Ruminations on the Seventh Review Conference of the BWC: More or More of the Same?

David P. Fidler, Contributing GHG Blogger
James Louis Calamaras Professor of Law, Indiana University Maurer School of Law

States parties to the Biological Weapons Convention (BWC) held their Seventh Review Conference (RevCon) in December 2011, adopting their Final Declaration on December 22. Over the past decade or so, the BWC emerged as an important venue for global health governance, a development stimulated by two developments the BWC was never intended to address—bioterrorism and concerns about weaknesses with surveillance and response capacities in countries to address infectious disease threats, whether naturally occurring or man-made. Expectations for the Seventh RevCon were low, and questions about the relevance of the BWC process to global health governance increased in the lead-up to the RevCon. Predictably, the RevCon was hailed as a success when it concluded, including by the Obama administration, which highlighted how the RevCon’s outcomes supported the administration’s strategy on countering biological threats.

I do not attempt a full examination of the RevCon’s outcome here; rather, I want to consider the RevCon’s significance (or lack thereof) in light of a controversy that happened simultaneously with the RevCon. I am referring to the controversy that erupted about publishing research undertaken in the Netherlands and the United States that increased the virulence of the H5N1 influenza virus. This research stimulated fears about potential bioterrorism and public health concerns about such virulent strains escaping from laboratories with inadequate biosecurity and biosafety regimes into a world with insufficient public health surveillance and response capacities to deal with such a nightmare.

Every policy aspect of this controversy—the problems posed by scientific and technological developments, the threat of bioterrorism, concerns about inadequate biosecurity and biosafety standards, and global problems with public health surveillance and responses capacities—has been on the BWC’s agenda for many years without the BWC process responding effectively to these challenges. So, what happened at the Seventh RevCon while this controversy created a policy and media frenzy directly relevant to the BWC’s governance functions? Not surprisingly, nothing in the Final Declaration mentions this controversy, even if the delegates at the RevCon were aware of it. However, it is hard to conclude that the RevCon’s deliberations, declaration, and decisions should increase our confidence in the BWC process.

The RevCon decided to make review of developments in the field of science and technology related to the BWC a standing agenda item for the inter-sessional meeting program authorized for 2012-2015. However, the controversy about the H5N1 research demonstrates that such developments are demanding real-time decisions, not more review over years by processes that have no power to make decisions even if consensus was achieved. Despite years of warnings from experts about the need to address potential dangers in this realm, the BWC process before and after the Seventh RevCon has contributed little to an issue right in the BWC sweet spot.

In terms of the threat posed by bioterrorism, the Seventh RevCon reproduced the bioterrorism “boilerplate” that routinely appears in the BWC process on this issue. Identifying something new or different in the RevCon’s outcome concerning bioterrorism requires untethered imagination, especially as it relates to bioterrorism fears raised about the H5N1 research. Similarly, nothing new emerged from the RevCon concerning biosecurity and biosafety standards in laboratories that we have not seen before in the BWC process or elsewhere, and we already knew that what came before was not adequate given worries in this area, highlighted again by the H5N1 research episode.

As has now also become routine in the BWC process, the Seventh RevCon’s deliberations, declaration, and decisions stressed the importance of strengthening public health surveillance and response capacities as important to the BWC’s object and purpose. And, as has happened before, the RevCon linked this objective with the need to make progress under Article X of the BWC on international cooperation on the peaceful uses of biological agents. The temptation to yawn at these familiar incantations was, for me, temporarily interrupted by a RevCon decision to create something new to bolster Article X cooperation—a database that BWC states parties can voluntarily use to ask for or offer cooperation and assistance, including on public health surveillance and response. . . .

Sorry, the ellipsis was needed to allow my yawn to conclude. The International Health Regulations (2005) already require under international law that WHO members develop and maintain core surveillance and response capabilities by 2012, and, as the IHR Review Committee concluded in 2011, the world is very far from seeing adequate compliance with these binding legal requirements in too many countries. But, have no fear, now we have a voluntary BWC database that may, or may not, be used by countries, at their complete discretion, in ways that may, or may not, address gaping global needs in disease surveillance and response.

I understand the diplomatic and political reasons why BWC states parties claim the Seventh RevCon was successful, but spin-ology isn’t serious policy analysis. Given the alarms raised by the H5N1 research controversy in areas directly relevant to the BWC, the idea that the Seventh RevCon was, in the words of the Obama administration, “an important step toward reinvigorating the BWC as a premier venue for multinational collaboration on concrete efforts to help counter biological proliferation and bioterrorism” leaves me more worried about the BWC’s role in global health governance than I was before the RevCon started.