BioWeapons Prevention Project

This evaluation of the contribution the Intersessional Process (ISP) has made to strengthen the BWC - and the regime that has developed around it through state practice – will first establish the criteria against which the impact of the ISP will be assessed. For this it will need to take into consideration the normative structure of the BW prohibition regime and the context in which the ISP emerged. In addition, the mandate that BWC States Parties gave themselves for this process and its actual conduct will be discussed.¹

For ease of discussion, I will focus on two aspects of regime or norm effectiveness here: 1) goal achievement and 2) regime compliant state behaviour. The overall goal of the BW prohibition regime as clearly spelled out in the preamble of the BWC is “to exclude completely the possibility of bacteriological (biological) agents and toxins being used as weapons”. For state behaviour this translates into the non-use norm² of the regime. However, the norm not to use biological agents and toxins as weapons is complemented in the BWC by normative guidelines for state behaviour not to develop, produce, otherwise acquire, stockpile, retain or transfer BW. In addition, Article IV of the BWC contains the internalisation norm, Article V the consultation norm, Article VII the assistance norm and Article X the cooperation norm of the regime.³ What is clearly missing from this list – especially when comparing the BW prohibition regime with the one on chemical weapons – are norms that establish submitting declarations and accepting some form of inspections as appropriate standards for state behaviour. Addressing this absence of declaration and inspection norms in the structure of the regime was one of the aims of the work of the Ad Hoc Group. When this process came to a halt in summer 2001, it led to a substantial refocusing of the activities of BWC States Parties: instead of an addition of normative guidelines to the regime, the core of activities in ISP 1 from 2003 to 2005 moved to addressing already existing regime norms.

It is worth recalling that the narrowly focussed scope of activities originally had its basis in a set of proposals put forward by then US President Bush in November 2001.⁴ The reconvened 5th BWC Review Conference in November 2002 eventually agreed that between then and the 6th Review Conference States Parties at annual meetings would “discuss, and promote common understanding and effective action on”:

1. The adoption of necessary national measures to implement the prohibitions set forth in the Convention, including the enactment of penal legislation;
2. National mechanisms to establish and maintain the security and oversight of pathogenic microorganisms and toxins;
3. Enhancing international capabilities for responding to, investigating and mitigating the effects of cases of alleged use of biological or toxin weapons or suspicious outbreaks of disease;
4. Strengthening and broadening national and international institutional efforts and existing mechanisms for the surveillance, detection, diagnosis and combating of infectious diseases affecting humans, animals, and plants;
5. The content, promulgation, and adoption of codes of conduct for scientists.

In addition to the narrowing in scope, ISP 1 was also limited to discussions and the promotion of “common understandings and effective action” (none of which was clearly defined), not the negotiation of a new agreement supplementing the BWC. On a positive note, the ISP foresaw annual meetings of experts and States Parties and thus did not return to the practice of only meeting for the quinquennial Review Conferences as practised up until 1991. This allowed the continuation of the dialogue on some of the weaknesses of the regime begun during the AHG as well as the maintenance of a community of experts, both governmental and non-governmental that had formed during this period. This expert community was actually broadened through the selection of topics during the ISP.

The first two of the five topics for ISP 1 were discussed during 2003 and are clearly related to the internalisation norm contained in Article IV of the BWC which states that States Parties shall “take any necessary measures to prohibit and prevent” domestically all of the prohibited activities specified in Article I. Based on numerous presentations and national papers submitted during both the meeting of experts and states parties, the latter agreed “on the value of the following:

The second set of topics addressed during the 2004 meetings of experts and States Parties relates to the regime’s assistance and cooperation norms. In addition to the substantive treatment the issues of suspicious disease outbreaks and investigations of alleged BW use received, the 2004 meetings were also characterised by involvement of actors not normally associated with BW arms control, such as the Food and Agriculture Organization (FAO), the World Health Organization (WHO) and the World Organization for Animal Health (OIE).

The final topic on codes of conduct again had a strong internalisation dimension, with States Parties recognising that “codes of conduct, voluntarily adopted, for scientists in the fields relevant to the Convention can support the object and purpose of the Convention by making a significant and effective contribution, in conjunction with other measures including national legislation, to combating the present and future threats posed by biological and toxin weapons”.⁶ However, codes of conduct are also related to the cooperation norm of the regime to the extent that such codes can be pursued by inter- or transnational coalitions of like-minded actors.

In summary, the first Intersessional Process from 2003 to 2005 marked a clear departure from the earlier attempts to strengthen the BW prohibition regime through the addition of declaration and inspection norms. Instead, the focus of activities during the meetings of experts and States Parties was now on selected norms of the regime, most notably the ones on internalisation, assistance and cooperation. The provision of information by states in the selected areas of the work programme has led to a greater degree of transparency and thus put observers in a better position to judge the degree to which the behaviour by BWC States Parties is regime compliant. In this sense, the first ISP has had a regime strengthening effect.

References

1. In the first instance the latter two of these issues will be covered for the first ISP only. The second ISP and an overall evaluation will be provided in a subsequent contribution to this discussion
2. Norms are understood to be general standards for permissible behaviour that in the context of treaty based international regimes are legally binding.
3. For a more detailed discussion of the scope and structure of the regime see A. Kelle (2003) Strengthening the Effectiveness of the BTW Control Regime – Feasibility and Options, Contemporary Security Policy, 24(2): 95-132
4. “President Bush Proposes Steps to Strengthen Biological Weapons Pact”, available at http://slovakia.usembassy.gov/text_011101.html
5. Report of the Meetings of States Parties, document BWC/MSP/2003/4 (Vol. I), Geneva, 26 November 2003, p.5
6. Report of the Meeting of States Parties, document BWC/MSP/2005/3, Geneva, 14 December 2005, p.4.

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Judging the effectiveness of the BTWC intersessional process presumes a statement of its goals. In the chaotic aftermath of the collapse of the Ad Hoc Group (AHG) negotiations on a legally binding protocol to the BTWC in the summer of 2001 and the collapse of the 5th Review Conference over US insistence to terminate the AHG mandate five months later, a core goal—as stated by many diplomats at the time—was to keep states parties talking while cautiously feeling for new common ground. Framed as such, the intersessional process is a definite success: since the resumed session of the 5th Review Conference in 2002 adopted the work programme for the next three years, states parties have met twice a year annually. The 6th Review Conference (2006) opted to continue the activities during the next intersessional period (2007–10), thereby broadening the range of topics.

However, if one frames the question in terms of the process’s contribution to the BTWC regime, then the reply must necessarily be ambivalent. If one limits the assessment to the first series of meetings only, as Alexander Kelle does in his lead article, then final judgment probably tends towards the negative. In 2005 I was likewise dismissive of the process, having repeatedly described it as Beschäftigungstherapie (occupational therapy). Yet, contrasting the intersessional process with the original AHG ambition of designing a reporting and verification regime similar to that of the Chemical Weapons Convention (CWC) and the CWC’s achievements since its entry into force in 1997 amounts to wistful contemplation about a Cold War-era ambition. In the post-Cold War era, the goals of disarmament and arms control have changed, many new stakeholders and partners in the process have been identified, and novel approaches to generating transparency and confidence in treaty compliance have emerged. Particularly during the second series of intersessional meetings the sense about new forms of partnerships and procedures has grown, potentially placing the BTWC in the vanguard of future disarmament dynamics.

The range of actors who can participate in the disarmament process—for the BTWC, essentially preventing future armament—has widened from state agencies to civil society constituencies, professional and scientific associations, and even individuals. The intersessional process has furthermore brought representatives from organisations as diverse as the World Health Organisation, Food and Agricultural Organisation and the World Organisation for Animal Health, Interpol, the World Trade Organisation and the World Customs Organisation, United Nations agencies concerned with disarmament, environmental protection and development, treaty-specific disarmament organisations, multi- and transnational companies, research institutes, etc, into the debates. Prevention of biological weapons (BW) clearly no longer lies with just a single treaty, but the ambition has become a shared responsibility of all.

Overlapping networks of cooperation and integration of activities appear to point to the future of BW disarmament. However, the many institutions still need to expand their respective comfort zones for working together, sharing information and integrating activities where possible. Bureaucratic resistance, different membership, or the stakes of different state agencies in the functioning of the various international agencies may remain major impediments. Equally important will be solidification of the ‘transparency’ concept, particularly if its ultimate goal is the generation of data that offer context for interpreting activities and judging treaty compliance in the absence of formal verification.

The degree to which states parties capture the novel trends that have emerged from the second series of intersessional meetings and translate their potential into a new plan of action for the next intersessional period leading up to the 8th Review Conference (2016) will define not just the success of the 7th Review Conference, but also the continuing relevancy of the BTWC in times of fast changing security expectations, scientific progress and technological innovation, and industrial and trade applications.


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In response to the negative outcome of negotiations in 2001, and the subsequent Fifth Biological and Toxin Weapons Convention (BTWC) Review Conference in 2001/2002, States Parties developed an intersessional process of annual meetings that started in 2003.¹ The aim of the meetings, held twice a year, was to “discuss and promote common understanding and effective action” on a set of topics agreed on by the States Parties to the BTWC including “regional and sub-regional cooperation on implementation of the Convention”, the enhancement of “international cooperation, assistance and exchange in biological sciences and technology for peaceful purposes” and “capacity building in the fields of disease surveillance, detection, diagnosis, and containment of infectious diseases”.²

Throughout both cycles of the intersessional process from 2003 – 2010, states parties have been able to continue the dialogue on key aspects of the BTWC. In addition, the intersessional process has created space for experts from the scientific community and non-governmental organisations (NGOs) to address states parties and assist with the more challenging aspects of the convention.

Although the topics discussed at meetings of experts and meetings of states parties are considered the less contentious issues³, including ways and means to improve national implementation and enhancing international cooperation, these are precisely the issues that are most relevant for the developing world. The intersessional process has provided developing states parties with the opportunity to share their experiences and communicate their specific needs, especially relating to Article X. The intersessional meetings have also given NGOs and scientists from the developing world the opportunity to engage with peers from the developed world, and this has resulted in engagements outside of the formal BTWC process.

However, more can be done. Although space has been created for participation, there continues to be a low level of participation from states parties and scientific and NGO experts from the developing world. This lack of participation is a result of various factors, including lack of resources – both human and financial – and a lack of awareness of the relevance of the BTWC to socio-economic development. In addition, developing states often feel the security interests of the developed world overshadow their own safety concerns.

Although the intersessional process has largely been successful in fulfilling its mandate, it is time for a new approach.⁴ It is hoped that proposals from the developing world will assist states parties in developing an appropriate follow-up process during the next review cycle.

References

1. Cindy Vestergaard and Animesh Roul, ‘A (F)utile Intersessional Process? Strengthening the BWC by Defining Its Scope’, The Nonproliferation Review, Volume 18 Issue 3, 489-497.
2. BWC/CONF.VI/6, Part III, paragraph 7.
3. Cindy Vestergaard and Animesh Roul, ‘A (F)utile Intersessional Process? Strengthening the BWC by Defining Its Scope’, The Nonproliferation Review, Volume 18 Issue 3, 489-497.
4. South Africa, ‘Proposal for the intersessional process’, http://www.unog.ch/80256EDD006B8954/(httpAssets)/7C4F28568314206DC125793300365AD2/$file/South+Africa+new+ISP.pdf, 2011

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