ISU website contains several working papers written jointly by European and Asian states, European and South American states, or the United States with partners in different regions. They illustrate emerging possibilities for the future of the BTWC. They do not yet translate into formal agreements or new understandings, but they testify to evolving practice that keeps the convention alive despite frequent setbacks in multilateral negotiations.

A second aspect of the BTWC’s vitality that emerged from the four regional seminars concern the different facets of international assistance and cooperation for peaceful purposes under Article X. Exchanges between especially some members of the Non-Aligned Movement (NAM) and the Western Group in Geneva are usually politically highly charged. Similar confrontations one can also observe in meetings of the decision-making bodies of the Organisation for the Prohibition of Chemical Weapons (OPCW) with respect to the comparable Article XI of the CWC. Yet, over the past decade parties to the BTWC have managed to advance matching expectations with obligations on both the global and regional levels.

After the Astana workshop: Amb. György Molnár, then President-Designate 8th RevCon; Daniel Feakes, Chief ISU; Jean Pascal Zanders, then UNODA; and Emil Kazakov, European External Action Service (16 June 2016)

First, the intersessional process has tended to focus on actionable programme items. In Geneva states parties often discuss Article X in broad, abstract principles. As already mentioned, they also tend to pit the NAM against the Western Group. Several vocal NAM members view national export controls as a violation of the convention and consequently place the prohibition on transferring biological weapons (BW) and relevant technologies to any recipient whatsoever in Article III in direct opposition to Article X. The intersessional process, in contrast, encourages states parties to look at the quality of their national implementation of obligations and responsibilities. This has led them to articulate concrete needs and requests, including under Article X, which in turn made it easier for potential donor countries to formulate offers for assistance and cooperation. Matching happens bilaterally or interregionally with the BTWC ISU often acting as a facilitator. To most developing countries the feckless ritual standoff with its sweeping statements in Geneva runs counter to specific national needs.

Second, certain developing countries have taken a regional lead in technology, science development, and so on. Some even work at the leading edge globally. Over the past few years they have initiated processes whereby they transfer relevant knowledge, expertise and practices to neighbouring states. In other words, regional patterns of cooperation, training and education explicitly undertaken under Article X have emerged. Argentina plays such a role in South America. Similar initiatives have arisen in the context of ASEAN, particularly in the area of biorisk management. Such concrete regional assistance also includes help with national implementation legislation, the submission of the Confidence Building Measures (CBMs), and so forth.

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Disarmament on top of the world

Given that the Chemical Weapons Convention (CWC) has already attracted 190 states parties, the Biological and Toxin Weapons Convention (BTWC) has become something of a laggard. Not just in terms of numbers, but also regarding the time it has taken to secure the 170 ratifications or accessions. It entered into force in 1975, or 22 years before the CWC became effective.

Over the past decade and a half parties to the BTWC have stepped up their efforts to secure more ratifications and accessions. Unlike the CWC, the BTWC does not have an international implementation organisation that can take charge of universalisation initiatives or assist members with the national implementation of their treaty obligations. In 2006, the 6th BTWC Review Conference decided to establish a small Implementation Support Unit (ISU), which is embedded in the Geneva branch of the UN Office for Disarmament Affairs (UNODA), to coordinate and facilitate a variety of activities in support of treaty universalisation and implementation. Since then there has been a notable increase in both the number and effectiveness of events to turn the BTWC into a truly global prohibition on biological and toxin weapons. Several states are now on the verge of becoming a party, and chances are that some will join the convention in the course of 2014.

One such state is Nepal, a small kingdom that embraces the Himalayas. Despite having signed the convention on 10 April 1972, it is besides Myanmar the only continental Asian state not to be a party to the BTWC. The ISU and UNODA’s regional office in Kathmandu, the UN Regional Centre for Peace and Disarmament in Asia and the Pacific (UNRCPD), convened a meeting on 20–21 February to promote early ratification and discuss assistance modalities for the development of national implementation legislation as required under Article IV of the convention. The European Union funded the event through its Action Plan in support of the BTWC.

A dynamic meeting

Twelve ministries and government agencies participated in the workshop. They included foreign affairs, defence, justice, the interior, science and technology, and different law enforcement agencies, among others. Ms Ambika Devi Luitel, Officiating Foreign Secretary of Nepal, Ambassador of the European Union to Nepal Rensje Teerink and UNRCPD Director Sharon Riggle welcomed the participants and outlined the meeting goals. Mrs Jacklin Georges of the ISU laid out the types of decisions she expected to come out of the workshop in order to be able to determine the types of legislative assistance Nepal might require and an assistance calendar before the EU Action Plan expires at the end of 2014. I had the pleasure of giving a general background briefing on the BTWC and its history and an overview of the confidence-building measures parties to the BTWC are supposed to be engaged in. My colleague from VERTIC, Ms Yasemin Balci, detailed the legislative requirements under the BTWC and other legal obligations that may result from being a party to the convention and UN Security Council Resolution 1540. She also described VERTIC’s legislative assistance programme and the ways in which the organisation collaborates with the ISU.

As is usual in such workshops, most participants are exposed for the first time to the details of the BTWC, the reasons why their country should become a state party, and the responsibilities it will assume after ratification (or accession). Fortunately, the meeting itself built on an ISU-organised regional seminar on universalisation held in Kuala Lumpur, Malaysia on 2–4 September 2013. Two representatives from the Nepalese Defence Ministry attended, who at the Kathmandu workshop revealed themselves as true social entrepreneurs. More than any foreigner could have done, they were able to answer the specific questions any Nepalese official had and overcome any lingering (bureaucratic) hesitation. At the same time, Sharon Riggle, given her excellent understanding of Nepalese consultation culture, recommended a couple of times that the foreign experts withdraw from the deliberations. The (to a foreigner such as myself) animated discussions in Nepali invariably led to concrete outcomes, that enabled the ISU to come away with a concrete time line for future activities.

I left the two days of meetings with the impression that Nepal is keen on ratifying the BTWC soon. In the end, the only remaining obstacle is a fully functioning parliament. The Nepalese participants, however, felt confident about the future of their political system, and desired to proceed with the legislative preparations so as to be ready on the day their country finally becomes a full party to the BTWC.

[Cross-posted from The Trench]