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DE GRUYTER Journal of Biosecurity, Biosafety and Biodefense Law 2015; 6(1): 1-21

Jennifer Wissinger*
The BWC Gray Area: Locating the Blurry Line
of Defining Biological Weapons
DOI 10.1515/Jbbbl-2015-0006

Abstract: The member states bound by the Biological Weapons Convention (BWC)
have committed to not produce, stock pile, or use biological weapons, but finding
the line between what is a biological weapon and what is justified by "prophy-
lactic, protective or other peaceful purposes" is difficult with the broad wording of
the convention. In a world of quickly emerging technology, the gray area created
by the broad exceptions to what constitutes a BWC biological weapon produces
ever-changing security risks and public policy considerations. Despite the BWC's
attempt to strengthen prohibition on biological weapons of prior agreements, a
large exception is carved out for the three justified uses, which hinges on the
intent and purpose of the actor. The three permitted purposes are not defined, and
there is no objective test for determining the intention of the actor.

Keywords: Biological Weapons Convention, biological weapons, biodefense

I. Introduction to the BWC Gray Area

The member states bound by the Biological Weapons Convention (BWC) have
committed to not produce, stock pile, or use biological weapons, but finding the
line between what is a biological weapon and what is justified by "prophylactic,
protective or other peaceful purposes" is difficult with the broad wording of the
convention.' In a world of quickly emerging technology, the gray area created by
the broad exceptions to what constitutes a BWC biological weapon produces
ever-changing security risks and public policy considerations.
As noted in the Preamble of the BWC, the convention was an addition to the
prohibitions created by the 1925 Geneva Protocol. 2 The BWC recognizes the
significance of the prohibitions signed in Geneva, and therefore addresses

1 Biological Weapons Convention (hereinafter BWC) art. I (Mar. 26, 1975), http://disarmament.
un.org/treaties/t/bwc/text.
2 Id. at pmbl.

*Corresponding author: Jennifer Wissinger, School of Law, Texas Tech University, Lubbock,
TX, USA, E-mail: jennifer.wissinger@ttu.edu
2 - J. Wissinger DE GRUYTER

some of the holes left by the Geneva Protocol. The Geneva Protocol did not
prohibit developing biological weapons for use as a deterrent or as retaliation.4
Despite the BWC's attempt to strengthen prohibition on biological weapons of
prior agreements, a large exception is carved out for the three justified uses,
which hinges on the intent and purpose of the actor.5 However, a state's purpose
for having biological agents is difficult to determine prior to use.6 Having a clear
understanding of the definition for biological weapons in the BWC is important
as it has a far-reaching impact on the creation and implementation of policies
and procedures of individual states worldwide. The BWC language and purpose
has been incorporated into international manuals and procedures; many
military manuals listing prohibited weapons in combat base their reasoning on
the BWC.
One challenge facing BWC interpretation is that the definition of a biological
weapon hinges on intent.9 The BWC broadly prohibits biological agents and
toxins, but only if they "have no justification for prophylactic, protective or
other peaceful purposes."' 0 The three permitted purposes are not defined, and
there is no objective test for determining the intention of the actor." While there
are no controlling definitions of these permitted uses, there are understood mean-
ings for all three.' 2 Prophylactic purposes include using biological agents to create
vaccines and antibiotics.'3 Protective purposes include researching biological
agents in order to create protective equipment, sensors, or other defensive tech-
nology.' General research to increase understanding of biological agents falls
within the broad permitted use of other peaceful purposes. 5 With intent as the
key factor in drawing the line between prohibited and permitted biological agents,
it is difficult to know the true intent of governments or other actors prior to actual

3 Id.
4 David P. Fidler & Lawrence 0. Gostin, BIOSECURITY IN THE GLOBAL AGE: BIOLOGICAL WEAPONS, PUBLIC
HEALTH, AND THE RULE OF LAw 29 (2008).
5 Barry Kellman, BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME 196 (2007).
6 Id.
7 See generally INT'LCOMM. OF THE RED CROSS, CUSTOMARY INTERNATIONAL HUMANITARIAN LAw VOL. 2 PT. 1
(Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2005), available at http://www.icrc.org/
eng/resources/documents/publication/pcustom.htm.
8 Id.
9 See Fidler & Gostin, supra note 4, at 33.
10 BWC, supra note 1.
11 Fidler & Gostin, supra note 4, at 33.
12 Id.
13 Id.
14 Id. at 34.
15 Id.
DE GRUYTER The BWC Gray Area - 3

prohibited use. The task of determining intent is further complicated by the

dual-use or multiuse nature of biological agents." The dual-use nature of biolo-
gical agents, scientific research, genetic engineering, and biotechnology creates a
fine line between permitted research and biological weapon preparation.' 8
In addition to the three permitted uses in Article I of the BWC, the broad
encouragement of scientific and technological advancements in Article X pro-
vides for unconstrained biological and pharmaceutical research.' 9 BWC Article X
states that,
(1) The States Parties to this Convention undertake to facilitate, and have the
right to participate in, the fullest possible exchange of equipment, materi-
als and scientific and technological information for the use of bacteriolo-
gical (biological) agents and toxins for peaceful purposes. Parties to the
Convention in a position to do so shall also cooperate in contributing
individually or together with other States or international organizations to
the further development and application of scientific discoveries in the field
of bacteriology (biology) for prevention of disease, or for other peaceful
purposes.
(2) This Convention shall be implemented in a manner designed to avoid
hampering the economic or technological development of States Parties
to the Convention or international cooperation in the field of peaceful
bacteriological (biological) activities, including the international exchange
of bacteriological (biological) agents and toxins and equipment for the
processing, use or production of bacteriological (biological) agents and
toxins for peaceful purposes in accordance with the provisions of the
Convention.20

Article X ensures that the BWC is not interpreted in any way that hinders or
prohibits scientific advancements. 2
'

Advancements in science and technology widen the gray area for defining
BWC biological weapons even further. Developments in areas such as genetic
engineering, biotechnology, and nanotechnology create new challenges for
biosecurity.? In awareness of the challenges these advances pose to the

16 Id.
17 Gregory D. Koblentz, LIVING WEAPONS: BIOLOGICAL WARFARE AND INTERNATIONAL SECURITY 64 (2009).
18 Id. at 64-66
19 BWC, supra note 1, at art. X.
20 Id.
21 Id.
22 Koblentz, supra note 17, at 63.
4 - J. Wissinger DE GRUYTER

Convention, Article XII of the BWC mandates that Review Conferences shall
include a review of relevant scientific and technological developments.2 3
The challenges in preventing biological weapons created by the BWC Article
I definition is not likely to be resolved by amending the BWC. The Ad Hoc Group
worked for ten years in anticipation of presenting the BWC Protocol (Protocol) at
the Fifth Review Conference in 2001.24 The Protocol would have strengthened
the enforcement power of the BWC by requiring States Parties (States) to declare
their programs and research facilities related to biological agents and would
allow for inspections to ensure compliance. 2 5 The proposed Protocol was con-
troversial when it came to verifying compliance of civilian laboratories because
inspections would be imposed to ensure compliance.2 6 The U.S. delegation was
particularly opposed to inspections.27 The Protocol discussion at the Fifth
Review Conference turned into a heated disagreement, and after the suggestion
by the U.S. to dissolve the Ad Hoc Group, the Conference had to be postponed
until the next year.2 8 Though the discussion for creating inspections ended
there, the next year when the Fifth Review Conference reconvened, annual
meetings of the States and experts were created to give guidance for the Sixth
Review Conference.2 9
The concern over inspections will likely not be resolved and makes future
amendments unlikely. With the U.S. as the main opposition to the proposed
Protocol, the addition of sovereignty and national security issues further mud-
dles the efforts. The U.S. has a history of opposition to limitation on either. The
U.S. Congress's failure to ratify the Geneva Protocol is attributed to concerns
over limiting national security options. 3 0 The secrecy viewed as a necessary part
of national security conflicts with calls for more transparency to assure BWC
compliance.3 ' This secrecy can create suspicion and encourage other nations to
have biological weapons programs out of fear that countries like the U.S., who
oppose inspections, have a current program that they are hiding. 32 In addition to

23 BWC, supra note 1, at art. XII.

24 Kellman, supra note 5, at 194.
25 Id.
26 Fidler & Gostin, supra note 4, at 50.
27 Kellman, supra note 5, at 195.
28 Id.
29 See id.
30 Victoria Sutton, A MultidisciplinaryApproach to an Ethic of Biodefense and Bioterrorism, 33 J.
L. MED. & ETHICs 310, 319 (2005), available at http://papers.ssrn.com/sol3/papers.cfm?abstract
id=2122590.
31 Koblentz, supra note 17, at 70.
32 Id.
DE GRUYTER The BWC Gray Area - 5

national security concerns, the U.S.'s history of federalism, respect of state

sovereignty, and constitutional restraints create serious concerns and challenges
for any proposals that would require the U.S.'s Federal Government to agree to
anything that would infringe on sovereignty of the states.
The problem of defining the scope is further hindered by the lack of
enforcement and sanctions provided in the BWC. The BWC does not include
enforcement procedures or sanctions.3 4 The Implementation Support Unit, cre-
ated by the Sixth Review Conference and extended by the Seventh Review
Conference, provides administrative support for member states, Confidence-
Building Measures, and the assistance requests database. The United Nations
Security Council's adoption of UN Resolution 1540 mandated that States "refrain
from providing any form of support to non-State actors that attempt to develop,
acquire, manufacture, possess, transport, transfer or use nuclear, chemical or
biological weapons and their means of delivery," and requires States to adopt
and enforce legislation to prevent such prohibited activity. 6
The Seventh Review Conference set as a standing agenda item for the 2012-
2015 Annual Meeting of States Parties (MSP), consideration of scientific and
technological advancements that relate to the Convention. The findings of
the MSPs will be considered at the Eighth Review Conference in 2016.3 In the
absence of other available methods, the MSPs may provide the best method for
evolving the BWC, creating a clear definition of biological weapons, and resol-
ving the definitional gray area.

II. Resolving the Gray Area

The challenges of the gray area created by the BWC language may be resolved
by interpretation of the meaning of biological weapons (BW) through outside
sources, such as international manuals referencing and relying on the BWC

33 Victoria Sutton, Bioterrorism Preparationand Response Legislation-The Struggle to Protect

State's Sovereignty While PreservingNational Security, 6 GEO. PUB. POL'Y REV. 93, 93 (93-94, 2001),
available at http://papers.ssrn.com/sol3/papers.cfm?abstractid=2125340
34 See generally BWC, supra note 1.
35 Implementation Support Unit, UNOG, http://www.unog.ch/80256EE600585943/0/%28httpPages%
29/16C37624830EDAE5C12572BC0044DFC1?OpenDocument (last visited Mar. 21, 2015).
36 S.C. Res. 1540, para. 11, U.N. Doc. S/RES/1540 (Apr. 28, 2004).
37 Seventh Review Conference (Dec. 5-22, 2011), Final Report of the Seventh Review Conference,
21, BWC/CONF.VJJ/7 (Jan. 13, 2012), available at http://www.unog.ch/80256EE600585943/%
28httpPages%'o29/F1CD974A1FDE4794C125731A0037D96D?OpenDocument.
38 Id.
6 - J. Wissinger DE GRUYTER

Article I language, the Meeting of States Parties Final Reports and related
materials, and expert reactions to specific biological advancements. Article I of
the BWC defines biological weapons through the mandate that:

Each State Party to this Convention undertakes never in any circumstances to develop,
produce, stockpile or otherwise acquire or retain:

microbial or other biological agents, or toxins whatever their origin or method of produc-
tion, of types and in quantities that have no justification for prophylactic, protective or
other peaceful purposes;
weapons, equipment or means of delivery designed to use such agents or toxins for
39
hostile purposes or in armed conflict.

The Preamble of the BWC provides helpful insight in defining the scope of
the BWC as it expresses the intent and rationale for the BWC. The Preamble
expresses that the Convention created the BW prohibitions:

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 mea-
sures, will facilitate the achievement of general and complete disarmament under strict
40
and effective international control.

A. Survey of International Views on Biological Weapons

Many international manuals and military materials express various rationale for
banning biological weapons, which may assist in defining what a biological
weapon is. 4 ' The various reasons for prohibiting biological weapons are based
on an effect that the uses of such weapons have that are viewed to inherently
necessitate prohibition.4 2 The most commonly repeated reasons are to prevent
unnecessary suffering and indiscriminate killing, the inhuman nature and exces-
sive traumatic effect, and likelihood for uncontrollable results that may cause
disproportionate civilian injury.

39 BWC, supra note 1, at art. I.

40 BWC, supra note 1, at pmbl.
41 See generally INT'L COMM. OF THE RED CROSS, supra note 7.
42 Id.
43 Id.
DE GRUYTER The BWC Gray Area - 7

Australia has expressed in its Commander's Guide that the reason for ban-
ning both chemical and biological weapons is that "they cause unnecessary
suffering and may affect civilian population in an indiscriminate fashion.""
This same reasoning of prohibitions based on indiscriminate effects has been
expressed in Russia's Military Manual.s Romania expressed in a statement
made to the Ad Hoc Committee on Conventional Weapons in 1974, that weapons
of indiscriminate effect, such as biological weapons, are prohibited "by legal
conscience of peoples." 4 6 This sentiment is echoed in the BWC preamble, which
describes BW use as "repugnant to the conscience of mankind." 4 7 The US Air
Force Pamphlet includes BWs as an example of a weapon that is prohibited due
to its indiscriminate effect, lack of "any degree of certainty [to] be directed at
military objectives," and "disproportionate civilian injury or damage to civilian
objects."4 In its Law of Armed Conflict Teaching Note, France attributes
the prohibition of BWs "to their inhumane nature or to their excessive traumatic
effect." 4 9 The U.S. enforces the prohibitions of the BWC through the Biological
Weapons Anti-Terrorism Act of 1989, which was enacted for the stated
purpose of "protect[ing] the United States against the threat of biological
terrorism." 5 0
Countries have created their own definitions of biological weapons for use in
enforcing the BWC prohibitions. Germany has included in their Military Manual
that the prohibitions of the BWC apply to both biotechnological and synthetic
procedures, as well as "genetic engineering procedures and micro-organisms
altered through genetic engineering." 5 ' The U.S. Biological Weapons Anti-
Terrorism Act of 1989 defines biological agent as "any micro-organism, virus,
or infectious substance, capable of causing: (A) death, disease, or other biolo-
gical malfunction in a human, an animal, a plant, or another living organism;
(B) deterioration of food, water, equipment, supplies, or material of any kind; or
52
(C) deleterious alteration of the environment."

44 AUSTRALIA, LAW OF ARMED CONFLICTS: COMMANDERS' GUIDE§ 306 (1994).

45 RUSSIA, MILITARY MANUAL §6
(1990).
46 CDDH Official Records, Romania, 28, § 16, vol. XVI, CDDH/IV/SR.3 (Mar. 15, 1974).
47 BWC, supra note 1, at pmbl.
48 US, AIR FORCE PAMPHLET § 6-3(c) & 6-7(a) (1976).
49 FRANCE, LOAC TEACHING NOTE 6 (2000).
50 S. Res. 993, 101st Cong. § 2 (1990) (enacted).
51 GERMANY, MILITARY MANUAL §§ 438-39 (1992).
52 Biological Weapons Anti-Terrorism Act of 1989, 18 U.S.C. § 178 (2006).
8 - J. Wissinger DE GRUYTER

B. Meeting of States Parties Interpretations

The Annual Meeting of States Parties have addressed the issue of concern over
technological advancements that have potentially prohibited uses.ss The 2009
MSP recognized the importance of "international cooperation, assistance and
exchange in biological sciences and technology for peaceful purposes," to
address the issue of scientific and technological advancements.s4
The 2012 MSP focused on "enabling technology" in their review of techno-
logical and scientific advancements related to the BWC.ss The States Parties
discussed diverse subject areas of technological advancements, such as "bioin-
formatics; computational biology; DNA microarrays; gene synthesis technology;
high-throughput mass spectrometry; high-throughput sequencing; nanotechnol-
ogy; synthetic biology; systems biology; and whole-genome directed evolution,"
and the States Parties recognized that these new enabling technologies will
provide both "benefits and challenges for the Convention." 5 6 Some of the
potentially prohibited uses for these emerging technologies included, program-
ming toxin or virus producing cells, altering pathogenic viruses, creating drug
resistant pathogens, "decreasing genetic diversity amongst farm animals, [and]
reducing natural resistance to certain diseases."5 7 The conclusion reached at the
meeting was that these new technologies "require greater awareness rather than
specific action."5 s
The States Parties also discussed the trend of new technologies combining
biology and chemistry, such as using biological processes to produce chemicals,
and using chemical processes to create biological agents. 5 9 Switzerland
expressed in its statement to the States Parties "the importance of a much
needed closer cooperation between the BWC and the CWC." 6 0 The States

53 See generally, e.g., 2009 Meeting of States Parties (Dec. 7-11, 2009), Report of the Meeting of
State Parties, BWC/MSP/2009/5 (Dec. 16, 2009).
54 2009 Meeting of States Parties (Dec. 7-11, 2009), Report of the Meeting of State Parties, 11,
BWC/MSP/2009/5 (Dec. 16, 2009) [hereinafter 2009 MSP], available at http://www.unog.ch/
80256EE600585943//o28httpPages/o29/C9A474FE8541CE92C12577530034FOOD?OpenDocument.
55 2012 Meeting of States Parties (Dec. 10-14, 2012), Report of the Meeting of State Parties, 6,
BWC/MSP/2012/5 (Dec. 19, 2012) [hereinafter MSP], available at http://www.unog.ch/80256EE600
585943//o28httpPagesO/o29/89835CBOA2DAA4AOC1257B6E003415C5?OpenDocument.
56 Id.
57 Id. at 15.
58 Id.
59 Id. at 16.
60 2012 Meeting of States Parties (Dec. 10-14, 2012), Statement by Switzerland, 5, BWC/MSP/
2012/5 (Dec. 11, 2012), available at www.unog.ch/80256EDD006B8954/(httpAssets)/2787159BAC
1790E2C1257AD200583B4F/$file/2012-BWC-MSP-Statement-implementation-EN-FR+121212.pdf.
DE GRUYTER The BWC Gray Area - 9

Parties noted that this convergence of the two sciences is both a challenge and
an opportunity to improve "coordination between the Implementation Support
Unit and the Organisation for the Prohibition of Chemical Weapons."'
The 2013 MSP focused the emerging technology discussion on developments
in "surveillance, detection, diagnosis and mitigation of infectious diseases, and
similar occurrences caused by toxins in humans, animals and plants." 6 2 Many of
the beneficial developments discussed, which have permitted uses, also had
potential flip side uses that would be prohibited by the BWC. 6 The States Parties
noted multiple advancements in vaccine research and development that could
be used for harm rather than healing, such as increased knowledge on disease
pathogenicity and host immunity, faster and cheaper development, and cell--
specific delivery. In order to prevent these new developments from being used
for prohibited means, the States Parties voiced that States should cooperate with
each other to develop oversight "through international cooperation, capacity-
building, and strengthened implementation of Article X." 6 5 The States Parties
also noted the importance of correctly assessing the risks of misuse so that
peaceful activities are not hindered.6 6 In direct response to the dual-use
problems that the BWC faces, the States Parties made suggestions for minimiz-
ing prohibited uses and maximizing beneficial uses, such as including specific
dual-use research as a topic for the Convention, and elaborating on the risk
assessment and oversight principles for dual-use research.
The States Parties also echoed the concerns brought up at the previous
year's meeting, that the "implications of the convergence of biology and chem-
istry" deserve further consideration.68 Suggestions for addressing this issue
included learning lessons on reviewing science and technology from the
Scientific Advisory Board of the Chemical Weapons Convention (CWC) and
increasing interactions between CWC and BWC experts. 6 9 To create a more
effective review process of advancements in science and technology, the
Parties suggested possible solutions, such as creating an advisory board similar

61 2012 MSP, supra note 55, at 16.

62 2013 Meeting of States Parties (hereinafter 2013 MSP) (Dec. 9-13, 2013), Report of the Meeting
of State Parties, 14, BWC/MSP/2013/5 (Dec. 24, 2013), available at http://www.unog.ch/80256
EE600585943/%28httpPageso29/DO9AEA8085BF0E70C1257CE4002B5ADD?OpenDocument.
63 Id.
64 Id. at 14-15.
65 Id. at 15.
66 Id. at 16.
67 Id.
68 Id.
69 Id.
10 - J. Wissinger DE GRUYTER

to the CWC's Scientific Advisory Board, a working group specifically for con-
sidering "the implications of advances in science and technology, including the
convergence of chemistry and biology." 7 0

C. Specific Examples
The BWC defines biological weapons as "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 pur-
poses" and "weapons, equipment or means of delivery designed to use such
agents or toxins for hostile purposes or in armed conflict." 7 UN Resolution 1540
defines "[m]eans of delivery" as "missiles, rockets and other unmanned systems
capable of delivering nuclear, chemical, or biological weapons, that are spe-
cially designed for such use."7 2
The COPs provide[s] a lists of prohibited uses when used as a weapon, rather
than research, such as programming toxin creating cells, creating drug resistant
pathogens, diminishing genetic diversity in animals, increasing susceptibility to
diseases, creating incapacitating weapons,73 and using vaccine research to
defeat host immunity and target specific cell delivery.
Academic researchers in the area of biological agents have explored these
specific examples of scientific and technological advancements that may fall in
the BWC gray area and create enforcement concerns. Understanding these
specific examples of BWC gray area technology and the reactions by researchers
in the field of biosecurity and international law may help to resolve and under-
stand the scope of the BWC.
Applying the BWC language and the COPs additions to the definition of
biological weapon, combined with an understanding of what the new technol-
ogies are by looking at research in the area, will help to determine if these
emerging technologies fall within the scope of the BWC. Each section on specific
examples will conclude with an application of the definition of biological
weapons, as created by the BWC language and COPs modifications, to each
specific emerging technology and scientific advancement to determine if the
specific example falls within the scope of the BWC.

70 Id. at 16-17.
71 BWC, supra note 1, at art. I.
72 S.C. Res. 1540, supra note 36, ¶ 1.
73 2012 MSP, supra note 55, at 15
74 2013 MSP, supra note 62, at 14-15.
DE GRUYTER The BWC Gray Area - 11

1. Drones

Drones are remotely controlled unmanned aircrafts that represent a major leap
in war technology because a pilot on the ground can control a drone while
countries away from the target. 5 Drones are an emerging technology that create
challenges to international and human rights law. 6 Drones are currently being
used for warfare purposes by multiple countries, "such as Israel, the United
Kingdom, Australia and Germany." 77 In May of 2013, President Obama acknowl-
edged the use of drones by the United States of America for "lethal, targeted
action against Al Qaeda." 7 8
Dr. Nils Melzer, Senior Advisor and Senior Fellow of the Geneva Centre for
Security Policy, analyzed the implications of drones and how the EU should
respond to drones at the request of the European Parliament's Subcommittee on
Human Rights. 7 9 Dr. Melzer noted that drones are not specifically prohibited by
any treaty, but combinations of other weapons may conceivably violate a treaty,
such as the prohibition on biological weapons.8 0 Dr. Melzer also addressed
whether drones were prohibited based on a "nature to cause superfluous injury
or unnecessary suffering." 81 While Dr. Melzer acknowledged that concern over
that type of harm is one reason biological weapons are prohibited, he rejected
that drones have an inherent nature to cause such harm, but rather argued that
any excessive injury caused by drones is due to human error.8 2
Jaume Saura, Professor of International Law at the University of Barcelona,
has done research on the implications of drones in international law.83 Saura
advocates that drone strikes be looked at on a case by case basis to determine
whether they comply with international law, but notes that a "lack of transpar-
ency makes this scrutiny unfeasible."8 According to Saura, drones are not per

75 Jaume Saura, DRONE ATTACKS! OVERVIEW OF IMPLICATIONS OF THE USE OF UNMANNED AERIAL VEHICLES IN
INTERNATIONAL LAW 2 (2013), available at http://works.bepress.com/jaume-sauraestapa/1/.
76 Id.
77 See Nils Melzer, HUMAN RIGHTS IMPLICATIONS OF THE USAGE OF DRONES AND UNMANNED ROBOTS IN
WARFARE 8 (2013), available at http://www.gcsp.ch/Emerging-Security-Challenges/Programme-
News/GCSP-Senior-Adviser-Nils-Melzer-presents-study-on-Human-Rights-Implications-of-the-
Usage-of-Drones-and-Unmanned-Robots-in-Warfare-at-European-Parliament-in-Brussels.
78 The White House, Remarks of PresidentBarack Obama, Office of the Press Secretary (May 23,
2013), at 3, 3.
79 See generally Melzer, supra note 77.
80 Id. at 27.
81 Id. at 28.
82 Id.
83 See generally Saura, supra note 75.
84 Id. at 27-28.
12 - J. Wissinger DE GRUYTER

se illegal, but raise dual-use concerns as they can be for peaceful or military
purposes, and expressed concern over the unclear implications of categorizing
drone use as for defensive purposes. 5
Applying the definition of biological weapon created by the BWC language
and the COPs, a drone can be turned into a delivery device for biological agents,
which would include it in the scope of the BWC. BWC Article I specifically
includes delivery devices of biological weapons within the BWC scope. 6 As
included in UN Resolution 1540, the definition of delivery device includes
"unmanned systems capable of delivering ... biological weapons." 87 As noted
by Dr. Melzer, drones may be combined with a biological weapon, which would
be prohibited by the BWC.8 Thus, when drones are used as a delivery device of
biological weapons, they are prohibited by the BWC.

2. Biotechnology and Nanotechnology

The areas of biotechnology and nanotechnology have created concerns for the
prohibition of BWs, and received specific attention at the 2012 Meeting of States
Parties. 8 9 The combination of biological agents and nanotechnology results in
the emerging field of nanobiotechnologies. 90 The nanobiotechnology industry is
currently not regulated as are other labs dealing in biological agents due to fear
that the newly developing area would be unduly restrained; the risks are not
clearly understood, and there is not currently a federal agency tasked with
oversight and regulation of the specific industry. 9
'

The emerging area of biotechnology creates the ability to develop weapons

that can affect the biological features of humans. 9 2 These weapons could be
targeted to groups of people based on their biological features and could be very
difficult to detect and reverse the effects.9 3 However, they also have defensive

85 See id. at 27-29.

86 BWC, supra note 1, at art. I.
87 S.C. Res. 1540, supra note 36, at ¶ 1.
88 See Melzer, supra note 77, at 27.
89 See 2012 MSP, supra note 55, at 6 (listing nanotechnology as a specific field of development
the meeting focused on).
90 Victoria Sutton, BIOSECURITY LAw & POLICY 572 (2014).
91 Id.
92 Guo Ji-wei & Xue-sen Yang, Ultramicro, Nonlethal, and Reversible: Looking Ahead to Military
Biotechnology, MIL. REV. 75, 76 (2006).
93 See id.
DE GRUYTER The BWC Gray Area - 13

and scientific benefits 9 4 that are not prohibited uses, and thus implicate the
dual-use problem.
An argument that biotechnology is not included in the BWC scope has been
made by Guo Ji-wei, Director of the Department of Medical Affairs at Southwest
Hospital in Chongqing, People's Republic of China, and Xue-sen Yang, "a
biotechnology lecturer and writer". 9 5 Ji-wei and Yang focused on four scientific
breakthroughs that involve biotechnology, including the Human Genome
Project, Bioinformatics, Proteomics, and Transgenic Technology. 9 6 Ji-wei and
Yang view biotechnology as superior weapons that are distinct from biological
weapons.97 The qualities that make biotechnology based weapons superior,
according to Ji-wei and Yang, are the specificity, crypticity or difficulty to detect,
controllability, and the difficulty to prevent or reverse the effects of an attack.98
Ji-wei and Yang argue that military biotechnology is not the same as biological
weapons because the purpose of BWs is to create mass destruction while
biotechnological weapons have the ability to be specifically targeted. 99
Working from the premise that biotechnology is separate from BWs, Ji-wei and
Yang argue that the use of biotechnology is not currently clearly regulated and
needs to be brought within the scope of an existing international convention to
prevent misuse.' 00
On the other hand, Dr. Gregory D. Koblentz, Associate Professor in the
Department of Public and International Affairs and Deputy Director of the
Biodefense Graduate Program at George Mason University, argues that biotech-
nology does fall within the scope of the BWC.' 0 ' Representing the counter
argument, Dr. Koblentz's explanation for biotechnology being within the scope
of the BWC simply comes down to the broad catch-all language in Article 1.102
The BWC drafters included the prohibition of "other biological agents ... what-
ever their origin or method of production" to encompass the new technology
that they foresaw would be developed in the future.' 03 In addition to leaving the
door open for new technology to be included through broad language, the
"parties to the BWC have reaffirmed at each of the treaty's review conferences

94 See id.
95 Id. at 75.
96 Id. at 75-76.
97 Id. at 77-78.
98 Id.
99 Id. at 78.
100 Id.
101 See Koblentz, supra note 17, at 58.
102 Id.
103 Id.
14 - J. Wissinger DE GRUYTER

that Article I covers all recent developments in science and technology relevant
04
to biological weapons."
Biotechnology and nanotechnology may be used to create biological weap-
ons as applied to the BWC and COPs definition of biological weapon. The gene
targeted biotechnological weapon systems described by Ji-wei and Yang 05 are
clearly under the scope of the BWC as they implicate listed prohibited uses as
defined by the COPs, including use as incapacitating weapons, defeating the
target's immunity, and increasing disease susceptibility.' The distinctions
drawn by Ji-wei and Yang, distinguishing biotechnology from bioweapons and
thus placing them outside of the scope of the BWC, are not distinctions drawn by
the BWC language or the COPs. The extent of the destruction, whether mass
destruction or specifically targeted, is not a recognized distinction for BWC
scope.

3. Invasive Species

Another possible BW is the use of invasive species. 0 7 An invasive species is more

than just a nonindigenous species, but also causes some kind of threat such as
harming the natural balance of their new environment, causing an adverse
economic impact on the area, or harming humans or native animals.10
Invasive species can have seriously injurious effects on natural environments,
such as the Harlequin Ladybug, which is out-competing other native ladybug
species due to a parasite that the Harlequins host that harms and kills other
ladybug species.1 09
The effect of what would happen if someone harnessed this naturally occur-
ring damage caused by invasive species has been explored by Lawrence Roberge,
Professor and Researcher at Laboure College Boston who has written many

104 Id.
105 Ji-wei & Yang, supra note 92, at 76.
106 2012 MSP, supra note 55, at 15.
107 See Lawrence F. Roberge, Introduced Species as a Form of Bio Weapon (Aug. 2011)
(unpublished Ph.D. dissertation, Atlantic International University), available at http://www.
wnd.com/files/2011/10/AIU-DISSERTATION-ROBERGE-2011.pdf.
108 Robert J. Pratt, Invasive Threats to the American Homeland, XXXIV PARAMETERs 44, 45
(Spring 2004), available at http://strategicstudiesinstitute.army.mil/pubs/parameters/Articles/
04spring/pratt.pdf.
109 Andreas Vilcinskas, Kilian Stoecker, Henrike Schmidtberg, Christian R. Rihrich & Heiko
Vogel, Invasive Harlequin Ladybird Carries Biological Weapons Against Native Competitors, 340
Scl. 862, 862-63 (2013).
DE GRUYTER The BWC Gray Area - 15

articles and a doctoral dissertation on the threats that invasive species pose as
possible BWs." 0 Roberge argues that not only could invasive species, or non-
indigenous species (NIS), be used as BWs but that such use would be a clear
violation of the BWC.' The effects of using NIS as BWs could include "economic
damage; disease outbreaks to humans, livestock, or agricultural crops; cause
ecological damage to niches; and eventually create social unrest and panic in
populations." 2 Due to the inherent delay in the attack when NIS are used,
attribution may be difficult. Roberge emphasizes the importance of having a
procedure in place for early detection of NIS, including being able to quickly
rule out naturally occurring reasons for the presence of the new species. There
are factors that put an area at greater risk if they are attacked through NIS,
including "poor biosecurity (e.g. poor border control), limited resources to moni-
tor and eradicate NIS invasions, fragile ecosystems, limited biodiversity of a target
niche, nations dependent on single staple food crops, and poor communication
between scientific authorities and government law makers and regulatory
agencies."
In regard to the United States' specific vulnerability and preparedness for a
possible invasive species attack, Lieutenant Colonel Robert J. Pratt of the Illinois
Army National Guard analyzed the threat of invasive species used as BWs
against the United States of America and made recommendations to fix weak-
nesses in current defense strategies."5 Pratt expressed concern over the devas-
tating impact an invasive species attack could have on the U.S. due to lack of
preparation for such an event." 6 He compared a possible invasive species attack
to the unconventional attacks used on September 11, 2001 that caught the United
States vulnerable and off guard."' Pratt also noted that the Invasive Species
Management Plan is ineffective because it is "designed more to protect U.S.
agriculture from accidental introductions of invasive species than to counter
intentional, hostile introductions."" 8 Pratt called for improved preparation
against an intentional introduction of invasive species into the U.S. by creating
a system to quickly identify such introductions, having a management and

110 See Roberge, supra note 107.

111 Id. at 201.
112 Id. at 200.
113 Id. at 201.
114 Id.
115 See Pratt, supra note 108, at 44-61.
116 Id. at 59.
117 Id. at 60.
118 Id. at 59.
16 - J. Wissinger DE GRUYTER

control plan in place to quickly react and defend the country, and making
invasive species protection a focus of homeland security." 9
Whether invasive species as weapons fall within the scope of the BWC has
been answered by experts in the affirmative.1 2 0 However, invasive species have
not been addressed as a focus for the Meeting of States Parties or the BWC
Review Conferences. In the absence of clear inclusion of invasive species in the
BWC scope by the COPs, it is clear that there may be uses of invasive species that
could be considered to be within the BWC scope. Invasive species may be used
as delivery devices of biological weapons. An invasive species could be very
effective as a host for a biological weapon because the host can spread the
biological weapon to native species causing a devastating impact.

III. Recommendations
The broad exceptions to BW prohibition combined with the inherent dual
purpose nature of biological agents makes defining a biological agent as a
biological weapon prior to use very difficult. Biological agents have many
beneficial uses for vaccine development, defensive purposes, and scientific
and technological research. The importance of not restricting these beneficial
uses is expressly stated in Article X12' and has been emphasized by the State
Parties to the BWC.' 2 2 However, with intent of use of the biological agent as the
main determining factor for defining whether an agent is a BW or being used for
a peaceful purpose, the concern that arises is how to identify BWs prior to use.
Official amendments to the BWC are unlikely, and any sort of inspection to try to
determine intent of the actor is even more unlikely.1 2 3 The following recommen-
dations are made with consideration of these concerns and limitations.

A. Collaboration between States Parties

Voluntary enforcement by States Parties would be the most effective enforce-

ment mechanism. However, this trust based approach has inherent problems. As
suggested by the 2013 Meeting of States Parties, technological and scientific

119 Id. at 59-60.

120 Roberge, supra note 107, at 201.
121 BWC, supra note 1, at art. X.
122 2012 MSP, supra note 55, at 8.
123 See text discussion supra p. 4.
DE GRUYTER The BWC Gray Area - 17

advancements and information sharing between States Parties should be

encouraged and practiced by all States Parties.1 2 4 By being transparent about
the type of research and developments made by a State, the chances of other
States having clandestine BW programs in fear of other States having one is
decreased. 2 5 In addition, open exchange will help States to be voluntarily
accountable for complying with the BWC because other States can assist in
finding ways to keep dual-use biological agents within the permissive uses.
This exchange of information will especially assist developing countries in
scientific and technological development, which will aid in BWC compliance,
by increasing incentive to use safe methods for research and decrease motiva-
tion to cut corners.1 2 6
If States Parties took more measures to voluntarily comply, it would resolve
a lot of the concern over emerging technology that is difficult to label as a BW
until intent becomes obvious only after use. For example, using a case by case
approach to drones is problematic because the only determination that can be
made is after the attack. Thus, States Parties should take voluntary measures to
make sure that drones coming from their country are not being used for such
purposes.1 2 7

B. Cooperation between the CWC and the BWC

As noted at the 2012 Meeting of States Parties, technological and scientific

advancements are resulting in a trend of the overlap between chemistry and
biology.1 2 8 This hybrid of scientific developments can either further blur the line
between what is and what is not a biological weapon, or it can be used as an
opportunity to strengthen the BWC by collaborating with the CWC. As the 2013
Meeting of States Parties suggested, the BWC should collaborate with the CWC,
both in information sharing and implementation strengthening.1 2 9 Due to this
crossover of scientific fields, expert sharing is vital. Experts who regularly assist
the CWC should be invited to the BWC's Meeting of the Experts to give insight on
areas where their expertise in chemistry is needed to fully understand the effect
of new emerging technologies on the BWC. The BWC should create an advisory

124 2013 MSP, supra note 62, at 7.

125 See supra notes 30-32 and accompanying text.
126 See 2013 MSP, supra note 62, at 7.
127 See text discussion supra Part JJ.C.1, Drones.
128 2012 MSP, supra note 55, at 16.
129 2013 MSP, supra note 60, at 16-17.
18 - J. Wissinger DE GRUYTER

board that focuses on how to deal with the dual-use problems created by
technology that combines biology and chemistry.

C. Clear Interpretations and Suggestions from the Meeting

of States Parties

The next two Meetings of States Parties should continue to review the issue of
emerging technology in order to create clear interpretations and suggestions to
be considered at the Eighth Review Conference in 2016. Even though amend-
ments to the BWC language may be unlikely, a clear definition created by the
Meeting of States Parties and the Review Conference would be extremely per-
suasive and helpful in defining what is a BW under the BWC. The next Meeting
of States Parties should create a clear definition that defines each of the three
permitted uses of biological agents and what type and quantities of biological
agents have no justification for prophylactic, protective, or other peaceful pur-
poses. In addition, the Meeting of States Parties and the Eighth Review
Conference should include in their reviews of emerging technology a determina-
tion of which and how each new technology may be prohibited and what
measures should be taken to prevent prohibited use. There should also be an
objective intent determination test developed so that the sole determination of
use is not the expressed intent of the actor. This objective test would be aided by
a clear standard for what amount of a biological weapon crosses the line into
not being for a prophylactic, protective, or peaceful purpose.

D. Proactive Preparedness by Individual Countries

In recognition of the difficulty in defining the BWC scope and the problems and
constraints that have been discussed, all Member States should take a proactive
approach. If Member States have clear emergency action plans in place, and
early detection systems, then it will reduce the risk of Member States resorting to
secret BW programs that violate the BWC due to fears that other Member States
have programs.1 3 0
An example of preparation measures that should be taken revolves around
invasive species. Though the inclusion of invasive species as biological weapons
is unclear, it still provides an example of a possible source of an intentional

130 See supra notes 30-32 and accompanying text.

DE GRUYTER The BWC Gray Area - 19

attack that many States are unprepared for.' 3 ' States need to be aware of the
factors that put an area at greater risk, have early detection procedures in place
to detect and investigate invasive species, and a clear containment plan in place
if an invasive species attack occurs.1 32

IV. Condusion
The dual-use nature of biological agents, intent-based determination, and broad
permitted uses of the BWC creates a large gray area for biological agents to fall
in and makes determination of what is a biological weapon difficult. 3 3 The
clearest definition for a biological weapon appears after the weapon is used.
However, proactive determinations of biological weapons are important to fully
achieve the purpose of the BWC. Attempts to create inspection protocol in order
to create such a proactive approach have not been successful. 3 4 Due to the
highly controversial nature of the inspections proposal and the history of that
attempted modification to the BWC,13 5 any attempts to directly amend the BWC
language will likely not succeed. The importance of not restricting the beneficial
uses of biological weapons for both technological and scientific advancement
has been emphasized at the Meeting of States Parties,' 3 6 and is protected by
Article X of the BWC.
Assistance with defining biological weapons can be found through inter-
pretation of the meaning from outside sources interpreting the BWC Article I
language. Examples of such sources include international manuals and teaching
guides, the Meeting of States Parties Final Reports, and expert researchers'
reactions to specific biological advancements.
The trends in international manuals are a very inclusive definition that
absorbs newer forms of technology and a focus on the rationale behind prohi-
biting BW use. 3 8 The most common rationales include, preventing unnecessary
suffering and indiscriminate killing, the inhuman nature and excessive

131 See text discussion supra Part II.C.3, Invasive Species.

132 Id.
133 See text discussion supra Part I, Introduction to the BWC Gray Area.
134 Koblentz, supra note 17, at 70.
135 Id.
136 2012 MSP, supra note 55, at 8.
137 BWC, supra note 1, at art. X.
138 See generally INT'L Comm. RED CROSS, supra note 7.
20 - J. Wissinger DE GRUYTER

traumatic effect of BWs, and the likelihood for uncontrollable results that may
cause disproportionate civilian injury when BWs are used.' 3 9
The BWC Fifth Review Conference created the annual Meetings of the State
Parties, which have been renewed by each successive Review Conference, in
order to prepare for the next Review Conference.1 4 0 The 2012 Meeting of States
Parties reviewed enabling technologies and came to the conclusion that these
new and emerging technologies "require greater awareness rather than specific
action."' 4 ' The 2013 Meeting of States Parties noted possible solutions for
strengthening the BWC as heightened international cooperation between States
Parties, including dual-use research as a specific topic for the Convention, and
collaborating with the CWC.1 4 2 Collaboration between the CWC and BWC would
include learning from the Scientific Advisory Board of the CWC on reviewing
science and technology, increasing interactions between the experts from the
CWC and BWC, creating an advisory board similar to the CWC's Scientific
Advisory Board, and creating a working group that focuses on advances in
science and technology.
In response to the problems inherent in defining what a biological weapon
is within the scope of the BWC, there are four areas of action that should be
taken in order to reduce this BWC gray area. First, there needs to be heightened
collaboration between the States Parties to the BWC. States Parties should
voluntarily share technological and scientific advancements. Information shar-
ing and transparency of research involving biological agents is extremely impor-
tant and States Parties should keep communication open. Sharing information
with developing countries is especially important. Second, there needs to be
cooperation between the CWC and the BWC. The trend of biology and chemistry
merging in scientific developments makes expert sharing important, and creates
the need for a BWC advisory board focused on the implications of dual-use
technology that involves both sciences. Third, the Meeting of States Parties
should develop clear standards and definitions to assist in the determination
of the BWC scope as applied to the definition of biological weapons. A clear
definition of prophylactic, protective, and peaceful purposes should be created,
as well as a clear line for what types and quantities of biological agents do not

139 Id.
140 Fifth Review Conference (Nov. 19-Dec. 7, 2001) & (Nov. 11-22, 2002), Final Document, 21,
BWC/CONF.V/7 (Jan. 13, 2012), available at http://www.unog.ch/80256EE600585943/%
28httpPages%'o29/2796BFD7ADDD08C9C125772800331B63?OpenDocument.
141 2012 MSP, supra note 55, at 15.
142 2013 MSP, supra note 62, at 16.
143 Id.
DE GRUYTER The BWC Gray Area - 21

fall into a justified use. In addition, an objective intent determination test should
be developed to remedy the problems with an intent only test. Fourth, individual
states should create clear emergency action plans and early detection systems
for BW attacks.
Additional attention to the BWC gray area can help to reduce the problems
created by such broad language, an intent-based test, and the dual-use nature of
biological agents.