House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Minutes of Evidence

Memorandum from the Foreign and Commonwealth Office

BIOLOGICAL WEAPONS

I enclose the supplementary information further to the recent oral evidence session on the Biological Weapons Convention Green Paper, which you requested in your letter of 28 October 2002.

1. List of BTWC non-signatories and signatories that have yet to ratify (Q7).

2. Synopsis of responses to the Green Paper (Q17).

3. Note on overseas science students in UK, including information on the voluntary monitoring scheme (QQ28-29 and 50).

4. UK's most recent Confidence Building Measure return (Q76)[8].

5. Note on whether jurisdiction of ICC would cover use of BW by Iraq (QQ86-88).

6. Note on transposition of BTWC into UK law (Q89).

7. Note on which proposed Confidence Building Measures have the greatest potential to increase transparency.

8. Note on how workable are the proposals developed by academics to prohibit CBW under international criminal law; and which the Government has considered and would consider adopting.

Ministerial approval for the FAC to receive a copy of the UK Confidence Building Measures return is, however, on the condition that the Committee should protect its confidentiality. If the FAC wishes to attach it to their Report, or quote from it, or otherwise make any of it public, they should first seek Departmental approval. Before approval can be given, the Department will have to obtain permission from the companies and facilities that provided the data.

I regret that it was not possible to meet your request to receive the supplementary evidence by 6 November.

Parliamentary Relations & Devolution Department

12 November 2002

1. List of Non-Signatories to the BTWC and Signatories Yet to Ratify (Q7)

Non-signatories to the BWC

1. Andorra

2. Angola

3. Antigua & Barbuda

4. Azerbaijan

5. Cameroon

6. Chad

7. Comoros

8. Cook Islands

9. Djibouti

10. East Timor

11. Eritrea

12. Guinea

13. Israel

14. Kazakstan

15. Kiribati

16. Kyrgystan

17. Marshall Islands

18. Mauritania

19. Micronesia

20. Moldova

21. Mozambique

22. Namibia

23. Nauru

24. Niue

25. Palau

26. Sudan

27. Tajikistan

28. Trididad & Tobago

29. Tuvalu

30. Western Samoa

31. Zambia

Signatories yet to ratify the BTWC

1. Burundi

2. Central African Republic

3. Cote d'Ivoire

4. Egypt

5. Gabon

6. Guyana

7. Haiti

8. Liberia

9. Madagascar

10. Malawi

11. Mali

12. Myanmar

13. Nepal

14. Somalia

15. Syrian Arab Republic

16. United Arab Emirates

17. United Republic of Tanzania

IMPORTANCE OF UNIVERSALITY, PARTICULARLY IN REGIONS OF CONCERN

Universality is an important long-term objective as part of international efforts to curb the proliferation and possible use of biological weapons. Most recently it has become an important tool in the war against terrorism, in trying to deny terrorist groups places where they may be able to conduct activities prohibited by the Convention.

We are most concerned about ensuring that countries in regions of international tension are party to all WMD conventions, in particular those in the Middle East.

2. Summary Analysis of Responses to BTWC Green Paper (Q17)

INTRODUCTION AND OVERVIEW

1. At the closing date for responses on 13 September there were 13 written responses to the BTWC Green Paper; two further submissions arrived shortly after the deadline. Three responses have come from US academics/NGO bodies; seven from UK academics/NGOs; two from OGDs; two from trade associations and one from a professional association: details are in the annex[9]. The overwhelming reaction is strongly supportive and welcoming with the UK's leading role on biological disarmament acknowledged; many Green Paper proposals are strongly endorsed with suggestions on how these might be followed-up; constructive criticism is offered, especially on the limitations of certain options and problems that would be encountered in turning them into reality. All believe that efforts at an international level should continue, although a view was expressed that UK and Europe should not take unilateral steps that are not followed internationally.[10] Such developments especially on on-site activities, could have a long-term detrimental effect on UK Industry.[11] US attitudes are condemned and there are recommendations for action without the US. There is widespread support and full endorsement of the multilateral and a legally based approach outlined in the paper. In contrast, one view argues that the paper's central weakness is it failure to reiterate strongly previous UK support for a comprehensive legally binding verification regime.

DETAIL

2. This note will concentrate on reactions to the five priority areas identified in the Green Paper's paragraph 54:

— establishment of an effective and legally binding process for investigation into suspected non-compliance with the Convention to include misuse of facilities, unusual outbreaks of disease believed to be connected to a violation of the Convention and alleged use of BW;

— greater efforts to tackle the threat posed by natural infectious disease to human, animal and plant health;

— criminalisation of violations of the Convention;

— the implementation by more countries of effective physical protection, containment measures and operating procedures for dangerous pathogens and toxins, and genetic modification; and

— greater transparency between States Parties about their legitimate activities whose dual-use capabilities might be in danger of being misconstrued or misused.

(i) establishment of an effective and legally binding process for investigation into suspected non-compliance with the Convention to include misuse of facilities, unusual outbreaks of disease believed to be connected to a violation of the Convention and alleged use of BW.

3. This proposal attracted mixed reactions. On the whole most respondents were strongly supportive, but others noted that there would be substantial political and legal problems in taking this measure forward. Investigations are still seen as a key measure to strengthen the Convention—inclusion of misuse of facilities is commended or seen as particularly helpful, [12] One respondent agrees that a new free standing agreement on investigations is unlikely to be acceptable unless provision is made for scientific and technical cooperation within any agreement.[13] Another comment observes that in the absence of viable alternatives, the existing mechanism that permits the UN Secretary-General to conduct investigations or fact-finding missions into the use of chemical and/or biological weapons should be strengthened, as the Green Paper suggests.[14] Another view was that investigations into non-compliance must have international backing. All of the key developed States Parties would need to participate to ensure credibility internationally.[15]

4. Other reactions to this proposal are more critical. Two respondents have substantive objections to the proposal, essentially on grounds of practicality, not that they are opposed to investigations. One recorded that although this would be a useful measure, it is not likely to be achievable in light of AHG experience and therefore effort should not be wasted on it.[16] The other critical response on investigations does not see how it would be possible to ensure that facilities and suspicious outbreaks of disease could be covered within the existing system. Seeing how this would be done procedurally is also seen as a serious problem: securing new resolutions are seen as problematic.[17] Another respondent suggested that investigations should be limited to alleged use of BW and alleged violations of the BTWC. Direct us of "suspicious outbreaks of disease" as a separate criterion for non-compliance is unlikely to be well received by developing countries where most major diseases occur. It would be preferable to see unusual outbreaks of disease as a possible source of evidence for building a case for non-compliance with the BTWC of Geneva Protocol, but not as providing the sole basis for a change of non-compliance.[18]

(ii) greater efforts to tackle the threat posed by natural infectious disease to human, animal and plant health.

5. There is widespread support for this measure, although it is noted that it would contribute indirectly to a strengthening of the Convention.[19] The BMA believes that the Commonwealth network could lead a good example to others of co-operation. This should include disease surveillance, but also planning in terms of purchase of vaccines and immunisations. In order to increase efforts on detection and diagnosis, the BMA recommends that medical education courses should be available to familiarise medical professionals with the signs of biological warfare-related disease.[20] Greater coherence of disease surveillance at international level would further boost resilience to BW attack.[21] One group, who shares the view that both international and national efforts are needed in this, also argues that action independent of arms control considerations is needed. Support from individual States Parties for a global, multilateral programme to improve and speed detection of infectious disease outbreaks should be sought.[22] Others note that this measure would fit cogently with to the original objective of Article X of the BTWC, co-operation for the prevention of disease. The importance of this Article to developing countries should not be underestimated.[23]

6. Detection, diagnosis and development of anti-infectives, as argued in one submission, all require industry participation. Accordingly, it is essential to engage with industry and identify appropriate incentives. Creating effective partnerships between national and international NGOs, Government, industry and academe is the only way to ensure surveillance, detection, diagnosis and counter-measures work. Such partnerships can be seen in existing campaigns against tropical diseases such as malaria, for example.[24] In a similar vain another comment recommends that there should be incentives to commercialise the development of new detection methods, diagnostic tests and therapies could usefully form part of this initiative. Research will not be undertaken unless, if it is successful, the resulting products can be protected by patents.[25]

(iii) Criminalisation of violations of the Convention

7. One respondent argues that the case for a separate treaty can best be made for international criminalisation of BW activities. Such a Convention could supplement the BTWC and other areas of applicable international law by making individuals indictable and prosecutable regardless of nationality or location of the crime.[26] It is even argued that such a Convention would be valuable even if limited to narrower coverage such as the possession, transfer and use of BW. Others, expressing strong support for such a Convention, regard it as an additional bulwark against the use of CBW, and would expect the UK to support vigorously any such proposal.[27] One response notes that it is important to keep the project close to, and reinforcing the treaty regime of the BTWC; and to stop it being diluted into an anti-terrorist measure; it should remain sufficiently comprehensive to cover government officials and scientists as well as other individuals. One of the co-authors of the original proposal argues that the deterrence mechanism, which such a Convention could provide, needs to be an international initiative, one that would endanger "those at every level responsible" the moment they set foot in countries other than their own.[28] There is little international law whereby individuals—as opposed to states—can be held accountable for acts of BW armament or use. Such a convention would deny Crown immunity, something the 1974 Biological Weapons Act retains, even as amended by the 2001 Anti-Terrorism, Crime and Security Act.

8. A US respondent comments that the step towards considering an international legal response to bioterrorism should be an examination of the issues carried out by an international legal organisation such as the International Law Commission. This might be followed by a decision either to develop a comprehensive convention on terrorism that would encompass possession and use of biological weapons or to continue to enlarge the present set of conventions addressing specific categories of harm to civilians.[29] The same respondent notes that national criminal legislation adopted by all States Parties is clearly desirable. However, it is also widely understood that this does not go far enough since the requirements adopted by states do not apply to non-citizens in their territories who develop, produce, acquire, or use biological weapons in other states.

(iv) the implementation by more countries of effective physical protection, containment measures and operating procedures for dangerous pathogens and toxins, and genetic modification.

9. Most respondents commented on this measure: all are supportive, but some point out the need to avoid duplicating or undermining implementation of existing efforts in this area.[30] One respondent suggest that any Convention on the Physical Protection of Dangerous Pathogens should include mechanisms for establishing the veracity of information declared under its provisions and for quality control in implementing the standards that it establishes.[31] Given the need to avoid duplication, one recommendation suggests that it might be possible to revise the WHO Laboratory Safety Guidelines and/or similar mechanisms in the FAO and OIE.[32] Another points out that WHO could be asked to issue international biosafety standards for specific pathogens. Apparently WHO has been willing to do this for some years, but has lacked the funds. An extra-budgetary donation of $100,000 would probably suffice.[33] There was a view that an additional international convention on physical protection of dangerous pathogens was not required. In this view there are already significant regulations in terms of handling and transfer of dangerous pathogens and live genetically modified organisms. Additional measures could impede research.[34] Conversely, if such a Convention were to be sought it would need to be carefully negotiated to ensure that it did not restrict legitimate research and development in vaccines and therapeutics.[35]

(v) greater transparency between States Parties about their legitimate activities whose dual-use capabilities might be in danger of being misconstrued or misused

10. Although there was no single measure proposed in the Green Paper with this as the sole objective, the proposal dealing with CBMs envisaged the need for greater transparency. In this respect one respondent remarks that biotechnology has maleficent as well as beneficent potential, and there is astute reflection in the Green Paper on the dual applicability of some biotechnology both to the common good and to threatening new weapons. There is wide recognition that the record to date of the existing CBMs has been disappointing: remedies are suggested. One offers the view that simply expanding the declaration requirements is unlikely to be sufficient to improve the quality, quantity or timeliness CBMs. Instead they should be made legally binding and expanded.[36] This assessment is echoed by another respondent who argues that revision of CBMs without a secretariat to follow-up, provide assistance to States Parties and analyse the data, has little value. A secretariat of even just one dedicated official—would potentially increase the value of the present CBMs.[37] The declaration should be translated into all official languages and complied into a publicly accessible database.[38] Alternatively, translation of all submission into a common language would also have value.[39] There would certainly be benefit to State Parties from the existence of a small secretariat to provide continuity of attention to those issues and to collate, translate and issue all relevant documentation. In the view of this particular commentator, such a small secretariat would benefit from efforts undertaken on national criminal legislation, active promotion of universality and withdrawal of reservations to the Geneva Protocol.[40]

11. A detailed commentary on the CBMs makes several proposals.[41] It is now appropriate to examine the actual modalities of submitting the necessary information to the United Nations. The forms could be redesigned and made available electronically through the UN or through the Depositaries. Non-submission of the necessary information could invoke reminders to all States Parties on the due date and at regular intervals thereafter. Detailed consideration should be given to providing the necessary financial resources to actually translate and distribute the CBM returns in a more effective manner because the actual CBM submissions are of limited value to most states parties in their current format. Mechanisms should be created to enable clarification of the returns. The Review Conference provides an opportunity to examine and agree modalities for pursuing clarification of information submitted under the CBMs under Article V of the BTWC. Additional CBMs should not automatically be ruled out, such as the extension of the submission on vaccines to include animal vaccine production facilities. Other new CBMs which might be explored include: a submission on relevant scientific developments related to Article I, a one off detailed submission on the implementation of Article II, substantive information on non-proliferation measures under Article III, national implementation legislation and administrative measures under Article IV, assistance and protection policies under Article VII, and information on Article X implementation.

12. There is also a proposal that the UK could take a step forward by making the data it submits in its CBM publicly available.[42] Although it is noted that the government-to-government nature of the information means the data is beyond the public realm, that policy does not preclude the UK from placing its own submission in the public domain. Upon submission the CBM return could be placed in the House of Commons Library, be circulated to industry, professional bodies and academic institutions, and be made available to individuals and other organisations upon request. Consideration might be given to actually placing the return on the FCO and MOD websites, but the proposers of this course of action recognise that any security implications would need to be considered in this area. Greater transparency about our the UK CBM returns would, it is argued, enhance confidence among states parties, set a standard for other States Parties to follow and improve understanding among the UK population as a whole about the scope and purpose of the BTWC. Despite all this one US commentator remarks that politically binding measures are less promising as evidenced by the poor implementation of CBMs.[43] Any on-site measures that might result from the CBM process must ensure that confidentiality was protected and that the burden kept to a minimum.[44]

13. One submission[45] argues that secrecy about the use of BW agents creates suspicion and undermines good faith between countries. Therefore the UK's decision to remove details about the use of genetically modified potential BW organisms from the public register on national security grounds is not scientifically justifiable and could undermine confidence in the UK's intentions.[46] It is argued that public accountability is an important dimension of a democracy and makes clandestine BW research more difficult.

Scientific Advisory Panel and codes of conduct for professional bodies

14. Two proposals in the Green Paper attracted significant support as well as some detailed ideas on how such ideas might be taken forward: the concept of a Scientific Advisory Panel and codes of conduct for professional bodies.

15. The Government supports the model of the International Panel on Climate Change for intergovernmental bodies that deal with areas of global significance as recommended by the House of Commons Science and Technology Committee. An advisory panel dealing with issues such as emerging new infection or the possibility of genetically modified organisms in bioterrorism could benefit from that type of structure.[47] In establishing such a Panel issues for consideration include getting the balance of expertise right,[48] bringing together the best expert sources and open transparent procedures.[49] In this regard another respondent said the some minimum administrative body with funding to convene the Panel and provide secretarial backup would be needed.[50] A key point in the view of one respondent was that ongoing effort is needed to identify credible scenarios that need to be addressed, which supports the need for a Scientific Advisory Panel to meet frequently.[51] A Scientific Advisory Panel would also help the scientific community act as a watchdog if it suspects that offensive BW research is taking place.[52]

16. As one respondent observes, there are a number of examples of successful national and international science advisory boards that could serve as a model for this panel, such as the European Pharmacopoeia Commission where representative scientists from the European countries work productively together to agree formal monographs defining the qualities of medicinal drugs.[53] In the view of this respondent there are a number of key features that are invaluable in ensuring the success of such panels: expertise, independence, personal attitudes of members, strong leadership, clear mandate, small size, regular meetings and administrative support. Membership rotation is also recommended to ensure new perspectives and input. Another respondent suggests that as its very first activity a Scientific Advisory Panel should be directed to oversee a scientific study of the effectiveness of all types of visits and inspection relevant to the BTWC.[54] Industry would be in a position to comment on capacity building, commercialisation of new technologies and requirements for the development of vaccines, antibiotics, antivirals and decontaminants.[55] Such a panel might meet once yearly.[56]

17. Issues of scientific responsibility and ethics in research are of pre-eminent importance. This is particularly given recent experiments with potentially dangerous implications, such as those conducted in Australia in which the interleukin-4 (IL-4) gene from a mouse was inserted into the mousepox virus, enhancing its virulence and the synthesis of the polio virus from only its chemical components in a laboratory.[57] For this reason, in the view of one respondent, efforts to increase awareness of ethical issues amongst researchers and to improve standards in the scientific community should be a priority.[58] One option would be through codes of conduct, although the complexity of this means that there are significant challenges ahead, such as ensuring international co-operation, enforcement and how to move forward in a variety of activities other than a code of conduct.[59] Another respondent, whilst recognising that a code of conduct would support the BTWC, notes that a code would not be a sufficient response to the problem or a satisfactory alternative strategy.[60] Others recognise that codes of conduct are a long-term measure that must be part of a much larger strategy to be effective.[61] A professional association remarks that scientists and physicians have an ethical responsibility to reinforce the central norm that biological and genetic weapons are unacceptable.[62]

18. One submission suggests that what is needed is an international code to which Governments, professional bodies, associations, academics and others can "buy-in to". This should provide guidelines but not further bureaucracy. By openly publicising it and those who have signed, it should enhance public confidence and, by their mission, identify particular organisations, Governments or constituencies who have not.[63]

Other reactions

19. The Green Paper highlights the possible role for academics and NGOs. One UK respondent asks whether the Green Paper should not also have envisaged roles at the international level given the paper's emphasis on international co-operative efforts to counter BW. One such possibility, in the view of one respondent,[64] lies within the international academic community where new capacity now exists for conducting soundly based policy-orientated research into core BTWC problems (such as dual use). The new capacity has been brought into being by the ad hoc studies of different aspects of bioterrorism commissioned by EU bodies in the aftermath of the events of 11 September. Such networks, it is feared, will dissolve once the studies are done, thereupon dissipating a rare international resource that could be deployed in other efforts to strengthen the BTWC. It is suggested that FCO support could enable such work to be carried forward. The work might proceed within the framework of, for example, the impending Economic and Social Science Research Council National Security Challenges programme, or possibly even under the auspices of an EU Council or Commission subsidiary, provided the framework favoured internationally networked research, especially in projects that could link American researchers into the work.

20. The principal NGOs that concern themselves with the BTWC, based in countries such as Germany, South Africa, Switzerland, the UK and the USA, are discussing possible ways of coming together in order to concert their activities globally. This coalition is developing a programme that would combine global networking and publication, including publication of an annual state-of-the treaty report, so as to increase awareness of the BTWC and to monitor its implementation by individual states parties, including implementation of its associated confidence-building measures. On the precedent, not least, of its financial support for a rather similar international NGO enterprise, Small Arms Survey, it is suggested that HMG might want to consider helping this one too.[65]

Arms Control and Disarmament Research Unit

8 Not printed. Back

9 Ev 23. Back

10 Dr Philip Wright, Director of Science and Technology, The Association of the British Pharmaceutical Industry, 25 September 2002. Back

11 Strengthening the Biological and Toxin Weapons Convention: Countering the threat from Biological Weapons. Response from the Bio Industry Association (BIA) 17 September 2002. Back

12 Strengthening the Biological Weapons Convention Review Conference Paper No 6 Return to Geneva: The United Kingdom Green Paper June 2002 Series Editors Graham S Pearson and Malcolm R Dando, University of Bradford page 39 paragraph 90; Daryl G Kimball, Executive Director, Arms Control Association, Washington DC, 22 July 2002. Back

13 Strengthening the Biological and Toxin Weapons Convention: countering the threat from Biological Weapons Cm 5484 April 2002 Response of the Mountbatten Centre for International Studies University of Southampton, 27 August 2002. Back

14 VERTIC's response to the UK's Green Paper Strengthening the Biological and Toxin Weapons Convention: countering the threat from Biological Weapons, 3 September 2002. Back

15 ABPI. Back

16 Federation of American Scientists Working Group on Biological Weapons Comments on the UK Green Paper "Strengthening the BTWC: countering the Threat from Biological Weapons", 13 August 2002. Back

17 Nicholas Sims, Department of International Relations, London School of Economics, Response to UK Green Paper of 29 April 2002, 29 August 2002. Back

18 Dr Susan Wright, Research Scientist, Institute for Research on Women and Gender, University of Michigan Comment on "Strengthening the Biological and Toxin Weapons Convention: Countering the Threat from Biological Weapons, Cmnd 5484 (April 2002). Back