Strengthening the Biological Weapons Convention
Briefing Paper No 11 : The CWC Verification Regime : Implications for the Biotechnological & Pharmaceutical Industry
Executive Summary
J P Perry Robinson*
Series Editors, Graham S. Pearson and Malcolm R. Dando
Department of Peace Studies, University of Bradford
Click here to return to the list of Briefing Papers
Please note: the page numbers given below are those which appear in the original text; these appear at the top of the relevant page. Click here to view the Disclaimer.
The Ad Hoc Group (AHG) of the States Parties to the Biological and Toxin Weapons Convention (BTWC) is considering "measures to strengthen the effectiveness and improve the implementation of the Convention" through a legally binding instrument. Particular attention is being given by the AHG to devising an integrated regime that is effective in building confidence in compliance by States Parties with the Convention. Comprising declarations, visits and investigations as its three main pillars, such an integrated regime would strike a proper balance in the declarations it required from those facilities of particular relevance to the Convention whilst avoiding the unnecessary burden which could result were declarations to be required from all facilities of possible relevance to the Convention. The current draft Protocol provides for declarations by several types of microbiological production facility and for infrequent non-challenge visits to declared facilities.
These proposals have led people within the pharmaceutical and biotechnology-based industry to suggest that a strengthened BTWC would impose a whole new type of burden on the industry. Yet in fact the industry, like the rest of the chemicals industry, falls within the ambit of the 1993 Chemical Weapons Convention (CWC), which entered into force a year ago and currently has 108 States Parties, including all EU Member-States and all other major industrialized countries. Another 60 States have signed but not yet completed the requisite ratification processes. This Briefing Paper sets out some of the key provisions of the CWC, including the verification regime set out in the CWC Verification Annex, the implementation of which is now getting under way in the industry. The Briefing Paper draws lessons from the CWC experience for the strengthening of the BTWC.
The CWC Verification Regime
The verification regime for the CWC is a system operated jointly by, on the one hand, the Technical Secretariat of the CWCÕs international authority, the Organization for the Prohibition of Chemical Weapons (OPCW) based at The Hague, and, on the other hand, the "national authorities" which, under CWC Art VII.4, each State Party is required to designate or establish "[i]n order to fulfil its obligations under this Convention". The treaty defines chemical weapons in such a way as to bring within its purview any activity involving toxic chemicals, broadly defined, or substances from which toxic chemicals can be made. Some parts of pharmaceutical and biotechnology-based industry are therefore already experiencing the CWC verification regime. Moreover, the entire industry (except where located within countries not party to the treaty) is subject to the challenge inspection procedures of the regime. The purpose of this Briefing Paper is to outline these CWC-mandated controls on biotechnology.
In the broad architecture of the CWC verification regime, three principal elements can thus be discerned: mandatory declarations, routine inspection, and challenge inspection. The strength of the overall construct must depend not only on system-design but also on the powers of the system-operators - the OPCW Technical Secretariat and the National Authorities Ð and on their respective propensities for collaboration within their assigned division of labour. The
page 2
prevailing tendency in international relations today is still to minimize the autonomy and capacity for independent action of international organizations such as the OPCW. So, whether CWC-derived controls do or do not come to bear down heavily upon biotechnology would appear, at the present juncture, to depend less on what the OPCW Technical Secretariat does and more on what the National Authorities choose to do. The role and powers of the National Authorities within the overall regime are addressed.
The General Purpose Criterion is the device which the original negotiators of the CWC copied from the Biological Weapons Convention in order to give adequate scope to their treaty. The Criterion is an element of the CWC regime that is especially pertinent to the Briefing Paper, for it is what brings so much of biotechnology-based industry within the ambit of the CWC verification system. The importance of the General Purpose Criterion is addressed in enabling the Convention to keep up with technological change as well as protecting beneficent peaceful application of the so-called 'dual use' chemicals which can serve purposes not prohibited under the CWC but which can also be used as chemical-warfare agents, or as precursors in the manufacture of such agents.
The paper goes on to describe the international controls which the Technical Secretariat operates in a division of labour with the National Authorities. These controls comprise: the mandatory declarations by states-parties of data relating to scheduled chemicals and associated industrial facilities and to plant sites where unscheduled "discrete organic chemicals" are synthesized; the routine inspections of facilities where scheduled chemicals exist in quantities exceeding specified thresholds, the inspections being done primarily in order to validate the declarations; and the short-notice challenge inspections that can in principle be conducted almost anywhere to deter cheaters from operating outside the declarations-bounded domain of routine inspection. Details are provided of these controls including the provisions within the CWC for the protection of commercially sensitive information. An account of the legislative and administrative machinery underlying the overall verification regime is provided.
Conclusion
A conclusion to be drawn from the foregoing descriptions is that the CWC verification regime affords useful parallels for the regime now being negotiated for the Biological Weapons Convention, even though some features, such as the chemical-weapons destruction provisions, are unlikely to be inappropriate. The relevant features will include:
(1) an international organization charged with overseeing implementation of the treaty in a division of labour with national authorities;
(2) mandatory declarations that ensure continuing oversight of biotechnology by National Authorities that operate under the scrutiny of the international authority; and
(3) an international on-site-inspection regime wherein challenge and non-challenge visits, the latter linked to the declarations, mutually reinforce one another to the detriment of potential cheaters.
A strengthened BTWC will require a verification regime in which these features are carefully integrated. It is fitting that the result would resemble the counterpart CWC regime, for there is much in common between biological and chemical weapons. Moreover, given that toxins are covered by both treaties, some overlaps and a consistency in approach are going to be essential.
* Senior Fellow, Science Policy Research Unit, University of Sussex, Brighton BN1 9RF, England and Director, Harvard Sussex Program.
Click here to return to the list of Briefing Papers
The Biological and Toxin Weapons Convention Database forms part of the Project on Strengthening the Biological and Toxin Weapons Convention and Preventing Biological Warfare, which is based in the Department of Peace Studies, University of Bradford, UK.
Updated 21 August 98.