ABSTRACT
Regaining
the diplomatic mainstream at the Sixth Review Conference requires
convergence of effort on a BWC agenda for recovery, to repair some
of the damage the BWC suffered in 2001-02. A first test for any emergent
grouping of like-minded States Parties, together with ICRC and NGOs,
could be to champion the completion by 26 March 2005 (thirtieth anniversary
of entry into force) of effective action on particular BWC commitments,
agreed by consensus and long outstanding. This paper identifies commitments
from 1980, 1986, 1991 and 1996 and calls for a weekend conference
to mark their completion: consolidation before the next advance.
Introduction
26
March 2005 will be the thirtieth anniversary of the entry into force
of the Biological Weapons Convention (BWC). How can this occasion
be best used to help the BWC recover from the reverses which it suffered
in 2001-02 and to prepare the ground for a successful return to the
mainstream diplomacy of biological disarmament at the Sixth Review
Conference in 2006 - now only three years away?
This
paper brings together a specific proposal made to the first BWC Meeting
of Experts under the new process (19 August 2003) [1] with the more wide-ranging analysis published
in Disarmament Diplomacy 70 (April/May 2003)
[2] and takes both of them forward. The aim is to identify 26
March 2005 as a recognised target date as well as an anniversary,
thereby giving it a central place in a coherent approach to the recovery
of the Convention.
The
proposal made on 19 August 2003, in the context of the first topic
which the Meeting of Experts was addressing (“the adoption of necessary,
national measures to implement the prohibitions set forth in the Convention,
including the enactment of penal legislation”), was that BWC States
Parties should complete their national implementing legislation by
26 March 2005. This would be the thirtieth anniversary of entry into
force; but it would also be almost exactly 25 years from the call
for immediate action issued by the First Review Conference
(21 March 1980) which, in the Article IV section of its Final Declaration,
"calls
upon all States Parties which have not yet taken any necessary measures
in accordance with their constitutional processes to do so immediately."
[3]
The
proposal now is to combine that proposal with the Disarmament Diplomacy
70 analysis and to extend the call for completion beyond national
implementing legislation alone.
26
March 2005 should be recognised as a target date by which States Parties
should have completed those actions on which they have agreed by consensus,
which they have long since collectively accepted as commitments,
and for which the concept of completion makes sense.
(Evidently, there are other very important actions, such as compliance
with BWC obligations under Articles I and III, and arguably also Article
X.2, which require continual vigilance rather than completion; and
there are yet others, such as those under Article X.1, which require
States Parties to remain continually alert to new opportunities for
peaceful-uses cooperation.)
The
concept of completion, as will be shown below, makes sense in the
following cases of consensually agreed actions which are the subject
of long-standing BWC commitments:
a.
national implementing legislation (Article IV)
b.
sharing of legislative and other relevant texts through the UN for
purposes of consultation (Article IV)
c.
for non-parties to the Geneva Protocol, ratification or accession
to the Protocol (Article VIII)
d.
for parties to the Geneva Protocol, withdrawal of reservations on
retaliation (Articles I and VIII)
e.
CBMs (Articles V and X).
How the proposal fits into the overall analysis
This
approach has the advantage of constituting follow-up to the Final
Declarations of the first four Review Conferences (1980, 1986, 1991,
1996), which in itself reaffirms the value of those declarations. [4] It rejects the idea that the new process has superseded an
older and inferior review process which can now be consigned to history.
On the contrary, it upholds the centrality of the cumulative review
process as the mainstream of BWC diplomacy, to which it is necessary
to return in 2006.
But
it does so in a way which cannot be misunderstood or misrepresented,
even by those most suspicious of multilateral processes, as embarking
on new negotiations or fashioning new agreements. (It was suspicions
of that kind, however far removed from reality, that constrained the
Fifth Review Conference at its resumed session in November 2002 and
shaped the restrictive mandate of the new process for 2003-2005.)
Although
not part of the new process, this approach converges with it on the
need for "effective action". [5] It does not cut across the five topics allocated to that process
by the Fifth Review Conference or interfere with the corresponding
Meetings of Experts and of States Parties. These meetings can remain
completely self-contained, if that is how the States Parties continue
to interpret them, and subject to all the other restrictions of their
November 2002 mandate. [6]
Yet
implicit in this approach is the preference for a return in 2006 to
the review process proper, with its accumulation of extended understandings,
procedures and commitments, as the main vehicle (in the continued
absence of a legally-binding instrument to strengthen the Convention
such as the Ad Hoc Group was working towards from 1995 to 2001) for
steering the constructive evolution of the BWC as a working multilateral
treaty.
Why
completion matters
Completion
of the actions specified below by 26 March 2005 would have a positive
psychological effect. It would provide a common platform from which
States Parties could move forward over the following 18 or 20 months
to make a success of the Sixth Review Conference, with greater confidence
than in the past decade (or even longer) that most of them are taking
the BWC seriously. Admittedly it would not tackle the gravest concerns
over non-compliance with Article I. But only a few States Parties
(and we should be thankful that it is only a few) give rise
to such concerns. A much larger number fall short in terms of their
attentiveness to those actions which remain the subject of politically-binding
commitments.
At
a time when BWC States Parties are prevented by external pressures
from collectively addressing the gravest concerns of non-compliance
with Article I, let alone reinforcing the BWC with stronger compliance
measures as a functional substitute for verification, some other index
of serious commitment to the BWC is required. Completion could be
the index of commitment, particularly valuable in this era of regrettably
limited expectations. It would help stop the BWC going backwards
and would get States Parties collectively into better shape for the
next move forwards when external conditions allow that to happen.
Identifying
agreed actions in need of completion
The
19 August 2003 proposal was to make 26 March 2005 the target date
for completion of one particular agreed action: national implementing
legislation. This is something to which States Parties have long
been collectively committed, and moreover to a certain standard of
scope and effectiveness, as defined in Article IV and through the
cumulative text of successive Final Declarations up to 1996. These
latter constitute an extended, and authoritatively stated, understanding
of the implications of Article IV. [7] Much has been done (albeit not with the immediacy
prescribed, by consensus, in 1980); but it needs completion.
The
same can be said of the sharing of legislative and other relevant
texts through the United Nations for purposes of consultation (Article
IV), and of the call to non-parties to the Geneva Protocol to ratify
or accede to that treaty (Article VIII). They may have been expressed
marginally less strongly in the language of Final Declarations than
the insistence on immediate action just noted, but they were nevertheless
agreed by consensus as actions which states deemed appropriate to
exhort themselves to take as parties to the BWC. These commitments,
too, date from 1980 and still await completion. [8]
To
these can be added the collective commitment to withdrawal of the
remaining Geneva Protocol reservations on retaliation (Article VIII).
This is an extended understanding, authoritatively stated in 1991
and even more plainly and insistently in 1996, of the implications
of Article VIII when combined with the irresistible logic of Article
I. Again, much has been done, but it needs completion, in this case
by some of the major military powers as well as some less powerful
states which have still not taken the necessary legal action to withdraw
their reservations or even modify them for consistency with their
BWC obligations. [9]
Confidence-building
measures (CBMs)
CBMs
have been awaiting completion since 1986 and, as enhanced and expanded,
since 1991. The great day was to have dawned on 15 April 1992. That
was the date by which every State Party should have communicated to
the United Nations its initial declaration under each CBM of the 1991
set. (Only eleven States Parties – fewer than 10% - did so. [10] ) Thereafter they were to be
updated or reaffirmed ('no change') annually.
Here
the 2005 target would be a 100% response rate on each CBM. Admittedly,
the CBMs vary in continuing importance and a 100% response rate is
in itself no guarantee of quality: the information supplied may be
so wide of the mark or full of gaps or lacking in precision (or even
credibility) that it engenders little confidence. But a 100% response
rate is still something worth aiming for, as a common commitment to
be fulfilled. There is also a case for multilateral scrutiny of CBM
returns to be properly organised among those States Parties which
fulfil their CBM commitments, through a dedicated mechanism for such
scrutiny, on an annual basis, as proposed at the Toronto Workshop
on CBW (and other disarmament) Treaty Compliance Mechanisms in 1995.
[11]
CBMs
have been a politically-binding commitment agreed by the States Parties
ever since 1986, and remain much the most-publicised of all their
politically-binding BWC commitments. So response rates are symbolically
important, as the most readily available quantitative indicator of
the seriousness with which States Parties take the BWC.
Moreover,
given that nil returns and 'no change' answers are acceptable, there
is little room for most States Parties to complain that CBM declarations
are too onerous to make in the first place or too difficult to keep
up to date having made their initial declaration under each CBM.
A
pause for thought
Just
think how much better shape the BWC would be in if, by 26 March 2005,
every State Party had completed its national implementing legislation
and shared the relevant texts through the UN, had made returns up
to date under each CBM, and had joined the Geneva Protocol; and if
no State Party had any Geneva Protocol reservations on retaliation,
intentionally or simply by default, still left in place.
How much else should be added?
So
far five commitments of long standing (counting the CBMs as one commitment)
have been identified. How much else should be added? In particular,
which actions already agreed under the Article III and Article X sections
of the Final Declarations up to 1996 would provide the most reassurance
to States Parties, or the best evidence that they are taking the BWC
seriously, and would be manageable as lending themselves to completion
in the time available? As always in BWC diplomacy, any references
to Article III and Article X would have to be carefully balanced with
one another.
How
much priority, if any, should be given to the unfinished business
of 21 March 1980 (25 years from which takes us almost exactly to
26 March 2005) over the unfinished business of 26 September 1986,
27 September 1991 and 6 December 1996?
For
example, one commitment already identified from 1980 is contained
in the second part of the following sentence from the Article VIII
section of the Final Declaration, concerning the Geneva Protocol:
"The
Conference calls on those States Parties to the Convention which are
Parties to the Protocol to comply strictly with its provisions and
those States not yet Parties to the said Protocol to ratify or accede
to it at the earliest possible date."
This
sentence illustrates well the difference between continuing actions
of indefinite duration, on the one hand, and those which permit completion,
on the other. To comply strictly with the provisions of the Geneva
Protocol requires continual vigilance, especially the obligation "to
exert every effort to induce other States to accede to the present
Protocol", an obligation to which the BWC contains no equivalent.
(Let us assume that for most Geneva Protocol parties it is easier,
although of course even more important, to comply strictly with the
obligation to refrain from the use of chemical or bacteriological
methods of warfare.)
But
for all States Parties to the BWC to ratify or accede to the Protocol
is an action which can and should be completed. In 1980, when this
commitment was agreed, there were 15 States Parties to the BWC (out
of 87) which were not concurrently parties to the Protocol.
[12] In 2003 there are 31 (out of 150).
[13] (See Annex.) It would be reasonable to expect them all
to have acceded to the Protocol - or, in the case of El Salvador,
to have ratified its 1925 signature - by 26 March 2005. So
it has been included among the five commitments of long standing which
await completion, as specified earlier in this paper.
However,
a similarly politically-binding commitment to joining the Chemical
Weapons Convention (CWC) is contained in the 1996 Final Declaration
(paragraph 4 of the Article IX section), where
"The
Conference calls upon all States that have not yet done so to sign
and/or ratify the Convention without delay." [14]
This
suggests a further item for the list of commitments which ought to
be specified for completion by 26 March 2005, unless it is thought
preferable to restrict it to those which have been outstanding the
longest despite exhortations of immediacy (or "at the earliest
possible date") as in the 1980 declaration.
On
the one hand a long list of desired actions for completion is less
likely to be fulfilled. On the other, a list of actions for completion
which is itself incomplete may be open to criticism. It would, to
continue with this example, be difficult to justify including the
commitment to joining the Geneva Protocol but excluding the commitment
to joining the CWC, just because (by 2005) the first of these commitments
would be 25 years' old and the second only 8 years' old. Moreover,
the commitment to joining the CWC is also related to the withdrawal
of all Geneva Protocol reservations pertaining to retaliation, where
(as in almost every case) such reservations make no distinction between
BW and CW. There is a relationship of mutual reinforcement between
the commitments to joining the Protocol and joining the CWC, and likewise
between the commitments to joining the CWC and withdrawing reservations
to the Protocol.
Convergence on a new agenda for recovery
The
next section of this paper considers how this proposal might be taken
forward. In terms of the analysis offered in Disarmament Diplomacy
70, the effort to make a reality of the 26 March 2005 target date
would be a first test of any emergent grouping of like-minded states
working together with the International Committee of the Red Cross
(ICRC) and with non-governmental organisations (NGOs) as 'friends
of the Convention' to promote its recovery.
Such
a convergence of governmental, ICRC and NGO elements working on a
new agenda for recovery was seen in Disarmament Diplomacy 70
as the best hope for extricating the BWC from the precarious state
to which it was reduced by the successive blows it sustained in 2001
and 2002:
"The
way out of the doldrums in which BWC diplomacy has got stuck will
almost certainly involve a convergence of two new developments.
"One,
which is already discernible but has not yet fully taken shape, is
a civil society movement built around the BioWeapons Prevention Project
(BWPP), which was launched in 2002. Some key civil society players
are already active in the BWPP...Most importantly, potential partners
include the medical and scientific communities and their professional
associations, which could complement the Biotechnology, Weapons and
Humanity initiative of the ICRC, with its distinctive emphasis on
the humanitarian tradition in its repudiation of biological warfare.
"The
other necessary development has not even started yet. A group of
key, like-minded, states parties is needed, to take the lead in defining
and promoting among governments a new agenda for the recovery of the
BWC treaty regime. At the technical level this group could provide
the core of a draft Final Declaration for 2006; at the political level
it could encourage ever widening circles of states parties to set
their sights for the Sixth Review Conference much higher than they
did for the Fifth.
"This
new like-minded group would need to span Groups (Eastern, Western,
NAM) and regions of the world in order to be sufficiently broad-based
and to attain global credibility and wide political acceptability...The
group could begin to coalesce in the margins of the first Meeting
of States Parties (10-14 November 2003). By that time the ICRC and
BWPP initiatives will be a year old, and everyone will have had time
to leave behind the prolonged crisis of the Fifth Review Conference,
to complete their reflections on what went wrong in 2001-02, and to
gather their thoughts for the future. The Geneva Forum and the Pugwash
CBW Study Group, among others, could continue their valuable work
in providing acceptable auspices under which to bring governmental
and non-governmental people together in informal discussions where,
as for some years past, ideas can be pooled and proposals refined
which may steer the process of recovery." [15]
Since
that article was written, the new process has seen its first Meeting
of Experts (18-29 August 2003) spend a week apiece on topics (i) and
(ii), and the corresponding Meeting of States Parties is imminent.
The BWPP and ICRC were active in the margins during the largely-closed
Meeting of Experts (although most regrettably the ICRC was not accorded
speaking rights as an international organisation at the opening plenary
session when, on BWC Review Conference precedents [16] , it was rightly expecting to be heard) and
six NGOs [17] in
addition to the BWPP were allowed to make statements in the conference
room as they had requested. However, nothing resembling a like-minded
group seems to have emerged among the delegations of States Parties.
Whether one will emerge during the first Meeting of States Parties
(10-14 November 2003) remains to be seen. Some updating may therefore
be needed, but the analysis and prescription offered in April/May
2003 remain (it is suggested) generally valid.
Conclusion
To
conclude, then, it is proposed that the convergence of a like-minded
group of governments with the ICRC and NGOs on a new agenda for recovery
for the BWC still offers the best hope for 2006. Setting 26 March
2005 as a target date for the completion of actions on an identifiable
set of BWC commitments already agreed by consensus is not, in itself,
part of a new agenda. It has a deliberately more modest ambition:
to consolidate, rather than to advance. It should be politically
uncontroversial, even welcome, in a climate where all States Parties
find themselves invited repeatedly to demonstrate how seriously they
take their allegiance to the BWC. But it could well constitute a
first test of the effectiveness of these convergent elements, occupying
as it does a central point in the three years' build-up from now
to the Sixth Review Conference; and it could provide a common platform
from which to move forward.
26
March 2005 falls on a Saturday. A weekend conference, for which UNIDIR
and a representative group of NGOs might (as for the 25th anniversary
in 2000) provide acceptable auspices, could perhaps be held in Geneva
or within easy reach of Geneva to attract the delegations of States
Parties.
But
it would be even better if the Secretary-General of the United Nations,
or the BWC Depositaries, or another group of States Parties, felt
able to take the initiative. Such an opportunity deserves to be whole-heartedly
embraced by governments. It would be a great pity if they were to
feel themselves to be precluded from marking this occasion by too
narrow an interpretation of the limit to three weeks in each of the
years 2003, 2004 and 2005 imposed in 2002. The meetings which the
Fifth Review Conference decided to limit by the 3 weeks x 3 years
formula were by no stretch of the imagination celebratory in character.
This
weekend conference on 26 and 27 March 2005 could fittingly celebrate
thirty years of the BWC in force and at the same time recognise with
satisfaction the completion of actions to which the States Parties
committed themselves long ago.
.........................................
Address
for correspondence:
Department
of International Relations
London School of Economics and Political Science
Houghton Street
London WC2A 2AE
UNITED KINGDOM
e-mail: n.sims@lse.ac.uk
ANNEX
BWC
States Parties which are not parties to the Geneva Protocol
One
which has signed the Protocol (on 17 June 1925):
El Salvador
Thirty which have
neither signed nor ratified/acceded to the Protocol (in alphabetical
order):
Armenia
Bahamas
Belize
Bosnia and Herzegovina
Botswana
Brunei Darussalam
Colombia
Congo
Costa Rica
Croatia
Democratic Republic
of Congo
Dominica
Georgia
Honduras
Macedonia, Former Yugoslav Republic of
Mali
Oman
Palau
San Marino
Sao Tome and Principe
Seychelles
Singapore
Slovenia
Suriname
Timor-Leste
Turkmenistan
Ukraine
Uzbekistan
Vanuatu
Zimbabwe
For
interest there are 14 States Parties to the Geneva Protocol which
are not parties to the BWC. Nine of these are signatory-only (Central
African Republic, Cote d’Ivoire, Egypt, Liberia, Madagascar, Malawi,
Nepal, Syria, Tanzania) and the remaining five have neither signed
nor ratified/acceded to the BWC (Angola, Cameroon, Israel, Sudan,
Trinidad and Tobago).
[1] London School of Economics and Political Science, Statement by Nicholas
A. Sims, available on the Bradford website:
http//www.brad.ac.uk/acad/sbtwc
[2] Nicholas A. Sims, ‘Biological disarmament in the doldrums: reflections
after the BWC Fifth Review Conference’, Disarmament Diplomacy
70 (April/May 2003), pp. 11-18.
[3] BWC/CONF.1/10 (21 March 1980).
[4] Final Declarations of BWC Review Conferences:
BWC/CONF.1/10
(21 March 1980).
BWC/CONF.II/13/II
(26 September 1986).
BWC/CONF.III/23
(Geneva 1992). The Final Declaration had been adopted as BWC/CONF.III/22/Add.2
on 27 September 1991.
BWC/CONF.IV/9,
6 December 1996.
[5] BWC/CONF.V/CRP.3 (6 November 2002).
[6] CRP.3 was adopted on 14
November 2002 as the Decision of the Fifth Review Conference and
forms part of the Final Document, BWC/CONF.V/17. (There was no
Final Declaration.)
[7] Graham S. Pearson and Nicholas A. Sims, ‘Maximizing the benefits of
the inter-review process: 1.national implementing legislation’,
in Graham S. Pearson and Malcolm R. Dando (eds.), Strengthening
the Biological Weapons Convention, Briefing Paper (Second Series)
No.6, July 2003: available on the Bradford website (see note 1 above).
[8] For detailed commentary on the First Review Conference and the origins
of these commitments, see Nicholas A. Sims, The Diplomacy of
Biological Disarmament: Vicissitudes of a Treaty in Force, 1975-85
(London: Macmillan; New York: St Martin’s Press, 1988), especially
pp. 136-139.
[9] Nicholas A. Sims, The Evolution of Biological Disarmament (Oxford:
Oxford University Press for SIPRI, 2001) pp. 152-162.
[10] Included in UN Doc.
DDA/4-92/BWIII (30 April 1992). See Sims (2001), pp. 73-74.
[11] [Toronto Workshop 1995] Nicholas A. Sims, ‘Strengthening compliance
systems for disarmament treaties: the Biological and Chemical Weapons
Conventions’, in Canadian Council on International Law and The Markland
Group (eds.), Treaty Compliance: Some Concerns and Remedies
(London, The Hague & Boston: Kluwer Law International, 1998)
p.136.
[13] SIPRI Yearbook 2003 (Oxford: Oxford University Press, 2003),
list of States Parties to the Geneva Protocol on p.766 and to the
BWC on p.775.
[14] Accession – which would now for most states be the appropriate action
– was not included at this stage because the CWC did not enter into
force until 29 April 1997, although by the time of the declaration
the 65th instrument of ratification had been deposited
(triggering entry into force after 180 days) so the date of the
CWC’s imminent entry into force was known with certainty.
[15] The quotation is from pp. 16-17 of the Disarmament Diplomacy
70 article (see note 2 above).
[16] The precedent of an
ICRC statement delivered at the opening plenary session had been
set on 16 November 1996 by the BWC Fourth Review Conference and
followed (with a statement later in the General Debate) by the Fifth
Review Conference on 20 November 2001. But there had recently been
an indefensible denial of speaking rights to the ICRC throughout
the General Debate (28 April – 1 May 2003) in plenary session of
the Chemical Weapons Convention First Review Conference at The Hague.
[17] The other six NGOs which
addressed the Meeting of Experts on 19 August 2003 comprised the
Federation of American Scientists, the Stockholm International Peace
Research Institute, the Verification Research, Training and Information
Centre (VERTIC), and three universities: Bradford (Department of
Peace Studies), London School of Economics and Political Science
(Department of International Relations) and Maryland (Center for
International Security Studies Maryland: CISSM). For a full listing
of IGO and NGO activities at the August 2003 Meeting of Experts,
see Graham S. Pearson, ‘The Biological Weapons Convention new process’,
CBW Conventions Bulletin, No. 61 (September 2003), pp. 8-14,
at pp. 11-12.
