BioWeapons Prevention Project

This note addresses the importance of national implementations for the effectiveness of the BWC. It is important to note that Article IV of the convention states that the national implementation is obligatory for states parties.

It is an accepted fact that upholding the normative rule of the BWC requires adaptation to the shifting nature of the biological weapons threat. Issues like bio-safety, bio-security, bioterrorism, and the rapidly changing nature of technology brings out the need to emphasize the importance of national implementations. In the absence of any efficient monitoring mechanism to check the implementation of the treaty the impact of BWC regime continues to remain limited. No provisions exist to inspect the bio-defence facilities and industrial units in respect of various signatory nation-states to the treaty regime. Also, the concept of challenge inspections does not exist and neither the authority to punish exits. Because of such inherently serious limitations, all the review conferences in the past have mainly attempted to work around the existing limited mandate provided by the treaty to find the solutions acceptable to all. On the other hand historically it has been observed that states mostly behave in a reactive fashion and since no major act of usage of biological weapons neither by state nor by non-state actors has taken place on occasions there appears to be lack of seriousness to campaign for thorough measures both at international and domestic level.

Since 2006 the field of biotechnology has witnessed significant developments. Synthetic biology is making major progress too. The dual-use nature of biological agents, equipment and technology has made the use of biotechnology for heinous purposes easier. On the other hand, at the global level, there has been no significant bioterrorism event. During the last five years no attack using any biological weapons has taken place. This non-occurrence of attacks should not be viewed as an absence of threat. The recent killing of Al Qaeda Chief Osama bin Laden could make terrorism organizations realize that they may be fighting the losing battle. This could lead them to desperation and they could opt for biological weapons as an option in future.

At the back drop of above realities it is important to carry out a reality check in regard to the national implementation measures adopted by states parties. It is crucial to audit the efforts made during the last few years.

Based on the declarations made by various countries and the information available on the BWC website of the UN, the University of Bradford website on biological weapons and information made available through other sources like VERTIC etc. it could be concluded that various signatory states to the BWC have enacted and enforced various laws and regulations at the national level to ensure effective implementation of the treaty. Laws have been enacted in regards to manufacturing, trade, transportation, storage or release of toxic substances or infectious pathogens. Such legal mechanisms also cater for the penalties in case of breach of any law. However, it is felt that more could be done in this field.

The level of growth of biotechnology in a particular state, the extent of investments made into this field of technology by the state, the nature of exports and imports of living organisms undertaken and the complex and dynamic nature of terrorism in regards to every state does not permit the formulation of any universal model national implementation structure. The issues like bio-safety, bio-security and professional ethics need to be addressed at national level with far greater seriousness. Certain practical difficulties to ensure compliance could arise. It is important to devise confidence building measures and link them to national implementation structures.

The 2006 review conference established the Implementation Support Unit (ISU) which is operating at the UN Office at Geneva. There is a need to continue with this effort and also it is important to increase its mandate further. It may be tasked to compare and contrast national implementation procedures adopted by various states so far and device best practices which could be discussed and debated at the review conference in December 2011.

It is important to realize that almost for a decade the issues related to national implementation of the BWC and voluntary measures to prevent bioterrorism are being discussed. There is a need to take this effort further. Issues like the establishment of systems at national level for monitoring and controling epidemics need to be brought into focus and measures may be deceived to introduce them in national implementation architecture. Also, issues like public health management could be incorporated because indirectly all this is related to the subject under discussion - the BWC.

All these years, the efforts at various review conferences and other meetings have mostly been to reach consensus at the cost of dropping contentious topics such as verification from the agenda. The real challenge is to bring change to this situation.


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The Biological Weapons Convention (BWC) is a legally binding treaty that outlaws biological arms. It was opened for signature in April 1972, and now has 164 States Parties and 13 Signatory States.

However, signing the BWC is no guarantee that States Parties will serve the object of the convention. Signature is a political commitment which ought to be accompanied by full and effective implementation of the treaty’s provisions. Implementation backed up with verification would therefore appear to be a good indicator to gauge the strength of the BWC. For various reasons, full and effective implementation of the treaty’s provisions has turned out to be a daunting task for the States Parties to the BWC. This could perhaps partly explain the past reported flagrant violations of the treaty by States Parties with established implementation mechanisms.

By its very nature, implementation of and compliance with the BWC are based on negotiations and either bilateral or multilateral cooperation among the States Parties. The BWC does not seem to have a reliable verification mechanism. Nevertheless, together with the Confidence Building Measures (CBMs), implementation would enhance the effectiveness of the BWC.

The CBMs are aimed at preventing or reducing ambiguities, doubts and suspicion and to improve international cooperation in the field of peaceful biological activities. The CBMs oblige States Parties to annually submit information on research centres and laboratories specializing in biological activities; national biodefence research and development programmes; outbreaks of infectious diseases; the results of biological research related to the BWC; and knowledge gained from such research. This imposes an additional burden on States Parties thereby affecting implementation.

The CBMs are supposed to be some sort of verification but are only politically binding. Their effectiveness therefore requires a smooth interface between science and politics. Furthermore, their submission has been very erratic by most States Parties. There are even States Parties who have never submitted a single CBM. Consequently, national implementation of the BWC currently seems to be the most effective way of ensuring that States Parties have some internal verification mechanism which could strengthen the BWC.

One responsibility arising from the obligation of the UN Security Council Resolution 1540 is the need for States to fully implement the instruments of the resolution through their national laws and regulations. With a national legislative framework in place for implementation of the BWC, and the biological weapons related provisions of the Resolution 1540, States can investigate, prosecute and punish offences associated with biological weapons activities committed by non-state actors, including terrorists. It also allows States to monitor and supervise peaceful activities such as domestic research and disease prevention, as well as transfers involving dangerous pathogens and toxins. This in effect would enhance States Parties’ abilities in disease surveillance.

By addressing biosecurity, national implementation is also the other way that each State Party would ensure protection against deliberate release of pathogens. National implementation could therefore be viewed as part of the wider “web of prevention” that all States Parties should participate in so as to make it difficult for non-state actors, including bioterrorists to operate.

National implementation also has side-benefit to States Parties since it makes them evaluate their disease surveillance systems and thus find ways of filling the gaps where necessary. It also addresses other fundamental issues such as dual use research, trade, and globalization. All the above underscores the role of national implementation in strengthening the BWC.


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As my colleagues have suggested national implementation is an important part of a strong and relevant Biological Weapons Convention. The part of the national implementation process that has received the most attention is the requirement to conform national laws with the obligations under international law. For the BWC this can be found in Article IV where a State Party is obliged, in accordance with its constitutional processes, to take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition or retention of biological weapons in its territory and anywhere under its jurisdiction or control; and Article III which requires all States Parties to refrain from transferring biological weapons to anyone and from assisting, encouraging or inducing anyone to manufacture or acquire them. My colleagues also note the need for existing national laws to be reviewed and audited thereby suggesting that the national implementation is an ongoing process.

I strongly agree with this idea that national implementation is a process rather than an event. It is interesting to recall the paper submitted by Germany on behalf of the European Union on Assessment of national implementation of the Biological and Toxins Weapons Convention (BWC/CONf.VI/WP.3) where they say

As such it is not sufficient to enact laws; enforcement of these laws is also necessary. This requires, for example, raising awareness amongst those who are charged with enforcing laws, the police and customs officials for example.

Arguably implementation of the BWC will not be complete until the prohibitions of the BWC which are entered into national law are understood and realised by science practioners in their everyday working lives. Here I am talking about a normative understanding rather than a legalistic understanding of their positive (i.e. things they must now do) and negative (i.e. things they are no longer permitted to do) obligations relating to the BWC. This requires ongoing and sustained engagement, including through awareness raising and education. Effort has been made in the last two intersessional processes to examine ways and means to effectively engage with scientific practioners.

This is the familiar reasoning for why engagement with science practioners is necessary. Whilst absolutely valid, it does imply that engaging with scientists is a second order event. It ought not to be considered such because engagement can also assist government officials in crafting appropriate laws and in the periodic review of these laws. My colleague Filippa Lentzos of the London School of Economics for example has noted that different kinds of regulatory influences operate in laboratories and that these vary in strength according to the size, type and location of laboratories (Lentzos, 2008). In addition to the influences on laboratory practice resulting from state intervention through law, other influences such as supervisory structures, informal oversight systems and “a matrix of professional norms, research practices, experience, and common sense which often correlate[s] tightly with the routines, procedures and precautionary measures prescribed by the regulations” (ibid, p61) affect laboratory practice. I believe that realising the implementation of the BWC at the national level requires awareness of the existing regulatory space in relevant public and private laboratories and thus engaging with scientific practioners, including industry representatives, is required early on.

Why will this help implementation of the BWC? BWC-related implementation laws need to fit into the existing regulatory space in which science is practiced, so engaging with scientists to understand the totality of the (formal and informal) regulatory spaces will create better laws. Understanding what influences the behaviour of users and producers of scientific knowledge and technology will also aid the production of better guidance documents that communicate appropriately the normative obligations of the BWC to the scientific community. If done well, these guidance documents should mean that the legal obligations can be translated into the softer/informal oversight systems which affect laboratory practice. This early normative buy-in will assist generating a pool of scientific advice expertise that can assist in periodic reviewing and auditing of laws.

References

1. Lentzos, F. “Countering misuse of life sciences through regulatory multiplicity”, Science and Public Policy, 35(1), February 2008, pages 55–64

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This note addresses the importance of national implementations for the effectiveness of the BWC. It is important to note that Article IV of the convention states that the national implementation is obligatory for states parties.

It is an accepted fact that upholding the normative rule of the BWC requires adaptation to the shifting nature of the biological weapons threat. Issues like bio-safety, bio-security, bioterrorism, and the rapidly changing nature of technology brings out the need to emphasize the importance of national implementations. In the absence of any efficient monitoring mechanism to check the implementation of the treaty the impact of BWC regime continues to remain limited. No provisions exist to inspect the bio-defence facilities and industrial units in respect of various signatory nation-states to the treaty regime. Also, the concept of challenge inspections does not exist and neither the authority to punish exits. Because of such inherently serious limitations, all the review conferences in the past have mainly attempted to work around the existing limited mandate provided by the treaty to find the solutions acceptable to all. On the other hand historically it has been observed that states mostly behave in a reactive fashion and since no major act of usage of biological weapons neither by state nor by non-state actors has taken place on occasions there appears to be lack of seriousness to campaign for thorough measures both at international and domestic level.

Since 2006 the field of biotechnology has witnessed significant developments. Synthetic biology is making major progress too. The dual-use nature of biological agents, equipment and technology has made the use of biotechnology for heinous purposes easier. On the other hand, at the global level, there has been no significant bioterrorism event. During the last five years no attack using any biological weapons has taken place. This non-occurrence of attacks should not be viewed as an absence of threat. The recent killing of Al Qaeda Chief Osama bin Laden could make terrorism organizations realize that they may be fighting the losing battle. This could lead them to desperation and they could opt for biological weapons as an option in future.

At the back drop of above realities it is important to carry out a reality check in regard to the national implementation measures adopted by states parties. It is crucial to audit the efforts made during the last few years.

Based on the declarations made by various countries and the information available on the BWC website of the UN, the University of Bradford website on biological weapons and information made available through other sources like VERTIC etc. it could be concluded that various signatory states to the BWC have enacted and enforced various laws and regulations at the national level to ensure effective implementation of the treaty. Laws have been enacted in regards to manufacturing, trade, transportation, storage or release of toxic substances or infectious pathogens. Such legal mechanisms also cater for the penalties in case of breach of any law. However, it is felt that more could be done in this field.

The level of growth of biotechnology in a particular state, the extent of investments made into this field of technology by the state, the nature of exports and imports of living organisms undertaken and the complex and dynamic nature of terrorism in regards to every state does not permit the formulation of any universal model national implementation structure. The issues like bio-safety, bio-security and professional ethics need to be addressed at national level with far greater seriousness. Certain practical difficulties to ensure compliance could arise. It is important to devise confidence building measures and link them to national implementation structures.

The 2006 review conference established the Implementation Support Unit (ISU) which is operating at the UN Office at Geneva. There is a need to continue with this effort and also it is important to increase its mandate further. It may be tasked to compare and contrast national implementation procedures adopted by various states so far and device best practices which could be discussed and debated at the review conference in December 2011.

It is important to realize that almost for a decade the issues related to national implementation of the BWC and voluntary measures to prevent bioterrorism are being discussed. There is a need to take this effort further. Issues like the establishment of systems at national level for monitoring and controling epidemics need to be brought into focus and measures may be deceived to introduce them in national implementation architecture. Also, issues like public health management could be incorporated because indirectly all this is related to the subject under discussion - the BWC.

All these years, the efforts at various review conferences and other meetings have mostly been to reach consensus at the cost of dropping contentious topics such as verification from the agenda. The real challenge is to bring change to this situation.


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Implementation challenges

One of the main challenges to effectively regulating biological materials is the absence of an intergovernmental organisation to oversee and support comprehensive coordinated implementation of the BWC. This absence stands in contrast to the presence of well-established intergovernmental organisations supporting implementation of agreements on chemical and nuclear non-proliferation and disarmament. An important component of this support is legislative assistance. The legal offices of the Organisation for the Prohibition of Chemical Weapons and the International Atomic Energy Agency, for example, have prepared guidance materials and carried out legal drafting workshops and follow-up activities for governments around the world, with the power of stable budgets and dedicated staff behind them.

An Organisation for the Prohibition of Biological Weapons (OPBW) was not meant to be, however, for the BWC. A few months before the 2001 Fifth Review Conference for the Convention, the United States indicated that it would no longer continue to support negotiations, which had been underway for several years, for the development of a protocol to the BWC. This protocol would have had several objectives, including the establishment of an OPBW. Instead, a resumed Fifth Review Conference in 2002 agreed to the launch of a new initiative—known as the ‘intersessional’ process—devoted to examining, among other topics, national implementation of the Convention. This process was extended after the Sixth Review Conference in 2006 through 2010. As well as saving the BWC regime from uncertainty and irrelevance, the annual sets of Meetings of Experts and States Parties since 2003 have engaged civil society in novel and exciting ways. They have also provided an opportunity for civil society actors to engage with states more directly on activities that have normally been associated with intergovernmental organisations.

Implementation of the Convention has not only been complicated by an institutional deficit, however; it also faces:

• a lack of universal BWC membership;
• a perception among parties and non-parties alike that they do not have to implement effective controls on biological materials if they do not possess biological weapons;
• a lack of awareness in governments of the BWC and Security Council Resolution 1540 and their requirements and obligations, as well as a lack of political will to implement these instruments;
• limited or no technical, human or financial capacity for drafting implementing laws and regulations, training relevant officials, or enforcement;
• difficulty maintaining momentum in the implementation process due to turnover in staff, elections and changes in government, or internal or external conflicts; and
• competing legislative, parliamentary, budgetary or economic priorities.

What to implement?

In order to give effect to the BWC, states should adopt penal measures criminalizing the development, production, manufacture, stockpiling, acquisition, retention, transfer and use of biological weapons. Preparatory measures to carry out such activities, including assistance, encouragement, or inducement, should also be penalized. States should also adopt appropriate biosafety and biosecurity measures. These should include procedures to account for and secure the production, use, storage and transport of particularly dangerous pathogens, as well as measures to control activities involving human, plant or animal pathogens where infection may pose a risk. Licensing procedures will be needed too, as will safety and security measures for laboratories; containment measures; and genetic engineering regulations. Import and export controls should also be adopted, including export licenses for particularly dangerous toxins and pathogens, and measures should be in place ensuring general oversight on transfers. An official body should be designated to effectively enforce these measures. Enforcement measures will be needed to facilitate ongoing monitoring of life sciences activities and compliance with the Convention, and to prosecute and punish offenders. Finally, other measures may be necessary to facilitate domestic and international cooperation and assistance.

Why implement?

These measures are important for several reasons. First, with effective legislation, states can investigate, prosecute and punish any offences, including preparations, associated with biological weapons activities committed by non-state actors, including terrorists. Second, it will strengthen their ability to monitor and supervise any activities, including transfers, involving especially dangerous pathogens and toxins. Third, states will enhance their national security and public health and safety. Fourth, they will send a strong signal to potential investors that they are a safe and responsible location for biotechnology and research. Fifth, their obligations under Articles III and IV of the BWC and UNSCR 1540 will be satisfied. And, finally, states will be able to comply effectively with international reporting requirements (BWC Confidence Building Measures, UNSCR 1540, etc.) if they have fully adopted effective legislation to implement the BWC.

Regional outlook

Implementation of the BWC and regulation of biological materials varies in and among regions. In South and Central Asia, some states have little or no legislation to control even the most basic activities involving biological agents and toxins, while other states in the region have more robust biosecurity regulatory frameworks. These differences appear to be the result of two predominant factors: the negative impact of conflicts on a state’s ability to develop and maintain a fully functioning and comprehensive legal system, alongside a legacy of Soviet ‘anti-plague’ stations and biological weapons programmes which necessitated legal measures to protect personnel and the environment.

In the Middle East and North Africa region, there is some movement towards a more robust biosecurity regulatory environment, but the progress is slow and uneven. In East Asia and the Pacific, some larger countries are developing more robust biosecurity regulatory frameworks. However, the smaller, lightly populated Pacific Islands nations perceive the vulnerability resulting from having weak biosecurity frameworks and the risk of proliferation in biological weaponry to be negligible or at least, less urgent than other, competing priorities.

In sub-Saharan Africa, there is progress in some countries in the region and South Africa in particular has excellent legislation. However, most have little or no law in place to prevent the proliferation of biological weapons including laboratory biosecurity measures and export/import controls. A small number of sub-Saharan countries do, however, criminalize terrorist offences involving biological agents. In general, it seems that many African countries are understandably more concerned about the impact of genetically modified organisms (GMOs) on their agricultural sectors, and so have given less priority to laboratory biosecurity and other measures to control pathogenic agents.

As might be expected, given the European Union’s strong role in biological weapon non-proliferation efforts, there is significant movement toward a more robust biosecurity regulatory environment throughout most of Europe and Eurasia. Nevertheless, many countries in both regions appear to require additional laboratory biosecurity measures, including some of the most advanced European economies.

Across the Atlantic, progress is somewhat uneven. Countries that have progressed the furthest in the Americas include Argentina, Brazil, Canada, Cuba and the United States. Although other countries in the region have not advanced as far, they nevertheless have some controls over activities involving microorganisms and related biological products. These regulations, which include measures on laboratory biosafety and transfer controls, provide a platform on which stronger legislative frameworks could be built.

Some of the Caribbean states, in particular, have adopted short and simple, but effective, laws to implement the BWC. This may suggest that they have a higher degree of awareness of the need to counter the threat of biological weapons proliferation through effective legislation. On the other hand, there are still several states across the Americas that do not have adequate legislation since they lack provisions criminalizing biological weapons and basic controls over microorganisms.

Building a global network for the BWC

This statement began by noting the difficulties arising from the lack of an international organisation for the BWC and other, regional, challenges. These issues are being responded to in a number of ways. For its part, VERTIC set up its National Implementation Measures or NIM Programme to assist states in understanding what measures are required to comply with their international obligations, and how to implement them. This includes legislative analysis and legal drafting assistance. Intergovernmental organisations such as the World Health Organisation, the World Organisation for Animal Health, the UN Food and Agriculture Organisation, the World Customs Organisation and Interpol engage in their respective fields. The BWC Implementation Support Unit (BWC ISU) provides a coordinating role. And members of the BioWeapons Prevention Project (BWPP) network provide outreach and research activities.

There are numerous other projects being undertaken by civil society actors in this field. These provide education for scientists on the BWC; skills development for laboratories, universities and governments; industry engagement; and training on law enforcement. There are also projects on public health co-operation, disease surveillance, and development and implementation of codes of conduct.

The BWC ISU has often observed that implementation of the Convention in its fullest sense is a global network activity in which civil society actors play a major role. But there are both strengths and weaknesses to this network approach. The strengths are that civil society action can be nimble and certainly more affordable than a large secretariat for an international organisation. Due to funder requirements, civil society projects are increasingly tightly goal-oriented and time-bound. Many of those engaged in these activities have worked and been trained in government or in the treaty organisations and therefore have a deep understanding of the treaties, issues and the people involved in their implementation.

Nevertheless, there are several weaknesses in the network approach: funding cycles for civil society can be unpredictable and the loss or shrinkage of an important civil society actor can disrupt new assistance activities, delay crucial follow-up, and curtail information and outreach exchanges and activities. Additionally, some governments may simply be unwilling to work with civil society actors for historical or political reasons. Nevertheless, the nonproliferation community—and this includes intergovernmental organisations; international, regional and subregional organisations; and governments—is becoming increasingly comfortable and familiar with the elevated level of involvement of civil society actors in the implementation of the BWC. This comes with the responsibility, however, for civil society to be highly competent and effective, discrete and professional, and aware of the limits of what it can reasonably accomplish with states.

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