Strengthening the Biological Weapons Convention

Briefing Paper No 4: National Implementation Measures

Executive Summary

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 consider appropriate measures, including verification measures,...to strengthen the Convention". It notes that Article IV of the Convention sets out the obligation for States Parties to implement the BTWC through appropriate national measures. The Aum Shinrikyo incident in Tokyo in March 1995 underlined the importance of appropriate penal legislation both to implement the BTWC and to criminalise any development, production, stockpiling or acquisition of such weapons for terrorist or criminal purposes. Although successive Review Conferences have exhorted States Parties to enact such legislation, progress has been limited. This Paper notes the requirements of the Chemical Weapons Convention (CWC) and then makes proposals as to how the opportunity provided by the AHG negotiations could be used to strengthen the BTWC through stronger implementation measures.

REVIEW CONFERENCES

Successive Review Conferences have emphasised the importance of enacting appropriate national legislation. The Heads of the G7/8 gave this additional impetus through their declaration in June 1996 that "special attention should be paid to the threat of utilization of nuclear, biological and chemical materials, as well as toxic substances, for terrorist purposes." This was followed up by a Ministerial meeting in July 1996 which recommended that States Parties at the forthcoming BTWC Review Conference in November 1996 should confirm "their commitment to ensure, through the adoption of national measures, the effective fulfilment of their obligations under the convention to take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition or retention of such weapons within their territory, under their jurisdiction or under their control anywhere, in order, inter alia, to exclude use of those weapons for terrorist purposes."

The Fourth Review Conference used stronger language about Article IV including the specific statement that "the States Parties recognize the need to ensure, through the review and/or adoption of national measures, the effective fulfilment of their obligations under the Convention in order, inter alia, to exclude use of biological and toxin weapons in terrorist or criminal activity."

CHEMICAL WEAPONS CONVENTION

Article VII of the CWC 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;".

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AD HOC GROUP

An analysis of the current rolling text in Article X National Implementation Measures of the Protocol recognises that there are differing views as to whether the AHG should limit itself to implementation measures for the Protocol or should take the opportunity to strengthen the undertakings in the Convention. Although this opportunity to strengthen the implementation measures of the Convention would add to the negotiating burden of the AHG, it is evident that despite the efforts of successive Review Conferences there is far from universal enactment of penal legislation to implement the BTWC. As the mandate of the AHG is "to consider appropriate measures, including possible verification measures, ...to strengthen the Convention", the view is taken that this opportunity should be taken to strengthen the undertakings in Article IV of the Convention.

DISCUSSION

As a first step, it is recognised that there would be benefits in the language of Article X in the rolling text being strengthened so that this part of the BTWC Protocol is in every respect as strong as Article VII of the CWC. Specific proposals are made as to how this could be achieved.

The arguments are then put forward as to why 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.

Finally, the role of the National Authority is addressed. Whilst it is clear that the structure and resourcing of each National Authority and its operational location within governmental machinery are the responsibility of the State Party concerned, it would be desirable and advisable to expand the provision in Article X with a set of criteria which every National Authority must satisfy in order to meet the standards set by the Protocol itself for the effectiveness of national implementation. These are that:

* Each National Authority must possess statutory powers of investigation and a degree of statutory protection.

* Each National Authority needs to retain access to the legislature, for example through parliamentary scrutiny of regular reports.

* Each National Authority must be provided with adequate staff and other resources.

Information which demonstrates that these criteria are satisfied needs to be made available as an annual reporting requirement through the Organization to the other States Parties, and, subject to any confidentiality constraints, to the general public. National Authorities should also be encouraged to make additional information available so that States Parties and the Organization, and as much as possible the public, can be made aware of good practice in national implementation. Language to achieve this is proposed.

CONCLUSIONS

Despite the efforts of four successive Review Conferences, the failure to achieve universal enactment of legislation to implement the BTWC requires that the opportunity to strengthen the undertakings in Article IV of the Convention, in line with the mandate given to the AHG, through inclusion of requirements to enact penal legislation in the legally binding instrument should be taken.

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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.

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Updated 21 August 98.