The Biological Weapons Convention is the result of an international effort to address biological and medical research used for both peaceful purposes and the making of weapons. The convention was signed in 1972, was ratified by the U.S. Senate in 1974, and entered into force in 1975. However, the first official U.S. action on biological weapons occurred in November 1969 when President Richard Nixon renounced all biological weapons research and employment by the United States.

He did not prohibit U.S. R&D of defences against biological weapons, such as the production of vaccines. Although the United States was sincere in its renunciation of bio-weapons research and employment, the motives of several of the many nations signing the BWC can be questioned. Those countries include Iran, Iraq, the People’s Republic of China, North Korea, Libya, and Syria.

The BWC provides for signatories to exchange materials, equipment, and scientific and technological information for the promotion of peaceful uses of biological R&D (Article X). But the treaty prohibits signatories from stockpiling bio-weapons (Articles I–II) and requires those nations to proscribe bio-weapons development or possession within their borders (Article IV). The BWC insists that signatories agree to cooperate in prohibiting the transfer, development, and employment of biological weapons, including toxins (Article III).

The convention also requires that participating nations assist in investigating allegations of bio-weapons R&D or use (Articles V–VII). The original treaty did not include any protocols or procedures for its enforcement. That omission and other concerns have been the focus of numerous international meetings since 1975.

The major focus of the discussions on enforcement has been inspections and procedures. The proposed scope and mechanics of inspections are approaching consensus and final adoption. Many of the proposed details are beyond the scope of this study. The issues addressed in this paper are whether such inspections will ensure compliance with the BWC and whether the proposed inspection protocols are constitutional.

Strengthening the BWC Enforcement Measures

Proposals to strengthen the BWC have three main features. The first is a declaration process in which biotechnology companies and government laboratories provide information on such matters as their activities and equipment and the biological materials they use. The second feature is inspection and investigation regimes of varying levels of intrusiveness that arise from the declarations or from accusations of violation of the BWC.

The third element consists of supporting documents collected from the inspected facility and in some cases retained by the inspecting team and the organization that administers the BWC. Generally, the essential enforcement mechanisms of the BWC are mandatory declaration about facilities and activities of greatest concern to the BWC signatories, including information on past and present activities, equipment, and types of biological organisms on site; nonchallenge visits that are either random (visits to declared facilities intended to verify, as needed, the declarations) or focused (visits to declared facilities to clarify inconsistent declarations); and facility and field investigations in response to any compliance concerns that may arise.

The kinds and numbers of visits have been in some flux as the discussions on strengthening the BWC have proceeded. Possible triggers for visits may include past offensive or defensive biological programs, current defensive programs, vaccine production facilities, facilities with stringent safety requirements (Biosafety Level-4 facilities), any R&D programs with listed biological agents of concern, and nonvaccine production facilities.

Inspections in Iraq: A Case Study in Ineffectiveness

The limited prospects of success of the protocols for inspections and investigations under the BWC can be seen by examining the UNSCOM inspections of Iraq’s R&D programs for bio-weapons. In April 1991 Iraq officially declared the absence of any biological weapons (a declaration required under the BWC). Between 1991 and 1995 UNSCOM inspection teams could not find any evidence of an Iraqi bio-weapons program—despite fears and vague intelligence provided by suspicious governments.

In 1995, after Saddam Hussein’s son-in-law defected and revealed the existence of a bio-weapons program, Iraq finally admitted that such R&D was under way. As noted by Graham Pearson, Biological investigations have, even after the admissions by Iraq and despite more than 35 inspections, never seen a filled BW weapon or bulk agent.

Iraq then asserted that bio-weapons had been destroyed but could offer no verifiable evidence. Yet, if agents were destroyed, none would probably remain for detection. In addition, the inspectors felt that the absence of paperwork was a problem. But even reams of paperwork recording destruction would not necessarily guarantee compliance.

Conclusion
Fundamental problems exist with enforcement regimes proposed for the BWC. Rogue states (for example, Iraq, Iran, North Korea, and Syria) can easily thwart the enforcement regime. A rogue state is unlikely to declare that it has a bio-weapons R&D program currently in place. U.S. laws concerning bio-weapons R&D are cited as examples on which other countries may model their laws to comply with the BWC.

But is one to assume that if Iraq enacted tough U.S.-style laws against bio-weapons R&D, that would obviate any concern over Iraqi aspirations to have biological weapons and the need for closer scrutiny of Iraqi facilities?

If sensitive areas of a facility and sensitive or proprietary documents are opaque to inspection under the confidentiality provisions of the protocols, then inspectors essentially have only the word of the inspected facility. Logic dictates that any bio-weapons R&D areas and documents will be declared confidential and out of bounds to inspectors. Rogue states will certainly seek to conceal their activities behind rules on confidentiality.

The February 1999 National Symposium on Medical and Public Health Response to Bioterrorism may have been a start in the right direction. Instead of undertaking feel-good efforts to strengthen an international convention that will not stop the proliferation of biological weapons and will probably lead to the compromise of proprietary biotech information, the U.S. government should reduce its profile as a target for biological weapons by limiting overseas interventions and enhance domestic preparedness against attack.

Written By: Ujjwal Vats, BA.LLB (hons.) VII Semester - IMS Unison University, Dehradun

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