The Biological and Toxin Weapons Convention (BTWC) Database
Strengthening the Biological Weapons Convention
Briefing Paper No 14: National Implementation Measures : An Update
Executive Summary
Graham S. Pearson & Nicholas A. Sims
Series Editors, Graham S. Pearson and Malcolm R. Dando
Department of Peace Studies, University of Bradford
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Attention is being given by the Ad Hoc Group (AHG) to the contents of Article X National Implementation Measures in the rolling text of the Protocol. This Paper recognises that the mandate of the AHG is "to strengthen the effectiveness and improve the implementation of the Convention". The developments, between the ninth and twelfth sessions of the AHG, of the text in Article X (National Implementation Measures) of the draft BTWC Protocol are considered and the implications of recent developments and analysis carried out by the Organization for the Prohibition of Chemical Weapons (OPCW) in regard to the national legislation for the implementation of the CWC thus far reported to the OPCW are examined. Other developments relating to legislation both nationally in the UK and internationally in respect of the International Convention for the Suppression of Terrorist Bombing which was opened for signature on 12 January 1998 and Rome Statute for the International Criminal Court adopted on 17 July 1998 are also considered before reconsidering possible language for the strengthening of Article X of the draft Protocol.
AD HOC GROUP DEVELOPMENTS
The current language in the Protocol of Article X National Implementation Measures is reproduced together with the requirements for declarations of national legislation and regulations in Article III Compliance Measures in respect of both Declarations and Measures to Strengthen the Implementation of Article III (of the Convention).
CHEMICAL WEAPONS CONVENTION IMPLEMENTATION LEGISLATION
Recent OPCW publications have focussed attention on the compliance of States Parties with Article VII of the CWC which contains language that requires States Parties to "prohibit natural and legal persons anywhere on its territory or in any other place under its jurisdiction as recognized by international law from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity;". An OPCW survey for the Third Conference of States Parties in November 1998 notes that the CWC is not self-executing and thus that "Each State Party’s international obligations under the Convention must be given direct internal legal effect." The OPCW note observes that:
"more than one year after entry into force of the Convention, out of 108 States parties, only 34 have notified the Secretariat of the legislative and administrative measures they have taken to implement the Convention"
and go on to note that of the texts submitted and reviewed,
"only 18 appear to be comprehensive enough for the State party to be able to enforce the Convention effectively in its jurisdiction. In only 13 of these texts has the penal legislation been extended to nationals extra-territorially,"
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It is apparent from the OPCW survey of the national implementation of the CWC that there is much that has yet to be done before there is the degree of conformity between the various States Parties necessary to build international confidence that the CWC is indeed soundly based upon the consistent framework of national legislation that will be essential for an effective regime.
OTHER DEVELOPMENTS
Recent proposals put forward to strengthen the existing UK national legislation in respect of both the BTWC and the CWC are outlined. These moves to strengthen further the national implementation measures within the United Kingdom are welcomed. They underline the importance to all States Parties of enacting national legislation to implement the BTWC and its eventual Protocol. Legislation which was adequate at the time of its enactment (as was the United Kingdom's Biological Weapons Act 1974 which exactly reproduced the prohibitions contained in the BTWC itself) needs to be reviewed and, where necessary, strengthened.
Developments arising from the International Convention for the Suppression of Terrorist Bombing and the Rome Statute of the International Criminal Court are noted. It is concluded that in considering language for Article X of the draft BTWC Protocol it would be prudent to consider the experience gained by the OPCW on the implementation of the CWC as well as the other developments outlined above which will clearly require appropriate national legislation. There would be advantages in utilising language in Article X that will encourage States Parties to adopt appropriate measures that will ensure effective implementation of the BTWC Protocol and will also strengthen the disincentives to the use of biological weapons whether by States or sub-State actors.
STRENGTHENING ARTICLE X OF THE PROTOCOL
A general point in relation to Article X of the Protocol relates to whether this should refer to legislation to implement obligations "under the Protocol" or "under the Protocol and the Convention". Although it is clear that the benefits of the Protocol will only accrue to those States which become Parties to the Protocol, it is recognised that not all States Parties to the Convention have yet enacted their national implementation measures for the Convention. Consequently as the mandate of the Ad Hoc Group is "to strengthen the effectiveness and improve the implementation of the Convention" , it is recommended that the language in Article X should refer consistently to fulfilling obligations "under the Protocol and the Convention."
Specific proposals are made to ensure that the language of Article X is strengthened so that this part of the BTWC Protocol is in every respect as strong as Article VII of the CWC. There is a strong case for going further and making the national implementation article of the BTWC Protocol deliberately stronger than that of the CWC. Language to make it clear that the measures both prohibit and prevent activities prohibited under the BTWC is proposed.
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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 30 September 1998