(Science and technology review under the BTWC, Part 3)

Hungary presided over the 8th Review Conference of the Biological and Toxin Weapons Convention (BTWC) in 2016. On the first day, Ambassador György Molnár treated all delegations and other attendants to a Rubik Cube, not just because its inventor Ernö Rubik is a compatriot, but also because the participating states parties had a significant puzzle to solve. How to achieve a sufficiently relevant outcome so the convention could take a few small steps forward. A minimum expectation was an agreement on a next round of thematic intersessional Meetings of Experts (MX) and Meeting of States Parties (MSP). Alas, the puzzle was all too three-dimensional, and the conference ended without a review of the functioning of the BTWC or decisions on future work. Critically, members from the BTWC’s three regional groups pointed fingers at a single delegation for the debacle. Salvaging an agenda ahead of the 9th Review Conference delegates left for an MSP in December 2017.

Review of science and technology (S&T) was one of the five themes retained for the MXs. The previous series of intersessional meetings had also looked at the topic (see table below). However, several states parties also began considering a more institutionalised approach to the process besides assessing S&T advances. Looking at the number of official working papers introduced in preparation of and since the 8th Review Conference, and discussion notes and proposals by scientific associations and research institutes, states parties today have a rich menu of options to construct an S&T review mechanism. In its recent study entitled ‘Exploring Science and Technology Review Mechanisms under the Biological Weapons Convention’, the United Nations Institute for Disarmament Research (UNIDIR) also calculated budgetary implications of alternative setups.

Meetings of experts overview
	National implementation	Biosafety Biosecurity	Response disease outbreaks / Article VII	Institutional measures against disease outbreaks	Education Codes of conduct	Regional / Sub-regional Cooperation	Article X	S&T Review	CBMs	Institutional strengthening
5th Revcon	2003	2003	2004	2004	2005
6th Revcon	2007	2008	2010		2008	2007	2009
7th RevCon	2012						2012	2012	2012
	2013						2013	2013	2013
			2014				2014	2014
			2015				2015	2015
(8th RevCon)
2017 MSP	MX3		MX4				MX1	MX2		MX5
	2018	To MX2	2018		To  MX2		2018	2018	To MX3	2018
	2019	To MX2	2019		To  MX2		2019	2019	To MX3	2019
	2020	To MX2	2020		To  MX2		2020	2020	To MX3	2020

From this perspective, achieving consensus among states parties on a final proposal falls within the realms of possibility. However, the process towards a successful outcome at the 9th Review Conference next year may prove more complicated. The previous two instalments of the present analysis have pointed out the great difficulties of the BTWC decision-making process to come at any conclusion, and if does, to maintain decision-making continuation (Part 1), and identified two distinct stages of consensus-building (Part 2). The second part also touched upon the S&T advisory board proposed in the draft protocol to the BTWC under negotiation by the Ad Hoc Group (AHG) of states parties between 1996 and 2001.

Insights from the ISU informal webinars

Many workshop reports and studies describe a convergence of views on an S&T review mechanism. Such convergence may either mean that more states accept the idea’s necessity (external consensus) or that their views move closer regarding its purposes, procedures, composition, outputs, etc. (internal consensus). Presently the issue is less how the final shape of the S&T review process might look like than which trade-offs participating states will consider and accept to move the idea of a review mechanism forward to that second, internal stage.

While specific states’ interests in particular topics are fairly clear, it has not always been obvious beforehand which issue areas would move centre stage by crunch time. With the delays caused by COVID-19, the BTWC Implementation Support Unit (ISU) offered states parties via informal webinars held between October 2020 and July 2021 the opportunity to report on relevant activities or express their views and wishes for each one of the MX themes. Inevitably, many presenters also reflected on next year’s review conference or highlighted proposals their country had already put forward. Several international organisations explained their procedures relevant to certain BTWC matters. This may be the first time observers have received such a broad overview of areas of interest and priorities so long before a review conference. By focussing on a single issue, such as an S&T review mechanism, it becomes possible to identify other themes that may come into play. Notwithstanding, like the Rubik Cube, the review conference puzzle may be multi-dimensional. A grand bargain could still fail over substantive or political divergences elsewhere.

Several ideas as presented during those virtual meetups would require institution building under the BTWC, namely:

MX1 – Cooperation and Assistance, with a Particular Focus on Strengthening Cooperation and Assistance under Article X

• A non-proliferation export control and international cooperation regime (China and Pakistan)
• A mechanism on Article X implementation, and an action plan for full, effective and non-discriminatory implementation of the provision, including procedures for the settlement of disputes. Article X implementation should include capacity-building and efforts to reduce inequalities between developed and developing countries in the life sciences and related technologies (Venezuela on behalf of the Non-Aligned Movement (NAM))

MX2 – Review of Developments in the Field of Science and Technology Related to the Convention

• A concrete proposal for an S&T review mechanism (Germany)
• A concrete proposal for an S&T review mechanism (Russia)
• A proposal to organise the governance of S&T advances (USA)
• Codes of conduct for scientists (China)
• Code of conduct for the life sciences covering dual-use research of concern (Japan)

MX3 – Strengthening National Implementation

• Creation of an exchange platform for voluntary transparency (previously: peer review) exercises (France, possibly a national initiative)

MX4 – Assistance, Response and Preparedness

• Article VII internet-based database to be maintained by the ISU promoting training and capacity-building, deterrence, harmonisation of responses, and coordination between states parties and relevant international organisations (France and India)
• Mobile rapid response medical units available to a future BTWC implementation body; meanwhile to be included into a BTWC database or roster (Russia)
• Linkage of Article VII database to already existing Article X database and databases from other organisations (UNIDIR suggestion)

MX5 – Institutional Strengthening of the Convention

• Proposal for an International Agency for Biological Safety based on the BTWC (Kazakhstan)
• Call for the resumption of protocol negotiations to have compulsory, legally binding and comprehensive measures; next intersessional process to consider recommendations to restart protocol negotiations (China)

Not all ideas were equally developed but state parties may yet add details ahead of the 9th Review Conference. States parties may also circulate new working papers with ideas ahead of the MXs or review conference.

Nobody called specifically for an international organisation similar to the structure envisaged in the AHG protocol, but some interventions referred indirectly to the draft document. Venezuela on behalf of the NAM proposed a cooperation committee as a consultative forum to promote, operationalise and monitor Article X implementation (MX1, informal webinar of 24 November 2020). The language in the presentation reflects that in the AHG protocol (Article 14, para. 7, Document BWC/Ad Hoc Group/CRP.8, Technically corrected version, 30 May 2001, p. 77).

Russia mentioned in passing a ‘future BTWC implementation body’ as a long-term option for making the proposed rapid response mobile medical units available (MX4, informal webinar of 12 November 2020). China hinted at the idea when reiterating the need for a legally binding protocol and calling for a resumption of negotiations. Kazakhstan described an earlier proposal for an International Agency for Biological Safety to the UN General Assembly in September 2020. The agency would not be a BTWC implementation body but be accountable to the UN Security Council rather than the BTWC states parties (MX5, informal webinar of 18 November 2020).

MX5 is appropriately called ‘institutional’ rather than ‘organisational’ strengthening, a formulation that allows sufficient creative ambiguity to keep exploration of options alive. While no country appears set to push an international organisation or return to the AHG as a precondition for a review conference outcome next year, several proposals contain institutional requirements labelled a ‘mechanism’ or a ‘database’, ‘platform’ or ‘roster’. Any option is likely to add to the ISU’s responsibilities and necessitate a budget increase or addition of staff members. Whether the review conference will accept all options or seek some compromise will be part of stage two discussions.

The primary question is whether states can create constructive linkages between different issue areas to help shape an external consensus on divergent needs.

Insights from the UNIDIR study

UNIDIR published detailed survey results of state party views on the necessity of S&T review for the BTWC and the shape such a mechanism could take. Most findings relate to the objectives and possible structures of the review mechanism, but some answers bear on constructing external consensus.

Of the 42 respondents, the overwhelming majority regarded S&T review as ‘essential’ or ‘important’, two answered ‘somewhat important’, and one state deemed it ‘not important’. According to the report authors, the states that accorded little or no importance to a review mechanism linked their position to the absence of a formal BTWC verification mechanism or to the establishment of an institutional mechanism for implementing Article X. The states in favour of an S&T review mechanism expressed divergent views on why they thought it was important or essential, or who the target audiences should be. Several among them also defined its relevancy in terms of a ‘proper balance between preventing biological warfare and fostering economic cooperation and development’. (UNIDIR study, pp. 6-7)

The report also organised the responses according to the three regional groups. All respondents from the Eastern European Group view the review mechanism as essential or important. So did all NAM members, except for one ‘somewhat important’ and one ‘not important’ reply. The Western Group was unanimously in favour of a review mechanism, except for one ‘somewhat important’ return.

Finally, UNIDIR likewise queried whether an S&T review mechanism ‘should address’ various other issues of importance under the BTWC, such as emergency assistance, compliance, international cooperation, national implementation, etc. The survey took S&T review as a central hub and viewed links to other issue areas a spokes in a wheel. The responses varied. Relative to treaty compliance, national implementation, Article X and Article VII, some states thought linkages to the mechanism were irrelevant (UNIDIR study, p. 9).

These diverging views about the nature of the review mechanisms and its relation to other parts of the BTWC are unsurprising. As described in the second part of this analysis, France’s argument for including a Scientific Advisory Board in the Chemical Weapons Convention too moved around as treaty negotiations were advancing. Given that the BTWC has neither an international organisation nor a verification machinery to latch an S&T review mechanism on in the offing, state parties’ views on its purpose and functions will not converge until after their unanimous acceptance of an external compromise on its necessity.

Because each query in the UNIDIR study looked at one-to-one relationships between S&T review and the other issues, it is not possible to deduce how respondents valued the MX topics relative to each other. From the angle of building external consensus, a position that S&T review is ‘not important’ could signal that the proposal for a mechanism will be stillborn. However, if considered relative to other topics, ‘not important’ could still have value as a bargaining chip in exchange for reaching consensus over a matter of significance to that state.

Back to the Rubik Cube

Without an implementation organisation, institutional strengthening faces many hurdles because there is simply no rack to hang a mechanism on. Furthermore, decision-making procedures remain in an embryonic state because consensus is the only option for moving forward. The stubborn refusal to allow substantive decision making in any forum representing all states parties other than review conferences condemns the possibility of progress to five-yearly increments.

Indeed, the ‘possibility’. Even if states parties seemingly agree on a significant new initiative, on the last day they have to approve each paragraph of the meeting report and then the whole document by consensus. If a particular state objects to a paragraph and no new compromise language comes up, then delegates can still preserve consensus on the final report by deleting the offending paragraph. So, all their work on developing a fresh initiative may be lost and opportunities to revisit it five years in the future may never materialise. As discussed in the first part of the present analysis, a state party may also object to a paragraph for which it joined the consensus at a previous review conference, thereby killing off an already operational programme. Refusal to accept a budget proposal that includes (extra) resources for personnel and operations may be another way to hamstring a new initiative. (At the very end of the 7th Review Conference in 2011, for example, Spain blocked a modest budgetary increase to expand the ISU despite an EU Common Position, an EU member chairing the review conference, and not having signalled any objections during regional consultations and plenary meetings.) This harsh reality may imply that entrepreneurial states are already making compromises with themselves to make fresh ideas palatable to a broad swath of BTWC parties. Yet, this is what they endeavour review conference after review conference (provided they are not too engaged in saving the treaty after a previous failure).

Despite uncertain political will or clear options for external compromise, several connections between an S&T review mechanism and Article X implementation, whether positively or negatively, seem to exist. Some linkages are direct and thematic; other ones are indirect and political. From the perspective of institutional development, proposals for both issue areas also have parallel resource demands.

Direct thematic linkages

Already before the 8th Review Conference, NAM statements emphasised the multifarious benefits for developing countries from new S&T advances in the life sciences and different fields of biotechnology. The group thus stressed ‘the importance of the adoption of a plan for active and fullest exchange of knowledge and technology in areas related to enabling and new technologies between developed and developing countries to ensure the unhindered flow of scientific information and technology’. It also expressed concern that the dual-use nature of some of these developments might hamper the free and fullest exchange of these new technologies. (Iran, Statement on Behalf of the Non-Aligned Movement and Other States Parties to the BWC on S&T Developments, 12 August 2015)

Iran as an individual country has adopted a more negative view of the linkage. In a national working paper, it emphasised that new S&T developments cannot be a pretext to impose trade limitations and sanctions or hamper the economic and technological development of states parties or cooperation for peaceful purposes. Such restrictions it views as contrary to the object and purposes of the convention. Iran concluded the working paper by stating

Hence, we emphasize that Eighth Review Conference of the BWC in 2016, under this agenda item, thoroughly deliberate and take necessary effective action on the development of science and technology and in its relation with Article X implementation henceforth, to increase the capacity-building of States Parties in biological activities such as medicines, vaccines and diagnostics production.

(Iran, Review of Developments in the field of science and technology and Article X of the Convention, Working Paper 15, 11 August 2015.) Both the NAM statement and the individual working paper referred to an action plan, but neither document explicitly mentioned a review mechanism.

However, in a working paper circulated at the 2015 MSP, Iran complained about the unilateral, political misuse of the dual-use concept and the justification it might give for prescribing restrictions or denials of technology transfers. Its criticism went far beyond that expressed in the August NAM statement. The document also referred to a ‘monitoring mechanism’, concluding that

International monitoring of the advances in science and technology related to the Convention should be accomplished by an authorized body, which has not been created under this Convention. Such a body could be considered to be established in a multilaterally negotiated and legally binding instrument, with specific mandate and modalities, taking into account lessons learned from the establishment of such body under other relevant international instruments.

(Iran, Science and technology advances and the application of ‘dual use’, Working Paper 14, 17 December 2015.) Put differently, an S&T review mechanism has no place under the BTWC unless a legally binding document (such as that under negotiation by the AHG until 2001) sets up an international organisation authorised to assume this task. It is also worth noting in this context that Iran does not look favourably on discussion topics not explicitly mentioned in the convention, such as, for instance, biorisk management.

A year later, at the 8th Review Conference, Iran forced the removal of many passages referring to future intersessional activities from the draft final document and eventually objected to the annex that would have listed activities for the next intersessional period. This apparent effort to create the preconditions for the resumption of formal AHG negotiations even went against the outcome expectations by many other NAM members. Iran may thus well be the unnamed country that sees no value in an S&T review mechanism mentioned in the UNIDIR study. If correct, then its position does not seem to have shifted over the current intersessional period.

Iran made no statements in the ISU-organised informal webinars. In its lengthy exposé of the NAM’s position on the full implementation of Article X, Venezuela did not mention S&T review (MX1, informal webinar of 24 November 2020). The NAM statement still referred to rapid developments in the life sciences and the risk of ever-increasing gaps between developed and developing countries without reinforced cooperation among BTWC states parties. To reduce such inequalities the NAM called on states parties to promote and engage in building capacity in the life sciences and related technological fields and facilitate the exchange of equipment, materials and scientific and technological information regarding the peaceful use of biological agents and toxins. The regional group is also seeking an undertaking by all states parties to ‘never in any circumstances impose or maintain unilateral, bilateral or collective restrictions and/or limitations’ on relevant trade transactions.

The NAM presentation welcomed international cooperation in biosecurity and -safety, while noting that the BTWC defines neither concept.

Indirect political linkages

Venezuela’s presentation points to the NAM’s concern with S&T even though an interest in monitoring advancements seems lacking. (The group also made no formal statement in the virtual webinars on S&T review.) However, if one is looking for potential trade-offs to achieve external consensus on an S&T review mechanism, then the positions of some key players on Article X come into focus.

A few NAM members, Iran most prominently among them, seek a return to the AHG. This is a political position because back in 2001 their enthusiasm for the draft protocol text was all but missing. When in the spring of that year it became clear that the document on the table was unpalatable to the United States, they quickly changed tack and became ardent supports, shifting blame for failure onto Washington. Until the 8th Review Conference, the call for a resumption of the AHG talks was one way to try and exact concessions on issues important to NAM.

Even though Venezuela’s statement on behalf of NAM did not mention the AHG, the call to establish ‘the’ (rather than ‘a’) Co-operation Committee lifted a rather well-developed idea from the draft protocol (Article 14, Part D, Document BWC/Ad Hoc Group/CRP.8, Technically corrected version, 30 May 2001, pp. 77-81). It was a controversial proposal that Western Group states, the United States excepted, accepted only reluctantly as a quid pro quo for the verification machinery (to which Washington also objected).

Given that the BTWC has no institutional setup, the suggestion in the NAM presentation during the virtual webinar that the cooperation committee ‘could serve as institutional monitoring mechanism for Article X full, effective and non-discriminatory implementation’ is far-reaching (para. 24, emphasis added). On the one hand, the idea assumes that all technology transfers and assistance relating to the life sciences and associated technological applications pass through the BTWC. Many statements at MX meetings by parties from the developed and developing worlds alike acknowledge the value of bilateral or interregional programmes. On the other hand, the NAM also proposes that the cooperation committee develop ‘mutually agreed procedures for addressing concerns related to risks associated with prohibited activities under the Convention, in which, regulatory mechanisms could be agreed and undertaken by harmonizing both promotional and regulatory aspects’ of Article X implementation. This implies formal negotiations on an outcome with legal consequences for BTWC states parties. In this regard, the NAM also stressed ‘the need for establishing an effective mechanism among States Parties to address concerns and resolve disputes that may arise as to the full implementation of Article X based on procedures to be agreed by States Parties at the Review Conference’ (para. 25).

It is impossible to arrive at both external and internal consensus on a cooperation committee in an institutionalised form and its attendant mechanisms before the end of the 9th Review Conference in 2022. Unless NAM views its proposal as a bargaining position, options for a trade-off involving an S&T review mechanism will be few.

Since 2001 the United States has become a major champion of Article X implementation and has since then also started to circulate annual reports on Article X activities at BTWC meetings. However, its views on international cooperation and technical assistance differs considerably from the demands by the countries seeking a return to the AHG format. As presented in a virtual webinar (MX1, informal webinar of 24 November 2020), its initiatives focus, among other things, on disease threats, strengthening health care and response capacities, improving biosecurity and -safety, law enforcement training related to biological threats, and reinforcement of domestic regulatory capacity, including for technology transfers. While these actions are mostly bilateral rather than through the BTWC, the United States also suggested some collective steps, such as promoting annual Article X reporting by all states parties, for instance through a standardised format; seeking ways to increase use of the already existing Article X database; and proposing a new position in the ISU to coordinate and assist with Article X implementation.

From the perspective of a potential trade-off to secure external consensus over an S&T review mechanism, a second intervention presented a view on Article X implementation that might throw a spanner in the works if pushed at next year’s review conference. It extolled the benefits of biotechnology production and trade to the US economy and employment. It elaborated on how investment strategies further Article X objectives even though they require countries seeking investment to have fair transparent and predictable conditions, and an appropriate regulatory framework. Technology transfers furthermore have to be voluntary and on mutually agreed terms. The presentation also touched upon intellectual property rights and US tools to promote private sector investment policies, including national assessments and ones by international organisations of investment climates in foreign markets. The contents of the presentation were already the subject of a working paper at the 2019 MX.

The United States detailed its views on S&T review in a third presentation made during the MX2 virtual webinar of 29 October 2020. It looks at the process in function of prevention of misuse of advances in the life sciences for biological weapon (BW) development. In particular, the United States wants to identify S&T advances of concern, assess the potential BW risks, develop options to manage the risks while protecting the benefits. To this end it also proposes a wide spectrum of governance measures ranging from informal bottom-up arrangements to top-down hard law. Those experiences, the United States wishes to share with other BTWC parties. (See also United States, Approaches to Governance for Scientific and Technological Advances in the Life Sciences Relevant to the Biological and Toxin Weapons Convention, MX2 Working Paper 1, 29 September 2020.)

In contrast to other S&T review proposals, the US presentation offered the most concrete vision of the mechanism’s functions. However, it comes with several potential opportunity costs for the external consensus-building process. First, such clarity of purpose does not allow for the ‘constructive ambiguity’ that enables parties concerned to have their own interpretations of the proposal and project their respective interests into it. (Resolving these divergent views is part of the second stage discussions towards internal consensus.) Second, the focus on the dual-use nature and hence potential misuse of the life sciences and biotechnologies narrows the options of the review mechanism, whereas other proposals leave open several other possible purposes. Last, the focus on the prevention of BW development or proliferation connects the US proposal to Articles I and III, neither of which is the subject of detailed consideration in the MXs.

These possible linkages between S&T review and the security dimensions of the BTWC states parties have not explored to the same extent as the various aspects of practical treaty implementation or helping governments and delegates understand the significance and implications of S&T advances. In addition, any connectedness of the review mechanism with Article III NAM members are likely to reject as they view any technology transfer controls as contrary to Article X on international cooperation and technology exchanges for peaceful purposes. As mentioned earlier, Iran in particular challenges references to ‘dual use’ as justifications by the West to deny technology transfers. (Iran, Science and technology advances and the application of ‘dual use’, Working Paper 14, 17 December 2015; and Review of Developments in the Field of Science and Technology Related to the Convention -Genome Editing, MX2 Working Paper 6, 6 August 2018.)

Institutional linkages

At this stage, S&T review and Article X implementation are the two issue areas calling for the establishment of a formal mechanism and supplementary staff resources for the ISU. This indicates the potential for trade-offs allowing both projects, which are important to different groups of states parties, to move forward.

The US proposal to have a new position in the ISU to coordinate and assist with Article X implementation is in this respect a significant step towards building external consensus about an S&T review mechanism.

Conclusion

From the informal webinars hosted by the ISU and the UNIDIR study it is clear that ideas for an S&T review mechanism have matured considerably. Different configurations, including the option of an additional staff member in the ISU, are possible and their resource implications the UNIDIR report lays out in some detail. Think tanks have come up with similar outlines (e.g. the presentation by Jennifer Mackby, Federation of American Scientists at the informal ISU webinar of 29 June 2021). Moreover, states advancing proposals expect comments and suggestions from their peers and signal their willingness to find compromise solutions. However, these promising ideas form part of second stage, internal compromises.

The webinars and report also uncovered certain elements that may figure in manoeuvres towards building a unanimous position and potential pitfalls. However, because the ISU organised the webinars in function of the five MX themes – logical as they were in preparation of this summer’s expert meetings rather than next year’s review conference – and UNIDIR examined the possible linkages between a review mechanism and the MX themes, certain issues as they may directly or indirectly affect deliberations on an S&T review mechanism remain unaddressed. Such issues include relationships between S&T review and the core prohibitions in BTWC Article I or the non-proliferation obligation (including to terrorist or criminal entities) in Article III.

What the webinars and report have not revealed are political will or options for reaching a first stage, external compromise, namely consensus on the need to have the review mechanism. The compromise will likely take more trade-offs than just between the S&T review mechanism and Article X implementation. Or even trade-offs wholly unrelated to S&T review given that the idea will not be part of bigger-issue negotiations (such as a treaty or international organisation).

Irrespective of the nature of the compromise, it takes all states parties attending the 9th Review Conference in 2022 to reach that external consensus. It takes only one to ruin the opportunity.

 

Part 1: ‘Within the next 5 to 10 years, it would probably be possible…’

Part 2: Constructive ambiguity, or the insertion of science review in the CWC

Part 3: External consensus building at the 9th BTWC Review Conference