Time to lay down the law National legislation to enforce the BWC The  Convention on the Prohibition of the Development,  is the Verification Research, Training and Information Production and Stockpiling of Bacteriological (Biological) Centre, an independent, non-profit making, non-govern- Time to lay down the law and Toxin Weapons and on eir Destruction () obliges mental organisation. Its mission is to promote effective and states parties to take any necessary national measures to efficient verification as a means of ensuring confidence in National legislation to enforce the BWC implement the treaty in their territory. States parties have the implementation of international agreements and intra- agreed that this requires the adoption of legislation, including national agreements with international involvement.  penal sanctions. aims to achieve its mission through research, training, Only now, thirty years after the treaty’s adoption, are states dissemination of information, and interaction with the parties collectively considering what legislative provisions relevant political, diplomatic, technical, scientific and non- are required to effectively enforce the treaty. This report is governmental communities. intended to assist states parties in this endeavour by assessing The Centre is based at Baird House, – St. Cross Street, the current status of their national legislation to enforce the London,  , United Kingdom. treaty’s core prohibitions. The report provides comparative Phone +.()... analysis of existing legislation, makes recommendations for Fax +.()... increasing the rate of adoption of legislation and proposes E-mail [email protected] ways to make existing and new legislation more effective. Web www.vertic.org It should be of use to states parties preparing to adopt or amend legislation, states and organisations providing assist- Design and production: Richard Jones, Exile: Design and ance to states parties, and to the international community Editorial Services ([email protected]). generally. A companion dataset of legislation collected is Front cover images: New Zealand laws © Angela Woodward; available at ’s website. ‘Old Bailey’ criminal court, London © Angela Woodward;  is grateful to those states parties that completed our Anthrax bacterial spores © Scott Camazine/Science Photo questionnaire, sent us their legislation or provided supple- Library. mental information.  also thanks the  Department Back cover image: Smallpox virus © Eye of Science/Science for Disarmament Affairs and the International Committee Photo Library. of the Red Cross for their support. Notwithstanding this Printed by Corporate and Commercial Printing Limited, valuable assistance, responsibility for this document rests – Helmet Row, London  , United Kingdom. with .  ---  is grateful to the Ploughshares Fund for its generous financial assistance for this project. ©   Time to lay down the law National legislation to enforce the BWC

 Foreword  Acronyms  Glossary  Introduction  Survey of national implementation legislation  Survey method  Survey results  Figure 1 Status of national implementation legislation by region  Comparative analysis  Defi nitions  Scope of prohibitions incorporated in national legislation  Enforcement powers  Export and import controls  External territories  Extraterritoriality and universal jurisdiction  Divulgence of BW-related-related infinformationormation  National focal point  Penal sanctions  Recommendations for strengthening national implementation legislation  Promoting common understandings  A mechanism for providing assistance  Ensuring national legislation is implemented and enforced  Enhancing transparency  ConclusionC onclusion  About the author  Annex Confi dence-Building Measure Form ‘E’: Declaration of legislation, regulations and other measures TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC            List of tables Table 2B Table 3 List of states parties withanationalList ofstatesfocal point parties Known territories external BWC ofselected states parties Non-BW specifi coff ences that to may serve prohibit biological weaponsormisuseofbiological agents Legislation whichattempt to enforce 1prohibitions thefullrange ofArticle ofdefiRange nitionsusedinnational implementation legislation Illustrative summary of export and import control andimport provisionsIllustrative ofexport summary Illustrative ofenforcement summary powers Other off ences directly related to biological weapons or biological agents but not cast in BWC treaty language Other defi nitionswhichmay relate to biological weapons TableT 6 Table 4 TableT 5 Table 1A Table 2A Table 2 Table 1 able 6 able 5  October  Editor andExecutive Director, Trevor Findlay Finally, omissions andwelcome thesubmissionofadditionallegislative texts. not guaranteethatitisfree from error oromission. We encourageyour commentsonanyerrors or effevery hasbeentakentoensure ort theaccuracyofmaterial reproduced inthis report, national measures, so that we may update our website collection of national implementing laws. whichhave notalreadystates parties While donesocompletethequestionnaire andprovide textsoftheir Despite with anyerrors oromissions,are thoseof information. Notwithstanding thisvaluable expressed assistance,theviews inthisdocument,along ( Committee oftheRed Cross ( our questionnaire and provided supplemental information.  Horsburgh, John Russell andPatricia Watt.  e report was written by Angela Woodward, with research assistance from Marie Fagerström, Nicola and otherswithaninterest inimproved implementationofthe others. It shouldalsobeofinterest tointernationalorganisations,non-governmental organisations also be of use to states parties preparing to adopt or amend legislation or those providing assistance to In addition to being a contribution to the Meeting of States Parties recommendations ofaninterimreport whichwaspreparedin Meeting fortheExperts inAugust . November , the report should information and advice obtained from consultations with states parties and others on the fi ndings and the Biological Weapons Convention covering the period April  to October . It incorporates legislation to enforce the BWC. held in Geneva from – November , by producing this report:  Meetings ofStates Parties beingheldbetween and. measures, including penal legislation.  is is the fi rst agenda item for a series of Experts Meetingsand promote ‘common understandingsandeff and ective action’ national ontheadoptionofnecessary Fifth Review Conference heldinNovember ,they agreed, ofa‘new aspart process’, todiscuss the obligation to adopt such national measures at successive implement theirfundamentalobligationsunderthetreaty. States have repeatedly parties reaffi rmed  eBiological Weapons Convention ( Foreword  is grateful to all of the states parties that have cooperated with us, especially those which fi lled out is pleased to contribute to the discussions at the fi rst of these Meetings of States Parties, to be   ) forsharinginformationontheirlegislative holdings,aswell asotherswhohave provided is grateful to the Ploughshares Fund for its generous fi nancial assistance for this project. ’s intensive research, we do not have information on all states parties. It would be helpful if It is the fi nal report of   ) andtheUnited Nations forDisarmament Department Aff airs   ) obliges states parties toadoptnationalmeasures) obligesstatesparties to alone.  ’s project on National Legislation to Implement   Review Conferences. At the resumed also wishes to thank the Inter national  Time to lay down the law: national .  does

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC                          Acronyms

Biological Weapons Convention United Nations forDisarmament Department Aff airs United Nations Organization forSecurity and Co-operationinEurope Organisation fortheProhibition ofChemical Weapons Organisation ofEasternCaribbeanStates International Humanitarian Law International CommitteeoftheRed Cross European Union European Community Chemical Weapons Convention Counter-Terrorism Committee Confi dence-Building Measure BioWeapons Prevention Project Biological Weapons Caribbean Community Inter-American Committee Against Terrorism Meeting ofStates Parties Non-Governmental Organisation Association ofSoutheast AsianNations World Customs Organisation Verifi cation Research, Training and Information Centre Weapons ofMass Destruction World Health Organisation African Union (Comite Interamericano Contra el Terrorismo)  e Protocol fortheProhibition oftheUse in War ofAsphyxiating,Poisonous orOther Gases, Geneva Protocol Seewith counter-terrorism expertise. www.un.org/Docs/sc/committees//index.html. of Assistance)andfacilitatestheprovision andreceipt ofassistancebetween states andorganisations of assistance in the area of counter-terrorism (Directory of Counter-Terrorismto fi Information ght terrorism. and Sources e  established the on the United States on  September  and expressed its determination to prevent all such acts. It  Counter-Terrorism Committee( and theAnnextothisreport. ‘Declaration oflegislation,regulations andothermeasures’. See Review Conference in  states parties adopted improve transparency. Most were adoptedattheSecond Review Conference in.At the ird Measures by undertaken Confi dence-Building Measures ( the Prohibition of Chemical Weapons ( to oversee itsimplementationandtoliaisewiththetreaty’s verifi cationbody, the Organi sationfor state party is required to adopt national implementation measures and establish a National Authority force on April .Unlike the Chemical Weapons and on their Destruction (Chemical Weapons Convention).  eConvention ontheProhibition oftheDevelopment, Production, Stockpiling andUse of e treaty entered into Chemical Weapons Convention ( authorised access.  eeff ective implementationofmeasures tocontrol accesstopathogensandtoxins andprevent un- Biosecurity conditions underwhichinfectiousagentscanbesafelymanipulated. mental exposure topotentiallyinfectiousagentsorbiohazards. Biosafety defi nesthecontainment  e application of knowledge, techniques and equipment to prevent personal, laboratory and environ- Biosafety designedtousesuchbiologicalagents. or meansofdelivery biological agents except for prophylactic, protective or other peaceful purposes and weapons, equipment March .It prohibits thedevelopment, production, stockpilingoracquisitionretention of iological (Biological) and Toxin Weapons and on  eir Destruction.  e treaty entered into force e  Convention onon the Prohibition of the Development, Production and Stockpiling of Bacter- Biological Weapons Convention ( Glossary use of chemicaland biologicalweapons buthasnoverifi cationsystem. and of Bacteriological Methods of Warfare.  e Protocol came into force on  February . It bans the Security Council resolution  () reaffi rmed the council’s condemnation of the terrorist attacks  to monitor states’ implementation of the resolution and to increase their capability   maintains a directory of information on standards, best practice and sources states parties tostrengthen statesparties implementationoftheirobligationsand      ) s) )  ) ithasacomprehensive, permanentverifi cation regime. Each ),) based in  e Hague, Netherlands. See www.opcw.org. ,

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TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  e international organisation established by the  Chemical Weapons Convention ( Organisation fortheProhibition ofChemical Weapons ( See http://disarmament.un.org/MineBan.nsf. or LandmineConvention).  etreaty entered intoforce onMarch . Personnel Mines and on their (also Destruction known as the Ottawa Convention, Mine-Ban Treaty  eConvention ontheProhibition oftheUse, Stockpiling, Production and Transfer ofAnti- Ottawa Convention monitoring and/ortheprovision ofadviceorassistance. A non-profi t organisation which is independent of government.Non-Governmental Organisation ( or legalpersonstobeprosecuted inanyotherstate’s legaljurisdictions(‘universal jurisdiction’). (‘extraterritoriality’). Provision mayalsobemadeforoff encesthatare committed by astate’s natural nationals and companies registered in its territory in respect of activities conducted outside its territory In accordance withinternationallaw, thesenationalmeasures maybeextendedtoapplyastate’s to prohibited activity being carried out on its territory without recourse to an appropriate punishment. ‘penal sanctions’), and to deter violations from occurring. Without such measures, a state is vulnerable bitions on activities within its legal jurisdiction, by creating off ences and punishmentsRegulations, Rules orStatutory Instruments. Legislationenablesastatetoeff (together ectively enforce prohi- termed under a power authorised in primary legislation. Delegated legislation includes legislation,isadoptedbyor Congress. government Delegated, orsecondary oragencies departments Bylaws, Notices, Orders, Decrees, Laws or Statutes, is adopted by the legislative branch of government, for example Parliament Legislation is one form of national implementation measure. Primary legislation, such as Acts, Codes, National Implementation Legislation orders orexecutive orders. legal obligations. Such measures include legislation, regulations, governmentLegal instruments decreesadopted by a state and to give administrative eff ect in its domestic legal jurisdiction to its international National Implementation Measures or astatemayvoluntarily establishone. binding commitment, are carried out. A treaty may require that such a national authority be establishedA body designated by a government to ensure that the state’s obligations under a treaty,National Authority orNational Focal Pointor other legally- It protects persons who are not participating in hostilities and restricts means and methods of warfare International humanitarian law seeks, for humanitarian reasons, to limit the eff ects of armed conflInternational Humanitarian Law( ict. Established in,the the lives anddignityofvictimswarinternalviolencetoprovide themwithassistance. An impartial, neutral and independent organisation whose exclusive humanitarian mission is to protectInternational CommitteeoftheRed Cross ( compliance andassistinits implementation. See www.opcw.org  isbasedinGeneva, Switzerland. See www.icrc.org.   ) )  )   ) activities include advocacy, research,  ) to verify . be inclinedtocheat. system aims both to confi rm compliance and detect non-compliance in order to deter parties that may assuring themthattheiragreement isbeingimplementedeff ectively andfairly. Agood verifi cation compliance ornon-compliancewithanagreement. It aimstobuildconfi dencebetween theparties, Verifi cation is the process of gathering and analysing information to make a judgement about parties’ Verifi cation collecting anddisseminatingtheannual and Security Council in the sphere of disarmament. In  charging his responsibilities under the ofthe A part United Nations for Disarmament Department Aff airs( peaceful activities, such as research, that may have military applicationsIn theor verifi relevance to such cation applications.fi eld transparency refers to openness about a state’s military Transparencyactivities and about any totheobjectandpurposeoftreaty.may notactinawaywhichiscontrary and dutiescontainedinthetreaty, butunderthe Vienna Convention ontheLawof Treaties, it A state which has signed, but not yet ratifi ed a treaty. e state is not formally bound by all the rights  State Signatory formally acquires alltherightsandisboundby alltheobligationssetoutintreaty.  emomentatreaty tothetreaty. entersintoforce forastate,thatstateisparty then Astateparty State Party  eSixth Review Conference isscheduledfornolaterthanthe endof. States parties have met to review the operation of the  Review Conferences  Secretariat whichprovides advice and assistancetothe  Charter and the tasks assigned to him by the General Assembly  declarations.See http://disarmament.un.org.   in , , ,  and  and .  states parties tasked the )  Secretary-General indis-  with w i t h

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC Asia, onefrom Africaandonefrom Oceania didso. Hence, Meeting theExperts didnotincrease already widely available. While  European states tabled papers, only six from the Americas, six from had adopted.  e states which tabled documents were, by and large, those for which information was their experiences in implementing the treaty and describing the scope of measures and legislation they pating states made statements on their current situation, while thirty tabled working papers outlining August , where national implementation measures were the fi rst item on the agenda. Many partici-Additional information was obtained from the fi rst publicly available, theproject aimstoincrease transparency andunderstanding. national implementation and enforcement measures. By making whatever informationstates parties of their we obligation have to adoptobtained appropriate national legislation in addition to other necessary the study. In additiontoconductingthesurvey, theproject hasalsosoughttoraiseawareness among  to develop, acquire orretain produce, stockpileorotherwise biologicalweapons. However, where enforce the treaty’s core prohibitions, specifi callythoseinArticle measures, allofwhichare available atwww.vertic.org.  focussedonnationallegislationto esurvey extent and status. inaneff statesparties toproduce ascomprehensive ort anassessmentaspossibleoftheircurrent Since April  the statusandeff ectiveness ofnationalimplementationmeasures. of their  e lack of public access to the as confi dential,despitethefactthatnationallegislationis, by itsnature, publicinformation. reporting has,by allaccounts,beenpatchy, althoughitisdiffi culttojudge, asthe reports are treated using under the Confi dence-Building Measures ( ( texts of legislation that they have adopted to the United Nations Department for Disarmament Aff airs In addition, they have agreed to provide information on their national implementation measures and legislation totheircitizens actingoutsidetheirterritory, jurisdictionorcontrol (‘extraterritoriality’). the fi rst in . ey have also  agreed to consider,measures—and specifi voluntarily, cally, treaty nationallegislation—atevery Conference,Review beginningwith extending the application of their national States parties have reaffi rmed their legally binding commitment to adoptits jurisdictionorcontrol anywhere’.such national implementation and means of delivery specifi ed in Article  of the Convention, within the territory of such State, under ment, production, stockpiling,acquisition,orretention oftheagents,toxins, weapons, equipment with its constitutional processes [to] take any necessary measures to prohibit and prevent the develop- Each state party to the  Biological Weapons Convention is obliged, under Article Introduction new information, wherenew ithasbecomeavailable to transparency forwhichpublicinformationislacking. aboutthelarge numberofstatesparties e   obtainedinformationonanyothermeasure toimplementthetreaty, thiswasincludedin ).) States parties have also agreed to provide information on the status of their national measures  .

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TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC Brazil, Bulgaria, Canada, China, Colombia, Denmark, Finland, Georgia, Germany, Hungary, Ireland, on the status of their national implementation legislation: Argentina, Australia,As of  October  Austria, the following Belgium, states parties had Belize, responded to States whichprovided information prohibitions whichare thefocusofthisreport isalsoincludedintheinterests oftransparency. translation. Legislationreceived thatrelates toaspectsof bwlegislation.html). Legislation is available in offi cial languages as well as, where available,Weapons in English Convention: CollectionofNational Implementation Legislation tive summaries ofimplementationmeasures have beencollatedat  states parties, as of  October . Legislative text, specifi c provisions within legislation or descrip- available. the statusoflegislationisavailable.  informationbecomes isinformationwillbeupdatedasnew what legislation has been adopted, what laws are currently being drafted and where no information on party is available on ofthestatusnationalimplementationlegislationadoptedby eachstate Asummary states parties.  ofthestatesparties. isincludestheinformationprovided inquestionnaires received from  As ofOctober theproject hadcollectedinformationonthestatusofnationallegislationfor resultsSurvey  format. Additionally, their nationallegislationby completingthequestionnaire orby informationinanother forwarding other government agency. Contactswere briefedontheproject andaskedtoprovide informationon a nationalfocalpointfor or through appropriate contacts identifi ed in capitals. Great eff orts were made to establishstates contact parties with were contacted at least three times either through their missions in Geneva or New York  equestionnaire wasalsopostedon posted to all states parties in April  and was made available in Arabic,Weapons English, to evaluate Frenchlegal instruments toand implement Spanish. the  Chemical Weapons Convention. It was questionnaire, modelled in part on that developed by the Organisation for the Prohibition e principal methodof forChemical surveying the status of method Survey Survey of national implementation legislation Ukraine, theUnited KingdomandtheUnited States. the Russian Federation, Saint KittsandNevis, Seychelles, Slovakia, Switzerland,  ailand, Turkey, Italy, Latvia,Lithuania,theNetherlands, New Japan, Zealand, Paraguay, Korea (Republic of), Peru, implementationtosupplementtheinformationprovided inthequestionnaire responses. alsoobtainedcopiesoftheactualtextsnationallegislationandothermeasur    ’s website at www.vertic.org.  e summary lists each state party and indicates staff usedopensources andliaisedwithotherorganisationsinvolved in measures, whetherbasedinaforeign ministry, or defencedepartment  ’s website (www.vertic.org) inalloftheselanguages.All  national implementation legislation was a  implementation beyond the Article  implementationbeyond theArticle   (www.vertic.org/datasets/ ’s website as ’s request for information  Biological es adoptedby  Zimbabwe. Singapore, Sri Lanka,Sudan, Suriname, Swaziland, Timor Leste, Togo, Tunisia, Uganda, Yemen and Saint Vincent andtheGrenadines, San Marino, Sao Tome andPrincipe, Saudi Arabia, Sierra Leone, Morocco, Niger, Oman, Pakistan, Palau, Papua New Guinea, Philippines, Qatar, Rwanda, Saint Lucia, (Democratic People’s Laos,Lesotho,Luxembourg, Maldives, Mali, Malta, Mongolia, Republic of), Gambia, Ghana, Grenada, Guinea-Bissau, Holy See, Honduras, Indonesia, Jamaica, Kenya, Korea Burkina Faso, Cape Verde, Congo, Democratic Republic of Congo, Dominican Republic, El Salvador, AntiguaandBarbuda, statesparties: Bahamas, Bangladesh, Barbados, Benin, Bhutan, Botswana,  States for identifi whichnoinformation been has ed  e number of states for which information on legislation is availablealso exist. stands at , or  of states parties. some legislation that may serve to implement the we have been unable to clarify the situation. For other states parties we have acquired information on mentation, butwithoutacopyofthetextandinabsencecommunicationwithstateoffi For some of these states, we are aware of some legislation in force which may be relevant to Uruguay, Uzbekistan, Vanuatu, Venezuela and Vietnam. Serbia and Montenegro, Slovenia, Solomon Islands, South Africa, Spain,Mauritius, Sweden, Mexico, Tonga, Monaco, Nicaragua,Turkmenistan, Nigeria, Norway, Panama,Kuwait, Lebanon,Libya, Liechtenstein,Macedonia Malaysia, (theformer Poland,Yugoslav Republic of), Portugal, Romania, Senegal, Equatorial Guinea, Estonia,Ethiopia, Fiji, France, Greece, Guatemala, Iceland, India, Iraq, Jordan, Darussalam, Cambodia, Chile, Costa Rica, Croatia, Cuba, Cyprus, Czech Afghanistan, Albania,Algeria,Armenia,Bahrain, Bolivia,BosniaandHerzegovina, Belarus, Republic, Brunei- Dominica, Ecuador, Information onlegislation wasobtainedfrom suchsources forthefollowing statesparties: obtain informationfrom opensources. the information is correct, complete and up-to-date, where this was not possible attempts were While itisclearlypreferablemade tolearnofnationallegislationdirectly toensure from statesparties that to the United States. the Russian Federation, South Africa,Spain, Sweden,  ailand,Ukraine, theUnited Kingdomand Ireland, Iran, Italy, Japan, Malaysia, Mexico, the Netherlands, Poland, Portugal, Korea (Republic of), Argentina, Austria, Australia, Belgium, Bulgaria, Brazil, Canada,tion, China, intheir Working Papers tothe Cuba, Finland, France, Germany,  e following  states parties made information available on their national measures, including statesOther for whichinformation was obtained legisla- answered requests forclarifi informationandprovided cationorfurther copiesoflegislative texts. In additiontoresponding toourquestionnaire, manyoftheabove suppliedadditionalinformation, signatory tothetreaty.signatory While not yet formally boundby thetreaty, thesestatesare obligednotto act Very little information is available on the status of national legislation to enforce the wasunabletoidentifyanyrelevant nationallegislationtoenforce the  Experts Meeting Experts heldfrom –August inGeneva:  , but are unsure if other relevant legislation might   forthefollowing in the  states  imple- cial,

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC identifi inAsia, edforofstates parties Europe andinbothAfricathe Americas. Legislation whichmaypossibly, butnotdefi nitively, toimplement the serve Europe. Some inOceania alsohave ofstatesparties legislationinforce. biological weapons, it was possible to identify relevant legislationstates being in Europein place and for the  existence of states in the parties European in Union ( and intheAmericas.Asaresult ofthehigherresponse ratetotheproject questionnaire from Relevant implementinglegislationwasidentifi inAfrica,Asia edforonlyofstatesparties  inAsia,the AmericasandinOceania. esameappliestoofstatesparties or from other sources, was found on the existence of national legislation for  of African e charts illustrate states the worrying parties.fact that that no information, whether from states parties themselves be identifi edonthestatusofmeasures inofstatesparties. measures toenforce thetreaty, whileforotherstheseare additionalmeasures. No informationcould are currently measures draftingnew toenforce the toimplementthetreaty. have legislationwhichmayserve further Seven percentofstatesparties Collectively, have somelegislation inforce of statesparties whichimplementsthe Any combinationofthefi rstthree categoriesmayapplytoanyonestateparty. thepercentage ofstatesforwhichnoinformationhasyet beenidentifi• ed(‘no information’). the percentage of states• which are currently drafting relevant legislation or other measures (‘drafting’) thepercentagetoimplementtreaty withnationallegislationinforce whichmaypossiblyserve • whichhave thepercentage adopted nationallegislationtoimplementtheir ofstatesparties • well asby region, basedonthe  inFigure echarts show thestatusofnationalmeasures inaggregate, adoptedby statesparties as Regional diff erences the fact that some states• have only recently acceded to the treaty and have not yet had time to adopt thelackofnationalprocedures forcoordinating • thelackofanoffi• cial responsetothe theabsenceofinformationinopensources • theabsenceofnationalimplementinglawsinstate •  ereasons whyinformationcouldnotbeobtainedby obligation. treaty-prohibited activity from occurring on their territory would demonstratein a waytheir that commit would frustratement to this its object and purpose. Adopting national measures and legislation to prevent enforce thetreaty. As we do not have copies of these legislative texts, it is impossible to assess how eff ectively they actually any measures. and (‘uncertain’) obligations (‘inforce’)  understands that one signatory state is currently drafting implementation legislation.  regional classifi cationsystem. eyillustrate:   questionnaire ortodirect enquiries   implementation,and prohibitions. For somestates,theseare new   ) of a regulatory framework for prohibiting mightthushave included:  prohibitions were  , whilea  Drafting  Drafting  Drafting  In force  In force  In force  No information No information No information ment to adopt national implementation legislation. While notIn conducting all states this survey, parties will require comprehensive Attitudes to theadoptionofnationalimplementationlegislation  in the Americas,  in Europe and  in Africa are considering new legislation or other measures. of alltreaty obligations.Eleven inAsiaare percentofstatesparties draftinglegislationandafurther the eff ectiveness of these measures and considering new legislation to ensure eff ective implementationalready have somerelevant legislationandotherimplementingmeasures inforce are alsoreviewing adopted in states which currently do not have any laws to implement or enforce the which aims to specifi cally implement the treaty, or which will have this eff ect. LegislationSome are statesparties currently oradditionallegislation,alongwithothermeasures, draftingnew is also being basic prohibitions is binding on all states parties and may be undertaken legislation dealingwithallaspects ofthecontrol ofbiologicalagents,therequirementwith to enforce the relatively simple legislation. Status  uncertain Status  uncertain Status  uncertain Americas All States Parties Figure 1 Europe Status of national implementation legislation by region  identifi ed a range of opinions held by states parties about the require- Drafting  Drafting  In force  In force  No information No information Status  uncertain Status  uncertain Africa Asia In force  No information Oceania  . States which

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC legislation ormeasures maydefi netypesofagentsoractivitythatare prohibited or restricted, butdo to enforce these prohibitions, but which were not specifi cally adopted for this purpose. Both types of prohibitions of the treaty. Other states parties have adopted legislation or other measures which serve Some have adoptedlegislationwhichisspecifi statesparties  callyintendedtoimplementtheArticle Defi nitions  powers; export and import controls; application to external territories; extra-territoriality; divulgence of identifi esthediff erent approaches takentodefi nitions;thescope ofoff ences;domesticenforcement simple legislation, others have felt it necessary to adopt wide-ranging measures.  e following analysis at thenationallevel. While somestateshave simplyreplicated thebare provisions ofthetreaty in  e survey revealed many diff erent approaches taken by states to implementing their Comparative analysis legislation in addition to any other necessary national measuresthemselves for of their legal, and increasingly political, obligation to enact eff enumberandvariety ofsuchresponses indicatesthatthere toinform isaneedforstatesparties ective national implementation Our state has acivillawsystem,sowe donotrequire specifi• c Our penal lawisnotfocusedspecifi• callyonbiological weapons, butonall weapons. We are currently drafting newlegislationtoenforce theArticle prohibitions. • We are currently reviewing theeff• ectiveness andscopeofourlegislationtodealwith all aspectsof Our legislation isunderreview. • We have nodedicatedlawwithrespect tobiologicalweapons. • No nationalmeasures are inplace. • measures: Some provided statesparties thefollowing responses onthestatusoftheirnationalimplementation • ere isnoproduction ofbiologicalweaponsdoesnotstockpileany inourstate.Our territory forces Our armed donotdevelop, produce orstockpileanybacteriological(biological) ortoxin weapons. • We have never hadbiologicalortoxin weapons inourpossession. • We donotproduce, develop, orstockpileanykindofbacteriological(biological)toxin weapon. • We donothave anybiologicalweapons. • Biological weapons are anon-issue. • telephone responses are illustrative: implementation legislation.  e following quotes or paraphrased quotes taken from questionnaires or offDespite this,statesparties ered a variety ofspurious reasons astowhytheydidnothave national to ensure consistencyofcoverage andtoreduce forloopholes. theopportunities reaching a common understanding on the desirability of replicating treatynot necessarilyduplicateor approximate thelanguage ofthe language in national legislation weapons noranyinstallation whichcouldbeusedfortheirdevelopment. implementation, withaviewtoadoptingnew, more comprehensive legislation. -related information;theestablishmentofnationalfocalpointsandpenalsanctions. BWC   . States shouldconsider parties implementationlegislation. implementation and enforcement.  obligations BWC facilitation provisions andonmeanstoensure theircommonapplicationinallstatesparties. shouldconsiderreachingstates, statesparties commonunderstandingsonthecore prohibitions and rather to indicate the diff erent approaches taken. While there is no model legislation applicable to all not intendedtohighlighttheweaknesses ofthenationalmeasures state party, ofanyparticular but  e list in Table  below is indicative of provisions in states parties’ legislation.  eir inclusion here is Code United States Biological Weapons Act United Kingdom Biological Weapons Act  Saint andNevis Kitts Licensing Act Weapons andonAmendmentsto Trades Bacteriological (Biological) and Toxin Measures Related toProhibition of Act /ofMay onSome Czech Republic  Moscou et Washington leavril faiteaLondres,et surleurdestruction, bacteriologiques, (biologiques) ou a toxines la fabrication et du stockage des armes sur l’interdiction delamiseaupoint, Loi portant approbation de la Convention Belgium andlawState party Table 1 Range Range of defi nitions used in national implementation legislation Defi agents nitionofbiological in types or quantities which are not intended for prophy- toxins, whatever is the origin or the mode of production, Microbial agentsorotherbiological agentsaswell as tiques, de protection ou à d’autres fi nspacifi ques’ quantités quenesontpasdestinés à des fi ns prophylac- l’origine oulemode deproduction, detypesou biologiques ainsiquedestoxines, quellequ’en soit ‘. . . des agentsmicrobiologiques ouautres agents environment’ or materialofanykind;deleterious alterationofthe ism; deteriorationoffood,water, equipment,supplies, in a human, an animal, a plant, or another living organ- causing; death,disease,orotherbiologicalmalfunction infectious substance,orbiologicalproduct, capableof neered componentofanysuchmicroorganism, virus, of biotechnology, or any naturally occurring or bioengi- or biological product that may be engineered as a result ‘. . . orinfectioussubstance, any micro-organism, virus ‘. . . ‘. . . any microbial orotherbiologicalagent’ and incapacitatehumanbeings,animalsorplants’ deliberate useofwhichcancausedeath,disease,harm ‘. . . any naturallyoccurringormodifi edorganism,the [unoffi cialtranslation] lactic ends,protection orotherpeacefulends any microbial orotherbiologicalagent’

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC Implementation Law Japan Licensing Act Weapons andonAmendmentsto Trades Bacteriological (Biological) and Toxin Measures Related toProhibition of Act  Czech Republic Moscou et Washington le  avril   faite aLondres,et surleurdestruction, bacteriologiques, (biologiques) ou a toxines la fabricationetdustockagedesarmes sur l’interdiction delamiseaupoint, Loi portant approbation de la Convention Belgium andlawState party ActDestruction  Non-Proliferation of Weapons ofMass South Africa andlawState party /  ofMay onSome Defi nitionofbiological weapons [unoffi cialtranslation] or inwars the use of such biological agents or toxins at hostile ends Weapons, equipment or vectors specifi cally designed for des fi nshostilesoudansdesconfl itsarmés’ ment conçuspourl’emploi detelsagentsoutoxines à ‘. . . des armes, de l’équipement ou des vecteurs spécifi que- to multiplyintheorganismattacked’ effusually dependfortheirprimary ectsontheirability diseases or death in humans, animals or plants and which materials derived therefrom, which can be used to cause ‘. . . orinfectious living organisms,includingviruses [unoffi cialtranslation] mediate biologicalagents’ fi or lledwithbiologicalagentsor vectors whocarry ‘Items whichare usedasmeansofuse offorce and are weapon] [defi nitionof‘bacteriological(biological)andtoxin berately infected for hostile purposes or in armed conflor in armed ict’ confl ict; or vectors of biological agents deli- with such biological agents or toxins for hostile purposes or weapons specifi cally constructed to use or to be useloaded or to be loaded with such biological agents or toxins; designedto devices, equipmentormeansofdelivery prophylactic, protective or other peaceful purposes; any of typesandinquantitiesthathave nojustifi cationfor or toxins whatever their origin or method or production, economic damage; materials containing biological agents human beings,animalsorplantswhichcancause designed to cause disease, death, to harm and incapacitate the properties of biological agents and toxins; specifi‘. cally. . weapons, the damaging eff ects of which are based on Defi agent nitionofbiological warfare Code United States Biological Weapons Act United Kingdom Control List  Equipment and Technologies Export Dual-Use Biological AgentsandRelated China Licensing Act Weapons andonAmendmentsto Trades Bacteriological (Biological) and Toxin Measures Related toProhibition of Act  Czech Republic andlawState party Control List  Equipment and Technologies Export Dual-Use Biological AgentsandRelated China andlawState party  Biological Weapons Anti-Terrorism Act United States andlawState party Disarmament, and Arms Control Act  New Zealand Nuclear Free Zone, New Zealand /  ofMay onSome Defi nitionof toxin Defi nitionofpathogen Defi system nitionofdelivery harms tohumanbeings,animalsorplants’ microorganism whichcancausedeath,diseaseorother ‘. . . the naturalorgenetically-modifi edpathogenic biological agent,toxin orvector; oranyvector’ delivery specifi cally designed to deliver or disseminate a ‘. . . any apparatus,equipment,deviceormeansof referreddelivery ’ofthe toinArticle ‘. . . any agent,toxin, weapon, equipment,ormeansof logical product, homolog, or derivative ofced such by aa livingsubstance’ organism; or any poisonous isomer,that or maybio- be engineered as a result of biotechnologyincluding—any produ- poisonous substance or biological productmolecule, whatever its origin or method of production, viruses, fungi, or infectious substances, or a recombinant ‘. . . the toxic material of plants, animals, microorganisms, ‘. . . any toxin, whatever its origin or method of production’ animals, andplants’ cause death,diseaseorotherharmstohumanbeings, of production, whethernaturalormodifi ed,whichcan microorganism, animal or plant, whatever their method ‘. . . Biological active material,originated from any incapacitate humanbeings,animalsorplants’ synthetized whichcancausedeath,disease,harmand production, naturally occurring, modifi ed or chemically animals orplants,whatever itsoriginormethodof ‘. . . toxin means toxic material including micro organisms, 

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC  be controlled under legislation that deals with other categories of weapons or banned substances. Table Although legislation may not refer specifi cally to biological weapons, biological weapons may nonetheless  Diff erentcategories to applicable BW Table 1A Other defi nitions which may relate to biological weapons of Proliferation) Act  Weapons of Mass Destruction (Prevention Australia andlawState party ActDestruction  Non-Proliferation of Weapons ofMass South Africa andlawState party Code United States andlawState party ‘deadly means’ ordestructive ‘dangerous substances’ ‘dangerous contagiousdisease’ ‘asphyxiating ortoxic substances’ ‘explosive, asphyxiatingor toxic materials’ showssho examples. ws examples. Defi programme nitionof weapon ofmassdestruction Defi nitionof weapon ofmassdestruction designed, adaptedorintendedtodeliver suchweapons’ warfare agent, and includes a delivery system exclusively agent or the infectious or toxic properties of a biological explosion or the toxic properties of a chemical warfare animals orplantsthrough theeff ectsofanuclear ‘. . . any weapon designed to kill, harm or infect people, abiologicalagentortoxin toahost’carrying be engineered asaresult ofbiotechnology, capableof recombinant molecule,orbiologicalproduct thatmay ‘. . . a livingorganism,ormolecule,including Defi nitionof vector weapons or missiles capable of delivering such weapons’ acquisition or stockpiling of nuclear, biological‘. or chemical. . a plan or program for the development, production, State party andlawState party Costa Rica:Penal Code Belize: Criminal Code Albania: Criminal Code Norway: Penal Code Peru: Penal Code Argentina: Penal Code the fullscopeofprohibited activityis eff ectively prohibited through nationallegislation. the fullrangeofprohibited activities. Whether ornotthetreaty termsare that used,itisimportant by thetreaty, whileothershave simplyusedotherlanguage whichmayornotadequatelycover prohibited activity. For somestatesthisisduetoadesire toprohibit more activitiesthanare covered or production ofbiologicalweapons. States have alsonotbeenconsistentinusingtreaty termsfor weapons’ orillicit‘war materials’ without defi ningthemand/orwithoutaddressing thedevelopment is covered in the  Geneva Protocol). Some legislation prohibits development,acquisition stockpiling, or acquisition, retention retention, ofand transfer)‘biological while some have also banned use (which alone legislation. Some states have banned the full range of activities prohibited in ethe scope treaty of legislation (production, adopted to date has been patchy. Few Scopestates ofprohibitions incorporated have innationallegislation adopted comprehensive, stand- ‘gases’ ‘special arms’ ‘potent ortoxic substances’ ‘poisonous substances’ ‘poisonous ornoxious thing’ ‘poisonous orcontagiousdiseasepathogens’ ‘poison, infectioussubstances’ ‘pathogenic organisms’ ‘paralysing gases’ ‘noxious matter’ Belarus: CriminalBelarus: Code Albania: Criminal Code Seychelles: Penal Code India: Prevention of Terrorism Act  Fiji: Penal Code China: Criminal Code (Ley .) Argentina: LawofDangerous Residues  China: Criminal Code CriminalBelarus: Code Vanuatu: Firearms Act  Solomon Islands: Penal Code Belize: Criminal Code Belize: Criminal Code within defi nitionof ‘special arms’ Specifi callyincludes‘Biological Weapons’ Control de Armas(Ley.) CalifiChile: LeydeQuórum cado Sobre el Russian Federation: Criminal Code Seychelles: Penal Code Poland: Penal Code Nicaragua: Penal Code China: Criminal Code

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC terms, oradiff erent combinationofterms,issuppliedin Tables  is provided in Table . A list of other measures intended to enforce the treaty, but which use diff erent  A listofnationallegislationcontainingthefullrangeprohibited activityenvisagedunderArticle Law No. - France Public Safety Bill ( Canada Crimes (Biological Weapons) Act  Australia andlawState party Table 2 Legislation which attempt to enforce the full range of Article 1 prohibitions  -/Part ) (b) weapons, equipment or means of delivery designedto (b) weapons, equipmentormeansofdelivery (a) microbial or other biological agents, or toxins whatever acquire orretain:otherwise ‘It isunlawfultodevelop, produce, stockpileor [offi cialtranslation] be prohibited.’ for prophylactic, protective or other peaceful purposes shall duction, of types and in quantities that have no justifiagents ortoxins whatever theiroriginormethodofpro- cation acquisition ortransferofmicrobial orotherbiological ‘ edevelopment, production, retention, stockpiling, (b) any weapon, equipment or means of delivery designed (a) anymicrobial orotherbiologicalagent,anytoxin, acquire orpossess, useortransfer otherwise ‘No personshalldevelop, produce, retain, stockpile, Prohibition contained inlegislation armed confl ict’. use suchagentsortoxins forhostilepurposesorin protective orother peaceful purposes;or quantities thathave nojustifi cationforprophylactic, their originormethodofproduction, oftypesandin armed confl ict.’ to use such an agent or toxin for hostile purposes or in other peacefulpurposes;or for anypurposeotherthanprophylactic, protective or  and  . ) of Weapons ofMass Act Destruction section oftheNon-Proliferation Goods  (beinganoticeunder and Control Measures Applicable to and Technologies tobeControlled GoodsDeclaration ofCertain South Africa Biological Weapons Act  Saint andNevis Kitts General CivilPenal Code Norway (a) anybiologicalagentofatypeandinquantitythathas or retains;- ‘Any personwhodevelops, produces, stockpiles,acquires [offi cialtranslation] Accomplices shallbe liabletothesamepenalty.’ . weapons, equipmentormeansofdisseminationmade . bacteriologicalorotherbiologicalsubstancestoxins obtainsorpossesses: otherwise exceeding tenyears whodevelops, produces, stores or ‘Any person shall be liable to imprisonment for a term not (ii) the development, production, stockpiling, acquisition (i) thedevelopment, production, stockpiling,acquisition and Toxin Weapon prohibit- andontheirDestruction, Production and Stockpiling of Bacteriological (Biological)  Convention on the Prohibition of the Development, ‘In terms of South Africa’s obligations as a State Party to the imprisonment forlife.’ of indictmenttoafi neof ftythousanddollarsandto fi shall be guilty of an off ence and shall be liable on conviction (b) any weapon, equipment or means of delivery designed item forhostilepurposesorinarmedconfl ict for usingsuchsubstancesortoxins asare mentionedin purposes, or justifi edforpreventive, protective, orotherpeaceful such akindandinquantitiesthattheyare not regardless oftheiroriginormethodproduction, of or toxins forhostilepurposesorinarmedconfl ict.’ sion or delivery specifi cally designed to use such agents or retention of weapons, equipment or means of disper- prophylactic, protective or other peaceful purposes; of types and in quantities that have no justifi cation for toxins, whatever their origin or method of production, or retention ofmicrobial orotherbiologicalagents or inarmedconfl ict, to usebiologicalagentsortoxins forhostilepurposes peaceful purpose,or no justifi cationforprophylactic, protective orother

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC at leastsomeofthetreaty’s mainprohibitions. Table  Some countries’ legislation,whilenotusing Biological Weapons Act  United Kingdom United States //) Ley deArmas Y Explosivos (Ley, Costa Rica Penal Code Austria andlawState party but not cast in BWC treaty language Table 2A Act  Biological Weapons Anti-Terrorism Other off ences directly related to biological weapons or biological agents (a) ‘ (b) any weapon, equipment or means of delivery designed (a) any biological agent or toxin of a type and in a quantity retain- ‘No personshalldevelop, produce, stockpile,acquire or (b) Off ences viruses, toxic bacteria’viruses, whichcanbeusedasweapons use, of‘gases,development, introduction intocountry Possess or hold ‘special arms’ (defi nition includes ‘Manufacture, produces, acquires, possess  or inarmedconfl ict.’ to usebiologicalagentsortoxins forhostilepurposes or otherpeacefulpurposes; that hasnojustifi cationforprophylactic, protective DEFINITION national oftheUnited States. off enseunderthissectioncommitted by oragainsta  ere isextraterritorialFederal jurisdictionover an or imprisonedforlifeanytermsofyears, orboth. organization todoso,shallbefi nedunderthistitle as a weapon, or knowingly assists a foreign state or any systemforuse any biologicalagent,toxin, ordelivery duces, stockpiles, transfers, acquires, retains or possesses for prophylactic, protective, or other peaceful purposes.’ system sion ofanybiologicalagent,toxin, ordelivery production, transfer, acquisition,retention, orposses- ‘for use as a weapon’ does not include the development, IN GENERAL treaty language,creates off enceswhichcover allor  showssho someexamples. ws someexamples. – – For purposes of this section, the term F Whoever knowingly develops, pro- o r

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Penal Code Croatia Prevention of Terrorism Act  India - delCongreso) Ley deArmsyMuniciones (Decreto Guatemala amended War Weapons Control Act as Germany Penal Code Georgia Weapons Act Finland Penal Code Estonia Licensing Act Weapons and on Amendments to Trades Bacteriological (Biological) and Toxin Measures Related toProhibition of Act  Czech Republic /  ofMay  onSome very dangerous weaponsvery Prohibits production andownership importation, of or provides foroff er ‘Designs, manufactures, stores, acquires, hands over, sells or handle transfer, transport, export, consume, import, tradein, ‘Develop, produce, stockpile,possess,process, use, purchases, transports develops, produces,‘Constructs, attains,stores, sells, Possession ofbiologicalsubstances ofwarfare of transportation/transfer Possession, manufacturing, importing, storagecarrying, [unoffi cialtranslation] . toencourageanactspecifi edinitemabove.’ in itemabove; or a. toinduceanotherpersoncommitanactspecifi ed over them; federal territory, toexercise orotherwise actualcontrol bringthemintooroutof them through orotherwise them,totransport orexport another person,toimport weapons, to acquire themfrom ortransferthemto . develop, produce ortradeinbiologicalchemical ‘It isforbiddento- application of agents andtoxins, preparation, purchase, orsaleof safety rules for handling microbiological or other biologicalTransportation of  ’    , export of , export  ’ ’  withoutauthorisation  , infringementof  ,

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC Law , Italy Penal Code Poland Disarmament and Arms Control Act  New Zealand Nuclear Free Zone, New Zealand Weapons Act   eDomestic Biological and Toxin Netherlands Prevention Terrorism Act  Mauritius Criminal Code Lithuania [Switzerland] Federal Lawon War Material  Liechtenstein Penal Code Latvia Nuclear Weapons  Weapons, Chemical Weapons and Importation and Production of Biological Presidential Decree on Prohibition of the Iraq of massdestruction’ of . . . biological, bacteriological,toxic orotherweapons ‘Manufacture, amassment,deployment ordistribution to cover this] stockpiling oracquisitionbutarevision isbeingdrafted technology.’ [Note, current legislationdoesnotprohibit research fortheirproduction, orprovision ofrelevant chemical andnuclearweapons are prohibited, asis ‘Manufacture, andtransitofbiological, export, import, Importation andproduction of transports, transmits,develops transports, Uses over ‘Manufacture, station, acquire, possess,have control retention ofmaterialsprohibited  by Article Development, production, stockpiling, acquisitionand  use of . . . ‘Manufacture, supply, possession,acquisition,transport, noxious substances, preparations ormicro-organisms’ ‘. . . dissemination ofbiological,radioactive orchemical store . . . acquire, handover transit, export, toanyone, import, ‘Develop, manufacture, procure asanintermediary, ’ [note,defi nedasanactofterrorism]   ’   , manufactures, collects,acquires, sells,stores, ortodisposeoftheminanyotherfashion’fashion aswellw as research intoanddevelopment of ell asr esear ch intoanddev   elopment of ’ eff ecttothetreaty’s prohibitions orat least someofthem. See Table  specifi cally refer to biological weapons or treaty-prohibited material, but which may nonetheless give Some stateshave adoptedlegislationthatestablishesoff enceswhichdonotusetreaty languageor Criminal Code Russian Federation Criminal Code Ukraine Penal Code Turkmenistan  Criminal Off ences(Amendment) Act Tonga Federal Lawon War Material  Switzerland devices, fi rearms orammunition,nuclear, chemical,bio- or radioactive substances,explosives, arms,explosive of narcotic drugs, psychotropic, virulent, toxic, poisonous ‘ etransferacross thecustomsborder of Turkmenistan Illegal manufacture ofgasweapons.  or useof Manufacture, supply possession,acquisition,transport, . . . hand over transit,ortostore export, toanyone, import, ‘Develop, manufacture, procure as an intermediary, acquire, weapons’mass destruction ‘Stealing of orextortion . . . biological orothertypesof sale or transportation sale ortransportation Use, development, production, purchasing, stockpiling, property.’ for three toeightyears, withorwithoutconfi scationof of a false declaration, shall be punishable by imprisonment or involves the failure to make a declaration or the making ulent use of documents or means of customs identifi cation,inspectors orisconcealedfrom themthrough thefraud- if such act is committed without the knowledge of customs their transfer across the customs border of Turkmenistan, have beenestablishedregardingfor whichspecialrules strategically imported raw materials, and cultural artefacts their transfer across the customs birders of Turkmenistan, and for which special rules have been established regarding logical andothertypesofweapons ofmassdestruction  defi nedasactofterrorism ortodisposeoftheminanyotherfashion’fashion

ned asactofterr  aswellw asresearch intoanddevelopment of ell asr  esear orism  forexamples. ch intoanddev elopment of ’

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC andlawState party or misuse of biological agents Table 2B Non-BW specifi c off ences that may serve to prohibit biological weapons Criminal Code Belarus Penal Code Argentina Criminal Code Republic of) Macedonia (theformer Yugoslav Criminal Code Lithuania Criminal Code Hungary Penal Code Fiji Penal Code Ecuador Penal Code Costa Rica Criminal Code China Criminal Code Belize Non-BW specifi c off ences that may serve to prohibit biological weapons andlaw Off ences ‘poisonous orcontagiousdiseasepathogens’ organisms’, illegally manufacture, trade, transport, storing Spreads ‘poisonous, radioactive substancesorpathogenic Administers noxious matter, usesgas dispatch poisonoussubstances Keeping, transportation, Making, sale of paralysing gases, making, sale, acquisition, Supplies, acquires, stealsasphyxiatingortoxic substances Off ences … aswell aspoisons’ ‘Manufactures, procures or enables another to get weapons combat’ international customsregarding themeansormethodsof sions ofinternationalagreements oruniversally accepted of combat and employing of such in violation of the provi- ‘An order to employ prohibited means of warfare or methods Uses weapon ‘prohibited by internationaltreaty’ ‘Causes anypoisonornoxious thingtobeadministered’ materials orsubstancesusedintheirpreparation introduces explosive substances,asphyxiatingortoxic Manufactures, provides, acquires, steals,throws, useor ating ortoxic materials’ supplies, acquires, steals, or possesses ‘explosive . . . asphyxi- For purposeofcommittinganoff encemanufactures, General CivilPenal Code Norway Penal Code Nicaragua Penal Code Solomon Islands Penal Code Seychelles Criminal Code Russian Federation No.  Government Emergency Ordinance Romania Penal Code Poland Decree LawNo.  Peru Act No. , Panama Federal Penal Code Mexico supplying of . . . asphyxiating, toxic substances’ ‘manufacture, acquisition,possession,theft, storageor possess orbare Sells ortransfersweapons thatitisprohibited by lawto contagious disease’ Cause the‘introduction orgeneralspread ofadangerous ‘Use of . . . asphyxiating orpoisonousgas’ have nowork-related orrecreational application ments whichmaybeusedsolelyforattackpurposesand Illicitly carries, manufactures, imports or stockpiles instru- stering poisonwithintenttoharm,unlawfulpoisoning Sending or delivery of noxious thing, maliciously admini- Dealing inpoisonoussubstances substance tation orsendingforthepurposeofsale’ potentortoxic ‘Illegal making, processing, acquisition, storage, transpor- [unoffi cialtranslation] ‘Attempts to commit such off ences shall also be punishable intimidation, terror ortriggeringofpanic . . .’ acts iftheycreate aseriousbreach ofthepeacethrough or totheenvironment . . . shall beconsidered asterrorist organisms ortoxins harmfultohumanoranimalhealth sub-soil or water of products, substances, materials, micro- ‘ eintroduction orrelease intotheatmosphere, soil, Release of‘poisonous, toxic orblisteringsubstances’

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC and cross-border cooperationwithothercountries. such as ensuring eff ective law enforcement by police and customs, including access to civilian property considerations. Apart from legislation, there is also a need for a wide range of other national measures, that are tobegiven tolawenforcement agencies,withdueregard tolegalprocess andhumanrights such details as the powers of investigation, search and seizure of documents, equipment and substances should make legislative provision to ensure eff ective enforcement of their national measures, including in their legislation. An illustrative summary of these provisions is containedTen in states partiesTable have expressly included. All enforcement states powers parties relating to biological weapons off ences Enforcement powers War Material Act  Belize Public Safety Act  Belize Crimes (Biological Weapons) Act  Australia Penal Code Turkmenistan Firearms Act  Vanuatu andlawState party Table 3 Illustrative summary of enforcement powers any suchnoxious thing’ (prohibited weapon) ammunition containing or designed or adapted to contain charge ofanynoxious liquid,gasorotherthingany possession anyweapon ‘designed oradaptedforthedis- Manufacture, sell,transfer, purchase, acquire orhave in or othertypesofweapons ofmassdestruction’ Transfer of ‘toxic, poisonous substances, biological weapons to search, stop and detain vessels [no reference to warrant] and detained[noreference toneedforwarrant],power Minister may order war material be seized by police offi cers those regulations defeat theendsofjusticeorprevent theenforcement of the delayinobtainingawarrantorwrittenorder would Power toarrest withoutwarrantifreason tobelieve that retained incontravention ofAct thatdeveloped, produced,article stockpiled, acquired or Constable maywithoutawarrantseize anysubstanceor Summary ofenforcement powersSummary Biological Weapons Act  Saint andNevis Kitts Prevention of Terrorism Act  Mauritius amended War Weapons Control Act as Germany Law No. -, France Trades LicensingAct Weapons andon Amendmentsto Bacteriological (Biological) and Toxin Measures Related toProhibition of Act /ofMay onSome Czech Republic Public Safety Bill ( Canada  -/Part ) Supervisory authoritiesmaydemandinformation,have Supervisory measures with respect to investigating powersing measures of investigators for implementing the prohibitions, toImplementing include law provides for decrees to be issued determin- samples, request information are to carry out inspections [surprise ones allowed], analyse Supervision tobecarriedoutby nationalauthority, they ing, taking of samples, enforcing production of documents biological agents. Powers given to inspectorthe inspectorbelieves onreasonable grounds there are to allow question- Inspector allowed to enter [needs warrant] any place in which or isabouttobecommitted] suspect or has reasonable cause to suspect off ence has been allows search withoutwarrantwhere policereasonably Biological Weapons Act [ [ ewording ofthisprovision isexactlythesameas • • • • evidence by oathauthorising: Power formagistratetograntsearch warrantbasedon off enceoccurring enter andsearch premises ifhave reason tosuspectthat where inacaseofurgencynotabletogetwarrant Normal powers ofinvestigation withwarrant.However, [restricts righttoprivacy ofhome] intopremises whereentry required by theirfunctions access tocompanyrecords, outinspections.Allows carry to inspect, sample, seize and detain any substance so found to inspect, seize and detain any equipment so found; and to inspect any document found in the premises or place toenteratanytimewithinthree monthsofthedate take copiesof, orseize anddetainanysuchdocument; or in the possession of any person found therein and to personfoundtherein; and every by force, andsearchnecessary suchpremises orplace the warrant,anypremises orplacenamedtherein, if  ],] except the St Kitts legislation ,

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TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC tion becomes available on dangerous or prohibited items. Secondary legislation or measures can thus act to be passed, either in response to additional commitments the state legislationhas accepted (such or as as new regulations) informa- or other measures to be issued without andImportbody (suchasanExport Control Act). Suchthe legislationideallyprovides forsecondary need for a new parliamentary legislationpassedby aparliamentorotherlegislativeare orexecutive usuallyadoptedunderprimary dual-use agents, equipment, intellectual property, materials, patents and technology. Licensing systems control measures.  of isbestachieved orimport by establishingalicensingsystemfortheexport purposes, and to prevent others from acquiring them, states must adopt appropriate export and import In order to comply with the obligation not to acquire or possess materials or equipment for prohibited controls andimport Export Biological Weapons Act  United Kingdom Act  Anti-terrorism, Crime andSecurity United Kingdom ActDestruction  Non-Proliferation of Weapons ofMass South Africa • To require any document or other information which is • To inspect,seize andretain anysubstance,equipment as appeartohimbenecessary: To take with him such other persons and such equipment An authorisingoffi cerhasthe power to: • • National authorityhasthepower to: • To inspect,sample,seize anddetainanysubstanceso • To inspect, seize and detain any equipment so found; and • To inspect any document found in the premises or place A Constablehasthepower to: • To copyanydocumentwhichhehasreasonable cause appoint inspectors – they have power to enter any premises appoint board of inquiry that has extensive powers inclu- suspected tobekept in or upon which controlled goods are kept or reasonably of documentsetc; ding power ofsummonsindividualandproduction copy it;orfrom whichitcanreadily beproduced ina to beproduced inaformwhichhecanread and held in electronic form and is accessible from the premises or documentfoundonthepremises; found to take copies of, or seize or detain any such documents; or inthepossessionofanypersonfoundtherein, and of proceedings to believe may berequired asevidenceforthepurpose form inwhichhecanread andcopyit; agents andequipmentprohibited by the Table  contains an illustrative summary of export and import provisions which may restrict access to including ‘biologicalweapons’, ‘dual-use goods’ and‘war materials’. agents, materials, equipment and technologies.  ere are wide-ranging defi nitions of prohibitedimport items, control legislation, which seek to prohibit the export and import of biological weapons-related A numberof procedures are detectedandtheperpetratorspunished. or import licenses are not authorised for prohibited items and that activities which violate the control authorised. States must, by whatever means, ensure that controlled goods lists are adequate, that export licensewillnotbe orimport cially usefulinupdatinglistsofprohibited itemsforwhichanexport often be adopted more quickly than primary legislation or measures. Secondary measures may be espe- State party andlawState party Table 4 Illustrative summary of export and import control provisions Law No. ., Brazil War Material Act  Belize Royal decree, March  Belgium Republic of Belarus (No. ,  through the Customs Border ofthe and Restrictions on Transfer of Goods Regulation onIntroduction ofBans Belarus tion ofProliferation) Act  Weapons of Mass Destruction (Preven- Australia  states parties have alreadystates parties issued‘controlled goodslists’ and underexistingexport /  / )  Permit systeminplacetoensure thattransferofgoodsor and chemicalareas purpose goodsandforuseinthenuclear, biological goods defi nedasgoodsforuseintimesofwar, double Authorisation needed for export of sensitive goods. Sensitive reference to Exports of war materials prohibited. While there is no direct An annexlistsprohibited items usethateitherprohibited orsubjecttolicensing. military List establishedofarms,munitionsandmaterialshaving types ofweapons are restricted aswell ascomponentsofthespecifimass-destruction, ed restricted goods.Biological andothertypesofweapons of transfer across Belarus is restricted. A licence is required for the state is banned and the other relates to goods where the Two lists approved, one relates to goods where transfer across national interest toAustralia’sprovisions willnotbecontrary ofservices Summary of import and export provisions andexport ofimport Summary .  , itmayfallwithin‘military ornaval stores’

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC Law No. ., Brazil Dual-Use Goods  (Finland Statute Decree on theControl of ofExports Finland Transit Act  Strategic Goods Import, and Export Estonia Act /ofLegalCode() Czech Republic lations  Defence (Exportation of Goods) Regu- Cyprus Technologies  Agents andRelated Equipment and Controls ofDual-Useport Biological Regulation No. to Strengthen Ex- China Exports Canada Technologies  ity in Arms and in Dual-Use Goods and Law on Control of Foreign Trade Activ- Bulgaria No /’) & ImportsI Act Permits  mpor ts A ct P ermits  that dual-usebiologicalagentsandrelated equipmentand technologies subjecttolicensing.If know orshouldknow Dual-use biologicalagentsandrelated equipmentand to control use materials,prohibited weapons thathave tobesubject List refers tomaterialsusedwithrespect to Export and Import Control Lists established. Export Control use goodsandtechnologies Restrictions andbans canbeimposedonarmsanddual- international treaties andcommitments ofSensitiveExport Goods toensure complywith exports Established an Inter-Ministerial Commission for Controlling services withrespect tobiologicalfiservices eld licenceneededfordual-usegoods,technologyand Export regardless ofdestination. of sucharticles, ofthecountry thereof, and provision of services related to the manufacture ware, software andtechnologyusedforthemanufacture Prohibition ortransit of ofexport Prohibition ontradein biological agents,dual-useitems national peaceorpublicorder. No direct mentionof due to a disturbance or threatened disturbance of the inter- or for purposes of application of measures that are concluded restoring thepeaceandsecurityatanyplaceinworld forpurposesofmaintainingor where deemednecessary Regulations relating to export, import and transit of goods Control List  will beuseddirectlytechnologies exported forpurposeof exportation prohibited regardless exportation expor ofDual-Use Export tation pr ohibited r  egar dless ofD  andmaterials,hard-har ual-U  anddual- se E xpor  d- , t Products  Military Techniques and Dual-Purpose Law on Export Control for Armaments, Georgia services andtechnology services ment regulations forstrategicgoods, Ordinance of  January  to imple- Norway Customs andExcise Act  New Zealand Goods and Technology  Export, Import and Transit of Strategic Law No. Lithuania [Switzerland] and Specifi cGoods Military able for Civilian and Military Purposes Federal Law on Control of Goods Suit- Liechtenstein Strategic Goods  Regulation No. on Control of Latvia Transit ofArmaments Governing Import theExport, and Law No. New Provisions Italy controlled goodsandtechnologies internationally ing tradeincertain Government Decree / on licens- Hungary  - ontheControl of in thisAct Licensing of strategic goods. No defi nition of strategic goods of Prohibits manufacture, import, export, transit, and research nationally controlled products relating to technologies andservices Internationally controlled products require licence, products, regimes’ control subjecttoexport of which are established by international non-proliferation bacteriological (biological) and toxin weapons, control lists of geneticalmaterialwhichcanbeusedforthecreation of ‘Disease agents, their genetically altered forms, and fragments storage, detection,identifi of cationordestruction connection withdevelopment, production, maintenance, Need licenceforgoodsintendedorwillbeusedin Noimport. direct reference to Regulations or maybemadetoprohibit goodsforexport of massdestruction’ duction of chemical and chemical-bacteriological weapons and biological materials, which may be utilised in the pro- Licensing for controlled goods. Defi nition includes ‘chemical international agreements Licence for export/import will be denied if activity violates   orbiologicalmaterial  defi nedasinter-

ned asinter- 

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC amending selectedlaws International Peace andSecurity, and State Security andMaintenance of ofStrategicServices Signifi cancefor Trade inGoods, Technologies and Law  Poland Act  Anti-terrorism, Crime andSecurity United Kingdom of Ukraine No. /() Regulations onState Control Export Ukraine Export  ailand Specifi cGoods Military PurposesCivilian andMilitary and Passage in Transit ofGoods usablefor Ordinance on the Export, Import and Switzerland  Dual-Use andof Technical Assistance Law onControl over Products with Sweden  Control Measures Applicable to Goods and Technologies to be Controlled and Declaration No.  of Certain Goods South Africa / &  Concerning International ImportI Act  mpor t A ct  Permits neededfordual-usegoods proliferation of use, maintenance,storage,detection,identifi cationor in connectionwithdevelopment, production, handling, Prohibits technical assistance outside logical andtoxin weapons tobecontrolled goods technology thatmaybeusedforthemanufacture ofbio- and toxins andrelated manufacturingequipmentand Prohibition using tion of maintenance, storage,detection,identifi cation,prolifera- for purposeofimplementation,production, operation, tional obligations. No licence if strategic goods can be used No licencefortradeissuedifinterferes withinterna- and heknows orhasreason tobelieve thatisthecase’ than for prophylactic, protective or other peaceful purposes (whether by thetransferee oranyotherperson)otherwise if thebiologicalagentortoxin islikelytobekeptorused with athird persontodoso, any biologicalagentortoxin orentersintoanagreement (b) make arrangements under which another person transfers or enterintoanagreement todoso,or (a) transfer any biological agent or toxin to another person ‘A personshallnot– Prohibition ontransferof ortheneed foralicence or imported Notifi cations to be issued prohibiting goods to be exported will beusedforproduction, development oruseof Export licence will be denied if reason to assume that goods   [regulations can grant exceptions to ban]  [ r e g u language;declares biologicalagents l a t i  o n s

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under whichlegislative instrument. clarify publiclywhethertheirnationalmeasures have beenextended totheseterritoriesand,ifso, is applied to all territories under their jurisdiction or control. It would be helpful if these states would external territories forwhichadditionalmeasures mayneedtobeadoptedensure thatlegislation external territories has been so extended.  e following list (table ) is indicative of states with known have. or not, they must extend their national implementing measures to any external territories they might territory, orinanyotherarea under theirjurisdictionorcontrol, whethergeographicallycontiguous As states parties are legally obliged to ensure that treaty prohibitions are enforceable within all of their territoriesExternal Export ControlExport Act  United Kingdom France Denmark Australia State party Table 5  Decision oftheMinister of Trade No. Vietnam trol and Warfare Elimination Act  Chemical and Biological Weapons Con- United States /   / Known external territories of selected BWC states parties   has not been able to determine whether legislation adopted by all states parties with has notbeenabletodeterminewhetherlegislationadoptedby allstatesparties Wallis andFutuna Islands Lands, Mayotte, New Caledonia,St Pierre andMiquelon, and Clipperton Island, French Polynesia, French Southern and Antarctic Faeroe Islands andGreenland  ‘extends totheexternal Territories’ (section)] [ e Weapons of Mass Destruction (Prevention Territory’of Proliferation) (section)] Act [ e Crimes (Biological Weapons) Act  ‘extendsMcDonald Island andNorfolk Island to every external Island, Cocos (Keeling) Islands, Coral Sea Islands, Heard Island and Ashmore and Cartier Islands, Australian Antarctic Territory, Christmas External territoriesExternal Prohibited toxic chemicals andimport toexport of suchgoods stockpile or deliver group inacquiringthecapabilitytodevelop, produce, directly andsubstantiallyassistaforeign government or List tobeestablishedofgoodsandtechnologythatwould list prohibits goods capable of being used in relation to Export Controls can be put in place for any goods, control  , licensing system in place in respect

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TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC Divulgence of Kingdom andtheUnited States. Poland, Russian Federation, Solomon Islands, South Africa,Switzerland, Uzbekistan, theUnited China, Ecuador, Estonia, France, Germany, India, Latvia, Lithuania,diction intheir Mauritius, New Zealand, Norway, Twenty-four are statesparties known tohave someprovision forextraterritorialityoruniversal juris- laws prohibiting biologicalweapons anywhere. state toprosecute anynaturalorlegalpersonpresent initsjurisdictionwhoissuspectedofviolating states have attempted to deal with crimes against humanity. Such universalgiving itself‘universal jurisdiction’ over offjurisdiction encesinvolving biological weapons, inthesamewaythat would allow the such ascompaniesandotherorganisations,registered intheirterritory. Astatemayalso consider by ‘legalpersons’,similarly applyingtheirnationalmeasures toactionstakenoutsidetheirterritory (this isknown astheapplicationof‘extraterritoriality’). States mightalsowishtoconsider parties including penal sanctions—to actions taken by their nationals (‘natural persons’) outside their territory  e  ird Review Conference in  invited statesExtraterritoriality anduniversal jurisdiction parties to consider applying their national measures— agreed atthe ird Review Conference in. isinformationtobeprovided annuallytothe States parties have agreed to share United States United Kingdom Norway New Zealand Netherlands BW  -related-r information elat implementing measures, includingAlbania,Australia, Belize, Belarus, Bulgaria, ed inf or mation [As of  October, New Zealand has not extended Cook Islands, Niue, Ross Dependency and Tokelau andNetherlandsAruba Antilles Palmyra Atoll; and Wake Island Johnston Atoll; KingmanReef; Midway Islands; Navassa Island; ‘Minor Outlying Islands’: Baker Island; Howard Island; Jarvisand United States Virgin Islands Island; American Samoa, Guam, Northern Mariana Islands, Puerto Rico and CaicosIslands Sovereign Base Areas in Cyprus (Akrotiri and Dkehelia); and Turks and Tristan da Cunha); South Georgia and South Sandwich Islands; Ducie andOeno Islands; St Helena anddependencies(Ascension Islands; Falkland Islands; Gibraltar; Montserrat; Pitcairn,British Indian Ocean Henderson,Territory; British Virgin Islands; Cayman Overseas territories: Anguilla; Bermuda; British Antarctic territory; Isle ofMan Crown dependencies:Bailiwick ofGuernsey, Bailiwick ofJersey, Svalbard Bouvet Island, Jan Mayen, Peter IIsland, Queen Maud Landand ing legislation totheseareas]  -related information under the Confi dence-Building Measures  implement- either thenationalorinternationallevel. focal pointtocoordinate aspectsoftreaty implementationandwhichenableinformation-sharingat Table have enacted,orare setsoutwhichstatesparties drafting,legislative provisions establishing a inthestatewho can adviseonandassistwiththiswork. experts  such activitiesontheirterritoriesshouldtakeappropriate stepstoensure coordinated promotion of governmental oracademicresearch activities,therequirements maybeminimal.States whichhave military defence research programmes, a civilian biotechnology or pharmaceutical industry, or relevant on the range of requirements the state must undertake to ensure treaty compliance. For states without  e budget and personnel required for establishing and maintaining a national focal point will depend • • • • • • • • to establishanationalfocalpoint. efocalpoint’s tasksmightinclude: To facilitate information-sharing and other aspects of treaty implementation, states parties may choose National focal point related information,bothinternationallyanddomestically, by passingappropriate legislation. on its constitutional requirements, a state party may need to specifi cally authorise the sharing of ment departments, agencies, industry and others need to share other states parties. In addition, in order to eff ectively implement the treaty at the national level, govern- coordinating thecompletionandsubmissionofcompliancereports foreachReview Conference coordinating thecompletionandsubmissionof coordinating enforcement activitieswithotherstatesattheregional andinternationallevel providing ontreaty assistancetootherstatesparties implementationasrequested toshare liaisingwithotherstatesparties experiencesoftreaty implementation liasing with stakeholders at the national level to inform measures initiatingtheadoptionofnew them oramendmentsdeemednecessary of the state’s responsibilities under the routinely reviewing the eff ectiveness of national measures to prevent and prohibit biological weapons Law No. . Brazil Belarus Decreto No. /( Argentina State party andlawState party Table  to the Secretary-General viathe obligations and compliance with them. It may be helpful to establish a list of technical and legal  List of states parties with a national focal point . /  / )  Department forDisarmament Department Aff airs,whichthendistributesitto Sensitive Goods Inter-Ministerial CommissionforControlling of Export Research Institute forEpidemiology andMicrobiology Autoridad Nacional (National Authority) Focal point  s annuallytothe  -relevant information. Depending  , and      -

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC  Someparties. states have not enacted penal sanctions for the full range of activities prohibited by the focus onpenalsanctions. ere isnoconsistentapproach tooff encesandpenaltiesamongstates nationalimplementationmeasures, theywill includeaspecifiaction ontheadoptionofnecessary c States have agreed parties thatindiscussingandpromoting commonunderstanding andeff ective Penal sanctions and life imprisonment in Australia, the United Kingdom and the Unitedterms States. are envisaged,In some cases, they rangeoff from eight enders days in Belgium, up to  years in New Zealand and Norway  ailand ActDestruction  Non-Proliferation of Weapons ofMass South Africa () of theRussian AgencyforMunitions the Russian Federation ontheStatute Decree No. oftheGovernment of Russian Federation Currently draftinglegislation Nigeria goods andtechnologies trade in certain internationally controlled Government Decree  Hungary Licensing Act Weapons and on Amendments to Trades Bacteriological (Biological) and Toxin Measures Related toProhibition of Act /of May onSome Czech Republic Public Safety Bill ( Canada  Council ofMinisters Decree No.  Bulgaria . Even where penaltiesare in place,stateshave appliedadisparaterangeofsanctions. Where jail  -/Part ) /  on licensing and Biological Weapons (regulates licensing requirements) Offi Control ceof and Export Prohibition ofChemical keeps records ofhazardous substancesetc.) responsibility forcompliancewith  eState Offi cefor Nuclear Safety(hasbeenassigned National authority technologies trade transactionswitharmsanddual-usegoods Commission for the control and permission of the foreign Technology asthenational serves technology (  eNational CenterforGenetic Engineering andBio- South AfricanCouncilforNon-Proliferation of National Authority for Russian Munitions Agency National Authority forthe  ) within the Ministry ofScienceand ) withintheMinistry   also handles also handles   Secretariat ; issueslicences,    are seriousabouttheseoff ences by adoptingappropriate penalsanctions. ble to such actions being carried out within their territories. States must send a clear message that they States that do not have adequate penal provisions for such crimes may fi nd that they are more suscepti- for example,France andUkraine do. that may be invoked is to prohibit off enders from holding professionalactivities whichmaycausewidespread suff positions ering,deathandeconomicdamage.Anadditionalpenalty for a period of time, as,  ( and do not refl ect the gravity of the off ences. For example, Belgium’s maximummay be fifi ne is only ,ned only may also be fi ned. In Australia, natural persons may be fi ned  ,).  eCzech Republic doesnotimposeajailtermatalland,whilethemaximumfi neof  million (   

m i l l i o n

(   , ( ,,) envisaged is substantial, it would appear an inappropriate penalty for  ,). Some penal sanctions incurred for such off ences are nominal  , (  ,) while corporations 

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC government personnel,companiesandindividuals.Considerationmustbegiven tothe andmilitary Implementing legislation must be enforceable against all persons within the state’s jurisdiction,language, word forword, legislationadopted. in anynew including In order to avoid loopholes, states parties should agree that the best solution is the replication of treaty designedtouse suchagentsortoxins forhostilepurposesorinarmedconflor meansofdelivery ict. protective or other peaceful purposes. States must also criminalise thesetheir actions origin for or weapons,method of equipment production, of types and in quantities that havestockpiling, no justifi acquisition, cationretention or prophylactic, and transfer of microbial or other biologicalStates parties agents, must, or toxinsat a minimum, whatever ensure that their legislation criminalises the development, production,they adopt. then beprepared totakeeff ective actiontoensure eff ective national implementationofthemeasures an emergency basis as new threats arise or are identifi ed, toto ensurebe implemented. eff  ective eyimplementation. should also agree that they ey may must need Statesto adopt parties should further be prepared measures, to reach common understandingssometimes on at onleast the minimum measures Promoting common understandings are deterred anddetectedperpetratorspunished. tion that, in practice, all activities on their territory are treaty-compliant and that prohibited activities need to not only adopt legislation and other measures on paper, but ensure through their implementa- pages.  e majority of states parties will, however, requireisland state, more Saint extensiveKitts and Nevis, measures.has demonstrated, it Andmay be achievedall statesin legislation parties as short as two by the treaty, this may be all that is necessary for some states, especially small ones. As at least one small While allstatesmustadopt,ataminimum,basiclegislationtopr impunity. and private citizens, andcompaniesotherorganisationsmayengageinprohibited activitywith measures. necessary Without nationallegislation,stateandnon-stateactors,government employees substitute fora Making repeated declarationsthatitiscomplyingwiththetreaty’s prohibitions isnotaneff ective need to examine the appropriateness and comprehensiveness of their existingrequires implementinglegislationtoincorporatetreaty rightsandobligationsintodomesticlaw, implementation all legislation. enforceable asdomesticlawoncethestatehasratifi edit(‘self-executing’), oradualistsystemwhich as soon as possible. Whether states have a monist legal system, in which a treaty may be automatically it is essential that all states parties adopt appropriate, Since dealingwiththe threat ofbiologicalweapons threat isbothcomplexandincreasingly urgent, implementationimplemen legislation Recommendations for strengthening national purposes are permitted,while non-peacefulactivitiesare banned. ‘general purpose’ criterion.Likethe distinction, in practice, between defensive and non-defensive research which is captured in Article ’s  state party’s adoptionofeff ective nationallegislation,inadditiontoanyother ta tion legisla  , the  tion bans activitiesbasedontheir purpose:peaceful well designed national implementation measures n event and prohibit activitycovered a t i o n a l

i m p l e m e n t a t i o n

m e a s u r e s priate provision measures. inthenew might concurrently review whetherthe measures toensure compliancewithSecurity Councilresolution ()oncounter-terrorism, national measures forotherinternationalobligations.For national example,statesadoptingnew States parties should also have due regard to their existing biological weapons intheirterritory. which elements are applicable to them and therefore necessary to most eff ectively enforce the ban on toimplement the legislation necessary All oftheseissuescouldbeconsidered undera‘toolbox’ • • • tions mightbethefollowing: comprehensive policydocumentonimplementationofthe scarce time.In resources addition,allnational measures andparliamentary couldbegathered intoa legislation encompassingall be required to adopt national implementation measures, it might be advisable to adopt comprehensive As the and/or biopharmaceuticalindustry. research programmes involving dual-usebiologicalagentsortechniques,aprivate biotechnology to eff ectively implement the level. States parties should also reach an understanding that more legislative controls may be necessary Together, theseformthebasiccommitmentsforimplementing between customs,border control, policeandothersinvolved intreaty implementation. legislation, as some states parties have done already, and increasedother measures are required.cooperation  and ismightbeachieved by includingenforcement powers innational information sharing States shouldagree parties thatmechanismsforappropriate enforcement ofnationallegislationand which violatethetreaty. ‘universal jurisdiction’ provisions. It is essential to have appropriate penal sanctions in place for offjurisdiction, includingmakingprohibited activitypunishableinotherstates’ ences jurisdictionsthrough States shouldalsoconsiderapplyingnationalmeasures totheircitizens andcompaniesoutsidetheir control procedures. andimport adopt undertheirexport nology. It mightbeusefultoformulatestandard defi nitionsofprohibited itemswhichstatesmight be inplacetorestrict accesstorelevant agents,equipment,intellectualproperty, materialsandtech- To ensure compliance with the provisions in Article , appropriate export and import controls should implementing appropriate biosecurity measures, where states are also party to agreements regulating implementing comprehensive biosafety measures, where states are also party to the  Convention preventing terrorist useof biological research andfacilities(suchasEuropean Union regulations). on Biological Diversity Protocol anditsCartagena onBiosafety; and September whichisbindingonall  is relevant to other international, legally-binding commitments for which states may also    -related obligations,whichwouldreduce duplication,thewasteof , mandatedunderSecurity Councilresolution ()of ’s prohibitions, especially in states with military defence programmes,    and related treaties are identifi ed. States canthendecide is eff ectively implementedandconsidermakingappro- member states; approach, whereby allpotentialelementsof   legislation when adopting subsequent . Amongastates’  prohibitions atthenational  -related obliga-

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC • Union) hasdeveloped amodellawonrightsandaccesstobiologicalresources; seerespectively: law for controlling pesticides and toxic chemicals, while the OrganisationIn thechemicalweapons area, the of African Unity (now African the typeofcoordinated assistancetheymight beabletoprovide. sations mightconsidercollaboratingandconsultingwith memberstatesand As no single organisation has the expertise to address all aspects of ( Prohibition of Chemical Weapons ( in Europe ( Against Terrorism ( Secretariat, the Counter-Terrorism Committee ( of Southeast AsianNations ( provide. Such organisations include: the African Union ( relevant to and the prohibitions of the assistance to states drafting national measures to implement international humanitarian law generally, Service of the International Committee of the Red Cross ( mentation legislation,someofwhichhave already beendoing so. For example, theLegalAdvisory  ere are many organisations which might provide assistance in drafting specifi c aspects of andprovidesstates parties, assistance. of that treaty, promotes appropriate reporting using a guide developed by personnel landmines. eworking group encouragesannualreporting, asrequired  underArticle ad hocworking group totheOttawa establishedby Convention statesparties banninganti- ‘working group’ istheinformal, settingthaninalarge,formalmeeting. Anexampleofsuchaforum may bemore willingtorequest andagree toprovide technical,fi nancialorotherassistanceinsucha approaches and methods with states parties considering adopting sations and others with relevant expertise, may choose to meet, on an informal, ad hoc basis, to discuss States parties willing to share their experience and expertise, along with specialist international organi- Open-ended, informal working group  inothertreatyof forum regimes mayconsiderapplyingoradaptingtosuitthe whichstatesparties assistance clearing-house;oranationalmeasures unit. support ere are usefulmodelsofeachtype take the form of: an open-ended, informal working group; an information clearing-house; a technical resources inrespect oftheadoptionnationalimplementationmeasures forthe States and shouldconsiderestablishingamechanismforsharingtheirexperience,expertise parties A mechanismforproviding assistance •  www.opbw.org/nat_imp/model_laws/opcw-carib-model-law.pdf www.opbw.org/nat_imp/model_laws/oau-model-law.pdf. ’s requirements. ) andthe World Health Organisation (   implementation, aswell asregional organisations,mightconsider whattheycan ), theOrganisation ofEasternCaribbeanStates (  ), the League of Arab States, the Organization for Security and Co-operation   specifi cally. Other specialist international organisations with expertise  ), theCaribbeanCommunity(  ),) the Pacifi c Island Forum, the World Customs Organisation and ,

t h  e 

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t h national measures. States parties implementation, these organi- e ), theOrganisation forthe

W  o ), theCommonwealth r l d 

C in cooperation with u s  states parties asto states parties t o m .  ismight s

O  r g a n imple- i s a t i o n

Ensuring national legislation isimplemented andenforced itprovidesparties, reports onitsoperationandfi nancialmanagementto Meetings of States Parties. of thetreaty, itachieves thiswithastaff ofjusttwo. contributionsfromFunded states by voluntary gichd.ch/mbc/isu/index.htm). While its mandate is to facilitate state partyAn exampleistheImplementation Support Unit establishedfortheOttawa Conventionimplementation (seewww. of all aspects mentation. assistance andresources fortheadoptionofnationalmeasures onallissuesrelating to mation on the adoption of national measures, a depository of legislative Statestexts parties and might a considerfacilitator establishing a dedicated,of relevant standing unit to act as a clearing-house for infor- National measures unit support basis. lishing asimilardatabaseandfacilitationteam,fundedonvoluntary are paidforthrough mandatory the matchingofoff ersand requests. e  is onlyavailable tothoseoff eringassistanceandtothe Technical Assistance Team, whichfacilitates legislative texts and training tools and a private register of requests for assistance.  e requests section by asmall Technical Assistance Team, ofassistanceoff consistsofanon-linedirectory ered, relevant and off er assistance, provide this information to the states, alongwithinternational,regional andsub-regional organisationswillingtoshare information Security Councilresolution ()(seewww.un.org/Docs/sc/committees/). An exampleistheAssistanceDatabase ofthe of informationrelated totheadoptionofnationalmeasures. the provision andreceipt ofassistanceby willingstatesandorganisationspromote theexchange A combination of the two functions described above, a technical assistance clearing-houseTechnical assistance clearing-house would facilitate cost-eff ective. fundtomeetitscosts. trust mightconsiderestablishinga voluntary States parties  ecostsofestablishingandmaintainingsuchaclearing-houseare likelytobeminimal,yet highly   isfunctionmightbegiven toanexistingbody, suchastheUnited Nations Offi ceofLegal airs, Aff eff measures. ectiveness ofcertain in draftingandadoptinglegislation,aswell andothersonthe asanalyticalpapersby statesparties include the texts of legislation adopted, papers by government legislative drafters on approaches taken tion is necessarily public information, this clearing-house should be made open to the public. It could of national measures, as a resource for those still considering adopting appropriate measures. As legisla- It would be helpful to establish an international clearing-house for information related to the adoption International information clearing-house that theyare eff ectively implemented andthattheyare regularly reviewed andamended ifnecessary. It isnotsuffi cientsimplytohave legislationandother measures inplace. mustensure Statesparties or the BioWeapons Prevention Project ( o r

t h e

B i o W e a p o n s

P r e v e n  t i o assessed contributions. n

P r o  j e c t , itsAssistanceDatabase and Technical Assistance Team

 (  Counter-Terrorism Committeeestablishedunder  ), or a government body or academic institution. Assistance Database.  e database, maintained  states parties mightconsider estab- states parties   member imple-

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC which hasproved successfulforallinvolved (seehttp://disarmament.un.org/MineBan.nsf). Convention states parties with posting states parties’ Article  implementation reports on its website, be easilyachieved by postingthemonthe States parties should also consider making Form ‘ measures tothe measures andanyotherinformationtheymaywishtoreport, aswell asproviding textsofnational Annex).  is should include listing the names and dates of adoption of national legislation and other States parties should urgently adopt a decision to make more information available using Form ‘ been patchy.  mation onnationalmeasurestoregularly have undertaken thatstatesparties report toeachotherin texts andinformationonthestatusofnationallegislationforthispr generally. individually,parties have theaddedbenefi tofenhancingthetransparency of other national measures are deposited and made publicly available would, in addition to assisting states  eestablishmentofaninternationalinformationclearing-housewhere thetextsoflegislationand Enhancing transparency listed in Table above.  known estatesparties tohave establishedanationalfocalpointfor  activities required of the state. Canada is currently in the process ofnew establishing body may be established, awhose national size and budget authorityrefl for ects the complexity of treaty implementation required. Its tasksmaybeassignedtoanexistingbody, have already assomestatesparties done,or a treaties, such as the implementation. Such a body might mirror the national authorities required under other disarmament mentation. States mighttherefore parties fi ndithelpfulto establishanationalfocalpointfor compliance toReview Conferences, andotherson aswell asliasingwithstatesparties in biotechnologyandthelifesciences,annualreporting under national policies, regularly reviewing the adequacy of national measures in light of the rapid advances  ere is a range of national tasks involved in ensuring compliance with the Establishing anationalfocal ornationalauthority point willassistcomplianceeffstates parties, orts. information relevant to treaty implementation and enforcement, both withinnating treaty implementationwithinthatstate.Maintaining communication channelsforsharing a state party and between or a civilian biotechnology industry, this will be best achieved by establishing a focal point for coordi- Given the complexity of implementing the their own governmental ornationalfocalpointwebsites. Alongwithbeing ausefultoolforother shouldbeencouragedtoprovideOf course,statesparties informationontheir nationalmeasures on Form ‘ implementation, thefi todoso. rstcountry   ’, isminimal,whilethelevel ofreporting by thoseactuallysubmittingtheformhas  has received initsattemptstoacquire from manystatesparties support legislative  , or it may simply act as a designated body to carry out particular functions as or anyinformationclearing-houseestablished.   , especially for states with biological defence programmes  ’, and all website.  e   forms, publicly available.  is could  declarations andreporting on oject. Yet theamountofinfor- has beentaskedby Ottawa    implementation are , such as coordinating implementation  imple-   ’ (see bly, on awebsite. parties should consider making publicly available their own and others under national law, thereby assisting them in complying with national laws. Likewise, states states considering adopting measures, it will enhance the transparency of the requirements for industry  reports, either on request or, prefera-

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC and themobilisationofinternationalassistancetothosestatespar states to regularly review the eff ectiveness of their measures, but it will stimulate information-sharing aged toalsomakethisinformationavailable publicly. Greater transparency willnotonlyencourage specifi cally national implementation legislation, in their be reminded oftheircommitmenttoprovide informationonnationalimplementationmeasures, should beconsidered, amongthemthosesuggestedinthisreport. States should,inaddition, parties ance necessary to ensure that this is achieved.  e establishmenttheir legal of obligation mechanisms to adopt necessary to measures provide and take concrete such steps assistance to give each other any assist-  eMeeting ofStates Parties inNovember leastremind of all states parties shouldatthevery ofthetreaty.under Article In eff ectthesestatesare innon-compliancewiththeirlegalobligations. totheBiologicalparties Weapons Convention have noimplementinglegislationinplaceasrequired  Conclusion ’s Survey of National Implementation Legislation has revealed that a large proportion of states  transparency reports and should be encour- ties whichneedit.  assistance forthisproject, theformerthree as Marie Fagerström, Nicola Horsburgh, Patricia Watt and John Russell also provided invaluable research from LandmineAction Reporting under Article  of the Ottawa Convention, Landmine Monitor , ‘ eUnited Nations’ Role inImplementing theComplianceAspectsofOttawa Convention’, ; ‘Verifying theOttawa Convention’, , ‘National Implementation Legislation for arms control and disarmament treaties’, London School of Economics and Political Science, University of London. Her publications include: of Lawsdegree from theUniversity ofCanterbury, New Zealand andaMaster ofLawsfrom the ment treaty obligations. She has a Bachelor of Arts (Honours) degree innegotiation, implementation and verifi Political cation as well as theadoption of national legislation to imple- Science and a Bachelor Angela Woodward About the author  ’s ArmsControl , London, ; is i s

 &   DisarmamentD Research Assistant. . Guide to Fact-Finding Missions under the Ottawa Convention, ’s Legal Researcher. Her research interests include the legal aspects of treaty isarmament R , Washington, .She also contributed to and edited esear Verifi cation Yearbook ,  ch Assistant.  interns duringandthelatteras , London,  in collaboration with researchers  , London,;and Verifi cation Yearbook   ’s , London Guide to

TIME TO LAY DOWN THE LAW  NATIONAL LEGISLATION TO ENFORCE THE BWC  TIME TO LAY DOWN THE LAW NATIONAL LEGISLATION TO ENFORCE THE BWC Confi dence-Building Measures they agreed at the ird Review Conference in . is information  States parties agreed to provide information each year on the status of their national measures under the Annex the textsofanymeasures adopted.States mightalsoconsidermakinginformationontheir parties to provide additional information, such as descriptive summaries of their national measures, as well as legislation available publicly, forexampleonthestate’s should be provided on Form Confi dence-Building Measure Form ‘E’: Declaration of legislation, regulations and other measures * (c) Imports of micro-organisms (b) Exports of micro-organisms (a) Development, production weapons, equipment and means retention ofmicrobial orother Form E biological agents,ortoxins, Relating to Declaration oflegislation, regulations andothermeasures and toxins of delivery specifi ed in Article  and toxins stockpiling, acquisitionor Micro-organisms pathogenic to man,animals andplantsMicro-organisms inaccordance withtheConvention legisla tion, r  (below) and submitted to the egula * *    Legislation / / /    tions    Regulations and / / /     nationalfocalpointwebsite.  other . States parties are also encouraged    Other measures / / /    measur    Amended since last year es / / /   