International Control of the Biotechnology Revolution - Working Paper I
International Arms Control Agreements of Relevance to the Control of the Biotechnology Revolution

Catherine Rhodes, May 2005, Department of Peace Studies, University of Bradford

The biotechnology revolution is both a technological revolution based on developments in the life sciences of the past 35 years (particularly genetic engineering and genomics) and a socio-economic revolution, currently in its early stages, stemming from the rapid application of this new technology to a range of fields - most prominently to medicine and agriculture. The revolution will have many beneficial impacts, but as with any major new technology there will also be negative consequences. Regulation can be used as a tool to promote the beneficial aspects of the revolution while assisting to prevent or manage any negative impacts. The biotechnology revolution, its applications and impacts are global and therefore international regulation has a key role to play in their control.

Introduction

This paper looks at the four international arms control agreements of relevance to the control of biotechnology, examining their history and provisions. The four agreements covered are: the 1925 Geneva Protocol; the 1972 Biological and Toxin Weapons Convention (BTWC); the 1976 Environmental Modification (EnMod) Convention; and the 1993 Chemical Weapons Convention (CWC). These agreements are relevant because biotechnology may be misused for the creation and/or production of enhanced biological warfare agents and toxins. The development, production, stockpiling and use of these weapons against humans (and to some degree animals and plants) or to cause long-term environmental change as a method of warfare are prohibited by the provisions of the four agreements.

Regulations to restrict or prohibit the use of certain categories of weapons originally developed as part of international humanitarian law based on the principles of not causing unnecessary suffering and of discrimination between combatants and non-combatants. The early regulations banned the use of such weapons. With later recognition that the best means of ensuring non-use of such weapons was through non-possession, arms control became separated from the laws of war to also apply to times of peace. Its negotiation and use have been based more on national security interests and military expedience than on the principles of international humanitarian law, although these continue to be enshrined in the regulations that have been developed. As Mathews & McCormack (1999, p. 350) argue:

"…while the initial motivation for arms control and disarmament has often been based on humanitarian concerns, the actual negotiations of most of the recent arms control and disarmament treaty regimes have been motivated primarily by national and international security concerns."

The regulations vary in their status, the extent of their membership, and significantly in their ability to verify compliance.

The Relevance of Arms Control Agreements to the Control of the Biotechnology Revolution

Biotechnologies such as genetic engineering and genomics contribute to increased understanding of diseases and thus to their diagnosis and treatment. The new knowledge of disease has the potential to be misused. Areas of concern that have been identified regarding the use of biotechnology in the production of biowarfare agents include the following list produced by the International Committee of the Red Cross in 2002 as part of its initiative on Biotechnology, Weapons and Humanity:

"1. Known biological warfare agents may be manipulated…
2. Harmless microbes can be made dangerous…
3. Hostile vaccinations…
4. Research may lead to unintended but dangerous outcomes…
5. Extremely dangerous viruses may be artificially created…
6. Undetected attacks can alter bodily functions…
7. 'Genetic weapons'…
8. Effects on agriculture and infrastructure…" (ICRC, 2002).

International arms control agreements that cover biological and toxin weapons prohibit and aim to prevent such misuse without unnecessarily restricting the use of such technologies for peaceful purposes. In this way they promote the beneficial applications of biotechnology in the medical field, while prohibiting malign use.

Development of International Arms Control Agreements on Biological and Toxin Weapons

During the development of principles and rules of international humanitarian law (also known as the law of war), restrictions on the use of certain weapons, deemed to be abhorrent, indiscriminate, and/or to cause unnecessary suffering were integral. Early declarations of these principles include: the 1868 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes; the 1899 Hague Regulations Concerning the Laws and Customs of War on Land; and the 1907 Hague Regulations Concerning the Laws and Customs of War on Land. An example of the application of such principles, taken from the 1907 Hague Regulations is:

"Article 22
The right of belligerents to adopt means of injuring the enemy is not unlimited.

Article 23
…it is especially forbidden (a) To employ poison or poison weapons…"

International humanitarian law later separated into two major strands, known as the Laws of Geneva, and the Laws of the Hague. The principles and rules restricting weapons fit into the Laws of the Hague, this includes the 1925 Geneva Protocol, which is so named because it was negotiated in Geneva, but this was as an addition to the Convention for the Supervision of the International Trade in Arms and Ammunition and in Implements of War, and not the better known Geneva Conventions of 1949.

The attempts of the late 19th century to regulate the conduct of war soon suffered great setbacks due to technological progress and military expediency during the First World War. There was extensive use of chemical weapons by both sides, and although there were claims that this did not technically contravene the existing prohibitions it clearly went against the principles and intention behind those agreements (Murphy, Hay & Rose, 1984, p. 76). The use of chemical weapons in World War I, and their horrific effects, provoked responses of abhorrence and motivated international responses that attempted to remove the possibility of such weapons ever being used again. This was reflected in the peace agreements signed immediately after the war, and in the rapid negotiation of the Geneva Protocol.

The Geneva Protocol, originally intended to be a ban on the use of chemical and bacteriological weapons in war, became a ban only on first use of such weapons, because of the large number of reservations made by states parties. In the years following the signing of the Protocol stockpiles of offensive chemical and biological weapons were developed by many of the major powers including the UK, France, Germany, Russia and the United States. However, there was little use of such weapons in the Second World War and various reasons have been put forward for this, but this is likely to have been based on military and political motivations rather on the moral and normative force of the Protocol (Best, 1994, p. 306).

While it was recognised post World War II that the Geneva Protocol was insufficient to prevent the use of chemical and biological weapons, it was over twenty-five years before substantial progress was made in this area. After the use of nuclear weapons on Hiroshima and Nagasaki there was great concern about the possibility of weapons of mass destruction being used again and suggestions that were put forward for general and complete disarmament included the abolition of chemical and biological weapons. Proliferation was becoming a significant concern as chemical and biological weapons provided a comparatively cheap alternative to developing nuclear weapons. The fact that the great powers maintained stocks of such weapons encouraged the perception of their value.

Negotiations on arms control and disarmament on a multilateral basis took place in what is now the Conference on Disarmament (CD), a body of states independent of but supported by the United Nations. The membership and name of this body has varied over time. This is summarised by Goldblat (1996, p.8):

"It is the successor to the Ten-Nation Committee on Disarmament (1959-60), the Eighteen-Nation Committee on Disarmament (1962-69), the Conference of the Committee on Disarmament (1969-78) and the Committee on Disarmament (1979-83)."

The general wish for many years was for chemical and biological weapons to be dealt with together as they had been previously. However it became clear that certain states would not agree to this, and eventually it was agreed that the two would be separated with biological weapons being dealt with first. This was done with the explicit agreement that chemical weapons would also be dealt with as soon as possible. Goldblat (1996, p. 94) outlines the argument given for this separation: "…a ban on biological weapons did not require intrusive verification and could therefore be concluded quickly, without serious risks…".

With US renunciation of biological weapons in 1969 and of toxin weapons the following year and the Soviet Union's decision to allow the two areas to be dealt with separately, progress was rapidly made on finalising negotiations on the Biological and Toxin Weapons Convention (BTWC). The Convention was opened for signature in 1972 and entered into force in 1975. Despite the assurances contained within the Convention that rapid progress would be made to produce a chemical weapons convention this did in fact take another two decades.

There were probably several reasons for this delay. These included: the perception of the utility of such weapons; the recognised necessity for, but difficulty in agreeing to intrusive inspection mechanisms; and difficulties caused by outcomes of bilateral negotiations between the US and the SU - particularly the idea that they would keep stocks of chemical weapons, while under a multilateral treaty insisting that other states could not have them (Goldblat, 1996, p. 100).

Finally, the negotiations were spurred when the risks of proliferation of chemical weapons were highlighted both in the use of such weapons by Iraq against Iran and its own population (with the perception that this had affected the course of the war in their favour) and when states had to face the prospect of fighting a country which held such weapons in the 1991 Gulf War (Cole, 1997, pp. 9 & 97). Afterwards, during the UNSCOM (United Nations Special Commission) inspections Iraq was found to possess significant stockpiles of chemical agents, some biological agents and the means of delivering such weapons, as well as extensive research and development programmes (UNSCOM, March 1998). What was also clear was that it had relatively easily been able to acquire the knowledge, equipment and precursor materials for these offensive weapons programmes, often with at least the tacit support of powerful states like the US (US Senate Committee on Banking, Housing and Urban Affairs, 1994).

When both the US and the, by this time crumbling, SU had withdrawn their stated intention to retain stockpiles of chemical weapons and states had finally agreed to verification procedures that were intrusive enough to give reasonable confidence of compliance, the Chemical Weapons Convention was opened for signature in January 1993. It entered into force in 1997.

Both the BTWC and the CWC contain what are known as 'general purpose criteria'. Because many of the materials that can be used in the development and production of biological and chemical weapons also have peaceful purposes (i.e. they are 'dual-use') it would not have made sense to prohibit all research, development, production, stockpiling and use of such items. Instead the general purpose criteria involve the prohibition of such actions only when they are not conducted for peaceful purposes. The general purpose criteria also offer the advantage of flexibility and will apply to newly discovered/developed agents, when used for prohibited purposes, without those agents having to be specifically mentioned (SIPRI CBW Project, April 1997).

The relevant clauses are to be found in Article I of the BTWC and Articles I and II of the CWC:

"Article I
Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain:
(1) Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;" (BTWC)

"Article I
Each State Party to this Convention undertakes never under any circumstances:
(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;…

Article II
For the purposes of this Convention: "Chemical Weapons" means the following, together or separately:
(a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes;…" (CWC)

In the early seventies, with reference to the use of herbicides in the Vietnam War, and with growing international awareness of the detrimental effects of man-made activities on the environment, a convention to limit the use of environmental modification techniques as a method of warfare was negotiated. The EnMod Convention was adopted by the UN General Assembly in 1976 and entered into force in 1978. The Convention, which is very limited in scope and has significant flaws has not had wide adherence, having less than half the number of parties of either the BTWC or the CWC.

Provisions of the 1925 Geneva Protocol

The 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, is in comparison to the later agreements very short. Its preamble condemns the use of such weapons and declares that a prohibition on the use in war of "…asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices…" is already contained within international treaties. Its main text states first:

"That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare…"

While the text of the Protocol contains a general prohibition on the use of such weapons in war, it was rendered essentially a 'no-first-use' treaty due to the large number of Parties that attached reservations to the Protocol that would allow them to retaliate in kind if attacked with such weapons. The reservations generally state that the treaty will only apply regarding other states parties and that it will cease to be binding against an enemy state that does not respect its prohibitions (Reservations to the Geneva Protocol).

Because of this many states retained or built up stockpiles of chemical and biological weapons, something that was also assisted by the fact that the Protocol did not ban research, development, possession, production or transfer of chemical or biological agents, precursors or related equipment. Non-possession is an important means of ensuring that a banned weapons is not resorted to in warfare, and so this was a significant flaw. However, the Protocol still stands (unlike the Convention that it was attached to), was largely adhered to in World War II, and the support of states for the Protocol has been reconfirmed many times through resolutions of the United Nations General Assembly. It is now widely accepted as part of customary international law and many of the reservations have now been withdrawn. It also remains significant because it is the only treaty that bans the use of biological weapons (the BTWC does not ban use and instead states that it does not change the obligations of states to abide by the Geneva Protocol).

Provisions of the Biological and Toxin Weapons Convention

The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction was, for the reasons outlined above a necessary extension of the prohibition on use of these weapons contained within the 1925 Geneva Protocol. It is worth noting the references in its preamble to the aims of contributing to general and complete disarmament, to its role as a step forward to the negotiation of a chemical weapons convention (also being declared in Article IX of the Convention), and to the continuing significance of the Geneva Protocol (also declared in Article VIII). There are also allusions in the preamble to its basis in humanitarian principles with references to the Convention being, "…for the sake of all mankind…" and that use of such weapons, "…would be repugnant to the conscience of mankind…".

The Convention contains fifteen articles. Articles XI to XV deal with matters such as amendment, entry into force, review (through conference of the States Parties), withdrawal, signature, ratification, accession and deposit.

Article I outlines the coverage of the prohibition, which is stated as follows:

"Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain:
(1) Microbial or other biological agents or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;
(2) Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict."

This Article reflects a greater understanding of the range of biological agents that exist than there was at the time the Geneva Protocol was negotiated, hence the expansion of bacteriological to biological weapons (viruses not being known of at the time of the Protocol's negotiation) and lists toxins as distinct from other biological agents because of their different character and properties (they cannot reproduce for example). However no definition is given of biological agents or toxins. What is even more problematic is that even small quantities of biological agents can in practical terms be dual-use, and that research and development conducted for peaceful purposes may in practice differ from that conducted for hostile purposes only in intent. In the area of military research and development, King & Strauss (1990, p. 125) state that, "One has to rely on the stated intent of the program to distinguish between offensive and defensive efforts".

The Article also shows that the Convention aims to address the problem of proliferation, including the acquisition of such weapons as part of the prohibition. This is dealt with further in Article III which commits Parties not to transfer to anyone, any of the agents, materials or equipment listed in Article I, nor are Parties to encourage or support any other states to acquire any of these agents, materials or equipment.

Article II stipulates the destruction or conversion to peaceful use of all biological agents and toxins as well as associated equipment within nine months, but with care taken to avoid risks to human and environmental health. This destruction was not to be externally monitored, unlike the destruction of chemical weapons and production facilities under the CWC.

Article IV obliges states to "…take any necessary measures…" to fulfil their treaty obligations within their national territories. Although not specifically outlined as an obligation this is most likely to involve national implementing legislation and criminalisation of certain activities. Article V commits states to consult with each other about any problems that arise and allows for this to take place under the auspices of the United Nations if necessary. Article VI adds to this methods for dealing with suspected breaches of the Convention which is to be done through complaint to the United Nations Security Council. This Article also obliges states to facilitate any investigation that is subsequently undertaken by the Security Council.

Article VII regards the assistance that State Parties are to provide to another Party that has been affected by a breach of the Convention. It does not stipulate what form this assistance should take. As mentioned above Article XIII refers to the Geneva Protocol and it notes that the BTWC will not limit or detract from states' obligations under that agreement. Article IX, also mentioned above, contracts the parties to reach 'early agreement' on a prohibition on development, production and stockpiling of chemical weapons.

Article X concerns another form of cooperation between parties this time for the: "…fullest possible exchange of equipment, materials and scientific and technological information for the use of bacteriological (biological) agents and toxins for peaceful purposes." This Article also, in recognition of the interests of developing states, contains a statement on not allowing the Convention to hamper "…the economic or technological development of States Parties to the Convention…". Developing states wanted the inclusion of such a clause with the hope of preventing states from imposing unjustified export controls, under the guise of supporting the Convention's aims.

All the provisions of the BTWC apply to biological agents and toxins produced by or consisting of genetically engineered organisms. The Convention makes explicit the expectation that new scientific developments may have an effect on the Convention. The review of the Convention, stipulated in Article XII, is to, "…take into account any new scientific and technological developments relevant to the Convention."

The Review Conferences of the BTWC have generally produced Final Documents that contain a declaration which comments on interpretation and implementation of the Convention's provisions. This has, since the First Review Conference in 1980, built up legal understandings, and has assisted in the development of additional measures to support the effective implementation of the Convention. The Final Declarations have repeatedly affirmed that the prohibitions in Article I are comprehensive enough to cover all scientific and technological developments including specifically those in the fields of biotechnology, genetic engineering and - from the Fourth Review Conference - genome studies (BTWC Review Conference IV, 1996). Because of concern about the increasing gap in capabilities between the developed and the developing world, consistent calls have been made in the Final Declarations asking for there to be more cooperation and exchange of information, technology and materials between states in the areas of biotechnology and genetic engineering for peaceful purposes.

Other significant outcomes of the Review Conferences have been the creation of a voluntary mechanism for enhancing confidence in the Convention (the Confidence-Building Measures) introduced at the Second R eview Conference and elaborated at the Third Review Conference, and the investigation of possible verification mechanisms that could enhance the Convention's effectiveness by the VEREX group of technical experts, established by the Third Review Conference (Goldblat, 1996; BTWC Review Conference III, 1991) .

The Confidence-Building Measures (CBMs) consist of a number of declarations that States Parties are encouraged to make on an annual basis. These should provide information to other states on non-prohibited activities, and are intended to reduce suspicions about non-compliance. The measures are as follows:

"2. Confidence-building measure "A"
- Part 1: Exchange of data on research centres and laboratories;
- Part 2: Exchange of information on national biological defence research and development programmes.
3. Confidence-building measure "B"
- Exchange of information on outbreaks of infectious diseases and similar occurrences caused by toxins.
4. Confidence-building measure "C"
- Encouragement of publication of results and promotion of use of knowledge.
5. Confidence-building measure "D"
- Active promotion of contacts.
6. Confidence-building measure "E"
- Declaration of legislation, regulations and other measures.
7. Confidence-building measure "F"
- Declaration of past activities in offensive and/or defensive biological research and development programmes.
8. Confidence-building measure "G"
- Declaration of vaccine production facilities."
(BTWC Review Conference III, 1991, Final Declaration)

Model forms are provided for declarations under the CBMs and information should be provided annually. To avoid duplication of information states may, after their original complete submission, submit a form declaring that there is either nothing to declare or nothing new declare (through a series of tick boxes) (BTWC Review Conference III, 1991, Final Declaration). Many States Parties have made use of this mechanism, but not all have given complete declarations and some have not yet made declarations at all (BTWC Review Conference IV, 1996, Final Declaration).

In addition to the five Review Conferences held in 1980, 1986, 1991, 1996 and 2001/2002, there was also a Special Conference of the Parties held in 1994. This Conference was convened to consider the work of VEREX and to recommend any further action. The Special Conference established an Ad Hoc Group of governmental experts to consider, on the basis of the VEREX findings, suitable verification mechanisms to be incorporated into the regime, possibly through a legally binding instrument (BTWC Special Conference, 1994). The 1996 Fourth Review Conference encouraged the Ad Hoc Group to move on to negotiating a legally binding instrument, to be submitted for consideration at the Fifth Review Conference (BTWC Review Conference IV, 1996, Final Declaration).

Although a protocol to strengthen the Biological Weapons Convention was drawn up, the United States withdrew its support for this process in 2001. The Fifth Review Conference, originally convened in November of that year, was unable to reach agreement and was reconvened in November 2002. The process of negotiating an appropriate instrument was not renewed at that Conference and instead a new process was begun. No Final Declaration was produced but the Final Document outlined the form the new process was to take. This consists of three meetings of States Parties in 2003, 2004 and 2005 preceded by preparatory meetings of technical experts. The topics of these meetings are as follows:

"i. the adoption of necessary national measures to implement the prohibitions set forth in the Convention, including the enactment of penal legislation;
ii. national mechanisms to establish and maintain the security and oversight of pathogenic microorganisms and toxins;
iii. enhancing international capabilities for responding to, investigating and mitigating the effects of cases of alleged use of biological or toxin weapons or suspicious outbreaks of disease;
iv. strengthening and broadening national and international institutional efforts and existing mechanisms for the surveillance, detection, diagnosis and combating of infectious disease affecting humans, animals and plants;
v. the content, promulgation and adoption of codes of conduct for scientists." (BTWC Review Conference V, 2002)

The lack of any procedure or mechanism to verify compliance remains the most glaring omission from the Biological and Toxin Weapons Convention. Confidence that states are adhering to their treaty obligations is extremely important to the success of arms control agreements, otherwise states may be motivated to breach a convention themselves because of suspicions that their rivals are doing the same, as Best (1994, p.308) explains:

"The only ground on which a military-minded state can prudently forgo possession of a prohibited weapon is convincing evidence that no other states possess it except those with which armed conflict is inconceivable."

This is particularly important for the Biological and Toxin Weapons Convention, because it does (necessarily) allow research, development, production, possession and transfer of biological agents and toxins for peaceful purposes, and these peaceful uses may be difficult to distinguish from hostile uses, particularly without effective verification (Wright, 1990, p.304). This is compounded by the fact that peaceful activities, despite being above board, may well be hidden because of the desire to protect commercial information or national security interests in the case of defensive research.

This major weakness in the BTWC has received at lot of attention, particularly during the 1990s, with major efforts to negotiate a verification protocol. The conclusion of this process without a legally binding instrument means that the BTWC remains seriously flawed at a time when it is becoming more important than ever as developments in biotechnology make the production of effective biological agents and toxins easier and cheaper. The reasons for concern about such misuse of biotechnology are outlined by Wright (1990, p.307):

"One activity however provokes pre-eminent concern and could in itself constitute a global threat: the creation of novel biological warfare agents. These can be defined as pathogens (organisms or toxins) that possess a particular combination of properties conferred by scientific manipulation…that might increase their usefulness as weapons agents or in the development of weapons agents. Some examples are the combination of pathogenicity with drug resistance, altered antigenicity, altered stability, additional pathogenic factors, altered host range or tissue specificity, altered invasiveness, and properties that would result in evasion of detection or of proper identification."

Provisions of the EnMod Convention

The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (EnMod Convention) was adopted on the 10 December 1976 and opened for signature on 18 May 1977. It entered into force on the deposit of the twentieth instrument of ratification in October 1978. The EnMod Convention also has close connections to international humanitarian law. Additional Protocol I to the 1949 Geneva Conventions contains a similarly worded prohibition "to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term or severe damage to the natural environment." (ICRC, Additional Protocol I, Article 35). The reason for this articulated in Article 55 of the Protocol is that such means and methods may "prejudice the health and survival of the population".

The EnMod Convention's preamble specifically recognises "…that scientific and technical advances may open new possibilities with respect to modification of the environment." Recognition is also given to the potential benefit that such techniques may have when used for peaceful purposes.

Article 1 contains the specific prohibitions of the Convention, which are:

"…not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other state party."

The terms 'widespread', 'long-lasting' and 'severe' are not defined within the Convention text. However, the Committee of the Conference on Disarmament in which the text was drafted, produced a document of Understandings which clarified the meaning of certain Articles. The definitions given were:

"(a) "widespread": encompassing an area on the scale of several hundred square kilometres;
(b) "long-lasting": lasting for a period of months, or approximately a season;
(c) "severe": involving serious or significant disruption or harm to human life, natural and economic resources or other assets"
(FAS, no date given).

It would clearly have been unsatisfactory to have had no definition of those terms, because it would then have been unclear what the scope of the Convention's application was. However, the Convention would have more force if the terms had not been included at all, and instead, as Goldblat suggests, there had been a general prohibition on environmental modification techniques:

"The imprecise and haphazard definition of the terms 'widespread, long-lasting or severe' may generate controversies greater than an unqualified ban. There is no reason why any hostile modification of the environment or any amount of damage caused by such modification should be tolerated." (Goldblat, 1996, p. 113).

The phrase 'as the means of destruction, damage or injury' implies that the use of such techniques is only prohibited when conducted with certain intent. Intent can be very hard to prove in the event of an abrogation, but the EnMod Convention is not the only international treaty to include intent in its prohibitions, for example both the BTWC and the CWC do through their use of general purpose criteria.

The term environmental modification techniques is defined, quite comprehensively (in Article 2) as:

"…any technique for changing - through the deliberate manipulation of natural processes - the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space."

Goldblat also has strong criticism of the Understanding provided for Article 2 which lists various examples of events that would be covered, since most of these are far beyond what might be of strategic use to belligerents:

"…only the most fanciful events are enumerated in the relevant understanding - those unlikely to be caused through deliberate action for warlike purposes, that is, in such a way that the effects would be felt only (or primarily) by the enemy." (Goldblat, 1996, p. 113)

Those listed include earthquakes, tsunamis, changes in weather patterns, changes in climate patterns and changes in ocean currents. (FAS, no date given).

The EnMod Convention has provisions on scientific and technological exchange, similar to those in the BTWC and CWC but, "These pledges have proved to be of no consequence." (Goldblat, 1996, p.113-114). Governments are obliged to have national implementation measures to "…prohibit and prevent any activity in violation of the provisions of the Convention…" (Article IV), but no specific guidance is given about the form these measures should take.

Where there are suspicions of non-compliance this should be dealt with initially through consultation between the parties. Parties can also request that a Consultative Committee of Experts be established to investigate the issue (which would then report to the Convention's Depositary) or parties can direct complaints about non-compliance to the United Nations Security Council to be investigated (Article V). The Depositary of the Convention is the United Nations Secretary-General (Article X).

The Convention has a brief annex on the Consultative Committee of Experts. This will be chaired by the Depositary, and will decide itself on organisation and procedure when it is established. Very little information if provided on what the Committee can do in order to investigate matters referred to it aside from having the right, "to request from States, and from international organizations, such information and assistance as the expert considers desirable…". Neither the Annex nor the Convention text specify an obligation on State Parties to provide the information requested by the Committee.

Article VI covers amendment, and Article VII duration of the Convention. Article VIII specifies that review conferences for the Convention should occur five years after entry into force, and subsequently at intervals of no less than five years. It does not impose a maximum interval, but if a conference has not occurred within ten years of the previous one, the Depositary may ask states if they wish to hold one and if more that ten states agree, will arrange for the conference to take place. Review conferences for the Convention have been infrequently held (1986 and 1992). Article IX covers signature, ratification, accession and entry into force.

A further weakness of the Convention is that, similarly to the 1925 Geneva Protocol, it prohibits use only and not the research and development of such techniques. But further than this it only prohibits use above certain thresholds, due to the way the terms widespread, long-lasting and severe are defined.

In comparison to the other agreements discussed in this chapter, the EnMod Convention has a very low membership. It has only 70 States Parties, less than half the membership of the BTWC and CWC (151 and 167 respectively). This gives some indication of the lack of importance states attach to the Convention. This is not necessarily an indication that states think a ban on hostile use of environmental modification techniques is insignificant, or that they want to pursue programmes in this area, but may instead as Goldblat (1996, p.114) argues be due to perceived flaws in the Convention. Its prohibitions are limited and ambiguous, it has no verification mechanism, and abrogation of the Convention would be difficult to prove, given the requirement of intent to cause 'destruction, damage or injury'.

Provisions of the Chemical Weapons Convention

The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (CWC) does contain provisions on verification of compliance, and these provisions are highly detailed and robust, and are considered a great achievement particularly since they directly infringe upon national sovereignty. The provisions are not perfect, but considering the political compromises that are necessary in reaching such agreements, they are significant and are a useful measure, for giving confidence that states will abide by the treaty (Bernauer, 1993, p. 105).

The CWC contains twenty-four articles and well over a hundred pages of annexes. It is far more detailed than the other agreements discussed in this chapter. The later articles (XV to XXIV) deal with issues such as amendments, withdrawal, signature, ratification, accession, entry into force and deposit. Interestingly the Convention has an Article on reservations (XXII), but this is to state that they are not permitted to the convention text (or to the annexes if they contravene the purpose of the Convention). This is because it is considered that if states were allowed to make reservations to the Convention, this would severely weaken its prohibitions.

The preamble to the CWC refers to the objective of general and complete disarmament in the same way that the BTWC does. It also reaffirms commitment to the Geneva Protocol and mentions Article IX of the BTWC in which states committed themselves to reaching an agreement on the prohibition of chemical weapons. There is also an indirect reference to the EnMod Convention in the preamble where States Parties recognise, "the prohibition, embodied in the pertinent agreements and relevant principles of international law of the use of herbicides as a method of warfare,".

Article I details the obligations of the States Parties who undertake:

"…never under any circumstances:
(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;
(b) To use chemical weapons;
(c) To engage in any military preparations to use chemical weapons;
(d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention."

It also commits states to destroying all chemical weapons and chemical weapons production facilities, within their own territory or that they have in other states' territories. Detailed provisions for this destruction are contained in Articles IV and V and in the Verification Annex. Notably this Article also prohibits the use of, "…riot control agents as a method of warfare." the coverage of which by the Geneva Protocol had long been in dispute. However states are, under Article II allowed to use such agents in domestic law enforcement and are therefore allowed to develop and produce them. Interpretation of the term domestic law enforcement is contested, and the implications of this are discussed later in this chapter.

Article II contains a series of detailed definitions, of particular note are the definitions of 'Chemical Weapons', 'Riot Control Agent', and 'Purposes not Prohibited Under This Convention':

" 'Chemical Weapons' means the following, together or separately:
(a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes;
(b) Munitions and devices, specifically designed to cause death and or other harm through the toxic properties of those toxic chemicals specified in subparagraph (a), which would be released as a result of the employment of such munitions and devices;
(c) Any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in subparagraph (b)."

" 'Riot Control Agent' means:
Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling effects which disappear within a short time following termination of exposure."

" 'Purposes not Prohibited Under this Convention' means:
(a) Industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes;
(b) Protective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical weapons;
(c) Military purposes not connected with the use of chemical weapons and not dependent on the sue of toxic properties of chemicals as a method of warfare;
(d) Law enforcement including domestic riot control purposes."

Article III provides details on the declarations that states are obliged to submit to the organisation that will oversee the Convention's implementation. These include a declaration to be made within 30 days of the convention entering into force. These declarations will give the Organisation for the Prohibitions of Chemical Weapons (OPCW) details of chemical weapons stockpiles and production facilities and states' planned schedules to destroy them. These details can then be checked in the OPCW's routine inspections, ensuring that Parties are meeting their commitments. The required transparency regarding the stocks and facilities possessed by states enhances confidence in the treaty by lowering suspicions. The Convention also requires the declaration of any riot control agents a state possesses, although these do not have to be destroyed (the implications of allowing possession of such agents are discussed later in this chapter).

Article IV provides further details on the procedures for destruction of chemical weapons and what is expected of a state regarding the enabling of verification. These are supplemented by additional details contained in the Verification Annex. Article IV asks for declarations on the destruction of chemical weapons to be submitted annually. Article V is very similar to Article IV but applies to the destruction of chemical weapons production facilities, it also asks for annual declarations. Both articles stipulate that the costs of destruction, and of verification of destruction, are to be met by the individual state party. This has been a problem in practice particularly for the former Soviet Union, which has through separate bilateral agreements received assistance from other states for its destruction programme (CWC Review Conference I, 2003).

Article VI deals with activities not prohibited under the Convention and introduces the schedules of chemicals that are to be found in the Annex on Chemicals. These chemicals and precursors and facilities related to them must also be open to verification. Parties are themselves obliged to verify these chemicals and facilities as well as enabling the international inspectorate to. Initial and annual declarations must be made of these chemicals and facilities as well as those previously used in chemical weapons programmes, this is because of their dual-use nature. The Article contains a provision on not impeding states' economic or technological development, again this was demanded by developing states who were concerned about the use of export controls, such as those of the Australia Group, to prevent them acquiring resources for peaceful purposes.

The CWC is far more specific in its requirements regarding national implementation measures than the BTWC or EnMod. It refers to the national legislation that may be necessary in order to meet the various objectives of the Convention. In the same Article (VII) states are required to establish 'national focal points' for liaison with the Organisation for the Prohibition of Chemical Weapons. The large amount of information which must pass between states and the OPCW each year underscores the importance of these focal points.

Article VIII provides details on the responsibilities and structure of the OPCW. The Organisation's purpose is to be:

"…to achieve the object and purpose of this Convention, to ensure the implementation of its provisions, including those for international verification of compliance with it, and to provide a forum for consultation and cooperation among States Parties."

The Organisation consists of the Conference of States Parties, an Executive Council and a Technical Secretariat. The Article details the processes and responsibilities of each of these bodies. The Conference of States Parties is to meet annually in regular sessions and is also to meet in special sessions including sessions held at five yearly intervals for review of the operation of the Convention. The First Review Conference was held in 2003. The Conference is the primary body of the Organisation and is given the role of overseeing the work of the Organisation. Among other things the Conference is responsible for: the programme and budget of the Organisation; election of members to the Executive Council; the appointment of the Director-General of the Technical Secretariat; reviewing scientific developments that could affect the Convention; and for ensuring compliance with and resolving any issues of non-compliance with the Convention (Article VIII.21).

The Executive Council is to be composed of 41 members, elected from among the states parties on geographical quotas, for two-year terms. The Council is responsible for devising the Conference's agenda. The Council supervises the Technical Secretariat and is responsible for communicating with States Parties about implementation and compliance issues.

The Technical Secretariat is responsible for undertaking verification activities. The draft programme and budget of the Organisation originate with the Technical Secretariat, and are then considered by the Council before being passed to the Conference of States Parties for approval. The Technical Secretariat is also responsible for compiling and maintaining a stockpile of items for emergency assistance, and a data bank of information on protection against chemical weapons. The Director-General and all other staff of the Technical Secretariat are to be independent from national governments. The Technical Secretariat is also given responsibility for creating inspection teams (Verification Annex).

The Organisation is authorised to take various measures to ensure compliance (Article XII). These include suspension of rights under the Convention for a state party that is failing to comply, recommendation by the Conference to States of collective measures to be taken, and in serious cases referral of the matter to the United Nations General Assembly and Security Council.

Article IX is titled 'Consultations, Cooperation and Fact-Finding', and it details procedures for when there are concerns about implementation or compliance. As a first step State Parties should consult between themselves over the compliance issue(s). A State Party can request the Executive Council act to clarify compliance issues and if this does not clarify the matter adequately the State Party can request the convening of a special session of the Conference of States Parties. Further to this challenge inspections can be requested. The Verification Annex details how such inspections would take place. The request for the challenge inspection is submitted to both the Executive Council and the Director-General of the Technical Secretariat. If the request is properly formulated, the Director-General will immediately begin working on preparation for the inspection. However, the Executive Council can prevent the inspection taking place if three-quarters of its members vote against the inspection considering it to be: "…frivolous, abusive or clearly beyond the scope of this Convention…" (Article IX.17).

Once a final report on the inspection has been compiled it is immediately transmitted by the Director-General to the requesting and inspected states, the Executive Council and all other States Parties. The Executive Council will make a decision on the non-compliance issue and may recommend action to be taken by the Conference.

Under the CWC states are allowed to take certain measures to protect themselves against chemical warfare attacks. States are also committed to assisting other states parties who have been or are under threat of being attacked with chemical weapons. States Parties are to inform the Organisation of what assistance they will be able to provide in such situations. They should also inform the Organisation annually of any programmes they have for protective purposes. This should increase transparency and reduce suspicions between states of the intent behind such programmes. States Parties can request assistance from the OPCW if:

"(a) Chemical weapons have been used against it; (b) Riot control agents have been used against it as a method of warfare; or (c) It is threatened by actions or activities of any State that are prohibited…"

Assistance will be provided by the Organisation and an investigation of the alleged attack will take place and will include an assessment of what further assistance will be necessary.

The provisions of the Convention should not be implemented in such a way as to hinder economic and technological development of states, or to restrict in anyway cooperation, research, development, production, trade in or use of chemicals for purposes not prohibited by the Convention (Article XI). Article XI.2.c says that States Parties should:

"Not maintain among themselves any restrictions, including those in any international agreements, incompatible with the obligations undertaken under this Convention, which would restrict or impede trade and the development and promotion of scientific and technological knowledge in the field of chemistry for industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes."

Part of the reason for the inclusion of this clause is believed to be the concern of developing states that some of the developed states would otherwise maintain trade restrictions on certain dual-use chemicals and equipment to certain states. However many of these restrictions do remain under the Australia Group Guidelines.

Article XIII specifies that the Convention does not detract from states' obligations under the Geneva Protocol or the Biological and Toxin Weapons Convention. The remaining eleven articles deal with issues such as dispute settlement, entry into force, depositary, amendment, signature, ratification and accession.

Even before considering the Annexes to the Convention, it can be seen that the CWC is significantly more detailed than the BTWC in terms of the obligations it sets out for states. States Parties did manage to agree on a significant and rigorous (although not perfect) system of verifying compliance with the Convention, something that was quite a challenge, given the concerns of many states and the chemical industry over the levels of intrusiveness required.

There are three annexes to the CWC: the Annex on Chemicals; the Annex on Implementation and Verification (Verification Annex); and the Annex on the Protection of Confidential Information (Confidentiality Annex). The Annex on Chemicals contains guidelines on how chemicals should be classified into one of the three Schedules, and then gives the Schedules themselves, which list certain toxic chemicals and precursors that are included in those schedules.

The Confidentiality Annex concerns information declared to the Technical Secretariat, information given by the OPCW to States Parties and information collected during verification. During verification activities no more than the necessary information is to be collected. Information held by the Technical Secretariat is to be classified according to sensitivity and a special unit of the technical secretariat was to be set up to make decisions on what documents/data are confidential. States may also make specific requests for certain information to be treated confidentially.

The Verification Annex is the most detailed part of the Convention. It gives very specific guidelines on the procedures for each type of verification activity including verification of destruction of weapons and facilities, routine inspections at various levels and challenge inspections. It details the declarations that are to be made by States Parties and their obligation to cooperate with verification, and the scope and limitations on activities of inspectors. It lists the rights of the inspected state and the rights of inspectors, and sets down procedures and response times for post-inspection work. There are also details on the conduct of investigations of alleged use. Also detailed, and significant in the concept of challenge inspections being accepted by many states, are the measures that states may take to protect sensitive information during inspection.

Article VIII which outlines the organisational structure and functions of the OPCW's various bodies stipulates that review conferences are to take place every five years after entry into force. The First Review Conference was held in 2003, and at its conclusion a Political Declaration was produced. This reaffirmed States Parties' commitment to the Convention's obligations and implementation. It specifically noted the importance of the verification system of the Convention, and stated that the OPCW had established an effective system (CWC First Review Conference, Political Declaration). While it was noted that some states were have difficulty meeting their destruction timetables and some extensions were granted, it was generally felt that all States Parties were fully committed to fulfilling their destruction obligations, and cooperative efforts in this area were particularly welcomed.

Controversial areas in the applicability of the CWC

There are a few issues for which the extent of the CWC's prohibitions is contested. One of these is its coverage of herbicides. While the EnMod Convention would cover some uses of herbicides in warfare, there is no specific prohibition of their use in the CWC. Article II (2) of the CWC states that:

"2. "Toxic Chemical" means: Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals."

This definition does not included chemicals that harm plants. Some countries have long interpreted prohibitions on chemical weapons to include the use of herbicides in warfare; however, others have maintained an alternative interpretation that does not cover herbicides (FAS Weapons of Mass Destruction Resources, no date given), and this issue is not clearly resolved in the CWC.

A further significant issue that is contested is the extent of the Convention's prohibitions on riot control agents, and interpretation of the term 'law enforcement' in the context of the Convention. The need for clarity on these issues is illustrated by uncertainties over the legality of the development, production, stockpiling and use of certain (bio)chemical based 'non-lethal' weapons/ incapacitants.

Riot control agents are allowed under the Convention for law enforcement purposes, however, while riot control agents are defined, law enforcement purposes are not. Furthermore, while law enforcement includes riot control it is not limited to it, and chemical agents used for law enforcement, which is not riot control, do not have to be declared. The development of biochemical incapacitants under non-lethal weapons programmes, even when intended for the non-prohibited purposes of 'law enforcement including riot control', may well undermine both the Chemical Weapons Convention and the Biological and Toxin Weapons Convention (Harvard Sussex Program, September 2003). There are various reasons for this. One is varying definitions of 'law enforcement', the United States, for example, interprets the term as including:

"1) peacetime military operations within an area of ongoing armed conflict when the US is not a party to the conflict…;
2) peacekeeping operations when the use of force is authorized by the receiving state…;
3) peacekeeping operations when force is authorized by the Security Council…" (Gordon, 1997)

The holding of stockpiles of such agents is likely both to raise suspicions among other states over intentions (particularly since agents used for law enforcement purposes that are not riot control do not have to be declared) and to heighten the possibility of resort to such weapons in warfare situations. Additionally the incapacitants are unlikely to be entirely 'non-lethal' in practice, particularly if used in combination. There is also the risk of incapacitated subjects being killed, injured, detained or tortured while in that state - something which is against international humanitarian law (ICRC, 04/06/04). The delivery mechanisms developed for use with such agents would generally be able to be used for prohibited purposes. It is also possible that such programs could be used as a cover for warfare programs (Wheelis, 2002).

It is argued that while the CWC's prohibitions on such agents are ambiguous, prohibitions in the BTWC are clearer (Wheelis, 2002). The BTWC would apply to such agents because they are considered to be covered as "other biological agents, or toxins" and its prohibitions extend beyond use in warfare to use for "hostile purposes" (FAS Working Group on Biological Weapons, November 2002). Both biochemical incapacitants and toxins are areas in which the BTWC and CWC overlap in their coverage. Toxins (of natural or synthetic origin) are covered by both conventions since they share characteristics of both biological and chemical weapons.

Coverage of Biotechnology by the Agreements

The BTWC and Geneva Protocol together prohibit the production, development, stockpiling and use of biological and toxin weapons, including those developed and/or produced using genetic engineering. This has been reaffirmed in the Final Declarations of the BTWC Review Conferences, which have made clear that all scientific advances are covered by the Convention. The Chemical Weapons Convention is also relevant because it too covers toxins and bioregulators. The EnMod Convention is relevant because biotechnology could also be misused to modify the environment. The text of that Convention also makes clear that it covers advances in science and technology.

It should be remembered, however, that the agreements suffer from certain flaws. The EnMod Convention has low membership, a very narrow focus and has been reviewed far less often than recommended in its text. The BTWC, despite recent efforts, still lacks an effective verification mechanism. There are current concerns about the open publication of scientific data that is open to misuse, and the agreements do not cover this issue.

Conclusion

There are four international arms control agreements relevant to the control of biotechnology. They prohibit the hostile use of biotechnology by placing prohibitions on the research, development, production, stockpiling, and use of biological, biochemical and t oxin weapons. These four treaties were not designed specifically to prevent misuse of biotechnology; the 1925 Geneva Protocol was adopted long before the biotechnology revolution and the BTWC and EnMod Convention in its early stages. Nevertheless due to the scope of their prohibitions the treaties do apply to hostile application of modern scientific advances, in fact these advances make the prohibitions even more important, because they make such weapons easier and cheaper to produce.

All four agreements have their roots in principles of international humanitarian law but a significant motivation for their negotiation has been increasing national security. In order to remove the threat to national security of such weapons being used, it has been necessary not just to ban their use but also development, production and possession. Threats to security are dependent on perception, and for this reason adequate verification of compliance is an essential part of such treaties, providing confidence among the parties that they are not leaving themselves vulnerable by giving up such weapons. Unfortunately of the four treaties, only the CWC has stringent verification mechanisms.

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Related Summaries on the Genomics Gateway Site:

1925 Geneva Protocol
Biological and Toxin Weapons Convention
EnMod Convention
Chemical Weapons Convention
Organisation for the Prohibition of Chemical Weapons

Page last updated May 2005.

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