BTWC 8th RevCon Final Document

[Cross-posted from The Trench]

The 8th Review Conference of the Biological and Toxin Weapons Convention (BTWC) ended today, 25 November, in great disappointment. While during the preparatory meetings in April and August it was already clear that the exercise would be difficult, nobody really anticipated that so much would be lost in two days. There is even less than in the previous final documents: the meetings of experts (MX) held during the summer have been stopped; the meetings of states parties (MSP) have been preserved, but without a sense of purpose. Except as a way to preserve the Implementation Support Unit (ISU).

The number of staff of the ISU was not increased. The still incomprehensible Spanish veto against the expansion of the ISU in the final two hours of the 7th Review Conference in 2011 (despite EU consensus to support such increase of staff) is having lasting consequences of ever greater impact. I guess that we can be grateful that nobody raised the flag to argue that with the elimination of the MX the ISU would have a reduced workload (not exactly true, but then politics are about perceptions, not truths).

In their final declarations many countries, especially from the Non-Aligned Movement (NAM), put the blame squarely on Iran (without naming the country). This country’s obsession with returning to a negotiation format like the Ad Hoc Group to achieve the higher goal of a legally binding instrument—possibly with the sole goal of antagonising the USA—led it to exploit to the fullest to principle of consensus decision-making to torpedo any effort at compromise. Many NAM countries—often developing nations—lost out on concrete opportunities for international cooperation and assistance. They were acutely aware of what they were losing. Having participated in four review conferences, I cannot remember so much direct criticism directed against one of their own.

More was on offer, and for a moment in the late morning and early afternoon expectations rose that a meaningful outcome might still be possible. By 4pm those hopes were dashed; even the continued existence of the ISU was in doubt. Fortunately, that danger was averted.

I will write up some personal recollections and impressions over the next week or so. There were more dynamics driving the negotiations that prevented useful compromises during the endgame.

Meanwhile, I have scanned the final document and the budget assessment (BTWC 8th RevCon – Final doc (Scan)) as it was distributed to delegates. These documents contain typographical and grammatical errors. A clean version will soon be published by the ISU.


Emergency assistance: Triggering Article VII of the BTWC

[Cross-posted from The Trench]

Tabletop Exercise (TTX) on the Implementation of Article VII of the Biological and Toxin Weapons Convention (BTWC)

8-9 November 2016, Palais des Nations, Geneva

(Provisional report)

[Prepared by Élisande Nexon, Ralf Trapp and Jean Pascal Zanders]

Article VII of the Biological and Toxin Weapons Convention (BTWC) provides that

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.

In recent years, considerations such as emergence and re-emergence of diseases, including Ebola, or the use of chemical weapons in Syria, have highlighted challenges pertaining to public health and assistance facing the international community. Many lessons have in the meantime been learned. The Eighth Review Conference gives the international community the opportunity to consider the potential contribution of Article VII to those considerations.

20161108 BTWC Article VII TTX-01

French Ambassador Alice Guitton opening the tabletop exercise

To this end the Fondation pour la recherche stratégique (FRS) and the United Nations Institute for Disarmament Research (UNIDIR) convened a workshop on 8 and 9 November 2016.  The primary goal of the exercise was to stimulate reflection on the decision-making processes both within a BTWC State Party and by the international institutions that may become involved if Article VII were to be activated. It also aimed to identify issues that require further study and clarification.

The workshop benefited from financial support by France and the UK Foreign and Commonwealth Office. Twenty-six national representatives and experts from civil society organisations, including public health and disarmament experts, participated in the exercise.

Fostering discussion on the implementation of Article VII: General framework of the tabletop exercise

The exercise enabled participants to exchange views based on a scenario involving a pneumonic plague outbreak in several locations. All victims had been exposed to the same genetically-modified strain displaying enhanced antibiotic resistance. The circumstances aroused suspicion about possible deliberate release. The scenario covered only the timeframe between the detection of an outbreak and the moment when the international community would be called upon under Article VII of the BTWC to offer assistance to the country suffering a major outbreak.

The exercise comprised three breakout sessions. In each session the plot advanced to the next stage of major decision-making by governments. Workshop participants were instructed not to play the scenario, but to consider themselves as a committee of government officials that has to assess alternative policy options and make a final recommendation to the minister. Participants split into three groups, each one representing a different perspective, namely that of the country in which the outbreak was first noticed, the neighbouring country suspected of being the perpetrator of the attack, and a nearby neutral country that might conceivably become an assistance provider.

The exercise was designed to examine specifically in which ways the BTWC as a disarmament and security treaty could contribute to mitigating a (suspected deliberate) outbreak in addition to other international assistance mechanisms. It factored in the current lack of procedures or mechanisms for its implementation.

This synthesis aims at underlining the main conclusions reached and questions raised during the tabletop exercise.

Read the rest of this entry »


Happiness is the road

[‘Cross-posted from The Trench]

Now one month ago, my contract with the UN Office for Disarmament Affairs (UNODA) ended. It was an unexpected 6-month stint to assist the Implementation Support Unit (ISU) of the Biological and Toxin Weapons Convention (BTWC) with organising a series of four regional workshops in preparation of the 8th Review Conference of the BTWC next month. These workshops were sponsored by the European Union (EU) under Council Decision CFSP/2016/51 of 18 January 2016 (Project 4). They targeted Eastern Europe and Central Asia (Astana, Kazakhstan on 15–16 June), Latin 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).

One consequence was of course that silence descended over The Trench. A UN contract automatically implied that any statement, any article or other public contribution had to be vetted by persons in higher pay brackets. At times this made things difficult for me, as my colleagues could testify. Indeed, so much happened during those six months: the two meetings of the Preparatory Commission of the BTWC Review Conference in April and August, a Russian proposal to negotiate a new treaty on terrorism with chemical weapons (an idea that incredibly was welcomed in the tall corridors of the UN in Geneva on the argument that is would give the otiose Conference on Disarmament something concrete to work on), the publication of the third report of the Joint Investigative Mission (JIM) on the use of chemical weapons (CW) in Syria, new allegations of CW use in both Iraq and Syria, and, of course, the outcomes of the work that I was doing in support of the BTWC.

Essence

But the project also offered many joys. There was the opportunity to participate once again in one of the EU’s signature programmes in support of disarmament and non-proliferation. Indeed, ‘once again’. The current EU Council Decision is the fourth in support of the BTWC since 2006. Ten years ago, before the 6th Review Conference set up the ISU, I had the pleasure as director of the BioWeapons Prevention Project (BWPP) of being entrusted with the implementation of the first Joint Action (as the decision was then called). During its 2-year running period the BWPP organised three preparatory meetings for diplomats and four regional conferences (South-East Africa, South-East Asia and the Pacific, Latin America and the Caribbean, and the Middle East). It also laid the foundations for EU assistance with national implementation of the BTWC obligations to requesting states parties. (See the web page maintained by the ISU.)

From this first Joint Action I took away how expectations from the convention in capitals could be quite different from issues being put forward in the diplomatic gatherings in Geneva. And that there was not always effective communication between the Geneva-based missions and their respective capitals. It was indeed a pleasure to note how matters have improved considerably over the past decade, but a lot of work remains. Another lesson identified was that irrespective of whether government officials were approached top-down (as in the case of the EU Council, which acted through the foreign ministries) or bottom-up (as the BWPP was doing via local civil society outreach and education), the problems encountered were quite similar. Indeed, stakeholders in the convention — whether ministries or other government agencies, parliamentarians, scientists and academics, or civil society entities — had to be identified and brought together. In June 2008 this insight led to a Norwegian-sponsored initiative for a combined approach in Malawi to promote the country’s ratification of the BTWC. With the help of local and regional network members the BWPP identified and invited a range of governmental and non-governmental stakeholders and parliamentarians to a seminar in Lilongwe, which eventually proved to be the first step along the path towards ratification.

A second joy was the ability to engage with officials responsible for BTWC matters in capitals. Things had definitely improved over the past decade. People participating in the regional workshops came from different backgrounds, but all had awareness of the BTWC and core challenges facing the convention. I also noticed the impact of years of regional interaction and cooperation among officials, scientists and other experts, meaning that the debates were driven by shared interests and understandings as well as common concerns. Whereas during the first Joint Action a lot of effort went into explaining the basics of the BTWC and the reasons why countries should be concerned by possible biological weapon-related threats in their region, today the regional variations in assessing challenges and proffered solutions envelop disarmament with a much richer texture than can ever be appreciated in the meeting rooms of the UN. Indeed, if one conclusion can be drawn from the 2016 BTWC World Tour (as I started calling the series of events on Twitter – see, e.g., here) then it must be that disarmament actually lives. Great progress is being made with the implementation of the BTWC (and its norm against the weaponisation of disease and the life sciences) on the local and regional levels, even if the lack of outcomes at meetings in Geneva can be the source of intense frustration. This less visible ‘disarmament in (daily) action’ is quite different from ten years ago, if it then existed at all.

The hard shoulder

And a third and final joy was to be able to collaborate with the ISU and the Geneva Office of UNODA. I met great people who managed to run happy ships despite the great stress that more than occasionally permeated all aspects of work. Whether it was battling the UN’s bureaucracy (epitomised by UMOJA — Swahili for ‘united’ — an on-line administrative management tool that is supposed to bring together every branch and twig of the UN family, but actually represents an extensive centralisation of bureaucratic power in New York accompanied by complete diffusion of responsibility), changing or lack of timely decisions by states parties, or meeting short-notice deadlines, there was always occasion for a joke to make people get back to their desks with a smile. Seldom a harsh word, and a lot of mutual support. As an outsider on the inside, I definitely appreciated the certainty of backup when everything appeared to be going down the drain. Having experienced the BTWC process as a civil society operator and a member of the Belgian and EU delegations, this third angle was definitely most instructive. Another facet of ‘disarmament in motion’, for sure. And one the outside world appreciates little, alas.

A state of mind

Over the next weeks, as the BTWC 8th Review Conference takes off hopefully for a successful flight, I will write up more of my impressions of disarmament implementation, as well as comment on developments around the world. Despite all the great experiences of the past half year, it is good to be back in The Trench and to be able to freely shout out over the din out there.


Crowd control with chemical agents: Fundamental questions raised

Book review

Michael Crowley, Chemical Control: Regulation of Incapacitating Chemical Agent Weapons, Riot Control Agents and their Means of Delivery (Palgrave Macmillan: Basingstoke, 2015), 378p.

Crowd control-sAnybody who has attended one of Michael Crowley’s annual presentations at the Organisation for the Prohibition of Chemical Weapons (OPCW) on the challenges posed by riot control and incapacitating agents for the future of the Chemical Weapons Convention (CWC) knows his passion for the subject matter. And his overwhelming knowledge about the latest developments in science, technology, industry and government policies. These characteristics also typify his book on the topic, Chemical Control, published late last year.

The book can be read on three levels:

  • as an almost encyclopaedic presentation of facts,
  • as an in-depth analysis of the regulatory regimes pertaining to chemical crowd control agents, which leads to concrete policy recommendations, and
  • as a treatise on the analytical framework that has guided the research and the book structure.

Each level has merit in its own right. The third one, however, lifts this book above many other monographs on weaponry. Not just because of the ways in which it has informed Crowley’s research and analysis, but because it opens windows to fundamental debates on the purpose of disarmament and arms control today and tomorrow. He was right to resist calling his analytical framework a theory, but it nevertheless contains elements of theory. He formulates certain assumptions, but the book’s primary goals unfortunately do not give him the space to discuss them in depth. Because Crowley fundamentally questions some traditional understandings of the purpose of disarmament and arms control, he lays down an intellectual challenge that disarmament theorists or international lawyers cannot ignore.

A rich data source

The first level is that of the researcher’s data paradise. The monograph offers highly technical and detailed information on the nature of riot control and incapacitating agents and their delivery systems, the research and development behind them, where they are being manufactured and how they are traded, and most importantly for the other levels on which the book can be read, where and how they are being used.

Chemical warfare has its fair share of horror stories. About the impact of toxic chemicals on the body—from the painful and slow-healing blistering of the skin by mustard agents to the uncontrollable convulsions caused by exposure to sarin or other nerve agents. About the human experiments conducted not just in the Japanese prisoner of war camps in China in the Second World War or the dungeons of the darkest totalitarian regimes, but also in the bastions of Western democracy. Until today veterans in the UK and the USA, for example, are fighting to have their contribution to the national defence effort officially recognised and receive adequate compensation and health care—if they are still alive.

However, it is quite a different present-day horror story to read that quite a few states use incapacitants and riot control agents (such as tear gas)—toxic chemicals that some try to sell to public opinion as so-called non-lethal or humane weapons—to torture prisoners or regime opponents. Page after page, table after table Crowley details national practices of certain countries. They beggar belief were it not for the fact that source references make up two-thirds of the pages with tables.

Crowley methodically presents the different types of agent together with their characteristics and consequences after exposure, the country armament programmes and practices, and incidents. He never meant those pages to be read in a systematic way; they are detailed reference materials for researchers worldwide. In that sense he comes as close as possible to an encyclopaedic treatment of the subject matter. Future reports by him and other researchers will have to update the data sets.

If assimilation of this wealth of data might appear daunting, then section introductions and conclusions pull the main strands of his empirical analysis neatly together.

Considerations for policy shapers and makers

The second level is that of policy advice. I must admit that when I first saw the table of contents and noticed that the final chapter addressed conclusions and recommendations I had concerns about the substance of the book. It is one thing to undertake solid empirical research; it is quite a different thing to lay out arguments (and thereby present data selectively) in support of policy recommendations. Too often such treatises display superior argumentative logic, all the while lacking foundation in factual reality. Or they may sink to the level of wholly speculative ‘may and might’ analyses spinning hypothetical, often worst-case scenarios whose projected consequences then inform policy recommendations.

To my relief Crowley avoids this trap because a solid analytical framework structures his analysis (see the third level below). Thus after having laid out the technical aspects and national programmes of crowd control agents, he moves to the regulatory regimes. Again he proceeds systematically. In what amounts to over half of the book, he devotes a chapter each to arms control and disarmament law, international humanitarian law, human rights law, international criminal law, technology transfer control regimes, and UN drug control conventions. For each of the treaties, regulations, policy declarations, or informal arrangements (such as the Australia Group or Wassenaar Arrangement) Crowley presents the reader with a summary of the objectives and tools, an analysis of their implementation, and options for amelioration.

In the penultimate chapter he examines how civil society can contribute to the strengthening and implementation of the respective regimes. It comprises a comprehensive overview of ideas that have been explored in the fields of chemical and biological weapon control over the past decade and a half, as well as various initiatives whose primary concern have been the humanitarian and human rights consequences of the application of crowd control agents. In the process the author comments on such activities and suggests further options and improvements.

Crowley’s recommendations are rooted in this detailed analysis. He identifies areas of action where governments (and by extension, intergovernmental organisations) have to assume their responsibilities with regard to the strengthening and implementation of the international rules. He also considers how civil society constituencies can contribute to the strengthening of existing tools (e.g., through the development of ethical and professional codes of conduct, educational initiatives, etc.) or develop independent initiatives to track developments (e.g., open source monitoring of the use of crowd control agents or the political and technological imperatives for their further development and international commercialisation) with a view of holding policy makers accountable.

The final chapter thus comprises succinct summaries of the issues treated in the preceding chapters and related policy recommendations.

Analytical framework

As already indicated in the introduction, to me the best aspect of the book is the analytical framework. Crowley calls it ‘holistic arms control’ (HAC). It concentrates on existing arms control and disarmament measures, but seeks to expand on the numbers and types of regulatory measures and broaden the range of possible stakeholders.

The ambition is not small: he must weave a net whose meshes are sufficiently wide to catch all relevant data, while small enough to filter out irrelevant elements. Moreover, his construct is multidimensional, capturing the technologies together with national and human security concerns of inappropriate use, all relevant international legal regimes and other types of regulation together with the relative strengths and weaknesses, and possible strategies to reinforce all barriers against misuse of crowd control chemicals.

He deconstructs this ambition in the opening chapter and in the process outlines a step by step methodology that will form the backbone for the whole book. Cowley’s rigid adherence to the model contributes significantly to the readability of his analysis: throughout the reader remains aware of the stage of analysis and when particular questions are likely to be addressed. At the same time, he leaves the reader with a strong sense of comprehensiveness by bringing in many elements that one might not immediately consider when touching upon the subject of incapacitating and riot control agents. His discussion of the 1971 UN Convention on Psychotropic Substances is but one example.

A theoretical knot

However, the HAC framework is not merely analytical, it is also aspirational. It carries elements of theory formation that offer the perspective of substantive debates on the purpose of disarmament in fast changing times. As the author states (p.4):

Recognizing that reliance upon a single disarmament or arms control agreement alone would not guarantee success, scholars have explored a number of concepts, seeking to broaden the range of possible regulatory mechanisms.

His analysis is therefore also aspirational:

Although the proposed HAC analytical framework concentrates upon existing arms control and disarmament measures, it attempts to widen the range of applicable mechanisms for regulation, and also the nature of the actors involved in such regulatory measures.

Consequently, HAC can be thought of as a framework for analysis to aid the development of a comprehensive, layered and flexible approach to arms control […]

Left unsaid is the central question: what is the core purpose of disarmament (as embedded in the Biological and Toxin Weapons Convention (BTWC) and the CWC, two key pillars of the regime against the misuse of incapacitating or riot control agents)? Furthermore, how do treaty regimes evolve in the light of technological, political and social changes over the years since their adoption and entry into force?

Humanitarian considerations have over the past two decades taken up a prominent place in the disarmament and arms control discourses. This means that today a different reference framework for judging effectiveness of a convention exists than the one originally intended: the focus of the public debate has shifted from the weapon technology (which must be eliminated) to the consequences of their use under a variety of circumstances on individuals and communities, which in turn has amplified calls to hold those responsible for violations accountable under national and international criminal law. That conflict of purpose is on clear display in the Syrian civil war: many people do not understand why the international community can invest resources in eliminating Syria’s chemical warfare capacity, but does not want to intervene to stop the slaughter of civilians.

The issue really becomes interesting when two humanitarian considerations intersect at a given decision-making moment in a disarmament setting, and a choice has to be made. Crowley points to such a moment during the 3rd CWC Review Conference in April 2013 (pp. 130–31), however without realising the underlying conflict (of conscience) that led to the item of incapacitating agents being dropped form the final document. The debate occurred when the number of reported chemical weapon (CW) incidents in the Syrian civil war was rising fast, and only a few weeks after the UN Secretary-General established a mission to investigate allegations of CW use. Including a condemnation of the escalating chemical warfare crisis proved highly controversial. Compromise was possible on severely weakened language only, which was totally unacceptable to the Western Group and Other States (WEOG). The final document was in the balance. Given that Poland was chairing the review conference, failure was not an option for the European Union members.

One WEOG ambassador was unable to get updated guidance on compromise language on the questions of incapacitants and Syria from his capital, and therefore had to decide under his personal responsibility (all the while bearing in mind that the successful outcome of the review conference hung in the balance). He opted to go with the compromise language on Syria and (in consultation with the original sponsor, Switzerland) drop references to incapacitants, a key consideration being that the issue could be taken up at a later date. Does such a decision make the CWC less effective? The consensus language in the final document would ultimately form a not insignificant foundation for subsequent action by the OPCW following the sarin attacks in the district of Ghouta less than four months later, and Syria’s accession to the CWC and subsequent disarmament. Outcomes at meetings can result from complex decision processes when different interests conflict with each other and priorities (often in function of developments at the time) need to be established.

So, I raise the question whether the global community is best served by finding ways to ameliorate core instruments or by broadening the range of tools in order to capture a particular issue of interest? I have no immediate answer because, as the book describes, science and technology and their application in various circumstances may evolve much faster than the international community can regulate them or update existing treaty regimes. Nevertheless, I do have the concern that multiplication of treaties and other regulatory instruments lead to different lists of states participating in each one of them and different levels of compliance and enforceability. That could lead to a cacophony of expectations based on different requirements and interpretations of obligations.

This final reflection is not a criticism of Chemical Control. The question touches upon theories of regime formation and international law and goes beyond the purpose of Michael Crowley’s book. However, it is a matter I definitely wish to engage him on. I can only commend him for offering a solid framework for structuring that particular debate on the future of disarmament and arms control and identifying the fundamental assumptions underlying both concepts.

 

[Cross-posted from The Trench]


No humanitarian justification for biological weapons

[Cross-posted from The Trench]

On 11 January Digital Journal, an online publication touching upon current events and with a penchant for science and technology affairs, published an Op-Ed by Megan Hamilton, an animal and nature-loving journalist based in Costa Rica, on Technology and the art of modern warfare. The piece is worrying enough for all the new technologies under consideration: fast-firing guns that could be deployed on satellites, direction-changing bullets, laser guns to knock out enemy drones, and so on.

The item that caught my attention was a discussion about a project once run by US Defense Advanced Research Projects Agency (DARPA) that turned insects into surveillance cyborgs (See also the Gizmodo blog). As Hamilton described it:

How? Through the HI-MEMS, or Hybrid Insect Micro-Electrical-Mechanical System concept. Electrical circuits are implanted in bugs while they are in the pupa stage. Once they become adults, signals sent through radio waves trigger the circuits, meaning that the insect is now remote-controlled. Surveillance equipment is attached, meaning these bugs are now invaluable and undetectable tools for battlefield exploration.

cybug1

Insect cyborg (Source: Gizmodo, Australia)

DARPA cancelled the project. Hamilton, however, explored the topic of entomological warfare further with Jeffrey Lockwood, author of Six-Legged Soldiers: Using Insects as Weapons of War (Oxford University Press, 2010). It reveals interesting insights. For instance, technology has not yet been able to develop a drone the size of an insect—an entomopter—because of the size needed for an on-board energy source.

Once past the technological fascination of this type of weapon design for warfare or intelligence gathering, Hamilton pressed Lockwood on the morality of such projects and human and animal rights. Here things do get hairy.

Morality of entomological warfare

Lockwood took a kind of long-winded approach to answering the question. First, he mentioned the standards set by ‘just war theory’. Under jus in bello one imagines that formally prohibited weapons would be banned in warfare. He is generally correct when positing:

And then, deploying a weapon system of creatures to inflict harm on other humans surely constitutes a form of biological warfare (although international law is surprisingly vague on insects—microbes are quite another matter).

But then he wondered if biological warfare is necessarily wrong. He referred to the scenario of a debilitating but not deadly disease being transmitted by mosquitoes to enemy combatants such that it weakens the opposing forces and the goal of the attack can be achieved with considerably less loss of human life than would be the case with conventional weapons. He continued:

Of course, this supposes that one has adopted a consequentialist (probably utilitarian) ethics in which all that matters is the outcome. Such an ethical system might well conflict with the decisions made using a deontological approach in which duties/rights provide the moral constraints (rather than outcomes). So to return to your question, we might violate the rights of humans or other creatures (most often thought to be sentient which then raises the questions of whether insects can suffer—I think so, but many would disagree) by using the entomological weapons even if these arms reduced human deaths relative to other tactics.

[I assume that the passages between parentheses in the above quotes are Hamilton’s asides.]

The interview passage mixes up a few aspects of constraining biological warfare, namely the use of pathogens as a method of warfare, the deployment of insect vectors to propagate the disease agent, and the resort to insects in combat.

Yes, biological warfare is necessarily wrong

On the first issue whether all biological warfare is necessarily wrong, the answer is an unambiguous ‘yes’. The 1972 Biological and Toxin Weapons Convention (BTWC) contains no criteria of lethality or incapacitation to prohibit the development, production, stockpiling or any other form of acquiring microbial or other biological agents. This ban is absolute and therefore accepts no exceptions. Indeed, according to Article I, para. 1 of the BTWC the retention of disease agents is only justified for prophylactic, protective or other peaceful purposes. And then only if the nature or volume of the agent in possession conforms to those purposes.

This principle is known as the General Purpose Criterion. It emerged during technical discussions in the late 1920s and early 1930s in preparation of the disarmament conference due to start in 1933 as a way to address the dual-use problem, capture future scientific discoveries and technological developments, and frame a definition of chemical and biological weapons that does not allow for any exception. A criterion such as lethality was explicitly rejected, because the then proposed definition for chemical weapons had to capture irritants and incapacitants, such as riot control agents. Both the BTWC and the 1993 Chemical Weapons Convention have the General Purpose Criterion at the heart of their respective prohibitions.

While it is true that the BTWC does not explicitly refer to the use of biological weapons, it makes explicit reference to the 1925 Geneva Protocol banning the use of both chemical and biological modes of warfare. Moreover, at the Fourth Review Conference in 1996, the states parties to the BTWC explicitly recorded their understanding that the comprehensive prohibition on biological weapons in Article I covers their use too.

So, yes, all biological warfare is necessarily wrong, even if certain modes of pathogen use may appear more humane on the surface.

Yes, the BTWC bans the use of insects to spread disease

The second issue raised in the interview concerns the use of insects. In the past, insects have been both considered and used as vectors to spread disease. For instance, during the Second World War Japan notoriously deployed infected fleas to provoke plague epidemics in China. Allied Powers too investigated the option.

Again the BTWC’s prohibition is explicit. Article I, para. 2 proscribes the development, acquisition by any means and possession of weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

So, yes, developing, cultivating or possessing insect vectors with the intent of having them deliver a pathogen is proscribed. No exceptions allowed.

In my opinion, although I am not aware of any legal expert ever having made that point explicitly, the use of insects with the intent to have them sting or bite humans or animals would also be prohibited under the BTWC as the insects would almost invariable inject some kind of poison—a toxin—into the victim.

But does the BTWC ban the use of insects?

The third question whether the use of insects in more generic ways is a proscribed mode of warfare is more ambiguous. The BTWC does not mention insects per se. Biological agents cover human, animal and plant diseases. Certain insects attack plants and may destroy agricultural crops. Again, in the past belligerents have not shied away from deploying them to harm the enemy in both open and covert warfare operations. Psychologically, agricultural warfare lies close to biological warfare. Thus, for example, Protocol III (and Annexes) on the Control of Armaments of 23 October 1954 to the Treaty of Economic, Social, and Cultural Collaboration and Collective Self-defence (also known as the Brussels Treaty) of 17 March 1948 defined biological weapons as follows [emphases added]:

(a) A biological weapon is defined as any equipment or apparatus expressly designed to use, for military purposes, harmful insects or other living or dead organisms, or their toxic products.

(b) […], insects, organisms and their toxic products of such nature and in such amounts as to make them capable of being used in the equipment or apparatus referred to in (a) shall be deemed to be included in this definition.

(c) Such equipment or apparatus and such quantities of the insects, organisms and their toxic products as are referred to in paragraphs (a) and (b) which do not exceed peaceful civilian requirements shall be deemed to be excluded from the definition of biological weapons.

The protocols to the Brussels Treaty allowed Germany and Italy to join the Western European Union, which in turn paved the way to their NATO membership.

Would the states parties to the BTWC consider an allegation of insect use as a possible violation of the convention? Actually, yes. They did so in 1997.

As I summarised developments in the 1998 and 1999 editions of the Yearbook published by the Stockholm International Peace Research Institute (SIPRI), on 30 June 1997 Cuba submitted a request to Russia, one of the three co-depositories of the BTWC, to convene a formal consultative meeting to investigate an alleged US attack with BW agents in October 1996.

That was the first time since the entry into force of the BTWC in 1975 that a state party formally requested the international community to investigate a breach of the convention. Cuba did not lodge a complaint with the UN Security Council under Article VI of the BTWC but invoked a procedure to strengthen the implementation of Article V adopted by the Third Review Conference of the BTWC in 1991. According to this procedure, the formal consultative meeting must be preceded by bilateral or other consultations among the states involved in the dispute. Following the submission of the request, the depositories of the BTWC must convene the formal consultative meeting within 60 days of the receipt of the request.

According to the allegation, a US anti-narcotics fumigation plane flying from Florida to Grand Cayman crossed Cuba with Cuban authorization on 21 October 1996 and was observed by a Cuban civilian aircraft to spray unknown substances intermittently. On 18 December the first signs of a plague with Thrips palmi karay, a minute insect belonging to the order of Thysanoptera which are plant eaters and may transmit virus diseases of plants, appeared. While Thysanoptera live wherever plants are, Cuba stated that this particular insect was indigenous to Asia and exotic to Cuban territory, although since 1985 its presence has been noted on several Caribbean islands. By January 1997 other parts of Cuba had also been affected and the insects continued to spread throughout the island in the spring and affected many crops. In October, the Cuban government reported that 20,000 tonnes of produce, including 18,000 tonnes of potatoes, had been lost to Thrips.

Following a request in December 1996 to clarify the incident, the US stated on 12 February 1997 that the pilot had noted the Cuban civilian aircraft but was unsure whether he had been seen and therefore used the smoke generator of his aircraft to secure a positive visual contact ‘following prudent and safe aviation procedures’. The US further added that the tanks for the aerosol sprinkling system had actually been used to carry fuel in view of the long-distance flight. On 28 April, in a note to the UN Secretary-General, Cuba formally accused the United States of biological warfare. The US State Department rejected the Cuban accusations and made its own version of events public on 6 May. Cuban officials discarded the statement for its ‘lack of seriousness’. In a second letter dated 27 June to the UN Secretary-General Cuba formally rejected the US explanations: (a) the regulations of the International Civil Aviation Organization do not mention the use of smoke generators to signal the position of aircraft in flight and such use is not a known practice except for aerobatics; (b) crop duster planes manufactured and operated all over the world are not equipped with smoke generators; and (c) the plane had no requirement to carry extra fuel in the herbicide tank since its normal fuel load sufficed amply for the flight. Even if some extra fuel had been carried in the tank, then it was technically feasible to fill it with another substance too, allowing for initial consumption of fuel and then for spraying.

The formal consultative meeting began in Geneva on 25 August in closed session, but failed to resolve Cuba’s claim after three days of talks, because, according to the chair, British Ambassador Ian Soutar, ‘it was not possible to draw a direct causal link’ between the overflight and the outbreak. As the Thrips palmi occurs in Haiti, the Dominican Republic, Jamaica and in Florida, the main unresolved question is whether the insect could have been introduced to the Cuba in another way. The meeting mandated Ambassador Soutar to further investigate the allegation and prepare a report by 31 December 1997.

His report, delivered on 15 December 1997, concluded that ‘due inter alia to the technical complexity of the subject and to passage of time, it has not proved possible to reach a definitive conclusion with regard to the concerns raised by the Government of Cuba’.  Twelve states parties to the BTWC had submitted comments, which were annexed to the report. All agreed that insufficient evidence was available to establish a causal link between the outbreak of Thrips palmi in Cuba in December 1996 and the overflight of the US plane two months earlier. The report noted that throughout the process general agreement existed that the requirements of Article V of the BTWC and the consultative process established by the 3rd Review Conference had ‘been fulfilled in an impartial and transparent manner’.

The interesting thing is that while the BTWC states parties decided to take up the Cuban allegation of entomological warfare, in their conclusions they carefully avoided naming the incident a case of biological warfare. As Nicholas Sims of the London School of Economics and Political Science noted in his SIPRI book The Evolution of Biological Disarmament (Oxford University Press, 2001),

Denmark and the Netherlands expressed doubt, which other parties are known to have shared, over the question of whether insects or other pests such as Thrips palmi fall within the scope of the BTWC. Both states included statements that their participation in the consultative process was without prejudice to their national positions on this question.

Cuba, having raised the matter under the BTWC, made it politically difficult for the United States to invoke a legalistic argument to avoid addressing the concern. The documents of the consultative meetings have not been published—Sims does quote some extracts from them—and there is no indication that the incident was precedent-setting in the minds of the states that participated in the exercise.

So to answer the question whether the BTWC bans the use of insects other than for the delivery of a pathogen or toxin, one can only note equivocalness: not prima facie, but in practice some scope may exist to lodge a complaint about malicious use of insect vectors against agriculture with one of the three BTWC depositary states.

Conclusion

To come back to the Jeffrey Lockwood’s suggestion that not all biological warfare may necessarily be wrong, my answer is unequivocally: WRONG!

International law, in the form of the BTWC, allows no exceptions on the use of pathogens or toxins as weapons of war. There have been and still are important reasons why lethality or other humanitarian considerations were discarded as criteria for defining biological and toxin weapons. Any suggestion to the contrary might open up a loopholes that proponents of so-called non-lethal warfare would be all to happy to exploit today and tomorrow.


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.

20150330 BTWC 40 Jeremias

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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