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The Biological Weapons Convention (BWC) also known as the Biological and Toxins Weapons Convention (BTWC) prohibits the development, production and stockpiling of Bacteriological (biological) and toxin weapons and their destruction. The convention was opened for signature in 1972 and was entered into force on March 26, 1975 and currently has 183 states-parties.
The convention was designed to ban biological weapons by prohibiting their development, production, and stockpiling of biological agents and the destruction of previously developed agents, and the delivery systems that are intended for hostile use.
Biological weapon is defined by the Merriam Webster dictionary as “a harmful biological agent (such as a pathogenic microorganism or a neurotoxin) used as a weapon to cause death or disease usually on a large scale”.
History of biological warfare:-
The use of the pathogens as biological weapons to destroy the enemies can be traced in history to the year 1346. The Tartar army catapulted the bodies of plague victims into the city of Kaffa (Crimean Peninsula) and infected its citizens. This invasion of Mongols was the first instance of epidemic which is believed to kill around 25 million. In 1763, during the French and Indian wars, the British troops gave the Indian tribes the blankets used by the people with small pox, infecting the native population. German used anthrax and the equine disease glanders to infect livestock and feed for export to allied forces.
It also includes the infection of Romanian sheep with anthrax and glanders for export to Russia between 1916 and 1918. Japan used biological weapons for the first time in 1939 by poisoning the Soviet water supply with intestinal typhoid bacteria. Later in 1940, during the World War II, they drop rice and wheat mixed with plague carrying fleas over China and Manchuria. This was followed by several nations like Japan, U.S, and Iraq setting up their offensive biological weapons programs.
The international law has condemned the treacherous practice of biological and chemical warfare in early 1600s. The first written code on this subject was the Brussels Declaration of 1874, which prohibited the use of poison or poisoned weapons, followed by the Hague Conference of 1899, where an agreement was reached to “abstain from the use of projectiles the sole object of which is diffusion of asphyxiating or deleterious gases”. The notable international declaration was the 1907 Hague Convention (IV) respecting the laws and customs of war and land.
The extensive use of chlorine and mustard gas during the First World War forced the international community to strengthen the existing legislations and this led the member nations of League of Nations to sign the popularly known Geneva Protocol in 1925 (Protocol for the prohibition of the use in war of asphyxiating, poisonous or other gases and of bacteriological methods of warfare). This was the first convention to extend its prohibition on the use of bacteriological methods of warfare.
However this was not effective since it did not prohibit their possession and many state parties have reserved the right to use it as defense against any attack or to use it on states which are not a party to the protocol. Time and again, discussions on biological and chemical weapons took place, which finally led the community to adopt the Biological Weapons Convention in 1972.
Significance of the convention:-
The Biological Weapons Convention is the first convention to set out rules and regulations regarding the use of biological weapons. The significance of this convention are:
- It completely prohibits any acquisition or retention of biological or toxin weapons without any exceptions
- It prohibits the assisting or encouraging others to acquire biological weapons
- It requires each state parties to implement measures to follow the convention
- At the same time, it protects and encourages peaceful uses of biological science and technology
- Unlike any other convention or treaty, this convention does not differentiate its parties and sets out the same rights and obligations on all member nations.
Aims and objectives of the convention:-
The convention focuses on forbidding the use of bacteriological and toxin weapons and their destruction. There are totally 15 articles in the convention. Reaffirming the Geneva Protocol of 1925 and with the objective to strictly enforce them, the convention:
- Article I – Forbids the state parties from developing, producing, stockpiling or acquiring biological agents or toxins that do not have justification for peaceful or defensive purposes,
- Forbids the parties from developing, producing, stockpiling or acquiring equipment to deliver biological agents or toxins for hostile purposes.
- Article II – Obligates the parties to destroy or divert their existing stock of prohibited items to peaceful purposes.
- Article III – Forbids them from transferring the prohibited items to anyone or aiding in the manufacture or for acquisition of such weapons.
- Article IV – The parties shall have to take measures to prohibit the above said activities within their jurisdiction or anywhere under its control.
The Articles in the convention confers certain rights on the parties such as:-
- It protects the rights of parties to exchange equipment, materials, and scientific and technological information for peaceful purposes and shall be implemented in a way that avoids hampering the economic or technological development of state parties.
- The parties can register complaint against any state party to the Security Council, if they are acting in breach of the provisions of the convention and shall also request a formal investigation.
- There shall be held a review conference every five years from its incorporation and all the state parties shall have the right to make their points.
- The state party can propose amendments to the convention during the review conferences and the states accepting it may follow it thereof.
However the state parties are obliged to assist one another in the event of a biological weapon attacks. The United Nations Security Council will only determine whether the state party has been exposed to danger as a result of violation of convention. No state party has ever requested assistance under such attack under Article VII.
The Biological Weapons Convention became “the first multilateral disarmament treaty to ban the entire category of weapons of mass destruction”. It is for an indefinite duration and any party may became a member by signing and ratifying the convention. There is no need for time to time ratification. Apart from these the following features outshine the convention.
- The Security Council of United Nations is authority having power and control in enforcing the provisions of the convention.
- The convention sets out a clear and comprehensive ban without exceptions.
- Serves as a strong international norm and has never been publicly challenges so for.
- Focusing on improving and effective implementation of the convention, a review conference is held every five years.
- Complaints regarding violations may be made to the UN Security Council with adequate evidences.
- Any state party may withdraw from the convention by giving a notice to the other state parties and UN Security Council.
The review conferences:-
The periodical review conferences has paved way for the better enforcement of the convention and also laid down new guidelines. From 1980 till 2016, eight review conferences has taken place at a Geneva, Switzerland. The third review conference led to the establishment of an expert group VEREX, which shall identify from scientific and technical point whether a state party has violated the convention. A special conference was held in 1994 to discuss the final report of VEREX. It identified 21 potential measures to strengthen the convention.
An important conference was the fourth review conference which created the Chemical Weapons Convention. The Ad Hoc group in 2001 recommended the establishment of an Organization for the Prohibition of Biological Weapons to monitor the implementation of the protocol and convention. The United States rejected it as unacceptable which led to the non- implementation of the text of the group.
The U.S Attack of 2001 and spread of Anthrax paved the way for variety of proposals to tackle the threat of biological weapons in the fifth review conference. But it was a failure since U.S turned down the proposal of Ad Hoc group. The Sixth review conference was the first successful review conference, reaching agreement on final document. An Implementation Support Unit was created to render administrative support for the convention. The last two conferences concluded for effective prohibition of the convention and to extend the period of BWC Implementation Support Unit respectively.
Critical analysis of the convention:-
The very first weakness of the convention is that a lot of terms of the convention are left undefined and stay ambiguous. There is no list of the prohibited items or the targets, the definition given by the WHO as biological agents and toxins. There is no definition on of “weapons, equipment or means of delivery” and hence some state parties urge to have their own definition to the terms. The prohibition set out by the convention is not absolute.
It applies only to types and quantities that have no justification for prophylactic, protective and other peaceful means. Prophylactic refers to medical activities and protective shall not include defense or retaliation purposes.
The term “other peaceful means” remains unclear and hence can include scientific experiments. There is no provision to restrict research activities and it is difficult to draw a line between research and development, and any country can easily develop warfare agents. Once developed they can be rapidly produced in significant quantities, as there is no mention about the sufficient quantity in the convention. It is thus evident how much of quantity stocked by the country would constitute a violation of the convention.
The states are empowered to develop or stock them for hostile purposes, but how far these intention be verified. The stocked toxins can be easily weaponized during war times. A violator can easily exit from the convention, a new state joining it need for declare the possession of banned weapons nor obligated to prove that they have destroyed it.
A serious lacuna is that there is no specific body set up to verify compliance with the convention. There is no organization or implementing body to overlook the activities of the state parties. The UN Security Council has power only to investigate during violation, only if the complaining state provides evidence of such violation.
Unlike the Nuclear non-proliferation treaty and Chemical weapons convention, there is no regulatory body setup which can overlook the proper enforcement of the provisions, detect violations, conduct the review conferences, and formulate provisions for the betterment of the convention. Also the power of veto possessed by the permanent members of UN can be used to protect violators of the treaties. This is why a separate body is requested repeatedly.
Cases of non-compliance:-
Many state parties have violated the convention after ratifying it. The Soviet Union tops the list by violating the convention a lot of times. In 1980, U.S accused Soviet Union for the release of Anthrax spores in the city of Sverdlovsk and the same was accepted by them for the breach of convention. Again in 1981, Soviet Union was accused for production and use of trichothecene mycotoxins in Kampuchea and Afghanistan. They have also sprayed excrements of wild honeybees through aircrafts over U.S. South Africa has been alleged to sterilize the black women to erase the entire community.
Iraq’s biological weapons program has produces botulinum toxin, anthrax, aflatoxin, ricin, etc and to deliver these they developed bombs and missile heads. Although Iraq ratified the convention in 1991, it is believed they have not ended the program and had it throughout the 1990s. There are yet some other unreported cases like the purchase of Ebola and Zika virus by terrorist groups and much more.
Mention has to be made about the novel Corona Virus Disease, the pandemic which originated in the laboratories in the city of Wuhan, China. Controversies erupt that it is a biological weapon released intentionally by the Chinese Government to destroy the entire world. Though there is no evidence to prove the same, the U.S and many states allege it to be the Chinese Virus developed to gain the powerful nation status by China. It is also pertinent to note that China is a party to the Biological Weapons Convention. Only when the pandemic ends, the question of whether it is an accident or deliberate weapon used by China will be answered.
The convention was a successful attempt to curb the misuse of biological weapons in an international parlance. It has served the purpose to lessen the bio wars and the periodical reviews have been useful to enlarge and improve the scope of the convention. However, the convention has lost its significance due to lack of proper guidelines and regulating authority. Many aspects of the convention are ambiguous and provides loop holes to the state party to indulge in activities prohibited by the convention.
Also due to the absence of an authoritative body, the state parties are free to pursue their interest without adhering to the convention. Thus effective measures needs to be taken by the State parties in the Ninth Review Conference to be held in 2021, to fulfil the objective and setup provisions to oversee the adequate accomplishment of the convention.
Author: Rashmi Senthilkumar from Sastra University, Thanjavur.
Editor: Arya Mittal from Hidayatullah National Law University, Raipur.