Introduction
There are three types of weapons of mass destruction (WMDs)—nuclear, chemical, and biological. Of the three WMDs, biological weapons are the most dangerous, as they are the most indiscriminate, the least controllable, and the least expensive to create.Footnote 6 The 2019 coronavirus (SARS-CoV-2, also known as COVID-19)Footnote 7 has brought the risk of a pandemic resulting from deadly disease research—whether by accident or intentional release—to the forefront of the international community's attention.Footnote 8
This risk of dangerous research is even more acute due to the recent developments in science, which make research into deadly diseases easier.Footnote 9 The discovery of a new, highly effective and accurate genome editing tool—CRISPR-cas9—has resulted in a genomics revolution, and has significantly decreased the time and resources necessary to engineer an extremely dangerous and deadly disease.Footnote 10 For example, in 2016, a scientific paper drew attention to the risk of dangerous research by noting how the innocent testing of the 1918 Spanish flu virus, with the aim of bolstering disease surveillance, could actually be used to resurrect and disseminate the virus that killed an estimated fifty million people worldwide.Footnote 11
The seminal treaty for establishing legal constraints on this vital issue is the 1972 Biological Weapons Convention (BWC). The BWC is a legally binding treaty that outlaws the development, stockpiling, acquisition, retention, or production of biological agents and toxins; weapons equipment, and delivery vehicles for such agents and toxins; and the transfer of any of the above.Footnote 12 However, the BWC does not ban the use of biological agents and toxins, nor does it ban biodefense programs.Footnote 13 Under Article I of the BWC, States are only prohibited from acquiring, developing, retaining, stockpiling, or producing “microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes . . .”Footnote 14
The Vienna Convention on the Law of Treaties (VCLT) governs how international law interprets treaty language, such as that found in the BWC.Footnote 15 Specifically, the VCLT requires that a treaty is interpreted first based on the ordinary meaning of the treaty language, in light of the treaty's object and purpose.Footnote 16 The interpreter must then take into account the subsequent rules of treaty interpretation, specifically the treaty's context, per Article 31(2) of the VCLT—meaning the treaty's preamble, other clauses, annexes, and any relevant agreements or instruments existing at the time of the treaty's creation; and the subsequent context, per Article 31(3) and 31(4) of the VCLT—meaning subsequent agreements, State practice, and relevant rules of international law.Footnote 17 However, if interpretation using Article 31 creates an ambiguity or absurd result in the meaning of the treaty, the interpreter may reference Article 32 of the VCLT—which provides the supplemental means of interpretation.Footnote 18
Alternatively, in order to properly interpret a treaty, it is sometimes necessary to consider developments that occurred after the conclusion of the treaty—also known as “evolutive interpretation.”Footnote 19 Under this approach, a treaty is reinterpreted based on subsequent State practice, irrespective of the original interpretation.Footnote 20
By only prohibiting acquisitions that have “no justification for prophylactic, protection or other peaceful purposes,” the ordinary meaning of Article I of the BWC text creates a loophole allowing States to argue that acquisition of a potentially prohibited biological material has some justification, however minor, and therefore is not prohibited by the treaty. The result of this interpretation is a minimalist approach which allows for ready exploitation by States looking to acquire biological agents or toxins.
However, subsequent to the adoption of the BWC, and in consideration of scientific advancements since the 1970s, many States have implemented regulatory regimes which require extra laboratory safety measures based on the danger of the substance being tested.Footnote 21 Under this system, there is a four-tiered “safety scale”: biosafety level 1 (BSL-1) is the least restrictive tier, requiring very few safety measures, whereas biosafety level 4 (BSL-4) is the most restrictive, requiring extensive safety measures.Footnote 22 As a result of implementing such systems, States are now weighing the benefits of the research against the potential costs of accident or misuse and applying extra regulatory measures accordingly.
This Comment argues that the object and purpose of the BWC is to severely limit a State's ability to create or obtain biological weapons; further, the context of the treaty indicates that the drafters were conscious of the need to divert biological weapons to peaceful purposes and to implement “necessary safety precautions.”Footnote 23 Consequently, in light of the object and purpose and the context of the BWC, the minimalist interpretation of the BWC is not justified. Additionally, in accordance with both Article 31(3) of the VCLT and the “evolutive interpretation” approach, subsequent State practice has caused an evolution in the law, requiring States to implement more stringent regulatory measures based on the risks posed by the pathogen being tested. As a result, the minimalist interpretation of Article I of the BWC is removed, and States are now required to implement safety measures based on the risk posed by the pathogen being acquired, developed, produced, stockpiled, or retained—which can be classified as “Dual Use Research of Concern” (DURC)—to prove that the purpose of their use is in line with the allowances of the treaty.
The Comment will first review the background of biological weapons and regulation of their use. This section will also describe the VCLT requirements for treaty interpretation and the evolutive approach to interpretation. Next, the Comment will conduct a global analysis of State practice in regards to biosafety and biosecurity regulatory measures. It will then analyze the BWC using the various treaty interpretation methods—including addressing how subsequent state practice has affected this interpretation, and how an evolutive approach to interpretation changes the meaning of Article I of the BWC. Lastly, in recognition of this evolution in the law, this Comment will recommend how to update enforcement mechanisms to accurately reflect the new state of the law.
I. Background
The spread of disease knows no borders. As demonstrated in the COVID-19 pandemic, the increase in globalization means disease outbreaks can spread rapidly throughout the global via our international transport networks.Footnote 24 Further, no State, no matter how resourceful, can protect itself from the effects of a global pandemic. This section will first explain the history of disease. Second, it will address the history of biological weapons use. Third, it will introduce the regulatory measures that have been adopted to control biological agents. Lastly, it will address treaty interpretation by explaining the rules of treaty interpretation outlined in the VCLT and the “evolutive interpretation” approach.
A. History of biological weapons use
Since the beginning of time, pathogens—an organism that can cause disease, including bacteriaFootnote 25 and virusesFootnote 26—have made both human and animals sick, sometimes resulting in the death of those infected. As early as 600 B.C.E., humanity has recognized infectious pathogens for their devastating impact on humankind.Footnote 27 The pathogenic bacteria yersinia pestis caused the Black Death, also known as the bubonic plague, which is the deadliest pandemic in the history of the world, killing an estimated third of the world population in the fourteenth century.Footnote 28 Because of the deadly cost of pathogens, countless individuals throughout history have sought to discover the cause of, eradicate, or—in some cases—weaponize pathogens.Footnote 29
Biological weapons are disease-causing pathogens,Footnote 30 bioregulators,Footnote 31 or biotoxinsFootnote 32 that are produced and deliberately released to cause diseases in humans, animals, or plants.Footnote 33 Collectively referred to as “biological agents,” they are typically divided into four subcategories: bacteria, viruses, rickettsia, and fungi.Footnote 34 Similar to chemical weapons, the value of biological weapons “lies in their ability to cause mass death without destroying infrastructure.”Footnote 35 However, unlike chemical weapons, biological agents are capable of reproducing on their own and therefore can infect vast populations without requiring large amounts of the agent.Footnote 36
The earliest recorded use of pathogens for biological warfare was in 1346 when the Mongols catapulted the bodies of plague victims over the city walls of Caffa, in the Crimean Peninsula.Footnote 37 While biological weapons have never been used in traditional interstate warfare, in World War I, both sides of the conflict conducted biological weapons sabotage campaigns.Footnote 38 Further, in World War II the Japanese used the plague, anthrax, and other deadly diseases against prisoners of war.Footnote 39 Even during the inter-war period in the 1920s, a number of countries started biological weapons research and production programs, including Germany, France, Canada, the United Kingdom (UK), the United States (US), and the Union of Soviet Socialist Republics (USSR).Footnote 40 While some of these countries discontinued their biological weapons programs during the Cold War,Footnote 41 others restarted their pre-World War II programFootnote 42 or started a completely new program.Footnote 43
The twenty-first century has also seen the rise of bioterrorism, which is the deliberate release of a biological agent.Footnote 44 One such example of an attack is the 2001 anthrax attacks in the US, wherein five people died after receiving anthrax-laced letters.Footnote 45 Moreover, the Bush administration justified military action against Iraq based on evidence suggesting Iraq had the capability to produce WMDs—including biological weapons.Footnote 46
B. Regulatory Measures, and the Non-proliferation Movement
Because of the danger biological weapons pose, the international community has long sought to regulate biological weapons.Footnote 47 The first effort to ban biological weapons was the 1925 Geneva “Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare,” which prohibits the use of chemical and biological agents during war.Footnote 48 However, due to the large number of States submitting reservations to the treaty—which, under international law, limits a State's responsibility for properly complying with the treaty—the Protocol is considered a non-first-use agreement for the States Parties to the agreement.Footnote 49 The next major effort to address biological weapons happened in 1972 with the creation of the BWC, which opened for signature in 1972 and entered into force in 1975.
1. Biological Weapons Convention
The BWC was the first multilateral disarmament treaty to ban an entire category of weapons and has since become the foundational treaty for the regulation of biological and toxin agents.Footnote 50 Through the BWC, States Parties are prohibited from developing, stockpiling, producing, or transferring biological agents and toxins unless there is a justification for protective, prophylactic, or peaceful use.Footnote 51 Further, States cannot develop weapons, equipment, or delivery systems to distribute these agents or toxins.Footnote 52 As of 2020, the treaty has 182 States Parties, including Palestine, and five signatory States.Footnote 53 Only ten States have neither signed nor ratified the treaty.Footnote 54
Article I provides the rights and obligations for States under the BWC, and the following twenty-four articles provide support for the rights and obligations in Article I.Footnote 55 While the BWC does not explicitly ban the use of biological or toxin weapons, use is considered a violation of the treaty.Footnote 56 Moreover, unlike the Nuclear Non-Proliferation Treaty (NPT)—which divides States into two categories based on possession of nuclear weapons—all the States Parties to the BWC have the same rights and obligations, whether or not they have biological or toxin agents.Footnote 57 The BWC does not prohibit research into biological warfare agents.Footnote 58 For example, there was no violation of the BWC when, during the Cold War, the U.S. defense establishment implemented a policy to test not only those biological and toxin agents known to exist in the USSR stockpile, but also those “which might be produced in the future.”Footnote 59
In order to evaluate the implementation of the BWC, States Parties agreed to hold review meetings every five years, starting when the treaty entered force.Footnote 60 Since then, eight review conferences have occurred, resulting in many important updates to the BWC.Footnote 61 For example, during the Sixth Review Conference for the BWC, the States Parties decided to establish the Implementation Support Unit (ISU).Footnote 62 The ISU provides administrative support, assists with national implementation, supports and assists with confidence building measures, assists in obtaining a globalized biological weapons ban, and assists in increasing participation of developing States Parties’ in the annual meetings.Footnote 63 The ISU also submits annual reports on its work to the BWC's Meeting of States Parties.Footnote 64 Though significantly smaller than its counterpart for the Chemical Weapons Convention—i.e., the Organization for the Prohibition of Chemical Weapons—the ISU plays an imperative role in monitoring compliance with the BWC.Footnote 65
2. Dual-Use Research of Concern
During the Review Conferences of the BWC in the first half of the 2010s, the US lobbied for inclusion of Dual-Use Research of Concern (DURC) in the discussions of the BWC.Footnote 66 DURC means research into certain high-consequence pathogens and toxins which could potentially be used as deadly weapons, meaning the possession of the agent is the possession of a potential biological weapon.Footnote 67 DURC is often conducted for peaceful or prophylactic purposes and involves “gain of function” experiments, which are genetic experiments that add a new function to a tested virus, bacteria, or animal.Footnote 68 A classic conceptual example of a “gain of function” experiment is genetic experimentation that uses a viral vector to add the ability to glow in the dark to an animal, such as a mouse or a goldfish.Footnote 69 While many States were supportive of this inclusion, international discussion regarding this category of research dissipated in the second half of the 2010s, and is no longer a part of international discussion on the BWC.Footnote 70
3. Regulation of Biological Research
In situations where scientists conduct extremely dangerous research, some States implemented regulations that provide for specific biosecurity measures, the strictness of which depends on how dangerous the research could be if an accident or misuse occurred.Footnote 71 However, governments and international organizations are not the sole bodies through which regulation may occur for DURC.Footnote 72 Because of the significant ethical dilemmas regarding what should be allowed in “gain of function” experiments,Footnote 73 the scientific community itself has imposed self-regulatory measures to ensure research is done in a safe and ethical manner.Footnote 74 Nevertheless, there is significant debate as to whether this regulation is sufficient.Footnote 75
A key distinction should be made here: there is a difference between biosafety and biosecurity. Biosafety is “the containment principles, technologies and practices that are implemented to prevent unintentional exposure to pathogens and toxins, or their accidental release,” whereas biosecurity is the “institutional and personal security measures designed to prevent the loss, theft, misuse, diversion or intentional release of pathogens and toxins.”Footnote 76 As a result of this distinction, regulations address both the biosafety for scientists who conduct experiments, as well as biosecurity for the general community around the laboratory in which the experiments take place.Footnote 77 Both types of regulation are relevant to the BWC as they each ensure the safe handling and research of dangerous pathogens.
C. The Rules for Treaty Interpretation
Treaties are legally binding texts created through both a legal and political process.Footnote 78 The Vienna Convention on the Law of Treaties (VCLT) provides the explicit rules for treaty creation and interpretation.Footnote 79 States, international organizations, and individuals tasked with deciding how to apply a treaty face a specific legal dilemma: they must apply the treaty as correctly as possible, in a manner as uniform as possible.Footnote 80 Further, the application of the provisions of a treaty inherently require States and other international institutions to interpret the treaty, regardless of whether or not the treaty terms are clear.Footnote 81
Interpretation is the process of clarifying the rules created by a treaty.Footnote 82 Consequently, treaty interpretation is a legal technique that requires creating legal reasoning for why a treaty demands a certain action or omission.Footnote 83 In accordance with the rules set out in Article 31 of the VCLT, a treaty is interpreted using its terms, context, and object and purpose.Footnote 84 Consequently, treaty interpreters are faced with the difficult tasks of not only defining the ordinary meaning of a term within a treaty, and the term's context in light of the treaty's object and purpose, but also the way in which the treaty has been applied after its conclusion.Footnote 85 Additionally, if the rules set out in VCLT Article 31 are insufficient to clarify an ambiguity, or interpretation creates an absurd result, the treaty interpretation may be clarified using the methods provided in Article 32 of the VCLT.Footnote 86 The International Court of Justice (ICJ), the European Court of Justice, and multiple other international tribunals have repeatedly affirmed this process.Footnote 87 Further, although the US is not a State Party to the VCLT, the State Department and domestic courts recognize the VCLT as “a guide to international law and practice.”Footnote 88
In sum, international law requires that a treaty be interpreted first by referencing Article 31(1)—which provides the general rule for interpretation of treaties—then Articles 31(2), 31(3), and 31(4)—which provide the subsequent rules of interpretation.Footnote 89 If these are insufficient to clarify an ambiguity or absurd result, a treaty interpreter must then reference Article 32 of the VCLT—which provides the supplemental means of interpretation.Footnote 90 Lastly, in special circumstances, a term included within a treaty may be interpreted using an evolutive approach—meaning the term is interpreted in light of its changing connotation.Footnote 91
1. Article 31 of the VCLT: the General rule of interpretation
Article 31(1) provides the general rule for interpretation of treaties: “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”Footnote 92 Consequently, there are three elements to consider: the text of the treaty, its context, and its object and purpose.Footnote 93 In accordance with Article 31(2), the context of a treaty means the text, preamble, and annexes of the treaty, as well as any relevant agreements or instruments existing at the time the treaty was created.Footnote 94
Contrary to widespread assumptions, there is no primacy given to any particular means of interpretation.Footnote 95 Therefore, the text of the treaty—i.e., any ordinary or special meaning given to a term in the treaty—is not more important than the context, in light of the object and purpose of the treaty—i.e., subsequent practice or agreements.Footnote 96 In practice, the ICJ will first examine the ordinary meaning of the terms of the treaty, and then examine the subsequent practice and agreements.Footnote 97
2. Article 31 of the VCLT: Subsequent rules of interpretation
Article 31(2) of the VCLT addresses the context element of treaty interpretation: a treaty must be interpreted in compliance with any agreements related to the treat at the time it was adopted, or any instruments made in connection with the treaty, provided that these instruments are “accepted by the other parties as an instrument related to the treaty.”Footnote 98 Further, Article 31(4) addresses the object and purpose requirement: a treaty must be interpreted using any special meaning intentionally given to a term within the treaty.Footnote 99 In the context of the BWC, there are no such agreements which address the loophole within the minimalist interpretation of Article I, nor is there a special meaning intentionally given to the phrase “no justification.”Footnote 100 Consequently, these rules of interpretation are not at issue in this Comment.
Article 31(3) of the VCLT provides that, in addition to considering the context, the interpretation and application of the treaty may be based on (a) any subsequent agreements between the parties or (b) any subsequent practice in the application of the treaty.Footnote 101 A subsequent agreement is “an agreement between the parties, reached after the conclusion of a treaty, regarding the interpretation of the treaty or the application of its provisions.”Footnote 102 Subsequent practice, on the other hand, is more amorphous.
The International Law Commission defines subsequent practice as the “conduct in the application of a treaty, after its conclusion, which establishes the agreement of the parties regarding the interpretation of the treaty.”Footnote 103 Subsequent practice also refers to any practice in relation to the treaty.Footnote 104 Such practice can include the non-application of treaty provisions, or silence regarding another State's application of the treaty provisions.Footnote 105 Further, subsequent practice “may consist of any conduct of a party in the application of a treaty whether in the exercise of its executive, legislative, judicial or other functions.”Footnote 106 Ultimately, subsequent practice “depends upon inferring subsequent agreement based on the conduct of parties in applying a treaty.”Footnote 107
Subsequent practice may help clarify the “ordinary meaning” of a term by “reinforcing one among several possible interpretations,” meaning the interpreter will decide from one of several meanings for a term based on an analysis of subsequent State practice.Footnote 108 For example, in Inter-Governmental Maritime Consultative Organization, the ICJ used subsequent practice of parties to clarify that the phrase “eight . . . largest ship-owning nations” meant nations with the largest registered tonnage, not nations with the largest property of nationals.Footnote 109 Moreover, subsequent practice may support an interpretation in contradiction of the plain meaning of the text—or even the object and purpose—provided such practice is sufficiently compelling.Footnote 110 Subsequent practice and agreements may also help clarify the object and purpose of a treaty.Footnote 111
Ultimately, subsequent practice is the most important element in interpreting a treaty since it is “objective evidence of the understanding of the parties as to the meaning of the treaty.”Footnote 112 This is because State application of the treaty is the best indicator for what obligations the parties intended the treaty to require.Footnote 113 No matter how precise the language of a treaty may be, the way States actually apply the treaty is a vital indication of what States believe the treaty to mean—provided the State practice is commonly accepted, either expressly or implicitly, by all States Parties.Footnote 114 As such, subsequent practice is only applicable where “there is a certain kind and degree of practice on the part of the parties evidencing their subsequent intention to interpret the treaty in a certain way.”Footnote 115
It is not necessary, however, that all States participate in the practice; it is only necessary that States explicitly or implicitly assent to the practice.Footnote 116 For example, in Loizidou v. Turkey,Footnote 117 the European Court of Human Rights confirmed the validity of interpretation based on “subsequent practice of the Contracting Parties” as “evidence of a practice denoting practically universal agreement amongst Contracting Parties.”Footnote 118 The International Covenant on Civil and Political Rights also allows arguments based on the participation of fewer than all States in the practice,Footnote 119 as does the International Tribunal on the Law of the Sea.Footnote 120 For example, in M/V “SAIGA” (No. 2),Footnote 121 the Tribunal relied on the “normal practice used to stop a ship” in accordance with the UN Convention on the Law of the Sea, therefore assuming a general State practice rather than specifically identifying State practice.Footnote 122
Lastly, subsequent practice is helpful when a treaty regime lacks an enforcement mechanism.Footnote 123 Treaties are similar to contracts under domestic law; however, unlike contract law, when a treaty lacks an enforcement mechanism, the continuing viability of a treaty depends on the parties’ continued interpretation and implementation of the treaty.Footnote 124 Consequently, the existence of the treaty depends on the continued commitment of the parties, and the meaning of the treaty provisions can change accordingly.Footnote 125
3. Article 32 of the VCLT: Supplemental means of interpretation
In some instances, interpretation using Article 31 of the VCLT creates an ambiguity or absurd result in treaty application.Footnote 126 In such a case, Article 32 of the VCLT provides that treaty interpretation may be based on “supplementary means of interpretation, including the preparatory work (travaux preparatoires, travaux for short) of the treaty and the circumstances of its conclusion.”Footnote 127 Despite what the ordinary meaning of a text may be, if the travaux suggests that this was not the intended meaning, the treaty should be interpreted using the intended meaning.Footnote 128 However, the travaux must always be used with care; treaty interpretation using the travaux can be time consuming, while the material included can be misleading.Footnote 129 Consequently, the usefulness of the travaux is often marginal and rarely decisive.Footnote 130
For the BWC, because interpretation using the context and object and purpose of the treaty, as well as subsequent State practice, addresses the loophole within the minimalist interpretation of Article I, it is not necessary to use the traveaux to provide an unambiguous interpretation of the BWC. Consequently, this rule of interpretation is not at issue in this Comment.
4. Evolutive Interpretation
Sometimes, in order to properly interpret a treaty, an interpreter must consider developments that occurred after the conclusion of the treaty—also known as “evolutive interpretation.”Footnote 131 In such a situation, the treaty is reinterpreted, irrespective of the original interpretation.Footnote 132 However, the evolutive approach is only appropriate “where there are signs, in the text or elsewhere, that the parties intended the treaty to have an evolutive character linked to subsequent developments in law or facts.”Footnote 133 Further, such an approach must result from the ordinary process of treaty interpretation.Footnote 134
To determine the new meaning of a term, courts depend on the “international law applicable to the parties at the time of the application of the treaty,” or “as enshrined in international law.”Footnote 135 Further, the term should be given an evolutive meaning if such meaning is required by the object and purpose of the treaty.Footnote 136 A treaty term should only be considered evolutive where:
(a) The concept is one which implied taking into account subsequent technical, economic or legal development; (b) the concept sets up an obligation for further progressive development for the parties; or (c) the concept has a very general nature or is expressed in such general terms that it must take into account changing circumstances.Footnote 137
In accordance with the above category (a), an evolutive character applies to treaty terms that are technical or highly general in nature.Footnote 138
The evolutive approach has been accepted in the jurisprudence of multiple international courts and tribunals.Footnote 139 For example, in the Namibia advisory opinion,Footnote 140 the ICJ found that the term “self-determination” had evolved between the adoption of the UN Charter in 1945 and the case in 1971; consequently, it held that the treaty must be interpreted using the modern understanding, despite the fact that the new meaning was at odds with the original meaning.Footnote 141 In re-interpreting the term “self-determination,” the ICJ invoked practice “in relation to the treaty” as a means of interpreting the treaty.Footnote 142 More generally, the ECHR has held “the Convention is a living instrument which must be interpreted in the light of present-day conditions.”Footnote 143 The evolutive approach was also followed in the Iron Rhine case, wherein the Permanent Court of Arbitration addressed Belgium's right of transit under a 1839 Treaty, in light of subsequent practice, and accepted that technical rules may need to be given an evolutive interpretation.Footnote 144
Courts and tribunals have frequently interpreted the VCLT as implicitly endorsing the evolutive approach to interpretation.Footnote 145 Further, the SASP draft conclusion 8—“[i]nterpretation of treaty terms as capable of evolving over time”—formalized this approach.Footnote 146 However, it also cautions that interpretation should not only be based on general developments related to the treaty, but also on the more immediate practice “in the application of the treaty.”Footnote 147 Such caution is necessary because of potential conflict between the new meaning of the terms of the treaty and the parties’ original understanding of the treaty terms.Footnote 148
D. Amendment or Modification of a Treaty
States Parties to a treaty may amend or modify the treaty via subsequent agreement, provided that such amendment does not violate preemptory norms of international law or the rights of third parties.Footnote 149 However, the drafters of the VCLT rejected a proposed draft version of Article 38,Footnote 150 which would have allowed subsequent practice to modify the provisions of a treaty.Footnote 151
Nevertheless, in Temple of Preah Vihear,Footnote 152 the ICJ found that Thailand's failure to object to French control of Thai territory constituted a subsequent practice that modified the meaning of the border treaty between Thailand and Cambodia (wherein France was the colonizing power of Cambodia at the time the border treaty was concluded).Footnote 153 Further, in Dispute regarding Navigational and Related Rights,Footnote 154 the ICJ held that “subsequent practice of the parties, within the meaning of Article 31(3)(b) of the Vienna Convention, can result in a departure from the original intent on the basis of tacit agreement.”Footnote 155 Most prominently, in both the Namibia advisory opinionFootnote 156 and the Wall advisory opinion,Footnote 157 the ICJ modified the ordinary meaning of the UN Charter based on subsequent practice of States.Footnote 158 Consequently, the decisions of the ICJ can be understood as explicitly or implicitly permitting amendment or modification of treaties.Footnote 159
Other tribunals have also adopted this approach,Footnote 160 leading one legal scholar to conclude that “the proliferation of cases on the basis of subsequent practice since the Vienna Convention dropped [Draft Articles on the Law of Treaties, Article] 38” has resulted in a reinterpretation of the VCLT “on the basis of subsequent practice in its application,” meaning that Article 31(3)(b) now allows “modification by subsequent practice.”Footnote 161
II. Global Survey of State Practice
Under international law, in order to establish State practice, an interpreter must conduct an survey of global State practice—including both the actions taken by States involved in the practice, and failure of States not involved in the practice to object to such actions.Footnote 162 For the BWC specifically, global State practice demonstrates the extensive application of extra safety measures for experimentation that could potentially be used as deadly weapons and therefore qualifies as DURC.Footnote 163 For instance, the World Health Organization (WHO) established non-binding guidelines that provide recommendations for how to regulate DURC.Footnote 164
In analyzing global State practice, this comment will address States by regions. It will first demonstrate whether the States are relevant to the global analysis by indicating how many BSL-3 or BSL-4 laboratories exist in the country or region. It will then provide a short overview of the regulatory regimes within the State, as a means of indicating whether the countries in the region are involved in the State practice. The analysis will also include relevant additional information that is helpful analyzing the global State practice.
A. North America
For the purposes of this Comment, this region includes the US and Canada.Footnote 165 As of 2008, the US has at least fifteen BSL-4 facilities and 1,643 BSL-3 facilities,Footnote 166 and maintains an extensive biosafety regime which heavily regulates DURC.Footnote 167 The key regulatory agency for this regime is the government-controlled and operated Center for Disease Control (CDC).Footnote 168 Moreover, the practice of the US is arguably the catalyst for other State's subsequent change in practice.Footnote 169
Similarly, Canada maintains an equally extensive biosafety regime that is enforced by the government.Footnote 170 However, Canada has a much less extensive network of laboratories, with only one BSL-4 facility and at least three BSL-3 facilities.Footnote 171 The Human Pathogens and Toxins Act (HPTA) of 2009, which is legally binding, governs these facilities.Footnote 172 The HPTA strengthens controls regarding access to human pathogens and toxins by facility licensing measures, security clearances for high-risk agents, and inspections.Footnote 173
B. Latin America and the Caribbean
For the purposes of this Comment, this region includes Central America, the Caribbean, Mexico, and South America. Central America has no BSL-4 laboratories and only two BSL-3 laboratories; consequently, because the region has very few facilities in which the State practice would occur, the region is of limited relevance for the global survey of State practice.Footnote 174 Similarly, while the Caribbean—excluding Cuba—maintains no BSL-4 laboratories and only one known BSL-3 laboratory,Footnote 175 CARICOM—the regional group in the Caribbean—has implemented regulatory measures based on WHO recommendations.Footnote 176 However, it is relevant to note that neither region objects to the regulatory regimes existing in States with BSL-3 and BSL-4 laboratories.Footnote 177
Two countries of note are Mexico and Cuba. Mexico maintains eighteen BSL-3 laboratories,Footnote 178 which are regulated by a biological risk management system for public health laboratories that is promoted and evaluated by both a public initiative—InDREFootnote 179—and private initiative—AMEXBIOFootnote 180.Footnote 181 Cuba, on the other hand, has at least one BSL-4 laboratory and at least five BSL-3 laboratories.Footnote 182 Cuba maintains a National Center for Biological Safety of the Ministry of Science, Technology, and Environment.Footnote 183 Moreover, in 2016, at the Eight Review Conference of the Biological Weapons Convention, Cuba offered to send technical experts to interested States in an effort to teach other States about “biosafety and biosecurity for biological agent controls.”Footnote 184
South America maintains three BSL-4 laboratories and approximately thirty-four BSL-3 laboratories, the majority of which are in Brazil and Argentina.Footnote 185 In Brazil, the Ministry of Health is responsible for all of the public health laboratories, which include twelve BSL-3 laboratories, whereas the Ministry of Agriculture is responsible for all agricultural laboratories, which include eight BSL-3 laboratories.Footnote 186 Each ministry has different protocols for biosafety; however, Brazil has only recently begun to address the issue of biosecurity.Footnote 187 Brazil began its first biosecurity course in 2007, with the support of the US Biosecurity Engagement Program.Footnote 188 Similarly, in 2001, with the assistance of the CDC, the Argentinian government created a biosafety course for laboratory workers, which provided advanced training in good laboratory practices.Footnote 189 Biosafety manuals were subsequently provided to every province; further, in 2004, government officials investigated biosafety in all public laboratories and provided any equipment necessary to modernize the tools and equipment to make them compliant with biosafety requirements.Footnote 190 The Ministry of Health and Environment also contributes greatly to the implementation of education and immunization programs in order to prevent laboratory accidents, and any outbreaks that could result from such accidents.Footnote 191
C. Europe
For the purposes of this Comment, this region includes Eastern Europe, and Western Europe. Similar to North America, many States within Europe regulate DURC.Footnote 192 Overall, Western Europe maintains twelve BSL-4 and 161 BSL-3 laboratories.Footnote 193 Additionally, Eastern Europe maintains approximately six BSL-4 and four BSL-3 laboratories.Footnote 194 The European Union maintains the regulatory framework applicable for most States within Western Europe, and a handful of States within Eastern Europe.Footnote 195 One such regulatory framework is the “Chemical, Biological, Radiological, Nuclear Action Plan of 2009,” which prevents unauthorized access to materials of concern.Footnote 196 While this plan is politically binding, it provides no information for State implementation.Footnote 197
Despite having an applicable overarching regulatory framework, many States in Eastern and Western Europe have implemented State-specific regulatory measures. For example, Denmark implemented its own domestic legislation governing DURC—the 2008 “Act on Security for Biological Substances, Delivery Systems, Related Materials.”Footnote 198 This legally binding act implements control measures for access to biological substances, delivery systems, and related material; further, it requires oversight of dual-use research and imposes penalties for violation.Footnote 199 Netherlands also implemented its own regulatory framework—the 2007 “Code of Conduct for Biosecurity.”Footnote 200 While not legally binding, the regulation calls for guidance in screening dual-use research and facility access.Footnote 201 Moreover, the government of Netherlands ultimately deemed the regulation insufficient.Footnote 202 Further States implementing domestic regulatory frameworks include Germany,Footnote 203 France,Footnote 204 Ukraine,Footnote 205 and Sweden.Footnote 206
Two States of particular note are the United Kingdom (UK) and the Russian Federation (Russia). The UK maintains nine BSL-4 laboratories and approximately 600 BSL-3 laboratories.Footnote 207 The government passed legally-binding legislation, the “Anti-Terrorism, Crime and Security Act of 2001 and 2007,” which controls access to human pathogens and toxins, implements notification and security requirements, and requires background checks.Footnote 208 On the other hand, Russia has three BSL-4 laboratories and at least eighty-four BSL-3 laboratories.Footnote 209 Similar to the other powerful States in the international community, the Russian government maintains extensive regulations to control DURC, including Sanitary and Epidemiological Regulations SP 1.3.1285-03 on “[s]afe handling of micro-organisms in pathogenic hazard groups I-II,” which regulates biosafety in regard to testing infectious diseases.Footnote 210
D. Middle East and North Africa
For the purposes of this Comment, this region includes Turkey, Libya, Sudan, Egypt, Iran, Afghanistan, North Africa,Footnote 211 and the countries on the Arab Peninsula.Footnote 212 Overall, the Middle East and North Africa maintain no BSL-4 laboratories, and approximately twelve BSL-3 laboratories.Footnote 213 This region contains a series of States of particular note. For one, the United Arab Emirates announced in 2005 that it would become the world's first “free trade zone” for biotechnology; consequently, the State maintains a National Committee on Biosecurity and regularly holds biosecurity conferences.Footnote 214 For another, Turkey has two ministries responsible for safety and security in high-level BSL laboratories: the Ministry of Agriculture and Rural Affairs, General Directorate of Protection and Control; and the Ministry of Health.Footnote 215 While there is no legislation which regulates the requirements for establishing a high-level BSL laboratory, Turkey extensively utilizes international standards and guidelines, such as those of the CDC's Office of Safety, Health and Environment, National Institute of Health, WHO's Center for Applied Biosafety, the Cartagena Protocol for Biosafety, as well as others.Footnote 216
Unlike Turkey, Pakistan implemented the “Pakistan Biosafety Rules 2005,” which established the National Biosafety Committee, the Technical Advisory Committee, and Institutional Biosafety Committees.Footnote 217 However, similar to Turkey, there are limited standard guidelines or regulations for biosafety.Footnote 218 Consequently, while Pakistan uses its 2005 National Biosafety Guidelines, it also uses the standards and guidelines from the WHO, the CDC's Biosafety in Microbiological Biomedical Laboratories, and the Canadian Association for Biological Safety.Footnote 219
Two other countries are of note: Syria and Egypt. Both Syria and Egypt are only signatories to the BWC—both having signed in 1972.Footnote 220 Under Article 18(a) of VCLT, a State that has signed a treaty must “refrain from acts which defeat the object and purpose of the treaty” until it is clear whether or not the State will become party to the treaty.Footnote 221 However, under Article 18(b) of the VCLT, States are exempted from this obligation if there has been “undue delay” in the treaty entering into force.Footnote 222 Syria has not made comments in support of the BWC and is not in compliance with the BWC.Footnote 223 There is limited information regarding whether Syria has either a BSL-3 or BSL-4 laboratory; however, there is evidence it has an offensive research program that is producing biological agents, and it may have assistance from Russia, North Korea, Iran, and possibly Iraq.Footnote 224 In Egypt, on the other hand, officials have regularly expressed their support for the BWC.Footnote 225 Further, when establishing the country's first BSL-3 laboratory, the Egyptian Ministry of Health and Population worked with the WHO to establish a regulatory framework for biosafety in the laboratory.Footnote 226
Lastly, Israel is one of the ten States who are not party to the BWC.Footnote 227 It has no declared BSL-4 laboratories; however, such laboratories are probably associated with the Israel Institute for Biological Research.Footnote 228 Further, the country likely has an offensive research program which possibly has produced biological weapons.Footnote 229 Nevertheless, Israel has legally binding domestic regulation—the 2008 “Regulation of Research into Biological Disease Agents Act”—which controls access to biological agents by facility authorization; provides oversight of dual-use research; and is implemented at a national level.Footnote 230
E. Africa
For the purposes of this Comment, this region includes the countries in Eastern,Footnote 231 Western,Footnote 232 Central,Footnote 233 and SouthernFootnote 234 Africa. Overall, the region maintains two BSL-4 laboratories and approximately twenty-four BSL-3 laboratories.Footnote 235 Moreover, the region includes six of the ten States that have neither ratified nor signed the BWC, as well as one of the States that has only signed the BWC.Footnote 236 This region is therefore of limited application to our analysis of state practice.Footnote 237 However two States may be beneficial: Kenya, which maintains six BSL-3 laboratories; and South Africa, which maintains one BSL-4 laboratory and six BSL-3 laboratories.Footnote 238 Using the WHO biosafety guidelines and local biosafety standards, Nigeria created the NUITM-KEMRI biosafety education program to teach laboratory workers the recommended WHO practices, in order to increase biosafety and biosecurity in BSL-3 laboratory research.Footnote 239 This demonstrates a State commitment to comply with global regulatory standards for biosafety and biosecurity. Further, in South Africa, policymakers mandated the Academy of Science of South Africa to conduct an analysis of biosafety and biosecurity in the State.Footnote 240 Ultimately, the review concluded that, while the existing system is comprehensive, there are several weaknesses that must be addressed.Footnote 241
F. Asia
For the purposes of this Comment, this region encompasses Central Asia,Footnote 242 East Asia,Footnote 243 South Asia,Footnote 244 and Southeast Asia.Footnote 245 East Asia, which includes many of the developed States in Asia, maintains at least four BSL-4 laboratories and approximately 231 BSL-3 laboratories.Footnote 246 The other three regions, on the other hand, maintain one BSL-4 laboratory and approximately thirty-nine BSL-3 laboratories collectively.Footnote 247
China has at least one BSL-4 laboratory, and is planning on building five to seven more by 2025.Footnote 248 Further, the country expanded from ten BSL-3 laboratories to at least thirty after the SARS outbreak of 2003.Footnote 249 In regards to biosecurity, prior to the COVID-19 pandemic, the State did not have any regulations; however, in the wake of the COVID-19 pandemic, China passed its first biosecurity law.Footnote 250 Conversely, in regards to biosafety, China has long maintained biosafety legislation.Footnote 251
Japan, on the other hand, has two BSL-4 laboratories which do not conduct BSL-4 level research due to public opposition, and approximately 200 BSL-3 laboratories.Footnote 252 As with the other countries in East Asia, it maintains extensive regulation over DURC.Footnote 253 Other countries of note include India;Footnote 254 Philippines;Footnote 255 South Korea;Footnote 256 and ThailandFootnote 257—all of which maintain extensive regulatory regimes for DURC.
G. Oceania
For the purposes of this Comment, this region includes Australia, New Zealand, Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu. Overall, Oceania maintains three BSL-4 laboratories and forty-one BSL-3 laboratories.Footnote 258 All of the BSL-4 laboratories and forty of the BSL-3 laboratories are located in Australia, and the final BSL-3 laboratory is located in New Zealand.Footnote 259 Moreover, the region includes three of the ten States that have neither ratified nor signed the BWC.Footnote 260 Consequently, while the region's general acceptance of other State's regulatory practice in regards to biosafety and biosecurity is relevant, only the regulatory practice of New Zealand and Australia are relevant to this Comment's analysis of global State practice.Footnote 261
Australia and New Zealand maintain a collaborative regulatory regime, which is extensive and robust. Regulation includes the 2000 Gene Technology Act, regulating research on genetically modified organisms; and the Australia and New Zealand Standard for Safety in Laboratories: Microbiological Aspects, which provides extensive regulation for BSL-3 and BSL-4 laboratory research.Footnote 262 The latter is regularly updated, and the most recent update was released for public comment in 2019.Footnote 263
In conclusion, the global analysis of State practice in regards to regulation of DURC demonstrates that a vast majority of States with BSL-3 and BSL-4 laboratories maintain regulatory regimes for these laboratories. Further, States that do not participate in the State practice have not to date objected to the regulatory regimes of the other States. This subsequent practice and acquiescence is useful for interpreting the requirements of the BWC, in light of its context and object and purpose, as this Comment will address below.
III. Analysis
Under Article I of the BWC, States parties are prohibited from acquiring, developing, retaining, stockpiling, or producing “microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes . . .”Footnote 264 A plain text reading of this provision results in a minimalist interpretation, wherein a loophole exists allowing States to obtain potentially prohibited agents provided there is some justification, however minimal.
Subsequent to the adoption of the BWC, and in consideration of recent scientific advancements, a vast majority of States implemented regulatory regimes that weigh the benefits of the research against the potential costs of accident or misuse, and apply extra regulatory measures accordingly.Footnote 265 Consequently, subsequent State practice has addressed the loophole in the minimalist interpretation of Article I of the BWC by requiring safety measures, commiserate with the potential risks of the pathogen, in order to provide evidence that there is justification for the creation or acquisition of the pathogen.
This section will address the interpretation of the BWC using the rules set by the VCLT, as well as the potential application of an evolutive approach to interpretation. First, the section will address the ordinary meaning of Article I, in light of the treaty's object and purpose and its context. Next, the section will analyze the meaning based on subsequent State practice by referencing the global survey of State practice conducted above. Lastly, the section will address the evolutive interpretation of “no justification for prophylactic, protective or other peaceful purposes.”
A. Interpretation of the BWC—the General Rule of Treaty Interpretation
In accordance with the general rule of treaty interpretation, interpretation of the BWC must start with analyzing the ordinary meaning of the text—in light of the treaty's context, and object and purpose.Footnote 266 Under Article I of the BWC, States are prohibited from acquiring, developing, retaining, stockpiling, or producing “microbial or other biological agents, or toxins . . . of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes.” Under the ordinary meaning of this clause, a minimalist interpretation allows a State to acquire potentially prohibited agents provided there is at least some justification for protective or peaceful use, however minor. However, this minimalist approach is inconsistent with both the object and purpose of the treaty, and its context—as explained below—because it allows a greater amount of access to biological weapons than the object and purpose and the context of the treaty allow.
1. Object and Purpose
The preamble of the BWC contributes to identifying the object and purpose of the treaty. The relevant portions of which provide:
“Determined to act with a view to achieving effective progress towards general and complete disarmament, including the prohibition and elimination of all types of weapons of mass destruction, and convinced that the prohibition of the development, production and stockpiling of chemical and bacteriological (biological) weapons and their elimination, through effective measures, will facilitate the achievement of general and complete disarmament under strict and effective international control, . . .
Convinced of the importance and urgency of eliminating from the arsenals of States, through effective measures, such dangerous weapons of mass destruction as those using chemical or bacteriological (biological) agents, . . .
Determined, for the sake of all mankind, to exclude completely the possibility of bacteriological (biological) agents and toxins being used as weapons,
Convinced that such use would be repugnant to the conscience of mankind and that no effort should be spared to minimize this risk.”Footnote 267
These provisions indicate that the drafters of the BWC intended the treaty to act as a mechanism to severely limit a State's ability to create or obtain biological weapons. This conclusion is further supported by the explicit provisions, included in the BWC, that indicate the treaty is intended to be read in connection with the 1925 Geneva Convention, which bans the use of chemical and biological weaponry in warfare.Footnote 268 Since the BWC severely inhibits the ability of a State to obtain or create biological weapons, the “minimalist” interpretation of the treaty, that does not require biosafety or biosecurity regulation of DURC, allows a greater amount of access to biological weapons and therefore is in contravention to the object and purpose of the treaty.
2. Context
Under the rule set in Article 31(2) of the VCLT, the “context” of a treaty—which must be used when interpreting the treaty—has a special meaning: the treaty's preambles and annexes; any agreements “made between all the parties in connection with the conclusion of the treaty;” and any instruments “made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.”Footnote 269
An analysis of the text, including the preamble, indicates that the drafters of the BWC were conscious that there was a need to strictly limit the acquisition of biological weapons, as well as a need to divert existing weapons to peaceful purposes.Footnote 270 First, the preamble states,
“[C]onvinced that the prohibition of the development, production and stockpiling of chemical and bacteriological (biological) weapons and their elimination, through effective measures, will facilitate the achievement of general and complete disarmament under strict and effective control.”
The underlined portions of this clause indicate that the drafters were intending to achieve the “general and complete” disarmament of biological weapons stockpiles; further, they were aware of the need for strict and effective regulatory control in this effort. Further, the inclusion of the phrase “general and complete disarmament” provides evidence that the drafters did not support the loophole minimalist interpretation, as it allows more access to biological weapons than the drafters intended.
Additionally, Article II of the BWC includes a short provision—“[i]n implementing the provisions of this article all necessary safety precautions shall be observed to protect populations and the environment”—which indicates that the drafters were conscious of importance of safety precautions, as well as the risk biological weapons pose to humanity and the environment.Footnote 271 Further, the inclusion of the phrase “necessary” provides evidence that the drafters supported the implementation of regulatory regimes to oversee and control the possession of, and destruction of, biological agents. Additionally, the subsequent State practice highlights that States interpret this clause to require such regulatory regimes—as discussed further below.
Consequently, interpreting the BWC using the minimalist approach, which includes a loophole that allows States to obtain otherwise banned biological materials based on minimal justification, would be contrary to the object and purpose of the treaty. Furthermore, in analyzing the context of the treaty, it is evident that the drafters were supportive of regulatory regimes to oversee and control the possession of biological weapons. As a result, the general rule of treaty interpretation does not support the minimalist interpretation of Article I of the BWC. This is further confirmed by the analysis that follows.
B. Interpretation of the BWC—VCLT, Article 31(3): Subsequent Agreements and State Practice
Whether or not the general rule of treaty interpretation provides a clear understanding of the obligations required under a treaty, an interpreter must next address the subsequent rules of treaty interpretation.Footnote 272 As noted previously, the relevant subsequent rules of treaty interpretation for the BWC are provided in Article 31(3) of the VCLT—i.e., a treaty must be interpreted in light of (a) any subsequent agreements between the parties, or (b) any subsequent practice in the application of the treaty.Footnote 273
In regards to Article 31(3)(a), subsequent Agreements, an interpreter may reference the developments from the BWC review conferences. Specifically, the interpreter may note the discussion of “dual-use research of concern (DURC).”Footnote 274 During discussions, States were open to the inclusion of this phrase in the final conference documents; however, ultimately the phrase was never included in an official agreement between the parties.Footnote 275 While these discussions provide context to the parties’ intentions, these discussions are not a conclusive method to interpret the treaty because DURC was never included in official agreements.
On the other hand, Article 31(3)(b), subsequent State practice, provides an abundance of evidence which would assist an interpreter in understanding the current obligations required under Article I of the BWC. As outlined by the analysis of global State practice, there is significant evidence that States consistently and extensively regulate BSL-3 and BSL-4 laboratories, which are responsible for conducting DURC. For North America, the large number of BSL-3 and 4 facilities and the existence of legally binding statutes—as well as the presence of large regulatory bodies in both Canada and the US—provide strong evidence of State practice regulating DURC.Footnote 276 Further, for Europe, the existence of multiple regulatory regimes—both within the framework of the EU and within specific States—provide evidence of a global State practice regulating DURC.Footnote 277 This is further supported by the Netherland's conclusion that the non-legally binding 2007 “Code of Conduct for Biosecurity” was insufficient, suggesting that the Netherlands believes more extensive, legally binding regulation is necessary.Footnote 278
For Latin America and the Caribbean, Central American and the Caribbean's acquiescence to global State practice supports the acceptance of State regulation of DURC—as well as CARICOM's regulatory regime, which is based off of the WHO guidelines.Footnote 279 A similar logic applies to Africa and Oceania: while there are limited BSL-3 and BSL-4 facilities that could conduct DURC—and therefore limited State practice—the general acquiescence by States to the regulatory regimes of other States provides evidence for the State practice.Footnote 280
For specific States of note, the presence of multiple BSL-3 laboratories and the existence of regulatory regimes for both biosafety and biosecurity provides strong evidence of State practice in Nigeria and Cuba, as does Cuba's offer to conduct educational campaigns on biosafety and biosecurity for interested States.Footnote 281 Similarly, Nigeria maintains a domestic biosafety education program—providing support for the existence of regulatory State practice in Nigeria.Footnote 282 For Brazil and Argentina, the existence of multiple BSL-3 and BSL-4 laboratories, and regulatory regimes to govern biosafety and biosecurity in these facilities, supports the conclusion that both States participate in the State practice of regulating biosafety and biosecurity.Footnote 283 Additionally, the United Arab Emirates conducts extensive DURC, and consequently maintains a National Committee on Biosecurity.Footnote 284 Lastly, the review of biosafety and biosecurity in South Africa demonstrates an effort in that State to best implement biosafety and biosecurity, which is evidence of State practice in favor of implementing biosecurity and biosafety regulatory measures.Footnote 285 Consequently, the existence of extensive regulatory measures by the vast majority of States where BSL-3 and BSL-4 laboratories operate supports the conclusion that there is a global State practice of regulating DURC.
While a few States do not regulate DURC, which could work towards the detriment of interpreting the BWC based on Article 31(3)—State practice—of the VCLT, the VCLT does not require State practice to be universal.Footnote 286 Moreover, many States adopt the regulatory framework of non-binding international conventions when the State lacks adequate domestic legislation.Footnote 287 This is demonstrated in both Turkey and Pakistan. While Turkey has no binding domestic legislation regulating DURC, it extensively utilizes international standards and guidelines.Footnote 288 In contrast, unlike Turkey, Pakistan has domestic legislation regulating DURC; nevertheless, Pakistan supplements this regulation by also extensively utilizing international standards and guidelines.Footnote 289
Moreover, we can compare two countries: Egypt and Syria, both of whom are only signatories to the BWC.Footnote 290 Article 18(a) of the VCLT requires that a State that has signed a treaty must “refrain from acts which defeat the object and purpose of the treaty” until it is clear whether or not the State will become party to the treaty.Footnote 291 For Syria, there is limited information whether the country maintains any BSL-3 or BSL-4 laboratories; however, the country maintains an offensive research program and has yet to adopt any regulatory measures for biosecurity or biosafety.Footnote 292 Two conclusions may be drawn from this: Syrian officials may not believe that it is necessary to implement biosafety measures under the BWC, or—alternatively—Syria may consider the forty-eight year gap between the present day and when the treaty was signed an “undue delay,” which therefore exempts the State from the requirement to comply with the object and purpose of the BWC.Footnote 293 Conversely, Egypt—which become a signatory State in the same year as Syria—has consistently expressed support for the BWC, and has implemented regulatory measures for biosafety and biosecurity. The creation of this framework could be due to the belief that it is required under the “object and purpose” of the BWC. Unlike Syria, “undue delay” would not be applicable because Egypt has repeatedly reiterated its support for the treaty—though it has yet to become a State Party.Footnote 294
Considering the widespread existence of State practice requiring a higher level of regulation for BSL-3 and BSL-4 laboratories that conduct DURC, and in compliance with the VCLT rules of treaty interpretation, it can be concluded that the subsequent State Practice has altered the meaning of “no justification for prophylactic, protective or other peaceful purposes” to reflect a necessity for both biosafety and biosecurity regulation when DURC is conducted at a laboratory.
C. Evolutive Interpretation of the BWC
In accordance with the ICJ precedent set in the Namibia advisory opinion, treaties may be reinterpreted, irrespective of the original interpretation, provided the interpretation is necessary to the object and purpose of the treaty.Footnote 295 As noted above, the object and purpose of the BWC is to severely limit a State's ability to create or obtain biological weapons.Footnote 296 Consequently, reinterpretation of the BWC to limit biological research beyond simply that with “no justification for prophylactic, protective or other peaceful purposes” is in compliance with the object and purpose of the BWC.
An evolutive approach to interpretation can be utilized in a series of situations, including—but not limited to—when (1) a concept within the treaty implies the need to consider subsequent technical, economic, or legal developments; or (2) a concept in the treaty is of such a general nature that interpretation requires consideration of changing circumstances.Footnote 297 For Article I of the BWC, both of these categories apply.
Modern day scientific developments allow for the safe experimentation of even the most dangerous pathogens, in an effort to develop responses should the pathogens be released into the general public.Footnote 298 With the recent developments in genetic manipulation—namely, CRISPR-cas9—it has become exponentially easier to conduct justified experiments on biological materials that would otherwise be prohibited by the BWC under Article I.Footnote 299 Consequently, it is necessary to interpret the BWC in a manner consistent with the modern state of scientific technology. In this vein, States must interpret the BWC using the evaluative process in which States implement regulatory regimes that subject DURC to higher biosafety and biosecurity standards than other pathogens, in order to fulfill the “some justification” standard.
Moreover, similar to the Court's interpretation of “territorial status” as generic in the Aegean Sea case, the BWC does not clarify what form of “justification” is necessary under Article I; consequently, the term is generic.Footnote 300 According to the ordinary meaning of the term, justification is an “acceptable reason for doing something.”Footnote 301 Under this definition, a State must have an acceptable reason for precuring an otherwise prohibited agent. Such justification would inherently derive from the possibility of scientific research on the pathogen for peaceful or prophylactic purposes. However, given the ability to justify experimentation on even the deadliest pathogens, the result from this interpretation would be contrary to the object and purpose of the BWC. Consequently, it is necessary to interpret “justification” using the changing circumstances of modern science. Under the modern system, as demonstrated through State practice, current circumstances mandate that States implement more stringent biosafety and biosecurity measures based on the risk of the pathogen. This requirement is necessary to show that the State is meeting the “some justification” standard, as such regulation demonstrates that the creation or acquisition of the pathogen is not for nefarious purposes.
IV. Policy Recommendations
While subsequent practice may cause the re-interpretation of a treaty, it does not officially amend or modify said treaty.Footnote 302 Consequently, in light of the evolution of science since the adoption of the BWC in 1972 and the lived experience of the COVID-19 pandemic, this Comment recommends that the international community reflect the evolution in the law by adopting the provision proposed below. While such modification is not necessary,Footnote 303 it is advisable because—by adopting this provision—the international community would clearly codify the current meaning of Article I of the BWC.
The mandate of the ISU expires in 2021.Footnote 304 Therefore, the Ninth Review Conference of the BWC—scheduled for November 8th to 26th of 2021—must extend the mandate of the ISU.Footnote 305 As noted earlier, review conferences for the BWC occur every five years, and are responsible for “reviewing the operations of the Convention, including clarifying States Parties’ understanding about its provisions, strengthening its implementation, and charting next steps.”Footnote 306 An example of this is found in the final outcome document of the Sixth Review Conference, which originally created the ISU.Footnote 307
Consequently, considering the evolution of the law based on State practice, the Ninth Review Conference should include a provision within this resolution which codifies the change in the enforcement mechanism for biological weapons. The potential clause which could reflect this framework could be:
Each State Party to this Convention to undertake never, in any circumstance, to develop, produce, stockpile or otherwise acquire or retain:
Microbial or other biological agents, or toxins—whatever their origin or method of production—of types and in quantities that fall within the category of “dual-use research of concern,” unless the State has implemented a regulatory regime(s) that weighs the benefits of the research against the potential costs of accident or misuse, and accordingly applies extra regulatory measures to maintain biosafety and biosecurity; . . .
As a result, by adopting this provision within the final outcome document of the Ninth Review Conference, the evolution of law would be codified within international law.Footnote 308
Conclusion
Article I of the BWC prohibits the acquisition of microbial or other biological agents or toxins when there is “no justification for prophylactic, protective or other peaceful purposes.” However, the ordinary meaning of “no justification” implies that States may obtain otherwise prohibited biological materials, provided there is some justification, no matter how minimal. Such an interpretation is against the object and purpose, and the context, of the BWC. Consequently, this minimalist approach is not supported by the norms of interpretation laid down in the VCLT. This is further confirmed by global State practice.
Subsequent to the adoption of the BWC, States adopted regulatory regimes which weigh the benefits of the research against the potential costs of accident or misuse, and apply extra biosafety and biosecurity regulatory measures accordingly. Accordingly, interpretation of the BWC using subsequent State practice—in compliance with VCLT, Article 31(3)(b)—also does not support the minimalist interpretation of the phrase “no justification for prophylactic, protective or other peaceful purposes.” Instead, based on subsequent State practice and the context of the treaty, the law has evolved to require States to implement stringent biosafety and biosecurity regulatory measures based on the risk posed by the pathogen being tested.
Moreover, interpretation of the BWC using the evolutive approach requires that the phrase “prophylactic, protective or other peaceful purposes” be interpreted in light of the evolution of scientific research. Consequently, under this new interpretation of Article I of the BWC, States are required to apply extra biosafety and biosecurity measures to experimentation involving dangerous pathogens, bioregulators, or biotoxins—i.e., DURC. Finally, in consideration of the evolution in the law, this Comment recommends that the United Nations Security Council—the only committee of the U.N. whose resolutions are binding—should codify the law to accurately reflect its current requirements.
