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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).
2010]
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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NANOTECH AGENTS
899
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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NANOTECH AGENTS
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 |