Article VII received ample attention at the 8th Review Conference of the Biological and Toxin Weapons Convention (BTWC) (7–25 November 2016). It provides that “Each State Party to this Convention undertakes to provide or support assistance, in accordance with the United Nations Charter, to any Party to the Convention which so requests, if the Security Council decides that such Party has been exposed to danger as a result of violation of the Convention.”
To assist State Party consideration of issues under this provision, the Fondation pour la Recherche Stratégique (FRS) and the United Nations Institute for Disarmament Research (UNIDIR) held a tabletop exercise (TTX) on 8–9 November 2016, with funding from France and a grant from the UK Foreign and Commonwealth Office. Twenty-six national representatives and experts from civil society organisations, including public health and disarmament experts, participated in the tabletop exercise. The French mission organized jointly with the FRS and the UNIDIR a side-event during the Review Conference to present its conclusions and a provisional report was released on this occasion.
The primary goal of the tabletop exercise was to stimulate reflection on the decision-making processes that could lead a BTWC State Party to invoke Article VII and would steer the international community’s response. It aimed to understand better the elements that would have to be in place to trigger Article VII and the consequences such action may have on the organisation of international assistance. Moreover, the TTX also sought to achieve a deeper appreciation of the unique contribution of the BTWC in addition to the expected assistance efforts by international organisations, relief associations and individual countries. In contrast to several other exercises, it did not cover the response phase to the outbreak and the deployment of emergency assistance. In fact the TTX ended at the moment when the international community would have come together to organise its response.
Summary of findings and recommendations (final report)
- Invocation of BTWC Article VII may generate many political and legal uncertainties in the absence of clear procedures. Presently it is unclear under which circumstances the article could be triggered and to whom the request for assistance should be addressed (Chair/President of BTWC meetings, Depository States, UN Secretary-General, UN Security Council). In the case of an unusual disease outbreak the international community will likely respond immediately with medical, humanitarian and other relief assistance via established intergovernmental and international non-governmental organisations. The question therefore arises which types of assistance above and beyond that of a humanitarian response States Parties to the BTWC should consider. In addition, it is unclear how such assistance might be delivered to the requesting state: via the already mobilised intergovernmental and international non-governmental organisations or via alternative routes? More to the point, there are issues related to institutional mandates and competences, as well as operational coordination and decision making, which would need further study.
- The TTX indicated that initial measures by States Parties in response to a disease outbreak—even if concerns exist that the outbreak might have been the result of a malicious act—are likely to be driven by public health concerns. Using existing public health systems and mechanisms under the International Health Regulations (IHR) were primary considerations in the opening stage of the exercise. It reflected the uncertainties regarding situational assessments at this early stage, on the one hand, and the need to respond quickly to save lives, on the other hand. However, this initial response created both institutional and psychological barriers to requesting additional assistance that is explicitly linked to a potential violation of the BTWC. It will therefore be important to establish a procedural framework for how Article VII can be invoked.
- It is equally unclear at what stage of the evolving health emergency Article VII could conceivably be invoked. Requesting assistance under Article VII signals deliberate intent behind the outbreak, which other States Parties may not be willing to accept immediately. This raises questions of evidence. Must the requesting State Party supply evidence of deliberate release in support of its request, and if affirmative, what should be the nature and quality of such evidence? What additional steps to confirm the allegation may the international community, and the UN Security Council in particular, require before determining that the requesting State Party ‘has been exposed to a danger as a result of violation of the Convention’?
- The exercise also showed that States Parties may require independent confirmation of a violation of the BTWC before they are willing to trigger Article VII (for example in form of findings in relation to procedures under Articles V or VI of the BTWC, or of an investigation under the UN Secretary-General’s Mechanism). It will be important therefore to consider whether these mechanisms are well-equipped to provide such independent confirmation at a level of confidence acceptable to States Parties. Equally important, can such mechanisms yield results within time frames that allow timely decision-making under Article VII?
- While current debates on Article VII tend to emphasise humanitarian assistance, the TTX suggested that BTWC States Parties ought to consider the added value of Article VII assistance. Humanitarian assistance is the first response to an unusual disease outbreak, for which mandates and procedures have been developed and adopted by various organisations and institutions. Given that invocation of Article VII is suggestive of a deliberate release of a pathogen, clarifying the uncertainty (with or without attributing responsibility) may be an equally important response component. Article VII could conceivably address the following areas of possible assistance: forensic or investigative capacities, data sharing and information, law enforcement capacity, transport assistance (e.g. humanitarian corridors; road, air space or port access), military assistance (e.g., logistics at points of entry or distribution centres).
- The implications of invoking Article VII clearly complicated the assistance process. From the perspective of the requesting State Party the consequences of the step are unclear. For instance, would it still be in charge of the response? Would it still be involved in the decision-making processes, and if so, to what extent? What control would it retain over developments once the determination of the cause of the outbreak has been internationalised? Might it exacerbate international tensions that contributed to the health crisis in the first place? What options for de-escalation of the conflict remain after internationalisation?
- Participants stressed that in the case of a suspected deliberate outbreak on a technical or procedural level a continuum may exist between humanitarian assistance and assistance delivered under Article VII. However, such a continuum may not be present on a political level. Concern about the point when political factors might become disruptive to the assistance enterprise raised the threshold for invoking Article VII considerably. Participants sensed that resorting to Article VII is an inherently political decision that would set all subsequent decision-making and organisation of the response apart from that for an unusual, yet natural outbreak. The risk that invocation of Article VII might hinder the public health response they viewed as not negligible.
- Article VII and its implications of a deliberate release of pathogens would raise speculation about the identity of the perpetrator. This might affect the willingness of other States Parties to provide assistance on a bilateral or inter-regional basis. Invoking Article VII should not shift the focus away from the public health emergency and reduce the efficiency of crisis management by hindering collaborative approaches and slowing the emergency response.
- BTWC States Parties should also explicitly consider how Article VII might function in case an outbreak is slow-moving or affects animals or plants rather than humans.
- The exercise underlined the desirability of developing a format for an assistance request under Article VII. The process of developing such a format, as well as the agreed format itself, would help to clarify some of the above-mentioned uncertainties in terms of procedures, actors and decision steps.
- The relationship between an assistance action in response to Article VII, and other humanitarian assistance actions under frameworks / legal instruments other than the BTWC, should be further clarified: there are uncertainties at the level of policy, decision making, and operational coordination that could lead to tension, unwanted duplications or operational conflict. A process similar to the interagency coordination exercises under the UN Counter-Terrorism Implementation Task Force (CTITF) working group in the chemical field may point a way forward to clarifying the different roles and mandates and developing coordination mechanisms and interfaces.
- From a methodological point of view, organising tabletop exercises of this kind at regional level could yield valuable inputs to better understand the specific challenges that may hinder the public health crisis response in some parts of the world and clarify how Article VII could be relevant.
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