This article is written by Sahil Aggarwal, currently pursuing B.A.LLB. (Hons) from NALSAR University of Law, Hyderabad. The article provides an exhaustive account of the jurisprudence against biological weapons in international as well as Indian laws.
The world is strangled in an unprecedented situation against COVID-19, which has taken the lives of millions of people in less than a year. As an implication, the claims of it being a biological weapon have stoked debate among scientists, scholars, policy-makers, and the legal community. However, there is still no conclusive evidence of it being a bio-weapon. Nevertheless, the impact of COVID-19 has necessarily led our attention to a thin line of difference between a biological weapon and a pandemic, hence it is important for us to understand what constitutes a biological weapon and what is the legal mandate on its regulation.
International Conventions on Biological Weaponry
The twentieth century witnessed numerous deliberations at national as well as international levels involving the threats posed by bio-weapons. The first significant development thus came in the form of ‘Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare’, also known as the Geneva Gas Protocol in 1925. The protocol was an extension to the existing prohibition provided under Article 23 of Annex to the Fourth Hague Convention, 1907 on the use of poison and poisoned weapons. It covered both chemicals as well as biological (bacteriological) weapons, that is, weapons based on non-organic or organic (living) poisonous substances. However, it is important to note that the Geneva Protocol placed a ban only on the use of such weapons, and not on the production or possession of the same. This limited prohibition was due to the fact that in 1925, many states had insisted through relevant reservations that they would be free to use such weapons as a response to any such use against them or their allies by another country. This implies that firstly, it was apparently true that with time this kind of weaponry had not only got more sophisticated, but there was a danger hovering over nations of it being used in a conflict. Secondly, there was still a need for more robust and exhaustive legal formulation to check the use of such hazardous weaponry.
Subsequently, the international treaty called ‘Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction’, also known as Biological Weapons Convention (BWC), took birth on April 10, 1972, and came into force on March 26, 1975. The BWC ordained a ban on the use of ‘biological’ weapons in war and prohibited all development, production, acquisition, stockpiling, or transfer of such weapons. Article I of the BWC sought to include ‘agents’ as well as ‘weapons’ in its purview. In Article II, it stressed the need for states to observe ‘all necessary safety precautions’ to ‘protect populations and the environment’ in implementing their obligations. However, the BWC did not satisfactorily provide for the supervision of related activities like development and production of biological weaponry in this context, since at that time, the use of such biological weapons were not deemed to be a substantive military advantage.
Mandates of BWC
- Article I of the BWC prohibits states parties from developing, producing, stockpiling, or otherwise acquiring biological agents or toxins that have no justification for peaceful or defensive purposes.
- Article II of the BWC obligates State parties to destroy or divert their existing stocks of prohibited items for peaceful purposes.
- Article III prohibits state parties from transferring prohibited items to anyone or otherwise helping in the manufacturing or acquisition of biological weapons.
- Article IV of the BWC obligates state parties to provide assistance to others that have been attacked using biological weapons.
- Article V of the BWC obligates state parties to cooperate in solving any problems through consultation and in carrying out any investigation initiated by the UN Security Council.
- Article X of the BWC protects the rights of state parties to exchange equipment, materials, and scientific and technological information for peaceful purposes in order to avoid hampering their economic and technological development.
Impact of the Biological Weapons Convention, 1972
As mentioned earlier, the BWC did not incorporate sufficient provisions to check the compliance of directions by the state, consequently, there have been some instances where countries have flouted the express provisions of the convention and engaged in the development of such weapons. For instance, multiple evidence indicates that the then Soviet Union engaged in a huge biological weapons program in apparent violation of the BWC, in spite of being its signatory. As an implication, it has also been argued that the successive advancements in biotechnology have made it easier for the state to undertake concealed programs in the creation of bioweapons, without employing large numbers of personnel or large-scale physical plants. For instance, it has been argued that there were as many as eight Biological weapon programs around 1990, though differing in their quantum and periods of existence.
It was not long that the states realized this loophole in the convention, moreover, the adoption of Chemicals Weapons Convention, 1997 (CWC) encouraged the diplomats to undertake the process of negotiating enforcement provisions for the BWC. The CWC had incorporated provisions such as on-site challenge inspection and visits to randomly selected sites to check the issue of compliance. Therefore, A United Nations ad hoc group was formed, which developed a ‘protocol’ with a special emphasis on transparency in these programs. However, the protocol was later abandoned, and it was left on the states themselves to monitor and control any suspicious activities by other member states.
Despite the failure of this endeavour, to say that the Convention has utterly failed in its purpose would be a hasty conclusion. This is because, firstly, despite the lack of enforcement mechanism in the convention itself, the multilateral and bilateral attempts between countries have been effective to a reasonable extent, although a few issues still remain. Secondly, the convention acts as a useful forum for the international community to deliberate upon a range of topics concerning biological weaponry. Further, recent convention meetings have seen active participation by non-governmental organizations as well.
Developments in the use of biological weaponry
In order to understand the history of the use of biological weaponry in the past, it is necessary that we understand the use of biological weapons agents is not restricted to their use in actual wars, rather the United Nations identifies multiple threats that a biological weapon portends. The list includes potential use for political assassinations, the infection of livestock or agricultural produce to cause food shortages and economic loss, environmental catastrophes, and the introduction of widespread illness, fear, and mistrust among the public.
History tells us that as early as 600 BC, the people had recognized the use of infectious diseases as having a potential impact on people and armies. For instance, polluting well and other sources of water of the army was a common tactic that was used in the early European wars. Moreover, in the middle ages, it was recognized that the victims of infectious diseases themselves could become a means to diffuse them in the enemy army. For instance, in 1346, the Tartar forces were hit by a plague, they used the cadavers of the deceased to spread the plague in the city, to ultimately cause the retreat of Genoese forces.
Subsequently, in the 20th century, during world war II, the Japanese used various biological weapons against the Chinese. Moreover, the COld War witnessed multiple biological weapon programs by erstwhile U.S.S.R, the U.S., and Britain.
However, in contrast to those periods, today, advancing laboratory technologies have resulted in the growth of new disease agents, simultaneously, those which are naturally occurring can be produced in greater numbers, which make them more effective as a weapon. Rather, the percentage of fatalities has also increased. These developments show the increased likelihood of the ease with which the biological weapons can be obtained as well as transmitted since it is facilitated by affordable technology.
The relevance of an International Treaty for biological weaponry
One may subsequently ask that can we halt this unbridled development in biological weaponry with the coming times, and what has been the treaty’s role in this aspect of biological weaponry? Here, it is important to mention that although biotechnology has played its role in the development of these kinds of weapons at a global level, yet, if a country possesses a capability to produce such weapons, it does not indicate that it would definitely misuse its power. This is because of the inherently ‘dual-use’ and increasingly ubiquitous characteristic of biotechnology that even a panacea can become a poison in the wrong hands.
This is to say that, firstly, the most important aspects then become the motive and the ability to misuse such technology by a state. Arguably, the same reason necessitated a legal formulation in the twentieth century in the form of an international treaty that witnessed the threat of the use of biological weaponry mostly from the states themselves. Thus, the relevance of the treaty does not only curb its use but also provides legal authority to the states to protect themselves by coming together against the violator of the treaty (Article IV of the BWC). Secondly, it has been argued that the BWC has certainly resulted in a reduction of threats from biological weapons from the state actors. Many national programs were abandoned in the era of nuclear weapons, and historically a lower number of nations are suspected of interest in offensive biological weapons today. However, this is not to undermine their capabilities, but to show the impact of international regulation. Rather, the idea of a threat from biological weapons is not restricted to only state actors, but from the non-state actors as well, like terrorist groups.
Pursuant to this realization, in 2004, The United Nations Security Council unanimously adopted the Resolution 1540, under Chapter VII of the United Nations Charter (UN), which obliged all the UN member states (regardless of their participation in the BWC) to take a range of steps aimed at preventing the proliferation of nuclear, chemical and biological weapons, their delivery systems and related materials, especially by non-state actors. As stated earlier, this was the result of two major concerns of that time, firstly, terrorism, secondly, the proliferation of nuclear, chemical and biological weapons. However, its effectiveness is subject to its implementation by the states and the Monitoring Committee.
India ratified the BWC and declared to abide by obligations thereunder on July 15, 1974. There has been no presence of clear evidence, circumstantial or otherwise, that directly points that India has undertaken any biological weapon program.
In terms of preparedness against biological warfare, India has no explicit legal framework that governs the domain of biological weapons. However, it has entered into multiple bilateral agreements with other countries that seek to share the expertise in biosecurity, as well as aim to curb chemical and biological weapon proliferation through export controls, the US-India Strategic Dialogue on biosecurity that started in 2016. India has also joined the Australia Group which is an informal arrangement between interested parties to work together to effectively prevent the proliferation of chemical and biological weapons.
The need for stringent laws against Biological Weaponry
There is an indispensable need to have stringent laws against biological weapons and their proliferation not only because they threaten human lives but also pose harm to agriculture and animals in a bid to cripple economies or starve human populations. The threat to agriculture is more pronounced because the extensive use of gene-editing makes plants increasingly vulnerable. Furthermore, the use of bio-weapons endangers the peace concerns all over the world, since their impact can be uncontrollable, a pandemic does not limit itself to marked territories of the state. Hence there is a great need for robust laws in India to check and regulate the use of biological weaponry as well as set precautionary measures in case of an unfortunate outbreak. Even from the perspective of Foreign policy, India has a dire need to formulate more bilateral or multilateral agreements with the nations, not only to achieve new breakthroughs in biotechnology but also to protect itself from potential threats.
In sum, it can be said that the threat of biological weaponry has increased not only in terms of its effectiveness but also in terms of the potential actors that can threaten millions of innocent lives. This article not only provides laws currently in place to govern the concerns of biological weaponry, but also emphasizes the indispensable requirement of laws, both at the international and at the national levels.
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