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Fri. December 14, 2018
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The State of the Biological Weapons Convention
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Introduction

The 1972 BWC (alongside the Chemical Weapons Convention (CWC) and Nuclear Non-Proliferation Treaty (NPT)) comprises a much-lauded (e.g. Harris 2002, p.26; Fidler 2004, p.40-1) triadic centrepiece of multilateral biological/chemical/nuclear WMD arms control negotiations (e.g. Chevrier 1995; Brugger, 2002).  Following historical contextualisation, and brief exposition of the biological weapons (BW) threat, this paper evaluates the BWC in its own terms; i.e., through analysis of state/non-state proliferation/usage.  Analysis of attempts at strengthening the BWC (particularly the 1995-2001 ‘Protocol’ process) scrutinizes the efficacy of the BWC within the wider biological arms control regime.  Multilateralism is discussed alongside US policy in shaping future directions for biological arms control, and the BWC’s role (or lack thereof) therein.  What emerges is an analysis with pointed tensions; although at once outdated, critically lacking in determinate terms and machinery, and “battered simultaneously by technological and political [factors]” (Rosenberg 1993, p.69), the BWC must simultaneously be appreciated (historically) as a genuine arms control milestone, and (contemporarily) as the best vehicle for promoting global/state-level bio-security.  However, there is much to do to ensure this potential materialises- the general obstacles of arms control are perhaps nowhere clearer than in the case of BW (Lederberg 1999, p.715). 

The Historical Context

The 1925 Geneva Protocol prohibits wartime usage, yet neglects to address wider research/development, production, possession, and transfer issues (e.g., Spiers 2010, p.50).  Foreshadowing the BWC’s failure to recognize the glut of impending biotechnological advances (e.g., Wheelis & Dando, 2000), it emerged amid low BW utility expectations (although, ratified by many as a modified document with a reprisal caveat, the Protocol became a de facto ‘wartime, first-use’ prohibition (Spiers 2010, p.51).)  Post-war, at least publicly, BW usage was considered normatively abhorrent, and militarily ineffectual due to uncertainty, delayed action, and geographical imprecision (Hammond & Carter, p.120).  In any case, nuclear developments by waning/emerging powers obfuscated BW research (Guillemin 2005, p.112).  If early doubts regarding the ability of non-verifiable and non-enforceable international agreements to limit BW development were widespread (Spiers 2010, p.52), Cold War era technological advances (DaSilva 1999, p.102-4) and demonstrable deterioration in BW norms (e.g. the Eisenhower-era policy shift towards nonlethal agent deployment and huge Soviet BW stockpiling and development) magnified BW proliferation concerns (e.g., Guillemin 2005, p.113-5), and provided much of the BWC negotiations’ impetus.       

The BW Convention’s Structure

The BWC contains just four pages/15 articles (BWC, 1975); the key articles being: I (Prohibiting BW retention BW); II (Requiring stockpile destruction/conversion); III (Prohibiting third party transfer/assistance); IV (Stipulating domestic compliance measures); V (Requiring bilateral/multilateral implementation issue solutions); VI (Establishing UN Security Council non-compliance investigations); VII/X (Imposing a duty to assist victims of non-compliance and encourage peaceful usage of biotechnology respectively).  The BWC is as simplistic as it is comprehensive, and the first internationally negotiated treaty to instigate a categorical ban (e.g., Millet 2010, p.113).  Analysis of the BWC’s efficacy must be appreciative of the wider regime, given the complex international framework (UNODA 2014, p.1).

While the prior section outlined the terms of assessment, then an analysis of Bio-threat potential is necessary to determine the stakes.  Entering a period of ‘Big Biology’ (e.g., Fullinger 2000), characterized by huge capital investment and unprecedented life-sciences developments, the human death potential is of similar magnitude to nuclear weapons (e.g., O’Toole & Inglesby 2000, p.1128).  Further, the potential for anti-crop/livestock/water deployment (e.g., Rogers et al., 1999; Da Silva 1999, p.101-2) is of additional concern.  Moreover, the BW developmental costs/complexities have been, and continue to be, considerably reduced as biotechnology access is ‘democratized’ (Killman 2011, p.210-14).   Even relatively recent major-state BW policy mainstays (e.g., assumptions regarding sub-state weaponization potential (Wheelis & Dando 2000, p.94-5)) are quickly antiquated by the sheer speed/breadth of advances, which some have likened to an unwitting biological arms race (Littlewood 2007, p.192).  The genomics revolution is set to comprehensively impact domestic/global society (Rifkin 1998, p.24-7), meaning not only increased threats, but also exacerbation of inherent difficulties in regulatory efforts by hugely lucrative/competitive (and consequentially, secretive) biotechnological industries.  Simply put, the BWC’s efficacy is a matter of exponentially increasing importance. 

BW Proliferation: State-Level Threats

There have been a number of confirmed instances of offensive, state-level BW programs (e.g., Gurr & Cole, 2010), and recent decades have seen a general atmosphere of accusation (especially by the US) and suspicion (Tucker 1997, p.168-9).  This paper considers two key examples of state-level proliferation.  Following the BWC’s 1975 enforcement, the US repeatedly accused the USSR of systematic violations; a 1979 Sverdlovsk anthrax outbreak (likely a weaponized pulmonary variety), the 1989 Dr. Pasechnik (who divulged extensive Soviet offensive programs) defection, and admission by Yeltsin of Soviet/Russian (a co-depository!) non-compliance from the outset (Tucker 1997, p.170-2)., largely vindicated these accusations (although the 1981 “Yellow Rain” incident stands as poignant evidence for difficulties surrounding informal accusation processes and investigative difficulties (e.g. Meselson & Robinson 2008, p.73-6).)  The pre-BWC US offensive program (renounced by Nixon) was dwarfed by the USSR’s, which employed some 60,000 scientists/technicians, enjoyed huge state-level investment (Brugger 2002, p.2), and successfully weaponized many lethal agents.  The BWC had failed to prevent or detect a huge clandestine program.  It was, in arms control terms, cheating of the most confidence-destroying species; while the US/United Kingdom underwent civilian review-driven  program dismantling/disavowal, the USSR cynically and secretly took  advantage (Guillemin 2005, p.131-2).  Perhaps no other incident better highlights the BWC’s core weakness: the absence of workable transparency/verification procedures and accompanying independent oversight organization.  Further, that the government-led program largely masqueraded as a commercial operation (Biopreparat) highlights the absence of suitable commercial restraints/oversight.

Iraq

Rocked by poor wartime performances and insurgencies throughout the 1960’s/1970’s, and faced with threats (primarily) from Iran and Israel, the pursuance of BW capabilities became an integral feature of Saddam’s security/foreign policy agenda (Karsh & Rautsi 1991, p.79-83).  Reviving the Al-Muthanna BW front under the leadership of General Nizar-al-Attar, the program aggressively pursued weaponization and practicable deployment in quantitative and qualitative terms (Pearson, 1998).  Dual-use equipment acquisition obstacles were overcome to the extent that weaponization of both known antipersonnel and economic warfare agents, but also agents previously considered impractical (Spiers 2010, p.112) was achieved.   The subsequent UN Special Commission (UNSCOM) enjoyed an unprecedented degree of intrusive investigative power, and a clear, well-financed mandate (e.g. Spiers 2010, p.118).  Importantly for later discussions on verification procedures, UNSCOM still encountered huge problems with blatant non-cooperation, misinformation, and intimidation- especially following the divisions in the UN Security Council that emerged after an initial consensus (Ritter, 2002).  Despite massive concealment policies and destruction of evidence (Terrill, 1993), UNSCOM was successful in accruing physical and forensic evidence of the Iraqi program (Spiers 2010, p.12).  The Iraq case must be understood as an abject regime failure in terms of restriction of access to equipment/expertise, identification of an extensive ongoing program, and enactment of unified political investigative will. 

BW Proliferation: Non-State Threats

The prospect of a terrorist group utilizing BW is a central international security concern (e.g. Annan 2006, p.11; Koblentz 2009, p.200).  Such concerns are now new, yet previous assessments of production/handling/dissemination complexities (Gee 1996, p.203-4), long considered sufficiently prohibitive for non-state entities, have been recently questioned- especially in light of the cases considered herein.  The result has been a huge spike (especially in the US) in bioterrorism-related funding/research/preparedness programs (Da Silva 1999, p.103-104).   The 1990’s saw global increases in terrorist-related deaths/concerns (Gurr & Cole 2010, p.15), including a worrying trend of domestic groups seeking BW (e.g. 8 Ricin cases in the 1990’s (Hoffman 1998, p.94).)  Recent concerns must also be seen in light of the nexus between states with active BW programs and links to terrorist groups with WMD aspirations (e.g., CIA 2002, Koblentz 2009, p.201).  The Aum Shinrikyo program, and the 2001 Anthrax attacks, has perhaps particularly (although ‘dishonourable mention’ must also be made for the 1999-2001 failed Al Qaida attempts to obtain anthrax and establish microbiological facilities (Leitenberg 2005, p.22).) propelled the issue of non-state BW proliferation to the forefront of (particularly US’) public consciousness (e.g. Smithson 2002, p.116; Smithson & Levy 1999), warranting detailed attention. 

Aum Shinrikyo

The Japanese ‘Shining Truth’ cult, responsible for indiscriminate nerve gas and Sarin attacks with simplistic delivery systems, killed twenty people, and injured thousands (Hoffman 1998, p.94).  During subsequent investigations it transpired that the group had unsuccessfully attempted to disperse Anthrax spores in public, and was planning similar attempts in Washington D.C. (e.g. Guillemin 2005, p.158).  That this incident is considered by many to be the most important case of non-state BW proliferation in terms of influencing US policy is perhaps understandable given their global membership (including many scientists), extensive funding (more than 20 million USD), and indiscriminate apocalyptic outlook (Guillemin 2005, p.159).  Although the attacks acted to radically alter US bioterrorism perceptions, and galvanize political/financial support for extensive domestic preparedness programs, high spending failed to address the issue of front-line readiness that would also emerge as a huge concern in the 2011 anthrax attacks (Smithson & Levy 1999, p.278).  Although ultimately their program was a failure (Gurr & Cole 2010, p.17), given more time, Aum Shinrikyo were potentially credible proliferators (e.g., Tucker 1997, p.171).  However, despite much being made of scientific membership, in the absence of genuine biotechnological experts, large-scale attacks seem beyond the reach of both this and similar groups (Smithson & Levy 1999, p.280).  In any case, the wholly unilateral response by the US demonstrates their lack of faith in the wider, multilateral regime, whilst the scale of their response shows public statements to the effect that the attack/program heralded a new age of non-state Bio threats were more than simple hyperbole (Spiers 2010, p.133-4).    

The 2001 Anthrax Attacks

This non-state case has also had a huge influence upon US policy.  Perhaps ironically, it is also the closest confirmed approximation of ‘state-sponsored’ proliferation; subsequent research strongly indicates that the strains used and likely individual involved both derive from the US USAMRIID biodefence program (Leitenberg 2002, p.19-21; CNN, 2010).  In terms of human costs, there were five fatalities from eleven confirmed inhalational contaminations, eleven confirmed cases of (non-fatal) cutaneous contaminations, as well as potentially thousands of seroconversion exposures and millions of citizens detrimentally affected by the huge antibiotic prophylaxis response (Blendon et al, 2002).  Financial impact comprises decontamination costs of $200 million (Shane, 2002), future preventative programs financed to the tune of $5 billion (Nakashima, 2002), as well as simply unquantifiable monetary losses from public disruption  (including a 7 year FBI investigation) and costs relating to a flurry of subsequent hoaxes (Leitenberg 2002, p.21-2).  Overall, US expenditure in the immediate aftermath of the Iraqi and USSR/Russia programs’ exposure was $137 million, yet less than 20 months following the anthrax attacks the budget was breaking the $6 billion dollar mark (Weiss, 2003).  Given the enormous resources available to the US, the 2001 attacks confounded assumptions regarding the scale of biological terrorism threats, as well as the huge problems associated with diagnosis, treatment, and investigation (Cole 2008, p.24).  Even in the immediate aftermath of 9/11, doctors were reluctant to diagnose first anthrax, and then intentional dissemination (Cole 2008, p.31).  Further, the readiness of ground-level, frontline staff was found to be a crucial factor in limiting spread (Leitenberg 2002, p.22), a fact that as will be seen later indicates that government-level unilateral approaches to bioterrorism may be sub-optimal.  Also, given the renewed focus on public health emerging from these attacks (e.g. Guillemin 2005, p.165), the importance of the BWC in encouraging Article X developments seems as poignant as ever; no state can be expected to match the resources/expertise at the US’ disposal, exacerbating the global nature of bioterrorist threats and importance of developing coherent international responses.  Of perhaps even more concern, the precedent set by these attacks has the potential to encourage further state and non-state proliferation, both directly through clandestine offensive programs, but also (ironically) indirectly through developments achieved under pressure to develop ‘defensive’ measures (Leitenberg 2002, p.22-3).  As will be seen, the absence of coordinated international efforts, exacerbated by the dual use and security dilemmas, runs the risk of inculcating BW arms-racing and deterioration of already flimsy (as seen in prior section) norms surrounding BW usage/development.  

Weaknesses of the BWC

Previous discussion constitutes a damning indictment.  Technological advances and norm-erosion pointedly increase bio-threats, yet the regime is a case-in-point of modern arms control maladies (e.g. Lederberg 1999, p.715).  Despite the Iraq/USSR/non-state incidents, modification/strengthening attempts, where not outright failures, move “at a snail’s pace” (McGregor 1998, p.209).  The BWC is deeply flawed; from the outset (we now know) Nixon never had faith in arms control as an end-in-itself, and even called it a “jackass treaty” (e.g. Schweid, 2007).  The following section examines three main flaws: failure to enact effective verification procedures; terminological indeterminacy; and the absence of a permanent oversight organization.

Verification & the 1995-2001 Protocol Process

Augmentation attempts began in 1986 where ‘confidence building measures’ (CBM), encouraging data submissions, were pioneered, and later extended (Brugger 2002, p.2).  Throughout 1993-1994, a UK/USA/Russia trilateral reciprocal site visit/declarations process began.  Disappointingly, (voluntary) declarations never approached universality, and the latter process, perhaps inevitably, collapsed amidst political wrangling.  However, the most significant attempt at modification derived from a 1994 experts’ report recommending verification measures, leading to the ‘Ad Hoc Group’ (VEREX), with the singular aim of concluding a supplementary BWC legally binding verification protocol (Brugger 2002, p.2).

The absence of a workable verification mechanism is widely considered the main obstacle to successful BWC enactment of its mandate (Pedraza 2011, p.64-5).  Many consider a verification mechanism indispensable (e.g., Fullinger 2000, p.1089) in the face of recent transgressions, technological advances, and snowballing horizontal/vertical BW proliferation (Smithson 1999, p.79).  BWC offer unique verification challenges (perhaps more so than their nuclear/chemical counterparts); the ‘dual use dilemma’ is exacerbated by the smaller premises required and wide-ranging legitimate commercial uses for fermenters/driers (Smithson 1999, p.79-80).  Verification obstacles, and the practicable impossibility 100% accurate identification of offensive/defensive BW program (Chevrier, 1990) are points accepted by proponents and opponents of a legally binding protocol (not least due to the indeterminate provisions for defensive research).  Rather, the debate hinges on whether the protocol will sufficiently improve security to justify political/commercial/sovereignty costs incurred by intrusive measures.

The BWC is rightly labelled a weak link in the WMD arms control triad.  Comparing regimes, the range of actors/organizations involved in implementation, understood as an expression of network support density, is crucial to legitimate/illegitimate activity delineation; during the 1990’s the IEAE, OPCW, and CTBT were spending over $250 million on direct verification activities (Toth 2004, p.10), translating to 10,000 inspector days in each regime, which constitutes “not just numbers on a piece of paper… [but] activities which are deterring would be proliferators” (Toth 2004, p.11-12).  Currently, the BWC figures are zero dollars and zero hours respectively- an outright failure/weakness.  However, verification obstacles are equally undeniable; experts within  and beyond the VEREX process suggest routine inspection effects will be negligible (Smithson 1999, p.80), yet challenge inspections that are not so cumbersome as to provide ample time for cleanups (i.e., cover-ups) are politically sensitive to say the least.  Further, the potential to threaten commercial secrets is an asymmetrical concern, given that the US pharmaceutical/biological industry accounts for around 90% of the market (Smithson 1999, p.80-1).  Considering the commercial chemical industry’s role in framing the CWC’s (widely commended) verification procedures, politically and pragmatically, both the US government and US-based industries must support verification procedures.  Equally, there is a direct relationship between international collaboration and surveillance, containment, detection of deliberate outbreaks, and the wider scientific community’s  role in ensuring global preparedness (Walker 2003, p.562-4). 

Indeterminate Terms

While the issue of verification has taken centre stage, others point to inherent problems with the language/terminology as responsible for compliance failures.  ‘Soft law’ (e.g., Abbott & Snidal 2000, p.421-422) approaches may have lubricated negotiations (in 1972 intrusive measures were simply out of the question (e.g., Shelton, 2010)), yet in the BWC case indeterminacy has acted to exacerbate the security dilemma and encourage witting/unwitting BW arms-racing (Beard 2007, p.275).  Arms-racing has been a prominent feature BW regime feature from the outset.  The first major spike in BW arms-racing took place in the immediate wake of the Protocol, and is attributable to external bio-threat misperceptions (Robinson & Leitenberg, 1971).  Likewise, Russia (once undisputed BW regime ‘bad boy’), began its BW program largely motivated by US monopolization of Japanese wartime BW program investigations, a first step down the long road of Cold War-era BW arms-racing (Barenblatt 2004, p.27-8).  Declassified documents from the BWC negotiation period confirm, perhaps unsurprisingly, the main US BWC motivation as locking in strategic advantages (Wright 2002, p.313).  In a saddening example of ineffectual regimes causing more harm than good through falsely promoting confidence yet lacking the tools to provide actual assurances, the USSR/Russia used the treaty as a cover for a huge clandestine program. 

The key BWC indeterminate term relates to the permissibility of BW for ‘prophylactic, protective, or other peaceful purposes” (BWC, 1975).  All other ambiguities surrounding obligations are reducible to this sentence, since (for example) domestic law enactment, and both limitations on assisting third party proliferation and responsibilities to share technology and information (i.e., Articles VII/X) are hampered by the indeterminate offensive/defensive program distinction (Beard 2007, p.282).  Consequently, the question becomes one of intent (e.g., Schmidt 2001; Tucker 2002), such that the BWC fails to provide a framework discouraging defensive defection (or suspicion thereof), severely hampering provision of mutual confidence, and aggravating the security dilemma and culture of mistrust, accusation, and defection that has characterized the BW regime from its very inception (Beard 2007, p.290).  Having been exposed as categorically unequipped to deter determined offensive defections, and with no significant steps bolstering the regime have been concluded; the BWC seems a clear case of arms control abandonment (Deller & Burroughs 2003). 

The Need for an OPBW

An essential counterpart/component of any verification procedures is the establishment of a permanent organization, responsible for monitoring, improving, and supporting both the existing BWC and the addition protocol elements- comparisons with the CWC machinery suggest the VEREX-designed protocol has all necessary elements to effectively bolster the existing regime  (Pearson 1998, p.188-90, p.200).   Some have even suggested that with the distinctions between CW and BW being blurred (e.g. regarding nanotechnology (Pinson 2004, p.279-82)), that the whole protocol process could be sidestepped by merging the BWC and CWC (Sydnes, 2013).  The marked absence of institutional arrangement in the BW regime strongly suggests that either establishment of an OPBW or expansion of the OPCW would be a key step in promoting all BWC goals, and is likely a wholly necessary prerequisite in the event that binding verification measures are ever implemented (Pedraza 2011, p.69-70). 

Conclusion: US Policy, Multilateralism, and the Future BW Regime

Given the discussion thus far, the shock occasioning the US 2001 protocol termination proposal is understandable.  At that meeting, US Ambassador Donald Mahley charged the protocol as an ineffectual deterrence, unable to assist US non-compliance detection efforts, ill-equipped to detect cheating through verification, and insufficiently protective of US defence/commercial secrets (Brugger 2002, p.3).  This position must be understood within the wider Bush administration policy of unilateralism and confrontational international relations context (Woodward 2003, p.293).  It represents a stratified states system outlook, with some considered trustworthy, others not (Guillemin 2005, p.187).  It was generally received by the wider community as a US attempt to kill the BWC rather than accept foreign policy goal limitations (Schmidt 2001, p.A540).  The US instead suggested four non-binding commitments: enactment of domestic laws criminalizing BW-related activities and streamlining extradition; enhancing import/export controls; working with the WHO towards global disease surveillance; and bolstering the UN Security Council investigative authority (Schmidt 2001, p.A540-1).  These have been generally assessed as helpful, but insufficient (Deller & Burroughs 2003, p.37-8). 

Mahley’s claims seem unsustainable:  The protocol, whilst not offering absolute guarantees, potentially offers improved BW proliferation deterrence; suggested inspection procedures are considered amongst experts to have real potential to augment US intelligence operations; and complex steps were considered and integrated into the proposal to ensure state /commercial secrets integrity (Brugger 2002, p.4).  Such observations lend credence to suggestions that Mahley’s ‘reservations’ are a smokescreen, and that the transition from a partial to an absolute standard of verification (openly acknowledged as impossible) rather represents US rejection of internationalism in favour of unilateralism and overall military superiority, and general antipathy to international arms control efforts (Deller & Burroughs 2003, p.37-8). It is difficult to commend such a move.  Even insofar as the US has worked within the BWC, developing states have long pointed to blatant double-standards in US interpretation of BWC commitments (Rosenberg 1993, p.70-1), especially in the marked absence of Article X technology-sharing initiatives, and the have/have-not reinforcement inherent in the Australia Group’s import/export control system (Rosenberg 1993, p.75-6).  As the Cold War balance dissipates, the North/South divide, highlighted in the US willingness to unabashedly inconsistently interpret the BWC, erodes the legitimacy of the regime as a whole.  In this crucial respect, the BWC must be seen as failing to secure future compliance, since perceptions of equity are essential to developing states willingness to submit (i.e. comply, not just sign) to the treaty in any form.

This paper has suggested that although augmentation of the BWC is not currently realistic, and despite demonstrably failing to deter proliferation, the BWC represents the best vehicle for provision of an effective future regime.  This goal requires a verification mechanism, the establishment of a permanent oversight body, and (most importantly) significant departure of the US from its current trend of unilateral approaches to arms control.   Without a US-backed augmented BWC the task of dealing with proliferation, high-paced technological changes, and coordination of all stakeholders in a networked approach (Millet 2010, p/116-7) seems insurmountable.    While the 2011 RevCon saw some moderate steps, especially in terms of unprecedented NGO participation, that the highlight of the final document was essentially a generalized reaffirmation of the blanket nature of the ban (including the ‘peaceful purposes’ caveat, of course) (UNOG 2011) is indicative of a regime that is treading water when what is in fact required is a major overhaul.  That the most recent UN BTC ‘Factsheet’ (UNODA, 2014) details the current ambitions of the BWC solely in terms of the US alternative program (with no mention of a protocol process or other verification ambitions for which there is discernibly support amongst both experts and member states) surely underscores this essay’s conclusion that affecting a US policy turnaround is a crucial first step in any such overhaul.  Moreover, such a change in policy must be seen as in the interests of the US itself.  With the 2001 anthrax attacks highlighting significant weaknesses in the US own domestic preparedness, and with the stakes so high, surely even the world’s most powerful and resourced state cannot afford to go it alone.    

Robert Dormer has a background in Philosophy, Linguistics, and International Relations.  He is particularly interested in disciplinary history & identity formation, and arms control regimes

 

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