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33 Fordham International Law Journal 858 (2010)
A TINY PROBLEM WITH HUGE IMPLICATIONS—
NANOTECH AGENTS AS ENABLERS OR
SUBSTITUTES FOR BANNED CHEMICAL
WEAPONS: IS A NEW TREATY NEEDED?
Evan J. Wallach*
“[T]he Law of Nations . . . allows not the taking the Life of an Enemy,
by Poison; which Custom was established for a general Benefit, lest
Dangers should be increased too much. . . . Humanity, and the Interests
of [the] Parties, equally require it; since Wars are so frequent and . . .
the Mind of Man, ingenious in inventing Means to do hurt . . . .”
—Hugo Grotius1
INTRODUCTION
In 2005, the U.S. Army’s Environmental Policy Institute
(“AEPI”) posed a scenario and a question. The AEPI offered this
provocative picture of future combat:
Consider this scenario: A column of soldiers moves
through the close confines of a city. Because of the potential
for hostilities, the soldiers are maintaining a MOPP2
level 2
* Judge, United States Court of International Trade; Adjunct Professor of Law,
New York Law School; Adjunct Professor of Law, Brooklyn Law School; Visiting
Professor of Law, University of Munster; Honorary Fellow, Hughes Hall College,
University of Cambridge. The views expressed herein are solely the Author’s and
do not
represent those of any entity or institution with which he is affiliated. This
Article was
prepared with research assistance from Bebhinn Dunne, N.Y.U. Law School, LL.M
2009;
Alexandra Folie, N.Y.U. Law School, LL.M 2009; Nancy Hull, N.Y.U. Law School,
J.D.
2009; Donna Lyons, N.Y.U. Law School, LL.M 2009; Alexander Marmar, Columbia Law
School, J.D., 2010; and Kamal Siddhu, Columbia Law School, J.D. 2010. Particular
credit
is due to David H.P. Lee, University of Michigan, J.D. 2011, for a full summer
of research
on Post-World War I treaty making and politics. The Author wishes to especially
thank
Neysa Call and the staff of U.S. Senator Harry Reid for extraordinary assistance
in
nanotechnology research.
1. 3 HUGO
GROTIUS,
THE
RIGHTS
OF
WAR
AND
PEACE
567, 567 n.XV(1) (Jean
Barbeyrac ed., Lawbook Exchange, Ltd. 2004) (1625).
2. Mission-oriented protective posture, or “MOPP” as it is commonly referred, is
a
military acronym that is used to specify different levels of protective gear
that personnel
wear in toxic environments.
See
U.S. ARMY,
THE
WARRIOR
ETHOS
AND
SOLDIER
COMBAT
SKILLS
13-10,
§
13-26, Field Manual No. 3-21.75(FM21-75) (Jan. 28, 2008),
available at
2010]
NANOTECH AGENTS
859
posture and chemical detectors are deployed in the column.
Suddenly from the surrounding rooftops, there are gunshots
and a number of canisters are hurled off the roof tops.
Within moments, portions of the column are enveloped in
hazy cloud and within a minute or so the soldiers closest to
the canisters are twitching and salivating uncontrollably and
even those soldiers who were able to don their protective
masks and gloves are showing the same symptoms. Soldiers
from the rear of the column move forward having easily
cleared the roof tops with automatic weapons fire in an effort
to aid their comrades. Although the chemical agent
detectors show no evidence of conventional chemical agents,
they administer nerve agent antidotes in accordance with
their training, but the victims worsen and quickly die. Within
a few minutes, even the fully garbed soldiers find themselves
salivating beyond control and trembling. Soon, they too are
dead; the chemical agent detectors remain silent.
What happened here is but one possible result of
nanotechnology harnessed to do the will of terrorists.
Traditional chemical agents are largely prohibited by treaty
or agreement and the precursors of traditional agents can be
tracked. As nanotechnology advances, it will be possible to
design materials that act like chemical agents, in this case a
cholinesterase blocking agent, but
are not classed as chemical
agents under any existing protocol,
do not trigger existing
chemical agent detectors and in any case do not respond to
known nerve agent antidotes and, because of their small size,
can penetrate protective fabrics and even mask filters.3
https://rdl.train.army.mil/soldierPortal/atia/adlsc/view/public/24572-1/fm/3-21.75/
fm3_21x75.pdf. The MOPP system designates four levels of increasing protection
that
are designed to be commensurate with the environmental risk. For a graphical
representation of the different levels, see U.S. AIR
FORCE,
MISSION-ORIENTED
PROTECTIVE
POSTURES
(MOPP), No. AFVA32-4012 (Feb. 1, 1998),
available at
http://www.fas.org/nuke/guide/usa/doctrine/usaf/32401200.pdf.
3. JOHN
P. MCGUINNESS,
ARMY
ENVTL.
POLICY
INSTIT.,
NANOTECHNOLOGY:
THE
NEXT
INDUSTRIAL
REVOLUTION—MILITARY
AND
SOCIETAL
IMPLICATIONS
20 (2005),
available at
http://www.aepi.army.mil/internet/nanotech-industrial-revolution.pdf
(emphasis added). The United States Army’s Environmental Policy Institute’s
(“AEPI”)
assumption here appears to be that the nanomaterials used in the scenario are
something other than the chemical agents and their precursors listed in the
Chemical
Weapons Convention (“CWC”).
See
discussion
infra
Part I. Rather, they “act like”
chemical agents. The AEPI seems to be describing only one potential type of
nanoweapon—a device which mimics the effects of chemicals on the human body by
means other than a direct chemical reaction. These devices are what the AEPI
calls
“nanomachines” in its recommendations section.
See id.
at 27.
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FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
In short, the AEPI posited that nanomaterials which mimic
banned chemical agents (“nanomimics”)4
might be developed
and used in combat. The Institute recommended that someone
should determine “if nanomachines are chemical weapons under
the provisions of the Chemical Weapons Convention.”5
This
Article attempts to do exactly that.6
The results are interesting
and, in most instances, very clear. Existing treaties certainly cover
both nanoparticles of banned chemical weapon materials and
4. This Article uses the word “nanomimic” to refer to devices that causes the
same
result as a banned poison, toxin or other chemical substance. In biology,
mimicry occurs
when one species imitates another.
See
WOLFGANG
WICKLER,
MIMICRY
IN
PLANTS
AND
ANIMALS
8 (R.D. Martin trans., 1968). Batesian mimicry,
is thought to occur when a rare harmless species evolves to resemble closely an
abundant noxious model. It gains protection from its predators which cannot
tell the difference between model and mimic, and since they tend to
encounter models rather than mimics when searching for food, they associate
the colour pattern of the model with the nasty experience, and tend to avoid it
in future.
FRANCIS
GILBERT,
THE
EVOLUTION
OF
IMPERFECT
MIMICRY
IN
HOVERFLIES
1 (2004),
available at
http://eprints.nottingham.ac.uk/96/1/ImperfectMimicry.pdf. Hoverflies
that resemble bees or wasps are an example.
See id.
at 4–5. In Mullerian mimicry,
“several noxious species evolve to resemble each other, and hence all benefit by
a
reduction in predation.”
Id.
at 1.
5. MCGUINNESS,
supra
note 3, at 27.
6. In a broad sense, the question was raised even earlier by a professor of
engineering at West Point:
The importance of ethics and professional responsibility in engineering design
cannot be overemphasized when weapons of mass destruction can be
inexpensively and straightforwardly created by anyone with modest specialized
knowledge and equipment. Arms control style agreements offer one option for
halting the spread of dangerous technology applications, but these agreements
will not include non-state terrorist and radical militant groups. However, arms
control treaties would still be important tools to restrain the dark side of
emerging technologies, and the Army could provide the prime forces for
verification of compliance with international treaties and agreements. In the
case of non-state sponsored militant groups, the Army could find itself a major
Homeland Defense Force team member, working closely with intelligence
organizations to enforce United Nations sanctioned ethical standards and
controls on research into unmistakably dangerous technologies; including
infectious biotechnology products, malicious information technology viruses,
and other nefarious weapons.
Col. Kip Nygren,
Emerging Technologies and the Army,
AMPTIAC
Q., Spring 2002, at 15. As
described by the U.S. government, “[t]he Advanced Materials, Manufacturing, and
Testing Information Analysis Center (AMMTIAC) is the [U.S. Department of
Defense’s]
Center of Excellence responsible for acquiring, archiving, analyzing,
synthesizing, and
disseminating scientific and technical information related to advanced
materials,
manufacturing, and testing.” Advanced Materials, Manufacturing, and Testing
Information Analysis Center, http://ammtiac.alionscience.com/about/ (last
visited Apr.
3, 2010).
2010]
NANOTECH AGENTS
861
nano-sized devices designed to carry such particles.7
Because,
however, answers regarding potential development of
nanomimics are not entirely clear,8
the recommendation of this
Article is that states parties9
may wish to amend the 1993
Chemical Weapons Convention (“CWC”)10
to clearly cover as yet
undeveloped nanomachines.11
Nanotechnology is a relatively new field of knowledge
studying and applying the development and application of very
small particles of matter.12
While it has implications across a wide
range of science including chemistry, physics, and biology,13
it is
7. As will be discussed below, chemical carriers will certainly be duel use;
they are
currently being publicly developed and deployed for medical treatment,
particularly in
oncology.
See infra
Part I.C.
8. Although, as this Article demonstrates, a legal argument for noncoverage of
nanomimics by existing treaties requires an interpretation of the law at least
at the edge
of bad faith.
9. This Article is directed to whether states are bound under international law,
and
whether certain conduct by them might constitute war crimes. Several of the
scenarios
and discussions cited mention the possibility of using chemical weapons by
terrorists.
This Article does not deal directly with actions by terrorists, but since, in
any definition,
terrorists are nonstate actors, and generally commit what would be war crimes if
committed by a state, the analysis is perfectly applicable, albeit in a
multistep fashion.
See, e.g.,
International Convention for the Suppression of the Financing of Terrorism,
Dec. 9, 1999, S. TREATY
DOC.
NO.
106-49 (2000), 2178 U.N.T.S. 229; International
Convention for the Suppression of Terrorist Bombings, Dec. 15, 1997, S. TREATY
DOC.
NO.
106-6 (1999), 2149 U.N.T.S. 256; Convention for the Prevention and Punishment of
Terrorism, Nov. 16, 1937, 19 L.N.O.J. 23; Declaration on Measures to Eliminate
International Terrorism, G.A. Res. 49/60, Annex, U.N. Doc. A/RES/49/60 (Feb. 17,
1995),
supplemented by
Declaration to Supplement the 1994 Declaration on Measures to
Eliminate International Terrorism, G.A. Res. 51/210, Annex, U.N. Doc.
A/RES/51/210
(Dec. 17, 1996).
10. Convention on the Prohibition of the Development, Production, Stockpiling
and Use of Chemical Weapons and on Their Destruction,
opened for signature
Jan. 13,
1993, S. TREATY
DOC.
NO.
103-21 (1993), 1974 U.N.T.S. 45 [hereinafter Chemical
Weapons Convention].
11.
See generally
Ralf Trapp,
Advances in Science and Technology and the Chemical
Weapons Convention,
ARMS
CONTROL
TODAY,
Mar. 2008 (raising, inter alia, the possible
need for convention modifications). As to whether nanomachines are feasible, see
infra
Part I.A.
12.
See generally
J. CLARENCE
DAVIES,
WOODROW
WILSON
INT’L
CTR.
FOR
SCHOLARS,
OVERSIGHT
OF
NEXT
GENERATION
NANOTECHNOLOGY
(2009),
available at
http://207.58.186.238/process/assets/files/7316/pen-18.pdf.
13. Except for the implications of nanobots, which as will be seen below, might
involve some living parts, this Article does not extensively examine the
separate
biological aspects of nanotechnology and its interplay with the Biological
Weapons
Convention of 1972.
See
Convention on the Prohibition of the Development, Production
and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their
Destruction, Apr. 10, 1972, 26 U.S.T. 583, 1015 U.N.T.S. 163 [hereinafter
Biological
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FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
widely regarded as crossing many of the traditional scientific
boundaries of those fields of study.14
Nanotechnology is of
particular interest to students of law and warfare15
in three
respects: First, nanoparticles of known chemical warfare agents
or precursors to those agents may have different effects on
protective gear and on human physiology than conventionally
sized particles of those agents.16
Second, nano-sized carriers,
similar to those currently under development for
chemotherapy,17
may deliver target doses of chemical agents to
targeted cells in the human body.18
Third, speculative19
literature
predicts that the eventual production of robots on the nanoscale
will be possible some day.20
In effect, these nanoscale robots
would enter the human body, penetrate cells, and cause them to
act in a fashion similar to the effects of currently banned
chemical weapons.21
The underlying thesis of this Article is that while smallersized
particles and separate nano-sized carriers of known agents
are clearly covered by the CWC, nanomimics are not as squarely
within the relevant provisions. The bulk of this Article deals with
that question. In light of that analysis, however, it is important to
Weapons Convention]. The analysis, while analogous, has other implications
simply
outside the scope of this Article. Additional research in the field might prove
fruitful for
further study.
14. DAVIES,
supra
note 12, at 16.
15. There are, of course, numerous other regulatory interests including, inter
alia,
environment, health, safety, and trade.
See generally
JENNIFER
PELLEY
& MARC
SANER,
REGULATORY
GOVERNANCE
INITIATIVE,
CARLETON
UNIV.,
INTERNATIONAL
APPROACHES
TO THE
REGULATORY
GOVERNANCE
OF
NANOTECHNOLOGY
(2009),
available at
http://www.carleton.ca/regulation/publications/Nanotechnology_Regulation_Paper_
April2009.pdf.
16. MCGUINNESS,
supra
note 3, at 20.
17.
See
discussion
infra
Part I.C.
18.
See infra
notes 80–81 and accompanying text.
19. Many reputable scientists reject such speculation as purely “science
fiction.”
See
infra
note 89 and accompanying text. This Article addresses the issue both because the
U.S. Army has raised the question, and because history has shown that humanity’s
destructive impulses are often the most fruitful for the progress of scientific
knowledge.
Note particularly the discussion below of speculation and arguments about the
possibility of new chemical and biological weapons before the adoption of
treaties in the
1920s. Many of the most pessimistic scientific speculations at the time proved
true.
See
discussion
infra
Part II.A.
20.
See generally
Daniel Harris,
Will Robots Come To Our Medical Rescue?,
ELECTRONIC
DESIGN,
Aug. 16, 2007, at 28 (discussing how nanorobots can enter the human body to
provide medical care).
21.
See id.
2010]
NANOTECH AGENTS
863
recognize that the CWC incorporates the 1925 Geneva Gas
Protocol,22
which prohibits, in part, that “the use in war of
asphyxiating, poisonous or other gases, and of
all analogous
liquids, materials or
devices.”23
An extremely strong argument can
therefore be made that the CWC facially bans nanomimics. That
argument, however, depends on the intention of the states
signatory to the treaties.24
In determining the intention of a
party, recourse may be had to the drafting history and working
papers, contemporaneous general commentary by the legal
community and the press, the events of the recent history before
the treaty was signed, and, of course, signing statements and
reservations.25
Some of that material is, however, mixed,
contradictory, vague, lost, or was intentionally omitted in original
22. Chemical Weapons Convention,
supra
note 10, pmbl, art. XIII. The Biological
Weapons Convention (“BWC”) incorporates the 1925 Geneva Protocol as well.
Biological Weapons Convention,
supra
note 13, pmbl., art. XVIII. Interestingly, the U.S.
Senate ratified both the BWC and the Geneva Protocol on the same day, December
16,
1974.
See
S. EXEC.
REP.
NO.
93-35 (1974); S. EXEC.
REP.
NO.
93-36 (1974). At the signing
ceremony on January 22, 1975, President Gerald Ford described the ratification
as
“completing a process which began almost 50 years ago when the United States
proposed at Geneva a ban on the use in war of ‘asphyxiating, poisonous or other
gases’”
and stated that “the United States has long supported the principles and
objectives of
the Geneva Protocol.” Gerald Ford, U.S. President, Geneva Statement on the
Protocol
of 1925 and Biological Weapons Convention, 72 DEP’T
ST.
BULL.
567 (1975).
23. Protocol for the Prohibition of the Use in War of Asphyxiating Poisonous or
Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T.
571,
94 L.N.T.S. 65 [hereinafter Geneva Protocol] (emphasis added). The BWC generally
covers both poisons and toxins. Poison in its common usage refers to “any
substance
that, when
relatively small amounts
are ingested, inhaled, or absorbed, or applied to,
injected into, or developed within the body,
has chemical action
that causes damage to
structure or disturbance of function, producing symptoms, illness, or death.”
W.B.
SAUNDERS,
DORLAND’S
ILLUSTRATED
MEDICAL
DICTIONARY
1502 (31st ed. 2007)
(emphasis added). A toxin, on the other hand, is defined as “a poison,
frequently used
to refer specifically to a protein produced by some higher plants, certain
animals, and
pathogenic bacteria, which is highly toxic for other living organisms. Such
substances
are differentiated from the simple chemical poisons and the vegetable alkaloids
by their
high molecular weight and antigenicity.”
Id.
at 1968.
24.
See
Vienna Convention on the Law of Treaties art. 31, May 23, 1969, 115
U.N.T.S. 331 [hereinafter Vienna Convention];
see also, e.g.,
Factor v. Laubenheimer,
290 U.S. 276, 293 (1933) (“Considerations which should govern the diplomatic
relations
between nations, and the good faith of treaties, as well, require that their
obligations
should be liberally construed so as to effect the apparent intention of the
parties to
secure equality and reciprocity between them.”).
25.
See
Vienna Convention,
supra
note 24, art. 32.
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FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
publications.26
It is, in short, a law professor’s nirvana, for it
leaves room for endless analytical speculation.
Despite the invitation to woolgather, this Article is limited to
the tightest possible analytical approach. Part I begins with
definitions of chemical and biological agents within existing
treaties, and of nanoproducts, including those existing beyond
presently-known technical capabilities, but which are at least
reasonably conceivable (“nanobots”).27
Part II provides an
overview of treaty law that is potentially applicable to nanobots. It
first examines current treaties that are facially applicable to
nanoproducts. Because of the possibility that the “all analogous
26. For example, in his introductory comments at the 1922 Naval Conference
former U.S. Secretary of State Elihu Root stated that the language introduced by
the
U.S. delegation was borrowed from the Treaty of Versailles, which ended World
War I
between most of the Allies and Germany.
See
Edwin James,
Hughes Proposes Gas Ban,
N.Y.
TIMES,
Jan. 7, 1922, at 1. In fact, the U.S. proposal did substantially track the
language of
the Treaty of Versailles, but it also differed in respects vital to this
analysis from the other
treaties ending the Great War with Austria, Hungry, Bulgaria, and Turkey.
See
RAYMOND
L. BUELL,
THE
WASHINGTON
CONFERENCE
207–09 (1922). Was Root intentionally
misleading the conferees, did he honestly miss the distinctions, or did he
recognize
them, but think they were so unimportant as to not be worth mentioning? All
those
questions have a bearing on the analysis in this article and on future
applications of the
treaty banning chemical weapons on the 21st Century.
See
discussion
infra
Part
II.A.1.d.ii.
27. It has been suggested that the term “nanobots” is inherently misleading, and
that a more accurate phrase is “enhanced nanomaterials.” Another suggestion was
that,
for the purposes of this Article, “nanobots” are indistinguishable from
specifically
engineered viruses. The Author disagrees that the term “nanobots” has no
utility, but
acknowledges that clearly it is fraught with discord. One problem in the area is
that
there are some assumptions based on prior speculation, initially envisioned by
Kim Eric
Drexler, about what is essentially self-replication of nano-sized machines.
See
K. ERIC
DREXLER,
ENGINES
OF
CREATION:
THE
COMING
ERA
OF
NANOTECHNOLOGY
53–63 (1987).
The dispute is fascinating, and beyond the Author’s capacity as a layman in the
field of
nanotechnologyto evaluate, but it is largely irrelevant to the question posed by
the AEPI
that is answered here. “Nanobot” for purposes of this Article is a device on the
nanoscale which is capable of mimicking the effect of chemical nerve agents,
see
discussion
infra
Part I.A.4, but is neither a product of chemical processes, nor a
biological agent as banned by the BWC.
See
discussion
infra
Part IV.A.3. This Article will
therefore not address other pertinent critiques of the term, particularly those
related to
Brownian motion (movement of particles suspended in fluid), and the numbers of
individual devices which might be necessary to constitute a lethal dose. It
bears note,
however, that the speculation in this Article is largely based on assumptions
emerging
from medical research, particularly in the field of cancer research.
See
discussion
infra
Part I.C. In any case, when one deals with potential weapons development it is
always
wise to err on the side of expecting the worst, for “[t]here are more things in
heaven
and earth, Horatio, than are dreamt of in your philosophy.” WILLIAM
SHAKESPEARE,
HAMLET,
act 1, sc. 5.
2010]
NANOTECH AGENTS
865
. . . devices” language of the 1925 Geneva Protocol28
bans
nanobots, the Article examines very closely the origin,
application, and meaning of that language. A close inspection
necessarily involves considerable discussion of pre-1914 treaties,
as well as the battles, weapons, tactics, and legal analyses in World
War I, and the mass reaction to them, which resulted in a series
of treaties implicating chemical weapons after the war ended.
Part II then looks briefly at other treaties, conventions, and
doctrines of international law that may impact the use of
nanobots. Part III briefly examines current theories regarding
good faith treaty interpretation and their implications for the
utilization of antique (but not necessarily antiquated) doctrines
and documents to interpret current law. Part IV then applies the
current treaties to nanoproducts, both existing and potential, in
light of the preceding discussion, and then turns to a discussion
of whether a new treaty, or modifications or clarifications to
existing treaties, are advisable.
I.
CURRENT DEFINITIONS OF CHEMICAL AGENTS,
BIOLOGICAL AGENTS, AND NANOSYSTEMS
The most modern sources of law controlling the acquisition
and use of chemical and biological weapons are the 1972
Biological Weapons Convention (“BWC”)29
and the 1993 CWC.30
Given past experiences, the drafters of the more recent
conventions relating to biological and chemical weapons were
specific in their coverage.31
Accordingly, current law quite
explicitly bans “[m]icrobial 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” and “[w]eapons, equipment or
means of delivery designed to use such agents or toxins for
28.
See
Geneva Protocol,
supra
note 23 and accompanying text.
29.
See
Biological Weapons Convention,
supra
note 13.
30.
See
Chemical Weapons Convention,
supra
note 10.
31. As will be discussed below, the history of arms control treaties is often
also a
history of their evasion.Often, that evasion was justified by what the evading
party
characterized as distinguishing factors of the weapon that it used.
See, e.g.,
infra
Part
II.A.1.c (discussing Germany’s use of chlorine gas in 1915).
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FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
hostile purposes or in armed conflict.”32
It is also unequivocal in
its prohibition of
all
chemical weapons.33
It is particularly important to note that the CWC covers any
“chemical which through its chemical action on life processes
can cause death, temporary incapacitation or permanent harm to
humans or animals . . . regardless of their origin or of their
method of production.”34
Accordingly, a broad class of current or
immediately potential nanoproducts may be covered by the
32. Biological Weapons Convention,
supra
note 13, art. I(1)–(2).
33.
See
Chemical Weapons Convention,
supra
note 10, art. I. The CWC contains a
very specific definition of “chemical weapons”:
(a) Toxic chemicals and their precursors, except where intended for
purposes not prohibited under this Convention, as long as the types and
quantities are consistent with such purposes;
(b) Munitions and devices, specifically designed to cause death or other
harm through the toxic properties of those toxic chemicals specified in
subparagraph (a), which would be released as a result of the employment of
such munitions and devices;
(c) Any equipment specifically designed for use directly in connection
with the employment of munitions and devices specified in subparagraph (b).
Id.
art. II(1). “Toxic chemicals” are defined with a similar level of specificity:
Any chemical which through its chemical action on life processes can cause
death, temporary incapacitation or permanent harm to humans or animals.
This includes all such chemicals, regardless of their origin or of their method
of production, and regardless of whether they are produced in facilities, in
munitions or elsewhere.
Id.
art. II(2). The CWC is written broadly enough to cover existing and undiscovered
applications and substances. The continuing work of the Organization for the
Prohibition of Chemical Weapons demonstrates that this level of breadth was
intended
by the drafters.
See
discussion
infra
Part IV.A.3.b;
see also
S. TREATY
DOC.
NO.
103-21, at 8
(1993) (“The intention of this broad definition [of chemicals] is to prohibit
all known
and unknown, and future toxic chemicals in types and quantities that cannot be
justified
for permitted purposes”).
But cf.
Robert Pinson,
Is Nanotechnology Prohibited By the
Biological and Chemical Weapons Conventions?,
22 BERKELEY
J. INT’L
L. 279, 294 (2004)
(arguing that it may be possible to use nanotechnology for conventional weapon
purposes under the broad exceptions permitted by the CWC).
34. Chemical Weapons Convention,
supra
note 10, art. II(2). The CWC’s definition
of chemical weapons differs from the way other international agreements define
weapons. Typically, “a weapon is usually considered to be the entirety of its
components,
and characterized by certain more or less objective criteria . . . that would
allow for
distinction between those types of weapons covered by the treaty and those not
covered . . . .” WALTER
KRUTZSCH
& RALF
TRAPP,
A COMMENTARY
ON THE
CHEMICAL
WEAPONS
CONVENTION
23 (1994). Under the CWC, by contrast,“ each of the
components of a chemical weapons system in itself
already has to be regarded as the
prohibited weapon.”
Id.
at 24 (emphasis added);
see also
WALTER
KRUTZSCH
AND
RALF
TRAPP,
VERIFICATION
PRACTICE
UNDER THE
CHEMICAL
WEAPONS
CONVENTION
(1999)
(commenting on the verification provisions under the CWC).
2010]
NANOTECH AGENTS
867
CWC; others might not. To comprehend potential applications
one must first understand the language of nanotechnology.35
A.
Nanotechnology and Molecular Nanotechnology
Nanotechnology is, broadly put, the science of the very
small. In
Military Nanotechnology,
Jurgen Altmann states that
nanotechnology, including nanoscience, “is about investigating
as well as manipulating matter on the atomic and molecular
level. At this level, the borders between the disciplines physics,
chemistry, [and] biology vanish, including their sub-,
intermediate and applied fields, such as materials science,
mechanics, electronics, biochemistry, genetics, [and]
neurology.”36
A useful discussion of general concepts is found in
Nanotechnology and Homeland Security:
[Nanotechnology] is the application of nanoscience to useful
devices. Nanoscience . . . is the science that deals with objects
with at least one dimension between one and one hundred
nanometers in length, a size range called the nanoscale. A
nanometer is one one-billionth of a meter . . . . [W]hy does
[nanoscience] get so much hype, and why is it so important
for national defense and national security? The first reason is
that nanoscale objects . . . are a special kind of small.
Individual atoms are around one-fifth of a nanometer. The
size of almost all molecules . . . lies within the nanoscale,
because it is the smallest level within which functional matter
can exist . . . . This means that . . . we can make materials
whose amazing properties can be defined in absolute terms
[and] it is the scale at which the quirky quantum mechanical
properties of matter and its more familiar mechanical
properties (such as hardness, temperature and melting
point) meet. At the nanoscale it is possible to take advantage
of both sets of properties . . . .37
35. Some useful terminology may be found in Classification Order 1850. Patent &
Trademark Office, U.S. Dep’t of Commerce, Classification Order 1850 (2005),
available
at
http://www.uspto.gov/web/offices/opc/documents/1850.pdf (providing search
criteria for nanotechnology patent research).
36. JURGEN
ALTMANN,
MILITARY
NANOTECHNOLOGY,
POTENTIAL
APPLICATIONS
AND
PREVENTIVE
ARMS
CONTROL
1 (2006).
37. DANIEL
RATNER
& MARK
A. RATNER,
NANOTECHNOLOGY
AND
HOMELAND:
NEW
WEAPONS
FOR
NEW
WARS
SECURITY
13–14 (2004).
868
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[Vol. 33:858
Certainly, there is a great deal of current military interest in
nanotechnology38
and an equal amount of excitement, if not
money, in the medical realm.39
Indeed, medical research has
overlapping applicability of considerable interest:
38. Nanotech research projects are being conducted at, inter alia, the
Massachusetts Institute of Technology’s Institute for Soldier Nanotechnologies,
the U.S.
Army’s Future Force Warrior program, the UK’s Future Infantry Soldier Technology
project, Germany’s Projekthaus System Soldat, and Italy’s Soldato Futuro
initiative.
See
The March of Technology,
ECONOMIST,
June 10, 2006, at 30 (discussing each of these
programs);
see, e.g.,
DIR.,
DEF.
RESEARCH
AND
ENG’G,
U.S. DEP’T
OF
DEF.,
DEFENSE
NANOTECHNOLOGY
RESEARCH
AND
DEVELOPMENT
PROGRAM
3 (2007),
available at
http://www.nano.gov/html/res/DefenseNano2005.pdf (explaining that the objective
of
defense nanotechnology programs is “[t]o discover and exploit unique phenomena
at
these dimensions to enable novel applications enhancing war fighter and battle
systems
capabilities.”); JUN
WANG
& PETER
J. DORTMANS,
DEP’T
OF
DEFENCE,
A REVIEW
OF
SELECTED
NANOTECHNOLOGY
TOPICS
AND
THEIR
POTENTIAL
MILITARY
APPLICATIONS
22
(2004) (Austl.),
available at
http://www.dsto.defence.gov.au/publications/2610/DSTOTN-
0537.pdf (noting “the concept of nanobots needs to advance beyond the drawing
board before being considered within feasible technology concepts.”); Lothar
Ibrugger,
North Atlantic Treaty Organization,
The Security Implications of Nanotechnology,
179
STCMT 05 E, (2005) (discussing military applications of nanotechnology);
Chapelle
Brown,
Nanotech Goes to War,
EE TIMES,
Aug. 25, 2003, http://www.eetimes.com/story/
OEG20030825S0017 (providing an overview of the Massachusett Institute of
Technology’s Institute for Soldier Nanotechnologies); Barnaby J. Feder,
Frontier of
Military Technology Is the Size of a Molecule,
N.Y. TIMES,
Apr. 8, 2003, at C2 (quoting from
U.S. Deputy Under Secretary of Defense with the Office of Basic Research at the
Defense Department that “[n]anotechnology will eventually alter warfare more
than the
invention of gunpowder”); David Hambling,
Nanotechnology Goes to War,
GUARDIAN
(London), Mar. 5, 2009, at 6 (considering military applications of
nanotechnology
warfare); Stefan Nitschke,
Nanotechnology: Applications for Naval Warfare,
26 NAVAL
FORCES
36 (2005) (same).
39.
See, e.g.,
Robert Austin & Shuang-fang Lim,
The Sackler Colloquium on Promises
and Perils in Nanotechnology for Medicine,
105 PROC.
NAT’L
ACAD.
SCI.
U.S. 17217, 17218
(2008) (contemplating the potential application of nanotechnology in medicine);
Adriano Cavalcanti et al.,
Medical Nanorobotics for Diabetes Control,
in
4 NANOMEDICINE:
NANOTECHNOLOGY,
BIOLOGY,
AND
MEDICINE
127, 127–35 (2008) (same, with respect to
diabetes); Adriano Cavalcanti et al.,
Nanorobot Hardware Architecture for Medical Defense,
8
SENSORS
2932, 2947 (2008) (proposing mass embedded nanorobots with chemical
sensors for early epidemiological detection, and which apparently does not
consider the
potential public reaction to perceived government intrusion); James R. Heath et
al.,
Nanomedicine Targets Cancer,
300 SCI.
AM.,
44, 44–51 (2009) (reviewing the mechanics of
nanoscale cancer monitoring systems); Tom C. Thomas & Rachelle Acuna-Narvaez,
The
Convergence of Biotechnology and Nanotechnology: Why Here, Why Now?,
12 J. COM.
BIOTECHNOLOGY
105, 105–08, (2006) (“[N]anomaterials and devices can be built at the
same size as cell components, making them ideal for interacting with individual
molecules.”). Additionally, nanomaterials and devices are ideal for as well as
the
chemical delivery value of tree branched nanomaterials called “dendrimers.”
Thomas &
Acuna-Narvaez,
supra,
at 108;
see also
Giorgia Guerra,
A Model for Regulation of Medical
Nanobiotechnology: The European Status Quo,
3 NANOTECHNOLOGY.
L. & BUS.
84 (2006)
2010]
NANOTECH AGENTS
869
Nanoscale devices and nanoscale components of larger
devices are of the same size as biological entities. They are
smaller than human cells (10,000 to 20,000 nanometers in
diameter) and organelles and similar in size to large
biological macromolecules such as enzymes and receptors—
hemoglobin, for example, is approximately 5 nanometers in
diameter . . . .
Nanoscale devices smaller than 50 nanometers can
easily enter most cells,
while those smaller than 20 nanometers
can transit out of blood vessels, offering the possibility that
nanoscale devices will be able to penetrate biological barriers
such as the blood—brain barrier . . . [a]nd because of their
size,
nanoscale devices can readily interact with biomolecules on
both the cell surface and within the cell
. . . .40
Why does this medical research matter in warfare?41
A basic
understanding of some concepts of physiology, chemistry,
biochemistry, and history is important to fully appreciate its
relevance.42
An underlying concern of those who fear use of
(pointing out the difficulty of classifying nanotechnology within the current
legal
regulatory hierarchy of the European Union).
40. NAT’L
CANCER
INSTIT.,
U.S. DEP’T
OF
HEALTH
AND
HUMAN
SERV.,
CANCER
NANOTECHNOLOGY
PLAN:
A STRATEGIC
INITIATIVE
TO
TRANSFORM
CLINICAL
ONCOLOGY
AND
BASIC
RESEARCH
THROUGH
THE
DIRECTED
APPLICATION
OF
NANOTECHNOLOGY
25
(2004) (emphasis added),
available at
http://ntc-ccne.org/documents/
cancer_nanotechnology_plan.pdf.
41.
See
Andy Oppenheimer,
Nanotechnology Paves Way for New Weapons,
JANE’S
CHEM-BIO
WEB,
July 27, 2005, http://www.hartford-hwp.com/archives/27a/317.html
(“As with many technologies, the medical applications may be adapted for
offensive
purposes. Manipulation of biological and chemical agents using nanotechnologies
could
result in entirely new threats that might be harder to detect and counter than
existing
[chemical and biological weapons]. New agents may remove previous operational
difficulties of biological warfare, such as effective delivery of the agent. The
large surface
area of nanoparticles, relative to their overall size, increases their toxicity
when inhaled.
Advanced capabilities may include the use of genetic markers to target specific
organs in
the body, or an ethnic group, or even a specific individual . . . . The design
of new agents
that attack specific body organs such as the central nervous system would enable
far
smaller amounts of the chemical to be made without detection and would require
only
small, low-level facilities.”).
42. In 1914, a British scientist, Henry Dale, described the physiological
effects of a
substance called acetylcholine. In 1921, Otto Loewi, an Austrian scientist,
provided the
first proof that acetylcholine transmitted messages from one nerve cell to
another, and
from those cells to organs such as the heart. Loewi later demonstrated
acetylcholine is
broken down by an enzyme called cholinesterase. JONATHAN
B. TUCKER,
WAR
OF
NERVES
CHEMICAL
WARFARE
FROM
WORLD
WAR
I
TO
AL-QAEDA
52 (2006). In essence,
[t]he arrival of a nerve impulse at the junction between a nerve and a muscle
cell induces the release from the nerve ending of molecules of acetylcholine,
which diffuse across a narrow gap called the synapse and stimulate receptors
on the surface of the muscle cell, triggering a series of biochemical events
that
870
FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
nanobots in warfare, often not explained except with references
to nerve agents,43
is that the bots will enter or otherwise affect
nerve cells, and will act as cholinesterase inhibitors,44
but in a
physical
rather than a
chemical
manner.45
The results would be the
same, but would they be covered by the CWC?
cause the muscle fibers to contract. Under normal conditions, cholinesterase
enzymes in the synapse immediately break down the acetylcholine and halt the
stimulation of the receptors, allowing the muscle fibers to relax. . . . [Nerve
gases] inhibit[] the action of cholinesterase . . . [thus freezing] the
biochemical on-off circuit in the ‘open’ position, allowing [toxic acetylcholine
build-up]. Because acetylcholine plays multiple roles in the peripheral,
autonomic, and central nervous systems, excessive amounts give rise to diverse
physiological effects [including violent, uncontrollable spasms of skeletal
muscles followed by paralysis, excessive salivation, vomiting, bronchial
constriction, and seizures]. Nerve agents can induce death by asphyxiation
through three different mechanisms: constriction of the bronchial tubes,
suppression of the respiratory center of the brain, and paralysis of the
breathing muscles.
Id.
52–54. This excellent work is extremely useful for anyone seeking to understand
the
history of the development and deployment of nerve gases.
43.
See
Glenn Harlan Reynolds,
Environmental Regulation of Nanotechnology: Some
Preliminary Observations,
[2001] 31 Envtl. Law Rep. (Envtl. Law Inst.) 10681, 10684
(“Nanotechnological devices for military use also raise the issue that they do
the work of
chemical and biological weapons, but—at least arguably—do not fall within the
treaties
regulating chemical and biological weapons. The argument that nanotechnological
weapons—at least those of destructive, rather than surveillance, type—would be
functional equivalents of chemical and biological weapons would be a strong one,
and
indeed
destructive nanoweapons would probably achieve their effects through chemical
action,
though it would be mechanically initiated.”
(emphasis added)).
44. Fed’n of Am. Scientists, Introduction to Chemical Weapons,
http://www.fas.org/programs/ssp/bio/chemweapons/introduction.html (last visited
Apr. 3, 2010) (“Nerve gases are liquids, not gases, which block an enzyme
(acetylcholinesterase) that is necessary for functions of the central nervous
system.”);
see
also
discussion
infra,
Part II.A.1.d.iv.
45.
See
U.S. CONG.,
OFFICE
OF
TECH.
ASSESSMENT,
TECHNOLOGIES
UNDERLYING
WEAPONS
OF
MASS
DESTRUCTION,
USGPO No. OTA-BP-ISC-115, at 23–24 (1993),
available at
http://www.au.af.mil/au/awc/awcgate/ota/9344.pdf (“Two classes of nerve
agents, designated G and V agents, were produced . . . by the United States and
the
former Soviet Union. The G-series nerve agents are known both by informal names
and
military code- names: tabun (GA), sarin (GB), GC, soman (GD), GE, and GF. This
class
of compounds was discovered in 1936 by Gerhard Schrader of the German firm IG
Farben during research on new pesticides . . . . All the various G agents act
rapidly and
produce casualties through by inhalation, although they also penetrate the skin
or eyes
at high doses . . . . The V- series nerve agents include VE, VM, and VX,
although only VX
was weaponized by the United States. These agents were originally discovered in
1948 by
British scientists engaged in research on new pesticides . . . . VX is an oily
liquid that may
persist for weeks or longer in the environment. Although not volatile enough to
pose a
major inhalation hazard, [V-series agents are] readily absorbedableable through
the
skin. The lethal dose of VX on bare skin is about 10 milligrams for a 70
kilogram
man.”).
2010]
NANOTECH AGENTS
871
Despite considerable institutional skepticism,46
there has
been at least some discussion of nanorobot concepts which
appears to be based in hard fact and science,47
and capable of
being utilized by nonexperts to examine reality.48
In
Bio-
Nanorobotics: State of the Art and Future Challenges,
the authors
focus on molecular machines either naturally occurring, or
created “from scratch” synthetically but “using nature’s
components.”49
They note that “[t]he main goal in the field of
molecular machines is to use various biological elements—whose
function at the cellular level creates motion, force or a signal—as
machine components.”50
The authors suggest that:
So far, there does not exist any particular guideline or a
prescribed manner, which details the methodology of
designing a bio-nanorobot. There are many complexities,
which are associated with using biocomponents (such as
protein folding and presence of aqueous medium), but the
advantages of using these are also quite considerable. These
biocomponents offer immense variety and functionality at a
scale where creating a man-made material with such
capabilities would be extremely difficult. These
46.
See
Rudy Baum,
Nanotechnology: Drexler and Smalley Make the Case For and Against
‘Molecular Assemblers,’
CHEMICAL
& ENGINEERING
NEWS,
Dec. 1, 2003, at 37
(documenting the well-publicized debate regarding the feasibility of
nanotecology
between Smalley and Drexler); Mikael Johansson,
“Plenty of Room at the Bottom”: Towards
an Anthropology of Nanoscience,
ANTHROPOLOGY
TODAY,
Dec., 2003, at 3–6 (providing
excellent examples of scientific skepticism of Drexler’s nano-concepts); Richard
E.
Smalley,
Of Chemistry, Love and Nanobots,
SCIENTIFIC
AM.,
Sept. 2001, at 76–77 (arguing
that certain types of nanorobots are not feasible); Rudy Baum,
Nanotechnology: Drexler
and Smalley Make the Case for and Against “Molecular Assemblers”,
81 CHEMICAL
&
ENGINEERING
NEWS,
Dec. 1, 2003, at 37–42;
cf.
K. Eric Drexler & Jason Wejnert,
Nanotechnology and Policy,
45 JURIMETRICS
J. 1, 8 (2004) (“A more serious issue is the
prospect of losing the arms race in developing this technology. The United
States
presently has an informal but effective nanotechnology in place that, if
continued, will
guarantee loss in the arms race.”).
47.
Are Nanobots On Their Way?,
NANOTECHNOLOGY
WKLY.,
May 12, 2008, at 1 (“The
first real steps towards building a microscopic device that can construct nano
machines
have been taken by U.S. researchers.”).
48.
See
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589–92 (1993)
(discussing expert testimony standards about scientific knowledge that may
assist the
trier of fact);
cf.
Lesley Wexler,
Limiting the Precautionary Principle: Weapons Regulation in
the Face of Scientific Uncertainty,
39 U.C. DAVIS
L. REV.
459, 524–25 (2006) (arguing in
favor of scientific knowledge standard similar to that mentioned in
Daubert).
49.
See
Ajay Ummat et al.,
Bio-Nanorobotics: The State of the Art,
and Future Challenges,
in
TISSUE
ENGINEERING
AND
ARTIFICIAL
ORGANS
19-1, 19-2 (Joseph D. Bronzino ed., 3d
ed. 2006).
50.
Id.
872
FORDHAM INTERNATIONAL LAW JOURNAL
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biocomponents have been perfected by nature through
millions of years of evolution and hence . . . very accurate
and efficient.51
The authors go on to suggest that a “library of bionanocomponents”
will be developed including categories such as
actuation, energy source, and signaling, enabling design and
development of bio-nanosystems with “enhanced mobile
characteristics” and the ability to “transport themselves as well as
other objects to desired locations at the nano scale.”52
The
authors contemplate this discussion in the context of medical
repair,53
but the applications to future warfare appear equally
possible,54
and they raise fascinating questions. As Shipbaugh
notes, “[f]uturistic applications are highly speculative and a main
source of contention in scientific debates over nanotechnology.
It is not necessary to dwell upon replicating molecular systems to
51.
Id.
at 19-19.
52.
Id.
at 19-21.
53. The authors’ discussion appears realistic. They conclude that problems like
protein folding, precise mechanisms of molecular motors, and swarming behavior
are
unsolved.
Id.
at 19-33. Still, they assert:
The future of bio-nanorobots . . . is bright. We are at the dawn of a new era in
which many disciplines will merge including robotics, mechanical, chemical
and biomedical engineering, chemistry, biology, physics, and mathematics so
that fully functional systems will be developed. However, challenges towards
such a goal abound. Developing a complete database of different biomolecular
machine components and the ability to interface or assemble different
machine components are some of the challenges to be faced in the near
future.
Id.
54. It bears mention that the beginning of a new scientific epoch is always
fraught
both with possibilities and dead ends. One is reminded of the era between the
Wright
brothers’ announcement of manned powered heavier-than-air flight in December,
1903,
and the myriad approaches of the next half dozen years.
See
Today in History: December
17, First Flight, http://memory.loc.gov/ammem/today/dec17.html (last visited
Apr. 3,
2010)
(“The
announcement of the Wright brothers’ successful flight ignited the world’s
passion for flying. Engineers designed their own flying machines, people of all
ages
wanted to witness the flights, and others wanted to sit behind the controls and
fly.”).
Scientists, futurists, quacks, cranks, and the suicidal adventurous explored not
only wingwarping
versus elevators and ailerons, but also shapes mimicking nature, ornithopters,
flying bicycles, and any number of other startling advances and lethal
dead-ends. Some
of them led to the modern air craft we now take for granted.
See
Movies and Photos,
Photographs of the Invention of the Airplane,
http://invention.psychology.msstate.edu/moviesandphotos/rogues.html (last
visited
Apr. 3, 2010) (containing photographs of such aircrafts);
see also
Posting by Miss
Cellania to mental_floss blog, http://www.mentalfloss.com/blogs/ (Aug. 14, 2007,
04:46
EST) (reviewing attempts at aviation prior to the Wright brothers’ landmark
flight).
2010]
NANOTECH AGENTS
873
realize that nanotechnology applications can become very
provocative.”55
Indeed, the U.S. Army has considered the implications for
some time, at least in the area of biological weapons. In 1999,
Lonnie Henley raised the possibility of several novel biological
warfare applications56
including, “subject to prevailing law and
arms treaties,” selective agents that can distinguish friend from
foe, triggered agents that harm only in specific situations “[n]ew
ways to kill or incapacitate opponents,” “[p]enetration aids” to
bypass defenses or immunities, or “[a]nti-material agents.”57
Henley did not consider the chemical warfare implications, per
se.
Legal implications of nanotechnology in the unconventional
weapons context, have been raised before.58
Many of the
discussions have been narrowly directed to a particular regulatory
approach,59
are downright utopian,60
or are relatively limited in
their content.61
55. Calvin Shipbaugh,
Offense-Defense Aspects of Nanotechnologies: A Forecast of
Potential Military Applications,
34 J.L. MED.
& ETHICS
741, 746 (2006).
56. Henley included the the caveat that,
[i]t is easy to get carried away with such speculation. Even with rapid progress
in all the necessary fields, it will be at least decades before we can
massproduce
microscopic machinery tailored to our purposes. There is no reason
to doubt that it is feasible in the long run, however, and some militarily
useful
products could be available in 20 years or so.
Lonnie D. Henley,
The RMA After Next,
PARAMETERS,
Winter 1999–2000, at 46.
57.
Id.
58.
See
Gary E. Marchant & Douglas J. Sylvester,
Transnational Models for Regulation
of Nanotechnology,
34 J.L. MED.
& ETHICS
714, 719 (2006) (“Notwithstanding some
science fiction scenarios, it is highly unlikely that current or near-term
applications of
nanotechnology would rise to the level of potential weapons of mass destruction.
In the
longer term, it is possible that some [could,] but such possibilities are likely
far into the
future and governments are unlikely to act to try and to prevent such scenarios
through
international agreements until such risks are more concrete and defined.”).
See generally
Pinson,
supra
note 33.
The legal implications of nanotechnology have been raised in
other areas as well.
See
Michael Van Lente,
Building the New World of Nanotechnology,
38
CASE
W. RES.
J. INT’L
L. 173, 178–83 (2006) (listing extensive investments in
nanotechnology on a global scale); Albert Lin,
Size Matters: Regulating Nanotechnology,
31
HARV.
ENVTL.
L. REV.
349, 351 (2007) (“Of more immediate concern [than nanobots]
are the potential risks posed by nanoscale science and engineering.”); James
Yeagle,
Nanotechnology and the FDA,
12 VA.
J.L. & TECH.
6 (2007) (advocating for greater federal
study in the area of nanotechnology in order to create a regulatory regime).
59.
See, e.g.,
Gregory Mandel,
Nanotechnology Governance,
59 ALA.
L. REV.
1323
(2008) (providing several suggestions on how to improve the regulation of
nanotechnologuy); Kenneth W. Abbott et al.,
A Framework Convention for Nanotechnology?,
[2008] 38 Envtl. L. Rep. (Envtl. Law Inst.) 10,507, 10,507–08 (discussing four
general
874
FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
Glenn Reynolds, however, directly addresses aspects of a
number of important questions including that of bionanorobotics.
In
Nanotechnology and Regulatory Policy,
Reynolds
notes that, “these nanodevices would not suffer from the
constraints facing living organisms—they would not have to be
principles for nanotechnology regulation, though not specifically
weapons-related);
Lynn L. Bergeson,
Regulation, Governance and Nanotechnology: Is a Framework Convention
for Nanotechnology the Way to Go?,
[2008] 38 Envtl. L. Rep. (Envtl. Law Inst.) 10,515,
10,515–17 (discussing approaches towards regulating nanotechnology, generally);
David
Rejeski,
Comment on A Framework Convention for Nanotechnology?,
[2008] 38 Envtl. L. Rep.
(Envtl. Law Inst.) 10,518, 10,518–19 (same);
see also, e.g.,
Brent Blackwelder,
Comment on
a Framework Convention for Nanotechnology?,
[2008] 38 Envtl. L. Rep. (Envtl. Law Inst.)
10,520 (arguing that the need for a regulatory regime is so dire that a
moratorium
should be placed on nanotechnology worldwide until one is created); Sean Howard,
Nanotechnology and Mass Destruction: The Need for an Inner Space Treaty,
DISARMAMENT
DIPLOMACY,
July–Aug. 2002, at 3 (calling for an “inner space treaty” to guard against the
use of nanotechnology as a weapon of mass destruction).
Glenn Reynolds raises several problems with the prohibitionist approach
mentioned by several authors.
See
Glenn Harlan Reynolds,
Nanotechnology and Regulatory
Policy: Three Phases,
17 HARV.
J. L & TECH.
179, 191 (2003). Not only would it impact
potentially useful scientific advances, but nanotechnology research facilities
are
relatively easy to hide from a prohibitionist inspection regime.
Id.;
see also,
Wexler,
supra
note 48,
at 515 (suggesting the amendment of article 36 of the 1977 Protocol I to the
1949 Geneva Convention).
While the protocols may, in some aspects, represent articulations of current
customary law, the United States is not currently a signatory to the protocols.
Cf.
Vladimir Murashov & John Howard,
The US Must Help Set International Standards for
Nanotechnology,
NATURE
NANOTECH.,
Nov. 2008, at 635 (2008) (advocating
implementation of international standards for nanotechnology); Joel Rothstein
Wolfson,
Social and Ethical Issues in Nanotechnology: Lessons From Biotechnology and
Other
High Technologies,
[Aug. 2003] 22 Biotech. L. Rep. (Mary Anne Leibert, Inc.) 376, 381
(“The dangers of nanotechnology as a terrorist weapon are easy to see. First, a
nanorobot
that can operate within a human body could easily be programmed to destroy
rather than heal.”).
60.
See, e.g.,
Lindsay V. Dennis, Note,
Nanotechnology: Unique Science Requires Unique
Solutions,
25 TEMP.
ENVTL.
L. & TECH.
J. 87, 111–13 (2006) (proposing the creation of an
“Emerging Technologies Department” by U.S. Congress to provide “centralized
regulation” of nanotechnology which would be independent of executive and
congressional oversight).
61.
See
Juan P. Pardo-Guerra & Francisco Aguayo,
Nanotechnology and the
International Regime on Chemical and Biological Weapons,
2 NANOTECHNOLOGY
L. & BUS.
55
(2005) (painting in very broad strokes the issues involved). Some analysis may
be found
in Jason Wejnert,
Regulatory Mechanisms for Molecular Nanotechnology,
44 JURIMETRICS
J.
323 (2004). While Wejnert’s paper focuses on preventing the “‘release’ into the
wild” of
molecular nanotechnology products, it mentions both the possible development of
a
unique molecular nanotechnology treaty, and of something modeled around the
Nuclear Non-Proliferation Treaty.
Id.
at 329 He also discusses the potential application
of both the Biological Weapons Convention and Chemical Weapons Convention.
Id.
at
331–36. However, Wejnert’s paper posits enforcement problems, and does not
address
the current applicability issues raised in this paper.
Id.
at 349.
2010]
NANOTECH AGENTS
875
made of protein or other substances readily extractable from the
natural environment, nor would they have to be capable of
reproducing themselves.”62
It is interesting to compare this
statement with Ummat, Sharma, Mavroidis, and Dubey’s
discussion of bio-nanobots.63
Key questions arise about treaty
coverage depending on whether these bots are, in fact, bugs, for
they may, depending on attributes of life,64
fall within the BWC,
the CWC, or in the cracks between.
Reynolds also notes that “[t]he same technology that could
selectively destroy cancer cells could instead target immune or
nerve cells, producing death or further debility.”65
Others have
raised similar issues:
[N]ano-bots may in the future travel through the blood
stream seeking and killing off cancer cells, or may assist with
the regeneration of healthy cells. At the opposite extreme, it
may also be possible to use nano-bots for military purposes to
detect motion in a field and transmit signals many miles
away, or to achieve “programmable” genocide. Drexler’s
vision is that such robots, known as “assemblers,” will have
the ability to self-replicate . . . and [be able] to work in
unison to build macro-scale devices en masse. While
commentators such as Whiteside and Smalley have dismissed
these ideas as futuristic hype, nanotechnology nevertheless
captures one exciting conceptual possibility.66
The Stockholm International Peace Research Institute has
expressed some concern in this area as well:
62. Reynolds,
supra
note 59, at 185 (citing K. ERIC
DREXLER,
ENGINES
OF
CREATION,
56-63 (rev. ed. 1990) as the sole source material on the underlying science).
63. Ummat et al.,
supra
note 49.
64. In biology, the science that studies living organisms, “life” is the
condition
which distinguishes active organisms from inorganic matter, including the
capacity for
growth, functional activity and the continual change preceding death. A diverse
array of
living organisms (life forms) can be found in the biosphere on Earth, and
properties
common to these organisms—plants, animals, fungi, protists, archaea, and
bacteria—are
a carbon-, and water-based cellular form with complex organization and heritable
genetic information. Living organisms undergo metabolism, maintain homeostasis,
possess a capacity to grow, respond to stimuli, reproduce and, through natural
selection,
adapt to their environment in successive generations.
See
Brig Klyce, What is life?,
http://www.panspermia.com/whatis2.htm (last visited Apr. 3, 2010);
see also
DORLAND’S
ILLUSTRATED
MEDICAL
DICTIONARY
920 (27th ed. 1988); J.B.S. HALDANE,
WHAT
IS
LIFE?
58–62 (1949).
65. Reynolds,
supra
note 59, at 188.
66. Diana Bowman & Graeme Hodge,
A Small Matter of Regulation: An International
Review of Nanotechnology Regulation,
8 COLUM.
SCI.
& TECH.
L. REV.
1, 3 (2007).
876
FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
There is intensifying awareness around the world of the need
to balance the obvious advantages of globalization with its
increasingly apparent disadvantages. Regarding arms
control, this is demonstrated by a growing need to balance
the benefits of greater and more diffuse flows of people,
goods, technologies and knowledge—including those
relevant to developing weapons of mass destruction
(WMD)—with a greater ability to monitor and prevent their
misuse towards illicit and violent ends. This conundrum
applies across a widening spectrum of current and emergent
technologies—such as nuclear technologies, but especially in
the biological sciences, including genetic engineering,
synthetic biology and nanotechnologies—and, as discussed
in this volume, raises new and vexing questions about the
appropriate balance between the greater diffusion and the
appropriate control of such technological advancements.67
From a feasibility standpoint, the most likely application of
this smallness to chemical warfare is the reduction of existing
banned chemical weapons to a size possibly undetectable by
current means and unfilterable by current protective gear,
and/or the enhancement of effects of current weapons because
of increased toxicity. Those “nano-enhanced” agents are a
current concern of a number of entities.
B.
Nano-Enhanced Agents
The Organisation for the Prohibition of Chemical
Weapons(“OPCW”)68
conducts conferences to review ongoing
chemical weapon developments. As part of its 2008 review
conference, the OPCW issued a report by its Scientific Advisory
Board on new scientific developments.69
The report identified
67.
Bates Gill,
Introduction
to SIPRI YEARBOOK
2008 2, 2 (2008);
see also
Ronald
Sutherland,
Chemical and Biochemical Non-Lethal Weapons: Political and Technical Aspects,
SIPRI POLICY
PAPER
23 (2008).
68. The Organisation for the Prohibition of Chemical Weapons (“OPCW”) is the
implementing body of the Chemical Weapons Convention (“CWC”). The OPCW is
given the mandate to achieve the object and purpose of the CWC, to ensure the
implementation of its provisions, including those for international verification
of
compliance with it, and to provide a forum for consultation and cooperation
among
States Parties.
See
The Organisation for the Prohibition of Chemical Weapons,
http://www.opcw.org/about-opcw (last visited Apr. 3, 2010).
69. Organisation for the Prohibition of Chemical Weapons, Second Special Session
of the Conference of the States Parties to Review the Operation of the Chemical
Weapons Convention, Apr. 7–18, 2008,
Note by the Director-General: Report of the Scientific
2010]
NANOTECH AGENTS
877
three immediate areas of concern: the application of nanotech
drug delivery systems to dissemination of aerosolized chemical
warfare agents, new means of facilitating entry into the body or
cells to achieve selective reactions, and, in some cases, higher
toxicity than micronized material.70
Juan Pardo-Guerra and
Francisco Aguayo note a concern over “the engineering of taskspecific
enzymatic regulators [which] could be used for blocking
(or over-promoting) key metabolic processes . . . to cause a
defined hostile result.”71
They note that “due to their unusual
forms of action, such substances would likely be invisible to the
existing verification protocols of the [chemical and biological
weapons] regime.”72
These dissemination, entry, and toxicity concerns have been
raised in both national and international fora.73
The U.S.
Congressional Research Service has noted that scientific
concern74
about nanoparticles is based in part on some of the
very properties that researchers hope to exploit for medical
purposes:
The small size of nanoparticles may allow them to pass easily
through skin and internal membranes. This raises questions,
however, of whether exposure may be effectively confined to
targeted tissues . . . . It is too soon to know whether such
questions are serious cause for concern, but there is scientific
evidence that some nanoparticles may be hazardous. For
example, certain nanoparticles are known to be toxic to
microbes, and EPA has reported some studies that have
Advisory Board on Developments in Science and Technology,
Doc. No. RC-2/DG.1 (Feb. 28,
2008),
available at
http://www.opcw.org/index.php?eID=dam_frontend_push&docID=
1871.
70.
See id.
¶¶ 2.5–2.8. Altmann lists similar concerns including use of
nanotechnology to provide “capsules for safe enclosure and delayed release,”
“active
groups for bonding to specific targets in organs or cells,” “vectors for easier
entry[,]”
“mechanisms for selective reaction with specific gene patters or proteins,” and
“reducing friendly risk “by limiting the persistence or an improved binary
principle.”
ALTMANN,
supra
note 36, at 101–02.
71. Pardo-Guerra & Aguayo,
supra
note 61, at 58.
72.
Id.
at 59 (citing Jean Pascal Zanders,
The Chemical Weapons Convention and
Universality: A Question of Quality Over Quantity?,
[2002] 4 DISARMAMENT
FORUM
23).
73.
See
Zanders,
supra
note 72, at 28.
74.
See, e.g.,
Ian Sample,
Nanotechnology Poses Threat to Health, Say Scientists,
GUARDIAN
(London), July 30, 2004, at 2.
878
FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
found nanoparticles generally (but not always)
are more toxic
than larger particles of identical chemical composition.75
Questions remain, however, at the most basic levels:
Even among researchers [who focus] on toxicity, there is no
agreement about which data might be useful . . . . Scientists
have not yet determined which physical-chemical properties
(for example, size, shape, composition, stability, or electric
charge) will be most important in determining . . .
toxicological properties.76
The toxicological properties of nanomaterials is in some
ways the most urgent concern for enforcers, and at the same time
perhaps the least interesting from a juridical viewpoint. There
seems to be no possible argument that nano-enhanced poisons
are any less banned under the current CWC Annexes than they
would be at any other size.77
More interesting though, is the
current emergence of nanodelivery systems in what may be a first
step towards autonomous nanomachines.
C.
Nanobots as Delivery Systems
The most likely immediate scenario for application of
nanotechnology78
to chemical warfare is as a delivery system
based on the chemotherapy model. As noted in
The Economist:
75. LINDA-JO
SCHIEROW,
CONG.
RESEARCH
SERV.,
ENGINEERED
NANOSCALE
MATERIALS
AND
DERIVATIVE
PRODUCTS:
REGULATORY
CHALLENGES
4 (2008) (citations
omitted, emphasis added).
76.
Id.
at 7. This information might indicate a need to at least amend the appendix
to the CWC, which is, of course, done on an ongoing basis in any case.
Interesting issues
arise when nanotech meets toxicity. For example, the U.S. Toxic Substances
Control
Act, 15 U.S.C.
§
2601 (2006), excludes nanomaterials that are not “chemical
substances,” and it defines a “chemical substance” as “any organic or inorganic
substance of a particular molecular identity” that is not a mixture.
Id.
§ 2602(2). Given
this definition, “it might not be clear whether certain nanoparticles consisting
of a core
inorganic material coated by an organic material would” be covered. SCHIEROW,
supra
note 75, at 12. That sort of legal question demonstrates the potential
difficulty of
determining coverage by international conventions if they are not read, as was
clearly
intended, with a very wide reach indeed.
See
discussion
infra
notes 326–36 and
accompanying text.
77. The possibility exists, of course, that some of those chemicals may have
beneficial attributes in, say, chemotherapy, but exceptions already exist within
the CWC
regime for certain dual use materials.
See
Chemical Weapons Convention,
supra
note 10,
arts. II(9), IV.
78. As opposed to nanoparticles currently in use.
2010]
NANOTECH AGENTS
879
[A] second generation of nanoparticles has entered clinical
trials. Some are so good at hiding their contents away until
they are needed that the treatments do not merely reduce
side-effects; they actually allow what would otherwise be
lethal poisons to be supplied to the tumour only. Others do
not depend on drugs at all. Instead, they act as beacons for
the delivery of doses of energy that destroy cancer cells
physically, rather than chemically.79
It is also worth noting that the authors in
Bio-Nanorobotics: The
State of the Art
extensively discuss inorganic molecular machines
which may have applicability as chemical agent delivery systems:
In the past two decades, chemists have been able to create,
modify and control many different types of molecular
machines. Many of these machines carry a striking
resemblance with our everyday macroscale machines . . . .
Not only this, all of these machines are easy to synthesize
artificially, and are generally more robust than the natural
molecular machines. Such artificial chemical machines are
controllable in various ways [or in more than one way]. A
scientist can have more freedom with respect to the design of
chemical molecular machines depending on the
performance requirements and conditions.80
A great deal of work, both private and governmental, is
going into research about delivery systems.81
The publicly
available literature is largely devoted to various forms of cancer
research; although other medical applications have been
discussed.82
If such carriers are used to deliver poisons or toxins
banned under the CWC, their facial illegality for that use again is
quite clear.83
The carriers themselves, however, may very well
79.
Golden Slingshot; Treating Tumours,
ECONOMIST,
Nov.8, 2008, at 73;
see also
Nicholas Wade,
New Cancer Treatment Shows Promise in Testing,
N.Y. TIMES,
June 29, 2009,
at A7 (reporting that Australian researchers have used “minicells” coated with
antibodies to attack tumors, some of which are each “loaded with half a million
molecules of . . . a toxin used in chemotherapy.”).
80. Ummat et al.,
supra,
note 49, at 19-15.
81.
See, e.g.,
NanoRobotics System Lab Homepage, http://www.egr.msu.edu/
~ldong/ (last visited Apr. 3, 2010).
82.
See, e.g.,
Awadhesh Kumar Arya,
Applications of Nanotechonology in Diabetes,
2008
J. NANOMATERIALS
& BIOSTRUCTURES,
221, 223 (concerning the treatment of diabetes).
83. As discussed
infra
notes 355–60, the 1925 Geneva Gas Protocol and the CWC
would ban the delivered substances outright and make their delivery for military
purposes a crime.
880
FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
have dual usage,84
and the other uses may be to the medical
benefit of humanity.
The National Cancer Institute (“NCI”) of the National
Institutes of Health explains how nanotechnology is applicable in
battling cancer:
Nanoscale devices are one hundred to ten thousand
times smaller than human cells. They are similar in size to
large biological molecules (“biomolecules”) such as enzymes
and receptors. As an example, hemoglobin, the molecule
that carries oxygen in red blood cells, is approximately 5
nanometers in diameter. Nanoscale devices smaller than 50
nanometers can easily enter most cells, while those smaller
than 20 nanometers can move out of blood vessels as they
circulate through the body.
Because of their small size, nanoscale devices can
readily interact with biomolecules on both the surface of
cells and inside of cells. By gaining access to so many areas of
the body, they have the potential to detect disease and
deliver treatment in ways unimagined before now. And since
biological processes, including events that lead to cancer,
occur at the nanoscale at and inside cells, nanotechnology
offers a wealth of tools that are providing cancer researchers
with new and innovative ways to diagnose and treat cancer.85
The NCI then goes on to explain specifically how
nanotechnology can be used directly in cancer therapy both as a
target for external radiation and as a carrier agent for nanosize
does of chemical therapies:
Nanoscale devices have the potential to radically change
cancer therapy for the better and to dramatically increase the
number of highly effective therapeutic agents.
Nanoscale
constructs can serve as customizable, targeted drug delivery vehicles
capable of ferrying large doses of chemotherapeutic agents
or
84. Chemicals under the CWC are divided among “schedules.” Schedule 1 lists
those chemicals which pose a high risk to the goals of the CWC, including
precursor
chemicals used to produce nerve agents or mustard agents. Schedule 2 lists those
chemicals that generally are not produced in large commercial quantities for
nonmilitary purposes and pose a significant risk to the purpose of the CWC.
Schedule 3
lists dual-use chemicals which may pose a risk to CWC goals but also have
legitimate
commercial purposes and are widely produced.
See
Chemical Weapons Convention,
supra
note 10, Annex on Chemicals.
85. The Alliance for Nanotechnology in Cancer: Media Backgrounder,
http://nano.cancer.gov/media_backgrounder.asp (last visited Apr. 3, 2010).
2010]
NANOTECH AGENTS
881
therapeutic genes into malignant cells while sparing healthy
cells, greatly reducing or eliminating the often unpalatable
side effects that accompany many current cancer therapies.86
Thus, much of the nano-related research currently being
conducted in medical laboratories is both exciting and terrifying.
It offers both the promise of advanced medical treatment for
previously incurable diseases, and the threat of more effective
means for delivery of lethal chemicals as weapons of mass
destruction. The same may be generally said of nanobots.
Nanobots which would function solely to mimic existing or
future CWC banned chemicals, however, are in a class by
themselves. It is those hypothetical weapons which are the core
subject of the question posed by the AEPI, and which are a core
subject of this Article.
D.
Nanomimics of Existing Banned Weapons
Finally, there is the AEPI’s scenario of “materials that act
like chemical agents, . . . but are not classed as chemical agents
under any existing protocol.”87
Those would be something other
than nano-sized chemical agents. Most likely, to have any chance
to avoid the CWC88
they would have to be nanobots. While some
86. NATIONAL
CANCER
INSTITUTE,
NANOTECHNOLGY
CANCER
BROCHURE
12–13
(2004) (emphasis added),
available at
http://nano.cancer.gov/objects/pdfs/
cancer_brochure_091609-508.pdf. As a real world example of the promise of
nanotechnology in drug delivery, the National Cancern Institute (“NCI”) says
“Liposomes, which are first generation nanoscale devices, are being used as drug
delivery vehicles in several products. For example, liposomal amphotericin B is
used to
treat fungal infections often associated with aggressive anticancer treatment
and
liposomal doxorubicin is used to treat some forms of cancer.” The Alliance for
Nanotechnology in Cancer: Frequently Asked Questions, http://nano.cancer.gov/
learn/understanding/faq.asp (last visited Apr. 3, 2010). The NCI also notes
that, “[i]n
May 2004, two companies (American Pharmaceutical Partners and American
BioScience) announced that the FDA accepted the filing of a New Drug Application
(NDA) for a nanoparticulate formulation of the anticancer compound taxol to
treat
advanced stage breast cancer.” National Cervical Cancer Coalition: What is
Nanotechnology, http://www.nccc-online.org/health_news/research_treatment/
what_is_nano.html (last visited Apr. 3, 2010) (citing the NCI).
87. MCGUINNESS,
supra
note 3, at 20.
88. It is not unreasonable to expect that if nanomimics were actually fielded as
weapons, the user’s chief concern would be their effectiveness as a weapon
capable of
defeating existing detection and protection systems, rather than on their actual
legality.
That issue, in the past, seemed to arise more as a reaction to international
criticism.
See,
e.g.,
German internal discussion and public justification of chlorine gas use in 1915,
infra
text accompanying notes 183–85. The 1977 protocol I, with its requirement of
advance
882
FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
scientists deride the concept as “science fiction,”89
it is discussed
here both because Defense Advanced Research Projects Agency90
deals in concepts which might have been called “science fiction”
twenty years before their development,91
and also because,
analysis of the legality of new weapons puts at least a new gloss on that
process.
See
discussion,
infra
notes 293–94. If nonstate actors engaged in terrorism obtained such
weapons, it is difficult to conceive that a ban in international law would have
any positive
effect; the point of terrorism is, after all, to terrorize. As those groups move
toward state
status, however, legal implications might have some impact. An interesting
contrast and
comparison might be made with the dualistic approaches of the Democratic
People’s
Republic of Korea and its fielding of nuclear weapons, on their perceived
interests and
resulting acts.
See
Elisabeth Bumiller,
Gates Looks to Tougher Approach on North Korea,
N.Y.
TIMES,
May 30, 2009, at A8 (describing the international community’s approach to
North Korea’s nuclear testing). An analogy can be drawn here to the movement of
certain Palestinian groups from pure terrorism to mixed or quasi-state actor
approaches
between 1967 and the present.
See, e.g.,
Adam Davidson,
Hamas: Government or Terrorist
Organization?,
NPR, Dec. 6, 2006, http://www.npr.org/templates/story/
story.php?storyId=6583080.
89.
See, e.g,
RATNER
& RATNER,
supra
note 37, at 15–16 (“There are a number of
compelling reasons why molecular assemblers are either impossible or at best in
our
distant future, and it’s worth looking in order to read sci-fi without
nightmares.”).
Altmann, on the other hand, list as military risks of nanotechnology both
“superintelligent, virtually invisible devices” and “nanoweapons, artificial
viruses, [and]
controlled biological/nerve agents.” ALTMANN,
supra
note 36, at 5. Much of Altmann’s
work, while interesting, seems highly speculative, even to a layperson. Note the
emphasized qualifiers in the following:
Whereas with MST [microsystems technology], micro-robots of centimeters,
maybe
a few millimeters size
could be
built, NT will
likely
allow development of
mobile autonomous systems below 1 mm,
maybe
down to 10 um (this is still 2-3
orders of magnitude above the size range around 100 nm
envisioned for
nanorobots
and universal molecular assemblers in MNT).
Id.
at 93 (emphasis added);
see also
Judith Reppy,
Nanotechnology for National Security,
in
NANOTECHNOLOGY:
SOCIETAL
IMPLICATIONS—INDIVIDUAL
PERSPECTIVES
232, 232–35
(Mihail Rocco & William Bainbridge eds., 2007) (discussing the national security
implication of nanotechnology, generally); William Tolles,
Vision, Innovation, and Policy,
in
NANOTECHNOLOGY:
SOCIETAL
IMPLICATIONS—INDIVIDUAL
PERSPECTIVES,
supra,
at
127, 127–30 (arguing that while advances in nanotechnology are vastly important,
there
needs to be a measure of restraint as well in order to ensure their safe use).
90.
See
About DARPA, http://www.darpa.mil/about.html (last visited Apr. 3, 2010)
91. On March 23, 2007, the Defense Advanced Research Projects Agency
(“DARPA”) issued a requesting soliciting proposals for the development of
“Chemical
Robots” capable of manipulating their shape in order to traverse small openings.
See
Def. Advance Research Projects Agency, Special Focus Area: Chemical Robots BAA,
Solicitation No. BAA07-21, add. 2 (Mar. 27, 2001),
available at
https://www.fbo.gov/?id=
30ae77f2004313f28bf4d07947e0b4d6. The DARPA request specifies that the ChemBots
should be “soft, flexible, mobile objects that can identify and maneuver through
openings smaller than their static structural dimensions.”
Id.
It goes on to add that,
“nature provides many examples of ChemBot functionality. Many soft creatures,
including mice, octopi, and insects, readily traverse openings barely larger
than their
largest ‘hard’ component.”
Id.;
cf.
TERMINATOR
2: JUDGMENT
DAY
(TriStar Pictures 1991)
2010]
NANOTECH AGENTS
883
especially in warfare, many science fiction scenarios have become
science fact.92
It is, in this context, worth noting, in its entirety, an
August 2009 report in the Science Times section of the
New York
Times:
You can’t build a machine without parts. That’s true for
large machines like engines and pumps, and it’s true for the
tiniest machines, the kind that scientists want to build on the
scale of molecules to do work inside the body. Researchers at
the Dana-Farber Cancer Institute and Harvard University
have taken a step toward creating parts for molecular
machines, out of DNA. In a paper in
Science,
Hendrick Dietz
. . . Shawn M. Douglas and William H. Shih describe a
programmable technique for twisting and curving DNA into
shapes. Dr. Shih said the method used strands of DNA that
self-assembled into rigid bundles, with the individual double
helixes joined by strong cross-links. Manipulating the base
pairs in the helixes—using more or fewer of them between
cross-links—creates torque that causes the bundles to twist
and bend in a specific direction. The researchers were able
to control the degree of bending, and were even able to
make a bundle bend back on itself. The researchers built
several structures, including a 12-tooth gear and a wire-frame
ball. Dr. Shih said that while it was possible that a future
molecular machine might use parts like these, the work was
meant to demonstrate that “if you want to make a machine,
you are going to need very precise fabrication ability.” The
goal, he added,
is to make objects that are far more complex and
eventually build a machine that could, say, deliver a drug to a
precise spot in the body.
Dr. Shih likened the work to the
development of integrated circuits, where complexity has
roughly doubled every 18 months for the past 40 years.
“We’re motivated to improve the technology,” he said.93
(depicting “the T-1000 compound, composed of a mimetic polyalloy, a liquid metal
that
allows it to take the shape and appearance of anything it touches”). The
contract was
ultimately awarded to Tufts University.
See Tufts Joins the Chembot Creation Challenge with
$3.3M DARPA Contract,
MASS
HIGH
TECH,
June 30, 2008,
http://www.masshightech.com/stories/2008/06/30/daily8-tufts-joins-the-chembotcreation-
challenge-with-$3.3m-darpa-contract.html.
92.
See generally
H.G. WELLS,
THE
WAR
OF THE
WORLDS
(1898) (portraying a
scenario where alien invaders die from Earth bacteria). See discussion about the
Geneva
Protocol,
infra
note 110, where biological weapons are banned though undeveloped.
93. Henry Fountain,
Scientists Use Curvy DNA to Build Molecular Parts,
N.Y. TIMES,
Aug. 11, 2009, at D3 (quoting doctor William H. Shih ) (emphasis added). For a
copy of
884
FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
Shortly before press time for this article, the Wall Street
Journal published an item headlined “Tiny Robots Made of DNA
Can Walk, Pivot, Work with Microscopic Forklifts.” It said, in part:
For the first time, microscopic robots made from DNA
molecules can walk, follow instructions and work together to
assemble simple products on an atomic-scale assembly line,
mimicking the machinery of living cells, two independent
research teams announced Wednesday.
These experimental devices, described in the journal
Nature, are advances in DNA nanotechnology, in which
bioengineers are using the molecules of the genetic code as
nuts, bolts, girders and other building materials, on a scale
measured in billionths of a meter. The effort, which
combines synthetic chemistry, enzymology, structural
nanotechnology and computer science, takes advantage of
the unique physical properties of DNA molecules to
assemble shapes according to predictable chemical rules.
. . .
These new construction projects bring researchers a
step closer to a time when, at least in theory, scientists might
be able to build test-tube factories that churn out selfassembling
computers, rare chemical compounds or
autonomous medical robots able to cruise the human
bloodstream.
. . .
In the first project, a team of scientists led by
biochemist Milan Stojanovic at Columbia built a molecular
robot that moved on its own along a track of chemical
instructions-the DNA equivalent of the punched paper tape
used to control automated machine tools.
Once programmed, the robot required no further
human intervention, the researchers reported. It could turn,
move in a straight line or follow a complex curve and then
stop, all essentially on its own initiative. They documented its
progress with an atomic force microscope as it strode along a
path 100 nanometers long, about 30 times further than
earlier DNA walkers could manage.
the original study, see Hendrik Dietz et al.,
Folding DNA into Twisted and Curved Nanoscale
Shapes,
SCIENCE,
Aug. 7, 2009, at 725–30.
2010]
NANOTECH AGENTS
885
"In
the future, this could be used as a molecular machine that
could bind to a cell surface, maybe carry a cargo and release
something,"
said biochemist Hao Yan at the Biodesign
Institute at Arizona State University, one of 12 researchers at
four universities involved in the project.94
The Arms Control Association recognized many of these
potential issues in 2004 and suggested possible legal responses:
Many of the international legal tools to prevent the
development of these weapons are already in place, notably
the [BWC] and the [CWC], which together ban military use
of all of the weapons imagined here. Nevertheless, these may
prove insufficient to prevent proliferation, and we should not
shy away from new international treaties as necessary.
Foremost among the new treaties that should be considered,
or reconsidered, are those that would: add a compliance
regime to the 1972 BWC; make development, possession, or
use of chemical or biological weapons a crime over which
nations may claim universal jurisdiction (like piracy, airline
hijacking, and torture); and impose a single control regime
over the possession and transfer of dangerous pathogens and
toxins. Consideration should also be given to a new
convention that would prohibit the nonconsensual
manipulation of human physiology, to support and extend
the provisions of the CWC, BWC, and international
humanitarian law.95
What the arms control experts seems to have in mind is not the
“gray goo” scenario,96
or bots attacking soldiers of a specific
genetic make-up,97
though both have been discussed by legal
writers. Rather, the concern is that a nanobot that could target
nerve cells or their receptors and block cholinesterase
production through mechanical means is certainly conceivable.98
The result would be precisely the same in terms of effects and
94. Robert Lee Hotz,
A Factory that Fits on a Pin—New Robots Made of DNA Can Walk,
Pivot, Work with Microscopic Forklifts,
WALL
ST.
J., May 13, 2010, at A3.
95. Mark Wheelis,
Will the New Biology Lead to New Weapons?,
ARMS
CONTROL
TODAY,
July–Aug. 2004, at 23.
96. “Gray goo” is a term popularized by Eric Drexler in his book
Engines of Creation,
supra
note 27, at 172–73, to describe self-replicating nanobots run amok.
See
Lawrence
Osborne,
The Gray-Goo Problem,
N.Y. TIMES
MAG.,
Dec. 14, 2003, at 17.
97.
See
ALTMANN,
supra
note 36, at 102.
98. For a general overview of nano-nerve targeting, see Surfdaddy Orca,
Targeting
Nerve Cells with Nanoparticles,
H+ MAG.,
Oct. 6, 2009, http://www.hplusmagazine.com/
articles/nano/targeting-cancer-cells-nanoparticles.
886
FORDHAM INTERNATIONAL LAW JOURNAL
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lethality as the V-series of nerve gases,99
but with the potential for
enhanced deliverability.100
Delivery (dissemination and
dispersion) methods are important to this discussion because
nanoproducts are different in so many ways from the norm.101
In
99. TUCKER,
supra
note 42, at 154 (detailing the effects of a V-series agent on the
body). For more information on difference between V-series and G-series nerve
agents,
see
supra
note 45. Gas is subject to dispersion and dissipation effects from time and
weather which might not affect machines in the same manner.
See
TUCKER,
supra
note
42, at 158–59.
100. Both because existing filters and detectors could be ineffective, and
because
dispersion in new forms may become available.
See
RATNER
& RATNER,
supra
note 37, at
44.
101. The Federation of American Scientists’ website does a very good job at
illustrating this distinction:
Perhaps the most important factor in the effectiveness of chemical weapons is
the efficiency of dissemination. . . . The principal method of disseminating
chemical agents has been the use of explosives. These usually have taken the
form of central bursters expelling the agent laterally.Efficiency is not
particularly high [due to] incineration . . . . Particle size will vary, since
explosive dissemination produces a bimodal distribution of liquid droplets of
an uncontrollable size . . . . The efficacy of explosives and pyrotechnics for
dissemination is limited by the flammable nature of some agents. . . .
Aerodynamic dissemination technology allows non-explosive delivery from a
line source. Although this method provides a theoretical capability of
controlling the size of the particle, the altitude of dissemination must be
controlled and the wind direction and velocity known. . . . An important factor
in the effectiveness of chemical weapons is the efficiency of dissemination as
it
is tailored to the types of agent. The majority of the most potent of chemical
agents are not very volatile. . . . The agent must be dispersed within the
boundary layer (<200-300 ft above the ground) and yet high enough to allow
effective dispersal of the agent. . . . A more recent attempt to control aerosol
particle size on target has been the use of aerodynamic dissemination and
sprays as line sources.
By modification of the rheological properties of the liquid, its
breakup when subjected to aerodynamic stress can theoretically be controlled and
an
idealized particle distribution achieved. In practice, the task is more
difficult, but it
represents an area where a technological advance could result in major munition
performance improvements.
The altitude of dissemination must be controllable
and the wind direction and velocity known for a disseminated liquid of a
predetermined particle size to predictably reach the ground and reliably hit a
target. Thermal dissemination, wherein pyrotechnics are used to aerosolize the
agent[,] has been used particularly to generate fine, inhalable clouds of
incapacitants. Most of the more complex agent molecules, however, are
sensitive to high temperatures and can deteriorate if exposure is too lengthy.
Solids are a notoriously difficult problem for dissemination, since they tend to
agglomerate even when pre-ground to desired sizes. Dispersion considers the
relative placement of the chemical agent munition upon or adjacent to a
target immediately before dissemination so that the material is most efficiently
used. For example, the artillery rockets of the 1950’s and early 1960’s
employed a multitude of submunitions so that a large number of small agent
clouds would form directly on the target with minimal dependence on
2010]
NANOTECH AGENTS
887
addition to the different physics and biology inherent in their
small size,102
swarming,103
and emergence104
technologies may
allow precise dosing by terminating targeting once a lethal dose
has been achieved.105
How much of this really is science fiction, one can only
speculate. It is interesting, though, that BBC News reported in
2008 that:
A tiny chemical “brain” which could one day act as a remote
control for swarms of nano-machines has been invented. The
molecular device—just two billionths of a metre across—was
able to control eight [nanomachines] simultaneously in a
test. . . . “If [in the future] you want to remotely operate on a
tumour you might want to send some molecular machines
there,” explained Dr. Anirban Bandyopadhyay of the
International Center for Young Scientists, Tsukuba,
Japan. . . . “But you cannot just put them into the blood and
[expect them] to go to the right place.” Dr. Bandyopadhyay
believes his device may offer a solution. One day you may be
able to guide the nanobots through the body and control
their functions, he said.106
meteorology. Another variation of this is multiple “free” aerial sprays such as
those achieved by the BLU 80/B Bigeye weapon and the multiple launch
rocket system. While somewhat wind dependent, this technique is considerably
more efficient in terms of agent quantities. In World War I, canisters of
chlorine were simply opened to allow the gas to drift across enemy lines.
Although this produced limited results, it is indicative of the simplicity of
potential means of dispersion . . . . There is sufficient open literature
describing the pros and cons of various types of dissemination to dictate the
consideration of all of them by a proliferant.
Federation of American Scientists: Chemical Weapons Delivery,
http://www.fas.org/
programs/ssp/bio/chemweapons/delivery.html (last visited Apr. 3, 2010) (emphasis
added).
102.
See
ALTMANN,
supra
note 36,
at 1.
103.
See generally
Sean J. A. Edwards, Swarming and the Future of Warfare, (Sept.
2004) (unpublished Ph.D. dissertation, Pardee Rand Graduate School),
available at
http://www.rand.org/pubs/rgs_dissertations/2005/RAND_RGSD189.pdf) (describing
swarming as an effective warfare tactic when military operations are
decentralized and
non-linear).
104.
See generally
Peter A. Corning,
The Re-Emergence of “Emergence”: A Venerable
Concept in Search of a Theory, Institute for the Study of Complex Systems,
COMPLEXITY,
July–
Aug. 2002, at 18. (recounting the history of the term “emergence” and detailing
some of
its current usages).
105. A simple emergence feedback limit could, for example, direct devices
elsewhere once an underlying prime concentration level had been achieved.
106. Jonathan Fildes,
Chemical Brain Controls Nanobots,
BBC NEWS,
Mar 11, 2003,
http://news.bbc.co.uk/nol/ukfs_news/mobile/newsid_7280000/newsid_7288400/
888
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It is the prospect of a self-guided nanobot, self-controlling their
functions, which seems to particularly trouble military
commentators.107
As the AEPI asked, are “nanomachines . . .
chemical weapons under the provisions of the Chemical
Weapons Convention?”108
To answer that question, others need to be answered: What
are the currently applicable treaties, and do they need to be
modified? To understand their reach it is necessary to first begin
with the core treaty which is still binding, and which is
incorporated in all other currently applicable law, the 1925
Geneva Gas Protocol.109
Indeed, to understand where we are
today, we must closely examine the protocol’s history, reaching
back to the 19th century.
II.
TREATIES APPLICABLE TO NANOWEAPONS
A.
Facially Applicable Treaties
Several treaties are facially applicable to at least some nanorelated
weapons. They include the 1925 Geneva Gas Protocol, as
well as the more recent Biological and Chemical Weapons
Conventions. Because their background and negotiation are
directly relevant to their coverage, this Article deals with those
points in considerable detail.
1. The 1925 Geneva Gas Protocol
The 1925 Geneva Gas Protocol (“1925 Protocol”) was an
important step in global attempts to ban chemical and biological
weapons but it was neither the first, nor the only step.110
In its
7288426.stm (second alteration in original);
see also
Anirban Bandyopadhyay &
Somobrata Acharya,
16-Bit Parallel Processing in a Molecular Assembly,
105 PROC.
NAT’L
ACAD.
SCI.
3668, 3668 (2008) (describing how a 16-bit molecular assembly machine
“represents a significant conceptual advance to today’s fastest processors,
which execute
only one function at a time”).
107.
See, e.g.,
MCGUINNESS,
supra
note 3, at 14; Henley,
supra
note 56, at 5; Nygren,
supra
note 6, at 15.
108.
See
MCGUINNESS,
supra
note 3, at 27.
109. Geneva Protocol,
supra
note 23.
110. A quarter of a century earlier, the second declaration produced by the
first
Hague Peace Conference in 1899 provided that “The Contracting Powers agree to
abstain from the use of projectiles the object of which is the diffusion of
asphyxiating or
deleterious gases.” Declaration (IV, 2) Concerning Asphyxiating Gases, Jul. 29,
1899,
2010]
NANOTECH AGENTS
889
article-by-article review of the CWC prior to U.S. ratification, the
Defense Treaty Inspection Readiness Program (“DTIRP”) noted
that:
The fourth preambular paragraph [of the CWC] recognizes
that the Convention reaffirms the principles and objectives
of, and obligations assumed under, the Geneva Protocol of
1925 and [the BWC] . . . . The Geneva Protocol of 1925, read
together with the reservations made to it,
amounts to a ban on
the first use of chemical weapons
insofar as it relates to the
United States.111
How did that ban on poison gas come into effect, and what
does it cover? The first question is important to understand the
intent of the drafters and signatories; the second is vital since its
terms are incorporated into and reiterated by both the CWC and
the BWC,112
and are unquestionably current and binding
international law.
187 Consol. T.S. 453,
reprinted in
THE
HAGUE
CONVENTIONS
AND
DECLARATIONS
OF
1899
AND
1907, at 250 (James Brown Scott ed., 3d ed. 1918) [hereinafter “Hague
Asphyxiating Declaration”]. The 1925 Protocol represents the first multilateral
treaty
actually coming into effect which, at least in some instances, banned first use
of
chemical weapons in armed conflicts. It was only applicable to signatory
parties, and was
subject to use of chemical weapons for reprisal, but it proved, as discussed
below,
surprisingly effective. Even nonsignatory states, such as the United States
(which signed
but did not obtain Senate ratification until 1975), repeatedly declared their
intention to
abide by its terms in wartime.
See
Barton J. Bernstein,
Why We Didn’t Use Poison Gas in
World War II,
AM.
HERITAGE,
Aug./Sept. 1985,. at 40 (“During World War II,
international law did not actually bar the United States from using gas warfare—
although America had signed the 1925 Geneva. Protocol outlawing gas, the Senate
had
never ratified it. Yet every peacetime President from Warren G. Harding to
Franklin D.
Roosevelt had defined gas as immoral and pledged to abide by the agreement.”).
111. S. TREATY
DOC.
NO.
103-21, at 2 (1993) (emphasis added);
see also
Chemical
Weapons Convention,
supra
note 10, art. XIII (“Nothing in this Convention shall be
interpreted as in any way limiting or detracting from the obligations assumed by
any
State under the Protocol for the Prohibition of the Use in War of Asphyxiating,
Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at
Geneva
on 17 June 1925, and under the Convention on the Prohibition of the Development,
Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and
on
Their Destruction, signed at London, Moscow and Washington on 10 April 1972”).
112. The 1925 Geneva Gas Protocol was later incorporated into the preamble to
the Biological Weapons Convention:
Recognising the important significance of the Protocol for the
Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and
of Bacteriological Methods of Warfare, signed at Geneva on June 17, 1925, and
conscious also of the contribution which the said Protocol has already made,
and continues to make, to mitigating the horrors of war,
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FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
a. Why Gas Mattered
It is not often that legal analysis can legitimately coalesce
with picture and poem, but I can think of no better way to give
some flavor to the contemporary reader of the horror with which
the general public and the average veteran viewed gas warfare in
the decade after the end of the Great War. The work reproduced
below is the pictorial counterpoint to Wilfred Owen’s poetry113
Reaffirming their adherence to the principles and objectives of that
Protocol and calling upon all States to comply strictly with them,
Recalling that the General Assembly of the United Nations has repeatedly
condemned all actions contrary to the principles and objectives of the Geneva
Protocol of June 17, 1925
Biological Weapons Convention,
supra
note 13, pmbl. Similarly, the preamble to the
Chemical Weapons Convention provides in part: “Recognizing
that this Convention
reaffirms
principles and objectives of and
obligations assumed under the Geneva Protocol of
1925,
and the Convention on the Prohibition of the Development, Production and
Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their
Destruction
signed at London, Moscow and Washington on 10 April 1972.” Chemical Weapons
Convention,
supra
note 10, pmbl. (second emphasis added).
113. Most especially, being Owen’s completely accurate and terribly effective
Dulce
et Decorum Est.
Wilfred Owen,
Dulce et Decorum Est,
in
THE
COLLECTED
POEMS
OF
WILFRED
OWEN
55 (C. Day Lewis ed., Pantheon 1964). The author has never come
across a better description of the sensations that he experienced when masking
in a U.S.
army practice gas chamber than “an ecstasy of fumbling.”
Id.
Contemporary descriptions
of German gas shells affirm their unique sound of Owen’s “hoots.”
See, e.g.,
L.F. HABER,
THE
POISONOUS
CLOUD:
CHEMICAL
WARFARE
IN THE
FIRST
WORLD
WAR
189, 192 (1986)
(describing the noise that Allied forces associated with the detonation of gas
shells as a
distinctive “plop”). The poem reads in full:
Bent double, like old beggars under sacks,
Knock-kneed, coughing like hags, we cursed through sludge,
Till on the haunting flares we turned our backs
And towards our distant rest began to trudge.
Men marched asleep. Many had lost their boots
But limped on, blood-shod. All went lame; all blind;
Drunk with fatigue; deaf even to the hoots
Of tired, outstripped Five-Nines that dropped behind.
Gas! Gas! Quick, boys!—An ecstasy of fumbling,
Fitting the clumsy helmets just in time;
But someone still was yelling out and stumbling,
And flound’ring like a man in fire or lime . . .
Dim, through the misty panes and thick green light,
As under a green sea, I saw him drowning.
In all my dreams, before my helpless sight,
He plunges at me, guttering, choking, drowning.
If in some smothering dreams you too could pace
Behind the wagon that we flung him in,
2010]
NANOTECH AGENTS
891
which epitomized the popular revulsion against the war,
politicians, industry, and propaganda that seized the general
public, especially in the Western democracies, at the end of the
war.114
That horror, especially with gas warfare,115
was a tangible thing
which directly affected international policy after November 11,
And watch the white eyes writhing in his face,
His hanging face, like a devil’s sick of sin;
If you could hear, at every jolt, the blood
Come gargling from the froth-corrupted lungs,
Obscene as cancer, bitter as the cud
Of vile, incurable sores on innocent tongues,—
My friend, you would not tell with such high zest
To children ardent for some desperate glory,
The old Lie; Dulce et Decorum est
Pro patria mori.
Id.
Among the many other English language “war poets” were Edmund Blunden, Robert
Graves, Isaac Rosenberg, and Siegfried Sassoon.
See
THE
PENGUIN
BOOK
OF
FIRST
WORLD
WAR
POETRY
(George Walter ed., 2004);
see also
THE
OXFORD
BOOK
OF
WAR
POETRY
(Jon
Stallworthy ed., 1984).
114. In Sargent’s painting the sky is yellow in the aftermath of a mustard gas
attack.
Mustard gas may appear as a yellow-brown cloud, but if it was present in the
levels
presented, the soldiers in the painting would not be standing in line unmasked.
See
Mustard Gas - Council on Foreign Relations,
http://www.cfr.org/publication/9551/#p1
(last visited Apr. 3, 2010). Rather, Sargent is adding to the horror of the
viewer with a
certain level of artistic license.
115.
See, e.g.,
JOHN
ELLIS,
EYE
DEEP
IN
HELL:
TRENCH
WARFARE
IN
WORLD
WAR
1,
65-68 (1976) (quoting, among others, a nurse as saying, “I wish those people . .
. could
see the poor things burnt and blistered all over with great mustard-coloured
suppurating
blisters, with blind eyes . . . all sticky and stuck together, and always
fighting for breath,
with voices a mere whisper, saying that their throats are closing and they know
they will
choke.”).
Figure 1.
John Singer Sargent,
Gassed
(Imperial War Museum, London 1918–1919).
Reprinted from John Singer Sargent Virtual Gallery, http://www.jssgallery.org/
paintings/gassed/gassed.htm.
892
FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
1918.116
“The public . . . was influenced by many dramatic
illustrations of gas warfare in photographs and some deeply
moving paintings. Gas was looked on as something particularly
wicked, something unfair and cowardly, against which a ‘fair
fight’ was impossible.”117
Certainly, gas proponents knew that intense distaste was a
threat to their future. The Chemical Warfare Service of the
United States Army, and the U.S. chemical industry, especially
Dupont118
and Dow Chemical,119
had a vested interest in the
continued use of poison gases as weapons of war. As early as 1921
116. Ludwig Haber notes that:
[R]omanticism versus technology had a powerful intellectual attraction to
many famous authors, and it led directly to the campaigns for the control of
what the French called “armes
desloyales”
for which the nearest translation is
“unfair weapons”. The argument even had its technical side: many infantry
and artillery officers were baffled by poison gas . . . . Finally, we need to
bear in
mind that until 1918 the British and the French were more affected by gas
than the Germans. . . . [I]n the course of 1918 the situation altered. . . .
[I]n
the last year of the war, German writers . . . changed their perceptions. [Eric
Maria] Remarque’s All Quiet on the Western Front . . . reached a vast
audience and with him . . . effects of the First World War on the minds of the
masses began.
HABER,
supra
note 113, at 231. See also Haber’s discussion of Sargent’s
Gassed,
supra
note 114; Owen’s
Dulce et Decorum Est, supra
note 113; HABER,
supra
note 113, at 233;
and TIM
COOK,
NO
PLACE
TO
RUN,
THE
CANADIAN
CORPS
AND
GAS
WARFARE
IN
THE
FIRST
WORLD
WAR
7–8 (1999) (presenting Owen’s poem as “the true face of poison
gas . . . .”).
117. WILLIAM
MOORE,
GAS
ATTACK:
CHEMICAL
WARFARE
1915–18
AND
AFTERWARDS
195 (1987).
118.
See
SPECIAL
COMM.
INVESTIGATION
OF THE
MUNITIONS
INDUS.,
PARTIAL
PRELIMINARY
REPORT
ON
WARTIME
TAXATION
AND
PRICE
CONTROL,
S. REP.
NO.
74-944,
pt. 3, at 3–13 (1936).
119.
See Munitions Industry: Hearings Before the Spec. Comm. Investigating the
Munitions
Industry Pursuant to S. Res. 206,
73d Cong., pt. 11, at 2564–68 (1934) [Spec.
Comm.
Hearings on Munitions]
(exhibit to testimony reproducing a speech delivered by William
J. Hale, Vice President of Dow Chemical Company). The U.S. chemical dye industry
desired both a protective tariff and an embargo on chemical imports into the
United
States, ostensibly to protect the industry’s readiness and ability to produce
chemical
weapons.
See
FREDERIC
BROWN,
CHEMICAL
WARFARE:
A STUDY
IN
RESTRAINTS
56–59
(1968). Brown notes that, “[t]he propaganda used by the dye industries was both
virulent and effective. . . . In short, a continuous stream of gas propaganda
was
maintained throughout the early 1920’s.”
Id.
at 59. In arguing for a protective tariff
before a professional fraternal organization, Doctor William Hale described gas
as “the
most effective weapon of all time [and] the most humane ever introduced into war
by
man.”
Spec. Comm. Hearings on Munitions,
supra,
at 2565. He then went on to state, “In
this war after the war our battle cry must be ‘To Hell with all the German
imports! Down
with every thing opposed to American industries!’”
Id.
at 2568.
2010]
NANOTECH AGENTS
893
Brigadier General Amos Fries, the chief of what was then the
Army’s Chemical Warfare Service, argued that:
[Gas] is far from being the most horrible form of warfare,
provided both sides are prepared defensively and offensively.
Medical records show that out of every 100 Americans
gassed, less than two died, and as far as records of four years
show, very few are permanently injured. . . . Various forms of
gas . . . make life miserable or vision impossible to those
without a mask. Yet they do not kill.120
Fries’ chapter on “The Future of Chemical Warfare” is telling,
both for what it says and for the defensive language it uses about
critics of gas as a legitimate weapon:
The pioneer, no matter what the line of endeavor,
encounters difficulties caused by his fellow-men just in
120. AMOS
FRIES
& CLARENCE
WEST,
CHEMICAL
WARFARE
13 (1921). Fries
expanded on that position in his testimony before the United States Senate:
I consider [gas] one of the most important agents in any possible future war. It
caused, even in the last war, when the Germans never fully realized the power
of it until it was too late, and the enemy was never able to produce all he
wanted—it caused over 27 per cent of all the American casualties, although
the death rate was very light from gas. If you take out the deaths from other
causes, the percentage of wounded rises to almost one third of all our
wounded.
Tariff Act of 1921 and Dyes Embargo: Hearing on H.R. 7456 Before the Comm. on
Finance,
67th Cong.
387 (1921) (statement of Amos Fries, Brigadier General). Robert Harris and
Jeremy Paxman would respond later:
[A]dvocates of chemical warfare later argued that gas was actually the most
humane
of the weapons used in the First World War, wounding far more than it
killed. But the figures do not reveal either the horror or the persistence of
gas
wounds. Nor do they show the psychological casualties. As the fighting
dragged on, the constant state of gas readiness imperceptibly sapped men’s
strength and fighting spirit.
ROBERT
HARRIS
& JEREMY
PAXMAN,
A HIGHER
FORM
OF
KILLING
18 (2002).
[T]here appears to have been a deliberate campaign to underestimate the
number of men killed and wounded by gas. Officially, 180,193 British soldiers
were gassed, of whom just 6,062 were killed. However, the list of categories
these numbers
do not
include is staggering. . . . Apologists for gas warfare used
the statistics to argue that gas was “humane” . . . . And what of the victims of
these “civilized” weapons? In Britain in 1920, 19,000 men were drawing
disability pensions as a result of war gassing. . . . In 1929 Porton [Down
Research Station] investigated a further seventy-two cases of mustard gassing
and found evidence of fibrosis, TB, persistent laryngitis, TB of the spine,
anemia, aphonia, conjunctivitis and pulmonary fibrosis. These, of course, were
secret reports, only declassified years later. In public, Porton maintained that
the popular press “scare-mongered” about the long term effects of gas
poisoning.
Id.
at 36–37.
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FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
proportion as the thing pioneered promises results. . . . [If]
the results promises to be great, and especially if the rewards
promised to the investor and those working with him
promises to be considerable, the difficulties thrown in the
way of the venture become greater and greater. Indeed,
whenever great results are promised, envy is engendered in
those in other lines whose importance may be diminished or
who are so short-sighted as to be always opposed to
progress.121
Fries’ anger at what he clearly considered the ignorance and
illogic of those who oppose gas warfare come through at the
conclusion of his book:
[W]hat should . . . any highly civilized country consider
giving up chemical warfare. To say that its use against savages
is not a fair method of fighting, because the savages are not
equipped with it, is arrant nonsense. No nation considers
such things today. If they had, our American troops, when
fighting the Moros in the Philippine Islands, would have had
to wear the breechclout and use only swords and spears.
Notwithstanding the opposition of certain people who,
through ignorance or for other reasons, have fought it,
chemical warfare has come to stay . . . . It is just as sportsmanlike
to fight with chemical warfare as it is to fight with
machine guns. . . The American is a pure sportsman and asks
odds of no man. He does ask, though, that he be given a
square deal. He is unwilling to agree not to use a powerful
weapon of war when he knows that an outlaw nation would
use it against him . . . . How much better it is to say to the
world that we are going to use chemical warfare to the
greatest extent possible in any future struggle.122
Fries, as it turns out was incorrect in his expectations,123
but
for a very long time his arguments carried a great deal of
weight.124
What they demonstrate here is the other side of a long
and bitter conflict about the morality of using poison gas in war.
121.
Id.
at 435. Fries’ comments here appear to be aimed at officers of other
branches who thought chemical warfare dishonorable, ineffective, or both.
See, e.g.,
discussion of intervention by U.S. representatives in negotiations for the
Washington
Naval Treaty in 1922,
infra
at 215.
122.
Id.
at 438–39.
123. Eventually, there was a complete ban on possession and development though
it took over seventy years.
124. For example, Fries was cited in and supported by Russell Ewing,
The Legality of
Chemical Warfare,
61 AM.
L. REV.
58 (1927), who argued that:
2010]
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895
b. Efforts to Regulate Poisons and Gases Before World War I
There had, in fact, been considerable discussion of
poisonous and asphyxiating gases before their wide use began in
1915. Part of the reason was the recognition of the illegality of
poisonous weapons articulated in U.S. Army General Order 100
in 1863.125
Another was the philosophy articulated by Czar
Nicholas II of Russia in his proposition for what became the
Hague Conference of 1899: “Hundreds of millions are devoted
to acquiring terrible engines of destruction, which, though today
regarded as the last word of science, are destined tomorrow to
In defiance of facts, experience and history, the nations of the world are still
striving to outlaw chemical warfare. This is due in part to blind ignorance,
lack
of imagination, and, in no small degree, to misinformation. It may seem
incredible but we have a situation in this country where the American Legion,
a group of men who have fought in the last war and many of whom would fight
in the next one should another come, favor chemical warfare as over against
other weapons while the President and his administration are opposed to its
use and are attempting to outlaw it.
Id.
at 60. He adds that:
[A]nti-gas sentiment as embodied in the [1925 Geneva Gas Protocol] but the
only logical conclusion that can be drawn is that it was insincere. The
delegates
had their ears to the ground and followed the popular clamor of the moment,
disregarding history, the established practice, and the admitted facts regarding
the efficiency and humanity of chemical warfare. Such has always been the
course of these so-called world conferences. They proclaim some . . . scheme
. . . only to be soon forgotten or disregarded.
Id.
at 73. He concludes:
Owing to the primordial aversion to the new, combined with prejudice,
propaganda, and the desire of statesmen and diplomats for popular acclaim, it
has been easy in peace time to secure conventions of this nature. But when
whole populations become fanned into a passion and war in all its grim and
sordid reality comes, “military necessity” will compel the contending parties to
employ the most efficient weapons at their disposal.
Id.
at 75–76.
125.
See
FRANCIS
LIEBER,
INSTRUCTIONS
FOR THE
GOVERNMENT
OF
ARMIES
OF THE
UNITED
STATES
IN THE
FIELD
(Gov't Printing Office 1898) (1863) (initially published as
U.S. War Dep't, General Orders No. 100 (Apr. 24, 1863)). The so-called “Lieber
Code”
was named for its principal initial drafter Columbia University law professor
Francis
Lieber. The Lieber Code was widely accepted by European powers in the decades
following its promulgation.
See
FRANCIS
LEIBER,
AND THE
CULTURE
OF THE
MIND
58
(Charles R. Mack & Henry H. Lesesne eds., 2005) Its significance to the laws of
war
cannot be overstated.
See
JOSEPH
H. CHOATE,
THE
TWO
HAGUE
CONFERENCES
13 (1913)
(“This [1899 Hague Conference] codification of the laws and customs of land
warfare
was based on the Laws and Customs of Warfare adopted by the Brussels Conference
in
1874, which in turn grew out of Dr. Francis Lieber’s Instructions for the
Government of
Armies in the Field, Known as General Order 100 of 1863.”).
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FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
lose all value in consequence of some fresh discovery in the same
field.”126
Choate discusses the gas provision of the First Conference:
“In the same spirit of humanity, the Conference of 1899, after
much discussion, agreed to abstain from the use of projectiles,
the object of which is the diffusion of asphyxiating of deleterious
gases . . . .”127
In fact, in 1899 it was the Russian delegate who
introduced the asphyxiating gases proposal, and who, when
others objected that all explosives produced gases which might
asphyxiate, defined the prohibition to “include only those
projectiles whose object is to diffuse asphyxiating gases, and not
to those whose explosion produces incidentally such gases.”128
Choate then discusses the prohibition, at the 1907 Conference,
of the launching of projectiles from balloons, which he says was
embodied in the comment of a British delegate who asked what
purpose would “be served by the protective measures already
adopted for war on land, if we open to the scourge of war a new
field more terrible perhaps than all the others?”129
The second Hague reiteration of the 1899 ban on poison
weapons,130
and the continuation of the 1899 limits on
asphyxiating gases seemed quite clear, and yet eight years after
the 1907 Convention, Germany deployed chlorine gas at Ypres,
Belgium.131
What happened in 1915 and in the ensuing years of
World War I and, more importantly for present purposes, what
126. CHOATE,
supra
note 125, at 5–6.
127.
Id.
at 15. But note, that in 1899, Captain Alfred Thayer Mahan, then the U.S.
delegate, and later author of the highly influential THE
INFLUENCE
OF
SEAPOWER
UPON
HISTORY
1660-1783 (Pelican Publishing Company 2003) (1890), voted against banning
gas and argued that no practical asphyxiating shell had been developed and there
was
no proof it would be crueler than other forms of warfare. CARNEGIE
ENDOWMENT
FOR
INTERNATIONAL
PEACE,
INSTRUCTIONS
TO THE
AMERICAN
DELEGATES
TO THE
HAGUE
PEACE
CONFERENCES
AND
THEIR
OFFICIAL
REPORTS
36 (1916); see
also
Hague
Asphyxiating Declaration,
supra
note 110.
128. WILLIAM
HULL,
THE
TWO
HAGUE
CONFERENCES
AND
THEIR
CONTRIBUTIONS
TO
INTERNATIONAL
LAW
87 (1908).
129.
Id.
at 14 (quoting Lord Reay, one of the British delegates).
130.
Compare
Convention with Respect to the Laws and Customs of War on Land
Annex art. XXIII, July 29, 1899, 32 Stat. 1803, 1 Bevans 247 (“[I]t is
especially
prohibited . . . [t]o employ poison or poisoned arms . . . .”),
with
Convention Respecting
the Laws and Customs of War on Land Annex art. 23, Oct. 18, 1907, 36 Stat. 2277,
1
Bevans 631 (“[I]t is especially prohibited . . . [t]o employ poison or poisoned
arms . . . .”).
131.
See, e.g.,
SIMON
JONES,
WORLD
WAR
GAS
WARFARE
TACTICS
AND
EQUIPMENT
4–
8 (2007) (chronicling the the decision to use gas shells and the siege of
Ypres).
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NANOTECH AGENTS
897
impact did the use of gas and its rationale at the time have on
Post-World War I treaty making?
c. What Happened in the Great War?
At the very core of the legal dispute involving German use of
gas in 1915 were drafting ambiguities in the pertinent treaties:
Did “asphyxiating” cover gases which worked through other
means such as skin absorption? Did “poison” cover nonlethal or
allegedly nonlethal weapons? Was release of gas from cylinders
within the coverage of the ban on “projectiles?” Were fine
powders considered as gases if they had the same effect?
Germany’s arguments were widely discussed both during,
and immediately after the war. Germany took the position that
France had made “prior use of asphyxiating gases.”132
It cited
instructions issued by the French Ministry of War on February 21,
1915 concerning grenades and gas cartridges containing
“stupefying gases,” the purpose of which was to “make untenable
the surroundings of the place where they burst.”133
The
instructions provided that “the vapors [of the] asphyxiating gases
are not deadly, at least when small quantities are used.”134
The
Germans took the position that, of necessity, the French were
admitting the gases were deadly in large quantities, and that they
were simply reprising with their later attacks.135
Ludwig F. Haber, the son of the man who was held
responsible for Germany’s use of chlorine gas in 1915,136
has
published an extensive study of the subject:
The spirit of the Conventions was surely clear enough: to
stop new and potentially more awful weapons. But the letter
was obscure and open to widely differing interpretations . . . .
When the Germans used gas at Ypres, they were held to be in
breach of the Conventions on several counts . . . [Germany]
argued at the time, and later, that (i) the Conventions did
not cover gas blown from cylinders, (ii) the Allies had used
132.
Official German Press Report of June 25, 1915,
in
3 THE
GREAT
EVENTS
OF THE
GREAT
WAR
138, 138 (Charles F. Horne ed., 1920).
133.
Id.
134.
Id.
at 139.
135.
See id.
136. Doctor Fritz Haber, 1868–1934, winner of the Nobel Prize for Chemistry in
1918.
See generally
DIETRICH
STOLTZENBERG,
FRITZ
HABER:
CHEMIST,
NOBEL
LAUREATE,
GERMAN,
JEW
(2004).
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FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
gas first, (iii) gases were not poisonous, and (iv) after the
war, gas shells were implicitly excluded because they were
not causing needless suffering . . . . [Haber seems to
conclude the German claims of Allied first use are
questionable at best]. The most one can say about gas and
smoke is that by the eve of the war military awareness of
chemical had increased to the extent that some soldiers were
willing to consider them and a very few, with a more
innovating turn of mind, were even experimenting with
various compounds. The substances used with the exception
of phosgene, were not toxic. There were no military stocks of
gases, nor of gas shell, save for very limited supplies tear gas
grenades and cartridges in French hands.137
The military reaction was mixed on both sides. The German
commander of the Army Corps at Ypres said in his memoires:
I must confess that the commission for poisoning the enemy,
just as one poisons rats, struck me as it must any
straightforward soldier; it was repulsive to me. If, however,
the poison gas were to result in the fall of Ypres, we would
win a victory that might decide the entire campaign. In view
of this worthy goal, all personal reservations had to be
silent . . . . War is necessity and knows no exception.138
It is important here to note that many of the weapons used by
both sides were not gases per se. Rather, they often involved
particles of toxic materials disbursed in smokes and or by shell
fragmentation.139
Thus, Haber points out:
[T]he particular anxiety caused by the German Blue Cross
shells [was] with their arsenical filling. Whilst the German
method of disbursing the active agent by high explosive
fragmentation ensured that it would have little toxic effect,
there were occasions when particulates capable of penetrating the
137. HABER,
supra
note 113, at 19–21.
138. TUCKER,
supra
at note 42, at 13, 392 (quoting BERTHOLD
VON
DEIMLING,
AUS
DER ALTEN IN DIE NEUE
ZEIT
201 (Berlin, 1930));
see also
STEPHANE
AUDOIN-ROUZEAU
&
ANNETTE
BECKER,
14-18: UNDERSTANDING
THE
GREAT
WAR
155 (2000).
139. As the
Military Law Review
points out:
The gas shell used in 1915 . . . evolved from an earlier model which was first
used in October 1914. At that time double salts of dionialine was added to the
powder of the projectile.
The irritant would hover as dust in the air
after the shell
burst. It was not very intense. Nevertheless, an unnoticed important first step
had been taken toward gas warfare.
Joseph Kelly,
Gas Warfare in International Law,
9 MIL.
L. REV.
1, 7 (1960) (emphasis
added).
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SBR140
were produced
. . . . Blue Cross shells were a potential
danger, and the
Allied experts were concerned that the Germans
might introduce arsenical smoke generators;
soldiers would
thereby be rendered so debilitated that they couldn’t fight
any more.141
Finally, Haber again raises the issue of the Hague conventions:
The agreements were negotiated and signed at a time when
statesmen were supposed to have moral standards, and it was
generally expected that such declarations of principles . . .
would be respected by all belligerents in a future war. The
events of August-September 1914 [German’s invasion of
Belgium] dented these illusions, the German [use] of
chlorine the following spring shattered them, and set a
precedent [contemporary language] still conveys the
emotional shock. Conan Doyle wrote that the Germans had
“sold their souls as soldiers” . . . it was only a short step to
legitimize the use of gas at all times, and not solely in
retaliation against the enemy’s first use. . . . The German
post-war attitude was that the Hague Conventions still
applied, indeed they had not been breached in 1915–18.
[Furthermore] in any case the Germans had not been guilty
of a precedent for it was the French who had first used
bullets and shells with toxic materials.142
Haber concludes that the practical effect of these attitudes
was that international agreements to abandon poison gas would
be meaningless unless accompanied by peacetime verification
and wartime sanctions against transgressors.143
The Allies, as
victors, and eventually as treaty negotiators, seemed to disagree
with that conclusion, for in the postbellum period they produced
a number of treaties designed to prevent future uses of
poisonous and asphyxiating gases and similar “processes” or
“devices.”144
What they meant by those words is a key to analysis
in this Article.
140. The small box respirator (“SBR”) was the last World War I version of the
British protective mask.
See
JONES,
supra
note 131, at 31–32.
141. HABER,
supra
note 113, at 256 (emphasis added).
142.
Id.
at 291.
143.
Id.
144. As will be discussed below, the use of the words “processes” as opposed to
the
word “devices” is a key part of the Author’s analysis leading to his conclusion
that it was
the intent of the drafters from 1919 to 1925 to ban something more than just
toxic and
asphyxiating gases, and that they specifically knew and predicted that
additional new
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FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
d. Post-War Efforts to Control Chemical Warfare
The fear of chemical war in general, while initially pointed
at Germany, was, in fact, by the end of the decade, directed
generally at all industrialized powers. In 1928, a French author
predicted that:
Everyone foresees this new form of plague will rapidly
progress. No one doubts that if war explodes again each side
will use chemical weapons which will play the central role;
everything else will be an accessory. These weapons, studied
in secret and prepared in the world’s laboratories, will
become progressively more deadly.145
Bernauer summarizes the post-war situation:
Increasing public awareness of the horrors of chemical
warfare stimulated further efforts aimed at a ban on
[chemical weapons]. The Treaty of Versailles prohibited
Germany, the State which had used chemical weapons first in
World War I, from manufacturing or importing poisonous
gases. Other peace treaties of 1919-20 contained similar
provisions. The Treaty of Washington which was to limit the
use of submarines, but never entered into force, included
limitations on the use of noxious gases . . . . In May, 1925, a
conference on methods to control the international arms
trade was convened in Geneva within the framework of the
League of Nations. At this conference the United States
initially proposed a prohibition of the export of chemical
weapons. Many states objected to such a ban . . . . The
United States therefore proposed to conclude an agreement
banning the use of chemical weapons in war.146
As a result of
a Polish initiative, biological means of warfare were added.
On 17 June 1925 the “Protocol for the Prohibition of the
Use in War of Asphyxiating, Poisonous or Other Gases, and
of Bacteriological Methods of Warfare” was adopted. It was,
types of weapons would mimic but not take the same physical form as the existing
chemical weapons.
See
discussion
infra
Part II.A.1.d.i.
145. HENRI
LEWITA,
AUTOUR
DE LA
GUERRE
CHIMIQUE
39 (1928) (Fr.) (author’s
translation).
146. The use of the word “therefore” may not be entirely accurate. As discussed
infra
in Part II.A.1.d.iii, the reasons for the U.S. proposal of a ban on use of
chemical
weapons seemed to lie in domestic politics rather than within the conference
negotiations.
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901
by and large, modeled after Article 5 of the Washington
Treaty of 1922.147
The initial steps to reach that protocol began, as Bernauer
notes, with the drafting in 1919 of the Treaty of Versailles148
which ended the war between Germany and the Allies, and
continued with the other separate treaties ending the war with
other members of the Central Powers.149
i. The Treaties Ending the War
The language most often cited as a starting point for the
post-World War I legal treatment of chemical weapons is article
171 of the Treaty of Versailles: “The use of asphyxiating,
poisonous or other gases and all analogous liquids, materials or
devices being prohibited, their manufacture and importation are
strictly forbidden in Germany. The same applies to materials
specially intended for the manufacture, storage and use of the
said products or devices.”150
The French version of article 171
reads: “L’emploi
de gaz asphyxiants, toxiques ou similaires, ainsi que de
tous les liquides, matieres ou procedes analogues etaient prohibes, la
fabrication et l’importation en sont rigoureusement interdites en
Allemagne. Il en est de meme du materiel specialement destine a la
fabrication, a la conservation ou a l’usage desdits produits ou
procedes.”151
The broad language of the Allied drafters at Versailles was
not unintentional. Among the “main principles which guided the
Allies in framing the Military Terms” of the Treaty was to “avoid
all ambiguity, which might hereafter give Germany a pretext for
evading her obligations.”152
Verwey points out that, in fact, the
original text in article 5 of the pre-Versailles draft, “Concerning a
147. THOMAS
BERNAUER,
THE
PROJECTED
CHEMICAL
WEAPONS
CONVENTION:
A
GUIDE
TO
NEGOTIATIONS
IN THE
CONFERENCE
ON
DISARMAMENT
11–12 (1990) (citations
omitted).
148. Treaty of Peace between the Allied and Associated Powers and Germany, June
28, 1919, S. DOC.
NO.
66-49 (1919), 225 Consol. T.S. 188 [hereinafter Treaty of
Versailles].
149. BERNAUER,
supra
note 147, at 11–12.
As will be discussed below, those separate
treaties contained somewhat differing language in their articles relating to
bans on
possession of chemical weapons..
150. Treaty of Versailles,
supra
note 148, art. 171.
151.
Id.
(French text).
152. 2 HISTORY
OF THE
PEACE
CONFERENCE
OF
PARIS:
THE
SETTLEMENT
WITH
GERMANY
127 (H. Temperley ed., 1920).
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FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
Definitive Military Status of Germany,” provided: “Production or
use of asphyxiating, poisonous or similar gases, any liquid, any
material and any similar device capable of use in war are
forbidden.”153
“There is no doubt,” says Verwey, “that this
formulation was intended to mean ‘forbidden in and to
Germany’,154
since the Allied Powers certainly did not intend to
give up the production of chemical weapons themselves.”155
Later, he notes, the provision shows up as article 13 of the
“Naval, Military and Air Conditions of Peace” where the
Versailles article 171 language appeared.156
Verwey says that
“[t]here is no indication . . . in the records that the phrase ‘being
prohibited’ was inserted on purpose,” and that the discussions
rather point to the opposite conclusion; that the entire article
was related to Germany’s obligations alone . . . .”157
Verwey’s
conclusion that the gas articles of Versailles and other treaties
were aimed at the Central Powers alone seems to be the correct
interpretation,158
although its significance was, for present
153. WIL
VERWEY,
RIOT
CONTROL
AGENTS
AND
HERBICIDES
IN
WAR
262 (1977).
154. In their official response to protests of the treaty’s harshness from the
German
delegation at Versailles, the Allies stated that Germany was “the first to use
poisonous
gas notwithstanding the appalling suffering it entailed” and that,
inter alia,
was “why
Germany must submit for a few years to certain special disabilities and
arrangements.”
Georges Clemenceau,
Allied Reply to German Delegates’ Protest Against Proposed Peace Terms
at the Paris Peace Conference,
TIMES
(London), June 17, 1919, at 1,
reprinted in
13 AM
J.
INT’L
L. 545–52 (1919).
155. VERWAY,
supra
note 153, at 262. Harold Vaughn noted contemporaneously
that:
After what became routine statements in favor of the idea that all nations
should now disarm, the delegates did nothing except to strip the defeated
powers of their remaining military establishments, and then plan how to keep
them in a state of permanent military inferiority. Wilson’s fourth point called
for the reduction of national armaments ‘to the lowest point consistent with
domestic safety,’ but it was applied only to Germany.
HAROLD
VAUGHN,
VERSAILLES
TREATY,
1919; GERMANY’S
FORMAL
SURRENDER
AT THE
END
OF THE
GREAT
WAR
36 (Franklin Watts 1975).
156. VERWAY,
supra
note 153, at 262
157.
Id.
Verwey adds that this impression is supported by the insertion of
flamethrowers into the concomitant articles of the peace treaties with Austria
(article
135) and Hungry (article 119), noting “[i]t could hardly be [argued] that
anno
in 1919
flamethrowers were considered prohibited by specific customary international
law.”
Id.
158. Adolf-Boelling Overweg in 1937 thought article 171 was “eine Fiktion ohne
praktische Bedeutung.” That is, “a fiction without practical meaning.”
ADOLF-BOELLING
OVERWEG,
DIE
CHEMISCHE
WAFFE
UND DAS
VOLKERRECHT
69 (1937) (F.R.G.)
(author’s
translation). Overweg analyzes the background history of article 171 in
considerable
depth, but makes no mention of textual discrepancies regarding “devices” between
the
French and English versions.
See id.
at 64–72.
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purposes, mooted by subsequent developments in 1922 and
1925, when the later treaties incorporated and ratified the
relevant language.159
What is important for this Article, however, is the Versailles
ban on devices,160
which was, indeed, present in the drafts from
the very beginning.161
It is interesting to note that the various
treaties ending the war with the Central Powers were not exactly
the same regarding banned chemical weapons. As noted above,
article 171 of Versailles refers to “analogous liquids, materials or
devices.”162
The Treaty of St. Germaine-en-Laye,163
which ended
159. The conclusion seems logical, since everything in the drafting process of
the
post-war treaties was designed to prevent the losing parties from ever again
presenting a
military threat.
See
BROWN,
supra
note 119, at 52. He notes that:
There was . . . a significant difference between the first draft prepared by the
Foch Committee of the Supreme War Council on March 3, 1919, and the final
article. The draft article was blunt . . . .
“Production or use of asphyxiating, poisonous or similar gases, any liquid,
any material and any similar device capable of use in war are forbidden.”
The draft article was accepted without comment on March 6 and March 10,
1919. The regulations were redrafted to reflect substantive comments on other
articles between March 10 and March 17. In the redrafted regulations . . .
Article 5 became Article 13, and the wording was changed to that of the final
Article 171.
There is no indication that the change in wording was realized to be other
than procedural.
Id.
at 52–53 n.1. (emphasis added) (citations omitted);
see also
A HISTORY
OF THE
PEACE
CONFERENCE
OF
PARIS,
supra
note 152, at 134 (“Whatever we may do to reduce the
strength of the German Army, and to prevent the military training of the people,
there
are, and will for some time continue to be, in Germany several millions of men
trained
and inured to war. Similarly, there are large numbers of regimental and staff
officers,
with ample war experience. These are accomplished facts, which we are powerless
to
alter. On the other hand,
it is quite possible to deprive Germany of the arms, ammunition, and
material necessary for the equipment of a great army.”
(emphasis added)).
160. “Device” is currently defined in England as “A thing designed for a
particular
function or adapted for a purpose; an invention. A contrivance,
esp
a (simple)
mechanical contrivance . . . . An explosive contrivance,
esp.
a nuclear bomb” 1 SHORTER
OXFORD
ENGLISH
DICTIONARY
667 (6th ed. 2007). A more contemporaneous English
definition is not fundamentally different. “Something invented and constructed
for a
special purpose; an instrument or combination of instrumentalities formed with
intelligence and design; contrivance; as, a mechanical
device
for controlling vibration.” A
STANDARD
DICTIONARY
OF THE
ENGLISH
LANGUAGE
502 (London, Funk & Wagnalls
1895).
161. VERWEY,
supra
note 153, at 262.
162. Treaty of Versaille,
supra
note 148, art. 171.
163. Treaty of Peace between the Allied and Associated Powers and Austria, Sept.
10, 1919, S. DOC.
NO.
66-92 (1919), 226 Consol. T.S. 8 [hereinafter Treaty of St.
Germaine-en-Laye].
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FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
the war with Austria, added flamethrowers164
to the mix, but kept
the reference to devices: “The use of flamethrowers,
asphyxiating, poisonous or other gases, and all similar liquids,
materials or devices being prohibited . . . .”165
Apparently, there
“devices” still modifies “gases” since the language is unchanged
from Versailles except for the addition of flamethrowers.166
There has been considerable discussion about the meaning
of the word “similares” modifying asphyxiating and toxic gases in
the French version, versus the word “analogous” in the English
text.167
During the Vietnam conflict, the United States took the
164. The modern flamethrower was designed by Berlin engineer Richard Fiedler
and the German Army tested two models in 1901. Michael Dewar,
The First Flame Attacks,
in
TANKS
& WEAPONS
OF
WORLD
WAR
I, 47–48 (Bernard Fitzsimons ed., 1973). The
smaller version, more commonly used, was gas pressurized, light enough to be
manportable
and had a range of approximately twenty yards.
Id.
The larger version had a
forty-yard range.
Id.
The weapon was used as early as October, 1914, but its first major
use was at Hooge in July, 1915.
Id.
Other nations on both sides quickly adopted the
weapon, which was used extensively in World War II, and the Korean and Vietnam
Wars.
STEPHEN
BULL,
ENCYCLOPEDIA
OF
MILITARY
TECHNOLOGY
AND
INNOVATION
88–89
(2004). The United States unilaterally removed flamethrowers, but not flame
weapons,
from its arsenal in 1978.
See
Convention on Prohibitions or Restrictions on the Use of
Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or
to
Have Indiscriminate Effects, Protocol III arts. 1(a), 2(1), Oct. 10, 1980, S. TREATY
DOC.
NO.
103-25 (1981), 1342 U.N.T.S. 137 [hereinafter Conventional Weapons Convention]
(defining flamethrowers as incendiary weapons and limiting, but not prohibiting,
their
use). The subsequent use of flamethrowers, taken together with the Convention on
Conventional Weapons language, makes it clear that states have not viewed that
weapon
as a “device” covered by the 1925 Protocol or subsequent treaties.
165. Treaty of St. Germaine-en-Laye,
supra
note 163, art. 135.
166. Immediately before presentation of the draft Treaty of Versailles to
Germany
on May 10, 1919, the Council of Four (Lloyd George of England, Vittorio Emanuele
Orlando of Italy, Georges Clemenceau of France, and Woodrow Wilson of the United
States) decided to next complete the treaty with Austria-Hungary and ordered its
Central Secretariat to prepare a draft. 4 A HISTORY
OF THE
PEACE
CONFERENCE
OF
PARIS:
THE
SETTLEMENT
WITH
GERMANY
141–42 (H. Temperley ed., 1920). The military clauses
were drafted by the British section which followed the general arm limitations
imposed
on Germany.
Id.
at 143. The council’s military representatives adopted the British draft,
which followed the Versailles language precisely “except that the word
Flammenwerfer
[flamethrowers] was added in the first line of Article 135.”
Id.
at 150. Thus, the
modification of “gases” by “devices” not only preceded the additional word,
there was
apparently no intent to do anything other than add another banned weapon to a
convenient clause.
167. A General Conference for the Reduction and Limitation of Armaments under
the sponsorship of the League of Nations and attended by League members plus the
United States and the Union of Soviet Socialist Republics (“U.S.S.R.”) took
place in
Geneva from 1932 to 1934.
See
Mount Holyoke College, Department of International
Relations, Disarmament Discussions 1932-34,
http://www.mtholyoke.edu/acad/intrel/
WorldWar2/disarm.htm (last visited Apr. 3, 2010). In the preparatory work for
that
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NANOTECH AGENTS
905
position that the French text excluded tear gases because they
were not similar to choking or poisonous gases and others
disagreed because they thought tear gas “analogous.”168
There has not, however, been a similar discussion of
whether there is a distinction between “analogous devices” and
“procedes
analogues,”
in the second clause of the first sentence of
article 171.169
The word “devices” in the specific sense of related
equipment or application is better articulated with “appareil”
(apparatus) or “dispositif”
(device).170
While “procede”
may be
translated as “processes” in general circumstances, for example
technique de fabrication
(manufacturing technique), it also carries
a more specific meaning.171
“Procede”
has the strong connotation
of bringing about a similar result or end-state. One common
synonym for “procede”
appears to be “conduite”
(behavior).172
Indeed, a subtext of artificially obtaining an analogous result is
inherent in the word. It is therefore significant that the
conference, the British Foreign Office produced a Memorandum on Chemical Warfare
which pointed out “a serious ambiguity” regarding the translation of the word
“similaires” as “other.”
See Minutes of the Sixth Session (Second Part) of the Preparatory
Commission for the Disarmament Conference,
Minutes of Twentieth Meeting, December 2, 1930,
League of Nations Series No. 9, 311 (1931),
available at
http://digital.library.northwestern.edu/league/le00307h.pdf. The U.K. memorandum
proposed French and English language drafts which substituted the English word
“similar” for “other.”
Id.
More interesting here, the U.K. draft also substituted, without
comment, the word “processes” for “devices” as a translation for “procedes.”
Id.
The
conference adopted the U.K. draft, but, of course, it never produced even a
final draft
treaty before it dissolved in light of events which were to lead to the Second
World War.
168.
See infra
note 222.
169. Treaty of Versailles,
supra
note 148, art. 171;
see, e.g.,
Natalino Ronzitti,
Le
Desarmement Chimique et le Protocole de Geneve de 1925
[Chemical
Disarmament and the
Geneva Protocol of 1925],
35 ANNUAIRE
FRANCAIS
DE
DOIT
INTERNATIONAL
149 (1989)
(Fr.) (discussing at length the “similares” versus “other” debate, but never
mentions any
conflict between “analogous devices” and “procedes
analogues”).
170.
See id.
171. Relevant definitions from the Larousse Dictionary state:
�
Maniere d’agir, de se comporter : Ce sont la des procedes malhonnetes.
[Manner of acting or behavior. They are proceeding dishonestly.]
�
Maniere de s’y prendre, methode pratique pour faire quelque chose : Un
nouveau procede de fabrication.
[Means to an end, practical method to
do something: A new manufacturing process.]
�
Recette toute faite visant a obtenir artificiellement un resultat avec peu de
moyens.
[Recipe for artificially obtaining a result with the least
means.]
LAROUSSE
FRENCH-ENGLISH,
ENGLISH-FRENCH
DICTIONARY
(New ed. 2007),
available at
http://www.larousse.fr/ (author’s translations).
172.
See id.
906
FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
translation “processes” was used elsewhere,173
but rejected for
“devices.” Thus, the French version provides some additional
evidence that the intention was to include entities with similar or
analogous effects, outcomes, or behaviors, rather than simply
devices associated with distribution of otherwise banned
substances.174
The situation, of course, gets more complicated. In the
Treaty of Neuilly-sur-Seine with Bulgaria, flamethrowers are kept
in the relevant article 82, but the word “processes” is substituted
for “devices.”175
Does that substitution indicate any intent to
change the nature of the treaty? It is difficult to support that
conclusion, because six months later when a treaty is signed with
Hungary, the language veers back to “similar devices.”176
Later in
1920, the preliminary treaty with Turkey again contained the
“similar processes” phrase,177
but, to complicate the puzzle even
173.
See infra
notes 175, 177 and accompanying text (using “processes” in other
treaties ending World War I).
174. Interestingly, Josef Kunz, in
Gaskrieg und Volkerrecht,
says:
Durch Versailles, Artikel 171, wird Deutschland die Herstellung und Einfuhr von
erstickenden, giftigen und ahnlichen Gasen, von allen entsprechenden
Flussigkeiten,
Stoffen oder Verfahrensarten sowie von Gebrauch der genannten Erzeugnisse oder
Verfahrensarten sowie von allem Material das eigens fur die Herstellung,
Aufbewahrung oder den Gebrauch der genannten Erzeugnisse oder Verfahrensarten
bestimmt ist streng untersagt und zwar im Hinblick daruf, dass dieser Gebrauch
verboten ist.
[In the view of the fact that its use is forbidden, by Versailles, article
171, Germany is strictly forbidden from the production and importation of
suffocating, poisonous and similar gases, of all corresponding liquids,
materials or types of procedure, as well as the products or types of procedure
mentioned as well as by all material particularly intended for the production,
storage or the use of the products or kinds of procedure mentioned.]
JOSEF
KUNZ,
GASKRIEG
UND
VOLKERRECHT
37 (1927) (author’s
translation).
Kunz uses
the phrase “entsprechenden . . . Verfahrensarten” (corresponding type of
procedure)
which effectively translates the French phrase “procedes
analogues,”
but which in the
context must mean something else, since as used, a “type of procedure” could not
in
itself be produced, stored, or imported.
Id.
It is telling that in the next sentence, he
concludes that article 171 is “identisch
sind”
(identical with) the parallel articles of the
other treaties ending World War I.
Id.
175. Treaty of Peace between the Principal Allied and Associated Powers and
Bulgaria art. 82., Nov. 27, 1919, S. DOC.
NO.
67-7, at 47–162 (1921), 226 Consol. T.S.
334.
176. Treaty of Peace between the Principal Allied and Associated Powers and
Hungary art. 119, June 4, 1920, S. DOC.
NO.
67-7, at 163–319 (1921), 6 L.N.T.S. 187.
177. Treaty of Peace between the Principal Allied and Associated Powers and
Turkey art. 176,
opened for signature
Aug. 10, 1920, S. DOC.
NO.
67-7, at 320–448 (1921),
reprinted in
15 AM.
J. INT’L
L. 179 (Supp. 1921).
2010]
NANOTECH AGENTS
907
further, the entire article relating to chemical weapons was
deleted when the final version of the treaty was signed in 1923.178
In short, every treaty except Versailles bans flamethrowers,
and every treaty except Versailles uses the word “similar” while
Versailles utilizes “analogous.” However, the first, second, and
fourth treaties use “devices” while the operable word in the third
and fifth is “processes.” How is it possible to know what the
language was intended to mean? Interestingly, article 172 of the
Treaty of Versailles required that Germany “disclose . . . the
nature and mode of manufacture of all explosives, toxic
substances or other
like chemical preparations
used by them in the
war or prepared by them for the purpose of being so
used . . . .”179
By contrast, it did not require the disclosure of
similar or analogous devices or processes.180
Whether or not it is
even possible to deduce from this dissimilar language that the
drafters had any particular intent, it is at least clear that they were
aware that language could vary in many ways, and seemed to
choose the broadest possible language in the ban contained in
article 171 and its parallels in other treaties.181
Fries’ discussion of methodology current in 1921 is
enlightening:
[W]e must expect that new gases, new methods of turning
them loose, and new tactical uses will be developed . . . .
Some of the poisonous gases are so powerful in minute
quantities and evaporate so slowly that their liberation does
not . . . cause a cloud. Consequently, we have gases that
cannot be seen. Others form clouds by themselves, such, for
instance, as the toxic smoke candle, where the solid is driven
off by heating . . . . It would be idle to attempt to enumerate
the ways and means by which chemicals will be used in the
future. In fact, one could hardly conceive of a situation
where gas or smoke will not be employed,
for these materials
may be liquids or solids that either automatically, upon exposure to
the air, turn into gas, or which are pulverized by high explosive, or
driven off by heat.
This varied character of the materials
178.
See generally
Treaty of Peace with Turkey, July 24, 1923, 28 L.N.T.S. 11.
179. Treaty of Versailles,
supra
note 148, art. 172 (emphasis added).
180.
Id.
181. For discussion of other possible treaty language, see Herbert F. Manisty,
The
Use of Poison Gas in War,
9 TRANSACTIONS
GROTIUS
SOC’Y
17, 17–28 (1923).
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FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
enables them to be used in every sort of artillery shell, bomb
or other container carried to the field of battle.182
It is worth noting that Fries’ arguments about the technical
legality of German conduct were still being made as late as 1942,
when a law review note was published stating that “[b]rutal as she
otherwise was,
Germany did not violate international law by the use of
chlorine on April 22, 1915.”183
Of course, the thesis of that note is
somewhat impacted by its concluding sentence: “There is hardly
a field of peaceful human endeavor which does not owe a debt to
the Chemical Warfare Service.”184
Of particular interest here,
though, is the author’s argument that:
The Germans had [in 1914] developed a [lacriminatory] gasfilled
artillery shell by modifying a 10.5 cm. shrapnel . . . .
This gas projectile was not within the interdiction of
Declaration II [of the Hague Convention], for diffusion of
asphyxiating or deleterious gas was not its sole object. Its
main purpose was that of shrapnel against personnel.
Further, it disbursed a fine dust of solid and not a gas.185
Indeed, as Fries points out, one of the areas where Germany did
early work was in arsenic derivatives.186
The most commonly used
German arsenical was diphenylchloroarsine (“Blue Cross”),
which was “a white solid, which readily penetrated the [gas mask]
canister and caused sneezing.”187
This substance
was used in shells carrying a high bursting charge. The
explosion of the shell scattered the Sneezing Gas in the form
of a very fine cloud of particles. While the charcoal of the
mask will remove most poisonous gases, it has no protective
power against clouds or mists. The Sneezing Gas passed
through the best canister, and through its peculiar
physiological effect caused great discomfort to the men and
182. FRIES
& WEST,
supra
note 120, at 436–37 (emphasis added.).
183. Cyrus Bernstein, Note,
The Law of Chemical Warfare,
War Law Notes: The Law of
Chemical Warfare,
10 GEO.
WASH.
L. REV.
889, 908 (1942) (emphasis added).
184.
Id.
at 915.
185.
Id.
at 907 (emphasis in original omitted) (second emphasis added).
186. FRIES
& WEST,
supra
note 120, at 180.
187.
Id.
at 181;
see also
James F. Norris,
The Manufacture of War Gases in Germany,
11
J. INDUS.
& ENGINEERING
CHEMISTRY
817, 824–25 (1919). Germany used various colored
markings for identifying different gas types.
See
SIMON
JONES,
WORLD
WAR
GAS
WARFARE
TACTICS
AND
EQUIPMENT
50 (2007) (“They simplified the classification to Green, Blue
and Yellow Cross: green for lung irritant; blue for sensory irritant, i.e.
solids to penetrate
respirator filters;
and yellow for mustard gas.” (emphasis added)).
2010]
NANOTECH AGENTS
909
numerous casualties through forcing the men to remove
their masks.188
The British experimented with this substance as well.189
Much of the point of the discussion above is that
professional soldiers and diplomats knew very well at the end of
World War I that poisonous, asphyxiating, and related weapons
came in forms other than gas;190
signatory states might be
anxious to avoid the technical strictures of any treaty;191
and they
were willing to try to write a ban which took into account all
possible forms of poisonous, asphyxiating and related weapons
foreseeable in the future.192
188. Clarence J. West,
The Chemical Warfare Service,
in
THE
NEW
WORLD
OF
SCIENCE:
ITS
DEVELOPMENT
DURING
THE
WAR
148, 153, (Robert M. Yerkes ed., 1920);
see also
Nuclear Threat Initiative, Diphenylchloroarsine,
http://nti.org/e_research/profiles/
nk/chemical/1094.html (last visited Apr. 3, 2010) (“Military doctrine in World
War I . . .
counted on its being able to force soldiers to remove their protective masks,
and thus
becoming vulnerable to it or other chemical agents.”).
189. In 1918, the British experimented with burning granules from a German Blue
Cross shell and quickly realized its ability to penetrate their respirator.
Inspired by those
Blue Cross experiments, they “perfected the thermogenerator . . . which produced
an
arsenic smoke capable of penetrating all known respirators apart from their own.
As well
as causing intense pain in the sinuses it also created temporary but intense
feelings of
psychological misery.” JONES,
supra
note 187, at 57–59. Thermogenerator grenades,
adapted as aerial bombs, became the first air dropped chemical weapons when used
by
the Royal Air Force against Bolshevik forces near Archangel in 1919.
Id.
at 57;
see also
MICHAEL
KETTLE,
CHURCHILL
AND THE
ARCHANGEL
FIASCO
316 (1992) (“On April 16
[1919], Churchill’s Secretary received a letter . . . from Sir Keith Price [an
explosives
and munitions expert] which stated, ‘If there is going to be a White Sea
campaign, do
not let the powers that be overlook the new gas generators. I really believe
they are the
most deadly weapon which has yet been produced . . . . The D.M. generator knocks
people out for say 48 hours but does not kill them, the D.A. kills alright;
which is the
right medicine for the Bolshevist.”). “D.A.” was, in fact, the British code name
for
diphenylchloroarsine, the chemical in Blue Cross. David B. Kirkwood,
Non-Lethal
Weapons,
in
MILITARY
OPERATIONS
OTHER
THAN
WAR
4 (1996). “D.M.A.” was the code
name for diphenylamine chlorasine.
Id.
Sir Keith Price appears to have been confused
about the names and qualities of DA and DM. KETTLE,
supra,
at 316.
190.
See supra
note 182–189.
191.
See supra
notes 132–44;
see also, e.g.,
DENNIS
MYERS
ET AL.,
THE
TREATY
OF
VERSAILLES
AND
AFTER:
ANNOTATIONS
OF THE
TEXT
OF THE
TREATY
44–54 (1968)
(noting the German and U.S. commentators’ arguments about the technical legality
of
Germany’s deployment of chlorine gas from cylinders in 1915).
192.
See supra
note 179. It is worth noting that in 1940 the U.S. Army was actively
concerned with defenses against irritant smoke which it defined as “a chemical
agent
which can be disseminated as extremely small solid or liquid particles in air,
and . . .
causes intolerable sneezing, coughing, lacrimation, or headache, followed by
nausea and
temporary physical disability when breathed in very low concentrations.” CHEMICAL
WARFARE
SERV.,
U.S. ARMY,
DEFENSE
AGAINST
CHEMICAL
ATTACK
4 (1940). The Army
also recognized that there was a distinction between irritant gas candles and
toxic smoke
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FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
One startlingly applicable statement regarding such
weapons was made by ex-Major Victor Lefebure, who had served
from November 1917 through the end of the war as the British
liaison officer with the French Army for chemical warfare.193
Lefebure later authored
The Riddle of the Rhine
about the German
chemical industry and its ties to gas warfare.194
In 1921 he was
invited to address the Grotius Society as part of its
Problems of
Peace and War
series.195
Lefebure began his address by arguing
that “chemical warfare is far too potent, decisive, flexible, secret,
and generally dangerous to be left unharnessed in a world which
pretends to disarm.”196
He devoted much of his address to how
new chemical weapons are developed through research,
development and manufacturing stages, and he proposed
designing applicable treaty controls at all three stages.197
His
conclusion, however, not only resonates after almost ninety years,
but it is direct evidence of how broadly weapons-related scientists
and soldiers were thinking contemporaneously with the drafting
of the treaties discussed here:
I should point out that these remarks are not limited to
chemical warfare, but they apply to the development of all
new weapons.
Taking a long-distance view, no distinction should
be made. If sub-atomic forces can eventually be harnessed for war
they must be subjected to the same control and attempts at
suppression during their development stages.
Chemical warfare
happens to be the present problem of the maximum
practical importance in this field.198
candles.
See
U.S. DEP’T
OF
WAR,
TECHNICAL
MANUAL:
GERMAN-ENGLISH
MILITARY
DICTIONARY
506 (1944) (defining “giftnebelkerze”
as an “irritant gas candle” and
“giftrauchkerze”
as a “toxic-smoke candle”).
193. Obituary,
Victor Lefebure,
TIMES
(London), 1948, at 394.
194. VICTOR
LEFEBURE,
THE
RIDDLE
OF THE
RHINE
(1921).
195.
See
Victor Lefebure,
Chemical Warfare: The Possibility of its Control,
7
TRANSACTIONS
GROTIUS
SOC’Y
153 (1921).
196.
Id.
at 157.
197.
See id.
198. LEFEBURE,
supra
note 194, at 12 (emphasis added). There is a great deal of
useful historical evidence in this area. Particularly useful is the
Report of the Committee
Appointed to Consider the Question of Chemical and Bacteriological Warfare,
League of Nations
Official Journal Special Supp. No. 26,
121 (1924). Regarding chemical warfare the
committee notes:
The term “gas” as used in connection with warfare does not correspond to the
scientific definition of gases. In reality it includes not only gases but solid
or
liquid substances which are reduced to powder or spray in the air . . . . Such
2010]
NANOTECH AGENTS
911
Thus it seems clear from the evidence that the Versailles
Treaty drafters knew the poisonous and asphyxiating “gases” of
the Great War were often something other than gas in the
technical sense of physicists,199
and that there was an attempt at
inclusion rather than exclusion of anything which might produce
analogous results. It does not assist the researcher attempting to
divine intent that many of the negotiations were kept secret and
the records ostensibly destroyed.200
Once again, however, there is
some other guidance. In a 1922 analysis of the “Secret Minutes of
the Paris Peace Conference” the
New York Times
revealed that:
Two things were at once assumed by the conference and
brushed aside, as the most vital problems often are,
practically without discussion: First, that Germany should be
utterly disarmed, so far as military uses were concerned, of
airplanes, poison gas, submarines, tanks, etc. Every one [sic]
agreed to that. Second, no one at Paris considered for a
moment an immediate general reduction of armament in
these new Instrumentalities which should apply to the allies
as well as to the enemy States . . . . They were all agreed on
an absolute prohibition of the military use of gases . . . . But
substances are by no means rare. The majority are common materials,
ordinarily manufactured and employed in large quantities for peace-time
requirements, so that “there
is very little difference between the manufacture of
pharmaceutical products and that of injurious substances used in war.”
Id.
(emphasis added);
cf.
W. Eysinga,
La Guerre Chimique et le Mouvement pour sa Repression
[Chemical
War and the Movement for Its Repression],
in
16 ACADEMIE
DE
DOIT
INTERNATIONAL
335 (Leyden, 1972) (1927) (Fr.).
199.
See
ASTM INTERNATIONAL,
ASTM DICTIONARY
OF
ENGINEERING
SCIENCE
&
TECHNOLOGY
269 (10th ed. 2005) (defining gas as “the state of matter in which the
molecules are practically unrestricted by intermolecular forces so that the
molecules are
free to occupy all space within an enclosure” and particulate as “a general term
used to
describe a finely divided solid of organic or inorganic matter”). ASTM
International,
originally known as the American Society for Testing and Materials, is a
voluntary
standards development organization and source for technical standards.
See
About
ASTM International, http://www.astm.org/ABOUT/aboutASTM.html (last visited Apr.
3, 2010). Importantly, this group defines “smoke” as “small gas-borne particles
resulting
from incomplete combustion.”
Id.
at 433.
That understanding of the meaning of
“smoke” really has not changed since W.F.M. Goss noted in 1916, that the
properties of
smoke were defined as “gaseous and solid products of combustion, visible and
invisible,”
and that smoke regarded as possessing both solid and gaseous constituents.
W.F.M.
Goss,
Smoke as a Source of Atmospheric Pollution,
181 J. FRANKLIN
INST.
305, 320 (1916).
200.
See,
MYERS
ET AL.,
supra
note 191, at iii (noting that “negotiations which
resulted in the language of the treaty taking its final form have not been
recorded, for it
was not the intention of the makers but the action of the parties to the treaty
which was
to be ascertained. It was seldom found to be pertinent to discuss
interpretations of the
language finally adopted”).
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FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
the other Allies wished to go much further. They wished to
compel the German Government to disclose her chemical
processes and secrets . . . . [Secretary of State Robert Lansing
expressed President Wilson’s view that] “since
the use of
asphyxiating, poisonous or other gases and all analogous matters or
devices had been prohibited,201
including their manufacture or
importation, he thought that was sufficient safeguard . . . .”
It
became crystal clear as these discussions developed that everything
depended upon point of view . . . . If men looked upon inventions
and scientific appliances only from the point of view of war, then
everything became dangerous; there must be an attempt to corner
every contingency with a prohibition and often a perpetual
prohibition at that;
with a final reducto ad absurdum in trying
to penetrate the secrets of men’s minds. . . . Prohibitions
were not enough [Wilson argued, what was needed also was a
League of Nations].202
In any case, it was the “analogous devices” language of
Versailles that was adopted first by the Washington Naval
Conference in 1922,203
and then in the 1925 Geneva Gas
Protocol.204
The history behind these words indicates, however,
that the drafters specifically chose “analogous devices” over
“similar processes,” that they were determined to prevent
Germany from again arguing that such weapons were outside the
scope of treaty language,
and
that they were very well aware that
smoke and particulate matter could be produced and used as a
201. Note that in the French text, Lansing is quoted as saying “Il
s’agit d’obliger les
Allemandes a faire connaitre les secrets de fabrication de certains produits
employees pour des
procedes de guerre contraires au doit des gens. Ceci vise essentiallement
les gaz et autres
produits chimiques. [This is to oblige Germany to disclose the secrets of making
certain
products employed for illegal warfare. Essentially, it is aimed at
gases and other chemical
products]”
Paul Mantoux, Official Interpreter, 1 LES
DELIBERATIONS
DE
CONSEIL
DES
QUATRE
24 MARCH–28
JUNE,
1919 267 (Editions de Centre National de la Recherche
Scientifque 1955) (emphasis added) (author’s translation). While the English
language
notes of what Lansing actually said are probably most authentic, it is
interesting that the
official French interpreter translated “asphyxiating, poisonous or other gases
and all
analogous matters or devices had been prohibited”
as les gaz et autres produits chimiques.
Id.
202. Ray Baker,
America and the World Peace,
N.Y. TIMES,
Feb. 5, 1922, at 80
(emphasis added).
203. Treaty between the United States of America, the British Empire, France,
Italy,
and Japan Relative to the Protection of the Lives of Neutrals and Noncombatants
at Sea
in Time of War and to Prevent the Use in War of Noxious Gases and Chemicals art.
V,
opened for signature
Feb. 6, 1922, S. DOC.
NO.
67-126, at 886 (1922), 3 Malloy 3116
[hereinafter Washington Submarine Treaty].
204. Geneva Protocol,
supra
note 23.
2010]
NANOTECH AGENTS
913
lethal weapon of war to disburse asphyxiating or toxic chemicals.
The decision at Washington in 1922 to use the words “analogous
devices”205
becomes directly relevant to determination whether
the CWC covers nanomimics in light of that history.
ii. The Washington Naval Conference
The Washington Naval Conference was a post-war meeting
among nine military powers organized by the administration of
U.S. President Warren G. Harding for the purpose of arms
control and peace in East Asia.206
The conference produced five
significant treaties over the course of three months.207
A full
description of the proceedings at the Washington Conference
may be found in a published doctoral thesis by Raymond Buell.208
Buell notes that a subcommittee was created to specifically
address the topic of poisonous gases.209
The Subcommittee on
Poison Gas privately reported on December 8, 1921, that
suppressing poison gas was unwise and unworkable,210
and issued
a public report on January 6, 1922, which concluded that “the
only limitation practicable is to wholly prohibit the use of gases
against cities and other large bodies of noncombatants in the
same manner as high explosives may be limited, but that there
205.
See
Washington Submarine Treaty,
supra
note 203, art. V.
206.
See, e.g.,
THE
USA
IN THE
MAKING
OF THE
USSR: THE
WASHINGTON
CONFERENCE,
1921–1922,
AND
‘UNINVITED
RUSSIA’
1–3 (2004).
207.
See
Washington Submarine Treaty,
supra
note 203; Treaty between the United
States of America, Belgium, the British Empire, China, France, Italy, the
Netherlands,
and Portugal Relating to the Revision of Chinese Custom Tariff, Feb. 6, 1922, 44
Stat.
2122, 2 Bevans 381; Treaty between the United States of America, Belgium, the
British
Empire, China, France, Italy, Japan, the Neterlands, and Portugal, Relating to
Principles
and Policies to be Followed in Matters Concerning China, Feb. 6, 1922, 44 Stat.
2113, 38
L.N.T.S. 277 (commonly referred to as the “Nine-Power Treaty”); Treaty between
the
United States of America, the British Empire, France, Italy and Japan Agreeing
to a
limitation of Naval Armament, Feb. 6, 1922, 43 Stat. 1655, 25 L.N.T.S. 202
(commonly
referred to as the “Five-Power Treaty”); Treaty between the United States of
America,
the British Empire, France, and Japan Relating to Their Insular Posessions and
Insular
Dominions in the Pacific Ocean, Dec. 13, 1921, 43 Stat. 1646, 25 L.N.T.S. 183
(commonly referred to as the “Four-Power Treaty”).
208.
See
BUELL,
supra note 26.
209.
See id.
at 205. Of the two U.S. members on the subcommittee, one was
Brigadier General Amos Fries of the U.S. Army’s Chemical Warfare Service.
See
Editorial,
The Suppressed Report,
17 J. INDUS.
& ENGINEERING
CHEMISTRY
662, 662 (1925);
see also
supra
note 120.
210.
See
Editorial,
supra
note 209, at 662 (reproducing a copy of the report).
914
FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
could be no limitation on their use against the armed forces of
the enemy, ashore or afloat.”211
The advisory committee to the U.S. delegation, however,
reported that poison gas was “abhorrent to civilization . . . a
cruel, unfair and improper use of science, [and] demoralizing to
‘the better instincts of humanity.’”212
The advisory committee
resolved that “chemical warfare, including the use of gases,
whether toxic or nontoxic, should be prohibited by international
agreement, and should be classed with such unfair methods of
warfare as poisoning wells, introducing germs of disease, and
other methods that are abhorrent in modern warfare.”213
The
U.S. delegation to the conference rejected the subcommittee’s
advice and, following a presentation by Secretary of State Charles
Evans Hughes, Elihu Root214
introduced the following resolution
on January 6, 1922:215
The use in war of asphyxiating, poisonous
or analogous liquids
or other gases and all materials, or devices
having been justly
condemned by the general opinion of the civilized world and
211. BUELL,
supra
note 26, at 208 (quoting the public subcommittee report)
(emphasis omitted). A full copy of the report can be found in
Text of the Conference
Discussions,
N.Y. TIMES,
Jan. 7, 1922, at 3.
212.
Id.
at 206. This committee was appointed by President Harding to represent
public opinion and included among its members, General John Pershing, the
commander of the American Expeditionary Force in 1917–1918, Herbert Hoover,
Samuel Gompers, the Assistant Secretaries of the Navy and of War, and an
undersecretary of state.
Id.
n.9. For a list of all the members on the committee, see S.
DOC.
NO.
67-126, at 785 (1922).
213.
Id.
at 208. The advisory committee reasoned that while use of lethal gas
against military opponents might be legal, the potential harm far outweighed any
utility.
It added that “[t]he committee is of the opinion that the conscience of the
American
people has been profoundly shocked by the savage use of scientific discoveries
for
destruction rather than construction,” and that whatever the views of technical
experts
“the committee feels the American representatives would not be doing their duty
in
expressing the conscience of the American people were they to fail in insisting
upon the
total abolition of chemical warfare . . . whether against combatant or
noncombatant.”
Id.
at 386.
214. Former Secretary of War (1899–1904) and Secretary of State (1905–1909) of
the United States.
See generally
ELIHU
ROOT,
ADDRESSES
ON
INTERNATIONAL
SUBJECTS
(1916).
215.
See
James,
supra
note 26 (“Mr. Hughes . . . recommended that the report of
the Conference Experts’ Committee on Poison Gas, which declared it unwise to try
to
prohibit its use, be set aside, and that the conference act on a report of a
subcommittee
of the American Advisory Committee, recommending the ban on gas warfare . . . .
Mr.
Hughes then asked Mr. Root present, on behalf of the American delegation, a
resolution for the abolition of gas warfare.”). For a summary of the speech
delivered by
Charles Evans Hughes, see
Text of the Conference Discussions,
supra
note 202.
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a prohibition of such use having been declared in treaties to
which a majority of the civilized world are parties—now, to
the end that this prohibition shall be universally accepted as
a part of international law, binding alike the conscience and
practice of nations, the signatory powers declare their assent
to such a prohibition . . . .216
Note that the emphasized language differs significantly from the
Versailles treaty.217
Apparently, there was a scrivener’s error in
the copying of Versailles article 171, or Root erred in its reading.
By the time the treaty was signed, however, article 5 of the
Washington Submarine Treaty was again congruent with
Versailles. It provides:
The use in war of asphyxiating, poisonous or other gases,
and all analogous liquids, materials or devices, having been
justly condemned by the general opinion of the civilized
world and a prohibition of such use having been declared in
treaties to which a majority of the civilized Powers are
parties, The Signatory Powers, to the end that this
prohibition shall be universally accepted as a part of
international law, binding alike the conscience and practice
of nations, the signatory powers declare their assent to such a
prohibition, agree to be bound thereby as between
themselves, and invite all civilized nations to adhere
thereto.218
Thus, the Versailles language was fully restored in the 1922
Treaty. It was that language which was incorporated into the
216. S. DOC.
NO.
67-126, at 388 (1922) (emphasis added). A full copy of this
resolution can also be found in James,
supra
note 26.
217.
Compare
S. DOC.
NO.
67-126, at 388 (1922) (“The use in war of asphyxiating,
poisonous or analogous liquids or other gases and all materials, or devices
having been
justly condemned by the general opinion of the civilized world and a prohibition
of such
use having been declared in treaties . . . .”),
with
Washington SubmarineTreaty,
supra
note 203, art. V (“The use of asphyxiating, poisonous or other gases and all
analogous
liquids, materials, or devices being prohibited . . . .”). Root told the
conference that he
was introducing language that “represented the most extraordinary consensus of
opinion that one could well find upon any international subject.”
See Text of the
Conference Discussions,
supra
note 202. He also indicated that it was borrowed from the
Treaty of Versailles, but reflected in many of the treaties that ended the Great
War.
See
id.
In fact it was only the Versailles language from article 171, and that, of
course, was
not entirely correct.
See
discussion of variations in treaties ending World War I,
supra
Part II.A.1.d.i.
218. Washington SubmarineTreaty,
supra
note 203, art. V.
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Geneva Gas Protocol in 1925, and which in turn was reiterated as
binding by the CWC.219
iii. The 1925 Geneva Gas Protocol
The Geneva Protocol of 1925 placed the 1922 Washington
use ban on the table for all states.220
The U.S. Senate, however,
after the country acted as the prime proponent of a ban, refused
to ratify the protocol at that time.221
Once again, the 1925 protocol articulated an attempt to ban
use in war of chemical weapons, and once again the “devices
versus processes”222
question arises. The language of the protocol
tracks the 1922 treaty:
219. Chemical Weapons Convention,
supra
note 10, pmbl.
220. Geneva Protocol,
supra
note 23. It is worth remembering that the 1922 treaty
and the 1925 protocol were drafted in light of a wide effort to end all
international
armed conflict.
See generally
JAMES
SHOTWELL,
PLANS
AND
PROTOCOLS
TO
END
WAR,
HISTORICAL
OUTLINE
AND
GUIDE,
CARNEGIE
ENDOWMENT
FOR
INTERNATIONAL
PEACE
(1925).
221.
See
HARRIS
& PAXMAN,
supra
120, at 47–48 (“The United States Chemical
Warfare Service launched a highly effective lobby . . . . As has often happened
since, the
fight for chemical weapons was represented as a fight for general military
preparedness.
Senators joined the CWS campaign, among them the chairman of the Committee on
Military Affairs who opened his attack on ratification in the senate debate with
a
reference to the 1922 Washington Treaty: ‘I think it is fair to say that in 1922
there was
much of hysteria and much of misinformation concerning chemical warfare.’”). As
noted earlier, the United States eventually ratified the 1925 Geneva Gas
Protocol in
1975,
supra
note 22, and its binding nature was, of course, reiterated in the CWC.
Chemical Weapons Conventions,
supra
note 10, pmbl. It is interesting to note that prior
to ratification, the acting director of the U.S. Arms Control and Disarmament
Agency
testified to the U.S. Senate that:
This is an area in which a fairly substantial amount of research has now begun
to be undertaken and hopefully on the basis of that we would be able to
approach this problem on the basis of the 1967 study and not on the basis of a
1925 convention,
no disrespect intended to the drafters of the 1925 convention, they
did the best they could with the information available at their disposal,
but the total
activity should be looking at the problem of a new situation rather than the
same amount of energy expended on the question of whether or not we
should ratify the 1925 convention.
Policy Implications of Armament and Disarmament Problems: Hearing Before the
Subcomm. on
Disarmament of the Comm. on Foreign Relations,
90th Cong. 180 (1967) [hereinafter
1967 S.
Hearings on Arms]
(testimony of Sen. Adrian S. Fisher) (emphasis added).
222. As noted above, variations in the language of the treaties, and in the two
official text languages of French and English, have in the past been the subject
of
considerable international discord.
See supra
Part II.A.4.a. These problems carried over
into the 1925 protocol. For example, the 1925 Geneva Protocol was long the
subject of a
dispute over whether it banned “tear” gasses: The English version of the
protocol stated
that “the use in war of asphyxiating, poisonous or other gases” was prohibited,
while the
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917
Whereas the use in war of asphyxiating, poisonous or other
gases, and of all analogous liquids materials or devices, has
been justly condemned by the general opinion of the
civilized world; and Whereas the prohibition of such use has
been declared in Treaties to which the majority of Powers of
the world are Parties; and To the end that this prohibition
shall be universally accepted as a part of International Law,
binding alike the conscience and the practice of
nations . . . .223
Similarly, the official French version is, in all operative
language, precisely the same as the 1922 treaty:
Considerant que l’emploi a la guerre de gaz asphyxiants, toxiques
ou similaires, ainsi que de tous liquides, matieres ou procedes
analogues, a ete a juste titre condamne par l’opinion generale du
monde civilise, CONSIDERANT que l’interdiction de cet emploi a
ete formulee dans les traites auxquels sont Parties la plupart des
Puissances du monde, DANS LE DESSEIN de faire universellement
reconnaitre comme incorporee au droit international cette
interdiction, qui s’impose egalement a la conscience et a la pratique
des nations . . . .224
French version referred to “l’emploi
a la Guerra de gaz asphyxiants, toxiques ou similares.”
See
Geneva Protocol,
supra
note 23. For the interpretation that the protocol did not ban tear
gas, the United States, which argued for the legality of use of “non-lethal
gases” in war,
relied on the word “similares”
(similar) in the French version of the protocol, rather
than “autres”
which would have been a direct translation of the word “other,” as in the
English version.
See
VERWEY,
supra
note 170, at 226–27 (discussing implications arising
from apparently conflicting texts in the French and English versions of the
protocol).
The United States took the position that while “other” gases might include tear
gases,
they were not “similar” to toxic or asphyxiating gases.
See id.
at 227;
cf. Limitations on Use
of Chemical and Bacteriological Agents in Warfare: Hearing Before the Subcomm.
on
Disarmament of the Committee on Foreign Relations,
90th Cong. 55 (1967) [hereinafter
1967
S. Hearings on Chemical Agents]
(testimony of Cyrus Vance, U.S. Deputy Sec’y of Def.);
1967 S. Hearings on Arms,
supra
note 221, at 62 (statement of Cyrus Vance, U.S. Deputy
Sec’y of Def.) (stating that the United States has “used riot-control agents in
Vietnam—
agents similar to those used by police forces throughout the world”);
see also
OFFICE
OF
PUB.
AFFAIRS,
U.S. ARMS
CONTROL
AND
DISARMAMENT
AGENCY,
INTERNATIONAL
NEGOTIATIONS
ON THE
BIOLOGICAL—WEAPONS
AND
TOXIN
CONVENTION
40 (1975)
(“[T]he ambiguity of the protocol on riot-control agents had been recognized for
40
years.”).
See generally
R. R. Baxter & Thomas Buergenthal,
Legal Aspects of the Geneva
Protocol of 1925,
64 AM.
J. INT’L
L. 853 (1970) (discussing the validity of the U.S.
argument); George Bunn,
Banning Poison Gas and Germ Warfare: Should the United States
Agree?,
1969 WIS.
L. REV.
375 (1969) (same).
223. Geneva Protocol,
supra
note 23.
224.
Id.
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FORDHAM INTERNATIONAL LAW JOURNAL
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The historical and textual analysis above225
is equally
applicable here. There is simply no doubt that the authors had in
mind, given their then current knowledge and environment, a
concern that limiting the treaty to analogous liquids and
materials might miss something that had already been used or
which could be developed, and that the inclusion of “devices”
was no accident. That conclusion is strongly supported by the
French use of the word “procedes”
in lieu of alternative
phraseologies.226
As will be seen below, the 1925 protocol has
been incorporated into newer treaties, but it has never ceased to
bind either its signatories or other states as an expression of
customary law.227
The protocol did not entirely eliminate use in
war of toxic or asphyxiating chemical weapons, but, as the
following discussion shows, their use was certainly curtailed after
1925.
iv. Practical Effect of the Protocol and Other Post-War Law After
1925
Although chemical stockpiles continued to grow long after
the 1925 protocol entered into effect, their actual use in war was
greatly curtailed.228
While there was some documented use, both
before the protocol, the United Kingdom in Siberia (1919,
arsenicals)229
and the Third Rif War (1924, mustard gas),230
and
225.
See
discussion
supra
Part II.A.1.d.i.
226.
See
discussion
supra
Part II.A.1.d.i.
227. The United States, for example, even before ratification in 1975,
repeatedly
recognized the declaratory nature of the 1925 protocol.
See 1967 S. Hearings on Chemical
Agents,
supra
note 222, at 55 (testimony of Cyrus Vance, U.S. Deputy Sec’t of Def.) (“We
supported the Unites States affirmative vote in the United Nations General
Assembly . . .
on a resolution calling on all nations to observe the principles and objectives
of the
Geneva protocol of 1925. We have observed these principles consistently since
1925,
although the United States . . . did not ratify the Geneva protocol.”).
228.
See generally
Julian Perry Robinson,
The Negotiations on the Chemical Weapons
Convention: A Historical Overview,
in
THE
NEW
CHEMICAL
WEAPONS
CONVENTION:
IMPLEMENTATION
AND
PROSPECTS
17 (M. Bothe et al. eds., 1998).
229. KETTLE,
supra
note 212, at 316.
230. During the Third Rif War in Spanish Morocco between 1921 and 1927, the
Spanish Army of Africa dropped chemical warfare agents in an attempt to put down
the
Berber rebellion. RUDIBERT
KUNZ
& ROLF-DIETER
MULLER,
GIFTGAS
GEGEN
ABD
EL
KRIM:
DEUTSCHLAND,
SPANIEN
UND DER
GASKRIEG
IN
SPANISCH-MAROKKO,
1922–1927
(1990); cf.
DAVID
WOOLMAN,
REBELS
IN THE
RIF:
ABD
EL
KRIM
AND THE
RIF
REBELLION
(1968).
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afterwards, Italy in Ethiopia (1936, mustard gas)231
and Japan in
China (1937–1945, certainly mustard and biological warfare,
possibly other gases),232
usage was generally limited to attacks by
colonial powers on those with no means of reprisal who were
viewed by the user as engaged in otherwise illegitimate warfare.233
While there have been disputed allegations of various uses of
chemical or toxic weapons as late as after World War II,234
231. A.J. BARKER,
THE
RAPE
OF
ETHIOPIA
1936, 56–57 (1971) (“[W]hile Rome was
rejecting the accusations, the Ethiopians were being systematically softened up
with gas
attacks . . . . [N]ot only was gas used throughout the war, but afterwards as
well to break
down the resistance of the Ethiopian freedom fighters.”). Much later, the
International
Committee of the Red Cross (“ICRC”) documented Italian use of mustard gas in a
report filed by Doctor Marcel Junod of the ICRC delegation to Ethiopia:
Junod also confronted the appalling reality of mustard gas and its effects:
“That evening [18 March 1936] I had occasion to see with my own eyes an
Italian aircraft spraying the ground with an oily liquid, dropping like fine
rain
and covering a huge area with thousands of droplets, each of which, when it
touched the tissues, made a small burn, turning a few hours later into a
blister.
It was the blistering gas the British call mustard gas. Thousands of soldiers
were affected by severe lesions due to this gas . . . .”
Bernard Bridel,
Les ambulances a croix rouge du CICR sous les gaz en Ethiopie
[ICRC
Red
Cross Ambulances Gassed in Ethiopia],
LE
TEMPS
(Switz.), Aug. 13, 2003,
partially translated
at
http://www.icrc.org/web/eng/siteeng0.nsf/html/5RUHGM.
232. According to historians Yoshiaki Yoshimi and Seiya Matsuno, chemical
weapons were authorized by specific orders given by Emperor Shōwa
himself,
transmitted by the chief of staff of the army. For example, the emperor
authorized the
use of toxic gas on 375 separate occasions during the battle of Wuhan from
August to
October of 1938. They were also used during the invasion of Changde. Those
orders
were transmitted either by Prince Kotohito Kan’in or General Hajime Sugiyama.
See
HERBERT
P. BIX,
HIROHITO
AND THE
MAKING
OF
MODERN
JAPAN
361 (2000) (citing
Yoshiaki Yoshimi & Seiya Matsuno,
Dokugasusen Kankei Shiryō
II,Kaisetsu
[Materials
on
Poison Gas Warfare],
in
KAISETSU,
HŌKAN
2, JŪGONEN
SENSO GOKUHI SHIRYŌSHŪ
(Funi
Shuppankan 1997) (Japan)). Japan deployed biological weapons against the Chinese
a
number of times through “Unit 731” of the Japanese Imperial Army.
See id.
at 364.
See
generally
DANIEL
BARENBLATT,
A PLAGUE
UPON
HUMANITY:
THE
HIDDEN
HISTORY
OF
JAPAN’S
BIOLOGICAL
WARFARE
PROGRAM
(2004). Unused Japanese mustard gas stocks in
northeast China were inadvertently released as recently as August 2003, injuring
a
number of civilians. The Chinese government apparently claims an estimate of
over
700,000 remaining Japanese chemical munitions.
See
Wu Gang & Li Jing,
Japanese
Weapon Container Dug Up,
CHINA
DAILY
(English ed.), May 26, 2004, at 1.
233.
See, e.g.,
Javier Espinosa,
Gas Mostaza Sobre el Rif
[Mustard
Gas on the Rif],
EL
MUNDO
(Madrid), Apr. 18, 2001, http://www.elmundo.es/2001/04/18/sociedad/
983737.html (referencing a telegram sent by the then-High Commissioner of
Spanish
Morocco Damaso Berenguer to the Spanish minister of War in the Third Rif War on
August 12, 1921, stating: “I have been obstinately resistant to the use of
suffocating gases
against these indigenous peoples but after what they have done, and of their
treasonous
and deceptive conduct, I have to use them with true joy” (author’s
translation)).
234. There was speculation that Russians used chemical poisons in aerial
offensives
in East Asia.
See, e.g.,
Yellow Rain,
TIME,
Sept. 14, 1981, at 22 (alleging Soviet use of “the
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FORDHAM INTERNATIONAL LAW JOURNAL
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documented use by states seems to be limited to the Iran-Iraq
War and to internal Iraqi conflicts. During this period, the Iraqi
government attacked its own rebellious citizens and Iran.235
chemical agent trichothecene toxin, known as T2.”).
See generally
STERLING
SEAGRAVE,
YELLOW
RAIN:
A JOURNEY
THROUGH
THE
TERROR
OF
CHEMICAL
WARFARE
(1982)
(documenting the alleged uses of T2 by the Russian military). Egyptian bombers
allegedly used mustard and other nerve agents in Yemen against royalist rebels
during
the early- and mid-1960s.
See
TUCKER,
supra,
note 42, at 190–96 (discussing Egypt’s
alleged use of chemical agents).
235. This is documented by the respected international security analysis group
GlobalSecurity:
In 1982, early in the Iran-Iraq War, the Iraqis used riot control agents to
repel Iranian attacks. They progressed to the use of CW agents in mid-1983
with mustard, and in March 1984 with tabun (the first use ever of a nerve
agent in war). The Iraqis continued to use chemical weapons until the end of
hostilities in August 1988; in addition they introduced the nerve agents sarin
and GF late in the war.
In March 1986, UN Secretary General Javier Perez de Cuellar formally
accused Iraq of using chemical weapons against Iran. Citing the report of four
chemical warfare experts whom the UN had sent to Iran in February and
March 1986, the secretary general called on Baghdad to end its violation of the
1925 Geneva Protocol on the use of chemical weapons. The UN report
concluded that “Iraqi forces have used chemical warfare against Iranian
forces”; the weapons used included both mustard gas and nerve gas. The
report further stated that “the use of chemical weapons appear[ed] to be
more extensive [in 1981] than in 1984.” Iraq attempted to deny using
chemicals, but the evidence, in the form of many badly burned casualties
flown to European hospitals for treatment, was overwhelming. By July 1986 it
was estimated that Iraqi chemical warfare was responsible for about 10,000
casualties.
Although the Iraqis initially used chemical weapons to prevent defeat and
to reduce
battlefield
losses, they later integrated CW attacks into combinedarmed
operations designed to regain lost territory and to gain the offensive.
Iraq’s use of CW in the war with Iran can be divided into three distinct phases:
1. 1983 to 1986--used in a defensive role; typically to deflect Iranian
human-wave assaults. In 1984 Iraq became the first nation to use a nerve
agent on the battlefield when it deployed Tabun-filled aerial bombs
during the Iran-Iraq war. Some 5,500 Iranians were killed by the nerve
agent between March 1984 and March 1985. Tabun kills within minutes.
Some 16,000 Iranians were reported killed by the toxic blister agent
mustard gas between August 1983 and February 1986.
2. 1986 to early 1988--iraq adapts use against Iran to disrupt Iranian
offensive preparations.
3. early 1988 to conclusion of the war-- Iraq integrated large nerve agent
strikes into its overall offensive during the spring and summer of 1988
leading to the ceasefire.
Iran used chemical weapons late in the war, but never as extensively or
successfully as Iraq. The success of Iraqi offensive operations in the southern
sector in mid-1988 ultimately caused the Iranians to cease hostilities. The use
of chemical weapons contributed to the success of these operations.
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These attacks are the only general use of mustard gas in
continuous and open conflict since 1918, and the first fully
documented use of nerve gases in war. It is worth noting that in
the case of both Japan and Iraq, the League of Nations and the
United Nations (“U.N.”), respectively, took the position that
those states were engaged in violations of the 1925 protocol.236
The Iran-Iraq War started in 1982, and by early 1984 the
press was reporting Iranian allegations regarding Iraqi use of
toxic chemical weapons.237
By mid-1984, a U.N. investigating
mission found evidence of Iraqi use of nerve agents.238
In early
1986, in light of Iranian allegations of renewed Iraqi use of
chemical weapons, and threats to retaliate in kind, the Security
Council passed Resolution 582 noting that:
[B]oth the Islamic Republic of Iran and Iraq are parties to
the Protocol for the Prohibition of the Use in War of
Asphyxiating, Poisonous or Other Gases, and of
Bacteriological Methods of Warfare signed at Geneva on 17
June 1925 . . . [The Secretary-General]
[a]lso deplores
. . . in
particular,
the use of chemical weapons contrary to obligations
under the 1925 Geneva Protocol
. . . .239
Immediately following the adoption of that resolution, Secretary-
General Perez de Cuellar instructed an investigating mission to
Chemical Weapons Programs – Iraq Special Weapons Facilities,
http://www.globalsecurity.org/wmd/world/iraq/cw-program.htm (last visited Apr.
3,
2010).
236.
See, e.g.,
Pres. of the Sec. Council,
Note by the President of the Security Council,
U.N. Doc. S/17932 (Mar. 21, 1986) (“The Council strongly condemn this continued
use
of chemical weapons in clear violation of the Geneva Protocol of 1925 which
prohibits
the use in war of chemical weapons.”);
Appeal by the Chinese Government,
19 L.N.O.J. 878
(reminding Japan that “the use of toxic gases is a method of war condemned by
international law, which cannot fail, should resort be had to it, to meet with
the
reprobation of the civilized world”). Japan, of course, had at that time
withdrawn from
the League, and simply ignored its call for negotiations. U.S. Department of
State,
Background Note: Japan, Sept. 2009, http://www.state.gov/r/pa/ei/bgn/4142.htm
(documenting Japan’s withdrawal from the League of Nations in 1933).
237.
See
Bernard Gwertzman,
U.S. Says Iraqis Used Poison Gas Against Iranians in
Latest Battles,
N.Y. TIMES,
at A1;
see also
Julian Robinson & Jozef Goldblat,
Chemical
Warelfare in the Iraq-Iran War 1980-1988,
SIPRI FACT
SHEET,
1984,
available at
http://www.iranchamber.com/history/articles/chemical_warfare_iran_iraq_war.php.
238.
See Report of the Specialists Appointed by the Secretary-General to Investigate
Allegations by the Islamic Republic of Iran Concerning the Use of Chemical
Weapons,
U.N. Doc.
S/16433 (Mar. 26, 1984).
239. S.C. Res. 582,
¶
2, U.N. Doc. S/RES/582 (Feb. 24, 1986). (second emphasis
added).
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FORDHAM INTERNATIONAL LAW JOURNAL
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proceed to Iran.240
The mission submitted a report to the
Secretary-General on March 7, 1986.241
Medical observations,
chemical analysis, and examination of unexploded munitions
demonstrated unquestionable and extensive Iraqi use of mustard
gas.242
The Iraqi use of chemical warfare against Iran was the only
extensive use of such weapons in a major war since World War I.
However, it was not the only time that use of such weapons was
considered.
As has been discussed above, following World War I there
was a considerable lobby in various militaries for the
development of, possession of, and preparation to use chemical
weapons.243
In addition to German weapon developments, the
World War II Allies possessed and deployed extensive stocks of
chemical weapons,244
and were prepared to use them if necessary
(although the definition of “necessity” varied).245
Following the end of World War II, the principal developers
and stock-pilers of chemical weapons were the United States and
the Union of Soviet Socialist Republics (“U.S.S.R.”).246
Both sides
used prior German research and their own development work to
test and deploy both the G-series of nerve gases, and the V-series
of increasingly deadlier materials, both chemical and
240.
See
The Secretary-General,
Report of the Mission Dispatched by the Secretary-General
to Investigate Allegations of the Use of Chemical Weapons in the Conflict
Between the Islamic
Republic of Iran and Iraq,
¶9,
U.N. Doc. S/17911 (Mar. 12, 1986).
241.
See id.
at
¶11.
242.
See id.
at
¶
20.
243.
See supra
note 221 and accompanying text.
244. For example, a U.S. Liberty ship,
S.S. John Harvey,
was sunk in the port of Bari,
Italy, on December 2, 1943, with a cargo of 1350 tons of mustard gas on its way
to Army
forward storage depots.
See
RICK
ATKINSON,
THE
DAY
OF
BATTLE:
THE
WAR
IN
SICILY
AND
ITALY
1943–1944, at 271–77 (2007).
245. U.S. President Franklin Roosevelt was only prepared to use chemical weapons
in reprisal for chemical attack. In fact, he overruled a plan to use mustard
against the
Japanese on Iwo Jima.
See
COLONEL
JOSEPH
H. ALEXANDER,
CLOSING
IN:
MARINES
IN THE
SEIZURE
OF
IWO
JIMA
48 (1994). In contrast, U.K. Prime Minister Winston Churchill
several times urged the use of mustard gas, stating, “I want a cold-blooded
calculation
made as to how it would pay us to use poison gas, by which I mean principally
mustard . . . . I want the matter studied in cold blood by sensible people and
not by that
particular set of psalm-singing uniformed defeatists which one runs across now
here now
there.”
See
Bernstein,
supra
note 110. The British were fully prepared to do so to repel a
German invasion on the beaches.
See
Christopher Bellamy,
Sixty Secret Mustard Gas Sites
Uncovered,
INDEP.
(London), Jun. 4, 1996, at 2.
246.
See
TUCKER,
supra
note 42, at 154. There was other participants in the race,
including France, the People’s Republic of China, and the United Kingdom.
See id.
at
153.
2010]
NANOTECH AGENTS
923
biological.247
Eventually, the following factors pushed the main
actors towards signing and ratifying two new conventions: (1) the
increasing and real possibility of actual use in warfare; (2)
accidental releases;248
(3) criminal or inadvertent transfers of
chemical or biological weapons to other countries or non-state
actors;249
and (4) and the possibility of independent development
and deployment by terrorists.250
2. 1972 Bacteriological and Toxin Weapons Convention
On April 10, 1972, the BWC opened for signature. After
twenty-two governments deposited their instruments of
ratification the treaty entered into force on March 26, 1975.251
It
was the first multilateral disarmament treaty banning an entire
class of weapons.252
As of February 2010, the BWC had 163 states
parties and thirteen signatories.253
There are still as of yet
nineteen states that have neither signed nor ratified the BWC.254
247.
See id.
at 154.
248.
See
KEN
ALIBEK
& STEPHEN
HANDELMAN,
BIOHAZARD:
THE
CHILLING
TRUE
STORY
OF THE
LARGEST
COVERT
BIOLOGICAL
WEAPONS
PROGRAM
IN THE
WORLD—TOLD
FROM
INSIDE
BY THE
MAN
WHO
RAN
IT
71–76 (1999) (explaining the accidental release
by the U.S.S.R. of weaponized anthrax at Sverdlovsk—now Yekaterinburg—on April
2,
1979). This release occurred after the U.S.S.R had already ratified the BWC.
See infra
note 252. This situation represents one aspect of the verification and
enforcement
problems implicit in any arms control treaty of this nature.
249.
See
MICHAEL
JOHN
GARCIA,
CONGRESSIONAL
RESEARCH
SERV.,
BIOLOGICAL
AND
CHEMICAL
WEAPONS:
CRIMINAL
SANCTIONS
AND
FEDERAL
REGULATIONS
4–8 (2004);
see
also
Treasa Dunworth et al.,
National Implementation of the Biological Weapons Convention,
11 J. CONFLICT
& SECURITY
L. 93 (2006); Int’l Crisis Group,
North Korea’s Chemical and
Biological Weapons Programs,
ICG Asia Report No. 167 (2009).
250.
See
TUCKER,
supra,
note 42 at 333;
see also
Kyle B. Olson,
Aum Shinrikyo: Once
and Future Threat?,
5 EMERGING
INFECTIOUS
DISEASES
513 (1999).
251.
See
Biological Weapons Convention,
supra
note 13, art. XIV(3);
see also
BWC
Implementation Support Unit, Office for Disarmament Affairs,
Biological Weapons
Convention: Background Information
(n.d.),
available at
http://www.unog.ch/
80256edd006b8954/(httpassets)/699b3ca8c061d490c1257188003b9fee/$file/
bwc-background_inf.pdf.
252. Banning an entire class of weapons stands in contrast to banning types of
weapons, such as the ban against exploding bullets as required under the St.
Petersburg
Convention of 1868. Declaration Renouncing the Use, in Time of War, of Explosive
Projectiles Under 400 Grammes Weight, Nov. 29–Dec. 11, 1868, 18 Martens Nouveau
Recueil (ser. 1) 474 [hereinafter St. Petersburg Declaration].
253.
See
Membership of the Biological Weapons Convention, http://www.unog.ch/
80256ee600585943/(httppages)/7be6cbbea0477b52c12571860035fd5c (last visited Apr.
3, 2010).
254.
See id.
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FORDHAM INTERNATIONAL LAW JOURNAL
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The United Kingdom, United States, and Russian Federation are
the BWC’s depositaries.255
States parties to the BWC undertake “never in any
circumstances to develop, produce, stockpile, or otherwise
acquire or retain” the following class of substances:
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; [or] weapons, equipment or means
of delivery designed to use such agents or toxins for hostile
purposes or in armed conflict.256
As noted above, both the BWC and the CWC incorporate the text
of the Geneva Protocol.257
That incorporation is important for
several reasons discussed above,258
but it also operates as a gapfiller
in any potential areas of doubt where an argument might
be made that an engineered virus was not the equivalent of
nanomachines,259
and not yet a living thing intended to fall
within the BWC.260
In fact, the BWC and CWC overlap because
they both incorporate the Geneva Protocol and because they
both cover toxins.261
This overlap and incorporation must inform
255.
See
Biological Weapons Convention,
supra
note 13, art. XIV(2).
256.
See id.
257.
See supra
note 22 and accompanying text.
258.
See supra
notes 24–27 and accompanying text.
259. At least some experts have informed the Author that engineered viruses are,
for all intents and purposes, nanomachines. This information was obtained at a
conference with the Author on July 8, 2009, in Washington D.C., in which he
agreed to
keep confidential the names of participants and specific quotations.
260. For two reasons, there is no doubt the BWC could be fairly interpreted to
include even engineered viruses: 1) the inclusion of smallpox within the BWC
even
though a virus is not
per se
a living thing; 2) the generally accepted scientific conclusion
that a virus is in fact a biological entity.
See
Robert Edwards & Forest Rohwe,
Viral
Metagenomics,
3 NATURE
REVIEWS
MICROBIOLOGY
504 (2005). Given the potentially grave
consequences of the use of engineered viruses as weapons, it is important that
we
interpret the BWC as covering their usage for banned purposes.
261. There is overlap between biological warfare and chemical warfare as the use
in
war of toxins, whether produced by living organisms, or otherwise, is banned
under the
provisions of both the BWC and the CWC. Considerable interpretative value may be
found in definitional section of the relevant U.S. statute. 18 U.S.C.
§
178 2–4 (2006)
defines criminally banned biological weapons:
(2) the term "toxin" means the toxic material or product of plants, animals,
microorganisms (including, but not limited to, bacteria, viruses, fungi,
rickettsiae or protozoa), or infectious substances, or a recombinant or
synthesized molecule, whatever their origin and method of production, and
includes—
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925
the upcoming analysis on application to new and developing
nanomaterials.
3. 1993 Chemical Warfare Convention
The CWC was the culmination of a long period of
international negotiation.262
It was opened for signature on
January 13, 1993,263
and entred into force on April 29, 1997, after
the sixty-fifth state party deposited its ratification instrument six
months earlier.264
As of February 2010, the treaty has 188 states
parties and two signatories.265
The CWC is designed to eliminate an entire category of
weapons of mass destruction by prohibiting the development,
production, acquisition, stockpiling, retention, transfer, and use
of chemical weapons.266
Excepted from this general prohibition
(A) any poisonous substance or biological product that may be
engineered as a result of biotechnology produced by a living organism; or
(B) any poisonous isomer or biological product, homolog, or derivative of
such a substance;
(3) the term "delivery system" means—
(A) any apparatus, equipment, device, or means of delivery specifically
designed to deliver or disseminate a biological agent, toxin, or vector; or
(B) any vector;
(4) the term "vector" means a living organism, or molecule, including a
recombinant or synthesized molecule, capable of carrying a biological agent or
toxin to a host
Id.
262.
See
United Nations Department for Disarmament Affairs, http://www.un.org/
Depts/dda/WMD/cwc/ (last visited Apr. 3, 2010) (specifically, “a decade of long
and
painstaking negotiations”).
263.
See
Status of the CWC, http://treaties.un.org/pages/
viewdetails.aspx?mtdsg_no=XXVI-3&chapter=26&lang=en (last visited Apr. 3, 2010).
Even before the CWC was opened for signature, the U.N. General Assembly passed a
resolution on November 30, 1992 that read, “Bearing in mind the Final
Declaration of
the
Conference of States Parties to the 1925 Geneva Protocol
and Other Interested States, held
in Paris from 7 to 11 January 1989, in which participating States stressed their
determination to prevent any recourse to chemical weapons by completely
eliminating
them.” G.A. Res. 47/39, pmbl., U.N. Doc. A/RES/47/39 (Nov. 30, 1992) (emphasis
added).
264.
See
Chemical Weapons Convention,
supra
note 10, art. XXI(1);
see also
Status
of the CWC,
supra
note 263.
265.
See
Status of the CWC,
supra
note 263.
266. Chemical Weapons Convention,
supra
note 10, art. I(1) State parties are also
obligated under Article 1 to destroy all existing stockpiles of chemical
weapons,
chemical weapons abandoned in the territory of another state party, and chemical
weapon production facilities.
See id.
art. I(2)–(4). Article 2 of the CWC includes key
definitions for the terms “chemical weapons” and “toxic chemicals.”
See supra
note 33.
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FORDHAM INTERNATIONAL LAW JOURNAL
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are legal uses intended for peaceful purposes.267
The treaty’s
categorical prohibition of chemical weapons is administered by
the Organisation for the Prohibition of Chemical Weapons
(“OPCW”),268
which conducts inspection of military and
industrial plants in all of the member nations, and works with
stockpile countries. All parties are also required to submit a
declaration concerning their possession
of
current chemical
weapons, old chemical weapons, and production facilities upon
sighning the treaty.269
The CWC identifies three classes of controlled chemicals
which can either be used as weapons or in the manufacture of
weapons.270
Classification is based on the quantities of the
substance produced commercially for legitimate purposes.271
Each class is split into two parts: part A covers chemicals that can
be used directly as weapons and part B extends coverage to
chemicals useful in the manufacture of chemical weapons.272
The
annexes and schedules incorporated within the CWC provide the
criteria for defining these groups of chemicals.273
Chemicals
listed in schedule 1 have few or no uses outside of chemical
weapons;274
while production or use of these chemicals may be
permissible for research, medical, pharmaceutical, or chemical
267. Chemical Weapons Convention,
supra
note 10, art. VI (“Each State Party has
the right, subject to the provisions of this Convention, to develop, produce,
otherwise
acquire, retain, transfer and use toxic chemicals and their precursors for
purposes not
prohibited under this Convention.”). The convention goes on to define “purposes
not
prohibited under this convention” as “(a) Industrial, agricultural, research,
medical,
pharmaceutical or other peaceful purposes; (b) Protective purposes, namely those
purposes directly related to protection against toxic chemicals and to
protection against
chemical weapons; (c) Military purposes not connected with the use of chemical
weapons and not dependent on the use of the toxic properties of chemicals as a
method
of warfare; (d) Law enforcement including domestic riot control purposes.”
See id.
art.
II(9);
see also
S. Exec. Res. 75, 105th Cong. (1997) (“[R]equiring the President to certify
to Congress on an annual basis that “the legitimate commercial activities and
interests of
chemical, biotechnology, and pharmaceutical firms in the United States are not
being
significantly harmed by the limitations of the Convention on access to, and
production
of, those chemicals and toxins listed in Schedule 1.”).
268. Chemical Weapons Convention,
supra
note 10, art. VIII(A).
269.
See id.,
art. III(1).
270.
See id.,
Annex on Chemicals.
271.
See id.,
sec. A.
272.
See id.,
sec. B.
273.
See id.
274.
See id.,
sec. A(1). Examples of schedule 1 chemicals are mustard gas, nerve
agents, and substances solely used as precursor chemicals in their manufacture.
See id.,
sec. B, sched. 1.
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weapon defense testing purposes, production above one
hundred grams per year must be declared to the OPCW.275
Each
country is limited to possessing a maximum of one ton of these
materials.276
Chemicals listed in schedule 2 have legitimate smallscale
applications;277
manufacture of these chemicals must be
declared, and export of these chemicals to non-CWC countries is
limited.278
Chemicals listed in schedule 3 have large-scale
industrial uses apart from chemical weapons.279
Plants that
manufacture more than thirty tons of schedule 3 chemicals per
year must declare the produced quantity and subject themselves
to inspection; additionally, there are restrictions on export of
schedule 3 chemicals to non-CWC countries.280
The treaty also deals with “discrete organic compounds.”281
Unless a plant solely produces explosives or hydrocarbons, the
OPCW must be informed of and may inspect any plant
producing or expecting to produce more than two hundred tons
of discrete organic compounds per year, or thirty tons if the
chemical contains phosphorus, sulfur, or fluorine.
A U.N. publication on disarmament negotiations accurately
reports that:
[T]he Geneva Protocol of 1925 and the Biological Warfare
Convention of 1972 are relatively simple as far as their
content and mechanisms of implementation are concerned.
It became increasingly clear at the beginning of the 1970s
that such a simple approach to a comprehensive ban on
chemical weapons was not acceptable to some countries,
particularly the United States and the United Kingdom. One
of the reasons given was that chemical weapons had a higher
military value than biological . . . . Therefore, especially
Western countries believed that international verification of
275.
See id.,
Annex on Implimentation and Verification, pt. VI.
276.
See id.
277.
See id.,
Annex on Chemicals, sec. A(2).
278.
See id.,
Annex on Implementation and Verification, pt. VII.
279.
See id.,
Annex on Chemicals, sec. A(3). For example, phosgene is a precursor
in the manufacture of many legitimate organic materials.
See id.,
Annex on
Implementation and Verification, pt. VII.
280.
See id.
281.
Id.,
pt. IX(A). The United States defines discrete organic chemicals as any
carbon compounds apart from long chain polymers, oxides, sulfides and metal
carbonates.
See
U.S. Dep’t of Commerce, Unscheduled Discrete Organic Chemicals,
http://www.cwc.gov/index_chemicals_udoc.html (last visited Apr. 3, 2010).
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compliance with a total prohibition of chemical weapons
should be more intrusive in order to ensure the security of
all parties to the agreement.282
All parties to the CWC agree never to develop, produce, acquire,
possess, transfer, prepare to use, or use chemical weapons.283
Through its detailed definitions, its declaration requirement,284
and the OPCW, the CWC creates a regime with very broad reach;
the incorporation of the Geneva Protocol and the BWC’s parallel
obligations greatly amplify the probability that most
nanotechnology products with toxic or poisonous application in
war will fall within the CWC’s regime. A number of other
potentially applicable treaties and international law doctrines are
worth at least a brief mention here as well.
B.
Other Potentially Applicable Treaties and Doctrines
In addition to the treaties discussed above, a number of
other treaties and binding principles of international law may
impact nanoparticles and nanomimics and their use as weapons
of war.285
There are several treaties that, although not facially
applicable to nanobots, may nevertheless impact their use in
warfare. Similarly, there are also several general doctrines which
may bear on the use of nanobots that are worth mentioning.
1. Geneva Conventions III and IV, and Additional Protocol I of
1977
The Geneva Convention Relative to the Treatment of
Prisoners of War (“Geneva Convention III”)286
and the Geneva
Convention Relative to the Protection of Civilians (“Geneva
Convention IV”)287
include several articles that generally impact
gas warfare in the context of prisoners of war (“POWs”). In
particular, Geneva Convention III requires continued gas
282. BERNAUER,
supra
note 147, at 1.
283.
See, e.g.,
Chemical Weapons Convention,
supra
note 10, art I.
284.
See id.,
art. III.
285.
See generally
Kelly,
supra
note 139.
286. Geneva Convention Relative to the Treatment of Prisoners of War; Aug. 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III].
287. Geneva Convention Relative to the Protection of Civilian Persons in Time of
War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva
Convention IV].
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929
protection for POWs,288
and Geneva Convention IV requires gas
protection for internees.289
288. Article 18 of the Geneva Convention Relative to the Treatment of Prisoners
of
War (“Geneva Convention III”) states the following:
[A]ll effects and articles of personal use, except arms, horses, military
equipment and military documents, shall remain in the possession of prisoners
of war, likewise their metal helmets and gas masks and like articles issued for
personal protection. Effects and articles used for their clothing or feeding
shall likewise remain in their possession, even if such effects and articles
belong to their regulation military equipment.
Geneva Convention III,
supra
note 286, art. 18. Note that the ICRC interprets Geneva
Convention III as specifically requiring gas protection for prisoners of war:
[T]he requirement that prisoners of war must have shelters against air
bombardment “to the same extent as the local civilian population” implies
that . . . shelters must be supplied for prisoners of war in the same conditions
as for the civilian population . . . .
If civilian workers employed in a particular
industry are issued with special equipment for use during air-raids (gas masks,
protective clothing, etc.), such equipment must also be made available to
prisoners of
war.
INT'L
COMM.
OF THE
RED
CROSS,
COMMENTARY
ON THE
THIRD
GENEVA
CONVENTION
RELATIVE
TO THE
TREATMENT
OF
PRISONERS
OF
WAR
188(Jean S. Pictet ed., 1960)
(emphasis added) (quoting Geneva Convention III,
supra
note 286, art. 23).
289. Article 85 of the Geneva Convention Relative to the Treatment of Civilians
states the following:
[T]he Detaining Power is bound to take all necessary and possible measures to
ensure that protected persons shall, from the outset of their internment, be
accommodated in buildings or quarters which afford every possible safeguard
as regards hygiene and health, and provide efficient protection against the
rigors of the climate and the effects of the war.
Geneva Convention IV,
supra
note 287, art. 85. Additionally, article 88 states:
[I]n all places of internment exposed to air raids and other hazards of war,
shelters adequate in number and structure to ensure the necessary protection
shall be installed. In case of alarms, the measures internees shall be free to
enter such shelters as quickly as possible, excepting those who remain for the
protection of their quarters against the aforesaid hazards. Any protective
measures taken in favor of the population shall also apply to them.
Id.
art. 88. Furthermore, a 1991 U.N. report concerning Israel’s Geneva Convention
IV
obligations to Palestinians in the occupied territories with respect to gas
protection
informs this point of inquiry:
Since the inception of the crisis, Iraq had repeatedly threatened to attack
Israel with conventional and non-conventional weapons in the event of
hostilities. As part of its civil defense procedures, Israel provided to its
citizens
gas masks and related equipment for protection against a chemical attack. The
Israeli authorities also issued gas masks to the Palestinian residents of
Jerusalem. United Nations officials in the area repeatedly expressed concern
about the need of the Palestinian population as a whole to be given such
equipment. On 14 January 1991, the Israeli High Court of Justice ruled as
follows: “The Military Commander must indeed exercise equality in the area.
He may not discriminate between residents.
When the Military Commander has
reached the conclusion that protective kits must be distributed to Jewish
residents in the
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Other relevant provisions are found in the 1977 Protocol
Additional to the Geneva Conventions of 12 August 1949
(“Protocol I”).290
Although a large part of Protocol I is at least in
some way related to protecting against the utilization of any
weapon,291
certain portions have particular application to the
nanoweapons discussed here. This is particularly true of article
36:
[I]n the study, development, acquisition or adoption of a
new weapon, means or method of warfare, a High
area, protective kits must also be distributed to the area’s Arab residents.”
The High
Court ordered that
“[F]irst, the 173,000 gas masks presently in stock in emergency
warehouses must be immediately distributed to adults living in the areas
surrounding Jerusalem, as well as in those areas near the Green Line.
Second, all efforts possible should be made to secure masks for the
children of these adults, and these masks must be distributed immediately
upon their being obtained. Third, all residents of the area should receive
masks immediately upon their being purchased by the Military
Commander. The Military Commander must make every possible effort
to secure these masks as soon as possible.”
Despite the urgency expressed in the decision of the High Court, the
distribution of gas masks from Israel’s existing stock proceeded slowly. The
IDF spokesman’s office told B’Tselem, an Israeli human rights organization,
that, as of 2 February 1991, 50,000 masks had been given out. Those that were
distribution lacked the atropine and decontamination powder contained in
the kits provided to Israeli citizens. Few, if any, masks were made available to
Palestinian children. Furthermore, the vast majority of Palestinian detainees -
many of whom are housed in tents and therefore more vulnerable in the event
of an attack—were not given gas masks. For its part, UNRWA launched an
appeal and received, from international donors, 62,000 masks for adults. Its
distribution of the masks was slowed by the fact that the Israeli authorities
requested that they be delivered on a house-to-house basis during the curfews.
The Secretary-General,
Report Submitted to the Security Council by the Secretary-General in
Accordance with Resolution 681,
¶11,
delivered to the Security Council,
U.N. Doc. S/22472
(Apr. 9, 1991) (emphasis added).
290. Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts, June 8,
1977,
1125 U.N.T.S. 3 [hereinafter Protocol I]. While this Article largely deals with
international armed conflicts and discusses only Protocol I, the principles
articulated
would be precisely the same in a non-international conflict—excluding police use
of
lacrimators—as in Iraqi use against its citizens. Thus, Protocol II’s strictures
are at least
worth noting as relevant.
See
Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of Non-International
Armed
Conflicts, June 8, 1977, 1125 U.N.T.S. 609. Notably, the United States is not
party to
Additional Protocol II of 1977.
See
States Parties / Signatories to Additional Protocol II
of the Geneva Convention, http://www.icrc.org/ihl.nsf/websign?readform&id=475
(last
visited Apr. 3, 2010).
291.
See, e.g.,
id.
arts. 35, 51, 57.
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Contracting Party is under an obligation to determine
whether its employment would, in some or all circumstances,
be prohibited by this Protocol or by any other rule of
international law applicable to the High Contracting Party.292
While much of the discussion of nanoweapons presented here
argues that they are simply old swine in new battles, to the extent
that nanomimics do indeed represent anything that existing
conventions do not cover, article 36 of Protocol 1 would clearly
require advance determination of their legality. Other relevant
provisions of Protocol I are are those relating to protection of the
civilian populace,293
and precautions required in attacks.294
292.
See id.
art. 36.
293. Article 51 of Protocol I addresses protection of the civilian population:
1. The civilian population and individual civilians shall enjoy general
protection against dangers arising from military operations. To give effect to
this protection, the following rules, which are additional to other applicable
rules of international law, shall be observed in all circumstances.
. . .
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be
directed at a specific military objective; or
(c) those which employ a method or means of combat the effects of
which cannot be limited as required by this Protocol; and consequently,
in each such case, are of a nature to strike military objectives and civilians
or civilian objects without distinction.
5. Among others, the following types of attacks are to be considered as
indiscriminate:
(a) an attack by bombardment by any methods or means which treats as a
single military objective a number of clearly separated and distinct
military objectives located in a city, town, village or other area containing
a similar concentration of civilians or civilian objects; and
(b) an attack which may be expected to cause incidental loss of civilian
life, injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete and direct
military advantage anticipated.
Id.
art. 51.
294. Article 57 of Protocol I addresses precautions in attack:
1. In the conduct of military operations, constant care shall be taken to spare
the civilian population, civilians and civilian objects.
2. With respect to attacks, the following precautions shall be taken:
(a) those who plan or decide upon an attack shall:
(i) do everything feasible to verify that the objectives to be attacked
are neither civilians nor civilian objects and are not subject to special
protection but are military objectives within the meaning of
paragraph 2 of Article 52 and that it is not prohibited by the
provisions of this Protocol to attack them;
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2. The Early Poison Conventions
The ban on poisonous weapons is an ancient one.295
Instructions for the Government of Armies of the United States
in the Field (“General Order 100”) is the first comprehensive
modern articulation regulating armed conflict.296
it provides,
inter alia, that “the use of poison in any manner, be it to poison
wells, or food, or arms, is wholly excluded from modern warfare.
He that uses it puts him self [sic] out of the pale of the law and
usages of war.”297
However, the stricture dates from well before
the nineteenth century:
[P]roscription of toxic weapons seems almost as ancient as
the weapons themselves. The earliest surviving references to
toxic warfare are probably those in the Indian epics . . . and
it is to the Manu laws of India, which forbade the use of
poison weapons, that a line of ancestry can be drawn . . . . It
is a culturally diverse ancestry, reaching back not only
through Hague and Roman law via Grotius, but also through
the warfare regulations which the Saracens derived from the
Koran.298
(ii)
take all feasible precautions in the choice of means and methods of attack
with a view to avoiding, and in any event to minimizing, incidental loss or
civilian life, injury to civilians
and damage to civilian objects;
(iii) refrain from deciding to launch any attack which may be
expected to cause incidental loss of civilian life, injury to civilians,
damage to civilian objects, or a combination thereof, which would be
excessive in relation to the concrete and direct military advantage
anticipated;
(b) an attack shall be cancelled or suspended if it becomes apparent that
the objective is not a military one or is subject to special protection or that
the attack may be expected to cause incidental loss of civilian life, injury
to civilians, damage to civilian objects, or a combination thereof, which
would be excessive in relation to the concrete and direct military
advantage anticipated;
(c) effective advance warning shall be given of attacks which may affect
the civilian population, unless circumstances do not permit. 3. When a
choice is possible between several military objectives for obtaining a
similar military advantage, the objective to be selected shall be that the
attack on which may be expected to cause the least danger to civilian lives
and to civilian objects.
Id.
art. 57 (emphasis added).
295.
See, e.g.,
supra
note 1.
296.
See
LIEBER,supra
note 125.
297.
Id.
art. 70.
298. Robinson,
supra
note 228, at 17.
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Thus, article 23(a) of the annex to the Hague Convention
of 1907 Respecting the Laws and Customs of War (“Hargue
Convention IV”) provides that “[i]t is especially forbidden to
employ poison or poisoned weapons.”299
This language, however,
must be balanced against its past interpretations, and states
rejecting any applicability to poisonous or asphyxiating gases.300
According to the International Court of Justice in the
Nuclear
Weapons Advisory Opinion,
the “prime or even exclusive effect” of
a weapon must be to poison in order to qualify as poisonous
within the meaning of the annex to Hague Convention IV.301
Because these agreements concerned toxic and asphyxiating
gases and smokes, the early bans against poisons were ignored or
distinguished by state usage,302
and in any case have been
superseded by the Geneva Protocol, BWC, and CWC, which are
now the recognized source of international law due to their
specificity and effectiveness.303
3. Conventional Weapons Convention
The Convention on Prohibitions or Restrictions on the Use
of Certain Conventional Weapons Which May Be Deemed to Be
Excessively Injurious or to Have Indiscriminate Effects
(“Conventional Weapons Convention”)304
entered into force on
December 2, 1983.305
The only potentially applicable portion of
the Conventional Weapons Convention appears to be Amended
Protocol II, which entered into force in 1998 (“Amended
Protocol II”)306
and covers landmines, booby-traps, and “other
299. Convention Respecting the Laws and Customs of War on Land, Annex art.
23(a), Oct. 18, 1907, 36 Stat. 2277, 205 Consul. T.S. 277 [hereinafter Hague
Convention
IV].
300.
See
Kelly,
supra
note 285, at 44.
301. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,
1996
I.C.J. 226, 248 (July 8).
302.
Cf. supra
notes 132–44, 222 (discussing Germany's attempts to legitimize its
use of chemical weapons under previous treaties and U.S. use of tear gas under
the 1925
Geneva Protocol).
303.
See
CLIVE
PARRY,
THE
SOURCES
AND
EVIDENCES
OF
INTERNATIONAL
LAW
51–52
(1965).
304.
See
Conventional Weapons Convention,
supra
note 164.
305.
See id.
art. 5(1), (3); Status of the Conventional Weapons Convention,
http://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=xxvi-
2&chapter=26&lang=en (last visited Apr. 3, 2010).
306.
See
Status of Amended Protocol II to the Conventional Weapons Convention,
http://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=xxvi-2-b&chapter=
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FORDHAM INTERNATIONAL LAW JOURNAL
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devices.”307
These are the most important elements of Amended
Protocol II of the Conventional Weapons Convention: (1) use of
landmines and booby-traps is highly regulated but not banned;308
(2) anti-personnel landmines must be kept in clearly marked and
protected minefields or be equipped with self-destruction and
self-deactivation mechanisms that disarm and render the mines
unusable after a relatively short period of time;309
(3) mines
scattered by aircrafts, artillery, or missiles require self-destruction
and deactivation mechanisms;310
(4) anti-personnel mines must
be detectable by common mine detection equipment to enable
their location and safe removal after a conflict;311
(5) mine
clearing responsibility rests with the government controlling the
territory where mines are located.312
In the past, interest in mines from a chemical weapons
perspective focused exclusively on their use as deployment
devices; however, it is also interesting to look at some of the
definitions in Amended Protocol II of the Conventional Weapons
Convention. Most notably, “booby-trap” is defined more broadly
than “mine.” The definition of mine is “a munition . . . designed
to be exploded,” while the definition of booby-trap is “any
device
or material
which is designed,
constructed or adapted
to kill
or
injure, and
which functions unexpectedly when a person
disturbs or
approaches an apparently harmless object or
performs an
apparently safe act.”313
The facial argument for coverage of nanomimic devices as
booby-traps—at least in circumstances where they affect a person
performing an apparently safe act, such as breathing—is actually
26&lang=en. The seventy-six countries bound by the protocol include most, but
not all,
of the world’s major current or past landmine producers—China, India, Israel,
Pakistan,
Russia, and the United States—which have refused to join the Ottawa Convention
banning anti-personnel landmines.
See id.;
see also
Convention on the Prohibition of the
Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their
Destruction, Sept. 18, 1997, 2056 U.N.T.S. 211.
307.
See
Conventional Weapons Convention,
supra
note 164, Protocol II art. 1,
as
amended,
May 3, 1996, S. TREATY
DOC.
NO.
105-1 (1997), 35 I.L.M. 1206 [hereinafter
Amended Protocol II to the Conventional Weapons Convention].
308.
See
Amended Protocol II to the Conventional Weapons Convention,
supra
note 164, art. 3.
309.
See id.
art. 3, Technical Annex
¶
2.
310.
See id.
art. 5, Technical Annex
¶
1.
311.
See id.
312.
See id.
art. 5(2).
313.
Id.
art. 2(1), (4) (emphasis added).
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rather compelling. Article 3 of Amended Protocol II, which
prohibits deployment against civilians or in an indiscriminate
fashion, bolsters this argument.314
It would be ironic if a nanomachine were specifically
designed to avoid coverage as a chemical weapon and
incidentally fell within the coverage of another international ban.
It is, however, a good point to keep in mind, for upon such
ironies may the law be built.
4. Doctrinal Violations
Interestingly, the preamble of the 1925 Geneva Protocol
states that “the use in war of asphyxiating, poisonous or other
gases, and of all analogous liquids materials or devices, has been
314. Article 3 of Amended Protocol II articulates general restrictions on the
use of
mines, booby-traps, and other devices:
1. This Article applies to:
. . .
(b) booby-traps; and
(c) other devices.
. . .
3. It is prohibited in all circumstances to use any mine, booby-trap or other
device which is designed or of a nature to cause superfluous injury or
unnecessary suffering.
. . .
7. It is prohibited in all circumstances to direct weapons to which this Article
applies, either in offence, defense or by way of reprisals, against the civilian
population as such or against individual civilians or civilian objects.
8. The indiscriminate use of weapons to which this Article applies is
prohibited. Indiscriminate use is any placement of such weapons:
(a) which is not on, or directed against, a military objective. In case of
doubt as to whether an object which is normally dedicated to civilian
purposes, such as a place of worship, a house or other dwelling or a
school, is being used to make an effective contribution to military action,
it shall be presumed not to be so used; or
(b) which employs a method or means of delivery which cannot be
directed at a specific military objective; or
(c) which may be expected to cause incidental loss of civilian life, injury
to civilians, damage to civilian objects, or a combination thereof, which
would be excessive in relation to the concrete and direct military
advantage anticipated.
9. Several clearly separated and distinct military objectives located in a city,
town, village or other area containing a similar concentration of civilians or
civilian objects are not to be treated as a single military objective.
Id.
art 3. It bears mention that “other devices,” defined as manually-placed
munitions
and devices including improvised explosive devices designed to kill, injure, or
damage
and which are actuated manually, by remote control, or automatically after a
lapse of
time, probably does not include nanoweapons.
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justly condemned by the general opinion of the civilized
world,”315
and preamble of the CWC affirms that CWC signatories
are “determined for the sake of all mankind, to exclude
completely the possibility of the use of chemical weapons,
through the implementation of the provisions of this
Convention, thereby complementing the obligations assumed
under the Geneva Protocol of 1925 . . . .”316
Those statements
encapsulate the core of the humanitarian argument against gas
weapons from their inception. The reader should be familiar
with the basic doctrines of military necessity,317
proportionality,318
unnecessary suffering,319
chivalry,320
general war crimes,321
treachery,322
and general “humanitarian law”323
against which all
new weapons are weighed. They are all relevant to any analysis.
315. Geneva Protocol,
supra
note 23, pmbl.
316. Chemical Weapons Convention,
supra
note 10, pmbl.
317.
See
MYRES
MCDOUGAL
& FLORENTINO
FELICIANO,
LAW
AND
MINIMUM
WORLD
PUBLIC
ORDER
72 (1961) (defining military necessity as “such destruction, and only such
destruction, as is necessary, relevant and proportionate to the prompt
realization of
legitimate military objectives”). According to the
U.S.M.C. Law of War Deskbook,
its
elements include that the force used is (a) capable of being regulated; (b)
necessary to
achieve enemy submission as soon as possible, and consistent with military
security
requirements; (c) not greater than needed to achieve enemy submission (in terms
of the
overall conflict); and (d) is not otherwise prohibited. U.S.M.C. LAW
OF
WAR
DESKBOOK
(1992).
318.
See generally
E. THOMAS
SULLIVAN
& RICHARD
S. FRASE,
PROPORTIONALITY
PRINCIPLES
IN
AMERICAN
LAW
(2009).
319.
See, e.g.,
St. Petersburg Declaration,
supra
note 252 (prohibiting in certain
instances “the employment of arms which uselessly aggravate the sufferings of
disabled
men, or render their death inevitable”).
320.
See
U.S. DEP'T
OF THE
ARMY,
FIELD
MANUAL
27-10: THE
LAW
OF
LAND
WARFARE
¶3
A
(1956) (requiring that belligerents “conduct hostilities with regard for the
principles of humanity and chivalry”). Sir Hersch Lauterpacht comments in
Manual of
Military Law, Part III, The Law of War on Land,
that chivalry “demands a certain amount
of fairness in offense and defense, and certain mutual respect between the
opposing
forces.” MANUAL
OF
MILITARY
LAW,
PART
III: THE
LAW
OF
WAR
ON
LAND
2 (1958).
321.
See, e.g.,
18 U.S.C.
§
2241 (2006) (defining war crimes).
322.
See, e.g.,
ERIC
CASTREN,
THE
PRESENT
LAW
OF
WAR
AND
NEUTRALITY
194
(1954) (arguing that:“the use of [easily detectable] gas in warfare has had . .
. not [yet]
been treacherous, [b]ut when and if, as is likely, entirely odorless and
invisible
poisonous gases are invented, there will be no legal difference between the use
of them
and other poison.”).
But see
Kelly,
supra
note 139 (showing that Castren’s position was
rejected by state practice).
323. International humanitarian law is “the body of rules applicable in armed
conflict which protect those not or no longer taking active part in hostilities
[and]
regulate permissible means and methods of warfare.” ICRC,
Humanitarian Law, Human
Rights and Refugee Law—Three Pillars
(April 23, 2005),
available at
http://www.icrc.org/
web/eng/siteeng0.nsf/html/6T7G86.
2010]
NANOTECH AGENTS
937
They have also all been more than adequately discussed in the
context of chemical warfare.324
III.
GOOD FAITH PRINCIPLE OF TREATY INTERPRETATION
This Part is not intended to be a general treatise on treaty
interpretation, or on any particular state’s treatment of treaty
interpretation law.325
Rather, it is simply intended to articulate
certain agreed-upon principles of good faith interpretation
which should inform the application of current treaties to new
and developing nanomaterials.326
Article 31 of the Vienna Convention on the Law of Treaties
provides that “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.”327
The United States signed the Vienna Convention in
1970328
and voluntarily follows many of its provisions, but it is yet
to gain the advice and consent necessary for ratification within
the U.S. Senate.329
Professor Evan Criddle contends that the
United States is reluctant to ratify the Vienna Convention
because the Supreme Court relies on domestic ratification
materials,330
defers to Executive Branch interpretation, and U.S.
324.
See
Kelly,
supra
note 139, at 47–52.
325.
See, e.g.,
JOHN
NORTON
MOORE,
TREATY
INTERPRETATION,
THE
CONSTITUTION
AND THE
RULE
OF
LAW
(2001) (theorizing about treaty interpretation); RICHARD
GARDINER,
TREATY
INTERPRETATION
147–48 (2008) (same); DEVELOPMENTS
IN
INTERNATIONAL
LAW
IN
TREATY
MAKING
(Rudiger Wolfrum & Volker Roben eds., 2005)
(same).
326. Hanspeter Neuhold lists four requirements for a treaty to create an
effective
legal regime: (1) speed; (2) clarity and uniformity; (3) universality of
participation; and
(4) flexibility and adaptability.
See
Hanspeter Neuhold,
The Inadequacy of Law-Making by
International
Treaties,
in
DEVELOPMENTS
OF
INTERNATIONAL
LAW
IN
TREATY
MAKING,
supra
note 325, at 43. Regarding clarity and uniformity, Neuhold notes that a treaty
may
be ineffective “because its provisions are ambiguous, or because the obligations
it
imposes are not identical for all parties.”
Id.
327. Vienna Convention,
supra
note 24, art. 31.
328.
See
Status of the VCLT, http://treaties.un.org/pages/viewdetailsiii.aspx?&src=
treaty&mtdsg_no=xxiii~1&chapter=23&lang=en (last visited Apr. 3, 2010).
329.
See
Evan J. Criddle,
The Vienna Convention on the Law of Treaties in U.S. Treaty
Interpretation,
44 VA.
J. INT’L
L. 431, 434 (2004).
330. The Vienna Convention rejects limiting reliance to
traveaux preparatoires.
See
Vienna Convention,
supra
note 24, art. 32.
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courts more broadly tend to construe treaties in light of domestic
interests.331
While U.S. courts are less likely than courts in many other
states to rely solely on international source materials, they still
espouse the underlying requirement of good faith treaty
interpretation. In
Sanchez-Llamas v. Oregon,
the U.S. Supreme
Court specifically relied on the good faith requirement: “[T]he
United States ratified the [Vienna Convention on Consular
Relations] with the expectation that it would be interpreted
according to its terms.”332
The Court has also recognized the
good faith requirement in treaties signed with Native American
tribes. The Court in
McClanahan v. Arizona State Tax Commission,
for instance, wrote, “It is circumstances such as these which have
led this Court in interpreting Indian treaties, to adopt the
general rule that ‘[d]oubtful expressions are to be resolved in
favor of the weak and defenseless people who are the wards of
331.
See
Criddle,
supra
note 329, at 454. Criddle specifically mentions the good
faith requirement when discussing
United States v. Alvarez-Machain,
504 U.S. 655 (1992):
[A]lthough both the majority and dissent apparently accepted that the
Extradition Treaty should be interpreted “in accordance with the ordinary
meaning to be given the terms” and consistent with the treaty’s overarching
“object and purpose,” neither seriously considered the Convention’s
instruction to construe treaties “in good faith.” Informing this assessment of
“good faith” is Article 31(3)(c)’s additional instruction, which enjoins courts
to “take into account . . . [a]ny relevant rules of international law applicable
to
the relations between the parties.” Thus, a “good faith” treaty interpretation
would account for “the general principle of international law,” discussed in
Justice Rehnquist’s majority opinion, i.e., “that one government may not
‘exercise its police power in the territory of another state.” The Vienna
Convention incorporates this “general principle” into the Extradition Treaty
by implication. Of course, the Vienna Convention’s interpretive framework
does not operate mechanically, eliminating the need for courts to exercise
“good faith” and sound judgment. Instead, the Vienna Convention’s function
is primarily heuristic [i.e. a “rule of thumb” based on trial and error],
channeling courts’ reasoning toward a circumscribed range of internationally
acceptable treaty constructions.
Criddle,
supra
note 329, at 494–95.
332. Sanchez-Llamas v. Oregon, 548 U.S. 331, 347 (2006) (quoting section 325
Restatement (Third) of Foreign Relations Law of the United States
as stating that “An
international agreement is to be interpreted in good faith in accordance with
the
ordinary meaning to be given to its terms in their context and in the light of
its object
and purpose”). Note that section 325 of the Restatement specifically follows
article 31 of
the Vienna Convention.
Compare
RESTATEMENT
(THIRD)
OF
FOREIGN
RELATIONS
LAW
OF
THE
UNITED
STATES
§ 325 (1986),
with
Vienna Convention,
supra
note 24, art. 31.
2010]
NANOTECH AGENTS
939
the nation, dependent upon its protection and good faith.’”333
The most recent word on treaty interpretation by the U.S.
Supreme Court is found in
Medellin v. Texas,
where the Court
held that an International Court of Justice ruling that a foreign
national had not been informed of his rights under the Vienna
Convention on Consular Relations did not preempt Texas
limitations on filing excessive petitions for habeas corpus.334
That
opinion has occasioned critical commentary relating to treaty
interpretation by the Supreme Court.335
It is fair to say that the principle of good faith interpretation,
and the language of
Restatement (Third) of Foreign Relations Law of
the United States,
is relevant in applying the Geneva Protocol and
its progeny to nanoweapons. However, in light of past arguments
over the meaning of words in chemical-related treaties,336
the
content of the good faith requirement may be a matter of at least
some controversy. This very concern informs a cautious approach
to any possible ambiguities in international treaties, especially
those regulating armed conflict. It is to the possible ambiguities
and their application to nanoweapons that this analysis now
turns.
333. 411 U.S. 164 (1973) (quoting Carpenter v. Shaw, 280 U.S. 363(1930)). Also,
“courts in the United States are generally more willing than those of other
states to look
outside the instrument to determine its meaning. In most cases, the United
States
approach would lead to the same result.” RESTATEMENT
(THIRD)
OF
FOREIGN
RELATIONS
LAW
OF THE
UNITED
STATES
§ 325 cmt. G (1986);
cf.
United States v. Stuart, 489 U.S.
353, 368 (1989).
334. 552 U.S. 491 (2008).
335.
See, e.g.,
David J.Bederman,
Medellin’s New Paradigm for Treaty Interpretation,
102 AM.
J. INT’L
L. 529, 539 (2008).(“Perhaps what is most notable about the
Medellin
majority’s approach to treaty interpretation is the extent to which it eschews
formalism.
Despite the occasional invocation of “general principles of interpretation,” and
the
broad canon that “‘interpretation . . . must, of course, begin with the language
of the
[t]reaty itself,” . . . [n]owhere in the
Medellin
opinions are the most difficult aspects of
contemporary treaty interpretation grappled with: When is it appropriate to
break from
the treaty text? How high should an interpreter’s tolerance for ambiguity be?
Are all
extratextual sources of construction to be treated equally? What intentions
matter in
treaty interpretation (those of the original treaty drafters or those generated
by
subsequent practice)?
What role is there for a supervening canon of good faith in treaty
interpretation so as to ensure that a selected construction does not result in a
material breach of the
agreement?”
(emphasis added)). Professor John Moore discusses U.S. Supreme Court
jurisprudence on treaty law and makes a compelling argument for rule of law in
application of treaties.
See generally
JOHN
NORTON
MOORE,
TREATY
INTERPRETATION,
THE
CONSTITUTION
AND THE
RULE
OF
LAW
(2001).
336.
See supra
Part II.A.1.d.i.
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IV.
GOOD FAITH INTERPRETATION OF CURRENT LAWS
APPLICABLE TO NANOMIMICS
A.
Application of Current Treaties
Depending on the circumstances, and the nanomaterials
involved, it ranges from certain to strongly arguable, but not
entirely certain, that the principal treaties at issue here—BWC
and CWC with the incorporated Geneva Protocol—apply.337
The
principal difficulty in achieving the absolute predictability for
which all law strives338
is the historic tendency of states to find any
available loopholes in wartime; these interpretations of law are
rejected by the vast majority of states but still have a certain
plausibility. In the last century, there have been two particular
examples involving use of gas in arguable violation of existing
337. Pinson,
supra
note 33, argues that because the BWC bans toxins “whatever
their origin or method of production,” that it therefore “seems to include
so-called
mechanical devices that could result from mature nanotechnology [and so] one can
argue that [a] nanorobot[] can be treated as a toxin if it causes harm similar
to other
already known toxins.”
Id.
at 298. He goes on to recognize a counterargument that the
BWC “seems to deal only with biological organisms” and concludes that “[p]erhaps
the
only way nanotechnology can fall under the BWC’s prohibitions without a doubt as
if it
were used to artificially create exact replicas of known biological weapons or
toxins.”
Id.
His examination of CWC applicability is equally jejune. He essentially argues
that while
nanoproducts “may not be chemicals in the sense originally conceived of by the
CWC
drafters, nanotechnology might still be perceived as a
functional
equivalent and thereby
covered under the CWC.”
Id.
at 302. Without any in-depth analysis, he concludes that
“nano-germs” and “nano-assassins” “could be prohibited as a toxic chemical under
the
CWC, as they would have no purpose other than causing harm or death to humans or
animals.”
Id.
Pinson concludes that the BWC and CWC are inapplicable, without
mentioning the CWC’s applicability to analogous devices under the Geneva
Protocol or
the most likely scenario where existing chemical products are reduced to
nanoscale to
defeat defensive systems, and then proceeds to argue for the creation of a new
international treaty.
Id.
at 302–09. He argues that “because of the vagueness of the word
“chemical,” any country can contend that nanotechnology is not chemical and
therefore
not prohibited.”
Id.
338.
See
Oliver Wendell Holmes, Jr.,
The Path of the Law,
10 HARV.
L. REV.
457, 457
(1897) (“The object of our study [of law] is prediction, the prediction of the
incidence
of the public force through the instrumentality of the courts. The means of
study are a
body of reports, of treatises, and of statutes . . . [in which] are gathered the
scattered
prophecies of the past . . . . These are what properly have been called the
oracles of the
law. Far the most important and pretty nearly the whole meaning of every new
effort of
legal thought is to make these prophecies more precise, and to generalize them
into a
thoroughly connected system.”).
2010]
NANOTECH AGENTS
941
bans: Germany in World War I and the United States in
Vietnam.339
Germany’s use of gas on a large scale commencing in 1915,
the German legal analysis, and the ensuing argument regarding
violation of the Hague ban, has been discussed above.340
As
Haber notes, Germany “argued at the time and later, that (i) the
Conventions did not cover gas blown from cylinders, (ii) the
Allies had used gas first, (iii) gases were not poison, and (iv) after
the war, gas shells were implicitly excluded because they were not
causing needless suffering . . . .”341
There were certainly
ambiguities in the then-existing treaties and all sides mercilessly
exploited them.342
However, the German case is not the only
instance of a technical legal argument exploiting treaty ambiguity
to justify the use of gas in an armed conflict. The United States
adopted the same approach with respect to its use of tear gas
during the Vietnam War.343
In some ways, the U.S. argument regarding tear gas in
Vietnam was an even further stretch than Germany’s in World
War I: First, the treaty drafters’ intent in 1925 seems considerably
clearer than the general principles espoused at the Hague
Conventions prior to World War I.344
Second, there was even
339.
See supra
notes 131, 222 and accompanying text. Germany still has a valid
claim that the Allies used some sorts of gas before 1915.
See supra
notes 132–35 and
accompanying text. Whether those gases were toxic or asphyxiating remains open
to
debate.
See, e.g.,
supra
note 137 and accompanying text. The Allies certainly used banned
gases after 1915 in reprisal.
340.
See supra
Part II.
341. HABER,
supra
note 113, at 19.
342. Among the interpretative questions were (1) whether “asphyxiating” applied
to gases that worked through other means such as skin absorption; (2) whether
“poison”
included non-lethal or allegedly non-lethal weapons; (3) whether release of gas
from
cylinders was within the coverage of the ban on “projectiles;” and (4) whether
fine
powders were considered gases if they had the same effect.
See supra
Part II.
343.
See supra
note 222;
see also
John Norton Moore,
Ratification of the Geneva
Protocol on Gas and Bacteriological Warfare: A Legal and Political Analysis,
58 VA.
L. REV.
419,
444–47 (1972) (discussing the U.S. belief that tear gas and herbicides were
acceptable
under the Geneva Protocol).
344.
See
Alice I. Youmans et al.,
Questions and Answers,
83 LAW
LIBR.
J. 195, 202
(1991) (“[T]he 1925 Protocol was more comprehensive than previous agreements.”);
see
also
Florencio J. Yuzon,
Deliberate Environmental Modification Through the Use of Chemical
and Biological Weapons: “Greening” the International Laws of Armed Conflict to
Establish and
Environmentally Protective Regime,
11 AM.
U. J. INT’L
L. & POL’Y
793 (1996) (discussing
that the Geneva Protocol specifically expanded the prohibitions contained in
prior
agreements).
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FORDHAM INTERNATIONAL LAW JOURNAL
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more general agreement among major powers that tear gas was
banned as a weapon of war.345
Importantly, however, the United
States did not ratify the Geneva Protocol until after the end of its
participation in the Vietnam War,346
and tear gas on its own was
much less noxious than other chemical weapons.347
Nevertheless,
given the general U.S. attachment to the English language, there
is a certain air of unreality in basing its argument on the French
language version of the Geneva Protocol.348
In any case, both
examples demonstrate that it is wise to closely read any treaty
purporting to govern new weapons technology.
1. Application to Nanoparticles
Certainly, the treaties are applicable to nano-sized particles
of substances covered by existing conventions. The CWC by its
language applies to “toxic chemicals and their precursors, except
where intended for purposes not prohibited under this
Convention, as long as the types and quantities are consistent
with such purposes.”349
A toxic chemical is “any chemical which
through its chemical action on life processes can cause death,
temporary incapacitation or permanent harm to humans or
animals.”350
Most importantly, “[t]his includes all such chemicals,
regardless of
their origin or of
their method of production,
and
regardless of whether they are produced in facilities, in
munitions or elsewhere.”351
345.
See
Bunn,
supra
note 222,
at 395, 403.
346.
See supra
note 22 and accompanying text. The United States ended its combat
involvement in Vietnam in 1973.
See
SAMUEL
LIPSMAN
& STEPHEN
WEISS,
THE
VIETNAM
EXPERIENCE:
THE
FALSE
PEACE
1972–74 (1985).
347.
See
TUCKER,
supra
note 42, at 4, 11, 195. Though tear gas itself was less
harmful than other chemical weapons, it was used to drive enemy troop out of
protective
bunkers and caves so they could be captured or killed by lawful means.
See id.
at 223.
348.
See supra
note 167 and accompanying text.
349. Chemical Weapons Convention,
supra
note 10, art II(1)(a).
350.
Id.
art. II(2)
351.
Id.
(emphasis added). The CWC also provides that “a toxic chemical or
precursor should be included in Schedule 1 [if it] has been developed, produced,
stockpiled or used as a chemical weapon as defined in Article II.”
Id.,
Annex on
Chemicals, sec. A(1). The CWC also subjects “chemicals listed in Schedule 1 . .
. to the
prohibitions on production, acquisition, retention, transfer and use as
specified in Part
VI of the Verification Annex.”
Id.,
art. VI. Part VI of the Verification Annex further
requires that parties to the CWC
not produce, acquire, retain or use Schedule 1 chemicals outside the
territories of States Parties and shall not such chemicals outside except to
another State Party[, and] . . . the types and quantities of chemicals are
strictly
2010]
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It is clear that the CWC bans any existing or future chemical
weapons, including nano-sized particles, that are asphyxiating,
vesicant, nerve agents, or lachrymatory, regardless of the physical
form that they take (i.e. gas, liquid, solid), unless they fall into
one of the CWC’s enumerated exceptions.352
Although the actual
physiological effects of nano-sized particles of a banned
substance might be different and are probably more severe, the
chemical content remains the same; such material
unquestionably falls within the relevant schedules.353
The same
absolute ban also applies to nano-enhanced delivery systems of
such materials.
2. Application to Nano Delivery Systems
Cancer researchers “now use nanoscale devices as drug
delivery vehicles.”354
That nanoscale devices can deliver toxic
chemicals to specific cells in such sufficient quantities should
immediately raise concerns about the use of nanotechnology to
deliver banned chemical weapons. It is clear, though, that the
CWC, which covers the toxic content of these carriers, should
also cover these delivery devices.
The CWC provides that “‘Chemical Weapons’ means the
following, together or separately: . . . (b) Munitions and devices,
specifically designed to cause death or other harm through the
toxic properties of . . . toxic chemicals . . . which would be
released as a result of the employment of such munitions and
limited to those which can be justified for such purposes; and . . . the
aggregate amount of such chemicals at any given time for such purposes is
equal to or less than 1 tonne; and . . . the aggregate amount for such purposes
acquired by a State Party in any year through production, withdrawal from
chemical weapons stocks and transfer is equal to or less than 1 ton.
Id.,
Annex on Implimentation and Verification, pt. VI(A)(1)–(2).
352. The CWC drafters defined chemical weapons so broadly in order to prohibit
possession of all known, unknown, and future toxic chemicals, in types and
quantities
that cannot be justified for permitted purposes. For this reason, the chemical
weapons
definition captures both novel and traditional chemical agents.
See Chemical Weapons
Convention: Hearing on Treaty Doc. 103-21 Before the Comm. on Foreign Relations,
103d
Cong. 37 (1994) (statement of J. Stephen Ledogar, U.S. Rep. to the Conference on
Disarmament, U.S. Dep’t of State).
353.
See
Chemical Weapons Convention,
supra
note 10, Annex on Chemicals.
354.
See
Press Release, Yale University Office of Public Affairs, Yale University
Office of Public Affairs Describes Study That Uses Nanoparticle for Delivery of
Prostate
Cancer Treatment (Mar. 27, 2007),
available at
http://opa.yale.edu/news/
article.aspx?id=2061.
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devices . . . .”355
Devices designed to cause death or other harm
through release of toxic chemicals is a clear description of nano
delivery systems when used to deliver banned substances. That
coverage is unquestionable when compared and contrasted with
the 1925 Protocol which is incorporated into the CWC.
The Geneva Protocol bans “asphyxiating, poisonous or
other gases and . . . all analogous liquids, materials or devices.”356
As was demonstrated above, the “analogous device” language in
the Geneva Protocol springs from the original drafters’ concern
with asphyxiating and toxic materials other than gas.357
Its
inclusion in the CWC, along with the specific ban on
“‘[m]unitions’ and ‘devices’ [that release] toxic chemicals,”
represents explicit recognition that (1) such devices needed to
be separately banned and (2) the Geneva Protocol’s prohibition
on analogous devices dealt with something other than delivery
systems.358
The CWC undeniably bans nanodevices designed to cause
death or other harm through the release of toxic chemicals,
except in certain limited circumstances. Inevitably, many of these
devices have the capability of serving both innocent and
dangerous functions.359
But the CWC indisputably does not ban
nanodevices that operate within legal parameters.360
Even in light of the analysis presented thus far in this
Article, a principal issue remains: do the relevant conventions—
CWC, BWC, and the Geneva Protocol incorporated into both—
taken together act to absolutly ban the production and use of
nano-sized devices that can mimic banned chemicals, microbial
or other biological agents, or toxins? Are “nanomachines . . .
355. Chemical Weapons Convention,
supra
note 10, art. II. Note that article 1 of
the BWC contains a similar ban on “[w]eapons, equipment or means of delivery
designed to [Microbial or other biological agents, or toxins] use [them] for
hostile
purposes or in armed conflict.”
See
Biological Weapons Convention
supra
note 13, art.
I(2).
356. Geneva Protocol,
supra
note 23.
357.
See supra
Part II.A.
358. Chemical Weapons Convention,
supra
note 10, art. I.
359.
See id.,
art. II.
360.
See supra
note 267 and accompanying text. There is no legitimate argument
that the exception does not extend to delivery devices like agricultural
sprayers, which
have been used to deliver chemical weapons.
See
MICHAEL
KEANE,
DICTIONARY
OF
MODERN
STRATEGY
AND
TACTICS
35 (2005).
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945
chemical weapons under the . . . Chemical Weapons
Convention”?361
3. Application to Nanomimics
It is highly likely that the CWC, BWC, and Geneva Protocol
together apply to nano-sized mechanical mimics. The arguments
for their coverage are not just persuasive; in the Author’s opinion
they are so compelling that any attempt to avoid their coverage
would rise to the level of breaching requirement of good faith
interpretation.
The arguments for their coverage consist of the following
factors: (1)the Geneva Protocol drafters’ intent; (2) the CWC
and BWC drafters’ intent; (3) textual comparison of the three
conventions; (4) that all of these weapons cause a chemical or
biological reaction; and (5) international law’s good faith
requirement with respect to treaty interpretation. Each argument
is independently compelling, but taken together they are
overwhelming.
a. Drafters’ Intent in the Geneva Protocol
As discussed above, the language of the Geneva Protocol was
taken directly from the Treaty of Versailles, and the Washington
Submarine Treaty was specifically informed by the existence and
effective use of chemical weapons other than gases in World War
I.362
It is clear that the drafters were aware of the problems
caused by fine particles capable of passing through protective
masks that neutralize gases, recognized the distinction between
“processes” and “devices” but deliberately chose to describe
actual toxic weapons as devices, and were fully capable of
including—and did include—a delivery device as a separate
banned weapon where they thought it appropriate.363
It therefore
361. MCGUINNESS,
supra
note 3, at 27.
362.
See
BERNAUER,
supra
note 147.
363.
See supra
Part II.A. Hence, we see the inclusion of “flammenwerfer” in several
of the post-World War I treaties.
See supra
notes 164–66. Note that a flamethrower is a
device for delivering burning fuel, Dewar
supra
note 166, at 47–48, and that a later ban
of incendiary weapons paints in broad definitional strokes “any weapon or
munition
which is primarily designed to set fire to objects or to cause burn injury to
persons
through the action of flame, heat, or combination thereof, produced by a
chemical
reaction of a substance delivered on the target” (thought it also includes a
specific
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becomes clear that the decision to include and retain “analogous
devices” alongside the ban on poisonous and asphyxiating gases
was a deliberate ban on wartime use of any weapon analogous to
asphyxiating or toxic gases. Nanomimics are precisely analogous
to poisonous and asphyxiating gases364
and the Geneva Protocol’s
incorporation into later conventions and treaties—particularly
the CWC and BWC—strengthens this argument.
b. Drafters’ Intent in the CWC and BWC
The CWC negotiations were long and detailed,365
in part
because the negotiators were specifically concerned with
avoiding both evasive conduct and outright cheating.366
As a
result, the CWC contains broad, specific, positive, and negative
requirements; a mechanism for continued verification of
compliance; and analysis of possible new violations.367
Given the high levels of distrust during the Cold War, it was
probably inevitable that interim confidence building measures
and bilateral treaty negotiations were necessary to achieve what
eventually became the CWC.368
The long negotiations and
interim steps, however, resulted in a treaty providing
comprehensive coverage, including prohibition of new research
reference to flamethrowers as exemplary of the type). Conventional Weapons
Convention,
supra
note 164, Protocol III art. 1(1).
364.
See supra
Part I.D.
365.
See
Chronology of Chemical Weapons Negotiations at the Conference on
Disarmament, http://dosfan.lib.uic.edu/acda/factshee/wmd/cw/cwcneg.htm (last
visited Apr. 3, 2010).
366.
See
ROBINSON,
supra
note 228, at 17–36.
367.
See generally
Chemical Weapons Convention,
supra
note 10.
368. The United States and Russia engaged in diplomatic negotiations prior to
signing the CWC:
the Presidents noted that cooperation between the two countries in the
prohibition of chemical weapons has enabled both countries to enhance
openness regarding their military chemical potential and to gain experience
with procedures and measures for verifying compliance with the Chemical
Weapons Convention. The Parties will continue cooperation between them in
chemical disarmament
Russia-United States Joint Statement on Chemical Weapons, 33 WEEKLY
COMP.
OF
PRES.
DOC,
391 (Mar. 21, 1997).
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947
and development.369
They also created an ongoing international
body to monitor new developments and means of production.370
The BWC is considerably less detailed than the CWC but its
coverage is at least as broad.371
Its core is found in article 1, which
provides in its entirety:
Each State Party to this Convention undertakes
never in any
circumstances to develop,
produce, stockpile or otherwise
acquire or retain:
(1)
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;
(2)
Weapons, equipment or means of delivery designed to use
such agents or toxins for hostile purposes or in armed
conflict.372
While there has been some “push back” in later negotiations
from states concerned that BWC interpretation might interfere
with legitimate research,373
general consensus has emerged in
favor of absolute bans on
any
new biological weapons in whatever
form they might emerge.374
The negotiating history of the BWC
369.
See
Chemical Weapons Convention,
supra
note 10, art. I. (“Each State Party to
this Convention undertakes
never under any circumstances: (a) to develop
[or] produce . . .
chemical weapons.”).
370.
See generally
Chemical Weapons Convention,
supra
note 10, art. VIII(A).
371.
See generally
Biological Weapons Convention,
supra
note 13. In one aspect, the
BWC is more detailed than the CWC in that it specifically provides that
nothing in this Convention shall be interpreted as in any way limiting or
detracting from the obligations assumed by any State under the Protocol for
the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases,
and of Bacteriological Methods of Warfare, signed at Geneva on June 17, 1925
Id.
art. XIII.
372.
Id.
art. I. (emphasis added). As with the CWC, there is a national
implementation provision:
[E]ach State Party to this Convention shall, in accordance with its
constitutional processes, take any necessary measures to prohibit and prevent
the development, production, stockpiling, acquisition, or retention of the
agents, toxins, weapons, equipment and means of delivery specified in article I
of the Convention, within the territory of such State, under its jurisdiction or
under its control anywhere.
Id.
art. IV.
373.
See, e.g.,
MALCOLM
R. DANDO,
PREVENTING
BIOLOGICAL
WARFARE:
THE
FAILURE
OF
AMERICAN
LEADERSHIP
171–80 (2002) (detailing the Bush administration’s
rejection of the Verification Protocol at the Fifth Review Conference).
374. The most recent review conference of the BWC produced a final document
with the following statements:
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was considerably less complex than that of the CWC, and in
essence sprang from a two state consensus between the United
States and the U.S.S.R. in the 1970s375
and a general recognition
that biological weapons “presented less intractable problems.”376
The result was a treaty that paints its coverage in very broad
strokes, even though it does not contain the rigorous
1. The Conference reaffirms the importance of Article I, as it defines the
scope of the Convention. The Conference declares that the Convention is
comprehensive in its scope and that all naturally or artificially created or
altered microbial and other biological agents and toxins, as well as their
components, regardless of their origin and method of production and
whether they affect humans, animals or plants, of types and in quantities that
have no justification for prophylactic, protective or other peaceful purposes,
are unequivocally covered by Article I.
2. The Conference reaffirms that Article I applies to all scientific and
technological developments in the life sciences and in other fields of science
relevant to the Convention.
3. The Conference reaffirms that the use by the States Parties, in any way
and under any circumstances, of microbial or other biological agents or toxins,
that is not consistent with prophylactic, protective or other peaceful purposes,
is effectively a violation of Article I. The Conference reaffirms the
undertaking
in Article I never in any circumstances to develop, produce, stockpile or
otherwise acquire or retain weapons, equipment, or means of delivery
designed to use such agents or toxins for hostile purposes or in armed conflict
in order to exclude completely and forever the possibility of their use. The
Conference affirms the determination of States Parties to condemn any use of
biological agents or toxins for other than peaceful purposes, by anyone at any
time.
Sixth Review Conference of the States Parties to the BWC, Geneva Switz., Nov.
2–Dec. 8,
2006,
Final Document,
at 9, U.N. Doc. BWC/CONF.VI/6 (2006)
375.
See
Jenni Rissanen,
Issue Brief: The Biological Weapons Convention,
NUCLEAR
THREAT
INITIATIVE,
Mar. 2003, http://www.nti.org/e_research/e3_28a.html (outlining
the history leading up to the drafting of the BWC).
376. U.S. Dep’t of State,
Narrative on the BWC
(n.d.),
reprinted in
THOMAS
GRAHAM,
JR.
& DAMIEN
J. LAVERA,
CORNERSTONES
OF
SECURITY:
ARMS
CONTROL
TREATIES
IN THE
NUCLEAR
ERA
192 (2003) (“An issue that long hindered progress was whether chemical
and biological weapons should continue to be linked. A British draft convention
. . .
concentrated on the elimination of biological weapons only . . . . The United
States
supported the British position and stressed the difference between the two kinds
of
weapons. Unlike biological weapons, chemical weapons had actually been used in
modern warfare. Many states maintained chemical weapons in their arsenals to
deter the
use of this type of weapon against them, and to provide a retaliatory capability
if
deterrence failed. Many of these nations, the United States pointed out, would
be
reluctant to give up this capability without reliable assurance that other
nations were not
developing, producing, and stockpiling chemical weapons. While the United States
did
not consider prohibition of one of these classes of weapons less urgent or
important
than the other, it held that biological weapons presented less intractable
problems, and
an agreement on banning them should not be delayed until agreement on a reliable
prohibition of chemical weapons could be reached.”).
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949
enforcement mechanisms of the CWC. The ban on “microbial or
other biological agents, or toxins,”377
together with their means
of delivery, covers all new genetic development and manipulation
of potential living weapons and their products.378
Taken together
with the CWC, this regime was certainly intended to broadly
cover the development of new chemical and biological weapons.
That is even more apparent when their text is compared and
contrasted.
c. Textual Comparison of the Three Treaties
A brief comparison of the treaty texts among the Geneva
Protocol, BWC, and CWC supports the argument for a very wide
breadth of coverage. Among the contracting parties the Geneva
Protocol constitutes a “prohibition of . . . the use in war of
asphyxiating, poisonous or other gases, and of all analogous
liquids materials or devices [and] use of bacteriological methods
of warfare.”379
The BWC’s major leap was, of course, banning
development, production, or possession of an entire class of
weapons, not just limiting its prohibition to uses in war.380
Of key
import here is the agreement “never
to develop
[biological
weapons]
whatever their origin or method of production,”381
nor to develop
“equipment or means of delivery designed to use such agents or
toxins.”382
Taken together, the language of the Geneva Protocol
and BWC cover a multitude of weapons and situations in
wartime. It took another twenty years, however, for the CWC to
close the circle on possession and development of chemical
weapons.
In addition to incorporating the Geneva Protocol,383
the
CWC covers three key areas relating to this Article’s analysis: (1)
banning development, production, and possession of chemical
weapons;384
(2) defining chemical weapons to include delivery
377. Biological Weapons Convention,
supra
note 13, art. I.
378.
See id.
art. VI.
379. Geneva Protocol,
supra
note 23.
380. Biological Weapons Convention,
supra
note 13, art. I.
381.
Id.
382.
Id.
art. IV.
383.
See supra
notes 22, 112.
384.
See supra
note 266. Each state party also agrees to destroy such weapons and
their production facilities.
See supra
note 266.
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FORDHAM INTERNATIONAL LAW JOURNAL
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systems;385
and (3) clarifying that peaceful development of,
inter
alia,
pharmaceutical, medical, and agricultural chemicals, is not
impacted.386
Of key importance here is the definition of “Toxic
Chemical:”
any chemical which through its chemical action on life
processes can cause death, temporary incapacitation or
permanent harm to humans or animals. This includes all
such chemicals, regardless of their origin or of their method
of production, and regardless of whether they are produced
in facilities, in munitions or elsewhere.387
This definition certainly covers any toxic chemical, whatever
its dosage, as long as it “can cause” any of the effects listed.388
Taken together with the ban on “. . .devices, specifically designed
to cause death or other harm through the toxic properties of
those toxic chemicals[,]”389
there can be no honest argument
that the CWC on its face does not cover banned chemicals in
nano dosages, and nano sized delivery systems of such chemicals.
The only possible open question is the coverage of
speculative nanobots. And yet, both the BWC and CWC
incorporate the Geneva Protocol and its ban on the use of
“analogous devices” in war.390
Must one fall back on that
language as prohibiting use but not possession? There are two
arguments which may take this question past that point to a
complete ban. The first is that a common factor of all the
nanoweapons discussed here is their effects on the human target.
d. Commonality of Chemical and/or Biological Reactions
All of the nanoscale weapons discussed in this Article
eventually directly affect a human target through biological or
chemical processes.391
At the nanoscale, there is considerable
385.
See supra
note 355
386.
See supra
note 267.
387. Chemical Weapons Convention,
supra
note 10, art. II(2).
388.
Id.
389.
Id.
art. II(1)(b)
390.
See
Geneva Protocol,
supra
note 23, pmbl.
391. It is, of course, possible to posit nanoscale weapons which only indirectly
affect
humans by, for example, damaging other animals, machines or plants. For example,
using emergence technology, simple nanoscale bots could swarm onto all ball
bearings
in a specified geographic area, effectively shutting down most mechanical
systems. Such
weapons are simply beyond the scope of this Article.
2010]
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951
cross-over among chemistry, biology, and physics.392
To the
extent that the hypothetical nanobot in the AEPI’s scenario393
interacts in the human body at a cellular level in a way designed
to mimic a toxic chemical, biological weapon, or toxin,394
it
seems functionally indistinguishable from the substances and
materials banned in the treaties discussed above.
The real question is whether such functional equivalence is
sufficient as a matter of international law395
to ban states party to
the treaties from developing, possessing, or using nanomimics.
That is largely a matter of good faith.
e. Good Faith Requirement for Treaty Interpretation
A good faith requirement in interpretation of treaties is
central to international law.396
The Vienna Convention’s
requirement
of
interpretation “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”397
seems
particularly relevant to attempts to avoid weapons bans by
building a device to mimic a banned chemical or toxin. Even the
following problematic approaches that states have taken to avoid
treaty bans do not represent the actual creation of a killing
device to function identically to an admittedly banned weapon:
Germany’s arguments that the Hague Convention banned the
release of asphyxiating gases from artillery shells but not from
cylinders, and the U.S. argument that the French language
version of the Geneva Protocol and its predecessor trumped the
392.
See supra
notes 13–14 and accompanying text.
393.
See supra
note 3.
394. Several informed persons have argued to the Author that for the foreseeable
future, only engineered viruses would be able to behave in this way. Viruses are
not, of
course, living things, and yet the BWC clearly covers their development,
possession or
and use as weapons. If engineered viruses are, in fact, the only entities
capable of
behaving this way, it is indisputable that the BWC applies to these nanobots. If
other
forms of nanobots become feasible or foreseeable, a different analysis will
apply.
395. In some instances international law recognizes the doctrine of functional
equivalence.
See, e.g.,
David Marcus,
Famine Crimes in International Law,
97 AM.
J. INT’L
L.
245, 262–64 (2003) (arguing that international law should extend to man-made
famines
since “famines are often functionally equivalent to genocide”).
396.
See supra
Part III.
397. Vienna Convention,
supra
note 24, art. 31.
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English language version to create an ambiguity that allowed for
use of tear gas in war.398
If the good faith requirement is to have any validity at all in
international law, it must apply to ban the use of nanomimics as
weapons. Given states’ past attempts to evade existing bans, it is
still appropriate at least to consider pursuing past proposals for
new treaties implementing new bans, and to considering
clarifying the pertinent treaties through minor modification.
B.
Is There A Need For A New Convention?
Several authors have discussed drafting new conventions or
modifying the CWC and BWC.399
In an interesting article that
unfortunately ignores some of the fundamental approaches to
understanding the law of armed conflict, Sean Howard suggests
that there are only “two basic options for designing a possible
arms control approach to the mass-destructive potential of
nanotechnology:” (1) to create a “regime of control and
restraint” over the technology; or (2) to totally ban the
technology.400
Howard suggests “a rough transposition of the
Outer Space Treaty [to seek] peaceful exploitation . . . of the
nanosphere.”401
But Howard seems to ignore possible alternative
arms control and technology models—most obviously the CWC—
and the possibility of simply modifying existing conventions.
Indeed, simply modifying the BWC and CWC might be the
easiest course of action.
Jurgen Altmann suggests that while changing the wording of
the CWC might be difficult, it would be useful to clarify that
“[t]oxic substances that are not of biological origin or are not
produced by biological systems would not count as toxins, but
would fall under the CWC, i.e. be prohibited if directed against
humans or animals.”402
Altman also suggests “preventive arms
control” in the form of technology limits.403
This approach seems
398.
See supra
notes 131, 222.
399.
E.g.,
Pinson,
supra
note 33, at 302–09 (advocating the need for a new treaty);
Trapp,
supra
note 11, at 2 (noting that modifications to the CWC may be necessary).
400.
See
Howard,
supra
note 59.
401.
See id.
402. Altmann,
supra
note 36, at 171–72.
403.
Id.
at 123–24.
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NANOTECH AGENTS
953
flawed, given general resistance to absolute technology limits,404
and the United States’ specific opposition to limits on potential
nanotechnology developments.405
In his discussion of a regulatory approach, Reynolds suggests
a number of useful approaches, including building “inherent
safety” into any living nanotech product through “genome
encryption.”406
Many of his suggestions closely follow the
Foresight Guidelines articulated by the Foresight Institute, which
studies and discusses nanotech issues.407
While the Foresight
Institute makes certain leaps of scientific faith408
about the
potential problems, from an academic view, their solutions are
well-conceived on a national basis. They do not, however,
approach the weapons regulation problem in a way the Author
considers viable in the current international legal system; they
will not limit willing proliferators. The Foresight Institute
recognizes that possibility:
Adding particular weapons related applications of MNT
[molecular nanotechnology] to the list of technologies
covered in Chemical, Biological and Nuclear Weapons
treaties may be appropriate in certain cases. It should be
remembered, however, that the capabilities of productive
nanosystems will be extensions of general manufacturing
technology. The military applications of MNT will include
the manufacture of high performance aerospace vehicles
and precision munitions at low cost. The high value and dual
use of MNT for civilian and defense purposes will require
making distinctions between the enabling technology and its
specific applications, balancing health and economic
benefits against security concerns. Since nanotechnology
research is now global, the security challenges will be
present, with or without the ability to capture the wide
variety of benefits.
404.
See, e.g.,
Chemical Weapons Convention,
supra
note 10, art. VI.
405.
See generally
OFFICE
OF
SCI.
& TECH.
POLICY,
DOMESTIC
POLICY
COUNCIL,
AMERICAN
COMPETITIVENESS
INITIATIVE:
LEADING
THE
WORLD
IN
INNOVATION
(2006).
Indeed, given the speed with which technology is changing, it seems best to make
limiting language as broad as possible which the drafters of the original
conventions
certainly did intentionally.
406.
See
Reynolds,
supra
note 59, at 203.
407.
See
Neil Jacobstein & Glenn Harlan Reynolds, Foresight Inst.,
Foresight
Guidelines 4.0: Self Assessment Scorecards for Safer Development of
Nanotechnology
(Oct. 2004),
available at
http://www.foresight.org/guidelines/2004oct.html.
408.
See, e.g.,
Smalley,
supra
note 46, at 1.
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Overly restrictive treaties or regulatory regimes applied to
core MNT technologies could lead to the unintended
consequence that only the rule-following nations would be at
a competitive disadvantage technologically, economically,
and militarily. While most nations, companies, and
individuals are likely to adhere to reasonable safety
restrictions, guidelines that are viewed as too restrictive will
simply be ignored, paradoxically increasing risk. In addition,
not all guidelines and laws will be followed, and enforcement
is rarely perfect. Non-state actors could become quite
significant, particularly when the relevant knowledge and
raw materials are available globally. They may well not be
signatories to any agreement. While a 100% effective ban
could, in theory, avoid the potential risks of certain forms of
molecular nanotechnology, a 99.99% effective ban could
result in development and deployment by the 0.01% that
evaded and ignored the ban. For example, the international
Biological Weapons Treaty was being violated on a massive
scale even before the ink was dry.409
The Foresight Institute and others miss the essential point—
that the BWC and CWC, taken together and in light of their
incorporating the Geneva Protocol, almost certainly do cover the
sorts of nanodevices with which the Foresight Institute is most
concerned.410
Drafting an entirely new treaty is unnecessary, and
would waste time and effort. Nevertheless, these concerns are
legitimate and worth considering.
There is no real need for specific language changes to the
BWC and CWC. However, if history serves as any guide, the
CWC’s section of definitions could clarify the intent to include
nanomimics or other nanobots; the BWC would not require
more than one or two additional words in its prescriptions to
clarify its intent. As long as the intent is made clear enough to
avoid evasion of already existing coverage of nanomimics, the
wording can be flexible.
Under one possible approach, article 2 of the CWC could be
modified. The revised CWC would read as follows:
409.
See
Neil Jacobstein, Foresight Inst.,
Foresight Guidelines for Responsible
Nanotechnology Development
(Apr. 2006),
available at
http://foresight.org/guidelines/
currentguidelines/current.html.
410.
See supra
Part II.
2010]
NANOTECH AGENTS
955
1. “Chemical Weapons” means the following, together or
separately: (a) Toxic chemicals
or their equivalents including
any analogous devices
and their precursors
or their equivalents
including any analogous devices,
except where intended for
purposes not prohibited under this Convention, as long as
the types and quantities are consistent with such purposes.411
Under a similar approach, article 1 of the BWC could be
modified. The revised BWC would the read:
[E]ach State Party to this Convention undertakes never in
any circumstances to develop, produce, stockpile or
otherwise acquire or retain: (1) Microbial or other biological
agents, or toxins,
or their equivalents including any analogous
devices
whatever their origin or method of production, of
types and in quantities that have no justification for
prophylactic, protective or other peaceful purposes.412
Such changes are superfluous given the Geneva Protocol’s
incorporation into both the BWC and CWC. Accordingly, the
actual wording and placement of any changes are largely
immaterial; more important is that any new language clarify that
the intent of the states party is to prevent any evasion of the
prohibition on devices and materials analogous to banned
weapons, and that their use in war remain forbidden regardless
of their shape and form.
CONCLUSION
The Great War changed the world in ways unparalleled
before 1918. Although some earlier wars had global reach, three
factors at play in World War I created a new reality of massinvolvement:
(1) advances in science and communications;413
(2)
global participation;414
and (3) total mobilization.415
The
concomitant result of that mass mobilization, however, was
almost universal war weariness when the guns were silenced.416
The revulsion caused by war, especially by the chemical warfare
411.
Cf.
Chemical Weapons Convention,
supra
note 10, art II.
412.
Cf.
Biological Weapons Convention,
supra
note 13, art. I.
413.
See
JOHN
W. OLIVER,
HISTORY
OF
AMERICAN
TECHNOLOGY
(1956).
414.
See generally
THE
GREAT
EVENTS
OF THE
GREAT
WAR
(Charles Horne ed., 1920).
415.
See
H.P. WILLMOTT,
WORLD
WAR
I 131 (Dorling Kindersley ed., 2003).
416.
See generally
ROBERT
ELSON,
PRELUDE
TO
WAR
(1977); STANLEY
WEINTRAUB,
A
STILLNESS
HEARD
ROUND
THE
WORLD:
THE
END
OF THE
GREAT
WAR:
NOVEMBER
1918
(1985).
956
FORDHAM INTERNATIONAL LAW JOURNAL
[Vol. 33:858
that was utilized, translated almost inexorably into state policy
and international law.417
Much of the following decade’s
lawmaking was lost in the economic devastation and cultural
insanity of the 1930’s, but the absolute ban on use of chemical
weapons essentially held its own.418
The foresight of those who drafted the initial ban on
“analogous devices” at Versailles now seems almost accidental
and providential, but, in fact, the language was created by hardheaded
men based on hard experiences and hard science.419
The
development of the ban, its culmination in the Geneva Protocol,
and its incorporation into the BWC and CWC, leave no genuine
room for play in any sort of legitimate, good faith argument
about nanomimics, and none whatsoever for any other type of
chemical or biological nanoweapons.
As a matter of practical science and governing international
law, there is really no justifiable argument that any of these
potential nanoweapons are uncovered by existing law; but it
would certainly do no harm to modify both the BWC and CWC to
include supplementary language making clear that the states
parties intend to cover all new forms of analogous weapons. In
fact, that just might do the world some good.
417.
See supra
Part II.
418.
See supra
Part II.
419.
See supra
Part II.A. Victor Lefebure commented in 1921 that “if sub-atomic
forces can eventually be harnessed for war they must be subjected to the same
control
and attempts at suppression during their development stages.” Lefebure,
supra
note 195.
Although Lefebure made this comment in the context of nuclear weapons, it still
represents the sort of amazingly broad thinking in which chemical warfare
experts were engaged at the end of World War I. |