The Biological and Toxin Weapons Convention (BTWC) Database
Strengthening the Biological Weapons Convention
Evaluation Paper No 3
Series Editors : Graham S Pearson and Malcolm R Dando
Department of Peace Studies, University of Bradford, Bradford, UK
visit the full list of Briefing and Evaluation Papers
ARTICLES XVI, XVII, XVIII, XIX AND XXIII:
STATUS OF THE ANNEXES AND APPENDICES,
SIGNATURE, RATIFICATION, ACCESSION AND AUTHENTIC TEXTS
by Nicholas A Sims†
Introduction
1. The Ad Hoc Group (AHG) is considering measures to strengthen the Biological and Toxin Weapons Convention (BTWC) through a legally binding instrument. The pace of the AHG negotiations has quickened during the past year and there is now a clear political will to see the negotiation of the Protocol completed as soon as possible before the Fifth Review Conference in 2001. It is now evident that several Articles in the draft Protocol are now largely agreed and will not develop significantly from their current form although a certain amount of restructuring may be agreed at a later stage.
2. In Evaluation Paper No 1 it was concluded1 that "the majority of the Articles in the draft Protocol have now reached the stage when they have had multiple readings and are unlikely to change significantly during the coming months as the negotiations enter the end-game. It is therefore timely to commence the production of a series of Evaluation Papers which will consider Article by Article the current state of each Article of the Protocol." This Evaluation Paper continues this series by considering Article XVI Status of the Annexes and Appendices, Article XVII Signature, Article XVIII Ratification, Article XIX Accession on which the AHG has made good progress with the current rolling text containing no square brackets and Article XXIII Authentic Texts for which the current rolling text contains two pairs of square brackets.
ARTICLE XVI STATUS OF THE ANNEXES AND APPENDICES
3. In July 1999, the text2 for Article XVII was unchanged from the earlier version and was as follows:
ARTICLE XVI
STATUS OF THE ANNEXES AND APPENDICES
The Annexes and Appendices to this Protocol form an integral part of the Protocol. Any reference to this Protocol includes the Annexes and Appendices.
The strikethrough version of Article XVI
provided3 by the FOC on Legal Issues for further consideration
is identical to that in the draft Protocol as no changes are proposed.
Evaluation
4. This provision is necessary to define the scope of the obligations which the eventual States Parties to the Protocol will be taking upon themselves. It is similar to the provisions in Article XVII of the Chemical Weapons Convention (CWC)4:
ARTICLE XVII
STATUS OF THE ANNEXES
The Annexes form an integral part of this Convention. Any reference to this Convention includes the Annexes.
and to those in Article X of the Comprehensive Test Ban Treaty (CTBT)5:
ARTICLE X
STATUS OF THE PROTOCOL AND THE ANNEXES
The Annexes to this Treaty, the Protocol and the annexes to the Protocol form an integral part of the Treaty. Any reference to this Treaty includes the Annexes to this Treaty, the Protocol and the Annexes to the Protocol.
5. Article 17.1 of the 1999 Vienna Convention on the Law of Treaties6 provides that:
Without prejudice to Articles 19 to 23 [which concern reservations], the consent of a State to be bound by part of a treaty is effective only if the treaty so permits or the other Contracting Parties so agree.
By defining the Annexes and Appendices as an integral part of the Protocol, Article XVI precludes the possibility of any State claiming to be bound by the Articles of the Protocol but not by its Annexes and Appendices, or selecting from among the Annexes and Appendices those by which it is willing to be bound and those by which it is not.
6. The second sentence, Any reference to this Protocol includes the Annexes and Appendices, confirms their status. In the absence of any provision allowing a State to choose to be bound by only part of the Protocol -- the eventuality envisaged in the only if the treaty so permits condition of the Vienna Convention on the Law of Treaties extract above -- the intention is clear. The principal of pacta sunt servanda, expressed in Article 26 of the Vienna Convention as:
ARTICLE 26
Pacta sunt servanda
Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
applies to the obligations arising from the Annexes and Appendices equally with those arising from the Articles of the Protocol.
7. This Article makes the important point that the Annexes and Appendices do not differ from the Articles of the Protocol in respect of legal effect. The scope of the obligations assumed by the States Parties extends fully to the Annexes and the Appendices. They differ only in being more detailed than the Articles of the Protocol; and they take the form they do only for convenience, not because they are in any way less obligatory.
8. Article XVI itself is not contentious. It does, however, in our view risk being undermined by Article XXI Reservations unless that Article prohibits reservations to the Annexes and Appendices equally with reservations to Articles of the Protocol.7
Text for Article XVI
9. The current text for the Protocol contains no square brackets and no further changes are suggested.
ARTICLE XVII SIGNATURE
10. In July 1999, the text8 for Article XVII was unchanged from the earlier version and was as follows:
ARTICLE XVII
SIGNATURE
This Protocol shall be open for signature to all States Parties to the Biological and Toxin Weapons Convention of 1972, before this Protocol enters into force.
The strikethrough version of Article XVII
provided9 by the FOC on Legal Issues for further consideration
proposes a streamlining of the reference to the Convention as follows:
ARTICLE XVII
SIGNATURE
This Protocol shall be open for signature to all States Parties to the
Biological and Toxin Weapons Convention of 1972Convention, before this Protocol enters into force.
Evaluation
11. This provision corresponds to the standard clause on signature found in Article XIV.1 (first sentence) of the BTWC10:
This Convention shall be open to all States for signature.
to Article XVIII of the Chemical Weapons Convention (CWC):
This Convention shall be open for signature for all States before its entry into force.
and to Article XI of the Comprehensive Test Ban Treaty (CTBT)11 :
This Treaty shall be open to all States for signature before its entry into force.
12. It affirms the universality of participation sought for the Protocol -- all States -- but locates this universality within the population of States Parties to the BTWC: a logically necessary limitation. Those States, currently almost 50 in all, for which the BTWC is not yet in force would not be eligible to sign the Protocol even if they wanted to. This category includes the remaining current 18 Signatory States12 outstanding from 1972 - 73. They, as much as the approximately 30 non-signatories, would not be eligible until they had ratified the BTWC.
Text for Article XVII
13. The current text for the Protocol contains no square brackets and the proposals made by the Friend of the Chair for streamlining the reference to the Convention are endorsed. No further changes are suggested.
ARTICLE XVIII RATIFICATION
14. In July 1999, the text13 for Article XVIII was unchanged from the earlier version and was as follows:
ARTICLE XVIII
RATIFICATION
This Protocol shall be subject to ratification by States Signatories according to their respective constitutional processes.
The strikethrough version of Article XXII
provided14 by the FOC on Legal Issues for further consideration
is identical to that in the draft Protocol as no changes are proposed.
Evaluation
15. This provision corresponds to the standard clause on ratification found in the first sentence of Article XIV.2 of the BTWC15 which states:
ARTICLE XIV
2. This Convention shall be subject to ratification by signatory States. Instruments of ratification and instruments of accession shall be deposited with the Governments of the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland and the United States of America, which are hereby designated the Depositary Governments.
to Article XIX of the CWC 16which states:
ARTICLE XIX
RATIFICATION
This Convention shall be subject to ratification by States Signatories according to their respective constitutional processes.
and to Article XII of the CTBT17 which states:
ARTICLE XI1
RATIFICATION
This Convention shall be subject to ratification by States Signatories according to their respective constitutional processes.
16. The place of deposit of ratification instruments is not specified, as it is in Article XIV.2 of the BTWC, because a separate Article XXII addresses the functions of Depositaries -- as is the case in the CWC and the CTBT. It is apparent from Article XXII that the place of deposit of ratification instruments will be New York if the UN Secretary-General is to be Depositary, or Moscow, London and Washington, D.C. if Russia, UK and US are to be Depositaries.
17. The respective constitutional processes of States Signatories to the Protocol will vary greatly, from those in which ratification is simply a government's executive endorsement of its own signature to those in which scrutiny of the ratification proposal by parliamentary or congressional committees is involved. In some cases a formal recommendation by a legislative organ -- such as the Advice and Consent procedure of the United States Senate -- or even passage of legislation is required before a government is constitutionally empowered to ratify. There may be a danger of ratification processes being misused in some legislatures to attach unilateral conditions, detrimental to the Protocol, where neither formal reservation18 nor renegotiation is possible. It is difficult, however, to see how any new language in this Article could guard effectively against that danger, of which States Signatories will need to be aware when embarking on their respective constitutional processes for ratification.
Text for Article XVIII
18. The current text for the Protocol contains no square brackets and no further changes are suggested.
ARTICLE XIX ACCESSION
19. In July 1999, the text19 for Article XIX was unchanged from the earlier version and was as follows:
ARTICLE XIX
ACCESSION
Any State Party to the Biological and Toxin Weapons Convention of 1972 which does not sign this Protocol before its entry into force may accede to it at any time thereafter.
The strikethrough version of Article XVII
provided20 by the FOC on Legal Issues for further consideration
proposes a streamlining of the reference to the Convention as follows:
ARTICLE XIX
ACCESSION
Any State Party to theBiological and Toxin Weapons Convention of 1972Convention which does not sign this Protocol before its entry into force may accede to it at any time thereafter.
Evaluation
20. This provision corresponds to the standard clauses on accession found in the second sentence of Article XIV.1 of the BTWC21:
Any State which does not sign the Convention before its entry into force in accordance with paragraph 3 of this Article may accede to it at any time thereafter.
(Paragraph 3 of Article XIV of the BTWC simply states the requirements for entry into force of the Convention.)
in Article XX of the CWC22:
ARTICLE XX
ACCESSION
Any State which does not sign this Convention before its entry into force may accede to it at any time thereafter.
and in Article XIII of the CTBT23:
ARTICLE XIII
ACCESSION
Any State which does not sign this Treaty before its entry into force may accede to it at any time thereafter.
21. Accession conflates the stages of signature and ratification into a single act, and will only occur after the Protocol has entered into force for its original States Parties24.
22. Like signature under Article XVII, accession would not be open to those States, almost 50 in all, for which the BTWC is not yet in force, even if they wanted to accede. This is a logically necessary limitation given the relationship of the Protocol to the BTWC.
23. As with ratification under Article XVIII, accession would involve the deposit of a legal instrument binding the acceding State. The place of deposit will be determined by the outcome of the negotiation on Article XXII25.
Text for Article XIX
24. The current text for the Protocol contains no square brackets and the proposals made by the Friend of the Chair for streamlining the reference to the Convention are endorsed. No further changes are suggested.
ARTICLE XXIII AUTHENTIC TEXTS
25. In July 1999, the text26 for Article XXIII was unchanged from the earlier version and was as follows:
ARTICLE XXIII
AUTHENTIC TEXTS
1. This Protocol, the Arabic, Chinese, English, French, Russian and Spanish texts of which are equally authentic, shall be deposited with the [Secretary-General of the United Nations] [Governments of the Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America].
2. IN WITNESS THEREOF the undersigned, being duly authorized to that effect, have signed this Protocol.
Done at ... on ... .
The strikethrough version of Article XXII
provided27 by the FOC on Legal Issues for further consideration
is identical to that in the draft Protocol as no changes are proposed.
Evaluation
26. This provision corresponds to Article XXIV of the CWC:
ARTICLE XXIV
AUTHENTIC TEXTS
1. This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.
2. IN WITNESS WHEREOF the undersigned, being duly authorized to that effect, have signed this Convention.
Done at Paris on the thirteenth day of January, one thousand nine hundred and ninety-three.
and to Article XVII of the CTBT:
ARTICLE XVII
AUTHENTIC TEXTS
1. This Treaty, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.
27. The equal authenticity of the text of the BTWC in each of the official languages of the United Nations -- then only five -- was affirmed in the first sentence of its Article XV28:
ARTICLE XV
This Convention, the Chinese, English, French, Russian and Spanish texts of which are equally authentic, shall be deposited in the archives of the Depositary Governments.
Arabic had not yet been added as the sixth additional language when the BTWC was concluded. It was added in 1977 by resolutions of the United Nations General Assembly, Security Council and Economic and Social Council. Its subsequent use in BTWC fora such as Review Conferences should minimise any problems arising from the formal disparity between five equally authentic languages for the Convention and six for its Protocol.
Strike-through Text for Article XXIII
28. The current text for the Protocol only contains square brackets around the depositary option. As we have argued in our Evaluation Paper Article XII: Depositary/ies29 that this should be the Secretary-General of the United Nations, our view is that Article XXIII should have the square brackets removed as shown in the strike-through version of Article XXIII below so as to produce clean text:
ARTICLE XXIII
AUTHENTIC TEXTS
1. This Protocol, the Arabic, Chinese, English, French, Russian and Spanish texts of which are equally authentic, shall be deposited with the
[Secretary-General of the United Nations] [Governments of the Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America].2. IN WITNESS THEREOF the undersigned, being duly authorized to that effect, have signed this Protocol.
Done at ... on ... .
-----------------------------------
† Nicholas A. Sims is a Senior Lecturer in International Relations in the Department of International Relations at the London School of Economics and Political Science, University of London, Houghton Street, London WC2A 2AE, UK.
1. Graham S. Pearson, The Strengthened BTWC Protocol: An Overall Evaluation, Evaluation Paper No. 1, University of Bradford, July 1999. Available on http://www.brad.ac.uk /acad/sbtwc
2. United Nations, Procedural Report of the Ad Hoc Group of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, BWC/AD HOC GROUP/46 (Part I), 30 July 1999, Geneva.
3. United Nations, Proposals for further consideration by the Friend of the Chair on Legal Issues, BWC/AD HOC GROUP/FOC/22, 28 July 1999 in Annex IV of Procedural Report of the Ad Hoc Group of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, BWC/AD HOC GROUP/46 (Part II), 4 August 1999, Geneva.
4. Organization for the Prohibition of Chemical Weapons, Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Available on the web at http://www.opcw.nl
5. Comprehensive Nuclear-Test-Ban Treaty. Available at http://www.ctbto.org/ctbto/pdf/cbten.pdf
6. Vienna Convention on the Law of Treaties. Available at http://www.tufts.edu/departments/fletcher/multi/ texts/BH408.txt
7. Graham S. Pearson & Nicholas A. Sims, Article XXI: Reservations, Evaluation Paper No. 6, University of Bradford, September 1999. Available on http://www.brad.ac.uk /acad/sbtwc
8. United Nations, Procedural Report of the Ad Hoc Group of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, BWC/AD HOC GROUP/46 (Part I), 30 July 1999, Geneva.
9. United Nations, Proposals for further consideration by the Friend of the Chair on Legal Issues, BWC/AD HOC GROUP/FOC/22, 28 July 1999 in Annex IV of Procedural Report of the Ad Hoc Group of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, BWC/AD HOC GROUP/46 (Part II), 4 August 1999, Geneva.
10. United Nations, Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, General Assembly Resolution 2826 (XXVI), 16 December 1971.
11. Comprehensive Nuclear-Test-Ban Treaty. Available at http://www.ctbto.org/ctbto/pdf/cbten.pdf
12. United Nations, List of States Parties and List of Signatories to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction as at July 1999, BWC/AD HOC GROUP/INF. 20, 20 July 1999.
13. United Nations, Procedural Report of the Ad Hoc Group of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, BWC/AD HOC GROUP/46 (Part I), 30 July 1999, Geneva.
14. United Nations, Proposals for further consideration by the Friend of the Chair on Legal Issues, BWC/AD HOC GROUP/FOC/22, 28 July 1999 in Annex IV of Procedural Report of the Ad Hoc Group of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, BWC/AD HOC GROUP/46 (Part II), 4 August 1999, Geneva.
15. United Nations, Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, General Assembly Resolution 2826 (XXVI), 16 December 1971.
16. Organization for the Prohibition of Chemical Weapons, Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Available on the web at http://www.opcw.nl
17. Comprehensive Nuclear-Test-Ban Treaty. Available at http://www.ctbto.org/ctbto/pdf/cbten.pdf
18. Graham S. Pearson & Nicholas A. Sims, Article XXI: Reservations, Evaluation Paper No. 6, September 1999. Available on http://www.brad.ac.uk /acad/sbtwc
19. United Nations, Procedural Report of the Ad Hoc Group of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, BWC/AD HOC GROUP/46 (Part I), 30 July 1999, Geneva.
20. United Nations, Proposals for further consideration by the Friend of the Chair on Legal Issues, BWC/AD HOC GROUP/FOC/22, 28 July 1999 in Annex IV of Procedural Report of the Ad Hoc Group of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, BWC/AD HOC GROUP/46 (Part II), 4 August 1999, Geneva.
21. United Nations, Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, General Assembly Resolution 2826 (XXVI), 16 December 1971.
22. Organization for the Prohibition of Chemical Weapons, Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Available on the web at http://www.opcw.nl
23. Comprehensive Nuclear-Test-Ban Treaty. Available at http://www.ctbto.org/ctbto/pdf/cbten.pdf
24. Graham S. Pearson & Nicholas A. Sims, Article XX: Entry into Force, Evaluation Paper No. 5, September 1999. Available on http://www.brad.ac.uk /acad/sbtwc
25. Graham S. Pearson & Nicholas A. Sims, Article XXII: Depositary/ies, Evaluation Paper No. 7, September 1999. Available on http://www.brad.ac.uk /acad/sbtwc
26. United Nations, Procedural Report of the Ad Hoc Group of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, BWC/AD HOC GROUP/46 (Part I), 30 July 1999, Geneva.
27. United Nations, Proposals for further consideration by the Friend of the Chair on Legal Issues, BWC/AD HOC GROUP/FOC/22, 28 July 1999 in Annex IV of Procedural Report of the Ad Hoc Group of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, BWC/AD HOC GROUP/46 (Part II), 4 August 1999, Geneva.
28. This is as stated in the source referenced although it is noted that other versions of the BTWC have a different sequence - English, Russian, French, Spanish and Chinese - for the languages listed. United Nations, Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, General Assembly Resolution 2826 (XXVI), 16 December 1971.
29. Graham S. Pearson & Nicholas A. Sims, Article XXII: Depositary/ies, Evaluation Paper No. 7, September 1999. Available on http://www.brad.ac.uk /acad/sbtwc