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.

860 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 INTL 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

862 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 DEPT 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, DORLANDS 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.

864 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).

866 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. INTL 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 FORDHAM INTERNATIONAL LAW JOURNAL [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 ENGG, U.S. DEPT 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, DEPT 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. NATL 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. NATL CANCER INSTIT., U.S. DEPT 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, JANES

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 [Vol. 33:858

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. INTL 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 DORLANDS

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 [Vol. 33:858

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 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 33:858

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. NATL

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,

890 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.

894 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] NANOTECH AGENTS 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.”).

896 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).

898 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).

2010] 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.

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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

900 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.

2010] 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

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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).

902 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,