Returning to the recipe for avian superflu

Mar 24 2012
VERTIC Blog >> National Implementation Measures

Yasemin Balci, London

The debate continues on whether to publish scientific research that details how avian flu, a highly deadly virus for both birds and humans, can be made transmissible between mammals. In a previous post, it was mentioned that publishing this research in a redacted fashion and sharing it with a select group of researchers can be supported under the Biological and Toxin Weapons Convention (BWC). While a World Health Organization meeting in February called for full publication of the study, the Dutch Minister for Foreign Trade has now pointed out that the researchers, who are based in the Netherlands, have to request an export permit. How is export control law related to the publication of this research?

At the international level
The adoption of export control laws is one of the obligations arising out of the BWC and UN Security Council Resolution 1540. Article III of the BWC requires each state party not to transfer, either directly or indirectly, biological weapons to ‘any recipient whatsoever’. During Review Conferences, states parties agreed that this referred to national export control and that ‘any recipient whatsoever’ included those at the ‘international, national and sub-national’ level. Similarly, UN Security Council Resolution 1540 requires states to establish, develop, review and maintain appropriate effective national export control laws over materials related to biological weapons (operative paragraph 3 (d)).

The Australia Group export control system was established in response to biological and chemical weapons proliferation to Iraq during the 1980s. The participating States agree control lists and procedures to help them fulfill their export control and transshipment obligations under the BWC and the Chemical Weapons Convention. To this end, they have set up common export control lists of biological agents and related equipment. Avian influenza is mentioned on this list. The European Union (EU) has incorporated this list in Annex I of EU Regulation 428/2009 on ‘setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items and technology.’ Based on this EU Regulation, an authorization of an EU member state is required for exports outside of the EU of dual-use items. This also includes the export of technology that can be used for both civil and military purposes (Article 2 (1), Article 3 and 1E001 in Annex I of the EU Regulation).

At the national level
Dutch law further implements this EU Regulation at the national level. The Decree on Strategic Goods prohibits the export without an authorization of dual-use items mentioned in Annex I of the EU Regulation. This includes the avian flu virus itself and related technology, which means specific information necessary for the development, production or use of the virus. The Decree applies if the item is a tangible good, for example, if the researchers printed their article on paper and wanted to send it via post to the publishers in the United States. In addition, the Law on Strategic Services prohibits the intangible transfer of technology without an authorization, such as transmitting technology by electronic media. This law applies to the researchers if they wanted to e-mail their article to the publishers in the United States.

According to the EU Regulation, an authorization for both tangible and intangible export of technology is not required if the information in question is ‘basic scientific research’, which is defined as ‘experimental or theoretical work undertaken principally to acquire new knowledge of the fundamental principles of phenomena or observable facts, not primarily directed towards a specific practical aim or objective.’ This research did not qualify as such and was therefore not exempted from requiring an authorization, although the exact reason is unclear. Before attending the World Health Organization meeting in Geneva this February to discuss the implications of their study, the researchers received an authorization from the Dutch Minister for Foreign Trade. According to a letter from the government to parliament on 7 March, the authorization was given because the meeting consisted of a small group of public health experts and issued “under strict conditions” that were further left unspecified.

The president of the Royal Dutch Academy of Sciences called the need for an export authorization ‘unheard of’, ‘impractical’ and ‘fundamentally incorrect’, but the researchers are also expected to apply for an authorization to publish. The aforementioned letter states that “when an authorization for publication of (parts of) the research will be requested, the Dutch Minister for Foreign Trade will weigh the interests of health and science with the risks to security.”

Last changed: Apr 02 2012 at 11:54 AM




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