The Control of Chemical and
Biological Weapons

JOSHUA LEDERBERG

 

 

 

 

 

Reprinted from The Stanford Journal of International Studies
Vol. VI, Spring 1972

© 1972 by the Board of Trustees of the Leland Stanford Junior University
The Control of Chemical and
Biological Weapons

JOSHUA LEDERBERG*

I. INTRODUCTION

A CONTROL is an extension of defense policy. It consists primarily
of striking bargains with potential adversaries with the aim of pre-
venting or containing armed conflicts. (Experience teaches that little
faith should be placed on promises during the exigencies of actual con-
flict, although even combatants may still share enough common goals to
sustain some tacit agreements.) Insofar as chemical and biological weap-
ons,’ in the present state of their technological development, are so over-
shadowed by nuclear weapons, the prevention of strategic nuclear war
must be counted as a superordinate aim of all national policy, including
the regulation of other weapons systems. In addition, the prestige and

*B.A., Columbia College, 1944; Ph.D., Yale University, 1947. Professor, Genetics and
Biology, and Chairman, Department of Genetics, Stanford University. Nobe] Laureate in
Medicine, 1958; Consultant, Arms Control and Disarmament Agency.

1 Chemical weaponry (CW) and biological weaponry (BW) are often confused in news-
paper headlines. (“Weaponry” is used here to indicate either the actual hardware or its
application in combat.) BW refers to the use of living organisms (usually bacteria or viruses)
with the intention of disabling or killing an enemy by causing disease. The hallmark of this
effect is the multiplication of the infecting organisms in the target individual. The concept
can be readily generalized to include crops as well as human targets. Presumably, cavalry
or other large animals are not within the traditional concept of biological warfare agents.
New technological developments may arise—e.g., bacteria capable of attacking metal or
fucls—that may be subject to ambiguous interpretation.

So much human misery is the consequence of natural infectious disease that the military
usefulness of BW may be exaggerated. Fortunately, there are grave difficulties in assuring
reliable, prompt, and widespread damage to a target; on the other hand, infections may
spread elsewhere. At the present stage of its development, therefore, BW offers precarious
if any advantages over conventional weapons for planned military operations. Its main use
might be for destruction of crops or for surprise attacks on cities, doubtless most effectively
in conjunction with a nuclear attack.

CW consists simply of toxic compounds used for hostile effect. Compounds like nerve
gas can kill within a few minutes, with very small doses. However, unlike BW, the chemical
does not multiply in the body, nor does it spread progressively in epidemic fashion. CW
has well-proven tactical applications and, unlike BW, is supported by long experience and
well-developed military doctrine. However, gas masks and, to some extent, antidotes are
available for tactical defense. Some military theorists conscientiously forecast the waging of
war with less human suffering by the use of incapacitating chemicals in place of lethal
bullets. Until the bullets are removed from the armamentarium, however, the argument is
immaterial.

The gory details of BW and CW are well described in the authorities cited throughout
this text, but this type of argumentation dismisses the horrors of conventional weapons
which are hardly more beneficent for being so familiar.

22
Chemical and Biological Weapons 23

moral force of aspirations for CBAC (chemical and biological arms con-
trol) help mobilize advocates of subordinate aims. These include efforts to
minimize the cruelty of war for civilians, to disconnect advanced science
and technology from warfare, or to influence the momentary military
policy of the country in a tactical theater, namely Vietnam. These im-
pulses in turn may have an indirect influence on the strategic aim of pre-
venting nuclear war, or at least on efforts to disengage the United States
from a range of ventures whose bearing on essential security interests is
contested.

Many national policies suffer from contradictions of short-term versus
long-term, or of tactical versus strategic impact, and CBAC is no excep-
tion. Thus, some of the motivation for GBAC is the weakening of the
military capability of American forces, which is believed to encourage
dangerous entanglements—this approach can be fairly labeled ‘“unilat-
eral disarmament.” The efforts to separate chemical arms control from
biological arms control, justified as a means of promoting the long-term
goal of preventing a technology race in biological weaponry (BW), have
been criticized for weakening the pressures to also contain tactical chem-
ical weaponry (CW) capabilities.

Finally, a word on moral arguments and on international law: it is
this author’s view that warfare is the ultimate abnegation of both mo-
rality and Jaw, and will remain so until effective international authority,
with police powers, has evolved. Moral considerations regarding the use
of one versus another method of homicide are assumed to be trivial in
contrast to the success of overall policy in preventing large-scale conflict.

This article will focus on contemporary developments in CBAC,
mainly since 196g. The historical and technical aspects of CBW (chem-
ical and biological weaponry) are dealt with fully elsewhere? and will
be developed here only so far as necessary to illuminate current diplo-
matic and political trends.

II. HisToricAL DEVELOPMENT
A. The Geneva Protocol of 1925

The movement for CBAC received its principal impetus from the star-
tling development of CW technology by all sides in the course of World

2 See, e.g., CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE, THE CONTROL OF CHEMICAL
AND BIoLocicaL WEAPONS (1971) [hereinafter cited as CARNEGIE ENDOWMENT]; STOCKHOLM
INTERNATIONAL PEACE RESEARCH INSTITUTE, THE PROBLEM OF CHEMICAL AND BIOLOGICAL WAR-
FARE (1971) [hereinafter cited as SIPRI]; WorLD HEALTH ORGANIZATION, HEALTH ASPECTS OF
CHEMICAL AND BroLocicaL Weapons (1970) {hereinafter cited as WORLD HEALTH ORGANIZA-
TION]; Hearings on Chemical-Biological Warfare: U.S. Policies and International Effects
Before the Subcomm. on National Security Policy and Scientific Developments of the House
Comm. on Foreign Affairs, gist Cong., 1st Sess. (1970) [hereinafter cited as CBW Hearings].
24 STANFORD JOURNAL OF INTERNATIONAL STUDIES

War I.° The fact that the Imperial German Army had taken the first
steps in the military use of poison gas was an important part of anti-Ger-
man Schrecklichkeit* propaganda. The defeated Central Powers were
forced to renounce CW in the Versailles Treaty, and the continued char-
acterization of such warfare as a German atrocity fueled the persistent
diplomatic efforts to ban CW, which culminated in the Geneva Protocol
of 1925.

In 1922, the Washington Disarmament Conference had produced a
treaty which, although ratified by the United States Senate, was rejected
by France because of certain provisions concerning submarine arma-
ments. Consequently, the treaty never achieved the status of a legally
binding instrument.

A conference on the international arms trade, sponsored in 1925 by
the League of Nations, drafted, at the instance of the United States, a
separate CBAC treaty, the Geneva Protocol of 1925.° The language of
the 1925 Protocol stemmed directly from the 1922 disarmament treaty.
On this occasion, however, the United States Senate withheld its con-
stitutionally required consent—a situation that has, for varying reasons,
prevailed up to the present time. Nevertheless, the Protocol is binding
on the 85 countries that had, as of 1940, ratified or acceded to it.

The Protocol successfully passed its major test during World War II,
which saw no significant use of CW or BW despite the fact that neither
Japan nor the United States was a party to the treaty. One may question,
however, whether it was the moral force of the Protocol, or, instead, the
fear of mutual retaliation and the unpredictable consequences of un-
leashing CBW on a large scale, which restrained the belligerents,® espe-
cially in view of the fact that many weightier and equally solemn agree-
ments, e.g., those relating to the protection of non-combatants, were sys-
tematically violated.

The actual text of the Protocol is rife with confusion, on philosophi-
cal as well as technological grounds.’ Its preamble asserts that the use of
gases is already “justly condemned by the general opinion of the civilised
world” and that this proscription is already part of international com-
mon law. On the other hand, the treaty text binds the parties only as

3 In 1918, CW comprised more than 20 percent of the artillery munitions, and was re-
sponsible for 15 percent of the combat casualties (but only for 1.4 percent of the deaths), both
sides having planned for rapid increases as fast as productive facilities would allow. (These
figures have been derived by the author from data presented in SIPRI, supra note 2, at 36,
128-30.)

+“ Atrocity,” as in the allegations of German cruelty to Belgian civilians in World War I.

5 Excerpts from the Geneva Protocol of 1925 are reprinted in the Appendix, infra.

SF. BROWN, CHEMICAL WARFARE—A Stuy IN RESTRAINTS (1968) [hereinafter cited as
Brown}.

7 ANN & A. J. THomas, Jr., LecaL Limits ON THE UsE OF CHEMICAL AND BIOLOGICAL
Weapons: INTERNATIONAL Law 1899-1970, at 74-78 (1979) .
Chemical and Biological Weapons 25

between themselves. Furthermore, most of the parties, following the
lead of France, have specifically reserved the right to use chemical weap-
ons “in regard to any enemy state whose armed forces or whose allies fail
to respect the prohibitions.’

‘These legal reservations, together with the World War II experience
with successful exchanges of deterrent signals, point to the Protocol as
the centerpiece of a pragmatically successful system of mutual deterrence.
However, that system is also founded on the continuation of a retaliatory
capability by the principal parties. That is, the Protocol, far from having
abolished chemical weapons, has encouraged the development of in-
creasingly lethal ones and their stockpiling in larger and larger quantities
by several of the superpowers.

Until and through World War II, biological weapons had not
achieved a status of military credibility. A significant level of research
and development of biologicals was originally impelled by American
fears that Nazi military technology might uncover some secret weapon
for which we would be unprepared. Since World War II, however, sub-
stantial investments in BW research by the United States Army have
been sufficiently successful to be the subject of impassioned testimony
in support of such research before congressional appropriations com-
mittees.° There is every expectation that the Soviet Union has made simi-
lar investments in a political climate that demands less public ventilation
of military research programs.

The contemporary focus on problems of CW and BW is the product
of at least three trends: The general framework of negotiated arms con-
trol agreements in the process of geopolitical stabilization; public re-
action to the use of nonlethal chemical weapons in Vietnam; and the
dramatic developments in molecular biology in the post-war era which
have sharpened the two-edged sword of the modification of microorga-
nisms either for medical or for military purposes.

Both the successes and the shortcomings of major strategic arms con-
trol agreements have helped to further progress with CBAC. The suc-
cesses have strengthened the hand, in domestic debates, of arms control
advocates. The failures may have led the superpowers to explore more
assiduously those areas where agreements could be reached so as to pla-
cate criticisms from the nonaligned countries.

B. From Geneva to Vietnam
In the interval between the signing of the Geneva Protocol in 1925
and the beginning of the Vietnam War in 1962, CBW had few uses, none

8 Id.at 78.
9S. HERSH, CHEMICAL AND BIOLOGICAL WARFARE—AMERICA’s HIDDEN ARSENAL (1968)
[hereinafter cited as HERSH].
26 STANFORD JOURNAL OF INTERNATIONAL STUDIES

of them particularly contributory to military objectives.’? The principal
exception was Mussolini’s use of mustard gas in Ethiopia in 1936, an
action widely condemned as an egregious barbarism in a war of naked
aggression. The Fascists admitted the use of gas, but claimed: (1) they
were not fighting a war; and (2) they had a right of reprisal against decapi-
tations and other atrocities by the Ethiopian tribesmen. There are also
numerous reports of Japanese experiments with CW in the invasion and
occupation of China from 1937 to 1945. However, the mutual restraint
in use of CBW in World War II overshadowed these exceptions. In the
European theater, Allied air superiority both deterred the Nazis’ use of
nerve gas, and gave ample scope to high explosives for the Allied de-
struction of German industry. In the Pacific theater, events were over-
taken by the atomic bomb.

The period of the Cold War was marked by extensive research and
development and stockpiling, including the capture and retention on
both sides of large stocks of German nerve gas, discovered by the Allies
only after Hitler’s collapse. There have also been indications of isolated
uses of CBW in this period. The Chinese made unsubstantiated alle-
gations of American deployment of BW (infected fleas) in the Korean
War. Fairly persuasive documentation has been recorded of the use of
mustard gas by Egyptian forces during their intervention in Yemen
(1963-67). The source of these weapons has not been authenticated, al-
though they might have been Chinese, or Russian, or World War II
munitions left behind by the British forces.

Sporadic proposals for CBAC were stifled, before they could gain
much currency, by the problem of verification, which already loomed as
the central obstacle to the control of nuclear armaments. The United
States remained a nonsignatory to the Geneva Protocol more for lack
of any stimulus to attract the attention and interest of policy-makers
than on account of any studious opposition to it. However, one anti-
CBAC argument maintained that any formal restraint on American in-
vestment in CBW (even as feeble as the Protocol) would be disadvanta-
geous in the face of Soviet secrecy about their stockpiles. Furthermore,
it was argued, the Protocol would hinder the elaboration of one element
of potential NATO policy, namely the deployment and use of CW in
the defense of Germany against an expected Soviet attack. During this
period, NATO military thinking was preoccupied with the assumed
numerical preponderance of the Warsaw Pact armies.

10 Alleged, and sometimes confirmed, instances of the use of CW and BW, including
those referred to in the following two paragraphs, are critically reviewed in the SIPRI series,
Supra note 2.

11 The most precise articulation of these arguments in the open literature is by H.
Swyter in CBW Hearings, supra note 2.
Chemical and Biological Weapons 27

The introduction of defoliants and tear gas around 1963-64,” by
American forces in Vietnam, reopened CW as a major issue of contro-
versy, fueled above all by the bitter domestic conflict over the legitimacy
of the war itself. In order to avoid the moral opprobrium of “chemical
warfare,” the protagonists went to great lengths to analyze the Geneva
Protocol—did it, or did it not, forbid the use of nonlethal harassing
agents (tear gas) and anti-plant agents? The center of the debate conse-
quently shifted from proposals for multilateral CBAC, in which the na-
tional interests of the United States would be balanced against those of
other superpowers, to cultivation of domestic restraints on military capa-
bility, leading to unilateral reductions of technological force, as a curb
on what appeared to be the United States’ arrogant use of power. The
involvement of the United States in Vietnam thus confounded efforts
to augment international arms control on the lethal chemical and bio-
logical weapons—weapons which had not been deployed in Vietnam!

Broader interest in CW was prompted by the Skull Valley, Utah, in-
cident in March, 1968. The accidental release of nerve gas from the
Dugway Proving Grounds of the United States Army led to the death of
some six thousand sheep. The Army’s credibility was impaired by early
denials of responsibility, which may have been based in part on ignorance
of the susceptibility of sheep to this agent. It soon became evident that
secret research and testing of CW was a potential hazard to civilian
health which had not been adequately monitored by or even revealed
to responsible public health officials. And if such lapses were possible
with CW, what might result from breakouts of contagious biological
weapons, designed to initiate epidemics that would be difficult to control?

The journalistic work of Seymour Hersh," and the legislative efforts
of Representative Richard D. McCarthy," joined by Senator Gaylord
Nelson and many others, brought these problems to much wider atten-
tion during 1968-69.1° The NBC television program on CBW, broadcast
on February 4, 1969, evidently created a dramatic public awareness of
these hazards, something that the years of educational efforts by such
scientists as Matthew Meselson of Harvard, S. E. Luria of M.LT., and
Carl-Goran Hedén of Stockholm had failed to produce.

Responding largely to questions provoked by American policies, the

12 See especially CARNEGIE ENDOWMENT, supra note 2,

13 HERSH, supra note 9.

14R. McCartuy, THE ULTIMATE FOLLY (1969).

15 The Congressional Research Service of the Library of Congress has issued two valuable
reports: M, CarLin & F. QUIMBY, CHEMICAL AND BIOLOGICAL WARFARE: SOME QUESTIONS AND
ANSWERS (1969); and J. McCuLLoucH, CHEMICAL AND BIOLOGICAL WARFARE: IssuFS AND DE-
VELOPMENTS DURING 1970 (1971).

16 For a transcript of the NBC documentary, see 11% Conc. Rec. 1840-41 (daily ed. Feb.

19, 1969).
28 STANFORD JOURNAL OF INTERNATIONAL STUDIES

United Nations General Assembly commissioned a study on CBW by
an international group of experts. Released on June 30, 1969, this re-
port’ signalled a renewed interest in every aspect of CBW, which was
embodied in urgent demands to the Conference of the Committee on
Disarmament in Geneva to give a high priority to CBAC in its further
deliberations.

Faced with these pressures, President Nixon ordered a review of the
American posture on CBW soon after coming into office. His advisors
advocated adherence to the former policies on the use of nonlethal
agents in Vietnam. However, on November 25, 1969, President Nixon
announced that the United States would adhere to the Geneva Protocol,
subject to an interpretation which omitted tear gas and herbicides from
its proscriptions, and that he would resubmit the Protocol to the Senate
for belated ratification.1® Furthermore, he renounced biological weap-
onry in any form. The Geneva Protocol merely forbade the first use of
BW, but henceforth American policy would eschew even retaliatory
use. The President also announced a commitment to suspend further
development work in BW, to destroy existing stockpiles, and to join the
United Kingdom in diplomatic efforts to negotiate a comprehensive
anti-BW treaty which would bind other nations to a similar policy.

At the time of Nixon’s announcement, it appeared as if this decisive
step of unilateral disarmament might actually complicate diplomatic
negotiations in an era where “bargaining chips” were asserted to be an
essential currency. However, any other policy might have left the door
open to recurrent battles within the domestic cockpits of defense policy.

Indeed, even this dramatic statement left a zone of confusion. By any
precise, technical criterion, toxins are certainly chemical compounds
rather than living biological agents. Toxins are especially apt for CW
use by virtue of their extraordinary potency: a billion lethal doses per
pound, if inhaled.?® The Army therefore believed it had an unimpaired
mandate to continue toxin research and development. However, at the
present stage of technology, toxins are produced as by-products of bac-
teria growth; it would be impossible to sustain a credible limitation on
biologicals if secret work on toxins went on, regardless of the techni-
calities of definition. In order to sustain the policy of BW-renunciation,
Mr. Nixon therefore extended the proscription to include toxins on
February 14, 1970.

17 Unttep Nations, CHEMICAL AND BACTERIOLOGICAL WEAPONS AND THE EFFECTS OF THEIR
PossipLe UsE—~REPORT OF THE SECRETARY-GENERAL (1969). Also reprinted in CBW Hearings,
Supra note 2.

18 CARNEGIE ENDOWMENT, supra note 2, at 1. Excerpts from the President’s message are

reprinted in the Appendix, infra.
19 WORLD HEALTH ORGANIZATION, supra note 2, at 41-44.
Chemical and Biological Weapons 29

The formal resubmission of the Protocol to the Senate was delayed
until August 19, 1970, doubtless owing to continued conflicts about the
exemption of tear gas and herbicides. In his letter of transmittal,*° Sec-
retary of State William P. Rogers advocated that the United States re-
serve a right of reprisal, similar to the reservations of most other parties,
but only with respect to CW. He also recorded the “understanding” that
riot-control agents and herbicides as well as smoke, flame, and napalm,
were outside the scope of the Protocol. This exemption has been sharply
criticized by Senator Fulbright and other influential senators, and the
Protocol remains under consideration by the Senate Foreign Relations
Committee,??

The legal standing of the possible use of nonlethal agents by other
countries party to the Protocol remains utterly confused in the absence
of a formal adjudication. For example, would the use of tear gas against
rioting prisoners-of-war legalize a retaliatory response with nerve gas?
On December 16, 196g, the General Assembly of the United Nations con-
demned “all chemical weapons” by a substantial majority vote? How-
ever, many of the countries represented therein have yet to accede to the
Protocol themselves, and the Assembly action has more political than
legal force. If other countries, or even the United States alone, were to
make a specific formal reservation™ that nonlethal agents were indeed
covered by the Protocol, it would clarify the situation greatly. This has
not been done even by nations who are the severest critics of the United
States, nor is it likely to be done, so long as the confusion increases our
embarrassment. After the final disengagement of the United States from
Vietnam, it may be possible to make a fresh start in defining interna-
tional agreements to bar these weapons, perhaps as a sequel to the pend-
ing BW treaty, without the conflicting linkages to regional problems.

C. Development of the 1971 Biological Warfare Treaty

‘The Conference of the Committee on Disarmament, meeting in Ge-
neva, began serious consideration of new proposals concerning CBAC
in the summer of 196g, in response to the United Nations studies and
recommendations. From the outset, the Soviet bloc insisted on a com-

20 Quoted in CaRNEcIE ENDOWMENT, supra note 2, at 1.

21 The hearings before the Senate Foreign Relations Committee have not been published
as of this writing, but presumably will contain the fullest documentation of official United
States actions during 1970-71.

22 House SUBCOMM. ON NATIONAL SECURITY POLICY AND SCIENTIFIC DEVELOPMENTS OF THE
ComM. ON ForEIGN AFFAIRS, CHEMICAL-BIOLOGICAL WARFARE: U.S. POLICLES AND INTERNA-
TIONAL EFFECTS (1970).

28 The term “reservation” is used in a technical sense to imply that the matter in ques-
tion is understood to be formally incorporated in the treaty unless other parties enter official
objections.
30 STANFORD JOURNAL OF INTERNATIONAL STUDIES

prehensive ban on both CW and BW, but with no provision for sub-
stantial verification. The United Kingdom, joined after November 1969
by the United States, responded with a draft treaty that gave separate
consideration to BW. This, in effect, asked other countries to adhere to
the same BW policies that were unilaterally implemented by the United
States and, in part, by its allies. CW, on the other hand, had already
proven to be a significant instrument in warfare; and large stockpiles of
nerve gas with significant military utility might be concealed in the face
of agreements that did not provide for verification. Under these condi-
tions, the argument went, such a treaty would constitute one-sided dis-
armament on the part of the more open societies of the West.%* This
would encourage chemical warfare by offering irresistible incentives to
closed-society nations to continue clandestine accumulation of chemical
weapons for eventual use in surprise attacks.

BW offered similar hazards of concealed stockpiles; however, it had
never been realistically tested under field conditions, nor was this likely
to occur, except in actual war. The Western powers were willing to take
the risk of clandestine evasions of a treaty for the sake of forestalling an
incipient technology race that would lead, inevitably, to the development
and spread of such weapons.

‘The Soviet bloc response was, predictably, that adherence to treaties
was a political rather than a technical responsibility. Each country had
the duty to live up to its own agreements; if the United States refused
to ban the stockpiling of nerve gas, this must mean that it had the in-
tention of using it, as it had used other agents in violation of the Geneva
Protocol. To ban BW alone, argued the Soviets, would be to legitimize
CW and undo the good work of the Protocol.

This impasse continued through the 1970 sessions of the conference.
On March go, 1971, however, the Soviet delegation unveiled a new pro-
posal for BW that converged with the Anglo-American proposals. The
conference, after further discussion, was then able to forward a con-
sensual draft treaty?> to the United Nations on September 30 for final
action during the current session.

The forces that led to the willingness of the Soviet Union to accept
this approach remain obscure. They may have felt that they had ex-
hausted the propaganda utility of harassing the United States over Viet-
nam at a time of progressive disengagement. They may have predicted

24 The use of the terms “open societies” and “closed societies” is intended to distinguish
between those countries that do and those that do not exhibit public criticism of government
policies, treaty commitments, and the like. There are some countries in which an effective
Seymour Hersh-like figure is inconceivable.

25 Excerpts from this treaty are reprinted in the Appendix, infra.
Chemical and Biological Weapons 31

that their own intransigence would eventually be perceived as blocking
the possibility of even a limited BW treaty. They may have undergone
a shift in their own strategic thinking about the utility of CW and there-
fore become less willing to close that option for themselves.

Larger political considerations are, however, more likely. The shift
at Geneva accompanied Secretary Brezhnev’s address to the 24th Com-
munist Party Congress, at which he also announced a number of other
initiatives designed to bolster European security agreements and to reach
basic accord with the United States and China. A few days later, Peking
dramatized its new policies of accommodation with the United States,
with its famous invitation to the table tennis team—an invitation which
would culminate in President Nixon’s visit. Whatever foreknowledge the
Kremlin may have had about these moves, it obviously faced a new world
environment in which it might have to choose between conciliation with
the West or isolation from an emerging Sino-Western bloc.

In any event, the draft BW convention is before the United Nations
at this writing. It is likely to face continued criticism for being limited
to BW, especially from some smaller, nonaligned nations who may view
this as a Soviet-American conspiracy to retain dominion over the more
creditable CW. The United States has already proceeded with the actual
destruction of BW stocks, and with the conversion of the laboratory fa-
cilities at Fort Detrick, Maryland, and Pine Bluff, Arkansas, for open
work in environmental pollution, drug safety, and cancer research. The
Soviets have released no comparable information on their BW program,
but a spokesman has asserted that they would, of course, abide by the
provisions of the treaty when it is ratified and other nations have done
likewise.?6

The role of China in these agreements must be considered in light
of her historic isolation from the main currents of international dis-
course. China’s exclusion has, of course, generated insuperable problems
for global arms control in a multi-polar environment. Its implications
for SALT are all too evident; in CBAC, one wonders how durable any
agreement would be if the Chinese elected to proceed with large-scale
experiments in BW. This type of catalytic disruption of Western-Soviet
arms control arrangements has, however, no evident advantages and
many potential disadvantages to the Chinese. China’s adherence to the
new BW treaty could well be one of its first effective acts as a voting mem-
ber of the world community.

As for the United States, the chief impediment to the adoption of the
BW treaty is its many references to the Geneva Protocol, embarrassing

26 Hamilton, A Stronger Pact Set on Germ War, N.Y. Times, Sept. 29, 1971, at 1, col. 1.
32 STANFORD JOURNAL OF INTERNATIONAL STUDIES

reminders of the delay in American ratification. The references to the
Protocol have no operational significance; that is to say, the present treaty
itself comprises a complete bar to any possession of BW by any party,
whether or not that party accedes to the Geneva Protocol as well. How-
ever, the cross-references may have some effect on the Senate’s process
of consent. The Senate Foreign Relations Committee, having already de-
layed ratification of the Protocol in order to force inclusion of nonlethal
CW, will have additional leverage on the President through including
the BW treaty in its considerations. These tactics may be reinforced if
some countries balk at ratifying the BW treaty before the United States
has ratified the Protocol.

III. ANALYSIS OF THE 1971 BW Drarr Treaty (BW-71)

The Geneva Protocol of 1925, it will be recalled, was a multilateral
contract, binding the parties among themselves, not to initiate the use
of CW or BW. BW-71 is a joint abjuration—each party promises “never
in any circumstances to develop, produce, stockpile or otherwise acquire
or retain” BW, including microbes, toxins, or associated delivery equip-
ment. It makes no reference to use, a provision adamantly rejected by
the Soviet Union on the grounds that use was already proscribed by the
Geneva Protocol. This may constitute a mischievous loophole. BW-71
defines biological weapons as “biological agents . . . of types and in
quantities that have no justification for prophylactic, protective, or other
peaceful purposes.” Just as with tear gas, one can visualize the emergence
of biological agents that do have legitimate peacetime uses and can also
be used in war. Would the military use of such an agent be legitimized
under the reprisal provisions of the Geneva Protocol, its possession being
outside the scope of BW-71?

Earlier drafts incorporated a precise definition of a biological agent
as one “causing death, damage, or disease by infection or infestation, to
man, other animals, or crops.”*? This definition was first dropped simply
to accommodate toxins, which poison but do not infect or infest their
targets. Eventually, the section was dropped altogether. The unquali-
fied phrase, “biological agent,” can have many interpretations, however,
and the ambiguities may lead to future trouble unless a clearcut “legis-
lative history” is established during the final deliberations. (Man himself
is certainly a biological agent; but he may be excused on a claim of po-
tential peaceful purposes.)

A sane reader will have understandable revulsions toward technical
plans for future wars which will be very costly if they are ever fought.

27 CARNEGIE ENDOWMENT, supra note 2, at 99.
Chemical and Biological Weapons 33

However, the military must have clear guidelines to discharge their re-
sponsibilities for national defense, and these must take realistic account
of the capabilities of probable adversaries. Confusion about the con-
tractual limitations that each side has accepted in CBAC arrangements
can only feed a mutual paranoia about each other’s intentions. This
is not to suggest that formal restraints are the only, or even the most
important, devices to forestall technological escalations. If either side
presses permissible, or formally nonforbidden, developments to the very
limit of the contractual agreements, the agreements themselves may not
prove very durable. This is of course the strategic hazard of large-scale
use of nonlethal chemicals, whatever their status under the Geneva Pro-
tocol. Such use would certainly be even more provocative if it were an
unambiguous violation.

BW-71 makes no provision for verification, except for the promise in
Article V to consult one another about problems that may arise. Viola-
tions are to be reported to the Security Council, where, of course, any
permanent member could veto any proposed action. The superseded
British draft would have directed complaints to the Secretary-General
for investigation, thus guaranteeing consideration by the General As-
sembly regardless of the formal actions of the Security Council.

The principal recourse of an aggrieved party, if the Security Council
is divided, will be to withdraw from the treaty, as authorized by Article
XI, on three months notice. Insofar as the superpowers place some
utility on the pattern of stability achieved by BW-71, they may dis-
courage violations even in the face of local advantages to one of their
allies. As we have seen with the Geneva Protocol, the treaty also estab-
lishes a moral standard whose value, independent of the legal force of
the agreement, increases the longer it is respected.

Article XII does assure continued attention to technical innovations,
providing for a conference after five years. This clause is also intended
to sustain explorations about CW, which BW-71 leaves in abeyance.

The main practical effect of BW-71 will be to deflate the pressures for
a sustained biological weapons race by the superpowers, and to discourage
dangerous adventures by smaller states. By distinguishing BW from CW,
it also affords another firebreak, should restraints on CW continue to
deteriorate. On the other hand, some critics deplore the uncoupling of
BW from CW: by reducing the stakes of chemical arms control failure,
it may render such failure more likely to occur. This ambivalence, or
rather tradeoff, is typical of firebreak strategies.”*

28 The firebreak concept (see text at note 30, infra) is closely allied to the “focal point”

elaborated especially by T. ScHELLING, THE STRATEGY OF CONFLICT (1960). The difficulty of
communication between mutually suspicious adversaries complicates the enforcement of arms
34 STANFORD JOURNAL OF INTERNATIONAL STUDIES

Microbiologists who have viewed BW as an apocalyptic threat have
encouraged this early, albeit separate, BW treaty. We are especially con-
cerned that advances in molecular biology may open the door to the
development of weapons that would be of questionable reliability, but
relatively inexpensive and potentially capable of spreading disease
throughout the species. These characteristics are not only maleficent in
themselves—nothing could be more threatening to the political stability
of the world order—but they would also invert the moral imperatives
of the health professions and of the medically oriented research institu-
tions on which the advance of world health is founded.

BW-71 does not solve all of these problems. Scientific advances in
microbiology, though directed to preventing disease in man and in his
crops, will inevitably uncover new technical options that might be sub-
verted as BW. Some of these may afford irresistible temptations to a
militant movement lacking in other resources by which to impress its
political will. They may lend themselves to economic sabotage (e.g., to
wipe out a competitor's crop of coffee or sugar), to catalysis of conflicts
between nations, and, in turn, to provocative suspicions of such Byzan-
tine maneuvers and possible misinterpretations of natural catastrophes,
BW-71 does not proscribe research on potential BW agents, even by the
military, so long as this can be justified as bearing on “prophylactic, pro-
tective or other peaceful purposes.” Such justifications legitimately in-
here in any basic work on microbes, and there is no doubt that all coun-
tries will continue some research whose ultimate purposes and inten-
tions, being unstated, will be open to question.

We have, then, two grave problems—to deter technological efforts
that will in fact lead to BW, and to placate suspicions that such efforts are
taking place. No practical system of specific verification has been sug-
gested. The level of international inspection that would be needed to
monitor a country’s total efforts in microbiology would be unacceptable

control agreements. Each side may be willing to exchange some risk of technical disadvantage
or surprise for manifest evidence of the adversary’s policies, intentions and capabilities, which
provide mutual enhancement of the management of an uncertain future. In the absence of
symbolic focal points, each incremental step by one side is subject to a wide zone of interpre-
tation by the other, and may elicit a reaction disproportionate to the actual provocation.

A doctrine like “Gas is gas,” as discussed by Schelling, is less likely to lead to mutual
escalation in response to small fluctuations than one which requires elaborate technical
analysis to categorize each incident. The firebreak here amounts to the proposition that “So
long as neither of us uses any chemicals in war, this is clear evidence that we do not intend
to pursue the major deployment of CW to a degree that you need ever worry about.” The
converse implication, however, is the signal that were a chemical ever to be used, the adver-
sary should take this as a trigger for his own escalation, no longer being able to predict the
other’s intentions.

Diplomatic communication may be expected to be more precise, but the effective com-
munication of ideologies and policy intentions among the populaces of the nations does
seem to fall back on simplistic sloganeering.
Chemical and Biological Weapons 35

to any country. (Prohibition in the United States did a poor job of de-
terring illicit microbial fermentation processes, namely the production
of alcohol—a compound that loosely fits the label of “‘toxin.””) However,
medical research is already established as one of our nearly universal in-
stitutions. A strong positive step to assure accurate intelligence about
the character of microbiological research in other nations would be the
strengthening of cooperative international programs on world health
problems. Since global health problems are already so grave, little addi-
tional justification would be required to implement multinational health
research programs. “Natural infection” is an immanent BW against our
own species; health-oriented research may also provide barriers against
the spread of disease initiated by human enemies.

This article has focused on political rather than hygienic issues, but
the stakes are too large to pass the latter by. We have no guarantee that
we will not face another natural epidemic comparable to the Black Death
of the 14th century. Our international institutions, such as the World
Health Organization (WHO), have done excellent work in checking
smallpox and malaria. They were hindered in coping with cholera be-
cause of failures in national cooperation and for lack of funds. WHO
was virtually helpless in attempting to respond to the last epidemic of
Asian influenza, and it is only our good fortune that the epidemic was
not a thousandfold more virulent.

If ever implemented, the pious language of Article X may be the
most important contribution of BW-71. It exhorts all “parties . . . ina
position todoso . . . [to] cooperate in contributing . . . to the further
development and application of scientific discoveries in the field of biol-
ogy for prevention of disease. . . .”

TV. CHEMICAL WARFARE IN LIMBO

While BW has not emerged as a weapon of modern war, the historical
record for CW is far less promising. As discussed above, although the
major powers all refrained from the use of poison gas during World
War II, its deployment was given serious consideration on several oc-
casions.’® There can be little doubt that it would have been used during
the latter stages of the conflict had it been perceived as playing a de-
cisive strategic role.

Tn any event, it would be futile to expect C or BAC to withstand the
rage of serious world conflict. The most efficacious way to prevent CW
is to strengthen the institutions of world order and prevent war. Still, the
availability of technically advantageous weapons may work against peace-

29 BROWN, Supra note 6.
36 STANFORD JOURNAL OF INTERNATIONAL STUDIES

maintenance and we would hardly be justified in abandoning efforts at
controlling CW as one brick in the peace-building edifice. The technical
characteristics of chemical weaponry pose many difficult obstacles to
their control by treaty. They require a fussy attention to detail which
is incongruent with the sweeping rejection of CW by the public.

The Geneva Protocol, with its restrictions on the first-use of CW, is
an obvious starting point for further negotiation. At the moment, diplo-
matic progress is impeded by the quarrels over the extent to which the
use of nonlethal chemicals is already proscribed by the Protocol. One
of the uncommitted nations could play a constructive role as mediator
by pressing for diplomatic discussions which could focus on this point as
an area of de novo agreement. In the light of the use of tear gas as an
alternative to lethal riot-control techniques by the civil police, the defini-
tion of “use in war” will require careful elaboration, for the whole edi-
fice may collapse over an ambiguous incident.

The military authorities will still have to be convinced that the
abjuration of these weapons is cost-effective. They suffer from the disad-
vantage of having to plan for many contingencies that, at any moment,
may be beyond the public imagination. The pitfall is, of course, that the
very act of protective planning may constitute a self-fulfilling prophecy.

One of the main policy arguments for abjuring tear gas is the “fire-
break” concept,® also labeled ‘‘gas is gas.’’ According to this doctrine, the
deployment of nonlethal CW is likely to provoke a set of escalating re-
actions involving the use of increasingly toxic agents. Furthermore, the
defenses against these weapons—gas masks, etc.—will be similar to those
needed for protection against lethal weapons. In the absence of any very
sharp dividing line between lethal and nonlethal weaponry in a mili-
tary context, the end result will be unrestrained CW. Therefore, includ-
ing the entire domain of chemical weapons in any treaty ban would cre-
ate a more effective firebreak.

‘The empirical evidence of this theoretical concept is ambiguous. The
use of herbicides and of tear gas in Vietnam did not result in the expected
reaction; but this can hardly be taken as a reliable precedent for future
conflicts.

From a purely technical standpoint, one might argue that a tradition
has already been established that would distinguish between tear gas
(CN or CS) on the one side and nerve gas on the other. This distinction
is not intended to legitimize tear gas, but to create a hope that a world
which has already seen this restricted form of chemical warfare may yet
evade the horror of large-scale civilian casualties from nerve gas. The

30 CARNEGIE ENDOWMENT, Supra note 2, at 58.
Chemical and Biological Weapons 37

expected military utility of tear gas is inescapably linked to the con-
tingency of American involvement in protecting existing governments
from revolutionary challenges. For bargaining purposes, one might at-
tempt to link a ban on tear gas with effective sanctions against insurgent
terrorism; but this utopian phantasy is mentioned only to illustrate the
political dimensions of a problem labeled as chemical arms control.

The use of herbicides in Vietnam was perhaps even more offensive
to world opinion than that of tear gas. Its rapid escalation illustrates the
problem of sustaining effective firebreaks. It would have been difficult
to make a strong case against the clearing of forest cover in the immediate
perimeter of a military base. But no firm line of restraint could be found
between this, clearing roadsides for protection against ambush, clearing
forests to expose Vietcong concentrations, and the denial of food sup-
plies in violation of long-established conventions.**

The underlying issue of environmental warfare would not, however,
be solved even by the most rigorous interpretation of the Geneva Proto-
col. In response to public protest, the use of chemical herbicides in Viet-
nam has already been sharply restricted, only to be supplanted by heavy
earth-moving equipment. “Conventional weapons’ like bombs have un-
doubtedly scarred the Vietnamese environment more seriously than
herbicides have, quite apart from the human dimensions involved. Deep-
ened sensitivity to the depredation of the environment may help to estab-
lish a more realistic assessment of the costs of military “solutions” to
world problems. Further diplomatic discussions about environmental
protection may be more useful, if sharply focused on the end results, than
tutile bargaining about the style of warfare.

Lethal chemicals, like nerve gas, are unambiguously condemned by
the Geneva Protocol, although only with respect to their initial use. This
level of proscription demands very little by way of inspection procedures,
if we overlook the hindrances to the verification of alleged uses of poison
gas, as, for example, in Yemen. The routinization of appeals to the United
Nations Security Council for the investigation of such incidents may be
of some help, despite the possibility of a veto, since an obstruction to
local investigation would be almost tantamount to acknowledgment of
guilt, Although this procedure is not formally established even in BW-71,
it may still be utilized in the future, and that possibility may help to
deter such experiments. In past years, Soviet spokesmen have insisted
that the Geneva Protocol was self-implementing; but it may still be pos-
sible to negotiate more effective implementation under the general
aegis of BW-71.

31D. Brown, The Use of Herbicides in War: A Political/Military Analysis, in CARNEGIE
ENDOWMENT, Supra note 2, at 39.
38 STANFORD JOURNAL OF INTERNATIONAL STUDIES

The next level of prohibition that might be considered would be a
ban on any use of CW. This has not received much formal discussion.
Such a ban might be resisted on the Western side because of a fear that
it would be transformed through domestic politics into a system of uni-
lateral chemical disarmament, with no check whatever on the capability
for violation by authoritarian states. The Anglo-American position has
been that a battle-proven weapons system, like poison gas, should not be
given up unilaterally, since this would destroy the incentive of the other
side to bargain to do likewise. Advance promises not to use a particular
weapon in the future are useful mainly for their arms control side effects
in the near term.

Proposals for mutual chemical disarmament have foundered on the
ancient shoals of verification. These difficulties are compounded by the
problem of definition, since so many potential CW agents are also articles
of peacetime commerce. It may suffice to point out that many widely
used pesticides are far more toxic than the “poison gases” of World War I
and that nerve gas was discovered and refined as a by-product of pesticide
development. It follows that any industrial state that maintains delivery
systems, like bombers, can readily maintain a substantial CW capability.
The most potent agents pose some technical challenges for safe handling:
witness the embarassment of the United States Army in transferring and
disposing of its obsolescent stocks of chemical munitions. However, the
well-advertised concept of binary chemical munitions has already
breached that barrier.*?

Mutually rewarding arrangements for CW disarmament will not,
then, be easily arrived at. Positive steps may still be sought to make first-
use of CW, in violation of the Geneva Protocol, less profitable. Political
arrangements, such as facilitative assistance from the United Nations,
may be the most important. In addition, the smaller nonaligned coun-
tries who may well feel most threatened by the continued capability for
CW on the part of the superpowers, might be reassured by being invited
to participate in international programs for CW-monitoring and alarm
systems, and civil defense protections against CW attack.** These cooper-
ative defense efforts might make such attacks less rewarding from a mili-
tary standpoint, with useful reverberations back down the entire policy
chain. This proposal is a precise counterpart of the expansion of world
health activities against infectious disease and may also have civilian

32 Binary CW refers to a system by which two reagents, themselves nontoxic, are mixed
to produce nerve gas within a missile only after it has been enabled and fired. The reagents
could be handled by conventional chemical industrial facilities, bypassing the elaborate safety
precautions that might have earlier required a nerve gas plant.

83 C.-G. Hedén, Defences Against Biological Warfare, 21 AM. Rev. MICROBIOLOGY 639-76
(1970).
Chemical and Biological Weapons 39

by-product advantages in combatting other forms of environmental pol-
lution.

APPENDIX
I. 1971 BW Draft TREATY

DRAFT CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT,
PRODUCTION AND STOCKPILING OF BACTERIOLOGICAL (BIOLOGICAL)
AND TOXIN WEAPONS AND ON THEIR DESTRUCTION*

The States Parties to this Convention,

Determined to act with a view to achieving effective progress towards
general and complete disarmament including the prohibition and elim-
ination of all types of weapons of mass destruction, and convinced that
the prohibition of the development, production and stockpiling of
chemical and bacteriological (biological) weapons and their elimination,
through effective measures, will facilitate the achievement of general
and complete disarmament under strict and effective international con-
trol,

Recognizing the important significance of the Geneva Protocol of
17 June 1925 for the Prohibition of the Use in War of Asphyxiating,
Poisonous or Other Gases, and of Bacteriological Methods of Warfare,
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 ob-
jectives of the Geneva Protocol of 17 June 1925,

Desiring to contribute to the strengthening of confidence between
peoples and the general improvement of the international atmosphere,

Desiring also to contribute to the realization of the purposes and
principles of the Charter of the United Nations,

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 prohibition

34 Excerpts from typewritten manuscript circulated by the Conference of the Committee
on Disarmament, Doc. No. CCD/353, Sept. 28, 1971 (copy on file in the office of the Stanford
Journal of International Studies). [See supplementary note on p. 44.—Ep.]
40 STANFORD JOURNAL OF INTERNATIONAL STUDIES

of the development, production and stockpiling of chemical weapons,
and determined to continue negotiations to that end,

Determined, for the sake of all mankind, to exclude completely the
possibility of bacteriological (biological) agents and toxins being used
as weapons,

Convinced that such use would be repugnant to the conscience of
mankind and that no effort should be spared to minimize this risk,
Have agreed as follows:

Article I

Each State Party to this Convention undertakes never in any cir-
cumstances 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.

Article IT

Each State Party to this Convention undertakes to destroy, or to
divert to peaceful purposes, as soon as possible but not later than nine
months after the entry into force of the Convention all agents, toxins,
weapons, equipment and means of delivery specified in Article I of the
Convention, which are in its possession or under its jurisdiction or con-
trol. In implementing the provisions of this Article all necessary safety
precautions shall be observed to protect populations and the environ-
ment.

Article III

Fach State Party to this Convention undertakes not to transfer to any
recipient whatsoever, directly or indirectly, and not in any way to assist,
encourage, or induce any State, group of States or international organiza-
tions to manufacture or otherwise acquire any of the agents, toxins,
weapons, equipment or means of delivery specified in Article I of the
Convention.

Article IV
Each State Party to this Convention shall, in accordance with its

constitutional processes, take any necessary measures to prohibit and
prevent development, production, stockpiling, acquisition or retention
Chemical and Biological Weapons 41

of the agents, toxins, weapons, equipment and means of delivery speci-
fied in Article I of the Convention, within the territory of such State,
under its jurisdiction or under its control anywhere.

Article V

The States Parties to the Convention undertake to consult one
another and to co-operate in solving any problems which may arise in
relation to the objective of, or in the application of the provisions of,
this Convention. Consultation and co-operation pursuant to this Article
may also be undertaken through appropriate international procedures
within the framework of the United Nations and in accordance with its
Charter.

Article VI

(1) Any State Party to the Convention which finds that any other
State Party is acting in breach of obligations deriving from the provisions
of this Convention may lodge a complaint with the Security Council of
the United Nations. Such a complaint should include all possible evi-
dence confirming its validity, as well as a request for its consideration
by the Security Council.

(2) Each State Party to the Convention undertakes to co-operate in
carrying out any investigation which the Security Council may initiate,
in accordance with the provisions of the United Nations Charter, on the
basis of the complaint received by the Council. The Security Council
shall inform the States Parties to the Convention of the results of the
investigation.

Article VII

Each State Party to the Convention undertakes to provide or support
assistance, in accordance with the United Nations Charter, to any Party
to the Convention which so requests, if the Security Council decides
that such party has been exposed to danger as a result of violation of
this Convention.

Article VIUI

Nothing in this Convention shall be interpreted as in any way limit-
ing or detracting from the obligations assumed by any State under the
Geneva Protocol of 17 June 1925 for the Prohibition of the Use in War
of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Meth-
ods of Warfare.
42 STANFORD JOURNAL OF INTERNATIONAL STUDIES

Article IX

Each State Party to this Convention affirms the recognized objective
of effective prohibition of chemical weapons and, to this end, undertakes
to continue negotiations in good faith with a view to reaching early
agreement on effective measures for the prohibition of their develop-
ment, production and stockpiling and for their destruction, and on
appropriate measures concerning equipment and means of delivery spe-
cifically designed for the production or use of chemical agents for
weapons purposes.

Article X

(1) The States Parties to the Convention undertake to facilitate, and
have the right to participate in, the fullest possible exchange of equip-
ment, materials and scientific and technological information for the use
of bacteriological (biological) agents and toxins for peaceful purposes.
Parties to the Convention in a position to do so shall also co-operate in
contributing individually or together with other States or international
organizations to the further development and application of scientific
discoveries in the field of bacteriology (biology) for prevention of disease,
or for other peaceful purposes.

(2) This Convention shall be implemented in a manner designed to
avoid hampering the economic or technological development of States
Parties to the Convention or international co-operation in the field of
peaceful bacteriological (biological) activities, including the interna-
tional exchange of bacteriological (biological) agents and toxins and
equipment for the processing, use or production of bacteriological (bio-
logical) agents and toxins for peaceful purposes in accordance with the
provisions of this Convention.

Article XI

Any State Party may propose amendments to this Convention.
Amendments shall enter into force for each State Party accepting the
amendments upon their acceptance by a majority of the States Parties
to the Convention and thereafter for each remaining State Party on the
date of acceptance by it.

Article XII

Five years after the entry into force of this Convention, or earlier if
it is requested by a majority of Parties to the Convention by submitting
a proposal to this effect to the Depositary Governments, a conference of
Chemical and Biological Weapons 43

States Parties to the Convention shall be held at Geneva, Switzerland, to
review the operation of this Convention, with a view to assuring that
the purposes of the preamble and the provisions of the Convention,
including the provisions concerning negotiations on chemical weapons,
are being realized. Such review shall take into account any new scientific
and technological developments relevant to this Convention.

Article XII

(1) This Convention shall be of unlimited duration.

(2) Each State Party to this Convention shall in exercising its national
sovereignty have the right to withdraw from the Convention if it decides
that extraordinary events, related to the subject matter of this Conven-
tion have jeopardized the supreme interests of its country. It shall give
notice of such withdrawal to all other States Parties to the Convention
and to the United Nations Security Council three months in advance.
Such notice shall include a statement of the extraordinary events it re-
gards as having jeopardized its supreme interests.

II. GENEVA PROTOCOL OF 1925,

PROTOCOL FOR THE PROHIBITION OF THE USE IN WAR OF
ASPHYXIATING, POISONOUS OR OTHER GASES, AND OF
BACTERIOLOGICAL METHODS OF WARFARE®®

The undersigned Plenipotentiaries, in the name of their respective
Governments:

Whereas the use in war of asphyxiating, poisonous or other gases, and
of all analogous liquids, materials or devices, has been justly condemned
by the general opinion of the civilised world; and

Whereas the prohibition of such use has been declared in Treaties
to which the majority of Powers of the world are Parties; and

To the end that this prohibition shall be universally accepted as a
part of International Law, binding alike the conscience and the practice
of nations;

Declare:

That the High Contracting Parties, so far as they are not already
Parties to Treaties prohibiting such use, accept this prohibition, agree to
extend this prohibition to the use of bacteriological methods of warfare
and agree to be bound as between themselves according to the terms of
this declaration.

35 Excerpts from the Geneva Protoco} of June 17, 192%, 94 L.N.TS. 65; the text is also
reprinted in CARNEGIE ENDOWMENT, supra note 2, at 125.
44 STANFORD JOURNAL OF INTERNATIONAL STUDIES

II]. Presipent Nrxon’s MESSAGE

WHITE HOUSE PRESS RELEASE DATED 19 AUGUST 1970°8

To the Senate of the United States:

With a view to receiving the advice and consent of the Senate to
ratification, I transmit herewith the Protocol for the Prohibition of the
Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacterio-
logical Methods of Warfare, signed at Geneva June 17, 1925. I transmit
also the report by the Secretary of State which sets forth the understand-
ings and the proposed reservation of the United States with respect to
the Protocol.

In submitting this Protocol for approval, I consider it desirable and
appropriate to make the following statements:

—The United States has renounced the first-use of lethal and in-
Capacitating chemical weapons.

—The United States has renounced any use of biological and toxin
weapons.

—Our biological and toxin programs will be confined to research for
defensive purposes, strictly defined. By the example we set, we hope to
contribute to an atmosphere of peace, understanding and confidence
between nations and among men. The policy of the United States Gov-
ernment is to support international efforts to limit biological and toxin
research programs to defensive purposes.

8¢ Excerpts from the message appear here; the full text may be found in CARNEGIE EN-
DOWMENT, Supra note 2, at 129.

[he Treaty on the Prohibition of the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on their Destruction was signed
simultaneously in Washington, London, and Moscow on April 10, 1972, in language largely
identical to that of the draft treaty presented here. Almost all members of the United Nations
have signed it, or have indicated their intention of adhering to it upon the completion of
formalitics dictated by internal law. The principal exceptions are China and France. China
has not yet commented; France has indicated its intention of adhering to the spirit of the
new treaty without undertaking a formal international commitment lacking provisions for
verification. Neither the BW Treaty nor the Geneva Protocol has yet been acted upon by
the United States Senate Foreign Relations Committee—Ep._]