Modernizing Confidence-Building Measures for the Biological Weapons Convention

Abstract

The Seventh Review Conference of the Biological Weapons Convention in December 2011 provides an opportunity to modernize the treaty to better address the challenges of the 21st century. The key to this modernization is to redesign the treaty's Confidence-Building Measures (CBMs), the only formal mechanism for increasing transparency and demonstrating compliance with the treaty, to address changes in the global scientific, health, and security environments since the end of the Cold War. The scope of the CBMs should be expanded beyond state-run biological warfare programs to encompass a broader array of threats to global security, such as biological terrorism, laboratory accidents, dual-use research, and disease pandemics. Modernizing the CBM mechanism to take into account these new risks would extend the transparency-enhancing benefits of CBMs to a range of new and important topics, such as biosafety, laboratory biosecurity, and dual-use research oversight; make the CBMs and the treaty itself more relevant to the concerns and priorities of more states; and build on progress made during the recent series of intersessional meetings. To accomplish this, the CBMs need to be revised to shift their focus from hardware, the dual-use capabilities relevant to the treaty, to software, the political and legal institutions that govern the development and use of these capabilities. A more modern CBM mechanism should encourage greater participation in the confidence-building process, improve international cooperation against the full spectrum of biological risks, and promote the goal of universal membership in the treaty.

The upcoming review conference of the Biological Weapons Convention provides an opportunity to modernize the treaty to better address the challenges of the 21st century. The key to this modernization is to redesign the treaty's Confidence-Building Measures to address changes in the global scientific, health, and security environments since the end of the Cold War.

New action is required to strengthen the Biological Weapons Convention (BWC) in the face of growing concerns about the possible misuse of biology and the inability of member states to agree on a legally binding protocol to the treaty. The BWC was written during the Cold War, when the primary biological threat to international security was perceived to be biological weapons developed by states. Today, in addition to government-sponsored biological weapons programs, states face a broader array of biological risks, including biological terrorism, laboratory accidents, the misuse of dual-use research, and naturally occurring infectious diseases.¹ The failure of the BWC to keep pace with changes in the global scientific, health, and security environments since the end of the Cold War is reflected in the struggle to boost the number of states that have joined the treaty. The BWC has the lowest participation rate of the 4 multilateral disarmament or nonproliferation treaties governing nuclear, biological, and chemical weapons.²

The treaty's next review conference, scheduled for December 2011, holds the potential for bringing the BWC into the 21st century by strengthening the role of the treaty in promoting international cooperation to combat the full spectrum of biological risks. The treaty's Confidence-Building Measures (CBMs) are the only formal, politically binding mechanism for increasing transparency and demonstrating compliance with the treaty. These CBMs focus on state-based biological threats. The profound changes in geopolitics, science, and public health since the end of the Cold War are not reflected in the scope and content of the CBMs. Modernizing the CBM mechanism to take into account these new risks would increase transparency in key areas, make the CBMs and the treaty itself more relevant to the concerns and priorities of more states, and build on progress made during the recent series of intersessional meetings. A more modern CBM mechanism should encourage greater participation in the confidence-building process, improve international cooperation against the full spectrum of biological risks, and promote the goal of universal membership in the treaty. Modernizing the CBMs is both practical and necessary to address today's most pressing biological threats.

The United States is poised to exercise leadership in strengthening the treaty and has indicated an interest in improving the CBMs. In its 2009 National Strategy to Counter Biological Threats, the Obama Administration pledged to revitalize the BWC by promoting confidence in the implementation of the treaty and compliance by its members, promoting universal membership in the treaty, advancing a substantive agenda that emphasizes topics with the potential to enhance global health security, engaging with allies and like-minded members of the treaty, and encouraging stronger partnerships between the security and public health communities.³ Modernizing the CBM mechanism along the lines proposed in this article would contribute to achieving all of these goals.

Current Confidence-Building Measures

The BWC was opened for signature in 1972 and entered into force in 1975. It was the first international treaty to outlaw an entire class of weapons. The BWC, however, does not contain any measures to verify compliance, such as legally binding declarations of biological capacity or on-site inspections of facilities. Efforts to strengthen the treaty have made incremental progress through the adoption of CBMs intended to improve the transparency of civilian and defensive biological activities. In the absence of verification measures, state parties developed these CBMs to enhance their confidence that other parties to the treaty were in compliance and to reassure others of their own compliance. The CBMs, adopted at the 1986 and 1991 Review Conferences, consist of 7 measures, A to G:

CBM A Part 1: Exchange of data on research centers and laboratories

CBM A Part 2: Exchange of information on national biological defense research and development programs

CBM B: Exchange of information on outbreaks of infectious diseases and similar occurrences caused by toxins

CBM C: Encouragement of publication of results and promotion of use of knowledge

CBM D: Active promotion of contacts

CBM E: Declaration of legislation, regulations, and other measures

CBM F: Declaration of past activities in offensive and/or defensive biological research and development programs

CBM G: Declaration of vaccine production facilities

Since the CBM mechanism was instituted, however, the majority of states have participated inconsistently or not at all, and the quality of the submitted information has been uneven.⁴ Outreach and assistance provided by the Implementation Support Unit (ISU), established following the 2006 Review Conference to help administer the BWC, has contributed to an increased level of participation in the CBM mechanism. While 2010 witnessed the highest-ever participation in the CBM process, with 70 states submitting declarations, this still amounted to only 43% of state parties.⁵

It is unclear why more states do not participate in the CBM process. One theory is that states do not participate because they do not regularly track the information asked for and have other priorities for the resources that would be needed to gather the information. Another theory is that some states do not see any benefit either from providing the information or receiving it from other states. A third theory is that the CBMs were a popular concept during the Cold War and important to the large states in the Eastern and Western blocs, but they were not relevant to nonaligned states. Finally, some states may decline to participate because they have something to hide and providing the information requested by the CBMs could lead to the exposure of secrets. The lackluster participation in the CBMs is likely due to a combination of reasons and not necessarily the same reasons for all states. Nevertheless, the factors that the international legal scholars Abram and Antonia Chayes observe about international agreements in general—“the principal source of noncompliance is not willful disobedience, but the lack of capability or clarity or priority”—likely influence noncompliance with the CBM obligation.⁶^(p22)

Rethinking the Purpose of the CBMs

Despite the dramatic changes in geopolitics, public health, and the life sciences that have taken place since the end of the Cold War, the BWC's CBMs have not been updated since 1991. Between 1995 and 2001, the BWC state parties conducted negotiations on a legally binding protocol to strengthen compliance and improve implementation of the treaty. In 2001, the U.S. announced that it would not support the draft protocol, destroying any chance for a consensus agreement. The Obama Administration has reaffirmed the decision of the preceding administration and declared that it is not interested in returning to protocol negotiations.³ It is now critical that the CBMs evolve in 2 ways to better support the overriding objective of the BWC: “to exclude completely the possibility of bacteriological (biological) agents and toxins being used as weapons.”

First, the CBMs need to provide greater insight into how biological capabilities are used and regulated, not just whether they are present within states. The current CBMs require states to provide information on maximum biocontainment (biosafety level 4, or BSL-4) laboratories, human vaccine production facilities, and biodefense research and development (R&D) programs. The current CBMs remain useful for increasing the transparency of capabilities relevant to the BWC, but they do not illuminate the intent that motivates the development and use of these capabilities. Due to the dual-use dilemma that characterizes biotechnology, the material, facilities, and knowledge used for peaceful purposes such as pharmaceutical production and biodefense programs can also be used for hostile purposes, such as biological weapons development and bioterrorism. Intent, therefore, becomes vital to understanding whether a country's activities are legitimate or illicit and whether they are being conducted in a safe and secure manner. In order to gain better insight into the intent underlying these types of capabilities, the CBMs should broaden their focus from hardware to software. Software refers to the political and legal institutions that govern the development and use of this technology and the administrative capacity of states to exercise this oversight function. While the current CBMs address national legislation to implement the BWC, they do not explicitly cover the laws, regulations, institutions, policies, and enforcement mechanisms relevant to laboratory biosafety, laboratory biosecurity, oversight of dual-use research and biodefense programs, or commitments under other relevant international agreements, such as the World Health Organization's 2005 International Health Regulations (IHR) or United Nations Security Council Resolution (UNSCR) 1540.

Exchanging information about the laws, regulations, institutions, policies, and enforcement mechanisms that govern biological capabilities would provide another means of increasing transparency, demonstrating compliance, and reassuring others about a state's intentions. Describing intentions, and the administrative capacity of states to follow through on their intentions, would not remove all uncertainty, but it would give other states a firmer basis upon which to make judgments. Equally important, it would provide states with a greater appreciation for the extent to which “capability or clarity or priority” is responsible for states' failures to develop and implement measures to address laboratory biosafety and biosecurity, dual-use research and biodefense oversight, and disease surveillance capacity. Understanding the domestic sources of this behavior is necessary to organize international assistance to overcome these obstacles to more effective participation and implementation.

Second, the CBMs need to address a broader array of challenges in addition to state-run bioweapons programs. Since the end of the Cold War, 4 trends—advances in science and technology, the emergence of new diseases, globalization, and the changing nature of conflict—have converged to increase the risks posed by natural disease outbreaks and the accidental, inadvertent, or deliberate misuse of biotechnology by non-state actors.¹ Since 2003, the annual meetings of the BWC have engaged a diverse group of governments, nongovernmental organizations, private firms, and international organizations on a wide array of topics such as disease surveillance, laboratory biosafety and biosecurity, and oversight of dual-use research. Revising the CBMs to address the full spectrum of biological risks would build on these valuable discussions and provide a means of institutionalizing the information sharing that occurred during these meetings. According to a 2007 survey conducted in 47 countries, people in different states place quite different priorities on public health compared to other issues such as terrorism, crime, illegal drugs, and pollution. Not surprisingly, people in states outside the Middle East and Western Europe view HIV and other infectious diseases as a more serious problem than terrorism.⁷ The Obama Administration's 2009 National Strategy to Counter Biological Threats recognizes that “the plurality of perspectives in the international community as to the severity of the risk and mitigative actions that nations should take presents a challenge to risk management.”³^(p19) By providing a forum for the discussion of the full spectrum of biological threats, the BWC would become more relevant to the concerns and priorities of more states. This could potentially increase the number of states who find it useful to participate in the CBM process and facilitate efforts to increase membership in the treaty.

It would also be beneficial if the revised CBMs could be structured to provide states with an opportunity to acknowledge and be recognized for steps they are taking for public health or biosecurity reasons, such as improving disease surveillance, enhancing dual-use research oversight, and the like. Compliance in the broader context of global health security requires actions outside of the traditional scope of the BWC. Standards for laboratory biosafety, laboratory biosecurity, and public health emergency preparedness are set by other international organizations. Nonetheless, these standards, and the extent to which states are in compliance with them, have a direct bearing on the ability of states to reduce the risks posed by the spectrum of biological threats.

Revising the CBMs will be a lengthy and complex process. The revisions proposed here are not exhaustive or definitive. The goal of this article is to provoke debate on this important topic by providing a vision for modernizing the CBMs into a mechanism better suited for reducing the biological risks facing the world today.

Revising the CBMs

The CBMs remain a useful tool for increasing transparency and providing states with a means of demonstrating their compliance and assuring others of their benign intentions. Individual CBMs need to be revised, however, to maximize their utility for achieving these objectives.

CBM A Part 1 regarding the exchange of data on maximum biocontainment laboratories should be expanded to include the provision of information on the biosafety and laboratory biosecurity laws, regulations, policies, and institutions governing these facilities. Emerging infectious disease, fear of bioterrorism, and the economic opportunities presented by the biotechnology revolution have triggered a construction boom in high-security biocontainment labs. There are at least 24 BSL-4 laboratories currently in operation around the world with another dozen under construction in the U.S. and Europe.⁸^,9 A major biosafety concern is that a laboratory accident could reintroduce a contagious disease that has already been eradicated or otherwise contained. The last known cases of smallpox and SARS were caused by laboratory exposures, and both viruses were able to spread from infected researchers to individuals outside of the laboratory.¹⁰ The proliferation of such facilities also raises concern about the security of the pathogens and toxins stored there. There are international, voluntary guidelines for laboratory biosafety and biosecurity, but no mechanism exists for states to demonstrate that they are implementing such measures or to exchange information on best practices in these fields.

This revised CBM would complement similar efforts under way via UNSCR 1540 to strengthen national controls over nuclear, biological, and chemical materials that could be misused by non-state actors. Notably, far fewer states have measures in place to control the spread of pathogens than nuclear material or chemical agents. This disparity is likely due to the existence of more robust international legal and institutional frameworks governing nuclear and chemical weapons.¹¹ A review of national declarations provided pursuant to UNSCR 1540 found that these documents provided little understanding of a state's capacity to administer and implement national legislation designed to prevent the proliferation of nuclear, biological, or chemical weapons.¹² This revised CBM would strengthen the international legal framework governing biological materials that could be used for hostile purposes and provide another venue for states to demonstrate that they have adopted the appropriate legislative and administrative measures to manage the risks posed by biological research on their territory.

CBM A Part 2 regarding the exchange of information on national biological defense R&D programs should be expanded to include the sharing of information on the laws, regulations, policies, and procedures in place to ensure that these programs are in compliance with the BWC. The number of countries with declared biodefense programs has increased dramatically, from 13 in 1993 to 25 in 2007.¹³ The growth of biodefense R&D programs has placed new pressure on the prohibitions contained in Article I, which prohibits the development and production of biological weapons. There is a growing recognition that state parties engaged in biodefense R&D activities must take active steps to ensure their own compliance with the convention and to effectively reassure others of their compliance. A number of state parties to the BWC have already established mechanisms for reviewing the compliance of their biodefense R&D programs with the treaty.¹⁴ Sharing information about best practices on vetting biodefense programs to ensure their compliance with the BWC could lead states without sufficient oversight on biodefense to initiate such measures.

CBM B regarding the exchange of information on unusual outbreaks of disease and similar occurrences caused by toxins has been largely overtaken by recent developments in the global health arena. Several global health surveillance systems monitor official and unofficial sources of information for reports of disease outbreaks.¹⁵ In addition, the 2005 IHR requires states to report to WHO all “public health emergencies of international concern,” including those that are unusual or unexpected.¹⁶ A more useful role for the BWC would be to provide a forum for states to provide updates on their progress in implementing the commitments undertaken under the IHR to develop core competencies to detect, assess, notify, report, and respond to public health risks. As it now stands, CBM B's contribution to transparency and global health is marginal.¹⁷ It would be more useful, and certainly more timely, to know how other states participate in the existing disease surveillance and reporting systems.

Some states have opposed WHO taking a stronger role in global health security out of concern that the organization's core mission of public health will be compromised.¹⁸ These states may also object to the inclusion of IHR in the BWC's CBMs as an unwarranted intrusion of international security concerns into the realm of global health. These same states, however, tend to be the strongest proponents of stronger implementation of Article X of the BWC, which encourages international cooperation on the peaceful use of the life sciences and biotechnology. This revised CBM could also include information on the types of assistance states have provided, or could provide, to assist other states in implementing the IHR. Such capacity-building assistance would clearly fall under Article X. By providing a means for states seeking assistance and states able to provide assistance to identify one another, this CBM could contribute simultaneously to improved implementation of the IHR and Article X.

This revised CBM would not usurp WHO's role as the lead international organization on global health or interfere in its efforts to implement the IHR. Rather, it would reinforce the importance of IHR for improving global health and enable states to earn “extra credit” for the security benefits of their investments in public health. Since IHR is now the fulcrum for improving the capabilities of public health systems around the world to prepare for the full range of natural and man-made disasters, it is relevant to acknowledge the security benefits of these activities. This revised CBM would reinforce the reality that the best defense against a biological attack is a strong public health system.¹⁹ Enhancing disease surveillance systems is crucial because early detection of disease outbreaks is the key to mitigating their consequences—regardless of whether the outbreak is intentional, accidental, or natural. The United Nations Secretary-General's High-Level Panel described an improved global disease surveillance and response capability as “triply imperative—as a means of fighting new emerging infectious disease, defending against the threat of biological terrorism and building effective, responsible States.”²⁰^(p29) This revised CBM should not impose an undue burden on state parties since they are already required to supply similar information to WHO. Providing this information via the BWC would foster the objective of improved collaboration between the health and security communities and help educate policymakers in the security realm about the benefits of strengthening public health systems. By providing another means of acquiring assistance to fulfill IHR commitments, this revised CBM would provide an incentive for states to become parties to the BWC if they have not already done so.

CBM C regarding publications relevant to the BWC should be revised to focus on national laws, regulations, policies, and institutions relating to dual-use research, including oversight, education, awareness raising, codes of conduct for researchers, research proposal review, and prepublication review. CBM C is archaic in the era of the Internet when scientific articles are available on a global basis and in a more timely manner. A number of states, international organizations, and private entities are engaged in a wide range of activities to prevent the misuse of the life sciences.²¹ A more useful role for a revised CBM is to serve as a forum for states to report on these activities and as a platform for stakeholders to share lessons learned and best practices.

Some of these topics already fall under CBM Form E, which allows states to report if they have implemented domestic legislation criminalizing violations of the BWC and promulgated laws on the import and export of dangerous pathogens and toxins to fulfill their obligations not to assist other states in developing biological weapons. CBM Form E has 2 major weaknesses. First, it does not encompass dual-use research or biodefense program oversight, disease surveillance, or public health emergency preparedness activities. Second, the declarations submitted under CBM Form E provide only cursory information on relevant laws and regulations, with little or no information regarding implementation or the administrative capacity of the responsible agency or agencies. The revisions described above for CBM A Part 1 and CBM C would provide clearer guidance to states about the types of activities and implementation measures that are viewed as relevant to the treaty.

Implementation

Beyond the trust-building value of CBMs, deepening the reporting requirements to include information on how states are implementing their international commitments is a key step for devising strategies and policies to improve such implementation. The importance of having robust administrative capacity at the national level to follow through on commitments made at the international level has long been recognized.²² For “managerial” regimes that lack enforcement capabilities (as does the BWC), scholars studying international environmental treaties have found that treaties with a system for implementation review can improve implementation. A system for implementation review is an “institution through which the parties share information, compare activities, review performance, handle noncompliance, and adjust commitments.”²³^(p3) This type of system is similar to the accountability framework proposed by Canada that would provide a mechanism for state parties to review each other's activities to implement the provisions of the BWC.^24,25 The objective of this type of arrangement is not solely to point out gaps and shortcomings, but to highlight areas that need improvement and provide guidance or resources to improve implementation.

Establishing an effective accountability framework or system for implementation review for the BWC will require a strengthened Implementation Support Unit with the capacity and authority to take a more active role in the CBM process. Although the ISU has already made valuable contributions to the implementation of the treaty, the unit has a limited mandate, a primarily administrative role, and only a 3-person staff. Introducing new reporting requirements will create a greater demand from state parties for substantive support in preparing their declarations. While individual countries and regional organizations can play a role in providing such support, the ISU is the logical candidate to shoulder more of that burden. The ISU can also assist state parties with transforming the data in these revised declarations into useful information. For example, the ISU could host workshops where states compare their declarations for specific CBMs to exchange best practices on laboratory biosecurity or dual-use research oversight or identify areas of potential collaboration. Finally, the ISU will need the resources to take advantage of new opportunities to improve global biosecurity by coordinating technical and expert assistance to states that desire to improve their administrative and regulatory capacity for governing life sciences, biotechnology, and biodefense activities. The International Atomic Energy Agency organizes teams of nuclear experts to assess Nuclear Non-Proliferation Treaty member states' national regulatory infrastructure for nuclear safety and security and provide suggestions for enhancing its effectiveness.²⁶ The ISU could play a similar role in the context of building capacity to implement the CBMs or related international commitments such as UNSCR 1540. At present there is no international organization designated by the 1540 Committee to provide assistance to states in implementing the biological weapon-related provisions of UNSCR 1540.²⁷

The ISU would not be empowered to verify compliance with the CBMs; instead, it would be responsible for assisting states in developing their capability to comply. The ISU would play the role of a “collaborative capacity builder” to ensure the sharing and synthesis of knowledge and best practices among state parties.²⁸

Conclusion

The 2011 Review Conference offers a golden opportunity to update the BWC regime to take into account global developments in security, science, and public health. States, academics, and nongovernmental organizations are developing proposals to update the treaty's CBMs.²⁹ Simply making the existing CBMs more “user-friendly” will not be sufficient to boost participation in the CBM process or contribute to the universalization of the treaty. Instead, revising the CBMs to address the current concerns and priorities of state parties will strengthen the treaty and enhance international cooperation against all biological risks.

This proposal to modernize the CBMs and strengthen the ISU would address 3 of the 4 potential reasons why states don't participate in the current CBM process. Revising the CBMs to address issues of immediate concern to state parties, such as disease surveillance and laboratory biosafety and biosecurity, should elevate the priority that states accord to the CBMs. Empowering the ISU to provide substantive assistance to states in complying with the CBMs would reduce the costs of doing so and enable states to gain a clearer picture of what is expected of them. Modernizing the CBMs is essential to changing the calculations of states regarding the costs and benefits of contributing to the information exchanges at the heart of the CBM process.

The CBMs are a politically binding obligation of state parties. Nevertheless, unless they become more relevant to the political, scientific, and security changes that have occurred since their inception, they risk becoming a relic of the Cold War. The state parties to the BWC have the responsibility to ensure that the CBMs once again become meaningful and live up to their billing as measures that build confidence in states' compliance with the prohibitions contained in the treaty.

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One of the authors, Marie I. Chevrier, participated in meetings organized by the Geneva Forum and the Foreign Ministry of Germany to examine and make recommendations on CBMs. Their report is not yet final, but a number of their recommendations are likely to overlap with those in this article.