Ukraine Symposium – Russia’s Allegations of U.S. Biological Warfare in Ukraine – Part II

Part 1 of this post presented the factual dispute regarding Russian allegations of U.S. and Ukrainian collaboration on the development of biological weapons. It also reviewed the rules, obligations, and rights under the 1972 Biological Weapons Convention and indicated how they may apply in the dispute between Russia and the United States.

In this second part, I examine the Convention’s dispute resolution mechanisms, and highlight the well understood deficiencies in the Convention’s compliance and enforcement procedures. Then, I raise broader questions about the Convention’s value as an international legal instrument.

Dispute Resolution Under the Biological Weapons Convention

Under Article VI of the Biological Weapons Convention, Russia is entitled to lodge a complaint before the United Nations Security Council against the United States and Ukraine asserting breaches of their treaty obligations. Russia did not pursue this course of action, likely for numerous reasons. Article VI imposes an evidentiary burden on Russia, which it may not have been able to meet. Assuming that Russia’s allegations are not factually supportable and given the United States prominent position on the Security Council, Russia may have concluded that submitting its claims to the Security Council would not yield a sufficiently drawn-out airing of its claims without a burden of evidentiary production.

Russia instead chose to assert its claims under Article V of the Convention. In the event of a factual dispute or other disagreement arising between States Party, Article V obligates States “to consult one another and to cooperate in solving any problems which may arise in relation to” the Convention. The treaty does not further elaborate the procedures governing Article V consultations.

In 1986, the Second Review Conference for the Biological Weapons Convention clarified the role of Article V in disputes concerning the Convention’s rules and obligations. In its Final Declaration, the Conference “reaffirm[ed] the obligation assumed by States Parties to consult and co-operate with one another in solving any problems which may arise in relation to the objective of, or in the application of the provisions of, the Convention.” Furthermore, the Conference confirmed “the right of any State Party to request that a consultative meeting open to all States Parties be convened at expert level.” The Conference also agreed “that a consultative meeting shall be promptly convened when requested by a State Party.”

At the Convention’s Third Review Conference in 1991, the Conference declared, in its Final Declaration, that a “formal consultative meeting” under Article V could be “preceded by bilateral or other consultations by agreement among those [States] involved in the problems which had arisen.” The Conference further asserted that requests for a formal consultative meeting must be addressed to the Convention’s depositaries, “who shall immediately inform all States parties of the request and shall convene” the meeting within 60 days of receiving the request.

Thus, the Article V mechanism afforded Russia a forum in which to air its complaints without a formal requirement to produce evidence. Upon submission of its request to the treaty depositories – the United States and the United Kingdom – the conduct of a formal consultative meeting was obligatory. Furthermore, the private character of the meeting allowed Russia to press its claims free from outside review of their merits.

Separate from the plausibility of its factual assertions, Russia’s actions likely were designed for purposes beyond definitively establishing that the United States and Ukraine violated the Biological Weapons Convention. Russia may have used the accusations to fuel pre-existing attitudes about American dominance in foreign affairs. Additionally, Russia may have sought to sow division and doubt within the international community, as well as deflect blame for the invasion from Russia to the United States and NATO.

The U.S. State Department accused Russia of abusing the Convention’s formal review process to spread disinformation and justify its invasion of Ukraine. Indeed, States and commentators appeared to expect little of substance and no formal resolution to come from the meeting, with some believing Russia used it not for truth seeking but rather used the “mere existence of the investigative session, much of which [took] place behind closed doors, to give its claims a patina of legitimacy.”

Is the Biological Weapons Convention a “Parody of the Rule of Law”?

A recent episode of the Digging a Hole podcast involved a discussion about international law and Russia’s invasion of Ukraine. The wide-ranging conversation involved a particularly interesting exchange of views concerning the legitimacy of international law in the context of inter-State force and armed conflict.

On one view expressed during the discussion, powerful States may stretch, manipulate, and even violate international law with virtual impunity. This characteristic was likened to a “get out of jail free card” for powerful States, which ought to be condemned in any legal system as unjust. As one speaker argued, this seems less like an example of the rule of law than a parody of it.

On another view expressed in the episode, observers ought to be clear eyed about both what the current international legal system achieves as well as the realistic possibilities for its improvement to a more just system. Far from replicating domestic forms of law enforcement, compliance, enforcement, and accountability, the international legal system takes on unique forms, particularly with respect to powerful States. International law may motivate compliance through those forms, perhaps modestly at times, but in nonetheless desirable ways. While criticism of its shortcomings is always acceptable, we must guard against losing sight of the limitations of powerful States’ willingness to accept international legal restraint.

Although the podcast discussion addressed a different aspect of the Russian-Ukraine conflict, the views rehearsed above have force with respect to the dispute concerning U.S. compliance with the Biological Weapons Convention in Ukraine. At the center of the podcast discussion was the notion of international law’s legitimacy in the context of powerful States’ war-making. In the context of the Biological Weapons Convention, it is likewise worth asking how States’ use of the Article V formal consultative meeting—and the Convention more broadly—reflects on the legitimacy of international law.

From the initial perspective outlined above, the Convention’s dispute resolution mechanism—the Article V formal consultative meeting—may be said to make a mockery of the law. Importantly, on this view it need not matter where the truth lies in the Russia-U.S. dispute about U.S. biological research in Ukraine. On the one hand, if Russia’s allegations are true, little of practical consequence has followed for the United States and Ukraine: no findings of fact were rendered; no legal judgment was made; no sanction was incurred by virtue of the meeting. The meeting did not even result in condemnation—beyond the few States that back Russia generally as a matter of course—or any meaningful change in U.S. behavior or practice.

If, on the other hand, Russia’s allegations are false, it has arguably manipulated a mechanism designed to resolve disputes about legal compliance to achieve aims unrelated to international law, let alone the Biological Weapons Convention. These aims may include distracting attention away from Russia’s unlawful invasion or allegations that it engaged in widespread violations of the law of war in Ukraine. Thus, whether Russia’s assertions are made earnestly or in bad faith, the Convention appears not to serve the interests of compliance and accountability, but rather the unitary interests of a few powerful States. To return to the podcast discussion, such practice seems more like a parody than an example of the rule of law.

However, on the responsive view, we should not too quickly dismiss what international law generally—and the Article V mechanism, in particular—has achieved in this case. After all, the United States, Ukraine, and other States could have resisted or rejected Russia’s invocation of Article V of the Convention. Instead, these three (and scores of other) States participated in the meeting, thus opening the door to engagement. Compared to other dispute resolution mechanisms—for example, the use of military force—on this view the use of Article V constitutes a victory for discourse and engagement. Even if Russia’s assertions were spurious, Article V offered a relatively innocuous venue in which to handle its claims.

Which of these two perspectives one adopts has implications for how to think about international law more broadly. For example, some theoretical frameworks deemphasize international law’s formal, source-based authority and its capacity to marshal sovereign power to impose sanctions for noncompliance. Such frameworks instead focus on international law as constituting a “social process”—often a “messy” one—in which “decisionmaking in the international realm actually occurs.” Such frameworks are perhaps more plausible when viewed from the apologetic perspective discussed above.

Returning to where this section started, the question remains whether the formal constitutive meeting held pursuant to Article V of the Biological Weapons Convention constituted a “parody of the rule of law.” The answer depends on what one thinks the meeting achieved, as well as what one expects international law to be able to accomplish, especially with respect to powerful States such as Russia and the United States. Observers are likely to disagree about the answers to these questions. It is important to account for these underlying considerations when evaluating the effectiveness of international law, including the Biological Weapons Convention.

Conclusion

In this post, my first goal was to review the scope of the Biological Weapons Convention, its rights and obligations, and its mechanisms for dispute resolution. This is most immediately relevant to the Russia-U.S. dispute about biological weapons development in Ukraine. However, the Convention is likely to gain prominence in discussions about future armed conflict. Although it is not yet discussed widely in scholarly research, States are deeply committed to research involving biotechnology in future warfare. This includes the development of “synthetic biology,” which in part consists of taking “bacterial cells or fungal cells and transform[ing] them to do whatever the mission may require.” Accordingly, the Biological Weapons Convention is likely to come into focus among States and legal practitioners, as well as within legal scholarship.

My second goal was to question the role of the Convention in the practice of international law, particularly in cases such as Russia’s claims of U.S. biological warfare in Ukraine. The value of the Convention is not obvious, given the ambiguity surrounding its terms and its rather feeble dispute resolution mechanisms. However, as I have argued, in evaluating international law—including the Biological Weapons Convention—we must think carefully and critically about what States use it for and why. Doing so will enrich our evaluation, as well as inform our discussions about the desirability and plausibility of effective change in international law.

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Robert Lawless is an Assistant Professor in the Department of Law and Managing Director of the Lieber Institute for Law & Land Warfare at the United States Military Academy, West Point.

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