Recent media reports suggest that dozens of members of a cell of an al Qaeda affiliate in Algeria died when their attempt to develop a biological or chemical weapon went awry and killed those at their laboratory hideout in eastern Algeria. The story, first reported by the British tabloid, The Sun, said the al Qaeda operatives died after being infected with a strain of bubonic plague. [1]  Both the Algerian government and the World Health Organization (WHO) separately rejected the reports, saying that no case of plague of any type had been reported in Algeria since 2003.  Al Qaeda itself rejected the story in a statement to an extremist website. [2] According to the Global Security Newswire, a high-level U.S. intelligence official also rejected the plague report but did indicate that the extremists had suffered exposure to some kind of biological or chemical agent.

Algeria is a party to the 1972 Biological Weapons Convention (BWC), the treaty that bans biological weapons. Whether or not the news reports are true, they highlight the challenges that Algeria and all BWC States Parties confront in addressing the increasingly complex challenges related to the potential misuse of biology by states or non-state actors.  Such reports also raise difficult questions regarding the current status of the BWC itself.  The recent revelations remind us that the Convention still has weaknesses dealing with non-state actor threats as well as other biological weapons-related challenges.

The agenda for the expert-level meeting that occurred from August 18-22, 2008 focused on two issues: (1) developing a common understanding of how to improve biosafety and biosecurity, including in laboratories containing dangerous pathogens and toxins; and (2) preventing the misuse of advances in bioscience and biotechnology by increasing awareness of biological risks and strengthening oversight, education, and codes of conduct governing activities in the life sciences. The 500 participants helped to define terms, consider alternative approaches, and share national insights in an effort to promote a common understanding and effective steps to improve biosafety and biosecurity. [4] The Chair of the 2008 meetings, Ambassador Georgi Avramchev of the Former Yugoslav Republic of Macedonia, then consolidated these ideas and proposals into a “Synthesis Paper” as part of his final report of the August session, which he circulated to States Parties prior to their December 1-5 Annual Meeting. [5]

Delegations from 97 BWC States Parties attended the December meeting, which considered the same agenda as the experts. Many accepted the Chair’s invitation to submit “a brief outline or overview” of participant countries’ national approaches toward biosafety and biosecurity. Some of the submissions reviewed countries’ actions in these areas, while others primarily discussed their countries’ general views on the issues. Most of the texts also indicated what positions and policies the country would like to see the BWC members pursue in the future. Representatives from major international organizations (e.g., Interpol, the International Committee of the Red Cross, the World Health Organization, and the World Organization for Animal Health) also engaged on the issues.  So, too, did representatives from academic institutions, scientific associations, biological industries, think tanks, and other concerned non-governmental organizations (the European Biosafety Association, the International Network of Engineers and Scientists for Global Responsibility, and the Asia Pacific Centre for Military Law). Many of these groups also held briefings or submitted short papers and statements on biosafety and biosecurity issues.

Ambassador Avramchev adopted the motto of “refinement, structure and focus” to define his objectives for the States Parties meeting. The most important goals were: to reach a common understanding of the meaning of “biosafety” and “biosecurity” – which would serve as a point of reference for future BWC-related efforts in these areas – and to develop a list of practical steps States Parties could adopt to enhance them. [6] Avramchev stressed “the need for proportional measures, for carefully assessing risks, for balancing security concerns against the need for nurturing research and ensuring the peaceful development of biological science and technology.” [7]

The discussion surrounding the terms of “biosafety” and “biosecurity” made clear that States Parties were unlikely to agree on a uniform definition or standard for biosafety and biosecurity given the Parties’ diverse national legislation and financial, human, technical, and other resource endowments. Even so, the participants generally characterized biosafety as measures to protect humans, animals, plants, and the environment from accidental exposures to pathogens and toxins. The States Parties generally defined biosecurity as steps to prevent deliberate and unauthorized attempts to misuse potentially dangerous biological agents, technologies, facilities, or expertise as instruments of war or terror. [8]

In written statements and oral presentations, some delegations emphasized biosafety while others focused on biosecurity. For example, the South African delegate stressed the primacy of biosafety, at least in Africa’s developing countries. “It is our view that bio-safety forms the basis of bio-security,” the representative told the 2008 States Parties Meeting. “We are convinced that bio-risk is posed firstly by naturally occurring disease, secondly by the unintentional exposure of people to disease and only thirdly by obtaining pathogens illegally.” [9] The Moroccan representative dwelt more on the dangers of bioterrorism, which he referred to as “one of the three parts of the arms of massive destruction.” He added that international cooperation is needed “to stop further attempts or attacks causing the contamination of populations by using viruses, bacteria or toxins.” The Moroccan delegation also urged the international community to “tighten up the surveillance of existing known terrorist groups and prevent them from accessing biological weapons.” [10]

Participants also supported a range of possible voluntary steps States Parties could take to enhance national and international capabilities in the areas of public health, veterinary medicine, agricultural services, and other areas related to the life sciences. Many of the national government representatives at both the August and December meetings insisted that, in their application, any standards would have to be tailored to the specific circumstances of each country, eschewing a “one-size-fits-all” approach to biosafety and biosecurity. In this respect, the statement submitted by the government of Pakistan was typical:

“Pakistan considers that the development of a ‘Standard Code of Conduct’ for all life scientists as a difficult option. A broad matrix of codes developed at the local as well as institutional/organizational level appears more practical. It is, therefore, more appropriate that relevant life science entities, the concerned scientists as well as their parent organizations, may develop their own codes of conduct. … The best characterization of the codes would be formalization or codification of existing standards, best practices and a system for their refinement and improvement.” [11]

Several speakers also warned against excessively rigid guidelines that, while perhaps marginally promoting safety and security, could impose disproportionate constraints on life-enhancing research in the biological sciences. For this reason, they generally endorsed relying on voluntary codes of conduct for the scientific, industrial, and other communities engaged in biological research rather than legally mandating such codes. [12]

Perennial Issues Left Unresolved
Notwithstanding progress made by the 2008 States Parties meeting on biosafety and biosecurity, several important and unresolved issues continue to affect deliberations in the BWC context: (1) whether to endow the BWC with legally binding verification measures; (2) how to improve national compliance with the Convention in the absence of mandatory verification; (3) what steps to take to increase the rate of participation in and the utility of BWC confidence-building measures; (4) how to broaden membership in the Convention; (5) how to balance the BWC’s requirement for technological sharing with its injunction against assisting other countries from acquiring biological weapons; and (6) how to engage other stakeholders concerned about biological weapons, especially nongovernmental organizations (NGOs) and the life sciences community. States Parties have already stated their intent to place many of these issues on the agenda of the 2011 Seventh Review Conference.  Even so they will be difficult to resolve as they demonstrate profoundly different attitudes and approaches to the challenges related to the potential misuse of the life sciences.

Legally Binding Compliance Measures
Despite the fact that it was not on the agenda at the December meeting, States Parties continued to air differences over whether and how to make provisions for verification and enforcement of the BWC legally binding. Since 2001, the U.S. government has opposed efforts to establish a formal mandatory verification and enforcement regime on the grounds that any system that could gain widespread support would likely prove insufficiently demanding, provide loopholes for BW aspirants, jeopardize vital biodefense research, and impede valuable private sector biotechnology research by exposing sensitive proprietary information to foreign misappropriation. [13] While some other governments share Washington’s skepticism, most BWC States Parties continue to call for a mandatory mechanism to enhance compliance with the Convention. Some BWC members also favor establishing a formal monitoring organization that could undertake periodic on-site assessments of national biological research facilities and biotech firms in the way that the Organization for the Prohibition of Chemical Weapons (OPCW) and International Atomic Energy Agency (IAEA) conduct inspections of national chemical and nuclear facilities.

Members of the Non-Aligned Movement (NAM) remain some of the strongest advocates of a mandatory BWC verification protocol. Cuba’s statement on behalf of the NAM recalled that the July 2008 NAM Ministerial Conference called for multilateral negotiations to secure adoption of such a legally binding protocol. Similarly, the Iranian representative, Ambassador Ali Reza Moaiyeri, stressed that his government “strongly believes that this [intersessional work plan] can not be a substitute to the multinational negotiations on the Protocol for strengthening the Convention.” Specifically, Moaiyeri argued that “the only sustainable and durable way of strengthening the Convention is through multilateral negotiations aimed at concluding a non-discriminatory, legally binding instrument added to the Convention.” Without naming the United States, Ambassador Moaiyeri called on “those who have continued to oppose such a protocol to reconsider their position and abide by the wish of international community.” [14]

The Russian delegation also championed a more formal means for enforcing the BWC and sought explicitly to refute U.S. objections to adopting a mandatory compliance protocol:

“We are aware of the still circulating opinion that the BWC is inherently unverifiable, and the adoption of an ineffectual verification protocol will create a false sense of security without solving the problem of monitoring compliance…. It is understandable that verification in multilateral arms control and disarmament may not fully guarantee compliance. However, it is difficult to deny that these verifiable treaties and conventions are the cornerstones of international security and ensure predictability, stability and strengthen confidence among participating nations. We are convinced that the BWC with verification is better off than without it.” [15]

On December 8, 2008, moreover, the Russian Foreign Ministry issued a statement reaffirming the need for the Seventh BWC Review Conference in 2011 to adopt such a measure. [16]

Even governments more favorably disposed towards recent U.S. foreign policies endorsed the concept of a mandatory BWC verification protocol at the December 2008 Annual Meeting. Representatives from Pakistan, Indonesia, and Ukraine, for example, all supported such a move.  On behalf of the EU, the government of France expressed a “desire… to work with a long-term view to developing measures to verify compliance with the Convention.” [17]

The Indian government was only somewhat less restrained. “We believe that only a multilaterally agreed mechanism for verification of compliance can provide the assurance of observance of compliance obligations by the States Parties and can act as a deterrence [sic] against non compliance,” Ambassador Hamid Ali Rao told participants.  Ambassador Rao added that, “we also believe that the decision regarding strengthening of the BWC should be taken by the Review Conference based on the principle of consensus,” which means that any solution had to be acceptable to the United States. [18]

The representative from Brazil most openly shared U.S. concerns about adopting a binding verification protocol. “We must be careful not to try to extend States obligations beyond those established by the Convention itself,” Ambassador Luiz Filipe de Macedo Soares observed. “For any obligation to become mandatory it requires to be legally elaborated. In this sense, several delegations here have mentioned their interest in a verification mechanism similar to the one which exists under the Chemical Weapons Convention. Are we prepared to negotiate such an extremely detailed and complex system?” The Ambassador stressed “the fundamental role played by national measures in the implementation of the Convention. Those measures are the ones that translate the States’ obligations into practical, effective actions. …[N]ational measures are the essential path for implementation.” [19]

Though assessing implementation is difficult because some national measures are not advertised for security reasons, many BWC States Parties have made only limited progress in meeting these obligations. [20] Although the Sixth Review Conference urged all States Parties to designate a national point of contact for the BWC, for example, only 52 members had done so as of December 2007. [21] By the end of November 2008, that number had risen only to 65 – a definite improvement over the previous year, but still less than half the total number of BWC States Parties. [22]

Several government representatives attending the December meeting highlighted the need to improve national compliance with the BWC. On behalf of the EU, the French representative stressed that the purpose of the 2007-2011 intersessional process “should not simply allow us to exchange opinions; it should also enable us to take specific steps to improve compliance with the Convention by the States Parties, as we move towards the Review Conference in 2011.” M. Eric Danon elaborated that, “These conferences should create the impetus to strengthen, where necessary, national implementation measures, including penal legislation. The European Union is convinced that this can be achieved by way of interaction between lawmakers and the private sector, with a view to promoting the national ownership of measures provided by the BTWC.” [23]

In 2008, 61 national governments submitted information regarding at least one of the seven CBMs, down from 65 the previous year, which had been the highest annual total since the BWC began soliciting CBMs in 1987. [25] Yet, since the number of States Parties has increased over time, the total is less impressive. In 1991, for example, almost half the States Parties (49.6%) participated in CBMs. [26]  The 61 submissions of 2008 represented only 37 percent of the total membership.  Members of the Western Group now regularly submit CBMs (partly due to the success of a 2006 EU Action Plan designed to ensure that all EU members make annual submissions). [27] Those belonging to the Eastern Group, however, participate irregularly, sometimes discontinuing submissions for years at a time or providing less information than required. Many states affiliated with the group of Non-Aligned Movement and Other States rarely submit CBMs.

In addition to getting countries to submit the CBMs, another concern is the lack of a means to verify the accuracy of those submissions that are provided, most of which remain inaccessible to arms control experts and other nongovernmental observers. In 2008, only nine States Parties authorized the BWC Implementation Support Unit (ISU) to place their CBMs on the publicly-accessible section of the ISU website. [28]

Despite these problems, the rules of procedure of the intersessional meetings, which do not allow the making of decisions or recommendations, prevent States Parties from deciding how to reform the CBM system as a whole outside a formal BWC Review Conference. With the Seventh Conference scheduled for 2011, pressure on the States Parties to address the CBM issue will probably increase, though determining what CBMs are attainable depends somewhat on the general issue of how to enforce the BWC.

At the December States Parties meeting, Ambassador Avramchev detailed the activities he and the ISU had made to expand BWC membership. [30] Although he noted that three additional countries (Zambia, Madagascar, the United Arab Emirates) had joined the BWC since the last States Parties meeting (and the Cook Islands deposited its ratification while the meeting was in session), Avramchev urged an intensification of universalization activities given that thirteen other states have signed but not yet ratified the convention and twenty other countries have neither signed nor ratified. [31] He also noted that “Even if we are able to hold our current rate of between three and four states per year, it would take a decade to reach universality.” [32]

Various States Parties have made independent efforts to promote universal BWC membership. The European Union, for example, has regularly provided targeted financial and technical assistance and other support to national governments seeking to join the Convention. Nevertheless, Ambassador Avramchev complained that, “I know that a great deal of very positive work is undertaken by States Parties but I am struck by how little information on such efforts I have received throughout the year. It would assist future Chairs to know each and every time a demarche is made, by whom and to whom. I believe that such information would be very useful in portraying our collective efforts, in appreciating which States are active in what geographic locations, and for improving coordination of our efforts.” [33]

Recent trends show an unfortunate pattern in which some states repeatedly indicate they will soon enter the BWC but fail to do so, while other governments engage in dialogue with the ISU and the annual Chair one year but ignore their entreaties the following year. In 2008, a dozen states indicated they have no political or other substantive objections to the BWC, but for various reasons have not even begun accession efforts. [34] These trends suggest that the BWC is not a priority for many non-members, perhaps because they lack major biological research activities within their borders, do not perceive themselves immediately at risk from biological weapons or bioterrorism, or do not consider the side benefits offered to BWC members worth the effort to secure the Convention’s ratification.

In contrast, the accession of the strategically significant states of Egypt, Israel, and Syria probably remains unachievable until their specific dispute over Israel’s non-participation in the nuclear Nonproliferation Treaty (NPT) is resolved. Egypt and Syria have long adhered to a formal “linkage policy” of refusing to enter the BWC until Israel commits to joining the NPT. For various military, political, and economic reasons, the Israeli government has declined to take such a step or adopt the BWC unilaterally. Ambassador Avramchev reported in December 2008 that he had not received any new information from these three parties during his tenure, so “no action on ratification should be expected.” [35]

The inherently “dual-use” nature of most biological technologies exacerbates this tension. The same biological activities that produce vital medicines and important economic products – such as disease-resistant crops, industrial enzymes, and animal-based biofuels – can be misused to create or weaponize biological pathogens and toxins. Whether a transfer involving biological material or technology occurs, therefore, often depends on the subjective judgment of the exporting state’s export control authorities regarding the intended purpose of the recipient.

Believing an indigenous biotech sector is essential to their economic growth, developing countries have criticized what they perceive as the general stinginess of developed countries regarding the sharing of biological expertise and technologies. At virtually every BWC meeting, developing country representatives express concern that governments with more advanced biological industries are failing to meet their Article X obligations. At the 2008 States Parties meeting, the Algerian delegate, for example, argued both against excessive restraints on technology transfers and in favor of increased assistance to less developed countries: “Dealing with the Code of Conduct to be adopted or developed by the professionals and scientists, it should not slow down scientific research nor should it also impinge upon the legitimate right of States Parties to the purchase of equipment or materials or biological substances,” [36] The Libyan representative also insisted that,” To ensure enforcement and universality of the Convention, the States Parties and the Secretariat of the Convention must assist developing countries to emerge from their crisis which is due to the spread of disease and epidemics and they must help those countries acquire the necessary experience and technical know-how to manage biological activities.” [37]

The representatives of the NAM also argue that concerns about proliferation of offensive biological weapons should not unduly constrain the sharing of biological technologies that could contribute to public health and economic progress in less developed countries. For example, the statement Cuba submitted on behalf of the NAM insisted that, while national codes of conduct for biological science workers could be helpful in enhancing biosafety and biosecurity, “all necessary precautionary measures need to be taken to avoid hampering the economic or technological development of States Parties to the Convention or international cooperation in the field of peaceful bacteriological (biological) activities, while devising national codes of conduct.” [38] [Emphasis in original.] Similarly, the Indonesian delegate stressed that “biosafety and biosecurity measures as well as the establishment of code [sic] of conduct should not hamper biological research for peaceful purposes. On the contrary it should encourage further development of life science and international cooperation aimed at facilitating economic and social development.” [39]

It is important to note, however, that concerns about the misuse of biotechnology by terrorists are not confined to developed countries. At the December 2008 States Parties Meeting, the Indian government also cited this danger: “Recent advantages in biotechnology, genetic engineering and life sciences and their dual use nature pose particular danger of proliferation and the hostile use of biological weapons. The possibility of non-state actors, including terrorists, acquiring such toxins or agents have added a new dimension to this danger.”

NGOs also made active contributions to the December 2008 States Parties meeting. The representative of Pax Christi International, a Catholic peace organization, for example, stressed the importance of developing codes of conduct among scientists based on ethical principles and a sense of social responsibility, as well as expert technical knowledge. [42] A speaker on behalf of the University of Bradford submitted a short memo on how the concepts of risk management and risk assessment might apply to the BWC. [43] The Industry Association Synthetic Biology (IASB), an industry association of five German firms active in the field of synthetic biology, shared a draft code of conduct to govern their activities. [44] (For more on the IASB, see “Synthetic Biology and Security – A European Perspective” in the December2008/January 2009 issue of WMD Insights).  Researchers from the London School of Economics discussed how to educate biologists and other important audiences about the BWC and uphold sound biosafety and biosecurity practices. [45] The London-based Verification Research, Training And Information Centre (VERTIC) recounted how it has been providing free help to dozens of national governments attempting to strengthen their legislation for biosafety, biosecurity, and other areas related to BWC implementation. [46]

Finally, as the date of the 2011 Seventh BWC Review Conference approaches, advocates of amending the BWC to include a legally binding protocol or other mandatory enforcement measures will likely intensify their lobbying. A decision by the Obama administration to support such efforts could prove sufficient to ensure their success.  It should be noted, however, that the recent U.S. Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism, a bipartisan committee established by the U.S. Congress, recommended that the United States continue to oppose giving the BWC a legally binding protocol. [47] Continued U.S. opposition to such measures would likely lead to renewed efforts to enhance compliance through greater national enforcement of existing BWC provisions accompanied by further modest restructuring along the lines of the last review conference, which created the ISU.

Richard Weitz - Hudson Institute