The BWC and Industry: A Plea for Industry Outreach

After a history of violations, failed compliance negotiations and almost a decade of annual intersessional discussions, the Biological and Toxin Weapons Convention (BWC) remains essentially, a paper tiger, a five-page gentleman’s agreement with no international means to instill confidence in compliance. The intersessional process of 2002-2005 and 2007-2010 did increase stakeholder participation in BWC issues and provide some areas of common understanding, specifically in expanding the scope of biological activities for peaceful purposes. Looking ahead to the Seventh BWC Review Conference, States Parties have an opportunity to move the next intersessional process (2012-2015) beyond simple discussion to further recognizing and expanding the scope of biology’s peaceful uses while taking into account the impact of scientific and technological advances on the treaty. For this to happen, however, bioindustry needs to be engaged.

A General Purpose Paper Tiger

Article I of the BWC categorically bans biological agents and toxins in types and quantities that have no peaceful justification. This definition or so-called ‘general purpose criterion’ has been reiterated in past Review Conferences to encompass all future scientific and technological developments relevant to the Convention. It however contains no definitions or scope of what constitutes biological activities for peaceful purposes or those that would be expressly prohibited by the Convention. It is this ambiguity that leaves the treaty open to wide interpretations and makes it difficult for states to reconcile the obligation which commits parties to the ‘fullest possible exchange’ of peaceful scientific and technological aspects (Article X) with the treaty obligation that prohibits the transfer of biological sciences for ‘hostile purposes’ (Article III). The intersessional process of annual meetings did not bridge the peaceful/hostile purposes gap; but it was useful in increasing stakeholder input and for elaborating some scope of peaceful purposes, specifically the recognition of the benefits of cooperation on activities such as enhanced disease surveillance, promotion of vaccines and treatment, biosafety and biosecurity, and the education of scientists.1 Accordingly, it could be said that these activities are now more commonly recognized to be falling within the treaty’s scope of ‘peaceful purposes.’

A Role for Industry

Unlike its chemical counterparts that are actively engaged in drafting and implementing the verification annex of the Chemical Weapons Convention (CWC), bioindustry’s position against BWC verification created a strong commercial factor in the political failure of compliance negotiations. While various national and regional pharmaceutical associations noted in the 1990s that a compliance protocol could help mitigate the threat posed by biological weapons, they argued that regular inspection visits of dual-use facilities could compromise sensitive commercial information and potentially harm a company in good-standing if it were falsely accused of producing biological weapons.2 It is not surprising then – even ten years later – that many government officials are wary of re-opening compliance discussions. The involvement of bioindustry is therefore notably minimal in the BWC process compared to a much higher level of participation by the nuclear industry in issues regarding the Nuclear Nonproliferation Treaty (NPT) and chemical industry in CWC implementation.

With the United States making it clear that it “will not seek to revive negotiations on a verification protocol,”3 the idea of third-party oversight and implementation of the BWC remains off the negotiating table for the foreseeable future. The treaty however needs to move beyond its status as a paper tiger to inspire public confidence through substantive action. For States Parties to expand further the scope of peaceful biological activities, they have to move beyond (but still keep relevant) disease surveillance, biosafety and biosecurity issues to focus on delineating the scope of Articles I, III and X. Without it, the treaty will linger in ambiguity with no global guidance on peaceful biological activities and advances, or their exports.

To this end, bioindustry’s innovation, direct application and management of scientific and technological advances are crucial toward a common understanding of peaceful science. Bioindustry’s awareness and engagement in biological diplomacy is therefore necessary for further delineating the BWC’s peaceful scope, thereby strengthening Articles I, III and X of the treaty. In other words, without industry’s involvement, there will be no real study on how it can be done.

A Role for the ISU

As States Parties to the BWC convene for the Seventh Review Conference in December, there is an anticipation that a third intersessional process – and an expanded Implementation Support Unit (ISU) to support it – will be agreed upon for the period 2012-2015. To further increase stakeholder participation, the ISU should be tasked alongside its plan of outreach to non-states parties to also conduct outreach to global biological industry with the objective of increasing their annual intersessional participation.4 An increase in the personnel at the ISU already generally supported by States Parties along with the development and implementation of industry outreach would fit in with an expanded ISU role, particularly given its operation as an independent organ that serves all stakeholders of the treaty, including industry. Such an outreach program would help to further bridge common understandings by states parties and industry – a necessity if they are ever to work together to clarify the BWC’s provisions while also ensuring commercial propriety.

The intersessionals yielding some elaboration on the treaty’s peaceful scope, the objective for the 2012-2015 annual process is to move the BWC beyond talk to substantive action. By engaging industry through the third-party ISU rather than (but also including) national outreach, States Parties will indirectly begin to frame the treaty’s provisions for peaceful purposes and prepare the Eighth Review Conference in 2016 for a more consensus-based approach to BWC clarity and compliance.

Endnotes:

1. For a fuller d iscussion on the BWC’s ambiguities, the intersessional process and the prospects for a third intersessional round in expanding the BWC’s peaceful scope see: Cindy Vestergaard and Animesh Roul, “A (F)utile Intersessional Process?” The Nonproliferation Review, Forthcoming November 2011.
2. See. Statement of Principle on the BWC, Pharmaceutical Research and Manufacturers of America (PhRMA), Washington, D.C., 16 May 1996; European Federation of Pharmaceutical Industries and Associations (EFPIA), Position Paper, 1998; Forum for European Bioindustry Coordination (FEBC) Position Paper 1998; Compliance Protocol to the Biological Weapons Convention: A Joint Position of European, United States and Japanese industry, issued by the FEBC, PhRMA, and Japan Bioindustry Association, July 2001.
3. Under Secretary of State Ellen O. Tauscher, Address to the Annual Meeting of the States Parties to the BWC, 9 December 2009.
4. Only a handful of bioindustry companies participated in annual meetings during the 2007-2010 intersessional process such as Bavarian Nordic, Amyris Biotechnologies, Emergent Biosolutions, Glaxo Smith Kline, Astra Zeneca, Ganymed Pharmaceuticals AG and Sloning BioTechnology GmbH.