Graham S. Pearson is an Honorary Senior Visiting Research Fellow in the Department of Peace Studies at the University of Bradford. He was previously Director General and Chief Executive of the Chemical and Biological Defence Establishment at Porton Down, Salisbury. He has published several articles and papers on chemical and biological defence and arms control.
Discussion of Article VI at the Third Review Conference
1. At the Third Review Conference of the BTWC held on 9-27 September 1991, the Final Declaration1 of the States Parties noted that the provisions of this Article had not been invoked.
rticle VI states that:
(1) Any State Party to this Convention which finds that any other State Party is acting in breach of obligations deriving from the provisions of the Convention may lodge a complaint with the Security Council of the United Nations. Such a complaint should include all possible evidence confirming its validity, as well as a request for its consideration by the Security Council.
(2) Each State Party to this Convention undertakes to cooperate in carrying out any investigation which the Security Council may initiate, in accordance with the provisions of the Charter of the United Nations, on the basis of the complaint received by the Council. The Security Council shall inform the States Parties to the Convention of the results of the investigation.
The importance of this Article was reaffirmed by the Conference as it provides that any State Party which finds that any other State Party is acting in breach of its obligations under the Convention may lodge a complaint with the United Nations Security Council. The Conference invited the Security Council to consider immediately any complaint lodged under Article VI and reaffirmed the undertaking of each State Party to cooperate in carrying out any investigations which the Security Council may initiate.
2. The Conference recalled in this context United Nations Security Council Resolution 620 of 1988 which encouraged the United Nations Secretary-General to carry out prompt investigations, in response to allegations brought to his attention by any Member State concerning the possible use of chemical and bacteriological (biological) or toxin weapons.
Developments since the Third Review Conference
3. The provisions of this Article have not been invoked during the five years since the Third Review Conference. Whilst there have been allegations of the use of chemical weapons which have been investigated by the United Nations Secretary-General during the past five years, there have been no specific allegations of the use of bacteriological (biological) weapons brought to the attention of the Secretary-General.
4. Nevertheless, there has been useful progress on the subject of the procedures for investigations of such allegations. At the Third Review Conference note was taken of Security Council Resolution 620 (1988)2 which:
Encourages the Secretary-General to carry out promptly investigations in response to allegations brought to his attention by any Member State concerning the possible use of chemical and bacteriological (biological) or toxic weapons that may constitute a violation of the 1925 Geneva Protocol or other relevant rules of customary international law, in order to ascertain the facts of the matter, and to report the results; In addition, the Conference in its consideration of Article V welcomed the proposals for technical guidelines and procedures to guide the United Nations Secretary-General in the timely and efficient investigations of the possible use of chemical and bacteriological (biological) weapons developed by a group of qualified experts3 and endorsed by the United Nations General Assembly in its resolution 45/57C4.
5. The procedures for the investigation of allegations of use of chemical weapons have been developed further in the Chemical Weapons Convention5 which opened for signature in January 1993 and is close to entry into force. The Chemical Weapons Convention prohibits the development, production, acquisition, stockpiling or retention of chemical weapons which are defined in Article II of that Convention as being: 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 with toxic chemicals being defined in the same Article as:
Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of manufacture, and regardless of whether they are produced in facilities, in munitions or elsewhere. The prohibition thus applies to all chemicals, however produced, and therefore applies to toxins. Consequently, there is an overlap between the scope of the Chemical Weapons Convention and that of the Biological and Toxin Weapons Convention. Under the Chemical Weapons Convention, investigations of the alleged use of chemical weapons may be initiated under either Article IX (Consultations, Cooperation and Fact-Finding) or Article X (Assistance and Protection) and carried out in accordance with the procedures in Part XI (Investigations in Cases of Alleged Use of Chemical Weapons) of the Verification Annex. Provision is also made in respect of alleged use of chemical weapons involving a State not Party to the Chemical Weapons Convention or in territory not controlled by a State Party for the Organization for the Prohibition of Chemical Weapons to closely cooperate with the Secretary-General of the United Nations and, if so requested, for the resources of the Organization to be put at the disposal of the Secretary-General of the United Nations.
6. The Special Conference6 held in September 1994 at the request of a majority of the States Parties of the Biological and Toxin Weapons Convention to consider the report of the Ad Hoc Group of Governmental Experts (VEREX) to consider verification measures from a scientific and technical viewpoint, agreed7 to establish an Ad Hoc Group to consider appropriate measures, including possible verification measures, and draft proposals to strengthen the Convention, to be included, as appropriate, in a legally binding instrument. The mandate for this Ad Hoc Group requires that:
This regime would include, inter alia, potential verification measures, as well as agreed procedures and mechanisms for their efficient implementation and measures for the investigation of alleged use. 7. Consequently, the Ad Hoc Group has in its deliberations been considering measures for the investigation of allegations of use of bacteriological (biological) and toxin weapons. The Friend of the Chair (FOC) on Compliance Measures has prepared papers on the investigation of alleged use (Second AHG8, Annex III/4; Third AHG9, Annex III/3; Fourth AHG10, Annex III/pp 36-44 ) which have drawn upon contributions made by a number of States Parties in Working Papers and orally. At successive AHG meetings, the FOC has produced papers that reflect the discussions that have taken place yet are without prejudice to the positions of delegations on the issues under consideration in the Ad Hoc Group and do not imply agreement on the scope or content of the papers. These FOC papers are considered by the AHG in plenary session and amended as requested by delegations so that they reflect the views expressed before they are accepted for attachment to the procedural reports of the meetings. It appears that arrangements for the investigation of alleged use could play a central part in a legally binding instrument to strengthen confidence in compliance. Detailed consideration is being given to the implementation arrangements and especially to the scope, triggers for the initiation of any investigation and the specific technical guidelines for the conduct of any investigation.
8. The difficulties of determining whether biological or toxin weapons have been used are recognised; the disease episode could be difficult to distinguish from an endemic disease; the outbreak of disease may not be recognised as being the consequence of the use of a biological or toxin weapon; the circumstances surrounding the alleged use, particularly if armed conflict is involved, could make the investigation hazardous; and considerable time may have elapsed since the alleged use. Nevertheless the FOC paper on investigation of alleged use addresses initiation, measures to guard against abuse, implementation, reports and judgement as well as unusual outbreaks of disease. In respect of implementation, the FOC paper notes that detailed technical guidelines for the conduct of investigations of alleged use are already available in procedures prepared for the United Nations Secretary-General3 and that the procedures outlined in Part XI of the Verification Annex of the Chemical Weapons Convention5 may also be relevant. It should, however, be recognised that whilst a regime for the BTWC should not slavishly copy procedures from the Chemical Weapons Convention, neither should the wheel be reinvented. The aim should be to take what is best from the Chemical Weapons Convention and modify and develop this so as to make the changes necessary to make the procedures appropriate for the investigation of the alleged use of biological and toxin weapons 9. An Australian Working Paper11 presented to the Ad Hoc Group provides a useful comparison of the relevant provisions of the Biological and Toxin Weapons Convention, the existing authority of the United Nations Secretary-General and, for the purposes of comparison, the handling of such matters under the Chemical Weapons Convention. This paper points out that once a legally binding instrument to the BTWC has entered into force there could be a three tier structure for investigating allegations of use: a. BTWC Parties, also Party to the legally binding instrument - alleged use would be investigated by the new BTWC Secretariat .
b. BTWC Parties, not (yet) Party to the legally binding instrument - alleged use could be investigated by the new BTWC Secretariat or handled by the UN Security Council. Ideally, the UN Security Council would mandate the new BTWC Secretariat to investigate such allegations, provided there was no legal barrier to this course.
c. Non-BTWC Parties - alleged use would be investigated by the UN Secretary-General, but possibly conducted by the new BTWC Secretariat as a result of the UN Secretary-General calling on its resources for the task.
Whilst the authority for investigations would be different in each of the above three cases, it would seem logical that once a new institutional arrangement is in place, both the UN Security Council and the UN Secretary-General would call upon its resources to carry out alleged use investigations. There would appear to be much benefit from the legally binding instrument containing a comparable paragraph to the final paragraph (27) of Part XI of the Verification Annex of the Chemical Weapons Convention: 27. In the case of alleged use of chemical weapons involving a State not Party to this Convention or in territory not controlled by a State Party, the Organization shall closely cooperate with the Secretary-General of the United Nations. If so requested, the Organization shall put its resources at the disposal of the Secretary-General of the United Nations.
10. Whilst it is envisaged that a State Party might request an investigation on its own territory or outside its own territory, the question of whether individuals or NGOs (Non Governmental Organisations) should be allowed to approach a future BTWC Secretariat to request an investigation has been identified as requiring further consideration by the Ad Hoc Group. It is clearly important that any allegations of use should be promptly considered and investigated and the new procedures under the future legally binding instrument need to be drafted so as to cover all possibilities and eventualities.
Key Points for the Fourth Review Conference
11. As at the Third Review Conference, the matter of investigations of allegations of use is likely to be considered both under Article V (where it is now part of the work of the Ad Hoc group which is being considered by the Review Conference as Agenda item 12) and under Article VI. It is suggested that the Final Declaration might contain the same language as at the Third Review Conference insofar as the first three paragraphs relating to Article VI are concerned:
The Conference notes that the provisions of this Article have not been invoked. The Conference reaffirms the importance of Article VI, which, in addition to the procedures contained in Article V, provides that any State Party which finds that any other State Party is acting in breach of its obligations under the Convention may lodge a complaint with the United Nations Security Council. The Conference emphasized the provision of Article VI that such a complaint should include all possible evidence confirming its validity. It stressed that, as in the case of the implementation of all the provisions and procedures set forth in the Convention, the procedures foreseen in Article VI should be implemented in good faith and within the scope of the Convention.
The Conference invites the Security Council to consider immediately any complaint lodged under Article VI and to initiate any measures it considers necessary for the investigation of the complaint. The Conference reaffirms the undertaking of each State Party to cooperate in carrying out any investigations which the Security Council may initiate.
12. The fourth paragraph in the Final Declaration of the Third Review Conference related to the investigation of use of chemical and bacteriological (biological) weapons. It is suggested that it would be appropriate to adopt language that not only recalled the United Nations Security Council Resolution 620 of 1988 but also noted the provisions in the Chemical Weapons Convention for the investigation of allegations of the use of chemical weapons (without any implication that such procedures should be adopted unchanged for a BTWC regime) and welcomed the decision of the Special Conference of 1994 that the Ad Hoc Group considering proposals to strengthen the Convention through a legally binding instrument shall include measures for the investigation of alleged use. The Conference might also urge that the Ad Hoc Group should complete its work including its consideration of measures for the investigation of alleged use of biological and toxin weapons at the earliest possible date. The language adopted might be along the following lines: The Conference recalls, in this context, United Nations Security Council resolution 620 of 1988, which encouraged the United Nations Secretary-General to carry out prompt investigations of allegations concerning the possible uses of chemical and bacteriological (biological) or toxin weapons and notes with satisfaction that the Chemical Weapons Convention in Articles IX and X and Part XI of the Verification Annex makes provision for the investigation of allegations of the use of chemical weapons. The Conference also welcomes the decision of the Special Conference of 1994 to establish an Ad Hoc Group to consider proposals including measures to investigate alleged use to strengthen the Biological and Toxin Weapons Convention through a legally binding instrument and urges the Ad Hoc Group to complete its work at the earliest possible date. 13. Finally, as at the Third Review Conference, the Fourth Review Conference might, using the same language, include a final paragraph on Article VI:
The Conference invites the Security Council to inform each State Party of the results of any investigation initiated under Article VI and to consider promptly any further action which may be necessary.
1 United Nations, The Third Review Conference 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, Geneva, 9Ð27 September 1991, BWC/CONF.III/23, Geneva 1992. 2 United Nations Security Council Resolution 620 (1988) of 26 August 1988. 3 United Nations, Chemical and Bacteriological (Biological) Weapons, General Assembly, A/44/561, 4 October 1989. 4 United Nations, Chemical and Bacteriological (Biological) Weapons: Measures to Uphold the Authority of the 1925 Geneva Protocol, Resolution 45/57C, 4 December 1990. 5 United Nations, Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, United Nations 93-05070, 1993. 6 United Nations, Special Conference 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, Final Report, BWC/SPCONF/1 Geneva, 19Ð30 September 1994. 7 United Nations, Ad Hoc Group of Governmental Experts to Identify and Examine Potential Verification Measures from a Scientific and Technical Standpoint, Report BWC/CONF.III/VEREX/9, Geneva 1993. 8 United Nations, 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, Procedural Report, BWC/AD HOC GROUP/28, 24 July 1995. 9 United Nations, 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, Procedural Report, BWC/AD HOC GROUP/29, 12 December 1995. 10 United Nations, 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, Procedural Report, BWC/AD HOC GROUP/31, 26 July 1996. 1 Working Paper by Australia, Alleged Use Investigation - Authority to Trigger, BWC/AD HOC GROUP/WP.13, 29 November 1995.