A Tiny Problem with Huge Implications: Nanotech Agents As Enablers or Substitutes for Banned Chemical Weapons; Is A New Treaty Needed? By

Evan J. Wallach1 ―But the Law of Nations…allows not the taking of 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 require it; since wars are so frequent, and the minds of men ingenious in inventing means to do hurt…‖ Grotius, De Jure Belli ac Pacis, Book III, Chap IV, Sect. 15 (1625). In 2005 the United States Army‘s Environmental Policy Institute (the ―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 MOPP level 2 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.

1 Judge, United States Court of International Trade. Adjunct Professor of Law Brooklyn Law School, New York Law School. Visiting Professor of Law, University of Munster. Honorary Fellow, Hughes Hall College, University of Cambridge. The views expressed herein are entirely 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, NYU Law School, LLM 2009, Alexandra Folie, NYU Law School, LLM 2009, Nancy Hull, NYU Law School, JD 2009, Donna Lyons, NYU Law School, LLM 2009, Alexander Marmar, Columbia Law School, JD, 2010 and Kamal Siddhu, Columbia Law School, JD, 2010. Particular credit goes to David H.P. Lee, Univ. of Michigan, JD, 2011, for a full summer of research on Post-WWI treaty making and politics. The author wishes particularly to thank Neysa Call and the staff of Senator Harry Reid for extraordinary assistance in nanotechnology research.

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,2 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. Senior Service College, Fellowship Program, AEPI and USAWC Research Paper, Nanotechnology: The Next Industrial Revolution – Military and Societal Implications, January, 2005, http://www.aepi.army.mil/internet/nanotech-industrial-revolution.pdf. Emphasis added.

2 The AEPI‘s 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 (See discussion infra at __). 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. Id at 27. 3 This article uses the word ―nanomimic‖ to indicate a device which causes the same result as a banned poison, toxin or other chemical substance. In biology, biological mimicry is defined as ―Imitation of one species (or group of species) by another. The most common form is Batesian mimicry (named after English naturalist H W Bates), where the mimic resembles a model that is poisonous or unpleasant to eat, and has aposematic, or warning, coloration; the mimic thus benefits from the fact that predators have learned to avoid the model. Hoverflies that resemble bees or wasps are an example. Appearance is usually the basis for mimicry, but calls, songs, scents, and other signals can also be mimicked. In Mullerian mimicry, two or more equally poisonous or distasteful species have a similar colour pattern, thereby reinforcing the warning each gives to predators. The evolutionary benefit for the species involved is that they share the cost of ‗predator learning‘, and thus reduce the number of events in which a predator harms one of their own. In 2005, British researchers demonstrated an additional benefit, namely that the predators learn more rapidly if two or more different kinds of unpalatable substances are coupled with the same warning sign. In some cases, mimicry is not for protection, but allows the mimic to prey on, or parasitize, the model.‖ See, The Free Dictionary, http://encyclopedia.farlex.com/Biological+mimicry. 4 AEPI supra at 27 Recommendation d. 5 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 nonstate 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.

In sum, the AEPI posited that nanomaterials which mimic (―nanomimics‖3) banned chemical agents might be developed and used in combat. The Institute asked that someone determine ―…if nanomachines are chemical weapons under the provisions of the Chemical Weapons Convention.‖4 This paper attempts to do exactly that.5 The results are interesting and in

Col. Kip Nygren, Professor and Head, Department of Civil & Mechanical Engineering, US Military Academy, Emerging Technologies and the Army, The AMPTIAC Newsletter, Volume 6, Number 1 (Spring, 2002) at p. 11, 14. The Advanced Materials, Manufacturing, and Testing Information Analysis Center (AMMTIAC) is the DoD Center of Excellence responsible for acquiring, archiving, analyzing, synthesizing, and disseminating scientific and technical information related to advanced materials, manufacturing, and testing (AMMT). 6 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, section __, infra. 7 Although, as this article demonstrates, a legal argument for non-coverage of nanomimics by existing treaties requires an interpretation of the law at least at the edge of bad faith. 8 This paper 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 use of chemical weapons by terrorists. This paper does not deal directly with actions by terrorists, but since, in any definition, terrorists are non-state actors, and in most, they are committing which would have been war crimes if committed by a state, (See, e.g. U.N. General Assembly Resolution 51/210 1999, League of Nations Convention for the Prevention and Punishment of Terrorism (1937), The Convention for Suppression of Terrorist Bombings, Paragraph 1, and the Convention for Suppression of the Financing of Terrorism,) the analysis is perfectly applicable, albeit, in a multi-step fashion. 9 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (Chemical Weapons Convention). 10 See generally, Rolf Trapp, Advances in Science and Technology and the Chemical Weapons Convention, (Raising, inter alia, possible need for convention modifications), Arms Control Today, (Arms Control Association, April 2008). 11 As to whether nanomachines are feasible, see generally, Section IIA, infra. 12 See generally, J. Clarence Davies, Oversight of Next Generation Nanotechnology, Woodrow Wilson International Center for Scholars , Project on Emerging Nanotechnologies, PEN 18, April, 2009). 13 Except for the implications of nanobots, which as will be seen below, might involve some living parts, this paper does not, as extensively as one might wish, examine the separate biological aspects of nanotechnology and its interplay with the Biological Warfare Treaty of 19__. The analysis, while analogous, has other implications simply outside the current work here presented. Additional research in the field might prove fruitful for further study.

most instances, very clear. Existing treaties certainly cover both nanoparticles of banned chemical weapon materials, and nanosized devices designed or used to carry such particles.6 Because, however, answers regarding potential development of nanomimics are not entirely certain,7 the recommendation of this paper is that parties8 to the 1993 Chemical Weapons Convention9 (the ―CWC‖) may wish to amend it10 to clearly include as yet undeveloped nanomachines.11 I Introduction

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 biology13, it is widely regarded as

crossing many of the traditional scientific boundaries of those fields of study. It is of particular interest to students of law and warfare14 in two areas:

14 There are, of course numerous other regulatory interests including, inter alia, environment, health, safety, and trade. See, generally, Jennifer Pelley and Marc Saner, International Approaches to the Regulatory Governance of Nanotechnology, Carlton University, Regulatory Governance Initiative, (2009). Www.regulatorygovernance.co. 15 See, discussion at ___, infra. 16 Many reputable scientists reject such speculation as purely ―science fiction.‖ The author addresses the issue both because the United States 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 1920‘s. Many of the most pessimistic speculations of scientists at the time proved true. See, Section ___, infra.

17 The Biological Warfare Convention (BWC) incorporates the 1925 Protocol as well. It is interesting to note that the United States Senate ratified both of those on December 16, 1974. In his signing statement 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.‖ John Wooley and Gerhard Peters, The American Presidency Project, http://www.presidency.ucsc.edu/ws/?pid=5049. 18 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare (the 1925 Geneva Gas Protocol). 19 The BWC covers both ―poisons‖ and ―toxins.‖ Poison is ―‖any substance which, when ingested, inhaled or absorbed, or when applied to, injected into, or developed within the body, in relatively small amounts, by its chemical action may cause damage to structure or disturbance of function.‖ Dorland‘s Illustrated Medical Dictionary, 27th Ed. W.B. Saunders (Philadelphia, 1988) at 1325. Emphasis added. A toxin 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 1736.

1. 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;
2. Second; nanosized carriers, similar to those currently under development for chemotherapy,15 may deliver target does of chemical agents to specific targeted cells in a human being; and
3. Third, speculative16 literature predicts at least a possibility of the eventual production of robots on the nanoscale. In effect, these would be machines which could enter the human body, penetrate cells, and cause them to act in a fashion similar to the effects of currently banned chemical weapons.

The underlying thesis of this article is that while the smaller sized particles, and separate nanosized carriers of known agents are clearly covered by the CWC, nanomimics are not as facially within the relevant conventions, and may not be said to, without in-depth analysis. The bulk of this paper deals with that question. In light of that analysis, however, because the CWC17 incorporates the 1925 Geneva Gas Protocol18, which prohibits, in part, that ―…the use in war of asphyxiating, poisonous19 or other gases, and of all analogous liquids, materials or devices…‖ (emphasis added), an extremely strong argument can be made that the CWC facially bans nanomimics. That argument, however, depends on the intention of the intention of the states signatory to the treaties. Evidence of that intent may be derived from several sources, including

the drafting history and working papers, contemporaneous general commentary by the legal community and the press, the events of the recent history before each relevant treaty was signed, and of course, signing statements and reservations. Some of that material is, however, mixed, contradictory20, vague, lost or was intentionally omitted in original published works; it is, in short, a law professor‘s nirvana, for it leaves room for endless analytical speculation.

20 For example, in his introductory comments at the 1922 Naval Conference former Secretary of State Elihu Root states that the language introduced by the U.S. delegation is ―taken directly from the treaties ending‖ WW One. In fact, it tracks the language of the Treaty of Versailles which ended the war between most of the Allies (Not the U.S.) and Germany but differs in respects vital to this analysis from the other treaties ending the Great War with Austria, Hungry, Bulgaria and Turkey. So, 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, Section __, infra. 21 It has been suggested to the author 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 paper ―nanobots‖ are indistinguishable from specifically engineered viruses. The author disagrees that the term ―nanobots‖ has no utility, but clearly it is fraught with discord. One problem in the area is that there are some assumptions based on prior speculation (initially envisioned by Eric Drexler, Engines of Creation: The Coming Era of Nanotechnology, (1986) http://www.dvara.net/HK/Engines.pdf) about what is essentially self-replication of nano-sized machines. The dispute is fascinating, and beyond the author‘s capacity as a layman to evaluate, but it is largely irrelevant to the question posed by the AEPI, and to which an answer is attempted here. What is meant by the term ―nanobot‖ in this article is a device on the nanoscale which is capable of mimicking the effect of chemical nerve agents (See discussion, infra at __) and yet which is neither a product of chemical processes, nor a biological agent as banned by the BWC (See discussion, infra at __). The author makes no attempt beyond this to discuss other pertinent and useful critiques raised by reviewers of this paper, 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. He would, however, point out that many of the assumptions upon which the speculation in this article is based, are those of medical researchers seeking cures, in particular, for cancers. See discussion, infra at __. In any case, the author suggests that when one deals with potential weapons development it is always wise to err on the side of expecting and planning for the worst, for he suspects, with Hamlet, that ―There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.‖ William Shakespeare, Hamlet, Act I, Scene 5. 22 As well as their origins and background. 23 Fn 15, supra. 24 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.Entered into force on 26 March 1975. http://www.opbw.org. Hereinafter 1972 Biological Weapons Convention. 25 See, fn 11, supra.

Despite that invitation to woolgather, I have tried to limit this article to the tightest possible analytical approach. It begins in Section II with definitions of chemical and biological agents within existing treaties, and of nanoproducts including those existing, on the edge, and currently beyond publicly known technical capabilities but which are at least reasonably conceivable (nanobots).21 Section III examines current treaties facially applicable to nanoproducts,22 starting with the 1925 Geneva Gas Protocol,23 and including the 1972 Bacteriological and Toxin Weapons Convention, (the BWC)24 and the 1993 Chemical Warfare Convention.(the CWC)25 Because of the possibility that the ―all analogous… devices‖ language of the 1925 Protocol bans nanobots, the article examines very closely the origin, application and meaning of that language. That close inspection necessarily involves considerable discussion of pre-1914 treaties, as well as the battles, weapons, tactics and legal analyses in World War One,

Given past experiences,26 the drafters of the more recent conventions banning biological and chemical weapons were specific27 in their drafting. Accordingly, we know that current law bans ―Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes‖ and ―[w]eapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict;‖28 and, we know as well that it bans all chemical weapons.29

26 As will be seen below, the history of arms control treaties is often also a history of evasion of those treaties. See discussion, infra, at __. 27 Often, that evasion was justified by what the evading party characterized as distinguishing factors of the weapon it used. See, e.g., discussion of Germany‘s use of chlorine gas on 1915, infra, at __. 28 BWC supra at Fn 21. 29 CWC, supra at fn 8. Definitions: 1. "Chemical Weapons" means the following, together or separately: (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). 2. "Toxic Chemical" means: 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. http://www.cwc.gov. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Signed at Geneva 3 September, 1992. As of May 2009, 188 states are party to the CWC. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-3&chapter=26&lang=en. The CWC is written broadly enough to cover existing and undiscovered applications and substances. That such breadth was the intent of the drafters is demonstrated by the continuing work of the The Organization for the Prohibition of Chemical Weapons, see discussion at fn __, infra. Cf, Ropert Pinson, Is Nanotechnology Prohibited By the Biological and Chemical Weapons Conventions?, 22 Berkeley J. Int‘l L. 279, 294 (2004).

It is particularly important to note that the Chemical Warfare Convention covers any ―chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals‖ including ―all such chemicals, regardless of their origin or of their method of production.‖30 Accordingly, a broad class of current or immediately potential nanoproducts may be covered by the CWC; others might not. To comprehend potential applications one must understand the language of nanotechnology.31 A Nanotechnology and Molecular Nanotechnology

30 As is pointed out byWalter Krutzsch and Ralf Trapp in A Commentary on the Chemical Weapons Convention, Martinus Nijhoff Publishers (1994) at pp. 23-24, the CWC‘s definition of chemical weapons differs from the way other international agreements define weapons. Typically, they note, ―…a weapon is usually considered to be the entirety of its components, and characterized by more or less objective criteria…that would allow for distinction between those types of weapons covered by the treaty and those not covered. In the CWC, each of the components of a chemical weapons system in itself already has to be regarded as the prohibited weapon.‖ (Emphasis added). See also, Walter Krutzsch and Ralf Trapp, Verification Practice under the Chemical Weapons Convention, Kluwer Law International (1999). 31 Some useful terminology may be found in the U.S. Department of Commerce, Patent and Trademark Office‘s Classification Order 1850, November 1, 2005 providing search criteria for nanotechnology patent research. 32 Jurgen Altman, Military Nanotechnology, Potential Application and Preventive Arms Control, Routledge (2006). 33 Daniel Ratner and Mark Ratner, Nanotechnology and Homeland Security, Prentice Hall (2004),

Nanotechnology is, broadly put, the science of the very small. In Military Nanotechnology,32 Jurgan Altman says 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. Military Nanotechnology at 1.

A useful discussion of general concepts is found in Nanotechnology and Homeland Security:33

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… Nanotechnology and Homeland Security at 13-14.

Certainly, there is a great deal of current military interest in Nanotechnology,34 and an equal amount of excitement, if not money, in the medical realm.35 Indeed, medical research has overlapping applicability of considerable interest:

34 Nanotech research projects are being conducted, inter alia, at 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, Technology Quarterly, The Economist, June 10, 2006; Jun Wang and Peter Dortmans, A Review of Selected Nanotechnology Topics and Their Potential Military Applications, Austalian Government, Department of Defense, Defense Science and Technology Organisation, January, 2004 (noting that ―…the concept of nanobots needs to advance beyond the drawing board before being considered within feasible technology concepts,‖ id at 22); Lothar Ibrugger, Rapporteur, The Security Implications of Nanotechnology, NATO Parliamentary Assembly, 179 STCMT 05 E, (2005). Http://www.nato-pa.int/Default.asp?SHORTCUT=677; Chapelle Brown, Nanotech Goes to War, EE Times, 8/25/03 (re: Institute for Soldier Nanotechnologies); Director, Defense Research and Engineering, Department of Defense, Defense Nanotechnology Research and Development Program, (Review of DOD programs the objective of which is to ―discover and exploit unique phenomena at these dimensions to enable novel applications enhancing war fighter and battle systems capabilities. At p.3) April 26, 2007; Stefan Nitschke, Nanotechnology: Applications for Naval Warfare, 26 Naval Forces 36 (2005); Barnaby Feder, Frontier of Military Technology Is the Size of a Molecule, NY Times, April 8, 2003, Section C, Column 1, Page 2 (Nanotechnology will eventually alter warfare more than the invention of gunpowder, said Dr. Clifford Lau, deputy under secretary of defense with the Office of Basic Research at the Defense Department.‖); and David Hambling, Nanotechnology Goes to War: The Pentagon is Pioneering Micro technology for Just About Every Device From 10g Video Cameras to Tiny Atomic Clocks on a Chip, The Guardian, page 6 (March 5, 2009). 35 Adriano Cavalcanti, Bijan Shirinzadeh, Mingjun Zhang and Luiz Kretly, Nanorobot Hardware Architecture or Medical Defense, 8 Sensors 2932, May, 2008 (which proposes mass embedded nanorobots temperature sensors for early epidemiological detection, and which pretty much ignores the potential public reaction to perceived government intrusion), Adriano Cavalcanti, Bijan Shirinzadeh and Luiz Kretly, Medical Nanorobots for Diabetes Control, Nanomedicine; NBM; 4:127-138 doi:10.1016/jnano.2008.03.001; Tom Thomas and Rachelle Acuna-Narvaez, The Convergence of Biotechnology and Nanotechnology: Why Here, Why Now?, 12 Journal of Commercial Biotechnology, Vol. 12, No. 2 105-110, (January, 2006) (which notes that ―…nanomaterials and devices can be built at the same size as cell components, making them ideal for interacting with individual molecules,‖ as well as the chemical delivery value of tree branched nanomaterials called ―dendrimers‖); Robert Austin and Shuang-fang Lim, The Sackler Colloquium on Promises and Perils in Nanotechnology for Medicine, Vol. 105, No 45 Proceedings of the National Academy of Sciences of the United States 17217-17221 November 11, 2008). See, Giorgia Guerra, A Model for Regulation of Medical Nanobiotechnology: The European Status Quo, 3 Nanotech. L. & Bus. 84 (2006); and James Heath, Mark Davis and Leroy Hood, Nanomedicine Targets Cancer, 300 Scientific American, Issue 2 pp.44-51 (February, 2009) (the mechanics of nanoscale cancer monitoring systems).

because of their size, nanoscale devices can easily interact with biomolecules on both the cell surface and within the cell… U.S. Department of Health and Human Services, Cancer Nanotechnology Plan, A Strategic Initiative to Transform Clinical Oncology and Basic Research Through the Directed Application of Nanotechnology, July,2004, http://nano.cancer.gov/alliance_cancer_nanotechnology_plan.pdf. (Emphasis added).

Why does this medical research matter in warfare?36 A basic understanding of some concepts of physiology, chemistry, biochemistry and history is important here. 37 An underlying concern of those who fear application of nanobots in warfare, often not explained except with references to nerve agents,38 is that the bots will enter or otherwise affect nerve cells, and will act

36 Andy Oppenheimer, Nanotechnology Paves Way for New Weapons, Jane‘s Chem-Bio Web, July 27, 2005: As with many technologies, the medical applications may be applied for offensive purposes. Manipulation of biological and chemical agents could result in entirely new threats that might be harder to detect and counter than existing CBW. 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. http://www.hartford-hwp.com/archives/27a/317.html. 37 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. ―In essence, ―The 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 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.‖ Jonathan Tucker, War of Nerves, Pantheon Books (New York, 2006) pp. 52-54. This excellent work is extremely useful for anyone seeking to understand the history of development and deployment of nerve gases. 38 See, Glen Reynolds, Environmental Regulation of Nanotechnology: Some Preliminary Observations, 31 Environmental Law Reporter 10681 (2001), ―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.‖ Id at text before fn. 33, (Emphasis added).

as cholinesterase inhibitors,39 but in a physical rather than a chemical manner.40 The results would be the same,41 but would they be covered by the CWC?

39 Nerve gases are liquids, not gases, which block an enzyme (acetylcholinesterase) that is necessary for functions of the central nervous system. Federation of American Scientists, Introduction to Chemical Weapons, http://www.fas.org/programs/ssp/bio/chemweapons/introduction.html. See further discussion, infra, at __. 40 See generally, U.S. Congress, Office of Technology Assessment, Technologies Underlying Weapons of Mass Destruction, OTA-BP-ISC-115 USGPO (Washington, D.C., 1993): 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 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, it is readily absorbable through the skin. The lethal dose of VX is about 10 milligrams for a 70 kilogram man. Id at 23-24. 41 See, AEPI scenario, supra in Section I. 42 Richard Smalley, Of Chemistry, Love and Nanobots, Scientific American, September, 2001 at 76; Rudy Baum, Nanotechnology: Drexler and Smalley Make the Case for and Against ‗Molecular Assemblers‘,‖ 81 Chemical & Engineering News No. 48 (December 1, 2003) at pp. 37-42;Chris Phoenix, Of Chemistry, Nanobots and Policy, Center for Responsible Nanotechnology, December, 2003, http://www.crnano.org/Debate.htm. (concluding ―Smalley has failed to support his opinion that MNT cannot work as Drexler asserts.‖); Mikael Johansson, ‗Plenty of Room at the Bottom‖: Towards an Anthropology of Nanoscience, 19 Anthropology Today, No. 6 (Dec., 2003) pp. 3-6, contains an excellent presentation of scientific skepticism about Drexler‘s naoconcepts.; Eric Drexler and Jason Wejnert, Nanotechnology and Policy, 45 Jurimetrics Journal 1-22 (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‖) id at 8. 43 Are Nanobots On Their Way? Nanotechnology Weekly, May 12, 2008 (―‖The first real steps towards building a microscopic device that can construct nano machines have been taken by U.S. researchers‖).

44 See, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) regarding standards for expert testimony about scientific knowledge which assists the neutral seeker after truth. Cf Lesley Wexler, Limiting the Precautionary Principle: Weapons Regulation in the Face of Scientific Uncertainty, 39 U.C. Davis L. Rev. 459 (2005-2006). 45 A. Ummat, G. Sharma, C. Mavroidis and A. Dubey, Bio-Nanorobotics: The State of the Art, Chapter 19, in Joseph Brozino, Ed., Tissue Engineering and Artificial Organs, CRC (2006).

Despite considerable institutional skepticism,42 there has been at least some discussion of nanorobot concepts which appears to be based in hard fact and science,43 and usable by a non-expert to examine reality.44 In Bio-Nanorobotics: State of the Art and Future Challenges45, the authors focus on molecular machines either naturally occurring, or created ―from scratch‖ synthetically but ―using nature‘s components.‖ They note that the ―…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.‖ Id. At 19-2. The authors suggest that:

The authors go on to suggest that a ―library of bio-nanocomponents‖ 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 nanoscale.‖ Id. At 19-21. What the authors have in mind is medical repair, 46 but the applications to future warfare appear equally possible,47 and they raise fascinating questions. As Shipbaugh notes: Futuristic 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 realize that nanotechnology applications can become very provocative. Calvin Shipbaugh, Offense-Defense Aspects of Nanotechnologies: A Forecast of Potential Military Applications, Nanotechnology, Winter, 2006.(Emphasis added).

46 The authors‘ discussion appears realistic. They conclude that problems like protein folding, precise mechanisms of molecular motors and swarming behavior are unsolved. Still, they say: The future of bio-nanorobotics …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 at 19-33 (Emphasis added). 47 It seems worth noting 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. Scientists, futurists, quacks cranks and the suicidally adventurous explored not only wing-warping 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. CITE 48 Lonnie Henley, The RMA After Next, Parameters, Winter, 1999-2000, http://www.carlisle.army.mil/USAWC/PARAMETERS/99winter/henley.htm. 49 With the caveat that ―It is easy to get carried away with such speculation. Even with rapid progress in all the necessary fields, it will be decades before we can mass-produce 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.‖ Id at 5.

Indeed, the United States Army has considered the implications for some time, at least in the area of biological weapons. In 1999, Lonnie Henley raised48 the possibility of several novel biological warfare applications49 including, ―subject to prevailing law and arms treaties,‖ selective agents that can distinguish friend from foe, triggered agents that harm only in specific situations; ―new ways to kill or incapacitate opponents‖ ( noting ―Programmable agents could be

more carefully calibrated than the poisons and diseases of traditional biological warfare‖); ―penetration aids‖ to bypass defenses or immunities; or anti-material agents. Henley did not consider the chemical warfare implications, per se.

Legal implications of nanotechnology in the unconventional weapons context, as well as in other areas,50 have been raised before:51 Many of the discussions have been narrowly directed to a particular approach to regulating nanomaterials,52 are downright utopian,53 or are relatively limited in their content.54

50 Albert Lin, Size Matters: Regulating Nanotechnology, 31 Harv. Envtl. L. Rev 349 (2007) (―Of more immediate concern [than nanobots] are the potential risks posed by nanoscale science and engineering‖); and Michael Van Lente, Building the New World of Nanotechnology, 38 Case W. Res. R. J. Int‘l L. 173 (2006) which lists extensive investments in nanotechnology on a global scale; and James Yeagle, Nanotechnology and the FDA, 12 Va. J. L. & Tech. 6 (2007). 51 See, Robert Pinson. Is Nanotechnology Prohibited by the Biological and Chemical Weapons Conventions? 22 Berkeley J. Int‘l Law 279 (2004); Gary Marchant and Douglas Sylvester, Transnational Models for Regulation of Nanotechnology, 34 J.L. Med & Ethics 714 (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 rty and prevent such scenarios through international agreements until such risks are more concrete and defined‖). Id at 719.. 52 Kenneth Abbott, Gary Marchant, and Douglas Sylvester, A Framework Convention for Nanotechnology, 38 Envtl. L. Rep. News & Analysis 10507 (2008) (discusses four general principles for nanotech regulation, though not specifically weapons related), and Lynn Bergeson, Regulation, Governance and Nanotechnology: Is a Framework Convention for Nanotechnology the Way to Go?, 38 Envtl. L. Rep. News & Analysis 10515(2008), David Rejeski, Comment on a Framework Convention for Nanotechnology, 38 Envtl. L. Rep. News & Analysis 10518 (2008), Brent Blackwelder, Comment on a Framework Convention for Nanotechnology, 38 Envtl. L. Rep. News & Analysis 10520 (2008); Sean Howard, Nanotechnology and Mass Destruction: The Need for an Inner Space Treaty, The Acronym Institute for Disarmament Diplomacy, Issue No. 65, July-August, 2002, http://www.acronym.org.uk/dd/dd65/65op1.htm, Gregory Mandel, Nanotechnology Governance, 59 Alabama Law Review 1323 (2008). Reynolds raises several problems with the ―prohibitionist approach‖ mentioned by several authors. Not only would it impact potentially useful scientific advances, but nanotech research facilities are relatively easy to hide from a prohibitionist inspection regime. Reynold, fn__, supra, at 191. Lesley Wexler, supra, in the context of depleted uranium weapons, fn __ suggests amending Article 36 of Protocol I (1977) to the 1949 Geneva Conventions. While they may, in some aspects, represent articulations of current customary law, the United States is not currently signatory to the Protocols. Cf Vladimir Murashov and John Howard, The US Must Help Set International Standards for Nanotechnology,3 Nature Nanotechnology 635 (2008), www.nature.com/nanotechnology.; Joel Wolfson, Social and Ethical Issues in Nanotechnology: Lessons From Biotechnology and Other High Technologies, 22 Biotechnology L. Rep. 376 (2003) (―The dangers of nanotechnology as a terrorist weapon are easy to see. First, a nano-robot that can operate within a human body could easily be programmed to destroy rather than heal.‖ The assumptions in those sentence are apparent). 53 Lindsay Dennis, Nanotechnology: Unique Science Requires Unique Solutions, 25 Temple J. Sci. Tech & Envtl. Law 87 (2006) which proposes creation by the United States Congress of an ―‖Emerging Technologies Department,‖ to provide ―centralized regulation‖ of nanotech independent apparently of both Executive control and Congressional oversight. Id at 111-113.

54 See, Juan Pardo-Guerra and Francisco Aguayo, Nanotechnology and the International Regime on Chemical and Biological Weapons, 2 Nanotech L. & Bus. 55 (2005), which, while reasonable in its approach and analysis, paints in very broad strokes the issues involved. Some analysis may be found in Jason Wejnert, Regulatory Mechanisms for Molecular Nanotechnology, 44 Jurimetrics Journal 323 (2004). While the paper focuses on preventing ―release into the wild‖ of molecular nanotechnology products. It mentions both possible development of a unique MNT treaty, and of something modeled on the Nonproliferation Treaty, as well as potential application of both the BWC

and CWC. Id at 333-336., but posits enforcement problems, id at 349 and does not address the current applicability issues raised in this paper. 55 Glen Reynolds, Nanotechnology and Regulatory Policy, 17 Harv. J. L & Tech. 185 (2003). 56 Note that Reynolds cites Eric Drexler, Engines of Creation, (Rev‘d ed. 1990) at 56-63 as sole source material on the underlying science. 57 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. More complex living organisms can communicate through various means. http://en.wikipedia.org/wiki/Life. 58 Diana Bowman and Graeme Hodge, A Small Matter of Regulation: An International Review of Nanotechnology Regulation, 8 Columbia Sci. & Tech. L. Rev. 1 (2007). This article is limited to discussion of potential regulatory restrictions on nanotechnology, and does not deal with treaty based controls.

Glen Reynolds, however, directly addresses aspects of a number of important questions including that of bio-nanorobotics. In Nanotechnology and Regulatory Policy,55 Reynolds notes that:

…these nanodevices would not suffer from the constraints facing living organisms—they would not have to be made of protein or other substances readily extractable from the natural environment, nor would they be capable of reproducing themselves.56

It is interesting to compare Reynolds‘ statement with Sharma, Mavroidis and Dubey‘s discussion of bio-nanobots. Key questions arise about treaty coverage depending on whether these bots are, in fact, bugs, for they may, depending on attributes of life57, fall within the BWC, the CWC, or in the cracks between. Reynolds also notes that the ―…same technology that could selectively destroy cancer cells could instead target immune or nerve cells producing death or further debility.‖ Others have raised similar issues: ―...nano-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…

The Stockholm International Peace Research Institute has expressed some concern in this area: 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.

SIPRI Yearbook, 2008 at p.2, http://yearbook2008.sipri.org/files/YB08Intro.pdf. See also id. at Chapter 9.59 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

59 See also, Ronald Sutherland, Chemical and Biochemical Non-Lethal Weapons: Political and Technical Aspects, SIPRI Policy Paper 23, November, 2008. 60 The Organisation for the Prohibition of Chemical Weapons (OPCW) is the implementing body of the Chemical Weapons Convention (CWC or Convention). The OPCW is given the mandate to achieve the object and purpose of the Convention, 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. http://www.opcw.org/about-opcw. 61 Conference of the States Parties, Note by the Director General, Report of the Scientific Advisory Board on Developments in science and Technology. 28 February, 2008.

The Organization for the Prohibition of Chemical Weapons60 (―OPCW‖) conducts conferences to review ongoing chemical weapon developments. As part of its 2008 conference, the OPCW issued a Report by its Scientific Advisory Board on new scientific developments.61 That Report identified three immediate areas of concern. They include 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.62 Juan Pardo-Guerra and Francisco Aguayo, supra at fn __, note a concern over ―…the engineering of task-specific enzymatic regulators…[which] could be used for blocking (or over-promoting) key metabolic processes…to cause a defined hostile result…‖ They note that ―…due to their unusual forms of action, such substances would likely be invisible to the existing verification protocols of the CBW regime,‖ id at 59.63

62 See generally, ibid at Sections 2.5 to 2.8. Altman in Military Nanotechnology at 101-1-2, , ibid at fn __, 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.‖ 63 Citing Jean Pascal Zanders, The Chemical Weapons Convention and Universality: A Question of Quality Over Quantity? Disarmament Forum 23 (Issue 4, 2002), available at http://www.unidir.org/bdd/fiche-article.php?ref_article=1823. 64 See, e.g. Ian Sample, Nanotechnology Poses Threat to Health, Say Scientists, The Guardian, p.2 (july 30, 2004). 65 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.‘s Toxic Substances Control Act (TSCA) 15 U.S.C. Section 2601 et seq, excludes nanomaterials that are not ―chemical substances,‖ id at Sections 4 and 8, and it defines a ―chemical substance‖ as ―any organic or inorganic substance of a particular molecular identity‖ that is not a mixture. ―Based on this definition, it might not be clear whether certain nanoparticles consisting of a core inorganic material coated by an organic material would [be covered].‖ Linda-Jo Schierow, id 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, at Section __.

These dissemination, entry and toxicity concerns have been raised as well at the nationalplanes, as well as internationally. The U.S. Congressional Research Service has noted that scientific concern64 about nanoparticles is based in part on some of the very properties 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 found nanoparticles generally (but not always) are more toxic than larger particles of identical chemical composition. Linda-Jo Schierow, Engineered Nanoscale Materials and Derivative Products: Regulatory Challenges, Congressional Research service (July 18, 2008) at p. 4, (citations omitted, emphasis added). 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.

The toxicological properties of nanomaterials is in some ways the most urgent concern of 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.66 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

66 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. CWC art. II §9, art. VI, Verification annex schedule III 67 As opposed to nanoparticles. 68 See also Nicholas Wade, New Cancer Treatment Shows Promise in Testing, New York Times, June 29, 2009, Page A-_, (Australian researchers use ―minicells‖ coated with antibodies to attack tumors and some of which are each―…loaded with half a million molecules of …a toxin used in chemotherapy;‖ and Scientists Use Nanomaterials to Localize and Control Drug Delivery, Medical Devices & Surgical Technology Week(Feb. 10, 2008) (―…researchers used nanoscale polymer films, about four nanometers per layer, to build a sort of matrix or platform to hold and slowly release an anti-inflammatory drug.‖

The most likely immediate scenario for application of nanotechnology67 to chemical warfare is as a delivery system on the chemotherapy model. As The Economist notes: …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.

The Economist, Golden Slingshot; Treating Tumours, Science and Technology Nov.8, 2008.68 It is also worth noting that the authors in Bio-Nanorobotics: The State of the Art, supra at fn__, 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 mqacroscale 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… Id at 19-15 (emphasis added).

research, although other medical applications have been discussed69 If such carriers are used to deliver poisons or toxins banned under the CWC, their facial illegality for that use again is quite clear.70 The carriers themselves, however, may very well have dual usage71, and the other use may be to the medical benefit of humanity. Thus, the National Cancer Institute (NCI) of the National Institutes of Health, explains why nanotechnology is applicable in battling cancer: Nanoscale devices are somewhere from 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. 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 nano-size does of chemical therapies:

69 For example, to treatment of diabetes , See, e.g., Awadhesh Kumar Arya, Applications of Nanotechonology in Diabetes, Journal of Nanomaterials and Biostructures Vol. 3, No. 4, Dec. 2008, p.221, 225. 70 As discussed below at Section __, the 1925 Geneva Gas Protocol and the CWC would ban the delivered substances outright and make their delivery for military purposes a crime. 71 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.

72 As a ―real world‖ example of the promise of nanotechnology in drug delivery, the 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 NCI also notes that ―In May 2004, two companies (American Pharmaceutical Partners and American BioScience) announced that the FDA accepted the filing of a

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 agents72 or

New Drug Application (NDA) for a nanoparticulate formulation of the anticancer compound taxol to treat advanced stage breast cancer.‖ Question 13 at http://nano.cancer.gov/about_alliance/q-and-a.asp. 73 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, ibid, at __). Geneva Protocol One (1977), with its requirement of advance analysis of the legality of new weapons puts, at least a new gloss on that process. See, discussion, infra, at __. If non-state 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 DPRK and its fielding of nuclear weapons, See ____ [CITE]), on their perceived interests and resulting acts. 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 ____ [CITE]. 74 See, e.g, Nanotechnology and Homeland Security, supra at fn __, at pp. 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.‖ Altman, on the other hand, list as military risks of nanotechnology both ―superintelligent, virtually invisible devices…‖ and ―nanoweapons, artificial viruses, [and] controlled biological/nerve agents.‖ Military Nanotechnology, id at fn__, at 5. Much of Altman‘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 nano-robots and universal molecular assemblers in MNT).

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.‖ Those would be something other than nano sized chemical agents. Most likely, to have any chance to avoid the CWC73 they would have to be nanobots. While scientists with whom I‘ve spoken deride the concept as ―science fiction,‖74 I discuss it here both because DARPA75 deals in concepts which twenty years

See also, William Tolles, Vision, Innovation, and Policy in Mihail Rocco and William Bainbridge Ed.s, Nanotechnology: Societal Implications—Individual Perspectives, Springer (2007) at 127-130. http://books.google.com/books?id=CmvMwoqlIJYC&dq=nanotechnology+societal+implications&printsec=frontcover&source=bl&ots=oovSOJTuk3&sig=qp0GFbdRl8ZpOqK39fwKl4WlACU&hl=en&ei=KlNKSuTBDse8lAehpZUj&sa=X&oi=book_result&ct=result&resnum=3, Judith Reppy, Nanotechnology for National Security, id. At 232—236. 75 The United States Government‘s Defense Advanced Research Projects Agency. http://www.darpa.mil/.

76 See, The New Scientist, April 3, 2007 ―… DARPA … issued a request for proposals on developing so-called Chemical Robots (ChemBots), which would change shape in order to squeeze through tiny gaps. The DARPA request states that ChemBots should be "soft, flexible, mobile objects that can identify and manoeuvre through openings smaller than their static structural dimensions". 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." http://www.masshightech.com/stories/2008/06/30/daily8-Tufts-joins-the-chembot-creation-challenge-with-$3.3M-DARPA-contract.html. See also, Tufts joins the chembot creation challenge with $3.3M DARPA contract, June 30, 2008. http://www.masshightech.com/stories/2008/06/30/daily8-Tufts-joins-the-chembot-creation-challenge-with-$3.3M-DARPA-contract.html. Cf, Terminator 2: Judgment Day, a science fiction movie which introduced ―…the T-1000 composed of "a mimetic polyalloy", a liquid metal that allows it to take the shape and appearance of anything it touches…‖ http://en.wikipedia.org/wiki/Terminator_2. 77 See, H.G. Wells, The War of the Worlds, Heinemann, (London 1898) where alien invaders die from earth bacteria. See also, The 1925 Protocol where biological weapons are banned though undeveloped. Section __, supra.

before might have been called ―science fiction‖76, and because, especially in warfare, many science fiction scenarios have become science fact.77 It is, in this context, worth noting, in its entirety, a report in the New York Times‘ Science Times section in August, 2009:

Henry Fountain, Scientists Use Curvy DNA to Build Molecular Parts, New York Times, August 11, 2009, Page D-3 (Emphasis added, paragraphing omitted).78 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 Biological Weapons Convention (BWC) and the Chemical Weapons Convention (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; 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. Mark Wheelis, Will the New Biology Lead to New Weapons? Arms Control Today, July/August, 2004, http://www.armscontrol.org/act/2004_07-08/Wheelis.

78 See, Hendrik Dietz, Shawn M. Douglas, William M. Shih, Folding DNA into Twisted and Curved Nanoscale Shapes, Science 7 August 2009:, Vol. 325. no. 5941, pp. 725 – 730. http://www.sciencemag.org/cgi/content/abstract/sci;325/5941/725?maxtoshow=&HITS=10&hits=10&RESULTFORMAT=&fulltext=ShapesFolding+DNA+into+Twisted+and+Curved+Nanoscale+&searchid=1&FIRSTINDEX=0&resourcetype=HWCIT.

79 "Gray goo‖ is a term coined by Eric Drexler in his book Engines of Creation, (1986) to describe self-replicating nanobots run amok. . See, Lawrence Osborne, The Gray-Goo Problem, Sunday New York Times Magazine, December 14, 2003.

80 Altman, supra, at __. 81 War of Nerves, supra, fn__, at __. 82 Gas is subject to dispersion and dissipation effects from time and weather which might not affect machines in the same manner. War of Nerves, id at __.

What the arms control experts seems to have in mind is not the ―gray goo‖79 scenario, or bots attacking soldiers of a specific genetic make-up80, though both have been discussed by legal writers. Rather, the concern is that a nanobot is certainly conceivable which would target nerve cells or their receptors and block cholinesterase production through mechanical means. The result would be precisely the same in terms of effects and lethality as the V81 series of nerve gases, 82 with potential for enhanced deliverability.83 Delivery (dissemination and dispersion)

83 Both because existing filters and detectors could be ineffective, and because dispersion in new forms may become available. Daniel Ratner and Mark Ratner, supra at __. 84 Federation of American Scientists: Strategic Security Program, Chemical Weapons Delivery: 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 …. 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 ... 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 … 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 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. Emphasis added. http://www.fas.org/programs/ssp/bio/chemweapons/delivery.html. 85 Military Nanotechnology, id at fn__, at __ 86 Sean Edwards, Swarming and the Future of Warfare, Dissertation, Pardee Rand Graduate school (September, 2004).

methods are important in this discussion, because nanoproducts are different in so many ways from the norm.84 In addition to the different physics and biology inherent in their small size,85 swarming86 and emergence87 technologies may allow precise dosing by terminating targeting once a lethal dose has been achieved.88

87 See, e.g., Peter Corning, he Re-Emergence of ―Emergence‖: A Venerable Concept in Search of a Theory, Institute for the Study of Complex Systems (2002). 88 A simple emergence feedback limit could, for example, direct devices elsewhere once an underlying prime concentration level had been achieved.

89 Anirban Bandyopadhyay† and Somobrata Acharya, 16-Bit Parallel Processing in a Molecular Assembly, Proceedings of the National Academy of Sciences of the USA (2008), http://www.pnas.org/content/105/10/3668.abstract. 90 See, e.g., AEEPI, supra at __, Lonnie Henley, supra, at __and Kip Nygren, supra, at __.

Jonathan Fildes, Chemical Brain Controls Nanobots, BBC News Mar 11, 2003.89

It is the prospect of self-guided nanobot, self-controlling their functions, which seems to particularly trouble the military commentators.90 As the AEPI asked, are ―… nanomachines … chemical weapons under the provisions of the Chemical Weapons Convention?‖ To answer that question, we must begin with some others: What are the currently applicable treaties, and do they need to be modified? To understand their reach we must begin with the core treaty which is still binding, and which is incorporated in all other currently applicable law…the Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. Geneva, 17 June 1925 Indeed, to understand where we are today, we must closely examine the Protocol‘s history, reaching back to the 19th century. III Facially Applicable Treaties Several treaties are facially applicable to at least some nano related weapons. They include the 1925 Geneva Gas Protocol, as well as the more recent Biological Weapons the Chemical Weapons Conventions. Because their background and negotiation are directly relevant to their coverage this article deals with those points in considerable detail.

The 1925 Geneva Gas Protocol was an important step91 in global attempts to ban chemical and biological weapons but it was neither the first92, nor the only,93 step. In its article-by-article review of the CWC prior to US ratification, the Defense Treaty Inspection Readiness Program (DTIRP) noted that:

91 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 non-signatory 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. Barton J. Bernstein Why We Didn‘t Use Poison Gas In World War II, American Heritage Vol. 36 Issue 5August/September, 1985: ―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.‖ 92 The 1899 Hague Declaration 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 on the Use of Projectiles the Object of Which is the Diffusion of Asphyxiating or Deleterious Gases; July 29, 1899. 93 The language of the Biological Weapons Convention revalidates the 1925 Protocol: Recognizing 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, 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, …Convinced of the importance and urgency of eliminating from the arsenals of States, through effective measures, such dangerous weapons of mass destruction as those using chemical or bacteriological (biological) agents, Recognizing that an agreement on the prohibition of bacteriological (biological) and toxin weapons represents a first possible step towards the achievement of agreement on effective measures also for the prohibition of the development, production and stockpiling of chemical weapons… Preamble to 1972 Biological Weapons Convention. Similarly, the Preamble to the CWC 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…

See, DTIRP Article-By-Article Analysis at http://dtirp.dtra.mil/tic/CWC/cw_pre.htm. Emphasis added.94 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, and are unquestionably current and binding international law. 1 Why Gas Mattered

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. 95

Gassed, John Singer Sargent, 1919, Imperial War Museum, London. Note the yellow sky in Sargent‘s depiction of the aftermath of a mustard gas attack. Mustard gas may appear as a yellow-brown cloud (http://en.wikipedia.org/wiki/Mustard_gas), but if it was present in the levels presented the soldiers in the painting would not be standing in line unmasked. Rather, Sargent is adding to the horror of the viewer with a certain level of artistic license. 96 Among the many other English language ―war poets‖ were Edmund Blunden, Robert Graves, Isaac Rosenberg and Siegfried Sassoon. See, George Walter, Ed., The Penguin Book of First World War Poetry Penguin (London, 2004). See also, Jon Stallworthy, The Oxford Book of War Poetry, Oxford Univ. Press (London, 1984).

It isn‘t often that one can legitimately mix legal analysis with a picture and a 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.95 The work reproduced below is the pictorial counterpoint to Wilfred Owen‘s 96 poetry97 which epitomized the popular revulsion against war, politicians, industry and

97 Most especially, Owen‘s completely accurate (the author has never seen a better description of the sensations he experienced when masking in a U.S. army practice gas chamber than ―an ecstasy of fumbling…contemporary descriptions of German gas shells affirm their unique sound, Owen‘s ―hoots,‖) and terribly effective Dulce et Decorum Est: Dulce Et Decorum Est 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, 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. C. DayLewis, Ed., The Collected Poems of Wilfred Owen, New Directions (New York, 1964). 98 See, e.g., the descriptions in John Ellis, Eye Deep in Hell: Trench Warfare in World War 1, Pantheon (New York, 1976) at pp. 65-68, including a nurse quoted as saying ―I wish those people…could see…the poor things burnt and blistered all over with great mustard-colored 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.‖ 99 Ludwig Haber notes in The Poisonous Cloud, Chemical Warfare in the First World War, Clerendon Press, (Oxford, 1986) that:

propaganda which seized the general public, especially in the Western democracies at the end of the War. That horror, especially with gas warfare,98 was a tangible thing which directly affected international policy99 after November 11, 1918. ―The public…was influenced by many dramatic

…romanticism 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…in the course of 1918 the situation altered…in 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. Id at 231. See also, Haber‘s discussion of Sergant‘s Gassed, and Owen‘s Dulce et Decorum Est at 230.

100 See, Report of the Special Committee on Investigation of the Munitions Industry (The Nye Report), U.S. Congress, Senate, 74th Congress, 2nd sess., February 24, 1936, pp. 3-13.

101 The American 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. Frederic Brown, Chemical Warfare: A Study in Restraints, Princeton University (Princeton, 1968) at 56 et seq. Brown notes that: The 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. He cites as ―typical‖ an address delivered by Dr. William Hale, a Vice President of Dow Chemical Company, in which he described gas as ―the most effective weapon of all time…the most humane ever introduced into war by man,‖ and then argued for a protective tariff ―In this war after the war our battle cry must be ―To Hell with all the German imports! Down with everything opposed to American industries.‖ Id. 102 Fries expanded on that position in U.S. Senate testimony: 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.

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.‖ William Moore, Gas Attack: Chemical Warfare 1915 to the Present, Leo Cooper (London, 1987) at 195.

Certainly, gas proponents knew that intense distaste was a threat to their future. The Chemical Warfare Service of the United States Army, and the American chemical industry, especially Dupont100 and Dow Chemical101, had a vested interest in the continuation of use of poison gases as weapons of war. As early as 1921 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.102

BG Amos Fries, testimony before United States Senate, Committee on Finance, Hearings on Tariff Act of 1921, Dyes Embargo at 387 (August 4, 1921). 103 Robert Harris and Jeremy Paxman respond: …advocates 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 and Jeremy Paxman, A Higher Form of Killing, Random House (New York, 2002) at 18. …there 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. In public, Porton maintained that the popular press ―scare-mongered‖ about the long term effects of gas poisoning.‖ Id at 36-37. 104 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 General John Pershing and others in negotiations for the Washington Naval Treaty in 1922, infra at Section __.

Amos Fries and Clarence West, Chemical Warfare, McGraw-Hill (New York, 1921). At p. 13.103 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 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.

Id at 435.104 Fries‘ anger at what he clearly considers the ignorance and illogic of those who oppose gas warfare come through at the conclusion of his book:

105 Fries was cited in and supported by Russell Ewing, The Legality of Chemical Warfare, 61 The American Law Review 58 (1927) who argued that: 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: …anti-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. 106 For eventually, there was a complete ban on possession and development though it took over seventy years. 107 See discussion, infra at __. 108 The so-called ―Lieber Code‖ for its principal initial drafter Columbia University law professor Francis Lieber. The Lieber Code was widely accepted by European powers in the decades following. ―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.‖ Choate, id, at 13.

Fries, as it turns out was incorrect in his expectations,106 but for a very long time his arguments carried a great deal of weight (See Section __, supra). What they demonstrate here is the other side of a long and bitter conflict about the morality of using poison gas in war. 2 Efforts to Regulate Poisons and Gases Before World War One

There had, in fact, been considerable discussion of poisonous and asphyxiating gases before their wide use began in 1915.107 Part of the reason was the recognition of the illegality of poisonous weapons articulated in United States Army General Order 100108 in 1863; 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 lose all value in consequence of some fresh discovery in the same field. Quoted in Joseph Choate, The Two Hague Conferences, Princeton University Press (Princeton, 1912). Choate 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?‖ Choate then 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…

109 But note, that in 1899, the American delegate, (then) Captain Alfred Thayer Mahan and later author of the highly influential The Influence of Seapower Upon History (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. James Scott, Ed., Instructions to the American Delegates to the Hague Peace Conferences and Their Official Reports, Carnegie Endowment for International Peace (1916). See Hague Declaration at fn __, supra. 110 See, William Hull, The Two Hague Conferences and Their Contributions to International Law, Ginn & Company (Boston, 1908) at 87. 111 Annex to the Convention with Respect to the Laws and Customs of War on Land (July 29, 1899) it is especially prohibited…To employ poison or poisoned arms…‖ Annex to the Convention Regulations Respecting the Laws and Customs of War on Land, Article 23 1907 ―it is especially forbidden …To employ poison or poisoned weapons…‖

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 those whose explosion produces incidentally such gases.‖110

The second Hague reiteration of the 1899 ban on poison weapons,111 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. What happened in 1915, and in the ensuing years of World War One and more importantly here, what impact did the use of gas and its rationale at the time, have on Post-World War One treaty making? 3 What Happened in the Great War?

Ludwig F. Haber, the son of the man112 who was held responsible for Germany‘s use of chlorine gas in 1915, 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 gas first, iii) gases were not poisonous, and 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. L.F. Haber, The Poisonous Cloud, Chemical Warfare in the First World War, Clerendon Press, (Oxford, 1986) at 19-21. 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.

112 Dr. Fritz Haber, 1868-1934, winner of the Nobel Prize for Chemistry in 1918. http://en.wikipedia.org/wiki/Fritz_Haber. 113 Berthold von Deimling, Aus der alten in die neue Zeit (Berlin, 1930) p.201, cited in War of Nerves, supra at fn __ at 13, 392 and Stephane Audoin-Rouzeau and Annette Becker, 14-18 Understanding the Great War, Hill and Wang, (New York, 2000) at 155.

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.114 Thus, Haber points out:

114 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 dionaline 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 towards gas warfare. Joseph Kelly, Gas Warfare in International Law, 9 Mil. L. Rev. 1 at 7 (1960). Emphasis added. 115 The Small Box Respirator (SBR) was the last WW One version of the British protective mask. Simon Jones, infra, at __.

…the particular anxiety caused by the German Blue Cross shells 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 SBR115 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 debilitates that they couldn‘t fight any more. Haber at 256. Emphasis added. Finally, Haber again raises the issue of the Hague Conventions: The two Hague Conventions to which I referred at the beginning of this book expressly prohibited ―asphyxiating or deleterious gases‖ and ―posion or poisoned weapons.‖ 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 those 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…and 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.

Id at 290-291.116 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.‖ 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.‖ The instructions provided that ―the vapors …of the…asphyxiating gaes are not deadly, at least when small quantities are used.‖ 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. Charles Horne, Ed., The Great Events of the Great War, Vol. 3, p. 138, Official German Press Report of June 25, 1915, The National Alumni (1920).

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. Id at 291. With that conclusion, the Allies as victors, and eventually as treaty negotiators, seemed to disagree, for in the post-bellum period they produced a number of treaties designed to prevent future uses of poisonous and asphyxiating gases and similar ―processes‖ or ―devices.‖117 What they meant by those words is a key to analysis in this paper. 4 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 worlds laboratories, will become progressively more deadly. Henri LeWita, Autour de la Guerre Chimique, Jules Tallander Press, (Paris, 1928) at 39 (author‘s translation). Bernauer summarizes the Post-War situation:

117 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 types of weapons would mimic but not take the same physical form as the existing chemical weapons. See discussion, infra at __.

provisions.118 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.119 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, by and large, modeled after Article 5 of the Washington Treaty of 1922. Thomas Bernauer , The Projected Chemical Weapons Convention: A Guide to Negotiations in the Conference on Disarmament, United Nations (New York, 1990) at pp.11-12. Citations omitted.

118 As will be discussed below, those provisions were similar but differed in what may be important respects. See, section __, infra. 119 The use of the word ―therefore‖ may not be entirely accurate. As discussed, infra, at Section __, 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. 120 As will be discussed below, those separate treaties contained somewhat differing language in their articles relating to bans on possession of chemical weapons. 121 The Central Powers consisted of the German Empire, the Austrian-Hungarian Empire, the Ottoman Empire and the Kingdom of Bulgaria. The Allies consisted principally of The British Empire, the Russian Empire (until March, 1917 and the Russian republic until November, 1917), the Kingdom of Belgium, the Kingdom of Italy (after April, 1915), the Kingdom of Serbia, the Kingdom of Romania from August 1916 to May, 1918), and the United States (after April, 1917). 122 Treaty of Peace between the Allied and Associated Powers and Germany (1919).

The initial steps to reach that Protocol began, as Bernauer notes, with the drafting in 1919 of the Treaty of Versailles which ended the war between Germany and the Allies, and continued with the other separate treaties120 ending the war with other members of the Central Powers.121 a The Treaties Ending the War

In the French version of the text, Article 171 provides: L‘'emploi de gaz asphyxiants, toxiques ou similaires, ainsi que de tous les liquides, matières ou procédés analogues étaient prohibés, la fabrication et l'importation en sont rigoureusement interdites en Allemagne. Il en est de même du matériel spécialement destiné à la fabrication, à la conservation ou à l'usage desdits produits ou procédés. 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.‖ H. Temperly, Ed. A History of the Peace Conference of Paris, Vol. II, The Settlement With Germany, Oxford Univ. Press (London, 1920) at 127.

Verwey123 points out that, in fact, the original text in Article 5 of the pre-Versailles draft ―Concerning a 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. Id at 262.

123 Wil Verwey, Riot Control Agents and Herbicides in War, A.W. Sijthoff, Leyden (1977). 124 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 poison gas notwithstanding the appalling suffering it entailed...‖ and that, inter alia, was ―…why Germany must submit for a few years to certain special disabilities and arrangements.‖ Quoted from George Creel, The War, The World, and Wilson, Harper Bros., (New York, 1920), in Jeff Hay, Ed., The Treaty of Versailles, Greenhaven Press, (San Diego, 2002) at 32-33. 125 Harold Vaughn noted contemporaneously that ―After what became routine statements in favor of the idea that all nations should now disarm, the delegates did nothing except to strip the defeated powers of their remaining military establishments, and then plan how to keep them in a state of permanent military inferiority. Wilson‘s fourth point called for the reduction of national armaments ‗to the lowest point consistent with domestic safety,‘ but it was applied only to Germany. Harold Vaughn, The Versailles Treaty (1919) reprinted Franklin Watts (New York, 1975) at 36. 126 Verwey adds that this impression is supported by the insertion of flamethrowers into the concomitant articles of the peace treaties with Austria (Art.135) and Hungry (Article 119), noting ―it could hardly be [argued] that in 1919 flamethrowers were considered prohibited by customary international law.‖ Id at 262.

127 Adolf-Boelling Overweg in 1937 thought Article 171 ―…eine Fiktion ohne praktische Bedeutung.‖ (―a fiction without practical meaning.‖ (author‘s translation), Adolf-Boelling Overweg, Die Chemische Waffe und das

―There is no doubt‖, says Verwey, ―that this formulation was intended to mean ‗in and to Germany‘,124 since the Allied Powers certainly did not intend to give up the production of chemical weapons themselves.‖125 Id. 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. Verwey says that ―there is no indication…in the records that the phrase ―being prohibited‖ was inserted on purpose,‖ and that the discussions point to the opposite conclusion; that the entire article was related to Germany‘s obligations alone. Id.126 The author agrees with Verwey‘s conclusion that the gas articles of Versailles and other treaties were aimed at the Central Powers alone127, although the discussion is, for his purposes, mooted by subsequent

Volkerrecht (―Chemical Weapons and International Law‖), E.S. Mittler & Sohn (Berlin, 1937) at 69. Overweg analyzes the background history of Article 171 in considerable depth, but makes no mention of textual discrepancies regarding ―devices‖ between the French and English versions. See, id. at pp. 64-72. 128 The conclusion seems logical, since everything in the drafting process of the Post-War treaties was designed to prevent the losing parties from ever again presenting a military threat. See, Brown, Chemical Warfare, supra_,at 52. He notes that : There was… a significant difference between the first draft prepared by the Foch Committee of the Supreme War Council on March 3, 1919, and the final draft. The draft article was blunt…‘Production or use of asphyxiating, poisonous or similar gases, any liquid, any material and any similar device capable of use in war are forbidden.‘ Chap 2, Art. 5, Draft Regulations Concerning a Definitive Military Status of Germany, App. A to ICC-155 [BC-45], U.S. Department of State, The Paris Peace Conference 1919, IV (Washington, USGPO, 1943) at 232. The draft article was accepted without comment on March 6, and March 10, 1919. The regulations were redrafted to reflect substantive comments on other articles between March 10 and March 17. In the redrafted regulations…Article 5 became Article 13 and the wording was changed to that of the final Article 171. There is no indication that the change in wording was realized to be other than procedural. Ad at 52-53. Emphasis added. See also, Temperly, supra, Vol. 2 at 134: Whatever we may do to reduce the strength of the German Army, and to prevent the military training of the people, there are, and will for some time continue to be, in Germany several millions of men trained and inured to war. Similarly. There are large numbers of regimental and staff officers, with ample war experience. These are accomplished facts, which we are powerless to alter. On the other hand, it is quite possible to deprive Germany of the arms, ammunition, and material necessary for the equipment of a great army. Emphasis added. 129 "Device‖ is currently defined in England as ―A thing designed for a particular function or adapted for a purpose; an invention. A contrivance, esp a (simple) mechanical contrivance. … An explosive contrivance, esp. a nuclear bomb. Shorter Oxford English Dictionary, Vol. 1 6th Ed. Oxford University Press, (Oxford, 2007). A more contemporaneous English definition is not fundamentally dissimilar…‖Something invented and constructed for a special purpose; an instrument or combination of instrumentalities formed with intelligence and design; contrivance; as a mechanical device for controlling vibration…‖ A Standard Dictionary of the English Language, Funk and Wagnalls, (London, 1895). 130 Treaty of Peace between the Allied and Associated Powers and Austria; Protocol, Declaration and Special Declaration (St. Germain-en-Laye, 10 September 1919).

131 Immediately before presentation of the draft Treaty of Versailles to Germany on May 10, 1919, the Council of Four ((Lloyd George of England, Vittorio Emanuele Orlando of Italy, Georges Clemenceau of France, and Woodrow Wilson of the United States) decided to next complete the treaty with Autria-Hungary and ordered its Central Secretariat to prepare a draft. Temperley, Vol IV at 141-142. The military clauses were drafted by the British section which followed the general arm limitations imposed on Germany. Id at 143. The Council‘s Military Representatives adopted the British draft, which followed the Versailles language precisely ―…except that the word Flammenwerfer [flamethrowers] was added in the first line of Article 135.‖ Id at 150. Thus, the modification of

developments in 1922 and 1925,128 when the later treaties incorporated and ratified the relevant language.

What is important for this paper, however, is the Versailles ban on devices,129 which was, indeed, present in the drafts from the very beginning. It is interesting to note that the various treaties ending the war with the Central Powers were not exactly the same regarding banned chemical weapons. As noted above, article 171 of Versailles refers to ―…analogous liquids, materials or devices…‖ The Treaty of St. Germaine-en-Laye130 which ended the war with Austria adds flame-throwers to the mix131 but keeps the reference to devices, providing in Article

―gases‖ by ―devices‖ not only preceded the additional word, there was apparently no intent to do anything other than add another banned weapon to a convenient clause. 132 The modern flamethrower was designed by Berlin engineer Richard Fiedler and the German Army tested two models in 1901. The smaller version, more commonly used, was gas pressurized, light enough to be man-portable and had a range of approximately 20 yards. The larger version had a 40 yard range. The weapon was used as early as October, 1914 but its first major use was at Hooge in July, 1915. Bernard Fitzsimons, Ed., Tanks & Weapons of World War I, Michael Dewar, The First Flame Attacks, at 47 et seq., Beekman House (New York, 1973). Other nations on both sides quickly adopted the weapon, which was used extensively in World War 2, Korea and Vietnam. The U.S. unilaterally removed flamethrowers, but not flame weapons, from its arsenal in 1978, http://en.wikipedia.org/wiki/Flamethrower, but the weapon is still legal against military targets. See, Convention on Conventional Weapons, Protocol III, Incendiary Weapons, Article 1.1 (defining flamethrowers as incendiary weapons) and Article 2 (limiting but not prohibiting their use) (1981). The subsequent use of flamethrowers, taken together with the CCW language, makes it clear that states have not viewed that weapon as a ―device‖ covered by the 1925 Protocol or subsequent treaties. 133 A General Conference for the Reduction and Limitation of Armaments under the sponsorship of the League of Nations and attended by League Members plus the U.S. and U.S.S.R. took place in Geneva from 1932to 34. http://www.mtholyoke.edu/acad/intrel/WorldWar2/disarm.htm. In the preparatory work for that Conference, the British Foreign Office produced a Memorandum on Chemical Warfare which pointed out ―a serious ambiguity‖ regarding the translation of the word ―similaires‖ as ―other.‖ The U.K. Memo proposed French and English language drafts which substituted the English word ―similar‖ for ―other.‖ More interesting here, the UK draft also substituted, without comment, the word ―processes‖ for ―devices‖ as a translation for ―procédés.‖ The Conference adopted the UK draft, but, of course, it never produced even a final draft treaty before it dissolved in light of events which were to lead to the Second World War. Minutes of the Sixth Session (Second Part) of the Preparatory Commission for the Disarmament Conference, IX Series of League of Nations Publications (1931) Minutes of Twentieth Meeting, December 2, 1930 at p.311. http://digital.library.northwestern.edu/league/le00307h.pdf. 134 See, e.g., Natalino Ronzitti, Le Desarmement Chimique et le Protocole de Geneve de 1925, XXXV Annuaire Francais de Doit International 149 (1989) which discusses at length the ―similares‖ versus ―other‖ debate, but never mentions any conflict between ―analogous…devices‖ and ―procédés analogues,‖. 135 Relevant definitions from the Larousse Dictionary state:

135 that ―The use of flamethrowers, asphyxiating, poisonous or other gases, and all similar liquids, materials or devices being prohibited…‖ Apparently, there ―devices‖ still modifies ―gases‖ since the language is unchanged from Versailles except for the addition of flamethrowers.132

There has been considerable discussion about the meaning of the word ―similares‖ modifying asphyxiating and toxic gases in the French version, versus the word ―analogous‖ in the English text.133 During the Vietnam conflict, the United States took the position that the French text excluded tear gases because they were not similar to choking or poisonous gases and others disagreed because they thought tear gas ―analogous.‖ See, e.g. Wil Verwey and Richard Baxter and Thomas Buergenthal, op cit in fn ___ infra.

There has not, however, been similar discussion of whether there is a distinction between ―analogous…devices‖ and ―procédés analogues,‖ in the second clause of the first sentence of Article 171.134 The word ―devices‖ in the specific sense of related equipment or application is better articulated with "appareil" (apparatus) or "dispositif" (device). While "procédé" may be translated as ―processes‖ in general circumstances, e.g., (―technique de fabrication‖), it has a more specific meaning.135 "Procédé" has the strong connotation of bringing about a similar

Procédé. nom masculine (de procéder) * Manière d'agir, de se comporter : Ce sont là des procédés malhonnêtes. Manner of acting or behavior. They are proceeding dishonestly. * Manière de s'y prendre, méthode pratique pour faire quelque chose : Un nouveau procédé de fabrication. Means to an end, practical method to do something: A new manufacturing process. * Recette toute faite visant à obtenir artificiellement un résultat avec peu de moyens. Recipe for artificially obtaining a result with the least means. Larousse [http://www.larousse.fr/] (Author‘s translations). 136 In other treaties ending World War One, see footnotes ____ . 137 Interestingly, Josef Kunz, in Gaskrieg und Völkerrecht, Julius Springer (Vienna, 1927) at 37 says: Durch Versailles, Artikel 171, wird Deutschland die Herstellung und Einfuhr von erstickenden, giftigen und ähnlichen Gasen, von allen entsprechenden Flüssigkeiten, Stoffen oder Verfahrensarten sowie von Gebrauch der genannten Erzeugnisse oder Verfahrensarten sowie von allem Material das eigens für die Herstellung, Aufbewahrung oder den Gebrauch der genannten Erzeugnisse oder Verfahrensarten bestimmt ist streng untersagt und zwar im Hinblick daruf, dass dieser Gebrauch verboten ist. [Author‘s translation] In the view of the fact that its use is forbidden, by Versailles, article 171, Germany is strictly forbidden from the production and importation of suffocating, poisonous and similar gases, of all corresponding liquids, materials or types of procedure, as well as the products or types of procedure mentioned as well as by all material particularly intended for the production, storage or the use of the products or kinds of procedure mentioned. Kunz uses the phrase ―entsprechenden …Verfahrensarten‖ [corresponding type of procedure] which effectively translates the French phrase ―procédés analogues,‖ but which in the context must mean something else, since as used, a ―type of procedure‖ could not in itself be produced, stored or imported. It is telling that in the next sentence, he concludes that Article 171 is ―identisch sind‖ [identical with] the parallel articles of the other treaties ending World War One. Id. 138 Treaty of Peace between the Allied and Associated Powers and Bulgaria; Protocol and Declaration (Neuilly-sur-Seine, 27 November 1919).

result or end-state. One common synonym for "procédé" appears to be "conduite," i.e. behavior. Indeed, a subtext of artificially obtaining an analogous result is inherent in the word. It is therefore significant that the translation "processes" was used elsewhere136, but rejected for "devices." Thus, the French version provides some additional evidence that the intention was to include entities with similar or analogous effects, outcomes, or behaviors, rather than simply devices associated with distribution of otherwise banned substances.137

The situation, of course, gets more complicated. In the Treaty of Neuilly-sur-Seine138 with Bulgaria, flamethrowers are kept in the relevant article 82, but the word ―processes‖ is

substituted for ―devices.‖ Does that substitution indicate any intent to change the nature of the treaty? It is difficult to support that conclusion, because six months later when a treaty is signed with Hungry, the language veers back to ―similar…devices.‖139 Finally, the initial treaty with Turkey, later in 1920,140 again contains the ―similar…processes‖ phrase, but to complicate the puzzle even further, when the final version of the treaty is signed in 1923141, the entire article relating to chemical weapons is deleted.

139 Treaty of Peace between the Allied and Associated Powers and Hungary; Protocol and Declaration art. 119 (Trianon, 4 June 1920). 140 Treaty of Peace between the Allied and Associated Powers and Turkey art. 176 (Sevres, 10 August 1920). 141 Treaty of Peace with Turkey Signed at Lausanne (24 July 1923). 142 For discussion of other possible treaty language see, Herbert Manisty, The Use of Poison Gas in War, Problems of War and Peace, 9 Transactions of the Grotius Society 17 (1923)

Thus, we have the following situation. Every treaty except Versailles bans flamethrowers, and every treaty except Versailles uses the word ―similar‖ while Versailles says ―analogous.‖ However, the first, second and fourth treaties say ―devices‖ while the third and fifth use the word ―processes.‖ How are we to know what the language was intended to mean? It is interesting to note that the Allies required in Article 172 of the Treaty of Versailles that Germany " disclose … the nature and mode of manufacture of all explosives, toxic substances or other like chemical preparations used by them in the war or prepared by them for the purpose of being so used…‖ It did not, however, require the disclosure of similar or analogous devices or processes. Whether or not it is possible to at least deduce from that dissimilar language that the drafters had any particular intent, it is at least clear they were aware the language could vary in many ways, and that in the ban in Article 171 and its parallels in other treaties, they enacted they seem to have chosen the broadest possible language.142 Fries‘ supra at Section __, discussion of methodology current in 1921 is enlightening: …we must expect that new gases, new methods of turning them loose, and new tactical uses will be developed…Some of the poisonous gases are so powerful in minute quantities and evaporate so slowly that their liberation does not…cause a cloud. Consequently, we have gases that cannot be seen. Others form clouds by themselves, such, for instance, as the toxic smoke candle, where the solid is driven off by heating…It would be idle to attempt to enumerate the ways and means by which chemicals will be used in the future. In fact, one could hardly conceive of a situation where gas or smoke will not be employed, for these materials may be liquids or solids that either automatically upon exposure to the air, turn into gas, or which are pulverized by high explosive, or driven off by heat. This varied character of the materials enables them to be used in every sort of artillery shell, bomb or other container carried to the field of battle. Fries, supra at pp. 436-437, emphasis added.

It is worth noting that Fries‘ arguments about the technicality legality of German conduct were still being made as late as 1942, when a law review note143 was published stating that ―Brutal as she otherwise was, Germany did not violate international law by the use of chlorine on April 22, 1915.‖ Of course, the thesis of that note is somewhat impacted by its concluding sentence: ―There is hardly a field of peaceful human endeavor which does not owe a debt to the Chemical Warfare Service.‖ Id at 915. Of particular interest here, though, is the author‘s argument that: The Germans had [in 1914] developed a [lacriminatory] gas-filled artillery shell by modifying a 10.5 cm shrapnel. …This gas projectile was not within the interdiction of Declaration II [of the Hague Convention], for diffusion of asphyxiating or deleterious gas was not it sole object. Its main purpose was that of shrapnel against personnel. Further, it disbursed a fine dust of solid and not a gas. Id at 907. Emphasis added, emphasis in original deleted.

143 Cyrus Bernstein, The Law of Chemical Warfare, War Law Notes, 10 Geo Wash. L. Rev. 889 (1942). Emphasis added. 144 J. Norris, J. Ind. Eng. Chem 11, 825 (1919) cited id at 183. Germany used various colored markings for identifying different gas types. Simon Jones, World War Gas Warfare Tactics and Equipment, Osprey at 23-24, (UK, 2007).‖They simplified the classification to Green, Blue and Yellow Cross: green for lung irritant; blue for sensory irritant, i.e. solids to penetrate respirator filters; and yellow for mustard gas. Id at 50. Emphasis added.

145 See, Diphenylchloroarsine, Nuclear Threat Initiative web site, ―Military doctrine in World War I…counted on its being able to force soldiers to remove their protective masks, and thus become vulnerable to it or other chemical agents.‖ http://www.nti.org/e_research/profiles/NK/Chemical/1094.html.

Indeed, as Fries points out, one of the areas where Germany did early work was in arsenic derivatives. Id at 180. The most commonly used German arsenical was diphenylchloroarsine (Blue Cross) ,144 which was ―…a white solid, which readily penetrated the [gas mask] canister and caused sneezing. This substance: …was used in shells carrying a high bursting charge. The explosion of the shell scattered the Sneezing Gas in the form of a very fine cloud of particles. While the charcoal of the mask will remove most poisonous gases, it has no protective power against clouds or mists. The Sneezing Gas passed through the best canister, and through its peculiar physiological effect caused great discomfort to the men and numerous casualties through forcing the men to remove their masks.

Robert Yerkes, Ed., The New World of Science, Clarence West, The Chemical Warfare Service at 153, The Century Co. (New York, 1920).145

weapons came in forms other than gas;146 that signatory or otherwise arguably bound states might be anxious to avoid the technical strictures of any treaty;147 and they were willing to try to write a ban which took into account all possible forms of poisonous, asphyxiating and related weapons foreseeable in the future.148 One startlingly applicable statement regarding such weapons was made by ex-Major Victor Lefebure who had served from November, 1917 through the end of the war as the British liaison officer with the French Army for chemical warfare .149 Lefebure later authored The Riddle of the Rhine150 about the German chemical industry and its ties to gas warfare. In 1921 he was invited to address the Grotius Society as part of its Problems of Peace and War series.

146 In 1918, the British experimented with burning granules from a German Blue cross shell. And quickly realized its ability to penetrate their respirator. Inspired by those Blue Cross experiments, they ―…perfected the thermogenerator …which produced an arsenic smoke capable of penetrating all known respirators apart from their own. As well as causing intense pain in the sinuses it also created temporary but intense feelings of psychological misery.‖ Simon Jones, fn__, supra, at 57-59. Thermogenerator grenades, adapted as aerial bombs, became the first air dropped chemical weapons when used by the RAF against Bolshevik forces near Archangel in 1919. Id at 57. See, Michael Kettle, Churchill and the Archangel Fiasco, Routeledge (UK, 1992) at 305 (―On April 16 [1919], Churchill‘s Secretary received a letter…from Sir Keith Price [an explosives and munitions expert] which stated, ‗If there is going to be a White Sea campaign, do not let the powers that be overlook the new gas generators. Really believe they are the most deadly weapon which has yet been produced…The D.M. generator knocks people out for 48 hours but does not kill them, the DA kills alright; which is the right medicine for the Bolshevist.‖ DA was, in fact, the British Code name for diphenylchloroarsine, the chemical in Blue Cross. DM was the code name for diphenylaminechlorasine. See, David Kirkwood, Non-Lethal Weapons in Operations Other Than War, Naval War college Paper (June, 1996), at p. 4, http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA312201&Location=U2&doc=GetTRDoc.pdf. ―Chemical Agent, Vomit. Though the use of this agent (Diphenylamine Chlorasine (DMA) is currently prohibited, it has the non-lethal effect of causing vomiting and flu-like symptoms.‖ Sir Keith Price appears to have been confused about the names and qualities of DA and DM. See, Michael Kettle, supra, at 304. 147 See, e.g., the German and American commentators‘ arguments about the technical legality of Germany‘s deployment of chlorine gas from cylinders in 1915.

148 It is worth noting that in 1940 the United States Army was actively concerned with defenses against irritant smoke which it defined as ―…a chemical agent which can be disseminated as extremely small solid or liquid particles in air, and …causes intolerable sneezing, coughing, lacrimation or headache, followed by nausea and temporary physical disability when breathed in very low concentrations. War Department, FM-21-40 Defense Against Chemical Attack G.P.O. (Washington, D.C., 1940) at 4. The Army also recognized that there was a distinction between irritant gas candles and toxic smoke candles. See, TM 30-506 War Department Technical Manual, German-English Military Dictionary (20 May, 1944) defining ―giftnebelkerze‖ as an ―irritant gas candle‖ and ―giftrauchkerze‖ as a ―toxic-smoke candle.‖ Http://www.allwordwars.com/German-English-Military-Dictionary.html. 149 Obituary Notices, the Times of London, 1948 at 394.

150 Victor Lefebure, The Riddle of the Rhine, The Chemical Foundation (New York, 1923) http://www.freebookstoread.com/rrhin10_1.htm.

151 There is a great deal of useful historical evidence in this area. Particularly useful is the Report of the Committee Appointed to Consider the Question of Chemical and Bacteriological Warfare, to the League of nations during its Fifth Session from September 1 to October 2, 1924. Regarding chemical warfare the Committee notes: The term ―gas‖ as used in connection with warfare does not correspond to the scientific definition of gases. In reality it includes not only gases but solid or liquid substances which are reduced to powder or spray in the air. …Such substances are by no means rare. The majority are common materials, ordinarily manufactured and employed in large quantities for peace-time requirements, so that ―there is very little difference between the manufacture of pharmaceutical products and that of injurious substances used in war.‖… (Emphasis added). Cf W. Eysinga, La Guerre Chimique et la Mouvement pour sa Repression, Academie de Doit International, Vol. 16, 1927 at 335 Sijthoff, Reprinted, (Leyden, 1972). 152 ASTM International, originally known as the American Society for Testing and Materials (ASTM), is a voluntary standards development organization and source for technical standards. The ASTM Dictionary of Engineering Science & Technology, 10th Ed. (2005) defines gas as ―the state of matter in which the molecules are practically unrestricted by intermolecular forces so that the molecules are free to occupy all space within an enclosure…‖ and particulate as ―a general term used to describe a finely divided solid of organic or inorganic matter.‖ Thus, it is important that ―smoke‖ is ―small gas-borne particles resulting from incomplete combustion…‖ That understanding of the meaning of ―smoke‖ really has not changed since W.F.M. Goss noted in 1916, that the properties of smoke were defined as ―gaseous and solid products of combustion, visible and invisible,‖ and that smoke regarded as possessing both solid and gaseous constituents. W.F.M. Goss ___, 181 Journal of the Franklin Institute at 320 (1916). 153 See, Dennis Myers, et al, The Treaty of Versailles and After, Annotations of the Text of the Treaty, Government Printing Office (1944) reprinted, Greenwood Press (1968). In the Preface, the authors note that ―The negotiations which resulted in the language of the treaty taking its final form have not been recorded, for it was not the intention of the makers but the action of the parties to the treaty which was to be ascertained. It was seldom found to be pertinent to discuss interpretations of the language finally adopted.‖ Id at iii.

Thus it seems clear from the evidence that the Versailles Treaty drafters knew the poisonous and asphyxiating ―gases‖ of the Great War were often something other than gas in the technical sense of physicists,152 and it is also clear that there was an attempt at inclusion rather than exclusion of anything which might produce analogous results. It does not assist the researcher attempting to divine intent that many of the negotiations were kept secret and the records ostensibly destroyed.153 Once again, however, we have some guidance. In a 1922 analysis of the ―Secret Minutes of the Paris Peace Conference‖ the New York Times revealed that:

Two things were at once assumed by the conference, and brushed aside as the most vital problems often are, practically without discussion. First, that Germany should be utterly disarmed, so far as military uses were concerned, of airplanes, poison gas, submarines, tanks etc. Every one agreed to that. Second, no one at Paris considered for a moment and immediate general reduction of armament in these new instrumentalities which should apply to the allies as well as to the enemy states….They were all agreed on an absolute prohibition of the military use of gases…but the other Allies wished to go much further. They wished to compel the German Government to disclose her chemical processes and secrets…[Secretary of State Robert Lansing expressed President Wilson‘s view that] ‗…since the use of asphyxiating, poisonous or other gases and all analogous matters or devices had been prohibited,154 including their manufacture or importation, he thought that was sufficient safeguard…‘ It became crystal clear as these discussions developed that everything depended upon point of view…If men looked upon inventions and scientific appliances only from the point of view of war, then everything became dangerous; there must be an attempt to corner every contingency with a prohibition and often a perpetual prohibition at that; with a reducto ad absurdum in trying to penetrate the secrets of men‘s minds. Prohibitions were not enough [Wilson argued, what was needed also was a League of Nations]. Ray Baker, America and the World Peace, Sixth Installment, New York Times, February 5, 1922. Emphasis added. In any case, it was the ―analogous devices‖ language of Versailles which ended up as the language adopted first by the Washington Naval Conference in 1922, and then in the 1925 Geneva Gas Protocol. What we know from the history leading to them, however, is that the drafters had available both the words ―similar processes‖ and ―analogous devices‖ and that they chose to use the latter; that they were determined to prevent Germany from again arguing that such weapons were outside the scope of treaty language; and that they were very well aware that smoke and particulate matter could be produced and used as a lethal weapon of war to disburse asphyxiating or toxic chemicals. With that history in mind the decision at Washington in 1922 to use the words ―analogous devices‖ becomes directly relevant to determination whether the CWC covers nanomimics. b

154 Note that in the French text Lansing is quoted as saying ―Il s‘agit d‘obliger les Allemandes a faire connaitre les secrets de fabrication de certains produits employees pour des procedes de guerre contraires au doit des gens. Ceci vise essentiallement les gaz et autres produits chimiques.‖ Paul Mantoux, Official Interpreter, Les Deliberations de Conseil Des Quatre Vol. 1, (24 March- 28 June, 1919), Editions de Centre National de la Recherche Scientifque, (Paris, 1955) at 267. Emphasis added. (―This is to oblige Germany to disclose the secrets of making certain products employed for illegal warfare. Essentially, it is aimed at gases and other chemical products.‖ Author‘s translation. While the English language notes of what Lansing actually said are probably most authentic, it is interesting that the official French interpreter translated ―asphyxiating, poisonous or other gases and all analogous matters or devices had been prohibited‖ as les gaz et autres produits chimiques.‖

A full description of the proceedings at the Washington Conference may be found in a published doctoral thesis by Raymond Buell. Buell discusses the Washington Conference‘s Subcommittee on Poison Gas155 which had privately reported on December 8, 1921156 that suppressing poison gas was unwise and unworkable, and a public report on January 6, 1922 concluding ―…the only limitation practicable is to wholly prohibit the use of gases against cities and other large bodies of noncombatants in the same manner as high explosives may be limited, but that there could be no limitation on their use against the armed forces of the enemy, ashore or afloat.‖ Quoted in Raymond Buell, The Washington Conference, D. Appleton (New York, 1922) at 208.

155 Of the two American members of the Subcommittee, one was Brigadier General Amos Fries of the Army‘s Chemical Warfare Service. See, Fries, Chemical Warfare, supra at __. 156 Editorial, The Suppressed Report, Vol. 17 No. 7, Industrial and Engineering Chemistry 662 (July, 1925). 157 It included among its members General John Pershing, the commander of the American Expeditionary Force in 1917-18, as well as Herbert Hoover, Samuel Gompers, and the Assistant Secretaries of the Navy and of War and an Under Secretary of State. Buell at 206. 158 The Advisory Committee reasoned that while use of lethal gas against military opponents might be legal, the potential harm far outweighed any utility. It added that ―The committee is of the opinion that the conscience of the American people has been profoundly shocked by the savage use of scientific discoveries for destruction rather than construction,‖ and that whatever the views of technical experts ―the committee feels the American representatives would not be doing their duty in expressing the conscience of the American people were they to fail in insisting upon the total abolition of chemical warfare…whether against combatant or noncombatant.‖ Minutes of Sixteenth Meeting at 386. 159 Edwin James, Hughes Proposes Gas Ban, New York Times, January 7, 1922: The abolition of gas warfare was proposed today to the Naval Committee of the armament conference by the American delegation. Backed by strong public opinion, it would appear that a resolution …not to use gas…had an excellent chance of being adopted by the conference. …Mr. Hughes sprang his proposal unexpectedly today. In doing so, he recommended that the report of the Conference Experts‘ Committee on Poison Gas, which declared it unwise to try to prohibit its use, be set aside, and that the conference act on a report of a subcommittee of the American Advisory Committee, recommending the ban on gas warfare. The name of General Pershing, as a member of the subcommittee is signed to the report…members declare that it represents accurately his views….Mr. Hughes then asked Mr. Root present on behalf of the American delegation a resolution for the abolition of gas warfare. Mr. Root said there was a consensus of public opinion against the use of gas in war that could not be found against any other proposition. He said that he would borrow from the Treaty of Versailles which forbade Germany from using gas in war or making gas. The same restriction was imposed by peace treaties on Austria and Hungary [Root said]. He read Article 171 of the Versailles Treaty and then proposed this resolution:

The Advisory Committee to the American Delegation157, however, reported that poison gas was ―abhorrent to civilization…a cruel, unfair and improper use of science, and demoralizing to the better instincts of humanity.‖ Buell at 206. The Advisory Committee resolved that ―…chemical warfare, including the use of gases, whether toxic or nontoxic, should be prohibited by international agreement, and should be classed with such unfair methods of warfare as poisoning wells, introducing germs of disease, and other methods that are abhorrent in modern warfare.‖158 Id at 208. The American Delegation to the Conference rejected the Subcommittee‘s advice and following a presentation by Secretary of State Charles Evans Hughes159, Elihu Root160 introduced the following Resolution on January 6, 1922:

The use in war of asphyxiating, poisonous or analogous liquids or materials or devices having been justly condemned by the general opinion of the civilized world… 160 Former Secretary of War (1899-1904) and Secretary of State (1905-1909) of the United States. See generally, Elihu Root, Addresses on International Subjects, Harvard University Press (Cambridge, 1916). 161 Note, the language differs significantly from the Versailles Treaty. By the time it was incorporated in the actual treaty language the Versailles wording had been resurrected. See_. 162 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 specifically intended for the manufacture, storage and use of the said products or devices. 163 Root told the Conference he was introducing the language of the treaties that ended the Great War. In fact it was only the Versailles language from Article 171, and that the language ―represented the most extraordinary consensus of opinion that one could well find upon any international subject.‖ His statement was not entirely correct. Edwin James, Hughes Proposes Gas Ban, New York Times, January 7, 1922. See, discussion of variations in treaties ending World War One, supra at __.

The use in war of asphyxiating, poisonous, or analogous liquids or other gases and all materials or devices161 having been justly condemned by the general opinion of the civilized world and a prohibition of such use having been declared in treaties to which a majority of the civilized world are parties—now, to the end that this prohibition shall be universally accepted as a part of international law, binding alike the conscience and practice of nations, the signatory powers declare their assent to such a prohibition… Conference on the Limitation of Armament, Minutes of Sixteenth Meeting, 67th Congress, Senate, Document No. 126.Government Printing Office, 1922 at 388. Emphasis added. See further, Edwin James, Hughes Proposes Gas Ban, New York Times, January 7, 1922.

Apparently, there was a scrivener‘s error in the copying of Versailles Article 171,162 or Mr. Root erred in its reading,163 however, by the time the Treaty was signed, Article V of the Washington Naval Treaty was again congruent with Versailles. It provided: The use in war of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, having been justly condemned by the general opinion of the civilized world and a prohibition of such use having been declared in treaties to which a majority of the civilized Powers are parties, The Signatory Powers, to the end that this prohibition shall be universally accepted as a part of international law, binding alike the conscience and practice of nations, the signatory powers declare their assent to such a prohibition, agree to be bound thereby as between themselves, and invite all civilized nations to adhere thereto. Treaty Relating to the Use of Submarines and Noxious Gases in Warfare, Washington, 25 L.N.T.S. 202 (1922). Thus, the Versailles language had been fully restored to the 1922 Treaty. It was that language which was incorporated into the Geneva Gas Protocol in 1925, and which in turn was reiterated as binding by the CWC. c

The Geneva Protocol of 1925 placed the 1922 Washington use ban on the table for all states.164 The United States Senate, however, after the country acted as the prime proponent of a ban, refused to ratify the Treaty,165 at that time.166

164 It is worth remembering that the 1922 Treaty and the 1925 Protocol were drafted in light of a wide effort to end all international armed conflict. See generally, James Shotwell, Plans and Protocols to End War, Historical Outline and Guide, Carnegie Endowment for International Peace, (New York, 1925). 165 The United States Chemical Warfare Service launched a highly effective lobby. They enlisted the support of veterans associations and of the American Chemical Society (whose executive declared that ―the prohibition of chemical warfare meant the abandonment of humane methods for the old horrors of battle‖). As has often happened since, the fight for chemical weapons was represented as a fight for general military preparedness. Senators joined the CWS campaign, among them the chairman of the Committee on Military Affairs who opened his attack on ratification in the senate debate with a reference to the 1922 Washington Treaty: ―I think it is fair to say that in 1922 there was much of hysteria and much of misinformation concerning chemical warfare.‖ Harris and Paxman, supra __, at 47-48. 166 Eventually, the United States ratified the 1925 Geneva Gas Protocol, (the U.S. Instrument of Ratification was deposited on April 10, 1975) and its binding nature was, of course, reiterated in the CWC. See, ___ supra. It is interesting to note that prior to ratification, the Acting Director of the United States Arms Control and Disarmament Agency testified to the United States Senate that: This is an area in which a fairly substantial amount of research has now begun to be undertaken and hopefully on the basis of that we would be able to approach this problem on the basis of the 1967 study and not on the basis of a 1925 convention, no disrespect intended to the drafters of the 1925 convention, they did the best they could with the information available at their disposal, but the total activity should be looking at the problem of a new situation rather than the same amount of energy expended on the question of whether or not we should ratify the 1925 convention. United States Senate, Subcommittee on Disarmament of the Committee on Foreign Relations, (Ninetieth Congress, First Session) March 3, 1967, testimony of Adrian S. Fisher, Acting Director, at p. 180. Emphasis added. 167 As noted above, fn__, supra and accompanying text, variations in the language of the treaties, and in the two official texts in French and English have, in the past, been the subject of considerable international discord. Thus, for example, in the 1925 Geneva Gas Protocol with which this article is directly concerned was long the subject of a dispute over whether it banned ―tear‖ gasses. The English version of the Protocol stated that ―…the use in war of asphyxiating, poisonous or other gases‖ was prohibited, while the French version referred to ―… l‘emploi a la Guerra de gaz asphyxiants, toxiques ou similares. ‖For the interpretation that the Protocol did not, the United States, which argued for legality of use of ―non-lethal gases‖ in war, relied on the use of the word ―similares‖ (―similar‖) in the French version of the Protocol, rather than ―autres‖ which would have been a direct translation of the word ―other‖ in the English version. See, Verwey, supra at pp. 226-227. The United States took the position that while ―other‖ gases might include tear gases, they were not ―similar‖ to toxic or asphyxiating gases. Id. CF United States Senate, Subcommittee on Disarmament of the Committee on Foreign Relations, (Ninetieth Congress, First Session) March 3, 1967, testimony of Cyrus Vance, Secretary of State, at p. 55. See, George Bunn, Banning Poison Gas and Germ Warfare: Should the United States Agree? 1969 Wisc. L. Rev. 375 (1969); Richard Baxter and Thomas Buergenthal, Legal Aspects of the Geneva Protocol of 1925, 64 The American Journal of International Law 853 (1970); and International Negotiations on the Biological-Weapons and Toxin Convention, Office of Public Affairs, U.S. Arms Control and Disarmament Agency, Publication 78 (May, 1975) at pp. 39-40 (―…the ambiguity of the protocol on riot-control agents had been recognized for 40 years…‖).

Once again, the 1925 Protocol articulated an attempt to ban use in war of chemical weapons, and once again the ―devices versus processes‖167 question arises. The language of the Protocol tracks the 1922 treaty:

The historical and textual analysis above168 is equally applicable here. There is simply no doubt that the authors had in mind, given their then current knowledge and environment, a concern that limiting the treaty to analogous liquids and materials might miss something that had already been used or which could be developed, and that the inclusion of ―devices‖ was neither an accident nor inadvertent.. That conclusion is strongly supported by the French use of the word ―procédés‖ in lieu of alternative possible language.169 As will be seen below, the 1925 Protocol has been incorporated into newer treaties, but it has never ceased to bind either its signatories or other states as an expression of customary law.170 The Protocol did not entirely eliminate use in war of toxic or asphyxiating chemical weapons, but, as the following discussion shows, their use was certainly curtailed after 1925. d. Application of the Protocol and other Law after 1925

168 See, discussion, surpa at __. 169 See discussion supra at __. 170 The United States, for example, even before ratification in 1975, repeatedly recognized the declaratory nature of the 1925 Protocol. See, Cyrus Vance testimony, supra, at fn __.

Although chemical stockpiles continued to grow long after the 1925 Protocol entered into effect, their actual use in war was greatly curtailed.171 While there was some documented use, both before passage of the Protocol, UK in Siberia (1919, Arsenicals) and the Third Rif War (1924, Mustard Gas),172 and afterwards, Italy in Ethiopia173 (1936, Mustard),174 Japan in China175 (1937-1945, certainly mustard176 and biological warfare177, possibly other gases),178 usage was generally limited to attacks by colonial powers on those with no means of reprisal who were viewed by the user as engaged in otherwise illegitimate warfare.179 Post-World War Two, while

171 See generally, Julian Perry Robinson, 'The Negotiations on the Chemical Weapons Convention: An Historical Overview', in M. Bothe et al. (eds.), The New Chemical Weapons Convention: Implementation and Prospects, at 36 (1998), and sources cited therein. 172 During the Third Rif War in Spanish Morocco between 1921 and 1927, the Spanish Army of Africa dropped chemical warfare agents in an attempt to put down the Berber rebellion. Rudibert Kunz; Rolf-Dieter Müller Giftgas Gegen Abd El Krim: Deutschland, Spanien und der Gaskrieg in Spanisch-marokko, 1922-1927 (1990). C.f. David Woolman Rebels in the Rif; Abd El Krim and the Rif Rebellion, Stanford University Press (Stanford, 1968) . 173 A.J. Barker, The Rape of Ethiopia (―…while Rome was rejecting the accusations, the Ethiopians were being systematically softened up with gas attacks….Bagdoglio and Graziani realized they had a powerful tool with which an Italian victory was assured. In consequence, not only was gas used throughout the war, but afterwards as well to break down the resistance of the Ethiopian freedom fighters.‖) (Ballantine, 1971) at 56-57. 174 The International Committee of the Red Cross (ICRC) much later documented Italian use of Mustard from a report filed by Dr. Marcel Junod of the ICRC delegation to Ethiopia. ―Junod also confronted the appalling reality of mustard gas and its effects: "That evening [18 March 1936] I had occasion to see with my own eyes an Italian aircraft spraying the ground with an oily liquid, dropping like fine rain and covering a huge area with thousands of droplets, each of which, when it touched the tissues, made a small burn, turning a few hours later into a blister. It was the blistering gas the British call mustard gas. Thousands of soldiers were affected by severe lesions due to this gas…‖ http://www.icrc.org/web/eng/siteeng0.nsf/html/5RUHGM. 175 According to historians Yoshiaki Yoshimi and Seiya Matsuno, chemical weapons were authorized by specific orders given by emperor Shōwa himself, transmitted by the chief of staff of the army. For example, the Emperor authorized the use of toxic gas on 375 separate occasions during the battle of Wuhan from August to October 1938. They were also used during the invasion of Changde. Those orders were transmitted either by Prince Kotohito Kan‘in or General Hajime Sugiyama. http://en.wikipedia.org/wiki/Second_Sino-Japanese_War#cite_note-19. 176 Unused Japanese mustard gas stocks in northeast China were inadvertently released as recently as August, 2003 injuring a number of civilians. The PRC Government apparently claims an estimate of over 700,000 remaining Japanese chemical munitions. See, Mustard Gas Victims Sue Japanese government, China Daily, February 2, 2004. http://www.chinadaily.com.cn/en/doc/2004-02/02/content_302377.htm. 177 Japan deployed biological weapons against the Chinese a number of times through ―Unit 731‖ of the Japanese Imperial Army. Daniel Barenblatt, A Plague Upon Humanity: The Hidden History of Japan‘s Biological Warfare Program, Harper Collins (New York, 2004). 178 The Council of the League of Nations, ―Recalls that the use of toxic gases is a method of war condemned by international law, which cannot fail, should resort be had to it, to meet with the reprobation of the civilized world;‖ League of Nations, Official Journal, XIX, 1938, p. 120 Note to Japan (May 14, 1938). 179 See, e.g., in the Third Rif War a telegram sent by the then-High Commissioner of Spanish Morocco Damaso Berenguer to the Spanish minister of War on August 12, 1921: I have been obstinately resistant to the use of suffocating gases against these indigenous peoples but after what they have done, and of their treasonous and deceptive conduct, I have to use them with true joy. Javier Espinoza, Gas mostaza sobre el Rif (Mustard Gas on the Rif), El Mundo, Madrid, April 18, 2001. http://www.elmundo.es/2001/04/18/sociedad/983737.html

there have been disputed allegations of various sorts of chemical or toxin weapons,180 documented state use seems limited to Egypt in Yemen181 and the Iraqi government‘s attacks both against its own rebellious citizens, and from 1982-1988 against Iran, in the only general use of mustard gas in continuous and open conflict since 1918, and the first fully documented use of nerve gases in war.182

180 See, e.g. Yellow Rain, Time, September 14, 1981 (alleging Soviet use of ―…the chemical agent trichothecene toxin, known as T2.‖. http://www.time.com/time/magazine/article/0,9171,924846,00.html. 181 Egyptian bombers used mustard and allegedly nerve agents in support of the Yemani government against royalist rebels during the early and mid-1960s. See, War of Nerves, supra, fn __ at 190-196. 182 As well presented by the respected international security analysis group GlobalSecurity: In 1982, early in the Iran-Iraq War, the Iraqis used riot control agents to repel Iranian attacks. They progressed to the use of CW agents in mid-1983 with mustard, and in March 1984 with tabun (the first use ever of a nerve agent in war). The Iraqis continued to use chemical weapons until the end of hostilities in August 1988; in addition they introduced the nerve agents sarin and GF late in the war. In March 1986, UN Secretary General Javier Perez de Cuellar formally accused Iraq of using chemical weapons against Iran. Citing the report of four chemical warfare experts whom the UN had sent to Iran in February and March 1986, the secretary general called on Baghdad to end its violation of the 1925 Geneva Protocol on the use of chemical weapons. The UN report concluded that "Iraqi forces have used chemical warfare against Iranian forces"; the weapons used included both mustard gas and nerve gas. … By July 1986 it was estimated that Iraqi chemical warfare was responsible for about 10,000 casualties. Although the Iraqis initially used chemical weapons to prevent defeat and to reduce battlefield losses, they later integrated CW attacks into combined-armed operations designed to regain lost territory and to gain the offensive. Iraq's use of CW in the war with Iran can be divided into three distinct phases: 1983 to 1986--used in a defensive role; typically to deflect Iranian human-wave assaults. In 1984 Iraq became the first nation to use a nerve agent on the battlefield when it deployed Tabun-filled aerial bombs during the Iran-Iraq war. Some 5,500 Iranians were killed by the nerve agent between March 1984 and March 1985. Tabun kills within minutes. Some 16,000 Iranians were reported killed by the toxic blister agent mustard gas between August 1983 and February 1986; 2. 1986 to early 1988--iraq adapts use against Iran to disrupt Iranian offensive preparations; and 3. early 1988 to conclusion of the war-- Iraq integrated large nerve agent strikes into its overall offensive during the spring and summer of 1988 leading to the ceasefire. Iran used chemical weapons late in the war, but never as extensively or successfully as Iraq. The success of Iraqi offensive operations in the southern sector in mid-1988 ultimately caused the Iranians to cease hostilities. The use of chemical weapons contributed to the success of these operations. See, Global Security WMD website, http://www.globalsecurity.org/wmd/world/iraq/cw-program.htm.

It is worth noting that in the case of both the Japanese183 and the Iraqis, the League of Nations184 and the United Nations respectively, took the position that those states were engaged in violations of the 1925 Protocol.

183 See FN 178, supra. 184 Japan, of course, had at that time withdrawn from the League, and simply ignored its call for negotiations. See, FN __, supra. 185 Julian Robinson and Jozef Goldblat Chemical Welfare in the Iraq-Iran War. SIPRI Fact Sheet, Stockholm International Peace Research Institute (May 1984). 186 In a U.S. State Department Telegram, dated 28 March, 1984, the U.S. Mission to the U.N. reported that the U.N. investigating team believed that ―…many of the patients they visited in Iranian clinics would have died had they not administered atropine [the standard nerve gas antidote] to themselves immediately after exposure.‖George Washington University National security Archive http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB82/iraq50.pdf. See Mission Report, infra at __ indicating its 1984 investigation had shown evidence of both Mustard Gas and Tabun (GA, one of the early nerve agents, first developed by Germany in 1936).. 187 February 24, 1986. 188 United Nations Security Council, Report of the Mission Dispatched By the Secretary-General to Investigate Allegations of the Use of Chemical Weapons in the Conflict Between the Islamic Republic of Iran and Iraq, S/17911, March 12, 1986. 189 See, ___, supra.

The Iran/Iraq War started in 1982, and by mid-1983 the press was reporting Iranian allegations of Iraqi use of toxic chemical weapons.185 By mid-1984, U.N. a investigating mission was finding evidence of Iraqi use of nerve agents.186

In early 1986, in light of Iranian allegations of renewed Iraqi use of chemical weapons, and threats to retaliate in kind, the Security Council in Resolution 582:187 noted…that both Iran and Iraq are parties to the Protocol for the prohibition of the use in war of asphyxiating, poisonous or other gases, and of bacteriological methods of warfare done at Geneva on 17 June 1925, …[and deplored] … in particular, the use of chemical weapons contrary to obligations under the 1925 Geneva Protocol… Emphasis added.

Immediately following the adoption of that Resolution, Secretary General Perez de Cuellar instructed an investigating mission to proceed to Iran. The mission submitted a Report to the Secretary General on March 7, 1986. Medical observations, chemical analysis, examination of unexploded munitions demonstrated unquestionable and extensive Iraqi use of Mustard Gas.188 That Iraqi chemical warfare was the only extensive use in a major war of such weapons since World War One. It was not, however, the only time that use was considered.

As has been discussed above, following the Great War there was a considerable lobby in various militaries for the development, possession of and preparation to use chemical weapons. In addition to German weapon developments,189 the World War Two Allies possessed and

deployed extensive stocks of chemical weapons,190 and were prepared to use them if necessary.191

190 For example, the U.S. liberty ship John Harvey, was sunk in the port of Bari, Italy, on December 2, 1943, with a cargo of 1,350 tons of mustard gas on its way to Army forward storage depots at Foggia. Rick Atkinson, The Day of Battle: The War in Sicily and Italy, 1943-1944. Henry Holt (New York, 2007) at pp. 271-277. 191 Of course, the definition of ―necessity‖ varied. U.S. President Franklin Roosevelt was only prepared to use chemical weapons in reprisal for chemical attack, and in fact overruled a plan to use mustard against the Japanese on Iwo Jima. Joseph Alexander, Closing In: Marines in the Seizure of Iwo Jima, U.S. National Park Service, http://www.nps.gov/archive/wapa/indepth/extContent/usmc/pcn-190-003131-00/sec7.htm. U.K. Prime Minister Winston Churchill, on the other hand, several times urged the use of mustard, ( ―I want a cold-blooded calculation made as to how it would pay us to use poison gas, by which I mean principally mustard. We will want to gain more ground in Normandy… it may be several weeks or even months before I shall ask you to drench Germany with poison gas, and if we do it, let us do it one hundred per cent. In the meanwhile, I want the matter studied in cold blood by sensible people and not by that particular set of psalm-singing uniformed defeatists which one runs across now here now there.‖ http://www.americanheritage.com/articles/magazine/ah/1985/5/1985_5_40.shtml.) and the British were fully prepared to do so to repel a German invasion on the beaches. Christopher Bellamy, Sixty Secret Mustard Gas Sites Uncovered, The Independent, London (June 4, 1996). http://www.independent.co.uk/news/sixty-secret-mustard-gas-sites-uncovered-1335343.html. 192 Although there were other participants in the race including the U.K., France and the P.R.C. CITE ______

193 Ken Alibek and S. Handelman, Biohazard: The Chilling True Story of the Largest Covert Biological Weapons Program in the World - Told from Inside by the Man Who Ran it. 1999. Delta (2000) (Accidental release by USSR of weaponized anthrax at Sverdlovsk (now Yekaterinburg) on April 2, 1979. NB: This release occurred after the USSR had ratified the BWC. It represents one aspect of the verification and enforcement problems implicit in any arms control treaty of this nature. 194 Michael John Garcia, Biological and Chemical Weapons: Criminal Sanctions and Federal Regulations, Congressional Research Service Report for Congress (February 5, 2004), http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RL3222002052004.pdf. See also, Treasa Dunworth, Robert J. Mathews and Timothy L. H. McCormack, National Implementation of the Biological Weapons Convention, Journal of Conflict and Security Law, Oxford University Press (Oxford, 2006). 195 International Crisis Group, North Korea‘s Chemical and Biological Weapons Programs, Asia Report No. 167 (June 18, 2009). http://www.crisisgroup.org/library/documents/asia/north_korea/167_north_koreas_chemical_and_biological_weapons_programs.pdf. 196 See, War of Nerves, supra, at 333 et seq. See also, Kyle B. Olson Aum Shinrikyo: Once and Future Threat? 5 Emerging Infectious Diseases No.4, Centers for Disease Control, (July-August, 1999). http://www.cdc.gov/ncidod/eid/vol5no4/pdf/olson.pdf.

Following the end of World War Two, the principal developers and stock-pilers of chemical weapons were the United States and the U.S.S.R.192 See generally, War of Nerves, supra. Based on prior German research and additional work, in addition to the G-series of nerve gases, both sides tested and deployed the V-series of increasingly deadlier materials, both chemical and biological. See, generally, id. Eventually, the increasing possibility of actual use in warfare, accidental releases,193 criminal or inadvertent transfers194 of chemical or biological weapons to other countries or non-state actors,195 and the possibility of independent development and deployment by terrorists,196 pushed the main actors towards signing and ratification of two new conventions.

On April 10, 1972 the Bacteriological and Toxin Weapons Convention was opened for signature and it entered into force on 26 March 1975, when twenty-two governments had deposited their instruments of ratification. It was the first multilateral disarmament treaty banning an entire class197 of weapons. As of July, 2009, The Biological Weapons Convention currently has 163 States Parties and 13 signatories. There are 19 states which have neither signed nor ratified the Convention.198 The United Kingdom, the United States and the Russian Federation are the depositaries of the Convention. States Parties to the Biological Weapons Convention undertake "never in any circumstances to develop, produce, stockpile or otherwise acquire or retain:

197 As opposed to types of weapons like exploding bullets under the St. Petersburg Convention, Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight. Saint Petersburg, 29 November / 11 December 1868. 198 United Nations Offices at Geneva website, http://www.unog.ch/80256EE600585943/(httpPages)/7BE6CBBEA0477B52C12571860035FD5C?OpenDocument.

199 The key provisions are: Article I, Never under any circumstances to acquire or retain biological weapons ;Article II To destroy or divert to peaceful purposes biological weapons and associated resources prior to joining; Article III: Not to transfer, or in any way assist, encourage or induce anyone else to acquire or retain biological weapons ; Article IV: To take any national measures necessary to implement the provisions of the BWC domestically; Article V: To consult bilaterally and multilaterally to solve any problems with the implementation of the BWC; Article VI: To request the UN Security Council to investigate alleged breaches of the BWC and to comply with its subsequent decisions; Article VII: To assist States which have been exposed to a danger as a result of a violation of the BWC; and Article X: To do all of the above in a way that encourages the peaceful uses of biological science and technology. http://www.unog.ch/80256EE600585943/(httpPages)/04FBBDD6315AC720C1257180004B1B2F?OpenDocument. 200 See, discussion supra at __. 201 Although at least some experts have told the author that engineered viruses are, for all intents and purposes, nanomachines. This information was obtained at a conference with the author, Washington, D.C., July 8, 2009, in which he agreed to keep confidential the names of participants and specific quotations.

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

As noted above both the BWC and the CWC incorporate the 1925 Protocol. That incorporation is important for several reasons discussed above,200 but it also operates as a gap-filler in any potential areas of doubt where an argument might be made that an engineered virus was not the equivalent of a nanomachines201, and yet not a living thing intended to fall with the

BWC.202 In fact, there is an overlap between the two treaties, both because of incorporation of the 1925 Protocol and because they both cover toxins.203 It is that overlap and incorporation which must inform analysis of application to new and developing nanomaterials. C 1993 Chemical Warfare Convention

202 Given the inclusion of smallpox, http://en.wikipedia.org/wiki/Smallpox, (which is caused by infection with variola virus) within the BWC, even though a virus is not per se a living thing, Cf International Committee on Taxonomy of Viruses (ICTV), http://www.ictvonline.org/index.asp?bhcp=1,and the scientific conclusion that a virus is a biological entity, [See, Robert Edwards and Forest Rohwer, Viral Metagenomics, Nature, June, 2005 pp.504-510, http://www.nature.com/nrmicro/journal/v3/n6/abs/nrmicro1163.html, ―Viruses, most of which infect microorganisms, are the most abundant biological entities on the planet.‖ Emphasis added. ] there seems no doubt the BWC could be fairly interpreted to include even engineered viruses. Since predictability is the essence of law, ―The object of our study [of law] is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.‖ Oliver Wendell Holmes, Jr, The Path Of The Law, 10 Harvard Law Review 457 (1897), however, wisdom argues for taking all steps necessary to ensure their treaty coverage when they are used for banned purposes. 203 There is overlap between biological warfare and chemical warfare as the use in war of toxins, whether produced by living organisms, or otherwise, ―is banned under the provisions of both the [BWC] and the [CWC]. (Toxins of organic origin are often called "midspectrum agents".)‖ http://en.wikipedia.org/wiki/Biological_warfare. Considerable interpretative value may be found in definitional section of the relevant U.S. federal statute. 18 U.S.C. S. 178 2-4 defines criminally banned biological weapons: (2) the term "toxin" means the toxic material or product of plants, animals, microorganisms (including, but not limited to, bacteria, viruses, fungi, rickettsiae or protozoa), or infectious substances, or a recombinant or synthesized molecule, whatever their origin and method of production, and includes - (A) any poisonous substance or biological product that may be engineered as a result of biotechnology produced by a living organism; or (B) any poisonous isomer or biological product, homolog, or derivative of such a substance; (3) the term "delivery system" means - (A) any apparatus, equipment, device, or means of delivery specifically designed to deliver or disseminate a biological agent, toxin, or vector; or (B) any vector; (4) the term "vector" means a living organism, or molecule, including a recombinant or synthesized molecule, capable of carrying a biological agent or toxin to a host; 204 The United Nations‘ Department for Disarmament Affairs describes it as ―a decade of long and painstaking negotiations…‖ http://www.un.org/Depts/dda/WMD/cwc/. 205 Even before it was opened for signature, the U.N. General Assembly passed a Resolution on November 30, 1992, ―Bearing in mind the Final Declaration of the Conference of States Parties to the 1925 Geneva Protocol and Other Interested States, held in Paris from 7 to 11 January 1989, in which participating States stressed their determination to prevent any recourse to chemical weapons by completely eliminating them…‖ General Assembly Resolution 47/39, November 30, 1992. http://www.un.org/documents/ga/res/47/a47r039.htm. Emphasis added.

The CWC was the culmination of a long period of international negotiation.204 The Convention was opened for signature205 on January 13, 1993 and signed by 188 states as of

October, 2008.206 On October 31, 1996, the 65th State207 deposited its instrument of ratification, thus triggering the entry into force of the CWC on April 29, 1997.208

206 There were 184 states parties and four states had signed but not ratified as of October, 2008. See, Arms Control Association Fact Sheet, http://www.armscontrol.org/factsheets/cwcsig. 207 As of July, 2009, there were 188 parties. See, United Nations Treaty Collection. Accessed, July 24, 2009. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-3&chapter=26&lang=en. 208 Fn 164, supra. 209 All Parties agree to disarm by destroying any stockpiles of chemical weapons they may hold and any facilities which produced them, as well as any chemical weapons they abandoned on the territory of other States Parties in the past. 210 Key language includes definitions in Article II including 1. "Chemical Weapons" means the following, together or separately: (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; and c) Any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in subparagraph (b); and 2. "Toxic Chemical" which means: ―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.‖ 211 http://www.opcw.org. 212 Examples are mustard gas and nerve agents, and substances which are solely used as precursor chemicals in their manufacture.

The CWC is designed to eliminate an entire category of weapons of mass destruction209 by prohibiting the development, production, acquisition, stockpiling, retention, transfer or use of chemical weapons.210 It is administered by the Organization for the Prohibition of Chemical Weapons (OPCW),211 which conducts inspection of military and industrial plants in all of the member nations as well as working with stockpile countries. It identifies three classes of controlled chemicals which can either be used as weapons or in the manufacture of weapons. Classification is based on the quantities of the substance produced commercially for legitimate purposes. Each class is split into Part A, which covers chemicals that can be used directly as weapons and Part B which includes chemicals useful in the manufacture of chemical weapons.

The CWC incorporates Annexes which provide criteria for defining banned or controlled chemicals. Schedule 1 chemicals have few or no uses outside of chemical weapons. These may be produced or used for research, medical, pharmaceutical or chemical weapon defense testing purposes but production above 100 grams per year must be declared to the OPCW. A country is limited to possessing a maximum of 1 ton of these materials.212 Schedule 2 chemicals have legitimate small-scale applications. Manufacture must be declared and export to non-CWC countries is limited. Schedule 3 chemicals have large-scale industrial uses apart from chemical

213 For example phosgene, a precursor in the manufacture of many legitimate organic materials. 214 These are any carbon compounds apart from long chain polymers, oxides, sulfides and metal carbonates, e.g. organophosphates. 215 Article III of the CWC requires parties to declare possession or all current and old chemical weapons, as well as production facilities.

The treaty also deals with ―discrete organic compounds‖214 The OPCW must be informed of, and can inspect, any plant producing (or expecting to produce) more than 200 tons per year, or 30 tons if the chemical contains phosphorus, sulfur or fluorine, unless the plant solely produces explosives or hydrocarbons. In the United Nations‘ Guide to Negotiations about the CWC, Thomas Bernauer accurately reports that: The Geneva Protocol of 1925 and the Biological Warfare Convention of 1972 are relatively simple as far as their content and mechanisms of implementation are concerned. It became increasingly clear at the beginning of the 1970s that such a simple approach to a comprehensive ban on chemical weapons was not acceptable to some countries, particularly the United States and the United Kingdom. One of the reasons given was that chemical weapons had a higher military value than biological…Therefore, especially Western countries believed that international verification of compliance with a total prohibition of chemical weapons should be more intrusive in order to ensure the security of all parties to the agreement. Thomas Bernauer , The Projected Chemical Weapons Convention: A Guide to Negotiations in the Conference on Disarmament, United Nations (New York, 1990) at p.1.

All parties to the CWC agree under Article I, inter alia, never to develop, produce, acquire, possess, transfer, prepare to use, or use chemical weapons. Together with the definitions discussed above, the declaration requirement,215 and the creation of the OPCW, the Convention creates a regime with very broad reach indeed. Taken with the incorporation of the 1925 Protocol and the parallel obligations of the BWC there is a very high probability that most nanotechnology products with toxic or poisonous application in war will fall within the regime. In addition, there are a number of other potentially applicable treaties and international law doctrine which are worth at least a brief mention here. IV Other Potentially Applicable Treaties and Doctrines

In addition to the treaties discussed above,216 number of other treaties, as well as other binding international law, may also impact nanoparticles and nanomimics, and their use as weapons of war.217 The principal additional treaties are Geneva Conventions III218 and IV219 of 1949, and the 1977 Protocol,220 but other treaties and some general doctrines221 may also be implicated, including the early poison conventions, the Convention on Conventional Weapons,222 and the Environmental Modification Convention.223 A

216 Howard Levie, A Lookback at the Efforts to Eliminate Chemical Warfare, XXIX 1-2 The Military Law and Law of War Review 289 (1990). 217 See Generally, Joseph Kelly, Gas Warfare in International Law, 9 Mil. Law. Rev. 1 (1960). 218 Geneva Convention (III) Relative to the Treatment of Prisoners of War; August 12, 1949. 219 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. 220 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. 221 See discussion below, infra, at __, of general doctrines such as unnecessary suffering, proportionality and military necessity.

222 The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects as amended on 21 December 2001. 223 Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification techniques, Signed in Geneva May 18, 1977. 224 Fn ___, supra. 225 Fn __ supra.

227 Note that the International Committee of the Red Cross Commentary relative to protection of POWs from air raids specifically mentions gas protection: The requirement that prisoners of war must have shelters against air bombardment "to the same extent as the local civilian population" implies that either shelters must be supplied for prisoners of war in the same conditions as for the civilian population… If civilian workers employed in a particular industry are issued with special equipment for use during air-raids (gas masks, protective clothing, etc.), such equipment must also be made available to prisoners of war. Paragraph 2—Air Raid Shelters, ICRC Commentary to GC III (Emphasis added).

The Prisoner of War (POW) Convention224 and the Civilians Convention225 include several articles which generally impact gas warfare in the context of POWs. Those particularly include POW Article 18,226 which requires continued gas protection,227 and Civilians Articles

85228 and 88229 which require gas protection for internees.230 Other relevant provisions are found in the Protocol One231 to the 1949 Conventions.232 Whilst a large part of Protocol One is in at

228 Art. 85. The Detaining Power is bound to take all necessary and possible measures to ensure that protected persons shall, from the outset of their internment, be accommodated in buildings or quarters which afford every possible safeguard as regards hygiene and health, and provide efficient protection against the rigors of the climate and the effects of the war. 229 Art. 88. In all places of internment exposed to air raids and other hazards of war, shelters adequate in number and structure to ensure the necessary protection shall be installed. In case of alarms, the measures internees shall be free to enter such shelters as quickly as possible, excepting those who remain for the protection of their quarters against the aforesaid hazards. Any protective measures taken in favor of the population shall also apply to them. 230 In a 1991 Report relative to the Persian Gulf War, submitted to the United Nations Security Council by the Secretary General, he discusses Israeli legal analysis of its required protection of Palestinians in what the U.N. has characterized as Israeli occupied territories: 11. It should be noted that resolution 681 (1990) was adopted at a time of great tension in the region as a whole, where the crisis between Iraq and Kuwait and the prospect of military hostilities were uppermost in the minds of people throughout the area. In this connection, a source of concern to the international community, including the United Nations organizations operating in the occupied territories, was the policy of the Government of Israel regarding the provision of gas masks to the Palestinian population. Since the inception of the crisis, Iraq had repeatedly threatened to attack Israel with conventional and non-conventional weapons in the event of hostilities. As part of its civil defense procedures, Israel provided to its citizens gas masks and related equipment for protection against a chemical attack. The Israeli authorities also issued gas masks to the Palestinian residents of Jerusalem. United Nations officials in the area repeatedly expressed concern about the need of the Palestinian population as a whole to be given such equipment. On 14 January 1991, the Israeli High Court of Justice ruled as follows: "The Military Commander must indeed exercise equality in the area. He may not discriminate between residents. When the Military Commander has reached the conclusion that protective kits must be distributed to Jewish residents in the area, protective kits must also be distributed to the area's Arab residents". The High Court ordered that: First, the 173,000 gas masks presently in stock in emergency warehouses must be immediately distributed to adults living in the areas surrounding Jerusalem, as well as in those areas near the Green Line. Second, all efforts possible should be made to secure masks for the children of these adults, and these masks must be distributed immediately upon their being obtained. Third, all residents of the area should receive masks immediately upon their being purchased by the Military Commander. The Military Commander must make every possible effort to secure these masks as soon as possible". Despite the urgency expressed in the decision of the High Court, the distribution of gas masks from Israel's existing stock proceeded slowly. The IDF spokesman's office told B'Tselem, an Israeli human rights organization, that, as of 2 February 1991, 50,000 masks had been given out. Those that were distribution lacked the atropine and decontamination powder contained in the kits provided to Israeli citizens. Few, if any, masks were made available to Palestinian children. Furthermore, the vast majority of Palestinian detainees - many of whom are housed in tents and therefore more vulnerable in the event of an attack - were not given gas masks. For its part, UNRWA launched an appeal and received, from international donors, 62,000 masks for adults. Its distribution of the masks was slowed by the fact that the Israeli authorities requested that they be delivered on a house-to-house basis during the curfews. S/22472, 9 April 1991, Report Submitted to the Security Council by the Secretary-General in Accordance with resolution 681 (1990) at Paragraph 11 (Emphasis added).

231 This article largely deals with international armed conflicts, and the discussion is only of Protocol One, but the principles would be precisely the same in a non-international conflict (excluding police use of lacrimators) as in Iraqi use against its citizens. Thus, Protocol Two‘s strictures are at least worth noting as relevant. 232 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. 233 That analysis may, of course, be mooted by the self-evident fact that development, production and use of nanomimics represents a specific intent to avoid, and not to comply with, the strictures of international law. 234 Art 51. - Protection of the civilian population 1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances…. 4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. 5. Among others, the following types of attacks are to be considered as indiscriminate: (a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and (b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated….

While much of the discussion of nanoweapons here presents an argument that they are simply old swine in new battles, to the extent that nanomimics do indeed represent anything not covered by existing conventions, Article 36 would clearly require advance determination of their legality.233 Other Protocol provisions are relevant, including, in particular, protection of the civilian populace,234 and precautions required in attacks.235

within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them; (ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss or civilian life, injury to civilians and damage to civilian objects; (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit. 3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects. 236 Instructions for the Government of Armies of the united States in the Field, prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863. 237 Id at Article 70. 238 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996, I.C.J. 8 at paragraph 55.

The ban on poisonous weapons is an ancient one. The first comprehensive modern articulation regulating armed conflict is General Order 100236 which provides, inter alia, that ―The use of poison in any manner, be it to poison wells, or food, or arms, is wholly excluded from modern warfare. He that uses it puts himself out of the pale of the law and usages of war.‖237 The stricture, however, goes back well before the 19th century. As Julian Robertson points out: …proscription of toxic weapons seems almost as ancient as the weapons themselves. The earlies surviving references to toxic warfare are probably those in the Indian epics…and it is to the Manu laws of India, which forbade the use of poison weapons, that a line of ancestry can be drawn…It is a culturally diverse ancestry, reaching back not only through Hague and Roman law through Grotius, but also through the warfare regulations which the Saracens derived from the Koran. Julian Robinson, fn __, supra at p. 17.

According to the International Court of Justice in the Nuclear Weapons Advisory Opinion, to qualify as poisonous, that must be the ―prime or even exclusive effect‖ of a weapon.238 Thus, Article 23(a) of the Annex to the Hague Convention of 1907 which provides that ―[i]t is especially forbidden to employ poison or poisoned weapons,‖ might appear directly relevant to any analysis. The language, however, must be balanced against its past interpretations, and the rejection by states generally of any applicability to poisonous or asphyxiating gases. See generally, Kelly, supra at fn__, at 44.

In any case, as they concerned toxic and asphyxiating gases and smokes, the early bans against poisons were ignored or distinguished by state usage, and have been superseded by the more specific conventions discussed above.239 C The Conventional Weapons Convention

239 That is, the 1925 Protocol, the BWC and the CWC are, due to their specificity and effectiveness, the recognized source of international law at this point. See, Clive Parry, The Sources and Evidences of International Law, Manchester (1965). 240 Fn ___, supra. 241 Amended May, 1996.

242 Certainly, in past usage, both the U.S. and the U.S.S.R. extensively developed mines directly designed to deploy toxic or asphyxiating gas. Stuart Tomlinson, Last Nerve Gas Landmine Destroyed at Umatilla Facility, The Oregonian, November 06, 2008.

243 See, definitions, infra. 244 Amended Protocol II entered into force in 1998. The 76 countries bound by the protocol include most of the world‘s major current or past landmine producers—China, India, Israel, Pakistan, Russia, and the United States—which have refused to join the Ottawa Convention banning anti-personnel landmines.

The only potentially applicable portion of the Convention on Conventional Weapons240 appears to be Amended241 Protocol II which covers landmines,242 booby-traps and ―other devices.‖243 Amended Protocol II244 highly regulates but does not ban the use of landmines and booby-traps. Anti-personnel landmines must be kept in clearly marked and protected minefields or be equipped with self-destruct and self-deactivation mechanisms that disarm and render the mine unusable after a relatively short time. Mines scattered from aircraft or by artillery or missiles require self-destruct and deactivation mechanisms. Anti-personnel mines must be detectable using common mine detection equipment to enable location and safe removal after a conflict ends. Mine clearing responsibility rests with the government controlling territory in which mines are located. While in the past, the chemical weapon interest in mines was exclusively in their use as deployment devices, it is interesting to look at some of the definitions in Amended Protocol II.245

functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act. 246 Article II.1. 247 Such as, for example, breathing. 248Article 3 General restrictions on the use, of mines, booby-traps and other devices: 1. This Article applies to: …(b) booby-traps; and (c) other devices (Note that the definition of ―other devices‖ 5. "Other devices" means manually-emplaced munitions and devices including improvised explosive devices designed to kill, injure or damage and which are actuated manually, by remote control or automatically after a lapse of time‖ probably eliminates s nanoweapons from within its ambit). 3. It is prohibited in all circumstances to use any mine, booby-trap or other device which is designed or of a nature to cause superfluous injury or unnecessary suffering. 7. It is prohibited in all circumstances to direct weapons to which this Article applies, either in offence, defense or by way of reprisals, against the civilian population as such or against individual civilians or civilian objects. 8. The indiscriminate use of weapons to which this Article applies is prohibited. Indiscriminate use is any placement of such weapons: (a) which is not on, or directed against, a military objective. In case of doubt as to whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used; or (b) which employs a method or means of delivery which cannot be directed at a specific military objective; or (c) which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 9. Several clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects are not to be treated as a single military objective. 249 Id. at 3.7. 250 Id at 3.8.

Specifically, while a mine means ―a munition…designed to be exploded…,‖246 the definition of a ―booby-trap‖ is much broader. It includes: …any device or material which is designed, constructed or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act. Article II. 4 (Emphasis added).

The facial argument for coverage of nanomimic devices as booby-traps, at least in circumstances where they affect a person performing an apparently safe act,247 is actually rather compelling. That argument is bolstered by Article 3248 of Amended Protocol II which prohibits deployment against civilians249 or in an indiscriminate fashion.250

It is interesting to note that the preamble of the 1925 Convention says ―the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices, has been justly condemned by the general opinion of the civilized world,‖ and that of the CWC affirms its signatories are ―Determined for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons, through the implementation of the provisions of this Convention, thereby complementing the obligations assumed under the Geneva Protocol of 1925…‖ Those statements encapsulate the core of the humanitarian argument against gas weapons from their inception. The reader should be familiar with the basic doctrines including military necessity,251 proportionality,252 unnecessary suffering,253 chivalry,254 general war crimes,255 treachery256 and general ―humanitarian law‖257 against which we check all new

251 Military necessity is ―such destruction, and only such destruction, as is necessary, relevant and proportionate to the prompt realization of legitimate military objectives.‖ Myers McDougal and Florentino Feliciano, Law and Minimum World Public Order, (Yale University Press, 1961) p.72. According to the U.S.M.C. Law of War Deskbook (1992) its elements include that the force used is a) capable of being regulated, b) necessary to achieve enemy submission as soon as possible, and consistent with military security requirements, c) not greater than needed to achieve enemy submission (in terms of the overall conflict) and d) is not otherwise prohibited. 252 Military necessity must, however, be applied in the context of the prohibitory effect of the law of war. That is, belligerents are required to ―refrain from employing any kind or degree of violence which is not actually necessary for military purposes and that they conduct hostilities with regard for the principles of humanity and chivalry.‖ U.S. Army Field Manual 27-10, The Law of Land Warfare (Department of the Army, 1956).¶3 a. 253 See, e.g, the language of the St. Petersburg Declaration of 1868 which prohibits in certain instances ―…the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable…‖ 254 Sir Hersch Lauterpacht comments in Manual of Military Law, Part III, The Law of War on Land, (HMSO London, 1958) at p.2, that chivalry ―…demands a certain amount of fairness in offense and defense, and certain mutual respect between the opposing forces.‖ 255 General war crimes are those acts not specifically forbidden by treaty but which have been determined by practice to violate the laws and customs of war. For example, treacherous conduct, while not necessarily generally forbidden by treaty (although specific treacherous acts such as misuse of flags of true are covered by e.g. Hague Regulations, (1907) Article 23, Paragraph f). 256 Castren argued in 1954 that: So far, the use of [easily detectable] gas in warfare has …not been treacherous. But when and if, as is likely, entirely odorless and invisible poisonous gases are invented, there will be no legal difference between the use of them and other poison.‖ Eric Castren, The Present Law of War and Neutrality (Helsinki, 1954) at 194. Kelly, supra at fn __, appears to be correct that Castren‘s position was rejected by state practice.

257 In an Official Statement, the International Committee of the Red Cross defines International Humanitarian Law as ―…the body of rules applicable in armed conflict which protect those not or no longer taking active part in hostilities [and] regulate permissible means and methods of warfare.‖ April 23, 2005, Official Statement, Humanitarian Law, Human Rights and Refugee Law – Three Pillars, http://www.icrc.org/web/eng/siteeng0.nsf/html/6T7G86, adopting Statement at the International Association of

Refugee Law Judges world conference, Stockholm, 21-23 April 2005, by Emanuela-Chiara Gillard, ICRC Legal Adviser. 258 For further reading in the general area, the interested reader is directed to Professor Levie‘s excellent 1990 analysis. See, Howard Levie, supra at fn__. See also, Joseph Kelly, supra at fn__, pp. 47-52. 259 For that purpose see, e.g. John Norton Moore, Treaty Interpretation, The Constitution and the Rule of Law, Richard Gardiner, Treaty Interpretation, (Oxford University Press, 2008) at 147-148, and Ruben Volker Ed et al Developments in International Law in Treaty Making 260 Hanspeter Neuhold lists four requirements for a treaty to create an effective legal regime: 1) Speed, 2) clarity and uniformity, 3) universality of participation and 4) flexibility and adaptability. Regarding the second requirement, he notes that a treaty may be ineffective ―…because its provisions are ambiguous, or because the obligations it imposes are not identical for all parties.‖ Rudiger Wolfram and Volker Roben, eds., Developments of International Law in Treaty Making, Hanspeter Neuhold, The Inadequacy of Law-Making by International Treaties‖ ―Soft law‖ as an Alternative? (Heidelberg, 2005) at 43. 261 Vienna Convention on the Law of Treaties, 1969, entered into force 27 January, 1980 UN Treaty Series Volume 1155, p.331. 262 See generally, Richard Kearney and Robert Dalton, The Treaty on Treaties, 64 Am. J. Int‘l L. 495 (1970), E.W. Vierdag, The Law Governing Treaty Relations Between Parties To the Vienna Convention of the Law of Treaties and States Not Party to the Convention, 76 Am. J. Int‘l L. 779 (1982), and Kenneth Vandevelde, Treaty Interpretation From a Negotiator‘s Perspective, 21 Vand. J. Transnat‘l Law, 281 (1988). 263 Note that Section 325(1) specifically follows Article 31(1) of the VCLT, See, Restatement, Section 325 Source Note.

It is not my intention here to write a general treatise on treaty interpretation or on that law as it is interpreted by any particular state.259 Rather, it is to simply articulate certain agreed upon principles of good faith interpretation which should inform application of current treaties to new and developing nanomaterials.260

Article 31(1) of the Vienna Convention on the Law of Treaties261 provides that "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.‖262 United States Courts, while they are less likely than those in many other states to rely solely on international source materials, still espouse the underlying requirement of good faith treaty interpretation. In Sanchez-Llamas the United States Supreme Court notes that good faith requirement:

The United States ratified the [Vienna Convention on Consular Relations] with the expectation that it would be interpreted according to its terms. See 1 Restatement (Third) of Foreign Relations Law of the United States § 325(1)263 (1986) (―An international agreement is to be interpreted in good faith in

accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose‖). Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S.Ct. 2669, U.S.Va.,2006. Emphasis added.

The Court has also specifically recognized the good faith requirement in treaties in the context of those signed with Native American tribes. ―It is circumstances264 such as these which have led this Court in interpreting Indian treaties, to adopt the general rule that ‗(d)oubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.‖265 McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 174, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973). The United States signed in 1970,266 and voluntarily follows, many provisions within the Vienna Convention, but has not ratified the Treaty. Professor Criddle contends that U.S. reluctance to ratify is due to the Supreme Court‘s reliance on domestic ratification materials,267 its deference to executive branch interpretation, and the tendency of U.S. courts to construe treaties in light of domestic interests. Evan J. Criddle, The Vienna Convention on the Law of Treaties in U.S. Treaty Interpretation, 44 Va. J. Int'l L. 431 (2004).268

264 The Court notes that while ―The treaty nowhere explicitly states that the Navajos were to be free from state law or exempt from state taxes… the document is not to be read as an ordinary contract agreed upon by parties dealing at arm's length with equal bargaining positions. We have had occasion in the past to describe the circumstances under which the agreement was reached. ‗At the time this document was signed the Navajos were an exiled people, forced by the United States to live crowded together on a small piece of land on the Pecos River in eastern New Mexico, some 300 miles east of the area they had occupied before the coming of the white man. In return for their promises to keep peace, this treaty ‗set apart‘ for ‗their permanent home‘ a portion of what had been their native country.' Williams v. Lee, 358 U.S., at 221, 79 S.Ct., at 271. 265 The ALI notes that ―Courts in the United States are generally more willing than those of other states to look outside the instrument to determine its meaning. In most cases, the United States approach would lead to the same result…‖ The Restatement (Third) of The Foreign Relations Law of the United States Comment g to Secrion 325 at p.198 American Law Institute (St Paul, Minn, 1990). C.f. United States v. Stuart, 489 U.S. 353, 368, 374, 109 S.Ct. 1183, 1192, 1196, 103 L.Ed.2d 388 (1989). 266 Signed April 24, 1970. 267 Which the Convention reject s limiting reliance to traveaux preparatoires. See, Article 32. 268 Discussing United States v. Alvarez-Machain, 504 U.S. 655 (1992), Criddle specifically mentionsthe good faith requirement, stating, in part, that:

Extradition Treaty by implication. Of course, the Vienna Convention's interpretive framework does not operate mechanically, eliminating the need for courts to exercise ―good faith‖ and sound judgment. Instead, the Vienna Convention's function is primarily heuristic [i.e. a ―rule of thumb based on trial and error], channeling courts' reasoning toward a circumscribed range of internationally acceptable treaty constructions. Id at 494-495. 269 Note that the executive branch supported Medellin‘s position. 270 For a comprehensive, if now slightly dated, discussion of U.S. Supreme Court jurisprudence on treaty law, see, John Norton Moore, Treaty Interpretation, the Constitution and the Rule of Law, Oceana (New Work, 2001), in which Professor Moore makes a compelling argument for rule of law in application of treaties.. 271 See, FN __, supra.

The most recent U.S. word on treaty interpretation is found in Medellin v. Texas, __ U.S. __, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008). There the Court held an International Court of Justice ruling a foreign national had not been informed of his rights under the Vienna Convention on Consular Relations did not pre-empt the State of Texas limitations on filing excessive habeas petitions. That opinion has occasioned critical commentary relating to treaty interpretation by the Supreme Court.269

Perhaps what is most notable about the Medellín majority's approach to treaty interpretation is the extent to which it eschews formalism. Despite the occasional invocation of ―general principles of interpretation,‖ and the broad canon that ―‗interpretation of [a treaty] ... must, of course, begin with the language of the [t]reaty itself,‖‘ these were seemingly confined to the analysis of differentiating a self-executing from a non-self-executing treaty provision, and ostensibly focused on the necessity of a rule for a clear statement of self-execution in the treaty text itself. Nowhere in the Medellín opinions are the most difficult aspects of contemporary treaty interpretation grappled with: When is it appropriate to break from the treaty text? How high should an interpreter's tolerance for ambiguity be? Are all extratextual sources of construction to be treated equally? What intentions matter in treaty interpretation (those of the original treaty drafters or those generated by subsequent practice)? What role is there for a supervening canon of good faith in treaty interpretation so as to ensure that a selected construction does not result in a material breach of the agreement?

David Bederman, Medellin‘s New Paradigm for Treaty Interpretation, 102 AMJIL 529, 539 (2008). (Emphasis added).270

It is fair to say then, that a good faith requirement exists in international law, and that the language of the Restatement (Third) of Foreign Relations Law is certainly applicable in the context of applying the 1925 Protocol and its progeny to nanoweapons. ―An international agreement is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose‖271

But, in light of past arguments over the meaning of words in chemical related treaties,272 what that good faith actually amounts to, may be a matter of at least some controversy. It is that concern which informs a cautious approach to any possible ambiguities in international treaties, especially those regulating armed conflict. It is to the possible ambiguities and their application to nanoweapons that this analysis now turns. VI Application of Current Treaties

272 See, e.g. discussion of chlorine gas in 1915, supra at __, and tear gas during the Vietnam conflict, supra at __. 273 Pinson, supra at fn __, finesses the issue by arguing that because the BWC bans toxins ―whatever their origin or means of production‖ it therefore ―... seems to include s-called mechanical devices that could result from mature nanotechnology, ― so that ―one can argue …nanorobots—can be treated as a toxin if it causes harm similar to already known toxins.‖ He goes on to recognize a counter argument that the BWC ―…seems to deal only with biological organisms...‖ and concludes that ―[p]erhaps the only way nanotechnology can fall under the BWC‘s prohibitions without a doubt as if it were used to artificially create exact replicas of known biological weapons or toxins.‖ Id at 298. His examination of CWC applicability is equally jejune. The essence of his argument is while nanoproducts ―…may not be chemicals in the sense originally conceived of by the CWC drafters, nanotechnology might still be perceived as a functional equivalent and thereby covered under the CWC. Id at 302 (emphasis in original). Without any in-depth analysis, he concludes [―nano-germs‖ and ―nano-assassins‖] ‗…could be prohibited as a toxic chemical under the CWC, as they would have no purpose other than causing harm or death to animals or humans.‖ Id. Then, having concluded the BWC and CWC are inapplicable (and not once having mentioned the CWC‘s applicability to analogous devices under the 1925 Protocol, and having completely ignored the most likely chemical scenario in which existing chemical products are reduced to nanoscale to defeat defensive systems), Pinson proceeds to his argument for the creation of a new international treaty. Id at 302 et seq., in which, he argues inter alia, that ―…because of the vagueness of the word ―chemical‖ any country can argue that nanotech is not covered under this term and thus not prohibited. 274 Predictability is the essence of law and rule of law. Justice Holmes. wrote in 1897 that: The object of our study [of law] is prediction, the prediction of the incidence of the public force through the instrumentality of the courts. The means of study are a body of reports, of treatises, and of statutes…[in which] are gathered the scattered prophecies of the past…These are what properly have been called the oracles of the law. Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system. Oliver Wendell Holmes, Jr, The Path Of The Law, 10 Harvard Law Review 457 (1897).

Depending on the circumstances, and the nanomaterials involved, applicability of the principal treaties here at issue, the BWC and the CWC (with the incorporated 1925 Protocol) ranges from certain to strongly arguable but not entirely certain.273 The principal difficulty in achieving the absolute predictability,274 for which all law strives, is the historic tendency of states to find any available loopholes in wartime; interpretations of law which are rejected by the vast majority of states but which still have a certain plausibility. In the last century there were two

particular examples involving use of gas in arguable violation of existing bans; Germany in World War One,275 and the United States in Vietnam.

275 This does not reject the German claim that the Allies used some sorts of gas before 1915. Whether it was toxic or asphyxiating is open to more debate. Certainly, the Allies used it after that date as a reprisal. See, discussion, supra at __. 276 See, section __, supra. 277 L.F. Haber, supra at __. 278 See, discussion at Section __, supra. As noted, among the interpretative questions were whether ―asphyxiating‖ cover gases which worked through other means such as skin absorption, if ―poison‖ covered non-lethal or allegedly non-lethal weapons, whether release of gas from cylinders within the coverage of the ban on ―projectiles‖ and if fine powders wereconsidered as gases if they had the same effect? 279 Others, after the Great War, who wanted to keep gas as a viable weapon, argued that Germany had, in fact. Been technically correct. See, e.g. Fries, supra, at __. 280 See, section __, supra. 281 United States combat involvement stopped in 1973, Samuel Lipsman and Stephen Weiss, The Vietnam Experience: The False Peace, 1972-74, Boston Publishing Company (Boston, 1985), and the War itself ended in a Communist victory in 1975, Clark Dougan and David Fulghum, The Vietnam Experience: The Fall of the South, Boston Publishing Company (Boston, 1985). 282 But, of course, gas could be, and was, used to drive enemy troop out from the protection of bunkers and caves so that they could be captured , or killed by lawful means. Jonathan Tucker, supra, fn __, at p. 223 283 See, discussion, supra at ___.

Germany‘s use of gas on a large scale commencing in 1915, the German legal analysis, and the ensuing argument regarding violation of the Hague ban, has been discussed above.276 As Haber notes, ―…[Germany] argued at the time and later, that i) the Conventions did not cover gas blown from cylinders, ii) the Allies had used gas first, iii) gases were not poisonous, and after the war, gas shells were implicitly excluded because they were not causing needless suffering…‖277 There were certainly ambiguities in the then existing treaties,278 and all sides mercilessly exploited them. Germany‘s legal arguments279 were not, however, the only instance of a technical legal argument exploiting treaty ambiguity to justify the use of gas in an armed conflict. The United States adopted the same approach regarding tear gas during the Vietnam conflict.

In some ways the U.S. argument regarding tear gas in Vietnam was an even further stretch than that of Germany in World War One. First, the intent of the treaty drafters in 1925 seems considerably clearer than the general principles espoused at The Hague.280 Second, there was even more general agreement among major powers that tear gas was banned as a weapon of war. On the other hand, of course, the United States had not ratified the 1925 Protocol and did not do so until after the end of the war in Vietnam,281 and tear gas was, on its own,282 not nearly as obnoxious as other chemical weapons. Nevertheless, given the general attachment of the United States to the English language, there is a certain air of unreality in an argument based on the use of the word ―similaires‖ in the French version of the Protocol as opposed to the English version‘s use of ―other.‖283 In any case, both examples are demonstrative that it is wise to make a close reading of any treaty purporting to govern new weapons technology.

Certainly, the treaties are applicable to nano-sized particles of substances covered by existing conventions. The CWC by its language applies to ―Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes.‖284 Toxic Chemical means: ―Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.285 Most importantly, ―[t]his includes all such chemicals,286 regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.‖ 287 (Emphasis added).

284 CWC Article II, 1. 285 Id. 286 The Annex on Chemicals to the CWC, Part A. Guidelines for Schedules of Chemicals Guidelines for Schedule 1, provides in part that ―…a toxic chemical or precursor should be included in Schedule 1…‖ if it …‖It has been developed, produced, stockpiled or used as a chemical weapon as defined in Article II…‖ Article VI of the Convention subjects ―…chemicals listed in Schedule 1 …to the prohibitions on production, acquisition, retention, transfer and use as specified in Part VI of the Verification Annex.‖ Part VI provides, in pertinent part, that parties to the CWC ― …not produce, acquire, retain or use Schedule 1 chemicals…‖ outside their territory or transfer them except to other states party, and then only if ―…the chemicals are applied to research, medical, pharmaceutical or protective purposes; and ―the types and quantities … are strictly limited to those which can be justified for such purposes;‖ and ―the aggregate amount of such chemicals at any given time for such purposes is equal to or less than 1 ton… and ―the aggregate amount for such purposes acquired by a State Party in any year through production, withdrawal from chemical weapons stocks and transfer is equal to or less than 1 ton.‖ 287 ―CWC Article II, 2. 288 Subparagraph 1(a) means that all toxic chemicals and their precursors are chemical weapons, except where they are intended for purposes not prohibited under the Convention and provided further that the types and quantities of such toxic chemicals and precursors are consistent with such permitted purposes. The intention of this broad definition is to prohibit all known and unknown, and future toxic chemicals in types and quantities that cannot be justified for permitted purposes. Thus novel, as well as traditional chemical agents, are captured by this definition. Article-By-Article Analysis of the Chemical Weapons Convention, submitted to the Senate in Treaty Doc. 103-21, Hearings before the Committee on Foreign Relations, United States Senate, One Hundred Third Congress, second session, March 22, April 13, May 13, and June 9, and 23, 1994. 289 These weapons have been seen in gas, liquid and solid forms, see discussion supra at __. 290 With the exception of the medical, pharmaceutical and similar exceptions of Part VI, See, fn __, supra.

Clearly, under the definitions and guidelines of the CWC, any of the chemical weapons which existed, or might in the future exist,288 in national arsenals, whether asphyxiating, vesicant, nerve agents or lachrymatory, are banned in whatever physical form289 they might exist,290 including their reduction to nano size particles. Although the actual physiological effects of nano sized particles of a banned substance might be different (and most likely made more effective as a weapon), the chemical content remains the same, and there is no question such a

Current cancer research291 has reached the stage where ―first generation nanoscale devices, are being used as drug delivery292 vehicles293 in several products.‖294 The ability to deliver toxic chemicals to specific cells in sufficient quantities for cancer treatment certainly suggests the application on nanotechnology as a delivery system for banned chemical weapons. Clearly, however, in addition to CWC coverage of the toxic content of any such carrier, there should also be additional coverage under the terms of the treaty and the incorporated 1925 Protocol.

291 For a good overview see, Gorka Orive, Rosa Maria Hernandez, Alicia R. Gascon, and José Luis Pedraz, Micro and Nano Drug Delivery Systems in Cancer Therapy, Laboratory of Pharmacy and Pharmaceutical Technology, Faculty of Pharmacy, University of the Basque Country, Vitoria–Gasteiz, Spain (2005), http://www.cancer-therapy.org/CT3A/HTML/13.%20Orive%20et%20al,%20131-138%20.html. 292 As a specific example, see Nanotechnology Now, Abstract, posted March 27th, 2007: [Researchers at Yale are testing] the efficacy and safety of using targeted liposomal nanoparticle vectors — lipid-covered, gene delivery packets — to deliver a therapy [they call ―Icon‖] in animal models of human metastatic prostate cancer. "While we can directly inject the purified Icon molecule into the bloodstream, this procedure is less effective than having the Icon synthesized in vivo" …. "We prefer to deliver the Icon gene to tumor cells, so that they cause their own destruction." The Yale scientists previously used a virus to deliver the Icon gene, a system that was effective and safe in animal models and is being prepared for a clinical trial.

http://www.nanotech-now.com/news.cgi?story_id=21501. (Emphasis added).

293 See, generally, article bibliography at http://nano.cancer.gov/resource_center/sci_biblio_enabled-therapeutics.asp. 294 See, fn __, supra. 295 Note that Article I, Paragraph 2 of the BWC contains a similar ban on ―Weapons, equipment or means of delivery designed to [Microbial or other biological agents, or toxins] use [them] for hostile purposes or in armed conflict.‖

Article II, Paragraph 1 of the CWC provides that "Chemical Weapons" means the following, together or separately:… (b) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of… toxic chemicals … which would be released as a result of the employment of such munitions and devices…‖295 Devices ―designed to cause death or other harm‖ through release of toxic chemicals is a clear description of nano delivery systems when used to deliver banned substances. That coverage is unquestionable when compared and contrasted with the 1925 Protocol which is incorporated into the CWC.

The Protocol bans ―…asphyxiating, poisonous or other gases and …all analogous liquids materials or devices.‖296 As was demonstrated at length above, the ―analogous device‖ language in the Protocol springs from a concern of the original drafters with asphyxiating and toxic materials other than gas297, and its inclusion in the CWC along with the a specific ban of ―munitions and devices‖ which ―release…toxic chemicals‖ represents explicit recognition that 1) such devices needed to be separately banned and 2) the 1925 Protocol‘s prohibition of analogous devices dealt with something other than delivery systems.

296 1925 Geneva Protocol, supra, at FN __. 297 See discussion at ___, supra. 298 Senate Resolution 75 (S. Res. 75, April 24, 1997 attached several conditions to CWC ratification. Condition 9,―Protection of Advanced Biotechnology,‖ requires the President to certify to Congress on an annual basis that ``the legitimate commercial activities and interests of chemical, biotechnology, and pharmaceutical firms in the United States are not being significantly harmed by the limitations of the Convention on access to, and production of, those chemicals and toxins listed in Schedule 1. 299 Article VI, Section 1. Of the CWC says that ―Each State Party has the right, subject to the provisions of this Convention, to develop, produce, otherwise acquire, retain, transfer and use toxic chemicals and their precursors for purposes not prohibited under this Convention.‖ Article II, Paragraph 9, of the CWC specifically defines that ―Purposes Not Prohibited Under this Convention" means: (a) Industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes; (b) Protective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical weapons; (c) Military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare; and (d) Law enforcement including domestic riot control purposes.‖ There is no legitimate argument that the exception does not also cover delivery devices such as agricultural sprayers (which have been used as chemical weapons delivery systems), Michael Keane, Dictionary of Modern Strategy and Tactics (Naval Institute Press, 2005) at 35. 300 AEPI supra at 27 Recommendation d.

There can be no question then that the CWC bans, except in certain limited circumstances, nanodevices designed to cause death or other harm through the release of toxic chemicals. Many such devices, of course, will be dual use objects which can be used, at least with modifications for both good and ill. The CWC, however, has anticipated that problem and it is indisputable that it will not be applicable to ban nano devices which carry out legitimate medical research or treatment,298 or indeed, anything except illegal activity.299

The textual analysis above, however, brings us to the only possible question which might remain open in this paper. Do the relevant conventions, the CWC, the BWC and the 1925 Protocol incorporated in both, taken together act as an absolute ban on the production and use of nano sized devices which can mimic banned chemicals, microbial or other biological agents, or toxins? In sum, we have returned to the AEBI‘s inquiry ―if nanomachines are chemical weapons under the provisions of the Chemical Weapons Convention.‖300

1. The drafters‘ intent in the 1925 Protocol
2. The drafters‘ intent in the CWC (and the BWC) to the extent it is implicated
3. Textual comparison of the three treaties
4. That all these weapons either cause a chemical or biological reaction of some sort
5. International law‘s good faith requirement for treaty interpretation

Each of those arguments is compelling; taken together they are overwhelming. Let us examine each of those points seriatim. 1 Drafters‘ Intent in the 1925 Protocol

As was discussed above,301 the language of the 1925 Protocol, taken directly from Versailles in 1919, and the 1922 Washington Treaty, was specifically informed by the existence and effective use in the Great War of chemical weapons other than gases.302 It is clear that the drafters 1) were well aware of the problems caused by fine particles capable of passing through protective masks which neutralized gases,303 2) recognized the distinction between ―processes‖304 and ―devices,‖ but deliberately chose to begin and continue with the word ―devices‖ to describe actual toxic weapons,305 and 3) were fully capable of including (and did include) a delivery device as a separate banned weapon where they thought it appropriate.306

301 See, Section __, supra. 302 See ___, supra. 303 See, ___, supra. 304 That is, in the English language sense of the word. See, discussion of the French translation at __, supra. 305 See, ___, supra.

306 Hence, we see the inclusion of ―flammenwerfer‖ in several of the Post World War One treaties. Note, that a flamethrower is a device for delivering burning fuel, see, ___ supra, and a that later ban incendiary weapons paints in broad definitional strokes (―any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or combination thereof, produced by a chemical reaction of a substance delivered on the target‖) thought it also

307 And the failure of later attempts to change the language, See, e.g. discussion of 193o British Memorandum regarding the League of Nations draft Convention, supra at __. 308 Specifically, the BWC and the CWC. See, ___ and ___, supra.

309 See basic history in Chemical Weapons Negotiations at the Conference on Disarmament, http://dosfan.lib.uic.edu/acda/factshee/wmd/cw/cwcneg.htm . Chronology was created August 13, 1992 and is published in the Electronic Research Collection of the University of Illinois at Chicago. The Electronic Research Collection (ERC) is a partnership between the United States Department of State and the Federal Depository Library at the Richard J. Daley Library, University of Illinois at Chicago (UIC). Identified as Arms Control and Disarmament Agency Document at Federation of American Scientists website which has further chronology through 1998. http://www.fas.org/nuke/control/cwc/news/index.html. 310 Julian Perry Robinson, fn__, supra, 17-36. 311Robinson, Id, describes the U.S. and Soviet positions as ―multifarious.‖ Id at 23. 312 See, e.g. ―General Obligations‖ under CWC Article I. 313 See, e.g. ―Declarations‖ under CWC Article III. 314 CWC at __. 315 CWC at __. 316 CWC at __. 317 CWC at __. 318 Julian Perry Robinson, id at __. 319 See, e.g. U.S.-Russian Joint Statement on Chemical Weapons, Helsinki, Finland, March 21, 1997: The Presidents noted that cooperation between the two countries in the prohibition of chemical weapons has enabled both countries to enhance openness regarding their military chemical potential and to gain experience with procedures and measures for verifying compliance with the Chemical Weapons Convention. The Parties will continue cooperation between them in chemical disarmament. http://www.fas.org/nuke/control/cwc/news/bmd970321f.htm.

Thus, the decision to include307 ―analogous devices‖ alongside the ban on poisonous and asphyxiating gases, was a deliberate ban on use in war of any weapon which was analogous to asphyxiating or toxic gases. Nanomimics fit that description precisely, and the incorporation of 1925 Protocol into later treaties308 strengthens the argument. 2 Drafters‘ Intent in the CWC and BWC

The CWC negotiations were long and detailed,309 in part because the negotiators were specifically concerned with avoiding both evasive conduct310 and outright cheating.311 As a result, the CWC contains both broad312 and specific313 positive314 and negative requirements,315 and a mechanism for continued verification of compliance316 and analysis of possible new violations.317

Given the high Cold War levels of mistrust,318 it was probably inevitable that interim confidence building measures and bilateral treaty negotiations319 were necessary to achieve what

eventually became the CWC.320 The long negotiations and interim steps, however, resulted in a treaty which provided comprehensive coverage,321 including of new research and development: Each State Party to this Convention undertakes never under any circumstances…to develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone CWC at Article I. (Emphasis added). Each State Party shall adopt the necessary measures to ensure that toxic chemicals and their precursors are only developed, produced, otherwise acquired, retained, transferred, or used within its territory or in any other place under its jurisdiction or control for purposes not prohibited under this Convention CWC at Article VII. (Emphasis added).

320 Organization for the Prohibition of Chemical Weapons, About the Convention: Genesis and Historical Development. http://www.opcw.org/chemical-weapons-convention/about-the-convention/genesis-and-historical-development/. 321 For recent discussion see, Arms Control Association, The 2008 Chemical Weapons Convention Review Conference, (April, 2008). http://www.armscontrol.org/pdf/CWC2008_READERWEB.pdf. 322 See generally, About the Organization for Prohibition of Chemical Weapons, http://www.opcw.org/about-opcw/. 323 The BWC also incorporates the 1925 Protocol but in one aspect it is more detailed than the CWC. It specifically provides that Nothing in this Convention shall be interpreted as in any way limiting or detracting from the obligations assumed by any State under the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on June 17, 1925. BWC, Article VIII.

The BWC is considerably less detailed323 but its coverage is at least as broad. Its core is found in Article I, which provides in its entirety: Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain: (1) Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; (2) Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

324 As with the CWC there is a national implementation provision. Each State Party to this Convention shall, in accordance with its constitutional processes, take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition, or retention of the agents, toxins, weapons, equipment and means of delivery specified in article I of the Convention, within the territory of such State, under its jurisdiction or under its control anywhere. BWC, Article IV. 325 See, e.g. Bush administration rejection of Verification Protocol at Fifth Conference. Malcolm R. Dando, Preventing Biological Warfare: The Failure of American Leadership. Palgrave (New York. 2002). 326 1. The Conference reaffirms the importance of Article I, as it defines the scope of the Convention. The Conference declares that the Convention is comprehensive in its scope and that all naturally or artificially created or altered microbial and other biological agents and toxins, as well as their components, regardless of their origin and method of production and whether they affect humans, animals or plants, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes, are unequivocally covered by Article I. 2. The Conference reaffirms that Article I applies to all scientific and technological developments in the life sciences and in other fields of science relevant to the Convention. 3. The Conference reaffirms that the use by the States Parties, in any way and under any circumstances, of microbial or other biological agents or toxins, that is not consistent with prophylactic, protective or other peaceful purposes, is effectively a violation of Article I. The Conference reaffirms the undertaking in Article I never in any circumstances to develop, produce, stockpile or otherwise acquire or retain weapons, equipment, or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict in order to exclude completely and forever the possibility of their use. The Conference affirms the determination of States Parties to condemn any use of biological agents or toxins for other than peaceful purposes, by anyone at any time. Article I of Final Declaration of Sixth Review Conference of the States Parties to the [BWC], (Geneva, 20 November - 8 December 2006) 327 See, generally, Nuclear Threat Initiative, Issue Analysis:

While there has been some ―push back‖ in later negotiations from states concerned that BWC interpretation might interfere with legitimate research,325 general consensus has emerged in favor of absolute bans on any new biological weapons in whatever form they might emerge.326 The negotiating history of the BWC was considerably less complex than that of the CWC, and in essence, sprang from a two state consensus between the U.S. and the U.S.S.R. in the 1970‘s,327 as well as a general recognition that biological weapons ―presented less intractable problems.‖328

of existing stocks of biological agents and weapons. This move was welcomed internationally and the U.S. began to rally support for an international treaty based on the British proposal. [After initial opposition] on March 30, 1971, the Soviet Union and its allies introduced a revised draft convention limited to biological weapons and toxins. On August 5, the United States and Soviet Union drafted and submitted a joint draft text to the UN General Assembly. The United Nations adopted a resolution commending the text and the BWC was opened for signature on April 10, 1972. When U.S. President Nixon submitted the BWC to the U.S. Senate on August 10 for ratification, he called it ―the first international agreement since World War II to provide for the actual elimination of an entire class of weapons from the arsenals of nations.‖ The BWC entered into force two years later, on March 26, 1975, after 22 states had joined (signed and ratified) the Convention. Jenni Rissanen, The Biological Weapons Convention, Nuclear Threat Initiative, Issue Brief, March, 2003. http://www.nti.org/e_research/e3_28a.html.

328 An issue that long hindered progress was whether chemical and biological weapons should continue to be linked. A British draft convention … concentrated on the elimination of biological weapons only. …The United States supported the British position and stressed the difference between the two kinds of weapons. Unlike biological weapons, chemical weapons had actually been used in modern warfare. Many states maintained chemical weapons in their arsenals to deter the use of this type of weapon against them, and to provide a retaliatory capability if deterrence failed. Many of these nations, the United States pointed out, would be reluctant to give up this capability without reliable assurance that other nations were not developing, producing, and stockpiling chemical weapons. While the United States did not consider prohibition of one of these classes of weapons less urgent or important than the other, it held that biological weapons presented less intractable problems, and an agreement on banning them should not be delayed until agreement on a reliable prohibition of chemical weapons could be reached. USAF Air War College, http://www.au.af.mil/au/awc/awcgate/acda/bwc1.htm#1.

just limited to use in war. Of key import here is the agreement never to develop them … whatever their origin or method of production, 329 nor to develop ―equipment or means of delivery designed to use such agents or toxins.‖330 Taken together, the language of the 1925 Protocol and that of the BWC, cover a multitude of weapons and situations in wartime. It took another twenty years, however, for the CWC to close the circle on possession and development of chemical weapons.

329 Recognizes the significance of the 1925 Protocol and continues its obligations, States party agree ―never to develop, produce, or [possess] …Microbial or other biological agents, or toxins whatever their origin or method of production, [except as justified by peaceful purposes] or …Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict, Article I, and each …‖undertakes to destroy, or to divert to peaceful purposes, [within] nine months after entry into force of the Convention, all agents, toxins, weapons, equipment and means of delivery specified in article I.‖Article II. 330 Id. 331 Preamble: ―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, … complementing the obligations assumed under the Geneva Protocol of 1925…‖ 332 Article I: Each State Party agrees never ―(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone; to use chemical weapons; [or]To engage in any military preparations to use chemical weapons; [and to destroy such weapons and their production facilities]… 333 Article 2: Chemical Weapons" means the following, together or separately: 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; 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; "Toxic Chemical" means: 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.

334 Article II: Section 9: "Purposes Not Prohibited Under this Convention" means: Industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes; Protective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical weapons; Military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare; Law enforcement including domestic riot control purposes. See also, Article VI: ―Each State Party has the right, subject to the provisions of this Convention, to develop, produce, otherwise acquire, retain, transfer and use toxic chemicals and their precursors for purposes not prohibited under this Convention…‖ and ―…provisions of this Article shall be implemented in a manner which avoids hampering the economic or technological development of States Parties, and international cooperation in the field of chemical activities for purposes not prohibited under this

In addition to incorporating the 1925 Protocol,331 the CWC covers three key areas relating to the analysis here. It bans development, production and possession of chemical weapons;332 it defines them to include delivery systems,333 and it makes it clear that peaceful development of, inter alia, pharmaceutical, medical and agricultural chemicals, is not impacted.334 Of key importance here, is Article II‘s definition of ―Toxic Chemical‖ which means:

Convention including the international exchange of scientific and technical information and chemicals and equipment for the production, processing or use of chemicals for purposes not prohibited under this Convention..‖ 335 It is, of course, possible to posit nanoscale weapons which only indirectly affect humans by, for example, damaging other animals, machines or plants. For example, using emergency technology, simple nanoscale bots could swarm onto all ball bearings in a specified geographic area, effectively shutting down most mechanical systems. Such weapons are simply beyond the scope of this article. 336 See, ___, supra. 337 See, __, supra.

338 An argument has been made to the author by several informed persons that for the foreseeable future, the only objects which could act in this fashion are engineered viruses. Viruses are not, of course, living things, (that is, they are infectious agents which cannot reproduce outside a host cell), and yet their development, possession or use as weapons is clearly covered by the BWC. The variola virus which causes smallpox is strictly controlled. See, Edward Hammond, Should the US and Russia Destroy Their Stocks of Smallpox Virus? British Medical Journal,

All of the nanoscale weapons discussed in this article eventually directly affect a human target through biological or chemical processes.335 As was discussed above,336 at the nano scale there is considerable cross-over among chemistry, biology and physics. To the extent that the hypothetical nanobot of the AEI‘s scenario337 interacts in the human body at a cellular level in a way designed to mimic a toxic chemical, or biological weapon or toxin,338 it seems functionally indistinguishable from the substances and materials banned in the treaties above discussed.

339 There is at least some recognition of the doctrine in international law. See, In 2006, the Permanent Bureau of the Hague Conference on Private International Law took the position transmission of documents via postal channels can include transmission by modern means, provided the transmission constitutes the ―functional equivalent‖ of a postal channel. See Permanent Bureau of the Hague Conference on Private Int'l Law, Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 75 (3d ed. 2006). See also, David Marcus, Famine Crimes in International Law, 97 A.J.I.L. 245, 262-64 (2003) (international law should extend to man-made famines since ―famines are often functionally equivalent to genocide‖ See also, David Marcus, Famine Crimes in International Law, 97 A.J.I.L. 245, 262-64 (2003) (international law should extend to man-made famines since ―famines are often functionally equivalent to genocide.‖ 340 Supra at Section V. 341 Article 31(1) of the Vienna Convention on the Law of Treaties, supra at __. 342 This point leaves aside the German reprisal arguments and their claim that chlorine was not asphyxiating or toxic. They may or may not have more or less merit, but they are factual disputes and do not represent the legalistic approach of the argument under discussion here. 343 See, discussion at __, supra. 344 That is, interference with cholinesterase to mimic nerve gases. See discussion, supra at __. 345 See discussion supra at __.

The real question is whether such functional equivalence is sufficient, as a matter of international law,339 to ban States Party to the treaties from development, possession or use, of nanomimics. That is largely a matter of good faith. 5 The Good Faith Requirement for Treaty Interpretation

As was noted above, a good faith requirement in interpretation of treaties is central to international law,340 and the Vienna Convention‘s341 requirement of interpretation ―…in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose,‖ seems particularly relevant to attempts to avoid weapons bans by building a device to mimic a banned chemical or toxin. Even the German arguments that they could release asphyxiating gases from cylinders342 because the Hague Convention banned use in artillery shells, or the U.S. argument that the French language version of the 1925 Protocol and its predecessor trumped the English language version to create an ambiguity allowing use of tear gas in war,343 do not represent the actual creation of a killing device to do exactly the same thing in exactly the same way344 as an admittedly banned weapon.

If the good faith requirement is to have any validity at all in international law, it would would have to apply to this situation. Nevertheless, despite what the author considers the overwhelming weight of these arguments against the use of nanomimics as weapons, given the past history of states‘ attempts to evade existing bans,345 it is still appropriate to at least consider

346 See, Rolf Trapp, supra at __. 347 I say ―myopic‖ because the article ignores numerous other approaches, many of which are basic to the law of armed conflict, including, inter alia, general principles of law regulating the use of all weapons. See, discussion supra at __. He also numerous other possible drafting approaches for treaty coverage. 348 See generally, U.S. Congress, Office of Technology Assessment, Proliferation of Weapons of Mass Destruction: Assessing the Risks, OTA-ISC-559 (Washington, D.C. U.S.G.P.O., 1993). 349 The Need for an Inner Space Treaty, fn __, supra. 350 Nanotechnology, Potential Application and Preventive Arms Control, at 171-172, supra, at fn__. 351 See, e.g. CWC at Article VI. 352 Indeed, given the speed with which technology is changing, it seems best to make limiting language as broad as possible; something the author believes the history above has demonstrated the drafters intentionally did from 1919 to 1925. 353 See, discussion of Fifth Review BWC, supra at __. 354 Reynolds, fn__, supra at 203. 355Which Reynolds co-authored, https://www.foresight.org/guidelines/04GuidelinesBooketFinal.pdf. 356 The Foresight Institute on Arms Control and International Security,

In an interesting if myopic347 article Sean Howard suggests there are only ―…two basic options for designing a possible arms control approach to the mass-destructive potential of nanotechnology.‖ One is to create a ―regime of control and restraint‖ over the technology, and the other to totally ban it. Howard suggests ―a rough transposition of the Outer Space Treaty‖ to seek ―peaceful exploitation…of the nanosphere.‖ He seems to ignore other possible arms control348 and technology models (most obviously, the CWC), or the possibility of simply modifying existing conventions.349 Indeed, it might be easiest simply to modify the BWC and the CWC.

Altman suggests that while a change in the wording of the CWC might be difficult to obtain, it would be useful to clarify that ―[t]oxic substances that are not of biological origin or are not produced by biological systems would not count as toxins, but would fall under the CWC, i.e. be prohibited if directed against humans or animals.‖350 Altman also suggests ―preventive arms control,‖ at 123-124, in the form of technology limits. The approach seems flawed, given the resistance to absolute technology limits in general,351 and the specific opposition of the United States to limits on potential352 nanotechnology developments.353

In his discussion of a regulatory approach Reynolds suggests a number of useful approaches, including building ―inherent safety‖ into any living nanotech products through ―genome,‖ reproductively and software limitations.354 Many of his suggestions closely follow the Foresight Guidelines355 articulated by the Foresight Institute356 which studies and discusses

nanotech issues. While Foresight makes certain leaps of scientific faith357 about the potential problems, from an academic view, their solutions are well-conceived on a national basis. They do not, however, approach the weapons regulation problem in a way the author considers viable in the current international legal system.358 Foresight recognizes that possibility, noting: Adding particular weapons related applications of MNT to the list of technologies covered in Chemical, Biological and Nuclear Weapons treaties may be appropriate in certain cases. It should be remembered, however, that the capabilities of productive nanosystems will be extensions of general manufacturing technology. The military applications of MNT will include the manufacture of high performance aerospace vehicles and precision munitions at low cost. The high value and dual use of MNT for civilian and defense purposes will require making distinctions between the enabling technology and its specific applications, balancing health and economic benefits against security concerns. Since nanotechnology research is now global, the security challenges will be present, with or without the ability to capture the wide variety of benefits. Overly restrictive treaties or regulatory regimes applied to core MNT technologies could lead to the unintended consequence that only the rule-following nations would be at a competitive disadvantage technologically, economically, and militarily. While most nations, companies, and individuals are likely to adhere to reasonable safety restrictions, guidelines that are viewed as too restrictive will simply be ignored, paradoxically increasing risk. In addition, not all guidelines and laws will be followed, and enforcement is rarely perfect. Non-state actors could become quite significant, particularly when the relevant knowledge and raw materials are available globally. They may well not be signatories to any agreement. While a 100% effective ban could, in theory, avoid the potential risks of certain forms of molecular nanotechnology, a 99.99% effective ban could result in development and deployment by the 0.01% that evaded and ignored the ban. For example, the international Biological Weapons Treaty was being violated on a massive scale even before the ink was dry. Foresight Guidelines, current version, http://foresight.org/guidelines/current.html.

357 See, e.g., Richard Smalley, supra at __. 358 One major problem with the Guidelines is that they won‘t work to limit willing proliferators, past or present, (e.g. Iraq, the Soviet Union, China and North Korea,) in the same way as have weapons treaties (although they have their inherent limits as well). 359 See discussion, infra.

It is the author‘s belief, however, that Foresight and others miss the point, articulated throughout this article, that the BWC and the CWC, taken together, and both based on and incorporating the 1925 Protocol, almost certainly do cover (and certainly would with a few ―tweaks‖)359 the very sorts of nanodevices with which Foresight is most concerned. An entirely new treaty is simply unnecessary, and a waste of international time and effort. The concerns raised, however, are certainly legitimate, and well worth consideration.

(a) Toxic chemicals or their equivalents including any analogous devices and their precursors or their equivalents including any analogous devices, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes…360 Similarly, the BWC could be modified in Article I, Section 1 by placing a comma after ―toxins and adding the words ―or their equivalents including any analogous devices‖ The revised BWC would the read: Article I Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain:

360 Changed language is shown in bold face. 361 Id.

(1) Microbial or other biological agents, or toxins, or their equivalents including any analogous devices whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;361 It is the author‘s considered opinion that any such change is actually superfluous given the incorporation of the 1925 Protocol into both the BWC and the CWC. Accordingly, the actual wording and placement on any change is largely immaterial; what matters is that any new language makes it clear that the intent of the States party is to prevent any evasion of the Protocol‘s prohibition of devices and materials analogous to banned weapons, and that their use in war is forbidden no matter what new shape or form they are given.

The Great War changed the world in ways unparalleled before 1918. Although other wars had a global reach,362 but the advances in science and communications by the end of World War One, combined with global participation363 and total mobilization,364 had created a new reality of mass-involvement. The concomitant result of that mass mobilization, however, was almost universal war weariness when the guns were silenced.365 The revulsion to war, to the means and methods just used, and especially to chemical warfare, translated almost inexorably into state policy and international law.366 Much of the next decade‘s law-making was lost in the economic devastation and cultural insanity of the 1930‘s, but the absolute ban on use of chemical weapons essentially held its own.367

362 The Seven Years War and certainly, Napoleonic Wars, were fought on a global battlefield, although largely among European participants, See, Will and Ariel Durant, The Story of Civilization: Vol. XI, The Age of Napoleon, Simon and Schuster (New York, 1975). 363 The U.K., in particular, through its colonies and the Commonwealth, brought troops from, and fought battles around, the entire world. France used colonial troops from Africa and Asia, and eventually most of the Western Hemisphere was involved as well. See, generally, Charles Horne, Editor-in-Chief, The Great Events of the Great War, Volumes 1-7 (The National Alumni, 1920). 364 H.P. Willmott, World War I, pp. 122-131, The Home Front, Dorling Kindersley (New York, 2003). 365 Stanley Weintraub, A Stillness Heard Round the World, Oxford University Press New York, 1985). See also, Robert Elson, Prelude to War, Time-Life Books (New York, 1977). 366 See, Section __, supra. 367 Despite the occasional ―outlaw‖ use against peoples unable to respond in kind. See, discussion supra, at __. 368 Victor Lefebre‘s comment that ―If sub-atomic forces can eventually be harnessed for war they must be subjected to the same control and attempts at suppression during their development stages,‖ supra at __, although, it was in context about possible nuclear weapons, still represents the sort of amazingly broad thinking in which chemical warfare experts were engaged at the end of the Great War.

The foresight of those who drafted the initial ban on ―analogous…devices‖ at Versailles now seems almost accidental and providential, but as has been discussed at length above, the language was created by hard-headed men based on hard experiences and hard science.368 The development of that ban, its culmination in the 1925 Protocol, and its incorporation into the BWC and the CWC, leaves no genuine room for play in any sort of legitimate good faith argument about nanomimics, and none whatsoever for any other type of chemical or biological nanoweapons. Thus, it is the author‘s conclusion that as a matter of practical science and governing international law there is really no justifiable argument that any of these potential nanoweapons are uncovered; but that it would certainly do no harm to modify both the BWC and the CWC to include appropriate additional language making clear the states parties‘ intent to cover all new forms of analogous weapons, and that it just might do us all some good.