CIAO DATE: 02/02

Questions of Compliance: The Case of the Biological and Toxin Weapons Control Regime

Iris Hunger
PhD candidate, Technical University Darmstadt, Germany
Marie Chevrier
Associate Professor of Political Economy, University of Texas, Dallas

1999 - 2000

The Geneva Centre for Security Policy (GCSP)

Introduction

The Biological and Toxin Weapons Convention (BTWC) of 1972 is the core of the regime that controls biological and toxin weapons (BTW). While the Geneva Protocol (GP) of 1925 prohibits the use of BTW in war, the BTWC, which is the focus of this paper, contains more far-reaching prohibitions, namely the prohibition to develop or possess BTW. The BTWC is the first treaty that bans an entire category of weapons. Because it is such a long-standing multilateral arms control treaty, it offers the opportunity for compliance assessment over a relatively long period of time. The BTWC, like other treaties, is a dynamic instrument. Periodic review conferences address changes in technology and other developments relevant to the Convention, and an Ad Hoc Group of States Parties to the BTWC (AHG) is currently developing a protocol to strengthen the effectiveness of the Convention, which will include measures to assess and promote compliance. This paper looks at the few cases of proven non-compliance and several of the numerous cases of allegations of non-compliance with the existing regime and draws conclusions as to how such an additional protocol should be different from its current draft form in order to better promote compliance with the Convention.

The structure of the BTW control regime

The classical definition of a regime is as follows:

"Regimes can be defined as sets of implicit or explicit principles, norms, rules and decision-making procedures around which actors' expectations converge in a given area of international relations. Principles are beliefs of fact, causation, and rectitude. Norms are standards of behaviour, defined in terms of rights and obligations. Rules are specific prescriptions or proscriptions for action. Decision-making procedures are prevailing practices for making and implementing collective choice."

In the case of the BTW control regime, the underlying principle is that the use of disease as a weapon is always wrong. This principle is derived from the customary rule that the use of force in war is not unlimited - codified in the 1899 and 1907 Hague Conventions on the Laws of War. From this basic principle flow the norms of the regime, which are the obligations never to use BTW (the no-use norm formalized in the GP) and the obligations never to develop, produce, stockpile, retain, or acquire BTW (the no-possession norm formalized in the BTWC). Beyond the rules that formalize the norms, additional rules regarding the destruction of weapons, the transfer of certain items, the facilitation of co-operation for peaceful purposes, and others are also contained in the BTWC.

In addition to its functional elements, any regime can be differentiated into organisational elements. In addition to negotiated treaties (bi-, pluri- or multi-lateral), other formal and informal international and national activities such as export controls, confidence-building measures (CBMs), defence programmes, national legislation measures, political statements, or sanctions all comprise an arms control regime.

The BTW control regime's organisation consists of two formal international treaties, national endeavors and ad hoc measures. The formal treaties are:

• the BTWC of 1972 with the associated review process, CBMs, and ad hoc groups; the Convention has 143 States Parties and 18 signatories; and

• the GP of 1925, which has 131 States Parties and one signatory.

National efforts include:

• Export controls, sometimes coordinated as in the Australia Group;

• Legislation; and

• Defence programmes.

National and international efforts are augmented by ad hoc arrangements, such as the United Nations Special Commission for Iraq (UNSCOM)/United Nations Monitoring, Verification and Inspection Commission (UNMOVIC), the right of the Secretary-General of the United Nations (UN) to conduct investigations of BTW use, and the Trilateral Process involving the three depositaries of the BTWC: the Russian Federation, UK and USA.

To integrate the functional and organisational elements of the regime, Table 1 below summarizes the principles, major norms, rules and procedures of the regime together with the relevant sections of the documents where they are contained.

Table 1. Principles, norms, rules and procedures of the BTW control regime

Principle, norm, rule OR Procedures		Contained in
P r i n c i p l e
The use of diseases as methods of warfare is always wrong.	Preamble of GP and BTWC
Norms Embodied in Rules
No use of BTW	Explicit in the GP, implicit in Article I of the BTWC, explicit in BTWC Review Conference documents
No possession of BTW	Article I of the BTWC (prohibiting development, production, stockpiling, retention or acquisition of BTW)
A d d i t i o n a l R u l e s
Destruction or diversion to peaceful purposes of existing BTW within nine months after entry into force	Article II of the BTWC
No transfer of prohibited items	Article III of the BTWC
Consultation and co-operation in resolving any problems which may arise	Article V of the BTWC
Facilitation of the exchange of relevant equipment and information for peaceful purposes; avoidance of hampering the technological development of States Parties	Article X of the BTWC
P r o c e d u r e s
Amendments of the BTWC	Article XI of the BTWC
Review of the BTWC	Article XII of the BTWC

The strength of any international regime "refers to the stringency with which rules regulate the behaviour of countries". A strong BTW control regime would be characterised by complete compliance of all its members with all its norms and rules plus the determination of States Parties to uphold the norms and rules. To be completely effective, the regime would need to be universal. In the absence of total compliance, regime effectiveness increases as the degree of compliance increases. There is an order of precedence among the norms of the BTW control regime: the violation of the no-use norm would be a more serious violation of the regime and should be faced with a stronger counteraction than the violation of the no-possession norm. However, one can assume that a country having a BTW programme ultimately intends or is prepared to use the resulting weapons in some circumstances, or to threaten their use to achieve some end.

Putting aside the question of whether states enter arms control agreements in good faith, a State Party's compliance with its obligations may vary according to circumstances such as perceived changes in its security environment. Whether a country continuously complies with arms control obligations depends on several factors, among them: 1) the power of norms regulating the behaviour of the specific state; 2) the advantage that a violation would provide; 3) the likelihood that a violation would be detected; and 4) the expected sanctions resulting from being found in non-compliance. A robust arms control regime can influence all four of these factors to a varying degree. However, it can directly influence only the third and fourth factors by providing measures to assess or verify compliance of regime members. If verification measures are efficient, i.e. violations are detected before they provide a significant advantage for the violator, the advantage that a violation can provide is minimised. And, by setting down consequences in cases of non-compliance that could range from political costs of being found in violation of an international agreement to full-scale international sanctions, an arms control regime would affect the price a potential violator might have to pay for breaking the rules.

The advantage that a violation of the BTWC could provide to a state is theoretically huge - BTW being weapons of potential mass destruction. In contrast, the likelihood of detecting violations is limited. This limitation has two main reasons: first, the existing treaties provide almost nothing in terms of verification measures to assess compliance; and second, the nature of the technologies involved makes the development of verification measures difficult. Moreover, the regime has no specific provisions for follow-up after non-compliance has been proven. Despite the possible advantages to violators and the limitations on detection, only a few violations among the more than 140 States Parties to the BTWC are known. This suggests the existence and effectiveness of a strong normative constraint, independent of legally binding prohibitions and measures to assess and enforce compliance with them.

Actual and alleged cases of non-compliance with norms and rules of the BTW control regime

No violations of the principle underlying the BTW control regime are known since the beginning of the 20th century, i.e. no country has ever argued publicly that BTW were an acceptable means of warfare. Violations of the no-use norm have been extremely rare; there is no proof of large-scale battlefield use of BTW. The no-possession norm, however, and certain rules of the BTW control regime have been violated. In addition, there are numerous allegations of non-compliance.

In the following we consider cases of alleged or actual BTW use after 1928 because the no-use norm became legally binding when the GP entered into force in 1928. The starting date for alleged or actual cases of BTW possession is 1975, for similar reasons. This paper focuses on the legally binding norms as contained in the GP and the BTWC, which apply to nation states; therefore cases of the use of BTW by other than state actors, are not dealt with in this paper. The following list of non-compliance cases with norms is divided in two parts, proven cases of non-compliance, and alleged cases of non-compliance.

Proven violations of the no-use norm

1. The Japanese military conducted BTW research and development activities between 1932 and 1945. These activities included large-scale experiments on humans. The Japanese military also carried out trial BTW attacks against Soviet forces in 1939 and on Chinese cities in the early 1940s. While the number of casualties and fatalities from these activities are disputed there is no doubt that Japan deliberately disseminated disease in violation of the no-use norm. Japan was not a contracting party to the GP at that time.

Proven violations of the no-possession norm

1. The Russian Federation inherited from the Soviet Union an offensive BTW programme that operated at least until March 1992. The Soviet Union - and the Russian Federation as its successor state - has been a contracting party to the GP since 1928, and a State Party to the BTWC since 1975; it had signed the BTWC in 1972. This case is described in more detail below.

2. During its activities, UNSCOM uncovered a BTW programme in Iraq. Iraq has been a contracting party to the GP since 1931 and a signatory of the BTWC since 1972. However, Iraq ratified the BTWC only under post-war duress in 1991. This case is described in more detail below.

3. During its hearings, the Truth and Reconciliation Commission of South Africa uncovered that South Africa had a BTW programme aimed at developing assassination weapons during the 1980s and early 1990s. There were also indications that the South African military had used BTW agents for hostile purposes during that time. South Africa has been a contracting party to the GP since 1930 and a State Party to the BTWC since 1975; it had signed the BTWC in 1972.

Alleged violations of the no-use norm

1. In 1951 and 1952, North Korea, China and the Soviet Union alleged the use of BTW by US forces in Korea and China between 1950 and 1952. The USA denied the charges. There were extensive UN debates in 1952 and 1953, but no independent investigation took place. Recently uncovered Soviet documents, however, indicate that the accusations were fraudulent. Nevertheless, the accusing countries have not withdrawn their allegations and no official resolution has taken place. The USA was not a contracting party to the GP at the time.

2. In 1981, the USA accused the Soviet Union of toxin warfare in Southeast Asia, using trichothecene mycotoxins. This allegation was repeated during the 1986 Review Conference of the BTWC. The Soviet Union denied the charges. With considerable scientific and organisational effort it was later shown that the "yellow rain" that had been described was most likely bee faeces, and that the mycotoxins that had been found in very few samples were in all probability of natural origin. Nevertheless, the US government has never officially withdrawn its accusations. The Soviet Union was a State Party to both the BTWC and the GP at that time.

3. The Cuban government has repeatedly alleged BTW use by the USA; only one of these events was taken up in an international forum: the outbreak of Thrips palmi in agricultural plants in 1996 and 1997. This case is described in more detail below.

The preceding list of alleged violations of the no-use norm is far from exhaustive. Between 1964 and 1987 the Soviet Union accused the USA of several more cases of BTW use, none of those have been followed up internationally and are considered to have been propagandistic. There have also been accusations of Iraqi BTW use in the Iran-Iraq war in the 1980s. However, the detailed descriptions of these events suggest that chemical rather than biological weapons were used. In a recent publication the outbreak of tularemia among German troops in 1942, an outbreak of Q-fever among German troops in 1943, and several unexplained outbreaks of diseases among guerrilla groups in Afghanistan between 1982 and 1984 have been described as results of BTW use by the Soviet military.

Alleged violations of the no-possession norm

Reports from several sources, including but not limited to official government documents, have been accusing a number of other states - usually less than a dozen - of pursuing BTW programmes, among others China, Egypt, Iran, Israel, Libya, North Korea and Syria. Some of those (China, Iran, Libya and North Korea) are States Parties to the BTWC. The exact status of BTW programmes in the accused states is not clear from these reports. BTW programmes are described as ranging from "possession confirmed" or "clear intent" all the way down to "probable possession" and "suspected programs". None of these accusations has ever been taken up formally or proven.

In summary, most of the alleged violations of norms of the BTW control regime have not been followed up sufficiently to definitely arrive at an official determination of their truth. No state alleging non-compliance has ever officially withdrawn its allegation. While certain allegations have been made for a number of years, and then stopped, a few are still repeated today. Indeed, each of the incidents of alleged use or of alleged possession of BTW has serious problems of proof. Each of them, while certainly fuelled by a deep distrust and suspicion between the accuser and the accused, may have been an effort to discredit the accused with very little, if any, evidence of wrongdoing.

In addition to the events dealing with compliance or non-compliance with the no-use and no-possession norms of the BTW control regime, it is worthwhile to consider compliance with some of the other rules contained in the BTWC. To give a few examples: 1) There have been differences among BTWC States Parties as to whether the provisions of Article X have been sufficiently implemented. 2) Despite the fact that there were a considerable number of allegations, the provisions of Articles V and VI of the BTWC - which call for co-operation between States Parties to resolve any concern and provide for inspections in cases of breaches - have been invoked in only one case, the Cuban request for a consultative meeting in 1997. All other alleged non-compliance cases have not been dealt with in accordance with those established rules; and 3) last but not least, the rule of data exchange under the CBMs, established during the Second Review Conference in 1986, has been followed only by about half of the BTWC States Parties.

Case Studies

To provide a broad picture of alleged and actual cases of non-compliance with the norms and rules of the BTW control regime, the following will be looked at in depth:

• Soviet Union/Russian Federation - The BTW programme of the Soviet Union represents the most serious breach of the BTWC. No action in the framework of the BTWC has been taken to address this breach;

• Iraq - The Iraqi efforts to hide the details of its past BTW programme, and to continue with it, are another serious breach of the BTWC. Action has been taken in the framework of UNSCOM/UNMOVIC, outside the BTWC;

• Cuba/USA - Cuba has repeatedly alleged that the USA used BTW against them. In 1996 one of these accusations was taken up in the framework of the BTWC, through the consultations and co-operation procedure under Article V; and

• Finally, while not comparable to cases of non-compliance with the fundamental no-use and no-possession norms of the regime, this article also examines the implementation of Article X of the BTWC. The "Article X rule" prescribing to foster technical co-operation for the peaceful use of biotechnologies, and to implement the BTWC in a way so as not to hamper the development of States Parties, is one which is in the eyes of certain States Parties not implemented satisfactorily.

Soviet Union/Russian Federation

The Soviet Union was, and the Russian Federation as its successor state is, one of the three depositaries of the BTWC. Concerns about Soviet compliance with the BTWC came sharply into focus following an outbreak of anthrax in the Soviet city of Sverdlovsk, in 1979. The Soviet government stated at that time that the outbreak resulted from contaminated meat that had been sold on the black market. Some Western governments believed that a military facility, probably involved in prohibited activities, was the origin of the outbreak.

The concern about the Soviet non-compliance, based on both the anthrax outbreak in Sverdlovsk and the allegations of "Yellow Rain", was expressed during BTWC review conferences; during the Second Review Conference in 1986, for example, the USA stated in the general debate that:

"it believed that the Soviet Union had continued to maintain an offensive biological warfare programme and capability and had been involved in the production and use of toxins for hostile purposes in Laos, Kampuchea and Afghanistan."

However, neither the USA nor any other country initiated consultation procedures under Article V, much less an investigation under Article VI of the BTWC. The Soviet Union denied the charges.

This unsatisfying situation remained unchanged until 1989, when a high-level Soviet defector - director of a BTW institute - reached the UK. Following his debriefing, the USA and UK took the issue up with the Soviet government on the highest political level. Another high-level defector - deputy director of Biopreparat, the civilian arm of the Soviet BTW programme - reached the USA in 1992 providing detailed information on the extensive Soviet BTW programme. In January 1992, President Yeltsin referred in a speech to "a lag in implementing" the BTWC, officially acknowledging the existence of a BTW programme. Later the same year, the Russian Federation handed in a CBM declaration which under form F (form F asks for information about past activities in offensive and/or defensive biological research and development programmes) stated that they had had a past offensive biological research and development programme which had run from 1946 to March 1992. The anthrax outbreak in Sverdlovsk, meanwhile, was determined to have been caused by an accidental release of the agent from a military facility.

In September 1992 an agreement to address compliance concerns between the three depositaries of the BTWC - Russian Federation, UK and USA - known as the Trilateral Statement was signed. In this statement the Russian Federation Government "confirmed the termination of offensive research, the dismantlement of experimental technological lines for the production of biological agents, and the closure of the biological weapons testing facility". The three depositaries also agreed to allow visits on a reciprocal basis to any non-military biological facility at any time in order to address concerns, and to establish a working group to deal with possible visits to military biological facilities. While a few non-military facilities were visited on a reciprocal basis in the framework of the Trilateral Process, it has been basically deadlocked since the mid-1990's, when visits to Russian military facilities were refused. Since then, the USA has been increasingly active in financing efforts to convert former BTW facilities to peaceful purposes.

Despite the increasing amount of information available publicly, the political issue is still unresolved. The Russian Federation has been reluctant to acknowledge its non-compliance, much less to provide information about its past offensive activities; there is also little transparency in regard to current activities of former BTW facilities. Although the Russian Federation has supplied CBM declarations annually, it has yet to provide an updated and more complete version of its CBM submission on past biological offensive activities.

The existence of the Soviet BTW programme represents the most serious case of non-compliance with the BTWC. This case is aggravated by the fact that the Soviet Union/Russian Federation has been one of the three depositories of the BTWC and a superpower, i.e. it has been one of the countries expected to exercise leadership in implementing the BTWC. This case of grave non-compliance has, however, not precipitated any international clarification procedures or inspections. While the bipolar power structure and a lack of reliable information might be an explanation for lack of action until the beginning of the 1990's, it is not understandable why existing rules for co-operation and consultation in order to clarify concerns have not been used by BTWC States Parties in a more thorough and transparent fashion recently. Instead, secrecy surrounds the current status of the facilities, which had been involved in the past Soviet BTW programme. Secrecy also envelops the only existing consultation process, the Trilateral Process, its development, activities and results. Greater pressure for more transparency about the past BTW programme may be hostage to other issues on the US/UK-Russian agenda. Pressing the Russian Federation to provide accurate information about former BTW programmes and their ultimate disposition may simply not be regarded as "important enough" to policymakers in the other two depositary states to risk other aspects of their relationship with the Russian Federation. However, for the BTW control regime this lingering uncertainty is certainly harmful. Because the issue has not been dealt with in a determined and decisive way, it raises doubts about the efficiency of the regime, and the determination of the leading States Parties to protect the integrity of the BTWC.

Iraq

Iraq had signed the BTWC in 1972; it ratified it, however, only in 1991 under circumstances in which the ratification was prescribed in the cease-fire agreement that ended the Gulf War. Under international law, treaty signatories, even if they have not ratified the instrument, have some obligations; they are required not to take any actions that are directly contrary to the agreement. Therefore, even before 1991, Iraq was ignoring its international responsibilities. In addition to its obligations under the BTWC, UN Resolution 687 (1991) required Iraq as well to destroy, remove or render harmless under international supervision all BTW, all stocks of agents, all related subsystems, all related components, and all research, development, support and manufacturing facilities. Due to a focus on nuclear and chemical weapons in the early UNSCOM days, the Iraqi BTW programme remained largely undisclosed until 1995. The April 1995 UNSCOM report stated that there might be proscribed BTW activities in Iraq based on UNSCOM's own verification and inspection activities. In July 1995 Iraq acknowledged for the first time that it had an offensive BTW programme but denied any weaponization. But soon after, in August 1995, due to events around Mr. Hussein Kamel's "departure from Iraq", Iraq admitted that it had weaponized BTW agents and deployed BTW for combat use.

Following this admission, Iraq provided three different "full, final and complete disclosures", in August 1995, June 1996 and September 1997. Iraq itself declared the first null and void. UNSCOM considered the second inadequate and rejected the third as incomplete. At Iraq's request this third document was evaluated during a Technical Evaluation Meeting in March and July 1998. These evaluations came as well to the conclusion that the Iraqi disclosure was inaccurate and incomplete.

The lessons to be learned for BTW arms control from UNSCOM's activities are limited for several reasons. UNSCOM's objective was different than that of the multilaterally negotiated BTWC. In addition, the conditions of UNSCOM's activities are not negotiable by Iraq; UNSCOM's activities are not an exercise between equal partners. Moreover, the investigated state in the case of UNSCOM, i.e. Iraq, has been extremely non-co-operative, employing an elaborate evasion programme to disguise its activities and hinder the work of inspectors. In contrast, activities under the BTWC are expected to be of a co-operative nature.

Nevertheless, a few lessons can be learned. UNSCOM has demonstrated that even in the case of a very evasive country - and despite the dual-use character of almost any biotechnology - it is possible, albeit with difficulty, to uncover a clandestine BTW programme in a given state. To provide proof of the existence of Iraq's BTW activities, it was very important to collect information from a wide range of sources. The information provided by supplier states whose contacts with Iraq were, in certain cases, older than 10 years, proved extremely helpful. UNSCOM inspectors also stress two more points: the importance of having access to documentation and records, and the importance of the continuity of work. One must acknowledge, however, the critical difference between the mandate of UNSCOM - to discover and destroy all of Iraq's BTW capability, and the mandate of an investigation under the BTWC - to investigate whether there has been any violation of the treaty. There can be no doubt that UNSCOM has proved many times over that Iraq systematically violated the prohibitions of the BTWC, even if it has not been totally successful in removing all traces of the programme from Iraq. And last but not least, it should also be questioned whether it was a wise move to force Iraq to ratify the BTWC, an international arms control regime which by its very nature relies heavily on the free will of states to abide by its rules. As in the case of the Soviet Union/Russian Federation, the States Parties took no action under the BTWC, even though they were fully aware of Iraq's blatant violations of the Convention.

Cuba/USA

Cuba has claimed that up to 24 events and disease outbreaks in Cuba, ranging from 1962 to 1996, were the result of BTW use by the USA. All of these events except one are "unofficial", i.e. the allegations were published in the press and made in public statements, but no formal complaint was directed to any UN body. In the following, only the formal allegation will be looked at in detail.

On 28 April 1997 Cuba sent a letter to the Secretary-General of the UN, describing the appearance of Thrips palmi, an insect that feeds on a wide range of agricultural plants and thereby damages them, on Cuban territory for the first time. This appearance, Cuba asserted, is related to "the dropping, on 21 October 1996, of an unknown substance by an aircraft operated by the US State Department ... There is reliable evidence that Cuba has once again been the target of biological aggression." The US State Department issued a statement on 6 May 1997, dismissing the charge. Cuba replied on 26 June 1997, rejecting the US explanations for the events as "insubstantial and unprofessional" and reiterating its concern that the BTWC had been violated. At the request of Cuba, and as agreed at an informal meeting held on 31 July 1997 and subsequently confirmed in a note issued by the depositaries, a Formal Consultative Meeting, open to all States Parties, took place on 25 to 27 August 1997. An unusually large number of BTWC States Parties and signatories, 83, met in Geneva for that event. The gathering heard presentations by both Cuba and the USA. Participating states referred to the BTWC and the Final Document of the Third Review Conference, which had elaborated a detailed consultation procedure to deal with situations like the one at hand. Judging from the report of the meeting, there were two carefully worded conclusions: one, that the time and information available were inadequate to fully resolve the matter; another, that the obligation to co-operate in cases of concern had been fulfilled.

States Parties were then given the opportunity to provide further observations during one month following the meeting, on the basis of which the Chairman would further consult and provide a report by 31 December 1997. Twelve states provided responses. In the final report by the Chairman no clear conclusion is drawn; it is stated that due "to the technical complexity of the subject and to the passage of time, it has not proved possible to reach a definitive conclusion with regard to the concern raised by the Government of Cuba". There was no follow-up from the Cuban side. The result is an unsatisfying and unfinished process. Each side can interpret the final report with some satisfaction. The USA can state that a full investigation did not support Cuba's claim. Cuba in turn can claim that the investigation did not dismiss its claim that the USA used BTW.

The main lesson from this recent event is that consultation and clarification procedures can be carried out in a co-operative and transparent manner, giving all sides concerned equal opportunity to present their views, and all States Parties the possibility to make up their own mind. However, without a clear conclusion by the meeting, or unequivocal indications from the states concerned that they consider the concern resolved, the issue remains hanging in the air, accusations linger.

Article X implementation

While the three case studies above deal with the two norms of the BTW control regime, the issue of Article X falls in the category of "additional rules". We do not claim that implementation of Article X is on a par with obligations to forego BTW use or possession. Nevertheless, we argue that the comprehensive implementation of arms control agreements is essential for the stability of the regime. Nations are obligated to implement all aspects of international agreements that they are party to. They are not free to pick and choose those articles that they like or find easy to implement. If states feel that international agreements are implemented selectively, they may respond in turn, leading to deterioration of the entire regime over time. Moreover, failure to comply with all treaty provisions, has real and potential consequences in states' behaviour under the BTW regime and in other arms control fora. Implementation of certain rules is sometimes difficult due to different interpretations as to what constitutes compliance and non-compliance.

Article X of the BTWC sets down two rules: first to facilitate co-operation and exchange in the area of biotechnology; and second to avoid hampering development of and co-operation among States Parties. Similar provisions exist in other treaties controlling weapons of mass destruction. The concept underlying Article X is that unequal burdens resulting from arms control obligations have to be balanced by advantages for the unequally burdened states. Co-operation provisions are also intended to provide incentives for states to join an agreement.

The disagreement about full implementation of Article X of the BTWC evolved along the global technology division; generally speaking, industrialized states, owners of the most advanced technologies in the biological field, refer to their obligation under Article III of the BTWC when limiting exchange of equipment and information. They also assert that numerous co-operative arrangements, being implemented in the fields of health, environment, nutrition and agriculture, are all activities that fulfil their obligations under Article X. Developing states complain about the hampering of their biotechnological development by existing export restrictions, such as the Australia Group, and argue, that not enough is done to fully implement Article X.

The focus on Article X implementation has increased over the years. In the Final Document of the First Review Conference, which took place in 1980, three paragraphs deal with Article X, one stating that "the Conference notes with satisfaction that the implementation of the Convention has not hampered the economic or technological development of States Parties". At the time of the Second Review Conference, in 1986, this picture had already changed. Ten paragraphs in the Final Declaration dealt with Article X, emphasising "the increasing importance of the provisions of Article X", expressing concern over "the increasing gap between the developed and the developing countries in the field of biotechnology" and urging to take specific measures for greater co-operation. While the focus in 1986 was on the promotional aspect of Article X, this changed in the following decade. In 1996, the Final Document of the Fourth Review Conference, while still urging states to implement the promotional aspect, emphasised "that States Parties should not use the provisions of the Convention to impose restrictions and/or limitations on transfers". The 1980 language of satisfaction with the implementation of Article X had been replaced by an articulation of the concern regarding transfers. It should be noted that the final documents must have consensus approval of all States Parties participating in the review conferences. Thus, even Western states approved the language of the Final Document in 1996; states concerned about transfers might have worded their concerns more strongly.

The consideration of Article X has been playing an increasingly more important role in the work of the AHG, which is currently negotiating a legally binding protocol to the BTWC. This issue is now one of the major problematic areas in the negotiations. While "just a rule" and not a norm of the BTW control regime, this issue proves important for the acceptability and stability of the regime.

Conclusions

Looking at BTW arms control over the last 75 years one sees a surprisingly strong regime. No country has ever publicly challenged the underlying principle that BTW are not an acceptable means of warfare. Extremely rarely has the basic norm of no-use of BTW been violated. Since the entry into force of the BTWC, the norm of no-possession of BTW, in the absence of a verification regime, has been violated on a few occasions. These violations of the no-possession norm have weakened the regime, but they have not obliterated it. Similarly, the numerous, mostly unsubstantiated, allegations of non-compliance with the two basic norms of the regime seem not to have seriously weakened the control regime either. No country has withdrawn from the BTWC, new countries continue to accede to the Convention, and States Parties are actively involved in strengthening it.

The first important conclusion that can be drawn is therefore the following: the unquestioned understanding that the use of BTW would be repugnant to the conscience of humankind must be protected. This understanding is an expression of the existing anti-BTW norm, and the base of the BTW control regime. Recent developments, especially in the USA, such as portraying the future use of BTW as a certainty rather than a threat, drastically increasing biodefence efforts, and planning for military action in a BTW environment, may risk creating the perception that BTW are weapons comparable to those whose possession and use are not outlawed and banned by international treaties. Such activities without adequate involvement in multilateral efforts to control BTW could risk weakening the anti-BTW norm and damaging the BTW control regime, thereby making the use of BTW more likely, an effect that would be the completely opposite of the one intended.

The second important conclusion that can be drawn is that there is an urgent need for more multilateral interaction to address, in a transparent way, concerns that exist or may be raised in relation to the BTWC. Given the renewed attention to the issue, the growing availability of relevant technologies, and the further enormous changes in the biotechnologies that are expected in the near future, the development of measures to strengthen the BTW control regime is an important task. The notion that the BTWC does not live up to modern verification standards is not new. France did not originally sign the BTWC for the reason that a verification regime was missing. However, with the beginning of the 1990's the States Parties to the BTWC took action. First, they evaluated the effectiveness of verification measures in the process that became known as VEREX. As a result, satisfied that additional useful verification mechanisms are possible, they established in 1994 the current AHG mandated to "consider appropriate measures, including possible verification measures, and draft proposals to strengthen the Convention". This AHG has been working since 1995.

The Special Conference did not charge the AHG with drafting a "verification" protocol to the BTWC, side-stepping the controversial issue of whether, or to what standard, the BTWC could be verified. Many of the measures currently envisaged under the protocol, such as declarations, visits and investigations, resemble verification activities in other arms control contexts. Nevertheless, judgements of whether any particular country's compliance with the BTWC could be verified is difficult because biological agents and toxins, unlike nerve agents, for example, are often produced in relatively large quantities for peaceful purposes such as disease prevention, diagnosis or treatment. The purpose of the protocol, therefore, will be to build transparency of relevant peaceful activities, and to provide elaborate and standardised mechanisms for addressing concerns, should they develop.

The most recent draft of the protocol basically foresees the implementation of "measures to promote compliance", and "measures related to Article X", aided by setting up a permanent body, the future Organisation for the Prohibition of Bacteriological (Biological) and Toxin Weapons (OPBTW), which will include a Conference of State Parties, an Executive Council and a Technical Secretariat. Under the future protocol (which will not enter into force automatically for States Parties to the BTWC, but which will require separate ratification), States Parties will have to provide initial and annual declarations, establishing a background layer of knowledge about relevant activities and facilities world-wide. The accurate fulfilment of declaration obligations will be assessed by follow-up measures: occasional visits to declared facilities; and, if necessary, declaration clarification procedures ranging from written exchanges of information, via consultation meetings, to declaration clarification visits. Declaration assistance visits may aid countries in the accurate fulfilment of declaration obligations.

Mechanisms to address non-compliance concerns in regard to the BTWC come in different configurations, levels of intrusiveness and degrees of political sensitivity. The process of consultation, clarification and co-operation foresees measures from bilateral information exchanges, to information exchanges through all the different bodies of the future organisation, including requesting a special session of the Conference of States Parties. States Parties may also request on-site field or facility investigations if they suspect that Article I of the BTWC has been violated.

Taking a look at the case studies in this paper together with the current draft of the future protocol, there are a few points that justify further attention. Any mechanism to address concerns that a State Party might be in non-compliance with the BTWC, needs to include a defined end-point, i.e. a mechanism for arriving at a decision on whether evidence supports the accusation of non-compliance or not. Such a decision could take one of three forms: 1) a formal decision by the Executive Council or the Conference of States Parties; 2) the explicit withdrawal of the allegation by the State Party that asked for clarification or requested an investigation; or 3) the admission of the alleged State Party that it was, indeed, in violation. So far, the draft text of the protocol does not provide for such clear final decisions.

The case studies also show the importance of access to different sources and types of information in order to assess compliance. Therefore the future organisation should have an independent information collection and assessment capability to augment the information that it receives through the declarations. States Parties and non-governmental organisations (NGOs) could provide information, and the organisation would collect and assess that information, as well as information from the CBM data exchange, and it would survey relevant information from open sources. So far, there is no language on this specific aspect included in the draft text of the protocol.

A regime that needs universality to be truly effective must be designed to attract states that have no direct or immediate security interest in it. In the case of the BTWC these are mostly developing countries, particularly the least developed among them. Fortunately in the case of the BTWC, the dual-use character of the technologies involved makes it relatively straightforward to design meaningful peaceful co-operation activities in areas such as disease surveillance, nutrition, agriculture and environment, which are likely to attract membership of those countries. However, most of these countries do not participate in the negotiations of the AHG, and therefore can not shape the relevant provisions according to their specific needs. It is left to a few delegations and to NGOs to ensure that the needs of the least developed countries are addressed in the protocol, thereby guaranteeing that the promotional aspect of Article X is sufficiently implemented to appropriately balance burdens and benefits under the future protocol.

Last but not least, a State Party considering non-compliance should be faced with a clear idea what actions could be taken against it in case it is found to be in violation of the BTWC. Prescribing a range of such actions in the protocol would have that effect. It also ought to have the effect of increasing confidence that the same actions will be taken on a non-discriminatory basis against all members of the regime found in violation of the BTWC. So far the protocol foresees a comparatively detailed system of consequences for violating rules of the protocol, e.g. for failing to provide declarations on time or for abusing the right to request an investigation. However, there are no provisions so far for automatic responses or even an illustrative list of potential actions to be taken in cases of actual non-compliance with the norms of the BTWC.

In summary, we have to ensure that the no-use and the no-possession norms remain the unchallenged guiding principle of the BTW control regime. In addition, the negotiations on an additional protocol need to be finished without delay. The latter is for two reason: first, to make the BTWC a "modern" arms control agreement equipped with provisions to assess compliance and address compliance concerns, and second, to demonstrate that the international community really cares enough about a world free of BTW to muster the political will to agree on a strengthened BTW control regime. The States Parties set out on this difficult road almost 10 years ago. It is time to complete the journey.