It’s no secret: the international treaty that outlaws germ warfare is not much of a pact. The Biological and Toxin Weapons Convention, which entered into force in 1975, had good intentions but no teeth. There was no effective  enforcement mechanism to keep countries from cheating, and there still isn’t.

From December 5-22 in Geneva, the signatories will meet for the seventh review conference, held every five years. The treaty is pretty tattered, and the review conference won’t change that. The diplomats may attempt some procedural tweaks, but there is very little in this treaty that would stop a determined effort by a country — let alone a terrorist -  to build an illicit biological weapons program. The Soviet Union, Saddam Hussein’s Iraq and apartheid-era South Africa all defied the treaty in years past.

Although countries are supposed to file annual declarations, last year only 73 of the 163 nations that are parties to the agreement actually sent in their forms.

Two U.S. presidents, George W. Bush and Barack Obama, have concluded that any kind of binding, legal provision for verification would be unworkable. Their argument has been that rapid advances in biology have simply outpaced traditional measures to check against cheating. Almost all biological research is dual use; that which can be directed at improving human health can also be used to create harmful agents. Unlike nuclear weapons, biological research can be easily hidden. That’s one of the reasons to worry about illicit germ warfare, but also a factor in why the treaty has not been strengthened; verification tools like satellites and inspections can miss a well-concealed biological weapons laboratory.

Laura Kennedy, the U.S. Ambassador to the Conference on Disarmament in Geneva, and special representative on the Biological Weapons Convention, is interviewed in the current issue of by Arms Control Today on the upcoming review conference.

She said one idea percolating for the conference is to devote more attention to “health security,” such as improved surveillance, detection of disease outbreaks, and organizing rapid response. I’ve heard from other sources as well that this may be part of a U.S. initiative at the review conference. A similar discussion has already been underway in meetings in between the five year conferences. Kirk C. Bansak provides an overview of these talks in the same issue of the magazine.

No doubt, health security is important; disease knows no political boundaries and is just as threatening whether at the hands of man or Mother Nature. Rapid response and good surveillance are laudable goals, but there are already large agencies, like the World Health Organization and the Centers for Disease Control and Prevention, which worry about them.

But back to the basic problem: the treaty’s goal was to outlaw germ warfare, and it is weak. In the interview, Kennedy says “the threat of bioterrorism—we think it’s real. We think it’s important to deal with this problem in order to achieve the aim of the BWC: a world free from the threat of biological weapons.”

But how? Kennedy refers to “enhanced transparency and compliance diplomacy,” and getting more countries to submit their annual declarations, known as confidence-building measures, and revising questions on the form to be more relevant and precise. At a recent workshop in Switzerland, it was pointed out by one participant that there is no penalty for countries that failed to submit their declarations, and that many of them are never made public.

Some “confidence building” measures.

By contrast, the Chemical Weapons Convention, which came into force in 1997, has often been cited as a model disarmament treaty with effective monitoring, verification and a structure to carry it out. The treaty calls for routine inspections, but it also has a provision for a short-notice “challenge” inspections if a facility suspected of a violation. (The biological weapons treaty has no such mechanism.)

As I reported in The Dead Hand, when these challenge inspections were first negotiated in Geneva, they were very worrisome to officials at the top of the Soviet Union’s bioweapons program. In closed Kremlin meetings, they expressed fear that a challenge inspector looking for chemical weapons might point at the door of a hidden germ warfare laboratory and insist: Open! Then what could they do? The Soviet foreign minister at the time, Eduard Shevardnadze, had already agreed to the challenge inspections in the chemical weapons treaty, as a gesture of glasnost. So what happened? The bioweapons chiefs busily went about trying to conceal their work still more.

Jonathan B. Tucker points out in a new paper for the Harvard-Sussex Program that since the chemical weapons treaty came into force, no state has actually requested a challenge inspection. The reason, he says, is that it would be too confrontational and entail political risks for the accusing state. Instead, when problems arise under the treaty, they are handled by consultations; one country asks another. Tucker, who is now managing the Biosecurity Education Project at the Federation of American Scientists, said either bilateral or multilateral consultations — a process in which countries ask for clarification, instead of force their way through a door — might be useful for the biological weapons treaty, and he offers some suggestions for how it could be done. His paper will soon be posted at the project’s site, here. Update, June 27 2011: the Tucker paper is posted here.

No doubt, a regime that’s trying to hide something nasty like a biological weapons research program may not be influenced by a nice diplomatic inquiry. That’s always the problem with voluntary verification. It is not likely to catch the worst offenders, but may be better than nothing.

The concerns that were originally behind the Biological and Toxin Weapons Convention—the horrors of germ warfare— have not disappeared. It would be nice to see more than just a talking shop at the review conference in Geneva.