Aiming for a future verification system for the BTWC
This posting is based on comments made during a panel on ‘The Future of Biological Weapons’ at the annual conference of the EU Non-Proliferation and Disarmament Consortium, held in Brussels on 13 November 2024.
Previously
1996 was a year of optimism. Held between the opening for signature (January 1993) and entry into force (April 1997) of the Chemical Weapons Convention (CWC), the Fourth Review Conference of the Biological and Toxin Weapons Convention (BTWC) decided to give the Ad Hoc Group (AHG) a mandate to negotiate a legally binding protocol to equip the BTWC with, among other things, a verification mechanism.
In the preceding years, the BTWC state parties had set up an expert ad hoc group to examine possible verification measures from a scientific and technical viewpoint (VEREX). After four meetings in 1992 and 1993, they came together in a Special Conference in 1994 to consider the VEREX report, which identified 21 possible measures while acknowledging that none of them separately could meet the verification ambitions. The Special Conference set up the AHG and tasked it to explore those measures further and report the outcomes to the Fourth Review Conference.
The optimism, however, suffered a catastrophic blow in the summer of 2001. The US announced that it saw no value in continuing the protocol negotiations. It questioned the premises underlying the negotiations. And during the Fifth Review Conference in December, it also tried to shut down the negotiation mandate. The actions threw the BTWC in disarray. Notwithstanding, the ‘rolling text’ (as the continuously updated draft protocol was commonly known) contained myriad bracketed passages testifying to the persistent divergent views among the AHG participants.
Looking for a verification design
Today, there is a new buzz. There is a hope that the state parties may decide on mechanisms to bolster the BTWC, perhaps ahead of the Tenth Review Conference in 2027, and prepare other decisions. That would include one to set up a verification mechanism. While the buzz does not match the high expectations of 1996, the forward-driving energy is palpable.
Many proposals for future verification have been advanced over the years, but there is little discussion about its base concept. As good as everybody acknowledges that since the 1990s, so much has changed in areas such as science and technology, the industry, the different types of actors, and the nature of the threats. And yet, a lot of thinking seems still locked in the past.
When setting out to design a future verification mechanism for the BTWC, we should answer four basic questions first.
1. Why verify?
As good as all state parties accept the need to make the BTWC verifiable. However, opinions diverge as soon as exchanges touch upon particularities. These differences in views already concern the top-level question about the purpose of verification. For instance, viewing verification as a tool to demonstrate compliance with the BTWC is possible. Still, other states may wish to deter or detect violations and trigger responses through verification.
When negotiating the CWC in the 1980s and 1990s, nobody argued against the verification of the destruction of chemical weapons (CW) and related infrastructure. And nobody denied that in some countries, the private industry was involved in CW production, something the negotiators wished to prevent in the future. Other mechanisms, including challenge inspections or investigations of alleged CW use, were to serve as a deterrent. This broad consensus on principles answered the primary need for verification.
While the BTWC also requires the destruction of biological agents or their conversion to peaceful purposes within nine months after its entry into force (Article II), the negotiators devised no mechanism to oversee the effective implementation of this obligation. In other words, they did not have to build a rationale for verification machinery, so they did not provide one.
The BTWC is nearing its semicentennial. The convention’s greatest challenge will be preventing future biological weapon (BW) armament and re-armament. To equip it with the necessary verification tools, attaining a broad consensus among state parties on the overarching purpose of verification may help launch the undertaking constructively.
In this respect, it would be good for state parties in the Global South to articulate their verification expectations, interests and needs. In the past, especially during the Cold War, the verification debate tended to focus primarily on the East-West security demands. Those insights and experiences will likely be of limited utility for a future BTWC verification system.
2. What to verify?
With an idea of the purpose of verification, it becomes possible to start identifying the objects of verification. Still, the BTWC’s context has changed considerably since its negotiation, its entry into force, and even the AHG. Science and technology have advanced significantly, as have the biotechnology industrial sector and production processes. The current worldwide distribution of biotechnological capacities means that many state parties in the Global South conduct leading-edge research and development activities. In some instances, they have become major exporters of biotechnology or major producers of medical counter-measures for some diseases that affect their regions. These developments, both in the North and the South, have engendered new governance responsibilities concerning biotechnology research and development activities with dual-use potential within their borders and international technology transfers.
With that in mind, one may observe that the obligations in BTWC Articles I (the core prohibition) and II (elimination of all BW) are immutable. In contrast, the ones in Articles III (non-proliferation) and IV (national implementation) depend on actions to be taken by each state party individually. Those actions will be unique to each state because of the national legal systems, specific economic, social and political circumstances, or the nature of threats or challenges they face. In addition, some countries may also insist on verifying the implementation of Article X (cooperation and scientific and technology exchanges for peaceful purposes) and its possible linkages to Article III. Put differently, for the articles demanding state action, the verification objects evolve with time.
The emergence of new types of actors relevant to the BTWC other than states illustrates these challenges and the consequent need for adaptive verification machinery. Besides the research, industrial or trade communities, they also include terrorist or criminal entities who may resort to biological or toxin agents to cause harm.
Moreover, a profound discussion needs to take place on where the responsibilities and roles of individuals (e.g. scientists, biohackers, etc.), economic actors (entrepreneurs, traders, international and transnational companies) and state parties end and those of the international community begin concerning biological risks and threats. Given the aforementioned advancements in the life sciences, the question arises whether a future verification regime should also cover research, a stage in the armament dynamic not mentioned in BTWC Article I. The latter matter may be particularly relevant regarding, for example, criminals, terrorists, or rogue scientists.
One challenge that complicates a straightforward answer to the question of what to verify is the absence of a clear idea of what a BW armament programme may look like today. The knowledge of past programmes in the USA, UK or the Soviet Union may have little bearing on today’s debates. The rise of concerns about terrorism with BW necessitates considering totally different scenarios and, hence, development and production processes.
Another element concerns the investigation of alleged BW use, a matter inevitably closely connected with the development of procedures under Article VII on emergency assistance in case of a threat resulting from a violation of the convention.
Finally, the negotiators will need to resolve whether they want the verification to be ‘adequate’ (i.e. tolerate degrees of uncertainties where there is a low chance of significant security or political threats resulting from a violation), ‘effective’ (i.e. provide sufficient advance warning to be able to take corrective action), or ‘certain’ (i.e. 100 per cent assurances). The meaning of the verification regime’s ‘credibility’ will vary with the selected standard.
3. How to verify?
This third level of questions is perhaps the one that gets the most attention. People look at specific instruments, many of which have been applied in past and still active multilateral, regional or bilateral disarmament, arms control and non-proliferation agreements. These include declarations and their analysis, inspections of military installations, civilian industry, or other infrastructure, as well as ongoing monitoring systems, remote sensing, etc. The role of an international organisation as an independent institution overseeing treaty implementation and interacting with national authorities is central to those ideas.
However, the answers to the two earlier questions will (or at least, should) inform the selection of tools needed for a future BTWC verification system. Other technologies or methodologies may prove more suitable and effective.
Among those emerging options are:
- The utilisation of artificial intelligence for data analysis or detection of anomalies in certain routine operations.
- The application of common standards for facilities (e.g. research laboratories) and the verification of their implementation similar to the functioning of the International Organisation for Standardisation (ISO).
- The exploitation of open-source intelligence (OSINT) for monitoring and verification purposes.
- Methodologies to address assorted hybrid threats, including lawfare and disinformation.
Since starting the intersessional processes in 2003, state parties have explored many thematic areas that may be relevant to the BTWC. However, those matters may fall within the mandate of other international organisations, and state parties may want to defer to the clarification, monitoring or verification tools available to those organisations. They may be the World Health Organisation, Food and Agriculture Organisation, World Organisation for Animal Health, World Customs Organisation, etc. It is essential to keep in view that the BTWC is, at the core, a disarmament treaty prohibiting biological and toxin weapons.
In addition, the necessary collective enforcement mechanisms will need to be considered and developed.
4. Who verifies?
Once there is more clarity about the specific verification tools, the institutions participating in the verification process may be considered.
These can be a dedicated international organisation in combination with individual state parties, civil society, and other institutions, such as agencies responsible for certifying standards, and so on.
Challenges beyond the four questions
While designing verification machinery for the BTWC never was and will never be simple, some elements further complicate the undertaking.
1. The BTWC exists
This observation may appear self-evident, but the situation has two implications.
First, in most weapon control treaties, the verification system was negotiated in conjunction with framing the prohibition (or limitations) and state party obligations. The result was an optimal balance relative to the prevailing political opportunities and constraints shaping the future agreement.
The BTWC has been a functional treaty for five decades, meaning there are many additional understandings and agreements, some of which may lead to additional verification expectations, demands or exclusions.
Also, experiences with other treaties, such as the CWC, will likely shape what state parties may find necessary or unacceptable, leading to possible better solutions or concessions that could compromise the integrity or efficacy of the whole verification undertaking.
Second, the regime against BW will eventually comprise two international treaties with their respective lists of state parties. Initially, a subset of BTWC parties will also have assumed the new obligations.
This situation may lead to issues between, for example, the continuing fulfilment of the CBM expectations under the BTWC and their possible replacement by declarations as part of the verification obligations in the new agreement. Would the CBM process atrophy after the new treaty has entered into force? Would the new organisation assume administrative responsibility for the CBM submissions in addition to its verification tasks, or would the ISU continue to serve the original convention?
Also, the possibility exists that the treaty with verification provisions may end up with an annexed list of states that must ratify the document before it can enter into force, thus potentially leaving it in limbo (not unlike the 1996 Comprehensive Test Ban Treaty).
2. The AHG mandate is still open
Despite the abrupt end of the negotiation of a supplementary protocol that included verification elements in 2001, the AHG mandate remains open. Some state parties may object to opening a new mandate and insist on negotiations based on the existing one.
It should be noted in this respect that the decision by the Ninth Review Conference to establish a Working Group open to all States Parties is ‘without prejudice to the mandate of the Ad Hoc Group established by the Special Conference of 1994 (BWC/SPCONF/01) nor does it supersede, supplant or change it’.
As indicated earlier, the context and challenges facing the BTWC today differ significantly from those three decades ago when the AHG received its negotiation mandate.
In conclusion, these reflections do not indicate pessimism about the BTWC’s future. They simply highlight that a lot of conceptual thinking is still needed to reach broad consensus on the purpose and the objects of verification even before work can begin on a detailed blueprint.
Thank you.
