Law, College of
Date of this Version
2007
Citation
THE AMERICAN JOURNAL OF INTERNATIONAL LAW 101:271 (2007) pp. 271- 321
Abstract
I. BIOLOGICAL WEAPONS, INDETERMINACY, AND DESIGN ELEMENTS FOR ARMS CONTROL REGIMES
In 1972 a historic attempt to create the world's first international legal regime banning the development and possession of an entire class of weapons of mass destruction (WMDs) culminated in the conclusion of the Biological Weapons Convention (BWC).1 Crippled by key compromises made by the great powers in pursuit of various self-interested security objectives in the context of the Cold War, the Convention is fundamentally flawed. Although the BWC purports to outlaw the development and possession of all biological weapons, deadlier and more sophisticated biological weapons than were imaginable in 1972 can now be and have been produced, as evidenced in October 2001 by two letters sent to the Capitol Hill offices of Senators Tom Daschle and Patrick Leahy.2 These letters reportedly contained threatening notes and a dangerous and sophisticated form of "weapons-grade" anthrax spores.3 Even though both the sender of these letters and the source of the anthrax remain unknown, the technical sophistication of the spores led some experts to suggest that the attacker was supported by a U.S. "biodefense" laboratory or an advanced foreign-state-run biological weapons (BW) facility because the spores could not have been produced by an amateur working in his basement.4
In addition to the empirical evidence of new "super" biological weapons, the failings of the BWC are further manifested by the growing significance that countries like the United States attach to the BW threat,5 allegations by senior U.S. government officials that terrorists and rogue states possess biological weapons,6 and contentious review conferences of BWC states parties that have been unable to resolve cheating and compliance concerns. Furthermore, a significant number of states have not yet joined the BWC and few have joined in recent years, prompting statements of concern about its lack of universality.7