Assessing U.S. Proposals to Strengthen the Biological Weapons Convention
Tucker, Jonathan B., Zilinskas, Raymond A., Arms Control Today
Some of the U.S. measures to address noncompliance with the BWC could be effective, but only if they are broadened and converted into legally binding multilateral arrangements.
The Biological Weapons Convention (BWC), which bans the development, production, stockpiling, and transfer of biological and toxin weapons, has been hobbled since it took effect in 1975 by a lack of formal measures to monitor and enforce compliance. Sporadic efforts have been made over the years to correct these shortcomings, but to no avail.
Strengthening the BWC has become all the more essential since the fall of 2001, when mailed anthrax bacteria spores killed five Americans, sickened more than 20 others, and terrorized millions. Yet even as the threats of biological warfare and terrorism have become more acute, multilateral efforts to bolster the convention have faltered. More than six years of effort to negotiate a legally binding inspection protocol for the BWC collapsed in July 2001 when the United States rejected the draft protocol and walked away from the talks, leading to their suspension.
Last November, at a review conference of the BWC held in Geneva, the U.S. delegation proposed an alternative to the nowdefunct protocol: a package of nine measures that member states could take to strengthen the convention and combat the threat of bioterrorism. All of these measures would involve passing domestic laws or adapting existing multilateral mechanisms. The U.S. ideas were generally viewed as constructive, although several delegations argued that they did not go far enough. Some of the U.S. measures were incorporated into a draft of the conference's final declaration, a politically binding document. On the last day of the review conference, however, the United States caused an uproar by proposing to terminate the multilateral forum that had negotiated the BWC protocol. This proposal was unacceptable to many delegations and made it impossible to reach consensus on the final declaration. To prevent the conference from failing completely, the chairman suspended it for a year.
Between now and the resumption of the review conference in November 2002, BWC member states have time to evaluate the U.S. alternative measures and decide if they are worth pursuing formally. The following analysis suggests that some of the U.S. measures could be effective in addressing the problems of BWC noncompliance and bioterrorism, but only if they are broadened and converted into legally binding multilateral arrangements.
Evaluating the U.S. Package
The first set of measures proposed by the United States relates to a provision in the BWC requiring each state-party to adopt national legislation prohibiting and preventing anyone from carrying out activities banned by the convention on its territory or anywhere under its jurisdiction. To date, however, few BWC parties have passed domestic legislation imposing criminal penalties on individuals who engage in illicit biological weapons activities. Even the United States waited until 1989 to pass the Biological Weapons Antiterrorism Act, which imposes criminal penalties up to life imprisonment on a U.S. national who acquires a biological weapon or assists a foreign state or terrorist organization in obtaining one.
Under the new U.S. proposal, BWC member states that have not already done so would be urged to adopt domestic legislation criminalizing the acquisition, possession, and use of biological weapons. As a key element of such legislation, each state-party would improve its ability to extradite biological weapons fugitives to countries prepared to assume criminal jurisdiction. Yet the drawback of relying exclusively on domestic legislation to address the illicit use of microbiology is that national laws are not an effective means of creating uniform international standards. Legislation criminalizing the possession and use of biological weapons could vary considerably from country to country, creating loopholes or areas of lax enforcement exploitable by terrorists. …