National implementation of the Biological Weapons Convention

Journal of Conflict and Security Law

Volumn 11, Issue 1, 2006, Pages 93-118

  Dunworth, Treasa ^a   Mathews, Robert J ^b   McCormack, Timothy L H ^c  

^a UNIVERSITY OF AUCKLAND   (New Zealand)

^b DEFENCE SCIENCE AND TECHNOLOGY ORGANISATION   (Australia)

^c UNIVERSITY OF MELBOURNE   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33645409476     PISSN: 14677954     EISSN: 14677962     Source Type: Journal    
DOI: 10.1093/jcsl/krl006     Document Type: Article

References (59)

1. While 'use' of biological weapons is not explicitly covered in the text of the convention, the States Parties to the BWC agreed, at the Fourth Review Conference in 1996, that the prohibition against use of biological weapons is implicitly covered in the convention: Fourth Review Conference of the Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Final Declaration, BWC/CONF.IV/9/PART II (Geneva, 25 November-6 December 1996) para. 3, available at ('Final Document of the Fourth RevCon').
2. That meeting was convened in accordance with a decision taken by States Parties at the Fifth Review Conference: Fifth Review Conference of the Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Final Document, BWC/CONF.V/17 (Geneva, 19 November-7 December 2001, 11-22 November 2002) para. 18(a)(i), available at ('Final Document of the Fifth RevCon').
3. Angela Woodward, Time to Lay Down the Law: National Legislation to Enforce the BWC (2003) available at .
4. First Review Conference of the Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Final Declaration, BWC/CONF.I/10 (Geneva, 3-21 March 1980). Article IV ('Final Declaration of the First RevCon'); Second Review Conference of the Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Geneva, Final Declaration, BWC/CONF.II/ 13/1 (18-26 September 1986) 4-5 ('Final Declaration of the Second RevCon'); Third Review Conference of the Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Final Declaration, BWC/CONF.III/23 (Geneva, 9-27 September 1991), available at ('Final Declaration of the Third RevCon'), 12-13; Final Document of the Fourth RevCon, op. cit., fn.1, 17-18; Final Document of the Fifth RevCon, op. cit., fn.2, 3-4, both available at .
5. Report of the Meeting of the States Parties, Geneva, 10-14 November 2003, BWC/MSP/2003/4 (Vol. I) (26 November 2003), available at .
6. For the First Report of the Chairman of Committee 1540 to the UN Security Council (and in particular Appendix I of the Report listing all those States which have lodged national reports as required under Resolution 1540) see: .
7. See, for example, Robert J. Mathews, 'Raising the Barriers to the Acquisition of WMD by Non-State Actors: The Role of Arms Control and UN Security Council Resolution 1540', paper presented at the Australia and New Zealand Society of International Law Twelfth Annual Conference, Canberra, 18-21 July 2004, available at .
8. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature 13 January 1993; ILM 800 (entered into force 29 April 1997) ('Chemical Weapons Convention').
9. Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 142 (entered into force 29 December 1993) ('Convention on Biological Diversity').
10. See, for example, Verification Research, Training and Information Centre (VERTIC) website, at Biological and Toxin Weapons Convention website, at .
11. See, for example, Scott Spence, Achieving Effective Action on Universality and National Implementation: The CWC Experience (Strengthening the Biological Weapons Convention, Review Conference Paper No. 13, April 2005) available at .
12. In the context of chemical weapons, see, for example, Australian Working Paper, Illustrative Model Legislation for the Incorporation of the Chemical Weapons Convention into Domestic Law, PC-IV/A/WP.10 (Preparatory Commission for the Organisation for the Prohibition of Chemical Weapons, 28 September 1993).
13. See, for example, Christopher B. Harland and Angela Woodward, 'A Model Law: The Biological and Toxin Weapons Crimes Act: An Act to Implement Obligations Under the 1972 Biological and Toxin Weapons Convention and the 1925 Geneva Protocol' (2005) 859 IRRC 573-586. Text available at: .
14. Final Declaration of the Third RevCon, above fn.4, article V.
15. For a recent discussion of the spectrum of approaches and the problems that can arise in application, see Eileen Denza, 'The Relationship between International and National Law', in Malcolm Evans (ed.), International Law (2003) 415-442.
16. See, for example, Robert J. Mathews, 'Addressing the "Dual-Use" Dilemma: Non-Proliferation and Mitigating Strategies Against Biological Warfare and Bioterrorism Threats', paper presented at the US National Academy of Sciences International Workshop on 'Advancing Technologies: Surveying the Global Capacity for Research, Development and Application, and the Prevention of their Application in the Next Generation of Bioterrorism and Biological Warfare Threats', Mexico City, 21-22 September 2004.
17. Article I of the BWC states: 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; (2) Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.
18. For a detailed discussion of article III, see below part 7.
19. For a detailed discussion, see below part 5.
20. This is precisely the course of action the Australian Government has chosen in relation to national implementation of the Rome Statute for the International Criminal Court for example. Schedule 1 of the Australian International Criminal Court (Consequential Amendments) Act 2002 creates a new division (Division 268) of the Criminal Code Act 1995 and that new Division now replicates all the separate crimes of genocide, crimes against humanity and war crimes in articles 6, 7 and 8 of the Rome Statute in Australian domestic criminal law.
21. See, for example, the provisions which were enacted as part of the New Zealand Act which created the New Zealand Nuclear Free Zone: New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act 1987.
22. See above fn.17.
23. See Final Document of the Fourth RevCon, above fn.1.
24. In addition, the prohibition on the use of biological weapons in war still constitutes a binding treaty prohibition on all States Parties: Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, opened for signature 17 June 1925, 94 LNTS 65 (entered into force 8 February 1928) ('1925 Geneva Protocol'). Many commentators also argue that the 1925 Geneva Protocol prohibition has now become a rule of customary international law that is binding on both States Parties to the Protocol and non-States Parties alike.
25. See, for example, Jean Marie Henckaerts and Louise Doswald-Beck (eds.), Customary International Humanitarian Law (2005), 256-258, and supporting practice detailed at 1607-1657.
26. See, for example, s. 6A of the Australian Crimes (Biological Weapons) Act 1976 which applies the Criminal Code Act 1995 chap. 2 (which is the general part of the code incorporating issues including alternative bases of individual criminal responsibility) to violations of the BWC.
27. Final Declaration of the Third RevCon, above fn.4, article IV.
28. See, for example, Ian Brownlie (ed.), Principles of International Law (6th edn., 2003) 301-302. An existing arms control treaty provision which incorporates an explicit obligation upon States Parties to extend their criminal jurisdiction extraterritorially on the basis of nationality is article VII(1)(c) of the 1993 Chemical Weapons Convention which states that: Each State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention. In particular, it shall extend its penal legislation ... to any activity prohibited to a State Party under this Convention undertaken anywhere by natural persons possessing its nationality, in conformity with international law. Article 9 of the 1997 Convention on the Prohibition of Use, Stockpiling, Production and Transfer of Anti-Personnel Landmines and on Their Destruction incorporates an obligation for States Parties similar in content and scope to article VII of the CWC.
29. Section 5 of Australia's implementing legislation, the Crimes (Biological Weapons) Act 1976, adopts this broader extra-territorial approach to scope by extending the Act's application to any acts 'done or omitted to be done by Australian citizens outside Australia...'.
30. Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature 1 July 1968, 729 UNTS 161; ILM 809 (entered into force 5 March 1970) ('NPT'). It should be noted, however, that existing sanctions are not always comparable. For example, in New Zealand, s. 14 of the New Zealand Nuclear Free Zone, Disarmament and Arms Control Act 1987 imposes a maximum of ten years imprisonment for violating the prohibition on use of biological weapons whereas s. 6 of the Chemical Weapons (Prohibition) Act imposes a maximum sentence of life imprisonment for the use of a chemical weapon.
31. Article II of the BWC states: Each State Party to this Convention undertakes to destroy, or to divert to peaceful purposes, as soon as possible but not later than nine months after the entry into force of the Convention, all agents, toxins, weapons, equipment and means of delivery specified in Article I of the Convention, which are in its possession or under its jurisdiction or control. In implementing the provisions of this Article all necessary safety precautions shall be observed to protect populations and the environment.
32. Articles V and VI(2). These articles are discussed in more detail below in part 6.
33. Final Declaration of the First RevCon, above fn.4, article II.
34. Ibid., article IV.
35. Final Declaration of the Second RevCon, above fn.4, 6.
36. It is understood that many States Parties currently obtain the information that is required for the CBM returns on a voluntary basis. However, there would be clear benefits (for example, in terms of accuracy of information and timely submission) if a State Party has legislative authority to obtain, transmit and protect the necessary information, as discussed in part 5.4 below. An additional benefit would be the improvement of a State Party's ability to provide information to address any compliance queries or concerns that arise under article 5 consultations regarding CBMs: See part 6 below.
37. A key issue here is that while the information provided in the CBM return is available to all other States Parties (and made publicly available on websites by a number of States Parties), additional and more sensitive information may be required by a State Party if it is requested by another State Party to clarify a concern about its CBM return (for example, under article V consultations).
38. The Third Review Conference elaborated procedures for the multilateral consultative mechanism and, in particular, specified that the request for clarification should be addressed to one or more of the three depositaries, which would immediately inform all States Parties and convene a procedural meeting within thirty days, and a formal consultative meeting within sixty days: See Final Declaration of the Third RevCon, above fn.14, article V.
39. For example, the multilateral consultative mechanism has only been invoked once, in 1997, to address an allegation by Cuba that a United States government aircraft had deliberately released a crop-destroying insect (thrips palmi) over Cuba in an attempt to damage its agricultural sector. See BioWeapons Prevention Project, Bioweapons Report (2004) 37-39, available at
40. Jenni Rissanen, Issue Brief: The Biological Weapons Convention (2003) Center for Nonproliferation Studies (CNS), Monterey Institute of International Studies, available at .
41. See part 5 above.
42. Final Declaration of the Fourth RevCon, above fn.1,17.
43. Ibid.
44. For further information on the Australia Group, see . See also Julian Perry Robinson, 'The Australia Group and the Chemical Weapons Convention', paper presented to the 19th Workshop of the Pugwash Study Group on Chemical and Biological Warfare, 11-12 January 1992, Geneva, 3.
45. See Robert J. Mathews, 'The Development of the Australia Group Export Control Lists of Biological Pathogens, Toxins and Dual-Use Equipment' (2004) 66 The CBW Conventions Bulletin: News, Background and Comment on Chemical and Biological Weapons Issues 1-4. The items of dual-use production equipment included fermenters, centrifuges and high containment facilities. For the current control lists, see .
46. Important considerations for the Australia Group when developing or adjusting the lists are that the measures should be effective in impeding the production of biological weapons; they should be practical and reasonably easy to implement; and they should not impede the normal trade of materials and equipment used for legitimate purposes.
47. For example, since 11 September 2001 and the threatening anthrax letters sent to members of the US Congress, the Australia Group has made a number of changes to the control lists, including the inclusion of several additional pathogens and toxins, and the reduction in the capacity of fermenters under control from 100 to 20 litres.
48. That is, an item which is not contained on any of the Australia Group control lists, or an item below the licensing threshold (e.g., a fermenter with a capacity of less than 20 litres).
49. See, for example, Australia's Weapons of Mass Destruction (Prevention of Proliferation) Act 1995, discussed in part 9 below.
50. Report of the Meeting of Experts, Geneva, 18-29 August 2003, BWC/ MSP.2003/MX/4 (18 September 2003) available at .
51. For example, the United States has developed a domestic regulatory system based on a 'Select Agent List', whereas the United Kingdom has developed its domestic regulatory system based on the Australia Group list of biological agents.
52. For example, as discussed in part 9 below, Australia is presently reviewing its existing legislation and regulations with a view to ensuring that all obligations under the BWC and Security Council Resolution 1540 are being met.
53. At the BWC Meeting of Experts in 2003, several States Parties spoke in favour of the benefits of assigning a National Authority that would be responsible for BWC obligations.
54. Indeed, in the margins of the BWC Meeting of Experts in 2003, a number of representatives suggested the role of their Chemical Weapons Convention National Authority may be expanded to include responsibility for their BWC obligations.
55. That is, an item which is not contained on any of the Australia Group control lists, or an item below the licensing threshold (e.g., a fermenter with a capacity of less than 20 litres).
56. The Quarantine Act 1908 provides broad powers to the Director of Quarantine to control the importation and use of biological materials in Australia with the aim of preventing or controlling the introduction, establishment or spread of diseases or pests that will (or could) cause significant damage to human beings, animals, plants and/or other aspects of the environment or economic activities.
57. The Gene Technology Act 2000, supported by the Gene Technology Regulations 2001, constitutes the Australian Government's system for regulating 'dealings' with genetically modified organisms (GMO). 'Dealings' with a GMO is defined as conducting experiments, making, developing or producing a GMO; breeding, propagating, growing or raising a GMO; and importing, possessing, using or transporting a GMO. The Act regulates dealings with all GMO and, depending on the dealing, may impose conditions such as containment requirements. Each State and Territory government in Australia has enacted corresponding legislation. The Office of the Gene Technology Regulator implements the Gene Technology Act 2000 and related regulations.
58. Australia, Model Strategy for Implementing BWC Obligations, BWC/MSP.2003/ MX/WP.39, Working Paper presented to the Meeting of Experts (Geneva, 18-29 August 2003).
59. The various issues associated with the development and promulgation of Codes of Conduct for scientists were well captured in the 'Synthesis Document' prepared by the Chairman of the 2005 Meeting of States Parties to the BWC, Doc. No. BWC/MSP/2005/L.1 (16 November 2005).