Prohibiting Chemical and Biological Weapons: Multilateral Regimes and Their Evolution 9781626370968

Citation preview

Prohibiting Chemical and Biological Weapons

Prohibiting Chemical and Biological Weapons Multilateral Regimes and Their Evolution Alexander Kelle

b o u l d e r l o n d o n

Published in the United States of America in 2014 by Lynne Rienner Publishers, Inc. 1800 30th Street, Boulder, Colorado 80301 www.rienner.com and in the United Kingdom by Lynne Rienner Publishers, Inc. 3 Henrietta Street, Covent Garden, London WC2E 8LU © 2014 by Lynne Rienner Publishers, Inc. All rights reserved

Library of Congress Cataloging-in-Publication Data Kelle, Alexander. Prohibiting chemical and biological weapons : multilateral regimes and their evolution / Alexander Kelle. pages cm Includes bibliographical references and index. ISBN 978-1-58826-965-2 (alk. paper) 1. Chemical arms control. 2. Biological arms control. I. Title. JZ5830.K47 2013 327.1'745—dc23 2013014680 British Cataloguing in Publication Data A Cataloguing in Publication record for this book is available from the British Library.

Printed and bound in the United States of America The paper used in this publication meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1992. 5

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Contents

vii

Acknowledgments

1

Introduction: Institutionalism and the CBW Prohibition Regimes

1

2

Chemical and Biological Weapons

21

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The Biological Weapons Prohibition Regime

47

4

The Chemical Weapons Prohibition Regime

101

5

Export Controls and International Cooperation

155

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Terrorism with Chemical and Biological Weapons

175

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Complementing the Multilateral Conventions

197

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Science, Policy, and Institutional Change

221 235 239 275 287

List of Acronyms References Index About the Book

v

Acknowledgments

This book has been in the making for a rather long time, going

back to a Marie Curie individual fellowship that allowed me to work with colleagues in the Department of Peace Studies at the University of Bradford. Subsequent funding from the MacArthur Foundation in the form of a Research and Writing Grant allowed me to deepen my knowledge in some of the science and technology areas addressed in the book, as did funding from the European Union and the Wellcome Trust for work on synthetic biology. Moreover, the University of Bath awarded me a sabbatical in the first half of 2012, which allowed me to finish the manuscript. All this financial and institutional support is gratefully acknowledged. As usual, all views expressed in the pages that follow are my own and should not be attributed to any of the above institutions or any past or current employers. More than institutions, however, it is people who shape our thinking. At the Peace Research Institute Frankfurt, Harald Müller’s work on international regimes has had a lasting impact on my thinking about international institutions. I have benefited equally from—and very much enjoyed—the collaboration with Malcolm Dando and Kathryn Nixdorff on several projects, resulting in a number of joint publications. Elisabetta Linton at Lynne Rienner Publishers was a constant source of encouragement during the preparation of the manuscript. Over the years, numerous colleagues in academia, think tanks, nongovernmental organizations, and the world of diplomacy have shared their knowledge and expertise in the chemical and biological weapons issue areas. My sincere thanks go to all of them. Last, but by no means least, this book could not have been written without the unfailing support of my wife, Sonja. It is to her that I dedicate the book. —Alexander Kelle vii

1 Introduction: Institutionalism and the CBW Prohibition Regimes

The prohibition of chemical and biological weapons (CBW) is

codified in two international regimes. To a large extent they are based on the Chemical Weapons Convention (CWC) and the Biological and Toxin Weapons Convention (BWC), respectively. For the states that have signed up to them, these two international treaties in turn contain a number of obligations, or normative guideposts, for behavior. In order to gain a better understanding of the international prohibition of chemical and biological weapons and its evolution over time, the CBW prohibition regimes and their normative structure are placed at the center of this study.

International Regime–Based Institutionalism as Conceptual Framework Although regularly referred to in the policy-oriented literature, the term regime is often used rather uncritically and without proper definition. This work deviates from such an approach and follows the terminology set out in scholarly debates on international regimes. More generally, as regimes are understood to be a subset of international institutions (Müller 1993; Peters 2011), this study is embedded in the broader academic discourse on institutions and draws on the normative (March and Olsen 2006), historical (Sanders 2006), and constructivist (Hay 2006) variants of the new institutionalism. While putting institutions at the 1

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center of their research programs, the approaches emphasize different aspects of institutional structures and their evolution over time, as well as the room for maneuver of actors taking part in them. For the purposes of this study, these variants of institutionalist theory are used eclectically in order to provide as illuminating an analysis as possible of the two CBW prohibition regimes (Sil and Katzenstein 2010). A formal comparison of the explanatory power of institutionalism’s three variants is not intended. In a broader sense, as Kalevi Holsti has pointed out, international institutions “contain the essential rules of coexistence between states and societies. They are of primary order” (2004: 18). Drawing on Georg Sørensen (2001), Holsti distinguishes between foundational and procedural institutions of the international system. Foundational institutions provide the basic organizing principles for the international system, thereby, inter alia, establishing the actors that populate the system. Procedural institutions, in contrast, establish the rules of the road, providing normative guidance for actors on how to behave toward each other. While the foundational institutions “include sovereignty, territoriality, and the fundamental rules of international law” (Holsti 2004: 25), examples of the latter category are diplomacy, war, and trade. With an understanding of international regimes as issue-area specific subsets of international institutions (discussed later), international regimes draw on both categories of generic international institutions. Holsti identifies three features common to all international institutions. They are characterized by patterned practices, or practices that are routinized, typical and recurrent . . . Institutions are based, usually, on coherent sets of ideas and/or beliefs that describe the needs for the common practices and point out how certain social goals can be achieved through them. . . . Institutions reflect norms, and they include rules. . . . They prescribe how the critical actors or agents should behave. (2004: 21–22; emphasis in original)

The reemergence of institutional scholarship in political science beginning in the mid-1980s with the work of James G. March and Johan P. Olsen has been characterized by an emphasis on norms in institutional analysis. Norms provide standards for behavior and are relevant because they inform what the actors deem appropriate in a particular institutional context. This logic of appropriateness applies to state behavior in an international institution and sets the parameters for insti-

Introduction

3

tutional change, should the need arise. In this latter context the garbagecan model posits that institutions develop a “set of routinized responses to problems and will attempt to use the familiar responses before searching for alternatives that are further away from core values” (Peters 2011: 36). From a normative perspective, institutional learning and a reaction to institutional crises can both trigger change. In sum, normative institutionalists emphasize the structural dimension of institutions, somewhat at the expense of agency, in setting up an institution—thus creating the initial set of norms to guide appropriate behavior by actors in the institutional context—and in the institution’s maintenance and evolution. As a result, this institutionalist approach is more suitable to account for the normative structures that international regimes provide and the conditioning effects these structures have on regime members. For some analysts, known as historical institutionalists, the set of factors present at an institution’s creation has a lasting effect (Sanders 2006). The institution is set on a particular path of operation and development from which it departs only under certain conditions. According to some scholars in this tradition, who regard institutions as particularly sticky, major change only occurs at critical junctures when the institutional equilibrium is punctuated. “The punctuations in the equilibrium are assumed to occur when there are ‘rapid bursts of institutional change followed by long periods of stasis’” (Krasner 1984, quoted in Peters 2011: 78). Recent work in this tradition (e.g., Streeck and Thelen 2005; Mahoney and Thelen 2010), however, has focused more on incremental change, which is seen as manifesting itself in four different forms: displacement of existing normative patterns in institutions by new ones, layering of institutional structures on top of existing ones, normative drift as a result of pressures stemming from the environment of the institution, and conversion of normative structures by utilizing them in different ways in the institutional context. As a recent review of historical institutionalism in international relations scholarship has shown, adoption of this particular branch of institutionalism has been slow despite the fact that historical institutionalism stresses the type of processes that often characterize international relations, including the legacies of founding moments in shaping long-term power relations and whether new ideas become consequential, the ubiquity of unintended consequences and, especially, the prevalence of incremental reform over stasis and fundamental transformations. (Fioretos 2011: 369)

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The prevalence of incremental reform results from four sets of factors: 1. Lock-in effects allow actors with an interest in maintaining institutional structures a veto power to block major change. 2. Positive feedback effects may create beneficiaries under existing normative structures that then develop a vested interest in preventing major change, risking the loss of benefits. 3. These benefits in some institutional contexts may grow over time and result in increasing returns, which provide an additional incentive to prevent complete institutional overhaul. 4. Institutional structures may develop self-reinforcing qualities through collaboration with other institutions (Pierson 2004 and Page 2006, cited in Fioretos 2011: 377). As a result, the historical variant—especially in its sticky form—is the most skeptical branch of institutional analysis in relation to the adaptability of institutions and, by implication, the convergence of states’ expectations and policies as a result of engagement in international institutions, such as international regimes. Constructivist or discursive institutionalism, according to Colin Hay, offers in contrast “the potential to overturn new institutionalism’s characteristic emphasis upon institutional inertia” (2006: 65). Constructivist or discursive institutionalism does so by focusing on ideas and communication processes as important elements in analyzing and understanding institutions. As B. Guy Peters has summarized, the “basic logic of this approach is that institutions are defined by ideas as well as by the manner in which these ideas are communicated within the structure” (2011: 112). Although institutions in this approach are often regarded as much more fluid than in the normative and historical institutionalist accounts, “institutions viewed from the perspective of discourse may represent relatively stable fora in which continuing discussion and redefinition is occurring” (Peters 2011: 113). Constructivist and discursive institutionalism also opens up the somewhat rigid focus on norms as guiding actors in an institutional context and allows for considering ideas originating outside the institution that are affecting it through actors’ perceptions. In other words, such “perceptions about what is feasible, legitimate, possible, and desirable are shaped both by the institutional environment in which they find themselves and by existing policy paradigms and world-views” (Hay 2006: 65). Through the combination of these factors—emphasis on ideas and processes, and

Introduction

5

the opening up of the normative guidance given by institutional norms—the constructivist and discursive variants of the new institutionalism attempt to move beyond the largely path-dependent understanding of institutional change and incorporate what Hay has labeled “pathshaping” change (2006: 65). Thus, the emphasis in constructivist and discursive institutionalism on “ideas, combined to some extent with the emphasis on structure in other approaches to institutions, can provide a more complete interpretation of the complexities of institutional life than can any one approach alone” (Peters 2011: 126). Proposals for providing a fuller picture of institutions and their evolution have also come from moderate historical institutionalists critical of constructivist institutionalism, who assert that one needs to distinguish between two strands of historical institutionalism, the second of which “focuses on active agency within institutional settings and that sees the agents in question as being shaped . . . by their institutional environments” (Bell 2011: 890). Such active agents within an institutional context are conceptualized as possessing “three sets of capabilities and resources, all of which provide useful agent-centered micro-foundations for institutional analysis” (Bell 2011: 893). According to this approach, “agents interpret and construct the experience of their institutional situation using . . . cognitive and normative frameworks and discursive processes” (Bell 2011: 893). Second, imprecise and ambiguous rules and some degree of discretion during norm and rule implementation give actors space to change institutions over time. In addition, if one accepts that institutions reflect a particular distribution of power at the time of their creation, changing power distributions within an institutional setting are bound to lead to demands for change. In this sense, institutions not only constrain agency but also enable it (Mahoney and Thelen 2010). In sum, Stephen Bell argues that in light of these different factors, thinking of “path contingency” rather than “path dependency” in institutional evolution might be more appropriate (2011: 896). In an interesting parallel to the emergence of the new institutionalism, international regime scholarship also came to prominence in the first half of the 1980s. Although the term international regime first entered the vocabulary of international relations theory in the mid1970s in studies on technology management, monetary issues, international trade, and international environmental policy, a so-called consensus definition of international regimes was put forward by Stephen D. Krasner in a special issue of International Organization and later in an edited volume (Krasner 1983). According to this definition, which is applied in this study, international regimes are an issue-area-specific

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subset of international institutions “around which actor expectations converge in a given issue area” (Krasner 1982: 185). International regimes display a four-part structure, consisting of principles, norms, rules, and procedures. As Krasner has summarized, “Principles are beliefs of fact, causation, and rectitude. Norms are standards of behavior defined in terms of rights and obligations. Rules are specific prescriptions or proscriptions for actions. Decision-making procedures are prevailing practices for making and implementing collective choice” (Krasner 1982: 186). Understood in this way, international regimes shape expectations, prescribe roles, guide behavior, and thus create an order among actors on the international level (Müller 1993). This definition also points to the differences between international regimes on the one hand and international organizations and international treaties on the other (Hasenclever, Mayer, and Rittberger 1997). Although many regimes have their structure formalized in a treaty—like the Biological Weapons Convention (BWC) in the case of the biological weapons (BW) prohibition regime—such treaties are purely legal arrangements among states. International regimes—conceptualized as institutions—go beyond this legal dimension. They include state interaction, based on the normative guidelines of the regime, and are socially constructed through the shared expectations and regime-guided behavior of its members. Likewise, many international regimes use an international organization to put the regime’s stipulations into effect and for verifying compliance by regime members; for example, the Organisation for the Prohibition of Chemical Weapons (OPCW) has been set up to oversee implementation of the provisions of the CWC. In this context the OPCW provides a forum for the members of the regime to enact a set of recurrent practices and thereby implement the regime’s provisions. However, the OPCW is not synonymous with the CW prohibition regime. Rather, the organization is an essential tool for realizing the regime’s goals. Another important characteristic of international regimes is their cooperative character, yet international regimes have to be distinguished from other forms of cooperative behavior, such as crisis management, disaster relief activities, and other ad hoc arrangements. Regimes, in contrast, are conceived of as durable cooperative mechanisms. Last, but not least, the issue-area specificity of international regimes needs to be emphasized. For the purposes of this study, issue areas are understood to be consisting “of one or more, in the perception of the actors inseparably connected objects of contention and of the behavior directed to them” (Efinger and Zürn 1990: 68).

Introduction

7

This understanding of international regimes has not enjoyed universal support among scholars. Some regime analysts have questioned whether the four-part structural approach is the best way to define international regimes. The purported wooliness of the concept had been criticized by Susan Strange (1982) and led some to propose a lean definition of international regimes (Young 1986; Keohane 1989). However, as Mark Zacher (1987) and Harald Müller (1993) have shown, such a truncated conceptualization of international regimes does not have the same explanatory power as Krasner’s four-part structural definition. In addition to the initial debates about the concept of international regimes, regime analysis traditionally has focused on three themes (Levy, Young, and Zürn 1995). The first set of questions relates to regime formation: Why and under which conditions are regimes created? Scholars interested in the second set of themes have tried to enrich the debate by identifying the domestic debates and prerequisites that have an impact on regime formation. The third focus of regime analysis has been on the effectiveness of international regimes, which has been most thoroughly explored in the issue area of international environmental policy but also with contributions in the CBW issue areas (Kelle 2003; 2004). In addition, regime research has addressed the related issue of regime robustness (Hasenclever, Mayer, and Rittberger 1997). More recent work has sought to place greater emphasis on nonstate actors in international regimes (Arts 2000); has investigated nonregimes, understood as the absence of international regimes where common sense would expect their creation (Dimitrov 2006; Dimitrov, Sprinz, DiGiusto, and Kelle 2007); and has sought to address regime complexity (Alter and Meunier 2009). Given the unquestionable existence of the CBW prohibition regimes (see Chapters 3 and 4), non-regimes are a moot point for this study. However, as issues concerning nonstate actors and regime complexity relate to the subsequent analysis of the CBW prohibition regimes, I discuss briefly the key contributions regarding these issues. Drawing on sociologist Anthony Giddens’s structuration theory, Bas Arts has proposed to conceive of international regimes and the distribution of actors’ capabilities within them as both “medium and outcome of action. They co-determine human behavior” (2000: 527). He argues that “regimes, once established, shape the conduct of agents, although not unilaterally” (Arts 2000: 531). Corresponding to the discussion of agency and change in institutionalist approaches in a wider sense, Arts allows for different kinds of actors to impact on regime implementation and development. In his view, not only states but also substate actors

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Prohibiting Chemical and Biological Weapons

are relevant in this context. However, as the distribution of capabilities also affects actors’ influence on regime outcomes, one can expect that states will remain the major players in many situations, especially security-related international regimes, by determining continuity or change of institutional structures. Karen Alter and Sophie Meunier put forward a more recent addition to the international regime literature, drawing attention to the increasingly observable phenomenon of regime complexity, which, in their words, “refers to the presence of nested, partially overlapping and parallel international regimes that are not hierarchically ordered” (2009: 13). Based on half a dozen case studies, Alter and Meunier posit that the effects of such complexity do not point in a single direction. Sometimes complexity empowers powerful states actors, while at other times NGOs and weaker actors gain from the overlap of institutions and rules. Sometimes overlap introduces positive feedback effects that enhance cooperation and the effectiveness of any one cooperative regime. Sometimes, however, complexity introduces unhelpful competition across actors, inefficiencies, and transaction costs that end up compromising the objectives of international cooperation and international governance. (2009: 14)

How does the body of academic literature on international institutions and regimes relate to the topic of this book? Starting with regime complexity, only since the late 1960s have the threat of proliferation and, correspondingly, the prohibition of CBW been regarded as two separate issue areas. This change was evidenced by the separation of the negotiations for the BWC in the late 1960s from negotiations on a ban on chemical weapons (Sims 1988). Regime complexity in the issue areas of CBW prohibition is further increased by the existence of the Australia Group of states harmonizing export controls since the mid1980s (see Chapter 5), the UN Secretary-General’s mechanism to investigate the use of biological and chemical weapons, and UN Security Council Resolution 1540—along with the implementation activities set up under this resolution (see Chapter 7). With a view to Arts’s notion of the involvement of additional substate actors in regime evolution, their emergence could be observed most clearly in the BW prohibition regime during the first decade of the twenty-first century in the deliberations between BWC Review Conferences of BWC states parties in the so-called intersessional process (ISP; see Chapter 3). In terms of structural regime components, the BW prohibition regime contains four principles: the first is related to regime partici-

Introduction

9

pants’ belief that the use of biological warfare agents constitutes an abhorrent act of warfare and is therefore prohibited. Sometimes referred to as the BW taboo, this principle was first expressed in the 1925 Geneva Protocol, which states that the “use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilized world” and has been reiterated in the BWC’s preamble. According to the second principle on which the BW prohibition regime is based, peaceful uses of the biosciences are a legitimate undertaking. Article I of the BWC reflects this peaceful-uses principle: Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain: (1) Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes. (OPBW webpage; emphasis added)

From this so-called general-purpose criterion, the third regime principle can be derived. It expresses the belief of states participating in the regime that “protective purposes”—in other words, defenses against the threat or use of BW—are permitted. The fourth principle underlying the BWC prohibition regime is the complementarity principle, again spelled out in the BWC’s preamble: the 1925 Geneva Protocol and the BWC are complementing each other. Nothing in the latter can be construed to contradict the content of the former. No consensus emerged among regime members at the time of the BWC’s creation, however, that the verification of regime-compliant behavior by states parties should be established as a fifth guiding principle for the BW prohibition regime; this feature is the most obvious distinguishing point between the biological weapons and the chemical weapons prohibition regimes. Emerging compliance concerns in the BW realm as well as a favorable global political environment during the second half of the 1980s led to including the verification principle in the CW prohibition regime almost two decades after the BWC was negotiated. The other four mentioned principles of the BW prohibition regime were not only integrated into the CW prohibition regime but are supported by a much denser set of norms, rules, and procedures, as is the case in the BW prohibition regime (see Chapters 3 and 4). As I show in the chapters on the BW and CW prohibition regimes, the actual meaning and interpretation of the regime norms and rules— and, to a lesser degree, of principles—have been far from uncontrover-

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Prohibiting Chemical and Biological Weapons

sial over time. In order to capture better these occasionally diverging interpretations of the two regimes’ stipulations, I employ the notion of “contested compliance” as a means to investigate “changes in the normative structure of world politics” (Wiener 2004: 189). This approach uses “a reflexive understanding of conflictive interaction which implies that the meaning of norms as the dependent variable is embedded in social practice” (Wiener 2004: 191). Echoing Arts’s contribution mentioned earlier, from this perspective, “Norms entail a dual quality. They are constructed and structuring. Hypothetically, the meaning of norms evolves through discursive interventions” (Wiener 2004: 201) that can lead to either the confirmation or the reinterpretation of their meaning, which in turn determines compliance with the norm. Returning to the above mentioned scholarship on international institutions, this approach combines normative and constructivist institutionalism. With a view to broader scholarship on international regimes, this literature has focused mostly on either the formation of new regimes or their structuring effects on the issue area that the regimes regulate and effects on state behavior (e.g., regime effectiveness, compliance research). In Figure 1.1 the boxes for normative regime structure and norm internalization and the arrow connecting the two reflect the latter dimension of regime scholarship. Regime research has not yet captured in a systematic way the processing of regime norms within states that are participating in the regime and its feedback into the evolutionary processes of the regime on the international level. Intrastate analysis has usually stopped with the determination of (non)compliance, at that point shifting the focus of attention to the question of how to deal with noncompliant behavior. This approach, however, leaves unattended much of the identified feedback loop, which either leads to a reconfirmed or changed normative regime structure. As a detailed analysis of norm internalization and discursive or policy interventions by all states parties of the BW and CW prohibition regimes—over forty years in the case of BW and more than fifteen years with respect to CW—is beyond the scope of this study, I focus instead on the contestation of regime principles, norms, and rules on the international level as well as its implications for the evolution of the two regimes. Interventions of BWC and CWC states parties at annual meetings and at five-yearly (quinquennial) review conferences serve as indicators of the attribution of meanings to individual regime norms as well as their operationalization. The separation of prohibitions on CW and BW more than four decades ago has been justifiable on grounds of available scientific and

Introduction

11

Figure 1.1 Feedback Loop of Changed/Reconfirmed Normative Regime Structure at t0 at t1

Normative Regime Structure

Changed/Reconfirmed Normative Regime Structure

Norm Internalization Contestation of Regime Norms

Discursive/Policy Interventions

!

technological (S&T) knowledge as well as political expediency (Tucker 2002). However, S&T advances in the life sciences and the resulting increasing likelihood of the availability of biochemical weapons raise the question of whether the BW-CW distinction and the corresponding regimes set up to prohibit them will be tenable in the longer term (Wheelis 2002; Kelle, Nixdorff, and Dando 2006, 2012). Should the perception of the biochemical threat catch up with the exponential growth of knowledge in the life sciences and its potential for misuse for biochemical weapons, this development might represent a critical juncture for the institutions created for CBW prohibition; a major change might result in the form of a substantial restructuring of the multilateral architecture for prohibiting this kind of weaponry. Were BWC and CWC states parties to take such steps, however, this move would constitute a massive departure from the present tendency toward incremental change. In order to help assess the likelihood of such a major change, I offer in this volume an in-depth analysis of the CBW prohibition regimes and

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complementary institutional arrangements. First I frame the CBW issue areas and offer an overview of the book’s chapters.

The Issue Areas of CBW Prohibition

Chemical and biological weapons were reportedly employed in ancient times, were used through the Middle Ages, and have been the object of substantially increased military interest since the beginning of the twentieth century. Examples of chemical and biological warfare usually quoted in the literature range from the use of toxic—sulfur-containing— smoke by the ancient Greeks and Romans in siege warfare to British settlers’ use of smallpox-contaminated blankets to decimate Native American populations (Wheelis 1999a). However, these isolated incidents do not represent the systematic application of knowledge in chemistry or biology for armed conflict. The use of chemistry and biology to advance military capabilities required acquiring the underlying scientific knowledge in the first place, which did not occur until the late nineteenth century, with industrial chemistry and the advent of bacteriology providing the basis for the offensive CBW programs of the early decades of the twentieth century. In the chemical weapons realm, advances in the chemical industry—in particular, the large-scale liquefaction of chlorine and its storage and transport in pressurized cylinders during the late nineteenth century—provided the technical basis for the first CW attacks during World War I (Robinson 1989). During the 1930s and 1940s, civilian research into a new group of organophosphorous compounds led to the development and production of the nerve agents Tabun, Sarin, and Soman (Martinetz 1995). After World War II, civilian work to exploit the new group of toxic organophosphates continued, leading to the development of even more toxic compounds, some of which the US military adopted during the 1950s and which became known as Vagents (Sidell, Newmark, and McDonough 2008). These developments clearly mirror the ones in the biological weapons area, where civilian scientific and technological advances in bacteriology, virology, aerobiology, and genetic engineering were also exploited for offensive military purposes. According to one comprehensive review, the relationship between scientific developments and BW programs during the twentieth century witnessed “a continuous process of military programs developing on the back of growth in scientific knowledge” (Dando 1999: 51).

Introduction

13

Against this background of continuous exploitation of civilian S&T advances for offensive military CBW programs, the ongoing revolution in the life sciences and supporting technologies—in areas such as drug discovery and development, neuroscience, immunology, and synthetic biology—presents obvious cause for concern that military history will repeat itself (Meselson 2000). These revolutionary developments require continued multilateral efforts to prevent CBW proliferation and use and might very well change the entire conceptualization of chemical and biological weapons. The shifting character of the object of efforts to prevent chemical and biological warfare—and, to a lesser degree, terrorism—may require a fundamental reevaluation of the adequacy of existing institutional structures.

The Plan of the Book

In the next chapter I provide a short overview of the scientific and technological foundations of CBW prohibition in relation to the classical chemical and biological warfare agents developed and produced for offensive state CBW programs. Then I briefly discuss some recent developments in the life and associated sciences, such as the convergence of chemistry and biology and the emergence and implications of synthetic biology. I conclude the next chapter with a short review of defensive measures against CBW, which, as already hinted at, are permissible under the CBW prohibition regimes. As a matter of fact, CBW defenses represent the oldest efforts to counter the threat and use of CBW. During World War I, troops were already equipped with simple gas masks, seeking to prevent the inhalation of CW agents dispersed on the battlefield. After introduction of the less volatile mustard agents, which also act through the skin, individual protection had to cover the whole body. In addition to such physical protection measures, which can be extended to larger groups through air filtration equipment, individual protection measures began to include medical countermeasures against CBW agents. Such efforts include pre- and post-exposure measures and range from vaccination to the administration of antibiotics— or, in cases where none of the above are available, palliative care. From the perspective of the CBW prohibition regimes, CBW defenses are unproblematic as long as they do not raise suspicions that they may be a cover for clandestine offensive CBW procurement activities. Hence, I address issues involved in distinguishing defensive from offensive CBW activities.

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The two multilateral CBW prohibition regimes are the focus of my analysis in Chapters 3 and 4. Both of these regimes are based on early normative guidelines for state action that date back to the 1925 Geneva Protocol. During the 1925 Geneva Conference on the Supervision of the International Traffic in Arms, the United States proposed an export prohibition for poisonous gases, which upon a French suggestion was extended to cover their use as well. A Polish initiative expanded the prohibition of use to bacteriological weapons; the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare can be regarded as the foundation upon which the CBW prohibition regimes rest (SIPRI 1971). Further development of this rudimentary no-first-use regime was contemplated during the 1960s when negotiations on CW and BW considered banning both categories of weapons by an international agreement (SIPRI 1971). However, following a British diplomatic initiative, negotiations were separated, leading to the conclusion of the 1972 Biological and Toxin Weapons Convention (BWC), which came into force in 1975 (Wright 2002). Unlike biological weapons, chemical weapons had been used in warfare and continued until the 1980s to have a role, albeit a limited one, in the military strategies of the North Atlantic Treaty Organization (NATO) and the Warsaw Pact. Only during the final stages of the Cold War at the beginning of the 1990s did a window of opportunity open for concluding negotiations of the Chemical Weapons Convention (CWC). The CWC was opened for signature in January 1993 and entered into force in April 1997. In Chapter 3 I present an in-depth analysis of the major elements of the multilateral BW prohibition regime as they relate to the 1972 BWC. I begin with a short history of multilateral disarmament efforts leading up to the BWC and subsequently discuss the regime’s normative and organizational structures. The absence of a verification principle and of an implementing organization led to several sequential attempts to strengthen the regime, among other ways, through establishing a transparency norm, the negotiation of a Compliance Protocol, and improved national implementation measures. Analysis of the thirty-five-plus-year implementation history of the BWC constitutes the major part of the chapter, structured around key norms of the regime, both established ones and additions negotiated subsequently. I first discuss early concerns about noncompliance with the disarmament norm of the regime in relation to the Soviet offensive military BW program. The first two of the five-yearly BWC Review Conferences (1986 and 1991) resulted in agreement among BWC states parties on a set of so-called Confidence-

Introduction

15

Building Measures (CBM). Then I analyze several more key norms of the regime, including the transparency, investigation, internalization, assistance, and adaptation norms. Efforts by the Ad Hoc Group (AHG) of states parties during the second half of the 1990s aimed at broadening the normative base of the regime by negotiating a legally binding Compliance Protocol and including a number of proposals for establishing declaration and inspection norms, are also reviewed. After the United States terminated the AHG process in 2001, efforts to broaden the normative base of the regime were abandoned in favor of a greater emphasis on improving the implementation of several existing regime norms. Proposals in this regard have been discussed in the intersessional processes (ISP) that have taken place since 2003. Somewhat to the surprise of observers and participants in this process, the first ISP cycle had yielded some useful insights into actual implementation of the BWC and has thus been renewed after the Sixth and Seventh BWC Review Conferences, respectively. I close Chapter 3 with a summary of the evolution of the BW prohibition regime and an assessment of the implications that the renewed ISP might have for the future of the multilateral BW prohibition regime in the aftermath of the Seventh BWC Review Conference in December 2011. Similar to my presentation in Chapter 3, Chapter 4 on chemical weapons starts with a short overview of multilateral arms control efforts culminating in the 1993 CWC; I also discuss normative and organizational structures, followed with an in-depth analysis of treaty implementation since the CWC’s entry into force in April 1997. One of the key elements of the CW prohibition regime—in contrast to the BW prohibition regime—is the complete destruction of declared CW stocks under strict international verification. My discussion of the different regime norms and their implementation begins with analysis of the disarmament norm, which obliges the declared CW possessor states to destroy their CW stockpiles in a specified time frame. I then offer a critical assessment of the non-acquisition norm, which may come under threat as some CWC states parties are showing increasing interest in so-called incapacitating chemical agents (ICA). The declaration and inspection norms are relevant to a number of other prescriptions and proscriptions for state action, but I discuss them in the context of their central importance to the nonproliferation dimension of the regime related to preventing the re-emergence of chemical weapons. Further analysis of the internalization, consultation, investigation, assistance, and adaptation norms sheds light on these important normative elements of the regime and their implementation by CWC states parties and the Technical Sec-

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retariat (TS) of the organization specifically set up to oversee implementation of the CWC: the Organization for the Prohibition of Chemical Weapons (OPCW). The detailed review of these norms informs the concluding section of this chapter, which takes stock of the CW prohibition regime in the run-up to the Third CWC Review Conference in spring 2013. As indicated during the discussion of regime complexity, the core elements of the CBW prohibition regimes—the CWC and the BWC— are complemented by a number of additional institutional arrangements at the international level in order to prevent the proliferation and use of CBW. CBW-related dual-use export controls have been one key element of these measures. Beginning in the mid-1980s an initial group of fifteen states under Australian leadership agreed upon the harmonization of their national export controls for CBW-related knowledge, technologies, material, and equipment. The formation of the so-called Australia Group was prompted by the realization of participating states that some of their dual-use exports had found their way into the Iraqi CBW programs. At the time, formation of the Australia Group was regarded as an interim measure until a multilateral ban on CW under international verification was completed. Yet, despite the CWC being in effect for more than fifteen years now, the Australia Group has not been discontinued. Quite to the contrary, the Australia Group has since expanded the scope of its activities and has attracted new participating states as well, raising interesting questions in relation to regime complexity and the stickiness of this particular part of the CBW prohibition regimes. Therefore, I devote Chapter 5 to a discussion of the raison d’être of export controls in general, an analysis of the Australia Group’s evolution over the last quarter century, and its relationship to the two conventions that form the core of the CW and BW prohibition regimes—in particular, their nontransfer and cooperation norms. In Chapter 6 I address what many analysts and policymakers since the second half of the 1990s have identified as the second big challenge for the CBW prohibition regimes—in addition to the existing one posed by the S&T advances discussed in Chapter 2: the emergence of substate actors, especially terrorist groups or even individuals, who were increasingly perceived as credible perpetrators of chemical and biological attacks with a potential to cause mass casualties. The March 1995 Sarin nerve gas attack in the Tokyo subway system by the millenarian Aum Shinrikyo cult is the often-quoted wake-up call that focused attention of policymakers, scholars, and the wider public on this emerging security threat. The attack, which represented the culmination of a

Introduction

17

series of attempts by the Aum cult to employ CBW agents, killed twelve and resulted in the hospitalization of more than one thousand commuters, but also first responders, who inhaled the toxic Sarin vapors. This incident resulted in the exponential growth of academic and policy debates on CBW terrorism, particularly in the United States. The anthrax attacks in the fall of 2001 following the terrorist attacks on the World Trade Center and the Pentagon on 11 September 2001 seemed to confirm dramatically the views of analysts who regarded the question of whether terrorists can use CBW to cause mass casualties as overtaken by events and for whom the only questions worth pondering were about when and how such attacks were going to happen. Although since those anthrax attacks in 2001, no terrorist group has conducted a successful mass casualty attack with CBW, the threat perception shifted dramatically at the turn of the millennium and resulted in substantial policy changes in many countries—again, most notably, the United States. The changed threat perception has resulted in biosecurity and biodefense-oriented political measures receiving by far the largest amounts of additional funding. Overall, the changed threat perceptions concerning CBW terrorism have also affected the CBW prohibition regimes. My argument in Chapter 6 proceeds in three steps: first, revisiting the lack of interest of traditional terrorist groups in CBW. Second, I address the supposed new terrorists’ willingness and ability to use CBW, in the process analyzing the political and moral hurdles to overcome and the technical and organizational challenges to master. In the third section of the chapter, I trace the discussion of CBW terrorist threats in the two CBW prohibition regimes, the responses formulated to counter this emerging threat, and the resulting impact on the normative structure of the two regimes. In Chapter 7 I discuss further institutional arrangements that have been added over the past quarter century to the multilateral treaties forming the core of the CBW prohibition regimes analyzed in Chapters 3 and 4 and the export control activities of the Australia Group discussed in Chapter 5. These institutional elements all contribute to a web of responses to CBW threats (Kelle, Nixdorff, and Dando 2012), thereby increasing regime complexity. These responses are characterized by varying scope and have taken different forms, such as involving either a subset of regime members—as in the case of the Proliferation Security Initiative—or setting up a temporary parallel institution that has relied on and created additional UN infrastructure. In two cases— the UN Secretary-General’s Mechanism to Investigate Chemical and Biological Weapons Use and UN Security Council Resolution 1540—

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their regulatory reach goes well beyond membership in either of the two prohibition regimes. In tracing the growth of regime complexity historically, the first of these additional institutional mechanisms to consider is the UN Secretary-General’s Mechanism to Investigate Chemical and Biological Weapons Use dating back to 1982 (Littlewood 2006). The second institutional mechanism was created in the form of the UN Special Commission on Iraq (UNSCOM), set up in 1991 to oversee the disarmament of Iraqi nuclear, biological, and chemical (NBC) weapons (Black 2002). UNSCOM was later replaced by the UN Monitoring, Verification, and Inspection Commission (UNMOVIC) when the original inspection mandate was judged to be insufficient in light of Iraqi obstructions to UNSCOM’s verification efforts (Smithson 2011). Notably, the inspection regime set up for Iraq was coercive in character as it had its roots in the cease-fire conditions imposed upon Iraq by the UN Security Council and as such is not part of the CBW prohibition regimes. All international regimes rely on the voluntary accession of its members. As a result, under UNSCOM the cooperative character of the CBW prohibition regimes was largely missing. In addition, UNSCOM’s and UNMOVIC’s activities had their legal foundation in a series of resolutions adopted by the UN Security Council, not in a multilateral treaty. In contrast, the Proliferation Security Initiative (PSI) started out as a national initiative that was announced by then US president George W. Bush in May 2003. Its goal is to enable the interdiction of NBC weapons, components, and delivery systems while in transit. With a view to the scope of this study, PSI seeks to address CBW proliferation once the export control measures analyzed in Chapter 5 have either failed or were not in existence at all. The core group of eleven states participating in PSI from the outset had grown to more than one hundred states by the end of 2012. All of them subscribe to a set of interdiction principles, and some have entered into bilateral ship-boarding agreements with the United States in an effort to provide the legal basis for interdiction activities on the high seas. Less than one year after PSI was initiated, the UN Security Council took action to prevent the proliferation of NBC weapons to nonstate actors. Resolution 1540, adopted on 28 April 2004 under Chapter VII of the UN Charter, calls on all UN member states—not just members of any of the NBC disarmament and nonproliferation treaties—to take effective action to prevent the proliferation of NBC weapons to nonstate actors, such as terrorist groups. The resolution establishes a reporting

Introduction

19

requirement that is legally binding on all UN members and has set up a committee to receive and process national reports and assist with the implementation of the resolution. Given the lack of transparency in the BW prohibition regime—and, to a considerably lesser extent, also in the CW regime—these declaration and assistance mechanisms represent potentially useful additions to the normative fabric of the CBW prohibition regimes. Thus, in Chapter 7 I address regime complexity in the CBW issue areas by discussing the UN Secretary-General’s investigative mechanism, the inspection regime set up for Iraqi NBC disarmament as well as the supply-side efforts contained in PSI, and the activities under UNSC Resolution 1540 (2004) and its reaffirmation in subsequent UN Security Council resolutions. I analyze these institutional structures with a view to their relationship to and capability for strengthening the existing multilateral CBW prohibition, and thereby complementing core norms of the CBW prohibition regimes. In Chapter 8 I summarize the arguments developed in the individual chapters of this study and link them back to the S&T dimension as well as the changing political contexts informing the evolution of the CBW prohibition regimes. I also revisit some of the central concepts developed in this introductory chapter in relation to regime evolution and complexity, as well as review more broadly the determinants and manifestations of institutional change.

2 Chemical and Biological Weapons

Chemistry and biology have traditionally been the enablers of

the development, production, and use of chemical and biological warfare agents and weapons. As one study has clearly shown for biological weapons (BW), their development throughout the twentieth century has been a function of the state of the art in biology and the life sciences more generally (Dando 1999). Beginning with advances in bacteriology in the late 1800s—used for BW sabotage efforts during World War I (Wheelis 1999b); through to the scientific and technological (S&T) breakthroughs in virology and aerobiology that informed the large-scale mid-twentieth-century programs of a number of countries (Wheelis, Rosza, and Dando 2006); to the early stages of genetic engineering, which found its way in the past offensive Soviet BW program (Tucker 1999; Kelly 2002; Leitenberg and Zilinskas 2012); cutting-edge life sciences research always held considerable attraction for military planners. Based on a comprehensive review, one observer has concluded that the “history of biological warfare strongly suggests that if there are offensive military programs today and in the future they will almost certainly use the capabilities made available by the ongoing revolution in biology and medicine” (Dando 1999: 51). Consequently, efforts to prohibit chemical and biological weapons (CBW) via the two prohibition regimes analyzed in detail in the subsequent two chapters as well as the implementation of such prohibitions

21

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have to be based on the state of the art in chemistry and biology, respectively. While general normative “do not acquire or use biological weapons” prescriptions or proscriptions can be formulated without indepth scientific knowledge, given the dual-use nature of much scientific research and development, the implementation, verification, or assessment of compliance with such stipulations cannot. The notion of dualuse is of central importance in this context. In its simplest form, dualuse refers to the fact that something can be used for beneficial (intended) and harmful (either intended or, often the case, unintended) purposes. Ronald M. Atlas and Malcolm Dando (2006) distinguish between three categories of CBW-related dual-use. According to their typology, dual-use issues can occur in relation to facilities, equipment and agents, and knowledge. In all of these areas there is “the need to balance the quest for advancing biomedical research and biotechnology with the need to prevent the development of biological weapons for biocrimes, bioterrorism, or biowarfare” (Atlas and Dando 2006: 276). The authors further expand this point in relation to dual-use facilities: “Many of the facilities that form the basis for the production of vaccines, pharmaceuticals, and biotechnology products and for the support services needed to diagnose infectious diseases have dual-use potential in that they can be used to cloak clandestine activities” (Atlas and Dando 2006: 278). Jonathan Tucker’s distinction between dual-use “materials, hardware, and knowledge that have peaceful applications but could also be exploited for the illicit production of nuclear, chemical, or biological weapons” largely overlaps with the one that Atlas and Dando proposed (Tucker 2012a: 2). Tucker illustrates the dual-use problem by reference to “certain ingredients in the production of inks, pesticides, and fire retardants [that] are also precursors, or intermediates, in the production of chemical warfare agents” (Tucker 2012a: 2). As “nearly every technology has some potential for misuse” (Tucker 2012a: 3), Tucker suggests limiting the analysis of dual-use innovations of concern to those that “offer a significant qualitative or quantitative increase in destructive power over what is currently available” (Tucker 2012a: 3). As the controversy in early 2012 over the publication of A/H5N1 influenza transmissibility research results has demonstrated, the governance of dual-use knowledge potentially creates even bigger problems than preventing the misuse of facilities or materials. This controversy was triggered by the submission for publication to highly respected sci-

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entific journals—Nature and Science—of two manuscripts describing the genetic engineering of highly lethal H5N1 avian influenza virus to make it more transmissible among mammals. Although the research was carried out in the United States and the Netherlands, respectively, both studies were approved and funded by the US National Institutes of Health. After lengthy debates, both manuscripts were ultimately published in modified form (Enserink and Cohen 2012; Yong 2012). While some observers have applauded the fact that the journals’ prepublication review did catch the dual-use biosecurity concerns inherent in the research results, this line of reasoning misses two larger points. First, as Laura Kahn has argued for the US domestic level, “The H5N1 avian influenza study represents a failure in the life sciences research oversight system” (2012: 244). This system should have spotted the biosecurity implications of the H5N1 transmissibility studies much earlier at the stage of project approval, which, as Kahn reminds us, would have been easy in the US context, had the recommendations of the so-called Fink Committee been implemented (National Research Council 2004). The study conducted in the Netherlands demonstrates that the problem of oversight goes beyond the US national level and clearly points out the need for an international biosecurity agency or international organization to oversee implementation of the Biological Weapons Convention (BWC). As I discuss in Chapter 3, such an organization does not exist in the BW prohibition regime. With its continued absence, any future deliberations on similar dual-use research of biosecurity concern will most likely be discussed at the World Health Organization (WHO)—as was the H5N1 research at a meeting in spring 2012. Given its institutional mandate, the WHO and the experts it invited to this meeting not surprisingly put a higher emphasis on the potential public health benefits of the research conducted (which are by no means certain) and advocated its publication. Such a public health emphasis can be problematic in deciding on biosecurity-relevant dual-use issues. In order to provide a better understanding of the underlying science and technology involved and to delineate the scope of the issue areas addressed by the CBW prohibition regimes, I discuss in this chapter (1) the main biological and chemical warfare agents; (2) recent S&T developments in the life and associated sciences that, if left unchecked, can be expected to attract offensive state military or, further in the future, terrorist interest in their use for harmful purposes; and (3) defensive measures against CBW.

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Just What Are Chemical and Biological Weapons?

One of the most widespread misconceptions in the CBW issue areas relates to the confusion of pathogens, agents, and weapons, which are often mistakenly treated as synonymous. To illustrate this point with reference to BW, pathogens are microorganisms that are able to cause disease. However, simply collecting such a pathogen in the wild or growing it in the laboratory would not in itself make it an efficient biowarfare agent. Therefore, states that have engaged in offensive BW programs during the twentieth century have found it necessary to take a number of additional steps to convert a pathogen into a militarily useful biowarfare agent. Chemical or biological warfare agents—which also include toxins, bioregulators, and other biochemical agents—in turn are merely the base material that, when combined with a suitable delivery system (a rocket warhead, bomb, or aerosol dispersal device), makes up a chemical or biological weapon. In the following discussion, I focus on chemical and biological warfare agents to provide some background information for the subsequent discussion of recent S&T advances in the life sciences. Chemical Warfare Agents

The term chemical warfare agent is understood to comprise toxic chemicals that have been developed, produced, or used in a military context with the intention of using their toxicity to humans, animals, or plants as its primary weapons characteristic. This definition excludes a considerable number of toxic chemicals used in a military environment that serve other purposes; for example, rocket fuel, which is highly toxic, has as its primary purpose the propulsion of a missile. On the other hand, this definition goes beyond that used in the Chemical Weapons Convention (CWC): according to the CWC’s Article II, only those toxic chemicals are deemed to be CW “which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals” (cf. OPCW webpage; emphasis added). The omission of plants in this definition clearly separates the CWC definition from the comparable one in the BWC and goes back to US unwillingness during CWC negotiations to have plants included. Yet the CWC’s description points to an important ideal-type functional distinction of chemical warfare agents. They can be used with the intention to kill, harm permanently, or incapacitate temporarily. At the same time, no clear-cut distinction exists between lethal and nonlethal chemical

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warfare agents. Rather, with many toxic agents, “there is a gradual increase in the probability of causing death, as the dose increases” (WHO 1970: 27). The probability of a chemical warfare agent being lethal or nonlethal, in turn, depends on the toxicity of the agent, its mode of employment, and the target’s susceptibility or responsiveness to the agent. Yet, as Dando and Furmanski have concluded, the effort in past military programs to identify such a nonlethal (bio)chemical warfare agent “during the Cold War was a distinct failure. Given the number of deaths of hostages in the attempt to use a fentanyl derivative to break the Moscow theater hostage siege in 2002, it is also probable that the Soviet Union was no more successful at that time” (Dando and Furmanski 2006: 250–251). This theater siege lasted for three days, during which two hostages were killed. When the Russian security forces stormed the building to free the hostages, they did so only after large quantities of a gas were pumped into the theater. The gas, whose identity initially remained undisclosed but later was determined to be a fentanyl derivative—a powerful analgesic—killed almost 16 percent of the hostages. As this exercise to rescue the hostages in the Moscow theater clearly demonstrates, one of the major problems with so-called nonlethal chemical incapacitants is that they do not exist. The death toll of around 16 percent does not represent a significant difference to other types of weapons, usually assumed to be “lethal” in their effects. Use of firearms, for example, has a lethality of 35 percent, land mines kill around 20 percent of their victims, and grenades approximately 10 percent. The chemical weapons used on the battlefields of World War I— prohibited today under the 1993 CWC and that nobody would dispute to qualify as chemical weapons—in fact had a lethality rate of only 7 percent (ICRC 1997). Toxic chemicals that have been developed, produced, and used as CW agents are usually subdivided into four categories: pulmonary toxicants, blood agents, vesicants, and nerve agents. The first three of these types of CW agents were developed and used on a large scale as chemical weapons during World War I. They were built on advances in the “large-scale liquefaction of chlorine gas and its packaging into pressure cylinders” (Robinson 1998: 18) as enablers of the first CW programs in the lead-up to World War I. Pulmonary toxicants, sometimes referred to as lung irritants or choking gases—such as chlorine or phosgene—were the most widely used CW agents during World War I. According to some estimates they account for more than 80 percent of the fatalities attributable to chemical warfare on the World War I battlefields (WHO 1970). During World

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War II they were stored in the CW arsenals of many belligerent states, although without being used. To the present time, chlorine and phosgene are utilized on a large scale as industrial chemicals in a variety of applications. Phosgene, for example, is used in the manufacture of aniline dyes, polycarbonate resins, coal tar, pesticides, isocyanates, polyurethane, and pharmaceuticals . . . Exposures related to the heating or combustion of chlorinated organic compounds, such as carbon tetrachloride, chloroform, and methylene chloride, also occur. . . . These products are found in common household solvents, paint removers, and dry cleaning fluids. (Noltkamper and Burgher 2011)

When inhaled, phosgene in lower doses causes a transitory irritation of the mucus membranes of the respiratory tract. Between one and twenty-four hours after exposure patients develop “bronchiolar constriction, acute pulmonary inflammation, [and] pulmonary edema” (WHO 1970: 28). In addition, necrosis of bronchial and lung tissue may develop, especially when inhaled in higher doses. Through the destruction of lung tissue, increasing amounts of blood plasma gather in the lungs, with their capability to provide for oxygen exchange decreasing simultaneously. Severe pulmonary phosgene intoxication eventually leads to death through suffocation. Treatment depends on the severity of exposure and ranges from simply moving those exposed to lower doses of phosgene to fresh air and providing them with oxygen supplementary to medical treatment, mechanical ventilation, and monitoring through serial chest X-rays for those exposed to higher doses of phosgene (Sifton 2002). Blood agents like hydrogen cyanide (HCN) or cyanogen chloride (ClCN) were first developed for chemical warfare purposes early in World War I. However, because of their physical properties they were used for only a short period of time by the military of either side. The extreme volatility of the cyanides made it impossible to produce them in high enough concentrations on the open battlefield. Current industrial uses of cyanide-based compounds are found “in various industries. Estimates of use ‘for hydrogen cyanide in the United States are adiponitrile for nylon, 41%; acetone cyanohydrin for acrylic plastics, 28%; sodium cyanide for gold recovery, 13%; cyanuric chloride for pesticides and other agriculture products, 9%’” (US Department of Labor, Occupational Health and Safety Administration 2010: 3). In addition, hydrogen cyanide has been used in some US states for the judicial execution of convicted criminals.

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Blood agents derive their name from their interaction with enzymes responsible for oxygen uptake from the blood, or the transfer of carbon dioxide back from tissue cells to the blood. Symptoms vary according to route of poisoning and dose level. High doses of respiratory intake of hydrogen cyanide can result in sudden unconsciousness and subsequent respiratory failure leading to death. “Lower concentrations may produce tachypnea, restlessness, headache, and palpitations followed by seizures, coma, and death” (Noeller 2001: 1006). As Steven I. Baskin and colleagues have summarized concerning the treatment of cyanide poisoning, the fundamental principles of toxicologic therapies apply to treatment of cyanide-injured casualties. The first is to recognize the situation and to protect those responding. The second is to rapidly intervene to avoid unnecessary complications. The third is to provide supportive measures according to the extent of injury. And the fourth is to provide specific antidotes even in the absence of confirmatory laboratory testing while controlling for undesirable side effects. (Baskin et al. 2008: 386)

Two categories of vesicants, or blistering agents, have to be distinguished. One is the mustard agents (sulfur and nitrogen mustard); the other is a group of arsenic agents, including the so-called lewisite. Both were used extensively during World War I and stockpiled on a large scale during World War II. In the case of mustard, Iraq also used it during the 1980s in its war against Iran. Given its ease of production, mustard is still considered a major CW agent. According to one account, 70 percent of World War I CW casualties were caused by mustard, despite the fact that it was only introduced to the battlefield during the last year of the war. Of those receiving treatment for mustard poisoning, only slightly above 2 percent fatalities have been recorded (Hurst et al. 2008). As described by one study, mustard agents can be dispersed in the form of gas or liquid, attacking the skin, eyes, lungs, and gastrointestinal tract. Mustard can also lead to damage to internal organs, as a result of dermal or inhalational exposure (Ivarsson, Nilsson, and Santesson 1992). Only symptomatic treatment is available for mustard exposure, including decontamination and medical treatment to prevent infection of the burn or blister wounds. Nerve agents can be usefully grouped into three stages of evolution. Civilian research into a new group of organophosphorous compounds in the context of research on plastic additives and fertilizers led to the development and production of the first nerve agent, tabun, in Decem-

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ber 1936. This discovery was followed by the synthesis of sarin in 1939 and soman in 1944. After World War II, civilian work to exploit the new group of toxic organophosphates continued, leading to the development of even more toxic compounds, some of which were introduced as pesticides but then had to be withdrawn again due to their toxicity to humans. One of these supertoxic second-generation nerve agents was adopted by the US military and became known as VX chemical warfare agent during the 1950s (Martinetz 1995). During the 1980s the Soviet Union developed the so-called Novichok binary nerve agents as part of its Foliant program (Tucker 2006a). All nerve agents are extremely toxic and fast acting, and they can enter the human body as gas, aerosol, or liquid. Symptoms vary depending on the type of exposure, but in all cases the mechanism of action relies on inhibiting the normal biological activity of a vital enzyme—acetylcholinesterase—in the nervous system (Ivarsson, Nilsson, and Santesson 1992). The antidote of choice for treating nerve agent poisoning has traditionally been and continues to be atropine (Sidell, Newmark, and McDonough 2008). Biological and Toxin Warfare Agents

Biological and toxin warfare agents are often subdivided into viruses, rickettsiae, bacteria, and toxins. While the first three are replicating biological agents, toxins are poisons produced by living organisms, some have for some time already been synthesized in the laboratory. As more detailed descriptions of biological and toxin warfare agents are available elsewhere, here I discuss only a few examples across the four categories for illustrative purposes. Before its eradication in 1980, variola, the causative agent of smallpox, is estimated to have killed more than 500 million people worldwide during the twentieth century alone. Due to this historical record, variola is considered by many analysts to be “one of the most significant bioterrorist threat agents” (Jahrling et al. 2007: 216). Although eradicated, small amounts of the virus have been kept in US and Russian high-security storage facilities. In addition, the DNA blueprint of the virus is well known; with the emergence of synthetic biology techniques, as discussed later, the virus might be resurrected in the future, as was the strain of influenza that caused the 1918 flu pandemic. The unexpected research results involving the genetic modification of a mousepox virus—a relative of the one causing smallpox—have raised additional concerns among many biosecurity experts. In this experiment by Australian researchers, the modified virus displayed a substantially

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increased virulence and also killed mice that had been vaccinated (National Research Council 2004). If a similar modification could be made to variola, an aggressor could perhaps overcome existing residual immunity and outflank existing vaccines. Among the rickettsial agents, Q Fever results from the agent Coxiella burnetii. It is a zoonotic disease with global spread and “although rarely life-threatening, can be temporarily incapacitating. Humans usually contract the disease by inhaling barnyard dust” (Waag 2007: 200). Thus C. burnetii can be transmitted by aerosol, unlike the other rickettsia, which are transmitted by an arthropod vector. The causative agent of Q fever is relatively resistant to environmental pressures, such as temperature changes and humidity, and can be easily grown in chicken embryos. “Because of its high infectivity and stability in the environment, C burnetii is listed as a Category B biothreat agent” in the United States (Waag 2007: 200). Among the bacterial agents, Bacillus anthracis, the causative agent of anthrax, has acquired the greatest notoriety after anthrax spores were sent through the US postal system in the fall of 2001. Bacillus anthracis is a common bacterium found in the soil in many parts of the world and has been linked to many naturally occurring outbreaks of both the cutaneous and the inhalational forms of the disease. When under stress the bacteria form hardy spores that can persist in the environment for years. The spores are easily produced in a laboratory environment, have been grown to exhibit antibiotic resistance, and have undergone extensive studies on their aerosol dispersal. “Heavy concentrations of anthrax spores in aerosols are feasible. This could result in 70–80% fatalities in untreated cases” (WHO 1970: 74). Symptoms of an infection via the inhalational route can quickly move from flulike symptoms to massive edema hemorrhaging and eventual death—hence the need to start treatment with antibiotics as early as possible. Botulinum toxin is produced by the bacterial agent Clostridium botulinum. Other toxins, such as ricin, are produced by plants or by dynoflagellates (primarily marine algae)—as in the case of saxitoxin, both of which are listed on the Schedule of Chemicals of the CWC. Botulinum toxin is often considered to be a particularly relevant threat agent because it is the most poisonous substance known. The bacteria often grow on poorly preserved food, which when ingested causes a severe form of food poisoning (botulism) within one to three days. Symptoms usually include stomach pains, diarrhea, disturbances to vision, giddiness, and muscular weakness. When left untreated, the whole body—including the respiratory musculature—becomes para-

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lyzed, leading to death by suffocation in just a few days. Given its high toxicity, “Botulinum neurotoxin has been developed as a biological weapon by many countries, including Japan, Germany, the United States, Russia, and Iraq” (Dembek, Smith, and Rusnak 2007: 338). However, not all toxins have a lethal outcome. One that is often associated with food poisoning is Staphylococcus enterotoxin type B (SEB), produced by the Staphylococcus aureus bacteria. However, in contrast to humans exposed to botulinum toxin, people exposed to SEB usually recover within twenty-four hours without any treatment.

The Biotechnology and Life Sciences Revolution and the Evolving CBW Threat Spectrum

In order to put into perspective the threat emanating from a potential weapons-related misuse of recent developments in modern biotechnology and the life sciences, it is useful to recall briefly the main lines of biotechnology development, the foundations of which were laid in 1973 with the invention of recombinant DNA technology by Stanley Cohen and Herbert Boyer. These researchers successfully inserted a toad gene into bacterial DNA. In 1977 William Rutter and Howard Goodman produced the first recombinant rat insulin. Five years later, genetically engineered human insulin became commercially available. Most of the basic research at the start of the biotechnology age was done at university laboratories, and only a few start-ups marked the beginnings of commercial biotechnology in the late 1970s and early 1980s. By the end of the twentieth century, however, most major pharmaceutical companies had moved into the area, and the worldwide number of biotech companies had grown to several thousand. The dual-use character of many of the numerous new processes and applications in the biotechnology field has also resulted in more opportunities for misuse of these advances for malign purposes. As a panel of life sciences experts concluded in an assessment of the threat of advanced BW based on biotechnological methods and processes that had been conducted for the CIA, other classes of unconventional pathogens that may arise in the next decade and beyond include binary BW agents that only become effective when two components are combined . . . ; “designer” BW agents created to be antibiotic resistant or to evade an immune response; weaponized gene therapy vectors that effect permanent change in the

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victim’s genetic makeup; or a “stealth” virus, which could lie dormant inside the victim for an extended period before being triggered. (Central Intelligence Agency 2003: 1–2)

These concerns have been echoed by three US defense analysts (Petro, Plasse, and McNulty 2003), who expect the evolution of biological warfare agents to unfold in three phases, the first of which is characterized by traditional biological warfare agents. The second phase in their expected evolution of BW encompasses genetically modified traditional agents. This started with the late–Cold War Soviet BW program. In these analysts’ projection, the third phase will see the emergence of advanced biological warfare (ABW) agents. Given the much-improved understandings of different regulatory systems in the human body, and assuming that knowledge in these areas—especially in relation to receptors in the immune or nervous system—will continue to accumulate, an ever increasing number of targets will become available for which specific ABW agents could be designed (Kelle, Nixdorff, and Dando 2006). The resulting biochemical weapons would be able to attack essential physiological functions such as respiration, blood pressure, heart rate, body temperature, and consciousness, as well as innate and adaptive immune responses. According to James B. Petro, T. R. Plasse, and J. A. McNulty this “capability-based threat posed by ABW agents will continue to expand indefinitely in parallel with advances in biotechnology” (2003: 162). Progress in vector and aerosol technologies that allow targeting biological agents to specific receptors has been shown to compound the above capabilities (Nixdorff 2010). As one recent study has pointed out, “It is important to realize that such ABW agents that can manipulate life processes have the properties of both biological and chemical substances (bioactive chemicals), and are thus relevant for both chemical and biological weapons control” (Kelle, Nixdorff and Dando, 2012: 6). Among the numerous civilian scientific advances in the life and associated sciences and technologies that have dual-use potential and might thus contribute to offensive military or terrorist CBW acquisition activities, two relevant subfields or trends in the life sciences are of particular interest. The first involves the convergence of chemistry and biology, which has received increased attention over recent years as the chemical basis of biological systems has been unpacked to an ever greater extent and the biologically mediated production of chemicals has spread. The second development concerns the emergence of a new technoscience in the life sciences under the label of synthetic biology.

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This development deserves attention for the paradigm change it might lead to, potentially transforming biology from a largely descriptive to a mechanistic and predictive science. This potential change overlaps with developments in systems biology that might enable the shift from the manipulation of pathogens in order to increase their effectiveness to a much improved understanding and, thus, targeting of regulatory systems in the human body with biological or chemical agents. I review each of these areas here. Convergence of Chemistry and Biology, and Beyond

Similar to the revolution in the life sciences, chemistry has made significant progress over the past few decades. Cutting-edge research and development in the early twenty-first century hardly compares to the chemistry of the 1980s, which in turn guided negotiations for the CWC. Similar to developments in biology, the new chemistry is utilizing other scientific disciplines and technologies to a much higher degree in its quest for increased knowledge, new chemical compounds, and new production processes. Especially in the area of drug development and delivery, S&T advances in biotechnology and genomics, robotics (Vogt 2002), information technology (Holland and Mitchel 1999; Ritchie 2001), and nanotechnology (Davis 1997; Sahoo and Labhasetwar 2003) have over the past decade at least acted as enablers of combinatorial chemistry and high-throughput screening, which in turn have become key tools in pharmaceutical research and development (Wood and Scott 2000; Wheelis 2002; Tucker 2012b). It has been widely acknowledged that a multidisciplinary technology revolution is under way (Rand 2001). Over the past decade this revolution has led to different conceptualizations of convergence in a broad sense of the term. According to one approach, the synergies among nano-, bio-, info-, and cognitive (NBIC) sciences and technologies are assumed to enable each other in the pursuit of a common, positive, and legitimate goal. One researcher has concluded that “technological systems convergence . . . is now a significant political programme as well as a research/industrial trajectory” (Whitman 2007: 329). From a dualuse perspective, this synergy is problematic as “there is a widening speed differential between the development and dissemination of new technologies and the time needed for social deliberation on whether and how they should find a place in the established ethical and legal orders, and in our wider social and physical environments” (Whitman 2007: 329). In the US context, nanotechnology has been at the core of the

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emerging NBIC field. As pointed out in one of the defining documents of the US converging technologies discourse, Convergence of diverse technologies is based on material unity at the nanoscale and on technology integration from that scale. . . . Developments in systems approaches, mathematics and computation in conjunction with NBIC allow us for the first time to understand the natural world, human society, and scientific research as closely coupled complex, hierarchical systems. (Roco and Bainbridge 2002: ix)

This particular approach to convergence represents a governance challenge not only due to the speed differential that Jim Whitman highlighted but also because of the open-ended nature of convergence and its S&T imperative over societal or security concerns (Kjølberg et al. 2008). A competing European approach to converging technologies has made an attempt to minimize their negative effects and to allow for an upstream engagement in setting the goals for targeted S&T convergence. This approach is reflected in the concept of “Converging Technologies for the European Knowledge Society” proposed by a highlevel European expert group (Nordmann 2004). While in principle much more amenable to guidance by politically defined goals, the possibility of intentional misuse has been absent from the range of potential negative effects that the expert group considered. Thus, due to the practically complete lack of awareness of dual-use issues on part of the converging technologies’ proponents on both sides of the Atlantic, the dual-use challenges of convergence writ large for the CBW prohibition regimes needs to be addressed from within the regimes’ institutional frameworks. The salience of the convergence of chemistry and biology in a narrower sense has increased following the realization that many of the products flowing from the biotechnology revolution that will impact on life processes at various levels are basically chemical compounds and, as such, fall under the regulatory scope of both the BWC and the CWC. In both prohibition regimes, the mechanisms in place for states parties to review S&T advances have already picked up the issue of chemistry and biology (CB) convergence (see Chapters 3 and 4): in the CWC context, the Scientific Advisory Board (SAB) of the Organisation for the Prohibition of Chemical Weapons (OPCW) has established a temporary working group on CB convergence (OPCW 2011a). Similarly, in the preparations for the Seventh BWC Review Conference, CB convergence emerged as one of the issues discussed during a major workshop in Beijing (National Research Council 2011a). The issues involved in

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this convergence of parts of chemistry and biology have been set out in one review that distinguishes between biologically mediated processes of chemicals on the one hand and chemical synthesis of biological molecules on the other (Tucker 2010). The biologically mediated production of chemicals, in turn, can be broken down into three different methods: biocatalysis, metabolic engineering, and biopharming (Tucker 2010: 57). As one assessment of recent trends in directed evolution of biocatalysts has summarized, “Compared to chemical catalysis, biocatalysis provides tremendous advantages such as high efficiency, high degree of selectivity . . . and ‘green’ reaction conditions” (Wang, Si, and Zhao 2012: 117). Triggered by these advantages of enzyme-based biocatalysis, not only has the commercial market for biocatalysts grown significantly over the past decade, but “during the last 30 years the scope of biocatalysis has been expanding due to the advances in several technological fields” (Illanes et al. 2012: 48). As a result, enzymes have developed into “catalysts of exquisite specificity, being . . . well appreciated for the synthesis of pharmaceuticals and fine chemicals” (Illanes et al. 2012: 48). The review concludes, Biocatalysis is becoming one of the most powerful tools in biotechnology, having a profound social impact on health, food supply, environmental protection and sustainable fuel production . . . being nurtured by the advances in several fields as genetics, molecular biology, fermentation technology, bioinformatics, nanotechnology, material sciences, advanced spectroscopy and others. (Illanes et al. 2012: 57)

This strong emphasis on the interdisciplinary character of biocatalysis is shared by another study, according to which, “Key advances in DNA sequencing and gene synthesis are at the base of tremendous progress in tailoring biocatalysts by protein engineering and design, and the ability to reorganize enzymes into new biosynthetic pathways” (Bornscheuer et al. 2012: 185). However, already in 2002 George Parshall cautioned that “developments in catalysis and reactor technology . . . could make it easier to produce chemical warfare agents in ways that are difficult to detect” (Parshall 2002: 2263). Also in 2002 a survey of the field concluded that metabolic engineering has emerged in recent years as the field concerned with the improvement of cells using modern genetic tools. It comprises a synthesis step that introduces new pathways and genetic controls implemented by molecular biological methods, as well as a step of analysis aiming at

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the elucidation of the properties of metabolic reaction networks in their entirety. (Stephanopoulos and Stafford 2002: 2595)

As with practically all innovations the “improvements of cells” sought by metabolic engineers are directed toward a beneficial end, such as the production of new or improved medical compounds. Often associated with the field of synthetic biology, one of the most often quoted examples of a success story in the field of metabolic engineering or synthetic biology has been the production of an artemisinin precursor in the fight against malaria, which is difficult to chemically synthesize and expensive to extract from scarce natural sources. As Jay Keasling, leader of the artemisinin research, has confirmed, this project has involved in excess of 150 person years of conceptual and laboratory work and is thus nowhere near the easy plug-and-play assembly of biological parts and devices aspired to by many in the synthetic biology community (Kwok 2010). However, as this example shows, many linkages between metabolic engineering and synthetic biology require further research and integration across disciplinary boundaries (Keasling 2012; Shiue and Prather 2012). Jonathan Tucker has pointed to the misuse potential of metabolic engineering in the context of the mass production of toxins, such as saxitoxin (listed on one of the CWC’s Schedules of Chemicals), in bacterial hosts (Tucker 2010). The OPCW’s Temporary Working Group on convergence has taken this possibility seriously enough to recommend “conducting a detailed technical feasibility analysis of production of Saxitoxin and/or Ricin via synthetic biology and/or biopharming” (OPCW 2011a: 27). Similar to metabolic engineering, biopharming seeks to improve its target biological system. While metabolic engineering operates at the cellular or subcellular level, biopharming seeks to endow plants with useful functions—usually the production of pharmaceuticals or their precursors—via genetic engineering. As a recent, broader review of the field has shown, transgenic plants can be utilized for a number of beneficial purposes beyond pharmaceuticals and with improved traits such as “nutrient quality, biofuel production, enhanced production of vaccines and antibodies, increased resistance against insects, herbicides, diseases and abiotic stresses” (Ahmad et al. 2012: 524). With a view to the production of biologics in plants, one review has noted that “plants are potential biopharming factories because they are capable of producing unlimited numbers and amounts of recombinant proteins safely and inexpensively” and that “a recombinant monoclonal antibody for rabies

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prophylaxis was produced in transgenic plants” (Ko and Koprowski 2005: 93). Thus, although biopharming can have clear medical and public health benefits, a report by the US National Academies of Science has voiced concerns about the misuse potential of this technology with reference to a genetically engineered “tobacco plant to produce subunits of cholera toxin, making it theoretically possible to produce large quantities of this toxin cheaply and relatively easily, for good or bad” (National Research Council 2006: 64). The report further cautioned that “transgenic plants could also be engineered to produce large quantities of bioregulatory or otherwise toxic proteins, which could either be purified from plant cells or used directly as biological agents” (quoted in Tucker 2010: 59). With respect to the chemical synthesis of biological molecules, Tucker (2010) discusses the emergence of high-throughput DNA synthesis, the production of therapeutic peptides, and issues surrounding peptide bioregulators. As the first of these is regularly subsumed under the heading of synthetic biology, I discuss this issue in the next section. Concerning the production of therapeutic peptides, Tucker (2010) references painkillers and anti-HIV medicines as examples in this category. According to one study, some of these custom-made peptides, such as the AIDS drug Fuzeon, are produced in industrial quantities (Trapp 2012). In addition, the number of companies producing custom peptides for medical and other purposes has risen to more than 110 (Peptide Resource Page 2012). Thus, not only is scientific understanding increasing in relation to therapeutic peptides, but the manufacturing capabilities have also expanded significantly over the past few years. These trends are also discernible in relation to peptide bioregulators. As one review of the misuse potential of bioregulators has summarized, “Bioregulators are naturally occurring organic compounds that modulate many different cellular processes within multiple organ systems . . . such as mood, consciousness, bronchial and vascular tone, sleep, muscle contraction, blood pressure, heart rate, temperature, and immune response” (Kagan 2006: 421). Thus, bioregulators are chemical compounds in the human body that are “highly active biologically at low concentrations” (Aas 2003: 307). From this observation, it follows that bioregulators can be “noxious when present in large concentrations or if their chemical structure is modified to bring about changes in the nature and duration of their action” (Kagan 2006: 421). Even if not genetically modified, bioregulators can exert significant damage to regulatory systems in the human body, such as the nervous, endocrine, and immune systems (Kelle, Nixdorff, and Dando 2012). Especially when combined

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with targeted delivery mechanisms (Nixdorff 2010; National Research Council 2011a), bioregulators are potentially very potent biochemical warfare agents. Work by the Swedish Defense Research Establishment on a peptide bioregulator called Substance P demonstrates the military concerns about bioregulators (Tucker 2010). Such concerns are especially acute as bioregulators—due to their ubiquity in the human body—“are characterized as having a significant ‘stealth factor’” (Kagan 2006: 432) that would present significant challenges for biodefense efforts in the detection and diagnosis of such mid-spectrum agents. The Emergence and Implications of Synthetic Biology

A European high-level expert group defined synthetic biology as “the synthesis of complex, biologically based (or inspired) systems which display functions that do not exist in nature” and characterized it as “a field with enormous scope and potential” (European Commission 2005: 5). More recently, the US Presidential Commission for the Study of Bioethical Issues published a report on “The Ethics of Synthetic Biology and Emerging Technologies” (Presidential Commission 2010) in which it describes synthetic biology as the name given to an emerging field of research that combines elements of biology, engineering, genetics, chemistry, and computer science. The diverse but related endeavors that fall under its umbrella rely on chemically synthesized DNA, along with standardized and automatable processes, to create new biochemical systems or organisms with novel or enhanced characteristics (Presidential Commission 2010: 36)

Some of the areas in which the European Commission expert group predicted in 2005 synthetic biology would have a major impact include biomedicine, a sustainable chemical industry, environment and energy, and biomaterials. Similarly, the Presidential Commission acknowledges the potential of synthetic biology to contribute to “clean energy sources, targeted medicines and more efficient vaccine production, new chemicals, environmental cleansers, and hardy crops” (Presidential Commission 2010: 56). A more recent review has analyzed in greater detail the evolution of some of these areas and their potential to lead to useful applications (Schmidt 2012). If the emerging discipline of synthetic biology can deliver on the promises of some of its leaders and become as pervasive as computing has become in the past few decades, we

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might be witnessing a similarly fundamental shift as the one that occurred in chemistry when the periodic table was introduced. This, at least, is the ambition driving many of the scientists and engineers involved in synthetic biology. However, some caution is advisable so as not to conflate the different approaches that are usually subsumed under this label. The different schools within synthetic biology draw to differing degrees on a wide range of disciplines, including biotechnology, molecular biology, engineering, mathematics, chemistry, and information technology (Endy 2005; McDaniel and Weiss 2005; de Lorenzo and Danchin 2008). At least four different substrands of synthetic biology have developed since the early years of the twenty-first century (Schmidt 2009). Some in the synthetic biology community seek to utilize engineering principles and construct DNA-based biological circuits based on standardized biological parts. This engineering-based approach overlaps with some of the metabolic engineering research mentioned above, and I discuss it in some more detail later in the chapter (Rollié, Mangold, and Sundmacher 2012). The second subfield of synthetic biology aims to identify the minimal genome that is able to support a functioning cell. This approach is complementary to the first insofar as it could provide the chassis into which the biological parts and devices could be inserted that proponents of the first strand of synthetic biology have created. The third subfield is concerned with the creation of so-called protocells—the approximation of living cells in the laboratory (Bedau and Parke 2009). Last, chemical synthetic biologists are using a different set of biochemical compounds to create orthogonal biological systems that natural evolution has not produced (Luisi and Chiarabelli 2011). The engineering-based approach has been pursued most visibly by a group of scientists initially at the Massachusetts Institute of Technology (MIT). It focuses on the creation of standardized biological parts that can be assembled into biological devices, which in turn can be combined into biological systems that behave as intended by their designer (Knight 2005). The central vehicle for expanding the number of publicly available parts is the annual international Genetically Engineered Machine (iGEM) competition organized by the Biobricks foundation (Biobricks 2012). As an organization, iGEM subscribes to the systematic engineering of biology, encourages the open development of tools for engineering biology, and “promotes the advancement of science and education by developing an open community of students and practitioners in schools, laboratories, research institutes, and industry” (iGEM 2012). Starting in 2003 as a summer course at MIT, the iGEM

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competition has since become a global event that has witnessed an exponential growth from five undergraduate synthetic biology student teams participating in 2004 to 165 teams in the 2011 competition (iGEM 2012). Student teams have to use existing biological parts from the registry and design and build new ones that are then fed back into the openly accessible registry. In this way the number of available genetic parts has already grown to over seventy-one hundred (Registry of Standard Biological Parts 2012). However, as Roberta Kwok has highlighted, proponents of the engineering approach to synthetic biology need to address five major areas: better definition of biological parts, enhancing the predictability of genetic circuits, better methods for handling the complexity of circuits, improving the compatibility of parts and chassis organisms, and enhancing the stability of complex synthetic systems (Kwok 2010). Related to the engineering-based approach is the synthesis of viral genomes. Starting in the late 1970s the ability to stitch together ever longer strands of DNA resulted in the de novo synthesis of the poliovirus in 2002 (Cello, Paul, and Wimmer 2002). The research team at Stony Brook University needed several months to create a de novo poliovirus genome—a single-stranded RNA molecule consisting of only about seventy-five hundred nucleotides (DNA base pairs). A year later, in 2003, Craig Venter and his team of researchers managed in about two weeks to synthesize from scratch a bacteriophage—in effect, a virus that infects bacteria—of less than fifty-five hundred DNA base pairs (Smith et al. 2003). In 2005, researchers from the US Centers for Disease Control resurrected the influenza strain that caused the 1918 Spanish flu pandemic, which killed millions of people around the globe (Tumpey et al. 2005). A team of US and Swiss researchers reported in 2008 that a “synthetic recombinant bat SARS-like coronavirus is infectious in cultured cells and in mice” (Becker et al. 2008: 19944). In order to demonstrate the usefulness of the study, the researchers noted that the “rational design, synthesis, and recovery of hypothetical recombinant viruses can be used to investigate mechanisms of transspecies movement of zoonoses and has great potential to aid in rapid public health responses to known or predicted emerging microbial threats” (Becker et al. 2008: 19944). While this may be the case, these examples clearly demonstrate—as does the A/H5N1 influenza transmissibility research published in 2012—the dual-use nature of much of the work ongoing in synthesizing viral genomes. Although researchers have pointed out that currently “assembling . . . DNA segments into a synthetic virus and converting the virus into a deliverable weapon would pose significant tech-

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nical hurdles” (Lentzos and Silver 2012: 133), the pace of the life science revolution in combination with dedicated efforts on the part of some in the synthetic biology community at deskilling—that is, drastically reducing the technical hurdles to perform synthetic biology experiments (Kelle 2012a)—will help to overcome these obstacles in the future (Garfinkel et al. 2007). The increasing ability to understand, modify, and ultimately create new biological systems at the molecular level represents a scientific paradigm shift with a substantial misuse potential. Returning to the European Commission expert group and two specific applications of major impact as described in their report—smart drugs and vectors for therapy—further illustrates the quantum leap in BW, and, down the line, bioterrorist capabilities that may result. According to the report, “A smart drug includes a diagnostic module that . . . is capable of directly sensing of molecular disease indicators. . . . It will only become active in cells affected by disease” (European Commission 2005: 14). Further progress has been made in the area of smart-drug delivery since publication of the report (Ruoslahti 2012; Koren and Torchilin 2012). The misuse potential of such smart-drug delivery technology is obvious: if the sensing mechanism would be programmed to sense other biomarkers or the activated chemical compound would either incapacitate or kill rather than cure, considerable harm could be done. Equally conceivable, newly designed or modified viral vectors that can “deliver healthy genes to the target tissue” or that “can recognize specific cells and target them for destruction” (European Commission 2005: 14) could be easily diverted from their intended benign use to malign applications that would, for example, aim at delivering pathogenic genes and would target not cancer but essential cells in the human body.

Defenses Against Chemical and Biological Warfare

The search for defensive measures against CBW began as early as World War I when chemical warfare agents were employed on the battlefields of Western Europe. CBW defenses encompass a wide range of measures, from physical protection measures for individuals and groups in a military context to medical defenses, in which the scope goes well beyond the military and is closer to public health measures targeted at biowarfare agents of concern. As I discuss in greater detail in subsequent chapters, CBW defenses are permitted under the multilateral treaties that form the core of the two CBW prohibition regimes. How-

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ever, this permission in principle assumes that somehow these defensive activities are distinguishable from offensive CBW programs. To further elucidate the problems related to such a distinction, here I discuss the challenges involved in distinguishing offensive from defensive BW research by reference to the currently most developed biodefense program—that of the United States. As King and Strauss have pointed out from a critical perspective, the legitimacy of BW defenses rests on two fundamental assumptions: first, that the distinction between offense and defense can be made, and second, that such a defense could be effective against an “adversary bent on utilizing biological agents” (King and Strauss 1990: 121). They regard both of these assumptions as unfounded and reject the distinguishability of offensive and defensive BW programs due to their similarities in three crucial areas of research: “the underlying mechanisms of pathogenesis . . . the mechanisms by which infectious organisms evade the immune system or acquire resistance to common antibiotics . . . [and knowledge] by which routes different organisms may be dispersed” (King and Strauss 1990: 123). They conclude, “In summary, ‘offensive’ and ‘defensive’ biological warfare research programs, particularly defensive programs that focus on the properties of specific BW agents, share the same components. One has to rely on the stated intent of the program to distinguish between offensive and defensive efforts” (King and Strauss 1990: 125). A less pessimistic assessment was provided by the then director of the US Army Medical Research Institute for Infectious Diseases, David Huxsoll, in testimony before the US Senate in May 1989. While he argued that at the basic research level one could not distinguish between offense and defense, Huxsoll asserted that such a distinction between the pathways for development of a biological warfare agent and a vaccine was possible once activities moved beyond this stage. This line of reasoning was supported by another US Army officer during the same Senate hearing. As Milton Leitenberg and Raymond A. Zilinskas have summarized, “He similarly identified four key factors for consideration when attempting to differentiate between licit and illicit programs: the amount of agent produced, the attenuation of the organism used for vaccine production, process difference between vaccine and weapons production, and the openness of a defensive program” (Leitenberg and Zilinskas 2012: 325; emphasis in original). Yet, as an earlier study by Leitenberg makes clear, the US government has always—since the unilateral renunciation of BW by President Richard Nixon in 1969—reserved an exemption for itself, as clearly for-

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mulated in National Security Decision Memorandum 35 of November 1969, maintaining that biodefense “does not preclude research into the offensive aspects of bacteriological/biological agents necessary to determine what defensive measures are required” (quoted in Leitenberg 2003: 224). Some of the defensive BW projects this policy has led to were revealed by three New York Times journalists in September 2001 (Miller, Engelberg, and Broad 2001). One of three projects that have been widely regarded as either blurring or actually crossing the lines between offensive and defensive research and development was run by the Central Intelligence Agency and code named “Clear Vision.” In the late 1990s it successfully copied and tested a small Soviet bomb for the dispersal of biological warfare agents and arguably pushed furthest the limits of what is regarded as acceptable under the label of biodefense (Miller, Engelberg, and Broad 2001). While in line with the exemption contained in the Nixon memorandum, this project would in most interpretations of the biodefense principle contained in the BWC constitute a violation of that treaty (see Chapter 3, this volume). Under code name “Bacchus,” a US Department of Defense team bought off-the-shelf equipment to successfully build a bioweapons factory that was able to produce a viable BW simulant (Miller, Engelberg, and Broad 2001). Third, under “Project Jefferson,” the Defense Intelligence Agency commissioned its contractor Battelle to produce a genetically manipulated strain of anthrax of Soviet origin after the US government had been unable to obtain the strain from its Russian counterpart for the testing of US anthrax vaccines (Miller, Engelberg, and Broad 2001). After the anthrax letter attacks in the fall of 2001 the US biodefense efforts saw a massive financial increase in budgetary allocations, which has continued to the present (Schuler 2004; Franco and Sell 2012). Apart from the huge financial increases, the conceptual underpinning of US biodefense policy on the one hand saw an expansion into parts of the public health sector (Kelle 2005). On the other hand, as the article by Petro, Plasse, and McNulty (2003) shows, the ongoing revolution in the life sciences was widely regarded as a key driver for future biodefense policy. In relation to the first two phases of BW development that Petro, Plasse, and McNulty anticipate, they argue somewhat optimistically that the threat will eventually level off because of (1) the development of medical countermeasures such as antibiotics, antiviral drugs, antitoxins, and vaccines; (2) the limited number of agents that meet the requirements for biological warfare purposes; and (3) the fact that “only

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a finite number of properties and genetic modifications can be used to enhance a traditional agent without altering it beyond recognition” (Petro, Plasse, and McNulty 2003: 162). To meet the challenge posed by the third stage of development of advanced biological warfare agents, Petro et al. argue that there is a need for “next generation” approaches to biodefense (2003: 167). In effect, their solution is to increase biodefense funding that would (1) permit the evaluation of emerging biotechnologies that might foster ABW agent development, (2) provide for the establishment a federally funded facility to consolidate and conduct research into biotechnology threat assessments, and (3) promote research into the development of next-generation systems for environmental detection of agents, medical diagnostics, therapeutics, and prophylactics. In the 2004 US National Biodefense Strategy for the Twenty-First Century, the first two of these policy recommendations were reflected under the heading of “threat awareness,” which contained not only a call for improved BW-related intelligence and assessments but also for the better anticipation of future threats that might arise from genetically modified pathogens. Some analysts predicted that the resulting “Department of Homeland Security’s creation of a Biological Threat Characterization Program for the technical validation of threat agents will be a valuable addition to the nation’s overall biodefense strategy” (Petro and Carus 2005: 295). Others, however, raised concerns that the envisaged operationalization of this policy in the Biothreat Characterization Center will lead to “biodefense crossing the line” (Leitenberg, Leonard, and Spertzel 2004: 2). Tucker took a similarly critical stance, warning of falling into the trap of the biosecurity dilemma (Tucker 2006b). More specifically, he argued “that creating putative bioengineered pathogens in the laboratory for purposes of threat characterization would be exceedingly dangerous and counterproductive, and that the United States should formally renounce such experiments” (Tucker 2006b: 196). He based his recommendation on the reasoning that such biological threat assessments would be poor guidance for countermeasure development, that they would be destabilizing and might result in an offense-defense arms race, and that such novel agents might leak out and end up in the hands of those against whom the defense was developed in the first instance. Although some of the more questionable manifestations of US biodefense policies seem to have been scaled back under the Barack Obama administration, its 2009 National Strategy for Countering Biological Threats explicitly states that it “supports the

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overall National Biodefense Strategy (Homeland Security Presidential Directive [HSPD]-10/National Security Presidential Directive-33)” formulated by the previous administration (United States 2009: 3).

Conclusion

Any successful attempt to prohibit a weapon system must take into account the characteristics of the weapon to be prohibited. The negotiators of the international treaties that form the core of the BW and CW prohibition regimes—the BWC and CWC, respectively—have been cognizant of this truism. Similarly, in order to provide some background information of the underlying S&T of the two prohibition regimes, I have sought in this chapter to introduce some of the different categories of chemical and biological warfare agents that have been the object of multilateral disarmament efforts since the 1960s. When the BWC was negotiated, the state-level BW programs that were seeking to exploit advances in virology, bacteriology, and aerobiology—and that have been amply analyzed by Erhard Geissler, Mark Wheelis, and colleagues (Geissler and van Courtland Moon 1999; Wheelis, Rozsa, and Dando 2006)—were informing deliberations. Given the Cold War geopolitical context as well as domestic considerations of the main protagonists pushing for the conclusion of the BWC in the late 1960s, the BW prohibition regime took the shape I discuss in more detail in Chapter 3— that is, without an international organization to oversee its implementation and devoid of a verification principle and its operationalization through declaration and inspection norms. Similarly, negotiation of the CWC in the second half of the 1980s was informed by the state of the chemical industry at the time and in the final stages had representatives from the chemical industry actively involved. Thus, both prohibition regimes display a close relationship between S&T and the shape of the prohibition regimes at the formative moments of regime creation. However, S&T in both cases would obviously not stand still, and the regimes would require provisions to be able to adapt to the changing S&T landscape. In subsequent chapters I refer to this as the adaptation norm. As illustrated earlier, scientific and technological progress over the past couple of decades has been both broad and fast-paced (Kelle 2007a). With parts of chemistry and biology converging in the areas of biologically mediated production of chemicals and the chemical production of biological molecules, plus this convergence being part of a

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broader trend that some have labeled NBIC convergence, this situation creates new challenges for the CBW prohibition regimes, in which silothinking has until recently been the norm. The progress made in the area of synthetic biology during the past decade lets the notion of ABW agents appear less fantastic, especially when taking into account a much better understanding of receptors in human physiological systems that can be targeted more easily and with higher specificity. As discussed in the context of the synthesis of viral pathogens, over the past few years a series of scientific experiments and their publication in academic journals suggest that the range and possibilities for malign use of biology and chemistry have greatly increased. Among the experiments of concern are the unintentional potentiation of the mousepox virus as a by-product of attempts to develop a mouse contraceptive, and the 2012 studies into the transmissibility of the A/H5N1 influenza. While these experiments of concern are mostly discussed as yet another variation of the theme of modifying or improving disease-causing agents, a different, more fundamental change in the life sciences is under way. This paradigm shift is fueled by the decoding of the human genome and finds its expression in the establishment of new scientific subfields such as systems biology. In practical terms, the current S&T revolution in the life sciences changes the focus of the proliferation problem from the chemical or biological warfare agent as the object of malign manipulation to the physiological target in the human body as the object of attack. The newly emerging paradigm is based on the increased ability to understand and manipulate different control systems in the human body. A recent study has discussed in detail some particularly important developments in the areas of immunology, neurosciences, and neuroendocrine-immunology that will have a considerable impact on the CBW control problem and that the prohibition regimes will have to address as a result of this paradigm shift (Kelle, Nixdorff, and Dando 2012). Lastly, as the brief discussion on defensive measures against CBW has illustrated, tension remains between legitimate defense efforts on the one hand and suspicions that they may cross the line into offensive research or development on the other. This tension has been much more pronounced in the BW area than in the context of the CWC. However, with the CB convergence currently observable, this situation may change in the future, depending on how the CW prohibition regime will be adapted. While in principle permitted under the treaties, the balance is difficult to strike between too much transparency of biodefense

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efforts, which may undermine the defenses, and too little, which may raise questions of regime-compliant behavior. In the next chapters I analyze how the CBW prohibition regimes have since their establishment sought to achieve their goals of a world free of CBW in the face of changing S&T, as well as the political framework conditions that have determined the interests of actors within the two regimes.

3 The Biological Weapons Prohibition Regime

The origins of multilateral efforts to control biological weapons

(BW) date back to the 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare, the so-called Geneva Protocol. Although the Geneva Protocol was originally conceived as a response to the widespread use of chemical weapons (CW) during World War I, a Polish proposal to include “bacteriological methods of warfare” as well succeeded, and corresponding language was incorporated in the protocol text (SIPRI 1971: 58–71; Burck and Floweree 1991: 540). It entered into force in 1928 and has currently 137 member states. As many states accompanied their ratification to the Geneva Protocol with a unilateral declaration laying down restrictions under which they would themselves consider to be bound by its provisions (Baxter and Buergenthal 1970), the Geneva Protocol has been widely regarded as an agreement that provides for no first use of chemical and biological weapons (CBW) among its states parties. While one study in the early 2000s found grounds for optimism stemming from the fact that a number of states had given up their reservations to the protocol (Sims 2001), this assessment has recently been replaced by a more sober one, based on the fact that 38 of 164 Biological and Toxin Weapons Convention (BWC) member states still have not acceded to the Geneva Protocol, and only one state had withdrawn its reservations to the protocol in the 2002–2010 period (Sims, Pearson, and Woodward 2011).

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Setting the Institutional Framework: Negotiation and Scope of the BWC

After World War II, chemical and biological weapons were included in the UN definition of weapons of mass destruction, and repeated calls for their elimination were made during the 1950s. These efforts gained momentum in the 1960s, when after the Cuban missile crisis the United States and the Soviet Union agreed on a number of confidencebuilding and arms control measures in the nuclear realm. Most of the proposals that were put forward for CBW disarmament during the 1960s fell into one of two categories: states proposed measures for (1) general and complete disarmament, where at some later point on the way to achieving this goal, CBW would be addressed; or (2) revision of the 1925 Geneva Protocol, as Malta did in 1967. However, the Maltese proposal “to initiate a revision, updating, or replacement of the Geneva Protocol by another instrument met with little support” (SIPRI 1971: 252). A Short History of BWC Negotiations

In 1968 the United Kingdom submitted a working paper to the Eighteen Nation Disarmament Committee (ENDC) in which it deviated from previous approaches and proposed treating BW separately from CW (SIPRI 1971; Wright 2002). Acknowledging that CW and BW had historically been treated together, the working paper argued that, because of the question of how to treat nonlethal chemical weapons and the apparent military utility of CW—as opposed to BW—achieving a ban on CW seemed highly unlikely and that a case could be made for treating BW and CW separately. Many of the proposals for a BW ban contained in the British working paper were eventually accepted by members of the ENDC and found their way into the text of the BWC. First, however, resistance by the superpowers had to be overcome, as both the United States and the Soviet Union initially rejected the idea of a separate BW ban. This stance changed in the case of the United States with its unilateral renunciations of BW and toxin weapons in 1969 and 1970, respectively. As a review of the decisionmaking process leading to this policy change shows, President Richard Nixon’s decision was influenced by three interrelated factors: biological weapons had limited tactical utility on the battlefield and did not constitute a reliable and effective strategic deterrent. . . . At the same time, the secret field trials in the Pacific had demonstrated that

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biological weapons posed a potential mass casualty threat to US cities. . . . Finally, Nixon wished to be seen as a “man of peace” at a time when the war in Vietnam was provoking strong opposition both at home and abroad. By abandoning a category of weapons widely considered to be repugnant, he could deflect criticism of the ongoing combat use of tear gas and herbicides in Vietnam. (Tucker 2002: 127–128)

Especially in light of the second of these factors, it was in the US interest that many other states follow the US example, and the Nixon administration thus supported the British proposal for a separate international ban on biological and toxin weapons. Soviet acceptance of a separate BW treaty seems to have followed the Soviet military’s realization that the new treaty would not contain any verification measures whatsoever (Leitenberg 1996). Once the Soviet Union supported the proposal, the treaty text could be negotiated in a short period of time, which led to the conclusion of the 1972 Biological and Toxin Weapons Convention (BWC). Notably, however, one of the prohibitions originally foreseen in the British working paper of 1968 was not included in the BWC: the prohibition of biological weapons research. Normative Structure of the BW Prohibition Regime

The BWC is based on the recognition that use of BW agents constitutes an abhorrent act of warfare and is therefore prohibited. This principle, referred to as the BW taboo (Cole 1998; McCauley and Payne 2010), is explicitly mentioned in preambular paragraphs 9 and 10, in which states parties to the BWC express their determination, “for the sake of all mankind, to exclude completely the possibility of bacteriological (biological) agents and toxins being used as weapons, convinced that such use would be repugnant to the conscience of mankind.” At the same time, peaceful uses of the biosciences are regarded as a legitimate undertaking. According to BWC Article I, Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain: (1) Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes. (emphasis added)

This so-called general-purpose criterion not only makes it clear that peaceful uses of the biosciences are legitimate undertakings for states

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parties to the BWC but also allows the use of pathogenic organisms or toxins in quantities and for purposes other than use as weapons. One can infer that states subscribing to the regime regard defenses against the threat or use of BW as permitted. This principle is rooted in the belief that the peaceful uses of biosciences cannot be taken for granted—be it for the lacking universality in membership or for a state party not living up to its obligations. As already alluded to in Chapter 2, the general understanding upon which this principle is built has considerable historical backing derived from the widespread state practice of researching, developing, and deploying defensive measures against the specter of biological warfare. As the above-quoted BWC Article I specifies, five activities related to BW—development, production, acquisition by other means, stockpiling, and retention—are explicitly banned, yet the scope of the BW prohibition regime is wider than these five activities; the BWC also contains several more normative guidelines for state action. Central to the BW prohibition regime is the non-use norm, which is explicitly spelled out in the 1925 Geneva Protocol and implicitly contained in BWC Article I. Although this article of the convention makes explicit reference only to the non-acquisition norm, one can deduce from the list of five prohibited activities as well as the first principle mentioned above that use is also prohibited. The disarmament norm is contained in BWC Article II. It obliges states parties to either destroy or divert to peaceful purposes all agents, toxins, equipment, and means of delivery related to their BW holdings within nine months after the entry into force of the BWC. Unilateral declarations that the three BWC depositary states (the United Kingdom, the United States, and the Soviet Union) had complied with this obligation were made in March and June 1975 (Sims 1988). According to the non-transfer norm, contained in BWC Article III, states parties forswear to “transfer to any recipient whatsoever, directly or indirectly, and not in any way to assist, encourage, or induce” any actor to acquire any of the items specified in BWC Article I. The non-transfer norm is supported—as are most other regime norms—by the internalization norm expressed in BWC Article IV, which calls for national implementation measures to put the obligations under the convention into effect domestically. In addition, BWC Article X contains the cooperation norm, which, from the point of view of some BWC states parties from the developing world, is closely related to the non-acquisition and non-transfer norms. Analogous to the nuclear nonproliferation regime, according to

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this logic, states that do not acquire BW are almost entitled to receive transfers supporting peaceful developments in the biosciences. Some regime members from the Non-Aligned Movement (NAM) regard the export control practices of other BWC states parties as violating the cooperation norm contained in Article X. Related to this norm, the harmonization norm, although operationalized outside the narrow treaty implementation confines of the BWC, guides the behavior of states participating in the Australia Group, which have agreed to harmonizing their export control policies, sharing information on suspicious requests for supplying CBW-related dual-use items and technologies, and consulting one another in case of export denials to states of proliferation concern of certain dual-use items and technologies. I discuss the regime conflict resulting from norm contestation, which in turn revolves around the activities of the Australia Group—and which can also be observed in the CW prohibition regime—separately in Chapter 5. Article VII of the BWC contains the assistance norm, according to which states parties will come to each other’s assistance in case of the use or threat of BW against one of them. The consultation norm is spelled out in BWC Article V, in which states parties agree to “consult one another and to co-operate in solving any problems which may arise in relation to the objective of, or in the application of the provisions of, the Convention.” Article VI contains in a similarly rudimentary form the investigation norm, which is in effect limited to BWC states parties bringing cases of noncompliance before the UN Security Council to investigate. Last, the continuing link between BW and CW disarmament is acknowledged through the normative requirement for BWC states parties to continue negotiating a CW treaty, as spelled out in BWC Article IX. As I explain in Chapter 4, this goal was accomplished during the 1990s when the Chemical Weapons Convention (CWC) was opened for signature in January 1993 and entered into force in April 1997. Organizational Structures in Support of the Regime

In contrast to the Chemical Weapons Convention, the BWC does not provide for creation of a dedicated international organization to oversee the treaty’s implementation. Therefore, BWC states parties initially had to rely on the five-yearly review conferences as the only forum through which they could assess the operation of the convention and try to ensure that their peers were implementing the BWC’s provisions. Widespread concerns over the lack of transparency in this regard led the Second BWC Review Conference in 1986 to agree on a set of so-called

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confidence-building measures (CBM), which in essence establish politically binding declaration requirements in a number of areas relevant to the BWC. These measures were further elaborated by an Ad Hoc Meeting of Experts in 1987 (ter Har 1991). In addition to the low submission rates over time, the major shortcoming of the agreed-upon—and in 1991 expanded—CBMs from an organizational perspective was the absence of any structure to follow up the declarations either through spot checks or systematic inspections after the states parties submitted their CBMs. In addition to agreeing on an expanded set of CBMs, the 1991 BWC Review Conference established the so-called verification experts (VEREX) group of governmental experts to investigate the technical feasibility of measures to enhance confidence in complying with the BWC’s prohibitions. VEREX met four times from 1992 to 1993 and examined twenty-one potential verification measures from scientific and technical viewpoints. The group concluded in its report, which it submitted to all BWC states parties, “that potential verification measures as identified and evaluated could be useful to varying degrees in enhancing confidence, through increased transparency, that States Parties were fulfilling their obligations under the BWC” (United Nations 1993: 8). Although no single measure was deemed sufficient to provide enough reassurance about treaty-compliant behavior, the approach that VEREX adopted—favoring a combination of measures—prompted enough states parties to the BWC to seek a special conference; more than half of the BWC states parties were required to do so. This special conference took place in September 1994 and served the critical function of converting the “VEREX findings, which were exclusively scientific and technical, into the basis for diplomatic efforts” (Sims 2001: 104). The “political and economic considerations” (Sims 2001: 104) related to the diplomatic negotiations, however, made it difficult for the special conference to arrive at a consensual mandate for the Ad Hoc Group (AHG) of states parties to negotiate a legally binding protocol to the BWC (United Nations 1994: 10–11). First, the United States was highly skeptical of the AHG’s ability to negotiate “verification” measures, because the United States in principle rejected the idea that the BWC is verifiable according to its own standards. As a result of this US approach to what it considers to be “effective verification” (United States 1994), the AHG was tasked with negotiating measures to enhance compliance with the BWC. Second, Russia insisted that the AHG consider definitions and objective criteria

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in its mandate. Third, a number of NAM states did not see the necessity of the negotiations in the first place. Many of them did not regard BW as a threat to their national security and therefore had to be brought into the process by including in the mandate the negotiation of measures to strengthen international cooperation in the peaceful uses of the biosciences (Bernauer 1992). Last, the negotiators of the AHG should take into account the already existing—but poorly implemented—CBMs, and new CBMs should be considered. The composite nature of the AHG mandate and its implications for subsequent negotiations led to critical assessments after the AHG process had collapsed in 2001 (Ward 2004). Although not explicitly mentioned in the mandate, it became obvious during AHG negotiations that the complexity of the declaration, inspection, and other provisions foreseen in the compliance protocol would have required establishing a dedicated international organization for oversight purposes. AHG negotiations started in January 1995, lasted until July 2001, and went through five phases: in the first phase, which lasted until mid1997, potential elements of a compliance protocol were identified. Given this focus of the BWC community of states parties, the Fourth BWC Review Conference in 1996 was a rather uneventful diplomatic gathering, with the conference clearly expressing its expectation that the AHG negotiations on a compliance protocol would be concluded and a special session of the conference be held on the protocol before the Fifth Review Conference in 2001 (United Nations 1996a). From mid1997, negotiations were based on a rolling text, which was developed further during the AHG negotiating sessions. During the third phase in 1999 the formal structure of the protocol was negotiated, and in the fourth phase compromise language on the less controversial issues under negotiation was integrated into the rolling text (Toth 1999). The fifth phase saw an effort by the chair of the negotiations to create additional momentum for the AHG to enter into an endgame during which the more controversial issues could be tackled. He therefore developed a compromise protocol text that he presented to delegations in the spring of 2001 (Rissanen 2001a; Pearson, Dando, and Sims 2001). The July 2001 session of the AHG was scheduled to debate the compromise text submitted by the AHG chairman. While many delegations supported the approach taken by Ambassador Tibor Toth, the US delegate, Ambassador Donald Mahley, declared after a policy review by the George W. Bush administration, “that the Chairman’s text was not an adequate basis for completing the Protocol, that it could not be made an adequate base for further negotiation and, furthermore, that the

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whole conceptual framework on which the negotiations had been conducted, would have to be changed” (quoted in Dando 2002: 175). The US statement, which effectively dealt the death blow to the AHG negotiations, marked the culmination of a difficult history of successive US administrations with efforts to strengthen the BWC. This history had been characterized by problems in formulating a coherent government policy on the BWC protocol in the first place, continuous intra-agency quarrels over the course of US policy, and as a result, numerous US demands vis-à-vis the AHG, which de facto led to a weakening of several provisions of the protocol. In an almost ironic twist of argumentation, one of the basic criticisms leveled against the protocol was that it was too weak and thus would not provide for effective verification. In addition, the US delegate argued, the protocol “would threaten national security and commercial proprietary information; and it would threaten the dual-use export control regime of the Australia Group” (Rosenberg 2001). Thus, when states parties to the BWC reconvened in late 2001 for the Fifth BWC Review Conference, they did so under less than auspicious circumstances. In addition, the United States decided in a rather undiplomatic move to accuse a number of states—among them BWC states parties Iran, Iraq, and Libya—of clandestinely procuring BW. As one commentator noted, “[t]he US decision to ‘name names,’ an unorthodox diplomatic proceeding, took many delegates and observers by surprise. Overall, there was a feeling that the accusations have only compounded the already tense and bitter atmosphere left over from the derailed final session of the AHG in July/August” (Rissanen 2001a). Despite this confrontational start, the diplomatic machinery of the review conference worked surprisingly well over the following two weeks, and progress was made on a final declaration. On the last day of the conference, the United States presented a proposal to terminate the AHG for good. The content of this proposal ran counter to the tacit understanding of not touching the topic of the AHG in order to avoid a breakdown of the review process as well. Moreover, the United States did not inform any of its allies about the content or timing of its proposal. Not surprisingly, this action created the impression that the US delegation deliberately attempted to sabotage the review conference. The only way to prevent a diplomatic disaster was to adjourn the conference and decide to reconvene one year later, in November 2002 (Rissanen 2002). When reconvened, the review conference failed to decide on a final document, which would have represented the consensus interpretations of states parties on the BWC and its implementation (Chevrier

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2002–2003). Instead, the review conference chairman presented to the conference (upon US insistence) a nonnegotiable draft decision that left the AHG mandate untouched and established a new process to guide activities for the years 2003 to 2005. This US proposal was debated for several days and eventually adopted on 14 November 2002. In it states parties decided by consensus “(a) To hold three annual meetings of the States Parties of one week duration each year commencing in 2003 until the Sixth Review Conference, to be held not later than the end of 2006, to discuss, and promote common understanding and effective action” (United Nations 2002: 3). Alongside this abandoning of the AHG and the reduction of BWC state party interaction to annual meetings, the reconvened Fifth Review Conference in 2002 also agreed on a narrower set of issues to be discussed during this new intersessional process (ISP) of annual meetings of experts and states parties. Combined with the limitation in the mandate “to discuss and promote common understanding and effective action”—which in practical terms left the meetings without any decisionmaking powers—the need for a more formalized organizational structure in support of the BW prohibition regime also temporarily disappeared from view. The lack of formal decisionmaking powers has subsequently been endorsed by a number of BWC states parties, such as during the July 2004 meeting of experts, when Cuba insisted in its statement during the general debate that no recommendations should be formulated based only on the experience of a few countries. Likewise, the South Korean delegate pointed out that the meeting was conceptualized as a forum to exchange ideas, not as a drafting exercise. India, for its part, emphasized that the mandate of the new process foresaw to “promote,” but not to “reach” common understandings, and that the latter would require some form of negotiation, which was not part of the mandate the BWC states parties had given themselves for the ISP leading up to the Sixth BWC Review Conference in 2006 (Pearson 2004). Discussions during the 2003–2005 ISP meetings were overall much less confrontational than the Fifth Review Conference and were judged by many participants to be informative and constructive. The 2006 Review Conference, on the basis of the positive reviews of the intersessional experience, issued another mandate for a second ISP for 2007–2010 with a mix of issues to be addressed, some of which the parties had already touched upon during previous years. States parties also realized that management of even such a limited number of meetings and issues required some organizational support, leading to the establishment of a three-person Implementation Support Unit (ISU) with a

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mandate to provide administrative support to BWC states parties and to assist them in relation to the annual CBMs (United Nations 2006a: 19–20). However, as one observer has noted, “[t]he conference made heavy weather of mandating and funding this new ISU, symptomatic of the suspicion with which even the most modest and economical of structural innovations in the BWC have traditionally been greeted by a substantial tranche of governmental opinion” (Sims 2009: 50). As the meetings of the second ISP and the support provided by the ISU were generally judged in favorable terms, many observers during the preparatory phase for the Seventh Review Conference in 2011 expressed the expectation that both the ISP and ISU would not only be maintained but that scope and depth of the intersessional process and the size and mandate of the ISU could be expanded. Numerous proposals were made in relation to such an intensification of the process and its organizational support. However, these expectations were not realized: the meetings of the third ISP in the 2012–2015 period are still bereft of decisionmaking powers. Only a limited number of topics will be discussed, and although three sets of issues—Article X measures, national implementation, and science and technology (S&T) developments—have become Standing Agenda Items (SAI) on the ISP’s calendar, they are competing with other topics for scarce resources in terms of time and attention. Hopes for a larger ISU were dashed mainly due to the financial concerns of a very small number of BWC states parties, which categorically opposed an increase in the budget for the review conferences. In sum, the evolution of the BW prohibition regime’s institutional structures shows a very low increase in the degree of institutionalization (Sims 2009). Although more formal organizational structures for regime oversight and implementation were contemplated during the AHG’s work, this was abandoned in 2001. Since then, BWC states parties had to rely on the quinquennial review conferences, which have been the only permanent institutional feature of the BW prohibition regime, plus annual meetings of experts and states parties without decisionmaking powers. As with all other attempted organizational forms before them— ranging from the early expert groups to current meetings of states parties between the review conferences—these measures are of a temporary nature. This approach has implications not only for the continuity of oversight but also for the possibility of an independent agency developing and supporting the goals of the regime in the form of an international organization such as the Organisation for the Prohibition of Chemical Weapons (OPCW) in the CW prohibition regime or the Inter-

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national Atomic Energy Agency in the nuclear nonproliferation regime (Park 2006).

Normative and Regime Evolution over the Course of BWC Implementation

When the BWC entered into force on 26 March 1975, 46 states had ratified the treaty, including the three depositary states—the United Kingdom, the United States, and the Soviet Union. This number had increased to 87 by the First Review Conference in 1981 (Sims 2001) and since then grown to 166 states parties in late 2012 after the accession of the Marshall Islands on 15 November. Given the large number of new states parties, the considerable period of time that has passed since the BWC’s entry into force, massive changes on the global political scene during this period, and the dramatically changed scientific and technological base underlying the BWC, the question arises how these changes have affected the substantive dimension of the regime to prohibit BW. As outlined in the previous section, efforts to address institutional shortcomings have been less than successful, so how have the different normative guideposts for states parties’ actions fared in comparison? A related question concerns gaps in the regime’s normative structure, especially the absence of declaration and inspection norms, both of which are present in the parallel CW-related regime. Much of the effort to establish such new normative standards was linked to the unsuccessful attempt during the AHG process to negotiate a BWC compliance protocol. With its demise, a broadening of the regime’s normative base seems to have been regarded as impossible by the large majority of BWC states parties as well as the wider stakeholder community. In spite of the occasional reaffirmation that verification—and implicitly the related declaration and inspection norms—is central to any arms control regime (Germany 2011), including periodic calls by NAM states parties for a legally binding instrument to complement the BWC, its states parties over the past decade had set their sights much lower in relation to the substantive strengthening of the BW prohibition regime as envisioned by the AHG through additions to the regime’s normative framework. As I discuss here, some of these efforts have been concentrated on enhancing compliance and strengthening national implementation of the BWC. A widespread assumption in international legal scholarship is

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that “almost all nations observe almost all the principles of international law and almost all of their obligations almost all of the time” (Henkin 1979: 47). This dictum, however, did not apply for a considerable period of time to one of the key regime norms. The Disarmament Norm and Remaining Uncertainties over the Offensive Soviet BW Program

Shortly after the BWC’s entry into force, various Western news media reported suspicions about possible Soviet noncompliance with the BW prohibition regime’s disarmament norm (Sims 1988). This normative standard for states parties’ behavior is contained in BWC Article II. With increasing numbers of intelligence reports about a suspicious anthrax outbreak in Sverdlovsk in April 1979, the US government utilized bilateral diplomatic channels and sent several demarches to the Soviet Foreign Ministry, the first of which was submitted only a few days before the conclusion of the First BWC Review Conference. The official Soviet position adopted then and maintained for over a decade was that the anthrax outbreak was of the intestinal form, caused by tainted meat, and had no connection whatsoever to any alleged Soviet bioweapons activities in breach of the BWC (Sims 1988). Further reports about details of the Soviet’s offensive BW program became public during the mid- to late 1980s, based on intelligence and additional information received from high-ranking defectors, who were employed in one of the numerous Soviet BW installations (Leitenberg 1994). The then Soviet leadership under Mikhail Gorbachev, however, categorically rejected these accusations. Following US and British political pressure, reciprocal visits to four Soviet and four US sites took place in January and October 1991, respectively (Kelly 2002). Only after dissolution of the Soviet Union did Russian president Boris Yeltsin concede in January 1992 that there was indeed an implementation deficit of the BWC’s provisions by the former Soviet Union. President Yeltsin followed this acknowledgment with two decrees, according to which all activities contravening the BWC on Russian territory would be stopped. Despite this declaration, doubts within the US and UK governments persisted about the character of Russian research and development activities in the BW area. In light of the difficulties with the informal visits to Soviet facilities during the previous year, the United States and United Kingdom insisted on formalizing the process begun to make transparent past Soviet offensive BW activities. Notably, neither the US nor the UK governments at the time were utilizing the consultation

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norm foreseen in BWC Article V. According to an agreement reached at the Second Review Conference in 1986, state parties are entitled to call a consultative meeting in situations of suspected noncompliance (United Nations 1986). However, instead of multilateralizing this process via BWC Article V or VI, the United States and United Kingdom decided to continue to deal with Soviet noncompliance on a trilateral basis. During the negotiations that eventually led to the Trilateral Declaration of September 1992 the Russian government declared that offensive BW research had been stopped, the number of employees and the amount of funding for BW-related research had been cut in half, and the Ministry of Defense department overseeing offensive BW work had been dismantled (US Department of State 1992). In the Trilateral Declaration, Russia accepted US/UK short-notice visits to any civilian site that might be BW-related in order to dispel doubts about the complete dismantling of the offensive BW program. Moreover, Russia agreed to provide to the United Nations additional information to its CBM declaration relating to past BW activities. To move the trilateral process forward, the three parties agreed to establish six working groups, covering inter alia visits to nonmilitary sites, cooperation in biodefense activities, and the confidential exchange of information relating to past offensive BW activities. However, only one of these working groups made actual progress. As one participant later observed, “Apart from visits to non-military facilities, none of these ideas was implemented, primarily because the focus quickly centered on procedures for visits to military biological facilities” (Kelly 2002: 97). Even in this area, a clarification of the status of Russian BW activities was not achieved. “The principles of ‘managed access’ were introduced, imposing significant limitations on the investigation” (Kelly 2002: 98). What the four visits to Russian facilities during October 1993 and January 1994 did prove, however, was a range of offensive Soviet BW activities in the years since entry into force of the BWC, thereby confirming earlier intelligence data and information received from Soviet defectors. The return visits to three US sites and one UK site took place in February and March 1994, respectively. One of the US sites could reportedly only be viewed after personal intervention of Vice President Al Gore, “which raised the profile of the visits markedly and sent shock waves through the American pharmaceutical industry” (Kelly 2002: 100), which had negative effects on the BWC Compliance Protocol negotiations several years later. In the aftermath, a series of trilateral meetings took place, the purpose of which was to discuss further the procedures for future visits,

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access to military sites and sites outside the three countries’ territories, and past offensive BW activities. However, the Russian presentation on its past BW program was rather superficial, discussions on military facilities did not make any progress, and the political resolve on part of the US and UK governments to press on with the process seemed to have diminished over time. Yet, despite the inability to account for the status of Russian BW activities, the trilateral process did not amount to a complete failure; for one thing, the process revealed the continued existence of a large BW-capable infrastructure with close ties to the military establishment that was lacking any identifiable commercial value or usage (Leitenberg 1996). The trilateral exercise also showed the dangers of engaging in transparency measures on a reciprocal basis, when what is required is a process focused on the facilities and activities of the suspected perpetrator of a treaty violation. Without the reciprocal visits to US industry sites, the negative attitude of the US biotech and pharmaceutical industry concerning the BWC Compliance Protocol might have been avoided. The trilateral process also demonstrated the importance of intelligence and defector information in planning the onsite visits. However, in a cooperative and multilateral environment like the BW control regime, part of this information-gathering function can be taken over by the declarations of states parties to the regime. The unsuccessful attempt to obtain a comprehensive account of past Soviet BW activities was in its design much more ambitious than CBM Measure F, which requires only the declaration of research and development activities, not the full scope of a past BW program. Knowledge of the latter, however, is essential as a baseline against which to judge whether complete disarmament has occurred (Kelly 2002). In sum, the one major violation of the disarmament norm of the BW prohibition regime by one of the three BWC codepositaries neither triggered a consultative meeting under Article V of the convention, nor a UN Security Council investigation under Article VI. The latter path was probably deemed not worth pursuing in light of Russia’s permanent Security Council membership. As a Russian veto of a Security Council investigation was likely, the issue was instead addressed through a trilateral process involving only the United States and the United Kingdom. However, the results of this process have been mixed at best, with the extent and fate of the former Soviet offensive BW program having never been publicly clarified. With respect to this continued secrecy, Milton Leitenberg and Raymond A. Zilinskas concluded in their seminal study on the Soviet/Russian BW program, “By continuing to maintain these positions, the Russian government violates both the letter and

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the spirit of the BWC, the Trilateral Agreement, and the political agreements reached in regards to the operation of the BWC’s ConfidenceBuilding Measures” (2012: 712). The Nucleus of the Consultation and Investigation Norms: Articles V and VI of the BWC

Of the two BWC articles, the consultation norm contained in Article V of the BWC is wider in scope, stipulating that states parties are “to consult and co-operate with one another in solving any problems which may arise in relation to the objective of, or in the application of the provisions of, the Convention.” Article VI establishes in its first paragraph the right of a state party “to lodge a complaint with the Security Council of the United Nations” if it “finds that any other State party is acting in breach of obligations” contained in the BWC (emphasis added). This statement is complemented by a call on all other states parties in the second paragraph of Article VI “to cooperate in carrying out any investigation” of the Security Council. As the Article VI investigation norm presumes a finding on the part of a state party that another state party is in breach of its obligations, this norm may be assumed to follow the consultation norm previously put into effect. A similar step-by-step process seems to be contained in CWC Article IX. However, in neither the BWC nor the CWC context does an investigation require a preceding consultation stage. Establishing a breach of obligations can obviously occur without having first consulted the perpetrator. Already during the First Review Conference in 1980, states parties agreed in the Final Declaration with respect to Article V that each state party could request an expert-level consultative meeting. The Second Review Conference in 1986 expanded the previous understanding and agreed that such a consultative meeting “shall be convened promptly” when requested by a state party, that the consultative meeting may “suggest ways and means for further clarifying . . . any matter considered ambiguous or unresolved,” and that the consultative meeting or any state party participating in it “may request specialized assistance” to bring the procedure to a successful conclusion (United Nations 1986: 5–6). As this consultation procedure was not only reaffirmed but elaborated even further during the Third BWC Review Conference in 1991 (Sims 1988), one might have expected the procedure to be invoked either in case of the suspected Soviet BW program or the Iraqi BW program. However, as discussed previously, the US and UK governments preferred a trilateral process with Russia in 1992

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in order to seek clarification on the status of the Soviet program. Likewise, in the aftermath of the 1991 war against Iraq, the victorious coalition of states under US leadership decided to create a new ad hoc institution under the UN Security Council, the UN Special Commission on Iraq (UNSCOM), to establish the scope of and oversee the destruction of the Iraqi weapons of mass destruction (WMD) programs (see Chapter 7). The BWC’s consultation norm and additional understandings as to its operationalization were first invoked by Cuba in 1997, when it accused the United States of causing a Thrips palmi infestation in Cuba, thereby violating the BWC’s terms. This allegation was but the latest of a whole series of Cuban accusations of US biological warfare against the island nation (Zilinskas 1999). Cuba claimed that a US aircraft had released Thrips palmi, an insect pest, as a biological warfare agent over Cuban territory, causing considerable damage to its agriculture (Zilinskas 1999). Whereas previous allegations remained in the realm of accusations reported in the media or voiced by government officials, in this case Cuba sought confirmation of its claim by invoking the BWC’s Article V consultation procedure. The Cuban request was submitted to the UN Secretary-General in April 1997, and a formal meeting of the BWC states parties was held from 25 to 27 August 1997. The process was chaired by the United Kingdom as one of the BWC depositaries. After having heard the case and received written statements from Cuba and the United States, BWC states parties participating in the consultation process had an opportunity to provide their own assessment. The chair then circulated the proceedings, including assessment by eleven states parties on 15 December 1997 of the Cuban claim (United Kingdom 1997). None of the national assessments found a credible link between the overflight of a US aircraft and the Thrips infestation in Cuba. However, while some (e.g., China and Vietnam) concluded that the nature of the event was still unclear and remained to be clarified, others (e.g., Denmark, Germany, and Hungary) saw the Thrips outbreak as the result of natural phenomena and therefore unrelated to the US aircraft. The UK chair of the consultative process concluded that, given “the technical complexity of the subject and . . . the passage of time, it has not proved possible to reach a definitive conclusion with regard to the concerns raised by Cuba,” in turn underlining “the importance of establishing as soon as possible an effective Protocol to strengthen the Convention” (United Kingdom 1997: 2–3). In the absence of such a protocol following the collapse of the AHG negotiations in 2001, BWC states parties either have to continue to rely

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on the rather unsatisfactory—that is, difficult-to-operationalize— consultation norm contained in BWC Article V or activate the UN Security Council mechanism outlined in BWC Article VI. This activation, however, has never happened in the more than thirty-five years since the BWC’s entry into force, despite accusations of states parties violating the BWC, such as the ones reported by the United States during the reconvened Fifth BWC Review Conference in 2002. BWC states parties, however, have the option of moving outside the narrow confines of the BWC into the wider prohibition regime and activating another multilateral process in the form of the UN Secretary-General’s (UNSG) mechanism in cases of suspected use of chemical or biological weapons (Tucker 2008). Originating in a 1982 UN General Assembly resolution, several CW and toxin-related investigations took place up until 1992, after which the mechanism was “allowed to atrophy” (Littlewood 2006: 30). This hiatus of interest in the UNSG’s investigative mechanism for suspected CBW use has been linked to the entry into force of the CWC in 1993 with its own investigation norms, rules, and procedures and the AHG negotiations from 1995 to 2001 (Tucker 2008; see also Chapter 7, this volume). The Transparency and Declaration Norms: Confidence Building With or Without Inspections? Confidence-building measures under the BWC. With verification mea-

sures not available to the states parties of the BWC, increased transparency through so-called confidence-building measures—effectively amounting to annual declaration by states parties—was regarded as the second-best-available option to enhance confidence in compliance with the BWC. The seeds for the confidence-building measures (CBMs) agreed upon in 1986 and 1991 were sown during the first BWC Review Conference in 1980. The final declaration of that conference noted in relation to Article II that voluntary declarations by state parties on the destruction of their former BW stockpiles “contribute to increased confidence in the Convention” (United Nations 1980: 9). A paper presented by a US diplomat in 1984 contained the first elements of the transparency measures, which would later become the CBMs (Sims 1988). The CBMs agreed upon by the Second and Third Review Conferences in 1986 and 1991, respectively, consist of a politically binding commitment of all states parties to participate in annual exchanges of data and information, as well as declarations of past and present

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activities of relevance to the convention. More specifically, the CBMs include • Measure A, Part 1—Exchange of data on research centers and laboratories that meet very high national or international safety standards (in line with WHO BL4/P4 specifications; WHO 2006) • Measure A, Part 2—Exchange of information on national biological defense research and development (R&D) programs, including declarations of facilities where biological defense R&D programs are conducted • Measure B—Exchange of information on outbreaks of infectious diseases and similar occurrences caused by toxins that seem to deviate from the normal pattern • Measure C—Encouragement of publication of results of biological research directly related to the convention and promotion of use of knowledge • Measure D—Active promotion of contacts between scientists, other experts, and facilities engaged in biological research directly related to the convention, including exchanges and visits for joint research on a mutually agreed-upon basis • Measure E—Declaration of legislation, regulations, and other measures, including exports or imports of pathogenic microorganisms in accordance with the convention • Measure F—Declaration of past activities in offensive or defensive biological R&D programs since 1 January 1946 • Measure G—Declarations on vaccine production facilities, licensed by the state party for the protection of humans The actual submission of these annual declarations by BWC states parties, however, has been unsatisfactory at best. As one early review of CBM submissions for the 1996 BWC Review Conference has detailed, “It has taken nine years of participation to reach the stage at which over half of the States Parties to the BTWC [75 out of then 138] have made at least one annual declaration. . . . Only about one-third of the States Parties to the BTWC takes part in the information exchange under the CBMs per year” (Hunger 1996: 78). The Fourth BWC Review Conference in 1996 noted this less-thansatisfactory state of affairs (Chevrier and Hunger 2000). However, the conference refrained from making concrete suggestions or taking further action on the question of timely and complete CBM submissions by states parties (or rather the lack thereof) by reference to the fact that the

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AHG is “considering the incorporation of existing and further enhanced confidence-building and transparency measures, as appropriate, in a regime to strengthen the Convention” (United Nations 1996a: 19). As this effort to negotiate a compliance protocol failed in the summer of 2001, the agreed-upon text on CBMs contained therein also fell by the wayside. Clearly, the emphasis of the AHG negotiations was inter alia on negotiating legally binding declaration, inspection, and investigation measures (described later), which would have incorporated some of the older CBMs and gone beyond the legal status of the latter. Still, however, the composite text of the AHG chairman in Appendix A contained some areas for increasing transparency, which were not regarded as central to the object and purpose of the convention so as to warrant formal declarations and visits under the protocol. These were contained in Article 15 of the Composite Text and included investigation of outbreaks of disease and national legislation and regulations (United Nations 2001a). After the collapse of AHG negotiations, South Africa advanced some proposals during the Fifth Review Conference in 2001 on strengthening the CBMs (South Africa 2001). However, given the difficulties in bringing this conference to any successful conclusion when it reconvened in late 2002 and the absence of a formal treaty review, neither did the South African initiative result in any tangible outcome to strengthen the CBMs. When the issue of confidence-building measures was taken up again at the Sixth BWC Review Conference in 2006, states parties agreed to implement new procedures in order to increase the submission rate and quality of the annual submissions. This agreement involved most crucially enlisting the assistance of the ISU to provide an electronic platform for CBM submission and annual reports by the ISU summarizing developments in relation to CBMs. However, despite claims to the contrary in the Final Document of the 2006 BWC Review Conference, “It never reached the stage of reviewing CBM implementation in any substantive sense” (Sims 2009: 61). While still falling short of a substantive review or analysis, as summarized in one study, the requested annual CBM reports compiled by the ISU “have shown an increase in the number of States Parties that have submitted their annual CBMs from 65 in 2007 to 72 in 2010” (Lentzos 2011: 161). Although suggesting only a modest increase at the level of less than half the number of BWC states parties submitting their CBMs, these figures nonetheless indicate a stabilization of CBMs at a relatively high level, compared to previous BWC state practice. Encouraged by the finding of the Sixth Review Conference that “the issue [of CBMs] merits further

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and comprehensive attention at the Seventh Review Conference” (United Nations 2006a: 22), states parties and nongovernmental organizations (NGOs) developed ideas on how to strengthen CBMs during the Seventh Review Conference (Lentzos and Hamilton 2009; Lentzos 2010). Workshops were convened by states parties with NGO involvement and resulted in a detailed proposal circulated by Norway, Switzerland, and Germany at the April 2011 meeting of the Preparatory Committee for the Seventh BWC Review Conference (Norway, Switzerland, and Germany 2011). According to Filippa Lentzos (2011), through this extensive preparatory work on CBMs, a consensus emerged among participants that a strengthened transparency norm could best be achieved through a two-step process that would initially focus on improvements of existing CBMs during the 2011 Review Conference and a subsequent, more generic discussion on how to develop further the CBM mechanism. Ideally, the second element would form part of a set of Standing Agenda Items for the 2012–2015 ISP that could be developed over the years between the Seventh and Eighth Review Conferences (Lentzos 2011). In this context, the proposal to update the CBMs “to take into account global developments in security, science, and public health” (Koblentz and Chevrier 2011: 237), so as to ensure their relevance for a changed security and political context, could then have been integrated. CBM discussions during the 2011 Review Conference led to the adoption of a new reporting form, annexed to the conference’s final document (United Nations 2011a). The Seventh Review Conference also decided to discuss during the 2012 and 2013 meetings of the ISP how to ensure fuller participation in the annual CBMs (United Nations 2011a). The more ambitious aim to have CBMs elevated to a Standing Agenda Item could not be realized. Neither did the conference agree to give a mandate to the ISP for broadening the scope of the CBMs. In sum, the history of CBMs for the BWC shows that the transparency norm has gained ground only slowly. While not rejected publicly by any BWC state party, even more than twenty-five years after the CBMs’ establishment in 1986, less than half of the state parties submit CBMs annually and even fewer actually access submitted CBMs (Norway, Switzerland, and Germany 2011). It also appears that the originally agreed-upon operationalization of the transparency norm is fairly resistant to change, with only modifications to the existing forms having been adopted in 2011 but no expansion of their scope, as advocated in some proposals (Koblentz and Chevrier 2011). A British working

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paper submitted to the December 2012 BWC Meeting of States Parties (MSP) raised several pertinent questions in relation to the purpose and effectiveness of CBMs (United Kingdom 2012). How much progress can be made on the issues identified during the 2013 ISP meetings remains to be seen. Negotiating a declaration norm under the BWC Ad Hoc Group. As with the CBMs just discussed, declarations by states parties of certain facilities and activities of relevance to the object and purpose of the BW prohibition regime form the basis of measures to increase the transparency of states parties’ actual behavior. The two major differences between CBMs and the more formal declarations negotiated by the BWC Ad Hoc Group (AHG) from 1995 to 2001 are as follows: first, the latter would have been legally and not just politically binding. Second, there is a certain expectation that declarations will trigger a clearly defined follow-up mechanism in the form of inspections, or visits, as they were called during the AHG process. In this sense, declarations of dual-use facilities in industry and other facilities, which in principle could easily be transformed from permitted to prohibited use, form the basis of a coherent compliance system. As Littlewood has pointed out, the provision of “information on activities and facilities of relevance to the Convention was not contested for two reasons. First, supplying information to an international organization on relevant activities was central to both the NPT and the CWC. . . . Second, states parties had recognized the usefulness of supplying relevant information in 1986 with the development of the CBMs” (2005: 65). However, beyond the general acceptance of the concept of declarations, BWC states parties proposed numerous different ideas on how to operationalize such a declaration norm into concrete rules and procedures. As occurs so often, the devil was in the details. During AHG negotiations it became clear very early on that the sensitivities of some states parties as to a potential loss of national-security-relevant or commercially sensitive information were much higher than, for example, in the case of the CW prohibition regime. This higher sensitivity was related to the character of the biotechnology and pharmaceutical industries—which are not as old as the chemical industry—and with military concerns that too much openness about biodefense activities might reveal one’s weaknesses to a potential aggressor contemplating the use of BW (Wright 2002). Thus, a crucial balance had to be negotiated between these concerns, maintaining the usefulness of decla-

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rations in providing an accurate picture of relevant facilities and activities in BWC state parties, and enabling adequate on-site followup activities. Throughout the AHG negotiations, declaration requirements were subdivided into initial and annual declarations. According to Jez Littlewood, the purpose of the former was to function “as a baseline of information for historical reference and additional transparency under the new regime” (2005: 68), while the latter “served as the baseline from which an assessment of compliance with the Convention was formed” (Littlewood 2005: 70). According to Article 4 of the protocol, initial declarations of a number of facilities and activities would have to be submitted within 180 days after the protocol’s entry into force, and annual declarations not later than the end of April for each year. The latest version of the composite text produced by the AHG chairman in April 2001 contained initial declarations on past defensive and past offensive BW programs (United Nations 2001a: 17–18). Here, much of the debate surrounded the date from which the declaration had to be made. Proposals ranged from 1925 (the signing of the Geneva Protocol) to 1946 (the end of World War II) to 1975, when the BWC entered into force. The composite text foresaw initial declarations to cover (1) past offensive BW programs that BWC states parties acceding to the protocol had undertaken between 1946 and entry into force of the convention for the respective state—for the United States and the Russian Federation, this year would be 1975—and (2) defensive BW programs or activities conducted during the ten years preceding the entry into force of the protocol for the state party. This selection of boundary years for the declaration of past offensive BW programs and activities—combined with the fact that, according to Article 4 of the protocol, only a narrative account of such programs and activities had to be provided— led one analyst to conclude that “the value of an unambiguous account of past biological warfare activity was lost” (Littlewood 2005: 69–70). In other words, the Russian Federation would have been able to deny a more detailed account of the past Soviet offensive BW program, which reportedly was scaled up only after entry into force of the BWC in 1975 (Alibek 1999; Leitenberg and Zilinskas 2012). The so-called trigger for and content of annual declarations were much more contested than in the case of the initial declarations. The AHG chairman’s composite protocol text provided for annual declarations in six distinct categories:

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1. National biological defense programs and/or activities against biological and toxin weapons conducted during the previous year 2. Maximum biological containment 3. High biological containment 4. Plant pathogen containment 5. Work with listed agents and/or toxins 6. Production facilities (United Nations 2001a) Lengthy discussions about the first of these categories revealed that states with biodefense activities clearly sought, through the inclusion of specific declaration triggers, to minimize the burden that the protocol would put on their own biodefense programs and activities. States with large defensive programs, for example, argued that the only sites that should be declared would be those where more than fifteen person years were devoted to R&D activities in work on pathogenicity or virulence, aerobiology, or toxicology (Beck 2004). In contrast, BWC states parties operating small biodefense programs proposed to include language in the protocol according to which biodefense facilities would have to be declared where more than five person years or persons are dedicated to biodefense work and to only list those facilities where between two and five persons are involved in biodefense work, thereby providing less detail than contained in a full declaration and reducing the reporting burden for themselves (Germany and Sweden 1999). The treatment of declarations in the protocol’s composite text reflected these diverging interests but ultimately gave greater consideration to the interests of BWC states parties with large biodefense programs (Dando 2002). As Littlewood has summarized, the compromise formula for this issue was creating “a significant loophole in the Protocol, given that the information provided in the CBMs illustrated that the US and the Russian Federation had biodefence programmes of an order of magnitude greater than any other state party” (2005: 71). Among the other Article 4 requirements for annual declarations, the one on high biological containment facilities proved particularly difficult to resolve. While states like China argued that high containment facilities should represent a stand-alone trigger for declarations, others, like the United Kingdom, voiced concerns that this approach would result in the declaration of large numbers of irrelevant facilities, such as hospital laboratories (Littlewood 2005). The compromise resulted in a combination trigger only applied to high biological containment facili-

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ties that exceed one hundred square meters, that have produced vaccines or other specified production, or that have carried out genetic modification of any agent or toxin contained in the List of Agents and Toxins as specified in Annex A to the protocol. Malcolm R. Dando has concluded that these combined requirements “would appear, effectively, to restrict the declarations triggered to facilities of real relevance to the Convention” (2002: 152). However, in light of the strong views of some states parties, such as China, it has been questioned whether this compromise language in the composite protocol text would have survived a continuation of negotiations past the summer of 2001, had they taken place (Littlewood 2005). The same can be said for the declaration trigger for production facilities in the composite protocol text, which combines earlier declaration triggers on vaccine and other production facilities. With respect to the former, all vaccine production plants were included in the declaration requirement, not just those producing vaccines against listed agents. Other facilities also included those producing biocontrol agents, thereby highlighting that not only human but also plant pathogens fall under the purview of the BWC and the protocol. Acknowledging the critical stance of some states parties and segments of the biotechnology industry, the declaration trigger on production facilities also anticipated a phase-in of declaration (and subsequent inspection) requirements for certain facilities, their full extent to be decided by the First Protocol Review Conference five years after its entry into force. One observer has argued that “the Chairman has arrived at a sensible balance between the interests of the various States Parties . . . in the last version of the rolling text” (Dando 2002: 155). In sum, these provisions detailing the rules and procedures for states parties to the protocol to follow would have changed the character of the BW prohibition regime and impacted its effectiveness, insofar as they would have provided part of the regulatory basis for a new declaration norm. At the same time, the combination of declaration triggers as contained in the AHG chairman’s composite text would have led to a situation where only the most relevant facilities—in terms of presenting a danger to the object and purpose of the regime—would have fallen under the protocol’s declaration requirements. Although this balanced approach would not have completely eliminated the risk of loss of national-security-relevant or confidential proprietary information, it clearly would have reduced the associated risks. With the collapse of the AHG negotiations in the summer of 2001, BWC states parties had to

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fall back on the notion of increasing transparency through CBMs. (The incremental nature of improvements in this area has already been discussed.) Negotiating an Inspection Norm Under the BWC Ad Hoc Group

Declaration and inspection norms form two sides of the same verification coin. As outlined above, one of the main differences between confidence-building measures and declarations lies in the fact that the latter would not have been stand-alone measures to increase transparency of state behavior in the BW prohibition regime, but instead part of a larger system of compliance measures. Routine or nonchallenge verification measures in the CW prohibition regime (see Chapter 4) are called routine inspections, which need to be distinguished from nonroutine verification measures or investigations (discussed later). Routine on-site measures in the BW prohibition regime became known as visits during the work of the AHG. An early British working paper sought to outline the rationale underlying this terminological departure from the practice in the CWC context. Informed by the “technological environment” in which routine on-site measures under the BWC protocol would take place and acknowledging “the nature of BW and legitimate microbiological activity,” the working paper called for “a different conceptual framework” (United Kingdom 1995a: 1): It is thus not appropriate to think in terms of “routine inspections” as understood in the CWC, CFE and INF Treaties for example. A BW inspection or visit, in contrast, requires a more qualitative approach. In practice this means that inspectors have to make an evaluation of a broad range of interrelated factors such as the scale of specific facilities and the explanations provided for their use. A judgment needs to be formed on whether or not the facilities and activities are consistent with their stated purpose, with descriptions of the development of the site and with the BTWC itself. (United Kingdom 1995a: 2)

While BWC states parties participating in the AHG widely adopted this terminology, the large number of different understandings and proposals on the topic of visits by a comparatively large number of states led to lengthy and difficult negotiations. Littlewood has identified twenty states involved in the debates on visits (2005). Proponents of nonchallenge visits posited a number of positive functions that such on-

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site activities would have. The proponents argued that visits would increase the transparency of BW-relevant activities, enhance confidence in the treaty-compliant behavior of BWC states parties by increasing the likelihood that violations are detected, contribute to the clarification of ambiguous declarations, and enhance cooperation among states parties. Critics of nonchallenge visits countered that the detection of treaty violations through such weak on-site measures was highly unlikely. Rather—according to this group of states, which included the United States—the danger existed that visits led to the loss of confidential business or national security information. Consequently, if the visits could not be avoided altogether, the frequency and intrusiveness of such onsite measures from this second perspective had to be minimized. Discussion of the variations of the visit concept displayed a second dividing line in the AHG, related to the question of whether visits should only be conducted in declared facilities or whether nondeclared facilities should be subject to visits as well. While the Western Group in the AHG held the latter position, a number of nonaligned countries— including China, India, Iran, and Pakistan—argued that only declared facilities should be subjected to visits (Wilson 1999). What was uncontroversial, however, was that visits would be a useful addition to the overall compliance architecture of the protocol and that “they were never intended . . . as a means to catch cheaters with the proverbial smoking gun: they were intended to check whether what was declared was consistent with what was actually happening at a facility” (Littlewood 2005: 95). The composite protocol text of April 2001 contained three different types of visits: randomly selected transparency visits, voluntary assistance visits, and voluntary transparency visits (United Nations 2001a). According to Article 6 of the compliance protocol, the total number of all visits would not have exceeded 120 per calendar year. Of these, between 60 and 90 would have been randomly selected transparency visits, and between 6 and 30 voluntary assistance visits; between 0 and 54 visits could have been allocated to voluntary transparency visits, depending on the number of requests by states parties. The purpose of randomly selected transparency visits was to increase confidence in the consistency of declarations with the activities of the facility, to encourage submission of comprehensive declarations, and to enhance transparency of declarable facilities (United Nations 2001a). In relation to declaration clarification visits, the composite protocol text stipulates,

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When a State Party considers that there is an ambiguity, uncertainty, anomaly or omission in the annual declaration concerning any facility of another State Party in accordance with Article 4 (6) to (14), it shall either seek clarification from the other State Party through the process of consultation, clarification and co-operation as provided for in Article 8, or it may submit a request in writing to the Director-General to initiate the clarification procedures set out in this section on its behalf. (United Nations 2001a: 37)

Voluntary assistance visits would have allowed a state party to the protocol to invite the inspectorate of the then foreseen BWC organization to conduct a visit on its territory in order to obtain technical assistance and information related to the implementation of the obligations under the Protocol or one of the assistance programs set up under Article 14 of the protocol (United Nations 2001a). When compared, the three types of visits emphasize different aspects of the follow-up procedures to declarations of the states parties. The different types of visits also present varying degrees of intrusiveness; voluntary assistance visits—to be initiated by the visited state party itself—were at the low end, and declaration clarification procedures—to check on facilities that should have been declared but were omitted—were at the upper end of impacting on a state’s sovereignty, perceived business, and security interests. In order to ensure the equitable distribution of visits among states parties to the protocol and to avoid placing too high a burden on individual states or facilities, several precautions had been taken, placing upper and lower limits on the number of visits to states and facilities. For all types of visits—randomly selected transparency, voluntary assistance, and voluntary transparency—the protocol contains detailed rules and procedures for the initiation, conduct, and reporting of these types of on-site measures. However, as Littlewood has shown in a careful analysis of the AHG process, these constraints were the outcome of complex negotiations in which some BWC states parties actively sought to weaken the parameters of visits under the protocol and others felt obliged to compromise by, for example, extending the mandatory notice period before a visit from twenty-four hours to five days (Littlewood 2005). Although conceptualized to offer a set of tools for bringing to life the inspection norm by allowing states parties to demonstrate their compliance with the non-acquisition norm, and presenting an additional procedure for putting the cooperation norm into effect, the voluntary

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transparency visits in particular would have veered strongly into the realm of the assistance norm. This approach could have led to a weakening of the inspection norm, should states parties have decided to launch numerous voluntary assistance visits. While the result still would have been increased transparency of the assisted states or facilities, it clearly would have broken up the linkage between declarations and inspections at the heart of an effective and efficient compliance architecture. Strengthening the Investigation Norm: Ad Hoc Group and Intersessional Process

Article VI of the BWC contains the core of the investigation norm of the BW prohibition regime. As mentioned above, this provision of the BWC has never been put to the test of UN Security Council deliberation. Instead, BWC states parties were content to utilize the investigative mechanism of the UN Secretary-General under the 1925 Geneva Protocol (see Chapter 7 for details) or—in the case of the past Soviet offensive BW program—to establish a trilateral process among the three depositary states of the BWC (see discussion earlier in this chapter). Therefore, a mechanism to investigate the suspected BWC states parties’ noncompliant behavior was still missing and widely regarded to be an essential element to the future compliance protocol. In Dando’s words, investigations are the “ultimate compliance measures” (2002: 161). As Littlewood has pointed out, only a very small number of BWC states parties at the very beginning of the AHG process objected to investigations forming a central part of the protocol (Littlewood 2005). Compared to the CWC terminology, investigations in the context of the BWC compliance protocol refer to both the equivalent of CWC challenge inspections and investigations of alleged use. After lengthy negotiations in the AHG, two different types of investigations that loosely correspond to the concepts contained in the CWC were included in the composite protocol text: field and facility investigations. Article 9 specified that while the latter category applies to investigations “to be conducted inside the perimeter around a particular facility at which there is a substantive basis” for a noncompliance concern related to Article I of the BWC, field investigations are concerned with larger geographic areas, where either similar cause for a noncompliance concern exists or a disease outbreak might be directly related to activities prohibited by the convention (United Nations 2001a: 55). One fundamental issue, which AHG members were unable to agree upon, relates to the initiation of an investigation and the related question

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of how a possibly frivolous investigation might be stopped. Basically, two different approaches could be identified. According to the first one, the so-called red-light approach, an investigation request would have gone forward unless a majority of the executive council of the organization to oversee implementation of the protocol decided otherwise. This position was supported by states—such as the United Kingdom—that wanted to see a low threshold established for such requests and expected an effective compliance regime to result from such a procedure. The green-light approach, in contrast, would allow for an inspection to proceed only if a majority of executive council members approved it. This concept was championed by those AHG states—like Russia and others—that wanted to raise the threshold for triggering investigations and thereby expected to prevent frivolous challenges or minimize the risk to national security assets or of industrial espionage (Wilson 1999). Before initiating an investigation, states parties have the opportunity to consult among themselves with the aim of resolving any matter related to a noncompliance concern—the details of the available consultation, clarification, and cooperation procedures having been laid out in Article 8 of the composite protocol (Wheelis 2000). Whenever these measures cannot dispel a noncompliance concern or are not regarded as practicable, a concerned state party can initiate an investigation. Depending on the type of investigation requested, the kind of noncompliance concern forming the basis for the request, and the location at which the investigation is to be conducted, different decisionmaking procedures are to be applied. Dando has summarized the five scenarios that need to be distinguished in this context and for which the composite text contained a graduated set of initiation procedures for investigations to be conducted: 1. A request for a field investigation of alleged use of biological weapons on the territory . . . of the requesting State Party 2. A request for a field investigation of alleged use of biological weapons on the territory . . . of another State Party 3. A request for a field investigation of alleged use of biological weapons on the territory . . . of a requesting State Party where there is concern that the outbreak of disease is related to prohibited activities 4. A request for a field investigation of alleged use of biological weapons on the territory . . . of another State Party where there is concern that the outbreak of disease is related to prohibited activities 5. A request for a facility investigation (Dando 2002: 162)

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In all five of these scenarios, the receiving state party—that is, the state on whose territory the investigation would have taken place—had the right to determine the nature and extent of access being granted to the investigation team. In addition to this managed-access procedure, Article 9 of the composite text contained provisions for moving from one type of investigation to the other, detailed measures to guard against abuse of investigations, provided specific timelines for the conduct of investigations, and outlined procedures for reporting the findings of an investigation and for follow-up activities. In sum, the resulting operationalization of the investigation norm through various rules and procedures, “although weaker than comparable challenge inspection provisions in the CWC,” served the purpose of bridging the “red-light/ green-light” decisionmaking antagonism alluded to above (Littlewood 2005: 134). As with other areas in which the AHG attempted comprehensive strengthening of the BWC, so was the set of rules and procedures elaborated in the composite text in support of an investigation norm lost with the collapse of the AHG process in July 2001. Since then, only partial measures have been discussed in the context of the first two intersessional processes, from 2003 to 2005 and 2007 to 2010, respectively. A first opportunity in this context arose with the 2004 intersessional topic to “discuss, and promote common understanding and effective action on . . . enhancing international capabilities for responding to, investigating and mitigating the effects of cases of alleged use of biological or toxin weapons or suspicious outbreaks of disease” (United Nations 2002: 4, emphasis added). The conference secretariat prepared for the meeting of experts a background document on mechanisms available to BWC states parties for the investigation of alleged BW use (United Nations 2004a). In addition to reiterating the basic provisions of BWC Article VI in this respect, the document provided a concise overview of the investigative mechanism available to the UN Secretary-General. As the report of the expert meeting summarized, there had been “36 statements, presentations and interventions on investigations” (United Nations 2004b: 4). These were supported by numerous working papers submitted by states parties. Although the UN Secretary-General’s mechanism (SGM) is addressed in greater detail in Chapter 7, it is worth noting here that not all BWC states parties view the SGM in a positive light. The Iranian working paper on investigations, for example, contended that the SGM

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is not an appropriate one since it has been set out on the basis of the international political and security environment of the 1980s, when the Chemical Weapons Convention had not been finalized and entered into force and the Ad Hoc Group negotiation on the Protocol strengthening the implementation of the BTWC had not come into being. The text of these guidelines and technical procedures for investigation has not been negotiated by States Parties to the BTWC and therefore do not fully reflect their legitimate and immediate concerns. (Iran 2004: 2)

Similarly, the Chinese delegation has been recorded as stating that the SGM “only deals with the alleged use of biological and chemical weapons and has its legal basis from the 1925 Geneva Protocol. The mechanism was not created for the purpose [of] investigating compliance with the Convention” (United Nations 2004b: 49). This restrictive view of the SGM’s applicability was contested in working papers by, for example, Germany, the United Kingdom, and South Africa (Germany 2004; United Kingdom 2004; South Africa 2004). During the meeting of states parties in December 2004, the various detailed papers were further considered. BWC states parties in the report of the meeting agreed on the value of: a) continuing to develop their own national capacities for response, investigation and mitigation, in cooperation with the relevant international and regional organisations, and, if in a position to do so, assisting and encouraging, with the necessary agreement, other States Parties to do the same; b) the Sixth Review Conference considering, inter alia, the further development of current procedures for the provision of assistance, by those in a position to do so, to States Parties in cases of alleged use of biological weapons or suspicious outbreaks of disease. (United Nations 2004c: 5)

In addition, the chairman of the meeting of states parties provided a synthesis of the numerous proposals, considerations, perspectives, and recommendations put forward during the meeting of experts and summarized relevant issues under the headings of general principles, international cooperation and support, organization of national preparedness, communication and information management, standards and legal frameworks, laboratories and technology, and the UN SecretaryGeneral’s investigation mechanism (United Nations 2004d). Just listing these different areas of relevance for establishing rules and proce-

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dures to operationalize the investigation norm with respect to alleged BW uses and suspicious outbreaks of disease shows the complexity of the task for individual BWC states parties. Notably, upon the insistence of some states parties, the December 2004 report stated that neither the collection of proposals from the meeting of experts nor the synthesis document provided by the chair had been “discussed or agreed upon and consequently have no status” (United Nations 2004c: 5). In other words, while numerous ideas on how to strengthen the rudimentary investigation norm of the BWC prohibition regime were floated in 2004, actual implementation of any of these measures was left to individual states’ judgments. As a result, it has to be inferred that BWC states parties made some progress with respect to the promotion of common understandings of the investigation norm, but due to the lack of systematic follow-up activities whether any effective action has resulted from the discussion of this topic during the 2004 meetings of experts and states parties is unclear. In terms of an institution-wide positive effect on the BWC, there have been no signs of such effective action resulting from the 2004 ISP on investigations. Strengthening the Internalization Norm: Improving National Implementation

Article IV of the BWC obliges every state party “in accordance with its constitutional processes, [to] take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition, or retention of the agents, toxins, weapons, equipment and means of delivery specified in Article I of the Convention, within the territory of such State, under its jurisdiction or under its control anywhere.” Over the course of the first few review conferences, “national implementation has become to be closely identified with the adoption of new legislation” (Sims 1996: 46). As Sims further explains, “Such legislation ties the Convention into national legal systems in the clearest possible way. It contributes to the strengthening of compliance by expanding the constituency with an institutional interest in the success of the Convention. It also builds the treaty regime flowing from the Convention into normative structures at the national level” (Sims 1996: 46). However, as one study uncovered in 1991, very few BWC states parties had actually lived up to this obligation (Goldblat and Bernauer 1991), despite the fact that the Second Review Conference in 1986 had included the declaration of legislation, regulation and other measures as one of the CBMs discussed earlier. In other words, on the rhetorical level, BWC

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states parties regularly agreed at review conferences on the value of national implementation measures to internalize the norms of the BW prohibition regime—and on the practical level, they devised a CBM submission form to be filled in by states parties annually—yet evidence of actual compliance with the internalization norm remained patchy over the first two decades of BWC implementation. The AHG negotiations that began in 1995 resulted in an attempt to mirror and expand the BWC provisions on national implementation in Article 17 of the composite protocol text put forward by the AHG chairman. States parties to the protocol would have been required to “prohibit natural and legal persons anywhere on its territory or in any other place under its jurisdiction as recognised by international law from undertaking any activity prohibited to a State Party under the Convention, including enacting penal legislation with respect to such a prohibition” (United Nations 2001a: 99). The protocol text was going beyond the BWC in that it also stipulated the establishment of a national authority in each state party in order to “serve as the national focal point for effective liaison with the Organisation and with other States Parties” (United Nations 2001a: 99). The national authority would have been essential in fulfilling all the declaration and inspection tasks foreseen in the protocol text. As with the substantive improvements discussed so far, this organizational strengthening of BWC implementation fell by the wayside with the collapse of the AHG negotiations in 2001. The ISP established by the Fifth BWC Review Conference in 2002 represented a major change from the AHG attempts to broaden the normative base of the BW prohibition regime toward a more inward-looking approach aimed at gaining a better understanding of the implementation of already existing regime norms. This approach affected different aspects of the internalization norm from the beginning of the first cycle of the ISP. The meetings of experts and states parties were held in August and November 2003, respectively. The topics discussed were “the adoption of necessary national measures to implement the prohibitions set forth in the Convention, including the enactment of penal legislation” and “national mechanisms to establish and maintain oversight of pathogenic micro-organisms and toxins” (United Nations 2002: 3). The most positive aspect of this first set of topics discussed under the ISP was the submission by many states parties of detailed information regarding their national experiences and practices. Transparency clearly increased, marking a deviation from the pattern of widespread neglect in relation to the politically binding CBMs agreed upon in 1986 and 1991. However, as one commentator

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pointed out, this “mountain of paper” was delivered some twenty-three years late, as the First BWC Review Conference in 1980 had already issued in its final document a call to submit such information (Littlewood 2003). While the experts meeting was limited to a technical discussion of the issues involved, there was hope that during the “annual meeting a political assessment of its outcome and more detailed exploration of how to take things forward” would be conducted (Littlewood 2003: 64). As a matter of fact, during the 2003 meeting of states parties, Several countries (including Germany, India, New Zealand, Pakistan, South Africa and Sweden) argued for distilling the voluminous data exchanged at the experts’ meeting into a set of voluntary guidelines for penal legislation and biosecurity regulations, that could be incorporated into the final document, thereby ensuring greater uniformity and consistency in how member states implement the BWC. (Tucker 2004: 32)

However, as the ISP is based on the consensus principle, a few states parties, which objected to the identification of such best practices, were able to prevent greater consistency from being achieved. As a result the substantive part of the political statement merely urged member states to do what their ratification of the BWC under Article IV of the convention requires them to do anyway: enact the BWC’s prohibitions on the domestic level. Although a few pointers were contained in the statement of the states parties’ meeting, no concrete guidance was offered nor harmonization sought. In effect, those states parties rejecting any form of obligations resulting from the ISP in 2002 were able to cement this approach in 2003 with the discussion of the first substantive topic. In 2005, BWC states parties discussed “the content, promulgation, and adoption of codes of conduct for scientists” as the final topic of the first round of the ISP (United Nations 2002: 4). As in the preceding two years, this meeting of experts saw the submission of numerous working papers by BWC states parties that contained both a huge amount of factual information on the various codes of conduct already in place in the respective countries and several conceptually innovative papers. Among the latter was a paper submitted by Canada, discussing the relationship between legislation and codes of conduct. It contained the suggestion, worth quoting at length, that the two could be examine[d] . . . using an analogy of traffic lights. As will be well known, traffic lights around the world use essentially the same system,

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green for go, red for stop and amber as a warning that the lights are about to change. Legislation and regulations can be viewed as being akin to a red light. . . . A green light in this context can be seen as freedom to proceed with research. However there are still agreed upon rules of the road that [one] must follow, a situation which is analogous to that of codes of practices for scientific research. While these types of documents generally do not prohibit any particular form of research, they do set guidelines for biosafety and biosecurity, as well as outlining procedures designed to maximize the efficiency of an organization or project. . . . The analogy of the amber light is perhaps the most interesting given the function of this particular signal. An amber light does not necessarily oblige one to stop (depending on the situation), but it warns that such an obligation is close at hand. (Canada 2005: 4)

Although the experiences reported and the focus of proposals varied among states parties, the collection of statements, interventions, and working papers on codes of conduct as collated in the Annex to the report of the meeting of experts shows a remarkably broad convergence of largely compatible views (United Nations 2005a). Algeria, for example, stated that “the elaboration of these codes should be based on the norms established by the Convention and should be consistent with the legislative and regulatory framework adopted by the States Party” (United Nations 2005a: 9). The United States pointed out that codes “would extend responsibility for helping implement the provisions of BWC to the level of individual scientists” (United Nations 2005a: 9) and further elaborated that, in its view, “Key components of code development process include defining scope and goals of code, stakeholder communication and education, public communication and education, [and] developing institutions and infrastructure to support and maintain code[s]” (United Nations 2005a: 14). From Australia’s perspective, “There should be three layers of codes: at the top, a universal code describing the ethical norms and principles; in the middle, more detailed codes developed or adapted by scientific societies; and at the bottom, operational codes specific to a particular workplace or institution” (United Nations 2005a: 15). One of several nongovernmental participants, the Islamic World Academy of Sciences, suggested that “notwithstanding the important roles of other stakeholders, academies of sciences perhaps should shoulder a primary responsibility in the development, promulgation and adoption of codes of conduct for scientists” (United Nations 2005a: 17). This suggestion, however, seemed to interfere with some states parties’ sense of ownership of the internal-

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ization norm. Iran, for example, cautioned in this respect that because “any code as devised by States shall ultimately be applied to their subjects, it remains the prerogative to States Parties to decide on the content, promulgation and adoption of codes” (United Nations 2005a: 11). This theme reemerged during the 2012 ISP discussions on science and technology issues, which contained a subsection on “codes of conduct and other measures to encourage responsible conduct by scientists, academia and industry” (United Nations 2012a: 24). In December 2005 further discussion of codes of conduct during the meeting of BWC states parties resulted in detailed consensual language being recorded in the meeting report on (1) the mandate to discuss codes and principles underlying them, (2) the content of codes of conduct, and (3) their adoption (United Nations 2005b). In addition, the 2005 chair of the BWC meetings issued a synthesis paper of proposals, recommendations, and so forth under his own authority (United Nations 2005c). Notably, despite the largely uncontroversial nature of the discussions on this ISP topic, neither of the two documents formally commits a BWC state party to do anything in order to actually promote or assist in the adoption of codes of conduct or any other national implementation measure. This approach was not changed during the Sixth BWC Review Conference in 2006, which noted “that the Meetings of States Parties and Meetings of Experts functioned as an important forum for exchange of national experiences and in-depth deliberations among States Parties” (United Nations 2006a : 19). The Sixth BWC Review Conference also agreed to extend the procedural limitations of the ISP work and on the six topics to be discussed during the second ISP from 2007 to 2010, four of which have direct relevance to the internalization norm of the BW prohibition regime. They are as follows: (i) Ways and means to enhance national implementation, including enforcement of national legislation, strengthening of national institutions and coordination among national law enforcement institutions. (ii) Regional and sub-regional cooperation on implementation of the Convention. (iii) National, regional and international measures to improve biosafety and biosecurity, including laboratory safety and security of pathogens and toxins. (iv) Oversight, education, awareness raising, and adoption and/or development of codes of conduct with the aim of preventing misuse in the context of advances in bio-science and bio-technology research with the potential of use for purposes prohibited by the Convention. (United Nations 2006a: 21)

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Of these four topics, the first two were addressed during the 2007 ISP sessions, and the latter two during 2008. The first topic revisited national implementation, which—as outlined above—had been addressed in 2003, and the fourth topic showed a substantial overlap with codes of conduct discussed in 2005. Significant in terms of the scope for further institutionalization of the internalization norm was the fact that BWC states parties had again limited the mandate of the ISP meetings to “discuss and promote common understanding and effective action,” and hence not to arrive at binding operationalizations of the internalization norm. With these limitations in place, elements of the 2007 report of the meeting of states parties in relation to the first topic are discussed here as an example of a pattern that has repeated itself in relation to items two to four on the ISP’s work program. BWC states parties in the 2007 report inter alia recognised the value of ensuring that national implementation measures: (i) penalize and prevent activities that breach any of the prohibitions of the Convention, and are sufficient for prosecuting prohibited activities; (ii) prohibit assisting, encouraging or inducing others to breach any of the prohibitions of the Convention; (iii) are not limited to enacting relevant laws, but also strengthen their national capacities, including the development of necessary human and technological resources; (iv) include an effective system of export/import controls, adapted to national circumstances and regulatory systems; (v) avoid hampering the economic and technological development of States Parties, or international cooperation in the field of peaceful uses of biological science and technology. (United Nations 2007a: 5)

In addition, the document recorded agreement on the value of “promoting cooperation and coordination among domestic agencies . . . of ensuring effective enforcement of their legislative and regulatory measures in ensuring national implementation [and] . . . of regular national reviews of the adopted measures” (United Nations 2007a: 5). Although some of these measures are further specified, with examples provided of what actions states might consider taking, the level of some of these understandings borders on the self-evident and does not constitute significant progress in operationalizing the internalization norm during the second cycle of the ISP over the discussion and understandings reached in dealing with national implementation in 2003.

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Furthermore, some of the understandings that could be useful in providing a basis for a convergence of state practice in national implementation of the convention have been qualified by less than helpful interpretations. One case in point is contained in the 2008 report of the meeting of states parties: States Parties noted their common understanding that in the context of the Convention, biosafety refers to principles, technologies, practices and measures implemented to prevent the accidental release of, or unintentional exposure to, biological agents and toxins, and biosecurity refers to the protection, control and accountability measures implemented to prevent the loss, theft, misuse, diversion or intentional release of biological agents and toxins and related resources as well as unauthorized access to, retention or transfer of such material. (United Nations 2008a: 4–5; emphasis in original)

This rather useful clarification of terminology in the context of national implementation measures was immediately qualified by a footnote in the document stating that “this constitutes an understanding and is not a definition of biosafety and biosecurity. It is not binding on States Parties” (United Nations 2008a: 5). Some BWC states parties apparently are using whatever means available to ensure that no binding understandings or calls for action emerge from the ISP. As in 2006, the 2011 Seventh BWC Review Conference merely noted the work of the ISP during the 2007–2010 period but did not manage to agree to build on it in a cumulative and constructive way. The one improvement as far as operationalizing the internalization norm is concerned is that “strengthening national implementation” of the BWC has been elevated to a so-called standing agenda item for the 2012–2015 period (United Nations 2011a: 21). In other words, national implementation measures will be discussed in all four years of the ISP not only two. As alluded to earlier, the BWC Review Conference did not specify for the third cycle of the ISP how to organize its very full and demanding program of work, only that it should address all of the following under the standing agenda item on strengthening national implementation: (a) a range of specific measures for the full and comprehensive implementation of the Convention, especially Articles III and IV; (b) ways and means to enhance national implementation, sharing best practices and experiences, including the voluntary exchange

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of information among States Parties on their national implementation, enforcement of national legislation, strengthening of national institutions and coordination among national law enforcement institutions; (c) regional and sub-regional cooperation that can assist national implementation of the Convention; (d) national, regional and international measures to improve laboratory biosafety and security of pathogens and toxins; (e) any potential further measures, as appropriate, relevant for implementation of the Convention. (United Nations 2011a: 24)

In the absence of any guidance from the 2011 BWC Review Conference, the chair of the 2012 ISP meetings outlined his plans in a June 2012 letter to the BWC states parties. Accordingly, the July meeting of experts would devote two half-days of the one-week meeting to strengthening national implementation and addressing items (a) to (c) from the list above (United Nations 2012a). As in the past, BWC states parties submitted working papers, made statements, and gave presentations on the specified topics. Apart from rehearsing well-known positions on national implementation, some states parties, such as Iran, saw an opportunity for political jockeying arising in the context of the controversy around the publication of H5N1 virus transmissibility studies in early 2012 (see Chapter 2), when it made the easily refuted claim that “some countries do not have a clear picture about the authorized and unauthorized activities in the framework of the BWC. Scientists and institutions in one country were easily funded by other countries to work on the areas that are equal to a bioweapon” (United Nations 2012b: 31). In light of such gross simplifications, it remains to be seen whether BWC states parties will find a way to use constructively the more reasonable proposals on strengthening national implementation made during the July 2012 meeting of experts to actually achieve this result. In light of the absence of both a decisionmaking component in the ISP mandate and any legally binding obligations for national implementation that states parties would commit to—going beyond Article IV of the BWC—such improvements will be dependent on the “good will” of states parties (Belarus, quoted in United Nations 2012b: 28). Although the advance report of the December 2012 MSP recorded several measures that were identified with a view to strengthening national implementation of the BWC (United Nations 2012c), the many caveats attached to these measures suggest that the above-mentioned goodwill was not in plentiful supply.

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The Assistance Norm: From Preparing for the Worst to Strengthening Public Health

According to Article VII of the BWC, “Each State Party to this Convention undertakes to provide or support assistance, in accordance with the United Nations Charter, to any Party to the Convention which so requests, if the Security Council decides that such Party has been exposed to danger as a result of violation of the Convention.” There was thus no automatism built into the assistance norm of the BW prohibition regime when the BWC was drafted. Instead, in a strict interpretation of the convention, assistance would require a previous finding of the UN Security Council that such measures would be warranted. The fact that this might lead to unacceptable delays in terms of providing emergency assistance in case of suspected BW use or a suspicious outbreak of disease has been acknowledged by successive BWC Review Conferences. The Fourth Review Conference, for example, noted in its final document that “pending consideration of a decision by the Security Council, timely emergency assistance could be provided by States Parties if requested” (United Nations 1996a: 21). Similarly, it has long been acknowledged that, in the early stages of an incident that could trigger the BWC assistance provision, distinguishing between a deliberate release of a biological warfare agent and the outbreak of a natural disease might be difficult. Thus other national and international institutions would likely be involved in providing assistance. The final document of the Sixth BWC Review Conference therefore considered that in the event that this Article might be invoked, the United Nations could play a coordinating role in providing assistance, with the help of States Parties as well as the appropriate intergovernmental organizations such as the World Health Organization (WHO), the World Organisation for Animal Health (OIE), the Food and Agriculture Organization of the United Nations (FAO), and the International Plant Protection Convention (IPPC). (United Nations 2006a: 15)

As in many other areas of BWC implementation, the envisaged compliance protocol that was negotiated between 1995 and 2001 foresaw several detailed assistance rules and procedures that would have operationalized the assistance norm in a legally binding way for states parties, had the negotiations been successful. The chairman’s composite text of April 2001 contained in Article 13 a clear description of the scope of assistance:

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The co-ordination and delivery to States Parties of protection against bacteriological (biological) and toxin weapons, including, inter alia, any of the following: detection equipment, including biosensors; alarm equipment; protective equipment; decontamination equipment and decontaminants; prophylactic, diagnostic and/or therapeutic medical measures and materials; and/or advice on any of these protective measures. (United Nations 2001a: 71)

Article 13 further specified three mechanisms in which states parties to the protocol could comply with their obligation under the assistance norm that mirror the provisions in the Chemical Weapons Convention—that is, to contribute to a voluntary assistance fund, declare the type of assistance it would be willing to provide if so requested, or enter into an agreement concerning the procurement of assistance with the envisaged new organization to oversee implementation of the protocol (see Chapter 4 for implementation of this provision in the CWC context). In addition, the secretariat of the BWC protocol organization was expected to “establish, not later than 180 days after entry into force of this Protocol, and maintain, for the use of any requesting State Party, a databank containing freely available information concerning various means of protection” (United Nations 2001a: 71). The provision of assistance in cases when a state party considers that BW have been used against it would under the protocol also have triggered a field investigation in order to establish the details of such BW use. In all cases of provision of assistance, the Director-General of the BWC protocol organization would have to report his findings to the Executive Council of the organization within seventy-two hours, and if the examination took a longer period than that, every seventy-two hours thereafter. After the collapse of the AHG negotiations and with the beginning of the first ISP in 2003, the assistance measures discussed lost not only their potentially legally binding character—and with this, a higher degree of confidence that assistance would actually be forthcoming when requested—but the discussion around them also shifted away from its focus on protective measures. In the mandate for the first ISP from 2003 to 2005, assistance featured in one of the issues to be addressed during the 2004 meetings, namely “enhancing international capabilities for responding to, investigating and mitigating the effects of cases of alleged use of biological or toxin weapons or suspicious outbreaks of disease” (United Nations 2002: 3). After discussion of the agenda item during the summer 2004 meeting of experts, the report of the meeting of states parties

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agreed on the value of: a) continuing to develop their own national capacities for response, investigation and mitigation, in cooperation with the relevant international and regional organisations, and, if in a position to do so, assisting and encouraging, with the necessary agreement, other States Parties to do the same; b) the Sixth Review Conference considering, inter alia, the further development of current procedures for the provision of assistance, by those in a position to do so, to States Parties in cases of alleged use of biological weapons or suspicious outbreaks of disease. (United Nations 2004c: 5; emphasis added)

As the article-by-article review of the convention during the Sixth BWC Review Conference in 2006 showed, in relation to BWC Article VII, the conference took “note of the proposal that States Parties may need to discuss the detailed procedure for assistance in order to ensure that timely emergency assistance would be provided by States Parties” (United Nations 2006a: 14). When the 2006 Review Conference reached agreement on the ISP work program for the 2007–2010 period, this reflected on the one hand the 2004 call of the meeting of experts and the conference’s own assessment concerning assistance provision. On the other hand, the agenda items related to the assistance norm were—as the long-winded formulation of the two topics below clearly shows—embedded in a much wider context of public health security and international cooperation activities. The two topics to be addressed in 2009 and 2010, respectively, were (v) With a view to enhancing international cooperation, assistance and exchange in biological sciences and technology for peaceful purposes, promoting capacity building in the fields of disease surveillance, detection, diagnosis, and containment of infectious diseases: (1) for States Parties in need of assistance, identifying requirements and requests for capacity enhancement; and (2) from States Parties in a position to do so, and international organizations, opportunities for providing assistance related to these fields. (vi) Provision of assistance and coordination with relevant organizations upon request by any State Party in the case of alleged use of biological or toxin weapons, including improving national capabilities for disease surveillance, detection and diagnosis and public health systems. (United Nations 2006a: 21)

The 2009 discussions on assistance and cooperation in the ISP meeting of experts and states parties clearly had a public health– oriented focus. As the report of the December meeting of states parties

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recorded, “States Parties agreed on the value of working together to promote capacity building in the fields of disease surveillance, detection, diagnosis, and containment of infectious diseases” (United Nations 2009: 5). In addition, the report recognized the importance of the coordinating role of international organizations, such as the World Health Organization, and of developing effective national and international infrastructure for disease surveillance, detection, diagnosis, and containment. BWC states parties furthermore “agreed on the value of developing human resources for” these purposes and “of implementing standard operating procedures, taking into account their national needs and circumstances” (United Nations 2009: 5–6). The emphasis in the 2009 discussions on international assistance and cooperation had clearly moved away from a narrow interpretation of the assistance norm as originally foreseen in Article VII of the BWC and was increasingly addressing actual and potential rules and procedures to strengthen national health systems through international cooperation. This trend continued during the 2010 ISP meetings, which resulted inter alia in the recognition that the provision of assistance and coordination with relevant international organizations in the case of alleged use of biological or toxin weapons “is an issue that has health and security components, at both the national and international levels” (United Nations 2010a: 4). Expressing their appreciation of the complexity of creating effective rules and procedures for the provision of assistance and its coordination among a multitude of national and international actors, states parties noted challenges to overcome in the areas of procedures for assistance requests; resources in the human, animal, and plant health fields in developing countries; and ensuring a prompt response to assistance requests. Recognizing furthermore “the potentially complex and sensitive interface between an international public health response and international security issues” (United Nations 2010a: 4) and taking into account their commitments under Articles VII and X, [BWC member states] emphasised the value of assisting other States Parties, including by: (a) enhancing relevant capabilities, including through promoting and facilitating the generation, transfer, and acquisition upon agreed terms, of new knowledge and technologies, consistent with national law and international agreements, as well as of materials and equipment; (b) strengthening human resources; identifying opportunities for collaborative research and sharing advances in science and technology;

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(c) sharing appropriate and effective practices for biorisk standards in laboratories handling biological agents and toxins. (United Nations 2010a: 4–5)

Last but not least, the 2010 BWC meeting of states parties report also noted the diversity of actors involved in an effective response to a suspected BW attack or suspicious outbreak of disease. In this context, “States Parties recognised the particular importance of ensuring a coordinated response from the law enforcement and health sectors” (United Nations 2010a: 5). This widening of the scope of BWC Article VII continued during the Seventh Review Conference—which covered in its article-by-article review of the convention many of the same issues in relation to the assistance norm already addressed during previous review conferences—when states parties noted “that the International Health Regulations (2005) are important for building capacity to prevent, protect against, control and respond to the international spread of disease” and stated that “such aims are compatible with the objectives of the Convention” (United Nations 2011a: 15). In its forward-looking part on the third cycle of the ISP from 2012 to 2015 the Seventh Review Conference decided to include discussions on how “to strengthen implementation of Article VII, including consideration of detailed procedures and mechanisms for the provision of assistance and cooperation by States Parties” in the ISP’s work program for 2014 and 2015 (United Nations 2011a: 21). Before that, however, the ISP is from 2012 onward again focusing on cooperation and assistance as one of the three standing agenda items to be addressed in each year of the ISP. In sum, over the past decade, the range of measures and procedures addressed under the heading of assistance has seen a considerable widening from its original focus as contained in the wording of BWC Article VII, which in effect was limited to assistance for traditional biodefense measures, to include more and more public health–related issues—a shift in emphasis that has largely been a function of the heightened threat perception of a potential bioterrorist attack (Kelle 2007b; see also Chapter 6, this volume). The Adaptation Norm: From Generic Review Conference Exhortations to Annual Science and Technology Reviews

Negotiators of the BWC acknowledged the fact that the state of the art in the life sciences and continuing scientific and technological (S&T)

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developments have a profound impact on the possibility to wage biological warfare and also codetermine the effectiveness of efforts to prohibit BW and the robustness of the regime created to prevent biological warfare. Despite the fact that the general-purpose criterion contained in Article I of the BWC tries to future-proof the convention against S&T surprises that might lead to undermining it, states parties have during successive BWC Review Conferences addressed the most recent S&T developments at the time with a focus on the scope of the convention. While the First Review Conference in 1980 reaffirmed the comprehensive scope of Article I, stating that “The Conference believes that Article I has proved sufficiently comprehensive to have covered recent scientific and technological developments relevant to the Convention” (United Nations 1980: 2), the Second BWC Review Conference was already much more specific in highlighting the fields of S&T progress that states parties were most concerned about being misused: The Conference, conscious of apprehensions arising from relevant scientific and technological developments, inter alia, in the fields of microbiology, genetic engineering and biotechnology, and the possibilities of their use for purposes inconsistent with the objectives and the provisions of the Convention, reaffirms that the undertaking given by the States Parties in Article I applies to all such developments. The Conference reaffirms that the Convention unequivocally applies to all natural or artificially created microbial or other biological agents or toxins whatever their origin or method of production. Consequently, toxins (both proteinaceous and non-proteinaceous) of a microbial, animal or vegetable nature and their synthetically produced analogues are covered. (United Nations 1986: 3)

The Third Review Conference in 1991 left the 1986 statement on S&T developments unchanged. However, states parties in 1996, at the BWC’s Fourth Review Conference, felt compelled to add that “any applications resulting from genome studies” was covered by the convention’s prohibitions (United Nations 1996a: 15). The steady S&T progress in a number of areas of the life sciences between the Fourth Review Conference and the Fifth Review Conference in 2001 was reflected in several submissions by states parties to the Fifth Review Conference. However, as outlined above, the 2001 Review Conference did not manage to produce an article-byarticle review of the BWC. Due to the resulting absence of a final document, the shared interpretations of BWC states parties on S&T advances in the life sciences that were of relevance at the time have not been recorded in a consensual review conference document.

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Although the intersessional process agreed upon during the Fifth Review Conference allowed for the in-depth discussion of specific topics of relevance to the BWC, S&T advances was not one of them. Therefore, the next opportunity to review developments in this area arose with the Sixth Review Conference in 2006. However, in contrast to previous conferences, BWC states parties decided to simply note that “Article I applies to all scientific and technological developments in the life sciences and in other fields of science relevant to the Convention” (United Nations 2006a: 9). As before, S&T developments were not considered as a topic in their own right during one of the annual meetings of the Second Inter-Sessional Process from 2007 to 2010. In the assessment of Nicholas Sims, “S&T was a casualty of the wider failure to have a short list of ‘recurrent topics’ allowed on the agenda of the Meetings of States Parties” (Sims 2009: 59). However, as one analysis of the S&T trends of relevance pointed out before the Seventh Review Conference, the intersessional processes “have included both meetings where advances in science and technology are integral to the discussions (e.g., public health and disease surveillance in 2004 and 2009, investigations of alleged use in 2010) and those that touch directly on the interests of the scientific community (e.g., codes of conduct in 2005, education and research oversight in 2008)” (Bowman, Hughes, and Husbands 2011: 17). This unsatisfactory treatment of S&T advances led to an increasing number of calls for a more regular and more systematic review of the revolution in the life sciences, echoing the concern that was already expressed in a UK Green Paper in 2002, in which the UK government emphasized that the “accelerating pace of scientific developments now makes it quite unsafe only to have five-yearly technology reviews by the States Parties to support the five-yearly Review Conferences” (United Kingdom 2002: 14). More recently C. Rhodes and M. Dando proposed to move beyond individual state party or nongovernmental assessments, arguing that “in the long term, scientific advice needs to be made a formal part of the BWC regime based on consensus because advice from outside organizations may be dismissed as politically motivated by some states” (2007: 96). Absent such a formalized process, the run-up to the Seventh Review Conference saw numerous papers on S&T developments of relevance to the BWC submitted by NGOs and think tanks (Hart and Trapp 2011; Dando and Pearson 2010; Nixdorff and Dando 2011; Pearson 2010; 2011; National Research Council 2011a). In addition, the Preparatory Committee of the 2011 Review Conference invited states parties to make available national assessments to the Implementation Support Unit, which integrated these submissions

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into a background document distributed during the conference itself (United Nations 2011b). Table 3.1 provides an overview of the S&T areas covered by the ISU background paper under the four headings of general trends, developments with possible negative consequences, developments with possible beneficial consequences, and enabling advances and technologies. This overview, based on contributions from states parties, was accompanied by relevant trends in the life sciences and related fields by the Inter-Academy Panel (IAP), which is the Global Network of Science Academies. Echoing some of the themes contained in the ISU overview, the IAP document focused on S&T developments in terms of the pace

Table 3.1 Categories of S&T Advances of Relevance to the BWC Contained in the Background Paper for the Seventh BWC Review Conference A. General trends 1. Convergence 2. Increasing understanding of the life sciences 3. Trends in biotechnology 4. Global distribution of capacity 5. Open science 6. Media, perceptions, and society B. Developments with possible negative consequences 1. Specific research and projects of interest 2. Advances with potential for weapon applications C. Developments with possible beneficial consequences 1. Detection 2. Diagnostics 3. Prevention and prophylaxis 4. Therapeutics 5. Response capacity D. Enabling advances and technologies 1. Characterizing biological systems and networks 2. Manipulating biological systems and networks 3. Engineering biological systems and networks 4. Gathering and manipulating biological information 5. Converting biological information to digital data and back 6. Generic enabling technologies

Source: Data from United Nations 2011b.

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of change in the life sciences and related fields, the increasing diffusion of life sciences research capacity, the extent to which additional S&T disciplines beyond biology are increasingly becoming integrated into life sciences research, and drivers and roadblocks for further advances in the life sciences (United Nations 2011b). In addition, two states parties added to the national contributions to the ISU background document on S&T issues with working papers delivered during the review conference itself. India presented a proposal containing a detailed list of topics for strengthening the S&T review process and advocated to conduct reviews on an annual basis (India 2011). Similarly, a working paper jointly submitted by Australia, Japan, and New Zealand argued in favor of an open annual S&T review process over the “creation of a scientific advisory board or panel with limited membership” (Australia, Japan, and New Zealand 2011: 2). However, even though some of the more far-reaching ideas contained in the paper, such as involving scientific organizations such as the Inter-Academy Panel more directly in the S&T review process, did not find their way in the agreement reached by the Seventh Review Conference, the fate of more frequent S&T reviews not having been established during the previous review conference could be avoided in 2011. As a result of the combined efforts of BWC states parties and members of civil society in the form of NGOs, think tanks, and science academies in (a) contributing to the review of S&T developments of relevance and (b) arguing to put the S&T review process on a stronger basis of more regular reviews, the Seventh Review Conference agreed to designate S&T developments as one of the three Standing Agenda Items for the third ISP cycle from 2012 to 2015. For the resulting very detailed and equally ambitious annual review, BWC states parties agreed that the following topics will be addressed . . . : (a) new science and technology developments that have potential for uses contrary to the provisions of the Convention; (b) new science and technology developments that have potential benefits for the Convention, including those of special relevance to disease surveillance, diagnosis and mitigation; (c) possible measures for strengthening national biological risk management, as appropriate, in research and development involving new science and technology developments of relevance to the Convention; (d) voluntary codes of conduct and other measures to encourage responsible conduct by scientists, academia and industry;

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(e) education and awareness-raising about risks and benefits of life sciences and biotechnology; (f) science- and technology-related developments relevant to the activities of multilateral organizations such as the WHO, OIE, FAO, IPPC and OPCW; (g) any other science and technology developments of relevance to the Convention. 23. The following topical scientific subjects will be considered in the years indicated: (a) advances in enabling technologies, including high-throughput systems for sequencing, synthesizing and analyzing DNA; bioinformatics and computational tools; and systems biology (to be considered in 2012); (b) advances in technologies for surveillance, detection, diagnosis and mitigation of infectious diseases, and similar occurrences caused by toxins in humans, animals and plants (to be considered in 2013); (c) advances in the understanding of pathogenicity, virulence, toxicology, immunology and related issues (to be considered in 2014); (d) advances in production, dispersal and delivery technologies of biological agents and toxins (to be considered in 2015). (United Nations 2011a: 23–24)

Thus, during the 2012 meeting of experts, the subject of enabling technologies was a core concern of the annual S&T review, together with the seven topics listed above ([a] to [g]) (United Nations 2012a), all of which had to be addressed during two half-day sessions—six hours—of the meeting of experts and four hours during the MSP. In addition to statements and presentations made by states parties, several “Guests of the Meeting” were invited to address the gathering. Related to the rather detailed list of topics and sub-items, a wide variety of statements and contributions could be observed. These ranged on one end of the spectrum from rather generic interventions on the benefits to be derived from S&T advances for international cooperation under the BWC to rather specific expert presentations of a highly technical character on the other end. Representative of the former contributions to the debate was the Cuban statement on behalf of the nonaligned movement (Cuba 2012) seconded by, for example, Brazil, which sought to reinforce the point “that States Parties should facilitate the exchange of materials, equipment and scientific and technological information for peaceful purposes, as well as initiatives of capacity building . . . and that the interdictions of Article I should not result in unjustified technol-

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ogy denials” (Brazil 2012: 1). Iran was even more outspoken in its linkage of S&T issues with questions of international cooperation among BWC states parties when it asserted, “If concrete ways and means are not found for the technology transfers by the developed countries to developing ones in a systematic and non-discriminatory manner, these discussions [on S&T] would be insufficient and ineffective” (Iran 2012a: 1–2). Among the more S&T-focused contributions made, Russia highlighted in its working paper as areas of concern, inter alia, research in multidrug resistance or resistance to other antimicrobials, research aimed at increasing the pathogenicity of microorganisms, research in selection of strains with altered host specificity or high pathogenicity, research in immunity overcoming strains, and more generally, research in biotechnology, synthetic biology, and nanotechnology (Russia 2012). The US working paper discussed advances in enabling technologies in the fields of gene sequencing, gene synthesis, and bioinformatics. It also highlighted the need to strengthen biorisk management in a number of R&D areas such as codes of conduct, outreach, and education (United States 2012). Complementing these wider-ranging papers on relevant S&T developments, Australia continued to emphasize a topic it had already highlighted at the Seventh Review Conference (Australia, Japan, and New Zealand 2011): the convergence of chemistry and biology. In its contribution to the 2012 meeting of experts, Australia recommended the continued monitoring of these scientific and technological developments, including through surveys and technical feasibility analysis, and for the monitoring of the convergence of chemistry and biology to continue through appropriate processes. Australia also sees considerable merit in greater interaction between the BWC scientific community and the CWC scientific community, including informal meetings of experts from both communities. (Australia 2012: 3)

As during the past two ISP cycles the chairman of the meeting provided a summary of the contributions to the meeting’s different agenda items. For S&T developments this summary follows the subdivision into topics agreed upon at the Seventh Review Conference (United Nations 2012b). The picture that emerges for the adaptation norm operationalized through the S&T review after the Seventh BWC Review Conference is one in which the annual review has been institutionalized for the third ISP cycle with a demanding work program to be dealt with by states parties. After the 2012 ISP meetings, and the concomitant Meeting of

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Experts (MX) and Meeting of States Parties (MSP) reports, it is not clear how the fact that S&T advances are dealt with annually will lead to a cumulative process that will enable the Eighth BWC Review Conference in 2016 to take any substantive decisions that would go beyond the past practice of simply noting the reports of the meetings of states parties. Thus, there is the danger that the only change in 2016 will be the repeated mentioning of S&T in the reports from the annual MSP sessions, rather than the further institutionalization of the BW prohibition regime with a view to strengthening the adaptation norm.

Conclusion: The BW Prohibition Regime After the Seventh BWC Review Conference

The core of the BW prohibition regime’s institutional structure still rests with the BWC Review Conferences and, to a lesser degree, the current annual ISP meetings. In broad terms, institutional development occurred in three stages. In the first stage, during the first two decades after the BWC’s entry into force—1975 to 1995—institutional development was largely confined to the substantive norms of the regime, after compliance deficits were strongly suspected in the area of the disarmament and non-acquisition norms. However, efforts to compensate for the absence of a verification principle and concomitant declaration and inspection norms through the establishment of a transparency norm with the 1986 and 1991 CBMs did not result in creation of new organizational structures. Instead, existing institutional arrangements at the United Nations in the form of the Office for Disarmament Affairs were utilized to receive the annual CBM submissions from BWC states parties. Toward the end of this first phase, a parallel process was started to explore the possibility of adding verification measures to the institutional fabric. The work of the VEREX group prepared the BWC’s second phase through the 1994 Special Conference that decided upon the Ad Hoc Group’s mandate to negotiate a legally binding compliance protocol to the BWC. These negotiations marked the second stage in the BWC’s evolution, which lasted from 1995 to 2001. They represented a substantial effort at institutional layering (van der Heijden 2010). As detailed above, the goal was to strengthen the regime by adding agency—in the form of an international organization to oversee the implementation of the convention—and structure, by expanding its inventory of norms, rules, and procedures. If negotiations of the AHG had been successful, they would have resulted in the creation of a new

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international organization dedicated to the prohibition of biological weapons and, to a lesser degree, the facilitation of international cooperation in the life sciences and its applications. A crucial part of this organization’s work would have been to receive declarations by states parties to the protocol and to conduct inspections—or rather, visits, in AHG terminology—at facilities in its member states. This approach would have given meaning to and operationalized a new set of declaration and inspection norms. A number of existing norms that would have been strengthened by rules and procedures to put these norms into state practice include the investigation norm, which is developed only in basic form in BWC Article VI and which continues to rely on UN Security Council or UN Secretary-General action for its implementation. In addition, implementation of the internalization norm would have been enhanced through the required establishment of a national authority in each of the states parties that would have been designated as the contact point for implementing the BWC Protocol. Through the cumulative effect of these improvements, the declaration and inspection rules and procedures written into the draft protocol would, over time, likely have provided greater confidence in compliance across the spectrum of principles and norms expressed in the BWC, including the non-acquisition and disarmament norms. The third and current stage of the BWC’s evolution started in 2001–2002 with the collapse of the AHG negotiations and the split Fifth BWC Review Conference; this stage will continue until at least 2016, when the Eighth BWC Review Conference will have to decide on how to assess and continue with the work of the current third ISP cycle. This third stage of regime evolution has been characterized by abandoning the idea of adding to the set of regime norms on the one hand, and by deepening implementation of existing regime norms on the other. This stage again represents an attempt at institutional layering, albeit one that has been described as the “thickening of governance” (van der Heijden 2010: 232). Regime evolution in the context of the ISP cycles between two BWC Review Conferences has focused in particular on the internalization, assistance, and adaptation norms. In relation to the internalization norm, one can observe a diversification of measures, including the continuation of national implementation measures, such as legislation and regulation being addressed during MX and MSP meetings; an expansion of measures into the areas of education, outreach, and codes of conduct is also apparent. This expansion has increasingly led to the inclusion of new actors in the form of representatives of both the life science and the public health communities into the deliberation of BWC

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states parties. Especially through the involvement of members of the first group, a stronger linkage between the internalization and adaptation norms has been achieved. The fact that some advocates of a more regular review of S&T advances in the life sciences, such as the United Kingdom, needed a decade or more to achieve this rather limited goal demonstrates the obstacles to overcome in changing the modus operandi in the regime. It has to be noted, though, that the ISP activities in this area are largely confined to the partial monitoring of a few areas of new S&T in the life sciences. More advanced cooperation to jointly assess these developments or even agree on appropriate governance measures to prevent the misuse of the revolution in the life sciences is not foreseen in the ISP’s mandate (Tucker 2012b), and some states parties continue to resist it. Furthermore, the inability of BWC states parties to agree on a legally binding declaration norm during the AHG negotiations has triggered a renewed interest during the ISP process in the transparency norm established during stage one of regime evolution. However, change in this area is of an incremental nature as well, as the limited agreement to discuss the CBMs during two years—2012 and 2013—of the third ISP cycle highlights. This points toward the more general trend that the focus on these norms—internalization, adaptation, and assistance, plus the cooperation norm analyzed in greater detail in Chapter 5—has been intensified during the third ISP cycle by elevating national implementation, S&T developments, and international cooperation and assistance to Standing Agenda Items; these issues will be dealt with during each year of the ISP, and the transparency and assistance norms will be addressed during two of the four years. However, while this improved format for dealing with any of these issues continues to bring in additional stakeholders, from within states parties and of a transnational character, it does not contain a mechanism for actually building on the annual discussions in a systematic way that would strengthen the BW prohibition regime in a coherent and sustainable fashion. In other words, the ISP mandate puts a cap on the potential “thickening of governance,” and the extent to which the current stage of the BWC’s evolution will lead to institutional change in the BW prohibition regime that would yield a positive and legally binding development remains uncertain at best.

4 The Chemical Weapons Prohibition Regime

As outlined in Chapter 3, first efforts to establish an institutional

framework for multilateral controls of chemical weapons (CW) that still have a bearing on the current CW prohibition regime date back to the 1925 Geneva Protocol, which entered into force in 1928. Many instruments of ratification were accompanied by unilateral declarations, which limited the scope of the protocol considerably with respect to the right to retaliate with CW or to be bound by the non-use stipulations only vis-à-vis other states parties to the protocol. Efforts to develop the regime further, however, were only undertaken in the second half of the 1960s, when the use of herbicides by the US armed forces in Vietnam led to strong international reactions. The UN General Assembly in 1966 adopted Resolution 2162B (XXI), calling for the strict observance of the 1925 Geneva Protocol, and although US herbicide use in Vietnam was not explicitly mentioned, the addressee of the resolution was obvious (SIPRI 1971). Similar appeals were made through the United Nations in 1969 and 1970. Also in the late 1960s the separation of negotiations for a CW and a biological weapons (BW) disarmament treaty took place following a UK initiative. Although the then Soviet Union and its allies initially rejected this move, it subsequently led to the 1972 Biological and Toxin Weapons Convention (BWC), which contains in its Article IX a normative guidepost for its states parties to continue negotiations for a CW treaty. Yet, given the difficulties in achieving a global treaty on the prohibition of CW (Robinson 1998), a group of advanced industrial 101

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states—later dubbed the Australia Group—came together in 1984 to harmonize their export control policies. Thus, institutional development occurred through the initiative of a number of states before the global CW prohibition regime would take a great leap forward with the opening for signature of the Chemical Weapons Convention (CWC) in January 1993 and its entry into force in April 1997. However, as I detail in Chapter 5, the continued existence of the Australia Group after entry into force of the CWC has led to tensions among regime members who are participating in the group and those who feel themselves targeted by its activities and denied all the privileges that they argue should come with regime membership. I discuss both the institutional framework and implementation of the norms and rules of the CWC-centered parts of the CW prohibition regime in this chapter. However, the regime has gained in additional complexity since the CWC’s entry into force with, for example, the establishment of a UN Special Commission to investigate the Iraqi nuclear, biological, and chemical (NBC) and missile programs or with the adoption of UN Security Council Resolution 1540 (2004) and the work of the committee created by this resolution to oversee its implementation. I cover these complementing institutional structures of the wider CW prohibition regime in Chapter 7.

Setting the Institutional Framework: Negotiation, Scope, and Organizational Base of the 1993 Chemical Weapons Convention

The CWC is an innovative arms control treaty that leaves both the 1968 Nuclear Non-Proliferation Treaty (NPT) and the 1972 BWC far behind (Bothe, Ronzitti and Rosas 1998). First of all, it bans a whole category of what are usually called weapons of mass destruction (WMD) under international verification. The NPT, in contrast, establishes a two-class system of states parties—the five nuclear haves and the remaining havenots—with differing rights and obligations for the two groups. Although the BWC does not make such a distinction, it completely lacks the verification provisions the CWC entails and does not have the CWC’s organizational apparatus set up to oversee its implementation. Second, in light of the dual-use characteristics of many chemical materials, processes, and technologies discussed in Chapter 2, verification activities under the CWC have to subject large segments of the chemical industry and their activities under their inspection mechanisms. Although the point could be made that something similar was already

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accomplished in the NPT, where civil nuclear installations were subjected to the safeguards administered by the International Atomic Energy Agency (IAEA), two important distinctions have to be made. First, these safeguards preceded the entry into force of the NPT, and in some early cases even the IAEA’s founding in 1957 (Fischer 1997); thus, there is a weaker link between treaty and implementing organization, which is much stronger in the case of the Organisation for the Prohibition of Chemical Weapons (OPCW) that was explicitly set up for overseeing the CWC’s implementation. In addition, nuclear industries are small, have always been highly regulated and under tight state control, and as such are hardly comparable with the size and degree of diversification of the global chemical industry (Aftalion 2001). Short History of CWC Negotiations

The commitment of BWC states parties to continue negotiations on a global ban of CW did not result in any tangible progress until US president Jimmy Carter assumed office in 1977. The four years of his administration witnessed a series of serious negotiations with the Soviet Union. However, although a convergence of views was achieved during these negotiations, talks were still vague and did not focus on precise treaty language of the future CW convention (Burck and Floweree 1991). With deterioration of the bilateral relations between the two countries and the new Reagan administration taking office in 1981, talks on a CW treaty stopped. Only in 1983 were efforts to reach a global CW ban resurrected in the context of the UN Conference on Disarmament (CD) in Geneva, when the United States agreed to resume work on a draft chemical weapons convention. In early 1984 the CD agreed to start work on an actual draft treaty text, and a version of such a draft submitted by the US government contained for the first time the concept of mandatory intrusive on-site challenge inspections “anytime, anywhere” (Bernauer 1993: 38). In 1987 Soviet foreign minister Eduard Shevardnadze announced that his country would agree to the intrusive measures proposed in the 1984 US draft treaty text (Goldblat 1988). Although this Soviet concession was embedded in the wider context of easing tensions in the final phase of the Cold War and thus could have been anticipated, the US government took until 1989 to formulate a policy response to the Soviet move. However, this time delay is not surprising, if one considers the order of magnitude of the change involved. As Julian P. Robinson points out,

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No longer would the United States judge the acceptability of chemical arms control in terms of whether or not it was verifiable. Instead, it would seek a “level of verification that gives us confidence to go forward.” . . . The importance of this change lay in its express recognition of what had always been the case, that no ban on CW would ever be fully verifiable. (Robinson 1998: 27)

This recognition coincided with two big international meetings on chemical weapons in 1989: one intergovernmental conference in Paris in January and one in Canberra in September, the latter of which sought to involve chemical industries worldwide. The Paris conference was triggered by US president Ronald Reagan’s call for such a meeting in order to reconfirm the international community’s commitment to the 1925 Geneva Protocol. Given that France is the depositary of the Geneva Protocol, the French government offered to host the event. The communiqué resulting from the conference achieved, as Gordon M. Burck and Charles C. Floweree have pointed out, “a remarkable degree of success in terms of wide participation and of raising the level of attention to the CW threat” (Burck and Floweree 1991: 546). The Canberra conference later in the year provided a forum for dialogue with the chemical industries, which—due to the dual-use issues outlined in Chapter 2—needed to be brought on board, if the project of a multilateral treaty banning chemical weapons were to encompass a practicable operationalization of the declaration and inspection norms. However, not all states participating in CD negotiations on the CWC, in particular the neutral and nonaligned states, saw this meeting solely as an opportunity to move the work of the CD forward. In contrast, they “stressed that the Canberra Conference should neither undermine the negotiations on a CWC nor support non-proliferation measures which could hamper international co-operation for peaceful purposes” (Lundin 1990: 536). As it turned out, these concerns did not materialize. As Burck and Floweree have summarized, “The Australian view prevailed and there was less emphasis on export controls and more on what needed to be done to achieve a worldwide ban on chemical warfare” (1991: 547). As a result, the US policy shift and the increasing momentum on the international level led to progress both in the bilateral sphere, where the United States and the Soviet Union agreed in June 1990 on a Bilateral Destruction Agreement (BDA), and in the multilateral realm, where the CD’s deliberations received a boost. The BDA contained a commitment of both sides to reduce their chemical weapons stockpiles beginning at the end of 1992 down to a level of five thousand agent-tons

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each. The first half should have been reduced seven years after entry into force of the BDA, with the remainder to be destroyed in another three years. All destruction activities were subject to systematic on-site verification based on the data exchange already agreed upon the previous year in a Memorandum of Understanding. The BDA also contained a pledge to discontinue CW production with the agreement’s entry into force. With a view to the negotiations on a multilateral ban of CW, the United States and the Soviet Union committed themselves to further reduce their CW holdings to five hundred agent-tons, a level to be reached eight years after the multilateral CW treaty’s entry into force. The fate of the remaining stockpile should be decided by a majority of CWC states parties at a special conference, at which both the United States and the Soviet Union would have a veto over the decision to dismantle their CW completely (Goldblat and Bernauer 1990; Lundin and Stock 1991). The retention of such a small portion of their arsenal as well as the unwillingness to withdraw their reservations from the Geneva Protocol brought the United States and the Soviet Union under criticism (Bernauer 1993). So it was another initiative of the US administration in May 1991 that led to the beginning of the endgame of multilateral negotiations for the CWC. In terms of substance, the United States gave up the option of retaliation in kind against chemical-warfare attack once the convention was in force (Lundin and Stock 1992). In procedural terms, the George H. W. Bush administration proposed that the treaty be finalized until the end of 1992 and that—in order to reach this goal— the CD should stay in continuous session (Robinson 1998). In May 1992 the chairman of the negotiating Ad Hoc Committee submitted his compromise text, which contained proposals to resolve the still outstanding issues. This draft went through two further rounds of negotiations, with revised versions of the treaty text being produced in June and August 1992. On 3 September 1992 the text of the CWC was adopted by the CD and included in its report to the UN General Assembly (United Nations 1992). Upon recommendation of the General Assembly in November 1992 the CWC was opened for signature in Paris on 13 January 1993. Normative Structure of the CW Prohibition Regime

The Chemical Weapons Convention, which is at the heart of the CW prohibition regime, is a rather complex multilateral legal instrument that consists of a preamble; twenty-four articles, the first eleven of which

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contain the substantive treaty provisions; and three annexes on chemicals, verification measures, and confidentiality. While preambles of international treaties are sometimes dismissed as containing mere diplomatic niceties and expressing nothing more than wishful thinking, from a regime analytical perspective this view has to be rejected. Contrary to the above, preambles usually serve two functions: first, they place a particular treaty in a larger political context. In the instance of the CWC, this context is “effective progress towards general and complete disarmament under strict and effective international control” (OPCW webpage). Second, the preambles give expression to commonly held beliefs about the causal relationships in the issue area that an international regime covers. Using the terminology of regime theory, these are the principles of the regime, which may not be very specific but are by no means trivial (Müller 1993). In case of the CW prohibition regime, the belief that the use of CW constitutes an abhorrent act of warfare—sometimes referred to as CW taboo (Price 1997)—is the central regime principle. It leads to the foremost regime goal, equally expressed in the preamble of the CWC, “for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons.” The second principle of the CW prohibition regime acknowledges the dual-use character of much of chemistry and expresses the recognition that the peaceful uses of chemistry are a legitimate undertaking. However, the fact that these peaceful uses cannot be taken for granted has led to the formulation of two further regime principles: (1) that protection against the threat or use of CW are legitimate, and (2) the acknowledgment that regime-compliant behavior of states parties has to be verified. These two principles are not displayed as prominently in the preamble as the first two are, which is hardly surprising as both of them point to the limitations inherent in any multilateral regime. However, jumping to the conclusion that, because the verification and protection principles are not expressly mentioned in the CWC’s preamble, they do not exist is wrong. Some simple counterfactual reasoning shows that if one were to assume the absence of these two principles, many of the CWC’s normative guideposts for state action—especially with regard to its verification system—would not make much sense. Derived from this set of principles, the norms of the CW prohibition regime are meant to guide state behavior in the issue area and thereby lead to the achievement of the regime goals. The recognition that the use of CW constitutes an abhorrent act of warfare informs some of the core regime norms: first, states that possess CW have to destroy

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their stockpiles completely. This disarmament norm is spelled out in CWC Article I(2). The norm also subsumes the prohibitions contained in Article I(1)(a) of stockpiling or retaining chemical weapons. Second, states parties that do not possess CW commit themselves not to acquire them. This non-acquisition norm is also contained in CWC Article I(1)(a) and encompasses the development of CW in its scope. Furthermore, all states parties agree never to use CW (non-use norm) or to transfer CW, materials, or technology that will aid a third party in CW production (non-transfer norm). These latter norms are also prominently placed in the CWC and contained in Article I(1). The verification principle informs two norms central to the operation of the CW prohibition regime—and sets it apart from the BW prohibition regime, where these two normative guideposts for state action have not been agreed. One is the declaration norm, which, in turn, has led to a number of rules and regulations for states parties, requiring them to submit information related to CW and chemical industry, where applicable, to the OPCW. These declaration requirements are contained in CWC Article III and further specified in different parts of the Verification Annex, for example, in Part IV(A) for chemical weapon destruction. Complementing the declaration norm, states parties allow the OPCW’s Technical Secretariat (TS) to check through on-site inspections on the accuracy of the declarations, the progress of CW destruction, and other actions states parties are required to take. Again, this inspection norm manifests itself in different parts of the CWC and its Verification Annex. Depending on the activities to be verified, a diverse set of rules and regulations is applicable to the activities of CWC states parties and the OPCW’s international inspectorate. Furthermore, the consultation norm and key elements of the investigation norm of the CW prohibition regime are expressed in Article IX of the CWC, in which states parties commit themselves to consult one another and cooperate in clarifying problems related to treaty implementation. Such consultation may range from informal bilateral consultations to highly formal and politically charged challenge inspection requests (Asada 2006). So far, the provisions in relation to the latter scenario have not been tested, as no state party has requested the OPCW to conduct a challenge inspection. In the case of the threat or use of CW against a state party to the CWC, the provision of assistance by those in a position to do so has been included in CWC Article X. This assistance norm is closely related to the right of each of the CWC states parties to protect itself, which, in turn, is based on the defense principle discussed above. Also contained in CWC Article X is the second com-

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ponent of the investigation norm—which in general terms applies to nonroutine verification measures under the CWC—in the form of investigations of alleged CW use. In addition, a cooperation norm has been included in the CWC on the basis of the principle that civilian applications of chemistry are perfectly legitimate. According to Article XI on Economic and Technological Development, the implementation of the convention must not impede the civilian applications and free trade in chemicals for purposes not prohibited under the CWC. Cutting across many different dimensions of the regime, such as disarmament, nonacquisition, non-transfer, and international cooperation and assistance, is the internalization norm, which requires states parties to the CWC to translate the stipulations contained in the convention into their national legal systems. Article VII of the CWC is central in this respect. Last, but not least, states parties are under an obligation to keep the regime current with respect to developments in science and technology (S&T) of relevance to the regime. This obligation is part of a wider expectation of the regime being kept up to date, so as to ensure its continued effectiveness. However, given the importance of S&T developments to the viability and relevance of a number of the regime’s provisions, I limit the scope of the adaptation norm in this chapter to S&T issues. The rules and procedures of the CW prohibition regime are so numerous as to make a general introduction impossible. Instead, I confine their discussion to subsequent sections, if and as they are relevant for the effective implementation of specific regime norms. In addition, although the majority of the norms of the CW prohibition regime are expressed in the CWC, other regime elements, such as the Australia Group or the activities of the UN Security Council 1540 Committee, complement the CWC in this respect (Bosch and van Ham 2007). For example, in the context of the Australia Group, in which only a subset of all regime members are participating, states have agreed to consult one another in case of a transfer request that threatens to run counter to the goals of the regime, thereby making sure that a potential proliferator does not play one supplier against the other. I discuss these complementary institutional arrangements in Chapters 5 and 7. Organizational Structures in Support of the CWC

In contrast to the BWC, the organizational limitations of which I analyzed in the previous chapter, CWC Article VIII establishes an organization tasked exclusively with the convention’s implementation, in order to “achieve the object and purpose of this Convention, to ensure

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the implementation of its provisions, including those for international verification of compliance with it, and to provide a forum for consultation and cooperation among States Parties” (OPCW webpage). As outlined earlier, this language sets a precedent in multilateral disarmament and nonproliferation regimes. The majority of tasks assigned to the Organisation for the Prohibition of Chemical Weapons (OPCW) revolve around verification of and assistance with states parties’ treaty-compliant behavior. Thus, the OPCW’s existence clearly has its basis in what has been labeled the functionalist approach to international organizations and law (Klabbers 2012). As Kenneth W. Abbott and Duncan Snidal have summarized from such a perspective, international organizations “allow for the centralization of collective activities through a concrete and stable organizational structure and a supportive administrative apparatus” (1998: 4). In addition, Abbott and Snidal point out that international organizations can acquire a degree of autonomy that enables them to engage in a more ambitious set of activities: those of “developing, expressing, and carrying out community norms and aspirations and enforcing rules and commitment” (Abbott and Snidal 1998: 5). While the CWC is quite specific in relation to many tasks that the OPCW, most prominently its Technical Secretariat, is expected to perform—for example, with a view to the verification of CW destruction in possessor states—member states still have some room for maneuver in contesting the relative prioritization of some norms over others, or their operationalization into more specific regime rules and procedures. However, in instances in which member states are unable to agree on common positions in the policymaking organs of the OPCW—that is, Conference of States Parties (CSP) and Executive Council (EC)—the TS and its Director-General in some instances have seized the initiative and elaborated the specific rules for operationalizing a particular norm. Norm contestation stemming from unresolved issues during the negotiations of the CWC could already be observed during the preparatory phase of the treaty’s entry into force, between the CWC’s opening for signature in January 1993 and April 1997 when it entered into force. I discuss this preparatory phase briefly before analyzing the OPCW itself. Preparatory Commission and Provisional Technical Secretariat for the OPCW. At the meeting in Paris in January 1993, at which the CWC was

opened for signature, a resolution was also passed that created a Preparatory Commission (PrepCom) and a Provisional Technical Secre-

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tariat to establish the OPCW and to finalize the many detailed procedures that would be needed for CWC implementation at the domestic level of individual states parties as well as on the international level. This so-called Paris Resolution contains thirty-six tasks for the PrepCom, to be completed until entry into force (Tabassi 2009). As has been pointed out, establishment of a preparatory commission is commonplace when new international organizations are created, with such a commission even preceding establishment of the United Nations (Gargiulo 1998). Establishing and operating the PrepCom and provisional TS involved a multitude of operations, ranging from the very mundane—such as renting office space, buying photocopying machines, and recruiting secretarial staff—to the solution of highly complex substantive matters—for example, in the field of verification of CW destruction. In order to organize its work, the PrepCom met in plenary sessions and established five subsidiary bodies, among them two working groups dealing with “legal, budgetary and administrative matters; and verification and technical cooperation and assistance matters, respectively” (Kenyon 2007: 39). However, given organizational constraints, the numerous expert groups established under the two working groups carried the largest burden of working through the list of tasks enumerated in the Paris Resolution. As Ron G. Manley has summarized efforts to resolve issues related to CW disarmament, “As the work of the PrepCom proceeded a number of additional issues requiring elaboration were identified and those related to chemical weapons issues were once again assigned to Working Group B and delegated to the relevant Expert Group for consideration” (Manley 2007: 147). This identification of “additional issues requiring elaboration” led to a situation in which, at the end of the PrepCom phase in April 1997, a list of unresolved issues was longer than the one it started with, as contained in the Paris Resolution (Kelle 1997). As Daniel Feakes and Ian R. Kenyon (2000) summarized, the Paris Resolution contained thirty-six issues to be resolved before the CWC’s entry into force. On nineteen of these thirty-six issues the PrepCom forwarded draft decisions to the first session of the Conference of States Parties (CSP), leaving seventeen issues identified in the Paris Resolution unresolved when the OPCW was created. Moreover, the PrepCom identified during its work another forty-six issues requiring resolution (Preparatory Commission 1997), clearly indicating that some CWC states parties had not yet switched from a negotiating mode of operation to a mind-set in which preparation for implementation took precedence. Hence, one

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of the lessons learned from a comprehensive review of the PrepCom phase is that “internal” reasons, such as the “re-opening of issues already negotiated in Geneva” (Kenyon and Feakes 2007: 295) also contributed to the length of time it took for the CWC to reach the point of entry into force. The provisions for the CWC entering into force are contained in its Article XXI, according to which entry into force would occur 180 days after the deposit of the sixty-fifth instrument of ratification, but no earlier than two years after the convention’s opening for signature—that is, not before 13 January 1995. However, as Treasa Dunworth and colleagues point out, With the benefit of hindsight, it is clear that the assumption that 65 ratifications would be deposited within 18 months of the CWC opening for signature was unrealistic. . . . The honeymoon period was short and the more sobering reality was that signatory states faced a number of unanticipated practical and political difficulties which combined to delay ratification. (Dunworth, Sutherland, and Stock 1998: 168)

On the practical level, putting into effect the internalization norm turned out to be much more time-consuming for signatory states than expected. The sheer complexity of the CWC’s stipulations that had to be met—enacting domestic legislation, setting up a National Authority, and collecting and processing data from chemical industries—overwhelmed many national bureaucracies. Political incentives to rise to the occasion seemed to diminish as states with little or no chemical industries questioned the value of ratifying the convention. The major disincentive in this regard, however, was the delays in the ratification processes of the two largest CW possessor states, the United States and Russia (Smithson 1997a; Kubbig, Dembinski, and Kelle 2000). Eventually, the sixty-fifth instrument of ratification was deposited by Hungary on 31 October 1996, starting the countdown toward entry into force on 29 April 1997. Even then, the US ratification occurred only at the very last minute, on 24 April. The fact that many signatories were sitting on the fence, observing the US and Russian ratification processes, was amply illustrated by the large number of states ratifying the CWC in the run-up to entry into force. Although the Russian Federation did not ratify before late 1997, eighty of the then eighty-seven states parties participated in the inaugural session of the Conference of States Parties during May 1997. In other words, twenty-two signatories ratified the CWC in the short period between August 1996 and April 1997.

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The Organisation for the Prohibition of Chemical Weapons (OPCW).

The OPCW has its seat in The Hague, the Netherlands, and comprises three main organs: the Conference of the States Parties (CSP) and the Executive Council (EC), which together constitute the policymaking organs, and the Technical Secretariat (TS). The OPCW’s budget is assessed in accordance with the UN scale of assessment, adjusted for differences in membership. Member states that are in arrears to the OPCW for two full years lose their vote in the organization’s policymaking organs. The CSP comprises all member states of the OPCW. It is the highest organ of the organization and usually meets annually. The CSP can convene in special sessions upon the request of the CSP, the EC, or a state party if supported by one-third of OPCW members. Since its entry into force, three such special sessions have taken place. The Conference of the States Parties is tasked with oversight of the OPCW’s other two bodies, and with reviewing compliance with and implementation of the convention. The CSP is also tasked specifically with fostering international cooperation for the peaceful uses of chemistry and reviewing/ monitoring scientific and technological developments in the field. In this latter area, the CSP is aided by the establishment of subsidiary bodies such as the Scientific Advisory Board, which reports to the DirectorGeneral. Decisionmaking in the CSP is by simple majority on procedural questions and by consensus—as far as possible—on matters of substance. The review procedure contained in the CWC stipulates that at five-year intervals after entry into force (EIF), the organization is to convene a special session of the CSP. The first such review conference of the CWC took place from 28 April to 9 May 2003. Of the regular sessions of the CSP, the first one taking place from 6 to 23 May 1997 had a special character, as it had to fulfill three major tasks (Kelle 1997): first, the OPCW’s organizational structures had to be set up so as to allow for the organization to perform the functions ascribed to it. CWC Article VIII(15) stipulates that the CSP shall adopt its own rules of procedures, yet this exact provision caused a slow start for the CSP, as some signatory states tried to gain disproportionate access to the meetings of the CSP. In addition to organizing itself, the CSP had to overcome obstacles in determining the EC’s initial composition due to lack of agreement in some of the five regional groups. With respect to the TS, filling positions in the top structure of the Technical Secretariat witnessed some jockeying for position as well. Last, but not least, the organizational tasks of the CSP included adopting the first budget of the OPCW (Dunworth 1997).

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The second task of the first CSP session concerned the adoption of decisions mandated by the Paris Resolution, which set up PrepCom and the Provisional Technical Secretariat of the OPCW. As discussed earlier, the PrepCom resolved only about half of these issues and added many more. However, Feakes and Kenyon point out that “despite being burdened by this list of around 60 unresolved issues the OPCW was able to function from the entry into force of the CWC” (2000: 2). Addressing the more than sixty unresolved issues was made possible by a procedural clause in the CWC’s Article VIII that allows the conference to establish subsidiary organs as required. Following this stipulation a “Procedure to Address Unresolved Issues” was established under the Committee of the Whole of the CSP, which was extended until the fourth session of the CSP in summer 1999, when issues still unresolved were transferred to the Executive Council (OPCW 1997; 1999). The third task to be accomplished during the CSP’s first session was resolving outstanding issues that could no longer be deferred as they were necessary for the newly established OPCW to take up its duties. One of these issues concerned the approval of the list of inspection equipment that OPCW inspectors could use. Without agreement on this list, states parties during inspections would have been in a position to reject equipment brought along by the OPCW teams as they saw fit. Such a situation would have undermined the principle of equal treatment of states parties. Only on the last day of the two-week CSP session was a compromise solution reached (Kelle 1997). At any given time, forty-one OPCW member states constitute its Executive Council, on which they serve a two-year term. In order to assure the EC’s geographic balance, membership is predetermined by regional group: nine states from Africa, nine from Asia, five from Eastern Europe, seven from Latin America and the Caribbean, and ten from the Western European and Others Group of states (WEOG). An additional seat rotates between the Asian and Latin America and Caribbean groups. A chairman elected from among the delegations heads the Executive Council; this position also rotates among regional groups on a consecutive basis. The Executive Council meets in regular session four times each year and in special sessions, meetings, and informal sessions as necessary. As one observer has highlighted, forty-one is a rather large membership for an executive body of an international organization. On the one hand, this number allows for wide representation of the membership of the organization, but on the other hand, its size may hamper effective and efficient decisionmaking. In this assessment, the “large number members agreed upon is puzzling if account is taken of the del-

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icate and important nature of the competencies assigned to the EC . . . and the rules governing its decision-making processes” (de Guttry 1998: 127). In contrast to the CSP, Article VIII(29) stipulates that the EC shall take decisions of substance—in contrast to procedural matters, for which a simple majority rule applies—by a two-thirds majority of its members. Thus, no consensus requirement exists, as it does for the CSP. Yet, over time, a culture of deferral has developed in the EC, causing many unresolved issues to linger for years on its agenda (Kelle 2002). That this culture has not changed much was confirmed by an unusually frank intervention by the then Mexican ambassador to the sixteenth Session of the CSP in December 2011, when he reminded CWC states parties that the explicit objective of the EC’s rules of procedure “was, precisely, to make the proceedings executive, honouring its name” (Mexico 2011: 2). As the ambassador further acknowledged, It is true that organisations evolve and adapt to new realities, but it is also true that practices based on individual interests, and frankly speaking, also based on myths and false assumptions, prevent them from working expeditiously. In our case, among other things, we do not make anymore the distinction between consensus and unanimity; we have forgotten that in a democratic environment, as it is in the case of an international organisation, the aspiration should be to accommodate the interests of the minority and not that the majority becomes hostage of the minority. (Mexico 2011: 2)

As to its functions, the Executive Council has a supervisory role with respect to the implementation of the convention and the work of the Technical Secretariat. The EC submits an official report on its activities to the conference at each annual CSP session. In addition, the EC provides the CSP with a draft program and budget for the upcoming calendar year—which it had previously received from and discussed with representatives of the TS. The Executive Council is granted the power to approve arrangements related to the implementation of the convention, including plans for the destruction of chemical weapons and chemical weapons production facilities (CWPFs) or conversion of the latter. Furthermore, the EC can conclude agreements with states and other international organizations on behalf of the OPCW, with the prior approval of the Conference of the States Parties. The EC is also charged with implementing part of the clarification and consultation procedures contained in the CWC. If suspected cases of noncompliance or the abuse of the convention by individuals or

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states parties were to arise, the Executive Council would then engage in consultations with the states parties involved. If further action were necessary, a recommendation could be made to the Conference of the States Parties; in extreme cases the matter would be brought to the attention of the UN General Assembly or Security Council. The third body of the OPCW is the Technical Secretariat, established to assist the policymaking organs of the OPCW in the conduct of their functions. The TS carries out the day-to-day implementation of the CWC, including on-site inspections, monitoring, and verification. Over the first fifteen years of its existence, the TS has had on average a staff of around five hundred international civil servants, about two hundred of whom serve as inspectors. It is headed by the Director-General and deputy director-general, along with a top structure of senior management, such as a director of administration, a director of verification, and so on. As the biggest part of its activities over this period was related to the verification of CW destruction, and as these activities in CW possessor states have either ended or been substantially reduced, a debate about the future size and composition of the TS has recently emerged in parallel to the discussion of the future tasks of the OPCW as a whole.

Regime Evolution During the First Fifteen Years of CWC Implementation

CWC Article I on “General Obligations” contains four important norms guiding state behavior. Accordingly, a state party to the CWC renounces the right to acquire CW by whichever means (non-acquisition norm); to use CW (non-use norm); and to transfer, directly or indirectly, CW to anyone (non-transfer norm). In addition, these norms are supplemented by a prohibition to “engage in any military preparations to use chemical weapons” or to “assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a state party under this Convention.” The Disarmament Dimension of the CW Prohibition Regime

Article I also gives expression to the disarmament norm, according to which states parties must destroy any chemical weapon stockpiles in its possession or that it has abandoned on the territory of another state party. Likewise, a state party must disarm its CWPFs or convert them for peaceful purposes not prohibited under the convention. Article II

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contains the definitions and criteria required for the convention’s implementation. Accordingly, chemical weapons are defined as “toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes,” as well as “munitions and devices, specifically designed to cause death or other harm though the toxic properties of those toxic chemicals, which would be released as a result of the employment of such munitions and devices.” A toxic chemical, in turn, is defined as one “which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals” (OPCW webpage). Toxic chemicals that affect plants are notably excluded from this definition. Further definitions are provided for other terms of importance for implementing the disarmament norm of the CWC, such as “precursor,” “key component,” “old chemical weapons,” “abandoned chemical weapons,” “chemical weapons production facility,” “purposes not prohibited under this convention,” and “production capacity.” For verification purposes the most relevant toxic chemicals and their precursors that have been considered a risk to the convention during its negotiation are listed in the Annex on Chemicals to the CWC, which divides the substances into three schedules. These three schedules, however, do not define a chemical weapon under the CWC and as such do not limit the CWC’s scope in any way. Rather, these lists are used for declarations and inspection purposes in the context of the convention’s verification system. The CW prohibition regime’s declaration norm is spelled out in CWC Article III. It follows from the verification principle described earlier. However, the drafters of the treaty did not stop at simply giving some normative guidance for states parties. To the contrary, a quite specific set of rules—relating not only to the declaration norm but also giving more specificity to the disarmament norm—are provided for five different referent objects, to which the declaration requirements apply in the CW-context. These are chemical weapons, old chemical weapons, abandoned chemical weapons, chemical weapons production facilities, and riot control agents held for purposes not prohibited under the CWC. In addition, Parts IV and V of the CWC’s Verification Annex contain detailed provisions for putting into practice these normative guidelines and associated rules and procedures. Norms and rules related to chemical weapons and CW production facilities. Articles IV and V, in concert with the relevant portions of the

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Verification Annex (VA)—that is, Parts IV(A), IV(B), and V—deal systematically with the rules and procedures to be followed by states parties possessing either chemical weapons or CWPFs. As such they represent an essential building block for putting the regime’s disarmament norm and the declaration and inspection norms into effect. The key obligation for CW and CWPF possessor states is to destroy—under international verification—their CW stockpiles and destroy or convert their CWPFs to be used for activities not prohibited under the convention. The declaration requirements contained in Article III are expanded substantially under Articles IV and V and include, inter alia, “detailed plans for the destruction” of CW “not later than 60 days before each annual destruction period begins” (Article IV[7], OPCW webpage). Importantly, Articles IV and V and the corresponding parts of the VA provide for on-site inspection and monitoring of all locations at which chemical weapons are stored or destroyed. This provision mandates the OPCW to have either inspectors or monitoring equipment present whenever and wherever chemical weapons are being destroyed. Furthermore, the movement and storage of chemical weapons cannot be undertaken without informing the OPCW. According to Part IV(A) of the VA, chemical weapons had to be destroyed within ten years of the convention’s entry into force (EIF)— that is, by 29 April 2007—and this destruction had to begin within two years of the convention entering into force for a given state party. In addition, CW possessor states had to meet three intermediate destruction deadlines for their stockpiles. Accordingly, 1 percent of a country’s CW had to be destroyed after three years, 20 percent after five years, and 45 percent after seven years after EIF. However, if need be, these intermediate deadlines as well as the final destruction deadline could be modified. Again, the procedures for this contingency are spelled out in Part IV(A) of the VA. All CW destruction activities are subject to comprehensive inspections by the OPCW Technical Secretariat and have bound a substantial portion of the organization’s resources over the past fifteen years. As Table 4.1 shows, CW-related inspections peaked in 2006 and have since been on a downward slope, in particular since 2011, by which time many of the destruction activities described in the next section had been concluded. Implementing the CW disarmament norm. In practical terms, imple-

menting the disarmament norm has bound by far the largest part of the OPCW’s resources since the CWC’s EIF. As Ralf Trapp (2007) has pointed out, part of the larger-than-expected involvement of the OPCW

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Table 4.1 Numbers of Inspections at Chemical Weapons–Related Facilities, Including Old and Abandoned CW Year 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012a 2013a

CWDF 19 62 54 65 65 46 78 100 147 162 171 148 132 145 113 87 105

CWSF

CWPF

OCW

ACW

Total

26 31 34 33 29 31 36 44 36 42 26 24 23 19 20 14 15

35 60 55 51 26 40 31 29 25 21 17 11 14 10 12 8 14

11 8 6 9 3 6 7 6 7 8 6 7 6 9 7 6 8

3 6 5 2 2 2 2 2 4 6 6 6 6 7 10 16 19

94 167 154 160 125 125 154 181 219 239 226 196 181 190 162 131 161

Sources: The figures for 1997 to 2011 are based on the Annual OPCW Reports circulated at the Conference of States Parties in the following year. All of these are available at www.opcw.org. Notes: a. Numbers for 2012 and 2013 are planning figures taken from OPCW 2011e and OPCW 2012a, respectively. CWDF = chemical weapons destruction facility CWSF = chemical weapons storage facility CWPF = chemical weapons production facility OCW = old chemical weapons ACW = abandoned chemical weapons

TS in the verification of CW destruction activities was caused by events overturning two of the initial planning assumptions. First, contrary to original plans, the United States and the Russian Federation did not agree on a bilateral arrangement to verify the destruction of each other’s CW stockpiles. In addition, more states parties than expected declared CW possession: initially these were the United States, Russia, India, and South Korea—the last of which is, at its own request, still labeled a State Party in all official OPCW documents. Albania, Libya, and Iraq joined this list in November 2002, February 2004, and February 2009, respectively. These CW possessor states have declared a total of nearly 70,000 metric tons of chemical warfare agents and about 8.6 million munitions

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and containers (Mills 2001). Of these the Russian Federation had declared some 40,000 metric tons, the United States 28,575 metric tons, India around 1,000 metric tons, and South Korea around 600 metric tons. The Albanian and the Libyan declarations—some 16 tons of CW agents in the case of the former and 23.62 tons in case of the latter—did not substantially change the overall numbers of declared CW stockpiles (Hart and Kile 2005). The late discovery of CW in Albania and the late accession of Libya to the CWC meant that both states had to apply for an extension of the intermediate destruction deadlines as stipulated in the Verification Annex to the CWC. The decisions to extend in principle the phase 1, 2, and 3 destruction deadlines were taken by the Conference of States Parties at its Ninth Session in November/December 2004 (OPCW 2004a; 2004b). Delays in commencing the CW destruction process caused the Russian Federation as well to miss the first intermediate deadline for destroying 1 percent of its highest-risk (Category 1) chemical weapons stocks three years after the CWC’s EIF. Thus, already in November 1999, as permitted under the CWC, Russia asked the Executive Council to extend its first intermediate destruction deadline (OPCW 2000a). The Russian Federation argued that, although the construction of CW destruction facilities had been impeded by economic difficulties, the next intermediate destruction deadline on 29 April 2002 would be met, when 20 percent of the Category 1 chemical weapons had to be destroyed (Feakes 1999). In 2001 the Russian government reassessed its plan for the destruction of its chemical weapons stockpiles, which included significant changes, intended in part to comply with conditions formulated by the US Congress for the reinstatement of US financial contributions to the Russian destruction program. In addition, the plan gave the first official acknowledgment that Russia might not meet the 2007 destruction deadline and instead expected completion of the destruction effort in 2012. The new plan was formally presented to the OPCW Executive Council in September 2001, and in November, Russia submitted the required request for an extension of the intermediate and final deadlines for the destruction of its Category 1 chemical weapons. The plan foresaw destruction of 1 percent by 2003, 20 percent by 2007, 45 percent by 2009, and 100 percent by 2012. The extension request for the 1 percent deadline was approved by the Seventh CSP Session in November 2002, as was the extension in principle of the 20 percent intermediate deadline (OPCW 2002a). The revised phase 2 deadline was set for 29 April 2007 by the subsequent Eighth Session of the CSP, which also agreed in principle to extend the 45 and 100 percent dead-

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lines for destruction of the Russian CW stockpiles (OPCW 2003a). The date for the destruction of 45 percent of Russian CW stockpiles was set by the Eleventh CSP Session for 31 December 2009 (OPCW 2006a). As I discuss shortly, further delays in the Russian destruction program resulted in it being one of the three CW possessor states not meeting the final extended deadline of 29 April 2012. It had become clear in the meantime that not only the Russian Federation but also most other CW possessor states would not be able to meet the April 2007 deadline for the complete destruction of their CW stockpiles. According to one estimate, in late 2006 the United States had destroyed somewhat in excess of 40 percent of its category 1 CW, India around 70 percent, South Korea more than 80 percent, and the Russian Federation around 16 percent. These delays required the extension of the final destruction deadline for practically all CW possessor states. In the case of India, the extension granted calls for all CW stockpiles to be destroyed by 28 April 2009 (OPCW 2006b), for South Korea the CSP set the deadline at 31 December 2008 (OPCW 2006c), and for both the Russian Federation and the United States the deadline had been set at the latest possible date foreseen under the CWC: 29 April 2012 (OPCW 2006d; 2006e). A similar decision was made for Libya with the deadline set for completion of destruction of its CW arsenal at 31 December 2010, which also specifies the intermediate deadlines for Libyan CW destruction for earlier in 2010 (OPCW 2006f). All of these decisions obligate the CW possessor states to report to the Executive Council every ninety days on the progress made in the destruction process, as well as the continued submission of annual plans of destruction and annual reports on their CW destruction progress. Albania, which in spring of 2007 had destroyed almost 40 percent of its category 1 CW stockpiles, did not submit an extension request before the deadline stipulated in the CWC, as it expected completion of the CW destruction process sometime in summer 2007. As the CSP decides on such requests and its next session was scheduled for the end of 2007, the Albanian request would have been overtaken by events— the completion of CW destruction. Instead, Albania was found to be in technical noncompliance and was tasked by the Executive Council at its March 2007 session to redress the situation and report back to the council, which happened in July 2007; Albania was the first CWC state party to declare as completed the destruction of its stockpile of CW agents (OPCW 2008a). In July 2008 South Korea completed destruction of its CW stockpile (OPCW 2008b), followed by India in March 2009 (OPCW 2009a). In contrast, the Libyan destruction effort was beset by

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technical difficulties (OPCW 2008b). The country thus had to apply for another extension of intermediate and final destruction deadlines, which was granted by the CSP at its fourteenth session in 2009 (OPCW 2009b). With slightly more than half of declared CW destroyed by February 2011, destruction activities in Libya came to a temporary halt when the uprising against the Muammar Qaddafi regime plunged the country into a civil war during 2011, eventually leading to the overthrow of the old political order. The additional delays in CW destruction as well as the discovery of additional CW stocks in Libya required further OPCW action. It led the CSP at its sixteenth session in November 2011 to extend the final deadline for CW destruction until 29 April 2012 (OPCW 2011b). However, further Executive Council attention to this matter was required in early 2012, as Libya was unable to comply with this final deadline. A dispute over the exact wording of the council decision led to its reconvening in late March 2012 to finalize this issue. When joining the CWC in February 2009 Iraq had to submit a declaration of its legacy CW dating back to the Saddam Hussein regime. The declaration, submitted on 12 March 2009, focused on “Bunkers 13 and 41 at Muthanna containing filled and unfilled chemical munitions and precursors, as well as five former chemical weapons production facilities” (Tucker 2010). Both of these bunkers were damaged during the 2003 war and subsequently sealed off for safety and environmental reasons. The uncertainty surrounding the state of the bunkers’ contents seriously complicates even establishing the condition of the CW remnants before their eventual destruction can be contemplated. In this context, different rules for CW destruction apply due to the fact that Iraq joined the CWC more than ten years after the CWC’s entry into force. Hence, the 2007 and 2012 deadlines that apply to all other CW possessors are not providing any guidance for CW destruction. Instead, CWC Article IV(8) stipulates that a state in this situation has to destroy its CW “as soon as possible” (OPCW webpage). With respect to the remaining CW stockpiles of the two largest CW possessor states, the decision taken by the Eleventh Session of the CSP to conduct visits by representatives of the Executive Council to CW destruction facilities in Russia and the United States, and the construction sites of such destruction facilities, heavily emphasize the obligation of those two CWC states parties to complete the destruction of their category 1 CW stockpiles by 29 April 2012 at the latest. This decision has to be seen in the context of two developments. First, former highranking members of the US government stated that the destruction of US CW stocks might only be two-thirds accomplished by 2012 and

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would take several more years to be completed (Army Times 2006). Second, construction of some of the US and Russian CW destruction facilities was not progressing in a way to meet the 2012 deadline. As a result, the decision stresses the “need for States Parties to take measures to overcome the problems in their chemical weapons destruction programmes” (OPCW 2006g: 1). Also, it has to be emphasized that these visits are not part of the regular verification system applied by the OPCW’s Technical Secretariat. In contrast, the decision document points out that these “visits to consider progress and efforts to meet an extended deadline established in accordance with the provisions of the Convention” are intended as an “additional transparency and confidence building measure” (OPCW 2006g: 1). Furthermore, the CSP decision specifies the composition of the visiting group, requests the drafting of a factual report on each visit—on which the state party hosting the visit is allowed to comment—and addresses the financial implications of the visits. The first such visit by the chairperson and representatives of the Executive Council was conducted at the Anniston Chemical Weapons Disposal Facility on 22–23 October 2007 (OPCW 2007a). EC visits followed to the Shchuchye CWDF, in the Russian Federation from 8 to 11 September 2008 (OPCW 2009c); to the Pueblo Chemical Agent Destruction Pilot Plant, Colorado, and to the Umatilla Chemical Agent Disposal Facility, Oregon, from 31 May to 5 June 2009 (OPCW 2010a); to the Pochep CWDF in Russia, from 6 to 9 September 2010; to the Pueblo, Colorado, and the Tooele, Utah, CWDFs from 26 February to 4 March 2011 (OPCW 2011b); and to a CWDF under construction at Kizner, Udmurtia oblast, in the Russian Federation, from 21 to 22 March 2012 (OPCW 2012b). Given the inability of three CW possessor states—the United States, the Russian Federation, and Libya—to meet the 29 April 2012 deadline, these visits are to continue under the political solution eventually agreed upon during the Sixteenth CSP session in November–December 2011. In it, the conference has taken “note that the inability to fully meet the final extended deadline of 29 April 2012 would come about due to reasons that are unrelated to the commitment of these States Parties” to meet the deadline (OPCW 2011c: 2). The decision required the possessor states to submit to the Executive Council in spring 2012, immediately after the passing of the deadline, a detailed plan of destruction with a planned completion date and establishes detailed additional reporting requirements on progress made in reaching this date. Noteworthy in this context is the departure from the usual consensus-based decisionmaking in the OPCW: both the Executive Council and CSP had

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to resort to a vote on the issue, in both of which only Iran voted against the decision. The Non-Acquisition Norm and So-Called Incapacitating Chemical Agents

Although the elimination of CW stockpiles declared by CWC states parties will be delayed by several years, the eventual end of the disarmament process will come ever closer, by which time it will be all the more important to ensure that no new CW are developed, produced, or used by any state or substate group. While the prohibition of classical CW agents and corresponding verification mechanisms in the CWC are largely uncontroversial, the convention contains what Jack M. Beard has labeled the “shortcomings of indeterminacy in arms control regimes” (2007: 271). In Beard’s assessment, “Indeterminacy of the language delineating permissible behavior will doom arms control to failure” (2007: 275). Against this background of unclear meanings and the revolution in the life sciences discussed in Chapter 2, so-called incapacitating chemical agents (ICA) have increasingly caused concern among some CWC states parties and observers (Dando 2003; Wheelis and Dando 2005; Crowley 2009; ICRC 2010; 2013; Mogl 2012). However, in contrast to the CW disarmament norm analyzed in the previous section, questions surrounding ICA and their relationship to the non-acquisition norm have received much less attention, at least in the official fora provided by the OPCW—its policymaking organs in the form of the CSP and Executive Council. Before discussing the CWC’s provisions limiting the development or use of so-called ICA, it is necessary to take a step back in order to clarify which substances might be subsumed under this heading and the interest that has existed in this form of toxic chemicals. In relation to the latter of these two issues, the interest in ICA can be traced back to the offensive military chemical weapons programs of major powers in the mid-twentieth century. The discourse surrounding these weapons since then reveals a variety of different understandings and approaches relating to the chemical substances concerned. With a view to actors involved in the development of and with an interest in the use of ICA, military and police forces have both been utilizing the irritating or incapacitating effects of chemical agents. While peripherally acting irritants or riot control agents (RCA)—such as o-chlorobenzylidene malononitrile (CS), oleoresin capsicum (OC), chloropicrin (PS), 1-chloroacetophenone (CN), diphenylaminearsine (DM), and

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dibenz(b,f) (1,4) oxazepine (CR)—are defined in CWC Article II(7) as “any chemical not listed in a schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure” (OPCW webpage) toxic chemicals affecting the central nervous system, such as 3quinuclidinyl benzilate (QNB, BZ), which is listed on the CWC Schedules of Chemicals, remain undefined by the CWC. The distinction between peripherally acting RCA and centrally acting ICA is often blurred by the uneven use of terminology, such as in the “Guidance on the Use of Incapacitant Spray” of the Association of Chief Police Officers (2009) in Great Britain. Despite referring to incapacitants in its title, the document only deals with RCA used by British police forces. While such use in a policing context is permitted under international treaty law, CWC Article I(5) expressly prohibits using “riot control agents as a method of warfare.” Unfortunately, “method of warfare” is not defined in the CWC either. This indeterminacy is one of the reasons that a wide variety of understandings and approaches toward ICA have been allowed to flourish. Reviewing policy documents and the academic literature on ICA, one can easily identify one position that displays a pragmatic focus on the utilities that ICA might or might not have in operational terms (Kelle 2012b). An effects-based understanding of ICA regards them as causing “temporary physiological or mental effects, or both, which will render individuals incapable of concerted efforts in the performance of their assigned duties” (US Army 2005: 1–6). One problem with such a utilitarian approach is that no chemical compound has thus far been identified with a high enough safety margin to act exclusively as an ICA without killing individuals in a target group. Therefore the term nonlethal chemical agent is misleading. A study published by the Federation of American Scientists a decade ago concluded, “that even with a therapeutic index [i.e., a safety margin] of 1,000 (above any known anaesthetic or sedative agent), a chemical agent used as an incapacitating weapon can be expected to cause about 10% fatalities. Even with an astronomical TI of 10,000, under actual conditions of use in the field, fatalities could easily reach the same level” (Klotz, Furmanski, and Wheelis 2003). This point notwithstanding, the military interest in ICA continues unabated. After discussing fourteen classes of agents potentially suitable as ICA, Ketchum and Salem conclude in a recent U.S. textbook on military medicine, ”Today, scientists seeking new nonlethal incapacitating substances are studying neuropeptides and neuromodulators” (2008: 412).

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Taking a step back and analyzing the historical interest in ICA, the cases of BZ and fentanyl both show the limitations of efforts to actually develop such an agent that would meet the strict criteria of a utilitarian position favorably disposed toward ICAs. Military interest in BZ led in the early 1960s to the standardization of the agent in the United States. However, even after extensive development and testing, it was never fully introduced into the US arsenal due to slow onset of effects, the impossibility of covert dissemination, the unpredictability of effects, and a therapeutic index of approximately forty, which carries too high a risk of fatalities in the context of armed conflict scenarios. As a result, the US stockpile of BZ was declared obsolete in 1976 and destroyed in the late 1980s (Dando and Furmanski 2007). Similarly, fentanyl—an opioid one hundred times more potent than morphine—and its derivatives received military interest as ICA during the period of the Cold War. Used as an anesthetic in operating theaters it has a rapid onset time of only a few minutes and a short duration of effect. However, as fentanyl and its derivatives, such as sufentanil and carfentanil, also produce severe respiratory depression as a side effect, the US and UK militaries did not consider fentanyl as a viable ICA option during early Cold War times. More recent research into increasing the safety margin did not make enough progress to prevent the termination of research into advanced fentanyl derivatives in 1992, when the negotiations for the CWC were successfully concluded (Pearson 2006). The reported use of a fentanyl derivative to end a 2002 Moscow theater siege suggests that at least one other CWC state party holds a different opinion on the compatibility of development and use of an ICA of the fentanyl family of chemical compounds with its obligations under the CWC. On 26 October 2002, Russian authorities pumped a gas, the exact composition of which is still unknown, into the Dubrovka Theater Center in Moscow in order to end a hostage crisis in which around forty Chechen terrorists held more than 900 people hostage for over two days. As a result, in addition to most of the terrorists, 125 hostages died either during or shortly after the storming of the theater (Wax, Becker, and Curry 2003). Televised scenes outside the venue showed unconscious hostages being piled upon each other, revealing not only use of an ICA with a safety margin that led to a fatality rate of well over 10 percent but also poor planning and execution of the rescue operation, which according to witness accounts was chaotic and led to a number of deaths that could otherwise have been prevented (Kelle 2012c). Based on a review of policy documents and the scientific literature, the characteristics of a “good”—in the sense of usable—ICA have been

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summarized as including high potency, rapid onset of symptoms, defined and short duration, reversible effects, stability in storage and delivery, significant and predictable effect, capability for rapid and often covert dissemination, and a high safety margin (Pearson 2006). So far, not a single of the chemical agents considered for ICA use meets all these criteria. Yet, with the continuing advances in the life sciences, some of the obstacles mentioned above in relation to fentanyl might be overcome, thus creating a safety margin that some analysts or decisionmakers may deem good enough. The research on 5-HT serotonin receptors and agonists may be a case where the dual-use character of benignly intended research might lead to renewed interest in ICAs with fewer side effects, such as fentanyl-based chemical compounds displaying a reduced or even eliminated respiratory depression. Such developments can be expected to put additional pressure on the normative restraints against the development and use of toxic chemicals as ICAs. However, the recent third module of the UK Royal Society study Brain Waves has cautioned, While advances in neuropharmacology and drug delivery are opening up improved therapeutic options, there are considerable technical challenges involved in applying these developments in the operational context of military or law enforcement use. . . . Even if the technical challenges could be overcome, a host of legal, ethical and policy challenges remain. (Royal Society 2012: 15)

At the extreme utilitarian end of the spectrum of contested meanings, this latter set of challenges has resulted in calls for “an urgent need for rethinking and rewriting the existing laws with respect to the implementation of NLTs [nonlethal technologies] using chemicals” (NATO RTO 2006: E-4). However, at the other end of the spectrum, normative approaches emphasize legal norms embodied in the CWC and BWC, as well as International Humanitarian Law, but also moral norms underpinning such international legal agreements. Such a contrasting normative approach is clearly expressed in the position paper that Switzerland submitted to the Second CWC Review Conference. This paper starts from the premise that “riot control agents and incapacitating agents are ‘toxic chemicals’ as defined by the Convention. Hence, they are by definition ‘chemical weapons’ unless they are intended for purposes not prohibited under the Convention” (Switzerland 2008a: 2). One of the purposes not prohibited—law enforcement—is contained in CWC Article II(9)(d). Not surprisingly, the absence of a definition of law enforcement has led to a range of views among practition-

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ers and scholars as to its exact meaning. Closest to the normative end of the spectrum and hence supporting a strong non-acquisition norm is the position taken by former German ambassador to the Conference on Disarmament, Adolf von Wagner (2007), who, based on his experience in negotiating the CWC, regards the scope of law enforcement as being limited to riot control and capital punishment. This assessment is based, on the one hand, on an understanding of the “word ‘law’ [which] refers to the limits of what may be enforced” while “on the other hand ‘riot control’ refers to the executive measures within the legal limits of law enforcement. In other words, law enforcement qualifies the conditions under which riot control measures shall be applied” (von Wagner 2007: 198). Within this narrow interpretation of what is allowed under the exemption contained in Article II(9)(d), von Wagner still acknowledged “that law enforcement purposes might contain more than just riot control purposes” (von Wagner 2007: 198, emphasis in original), such as judicially sanctioned executions with toxic chemicals. However, he cautions that “the special case of capital punishment cannot serve as a tool for a wider interpretation of the term law enforcement” (von Wagner 2007: 199). With a view to the 2002 Moscow theater siege, von Wagner concludes that “as the substance used has properties that exclude its use as an agent for law enforcement including domestic riot control, Russian security forces . . . acted in violation” of the CWC (von Wagner 2007: 202). Directed against the utilitarian interpretations of the law enforcement exception contained in the CWC, von Wagner posits that “state practice in breach of international law cannot heal the illegality of such violation . . . even if such illegal state practice is repeated several times and by several states” (von Wagner 2007: 203). In other words, even if the Russian use of a fentanyl derivative to break up the 2002 Moscow theater hostage taking were emulated by other CWC states parties, this state practice would not overturn the CWC stipulations as contained in Article II(9)(d). Chayes and Meselson (1997) argue for a somewhat wider understanding of the law enforcement exemption in CWC Article II(9)(d) that allows “actions taken within the scope of a nation’s ‘jurisdiction to enforce’ its national law” and actions under UN authority to be covered, as long as these do not constitute a method of warfare (Chayes and Meselson 1997: 13). This stance clearly goes beyond the special case of capital punishment as the only permissible law enforcement activity beyond riot control, as von Wagner advocates. However, Chayes and Meselson support a narrow interpretation of the types of toxic chemicals that can be used for law enforcement when they state that

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such chemicals must be “not listed in a Schedule” and must “produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of the exposure.” However, any chemical not on Schedule 1 may be used in carrying out the sentence of a duly constituted tribunal against a natural person. (Chayes and Meselson 1997: 17)

While this restricts to riot control agents the toxic chemicals to be used for most scenarios of law enforcement, other toxic chemicals can be used for capital punishment, as long as the chemical is not listed on Schedule 1. David Fidler (2007) rejects such a narrow interpretation of the admissibility of toxic chemicals for law enforcement purposes and thus is further away from von Wagner’s interpretation. First, Fidler argues that even critics of a broad interpretation concede that “lethal doses of toxic chemicals can be used in capital punishment” (2007: 173). Second, he interprets CWC Articles II(1)(a) and II(2) as allowing for toxic chemicals other than RCA to be used under the exemption of Article II(9)(d). In addition, Fidler contends that while a listed toxic chemical cannot be an RCA, given the nature of the different schedules in the CWC’s Verification Annex, those listed on Schedules 2 and 3 are permissible for law enforcement purposes (2007: 174). Last, in Fidler’s view, Russia’s use of a fentanyl derivative and “the acquiescence of other CWC states parties” (2007: 174) constitutes the very state practice that is permissible under international law on treaty interpretation, and which von Wagner characterizes as illegal. However, this wider interpretation of the law enforcement exemption by Fidler is moderated by the types and quantities of toxic chemicals he regards as permissible under Article II(9)(d): “The more difficult it is to control the effects of the use of a chemical or biochemical in a law enforcement operation, the more suspect such use becomes in terms of the agent being of a type and quantity consistent with a law enforcement purpose” (Fidler 2007: 175). Therefore, only in “extreme law enforcement situations”—such as the one that occurred in October 2002 in Moscow—is it, according to Fidler, permissible for a government to use toxic chemicals for law enforcement purposes and still comply with the types and quantities limitations of the CWC. Although this combination of restraints in Fidler’s view minimizes the legal loophole that some see created by Article II(9)(d), his approach does not address convincingly (1) who decides whether an extreme case of law enforcement is present and (2) how to deal with less severe cases. How much control over the dosage

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of a chemical and the exposure environment has a state to be able to exercise at any given point of a spectrum of severity of law enforcement situations? Who makes these decisions? In sum, even if one were to agree with Fidler’s interpretation of the nature of the law enforcement exemption under the CWC, these questions raise serious doubts over the practicability of his proposed mechanisms for implementation. A much more simplistic approach and closer still than Fidler to the utilitarian end of the spectrum is a 1997 opinion of the US Navy Judge Advocate General, who declared the limits of “law enforcement” as “not clear and will be determined by the practice of states parties.” As this simply denies the relevance of normative guidelines for state action inherent in international treaty regimes, there is no point in further engagement with this position here, other than highlighting its potentially corrosive effect on norm-guided state behavior in the CW prohibition regime. In sum, the meaning of both incapacitating chemical agents and law enforcement is contested. Utilitarian proponents of ICA and a wide interpretation of the law enforcement clause emphasize the additional tactical and strategic options that ICA could provide. Normative skeptics of such a wide interpretation caution against or outright oppose ICA as a threat to the non-acquisition norm of the CW prohibition regime as well as international humanitarian law (British Medical Association 2007). Civilian research and development in medicine and the life sciences with dual-use character may aid in increasing safety margins of potential ICA and thus increase the pressure to develop and deploy such kinds of weapons in the future. As inaction with respect to clarifying the normative boundaries of the use of toxic chemicals under the CWC’s law enforcement exemption is likely to play into the hands of utilitarian proponents of ICA, CWC states parties need to agree sooner rather than later on clear guidelines for the interpretation of CWC Article II(9)(d). Preventing the Proliferation of Chemical Weapons While Allowing for Civilian Use

In light of the dual-use nature of much of the chemistry involved in offensive chemical warfare activities, norms, rules, and procedures had to be included in the CWC to safeguard international trade and the technological development of the international chemical industry and to preserve the right of states parties to engage in legitimate defense activities. According to Article VI, states parties retain the right under the convention “to develop, produce, otherwise acquire, retain, transfer and

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use toxic chemicals and their precursors” (OPCW webpage) for either peaceful, non-chemical-weapon-related or military, defensive purposes. Although nonproliferation has represented a key goal of the CW prohibition regime from its inception, over the first fifteen years of CWC implementation the verification activities of the OPCW’s Technical Secretariat in the field of CW disarmament have taken up over three-quarters of the overall verification effort (in terms of person days and money spent). Verification of the absence of prohibited activities in the member states’ chemical industries and elsewhere will become increasingly important as CW destruction activities in possessor states are reduced and ultimately completed. The key rules and procedures to be followed to ensure the nonproliferation—or, as it is increasingly called, preventing the reemergence—of chemical weapons are contained in Article VI as well as Parts VI to IX of the Verification Annex. As in the case of CW destruction, states parties have to submit initial and annual declarations, and they have to accept data monitoring and on-site verification of military and civilian facilities through the international inspectorate of the OPCW. The on-site inspections vary in frequency, intensity, and intrusiveness according to the CWC schedule that the chemicals in the inspected facilities have been placed on. For the purpose of verifying the treaty-compliant behavior of states parties with the stipulations of Article VI, the CWC distinguishes between four categories of chemicals, three of which are grouped together on so-called schedules in the CWC’s Annex on Chemicals. Chemical compounds are assigned to one of these three schedules depending on the degree of risk they pose to the CWC and on their utilization in chemical industry. Schedule 1 chemicals pose the highest risk of the three categories to the CWC. Many have been developed, produced, stockpiled, or used as chemical weapons in the past, and they have few if any peaceful uses. A chemical may also be listed in Schedule 1 if it is a final-stage precursor to another Schedule 1 chemical. States parties can only retain small quantities of these substances for medical or defense research purposes. Schedule 2 chemicals pose a significant risk to the convention either because they can be used themselves as chemical weapons or as a consequence of their role as precursors to Schedule 1 or 2 chemicals. Many of the Schedule 2 chemicals are also not produced commercially on a large scale. Schedule 3 chemicals are produced in large quantities commercially but pose a risk to the convention because of their role as precursors to either Schedule 1 or Schedule 2 chemicals. Rules and procedures for the fourth category

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of chemicals that may pose a risk to the object and purpose of the convention, so-called discrete organic chemicals (DOC), and the related other chemical production facilities (OCPF) are detailed in VA Part IX. The verification of these OCPFs has been a bone of contention among CWC states parties during the past decade. In contrast, declarations and inspections of Schedule 1 to 3 facilities have been comparatively uncontroversial. In the words of one observer summarizing the experience after the First CWC Review Conference in 2003, “Overall, there has been a high degree of satisfaction by the OPCW, States Parties and industry facility personnel in the way that industry inspections have been conducted” (Mathews 2006: 54). The introduction of inspections for the different schedules has been staggered, with Schedule 1 and 2 inspections starting in 1997, Schedule 3 inspections commencing in 1998, and OCPF inspections being added to the mix in the year 2000. Table 4.2 gives an overview of the develop-

Table 4.2 Numbers of Inspections at Schedule 1, 2, and 3 Facilities and OCPF Year

Schedule 1

1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012a 2013a

24 13 17 26 18 9 16 16 16 16 11 11 11 11 11 11 11

Schedule 2 4 68 38 39 28 21 35 42 42 46 42 42 42 42 42 42 42

Schedule 3 — 13 25 27 12 23 15 22 24 28 29 29 30 30 29 29 29

OCPF — — — 48 17 32 66 70 80 90 118 118 125 125 127 137 147

Total 28 94 80 140 75 85 132 150 162 180 200 200 208 208 209 219 229

Sources: Figures for 1997 to 2011 are based on the Annual OPCW Reports circulated at the Conference of States Parties in the following year. All of these are available at www.opcw.org. Note: a. Numbers for 2012 and 2013 are planning figures taken from OPCW 2011e and OPCW 2012a, respectively.

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ment of inspection numbers in these four categories since the entry into force of the CWC. These figures clearly show relatively stable numbers for Schedule 1 to 3 inspections once the initial inspections for each category of facilities were conducted. OCPF annual inspection numbers, when ignoring the blip in 2001 and 2002 caused by the OPCW’s financial crisis, in contrast show a steady upward trend that is expected to continue until at least 2014. This divergence is due on the one hand to the much larger number of OCPF facilities than Schedule 1 to 3 facilities having been declared by OPCW member states, but on the other hand also a growing recognition that some OCPFs are of greater relevance to the prohibition of CW than Schedule 2 and 3 facilities. However, the CWC contains certain limitations and inherent uncertainties in relation to the verification of treaty-compliant activities at OCPF facilities that need to be addressed before the political debates surrounding this category of inspections can be fully appreciated. To start with, Part IX of the Verification Annex contains in Paragraph 4(d) the provision that the “approximate number of plants” producing discrete organic chemicals (DOC) above certain thresholds has to be declared annually by the OPCW member states. This clause has led to uncertainty in relation to the actual number of inspectable facilities and some variation in the assumed number of relevant OCPFs over time. While in 2008 states parties had declared over forty-six hundred inspectable DOC-producing OCPFs, in late 2011 this baseline figure had dropped to below forty-three hundred (OPCW 2011d). In addition to the number of plant sites, the actual DOC production at any given facility is equally vague, as Paragraphs 5 and 6 of Part IX of the Verification Annex require declaration of the “approximate aggregate amount of production” only in ranges. Neither of these factors helps to determine the relevance of an OCPF for inspection purposes. A further limitation for inspecting relevant OCPFs on a regular basis is contained in Paragraph 13, which puts a de facto cap of twenty inspections on the number of combined Schedule 3 and OCPF inspections a state party can receive per calendar year. Considering the fact that the OPCW had inspected one thousand OCPFs in March 2012 (OPCW 2012c), and assuming the continuation of the rate of OCPF inspection activities currently agreed upon, the OPCW inspectors would take more than thirty years to visit the remaining thirty-three hundred facilities in this category at least once. However, taking into consideration the cap stipulated in Paragraph 13 and allowing for a certain percentage of OCPF inspec-

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tions being set aside for reinspections of previously visited facilities, this process will take even longer. This issue is problematic as a number of the early OCPF inspections had already shown that there are . . . some [facilities] that are highly relevant to the object and purpose of the Convention. These facilities produce chemicals that are structurally related to Schedule 1 chemicals. Of particular relevance to the Convention are facilities that combine this kind of chemistry with production equipment and other hardware designed to provide flexibility and containment. (OPCW 2003b: 12)

The recognition of these new developments in the chemical industry lies at the heart of calls for adapting the industry verification regime. However, all states parties do not support this assessment. Pakistan, for example, emphasized during the First CWC Review Conference that an “increase in emphasis on verification . . . of facilities producing relatively harmless discrete organic chemicals (DOCs) should not be at the expense of higher risk Schedule 1, 2 and 3 chemicals listed in the Annex to the CWC” (Pakistan 2003: 4). The Review Document of the conference merely affirmed the “need to ensure an adequate inspection frequency and intensity” for each category of Article VI facilities. This vague wording allowed proponents of expanded and more focused OCPF inspections as well as opponents to such a refocusing to claim victory. As a result, the debates about OCPF inspections continued and resurfaced during the Second CWC Review Conference in 2008. During its General Debate, Cuba—on behalf of the Non-aligned Movement (NAM) and China—reiterated their view that the Convention clearly sets out the hierarchy of risks posed by different chemicals to its object and purpose. The verification regime under Article VI must therefore correspond to the hierarchy of risks inherent to the respective category of chemicals. Any shift in the distribution of inspections which is contrary to this hierarchy would signal a departure from the fundamental principles of the verification regime based on the Convention. (Cuba 2008: 4)

In other words, industry verification continued to be interpreted by the NAM and China as being based on a fixed definition of risks inherent in different types of chemicals and facilities. Given the disproportionately large numbers of OCPFs declared by China (fourteen hundred plus) and India (three hundred plus), this position does not come as a surprise. The US statement in contrast stressed the “need to improve our

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approach to Other Chemical Production Facilities (OCPF), both by increasing the percentage of facilities that are inspected annually and by improving identification of the specific facilities that should be inspected. Some of these facilities incorporate technologies and features that are highly relevant to the Convention” (United States 2008: 5–6). A detailed Swiss national paper submitted to the Second CWC Review Conference also argues the case for a detailed risk assessment of OCPFs and a weighting mechanism for those facilities that pose the highest risk to the object and purpose of the CWC. According to this analysis, multipurpose batch plants that produce unscheduled discrete organic chemicals containing the elements phosphorus, sulfur, or fluorine (PSF) in excess of two hundred tons annually pose the highest risk (Switzerland 2008a). In more general terms the Swiss paper concludes that “the risk assessment of a plant site/facility consists not only of the assessment of the chemicals, but includes the process, as well as the engineering characteristics of a plant site/facility. . . . A risk assessment which includes all three factors does not necessarily reflect the hierarchy of the Schedules, but identifies the plant sites/facilities of real relevance to the objective and purpose of the Convention” (Switzerland 2008a: 18). In light of the wide range of views on OCPFs, the final document of the Second Review Conference again contains only very generic language on Article VI inspections—without mentioning OCPF inspections specifically—and expresses the need for “early resumption of consultations on the OCPF site selection methodology with a view to reaching a decision by States Parties, in accordance with Part IX, paragraphs 11 and 25, of the Verification Annex to the Convention” (OPCW 2008c: 16). In parallel to these political debates, the OPCW’s Technical Secretariat had to start implementing Part IX, Paragraph 22 of the Verification Annex beginning in May 2000 through on-site inspections at OCPF plant sites. For the first seven years, site selection for such inspections was carried out in a two-step process in which, first, the country was selected and then the plant site for inspection was determined. This temporary mechanism was replaced by an interim algorithm introduced by the TS in May 2007, which allowed for the selection of plant sites in a single step and sought to direct the process toward relevant facilities. Following the above-mentioned call by the Second Review Conference, such consultations among states parties in 2010 and 2011 resulted in an updated interim selection methodology that divides OCPFs in each country into three different pools and also takes into account past inspection experience (OPCW 2011e). The TS has used this so-called

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A15 algorithm since the beginning of 2012 in selecting plant sites for inspections. Although the improved algorithm allows the TS to focus on facilities of greater relevance, it still leaves out the third weighing factor specified in Part IX, Paragraph 11 of the Verification Annex: the “proposals by States Parties.” CWC states parties still have not agreed upon a mechanism for how such proposals could be integrated into the OCPF site selection methodology, even more than a decade after OCPF inspections were begun, raising the question of to what extent the nonproliferation dimension of the CW prohibition regime suffers from the absence of this weighing factor. The answer is, not much, as the benefits that would be derived from an agreement on such proposals remain unclear. The underlying concern—that a treaty violation might be occurring at an OCPF, which would motivate a state party to put forward such a proposal—could be addressed equally well, if not more appropriately, under Article IX of the CWC on consultation, cooperation, and fact-finding. The Internalization Norm

The requirement for CWC states parties to internalize all the CWC’s prescriptions and proscriptions for action cuts across practically all aspects of CWC implementation. In this broad understanding, CW destruction, non-acquisition, and nonproliferation activities can be understood to fall under the purview of this normative guidepost for state action in the issue area of CW prohibition. However, most if not all of these activities require the translation of the CWC’s stipulations into the domestic sphere of states parties. Here I discuss the necessary domestic legal and administrative processes and infrastructure in this narrower sense. Viewed from such a focused normative perspective, the first step for most CWC states parties is the incorporation of the convention’s prohibitions into their national legal systems via the passage of implementing legislation (Article VII[1]). To this end, states parties must criminalize the development, production, stockpiling, or use of chemical weapons for any individual or entity on their territory. Moreover, CWC states parties are required to apply these prohibitions extraterritorially to all their citizens. The second dimension of the internalization norm relates to the establishment of a national authority. This government body is tasked with implementing the convention at the national level and serves as the primary liaison with the OPCW, as well as with the appropriate local authorities and the national chemical industry. A

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state party is required, within thirty days after the convention enters into force for it, to notify the OPCW of the designation of its national authority and also the status of its implementing legislation. The extent to which the implementation of the convention’s key provisions, most notably the requirement to enact implementing legislation on the national level, is actually happening has attracted increasing attention. In a 2004 assessment, Lisa Tabassi and Scott Spence pointed out, In the seven years since the CWC entered into force, the CWC’s policymaking organs have moved from benign lack of interest in CWC national implementing legislation to being fully engaged with the issue. The Conference of the States Parties . . . and the Executive Council have adopted a series of decisions encouraging states parties to comply with their implementation obligations, motivating them to be more active in assisting each other with that task, assigning a more hands-on role to the OPCW Technical Secretariat and providing increased funding for this area of work. (Tabassi and Spence 2004: 45)

The OPCW Action Plan on national implementation was a major initiative to build upon and enhance these initial Article VII activities that Tabassi and Spence described. The initiative was adopted during the Eighth CSP in October 2003 (OPCW 2003c) and contained several measures that aimed to “incorporate the CWC’s prohibitions into the legal frameworks of its states parties” (Feakes 2007: 110). Initially the action plan was optimistically scheduled to last only for two years and to focus member state and OPCW action in this area with a view to accomplish “the enactment of the necessary legislation, including penal legislation, and/or the adoption of administrative measures to implement the Convention no later than the Tenth Session of the Conference of the States Parties, scheduled for November 2005” (OPCW 2003c: 3). The action plan also required regular reporting by the Technical Secretariat of the progress achieved by states parties to both the Executive Council and Conference of States Parties. Yet, almost a decade after adoption of the action plan, substantial gaps remain in the implementation record of about half of the CWC states parties, most importantly with respect to the comprehensive nature of the Article VII(5) data on national legislative measures. Table 4.3 gives an overview of developments in the area of Article VII implementation up to July 2012.

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Table 4.3 Implementation of CWC Article VII

Cutoff Date 2003 2006 2008 19 August 2009 30 July 2010 29 July 2011 27 July 2012

Number of States Parties

National Authorities

Article VII(5) Declaration Submitted

Legislation Covering All Key Areas

154 181 184 188 188 188 188

126 (82%) 172 (95%) 177 (96%) 181 (96%) 185 (98%) 185 (98%) 186 (99%)

94 (61%) 112 (62%) 126 (62%) 128 (68%) 135 (72%) 139 (74%) 141 (75%)

51 (33%) 72 (40%) 82 (45%) 86 (46%) 87 (46%) 88 (47%) 88 (47%)

Source: Data compiled from OPCW 2009d; OPCW 2010b; OPCW 2011f; OPCW 2012d.

As these figures show, as of July 2012 two states parties had not established or nominated their national authority for CWC implementation. Even more importantly, only 88 of 188 states parties had enacted key national legislation to implement all the crucial provisions of the CW prohibition regime on their territory. Thus, the internalization of key obligations undertaken by states parties was a goal still not yet achieved by more than half of the states parties more than fifteen years after the CWC’s entry into force. In light of the decreasing rate of improvements in these indicators for national implementation by CWC states parties, the Fourteenth CSP in 2009 decided to extend again many of the activities originally agreed upon in the 2003 Action Plan and also agreed to put the assistance and reporting activities of the Technical Secretariat on a more permanent basis that does not require an annual decision of the conference to this effect (OPCW 2009e). From an institutional perspective these findings indicate a lack of regime effectiveness. A split among regime members is apparent in which one group of slightly below half of all CWC states parties has implemented key measures of the CWC, and a second group of slightly more than half of states parties is currently not implementing key Article VII provisions, as captured by the reporting requirements of Article VII. In such a situation, it is difficult to see how a convergence of expectations or regime induced practices in this area of implementation of the CW prohibition regime could be emerging. This topic will have

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to be revisited in the context of UN Security Council Resolution 1540 and its implementation (see Chapter 7). The Consultation and Investigation Norms

The consultation norm and essential elements of the investigation norm of the CW prohibition regime are contained in Article IX of the CWC and Part X of the CWC’s Verification Annex. While Paragraphs 1 to 7 of Article IX spell out the right of states parties to consult one another and seek clarification, including a mechanism involving the OPCW’s Executive Council, Article IX, Paragraphs 8 to 25, as well as Part X of the Verification Annex detail the rules and procedures for challenge inspections. Originally, it was anticipated that requests for consultation to clarify an ambiguous situation may have at its root actions taken by a state party on its own territory or that of another state or a discrepancy in the context of a declaration. Anecdotal evidence exists that numerous informal consultations to clarify declarations have taken place since the CWC’s entry into force (Mathews 2006). However, not a single formal Executive Council action, let alone a challenge inspection, has been requested up to now, raising the political bar ever higher for use of the mechanism. This absence of a challenge inspection request is puzzling, as during the 2003 CWC Review Conference, “for instance, the United States has publicly accused China, Iran, Russia, and Sudan of violating the CWC, yet it has not provided specific evidence nor pursued these allegations through challenge inspections, thereby weakening the treaty” (Tucker 2007). Thus, the fact that the investigation norm of the CW prohibition regime has not been fully implemented as intended by the CWC’s negotiators can easily result in undermining the wider institutional effectiveness of the treaty. As MacEachin (1998) has argued convincingly, challenge inspections are an essential second pillar to any verification regime. In the CWC context they complement the routine inspections and provide a mechanism by which a state party can request an on-site inspection on the territory of another state party that it suspects is in noncompliance with the convention. This novel concept for disarmament treaties was introduced in 1984 by the US delegation to the Conference on Disarmament. In light of the concerns voiced by some states participating in the negotiations—mostly members of the NAM—the “anytime, anywhere” character of the original US proposal was weakened in the endgame of the negotiations. The procedures agreed upon in the end give states par-

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ties that are the target of a challenge inspection request a considerable degree of control over the process. This managed access was developed to balance the legitimate interest of all regime members in ascertaining whether noncompliant behavior—for example, in the form of producing CW for offensive military purposes—has taken place; also at question was the interest of the inspected state in safeguarding activities and facilities that are unrelated to the object and purposes of the CWC, in which a disclosure of certain types of information might compromise the inspected state’s national security interests. In procedural terms, once a request for a challenge inspection is submitted to the Executive Council and Director-General of the Technical Secretariat, the inspection will proceed unless a three-quarters majority of EC members vote against the request. After an inspection team has been dispatched to conduct the inspection, the inspected state party has to grant the inspection team increasing levels of access within predetermined time intervals, resulting in the inspectors’ access to the facility to be investigated, at the latest, 120 hours after a state party has received the inspection request. The rules and procedures in Article IX are supplemented by the detailed provisions in Part X of the CWC’s Verification Annex. From a practical perspective, the lack of an actual challenge inspection over a lengthy period poses difficulties as to the ability of the OPCW’s Technical Secretariat to conduct such an inspection, which is substantially different from the routine inspections undertaken at CW-related and industry facilities. In order to compensate for the absence of a true challenge inspection, the OPCW and in a more limited way outside observers have undertaken mock inspections and exercises (Tucker 2002b). Challenge inspection exercises conducted by the OPCW and member states started as early as 1999 when two such “exercises were organised by the Secretariat, in cooperation with Brazil (the first inspection exercise carried out in a private chemical facility) and the United Kingdom of Great Britain and Northern Ireland respectively” (OPCW 2000c: 25). During 2001, The Secretariat . . . participated in two trial challenge inspections, in the United Kingdom of Great Britain and Northern Ireland and the United States of America respectively, as well as in one table-top exercise in the United States of America. In addition, all inspectors designated for challenge inspections and investigations of alleged use participated in refresher training during 2001, with a view to maintaining a generally high level of readiness. (OPCW 2002b: 17)

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Further challenge inspection exercises took place in the United Kingdom and the United States in 2002 (OPCW 2003d), in Switzerland and the United Kingdom in 2004 (OPCW 2005a), and in the United Kingdom in 2005 (OPCW 2006h). As the OPCW’s Annual Report for 2005 highlighted, the organization’s Technical Secretariat also engaged in a number of challenge inspection–related administrative activities, including the following: (a) a call-up exercise conducted by INS, aimed at identifying possible problems in assembling an inspection team at very short notice; (b) a no-notice tabletop exercise, involving top-level management, at OPCW headquarters; (c) a joint VER-INS workshop on challenge inspections; (d) a review of working instructions; (e) the evaluation of training requirements for challenge inspections and investigations of alleged use, and the implementation of those requirements; and (f) the implementation of the concept of core teams, one each for challenge inspections and for investigations of alleged use, for which purpose the Secretariat designates full-time and headquarters inspectors. (OPCW 2006h: 9)

More recently, challenge inspection exercises have taken place in Germany and in the United Kingdom in 2006 (OPCW 2007b), in the Netherlands in 2007 (OPCW 2008a), in the United Kingdom in 2008 (OPCW 2009f), in the United States in 2009 (OPCW 2010c), and in Thailand in 2011. This latter challenge inspection exercise involved for the first time a mock inspection request submitted by another state party (played by Australia), which also participated during the exercise as the requesting state, providing an inspection observer. While the OPCW Technical Secretariat and member states have sought to maintain and improve their readiness and capabilities for actually conducting a challenge inspection, a political debate has engulfed the interpretation of the investigation norm and its relationship to the consultation norm, as operationalized in Article IX, Paragraphs 1 to 7. This debate has pitted some states parties that have argued that consultations have to precede a challenge inspection request against those that have maintained that the challenge inspections procedures can be triggered without the requesting state party’s prior warning. The former position was supported by the Non-Aligned Movement (NAM) and China during the first two CWC Review Conferences in 2003 and 2008, respectively. In 2003, for example, Malaysia declared that “the NAM CWC States Parties and China recognize the provision for challenge

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inspections and this should be undertaken as a last resort and as part of the process of consultation and fact-finding” (Malaysia 2003: 5). This approach was convincingly refuted by a paper presented by Greece (2003) on behalf of the European Union (EU) during the First Review Conference. The EU argued that challenge inspections need to remain an effective tool—even if so far untested—for the regime to deter treaty violations and for individual states parties to demonstrate compliance with the convention when challenged by another state. To this end, “There must be a possibility that inspectors might uncover evidence indicative of illegal CW activities, and for that speed is essential” (Greece 2003: 1). Concerning the position expressed by the NAM and China, the EU paper points out that this “interpretation is at odds both with the objective technical requirement for effective CW verification and, more importantly, with the ordinary meaning and construction of the text in Article IX, paragraph 1” (Greece 2003: 1). Walter Krutzsch and Ralf Trapp in their CWC Commentary agree when they state that “the right to request a challenge inspection is not dependent on such previous attempts to solve the matter by exchange of information” (Krutzsch and Trapp 1994: 175). As Robert J. Mathews summarizes, the prevailing disagreement led to a mere reiteration of CWC treaty text in the final document of the First Review Conference without any interpretive statement as to its meaning (Mathews 2006). Not surprisingly the contested meaning of the investigation norm continued to simmer and resurfaced during the Second CWC Review Conference in 2008 when Cuba, on behalf of the NAM and China, “reiterate[d] that a challenge inspection is an instrument to be used as a last resort and under exceptional circumstances. The consultation and clarification procedure is an integral part of Article IX, which shall precede any request for a challenge inspection” (Cuba 2008: 4). Trying to reinforce a particular view on the sequence of steps contained in CWC Article IX in a national position paper, China posited that abusing the right to request a challenge inspection also represented a violation of the convention and thus had to be deterred and penalized should it ever occur (China 2008). Slovenia, which held the EU presidency during the first half of 2008, countered this point. Its plenary statement on behalf of the EU “stress[ed] that States Parties have the legal right to request a challenge inspection without prior consultation, and that the OPCW should continue to maintain its readiness to conduct a challenge inspection, should it be requested to do so” (Slovenia 2008: 4). These diverging positions led to a repeat of CWC treaty text— Article IX(2)—in the Final Document of the Second Review Confer-

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ence, without clarifying the meaning of the investigation norm. The Executive Council was tasked to continue its deliberations with a view to resolve the still outstanding issues related to challenge inspections (OPCW 2008c). Although not directly siding with either of the above positions on challenge inspections and their relationship to clarification procedures under Article IX, the Advisory Panel on Future OPCW Priorities points out that “when the Convention was negotiated, great care and attention was given to the formulation of the relevant treaty language in order to make the provisions unambiguous and easy to implement” (OPCW 2011g: 16). The Advisory Panel further points out, States Parties should look upon the mechanism of challenge inspections as a necessary safeguard of the Convention that, in order to deter violations, must be operational. . . . It is therefore essential that the Technical Secretariat maintain the resources, technical competence, operational readiness and professional skills needed to implement a challenge inspection if one is invoked. (OPCW 2011g: 16, emphasis in original)

In sum, the consultation and investigation norms in their formal manifestations of Executive Council clarification procedures and challenge inspection requests have not yet been put into practice. While some CWC states parties and the OPCW Technical Secretariat have sought to develop and maintain the level of readiness advocated by the Advisory Panel on Future OPCW Priorities, the continued absence of any real challenge inspections as well as the political contestation of the meaning of the investigation norm and its relationship to the consultation norm embedded in CWC Article IX threaten to raise the political hurdles for requesting a challenge inspection to a point at which such inspections become an unusable instrument for deterring violations of the CW prohibition regime. The Assistance Norm

Article X of the CWC gives expression to the assistance norm and additional key elements of the investigation norm of CW the prohibition regime. Both of these components of Article X have been conceptualized as an extension of the regime’s defense principle. Article X(2) contains unambiguously the right of each state party to defend itself through, among other methods, research, development, production, and use of protective measures against CW. In order to increase trans-

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parency in this area, Article X(4) requests all states parties to declare on an annual basis information on national CW protection programs. Article X(1) provides for emergency assistance in the event of an accidental or deliberate use or release of chemical weapons to those states parties whose CW defense capabilities are overwhelmed by such a use. Thus, the assistance provisions in CWC Article X are clearly not envisaged as a free-for-all with respect to all potential scenarios in which a state party might see itself in need of assistance. The provision of assistance under Article X(7) can take three forms. States parties can, first, contribute to a voluntary fund for assistance. Second, states parties can enter into an agreement with the OPCW concerning their provision of assistance, should the need arise. Third, they can declare the kind of assistance they are willing to provide to the OPCW. According to Article X(8), a state party can request assistance if the party is of the opinion that CW have been used against it, riot control agents have been used against it as a method of warfare, or it is threatened by any action prohibited under CWC Article I. The exact procedures for dealing with an assistance request are addressed in the remainder of the Article. As with the previously discussed cooperation norm and the nonroutine verification measures under Article XI—that is, the option to conduct challenge inspections in case of suspected treaty violations—the provisions for the investigation of alleged use of CW have not been invoked since the CWC’s entry into force in April 1997. Instead, the OPCW and its member states have utilized numerous courses on assistance and protection hosted by the TS or individual member states, as well as exercises and mock investigations of alleged use to develop and maintain the procedures, knowledge, skills, and resulting readiness to conduct such an investigation at short notice. As the OPCW’s report for 1999 highlighted, “The first OPCW exercise to train for investigations of alleged use of chemical weapons and for the delivery of assistance was conducted in the Czech Republic from 17–21 October” (OPCW 2000c: 4). The following year, the OPCW “conducted an investigation of alleged use exercise in Slobovo, Poland, . . . [which] involved over 50 staff from the OPCW, both at headquarters and in the field, and even more participants from Poland” (OPCW 2001: 30). The first major OPCW exercise on the delivery of assistance, called ASSISTEX I, took place from 10 to 14 September 2002 in Zadar, Croatia. Its aim was to assess the preparedness of states parties and the TS for processing and responding to a request for assistance. The underlying scenario involved a fictitious state party discovering a terrorist group first producing and then using chemical warfare agents in an attack on a major airport.

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“Over nine hundred individuals from eight States Parties participated in the exercise” (OPCW 2003e: 13). The states parties providing a wide range of services and equipment ranging from decontamination to transport aircraft were, among others, the host country Croatia, France, Sweden, Iran, Estonia, and the Czech Republic. While in 2003, TS “staff . . . participated in a training exercise on the investigation of alleged use, which took place in the Czech Republic from 28 March to 4 April” (OPCW 2004c: 8), the following years saw the planning and execution of another major assistance exercise, Joint Assistance 2005, that took place from 9 to 13 October in Lviv, Ukraine (OPCW 2006i). Following a recommendation of the First CWC Review Conference to the TS “to coordinate its activities in an assistance operation with other international agencies involved in an emergency response, in particular the UN Office for the Coordination of Humanitarian Affairs” (OPCW 2003f: 24–25), Joint Assistance 2005 involved both this particular UN body as coordinator and the EuroAtlantic Disaster Response Coordination Centre of the North Atlantic Treaty Organization (NATO EADRCC). The scenario this time involved simultaneous terrorist attacks involving CW in different parts of the country. The detailed evaluation of the exercise concluded that most procedures and capabilities had been employed as planned and identified several areas for further improvements in the organizational and administrative capabilities of the TS (OPCW 2006i). In 2006 the TS conducted a “training course for staff in October and November 2006 on the delivery of assistance, [and] implemented an internal plan on follow-up to Joint Assistance 2005” (OPCW 2007b: 10), which involved the establishment of a core team for Article X implementation. “Assistance-related training . . . and the participation by Secretariat staff members in an assistance exercise in Finland (TRIPLEX 2006), have concentrated, to the extent that this is operationally possible, on the Article X core team” (OPCW 2007c: 2). During the Second CWC Review Conference in 2008, Switzerland, which has consistently been one of the strongest supporters of Article X implementation measures and has offered numerous assistance and protection training courses to other OPCW member states, submitted a national paper on Article X measures. This paper elaborated the continuing rationale for protection and assistance measures and pointed out that in the absence of any possibility of retaliation in kind, it is of paramount importance that States Parties continue to be equipped and trained to

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defend themselves against chemical weapon attacks. In the absence of universal membership, a credible chemical weapons defence capability is an important deterrent against use or threats of use of chemical weapons. Furthermore, the threat of terrorist attacks with toxic chemicals has not decreased in the current security context. (Switzerland 2008b: 1)

Switzerland therefore encouraged states parties to step up their Article X activities in areas where gaps still existed, such as contributions to the voluntary fund for assistance, the annual provision of information on their protective programs according to Paragraph 4 of Article X, and notification of the three measures specifically mentioned in Article X(7) that the states parties have actually implemented (Switzerland 2008b). In spite of these shortcomings, on the practical level a multitude of training courses continued to be conducted, as the opening statement of the Director-General to the fifty-seventh session of the OPCW’s Executive Council in April 2009 demonstrates. In the period under review— the three months between the fifty-sixth and fifty-seventh sessions of the EC—the Technical Secretariat in collaboration with member states undertook • a practical training course for the states parties of West Africa in Bobo-Dioulasso, Burkina Faso, from 27 April to 8 May . . . • [t]he Fifth Regional Assistance-and-Protection course for Asian states parties, which took place from 11 to 15 May in Seoul . . . • the First Regional Assistance-and-Protection course on ChemicalEmergency Response [for Latin American states, the author], which took place in Brasilia, from 25 to 29 May . . . • an advanced training course on civil defence against chemical weapons, which was held in Láznĕ Bohdaneč, from 25 to 29 May . . . • a regional exercise on emergency response and an evaluation meeting in Algiers from 2 to 11 June . . . for . . . North African states parties . . . • an assistance-and-protection training course jointly promoted with the Government of Serbia, in Kruševac, from 8 to 12 June, and • a training course on protection against chemical weapons, organised together with the Government of Switzerland and held in Spiez from 22 to 26 June. (OPCW 2009g)

The third major OPCW field exercise on assistance and protection (ASSISTEX 3) was conducted in Tunisia from 11 to 15 October 2010. Over thirty TS staff members were deployed to investigate the alleged

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use of a chemical agent. “Additional staff from the Inspectorate Division participated as exercise control and directing staff. Moreover, an independent evaluation of ASSISTEX 3 was conducted by staff from the Inspectorate and Verification Divisions, as well as by external experts, acting in their personal capacities” (OPCW 2011h: 10). In sum, implementation of the defense principle and the related assistance norm have seen a multitude of activities by both the OPCW’s Technical Secretariat and a small number of dedicated states parties, which have provided funding and logistical support for and conducted a large number of assistance- and protection-related courses, including the three major assistance exercises described above. According to the OCPW’s own count, since entry into force of the convention, over twenty-two hundred participants from member states have participated in these events (OPCW 2012e). While this effort has clearly improved capabilities—both on the part of the TS and individual OPCW member states—to conduct an investigation of alleged use and provide assistance in case the national capabilities of a CWC state party are unable to cope, full realization of the assistance norm and protection principle are still hampered by limited transparency in relation to protective programs. In 2010, for example, only forty-six, or 24 percent, of states parties had submitted a declaration according to Article X(4) (OPCW 2011f). A lack of firm commitments of assistance measures that states parties are willing to provide also is a factor. Adapting the Regime to Scientific and Technological Developments

The normative guidepost for OPCW member states to adapt to scientific and technological (S&T) developments of relevance to the object and purpose of the CWC is contained in Article VIII(22), with the procedural stipulation that the CWC Review Conferences are to address such developments: The Conference shall no later than one year after the expiry of the fifth and the tenth year after entry into force of this Convention, and at such other times within that time as may be decided upon, convene in special sessions to undertake reviews of the operation of this Convention. Such reviews shall take into account any relevant scientific and technological developments. At intervals of five years thereafter, unless otherwise decided upon, further sessions of the Conference shall be convened with the same objective.

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In addition to this procedural element, the CWC in Article VIII(21) (h) also establishes an organizational structure in the form of the Scientific Advisory Board (SAB), so as to enable the Director-General of the OPCW’s Technical Secretariat to advise the policymaking organs of the OPCW—that is, the Conference of States Parties and the Executive Council—or individual states parties. Originally composed of twenty scientific experts, the Ninth Session of the Conference of States Parties decided in 2004 to add an additional five seats to the SAB, thereby increasing its membership to twenty-five (OPCW 2004d). Experts are appointed to the SAB mainly on the basis of their expertise and reputation, and only then with a view to an equitable geographical distribution of SAB membership. As noted in one of the very few studies on the SAB, France was the first to propose the idea of establishing such an advisory body, during the negotiations for the CWC (Lawand 1998). Its author correctly pointed out, “It is precisely this ambiguity of science that makes the independence of a scientific advisory body, acting at arms’ length from governments and the political organs of international institutions, all the more critical” (Lawand 1998: 1). Since the CWC’s entry into force, the activities of the SAB developed as low-key events with annual meetings being held at the seat of the OPCW with some temporary SAB working groups meeting additionally to discuss specific S&T matters of relevance to CWC implementation. Such temporary working groups have been addressing questions relating to inspection equipment and verification methodologies, or chemical weapons destruction technologies (OPCW 1998), or, more recently, issues related to sampling and analysis during on-site inspections (OPCW 2007d). External experts have been invited to brief the SAB on developments of limited expertise among its members, such as the relevance for the CWC of developments in nanotechnology (OPCW 2009h). Until recently, activities of the SAB were elevated from their relative obscurity only in the run-up to the two review conferences on the CWC’s operation in 2003 and 2008. Reflecting the provisions of CWC Article VIII, only during these two events, but not at the regular meetings of the Conference of States Parties, have member states addressed S&T developments of relevance to the CWC. But even on these two occasions the attention that S&T issues received—both by organs of the OPCW, such as the SAB, and by NGOs—was sustained and in depth only in the preparatory phase of the review conferences. The SAB liaised with the International Union of Pure and Applied Chemistry (IUPAC), which held a workshop and produced a technical report on

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S&T issues of relevance to the CWC (Parshall et al. 2002). The SAB subsequently used this report for its own findings, which, in turn, the OPCW’s Director-General submitted to the review conference (OPCW 2003g). During the course of the First Review Conference, the S&T issues identified by IUPAC and SAB were inserted into deliberations of different aspects of reviewing the CWC’s operation, instead of being treated as issues in their own right (Kelle 2003). However, S&T issues—more specifically, the SAB Report as submitted to the conference by the Director-General—resurfaced in the review document both in the sections on general verification provisions and on activities not prohibited under the CWC. In Paragraph 7.30, for example, the First Review Conference “requested the Council, assisted by the Secretariat and members of the SAB, as appropriate, to study these recommendations and observations with a view to preparing recommendations to the Conference on them” (OPCW 2003f: 9). In order to enhance the work of the SAB and its use by states parties, the Director-General pointed out that “improvements can be made by providing for more interaction and feedback between the SAB and member states” (OPCW 2003g: 20). However, one state party, Pakistan, sought to limit the SAB’s influence by asserting that “technical bodies, such as the Scientific Advisory Board, in which developing countries lack adequate trained participation, should not attempt to suggest lines of action which would have the effect of amending the provisions of the Convention” (Pakistan 2003). In the run-up to the Second CWC Review Conference in 2008, the above pattern of interaction between the SAB and IUPAC repeated itself, with IUPAC holding a meeting in Zagreb in April 2007, which led to publication of another IUPAC Technical Report (Balali-Mood et al. 2008). This report in turn informed the SAB’s own report, which the OPCW Director-General submitted to the Second Review Conference (OPCW 2008d). As stated in the SAB report of its tenth session, the IUPAC workshop reached “two high-level conclusions”: “that, with respect to advances in science, there was an increasing convergence between chemistry and biology; and that, with respect to technological advances, there was an increasing shift of chemical production towards what are known as non-traditional chemical-producing countries” (OPCW 2007e: 3). In addition, members of the NGO community followed the call of the chairman of the Open-Ended Working Group (OEWG) to submit papers on different aspects of CWC implementation, including S&T issues for consideration by states parties in the lead-up to the Second

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Review Conference (Kelle 2007a). Statements on S&T issues were inserted into the final document of the conference in a number of different places. Among them is the recognition that the scope of the CWC’s prohibitions extends to recent S&T developments, that such developments have an impact on the industry verification regime, and that the OPCW’s Technical Secretariat staff needs to keep abreast of S&T developments of relevance to the treaty’s implementation (OPCW 2008c). The 2008 Review Conference also agreed to support the work of the SAB with increased funds so that two annual meetings plus two meetings of temporary working groups could be financed from the regular OPCW budget. Furthermore, the Second Review Conference took note of the SAB report as submitted by the Director-General and “requested the [Executive] Council to consider these issues” (OPCW 2008c: 15). To this end, a meeting of governmental experts convened in February 2009 to consider the SAB report and its recommendations, as well as to report back to the Executive Council. Given the diverging political assessments in this area and sometimes contradictory views among states parties on how best to address S&T developments—such as the issue of OCPF inspections—this governmental experts meeting was unlikely to lead to a breakthrough in relation to any of the issues discussed in the SAB report that the Director-General submitted to the Second Review Conference. While the general tone of the report is appreciative of the work and recommendations of the SAB, some issues—such as the modalities for OCPF inspections—were effectively removed from the purview of the SAB by the experts meeting. This was justified by reference to the political discussions on the question that had been taken place during the Review Conference and discussions since then in the OPCW’s policymaking organs (OPCW 2009i). Among the issues identified by the experts meeting for further work are those issues that should be kept under SAB review, such as the discovery of new chemicals, advances in drug delivery, and “developments in the chemical industry, including new manufacturing technologies, and related verification issues” (OPCW 2009i: 10). Second, the governmental experts identified issues in which additional advice and information from the SAB was regarded as helpful, such as the convergence of chemistry and biology or the analysis of toxins. Somewhat predictably, given the composition of the experts group and the NAM representation therein, a third category of issues that should be reviewed by the Technical Secretariat included the creation of opportunities of the more developmental aspects of the CWC’s provisions, such as in the fields of international cooperation, and assistance and protec-

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tion. This last point and the question of OCPF inspections demonstrate that the independence of the SAB’s scientific advice must not be compromised by having its recommendations filtered through such an ad hoc body of governmental experts, selected because of their government affiliation rather than expertise. This selection criterion clearly lends itself to the politicization of the SAB’s work, which would limit this body’s usefulness. As Kathleen Lawand has rightly pointed out, Past experience shows that it is clearly to the advantage of an international organisation to have a scientific advisory body which is as depoliticised as possible, and at a minimum this requires, firstly, a membership composed of persons acting in a personal capacity . . . and secondly, a functional structure which shields the body and its members from the influence of the international organisation’s political organs and its member States. (Lawand 1998: 5)

Other international institutional contexts have produced different organizational arrangements for providing external advice in the areas of S&T advances or bioethics, such as the UN Educational, Scientific, and Cultural Organization (UNESCO)’s operation of two international bioethics committees—one nongovernmental, the other intergovernmental (Rhodes and Dando 2007). However, the SAB’s functional structure and operational practices are following the principles summarized by Lawand above. As no clear-cut division of labor and competencies exists between the SAB and an additional group of governmentnominated experts, the setting up of such an expert group and especially its formulation of issues for the SAB to address in its future work can potentially undermine its depoliticized position, which it derives from being appointed by and answerable to the Director-General of the OPCW’s Technical Secretariat. For the preparation of the Third CWC Review Conference, the process involving reviews of S&T developments of relevance to the CWC by first IUPAC and then the SAB has been replicated with IUPAC holding a meeting at the Swiss national NBC defense laboratory in Spiez in early 2012 and the SAB producing its own report during summer 2012. To what extent S&T issues will be dealt with in a similar fashion during the Review Conference itself and whether another group of governmental experts will have to be formed in order to make further progress in the SAB’s review of S&T issues remains to be seen. Additional S&T input can be expected from the newly created position of a Science Policy Advisor in the Technical Secretariat, which will need to be integrated into existing OPCW structures and processes.

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Conclusion: The CW Prohibition Regime in the Run-up to the Third CWC Review Conference

In this chapter I set out to analyze the main normative guideposts for state action of the CW prohibition regime as expressed in the CWC and operationalized in its implementation since EIF. The CW prohibition regime is unique among NBC regimes in that it completely prohibits a category of so-called weapons of mass destruction under stringent oversight by a dedicated international organization, the OPCW. However, as the discussion of practices in the OPCW’s policymaking organs has revealed, especially in the Executive Council, CWC implementation has been hampered by the adoption of consensus-based decisionmaking in substantive matters, leading to long lists of unresolved issues and almost endless facilitation processes. Overall, only in two instances has a vote of OPCW member states occurred related to major decisions: in the case of dismissing the first Director-General in 2002 by a vote of the EC and more recently when the issue arose of how to proceed with three CW possessor states’ inability to meet the 29 April 2012 deadline for complete CW elimination. Given the tendency to seek the lowest common denominator for decisionmaking by adopting this consensusbased approach, and also in view of the establishment of the organizational and regime structures that had to be accomplished during the first few years after the CWC’s entry into force, the degree of observed institutional change is minimal. Furthermore, key differences among states parties with respect to the interpretation of certain regime norms—in relation to nonproliferation and international cooperation— have not only facilitated the consensus-based approach in the OPCW’s policymaking organs but also limited the rate of adaptation of the regime to S&T advances. The key question facing members of the CW prohibition regime now is how to best utilize the rather rigid institutional structures that have evolved over the past fifteen years in order to achieve the strategic adaptation required over the coming decade with the destruction of existing CW stockpiles to be achieved over this period of time. The disarmament norm of the CW prohibition regime has seen substantial progress toward its realization. While CWC states parties could have argued that, in a strict literal interpretation of the text of the convention, CW possessor states have failed to reach complete CW elimination by the extended destruction deadline of 29 April 2012 and thus violated their treaty obligations, the decision taken by the conference during its sixteenth session instead starts from the assumption that CW

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possessors have not deliberately caused this situation. This approach results in a de facto conversion of the disarmament norm from an obligation tied to a set date for its achievement to one in which the affected CWC states parties themselves were asked to determine a realistic target date for achieving the goal of complete elimination of their CW arsenals. No CWC state party has officially challenged the non-acquisition norm. However, continuing interest in and development of so-called incapacitating chemical agents (ICAs) might be undermining this crucial norm in the medium to long term. If successful, such ICA development, production, or use would lead to a reinterpretation of what constitutes a chemical weapon under the terms of the CWC. A harbinger of things to come in this respect is a recent NATO redefinition of ICAs. According to the proposed NATO definition, “Incapacitating agents are not, by their legal definition, considered to be chemical agents when used for law enforcement purposes, such as riot control” (NATO 2012: 2-2). In institutional terms, a definition like this—which, if adopted, becomes binding for all NATO members that are also OPCW member states—clearly increases the external pressure on the non-acquisition norm and thereby threatens to preempt a discussion of ICA among CWC states parties, potentially resulting in normative drift. Norms in support of nonproliferation or preventing the reemergence of chemical weapons have been most contested in relation to other chemical production facilities or OCPF. In Mahoney and Thelen’s conceptualization of institutional change, this does not come as a surprise, as “institutions are fraught with tensions because they inevitably raise resource considerations and invariably have distributional consequences” (2010: 8). Such tensions could be observed in the discussions about the selection methodology for and increases in overall annual numbers of OCPF inspections. However, given the ceilings that the CWC puts on the number of such inspections a CWC state party can receive in any year, modification of this particular regime rule might be required in order to arrive at a higher inspection frequency for OCPF that are capable of producing toxic chemicals that are similar to chemical warfare agents. Chances of this occurring, however, are currently remote, given the resistance of some states parties and the consensusoriented culture that has developed in the OPCW policymaking organs. The analysis of implementation of the internalization norm has revealed a split across CWC states parties, with slightly less than half of them implementing all key provisions of the convention domestically. Questions thus arise as to the effectiveness of the regime in determining

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the behavior of its participants. While this is not to argue that those who have not implemented all key CWC provisions are actually violating their obligations, some of these countries represent a weak spot in terms of regime effectiveness that the CW procurement activities of a determined proliferator could exploit. Deficiencies in implementing the internalization norm have already resulted in an action plan to improve the situation, but continued assistance activities to enable more CWC states parties to implement all obligations under the convention will be required to avoid a displacement of this norm in the future by an acceptance that a significant number of regime members continue to not comprehensively implement the norms and rules of the regime. The consultation and investigation norms and their relationship have so far been largely characterized by the absence of a formal test of norm viability. While anecdotal evidence is available that the OPCW has repeatedly been utilized as a forum for consultation among member states, the formal consultation process ascribed to the Executive Council has not been invoked. The same is true for the investigation norm with respect to the conduct of challenge inspection and investigation of alleged use rules and procedures. The relationship between the two normative guidelines has been contested in relation to CWC Article IX, with some states parties asserting that a challenge inspection can only be requested after consultation procedures have been exhausted and others arguing—more convincingly—that the two processes exist independently of each other. Thus, from an institutional perspective, attempts to convert the normative regime structures in the area of consultation and investigation seem to have been prevented. However, the longer the period during which no challenge inspection occurs, the more likely that this aspect of the investigation norm will be hollowed out— to the point that the norm will have been displaced by the notion that political costs for requesting a challenge inspection are too high. Similarly, the implementation of the assistance norm has seen a large number and wide variety of training courses, workshops, and exercises to achieve a high level of preparedness for a situation in which the protective capabilities of a CWC state party are overwhelmed, but no real case has yet occurred to test the practicability and resilience of the procedures put in place. Greater transparency in national protective programs and a firmer commitment to specific assistance measures could facilitate preparations for such a contingency, should they be required. Last, many CWC states parties have been reluctant to fully embrace the adaptation norm and follow the advice of the OPCW Scientific Advisory Board on matters such as the changing nature of the chemical

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industry and its relevance for OCPF inspections. In its extreme form, ignorance of the SAB’s work and the rejection of its recommendations, sometimes justified by the lack of equitable geographical distribution in its membership, not only seeks to keep the regime on a narrowly defined path, as understood by these states parties, but in effect to freeze the institution in time. Given the profound changes in the scientific and technological environment in which the CW prohibition regime operates, such an approach will eventually lead to the regime becoming less and less capable of achieving its goals and will thus undermine its long-term viability as an effective international institution.

5 Export Controls and International Cooperation

Export controls have long been an instrument of economic

statecraft used to prevent procurement of technology in the form of equipment, material, and knowledge for potentially hostile purposes. Such controls have traditionally aimed at ensuring the civil application of exported commodities and services and deterring their recipients from using them in military programs. In order to achieve this result domestically in the exporting state, export control measures have to be capable of identifying illegal exports and must threaten the potential exporter with a level of punishment that exceeds any expected gain (Kelle 1998; 2006). Although export controls on dual-use goods and equipment pursued in isolation from other chemical and biological weapons (CBW) prohibition measures cannot prevent a determined proliferator from acquiring chemical and biological weapons, controls can slow the procurement process and increase the costs of the procurement effort. When coordinated among supplier states, export controls help establish a level playing field for suppliers in different states, thereby decreasing the risk that companies would try to undercut each other in securing the business of a potential proliferator. In other words, harmonized export controls—such as in the Australia Group (AG) in the context of CBW dual-use items and knowledge—make it more difficult to play one supplier against the other, since individual exporters do not have to face comparative disadvantages that would result from differently stringent export control rules and regulations (Müller et al. 1993; Roberts 1998; Joyner 2006). 155

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In the view of their proponents, the formulation and implementation of export controls at the national level are a manifestation of obligations resulting from the non-transfer norm contained in the CBW prohibition regimes. Both the Biological and Toxin Weapons Convention (BWC) and the Chemical Weapons Convention (CWC) contain provisions to that effect in Articles III and I, respectively, which have to be read in conjunction with the internalization norm also contained in both prohibition regimes (see Chapters 3 and 4). As I detail in the following section, a subset of BWC and CWC states parties have since the mid-1980s sought to harmonize their national export controls in order to achieve this level playing field for exporting companies in their countries. This harmonization occurred in response to the realization that dual-use exports from a number of Western countries had contributed to the Iraqi CW program and use of the products in the war against Iran. When viewed in the context of the two prohibition regimes, it is noteworthy that the BWC was in force at the time, but CWC negotiations were under way and still awaiting their conclusion. Hence, formation of the Australia Group among like-minded countries was initially conceived of as a temporary measure in the absence of an international treaty prohibiting chemical weapons. When the Australia Group not only continued to exist beyond the CWC’s entry into force in 1997 but also expanded the scope of its activities in the late 1990s and especially after the events of 11 September 2001 and the anthrax attacks in the United States, criticisms of the group’s activities were becoming increasingly vocal. Some members of the Non-Aligned Movement (NAM) have been quick to equate export controls with a strategy of export denial. They have failed, however, in their criticism to move beyond generic accusations that these control measures hamper the free flow of international trade, which both the BWC and CWC seek to foster in Articles X and XI, respectively. This lack of detail has led to the view on the part of some export control proponents that much of the criticism of export controls has been ideologically motivated, consisting of more rhetoric than fact, and that export controls should therefore not be regarded as trade restrictions but instead reconceptualized as “trade enablers” (Roberts 1995). As a result of these diverging perspectives of regime members on the purpose and effects of export controls tensions have developed between the implementation of the non-transfer and cooperation norms in both BWC and CWC contexts. From an institutional perspective, establishment of the Australia Group has added to regime complexity with respect to the non-transfer norm as far as CBW-related dual-use

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exports are concerned. This complexity was further increased with the passing of UN Security Council (UNSC) Resolution 1540 (2004), which in its operative Paragraph 3 stipulates that “all States shall take and enforce effective measures to establish domestic controls” over nuclear, biological, and chemical (NBC) weapons and related materials and technologies; to this end, states are required to “establish, develop, review and maintain appropriate effective national export and transshipment controls over such items, including appropriate laws and regulations to control export, transit, trans-shipment and re-export” (United Nations 2004e: 3). As I detail in Chapter 7, UNSC Resolution 1540 is binding on all states, not only states parties to the BWC or CWC. The resolution can thus be said to have “internationalized export controls” and thereby led to “increased legitimacy . . . [for] previously diverse national and like-minded state export control arrangements” (Littlewood 2007: 144). In order to trace the evolution of the non-transfer and cooperation norms in the CBW prohibition regimes, as well as the tension between them, I first review the rationale for, and the evolution and modus operandi of, the Australia Group. Then I analyze the non-transfer and cooperation norms and their implementation in both the CW and BW prohibition regimes, thus illuminating the evolving conflict based on contested meanings of these two regime norms.

CBW Export Controls and the Australia Group

In contrast to the Organisation for the Prohibition of Chemical Weapons (OPCW) discussed in Chapter 4, the Australia Group, established in 1985 on an Australian initiative, is not an international organization. It does not have a budget, standing bureaucracy, or permanent office buildings. Instead, it has retained its informal character with a small secretariat provided by the Australian Foreign Ministry and regular meetings of participating states providing the forum for the group’s information and coordination activities (Mathews 1993). As summarized in a background paper by the group, The Australia Group is an informal arrangement. Participants do not undertake any legally binding obligations: the effectiveness of the cooperation between participants depends solely on their commitment to CBW nonproliferation goals and on the effectiveness of measures implemented nationally which aim at preventing the spread of chemical and biological weapons. (Australia Group 2000)

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Originally the Australia Group’s purview was limited to harmonizing national controls on the trade in dual-use chemical warfare agents and their precursors. As mentioned above, the group was convened in response to the proliferation of these commodities, their widespread use in the Iran-Iraq war, and the slow progress in negotiations on the CWC (Robinson 1992; Smithson 1997b). Somewhat surprising from today’s perspective is the fact that up until the mid-1980s, trade in dual-use chemicals and equipment was mostly unregulated (Feakes 2001). When Australia Group participants started their collaboration, fifteen states were involved, plus the European Commission in an observer role. Since then, the group has continuously expanded its membership and the range of goods and technologies covered by its control lists. To date, membership of the group has more than doubled from the fifteen founding members to forty, with Ukraine in 2005 and Croatia in 2007 being the latest additions to the group. As indicated in recent Australia Group press releases, negotiations with a number of—unnamed—countries seeking to participate have been ongoing. In spring of 2012 India, in a well-publicized campaign, joined this list of states interested in joining the group (Global Security Newswire 2012a; 2012b). As the Australia Group webpage details, at least seven criteria for approval of participation have, like all decisions of the group, been adopted by consensus: • A commitment to prevent the spread of CBW proliferation, including being a party, in good standing, to the Biological and Toxins Weapons Convention and the Chemical Weapons Convention. • Being a manufacturer, exporter or transshipper of AG controlled items. • Adopting and implementing the AG Guidelines for Transfers of Sensitive Chemical or Biological Items. • Implementing an effective export control system which provides national controls for all items on the AG common control lists and is supported by adequate licensing and enforcement regimes. • Creating legal penalties and sanctions for contravention of controls and being willing to enforce them. • Creating relevant channels for the exchange of information including: accepting the confidentiality of the information exchange; creating liaison channels for expert discussions; and creating a denial notification system protecting commercial confidentiality.

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• Agreeing to participate in the AG in a way that will strengthen the effectiveness of the AG in preventing CBW proliferation. (Australia Group 2012a) As this list of criteria indicates, the scope of the group’s activities has increased substantially since its inception. A first major expansion occurred in 1990 when the group agreed to widen its controls to include BW agents and toxins, as well as dual-use equipment necessary for their production. Two years later control lists were agreed upon that covered eighteen bacteria, four rickettsiae, twenty-five viruses, and fourteen toxins. In addition, a multitude of dual-use equipment was subjected to harmonized controls (Robinson 1992; Mathews 2004). This expansion was followed in 1993 by the adoption of a so-called no-undercut policy based on “procedures for ensuring that denials of an export of a listed item for CBW non-proliferation reasons by one member would be respected by all other members” (Australia Group 1993). Beginning in the mid-1990s, Australia Group meetings started to reflect the increased risk of terrorists acquiring CBW, with the Aum Shinrikyo Sarin gas attack in the Tokyo subway system in spring 1995 bringing this potential threat to participants’ attention. In addition, reviews and updates of the Australia Group’s procedures, guidelines, and control lists were informed by scientific and technological (S&T) advances and changes in the international regulatory environment (Australia Group 2001). Following the terrorist attacks of 11 September 2011 and the anthrax letters sent through the US postal system, “Several U.S. anti-terrorist proposals were tabled at the 2002 AG Plenary to expand and strengthen the AG control list. These proposals related to particular precursor chemicals, small-scale dual-use equipment, and technical assistance that would be of value to terrorists” (Seevaratnam 2006: 404). In addition, Australia Group controls were substantially expanded in 2002 when the group adopted “formal guidelines governing the licensing of sensitive chemical and biological items” that incorporated a so-called catch-all provision, supplementing the previous list-based approach (Australia Group 2002). In addition, the Australia Group agreed to subject to controls “the intangible transfer of information and knowledge which could be used for CBW purposes” (Australia Group 2002). During the twentieth anniversary meeting of the group in Sydney in 2005, Australian foreign minister Alexander Downer highlighted as the main challenges facing the group’s work the issues of intangible technology transfers, more sophisticated evasion strategies by deter-

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mined proliferators using trans-shipments and re-exports, and the difficulties of keeping control lists up to date in the face of the rapid pace of the revolution in the life sciences (quoted in Anthony and Bauer 2006). In response to a challenge in the last of these categories, the Australia Group in 2007 “agreed to amend its animal pathogens list to clarify the coverage of controls on Mycoplasma mycoides—a bacterium that causes a severe and contagious respiratory disease in cattle. As the bacterium’s genome had been sequenced, the AG believed that M mycoides could be synthetically reproduced and pose a potential proliferation threat” (Anthony, Bauer, and Wetter 2008: 495). During its following plenary meeting in 2008 the group “agreed to form a synthetic biology advisory body as a means of ensuring the Group is kept abreast of, and can respond quickly and appropriately to, technological developments in this area” (Australia Group 2008). In 2009 the group decided to broaden the scope of this advisory body and “to enhance cooperative measures to deal with intangible transfers of technology,” which was identified as “a priority area in the defence against the proliferation of all forms of weapons of mass destruction and their means of delivery” (Australia Group 2009). Usually, the intangible transfer of technology (ITT) “refers to both the transfer of knowledge and skills by a person . . . and the transfer of technology via nonphysical form (e.g., via fax, email, software or telephone)” (Bauer and Mićić 2010: 454). Due to its nature, ITT is difficult to control and tends to rely on “company audits, visa screening and raising awareness within industry and academia” (Bauer and Mićić 2010: 454–455). Such awareness raising and outreach activities have been a feature regularly mentioned in Australia Group press releases accompanying the annual plenary meetings of the group (e.g., Australia Group 2009; 2012b). In sum, more than two decades of cooperation by Australia Group participants to prevent the proliferation of sensitive biological and chemical items and their misuse in CBW procurement activities of either states or substate groups, such as terrorist organizations, has resulted in the formulation of export control guidelines and a set of six control lists to which all AG participants adhere. The content and operationalization of the guidelines is designed to support the non-transfer norm expressed in BWC Article III and CWC Article I. As the guidelines explicitly state, they are “not intended to impede chemical or biological trade or international cooperation that could not contribute to CBW activities or terrorism” (Australia Group 2012c). The regularly updated control lists cover (1) dual-use chemical manufacturing facili-

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ties and equipment and related technology, (2) chemical weapons precursors, (3) dual-use biological equipment and related technology, (4) biological agents, (5) animal pathogens, and (6) plant pathogens. Although the control list on chemical weapons precursors contains different chemicals from the CWC’s schedules discussed in the previous chapter, their different purposes need to be kept in mind. While the Australia Group control lists are guiding national export control policies in support of the non-transfer norm, the CWC’s schedules are tools for the operationalization of the inspection norm. Given these different objectives, regime complexity allows for a complementary nature of the lists, with a considerable degree of specificity for implementing different regime provisions. According to a longtime participant in Australia Group meetings and deliberations, the group “has demonstrated the valuable and necessary role of ‘soft law’ agreements between ‘likeminded’ countries as a complement to the treaty based obligations” of the BWC and CWC (Mathews 2007: 168). The Australia Group has, however, also received support from a hard-law contribution in the form of UNSC Resolution 1540. Similar to Jez Littlewood’s assessment of the impact the resolution had on export controls in general, Gregory D. Koblentz has concluded that the “requirement enshrined in Resolution 1540, that all nations are responsible for exercising effective domestic and export controls, should lessen the stigma attached to [the Australia] group” (Koblentz 2009: 234).

The Non-transfer and Cooperation Norms in the BWC Context

Article III of the BWC states that “each State Party to this Convention undertakes not to transfer to any recipient whatsoever, directly or indirectly, and not in any way to assist, encourage, or induce any State, group of States or international organizations to manufacture or otherwise acquire any of the agents, toxins, weapons, equipment or means of delivery specified in article I of the Convention.” During the first three review conferences, BWC states parties confirmed that the scope of the article is broad enough to cover “any recipient whatsoever at the international, national or sub-national levels,” and that “transfers relevant to the Convention should be authorized only when the intended use is for purposes not prohibited under the Convention” (see, e.g., United Nations 1996a: 17). While this assumes a domestic system in place for the authorization of transfers, no recommendations were

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made as to how such a system should operate. However, BWC Review Conferences regularly agreed that states parties “should not use the provisions of this Article to impose restrictions and/or limitations on transfers for purposes consistent with the objectives and provisions of the Convention of scientific knowledge, technology, equipment and materials under Article X” (United Nations 1996a: 17). Yet, in spite of this seeming consensus view, criticisms of export controls have been constant, arguing that such measures directly contravened Article X of the BWC, which in its Paragraph 2 establishes the cooperation norm and states that “this Convention shall be implemented in manner designed to avoid hampering the economic or technological developments of States Parties to the Convention or international cooperation in the field of bacteriological (biological) activities.” As discussed in the previous section, proponents of export controls, such as the states coordinating their national policies in the Australia Group, point out in contrast that these measures are an expression of their implementing the non-transfer norm contained in BWC Article III. The tension between these different positions also had an impact on the Ad Hoc Group (AHG) negotiations from 1995 to 2001. However, as Littlewood has pointed out, “The issue was never about non-proliferation or export controls per se. . . . Rather, it was about the non-proliferation policies of certain states and the manner in which they applied export controls to states parties and non-states parties” (2005: 139). During the March 1997 session of the Ad Hoc Group negotiations, different measures to enhance the implementation of Article III were discussed in some detail. One proposal, put forward by India in a working paper, contained a number of guidelines to strengthen the non-transfer norm (India 1997). The Indian proposal, if put into effect, would have amounted to a complete overhaul of present export control practice, including a substantial transfer of national sovereignty to a future BWC organization, which would have had the powers to decide on all BWrelated transfers to states not party to the protocol. By implication, transfers among members to the protocol would have been unrestricted. Individual member states would have been denied their decisionmaking prerogative. The effect would have been to elevate the future BWC organization to the central transfer-related decisionmaking authority. If national export controls had thus become obsolete, so would multilaterally harmonized ones, such as those of the Australia Group. Austria and New Zealand presented a much more moderate approach to strengthening BWC Article III. In their working paper the two Australia Group members advocated to include in the BWC proto-

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col an obligation for each state party to declare annually “the national legal measures it has adopted in order to implement Article III of the BWC” and to “report to the Organization on an annual basis on its administrative and other related national implementation measures with regard to Article III of the BWC to ensure that transfers of agents, toxins, and equipment are only authorized in compliance with the provisions of the Convention” (Austria and New Zealand 1997: 2). This action would have left the decisionmaking powers on export controls with protocol states parties, and declarations would have been limited to national measures. As multilateral measures such as the Australia Group would not have been affected, the status quo under the BWC would have been preserved under the protocol. These working papers reflected well-known positions that did not change over the course of the AHG negotiations. No surprise, then that only about a dozen of more than 450 working papers submitted to the AHG between 1995 and 2001 dealt with strengthening BWC Article III. Littlewood reports that the politicized nature of Australia Group export controls even spilled over into other areas of the AHG’s work and that “negotiation on this issue was avoided because every debate on it soured the relationship between delegations on all other subjects” (2005: 147). He further noted that the resurgence of working papers on export controls during the final year of AHG negotiations “underlined the paucity of real progress, because in no other area of the rolling text did” this occur (Littlewood 2005: 151). The second major bone of contention in the deliberations of the AHG on Protocol Article 7 concerned a Non-Aligned Movement (NAM) proposal to establish a Cooperation Committee within the organization to oversee the protocol’s implementation (Non-Aligned Movement 1999). The committee’s task would have been to coordinate and promote effective and full implementation of Article X of the convention and Article 7 of the protocol. Most BWC states parties participating in the AHG gradually came to accept this approach, with the United States waiting to see the details of the proposal before stating its position. Eventually, during the eighteenth negotiating session in late 1999, the US delegation agreed in principle to the establishment of such a committee (Rissanen 2000). Still, disagreement remained as to the structure and precise roles and functions of the Cooperation Committee and the powers to be allocated to it. When the AHG chairman presented his composite protocol text in early 2001, Article 7 of the text tasked states parties to review, amend, or establish “any legislation, regulatory or administrative provisions to

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regulate the transfer of agents, toxins, equipment and technologies relevant to Article III of the Convention” (United Nations 2001a: 48). The protocol further required states parties to establish transfer guidelines with the aim of ensuring that transfers of dual-use items would be for permitted purposes only. To this end, the supplying state would require from its recipient an end-use declaration, a no-retransfer pledge (without prior consent of the originating state party), and information from the requesting state on its national laws and regulations pertaining to the items in question. Moreover, states parties would have been obligated to report annually on the transfers they have undertaken with respect to four categories of dual-use items deemed most relevant for the object and purpose of the BWC Protocol. Notably, the transfer guidelines and the reporting requirements were broadly based on Australia Group guidelines and equipment lists. With the call on states parties to “consider the status of implementation of the Convention and this Protocol in a potential recipient when considering a request for a transfer” (United Nations 2001a: 49), this might eventually have led to universalizing and legalizing the Australia Group’s operationalization of the nontransfer norm of the BW prohibition regime. Article 14 of the composite protocol text contained the provisions on strengthening BWC Article X on the peaceful uses of the biosciences. Under the heading “Institutional Mechanisms for International Co-operation and Protocol Implementation Assistance,” it specified, inter alia, the functions and powers of the Cooperation Committee. Accordingly, the committee was designed to “consult on, monitor and review activities fostering international co-operation and assistance” (United Nations 2001a: 77). Its output would have been limited to reports, and its tasks did not include decisionmaking of any kind. Likewise, the review of concerns raised by a state party that it had been deprived of benefits under BWC Article X was envisaged to be conducted by the executive council of a future BWC organization. In sum, although the responses to the compromise language suggested some common ground among delegations on strengthening BWC Article X, reactions to the chairman’s text on export controls were broadly negative; even if the AHG’s work had not ended in summer 2001, Article 7 of the composite protocol cannot be regarded as having been close to a final compromise solution and would have required further negotiations. The split Fifth BWC Review Conference in 2001–2002 agreed to address in the first intersessional process (ISP) “the adoption of necessary national measures to implement the prohibitions set forth in the

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Convention, including the enactment of penal legislation [and] national mechanisms to establish and maintain the security and oversight of pathogenic microorganisms and toxins” (United Nations 2002: 3). This led to numerous national contributions in the form of working papers, many of which were also addressing export control measures. As one review of the 2003 Meeting of Experts summarized, BWC states parties identified “effective regulations or legislation to control and monitor transfers of relevant technologies. Lists of controlled items (i.e., items whose transfer is subject to domestic and/or international monitoring or licensing)” and “catch-all clauses (including recognition of the general purpose criterion)” were among the “core elements for an effective approach to national implementation” (Guthrie et al. 2004: 663). Overall, the discussion on export controls was judged by one observer to have been “a mature and useful exploration of the issues” (Littlewood 2007: 148). This, however, did not prevent the continued criticism of Australia Group export controls by the NAM during the Sixth BWC Review Conference in 2006, when NAM’s statement reiterated its longheld position that “the States Parties to the BWC have a legal obligation to refrain from imposing restrictions or limitations for transfers that would hamper economic or technological development of States Parties” (Non-Aligned Movement 2006: 4). However, one analysis of the review conference has suggested that in light of “the rapid growth of biotechnology in states like India, Cuba, and Indonesia, these states may have realized that they could find themselves in a donor position rather than at the receiving end of technological cooperation” (Becker 2007: 15). In combination with the effects of UNSC Resolution 1540, this could have contributed to the more muted criticisms of allegedly unjust transfer restrictions. These factors combined to lead to the first-ever inclusion in the final declaration of the Sixth Review Conference of a call for “effective national export controls” in the implementation of BWC Article III (United Nations 2006a: 10). In its forward-looking part the final document did specify “ways and means to enhance national implementation” as a topic for the 2007 ISP meetings, but with an emphasis on “enforcement of national legislation, strengthening of national institutions and coordination among national law enforcement institutions” (United Nations 2006a: 21), export controls did not feature during BWC states parties’ discussions. In contrast, one of the ISP topics for 2009, international cooperation and assistance, did result in substantial debate with a strong public health focus. Correspondingly, the 2009 Meeting of States Parties “recognized the importance of developing effective infrastructure for disease surveillance, detection, diagnosis

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and containment . . . agreed on the value of developing human resources . . . [and] . . . agreed on the value of implementing standard operating procedures, taking into account their national needs and circumstances” (United Nations 2009: 6). The final declaration of the Seventh BWC Review Conference in December 2011 reiterated the utility of national export controls in the context of Article III implementation and also was able to build on discussions during the second ISP cycle by including a new paragraph under the review of Article X that acknowledged the “fundamental importance of enhancing international cooperation, assistance and exchange in biological sciences and technology for peaceful purposes” (United Nations 2011a: 16). BWC states parties therefore agreed “on the value of working together to promote capacity building in the fields of vaccine and drug production, disease surveillance, detection, diagnosis, and containment of infectious diseases as well as biological risk management” (United Nations 2011a: 16). The BWC Review Conference also “encourages States Parties to provide at least biannually appropriate information on how they implement this Article” to the BWC Implementation Support Unit (ISU) (United Nations 2011a: 18) and tasked the ISU to “establish and administer a database, open to all States Parties, where . . . requests and offers” for cooperation and assistance would be collected (United Nations 2011a: 22). For the third ISP cycle, from 2012 to 2015, the Seventh Review Conference agreed to address “cooperation and assistance, with a particular focus on strengthening cooperation and assistance under Article X” at each of the annual meetings (United Nations 2011a: 21). The first Meeting of Experts in July 2012 devoted two half-days to this Standing Agenda Item—as it did to the other two on national implementation and S&T advances. Although many BWC states parties made constructive contributions, including national reports on Article X implementation, not surprisingly a very few states used the Meeting of Experts to reiterate ideologically motivated and well-rehearsed complaints against the export controls of Australia Group participants. Most vocally, Iran asserted that “the main challenge for the full, effective and nondiscriminatory implementation of Article X is the existence of these unjustified politically motivated restrictions and or [sic] limitations posed against States Parties in contravention with the provisions of the Convention” (Iran 2012b: 1). In addition to advocating the removal of such restrictions, Iran also proposed “developing procedures for the settlement of disputes arising from concern [sic] raised on the implementation of the Article X” (Iran 2012b: 2). India, in con-

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trast, pursued a more moderate approach and noted that there “should be a balance between Article X implementation with provisions of Article III of the Convention” and that “India is committed to maintaining effective national export controls matching the highest international standards” (India 2012: 3)—a clear reference to its application for Australia Group participation. In sum, while criticisms of Australia Group export controls have become more muted over the past decade, BWC Article X discussions still provide a platform for a few NAM states to repeat their well-known positions against what in their view are discriminatory transfer restrictions.

The Non-transfer and Cooperation Norms in the CWC Context

In contrast to the relatively generic BWC Article III stipulation on transfers, transfer-related provisions in the CWC are more complex and comprise three complementary sets of rules and procedures to operationalize the non-transfer norm. First are the generic non-transfer provisions contained in CWC Article I and Article VI(2). According to Article I(1), “Each State Party to this Convention undertakes never under any circumstances . . . to . . . transfer, directly or indirectly, chemical weapons to anyone” (OPCW webpage). Article VI(2) stipulates that “each State Party shall adopt the necessary measures to ensure that toxic chemicals and their precursors are only . . . transferred . . . for purposes not prohibited” under the CWC. These provisions apply universally to transfer of any toxic chemicals to any recipients whatsoever. In contrast, the second set of non-transfer rules and procedures applies to restrictions on transfers to nonstate parties. These detailed transfer rules and procedures are found in Parts VI, VII, and VIII of the CWC’s Verification Annex. Part VI addresses “Schedule 1 chemicals and related facilities,” according to which “a State Party may transfer Schedule 1 chemicals outside its territory only to another State Party and only for research, medical, pharmaceutical or protective purposes. Chemicals transferred shall not be retransferred to a third State.” Part VII of the Verification Annex contains the provisions for Schedule 2 chemicals and related facilities. It stipulates that from three years after entry into force of the convention, Schedule 2 chemicals shall only be transferred to or received from states parties. During the interim three-year period, each state party had to require an end-user certificate for transfers of Sched-

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ule 2 chemicals to states not party to the CWC. Such an end-user certificate had to confirm that the transferred chemicals would only be used for purposes not prohibited under the CWC and that they would not be retransferred, plus information on types and quantities as well as the end user itself. Last, Part VIII of the Verification Annex contains the rules and procedures for Schedule 3 chemicals and related facilities. Accordingly, for transfers of Schedule 3 chemicals to states not party to the CWC, each state party would adopt the necessary measures to ensure that the transferred chemicals are only used for purposes not prohibited under the CWC. As discussed above for Schedule 2 chemicals, a requirement exists for demanding an end-user certificate from the recipient state. Five years after the CWC s entry into force—in April 2002—the OPCW Conference of States Parties had to consider the question of whether to establish additional controls on transfers of Schedule 3 chemicals to states not party to the CWC. However, any potential benefit for universalizing the convention that might have resulted from imposing such restriction on trading with states still outside the regime did not seem to provide a big enough incentive for CWC states parties to agree on such measures. The non-transfer norm is operationalized in the CWC through rules and procedures for monitoring transfers of scheduled chemicals among states parties. CWC Article VI stipulates an annual declaration requirement for aggregate imports and exports of scheduled chemicals, with Parts VI, VII, and VIII of the CWC’s Verification Annex containing the detailed rules and procedures. Import and export data are subsequently compared by the OPCW’s Technical Secretariat, which then seeks to reconcile any discrepancies with the help of reporting states parties. One of the key differences when compared to Australia Group export controls is that all the rules and procedures operationalizing the nontransfer norm under the CWC are applicable only after the transfers have taken place, not before. As a result, they cannot serve as a nonproliferation tool aiming to prevent exports from taking place where there is concern about misuse. The review of export control policy and practice by states participating in the Australia Group promised by then Australian ambassador Paul O’Sullivan in the final stages of the CWC negotiations has not led to discontinuing national export controls harmonized in the Australia Group framework. According to the statement, Australia Group participants would undertake such a review “with the aim of removing such measures for the benefit of States Parties to the Convention acting in full compliance with their obligations under the Convention” (Conference on Disarmament 1992). Although not fully convincing

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to some NAM members, this statement nonetheless proved useful in securing the approval of the CWC’s text (Feakes 2001). Quite predictably, the continuation of Australia Group activities has led NAM member states to criticize the group as contrary to the obligations of CWC states parties under Article XI, which gives expression to the cooperation norm of the CW prohibition regime. According to Article XI(1) the “provisions of this Convention shall be implemented in a manner which avoids hampering the economic and technological development of States Parties, and international cooperation in the field of chemical activities for purposes not prohibited under this Convention” (OPCW webpage). In Article XI(2)(c) further stipulates that states parties shall “not maintain among themselves any restrictions, including those in any international agreements, incompatible with the obligations undertaken under this Convention.” As discussed above in relation to the non-transfer norm in the BW prohibition regime, from the point of view of Australia Group participants, the group’s activities are not incompatible with the cooperation norm and clearly support the nontransfer norm. NAM states’ criticism of the export controls of the Australia Group applied to CWC states parties have been repeatedly voiced throughout CWC implementation. Especially in the early phase of CWC operation, three NAM members—Iran, Cuba, and Pakistan—were expressing their dissatisfaction with Australia Group export controls in a draft resolution submitted to the Third Session of the OPCW Conference of States Parties. In it the three nations highlighted that the CWC “has not envisaged any export control restriction in chemical trade between States Parties for peaceful purposes,” that “the OPCW should be seen as the sole responsible body to verify the compliance of the States Parties with their obligations undertaken under the Convention,” and that CWC states parties “should abide by the provisions of the Convention and abolish existing export control regimes against States Parties in order to render their national regulations . . . consistent with the obligations undertaken in accordance with Article XI of the Convention” (Iran, Cuba, and Pakistan 1998: 2). Not surprisingly, this initiative did not result in any formal decision of the Conference other than tasking the OPCW’s Executive Council to address the matter. However, this initiative was presumably at least partially responsible for a number of national papers submitted to the following session of the conference describing national implementation mechanisms for Article XI, including the review of national export control regulations (e.g., Australia 1999; Canada 1999).

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The display of well-known positions in the conflict about Australia Group export controls and international cooperation under the CWC continued during the First CWC Review Conference in April and May 2003 when some NAM members called for the immediate cessation of discriminatory transfer control regimes, while members of the Western European and Others Group (WEOG) defended the need for the Australia Group’s continued existence. Among states in the former group, Brazil asserted that the “transfers monitoring regime of the CWC is legitimate, . . . [and] has the merit of providing better efficiency than previously designed plurilateral export control arrangements because it applies to, and is applied by, all States Parties” (Brazil 2003: 3). Somewhat more outspoken was India’s criticism of the Australia Group, which made reference to the 1992 O’Sullivan statement and lamented the fact that “in the ten years since that commitment was made, the Australia group continues to exist and remains a visible symbol of the lack of implementation of all the provisions of the CWC” (India 2003: 2). Iran’s statement during the First Review Conference went one step further, proposing that a “multilateral mechanism under the auspices of the OPCW within the domain of the Convention be established to replace Australia Group interim arrangements” (Iran 2003: 5). All of these criticisms were countered in a detailed British paper in support of both national and harmonized export controls, which concluded, A blanket relaxation or abandoning of national export monitoring and control arrangements between States Parties would undermine the fundamental object and purpose of the Convention, would be contrary to the obligations of Article I, and would prevent States Parties from meeting their specific Convention obligations in relation to transfers of scheduled chemicals. (United Kingdom 2003: 6)

Given the hardened viewpoints in this debate, that much of the review conference report is simply reproducing text contained in the CWC or agreed upon during earlier conferences of the states parties is not surprising. The review conference also “urged the Council to continue its facilitation efforts to reach early agreement on the issue of the full implementation of Article XI” (OPCW 2003f: 26). The Tenth Session of the Conference of States Parties in 2005 then tasked the OPCW’s Technical Secretariat to (i) maintain, for information purposes, lists of voluntary offers of cooperation from States Parties and of specific requests for cooperation, under the terms of Article XI;

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(ii) foster cooperation between the OPCW and the chemical industry through the States Parties concerned; (iii) develop and promote internship programmes for participants from States Parties; (iv) facilitate the provision of assistance with national capacitybuilding in the field of chemical activities for peaceful purposes; (v) continue to design, develop, enhance, and implement the OPCW’s international-cooperation programmes . . . ; and (vi) promote, and assist with, both the attendance by experts or trainees from States Parties at courses and workshops, and the organisation of international seminars in fields relevant to the Convention. (OPCW 2005b: 2)

Despite the acknowledgment that the Technical Secretariat (TS) was making progress with many of these activities (e.g., OPCW 2007f), the usual rhetoric critical of Australia Group export controls resurfaced during the Second CWC Review Conference in 2008, with Cuba on NAM’s behalf again calling for “the removal of such undue restrictions for the full implementation of Article XI” (Non-Aligned Movement 2008: 3). On a more practical level, a background document prepared by the OPCW Technical Secretariat on the implementation of the CWC since the First Review Conference noted in relation to economic and technological development under CWC Article XI that “all the principles and criteria outlined in the decision of the Conference (C-10/ DEC.14, dated 11 November 2005) are being addressed through current international cooperation programmes” (OPCW 2008e: 70). The document also listed the scope and growth of these programs (OPCW 2008e: 71–77, 101–103). Following the Second Review Conference in 2008, CWC states parties took three years, until the Sixteenth Session of the CSP, to adopt an “agreed framework” to guide the TS in future implementation of CWC Article XI. The framework emphasizes four strands of activity: (a) National capacity-building for the research, development, storage, production, and safe use of chemicals for purposes not prohibited under the Convention . . . (b) Promoting networking and exchange among scientific communities, academic institutions, chemical-industry associations, nongovernmental organisations, and regional and international institutions . . . (c) Enhancing the effectiveness of current international-cooperation programmes of the OPCW . . . [and] (d) Measures by States Parties and the OPCW to facilitate States Parties’ participation in the fullest possible exchange of chemicals,

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equipment, and scientific and technical information relating to the development and application of chemistry, in accordance with the provisions of the Convention. (OPCW 2011i)

While this framework may make room for a few additional measures, established practice in this area suggests that international cooperation activities by the OPCW and supported by a number of states parties currently cover most areas in which there exists a demand and funding for such cooperation. With respect to the complaints about discriminatory export control practices, two states of the NAM are the primary forces in continuing to push this agenda. In both cases—Cuba and Iran—political conflicts that go well beyond the issue area of CW prohibition can be assumed to influence their positions. As a matter of fact, Cuba itself made reference to this larger context in a statement during the Thirteenth Session of the Conference in 2008 in which it described itself as having “been blockaded and besieged for almost 50 years by the biggest power in the world” (Cuba 2008: 2). Similarly, Iran’s policy toward the Australia Group is likely to be influenced by the nuclear weapons–related sanctions the country faces. For both countries, the OPCW provides a forum in which either geopolitical issues or conflicts in related issue areas are informing their policy on the non-transfer and cooperation norms.

Conclusion: From Cold War Rhetoric to Twenty-First-Century Pragmatism

In this chapter I set out to analyze two key norms in both of the CBW prohibition regimes. The non-transfer norm obliges states parties to ensure that any transfers of material, agents, technology, and knowledge are not contributing to the development of offensive military CBW capabilities. The cooperation norm requires states not to hamper trade and to cooperate in the peaceful, prophylactic, and otherwise not prohibited uses of chemistry and biology. Since its establishment in the mid-1980s the Australia Group has been a focal point in the tensions between the operationalization of these two norms. Originally only addressing dual-use chemicals and related equipment, the scope of Australia Group controls has grown considerably over time to cover numerous pathogens, including their genetic sequences, and more sophisticated dual-use equipment. In addition, the growing number of Australia Group participants has given itself additional rules and procedures on

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denial notifications and no-undercut policies. As a result, what started as an ad hoc arrangement among a few like-minded states has developed into a durable institutional arrangement with a complex set of lists and guidelines supported by the majority of technology holders in the area of dual-use chemistry and biology. In contrast to the Australia Group, where international trade is an interest of participating states, in the two CBW prohibition regimes international cooperation is a normative guidepost for state action. As detailed here, the BWC contains only a limited amount of operationalization of the non-transfer and cooperation norms, leaving ample room for differing meanings and tensions to develop between its proponents. While early BWC Review Conferences sought to produce additional understandings to clarify the meaning of the two regime norms, the work of the Ad Hoc Group in the second half of the 1990s aimed at adding layers of rules and procedures in order to operationalize the nontransfer and cooperation norms in the BW prohibition regime. Some of the envisaged measures would have equaled if not outstripped the rule density in the CW prohibition regime on non-transfers and international cooperation. When, after the collapse of AHG negotiations, BWC states parties agreed on the new intersessional process, temporary and partial transparency of actual state practice in implementing various regime norms resulted, including norms on non-transfers and cooperation. Combined with the heightened concerns about terrorist CBW acquisition and use (see Chapter 6) and the adoption of UNSC Resolution 1540 in 2004 (see Chapter 7), export controls were acknowledged as forming part of national implementation measures by the Sixth and Seventh BWC Review Conferences in 2006 and 2011, respectively. Discussions on the cooperation norm during the second ISP cycle from 2007 to 2010 saw an emerging focus on the interface between BW prohibition and public health. With the elevation on international cooperation and assistance to a Standing Agenda Item for the years 2012 to 2015 and the various subitems to be addressed, efforts to strengthen the cooperation norm can be expected to be broader based still. As noted earlier, criticisms of the Australia Group and its activities are voiced by a shrinking number of NAM states parties, which so far have been able to continue leveraging the group statements at BWC meetings for this purpose. A similarly diminished level of criticisms of the Australia Group’s operationalizing of the non-transfer norm can be observed over the past fifteen years of CWC implementation. In addition to the factors outlined above, CWC states parties should be more familiar with national export

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controls as they are subject to a much denser set of rules and procedures with respect to (non)transfers among themselves and to states still outside the regime. To the extent that no adequate measures are in place to comply with their obligations, this inability is addressed in the context of efforts to strengthen implementation of the internalization norm more broadly (see Chapter 4). However, all of this activity has not dissuaded some NAM states parties, such as India and Iran during the First CWC Review Conference in 2003, to maintain that the continued existence of the Australia Group violates CWC Article XI obligations. However, all the criticisms that seek to replace Australia Group export controls with the non-transfer provisions in the CWC fail to address the different functions and the resulting structural differences between the two. While the former seeks to prevent an export of a dual-use item before it may be misused in an offensive state program or support terrorist acquisition efforts, the latter constitute part of the national implementation obligations that CWC states parties report annually in aggregate form. Seeing how one could replace the other is therefore difficult. In terms of the overall structure of the CBW prohibition regimes, the lists and guidelines of the Australia Group have closed an important gap in operationalizing the two regimes’ non-transfer norm by providing an additional layer of rules and procedures. While the density of legally binding rules and procedures in the BWC context has not changed since the emergence of the Australia Group in the mid-1980s, the conclusion of the CWC with its rather detailed non-transfer rules and procedures seems at first glance to suggest that they might make the Australia Group redundant. However, changing threat perceptions with the emergence of bioterrorism especially as a major risk—aided by yet another layer of export control–related guidance for state action in the form of UNSC Resolution 1540—have over the last decade reduced claims of incompatibility of export controls with the cooperation norm. In this sense, while isolated instances of export-control-critical rhetoric are still observable, most of these criticisms have given way to a new pragmatism on export controls.

6 Terrorism with Chemical and Biological Weapons

During the twentieth century, a number of states showed

interest in chemical and biological weapons (CBW) and pursued offensive military programs for acquiring these weapons, and in some cases for integrating them into their military strategies and armed forces. In order to deal with state acquisition of CBW and to prevent further CBW development and use by states, the two CBW prohibition regimes that I analyzed in Chapters 3 and 4 were established. After the end of the Cold War, threat perceptions began to change with respect to CBW; in the mid-1990s, terrorist use of these weapons—especially biological weapons (BW)—was increasingly perceived as a real possibility. The sarin nerve gas attack on the Tokyo subway in March 1995 has often been labeled a wake-up call, refocusing political, journalistic, and academic interests. In this incident, members of the millenarian cult Aum Shinrikyo released sarin in several Tokyo underground trains. The attack killed twelve people and injured over a thousand (Leitenberg 2000). The terrorist attacks on New York’s World Trade Center in 1993 (Parachini 2000) and on the Alfred P. Murrah federal government building in Oklahoma City in April 1995 (Stern 2000) reinforced the perception in the United States that modern societies—particularly US society—were increasingly vulnerable to mass casualty terrorist attacks. Yet, in spite of the limited success of Aum’s chemical weapon (CW) attack in Tokyo and some other terrorist groups’ interest in acquiring CBW, no terrorist group to date has successfully displayed the 175

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capability for conducting a mass-casualty attack with CBW. This fact remains unchanged even after the 2001 anthrax attacks in the United States—the perpetrator of which, according to the FBI, was most likely an insider with decades of work experience in the US biodefense program. Regardless of the absence of a terrorist CBW mass-casualty attack, since the mid-1990s, the salience of such an incident has increased dramatically in US political and media circles. In parallel, the scholarly and policy-oriented debate on CBW terrorism grew exponentially. The anthrax cases that followed the terrorist attacks in New York and Washington, DC, on 11 September 2001 (9/11), seemed to confirm dramatically the views of analysts who regarded the question of whether terrorists can and will use biological weapons as irrelevant. The only questions for such people were when and how such attacks were going to occur. Already before 9/11, former US senator Sam Nunn described in a seminal essay this new terrorism and the increased danger of the use of biological weapons by subnational groups as the inevitable convergence of two long-known threats, which, in his view, began to merge after the end of the Cold War: terrorism and the proliferation of weapons of mass destruction (Nunn 1997). According to Nunn (1997), this convergence is promoted by three mutually reinforcing developments. First, the collapse of the Soviet Union led to a situation in which client states of the former USSR that had been involved in terrorist activities are now free of constraints once imposed by the superpower. Second, the collapse of the Soviet Union has released an enormous reserve of scientists, knowhow, technology, and materials that, due to poor control and a lack of resources, can be accessed by interested states or substate actors. Third, the Internet facilitates distribution of information that is relevant to nuclear, biological, and chemical (NBC) weapons and is thus facilitating NBC terrorist acts. The spectrum of interested parties, as identified in the worst-case scenarios of those believing in the rise of this new terrorism, comprises several so-called rogue states, traditional terrorist groups, “ideologically motivated sects and dissatisfied political groups,” as well as individual assassins who want to use biological weapons to influence “the development of global history” (Nunn: 3). It has been argued that for such groups the political and moral, as well as the technological and organizational, barriers that stand in the way of the acquisition and use of NBC weapons have diminished, if not disappeared altogether. After the anthrax letters sent to US media outlets and the US Senate in the fall of 2001, bioterrorism was elevated to the number-one secu-

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rity threat in the US political discourse. Yet, more than a decade later it is increasingly obvious that CBW use by terrorists with the aim of causing mass casualties does not represent the trend of the future. No paradigm change has thus far occurred with respect to terrorist strategies and methods, a paradigm in which chemical and biological weapons would be regarded as standard tools of the terrorist repertoire. What is unquestionable, though, is that the initial domestic political responses to the changed threat perception have had an impact on the international level, including the two CBW prohibition regimes. In order to analyze how the changed CBW threat perception has affected the two regimes, I proceed in three steps. First I review “traditional” terrorism and past incidents of CBW attacks, addressing motivational aspects of terrorists’ use of CBW as well as the technical and organizational capabilities required for successful CBW acquisition and use. Then I analyze the arguments stressing the emergence of a new terrorism, which postulate that the political and moral hurdles of past terrorist organizations no longer apply and for whom advances in and the spread of new technologies provide the tools to realize their CBW plans. In this section of the chapter, I study the attempts by Aum Shinrikyo to cause mass casualties with CBW and the case of the anthrax letters mailed through the US postal system in the fall of 2001 as illustrative examples. I also briefly discuss the emergence of Al Qaeda and the war on terror, an outgrowth of the 9/11 attacks. In the chapter’s third section, I look at the discussion of and responses to these perceived changes in the nature of terrorism in the CWC and BWC contexts. As the focus is on the core elements of the CBW prohibition regimes, I summarize the argument in the final section and provide a brief discussion of the adaptation of the CBW prohibition regimes in terms of normative structure and the meanings attached to specific regime norms. In Chapter 7 I analyze the complementary institutional arrangements— such as UN Security Council Resolution 1540—that have emerged over the past decade with a view to address the changing CBW threat environment. From an institutional perspective these complementary arrangements increase regime complexity and represent efforts at layering of regime norms.

Traditional Terrorism: No Need for CBW Weapons?

Looking back over the history of terrorist activities in the twentieth century, the acquisition, threat, or actual use of CBW has been reported in

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a considerable number of instances. As Jonathan B. Tucker noted, “A 1994 study that defined terrorism broadly to include the deliberate contamination of food, water, and drugs identified more than 244 incidents of CBW terrorism in twenty-six countries since World War I” (2000: 1). Another review of terrorists’ interest in biological weapons between 1900 and 2000 identified 269 cases in which it was reported that “terrorists, criminals, or covert state operators used, acquired, threatened use, or took an interest in biological agents” (Carus 2001: 5). For 180 of these cases that study could obtain some confirmation. However, by far the largest number of these confirmed cases (137) fall into the threat/hoax category, with 21 cases of acquisition and use, 12 of acquisition only, and 10 in which interest in BW agents was expressed (Carus 2001: 8). A comparative study directed by the late Jonathan Tucker analyzed a considerably smaller set of more credible cases of CBW acquisition and use. This in-depth review of a dozen cases focused on “those most often cited in the academic terrorism literature, including religious cults, right-wing and left-wing terrorist organizations, and ‘amateur’ terrorists” (Tucker 2000: 13). Yet, as Tucker summarizes, even among these most likely cases of actual terrorist CBW acquisition and use, three proved to be apocryphal: in the alleged incidents involving the Weather Underground, the Baader-Meinhof Gang, and the Red Army Faction, “Little solid evidence exists (at least in the public domain) that the groups in question actually acquired, or even sought to acquire, CBW agents” (Tucker 2000: 249). Tucker draws five conclusions from the remaining nine case studies (Tucker 2000: 252–255). First, although terrorists’ acquisition or use of CBW agents is not unheard of, it is very uncommon. More rare is the intention to cause mass casualties through CBW. The terrorists’ classical repertoire, which consists of attacks on individuals or groups, including kidnapping, murder, bomb attacks, hijacking of planes, taking of hostages, and others, is still much more prevalent. Among the nine cases researched, “Only three described the successful use of chemical or biological agents (Avenging Israel’s Blood, the Rajneeshees, and Aum Shinrikyo). Significantly, all three of these attacks involved ‘low tech’ delivery systems” (Tucker 2000: 253). Second, the cases of the Alphabet Bomber, R.I.S.E., and the Minnesota Patriots Council demonstrate that individuals or small groups are capable of acquiring CBW agents; a large infrastructure and significant manpower, which Aum Shinrikyo was able to devote to this task, are obviously not required. Third, convincing and well-thought-through hoaxes shouldn’t be dismissed too lightly, as they indicate some serious think-

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ing about the terrorists’ option of using CBW agents. Fourth, distinguishing between the small-scale, discreet use of CBW and all-out attacks involving CBW aimed at mass casualties is important. As mentioned earlier, no incidents of mass-casualty CBW terrorism have taken place to date. In contrast to the assumption that CBW usage inevitably equals mass casualty, Richard A. Falkenrath, Robert D. Newman, and Bradley A. Thayer identify twelve instances of mass-casualty terrorist attacks, defined as attacks involving more than one hundred fatalities, during the twentieth century, none of which related to CBW use. Rather, all the cases, ranging from the 1925 bombing of a cathedral in Sofia, Bulgaria, to the 1995 bombing in Oklahoma City saw the use of conventional terrorist modes of operation like bombings or arson (Falkenrath, Newman, and Thayer 1998). Since then, more mass-casualty terrorist attacks have occurred, none of which involved the use of CBW: the 1998 bombing of the US embassies in Tanzania and Kenya, the bombing of a Moscow apartment block in 1999, and the 9/11 attacks on the World Trade Center in New York City, to name just a few. Finally, Tucker points out that there is a considerable variance in agents selected by terrorists as well as the delivery method applied. Thus, there is not just one agent or one attack scenario toward which defensive measures could be directed. Furthermore, the historical record does not support focusing on worst-case scenarios only. The literature identifies several interlinked causes that account for terrorists’ historical reluctance to use or threaten to use CBW (Purver 1995; 1997). • The effects occurring after the release of biological weapons cannot be controlled. This is true for noncontagious pathogens like Bacillus anthracis, the organism that causes anthrax, and even more so for pathogens causing contagious diseases, such as Variola major, the virus that causes smallpox. Instead of having an overwhelming efficiency, the effects of such bioweapons could just fizzle out (see the example of Aum Shinrikyo). • Terrorists may be afraid of infecting themselves with the pathogen or chemical agent. • Terrorists are typically averse to producing large numbers of casualties. The fact that Falkenrath et al. identified a mere twelve instances of mass-casualty attacks by terrorists supports this assessment. • An additional moral barrier exists, as BW use to produce mass casualties would hit the ill, the old, and children the hardest.

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•

•

•

• •

These groups are not, however, the primary targets of terrorist attacks. Biological weapons use might undermine support for the group by members or sympathizers and might provoke a reaction from the government attacked. Together, these responses might endanger the survival of the terrorist group. Classic terrorist aims can be achieved without BW use. As a matter of fact, terrorists’ claims have not yet been made that are on a scale for which biological weapons would appear a proportionate or adequate threat. Government sponsors of terrorist groups might request that the groups restrain their activities regarding biological weapons. While terrorist groups cannot easily be located and so make poor targets for retaliatory strikes, the same is not true for the territory and infrastructure of a sponsor state. BW programs are complex as compared to traditional terrorist means, such as car bombs. The properties of pathogens pose two problems with respect to terrorist aims. On the one hand, a BW attack could be regarded as a natural outbreak of a disease; therefore, a terrorist group might have problems claiming responsibility for it. On the other hand, the incubation phase between the release of the pathogen and the occurrence of the first victims might destroy the link between cause and effect, an idea that goes against traditional terrorist patterns of behavior and might undermine an optimal response by the media from the terrorists’ perspective.

To some extent these variables have been and are still being debated by terrorism and CBW experts. Nevertheless, until the mid-1990s, a combination of these factors was widely accepted as sufficient explanation for the absence of terrorist acts involving chemical and biological weapons as a means of mass destruction.

The New Terrorism: Willing and Able to Use CBW?

The debate on the new terrorism emerged during the mid-1990s in a climate of violence that included the Aum Shinrikyo March 1995 nerve gas attack in Tokyo, the attack on the World Trade Center in 1993, and the bombing of a federal government building in Oklahoma City in April 1995. In this context both President Bill Clinton and Secretary of

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Defense William Cohen clearly expressed their belief that the United States would be subject to such an attack within the next few years (Gurr and Cole 2000). Political, military, and academic discourse in which the threat assessment had changed radically supported these statements from the political elite. With the superpower confrontation between the United States and the former Soviet Union fading into history, the new threats were perceived to be more likely regional in scope and asymmetric in character. This latter category of threats included terrorism and transnational crimes like drug trafficking. With respect to the new dimension of the terrorist threat, terrorism expert Walter Laqueur proclaimed at the turn of the millennium that terrorism “has been a tragedy for the victims, but seen in historical perspective it seldom has been more than a nuisance. . . . This is no longer true today, and may be even less so in the future. Yesterday’s nuisance has become one of the gravest dangers facing mankind” (Laqueur 2000: 3). As the subtitle of Laqueur’s book indicates, he, like former US senator Nunn and most other proponents of the “paradigm change in terrorism” hypothesis base their argument on two factors. First, the political and moral hurdles that have prevented terrorists traditionally from acquiring and using CBW have been lowered substantially. Second, the technical and organizational obstacles to CBW acquisition have been reduced due to scientific and technological advances and the spread of this new knowledge. The argument that the political and moral hurdles are losing salience is usually supported by two developments linked to explain a greater motivation of today’s terrorists for mass-casualty CBW attacks. The first trend is related to the increase in casualty and fatality numbers of terrorist attacks over the past three decades. In 1990 terrorism expert Paul Wilkinson observed this trend beginning around 1982 (Gurr and Cole 2000). The first terrorist attacks with casualty levels exceeding 100 deaths were the 1983 attack on a US Marines base in Lebanon and the 1988 bombing of Pan Am flight 103 over Lockerbie in Scotland. During the 1990s this trend toward mass-casualty terrorism continued with the World Trade Center bombing in 1993, where thousands of casualties were intended but not achieved; the Oklahoma City bombing, which killed 169; the Tokyo subway attack, which required the hospitalization of more than 1,000 commuters and first responders; and the 1998 US embassy bombings in Africa, which killed more than 200. It culminated in the 11 September 2001 attacks on the World Trade Center and the Pentagon—and another hijacked plane downed in Pennsylvania—with a combined fatality count of over 3,000. Yet even this last attack did not

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involve the use of CBW to cause the high number of casualties. Remarkably, the one attack on this list that involved the release of a chemical agent in the Tokyo subway claimed the lowest number of fatalities and, strictly speaking, does not qualify as an instance of mass-casualty terrorism (assuming at least 100 fatalities to be the threshold for inclusion in this category). This picture has not changed after the anthrax letters sent through the US mail in the fall of 2001. Linked to this increase in the casualty numbers per terrorist attack was the rise of religious terrorism, encompassing Islamic fundamentalists, millenarian cults, and Christian right-wing white fundamentalists and supremacists. According to Bruce Hoffman, in the late 1960s none of the terrorist organizations active could be described as religiously motivated. By the early 1990s one-quarter or eleven of the terrorist groups could be classified as religious in orientation. In 1995 almost half of all terrorist organizations—twenty-five out of fifty-eight identified— fell into this category (Hoffman 1998). In addition to its religiously motivated or ideological nature and willingness to cause mass casualties via use of weapons of mass destruction, proponents of the new terrorism hypothesis argue that terrorist groups have also changed substantially in terms of their organizational structures—which are much less hierarchical and more networklike (Neumann 2009; Kurtulus 2011). Although a detailed discussion of the concept of new terrorism is beyond the scope of this chapter, the notion of a truly new terrorism—even though it informs much contemporary counterterrorism policy—has been criticized from a number of perspectives (Copeland 2001; Duyvesteyn 2004; Field 2009). In spite of this skepticism, the cases I discuss in the rest of this chapter have been widely regarded as the harbingers of a new wave of terrorism (Simon and Benjamin 2000; Rapoport 2004). Along these lines, a recent study argues that the case of Aum “is the most accessible and informative opportunity to study terrorist efforts to develop biological and chemical weapons” (Danzig et al. 2011: 33). The socalled Amerithrax case is selected because it illustrates the potential dangers of a rogue scientist presenting an insider threat in a biodefense program. The Aum Shinrikyo CBW Attacks in Japan

The nerve gas attack in the Tokyo underground on 20 March 1995 killed twelve people, and more than one thousand were temporarily hospitalized (Leitenberg 2000; Tucker 2006a). The investigation that followed

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revealed that the use of sarin was merely the fallback position of the Aum sect after a series of unsuccessful attempts to use biological weapons. This central feature of the Aum case—the complete failure of its BW program—is often ignored when referring to this case. The origins of Aum’s bioweapon program can be dated back to the year 1990, when Aum scientists tried to procure a culture of the pathogen Clostridium botulinum. At the same time, they began procurement programs to obtain laboratory equipment and growth media (Rosenau 2001). Despite the massive financial resources that were dedicated to the sect’s BW program, all attempts to produce and use biological weapons failed. Shortly after the attempt to get hold of Clostridium botulinum, tests were carried out to confirm the efficiency of the toxin produced. Three vehicles were equipped with aerosol generators and driven through Tokyo to the international airport in Narita and to US naval bases in Yokohama and Yokosaka (Smithson and Levy 2000). However, no effect of these actions could be observed. Previously, Aum had carried out laboratory tests with rats, which proved negative. Either the Aum scientists were unable to isolate or culture a pathogenic strain of Clostridium botulinum or the amounts of toxin produced were insufficient to cause harm (Carus 2001). Similar conclusions can be drawn about Aum’s attempt to cultivate and spread Bacillus anthracis. Aum was only able to acquire a nonvirulent strain of the pathogen, so none of the material produced was able to infect anybody when a first attempt was made to distribute the supposed pathogen from the roof of a high-rise building in Tokyo. Reports about this event convincingly show that the production of an aerosol from the solution of anthrax bacteria failed completely, as did two further attempts to distribute the anthrax pathogen by means of the same spraying vehicles used previously for the botulinum toxin (Rosenau 2001). Milton Leitenberg further undermines some myths formed in the reporting of Aum’s bioweapon program. He demonstrates, for example, that Aum’s involvement with Coxiella burnetii, the pathogen causing Q fever, consisted of nothing more than procuring a diagnosis test kit from Australia. Also, whether Aum members were capable of isolating the Ebola virus is more than doubtful. Moreover, reports about a software application that allegedly enabled Aum to construct genetically modified pathogens turned out to be a hoax (Leitenberg 2000). Nevertheless, none of the moral, psychological, or potentially operative barriers for the production and distribution of BW described above played a role in Aum’s attempts to isolate and produce pathogens, transform them into a weapon-suitable form, and finally distribute them,

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which brings into question the widespread assumption of terrorist groups’ aversion to bioweapons. At the same time, Aum’s complete failure at an operative level, including the procurement, mass production, and effective dispersal of virulent pathogens, are important indicators that the technical barriers for all these steps toward a working bioweapon are higher than some sensational media reports and commentators would suggest. On the contrary, the Aum example demonstrates clearly that a simple university degree in biology and substantial financial resources for procuring the materials and infrastructure required are not sufficient for the production and use of biological weapons. When the Aum leadership began coming to this realization in 1993, they gave more emphasis to developing a chemical weapons (CW) capability (Danzig et al. 2011). Finally, no other terrorist group has imitated the Aum attack with the nerve agent sarin, as was feared in the event’s immediate aftermath. In fact, it took over six years until a substate actor resorted to the distribution of anthrax spores as a biological weapon in the United States, in the fall of 2001. The 2001 Anthrax Attacks in the United States

In September and October 2001, at least five envelopes containing significant quantities of Bacillus anthracis in spore form were mailed to the Washington DC offices of US senators Patrick Leahy and Thomas Daschle, and to media organizations located in New York City and Boca Raton, Florida: American Media in Florida and NBC News, CBS News, and the New York Post in New York. These mailings led to twenty-two cases of anthrax, spread evenly between the inhalational and the cutaneous forms. Five of the inhalational cases led to fatalities. In addition to the addressees, post office staff who came into contact with the letters or simply worked at the sites where the letters were sorted or forwarded were affected by anthrax (US Department of Justice 2010). The disruption caused by the anthrax mailings has been summarized in the official US Department of Justice account as follows: Thirty-five postal facilities and commercial mailrooms were contaminated. The presence of Bacillus anthracis was detected in seven of 26 buildings tested on Capitol Hill. From October through December 2001, the Laboratory Response Network tested more than 120,000 clinical and environmental samples for the presence of Bacillus anthracis. The U.S. Postal Service closed two heavily contaminated processing and distribution centers. (US Department of Justice 2010: 3)

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This launched a massive investigation by the US Federal Bureau of Investigation and the US Postal Service in the joint Amerithrax Task Force. Quoting again from the official account of the investigation, In the seven years following the attack, the Amerithrax Task Force expended over 600,000 investigator work hours, involving in excess of 10,000 witness interviews conducted on six continents, the execution of 80 searches, and the recovery of over 6,000 items of potential evidence. The case involved the issuance of over 5,750 federal grand jury subpoenas and the collection of 5,730 environmental samples from 60 site locations. (US Department of Justice 2010: 4)

According to the Centers for Disease Control and Prevention all anthrax spores in the letters belonged to the so-called Ames strain and responded to antibiotic treatment, leading to the conclusion that all the spores had the same origin and were not genetically modified to alter resistance to antibiotics. Also, the anthrax spores were prepared in the form of a very fine powder. The characteristics of the spore preparation suggested quickly that the source was to be found in the US Army Medical Research Institute for Infectious Diseases (USAMRIID). During the investigation, the FBI initially suspected a former US Army employee to be the perpetrator but could not find any evidence to link him to the anthrax mailing. This so-called person of interest subsequently sued the US government for violation of privacy laws and was awarded compensation of $4.6 million in June 2008 (Shane and Lichtblau 2008). At the same time, the investigation was closing in on another suspect, Bruce Ivins, a longtime biodefense researcher and anthrax expert at USAMRIID. Yet again, the investigation was unable to uncover any spores of the type sent through the mail or other physical evidence connecting the suspect unambiguously with the anthrax attack. Instead the FBI’s case was based on circumstantial evidence that relied most importantly on (1) Ivins having developed the particular Bacillus anthracis strain used in the attack and having a flask of this material under his direct control, (2) his working odd hours in the laboratory before the mailings, (3) a history of mental problems, and (4) inconsistencies in the provision of samples, which the FBI has interpreted as an attempt by Ivins to mislead investigators (US Department of Justice 2010). A combination of Ivins’s mental health problems and the severe pressure of the investigation were the presumptive causes of Ivins committing suicide in July 2008. In light of criticism about the conduct of the investigation, the FBI asked the US National Academy of Sciences “to conduct an independent review of the scientific approaches used during its investiga-

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tion” (National Research Council 2011b: ix). However, without waiting for the outcome of this review, the US Department of Justice declared the investigation into the anthrax mailings officially closed in early 2010. When the National Academy report was published in 2011, its main finding was that “it is not possible to reach a definitive conclusion about the origins of the B. anthracis in the mailings based on the available scientific evidence alone” (National Research Council 2011b: 2), thereby calling into question a crucial piece of circumstantial evidence that had led investigators to believe Ivins was the perpetrator. Most importantly, as a recent review of the characteristics of the anthrax spores used in the 2001 attacks has pointed out, the National Academy highlighted that the connection between the letter material and the Bacillus anthracis flask in Bruce Ivins’s laboratory containing the Ames strain is not as strong as suggested in the Department of Justice summary of the case (Hugh-Jones, Rosenberg, and Jacobsen 2011). According to this review of the publicly available evidence, the investigation has not provided clear answers on where the anthrax spores were produced or how the spores acquired their uncharacteristically high levels of silicon and tin content (Hugh-Jones, Rosenberg, and Jacobsen 2011). Yet, in spite of these criticisms, the investigation into the 2001 anthrax letters has not been reopened. This case seems to correspond to one of the conclusions that a comparative study reached into the attribution of BW events: “Attribution is difficult, successful attribution is rare, and even when the evidence for accurate attribution of a BW event exists, states may choose not to act on it” (Martin and Clunan 2008: 324). Any investigation into a bioterrorist attack will not only be determined by the scientific capabilities of the investigating teams but also by the politics surrounding each case. Linking back to some of the broader biodefense issues explored in Chapter 2, some observers have noted that “if the U.S. government is correct in concluding that a trusted insider attacked it with its own anthrax, it is ironic that it continues to fund a massive expansion of biodefense personnel and infrastructure” (Enemark and Ramshaw 2009: 626).

Adaptations to the CBW Terrorist Threat in the BWC and CWC Contexts

The terrorist acts that took place on 11 September 2001 triggered a massive policy response not only at the domestic level in the United States but also internationally. For the first time ever, NATO invoked Article V

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of its charter, expressing the collective defense commitment of its members. The UN Security Council on 28 September 2001 adopted unanimously Resolution 1373. While the focus of the resolution is on preventing and suppressing the financing of terrorism, as well as criminalizing provision or collection of funds for such acts, the Security Council also “notes with concern the close connection between international terrorism . . . and illegal movement of nuclear, chemical, biological and other potentially deadly materials, and in this regard emphasizes the need to enhance coordination of efforts on national, subregional, regional and international levels” (United Nations 2001b: 3). Further UN activities to counter international terrorism have included, inter alia, UN Security Council Resolution 1540 (2004), which focuses specifically on nuclear, biological, and chemical terrorism (see Chapter 7), and the UN Global Counterterrorism Strategy, adopted by the General Assembly in September 2006. In order to coordinate UN systemwide counterterrorism efforts, the UN SecretaryGeneral has established the Counter-Terrorism Implementation Task Force (CTITF), in which the Organisation for the Prohibition of Chemical Weapons (OPCW) is a participant. As these few examples show, efforts to address terrorism with biological and chemical weapons are embedded in a wider set of global institutional counterterrorism efforts at the UN level. Countering Bioterrorism and Implementation of the BWC

The BWC’s traditional focus has been on prohibiting biological weapons for states parties to the convention. The capability for addressing BW acquisition and use by substate actors had not been a concern when the normative structure of this core institutional component of the BW prohibition regime was established. This led to a dominant perception within the regime, as noted by then UN Secretary-General Kofi Annan in 2006 in his report “Uniting Against Terrorism,” that “many Member States see biological weapons as a State-sponsored threat, for which the proper antidote is the Biological Weapons Convention” (United Nations 2006c: 11). However, as the report continued, “Preventing bioterrorism requires innovative solutions specific to the nature of the threat. Biotechnology is not like nuclear technology. Soon, tens of thousands of laboratories worldwide will be operating in a multibillion-dollar industry” (United Nations 2006c: 11). In addition to the dramatically changing science and technology (S&T) underlying the bioterrorist threat, public health–related issues were increasingly per-

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ceived as being of greater importance for biosecurity than in the past (Kelle 2007a). Thus, biosecurity against terrorist acts cannot be confined to measures addressing security in a laboratory environment. Instead, as most pathogens that are of a biosecurity concern are endemic in many parts of the world, biosecurity has to address these wider health security issues as well. Against this background, BWC states parties sought in 2002 to salvage efforts to strengthen the convention after the collapse of Ad Hoc Group negotiations. The resulting work programs for the three cycles of the intersessional process (ISP) are overlapping with the implementation and strengthening of the nontransfer, internalization, assistance, and cooperation norms as expressed in BWC Articles III, IV, VII, and X, respectively (see Chapters 3 and 5). Yet, deliberation by BWC states parties of the topics agreed for the ISP’s first year of operation in 2003 was overshadowed by definitional debates about the scope of biosecurity measures, with some, like the United States and China, advocating a narrower, laboratory biosecurity approach to be pursued, and others—such as South Africa and New Zealand—arguing for a wider understanding of the term (Revill and Dando 2008). Although, as Revill and Dando (2008) have noted, the adoption of UNSC Resolution 1540 in 2004 led to “consolidating and entrenching a US-led model of laboratory biosecurity in the international system, and this to some extent serves to stifle definitional debates” (Revill and Dando: 53), this action did not undermine the discussion of wider public health–related issues under the purview of the ISP since then. As already noted in Chapter 3, discussion of the 2004 ISP topics was starting to shift the meaning and scope of activities contemplated in the context of the assistance norm as contained in BWC Article VII. In addition to these changes to the meaning attributed to the normative structure of the BW prohibition regime, the number of stakeholders participating in the annual BWC meetings of experts and states parties began to grow, as more of them with expertise in the different ISP topics were invited to attend. For example, during the 2004 meeting of experts, which focused on different aspects of surveillance, diagnosis, and mitigating the effects of infectious diseases affecting humans, animals, and plants, presenters included the World Health Organization (WHO), the Food and Agriculture Organization (FAO), and the World Organization for Animal Health (OIE) (United Nations 2004b). Similarly, the 2005 meeting of experts could “draw on a number of working papers submitted by States Parties, as well as on statements and presentations made by States Parties, Observer Organizations and guests of the Meeting” (United Nations 2005a: 5). As the synthesis document pre-

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pared by the chair of the meeting shows, these organizations and guests included the International Union of Biochemistry and Molecular Biology, the International Centre for Genetic Engineering and Biotechnology, the World Medical Association, the Association of the British Pharmaceutical Industry, and others with expertise and an interest in codes of conduct for scientists. The Sixth BWC Review Conference noted these contributions and added some language derived from the first cycle of the ISP to the review of the BWC’s operation. Given the scope of bioterrorism-related discussions in the ISP context up to then, the Sixth Review Conference added language to its article-by-article review under Article IV in the final document on national measures to ensure biosafety and biosecurity, the development of training and education programs for life scientists, promoting awareness and the utility of codes of conduct, and disease surveillance (United Nations 2006a). The Sixth BWC Review Conference also agreed on a range of issues to be addressed during the second cycle of the ISP that are relevant to countering the threat of bioterrorism. In particular, the 2008 meetings of experts and states parties were to “discuss, and promote common understanding and effective action on . . . national, regional and international measures to improve biosafety and biosecurity, including laboratory safety and security of pathogens and toxins” (United Nations 2006a: 21). The 2008 meeting of experts saw a procedural innovation, in that “13 scientific, professional, academic and industry bodies participated in informal exchanges in the open sessions as guests of the Meeting of Experts” (United Nations 2008b: 3). Following the 2008 BWC meeting of experts with repeated references to biosecurity as reflected in earlier US positions and also developed by the WHO in its 2006 Laboratory Biosecurity Guidance (WHO 2006), the report of the meeting of states parties recorded the nonbinding understanding that in the context of the Convention, biosafety refers to principles, technologies, practices and measures implemented to prevent the accidental release of, or unintentional exposure to, biological agents and toxins, and biosecurity refers to the protection, control and accountability measures implemented to prevent the loss, theft, misuse, diversion or intentional release of biological agents and toxins and related resources as well as unauthorized access to, retention or transfer of such material. (United Nations 2008a: 4–5)

With respect to the second topic addressed in 2008—“oversight, education, awareness raising and adoption and/or development of codes of conduct with the aim of preventing misuse in the context of advances

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in bio-science and bio-technology research” with a dual-use potential— the BWC states parties recognised the value of developing national frameworks to prohibit and prevent the possibility of biological agents or toxins being used as weapons, including measures to oversee relevant people, materials, knowledge and information, in the private and public sectors and throughout the scientific life cycle. Recognising the need to ensure that such measures are proportional to risk, do not cause unnecessary burdens, are practical and usable and do not unduly restrict permitted biological activities, States Parties agreed on the importance of involving national stakeholders in all stages of the design and implementation of oversight frameworks. (United Nations 2008a: 6)

BWC states parties included both of these topics in their article-byarticle review of the convention under Article IV during the Seventh Review Conference in 2011, as well as others of relevance to address the risk of bioterrorism. However, when comparing the results with the review during the 2006 Sixth Review Conference, Graham S. Pearson and Nicholas A. Sims conclude on the basis of a detailed textual analysis that the language produced by the 2011 review is weaker than that produced five years earlier. They see shortcomings especially in the common understandings recorded by BWC states parties in the areas of awareness raising, education, and outreach to the relevant stakeholders (Pearson and Sims 2012). However, as the Seventh Review Conference decided to maintain the previous ISP format and to address the strengthening of national implementation as a recurring Standing Agenda Item for the third cycle of the ISP from 2012 to 2015, there are opportunities for BWC states parties to compensate for these shortcomings, if they so decide. As in the previous ISP cycles, most topics are primarily related to the internalization, cooperation, and assistance norms of the BW prohibition regime. More specifically, with a view to bioterrorism preparedness, the final document of the 2011 Review Conference identifies a subitem on “national, regional and international measures to improve laboratory biosafety and security of pathogens and toxins” as part of the annual discussions on national implementation of the BWC (United Nations 2011a: 24). Following a proposal by the 2012 chair of the ISP meetings, this subitem will be addressed during the 2013 and 2015 sessions of the ISP, so that during the 2012 ISP meetings, generic statements as to the desirability of biosafety and biosecurity measures as part of a comprehensive national implementation approach were prevalent (United Nations 2012a; 2012b; 2012c).

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In sum, the dangers of bioterrorism gained dramatically in salience by the time the Ad Hoc Group process to strengthen the BWC via a legally binding compliance protocol had collapsed in the summer of 2001. This collapse presented a window of opportunity to structure and focus the new ISP in a way that it corresponded to the new US-driven bioterrorism agenda and did not result in any binding obligations, which would not have found much support among BWC states parties at the time. As the ISP has progressed over the past decade it remained confined to discussions and the attempt to arrive at common understandings on concepts, rules, and procedures related to the BW prohibition regime’s internalization, cooperation, and assistance norms. All of these, but especially the first, have direct relevance for efforts to counter terrorist BW acquisition and use. As much of the ISP agenda was originally driven by US priorities, it should not have come as a surprise that US conceptualizations of biosecurity have partially dominated the BWC discourse. These are still contested, however, and in the ISP work program balanced by oversight, education, and public health issues. In this sense, the refocusing on bioterrorism has led to including topics previously not central to the evolution of the BW prohibition regime. In addition, the fact that the ISPs have been mandated to “discuss and promote common understanding and effective action”—but not to take decisions—has facilitated the inclusion of additional nonstate stakeholders in the process. In other words, the refocusing on substate actors as the threat to prioritize in the ISP’s work has led to including nonstate stakeholders in the process. Countering Chemical Terrorism and Implementing the CWC

In contrast to terrorism with BW, chemical terrorism has received less attention in the political and academic discourse. Given the similarities in terms of the normative structure of the CBW prohibition regimes, in the CW context it is also the internalization, assistance, and cooperation norms, as contained in Articles VII, X, and XI, that are of greatest relevance for antiterrorist efforts in the context of CWC implementation. However, given the differences in organizational structures, with an implementing organization—the OPCW in The Hague—available in the CWC context, efforts to address the threat of chemical terrorism could make use of this organization and its different components. Shortly after 9/11 and the anthrax attacks in the United States, in a December 2001 meeting the OPCW Executive Council “decided to

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establish an open-ended working group, chaired by the Chairman of the Council, further to examine the OPCW’s contribution to global anti-terrorist efforts, with a view to presenting a recommendation to its . . . [next] Session, which would include specific measures and which would take into account the relevant resource implications” (OPCW 2002c: 17). However, from subsequent references in the annual reports of the Executive Council—which could be as short as simply recording that the “Council’s Open-ended Working Group on Terrorism continued its work” (OPCW 2005c: 14)—few details are available on the Council’s work and the priority accorded to the OPCW’s contribution to international antiterrorism efforts. This changed during a more recent Executive Council meeting in 2010 when it requested annual updates by the Director-General of the OPCW’s Technical Secretariat on the organization’s antiterrorism activities. The first of these reports (OPCW 2011j) was subsequently discussed by the Open-Ended Working Group on Terrorism at a November 2011 meeting, at which participating OPCW member states confirmed “that the programmes and approaches proposed by the Secretariat in EC-64/DG.8 had been positively assessed and were supported by the group . . . [and] that the group will continue substantive discussions, and would review and update the decision of the Council taken in 2001” (OPCW 2012f: 2). The CWC Review Conferences in 2003 and 2008, respectively, also briefly addressed the issue of chemical terrorism in relation to implementing legislation in 2003 (CWC Article VII) and assistance and protection in 2008. More specifically, the Second Review Conference reaffirmed concerns expressed at the First Review Conference that chemical facilities may become subject to attacks or other incidents that could lead to the release or theft of toxic chemicals . . . noting the possibility of the use of chemical weapons, as defined by the Convention, by non-state actors such as terrorists, the Second Review Conference underlined the importance of the implementation of Article X in this regard. (OPCW 2008c: 22)

In addition to these deliberations and statements by the OPCW policymaking organs, its Technical Secretariat since 2005 has been involved in an increasing number of concrete antiterrorism activities in addition to the generic dual-purpose internalization, cooperation, and assistance activities described earlier (see Chapter 4). The TS has, for example, contributed to the annual UN General Assembly resolution titled “Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons

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and on Their Destruction,” which in 2006 for the first time “stresse[d] that the full and effective implementation of all provisions of the Convention, including those on national implementation (Article VII) and assistance and protection against chemical weapons (Article X), constitutes an important contribution to the efforts of the United Nations in the global fight against terrorism in all its forms and manifestations” (United Nations 2006c: 2). In addition, the OPCW has been a member of the UN CounterTerrorism Implementation Task Force (UN CTITF) since its creation in 2005 and cochairs the Working Group on Preventing and Responding to Weapons of Mass Destruction Attacks. In this role it contributed to an August 2011 report, “Interagency Coordination in the Event of a Terrorist Attack Using Chemical or Biological Weapons or Materials” (United Nations 2011c). The report identified “a large number of UN and other international agencies and organizations that have partial mandates and undertake certain activities in the area of prevention of, preparedness for and response to possible terrorist attacks with chemical or biological weapons or materials” (United Nations 2011c: vii). Given this multitude of actors, the CTITF working group argued that “coordination among the concerned entities is therefore of the utmost importance” (United Nations 2011c: vii). Acknowledging that the CWC does not specifically deal with the fight against terrorism, the report nonetheless “contains a number of recommendations and considerations that are relevant for the OPCW and its work” (OPCW 2012c: 8). As noted in a summary prepared by the OPCW’s Technical Secretariat, the report recognised that the full implementation of the provisions of the Convention, including the necessary legislative framework, constitutes an important element in preventing chemical terrorism. The OPCW’s programmes for preparedness against, and response to, the misuse of toxic chemicals were supported by the findings of the report. The report highlights the need to work towards a culture of chemical security and safety and encourages the OPCW to continue its work in this area, in close cooperation with relevant partners. (OPCW 2012c: 8)

Earlier in 2011, the OPCW conducted a seminar on the organization’s contribution to security and the nonproliferation of chemical weapons. Participants were reflecting the multitude of international agencies and stakeholders involved in the prevention of, preparedness for, and responses to chemical terrorism, and, much as the advisory group established by the director-general of the OPCW’s Technical Secretariat, the seminar addressed many issues related to the adaptation of

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the OPCW to changing S&T and political realities. Thus, topics of the seminar ranged from national implementation to industry verification, and from more technical issues such as sampling and analysis and convergence of chemistry and biology to chemical, biological, radiological, and nuclear (CBRN) prevention and preparedness against malicious use of toxic chemicals. In addition, participants discussed best practices in safety and security at chemical plants and in transportation (OPCW 2011k). The latter set of issues featured prominently in a conference hosted by the OPCW in September 2011 on international cooperation and on chemical safety and security as a contribution of the OPCW to the international year of chemistry. As one speaker at the event noted, while chemical safety management refers to the “management of accidental risk from design failures and operating actions leading to unnecessary hazards,” chemical security management focuses on “preventing or minimizing the consequences of intentional malicious releases of toxic, reactive, flammable, or explosive chemicals” (OPCW 2011l: 91). The section on chemical security in the conference “Outcome Document” shows an interesting mix of presentations by, inter alia, representatives of the World Health Organization and the International Atomic Energy Agency, which on the one hand demonstrates the interconnectedness of issues and the fact that deliberations on chemical security might be able to learn from developments in the fields of health and nuclear security. On the other hand, however, it raises the question as to the degree to which chemical security is already a settled concept. Also the only CWrelated presentation has been “other chemical production facilities,” as discussed in Chapter 4. From the Technical Secretariat’s point of view, however, the conference has demonstrated “the clear recognition by States Parties that the OPCW is a forum suited to, and appropriate for, concerted action in the field of chemical safety and security” (OPCW 2012c: 3). In relation to the threat of chemical terrorism and the related concept of chemical security, the Advisory Panel on Future OPCW Priorities pointed out with reference to the broadened threat spectrum that “the deliberate release of toxic industrial chemicals as well as the ad hoc synthesis of chemical agents using readily-available chemicals, including simple household goods, cannot be ignored” (OPCW 2011h: 21). The panel therefore advocated an “all-risks approach” that “could, for example, include OPCW support for the establishment, in regions or subregions where such capabilities are lacking, of regional centres to prepare for and respond to threats related to releases of toxic chemicals”

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(OPCW 2011h: 21). If taken on board by CWC states parties, the increasing emphasis of chemical safety and security, which could be observed recently, might see a stronger focus on regional efforts to counter chemical terrorism.

Conclusion

Chemical and biological terrorism has emerged as a new threat to which states participating in the CBW prohibition regimes have responded in a number of ways during the last decade. Initially conceptualized during the mid-1990s as the convergence of the increasing availability of CBW-related material, technology, and knowledge, and the trend in terrorist attacks to seek higher casualty numbers, CBW terrorism, with an emphasis on bioterrorism, began to gain predominance in the national security policy discourse of the United States in particular. Following 9/11 and the anthrax attacks in the United States, the externalization of the changed threat perception and policy response began to manifest itself first in the BW prohibition regime, where a window of opportunity for a refocusing of efforts to strengthen the BWC opened after the collapse of the Ad Hoc Group negotiations in the summer of 2001. As I have detailed here, the ISP work programs agreed upon by BWC Review Conferences since 2002 have concentrated on the improved implementation of the internalization, cooperation, and assistance norms of the regime. The propagation of a laboratory-oriented understanding of biosecurity as part of this process has been balanced by an inclusion of oversight, education, codes of conduct, and public health– related discussions and activities under the purview of BWC Articles IV, VII, and X. The consideration of these issues has also led to the inclusion of a wider set of stakeholders in discussions about implementation of regime norms. In the CWC context, the issue of chemical terrorism and discussion of related concepts of chemical safety and security have been gaining ground much more slowly than in the BWC context. Although the policymaking organs of the OPCW have acknowledged the new threat dimension at least rhetorically since 2001, the focus of practical measures to implement the CWC—as analyzed in Chapter 4—has clearly been on destroying existing CW stockpiles, CW nonproliferation, national implementation, and international cooperation and assistance activities. Many of the concrete antiterrorism measures that the OPCW has undertaken were conducted by its TS and occurred from 2005

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onward, from which point the organization was embedded in wider UN activities to combat CBRN terrorism, such as the UN CTITF. With one of the above key activities—CW disarmament—coming closer to its conclusion and a debate about the adaptation of the OPCW having begun recently, an increase in chemical safety and security-related activities has been observable. Clearly, the OPCW is trying to position itself as a forum or platform for the coordination of chemical security–related activities. The degree to which this will form a new focal point for OPCW activities is still uncertain, as it depends on the support of its member states. What is bound to continue, however, is the collaboration between the OPCW and UN-based institutional arrangements, such as the so-called 1540 Committee, whose work I analyze in Chapter 7.

7 Complementing the Multilateral Conventions

The two multilateral chemical and biological weapons (CBW)

conventions represent the institutional core of the CBW prohibition regimes. In addition to the activities of the Australia Group, which I analyzed in Chapter 5, both prohibition regimes have been expanded over the past decades with additions to their institutional fabric, thereby increasing regime complexity. As Karen J. Alter and Sophie Meunier have pointed out, such complexity can have a number of effects, depending on how regime members decide to utilize it. As I discussed in Chapters 3 and 4, the treaties forming the core of the CBW prohibition regimes have their origins in the 1925 Geneva Protocol; the Chemical Weapons Convention (CWC) and Biological Weapons Convention (BWC) entered into force in 1975 and 1997, respectively. In Chapter 3, I also covered an early recognition of the limitations of the BWC, caused by the absence of the verification principle and its result: any meaningful norms, rules, or procedures to verify compliance with the treaty. Thus, while some of the earlier additional regime elements have their roots in the absence of the means to operationalize the rudimentary investigation norm of the biological weapons (BW) prohibition regime as contained in the BWC, later elements reflect a shift in emphasis from concerns about state-level CBW threats to the emerging perception of chemical and biological (CB) terrorism as a major risk. A recent case in point in the latter category is the informal Biological Security SubWorking Group established by the G8 Global Partnership in 2012.

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According to a statement issued by the US Mission in Geneva, the working group will focus its activities initially on five core areas: securing and accounting for material that represent biological proliferation risks; developing and maintaining measures to prevent, prepare for, and respond to the deliberate misuse of biological agents; strengthening national and global networks to identify, confirm and respond to biological attacks; reinforcing and strengthening biological nonproliferation principles, practices and instruments; and reducing proliferation risks through the promotion of responsible conduct in the biological sciences. (US Mission in Geneva 2012)

Corresponding to some of the core norms of the CBW prohibition regimes, and in spite of their diverse underlying rationales, all of the complementary measures that I analyze in this chapter have the effect of increasing the complexity of the CBW regimes. As I discussed in Chapter 1, such increased regime complexity can have a number of effects on institutional continuity or change (Mahoney and Thelen 2010). In the following four sections, I briefly analyze such additions to the CBW prohibition regimes, complementing the BWC and CWC as core elements of the regimes. The first of these additions is the UN Secretary-General’s Mechanism to Investigate the Use of Chemical and Biological Weapons (SGM). Second, I look at the 1991 UN Special Commission on Iraq (UNSCOM) and its successor, the 1999 UN Monitoring, Verification, and Inspection Commission (UNMOVIC), which were set up in the aftermath of the first Iraq war in 1991. I follow with an analysis of UN Security Council Resolution 1540 (2004) and the committee set up to oversee its implementation. Last, the Proliferation Security Initiative (PSI) is, in contrast to the first three institutional additions to the CBW prohibition regimes, not based on UN resolutions mandating certain activities by its member states, but on the initiative of the US government under President George W. Bush, initially supported by a small number of countries seeking to interrupt supply chains to potential proliferators. In the final section, I then draw some lessons for the evolution of the CBW prohibition regimes from these rather diverse institutional arrangements.

The UN Secretary-General’s Mechanism to Investigate the Use of Chemical and Biological Weapons

The UN Secretary-General’s (UNSG) Mechanism to Investigate the Use of Chemical and Biological Weapons (SGM) was first used in an ad hoc

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fashion to investigate alleged use of chemical weapons and toxins in Southeast Asia and Afghanistan (Tucker 2008). The mechanism became further institutionalized against the background of the Iran-Iraq war and Iraq’s reported chemical weapons (CW) use (Lundin, Perry Robinson, and Trapp 1988). The SGM was formalized in UN General Assembly Resolution 42/37C (1987), which empowers the UNSG to investigate, with the assistance of qualified experts, information that may be brought to his attention by any Member State concerning activities that may constitute a violation of the [1925 Geneva] Protocol or of the relevant rules of customary international law in order to ascertain thereby the facts of the matter, and promptly to report the results of any such investigation to all Member States and to the General Assembly. (United Nations 1987)

As a summary of the BWC Implementation Support Unit for the 2004 Meeting of Experts of the Inter-Sessional Process outlined, development of guidelines and procedures for the investigation of alleged use of CBW occurred in two phases during the 1980s: “The first, from 1982 to 1984, tasked the Secretary-General with developing procedures for their timely and efficient execution. The second, between 1987 and 1990, requested the Secretary-General to develop further procedures and guidelines for such investigations” (Implementation Support Unit 2004: 8–9). The second phase was triggered by Resolution 42/37C, which required the UNSG “with the assistance of qualified experts provided by interested Member States, to develop further technical guidelines and procedures available to him for the timely and efficient investigation” of such use and “to compile and maintain lists of qualified experts provided by the Member States whose services could be made available at short notice to undertake such investigations, and of laboratories with the capability to undertake testing of the presence of agents the use of which is prohibited” (United Nations 1987). These two key elements contained in the mandate for the SGM—a roster of experts and detailed guidelines and procedures—were confirmed in 1988 by UN Security Council (UNSC) Resolution 620/1988 (United Nations 1988), which also encouraged the UNSG “to carry out promptly investigations in response to allegations brought to his attention by any Member State concerning the possible use of . . . bacteriological (biological) or toxic weapons that may constitute a violation of the 1925 Geneva Protocol or other relevant rules of customary international law” (United Nations 1988: 1). In 1989 a group of experts met to discuss and adopt guidelines and procedures for the conduct of investigations under the UNSG’s purview.

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These guidelines and procedures are contained in UN Document A/44/561; they provide guidance to the Secretary-General in carrying out timely and efficient investigations of alleged CBW use. The document specifies the information to be provided by states when submitting a request for an investigation of alleged use; details the involvement of member states, expert consultants, qualified experts, and analytical laboratories; elaborates technical procedures for the conduct of investigations; and provides guidance for the drafting of the investigation report. The document also contains the request “to periodically review with the assistance of his appointed expert consultants . . . these guidelines and procedures and revise them as necessary for submission to the General Assembly” (United Nations 1989: 31). The guidelines and procedures were endorsed by the UN General Assembly in Resolution A/45/57C (1990). The mechanism was in place several years before the CWC entered into force in April 1997, which also contains a set of rules and procedures for the investigation of alleged use (IAU; see Chapter 4 for details). In contrast to IAU under the CWC, the UNSG Mechanism does not establish a permanent dedicated institutional structure to undertake investigations. Rather, the SGM is being implemented by the UN Office of Disarmament Affairs at UN headquarters in New York. The last of the inspections to be carried out in the framework of the SGM occurred in Mozambique in 1992 (McCreight and Weigert 2001). After this the mechanism was allowed to “atrophy” (Littlewood 2006), presumably in no small part because of the ongoing work of the BWC Ad Hoc Group (AHG), which sought the comprehensive strengthening of the BWC, including an investigation procedure (see Chapter 3). Although institutionally linked much more closely to the 1925 Geneva Protocol than to the 1972 BWC, after the work of the AHG abruptly and unsuccessfully came to an end in July 2001, the SGM was discussed during both the first and second intersessional processes (ISPs) of the BWC in 2004 and 2010. In 2004, for example, the United Kingdom submitted a working paper to the BWC Meeting of Experts in which it called for a review of the 1989 guidelines submitted by the UNSG-appointed experts. More specifically, the UK paper argued, “In order to ensure the effectiveness of the system, there would at some stage be a need for a system of regular exercises in which designated experts and laboratories were tested in realistic training environments” (United Kingdom 2004: 2). The SGM also received additional impetus from the 2006 BWC Review Conference. Germany, for example, pre-

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sented a working paper to the 2006 Conference, in which it pointed out that the SGM guidelines and procedures have not been reviewed since 1989. Consequently, even though efforts have been made in recent years by some Member States to update the lists of qualified experts and laboratories, the mechanism as a whole has not been revised and updated in a consistent manner. Given the rapid progress in biotechnology and the advances in verification and investigation techniques, the mechanism is unlikely to conform to the current standards. (Germany 2006: 2)

The working paper also highlighted the fact that “previous experiences with the Secretary-General’s investigation mechanism are limited to alleged use of chemical weapons” and concluded that “in the present situation, it is therefore unclear whether the existing guidelines and procedures are suitable for the effective investigation of alleged biological weapons use” (Germany 2006: 2). The SGM was also noted in the 2006 UN Global Counter-Terrorism Strategy as expressed in UNGA Resolution A/RES/60/288 (2006), in which member states encourage the Secretary-General “to update the roster of experts and laboratories, as well as the technical guidelines and procedures, available to him for the timely and efficient investigation of alleged use” of CBW (United Nations 2006b). The ensuing negotiations resulted in updated technical appendices. The guidelines and procedures, in contrast, could not be updated for political reasons. As one of the countries critical of strengthening of the SGM has argued, “The Secretary General’s mechanism on investigation of alleged use of biological and chemical weapons originated from the Iran-Iraq war in [the] 1980s. The mechanism has played [a] certain role against that unique historic background, but it cannot meet the demands of the new situation” (China 2012). China continues to caution that “the mechanism should not replace, weaken or duplicate the work of the existing multilateral verification mechanisms in biological and chemical fields” (China 2012). While such a mechanism is in place under the CWC, the reference to “biological fields” is somewhat puzzling, as there are no other practicable mechanisms available that the SGM could weaken. As one analyst has highlighted, “The only mechanism currently available to the UNSC for investigating alleged use of biological weapons, whether by a state party to the BWC or not, is the Secretary-General’s” (Littlewood 2006: 8).

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Currently, the roster of experts that can be deployed for investigations amounts to over 130, nominated by forty member states. In addition, states have put forward thirty diagnostic and analytical laboratories for analysis of samples taken during investigations (Kraatz-Wadsack 2010). In order to maintain the SGM’s operational capability, it is essential to ensure the continuous availability of experts and the regular updating of the list of available analytical laboratories. In addition, the call for the training of experts to be used for investigations was first realized with a training course in Sweden in May 2009 (Hunger and Zmorzynska 2011). A second training course was conducted by France in November 2012. So far, the UN Office of Disarmament Affairs has been able to agree to a memorandum of understanding (MOU) with the World Health Organization (WHO), the International Organisation for Animal Health (OIE) and, more recently, with the Organisation for the Prohibition of Chemical Weapons (OPCW)—which, due to the IAU procedures contained in CWC Articles IX and X, is highly relevant to conducting inspections under the SGM. The Final Declaration of the Seventh BWC Review Conference in 2011—in contrast to the previous one—did not contain any reference to the Secretary-General’s mechanism. Although several shortcomings have been identified in relation to even the updated mechanism (Littlewood 2006; Tucker 2008), it still represents a possibility for BWC states parties to have an alleged BW use investigated by independent experts under the authority of the UN Secretary-General. With this, at least an easy blockage by a permanent member of the UNSC can be avoided.

UNSCOM and UNMOVIC

The 1991 United Nations Special Commission on Iraq (UNSCOM) and its successor, the United Nations Monitoring, Verification, and Inspection Commission (UNMOVIC), vary in their focus from the other complementary measures I have discussed in this chapter. UNSCOM and UNMOVIC were set up to target one particular state—Iraq, under Saddam Hussein—and not strengthen the CBW prohibition regimes as a whole. As Karen M. Fierke has pointed out, after its occupation of Kuwait in 1990, Iraq’s position “changed relatively quickly from being ‘on the side of the West,’ and receiving support in the War against Iran, to that of ‘evil Other,’ who only understands the language of force” (2000: 338). This provided a context for the operation of initially

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UNSCOM and later UNMOVIC in which the threat of force—expressed most consistently by the US and UK governments—was always present; at some points in time, such as during Operation Desert Fox in December 1998 after UNSCOM inspectors had been expelled from Iraq, the threat materialized. This clearly confrontational political context is markedly different from the cooperative institutional and normative frameworks provided by the CBW prohibition regimes in their standard mode of operation—such as when, in the CWC context, declaration and inspection norms are implemented and do not give rise to suspicions of noncompliant behavior. However, as such a confrontational situation might arise in the context of an international regime, potential lessons can be learned from the UNSCOM and UNMOVIC experiences for the CBW prohibition regimes (Findlay 2004). Concerning the state of development of the two regimes and Iraq’s position in relation to them, one has to bear in mind that UNSCOM started its activities during the end phase of negotiations for the CWC; as a result, the CW prohibition regime was not yet fully formed. In the BWC context, suspicions about a possible Iraqi BW program under Saddam Hussein was one contributing factor to the attempts by BWC state parties to address the verification deficit of the BW prohibition regime. At the time Iraq was a contracting party to the 1925 Geneva Protocol but only a signatory state to the BWC. Hence, its use of CW against its own Kurdish population and against Iranian forces in the war during the 1980s clearly violated its obligations under the Geneva Protocol, and also under the BWC. According to the Vienna Convention on the Law of Treaties, a state is bound not to violate the stipulations of an international treaty it has signed. Thus, Iraq should have respected the normative guideposts of the BWC, yet application of the rudimentary investigation norm contained in the BWC would have been fraught with difficulties and was in any case not considered by BWC states parties. Instead, the pursuit of coercive arms control measures via the establishment of a subsidiary body under the UN Security Council, acting under Chapter VII of the UN Charter, was the chosen institutional approach (Pison Hindawi 2012). The legal basis for UNSCOM’s activities is contained in UNSC Resolution 687 of 4 April 1991 (United Nations 1991a), which establishes the cease-fire conditions imposed upon Iraq after having lost the Second Gulf War, following its invasion of Kuwait in the summer of 1990. Part C of the resolution details the provisions for destroying Iraqi nuclear, chemical, and biological weapons; its ballistic missiles with a range of more than 150 kilometers; and any related infrastructure—and for verifying that destruction. In light of Iraq’s legal status, UNSC Res-

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olution 687 “invites Iraq to reaffirm unconditionally its obligations” under the Geneva Protocol and to ratify the BWC (United Nations 1991a: 4–5). More specifically, with respect to the Iraqi CBW programs, UNSCOM was tasked to • Conduct on-site inspections in order to determine Iraqi CBW and missile capabilities • Destroy, remove, or otherwise render harmless all CBW agents and toxins, subsystems and components, and all related research, development, and production sites • Verify the destruction of all Iraqi ballistic missiles with a range of more than 150 kilometers • Verify the Iraqi obligation that none of these agents, toxins, subsystems, components, or any related infrastructure are being used, developed, constructed, or otherwise acquired (United Nations 1991a: 5) The subsequently formulated plan for the implementation of the disarmament provisions of Resolution 687 subdivided UNSCOM’s activities into three stages: (1) collecting and assessing of weapons of mass destruction (WMD) and missile-related information; (2) disposing of uncovered weapons, components, and facilities; and (3) monitoring and verifying Iraqi compliance with its obligations. The latter stage extended beyond the duration of the disarmament process. In theory this ongoing monitoring activity of UNSCOM could have been an openended activity, whose parameters were further detailed in UNSC Resolution 715 of 11 October 1991 (United Nations 1991b). While the first on-site inspections in order to determine the extent of the Iraqi BW program were already conducted during summer and autumn 1991, it took until November 1993 before Iraq agreed to the ongoing monitoring and verification (OMV) program (Pearson 1999). This was part of a larger denial strategy that the Iraqi regime employed until the mid-1990s. According to the UNMOVIC Compendium, summarizing the work of both UNSCOM and UNMOVIC in disarming Iraq, “Iraq continually challenged the UN authority and engaged in a programme of concealment and denial particularly prior to 1995, in contravention of the Security Council resolutions” (UNMOVIC 2007: 23). The official UNMOVIC account continues, “In March 1992, Iraq admitted that it had failed to declare over 24,000 chemical munitions and 92 proscribed missiles and associated equipment including

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mobile launchers that it had destroyed unilaterally in contravention of resolution 687 (1991)” (UNMOVIC 2007: 24). Only in August 1995, after the defection of a high-ranking Iraqi official, did Iraq admit the existence of its BW program and the continued concealment efforts up to this point. Yet, even before these partial revelations, UNSCOM “inspectors converted a few intelligence tips into documentary confirmation and on-the-ground evidence pointing to Iraq’s covert bioweapons program” (Smithson 2011: 75). The realization of the importance of gaining a better understanding of the import and export of dual-use items and material, such as growth media in the biological context, led the UN Security Council in March 1996 to adopt Resolution 1051, which establishes an export-import monitoring mechanism (United Nations 1996b). Continued suspicions about Iraqi concealment efforts led to special investigations into the mechanism used to mislead UNSCOM and the wider international community about the true extent of Iraq’s WMD programs. Coupled with the realization on the part of the Iraqi leadership that prospects for having economic sanctions lifted or the oil embargo removed remained poor, these suspicions led to a deterioration of relations between UNSCOM and Iraq, with the on-site activities of UNSCOM in Iraq being terminated on 16 December 1998 (UNMOVIC 2007). “That same day, following the report of UNSCOM’s Chairman, Richard Butler, to the Security Council outlining continuing Iraqi non-compliance, the United States and the United Kingdom began bombing Iraq in Operation Desert Fox” (Lewis 2001: 64). At the end of 1999 the UN Security Council was able to bridge its political differences over the continuation of the coercive disarmament of Iraq and to agree on Resolution 1284 that established the UN Monitoring, Verification, and Inspection Commission (UNMOVIC) to succeed UNSCOM (United Nations 1999a). Despite the differing interpretations of UNSCOM’s performance in uncovering Iraqi WMD programs and in achieving its disarmament—which was clearly reflected in both the Security Council debate leading to the adoption of the resolution and the fact that three permanent UNSC members (France, Russia, and China) abstained from the vote (United Nations 1999b)—some important lessons were learned from the UNSCOM experience. These were translated into institutional improvements for its successor, including the separation of investigation and assessment roles within UNMOVIC; staff not being seconded by member states to the commission, but being employed by the latter as UN civil servants; the purchase of verification

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technology, equipment, and material directly by UNMOVIC; an emphasis on staff training before missions; and greater care being taken to ensure that intelligence was only received by the commission but did not leak out of it to individual states. As Patricia Lewis has pointed out, Resolution 1284 addressed a further criticism of earlier UNSC resolutions that informed UNSCOM’s work by allowing for the possibility of a suspension of sanctions in return for full cooperation with UNMOVIC, including progress on key disarmament issues. If Iraq co-operates in all respects with UNMOVIC . . . for 120 days after UNMOVIC has reported that it is “fully operational” in Iraq, then sanctions could be suspended for a renewable period of 120 days. (Lewis 2001: 65)

Despite this incentive, Iraq continued to reject inspections, which only were resumed after passage of UNSC Resolution 1441 on 8 November 2002. This clearly increased the pressure on the Iraqi leadership, as it deviated from earlier practice with the resolution establishing UNSCOM; UNMOVIC was now specifically authorized under Chapter VII of the UN Charter. This left “no doubt that compliance with the resolution was mandatory. It was also, unlike the initial UNSCOM resolution, adopted unanimously (even Syria voted in favour)” (Findlay 2004: 72). Resolution 1441 also “explicitly stated that failure to comply at any point ‘shall constitute a further material breach of Iraq’s obligations,’ which would be reported to the Security Council for immediate assessment, with the possibility of ‘serious consequences’” (Findlay 2004: 72). Given wider political events and the decision by the US and British governments to start military action and invade Iraq again in March 2003, the UNMOVIC inspectors had only a few months to gather additional information on the Iraqi CBW programs. They conducted 731 inspections at 411 sites, 88 of which UNSCOM had not inspected. UNMOVIC continued its existence and preparations to return to Iraq after the war in 2003, until it was dissolved by UNSC Resolution 1762 of 29 June 2007 (United Nations 2007b). However, the US administration under President George W. Bush decided not to utilize UNMOVIC and instead created—with the support of a small number of allies—the Iraq Survey Group (ISG), which operated from mid-2003 to September 2004, when it submitted its comprehensive report to the US director of Central Intelligence (Central Intelligence Agency 2004). Interestingly, with respect to the Iraqi CBW programs, the ISG concluded,

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While a small number of old, abandoned chemical munitions have been discovered, ISG judges that Iraq unilaterally destroyed its undeclared chemical weapons stockpile in 1991. There are no credible indications that Baghdad resumed production of chemical munitions thereafter. . . . ISG found no direct evidence that Iraq, after 1996, had plans for a new BW program or was conducting BW-specific work for military purposes. Indeed, from the mid-1990s, despite evidence of continuing interest in nuclear and chemical weapons, there appears to be a complete absence of discussion or even interest in BW at the Presidential level. (Central Intelligence Agency 2004)

Two key findings emerged: (1) the presumed ongoing Iraqi WMD programs that were the reason given for the 2003 war turned out to be nonexistent, and (2) the work of UNSCOM had a positive effect on the termination of Iraqi chemical and biological weapons programs in the early to mid-1990s. While some gaps remained in establishing the details of Iraq’s CBW programs, their basic scope was uncovered and the programs stopped by the UNSC-authorized verification system (Duelfer 2000; Smithson 2011; UNMOVIC 2007). In sum, therefore, in the words of one analyst, the “first strategic lesson to be drawn from the cases of UNSCOM and UNMOVIC . . . is that international verification can work effectively even under the most disadvantageous of conditions” (Findlay 2004: 76). Most progress in this arena was achieved when UNSC cohesion in dealing with Iraq and its willingness to back up its resolutions by the threat of “serious consequences” was greatest, such as in Resolution 1441. Equally important was the combination of a set of measures including not only the verification of the accuracy (or rather lack thereof) of Iraqi declarations but also additional measures such as no-notice inspections of undeclared sites, the ongoing monitoring of dual-use-relevant activities, and the export and import monitoring of dual-use goods and material. As I discussed in Chapter 4, a similar set of measures is being implemented under the CWC, albeit in a much less intrusive fashion, and a comparatively varied set of verification measures was envisaged for the strengthening of the BWC by the verification experts (VEREX) group of experts in 1992–1993 (see Chapter 3). Two key differences, though, between these multilaterally proposed or agreed institutions to ensure compliance with treaty obligations are (1) the coercive nature of disarmament and verification measures directed at Iraq under Saddam Hussein and (2) the direct institutional linkage of UNSCOM to the UN

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Security Council under Chapter VII of the UN Charter, a feature shared by the next complementary institutional structure discussed here: the committee set up under UNSC Resolution 1540. United Nations Security Council Resolution 1540

UN Security Council Resolution 1540 (United Nations 2004e), which was adopted on 28 April 2004 under Chapter VII of the Charter of the United Nations, represents a focusing of previous generic UN counterterrorism efforts (Biersteker 2007) as well as a major step by the Security Council to extend the reach of the CBW prohibition regimes and the nuclear nonproliferation regime to nonstate parties. The fact that the resolution was adopted under Chapter VII of the Charter makes it binding upon all UN member states, regardless of their membership in the BWC or CWC. Of these, only the CWC contains in Article VII detailed provisions for the national implementation of the regime norms embodied in the convention. However, as the analysis of national implementation of the CWC has shown, this approach is far from comprehensive in more than half of CWC states parties (see Chapter 4). As one assessment of UNSC Resolution 1540 has pointed out, pursuing this addition to the multilateral regime structures through the Security Council had the advantage that, “from a policy perspective, the option of seeking formal amendments to the BTWC and the NPT, in particular, does not seem attractive because such efforts would run the risk of getting bogged down in protracted, politically complicated negotiations” (Ahlström 2007: 461). The Security Council resolution, however, as pursued by the US administration under President George W. Bush beginning in the fall of 2003—led to controversy among its members about the degree to which the Security Council could issue generic resolutions under Chapter VII. Although the Council already pursued such a tack in its Resolution 1373 (Szasz 2002; Ward 2003), this policy deviated from past practice as it did not just address a specific threat to international peace and security but contained broad-based requirements for UN member states to take action in response to the largely unspecified threat of terrorism with nuclear, biological, and chemical (NBC) weapons (Lavalle 2004; Joyner 2007). “India, New Zealand, Pakistan, and others argued that the Security Council had overstepped its bounds by imposing generic obligations” (Heupel 2008: 96). The alternative pattern of responses to international terrorism—that is, the negotiation of an international convention or treaty, however, has been characterized as a “patchwork” and

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potentially problematic as it “provides no guarantee that a new treaty is made in a timely manner in response to a newly emerging type of terrorism” (Asada 2009: 303). Furthermore, “The idea behind this system [of antiterrorism treaties] is the ex post facto punishment of terrorists and not the prevention of terrorism” (Asada 2009: 313). In addition to the broad legislative character of UNSC Resolution 1540, its exclusive focus on nonproliferation at the expense of corresponding disarmament measures has been criticized, leading to a second set of “grievances” that have resulted in the resolution being “hampered in its effectiveness by serious delays and problems in implementing its obligations” (Heupel 2008: 95). These implementation delays have led the Security Council to passing Resolution 1673 in April 2006 (United Nations 2006e), Resolution 1810 in April 2008 (United Nations 2008c), and Resolution 1977 in April 2011 (United Nations 2011d), the latter of which is extending the mandate of the so-called 1540 Committee for an additional ten years until 2021. The preamble of the original 2004 resolution contains several important definitions and noteworthy qualifications when compared to BWC and CWC. Resolution 1540 in its fifth and sixth preambular paragraphs establishes clear links to already existing regime structures by expressing its support for “the multilateral treaties whose aim is to eliminate or prevent the proliferation of nuclear, chemical or biological weapons” and welcoming “efforts in this context by multilateral arrangements which contribute to non-proliferation.” While the right to the peaceful uses of chemistry, biology, and nuclear technology are not questioned, the resolution notes that such “goals of peaceful utilization should not be used as a cover for proliferation” (United Nations 2004e: 2). In addition, the Security Council in Resolution 1540 recognizes that most states are parties to the relevant international treaties and arrangements, but still regards additional steps as necessary to adequately address the threat from NBC terrorism. It therefore establishes in the operative paragraphs of the resolution a requirement for states to refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery; . . . adopt and enforce appropriate effective laws which prohibit any non-State actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery;

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. . . take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery, including by establishing appropriate controls over related materials. (United Nations 2004e: 2–3)

The last of these obligations is further subdivided into material accountancy, physical protection, border control, and export control measures that states are expected to develop and maintain. As one observer has rightly pointed out, these “obligations are extensive and potentially demanding in terms of resources” (Ahlström 2007: 467). In addition to reiterating its compatibility with existing nonproliferation and disarmament treaties in its operative paragraphs, Resolution 1540 establishes a reporting requirement for states (first within six months after adoption of the resolution), recognizes that some states may require assistance in implementing all the requirements domestically, and also creates a Committee of the Security Council (henceforth the 1540 Committee) to receive these reports and inform the Council of progress made in implementing the resolution. Lastly, UNSC Resolution 1540 encourages states to take cooperative measures to prevent the illicit trafficking of NBC materials, thereby providing legal cover for the activities under the Proliferation Security Initiative (PSI, discussed in the next section). In terms of actual implementation of the resolution by the Security Council and, more importantly, UN member states, the first report of the 1540 Committee submitted to the Council on 2 December 2004 summarized the initial organizational measures undertaken by the committee to become fully functional, such as adopting its own guidelines and the hiring of four experts to process the incoming reports by states. It also lists the 86 UN member states (out of then 191) who had submitted their original report by the deadline stipulated in Resolution 1540 (United Nations 2004f). By the time the 1540 Committee submitted its third report to the Council in April 2006 this number had increased to 129 (United Nations 2006f). “In response to the examination of the first national reports by the Committee, seventy-nine States provided additional information” (United Nations 2006f: 2). All of this information was collated by the 1540 Committee in a comprehensive matrix to visually represent the information available from each individual state. In addition, the committee established a legislative database providing, where available, links to the original texts of national laws and regulations (United Nations 2006f: 8–9). Of the sixty-two states who had not submitted a first report in April 2006, fifty-five were located in Africa,

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the Caribbean, and the South Pacific. This led the committee to recommend an increase in regional activities in order to raise awareness and provide implementation assistance where required. The committee also reiterated the ongoing nature of the implementation tasks required by Resolution 1540 and therefore recommended extending the mandate of the committee by another two years, until April 2008. The Security Council responded with Resolution 1673 (2006), which it also adopted under Chapter VII of the UN Charter. In it, the Council reaffirms the importance of the resolution’s full implementation by all states without delay. As one observer has highlighted, “Interestingly, the operative paragraphs containing (legally binding) decisions by the Security Council are directed at the 1540 Committee, rather than at the recalcitrant member states” (Ahlström 2007: 472). Engagement of states by the 1540 Committee and cooperation and assistance activities among member states continued following the adoption of Resolution 1673 and included regional seminars in Beijing, Accra, and Lima (United Nations 2006g; 2007c; 2007d). These efforts allowed the 1540 Committee to report progress in some areas of implementation of the resolution, for example, with respect to the “number of States that have instituted legislative measures to penalize the involvement of non-State actors in the prohibited activities” contained in Resolution 1540 (United Nations 2008d). From 2006 to 2008 the number of states reporting such measures increased from fourteen to sixty-three (United Nations 2008d: 7). The 2008 report of the 1540 Committee also provides some important insights related to issues of regime complexity. When comparing reported measures for the prohibition of both CW and BW, the committee found that Compared with that for biological weapons, . . . national legislation on chemical weapons and their means of delivery provides a more complete picture, in large part owing to provisions for implementing mechanisms under the Chemical Weapons Convention. . . . Analysis of the implementation of prohibited activities formulated in resolution 1540 (2004) but not covered by the Chemical Weapons Convention gives a result somewhat similar to that for biological weapons, in that only the prohibition of transport does not appear in the provisions of the Chemical Weapons Convention. (United Nations 2008d: 8)

Despite the gaps in national implementation under the CWC, having a detailed set of norms, rules, and procedures to follow under the CWC—even if incompletely internalized—produces better results

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than relying on the initiative of BWC states parties to implement the very generic stipulation contained in BWC Article IV on national implementation. With a clearer picture of the gaps in national implementation of Resolution 1540, the focus of activities of the 1540 Committee shifted from information gathering and asking for clarification from states to providing implementation assistance. Given its continuous limited resource base, the 1540 Committee sought to develop more and more into a clearinghouse for assistance requests and offers of assistance provision. This task was explicitly contained in UNSC Resolution 1810 (2008). In addition to extending the existence of the 1540 Committee until April 2011, Resolution 1810 also requested the committee to present annual work programs to the Council, to complete by 31 July 2008 the implementation report requested in Resolution 1673, and to consider conducting a systematic review of the implementation of Resolution 1540 before 31 January 2009 (United Nations 2008c). The modalities of such a comprehensive review were presented to the Security Council in March 2009 and the review itself undertaken “from 30 September to 2 October 2009, including a general debate and three interactive thematic sessions dealing with specific topics identified in the modalities paper” (United Nations 2010b: 3). The committee focused the review “on how it could better address critical issues and identify new approaches to facilitate implementation of the resolution” (United Nations 2010b: 2). More specifically, the review document addresses issues relating to the information-gathering capacity of the 1540 Committee and the use of the matrix to organize information submitted by states, the committee’s working practices, means of facilitating assistance, the committee’s cooperation with regional and global international organizations, and the committee’s outreach activities. With a view to established practices, the review document acknowledged that “export control lists are used in promoting the implementation of resolution 1540,” but also cautioned that there is a “need for a long-term focus to address these non-proliferation challenges through cooperation with and among Member States” (United Nations 2010b: 6). Reiterating this latter assessment, the Security Council in April 2011 noted, in Resolution 1977, that “the full implementation of resolution 1540 (2004) by all States, including the adoption of national laws and measures to ensure implementation of these laws, is a long-term task that will require continuous efforts at national, regional and interna-

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tional levels” (United Nations 2011d: 2). The Council therefore extended the committee’s mandate until 2021 and for the committee to conduct comprehensive reviews of the implementation of Resolution 1540 in 2016 and before the expiry of the extended mandate (United Nations 2011d: 3). Resolution 1977 also urges states and the committee to expand assistance activities in order to facilitate implementation of Resolution 1540. The September 2011 report by the 1540 Committee provided a detailed update on implementation progress since 2008, which, while acknowledging that some states had made some progress in implementing the provisions of the resolution, provided further evidence for the above assessment that continued efforts are required (United Nations 2011e). In sum, the operative paragraphs of Resolution 1540 strengthen several of the core norms of the CBW prohibition regimes, such as the ones on non-acquisition, non-transfer, and so on. However, in addition to legal considerations concerning the lawmaking powers of the UN Security Council, and the omission of the disarmament dimension in the resolution, the question of state capabilities for putting into practice the substantive paragraphs and reporting the measures taken to the 1540 Committee has dominated much of the debate around Resolution 1540. With a view to the latter issue, Thomas J. Biersteker has pointed out that to merely increase national reporting rates is not sufficient. Instead, he argues, the 1540 Committee “must deal with the duplication of existing reporting and increase coordination with existing international institutions with specialized capabilities in the management of nuclear, chemical and biological materials” (2007: 39). Existing arrangements with the World Health Organization and others, or the memorandum of understanding with the OPCW, appear to focus on the conduct of nonroutine inspections and the rules and procedures that will apply in case of an investigation of alleged use—that is, they address regime complexity in relation to the investigation norm of the CBW prohibition regimes, but not with a view to the declaration norm. As discussed in Chapter 3, this norm is largely absent in the case of the BW prohibition regime, and attempts have been made to compensate for this through introduction of a transparency norm revolving around the annual submission of CBMs by BWC states parties. However, as Angela Woodward points out, “UNSCR 1540 does not seek to address this lacuna in the BW regime, but it does add another supportive layer to the normative framework for the non-proliferation of biological weapons” (2007: 109).

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The Proliferation Security Initiative

The Proliferation Security Initiative (PSI) was formally announced by George W. Bush, then US president, during a speech in Krakow, Poland, on 31 May 2003, when he stated, “Today I announce a new effort to fight proliferation called the Proliferation Security Initiative. The United States and a number of our close allies, including Poland, have begun working on new agreements to search planes and ships carrying suspect cargo and to seize illegal weapons or missile technologies” (Bush 2003). PSI is neither based on an international treaty nor does it create a new international organization or have a standing secretariat at its disposal (Cupitt and Jones 2006). Instead, it seeks to foster participating states’ nonproliferation objectives by interdicting nuclear, biological, and chemical weapons, delivery systems, and related materials largely based on the improved implementation of existing national laws and regulations. As Jack I. Garvey has noted, “The PSI addresses WMD transport both by air and by sea, although the likely venue for interdiction through the use of force is maritime shipping rather than air transport, for obvious practical and political reasons” (Garvey 2005: 126–127). During one of the first PSI meetings in Brisbane in 2003, participants “strongly supported the strengthening of the existing framework of national laws and export controls, multilateral treaties and other tools which remain the international community’s main means for preventing the spread of WMD and missiles” (Proliferation Security Initiative 2003). Targets of the group’s activities were identified as “countries which cheat on their international obligations, refuse to join existing regimes or do not follow international norms, and for non-state actors seeking to acquire WMD” (Proliferation Security Initiative 2003). The initial group of PSI participants—Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, the United Kingdom, and the United States—agreed in September 2003 a set of interdiction principles to guide participants’ behavior. Here again, an effort was made to embed PSI activities into the larger normative framework guiding participants’ nonproliferation efforts by recourse to the January 1992 UN Security Council Presidential Statement, “which states that the proliferation of all WMD constitutes a threat to international peace and security, and underlines the need for member states of the UN to prevent proliferation” (US Department of State 2003). As Christer Ahlström has pointed out, this 1992 UNSC Presidential Statement “carries significant political value,” but its “legal impact . . . is limited, as it

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was not adopted in the form of a binding resolution under Chapter VII of the UN Charter” (Ahlström 2005: 762; emphasis in original). The operational parts of the statement of principles (SOP) include a call on all states concerned with this threat to international peace and security to join in similarly committing to: Undertake effective measures, either alone or in concert with other states, for interdicting the transfer or transport of WMD, their delivery systems, and related materials to and from states and nonstate actors of proliferation concern. . . Adopt streamlined procedures for rapid exchange of relevant information concerning suspected proliferation activity, protecting the confidential character of classified information provided by other states as part of this initiative, dedicate appropriate resources and efforts to interdiction operations and capabilities, and maximize coordination among participants in interdiction efforts. Review and work to strengthen their relevant national legal authorities where necessary to accomplish these objectives, and work to strengthen when necessary relevant international law and frameworks in appropriate ways to support these commitments. Take specific actions in support of interdiction efforts regarding cargoes of WMD, their delivery systems, or related materials, to the extent their national legal authorities permit and [are] consistent with their obligations under international law and frameworks. (US Department of State 2003)

According to one analyst, the reference to existing national legal authorities and international legal obligations is important, as it signifies that no new legal authority was originally sought in the PSI context and that the PSI principles in and of themselves are not expected to become legally binding (Ahlström 2005: 758). This institutional limitation has since been superseded by the legally binding UNSC Resolution 1540, the negotiation of bilateral shipboarding agreements, and agreement in October 2005 on a Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA), the latter two of which have been collectively labeled the “new WMD interdiction treaties” (Guilfoyle 2007: 3). In addition, some analysts have criticized “the principles [that] are characterised as comporting with established law of the sea and the various jurisdictional standards that were articulated in the Law of the Sea Convention” (Garvey 2005: 129) for failing to live up to this ambition. However, according to Garvey, “close inspection of the claimed adherence to the law of the sea reveals . . . a significant departure from the established legal ordering of

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the seas that severely compromises international legitimacy for the use of force” (Garvey 2005: 130). These legal concerns notwithstanding, the original PSI core members have been actively pursuing their ambition to expand PSI participation. As a result, the original number of eleven states subscribing to these interdiction principles has grown substantially since 2003, with St. Lucia in July 2012 being the one hundredth state to endorse the PSI principles. Twenty-one of these states constitute an informal coordinating structure, called the Operational Experts Group, which meets two to three times a year and “discusses proliferation concerns and plans future exercises” that are conducted in addition to these “high-level meetings” (Nikitin 2012: 2) and whose main purpose is “to test interdiction techniques” (Nikitin 2012: 2). In addition to expanding the number of PSI participants, a further focus of activities has been the conclusion of shipboarding agreements, especially with so-called flag of convenience nations. As Mary Beth Nikitin explains, When a merchant ship registers under a foreign flag to avoid taxes, save on wages or avoid government restrictions, it is called a flag of convenience (FOC). FOCs are of particular concern for proliferation reasons because of looser government regulations over their shipments and the ease with which ships can switch from one registry to another to avoid tracking. Thirty-two countries have flags of convenience or “open” registries. (Nikitin 2012: 4)

Of these thirty-two countries, eleven are participating in PSI, including Panama and Liberia, under whose flags the highest volume of trade is shipped. As Ahlström summarizes, if the United States—or, in theory, another PSI participant—suspects the presence of WMD materiel in transit, it should request permission from the FOC state to first “confirm the claim of nationality of the suspect vessel”; second, “if the claim of nationality is confirmed, to board and search the vessel”; and third, “if evidence of WMD proliferation is found, detain the vessel, its crew and the goods” (Ahlström 2005: 756). In principle, the FOC state may reject the request and conduct the interdiction and search operation itself. However, as one critical observer has pointed out, The superficiality of the bilateral flag-of-convenience modality is . . . evident in the design for actual implementation of the PSI under the flag-of-convenience bilaterals. Under these bilaterals, a requesting party may ask for the authority to board a suspect vessel and the flag state has two hours to respond to the request. Two hours is obviously

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a period of time grossly inadequate to assess the credibility of a request for interdiction and the interests involved. (Garvey 2005: 133)

However, another commentator has noted, “The easily overlooked point is that these time-limit provisions only apply where the request has been acknowledged and there has been no response. Any reply, even one stating more time is required, will ‘stop the clock’” (Guilfoyle 2007: 24). In addition to these bilateral agreements, international efforts to strengthen the legal framework and policies aimed at WMD interdiction have included a Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) adopted in London on 14 October 2005 by the International Maritime Organization (IMO). It has been characterized as “an ambitious document—being at once an effort to create a new international crime of proliferation, several new terrorist offences, a shipboarding regime and a method of strengthening the Treaty on the Non-Proliferation of Nuclear Weapons—negotiated within a large multilateral forum, the IMO legal committee” (Guilfoyle 2007: 28). Quoting Australian diplomats and IMO officials, some analysts attribute conclusion of the 2005 SUA Protocol at least partially to the involvement of PSI participants (Malirsch and Prill 2007; Belcher 2011). As the following summary of the newly introduced Article 3bis of the SUA shows, its scope—contrary to what the Douglas Guilfoyle quote above might suggest—is not confined to nuclear weapons but covers CBW, too. The 2005 protocol extends the list of offenses to include, inter alia, any person who “uses against or on a ship or discharging from a ship any explosive, radioactive material or BCN (biological, chemical, nuclear) weapon in a manner that causes or is likely to cause death or serious injury or damage; . . . transports on board a ship any BCN weapon, knowing it to be a BCN weapon” (International Maritime Organization 2005: 6–7). The SUA Protocol entered into force on 28 July 2010 and in mid-2012 has been binding upon 22 of the 160 original 1988 SUA Convention states parties (International Maritime Organization 2012). Although these 22 states represent only around 30 percent of world shipping (International Maritime Organization 2012), the legalization of the informal PSI approach in the 2005 SUA Protocol suggests that initial criticisms of the US administration continuing to conceive of PSI as a mere collection of bilateral “interdiction partnerships” (Garvey 2005: 130) were unfounded. Instead, if linked back into a formal institutional framework, the 2005 SUA Protocol shows that

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“the formation of an informal coalition with a view to solving certain problems does not necessarily pose a threat to the existing international legal framework” (Malirsch and Prill 2007: 140) in a given issue area. A similar legalization of the PSI interdiction principles was sought in relation to UNSC Resolution 1540 (2004), but as commentators have highlighted, this attempt was thwarted by China during UNSC deliberations of the resolution. Its operative Paragraph 10 therefore does not contain the term “interdiction” and instead “calls upon all States, in accordance with their national legal authorities and legislation and consistent with international law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials” (United Nations 2004e: 4). Thus, while the integration of the PSI activities into the law of the sea has been partially successful via the inclusion of its interdiction principles into the 2005 SUA Protocol, the same cannot be said for the CBW prohibition regimes. With respect to UNSC Resolution 1540, the wording has been weakened and integration into the implementation of the CWC or BWC is practically absent. This gap is somewhat surprising as PSI principles overlap with the internalization and non-transfer norms of the CBW prohibition regimes. With respect to the linkage between PSI principles and the CBW prohibition regimes in the form of the nontransfer norm, this is conceptually different from export control arrangements typically discussed under this normative guidepost for state action (see Chapter 5), but could be conceived of as an extension of export and border controls. Yet, as the analysis of implementation shortcomings in the two prohibition regimes (see Chapters 3 and 4) and in relation to the obligations under UNSC Resolution 1540 have shown, several more immediate areas of effective operationalization of the internalization norm are awaiting realization. The fact that both BWC and CWC “provide for the right to transfer dual-use goods for peaceful purposes” represents a further complicating factor in this regard (Ahlström 2005: 755).

Conclusion

In this chapter I set out to analyze four different institutional mechanisms that are overlapping with and have complemented the CBW conventions in an effort to close existing gaps and adapt the two prohibition regimes to new challenges. When the UN Secretary-General’s mechanism to investigate alleged chemical and biological weapons use was

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established, this mechanism sought to address the absence of a usable set of rules and procedures under the investigation norm of the BW prohibition regime. Negotiations for the CWC were still ongoing at that time. Interest in the SGM waned after the CWC had entered into force and BWC states parties were negotiating a compliance protocol during the second half of the 1990s. However, the pendulum of interest in and proposals and activities surrounding the SGM swung back over the last decade, when it had become clear that a multilaterally negotiated operationalization of the BW investigation norm was not achievable in the foreseeable future. The fact that the SGM also covers CW investigations of alleged use has made it necessary to coordinate the mechanism with the rules and procedures put into place by the OPCW under the CWC investigation norm. Both UNSCOM and UNMOVIC had a special institutional quality to them insofar as they were established not to deal with a thematic aspect or subfield of the CBW prohibition regimes but an individual country. The corresponding Security Council resolutions were adopted under Chapter VII of the UN Charter. One of the key lessons to be learned from these institutional arrangements is that even with all the obstacles that Iraq created in order to prevent UNSCOM inspectors from accomplishing their tasks, coercive disarmament can work, even though “the success was not acknowledged with certainty until after several months of foreign military occupation” (Pison Hindawi 2012: 417). Yet, even once the effectiveness of UNSCOM’s work had become undisputable, it did not lead to a feedback loop that would have informed the evolution of the multilaterally agreed core of the BW prohibition regime—that is, the work of the BWC intersessional process. As discussed in Chapter 3, strengthening of the investigation norm in the ISP context has not been high on the agenda of BWC states parties, apart from references to the UN Secretary-General’s mechanism and its strengthening. In other words, the lessons of the UNSCOM experience are still waiting to be utilized for strengthening the BWC. While both UNSC Resolution 1540 and the work of its committee, as well as the Proliferation Security Initiative, have been responses to changing threat perceptions in relation to CBW and beyond (incorporating the experience with nuclear and missile component smuggling), the legal foundations of these two institutional arrangements could not be more different, with the latter of the two having its origins in a US initiative, gathering a group of like-minded states. Given the breadth of Resolution 1540 and its legally binding character due to its adoption under Chapter VII of the UN Charter, it almost establishes a parallel

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regime to the declaration, internalization, and non-transfer norms as contained in the CWC. Given the much higher rule density in the CWC than the BWC context, the demand for coordination of declaration and other obligations for states is clearly greatest here. Although initially criticized for its undemocratic genesis in the UN Security Council, this criticism seems to have become more muted in recent years as the focus of 1540 Committee activities has shifted more toward capacity building, thereby supporting the widened understanding of the assistance norm in the CBW prohibition regimes. The group of like-minded states’ PSI under US leadership, in contrast, started its existence as an ad hoc arrangement and is only slowly becoming legalized, partially prompted by its overlap with another body of international law: the laws of the sea. In contrast to the explicit mentioning of the interdiction concept in this context, its inclusion in Resolution 1540 was possible only in a weakened form. Clearly, even though the operationalization of the non-transfer norm through export control measures has gained increasing acceptance over the past decade, the same cannot be said for its extension to the interdiction of shipments after export controls have failed to prevent a transfer. In sum, the additional institutional arrangements reviewed here have been created with a variety of purposes. They address gaps in the existing CBW prohibition regime structures, have dealt with specific country cases, or establish a parallel authority to oversee the implementation of the internalization norm under the authority of the UN Security Council, and not in a multilaterally agreed, treaty-centered forum. The extent to which this approach has created positive synergies is difficult to assess in the case of the SGM to investigate alleged use of CBW, as this mechanism has not been tested to date. However, some of the negative effects of regime complexity identified in the literature, such as “turf battles and failures to coordinate efforts” (Alter and Meunier 2009: 20), do not appear to have had a detrimental effect on norm implementation either.

8 Science, Policy, and Institutional Change

In this study I have been drawing on theories of international

regimes, and international institutions more broadly, to provide a conceptual framework for the analysis of international efforts—mostly treaty-based but increasingly also in the form of soft law (Abbot and Snidal 2000)—to prohibit chemical and biological weapons (CBW). As discussed in the introductory chapter, in doing so, the four-part definition of international regimes as provided by Stephen D. Krasner (1982) was taken as a starting point, with subsequent analysis of the CBW prohibition regimes focusing mostly on the level of regime norms, for reasons of practicality. In addition, the existence of the two regimes to prohibit CBW, revolving mostly around the Chemical and Biological Weapons Conventions (CWC, BWC), was taken as a given. Reviewing the content of these two multilateral treaties has allowed the identification of the core set of regime norms, whose evolution over time has been analyzed. More recent additions to international regime scholarship focusing on the emergence of nonstate actors in a clearly statecentric concept (Arts 2000), as well as the notion of regime complexity (Alter and Meunier 2009), have allowed for the accounting of additions to the institutional fabric of the CBW prohibition regimes in terms of agency and regime structures. Different strands of the broader institutionalist literature have further informed the conduct of the analysis in these areas:

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1. Normative institutionalists supporting the notion of an ontologically prior set of institutional structures (March and Olsen 2006)—regime norms, in the case of this study—which provide guidance for actors’ formulation of policies in a particular issue area, such as the prohibition of CBW 2. Recent, more moderate historical institutionalist scholarship pointing toward the predominance of incremental over abrupt institutional change (Mahoney and Thelen 2010) 3. The reminder contained in constructivist-oriented institutionalist approaches that not only material structures but also ideational ones have an impact on the formulation of policies and hence the evolution of regimes and institutions (Hay 2006; Béland 2009) The overall goal in this rather eclectic combination of approaches has been to achieve as “complete [an] interpretation of the complexities of institutional life” in the CBW prohibition regimes as possible in the space available (Peters 2011: 126).

Science, Technology, and Political Contexts

A number of material and ideational factors also provide the wider political—and in the case of the CBW prohibition regimes—the scientific and technological (S&T) context in which the regimes are embedded. As the latter one was recognized already in the negotiating phase of the BWC and CWC, in Chapter 2 I introduced some of the key chemical and biological warfare agents as well as more recent developments in the life sciences, such as the convergence of parts of chemistry and biology and the emergence of synthetic biology. In case of both prohibition regimes, the respective S&T contexts—in combination with the larger geopolitical environment—have impacted on the shape and normative content of the resulting institutions. In the BW case, the Cold War political environment precluded agreement on a verification principle that would have been supported by declaration and inspection norms in implementing the BWC or a strong institutional base for the adaptation norm underlying regular S&T reviews. In the late 1980s and early 1990s the wider political context was much more conducive for measures to verify the non-acquisition of CW through misuse of chemical industry facilities and a stronger institutional grounding of the adaptation norm through the establishment of a Scientific Advisory Board in the CWC context. As I outlined in Chapter 3, these geopolitical consid-

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erations were complemented by domestic considerations of the main protagonists pushing for the conclusion of the BWC in the late 1960s. Similarly, negotiation of the CWC in the second half of the 1980s was informed by input from the chemical industry, whose support was required for subsequent treaty ratification in a number of CWC states parties. Thus, both CBW prohibition regimes are characterized by a close relationship between S&T and the shape and content of the regimes at their formative stages. I analyzed in Chapters 3 and 4, respectively, attempts since then to keep the regimes current with S&T developments. Such efforts to operationalize the adaptation norm had to contend with a revolution in the life sciences that has recently witnessed parts of chemistry and biology converging in the areas of biologically mediated production of chemicals and the chemical production of biological molecules. This environment has created new challenges for the CBW prohibition regimes, where up until recently, silo thinking within each individual regime has been the standard mode of operation. A further tension in both regimes has been identified between the legitimate efforts of states seeking to prohibit CBW and suspicions that they may be pursuing in particular biodefense policies that may cross the line into offensive research or development. With the protection principle in both regimes permitting defensive measures, concerns about these being a pretext for a clandestine offensive weapons program could theoretically be alleviated by adequate transparency measures. However, too much transparency of biodefense efforts may undermine their very purpose by revealing critical vulnerabilities. Thus, although some transparency is essential when much of the determination of the defensive or offensive nature of BW-related research and development depends on a judgment of intent, determining its exact nature is fraught with problems in an area that “involves materials, activities, and expertise that could be misused for offensive BW work with fewer technical barriers to conversion than typical civilian biological research” (Bansak 2011: 352). As Kirk C. Bansak further notes, based on historical examples, it is “the addition of hostile relations that transformed the dual-use dilemma from a descriptive concept into a problem of misperceptions with real consequences” (2011: 360). Such consequences can be expected to also be visible in the development of a regime such as the one prohibiting BW that is devoid of any substantial mechanisms to ascertain compliance by its member states. A further significant development of the political context in which the CBW prohibition regimes are set occurred with the emergence of CBW terrorism being perceived as a major threat in the second half of

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the 1990s. The conceptual underpinning of this changed threat perception was provided by the posited convergence of the increasing ease of acquisition of CBW-related material, technology, and knowledge, and the growing casualty numbers resulting from terrorist attacks. Following the 11 September 2001 and anthrax terrorist attacks in the United States, this dramatically changed threat perception was projected outward and began to manifest itself in the BW prohibition regime, where a window of opportunity for a redirection of regime development presented itself at the end of the second stage of regime evolution after the collapse of the Ad Hoc Group negotiations in the summer of 2001. Thus, changing ideas about the relative threat of state-level BW programs—which up to this point had been the sole focus of the CBW prohibition regimes—and terrorist use or threat of use of CBW began to exert an effect on regime evolution in the context of implementing and strengthening the two multilateral disarmament treaties at their center.

Treaty Implementation and Normative Evolution

The BW prohibition regime I analyzed in Chapter 3 has at its core the Biological Weapons Convention with the quinquennial review conferences still providing the primary forum for the deliberation of treaty implementation and strengthening. In other words, the seven review conferences that have taken place since the BWC’s entry into force in 1975 and the consensual review documents normally produced by BWC states parties on these occasions provide a focal point that lends itself to an analysis of norm interpretation, contestation, or reconfirmation as captured in Figure 1.1 (see Chapter 1). From a historical institutionalist perspective, then, the review conferences also are most likely to provide critical junctures in the regime’s evolution. In the BW prohibition regime, such institutional development has occurred in three stages, with the first one lasting for two decades after the BWC entry into force—from 1975 to 1995. Regime development in this phase was focusing on its substantive norms—and less on the establishment of organizational support structures—with the promotion of a new transparency norm, after compliance deficits concerning the non-acquisition norm were strongly suspected. However, these efforts to compensate for the absence of legally binding declaration and inspection norms through the establishment of the 1986 and 1991 confidence-building measures (CBMs) can only be assessed as a partial success at best, given poor

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return rates and the still continuing efforts to improve CBM relevance and implementation in the current third BWC intersessional process. During the last few years of this first stage, the basis for the second stage was set by a process to explore the possibility of adding a verification principle to the regime’s institutional fabric. The work of the verification experts (VEREX) group led to the 1994 Special Conference of BWC states parties that created the Ad Hoc Group (AHG) process to negotiate a legally binding compliance protocol to the BWC. These negotiations, which lasted from 1995 to 2001, marked the second stage in the BWC’s evolution. They represented a substantial effort at institutional layering by adding declaration and inspection norms (with supporting rules and procedures) to the substantive regime structure, and agency in the form of an international organization to oversee the implementation of the convention. If negotiations of the AHG had been successful, implementation of a number of existing norms would have been strengthened by new rules and procedures for their operationalization, such as the investigation norm that is developed only in a very basic form in BWC Article VI and which, for its implementation, still depends on UN Security Council or UN Secretary-General action. In addition, through the cumulative effect of these improvements, the BWC Compliance Protocol over time would likely have provided greater convergence of states parties’ expectations as to appropriate— norm-guided—behavior across the spectrum of principles and norms expressed in the BWC. The third and current stage of the BWC’s evolution began in 2001–2002 with the collapse of the AHG negotiations and the interrupted Fifth BWC Review Conference, and will continue at least until the Eighth BWC Review Conference in 2016. This third stage coincided with the emergence of CBW terrorism being perceived as a major threat. This past decade of regime evolution in the BWC context has been characterized by a shift from the notion of adding to the set of regime norms to an attempt at improving implementation of existing regime norms. Particular emphasis during the ISP cycles between two BWC Review Conferences has been put on the internalization, assistance, cooperation, and adaptation norms. The promotion of a laboratory-focused understanding of biosecurity as part of this process has been balanced by the inclusion of oversight, education, codes of conduct, and public health–related issues. The operationalization of the internalization norm saw a diversification of measures going beyond the continued emphasis of implementing legislation and into the

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areas of education, outreach, and codes of conduct. A concomitant development was the inclusion of new actors from the life science and the public health communities into the deliberative process by BWC states parties during the intersessional processes (ISPs). The involvement of members of the first group also led to a stronger linkage between the internalization and adaptation norms. So far, however, ISP activities in this area are limited to the monitoring of new science and technology (S&T) in the life sciences. More advanced cooperation to jointly assess these developments or even agree on appropriate governance measures to prevent the misuse of the revolution in the life sciences is not foreseen in the third ISP’s mandate to 2016. This dovetails with the general approach pursued by BWC states parties to strengthen the internalization, adaptation, and cooperation norms of the regime, by elevating their discussion to Standing Agenda Items during the third ISP cycle, and the transparency and assistance norms each to be addressed during two of the four years. However, while this improved format for dealing with any of these issues continues to allow for the inclusion of additional governance actors, it does not contain a mechanism for actually building on the annual discussions in a systematic way by joint assessments or the formulation of common policies that would be legally binding on states parties. In other words, the most likely outcome of the current stage of regime evolution will be increased transparency of states parties’ activities in selected areas of implementation and to further common understandings that remain in the realm of soft law. As I detailed in Chapter 4, the CW prohibition regime is unique among nuclear, biological, and chemical (NBC) regimes in that it prohibits a weapons category and establishes in CWC Article VIII a new international organization, the Organisation for the Prohibition of Chemical Weapons (OPCW), for its implementation. Unfortunately, a consensus-driven culture for substantive decisions, which has developed especially in the organization’s Executive Council, has over the first fifteen years of its existence led to lists of unresolved issues and drawn-out facilitation processes. Only two major decisions have been taken by a vote of OPCW member states: the dismissal of the first Director-General in 2002 by a vote of the Executive Council and in 2011 concerning three CW possessor states’ inability to meet the 29 April 2012 deadline for the complete destruction of their CW. In light of the constant search for the lowest common denominator for decisionmaking, and also in view of the establishment of the organizational and regime structures after the CWC’s entry into force, the degree of observable institutional change is minimal. Furthermore, key differences among states parties with respect

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to the interpretation of certain regime norms—for example, in relation to non-transfer and international cooperation—have also limited the rate of adaptation of the regime to external changes, such as industrial developments or S&T advances. As my analysis shows, in spite of some CW possessors missing the extended destruction deadline of 29 April 2012, the disarmament norm of the CW prohibition regime has seen substantial progress toward its realization. The decision taken by the Conference of States Parties during its sixteenth session in December 2011 results in a de facto conversion of the disarmament norm from an obligation that is tied to a set date for its achievement to one in which the affected CWC states parties themselves have been asked to specify an achievable target date for realizing the goal of complete elimination of their CW arsenals. A second key regime norm, the non-acquisition of CW, is not officially challenged by any CWC state party. However, interest in so-called incapacitating chemical agents (ICA) might in the medium to long term lead to a reinterpretation of what is regarded as a chemical weapon under the CWC by introducing a scientifically problematic (non)lethality criterion. In addition, competing definitions of what ICA is to mean, such as the recently proposed NATO definition, will, in institutional terms, increase the environmental pressure on the non-acquisition norm, might preempt a discussion of ICA among CWC states parties and thus result in normative drift. Regime norms in support of preventing the reemergence of chemical weapons have been equally contested. As I detailed in Chapter 4, the bone of contention here relates to other chemical production facilities (OCPF), where an overall increase in numbers of inspections and a redistribution of inspection loads will have distributional effects that might undermine lock-in effects realized by some CWC states parties in the form of small numbers of industry inspections. Not surprisingly, tensions could be observed in the discussions about the selection methodology for OCPF inspections, that is, the rules and procedures for putting the inspection norm into effect in this particular area of norm operationalization. Analysis of implementation of the internalization norm uncovered a bifurcated CWC membership, only approximately half of which is implementing all key provisions of the convention domestically. This situation raises questions as to the effectiveness of the regime in determining the behavior of its participants and in achieving its goals, as some of the countries not implementing fully represent a weak spot insofar as their legislative and administrative shortcomings could be exploited by a determined CW proliferator. In light of potentially severe consequences for the regime, continued

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assistance activities to enable more CWC states parties to implement all obligations under the convention will be required, and considerations of chemical safety and security can be expected to increasingly come into play. This situation is linked to the slow but steady emergence of chemical terrorism and discussion of related concepts of chemical safety and security. Whereas the policymaking organs of the OPCW acknowledged the new threat dimension as early as 2001, the operationalization of the provisions of the CWC has focused on destruction of existing CW stockpiles, CW nonproliferation, national implementation, and international cooperation and assistance activities. Concrete steps to address chemical terrorism were pursued by the OPCW’s Technical Secretariat from 2005 onward. Participating in wider UN activities to combat chemical, biological, radiological, and nuclear (CBRN) terrorism, such as the UN Counter-Terrorism Implementation Task Force (CTITF), the OPCW has been trying to position itself as a forum or platform for the coordination of chemical security–related activities. This approach overlaps with the continuation of efforts to help CWC states parties to better implement the assistance norm. Although a large number of activities to achieve a high level of preparedness can be observed for events in which the protective capabilities of a CWC state party are overwhelmed, so far no real case has occurred to test the practicability and resilience of the procedures. While greater transparency in national protective programs could facilitate preparations for such a contingency, the probability of such increased openness continues to be limited by dual-use concerns and defensive military programs. The consultation and investigation norms have so far not been formally invoked. While consultations among member states have undoubtedly taken place on a number of issues, the formal consultation process ascribed to the Executive Council has not been utilized to date. The same applies to the investigation norm, in the areas of the conduct of challenge inspection and of investigation of alleged use rules and procedures. An area of concern from an institutional perspective has been unsuccessful attempts to convert the normative regime structure linking the consultation and investigation norms by establishing a sequential causal relationship. In addition, the longer it takes for a challenge inspection to be requested, the more difficult it will become politically to realize this aspect of the investigation norm. The norm could be displaced by the generally accepted notion that the political costs for requesting a challenge inspection are too high. Similarly, CWC states parties have been reluctant to implement the adaptation norm by, for example, following the advice of the OPCW

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Scientific Advisory Board (SAB) on a number of issues. When taken to its extreme, the ignorance of the SAB’s recommendations not only seeks to keep the regime on a narrowly defined path in terms of the CWC operation but also to conserve the institution. In light of the revolution in the life and associated sciences plus massive changes in chemical production technologies I discussed in Chapter 2, such a strategy, if it continues to be pursued successfully, risks undermining the CWC’s long-term viability as a central element of the CW prohibition regime.

Complementary Institutional Structures

Beginning in Chapter 5, I introduced institutional arrangements that have complemented the two multilateral treaties at the heart of the CBW prohibition regimes. One of the early such additional arrangements has been the Australia Group, whose operationalization of the non-transfer norm has, since the group’s inception in the mid-1980s, been at the center of a norm conflict about its compatibility with the cooperation norm. This cooperation norm requires states not to hamper trade and to facilitate cooperation in the peaceful, prophylactic, and otherwise not prohibited uses of chemistry and biology. The non-transfer norm, on the other hand, obliges BWC and CWC states parties to ensure that any transfers of material, agents, technology, and knowledge are not contributing to the development of offensive military CBW capabilities. Over time, both the membership and the scope of regulatory activities of the Australia Group have grown significantly. What began as an ad hoc arrangement among like-minded exporting states has evolved into a durable institutional arrangement supported by the majority of technology holders in the area of dual-use chemistry and biology. As I detailed in Chapter 5, the BWC contains only limited guidance for operationalization of the non-transfer and cooperation norms, with negotiations of the Ad Hoc Group in the second half of the 1990s seeking to add layers of rules and procedures to address this deficit in the BW prohibition regime being unsuccessful. During the first decade of the twenty-first century, heightened threat perceptions of terrorist CBW acquisition and use and the adoption of UNSC Resolution 1540 in 2004 led to export controls being increasingly acknowledged as forming part of national BWC implementation measures. As a result, a shrinking number of Non-Aligned Movement states parties have voiced criticisms of the Australia Group and its activities. This trend in the BWC corre-

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sponds to similarly diminished criticisms of the Australia Group’s operationalization of the non-transfer norm over the past fifteen years of CWC implementation. This trend may have been aided by the fact that a large part of CWC states parties is more familiar with national export controls as they are subject to a much denser set of rules and procedures operationalizing the non-transfer norm in this context. In addition, heightened threat perceptions in relation to CBW terrorism as a major risk—aided by yet another layer of export control–related guidance for state action in the form of UNSC Resolution 1540—have over the last decade reduced claims of incompatibility of export controls with the cooperation norm. Still existing criticisms that seek to replace Australia Group export controls with the non-transfer provisions in the CWC do not address the different functions and the resulting structural differences between the two. As they do not duplicate one another but rather are complementary in nature, it is difficult to see how one set of rules and procedures under the non-transfer norm could replace the other. Overall, one can conclude in relation to export controls of the Australia Group that, although isolated pockets of ideologically motivated rhetoric are still observable, most of the earlier criticisms have given way to a new pragmatism on export controls. When the UN Secretary-General’s mechanism to investigate alleged chemical and biological weapons use was established, its purpose was similar to that informing the creation of the Australia Group: to close a gap in the normative structure of the CBW prohibition regimes. As I discussed in Chapter 7, the BWC does not contain a usable set of rules and procedures to operationalize the investigation norm, and negotiations for the CWC were not yet concluded. After initial interest in the Secretary-General’s mechanism for investigating allegations of CBW use waxed and waned, many BWC states parties currently regard the mechanism as the most suitable institutional tool available in the continued absence of a multilaterally negotiated operationalization of the BW investigation norm. In relation to the CW prohibition regime, this has required the negotiation of some agreement to ensure compatibility of the SGM with the rules and procedures put into place by the OPCW under the CWC investigation norm. In spite of all the differences between UN Special Commission on Iraq (UNSCOM) and the UN Monitoring, Verification, and Inspection Commission and the other complementary institutions reviewed, both UN commissions were also addressing a gap in the prohibition regimes that still persists: what to do with a determined violator of the central normative guidelines of the CBW prohibition regimes. Considering the

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state of regime development at the time of UNSCOM’s creation, the BWC, in operation in the early 1990s, was and continues to be illequipped from a structural perspective to deal with such a case, both from the perspective of investigating suspicions of treaty violations and in relation to providing answers to the question, “After detection, what?” that was formulated more than half a century ago by Fred Charles Iklé (1961) in relation to noncompliance with arms control agreements. A key lesson often overlooked from UNSCOM’s work is that even in the confrontational environment that Saddam Hussein’s regime created in order to undermine the destruction and verification of its CBW stockpiles and programs, coercive disarmament achieves its aims. However, even after this point had been realized, it did not have an impact on the work of the BWC ISP, whose focus has been on strengthening norms other than the one on investigations. Given the AHG experience of the 1990s, this approach was undoubtedly deemed too difficult to integrate into the development of the multilaterally agreed core of the BW prohibition regime. As a result, strengthening the investigation norm remains under the purview of the UN SecretaryGeneral’s mechanism. In contrast to the other complementary institutions discussed, UNSC Resolution 1540 and the implementation activities of its committee do not aim to close specific gaps in the normative structure of the CBW prohibition regimes, but to go beyond these in at least three dimensions. First, Resolution 1540 also deals with nuclear and missile technology issues and, as such, is broader in scope than the CBW prohibition regimes. Second, as the resolution has been adopted under Chapter VII of the UN Charter, it is binding on all UN member states, not just states parties to the BWC or CWC. Third, some of Resolution 1540’s substantive provisions go beyond the normative guideposts contained in these two treaties—for example, in relation to border controls. These provisions could be regarded as implicitly contained in the nontransfer norm but are not explicitly operationalized through specific rules and procedures in this area. The considerably more developed set of rules and procedures in the CWC rather than the BWC context creates a bigger challenge for coordination of declaration and other obligations for CWC states parties. In light of the focus of 1540 Committee activities toward national and regional capacity building, which supports the assistance norm in the CBW prohibition regimes, early criticisms of the resolution’s undemocratic genesis in the UN Security Council seem to have become more muted in recent years. A similar effect can be observed in relation to the US-led group of like-minded

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states’ Proliferation Security Initiative (PSI) as the number of participants has grown significantly and the initiative is slowly becoming legalized. However, even though the interdiction of shipments to prevent a proliferation relevant transfer has gained some ground, acceptance of this notion does not go as far as in the case of the operationalization of the non-transfer norm through export control measures. In sum, the complementary institutional arrangements I have reviewed here have been created for a number of different purposes. They address gaps in the existing CBW prohibition regimes’ structures, have dealt with specific country cases, or establish a parallel authority to oversee the implementation of the CBW non-transfer and internalization norms under the authority of the UN Security Council. As a result they overlap with the multilaterally negotiated centers of the CBW prohibition regimes, leading to a situation in which “multiple institutions have authority over an issue, but agreements are not mutually exclusive or subsidiary to another” (Alter and Meunier 2009: 15). This has allowed—and can be assumed to have been triggered by a desire for— “forum shopping” by those states advocating the establishment of the complementary institutions, so as to be able to “strategically select the venue” (Alter and Meunier 2009: 15) for the issue to be addressed.

International Regimes and Institutional Change: Revisiting the Analytical Framework

I have not conceptualized this study as a formal test of any form of regime or institutionalist theory. Yet an in-depth analysis of the CBW prohibition regimes—over a period of four decades in the case of BWC implementation and fifteen years since CWC entry into force, as well as the consideration of essential complementary institutional arrangements that form part of the two regimes—allow for some reflections on the utility of these theories and some of their key concepts. In relation to both prohibition regimes, a combination of normative institutionalist theory with the selective use of Krasner’s four-part regime structure model allows identification and analysis of the key norms of the regimes. Most of these are expressed in the CWC and BWC, but some have also emerged in the course of treaty implementation, such as the transparency norm in the BW prohibition regime. From a normative institutionalist perspective, one would expect regime change to be triggered by either institutional learning or institutional crises. Both could be observed in the BW prohibition regime, which faced the latter in the

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form of offensive military BW programs by both a key player within the regime and states outside the regime. Institutional learning processes could, on the other hand, be observed in relation to what might be called a design flaw of the BWC without compliance measures and, more specifically, with a view to the rapidly changing S&T environment in which the BWC operates. In both categories, however, institutional change was not rapid nor of a fundamental nature. The attempt to negotiate compliance measures in the format of the Ad Hoc Group, which marked the second phase of the BW prohibition regime’s evolution, was abandoned in 2001 and replaced by a renewed focus on the implementation of already existing norms in the regime’s current phase. In both cases, institutional layering could be observed. While in the AHG phase, this effort was focused on additions to the normative fabric, the third phase of successive ISPs has witnessed the thickening of governance in terms of substantive implementation and with a view to the range of governance actors involved. When the new threat of transnational CBW terrorism emerged at the turn of the millennium, states participating in the two regimes reacted similarly to the external shock of the earlier Iraqi CBW programs by establishing complementary institutions under the UN Security Council. Over time, the meaning of core regime norms contained in the BWC and CWC was adapted, to allow for the accommodation of nonstate threats in prohibition regimes that were originally set up to deal exclusively with state-level CBW programs. Thus, the original CBW prohibition regime structures have proven to be resistant to sudden and dramatic changes. Instead, incremental adaptations in the form of institutional layering and contesting the meaning of certain norms have been the preferred course of action of regime participants. Such contestations have in the CWC context occurred with respect to the disarmament norm—where the overwhelming majority of CWC states parties, with the exception of Iran, agreed to change the meaning of the norm in relation to the time line associated with its implementation—and the adaptation norm. Concerning the inspection norm, contestation is still observable with a view to other chemical production facility inspections, and the meaning of the nonacquisition norm might become unsettled if development of so-called incapacitating chemical agents should be pursued by a large number of states parties on a substantial scale. In sum, regime theoretical approaches embedded in wider institutionalist theories allow analysts to map the structures of the CBW prohibition regimes and trace the evolution of their normative content over time. Given the incremental

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nature of changes observed, and barring major shocks that go well beyond the changed threat perceptions from state to nonstate actors as key risks to be addressed, or the admission of the offensive BW program of the former Soviet Union, one should not expect any sudden and drastic changes in the institutional fabric of the CBW prohibition regimes.

Acronyms

ABW ACW AG AHG BDA BTWC BW BWC CB CBM CBRN CBW CD CSP CTITF CW CWC CWDF CWPF CWSF DOC EC EIF ENDC

advanced biological warfare abandoned chemical weapons Australia Group Ad Hoc Group Bilateral Destruction Agreement Biological and Toxin Weapons Convention biological weapon(s) Biological and Weapons Convention chemistry and biology (chemical and biological) confidence-building measures chemical, biological, radiological, and nuclear chemical and biological weapon(s) Conference on Disarmament Conference of States Parties (of the OPCW) Counter-Terrorism Implementation Task Force chemical weapon(s) Chemical Weapons Convention chemical weapons destruction facility chemical weapons production facility chemical weapons storage facility discrete organic chemicals Executive Council (of the OPCW) entry into force Eighteen Nation Disarmament Committee

235

236

Acronyms

EU FOC IAEA IAP IAU ICA ICRC iGEM IMO ISG ISP ISU ITT IUPAC MIT MOU NAM NATO NATO EADRCC NBC NBIC NGO NLT NPT OCPF OCW OEWG OIE OMV OPCW PSI RCA S&T SAB SAI SEB

European Union flag of convenience International Atomic Energy Agency Inter-Academy Panel investigation of alleged use incapacitating chemical agents International Committee of the Red Cross International Genetically Engineered Machine International Maritime Organization Iraq Survey Group intersessional process Implementation Support Unit intangible transfer of technology (intangible technology transfer) International Union of Pure and Applied Chemistry Massachusetts Institute of Technology memorandum of understanding Non-Aligned Movement North Atlantic Treaty Organization NATO Euro-Atlantic Disaster Response Coordination Center nuclear, biological, and chemical nano-, bio-, info-, and cognitive nongovernmental organization non-lethal technology Nuclear Non-Proliferation Treaty other chemical production facility old chemical weapons Open-Ended Working Group International Organisation for Animal Health ongoing monitoring and verification Organisation for the Prohibition of Chemical Weapons Proliferation Security Initiative riot control agent science and technology; scientific and technological Scientific Advisory Board (of the OPCW) Standing Agenda Items Staphylococcus enterotoxin type B

Acronyms

SGM SUA TS UNMOVIC UNSC UNSCOM UNSG USAMRIID VA VEREX WEOG WHO

237

UNSG mechanism to investigate allegations of CBW use Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Technical Secretariat (of the OPCW) United Nations Monitoring, Verification, and Inspection Commission United Nations Security Council United Nations Special Commission on Iraq United Nations Secretary-General US Army Medical Research Institute for Infectious Diseases Verification Annex (to the CWC) verification experts (temporary group under the BWC) Western European and Others Group (of the OPCW) World Health Organization

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Index

Abandoned chemical weapons, 115–116, 118(table) Acquisition of CBW, 49–51, 78 Ad Hoc Group (AHG), 233; application of export controls, 162–164; biosecurity, 188; BW regime support, 52–55; BWC evolution, 225; Compliance Protocol, 15; declaration norm, 67–71; inspection norm, 71–74; internalization norm, 79; investigation norm, 74–78; non-transfer norm, 229; political context of CBW prohibition regimes, 224; transparency and declaration norms, 65 Adaptation norm (BWC), 15, 44, 90–99, 222–223, 225–226 Adaptation norm (CWC), 15, 44, 108, 153–154, 222–223, 228–229 Advanced biological warfare (ABW), 31, 43, 45 Advisory Panel on Future OPCW Priorities, 142 Aerobiology, 21, 69 Agriculture: biopharming, 35–36; Cuba’s Thrips palmi infestation, 62; nerve agents, 28; synthetic biology’s impact on, 37; use of cyanide-based compounds, 26–27 A/H5N1 influenza, 22–23, 39–40, 45, 85 Albania: CW disarmament norm, 119–121 Alfred P. Murrah federal building, Oklahoma City, 175, 180–181 Algeria: codes of conduct for scientists, 81 Amerithrax Task Force, 185

Annan, Kofi, 187 Annex on Chemicals to the CWC, 116 Anthrax, 17; biological and toxin warfare agents, 29; changing threat perception, 224; genetic manipulation of, 42; masscasualty attacks, 183; new terrorists’ increasing use of, 176–177; Soviet Union, 58; terrorists’ reluctance to use CBW, 179; US attacks, 184–186. See also Aum Shinrikyo Arms control, multilateral, 15 Arsenic agents, 27 Article X of the BWC, 144–145. See also Cooperation norm (BWC) Assistance norm (BWC), 15, 51, 74, 86–90, 225–226 Assistance norm (CWC), 15, 87, 107–108, 142–146, 153, 191–192 ASSISTEX exercises, 143, 145–146 Aum Shinrikyo, 16–17, 159, 175, 178, 180, 182–184 Australia: S&T review process, 94 Australia Group: creation and function of, 16, 101–102, 156–161; CWC negotiations, 104; establishing transfer guidelines for dual-use technology, 164; export controls and the cooperation norm, 162–163; harmonization norm, 51; increasing regime complexity, 8; increasing scope of, 172–173; institutional development, 229–230; NAM criticism of export controls, 168–171, 173–174; US concerns over

275

276

Index

BWC AHG, 54. See also Export controls Austria: BWC non-transfer norm, 162–163 Baader-Meinhof Gang, 178 “Bacchus,” 42 Bacillus anthracis. See Anthrax Bacterial agents, 28–30, 160; Australia Group and export controls, 159. See also Anthrax Bacteriological warfare, 14, 21, 47 Bilateral Destruction Agreement (BDA), 104–105 Bioactive compounds, 31–32, 36–37 Biobricks foundation, 38–39 Biocatalysis, 34–35 Biocontrol agents, 70 Biodefense activities, 17, 37, 41–43, 45–46, 67–69, 196, 223 Bioethics, 150 Bioinformatics, 96 Biological and toxin warfare agents, 24, 28–30, 159, 178 Biological and Toxin Weapons Convention (BWC): adaptation norm, 90–97; AHG negotiations, 52–55; assistance norm, 86–90; bioterrorism countermeasures, 187–191; BW taboo, 9; CBW prohibition regimes, 1; confidencebuilding measures, 63–64; consultation norm, 61–63; converging technologies, 33; cooperation norm, 161–167, 229–230; CWC and, 102–103; declaration norm, 63–71, 99; disarmament norm, 58–61; dual-use oversight, 23; export controls, 156–157, 160–161; Geneva Protocol accession, 47; inspection norm, 71–74; institutional evolution, 97–99; internalization norm, 78–85; international cooperation on technology transfer, 173; investigation norm, 61–63, 74–78; ISP meetings, 55; member states, 57–58; negotiations history, 48–49; non-transfer norm, 161–167, 229–230; normative structure, 49–51; organizational structures in support of the regime, 51–57; regime evolution, 224–225; separating CW and BW regimes, 14, 101; S&T shaping regime management, 44–45, 223; transparency norm, 63–67; UK’s proposed BW loan, 48–49; UNSCOM and UNMOVIC, 203. See also entries beginning with BWC

Biological containment facilities, 69–70 Biological Security Sub-Working Group, 197–198 Biological warfare: convergence of chemistry and biology, 32–37; defenses against, 41–42; UK’s proposed BW loan, 48–49 Biological weapons (BW): advanced biological warfare, 31; evolution of, 30–32; Iraq, 204–205; nonlethal debilitating substances, 124–125; uncontrollable consequences of use, 179. See also Chemical and biological weapons Biological weapons prohibition regime: bioterrorism response, 195; institutional change and development, 232–234; threat perception shaping regime evolution, 224. See also Biological and Toxin Weapons Convention Biologically mediated processes, 34 Biology, synthetic, 31–32, 35, 37–40, 45, 96, 160 Biopharming, 34–36 Bioregulators, 36–37 Biorisk management, 96 Biosafety, 81–85, 189–190 Biosecurity, 22–23, 82–83, 187–188, 225 Biotechnology. See Science and technology Bioterrorism, 182–184, 187–191, 195 Biothreat Characterization Center, 43 Blistering agents, 27–28 Blood agents, 25–27 Botulinum toxin, 29–30 Boyer, Herbert, 30 Brazil: countering export control criticism, 170; OPCW challenge inspection exercises, 139; S&T review, 95–96 Bush (George H. W.) administration: CWC negotiations, 105 Bush (George W.) administration, 18, 53–54, 206–208, 214 Butler, Richard, 205 BW taboo, 9, 49 BWC Implementation Support Unit, 199 BWC Meeting of Experts, 200 Canada: codes of conduct for scientists, 80–81 Canberra conference on the CWC, 104 Casualties: anthrax, 29, 184; defining toxic chemicals, 116; ICA use, 125; mustard agents, 27; non-lethal chemical agents, 25; pulmonary toxicants, 25–26; smallpox, 28; terrorists’ avoidance of

Index

mass casualties, 179–180; Tokyo subway attack, 175, 182–183 Central Intelligence Agency (CIA), 30–31, 42 Challenge inspections, 74, 76, 103, 107, 138–143, 153, 228 Chemical, biological, radiological, and nuclear (CBRN) terrorism, 228. See also Terrorism Chemical and biological weapons (CBWs): biological and toxin warfare agents, 28–30; chemical warfare agents, 24–25; components of, 24; defenses against, 40–44; evolving threat spectrum, 30–31; political context of prohibition regimes, 222; separation from BWC, 14 Chemical synthesis of biological molecules, 34, 36 Chemical warfare: convergence of chemistry and biology, 32–37 Chemical warfare agents, 24–28 Chemical weapons (CW): Aum Shinrikyo’s emphasis on, 184; defining, 116; dualuse ingredients, 22; ICA as, 227; inspections at chemical weapons-related facilities, 118(table); norms and rules for production facilities, 116–117; SGM mechanism, 199 Chemical Weapons Convention (CWC), 230; assistance norm, 87, 142–146; Australia Group effects, 16; BWC norms, 51; CBW prohibition regimes, 1; chemical terrorism, 195–196; chemical terrorism and CWC implementation, 191–195; converging technologies, 33; cooperation norm, 167–172; CWC negotiations, 14; defining chemical warfare agents, 24–28; dual-use provisions and protections, 129–130; export controls, 156–157, 160–161, 173, 230; implementation of CWC article VII, 137(table); institutional framework, 102–115; international cooperation on technology transfer, 173; investigation norm, 77; negotiations history, 103–105; non-acquisition norm, 123–129; non-transfer norm, 167–172, 230; normative structure of the CW prohibition regime, 105–108; organizational structures in support of, 108–115; origins of, 101–102; PrepCom and PTS, 109–110; preventing the proliferation of chemical weapons while allowing for civilian

277

use, 129–135; regime evolution, 226–229; separating CW and BW regimes, 101; S&T shaping, 44–45, 146–150, 223; UNSCOM and UNMOVIC, 203. See also entries beginning with CWC; Organisation for the Prohibition of Chemical Weapons Chemical weapons destruction facility (CWDF), 118(table) Chemical weapons production facility (CWPF), 117, 118(table), 152–153 Chemical weapons prohibition regime, 151–154; consultation and investigation norms, 138–142; disarmament dimension, 115–123; facilitation and implementation, 226–227; institutional change and development, 232–234; internalization norm, 135–138; norms and rules for production facilities, 116–117. See also Chemical Weapons Convention Chemical weapons storage facility (CWSF), 118(table) Chemicals, scheduled, 130–135, 168 Chemistry and biology convergence, 32–38, 45–46, 96, 149, 222 China: DOC facilities verification, 133–134; inspection norm, 72; OPCW challenge inspection exercises, 140–141; SGM, 77 Chlorine gas, 12, 25–26 Chloropicrin (PS), 123 Cholera toxin, 36 Civil defense: chemical weapons, 145 Civil nuclear installations, 103 Civil society: S&T review process, 93–94 Civil war: Libya, 121 Civilian use of knowledge. See Dual-use knowledge Clarification procedures (CWC), 114–115 “Clear Vision,” 42 Clinton, Bill, 180–181 Clostridium botulinum, 29–30, 183 Codes of conduct, 80–83, 94, 189–190 Cohen, Stanley, 30 Cohen, William, 181 Cold War: ICA use, 125; nonlethal biochemical warfare agents, 25; post–Cold War convergence of terrorism and WMD, 176–177; shaping the normative institutions, 44, 222 Complementary institutional structures, 229–232; PSI, 214–218; SGM, 198–202; UNSC Resolution 1540,

278

Index

208–213; UNSCOM and UNMOVIC, 202–208. See also Australia Group Complexity, regime, 8, 17–19, 177, 197–198, 211, 213, 221–222 Compliance, 233; consultation norm of the BWC, 59; internalization norm, 78–85; VEREX group activities, 52 Compliance Protocol, 15, 97. See also Ad Hoc Group Conference of States Parties (CSP) of the OPCW, 109–110, 112–115, 119, 121–122, 136, 227 Conference on Disarmament, 138 Confidence-building measures (CBMs), 14–15; Ad Hoc Meeting of Experts, 52; BW regime evolution, 97, 99; declaration norm, 69, 71; expansion of, 52–54; internalization norm, 79; Russia’s BW program, 59; transparency and declaration norms, 63–67 Consensus principle, 80 Consultation norm (BWC), 59, 61–63 Consultation norm (CWC), 15, 107–109, 114–115, 138–142, 153, 228 Containment facilities, 69–70 “Contested compliance,” 10 Contructivist institutionalism, 1, 4–5, 222 Convergence of chemistry and biology, 32–38, 45–46, 96, 149, 222 Cooperation Committee, 163–165 Cooperation norm (BWC), 16, 50–51; BWC evolution, 225–226; export controls and, 161–167; inspection norm negotiation, 73–74 Cooperation norm (CWC), 16; countering chemical terrorism, 191–192; CWC, 108–109, 167–172; discriminatory export control practices, 172; export controls conflicting with, 230; interpretation as obstacle to implementation, 227. See also Australia Group; Export controls Cooperative behavior, 6 Counter-Terrorism Implementation Task Force (CTITF), 187, 193, 228 Coxiella burnetii, 29, 183 Croatia: Australia Group, 158; CW assistance exercises, 143–144 Cuba: challenge inspections, 141; criticism of export controls, 171; DOC facilities verification, 133–134; NAM criticism of export controls, 169; S&T review, 95–96; technological cooperation, 165; Thrips palmi infestation, 62 CW taboo, 106

Cyanogen chloride (CICN), 26–27 Czech Republic: CW investigations exercises, 143–144 Daschle, Thomas, 184 Data sharing, 64 Deaths. See Casualties Declaration norm (BWC), 15, 57, 63–71, 97–99, 222, 224–225 Declaration norm (CWC), 15, 104, 107, 116–117, 130–131 Defense Intelligence Agency, 42 Defense principle (CWC), 40–44, 107–108, 142–143, 146 Defensive CBW activities, 13. See also Biodefense activities Delivery systems, 24; advanced biological warfare, 31; anthrax, 29; bioregulators, 37; low-tech terrorist acts, 178–180; mustard agents, 27; nerve agents, 28; rickettsial agents, 29; smart drugs, 40; S&T review, 95 Department of Defense, US, 42 Department of Justice, US, 185–186 Destruction of CW. See Stockpile reduction Dibenz(b,f) (1,4) oxazepine (CR), 124 Diphenylaminearsine (DM), 123 Diplomacy: procedural institutions, 2 Disarmament norm (BWC), 14, 50 Disarmament norm (CWC), 15, 151–152; content of, 107; conversion of, 227; importance of challenge inspections to verification regimes, 138–139; regime evolution, 115–123; response to terrorist threat, 195–196 Disarmament provisions and mechanisms: UNSCOM and UNMOVIC, 18, 204–208 Discrete organic chemicals (DOC), 131–132 Discursive institutionalism, 4–5 Disease: assistance norm, 87–90; disease surveillance, detection, diagnosis, and containment, 89; dual-use linkage, 22–23; smart drugs, 40 Dispersal. See Delivery systems Displacement of existing normative patterns in institutions, 3 DNA research and synthesis, 36; gene sequencing, 96; gene synthesis, 96; genetic circuits, 38–39; genetic engineering, 21, 23, 30, 35–36; synthetic biology, 38–41 Downer, Alexander, 159–160 Drift, normative, 3, 152, 227

Index

Drug trafficking, 181 Dual-use: Australia Group norm contestation, 51; Australia Group’s increasing scope, 172–173; bioactive chemicals and synthetic biology, 31–32; biopharming, 35–36; chlorine and phosgene gas, 26; CW prohibition regime principles, 106; CWC cooperation norm, 108; CWC verification principle, 102–103; cyanide-based compounds, 26–27; establishing transfer guidelines, 164; export controls, 155; genetic engineering, 30–31; governance and controversy, 22–23; hostile relations shaping the problem, 223; synthetic biology, 38–40; technological systems convergence, 32–37 Ebola virus, 183 Effectiveness of international regimes, 7 Eighteen Nation Disarmament Committee (ENDC), 48 Energy resources, synthetic biology’s impact on, 37 Environmental policy, 7 Euro-Atlantic Disaster Response Coordination Centre of NATO, 144 Europe/European Union: Australia Group and export controls, 158; converging technologies, 33; OPCW challenge inspection exercises, 141; synthetic biology research, 40; US Presidential Commission for the Study of Bioethical Issues, 37–38. See also specific countries Executive Council (EC) of the OPCW: assistance training, 145; consultations and investigations, 138–139; CW destruction oversight, 119–122; functions of, 112–115; internalization norm, 136; norm prioritization and contestation, 109 Export controls, 16; Australia Group origins and activities, 157–161; BWC cooperation and non-transfer norms, 51, 161–167; contravening the cooperation norm, 162; CWC cooperation and nontransfer norms, 167–172; CWC negotiations, 104; declining criticism of, 229–230; NAM dissatisfaction with, 168–171 Federal Bureau of Investigation (FBI), 185–186

279

Fentanyl, 25, 125–126 1540 Committee, 209–210, 212 Fink Committee, 23 Food and Agriculture Organization (FAO): biosecurity, 188 Foundational institutions, 2 Four-part regime structure model, 232 France: civic history, 104; Science Advisory Board of the OPCW, 147 Fuzeon (AIDS drug), 36 G8 Global Partnership, 197–198 Gene sequencing, 96 Gene synthesis, 96 Genetic circuits, 38–39 Genetic engineering: biopharming, 35–36; foundations of, 30; H5N1 influenza virus, 23; military application, 21 Geneva Protocol (1925): BW taboo, 9; history, 104; as trigger for declarations, 68; Iraq as signatory, 203; original purpose of, 47; origins of CBW prohibition regimes, 14, 101; retention of BW, 50; SGM link, 200 Geopolitics, 222–224 Germany: botulinum neurotoxin, 30; CBM negotiations, 66; OPCW challenge inspection exercises, 140; SGM, 77, 200–201 Giddens, Anthony, 7 Global Network Science Academies, 93 Goodman, Howard, 30 Gorbachev, Mikhail, 58 Gore, Al, 59 Greece: OPCW challenge inspection exercises, 141 Green-light approach to investigations, 75–76 Guidelines for Transfers of Sensitive Chemical or Biological Items, 158 H5N1 influenza, 22–23, 39–40, 45, 85 Harmonization norm, 51 Historical context of CBW, 12–13 Historical institutionalism, 3, 5 HIV/AIDS, 36 Human genome, 45 Hungary: CWC ratification, 111 Hussein, Saddam, 202–203 Huxsoll, David, 41 Hydrogen cyanide, 26–27 I-chloroacetophenone (CN), 123 Implementation (BWC): adaptation norm addressing S&T advances, 93–97;

280

Index

assessment and oversight through review conference activities, 51–57; assistance norm addressing public health and emergency response, 86–90; consultation and investigation norms, 61–63; disarmament norm and Soviet noncompliance, 58–61, 117–123; Implementation Support Unit creation, 55–56; improving national implementation through the internalization norm, 78–84; institutional oversight and norm development, 97–99; internalization norm improving national implementation, 78–85; investigation norm approaches, 74–78; non-transfer norm, 50–51; normative and regime evolution, 57–97; obstacles to, 151; separation BW and CW, 47–49; transparency and declaration norms, 63–71; verification through inspection norm development, 71–74 Implementation (CWC): adapting to S&T advances, 146–150; assistance norm, 142–146; consultation and investigation norms, 138–142; CWC organization, 108–115; disarmament norm, 115–123; dual-use technology, 129–135; internalization norm, 135–138; nonacquisition norm and incapacitating chemical agents, 123–129; normative and regime evolution, 151–154; scientific knowledge, 21–22 Implementation Support Unit (ISU), 55–56, 65, 94, 166 Incapacitating chemical agents (ICA), 15, 123–127, 152–153, 227 Incremental change, 3–4, 11–12, 222, 233–234 Indeterminacy in the CWC, 123–124 India: CW disarmament norm, 119–121; export controls, 162, 166–167, 170, 174; inspection norm, 72; technological cooperation, 165; UNSC Resolution 1540 controversy, 208 Indonesia: technological cooperation, 165 Influenza, 22–23 Information sharing, 64, 67 Inspection mechanisms: SGM, 198–202; UNSCOM and UNMOVIC, 204–208 Inspection norm (BWC), 15; AHG negotiations, 71–74; BW regime evolution, 98; Cold War political environment, 222; lack of, 57; treaty

implementation and normative evolution, 224–225 Inspection norm (CWC), 15; assistance exercises, 146; Cold War political environment, 222; CWC institutional framework, 102–103; importance of challenge inspections to verification regimes, 138–139; inspections at chemical weapons-related facilities, 118(table); OCPF, 130–132, 152, 227; prohibition norm, 143; schedule 1, 2, and 3 facilities and OCPF, 130–135, 131(table); Scientific Advisory Board and, 150; Technical Secretariat of the OPCW, 115; Verification Annex, 107 Institutional change, 222, 226–227 Institutional crises, 232–233 Institutional layering, 3, 97, 177, 225, 233 Institutional learning, 232–233 Intangible transfer of technology (ITT), 160 Inter-Academy Panel (IAP), 93 Internalization norm (BWC), 15, 78–85, 195, 225–226 Internalization norm (CWC), 15, 135–138, 152–153, 156, 191–192 International Atomic Energy Agency (IAEA), 56–57, 102–103, 194 International Genetically Engineered Machine (iGEM) competition, 38–39 International law: foundational institutions, 2 International Maritime Organization (IMO), 217–218 International Organisation for Animal Health (OIE), 202 International organizations, 6; CWC verification and assistance tasks, 109; disease surveillance, detection, diagnosis, and containment, 89–90; implementation, 97–98; S&T review, 95 International regimes, 221; definition and structure of, 5–7 International Union of Pure and Applied Chemistry (IUPAC), 147–150 Internet use, terrorist acts and, 176 Intersessional process (ISP), 231, 233; assistance norm, 87; biosecurity, 190–191; BWC regime evolution, 97–99; cooperation norm, 164–167, 173; disease surveillance, detection, diagnosis, and containment, 89; internalization norm, 79–85; investigation norm, 74–78; lack of

Index

decisionmaking power, 55–56; nontransfer norm, 164–167, 173; norm implementation, 15; S&T advances, 92–93; S&T review, 96–97 Investigation mechanisms: SGM, 198–202, 230 Investigation norm (BWC), 15, 51, 74–78, 197; BW regime evolution, 98; BWC Ad Hoc Group negotiation, 71; disarmament violations, 61–63 Investigation norm (CWC), 15, 107–108, 138–143, 153, 228 Iran: Australia Group conflicts, 172, 174; CW destruction, 123; export controls, 156, 169; inspection norm, 72; internalization norm controversy, 82; investigating alleged BW use, 76–77; S&T review, 95; verification controversy, 54 Iran-Iraq war: Australia Group activities, 158; mustard agents, 27; SGM, 199 Iraq, 18; botulinum neurotoxin, 30; declaration of legacy CW, 121; export controls, 156; investigation of NBC, 102; mustard agents, 27; UN oversight of WMD destruction, 62; UNMOVIC, 18, 202–208, 230–231; UNSCOM, 18, 62, 202–208, 230–231; verification controversy, 54 Iraq Survey Group (ISG), 206–207 Islamic World Academy of Sciences, 81–82 Issue areas, 6, 12 Ivins, Bruce, 185 Japan: Aum Shinrikyo attack, 16–17, 159, 175, 178, 180, 182–184; botulinum neurotoxin, 30; S&T review process, 94 Kahn, Laura, 23 Knowledge. See Dual-use; Science and technology Krasner, Stephen D., 5–6 Kuwait, Iraq invasion of, 202–203 Laqueur, Walter, 181 Law enforcement, ICA use in, 126–129 Law of the Sea Convention, 215–216 Lawand, Kathleen, 150 Leahy, Patrick, 184 Lebanon: US Marine base attack, 181 Leitenberg, Milton, 41–42, 60–61 Lewisite, 27 Libya, 54; CW disarmament norm, 119–122 Life sciences, 13, 98–99

281

Mahley, Donald, 53–54 Malaria, 35 Malaysia: OPCW challenge inspection exercises, 140–141 Manley, Ron G., 110 Maritime shipping, 214–216 Mass casualty attacks, 16–17, 181–182 Massachusetts Institute of Technology (MIT): synthetic biology, 38 Mass-casualty terrorism, 177–180 Medical research: biopharming, 36; dualuse, 22–23; synthesis of viruses, 39–40; synthetic biology’s impact on, 37 Meeting of Experts (MX): assistance norm, 87–89; confidence-building measures, 52; decisionmaking powers, 55; development and expansion of, 188–190; export control measures, 165–166; internalization norm, 80–81, 85; investigation mechanism, 76–78; investigation mechanisms, 199–200; S&T developments, 95–96, 97 Meeting of States Parties (MSP): assistance norm, 87–90; confidence-building measures, 67; decisionmaking powers, 55; development and expansion of, 188–190; export control measures, 165–166; internalization norm, 80, 83–84; investigation mechanism, 77; S&T developments, 97 Metabolic engineering, 34–35, 37–38 Mexico, 114 Middle Ages, CBW use 12 Moral norms: ICA use, 126; terrorists’ avoidance of mass casualties, 179–180 Moscow theater siege, 25, 125, 127 Mousepox virus, 28–29 Mozambique: SGM inspections, 200 Mustard agents, 13, 27 Mycoplasma mycoides, 160 Nano-, bio-. info-, and cognitive (NBIC) sciences and technologies, 32–33, 45, 96 National non-transfer measures, 161–167 Nerve agents, 12, 25–28 Netherlands: H5N1 influenza virus oversight, 23; OPCW challenge inspection exercises, 140 Neuromodulators, 124 Neuropeptides, 124 New York Times, 42 New Zealand: BWC non-transfer norm, 162–163; S&T review process, 94; UNSC Resolution 1540 controversy, 208

282

Index

Nixon, Richard, 41–42, 48–49 Non-acquisition norm: CWC and, 123; CWC regime evolution, 115; ICA, 123–127; incapacitating chemical agents undermining, 152 Non-Aligned Movement (NAM): AHG verification negotiations, 53; criticism of export controls, 51, 156, 163–164, 168–171, 173–174, 229; CWC negotiations, 104; disarmament negotiations, 138–139; DOC facilities verification, 133–134; inspection norm, 72; OPCW challenge inspection exercises, 140–141; S&T review, 95 Nonchallenge visits, 71–72 Nongovernmental organizations (NGO): CBM negotiations, 66; OEWG contributions, 148–149 Nonlethal biochemical warfare agents, 24–25 Nonlethal technologies, 124, 126 Nonproliferation, 18–19; CWC dual-use procedures, 129–130; CWC support structures, 109; UNSCR 1540, 209–210. See also Export controls Non-regimes, 7 Nonroutine verification measures, 71, 108. See also Challenge inspections; Investigation norm (CWC) Nonstate actors, 221 Non-transfer norm (BWC), 16, 50–51, 161–167, 172; UNSC Resolution 1540, 231. See also Export controls Non-transfer norm (CWC), 16, 156, 167–172, 227; CW regime evolution, 115; UNSC Resolution 1540, 231. See also Export controls Non-use norm, 115 Norm contestation, 10–11, 109 Norm internalization, 11(fig.) Normative institutionalist theory, 222, 232 Normative regimes: analytical framework, 232–234; evolution of, 224–229; review process shaping BWC evolution, 224; treaty implementation and normative evolution, 224–229 Normative structure (BWC), 2–5, 15, 49–51; controversy over interpretation, 9–10; disarmament norm, 58; gaps in, 57–58; international prohibition regimes, 6; normative regime structure, 11(fig.). See also specific norms Normative structure (CWC), 105–108; controversy over interpretation, 9–10. See also specific norms

North Atlantic Treaty Organization (NATO): CW assistance training, 144; defining ICAs, 152; response to September 11 attacks, 186–187 Norway: CBM negotiations, 66 No-undercut policy, 159, 173 Novichok binary nerve agent, 28 Nuclear, biological, and chemical (NBC) and missile programs, 102, 151, 176, 231 Nuclear Non-Proliferation Treaty (NPT), 50–51, 102–103, 208 Nunn, Sam, 176 Obama administration: biodefense efforts, 43–44 O-chlorobenzylidene malononitrile (CS), 123 Offensive CBW activities, 13 Oklahoma City bombing, 175, 180–181 Old chemical weapons, 118(table) Oleoresin capsicum (OC), 123 OPCW Action Plan on national implementation, 136 Open-Ended Working Group (OEWG), 148–149 Operation Desert Fox, 203 Organisation for the Prohibition of Chemical Weapons (OPCW), 16; adapting to S&T, 146–150; challenge inspection exercises, 138–142; chemical terrorism, 191–196; composition and functions of, 112–115; CW disarmament norm, 117–123; CWC implementation, 103; declaration norm, 107; implementation obstacles, 151–152; international prohibition regimes, 6; response to September 11 attacks, 187; SGM activities, 202; verification and assistance tasks, 109 Organophosphates, 12, 27–28 O’Sullivan, Paul, 168 Other chemical production facilities (OCPF), 131–135, 152, 227 Oversight: biosecurity, 189–190; BWC, 51–57; BWC internalization norm, 82–83; H5N1 influenza virus oversight, 23; non-transfer measures, 164–165 Pakistan: DOC facilities verification, 133; inspection norm, 72; NAM criticism of export controls, 169; Science Advisory Board of the OPCW, 148; UNSC Resolution 1540 controversy, 208 Pan Am flight 103 bombing, 181

Index

Parallel institutions, 17–18 Paris conference on the CWC, 104, 109–110 Paris Resolution, 110, 113 Pathogenicity, 96 Pathogens, 24, 43 Peaceful uses of technology: BWC generalpurpose criteria, 49–50; NAM criticism of export controls, 169; strengthening BWC provisions, 164; UNSCR 1540, 209. See also Cooperation norm; Dualuse Peptides synthesis, 36 Pesticide use: Vietnam War, 101 Phosgene, 25–26 Plant pathogens: declaration norm, 70 Poland: CW investigations, 143 Poliovirus, 39 Postal Service, US, 184–185 Power distribution, 5 Preparatory Commission (PrepCom) of OPCW, 109–111, 113 Principles of international regimes, 6, 9–10 Procedural institutions, 2, 6 Production facilities: adaptation norm, 223; chemical weapons production facilities, 117, 118(table), 152–153; other chemical production facilities, 131–135, 152, 227 Production of BW, 49–50 Prohibition regimes: CBW defenses, 13, 40–44; characterizing the weapons, 44; defining, 1–2; principles of, 8–9; regime analysis, 7; regime complexity, 8, 177, 197–198, 211, 213, 221–222; regime formation, 7; regime structure, 221; scientific knowledge, 21–22. See also Biological and Toxin Weapons Convention; Biological weapons prohibition regime; Chemical Weapons Convention; Chemical weapons prohibition regime “Project Jefferson,” 42 Proliferation. See Nonproliferation Proliferation Security Initiative (PSI), 17–18, 214–218, 232 Protection principle, 13, 223 Protocells, 38 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. See Geneva Protocol (1925) Protocol to the Convention for the Suppression of Unlawful Acts Against

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the Safety of Maritime Navigation (SUA), 215–218 Provisional Technical Secretariat of OPCW, 109–110, 113 Public health: biodefense efforts, 42–43; BWC assistance norm, 86–90; BWC cooperation norm, 173; BWC deliberations, 98–99 Pulmonary toxicants, 25–26 Punctuated equilibrium, 3 Q fever, 29, 183 Ratification: CWC, 111 Reagan, Ronald, 104 Recombinant DNA technology, 30 Red Army Faction, 178 Red-light approach to investigations, 75–76 Regime analysis, themes of, 7 Regime complexity, 8, 177, 197–198, 211, 213, 221–222 Regime formation, 7 Regime structure, 221 Regulatory measures. See Export controls Religious terrorism, 182 Retention, 49–50, 78 Review Conferences (BWC): adapting to S&T advances, 90–97; assistance norm addressing public health and emergency response, 86–90; bioterrorism, 189–190, 195; consultation and investigation norms, 61–63; disarmament norm and Soviet noncompliance, 58–61; institutional development, 97–99; investigation norms, 77; non-transfer and cooperation norms, 161–162, 164–166, 173; SGM support, 200–202; strengthening the internalization norm, 78–85; treaty implementation and strengthening, 224–225 Review Conferences (CWC): adapting to S&T advances, 146–150; challenge inspections and the investigation norm, 138, 140–142; chemical terrorism concerns, 192–193; coordinating assistance operations, 144–145; declarations and inspections of chemical production facilities, 131–135; incapacitating chemical agents, 126; non-transfer and cooperation norms, 170–171, 174; normative and regime evolution, 151–154; Ricin, 29

284

Index

Rickettsiae, 28–29, 159 Riot control agents (RCA), 123–129 Rocket fuel, 24 Rogue states, 176 Routine inspections, 71–72. See also Inspection norm Rules of international regimes, 6, 9–10 Russia: botulinum neurotoxin, 30; BWC disarmament compliance, 58–61; BWC’s Ad Hoc Group, 52–53; CW disarmament norm, 118–123; CWC ratification, 111; declaration norm, 68; ICA use, 125; Moscow theater siege, 25, 125, 127; S&T review, 95. See also Soviet Union Safeguards (IAEA), 103 Sarin (nerve agent), 16–17, 28, 159, 175, 180, 182–184 Saxitoxin, 29 Scheduled chemicals, 130–135, 168 Science and technology (S&T): adapting the CW prohibition regime to, 146–150; Australia Group procedures, 159; biotechnology and life sciences development, 30–31; bioterrorist threat, 187–188; BWC adaptation norm, 90–97; BWC evolution, 226; BW-CW distinction, 10–11; categories of S&T advances of relevance to the BWC, 93(table); CBW review agenda, 56; codes of conduct, 81–82; converging technologies, 32–37; H5N1 engineering, 22–23; historical context of CBW, 12–13; military application, 21; pharmaceutical technology, 67; public health assistance and, 89–90; review process, 99; shaping the normative institutions, 222. See also Adaptation norm; Dual-use Science Policy Advisor, 150 Scientific Advisory Board (SAB) of the OPCW, 112, 147–150, 153–154, 222–223, 229 September 11, 2001: Australia Group expansion, 159; changing threat perception, 224; 1540 Committee report, 213; mass-casualty attacks, 179–182; policy response, 186–187 Serbia: CW assistance activities, 145 Shevardnadze, Eduard, 103 Sims, Nicholas, 92 Smallpox, 28 Smart drugs, 40 Soft law, 221

Soman (nerve agent), 28 South Africa, 65, 77 South Korea: CW disarmament norm, 119–121 Sovereignty: foundational institutions, 2 Soviet Union: biodefense efforts, 42; BWC disarmament norm noncompliance, 58–61; BWC states parties, 57; CWC negotiations history, 103–105; genetic engineering, 21; genetically modified BW agents, 31; nerve agents, 28; nonlethal biochemical warfare agents, 25; separating CW and BW regimes, 101; UK’s proposed BW ban, 48–49. See also Russia Special Conference of BWC states parties, 52, 94, 225 Spence, Scott, 136 Staphylococcus enterotoxin type B (SEB), 30 State actors, 7–8 Stealth weapons: bioregulators, 37 Stockpile reduction: Bilateral Destruction Agreement, 104–105; BW prohibition regime, 49–50; CW disarmament, 117–123; CW prohibition regime norms, 106–107; CW states parties’ obstacles to, 151–152; inspections at chemical weapons-related facilities, 118(table); US BZ stockpile, 125 Structural regime components, 8–9 Structuration theory, 7–8 Substance P, 37 Substate actors, 7–9, 16–17, 176. See also Terrorism Switzerland: CBM negotiations, 66; CW assistance activities, 145; DOC facilities verification, 134; OPCW challenge inspection exercises, 140 Synthetic biology, 31–32, 35, 37–40, 45, 96, 160 Tabun (nerve agent), 27–28 Technical Secretariat (TS) of the OPCW: adapting to S&T developments, 147, 150; assistance and protection, 143, 145; challenge inspection exercises, 138–142; cooperation and non-transfer norms, 170–172; countering chemical terrorism, 192–193; CW destruction oversight, 117, 122; functions of, 112–115; OCPF inspections, 134–135; verification efforts, 130 Technology transfer, 160. See also Export controls

Index

Territoriality: foundational institutions, 2 Terrorism, 16; absence of CBW masscasualty attack, 175–176; anthrax attacks in the US, 184–186; Aum Shinrikyo attack, 16–17, 159, 175, 178, 180, 182–184; Australia Group procedures, 159; BWC and CWC adaptations, 186–195; changing threat perception, 223–224; chemical, biological, radiological, and nuclear, 228; chemical terrorism and CWC implementation, 191–195; convergence of WMD proliferation and, 176–177; countering bioterrorism, 187–191; CW assistance training, 144; export controls as response to, 173; increasing threat, 180–182; new terrorism and CBW use, 180–186; reevaluating prohibition institutions, 13; rise of religious terrorism, 182; SGM role, 201; shaping non-transfer norm, 229–230; shaping regime norms, 233; shifting threat perception affecting CBW regimes, 17, 197; traditional forms and weapons, 177–180; UN efforts in combating, 228; UNSC Resolution 1540 controversy, 208–209 Thailand: OPCW challenge inspection exercises, 140 Therapeutic peptides synthesis, 36 Threat assessment, 181 Threat perception: biodefense, 43; political context of CBW prohibition regimes, 223–224; shaping export controls, 229–230; terrorist activity increase, 175–176 Threat spectrum, 30–31 Thrips palmi infestation, 62 Tokyo subway attack, 16–17, 159, 175, 180–182 Toth, Tibor, 53 Toxins: Australia Group and export controls, 159; biological, 28; chemical warfare agents, 24–25; CWC dual-use procedures, 129–130; defining, 116 Trade: CWC procedures, 129–130; procedural institutions, 2. See also Export controls Transgenic plants, 35–36 Transnational crime, 181 Transparency norm (BWC), 63–67; AHG text, 65; internalization norm, 79–80; permitting biodefense R&D, 223; Soviet BW activities, 58–61. See also Confidence-building measures

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Transparency visits, 72–74 Trilateral Declaration, 59–62 Tucker, Jonathan, 22, 178 Tunisia: CW assistance activities, 145–146 Ukraine: Australia Group, 158; CW assistance exercises, 144 UN Conference on Disarmament (CD), 103–105 UN Counter-Terrorism Implementation Task Force (CTITF), 187, 193, 228 UN Global Counter-Terrorism Strategy, 201 UN Monitoring, Verification, and Inspection Commission (UNMOVIC), 18, 202–208, 230–231 UN Office for the Coordination of Humanitarian Affairs, 144 UN Office of Disarmament Affairs, 200, 202 UN Secretary General’s mechanism to investigate the use of chemical and biological weapons (SGM), 17–18, 76–78, 198–202 UN Security Council Resolution 1540, 8, 17–19, 187, 208–213, 229, 231–232 UN Special Commission on Iraq (UNSCOM), 18, 62, 202–208 UNESCO, 150 United Kingdom: BWC states, 57–58; CBM negotiations, 66–67; Cuba’s Thrips palmi infestation, 62; declaration norm, 69–70; OPCW challenge inspection exercises, 139–140; red-light approach to investigations, 75; riotcontrol agents, 124; separation of BW and CW prohibition, 48–49; SGM, 77, 200–201; Soviet/Russian BW activities, 58–61; S&T review, 99; UNSCOM and UNMOVIC, 203 United Nations: BW disarmament noncompliance, 60; BWC assistance norm, 86; BWC consultation norm, 63; Cuba’s Thrips palmi infestation, 62; CWC negotiations history, 103–104; CWC origins, 101; export controls, 157; investigating CBW use, 76–78, 230; proliferation prevention, 17–19; response to September 11 attacks, 187. See also entries beginning with UN United States: AG anti-terrorism proposals, 159–160; anthrax attacks, 184–186; botulinum neurotoxin, 30; BWC states, 57; BWC’s Ad Hoc Group, 52–55;

286

Indexs

Cooperation Committee proposal, 163–165; Cuba’s Thrips palmi infestation, 62; CWC challenge inspections, 138–139; CWC disarmament norm, 118–123; CWC negotiations history, 103– 105; declaration norm, 68; ICA standardization, 125; increased terrorism threat perception, 176–177; Iraq Survey Group, 206–207; pesticide use in Vietnam, 101; PSI, 214–218; Soviet/Russian BW activities, 58–61; UK’s proposed BW ban, 48–49; UNSCOM and UNMOVIC, 203 US National Biodefense Strategy for the Twenty-First Century, 43 US Navy Judge Advocate General, 129 US Presidential Commission for the Study of Bioethical Issues, 37 Vaccine production, 64, 70 V-agents, 12 Variola major, 28, 179 Verification Annex (CWC), 107, 119, 130–132, 135, 138–139, 168 Verification experts of BWC (VEREX), 52–53, 97, 207, 225 Verification principle: challenge inspections, 138–139; Cold War political environment, 222; CW assistance exercises, 146; CW destruction, 122; CW prohibition regime principles, 106–107, 143; CWC negotiations history, 103–104; limiting BWC, 197; 1972 BWC’s lack of, 102; nonproliferation of CW, 130; toxic chemicals, 116; UNSCOM and UNMOVIC, 204–208. See also Declaration norm; Inspection norm Vesicants, 25–28 Vienna Convention on the Law of Treaties, 203 Vietnam War, 49, 101 Violations: internalization norm, 82–84; nonchallenge visits, 71–72; UN investigations, 230–231 Viral genomes, 39

Viral pathogens: Australia Group and export controls, 159; biological and toxin warfare agents, 28–29; increasing range of malign use, 45; synthesis of, 39 Virology, 21 Visits, 71–74, 98 Voluntary assistance visits, 72–74 Voluntary transparency visits, 72–74 VX chemical warfare agent, 28 Wagner, Adolf von, 127–128 Warfare: advanced biological warfare, 31, 43, 45; BW taboo, 9; CW taboo, 106–107; CWC obligations, 115; historical context of CBW, 12–13; procedural institutions, 2. See also Biological warfare Weapons: biological and toxin warfare agents, 24, 28–30, 159, 178; chemical warfare agents, 24–28; incapacitating chemical agents, 123–124 Weapons of mass destruction (WMD), 151, 176–177, 205, 207, 214–218 Weather Underground, 178 Western European and Others Group (WEOG), 170 Wilkinson, Paul, 181 Working Group on Preventing and Responding to Weapons of Mass Destruction Attacks, 193 World Health Organization (WHO), 23, 188–190, 194, 202, 213 World Organization for Animal Health (OIE): biosecurity, 188 World Trade Center bombing (1993), 181 World Trade Center bombing (2001). See September 11, 2001 World War I: bacteriology, 21; chemical warfare agents, 25; creation of the Geneva Protocol, 47; CW attacks, 12–13; defenses against CBW, 40; mustard agents, 27 World War II: nerve agents, 28 Yeltsin, Boris, 58 Zilinskas, Raymond A., 41, 60–61

About the Book

Whether in the arsenals of states or pursued by terrorist groups,

chemical and biological weapons (CBWs) are increasingly seen as one of the major threats to global security. Based on an institutionalist analysis, Alexander Kelle provides a comprehensive assessment of the multilateral prohibition regimes established to confront the risks that CBWs pose in the context of rapid scientific and technological advances. Alexander Kelle is senior policy officer in the Office of Strategy and Policy, Organisation for the Prohibition of Chemical Weapons.

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