Deweaponising the Biological Weapons Convention: Can an arms control instrument enhance the global disease surveillance?

On January 30, 2020, the World Health Organization (“WHO”) declared the outbreak of the coronavirus disease COVID-19 (“Coronavirus”) a Public Health Emergency of International Concern (“PHEIC”). The legal significance a PHEIC under the International Health Regulations (“IHR”) has already been addressed on EJIL:Talk!. Though the most comprehensive, the IHR are not the only international instrument for biohazards.

This post addresses the relevance of the Biological Weapons Convention (“BWC”) to epidemic outbreaks. It is argued that, though constrained by the lack of a robust verification, the BWC complements the IHR as legal framework for global disease surveillance.

The relevance of the BWC

The rapid spread of the Coronavirus reminds us of the trend of securitising public health already marked in the well-known UNSC Resolutions on HIV/AIDS of 2000 and on the Ebola outbreak of 2011. The reasons why the BWC—an arms control treaty—might be relevant for dealing with epidemics are obvious. First, disease outbreaks may be caused by accidental releases of biological agents from military facilities as well as from natural repositories. Second, whatever the origin, it is the same public health arena where responses would normally be sought. Third, the prevention of both biological attacks and natural outbreaks largely depends upon information provided.

Given the sadly limited response capabilities of the WHO, one has to consider options at hand to contribute to the global disease surveillance. The BWC is one. This disarmament treaty—the first one ever to outlaw a whole class of weapons—may essentially be applicable to natural disease outbreaks that may be as devastating in terms of public security as deliberate biological attacks.

The obligation to report

The “duty of truth” may be derived from two places in the BWC regime: Article X of the Convention itself and the so called Confidence Building Measures (“CBMs”).

Article X

Article X of the BWC secures development in biotechnology by inter alia mandating co-operation in the peaceful use of biological agents, including the international exchange of equipment, materials and information. States are encouraged to develop and apply scientific discoveries to preventing infectious diseases.

The Article has often been referred to in the context of global disease surveillance. In 2016, just after the Ebola outbreak, the participants of the Eighth BWC Review Conference re-affirmed “the importance of rapid detection and prompt, effective, and coordinated response in addressing outbreaks of infectious diseases”, acknowledging the relevance of the same considerations not only for natural outbreaks but also for alleged uses of biological weapons. In 2019, when assessing efforts on implementing Article X, states noted the paucity of national implementation reports and the lack of clarity and structure in those submitted.

Article X does not explicitly require global co-operation and information sharing. One would have to resort to teleological interpretation. Additionally, heed must be paid to final statements of the BWC Review Conferences and related international meetings. Of course, such documents are not binding and can at best constitute “subsequent agreement between the parties” according to Article 31(3)(a) of the VCLT. If so taken, they may demonstrate that State Parties indeed consider general infectious disease surveillance and reporting as an integral part of the BWC.

The CBMs

The CBMs were introduced in 1986 to enhance compliance with the BWC, to “prevent or reduce the occurrence of ambiguities, doubts and suspicions” and “to improve international co-operation in the field of peaceful biological activities”. Though the BWC does not mention the CBMs, the consensus decision of the Second Review Conference imposed the measures on all State Parties.

The CBMs currently consist of six forms (A to G) for reporting on certain BWC-related issues. Form B (“Exchange of information on outbreaks of infectious diseases and similar occurrences caused by toxins”) is specifically designated to monitor progress in disease surveillance and detect incompliances. The reporting under Form B only extends to outbreaks which “seem to deviate from the normal pattern”. States are not bound to share information on all epidemics: only those raising suspicions as to their origin and nature. There is no security in what the normal pattern is in each case. Still, there is the list of indicators for taking into account in such assessments (e.g. an impossibility to determine a causative agent, unusual development, occurrence in the vicinity of research centres, laboratories, etc.). States are to report unusual disease occurrences promptly after the identification with the following annual report. Besides, Parties are encouraged to invite each other’s experts for assistance.

Although Form B is more robust than Article X, states have consistently demonstrated poor performance . As of the end of 2019, 76 states have submitted CBM reports for 2018, which hardly amounts to 42% of the State Parties to the BWC. Besides, 57 States have never submitted a CBM.

The verification problem

Though a promising tool for the global disease surveillance and prevention, the BWC has a major drawback—the lack of an adequate verification for two main reasons.

Firstly, the compliance with the BWC is difficult to assess as compared with other disarmament treaties due to the specific nature of biological agents: in contrast to e.g. nuclear weapons, they are not normally manufactured specifically for hostile uses. Besides, peaceful and weapons-related biological research is hardly distinguishable, as almost all equipment and technologies are dual-use. A state’s pharmaceutical and medical advances not only indicate its capacity to develop biological weapons; it as well increases the risk of accidents. Therefore, the compliance with the BWC is said to be measured in terms of intent rather than strictly in terms of possessing biological agents. Secondly, there is institutional weakness. The Nuclear Non-Proliferation Treaty and the Chemical Weapons Convention both have strong and well-staffed agencies to supervise compliance. The BWC only has the Implementation Support Unit with four employees and no real investigatory or enforcement powers.

The lack of reliable verification significantly undermines the efficiency of the BWC in preventing the spread of infectious diseases. Inability to verify the absence of biological warfare programs means equal inability to make sure that no information on a natural disease outbreak has been concealed. The BWC provisions on consultations (Article V) and lodging non-compliance complaints with the UNSC (Article VI) are of little help and the latter has never been invoked for political reasons.

Failed protocol

There was an attempt to set a verification system though. Elaborated by the ad hoc group of governmental experts, the draft binding protocol for confidence building (“Protocol”) was distributed among the State Parties in 2001. It was not adopted as the US resolved to break up the negotiations, arguing that a binding instrument would not really contribute to verifying compliance and considerably hamper the pharmaceutical and biotechnological industries by encroaching on proprietary information.

The Protocol intended to bind states to declare their activities, facilities and other things pertinent to weaponisable biological agents. The Organisation for the Prohibition of Bacteriological (Biological) and Toxin Weapons was envisaged to verify declarations through random transparency visits as well as other investigatory and enforcement actions.

In addition, the Protocol provided for investigating disease outbreaks, in particular those allegedly related to prohibited activities. Naturally caused outbreaks were outside the Protocol’s scope. Any State Party would have the right to request an investigation if an outbreak raised concerns on compliance with the BWC. The request would require reliable evidence, more than mass media reports. The same mechanism was for requesting investigations of alleged uses of biological weapons in the territory of either the requesting or any other state. An investigation in the territory of a non-party would only be possible with the latter’s consent. The Protocol even provided for measures to protect national security interests and proprietary information of states under investigations.

Besides, the Protocol entitled State Parties to the support and aid from international organisations or other states in investigating, at their own discretion, any disease outbreak within their own territories.

Conclusions and prospects

As of now, the idea of binding verification is not believed feasible. The US explicitly rejected it in 2009, while the EU and Russia took a neutral stance neither rejecting nor accepting. Still, non-aligned states, in particular Iran, keep on pressing for the renewal of the negotiations. It is reasonable to argue that any future attempt to revive the verification protocol must take into account all the scientific and technological developments for the 20 years.

Non-binding alternatives (the “quasi-verification measures”) are much more likely to be preferred. They are mostly related to the existing CBMs and envisage unilateral reporting and UN-assisted investigations.

Yet any progress in strengthening the BWC would be a welcoming development as of now. Unfortunately, the 2018-2019 meetings of the State Parties failed on substantial matters. The BWC was said to be “in a precarious state” financially and politically. The decay of the BWC regime is particularly alarming in the light of the global epidemiological situation. The Coronavirus is yet another reminder of the WHO’s incapacity to handle global pandemics alone.