Putting Teeth in the Biological Weapons Convention: The Bush Administration's Proposals for Bolstering the Treaty Are Useful but Inadequate
Tucker, Jonathan B., Issues in Science and Technology
In the fall of 2001, letters sent through the U.S. mail containing powdered anthrax bacterial spores killed five people, infected 18 others, disrupted the operations of all three branches of the U.S. government, forced tens of thousands to take prophylactic antibiotics, and frightened millions of Americans. This incident demonstrated the deadly potential of bioterrorism and raised serious concerns about the nation's ability to defend itself against more extensive attacks.
The anthrax crisis also made more urgent the need to prevent the acquisition and use of biological and toxin weapons--disease-causing microorganisms and natural poisons--by states as well as terrorist organizations. At present, the legal prohibitions on biological warfare (BW) are flawed and incomplete. The 1925 Geneva Protocol bans the use in war of biological weapons but not their possession, whereas the 1972 Biological and Toxin Weapons Convention (BWC) prohibits the development, possession, stockpiling, and transfer of biological and toxin agents and delivery systems intended for hostile purposes or armed conflict, but it has no formal measures to ensure that the treaty's 144 member countries are complying with the ban.
Because the materials and equipment used to develop and produce biological weapons are dual use (suitable both for military ends and legitimate commercial or therapeutic applications), the BWC bans microbial and toxin agents "of types and quantities that have no justification for prophylactic, protective, or other peaceful purposes." Given this inherent ambiguity, assessing compliance with the BWC is extremely difficult and often involves a judgment of intent. Moreover, the treaty lacks effective verification measures: Article VI offers only the weak option of petitioning the United Nations (UN) Security Council to investigate cases of suspected noncompliance, which has proven to be a political nonstarter.
The BWC's lack of teeth has reduced the treaty to little more than a gentleman's agreement. About 12 countries, including parties to the BWC such as Iraq, Iran, Libya, China, Russia, and North Korea, are considered to have active biological warfare (BW) programs. This level of noncompliance suggests that the legal restraints enshrined in the treaty are not strong enough to prevent some governments from acquiring and stockpiling biological weapons. Thus, it is essential to take concrete steps to reinforce the biological disarmament regime.
Despite the fall 2001 terrorist attacks, however, recent efforts to adopt monitoring and enforcement provisions for the BWC have gone nowhere. Indeed, negotiations at a meeting of the BWC member states in November and December 2001 broke down, in large part because of actions taken by the United States. Instead of the mandatory and multilateral approach favored by most Western countries, the Bush administration has advocated a package of nine voluntary measures, most of which would be implemented through national legislation. Although the administration's approach has some value for combating bioterrorism, it is doubtful that it will be sufficient to address the problem of state-level noncompliance with the biological weapons ban.
History of failure
Efforts to strengthen the BWC have a long history. At the Second and Third Review Conferences of the treaty in 1986 and 1991, member states sought to bolster the BWC by adopting a set of confidence-building measures that were politically rather than legally binding. These measures included exchanges of information on vaccine production plants (which can be easily diverted to the production of BW agents), past activities related to BW, national biodefense programs, and unusual outbreaks of disease. The level of participation in the confidence--building measures, however, has been poor. From 1987 to 1995, only 70 of the then 139 member states of the BWC submitted data declarations, and only 11 took part in all rounds of the information exchange. …