by Shivam Mishra and Aman Vijay Bhatt 26 August 2020
BIO-WEAPONS CONVENTION-A CRITICAL ANALYSIS AND SUGGESTIONS [PART-I]
In the first part of this bipartite blog series, the authors have put forth the urgent need of considering the potential Bio-terror attack in the future by the countries while supporting the voice of the United Nations Security General. The authors take a gestalt perspective of bio-terror instances where they have discussed and perceived the disagreeable truth of bio-attacks occurring frequently. The authors then shift their discussion on analyzing the Bio-Weapons convention to assure the better preparation of the countries. In this part of the series authors have comprehensively analyzed Article 1 of the convention in view of its unexplained clauses and terms.
What was recognized as a contagious virus a few months ago has now become the biggest symbol of disaster across the globe. The number of infected cases from Covid-19 has crossed 10 million with more than half-million deaths. While the enormity is growing continuously the progression towards its cure, is very minimal. Recently, while talking about the economic devastation caused by the virus in the Security Council meeting on the maintenance of international peace and security and the implications of Covid-19, the United Nations Secretary-General Antonio Guterres pointed out an important aspect which unfortunately is going unnoticed by all countries. The Secretary-General warned the nations about the potential future bio-terrorist attacks. He observed that the deplorable impact of Covid-19 has raised this possibility and opined that a deliberately discharged infection will have more severe consequences than the terrible impacts of Covid-19.
Jez Littlewood, a freelance researcher and an expert in this field has also observed that in current generation barriers to create a bioweapon are much lower than what it was a few years ago. Further, the microbiologists have also stated the same considering the current ongoing practices of modifications in viruses and bacteria in pursuance of creating a vaccine for Covid-19 as such practices have immensely raised the possibility of engineering of bacteria and viruses by the terrorists too. In addition to this, the recently released Memo by the U.S. Department of Homeland Security has already notified that bioterrorism is a popular topic among the terrorists. Therefore as an effective measure against this disastrous possibility, the Secretly General has recommended the effective implementation of the Bio-Weapons convention. He raised the need of fortifying the convention to guarantee more security with respect to bio-fear based oppression.
Given this, the authors in this piece have analyzed the Bio-Weapons Convention (Hereinafter as ‘The Convention’) where the loopholes of the convention are highlighted. The paper begins by perceiving the disagreeable truth of bio-weapon assaults in different corners of the world. This later has been trailed by a critical analysis of the convention which is further followed by the multifold proposals from the authors.
EARLIER INSTANCES OF BIO-ATTACK
Bioweapon is not a new reality in this world as the evidence of bioweapon can be traced from 600 BC itself. There are various instances where bioweapons have been used by the states as well as by the Terrorist organizations. Starting chronically, utilization of plague pandemic by the Tartar powers in the fourteenth century[i] which severally influenced regions like Europe, Middle East, and North Africa[ii] or smallpox-stacked attire which brought about the upheaval of malady among Native American Tribes are some significant examples of bioterrorism.[iii] Further, the use of bioweapon can also be evidenced in wars that occurred among European countries or during the American civil war in form of polluting water resources with infectious substances or the use of diseased cadavers and animal carcasses.[iv]
Such practices became more prevalent during the First world war as Germany used Horses being shipped to Allies to spread biological agents such as Anthrax, cholera, glanders, and plague to sabotage the US, Russia, France, and Italy.[v] Further, Japan’s biowarfare program which functioned during 1932-45 caused causalities of more than 10,000 prisoners due to the spread of cholera, plague, and Anthrax. Japan also spread plague in major cities of China and Manchuria.[vi] The US is also known for using such agents during the Korean War[vii] while Iran used such agents during the Persian war.[viii]
In recent years, the use of such agents is quite frequent, and most importantly how it has been utilized by individuals and terrorist organizations. For example in 1984 religious group ‘Rajneesh’ spread the Salmonella typhimurium in Oregon City (USA) while in 1995 Japan-based religious group Aum Shrinkyo attempted to spread sarin gas in Tokyo.[ix] The Most famous is the 2001 anthrax attack, arranged by an individual, was occurred on the US through infectious letters. Further, the fear monger association the al-Qaeda group was also founded to involve well known “ricin plot” in England in 2002. While Islamic state most recently in 2017 involved in making ricin which also resulted in the fatality of Hamster.
These incidents assuredly establish the fact that bioweapon is not a far reality for the world and the disastrous effect of the Covid-19 can be worked as a catalyst for many organizations to shift their emphasis more profoundly on bioterrorism.
BIO WEAPON CONVENTION- A CRITICAL ANALYSIS
Biological Weapon Convention was enforced in 1975. It replaced the Geneva protocol 1925 which prohibited the use of chemical and biological toxins only during War while the BWC prohibited not only the use but also development, production, acquisition, transfer, retention, and stockpiling of the biological agents or toxins under Article 1. Currently, 183 nations are a member state of the convention. It is the prime convention that specifically prohibits the use of biological agents and toxins. Therefore all the lacunae of it must be discussed and debated for abating any future possibility of bio-threats.
One of the primary lacunae in the convention in the absence of a proper definition of biological agents or toxins in addition to not defining the phrase “weapons, equipment or means of delivery” mentioned under Article 1 of the convention. We currently rely upon WHO’s 1970 reports for the determination of the same. However, this definition in the author’s view is itself quite problematic precisely on two grounds. First, a lot of advancement has been achieved by scientists in this field therefore we can’t rely on this obsolete definition. Second, since WHO is a clinical guide giving foundation, in this manner, the definition given from it originates from clinical social insurance view which shouldn’t be likened with the convention since it conveys clinical as well as different viewpoints. As under the convention prohibition on the development or on stockpiling is not absolute, the convention allows countries to do some sort of research in this respective field in light of Article 10 and 1. Such research for obvious reasons cannot be permitted from the clinical viewpoint most of the time, however, would be a valid practice under the Convention. Thus, it would bring about opposite perspectives which consequently raise ambiguities.
Also, in the absence of a specific definition countries can escape from their liability easily. For example, Switzerland in view of the inadequacy of this definition has reserved its right to decide for itself about what item will come under the category of weapons, equipment, or means of delivery. This certainly makes an adverse effect on the proper functioning of the convention.
Furthermore, Article 1 of the convention allows development, production, stockpiling, acquisition or retention of the biological agent if the same is done for the prophylactic, protective, or for any other peaceful purposes. ‘Prophylactic’ encompasses all medical activities such as diagnosis, therapy, and immunization, while ‘protective’ includes activities done in pursuance of making the protective masks, air and water filtration systems, and decontamination equipment but this doesn’t mean possession of biological agents and toxins for defense.[x] However, the provision leaves the term ‘for any other purposes’ undefined. This in turn leaves them enough space assuming scientific experimentation as a valid practice under the convention. Which needless to say is against the object of the convention.
In addition to this, there is also some worldly discrepancies under Article 1. Article 1 in its paragraph (1) allows for the production of biological agents for above-expressed reasons. It means the intention of the state would be a significant aspect. So if a state is developing such agents for pharmaceutical works or for any other defense purposes (i.e. for protection against biological attacks) then it would be a valid practice. However, paragraph (2) uses the word ‘design’ for prohibiting the production or stockpiling of means of delivery. Now, it means even if an instrument has been developed for any benign cause but has the capabilities to carry biological agents then it would not be allowed. Thus, Article 1 makes the mere retention of such systems illegal so even curatorial retention ( such as a museum) would not be allowed under the convention. Such blatant and absolute prohibition at this aspect once again highlighting the fact that there is an immediate need to re-consider the convention not only for protecting the world from any future bioterror attack but also for ensuring convenience for all the state members while implementing the convention. This in turn wills certainly the sheer functioning of the convention.
[i] Wheelis, M., Biological warfare at the 1346 siege of Caffa. Emerg. Infect. Dis., 2002, 8, 971–975.
[ii] Norris, J., East or west? The geographic origin of the black death. Bull. Hist. Med., 1977, 51, 1–24.
[iii] Christopher, G. W., Cieslak, T. J., Pavlin, J. A. and Eitzen, E. M., Biological warfare: historical perspective. JAMA, 1977, 278, 412– 417.
[iv] Riedel, S., Biological warfare and bioterrorism: a historical review. In Proceedings Baylor University Medical Center, 2004, vol. 17, pp. 400–406.
[v] Riedel, S., Biological warfare and bioterrorism: a historical review. In Proceedings Baylor University Medical Center, 2004, vol. 17, pp. 400–406.
[vi] Harris, S. H., Factories of Death: Japanese Biological Warfare, 1932–1945 and the American Cover-Up, Routledge, New York, 1994, p. 385.
[vii] Poupard, J. A. and Miller, L. A., History of biological warfare: catapults to capsomeres. Ann. NY Acad. Sci., 1992, 666, 9–20
[viii] Zilinskas, R. A., Iraq‘s biological weapons. The past as future?. JAMA, 1977, 278, 418–424.
[ix] Sinha, B. K., Biological Warfare, Surindra Publications, New Delhi, 2010; Madad, S. S., Bioterrorism: an emerging global health threat. J. Bioterror. Biodef., 2014, 5(1), 129 (1–6).
[x] Disarmament Conference document CCD/PV. 542.
BIO-WEAPONS CONVENTION-A CRITICAL ANALYSIS AND SUGGESTIONS [PART-II]
In the second part of this bipartite blog series, the authors continue their discussion on the provisions of the Bio-weapons convention. The author on this part analyzed all the left provisions of the convention. In addition to this, they also figure out the other major lacunae of the convention such as the absence of verification mechanism. An imperative analysis has been followed by multifold suggestions from the author’s side.
BIO WEAPON CONVENTION- A CRITICAL ANALYSIS
Under Article 3 of the convention, transfer of agents, weapons equipment, or means of delivery as specified in article 1 to any country whether directly or indirectly by any other countries is prohibited. However, in light of these undefined terms(see the first part), the provisions mentioned under article 10 which allows parties to engage in the fullest possible exchange of equipment, materials and scientific and technological information for the use of bacteriological (biological) agents and toxins for peaceful purposes appears onerous to be functioned. This can also be illustrated by the formation of an informal forum, Australia group. The group was primarily formed to reduce the risk of misuse by applying certain restrictions on transfers of items relevant to the convention. This group formation ostensibly points out this major drawback of the convention. [i]
While such unclear terms in the convention raise the difficulty in the proper functioning of the conventions even after the proper explanation of these terms, the possibility of restricting the biological research activities would be very low since it is very difficult to draw the line between developing agents for civilian purposes or military purposes. Therefore, a suited verification is also needed in addition to a proper explanation of all these terms. However, under the convention, no proper mechanism is set forth for verifying the activities of the country or their claim of obliging the convention. This is even problematic with the fact that under the convention parties are under no obligation to declare details about the use of biological agents or toxins in any non-prohibited work. They are also not under the obligation to declare details about the laboratories engaging in research of any such agents. Consequently, at this time of uncertainty, the Wuhan Institute of Virology is under the radar as President Trump and other US figures have repeatedly suggested that the Coronavirus could have leaked from there or even deliberately produced.
Also, If the convention had a proper functional mechanism of verification we would have not kept guessing ourselves about the origin of the virus that whether it naturally occurs or lab originated virus. This, in turn, could help to avoid the international friction that the world today is suffering even at this time of uncertainty about the question of the nature of the virus.
Because of this meagerness(verification mechanism), instances of the conventions violations are also very frequent. For example, the Soviet Union despite being a founder member of the convention in 1972. Reportedly started its biological activities under the institution called ‘Biopreparat’ in 1973. It continued this practice even during the cold war. Initially, the nation adamantly denied engaging in such activities but shortly after the dissolution of the Soviet Union, Russian President Boris Yeltsin himself acknowledged such practices in a live televised speech. Iran, which ratified the convention in 1991 was also continuously involved in developing biological agents as stated by the UNSCOM during 1991-98 and by the UK and US in 2002. Further, in September 2001 the New York Times revealed the existence of three classified U.S Projects which could be putative breaches of the convention. Even, a small nation like South Africa has been evidenced to involve in such activities. These examples are manifestly illustrating the hazardous effect of this major lacuna of the convention. This is then when under Article 2 of the convention it was expressly stated that countries have to destroy all the existing biological agents or weapons within the nine months of signing the convention
Additionally, the absence of this verification mechanism is also affecting the smooth functioning of the convention. Since in several review conferences countries have been found alleging each other of violating the conventions. Few high profile examples are accusations of the Soviet Union by Australia, the United States, and the United Kingdom during the third review conference or accusation of Iraq, Iran, North Korea, and Libya by the United States during the fifth review conference about developing the biological agents. Also, other conventions such as NPT and the CWC which are parallel to BWC have an effective verification mechanism.
Furthermore, it is also worth noting that the convention does not expressly prohibit the use of biological weapons (under the article it only prohibits the development, stockpiling, and acquisition). However, under article 8 of the convention, it imposes an obligation to follow the provisions of the 1925 Geneva Protocol under which the use of such weapons is expressly banned. So, it is not directly but rather than indirectly prohibition has been imposed. However, the pertinent thing is that not all the parties of the convention were the parties of the Geneva protocol. Further, the article also highlights that “Nothing in this Convention shall be interpreted as in any way limiting or detracting from the obligations assumed by any State under the Geneva Protocol”. It means if any party had reservations about any aspects of the protocol that would be continued even under this convention. This explicitly stands in against the object of the convention which is to remove the possibility of biological agents’ usage in any circumstances because many countries under the protocol had the reservation on the provisions in a way that allows them to employ the banned weapons against non-parties or against a party who violates the provision of the protocol. This concern was also brought up by China in 1984 itself where it demanded an explicit mention of the prohibition on the use of biological weapons. However, it still hasn’t been introduced under the convention.
Moreover, Under Article 6 of the convention, parties have the right to complain about any other states. However, the application of this provision is very complex which mostly results in the inconclusive finding of claims. Under the convention a party can lodge the complaint to the Security Council however; complainant has to provide all the possible evidence to the Security Council to support their claim. It outwardly seems impossible for any country to collect such sensitive information of any other nations that too from an authentic source. Further, in case if the Security Council finds a state member violating the convention even then it would not be able to take action against until it proofs that violation could lead to international friction. This Achilles Heel was noticed by the Security Council president himself in 1992 where he stated that the proliferation of biological weapons itself would constitute a threat to international peace and security.[ii] Since such statements convey no legally binding value this lacuna still exits. Further, as an alternative, the countries can also appeal to the International Court of Justice however, because not all countries have ratified the convention neither all countries have accepted the compulsory jurisdiction of the ICJ the possibility of the application of this mechanism is also very minimal. further, The tendency of the nations to not paying attention to ICJ’s decision can also be an obstruction. In addition to this, there also remains the possibility that if the concerned state is among the permanent members of the Security Council it can use the veto power to avoid such investigation.[iii]
There is also no proper standing body to ensure the implementation of the convention. Consequently, the instances of lack of implementations of the convention provisions have been pointed out several times. Currently, there is a provision of a review conference that happens once in a long period of five years. Though, a small Support Unit was established in 2007 for this purpose. However, in view of its limited staffing and mandate, its efficiency has been affected greatly.
The need for strengthening the convention is also necessary because as Littlewood pointed today even an individual can develop biological agents but they cannot be able to develop it on a large scale as that is possible only if state sponsors the resources. So, if the convention develops a proper verification mechanism it unarguably eliminates the possibility of any big scale bioterror attack as well.
To be précised there are several major flaws under the convention which needless to say should be figured out as soon as possible since the world isn’t in the position to endure any other disaster events like Covid-19.
There have been reports circulating currently claiming that terrorist organizations inspired by the Covid-19 will undoubtedly use bioweapons to create civil turmoil and instability among the people. The recent statement of ISIL, where it called the Covid-19 one of Allah’s soldiers because of its disastrous effect across the globe, is evincing the same. Therefore, there is a critical need to consider this viewpoint alongside adapting up to the pandemic. Considering this Security Council recommended the suggestion of strengthening the Bio-weapon convention. Given this, the earlier part of the discussions suggested a few major loopholes of the convention which need to be noticed immediately by the state members to take some pertinent steps in furtherance of this. The authors, based on the above discussion, have given some suggestions which are as follows-
Considering the non-implementation of the convention, the jurisdiction of the convention can be placed under Hague-based, ‘Organization for the Prohibition of Chemical Weapons’ (OPCW) to effectively oversee the implementation of the convention. Other parallel conventions to it like the Australia group, the UNSCOM, UNMOVIC even the 1925 Geneva protocol (to which it replaced) have also acknowledged this jurisdiction. This will effectively reduce the instances of the convention’s violation.
Furthermore, in 2002, the countries jointly initiated the idea of equipping the convention with a proper verification mechanism. However, the US opposed the initiative stringently this consequently results in withdrawn of this idea. However, as the above discussion suggests there is an urgent need to re-consider this idea from all the countries. Though few argue that the implementation of verification is not feasible, however, the successful verification of Iraq by the UNSCOM and UNMOVIC apparently shows that bio-verification is at least feasible. Therefore, a new initiative should be proposed by the member states as soon as possible.
While speaking about the convention in the conference Mr. Guterres also emphasized the need for effective countermeasures. He evinced towards the idea of developing the provisions to counter the effect of a bioterror attack if any occurs. However, currently under the convention, there is no such provisions are enshrined. Though the object of the convention is to restrict the occurrence of any such attacks. Measures for countering the aftermath results of such occurrence should not be ignored as it will help the countries to respond more collectively. Further, it will also help the nations to respond more appropriately against natural calamity like Covid-19. As it has been found that most of the countries’ responses against this pandemic were based on ‘trial and error’ methodology. Such measures evolvement could be in the form of ensuring a proper health infrastructure from and developing bio-safety advanced laboratories. Further, the UN security General also appealed to all the 14 nations which haven’t join the convention yet, to join the convention without any delay and put a halt to their clandestine projects if any.
In addition to these steps like holding the review conference in every two years instead of five years should also be considered since it will keep the bio-terrorism a centred topic for every nation. Moreover, parties should be asked to waive their right to use veto power in the matter of complaining to the Security Council about the violation of the convention. As it would result in fair proceedings under the convention as well as will restrict the countries from escaping their liability.
The enormity world today is facing has caused some unforgettable memories to everyone whether in the form of losing any beloved one, losing their jobs, or watching sinking of their own business. The harms are irreparable which can’t be compensated. However, securing a prosperous future for these people with the averment of no possible such events (caused intentionally by the terrorists or any state) in the future can be a small compensation from us and this paper is a small contribution of the authors in the direction of this benign cause.
[i] The Australia Group was founded in 1985, in the aftermath of chemical weapons’ use in the Iran-Iraq war, to constrain the trade in the technologies and materials of chemical warfare. In 1990, its purview was expanded to include biological weapons.
[ii] United Nations Security Council document S/23500, 31 January 1992.
[iii] This happened in the Republic of Nicaragua vs The United States of America where the court decided in favor of Nicaragua and awarded reparations to Nicaragua. The US refused to participate in the proceedings and also blocked enforcement of the judgment by the United Nations Security Council.