Published by The Lawfare Institute
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On July 7, 2020, President Donald Trump formally notified the United Nations that the United States would withdraw from the World Health Organization (WHO). This move comes as the United States reached another high-water mark in the burgeoning number of confirmed COVID-19 cases: surpassing three million. Regardless of whether the United States completes its withdrawal from the WHO, it must continue to prepare to defend against natural outbreaks of contagious disease as well as reconsider the prospects and dangers that might be inflicted through biological warfare. The need to strengthen defense against biological weapons has never been more urgent. We offer a roadmap for the United States to work in partnership with allies to induce states to clarify their abandonment of biowarfare programs while bolstering biodefense collaboration.
Ambiguity regarding China’s compliance with bioweapons treaties is of particular concern. In June 2020 the Department of State released the unclassified U.S. annual report, “Adherence to and Compliance with Arms Control, Nonproliferation, and Disarmament Agreements and Commitments.” The report details specific countries’ levels of compliance with the 1972 Biological Weapons Convention (BWC) and other instruments to control weapons of mass destruction. The reports’ coverage of China is unsettling given the uncertainty over whether Beijing adheres to its obligations to refrain from operating any biological weapons program, as well the duty of all states to eliminate any remnants of past biological weapon initiatives.
The report states that China “engaged in biological activities with potential dual-use applications, some of which raise concerns regarding its compliance with Article I of the BWC.” That article commits states to “never in any circumstances” undertake a program to “develop, produce or stockpile or otherwise acquire” biological agents that have “no justification for prophylactic, protective or other peaceful purposes.” While referencing the 2010 report, the 2020 document reaffirms that “China possessed an offensive program prior to its accession to the BWC in 1984,” and yet Beijing has neglected to provide documentation on the program or its elimination. The report further states that China has submitted BWC Confidence-Building Measures (CBMs) every year since 1989 but it has “never disclosed [that Beijing once] pursued an offensive BW program,” or “acknowledged publicly, or in diplomatic channels its past offensive program.” Under the BWC, CBMs involve critical exchanges of information among state parties on biological research and development, to include declarations of past activities in biological weapons programs “in order to prevent or reduce the occurrence of ambiguities, doubts and suspicions.” If the intelligence community determined that China were violating the international ban on biological weapons, how could the United States and the international community respond, especially when the global health order is reeling from the novel coronavirus and managing the uncertainty and challenges associated with the U.S. withdrawal from the WHO?
Any response to such a violation is made even more complex by the lack of any enforcement mechanism, which is perhaps the most glaring deficit in treaty law covering biological weapons. The first two treaties banning the use of biological weapons are limited to the use of such agents during armed conflict. The 1899 and 1907 Hague Regulations form the bedrock of the norm against the use of biological weapons in time of war. The United States recognizes that these treaties reflect customary law. Article 23 of the 1899 Hague Regulation prohibits the employment of weapons “of a nature to cause superfluous injury,” while Article 23 of the 1907 Hague Regulation prohibits weapons “calculated to cause unnecessary suffering.” The United States considers the phrase “calculated to cause superfluous injury” as a more accurate description of biological warfare agents. While the regulations do not specifically reference biological weapons, the use of known biological pathogens as a means or method of warfare are the quintessential example of weapons that are unlawful per se—by their very nature. The Hague Regulations, however, did not contain any enforcement mechanism to ensure compliance and they proved ineffective in restraining the belligerents during the world wars.
The 1925 Geneva Protocol was the first treaty expressly banning “the use of bacteriological methods of warfare,” and it was adopted in response to the ineffectiveness of the Hague Regulations. The Geneva Protocol sought to expressly ban the use of biological weapons during armed conflict, but it did not ban the development, production or acquisition of these weapons. Numerous states also reserved their right to disregard the prohibitions if another state failed to respect it, essentially creating a ban only on first use. It also did not apply outside of armed conflict, that is, during peacetime. These weaknesses in the protocol regime perversely have incentivized states to develop offensive biological weapons programs, secretly producing and stockpiling biological weapons just in case they were needed to deter an adversary or retaliate after an attack.
The 1972 Biological Weapons Convention was the first comprehensive disarmament agreement banning the entire category of biological weapons, prohibiting the development, production, stockpiling, acquisition or retention of “microbial or other biological agents, or toxins whatever their origin … in quantities that have no justification for prophylactic, protective or other peaceful purposes.” The ban also includes any “weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.” Article II requires each state party to eliminate existing stockpiles within nine months of its entry into force. To date, there are 183 states party to the BWC, including China.
While the BWC banned an entire class of weapons, it is not without flaws. The treaty lacks any verification or enforcement mechanism to ensure compliance. It also does not ban biowarfare research, which poses a dilemma on how to address dual-use programs conducted under the defensive guise of “peaceful purposes.” This anomaly makes it almost impossible for other states or international organizations to distinguish between a peaceful, defensive research program and a line of effort aimed at developing weapons. Even a new verification mechanism may not solve this problem, given the difficulty in determining whether a research program is legitimate or malevolent. The BWC gives states the discretion to maintain stockpiles of biological weapons if they can be “diverted to peaceful purposes.” Unfortunately, the BWC is a paper tiger.
Given the absence of a verification regime to promote adherence to these instruments, the following roadmap could aid implementation and deepen compliance. First, the United States and its treaty allies in Europe and regional partners in the Indo-Pacific region should engage with China on a bilateral and multilateral basis to impress upon Beijing the importance of the norms reflected in these agreements, and their status as jus cogens—fundamental principles of international law to which no exceptions are permitted. As part of the voluntary exchange of CBMs that are submitted to the BWC Implementation Support Unit every year, the United States should develop a caucus of states party to the BWC to encourage China to disclose information regarding its past offensive BW programs, including verification of the elimination of materials and shuttering R&D. China should also disclose information related to its dual-use research to bolster transparency and enhance confidence that Beijing has actually abandoned activities that facilitate weaponization of biological materials. So far, efforts to internationalize the issue to increase transparency through the informal CBM process have not allayed three decades of concern.
Assuming China’s compliance remains opaque and the intelligence community finds that China is not in compliance with its obligations, the United States and its allies should engage with China concerning noncompliance as constituting an internationally wrongful act pursuant to customary international law as restated in the International Law Commission’s 2001 Responsibility of States for Internationally Wrongful Acts. To be deemed wrongful, an act must be attributable to the state and breach an international obligation, such as violating the ban on developing, producing, stockpiling, retaining or otherwise acquiring bioweapons. Besides engaging in lawful measures of retorsion, such as expulsion of diplomats, economic sanctions or embargoes, injured states may respond individually or in concert with allies through the imposition of lawful countermeasures that permit the suspension of legal obligations owed to violators in order to induce them to cease violations. In such a case, for example, a concert of like-minded states party could relate to China that countermeasures could be imposed for a continuing breach of the BWC attributable to China. The current global pandemic illustrates the inherent difficulty in finding the source of a biological pathogen, so the intelligence connecting a state to a violation would have to be compelling. Countermeasures may be a single measure or multiple measures, and may involve virtually any legal relationship between the parties, subject to certain limitations. Countermeasures must be “commensurate with the injury suffered,” or be similar in scale to the violation, and may not involve the threat or use of force.
The United States must emphasize its shared interests with China and seek a new accord that adopts new modalities to enhance biological defense verification that include on-site inspections. While this is a worthy goal, and the United States should leverage the voices of friends and allies to entice China to get on board, it is insufficient to ensure homeland security. Regardless of whether diplomacy leads to greater transparency of China’s biological R&D activities or whether a remedy, such as countermeasures, is invoked, the United States must continue to strengthen its own national biodefense, and work with its allies and international partners to develop systemic resilience. The current coronavirus pandemic underscores the lack of preparation both in the United States and across the globe in dealing with and responding to biological threats. In order to add teeth to the National Biodefense Strategy, if the United States does follow through on the withdrawal from the WHO, it should then shift those resources into collaborative biodefense efforts with NATO allies and Indo-Pacific partners. At a minimum, the strategic relationships should be strengthened with our most advanced and capable allies to ensure that they can supplement the efforts of WHO during a crisis. A new biodefense forum would benefit from inclusion, including observers from all 17 current major non-NATO allies. Together, a new transregional biodefense forum could result in more rapid response, deeper coordination of biodefense responses and distributed preventive strategies to mitigate harm.