The Shortcomings of Indeterminacy in Arms Control Regimes: The Case of the Biological Weapons Convention

Jack M. Beard

doi:10.1017/S0002930000030098

1 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10, 1972, 26 UST 583, 1015 UNTS 163 [hereinafter BWC].

2 A study by the Central Intelligence Agency reports that advances in science and technology since 1972 have resulted in genetically engineered pathogens with the ability to cause effects “worse than any disease known to man.” John, Mintz & Jody, Warrick, U.S. Unprepared Despite Progress, Experts Say, Wash. Post, Nov. 8, 2004, at A1.Google Scholar

3 A diverse group of sixteen biodefense scientists published a paper describing the Senate anthrax powder as an exceptionally deadly “weapons-grade” version of the bacterium with “high spore concentration, uniform particle size, low electrostatic charge, treated to reduce clumping.” Thomas, V. Inglesby et al., Anthrax as a Biological Weapon, 2002: Updated Recommendations for Management, 287 J. Am. Med. Ass’n 2236, 2237 (2002)Google Scholar; see also Dan, Eggen & Guy, Gugliotta, FBI Secretly Trying to Re-create Anthrax from Mail Attacks, Wash. Post, Nov. 2, 2002, at A9 Google Scholar (describing the particles as “astonishingly pure”); Gary, Matsumoto, Anthrax Powder: State of the Art? 302 Science 1492, 1492–94 (2003)Google Scholar; Reynolds, M. Salerno et al., A BW Risk Assessment: Historical and Technical Perspectives, Nonproliferation Rev., Fall/Winter 2004, at 25, 53 n.50.Google Scholar

4 Although the FBI originally suggested that the anthrax powder could have been produced by a lone amateur working in a basement laboratory, this theory soon came to be regarded as unlikely and was abandoned. Guy, Gugliotta & Gary, Matsumoto, FBI’s Theory on Anthrax Is Doubted; Attacks Not Likely Work of 1 Person, Experts Say, Wash. Post, Oct. 28, 2002, at A1 Google Scholar. The spores were also reportedly identified as belonging to a highly virulent strain of anthrax used in U.S. biodefense research programs. Eileen, Choffnes, Bioweapons: New Labs, More Terror? Bull. Atom. Sci., Sept./Oct. 2002, at 28.Google Scholar After more than five years without an arrest, however, some FBI officials have reportedly questioned the sophistication of the anthrax powder used in the attacks. Allan, Lengel & Joby, Warrick, FBI Is Castinga Wider Net in Anthrax Attacks, Wash. Post, Sept. 25, 2006, at A1.Google Scholar

5 Four of the top five “Nightmares for Disaster Planning” developed by the Department of Homeland Security involve BW attacks. Eric, Lipton, U.S. Lists Possible Terror Attacks and Likely Toll, N.Y. Times, Mar. 16, 2005, at A1.Google Scholar The perceived BW threat also figured prominently—and erroneously—in the arguments of senior U.S. officials justifying an invasion of Iraq. E.g., Steven, R. Weisman, Powell, in UN Speech, Presents Case to Show Iraq Has Not Disarmed, N.Y. Times, Feb. 6, 2003, at A1.Google Scholar

6 President Bush has flatly stated that “[rjogue states and terrorists possess these weapons and are willing to use them.” George, W. Bush, Statement on Strengthening the International Regime Against Biological Weapons, 37 Weekly Comp. Pres. Doc. 1580, 1580 (Nov. 5, 2001).Google Scholar

7 The Secretary-General: Message to the Fifth Review Conference of the States Parties to the Biological Weapons Convention (Nov. 19, 2001), available at <http://www.opbw.org= [hereinafter BWC Web site].

8 The lack of verification mechanisms has been criticized and debated by BWC states parties since at least 1986, resulting in intensive, but unsuccessful, efforts by the “Ad Hoc Group” from 1994 to 2001 to develop a protocol to the BWC that would have established various legally binding declaration, visit, and continuous monitoring procedures. See infra notes 77-84 and corresponding text.

9 Looking at the role that information can play in strategic interactions between states acting with mixed motives, legal scholars have used the well-known Prisoners’ Dilemma and other models drawn from noncooperative game theory to gain valuable insights into the meaning and function of arms control agreements generally. See, e.g., Kenneth, W. Abbott, “Trust But Verify “: The Production of Information in Arms Control Treaties and Other International Agreements, 26 Cornell Int’l L.J. 1 (1993).Google Scholar

10 Arthur A. Stein, Why Nations Cooperate: Circumstance And Choice In International Relations 142 (1990). Transparency is also linked to rationalist explanations of state compliance with international law that rely on reputational concerns. See Kal, Raustiala, Compliance and Effectiveness in International Regulatory Cooperation, 32 Case W. Res. J. Int’l L. 387, 402 (2000).Google Scholar

11 The U.S. government abruptly ended a seven-year-long reform in July 2001 by effectively ending consideration of the BWC draft protocol. See infra notes 80 - 84 and corresponding text.

12 I use the term “determinacy” to encompass concepts of both precision and clarity and I refer to determinate provisions as those that clearly convey their message, communicate their intent, and help “shape that intent into a specific situational command.” Thomas, M. Franck, Legitimacy in the International System, 82 AJIL 705, 725 (1988).Google Scholar

13 Commentators have long suggested that “soft law” can manifest itself in an “infinite variety” of forms. See Baxter, R. R., International Law in Her “Infinite Variety,” 29 Int’l & Comp. L.Q. 549 (1980).CrossRef Google Scholar Sufficient variations of soft law now exist for scholars to suggest that there is “no acepted definition.” Dinah, L. Shelton, Normative Hierarchy in International Law, 100 AJIL 291, 319 (2006)Google Scholar.

14 See Andrew, T. Guzman, A Compliance-Based Theory of International Law, 90 Cal.L. Rev. 1823, 1880 (2002)Google Scholar (“[M]any instruments that are not considered ‘law’ under the classical definition have a substantial impact on the behavior of states.”); Geoffrey, Palmer, New Ways to Make International Environmental Law, 86 AJIL 259, 269 (1992)Google Scholar (describing soft law solutions as “useful steps on a longer journey” and the point where “international law and international politics combine to build new norms”); Anne-Marie, Slaughter et al., International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship, 92 AJIL 367 (1998)Google Scholar (emphasizing the advantages of nonbinding soft law in the context of international governance and the generation of norms by supranational institutions and their dissemination by nongovernmental organizations); David, Weissbrodt & Muria, Kruger, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, 97 AJIL 901, 914 (2003)Google Scholar (noting the impact of soft law on the interpretation of treaties and on the establishment of customary international law in areas such as human rights).

15 Shelton, supra note 13, at 319.

16 Edith Brown, Weiss, Introduction to International Compliance With Non-Binding Accords 1, 3 (Edith Brown, Weiss ed., 1997)Google Scholar [hereinafter International Compliance].

17 See Kenneth, W. Abbott & Duncan, Snidal, Hard and Soft Law in International Governance, 54 Int’l Org. 421, 422 (2000)Google Scholar (arguing that “‘soft law’ begins once legal arrangements are weakened along one or more of the dimensions of obligation, precision, and delegation”); Prosper, Weil, Towards Relative Normativity in International Law? 11 AJIL 413, 414–15 n.7 (1983)Google Scholar (stating that “[i]t would seem better to reserve the term ‘soft law’ for rules that are imprecise and not really compelling”); Shelton, supra note 13, at 319 (noting that “[t]he term ‘soft law’ is also sometimes employed to refer to the weak, vague, or poorly drafted content of a binding instrument”). Unlike hortatory or purely aspirational language, however, such indeterminate provisions retain a legally binding character and are not soft law in the sense that an adjudicative body with jurisdiction would decline to apply them on the grounds that they do not entail a legal obligation whose content can be ascertained by resort to established interpretive techniques.

18 Friedrich, Kratochwil, Rules, Norms, and Decisions 200–01 (1989)Google Scholar; Christine, Chinkin, Normative Developments in the International Legal System, in Commitment and Compliance: The Role of Nonbinding Norms in The International Legal System 21, 25–26 (Dinah, L. Shelton ed., 2000)Google Scholar [hereinafter Commitment and Compliance].

19 See Kal, Raustiala, Form and Substance in International Agreements, 99 AJIL 581, 582 (2005)Google Scholar (suggesting that legality, substance, and structure can be viewed as “distinct design elements” that should be treated holistically in evaluating the effectiveness of international agreements).

20 Atsuko, Kanehara, Some Considerations Regarding Methods of International Regulation in Global Issues: Sovereignty and ‘Common Interests,’ in International Compliance, supra note 16, at 81, 83.Google Scholar

21 Raustiala, supra note 19, at 582, 589-90.

22 Whatever term is used to describe the result, if a broad conceptual framework is applied to the architecture of international agreements, placing indeterminate provisions in a legally binding agreement may be characterized as one of several possible “systematic trade-offs” between form and substance that states make in designing their international commitments. Id. at 581.

23 The security dilemmas that states routinely face in arms control regimes are likely to be significantly more pronounced or acute when such complex dual-use technology is regulated. See infra note 91 and corresponding text.

24 Louis, Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 557 (1992)Google Scholar; Cass, R. Sunstein, Problems with Rules, 83 Cal. L. Rev. 953 (1995)Google Scholar; Robert, Weisberg, The Calabresian Judicial Artist: Statutes and the New Legal Process, 35 Stan. L. Rev. 213 (1983)Google Scholar.

25 The WTO Appellate Body, for example, applies and interprets some indeterminate language in the context of economic regulation. Joel, P. Trachtman, The Domain of WTO Dispute Resolution, 40 Harv. Int’l L.J. 333, 337–38 (1999)Google Scholar. Similarly, “friendship, commerce and navigation” treaties contain standards that are sometimes interpreted by the International Court of Justice. See Kenneth, J. Vandevelde, A Brief History of International Investment Agreements, 12 U.C. Davis J. Int’l L. & Pol’y 157, 164–65 (2005).Google Scholar

26 Underlying state motivations may be described as “preferences” as to goals or outcomes as opposed to strategies or ways to reach goals. Robert, Powell, Anarchy in International Relations Theory: The Neorealist-Neoliberal Debate, 48 Int’l Org. 330 (1994)Google Scholar.

27 See Stephen, D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, in International Regimes 1 (Stephen, D. Krasner ed., 1983)Google Scholar; see also Stephen, D. Krasner, Global Communications and National Power: Life on the Pareto Frontier, 43 World Pol. 336 (1991).Google Scholar

28 Bilateral arms control treaties help illustrate how states generally prefer recourse to unilateral measures or bilateral dispute resolution procedures rather than entrusting third parties with the power to interpret terms that relate to national security in such agreements. See, e.g., Note, Legal Models of Arms Control: Past, Present, and Future, 100 Harv. L. Rev. 1326 (1987)Google Scholar (noting that the ABM, SALT I, and SALT II treaties all established a Standing Consultative Commission (SCC) to interpret ambiguous phrases but that the USS Rand the United States never invited other parties to participate in SCC proceedings); Angela, M. Bradley, Opposing Interpretations of an International Treaty: The Anti-ballistic Missile Treaty Controversy, 2 Chi. J. Int’l L. 295, 296 (2001).Google Scholar

29 See, e.g., Richard, L. Williamson Jr., Is International Law Relevant to Arms Control? Hard Law, Soft Law, and Non-law in Multilateral’ Arms Control: Some Compliance Hypotheses, 4 Chi. J. Int’ll. 59, 63 n.14 (2003)Google Scholar (further arguing that “[l]ittle in arms control seems to depend on whether one thinks of this category as a subset of soft law or just very mushy hard law”).

30 See Barry, Kellman, Protection of Nuclear Materials, in Commitment and Compliance, supra note 18, at 486,494–95 Google Scholar (arguing that soft law makes a better framework than hard law for the regulation of nuclear materials protection); Abram, Chayes & Dinah, Shelton, Multilateral Arms Control: Commentary, in id.at 521, 526 Google Scholar (“Soft law can make an important contribution because it can more quickly respond to changing weapons technologies that create uncertainty about the risks of the future strategic situation and the mechanisms to minimize them.”).

31 There are various primitive examples of biological warfare. See Robin, Clarke, The Silent Weapons 14 (1968)Google Scholar; George, Deaux, The Black Death: 1347, at 1444 (1969)Google Scholar; Jeffery, K. Smart, History of Chemical and Biological Warfare: An American Perspective, in 16 Textbook Of Military Medicine: Medical Aspects Of Chemical And Biological Warfare 9, 12 (Frederick, R. Sidell et al. eds., 1997).Google Scholar

32 Convention with Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803, 1 Bevans 247 (prohibited, inter alia, the use of poison or poisoned arms); Declaration Concerning Asphyxiating Gases, July 29,1899, Texts of The Peace Conferences At The Hague, 1899 AND 1907, at 81 (James Brown Scott ed., 1908), 1907 Gr. Brit. TS No. 32 (Cd. 3751) (banned “the use of projectiles the sole object of which is the diffusion of asphyxiating gases”); Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907,36 Stat. 2277, 1 Bevans 631 (included a declaration outlawing the use of asphyxiating gases).

33 1st and 2nd meetings of the General Committee of the Conference for the Supervision of the International Trade in Arms and Ammunition and in Implements of War, League of Nations Doc. A. 13.1925 .IX. Although the term “bacteriological” has a narrower scientific definition than “biological,” in legal contexts the two terms have been used interchangeably in disarmament negotiations since before World War II. See Boserup, A., CBW and The Law of War 43 (Stockholm International Peace Research Institute [SIPRI], The Problem of Chemical and Biological Warfare Vol. 3, 1973).Google Scholar The broad, modern international legal definition of biological weapons encompasses several known categories of pathogens and toxins and also includes those that may come from as yet undiscovered sources, “regardless of any technical developments.” SrcGAR.es. 2603A(XXIV) (Dec. 16, 1969); see also infra note 39. The broad scope of this general prohibition has been repeatedly reaffirmed by states at BWC review conferences.

34 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 UST 571, 94 LNTS 65.

35 As a forward-looking ban, the prohibition on the use of biological weapons envisioned by the Geneva Protocol was comprehensive in spirit. See Boserup, supra note 33, at 40 - 41 . The all-inclusive scope of the prohibition was reinforced by the term methods of warfare, potentially extending its coverage to a wide variety of means, processes, designs, delivery systems, and types of targets. Id. at 71.

36 By agreeing to prohibit the use of biological weapons only “in war,” the parties to the Geneva Protocol left open the possibility of using biological weapons in noninternational armed conflicts, or in other contexts not amounting to “war.” See id. at 28-33.

37 Although the prohibition against the use of asphyxiating, poisonous, or other gases was viewed by some as a reaffirmation of an existing norm, the prohibition against biological weapons was an innovation that had not yet attained that status, leaving the parties bound in this area only “as between themselves according to the terms of this declaration.” Id. at 21-23.

38 See, for example, the reservations of France, the Soviet Union, and the United Kingdom, Geneva Protocol Reservations, SIPRI, High Contracting Parties to the Geneva Protocol (2005), available at <http://www.sipri.org/contents/cbwarfare/cbw_research_doc/cbw_historical/cbw_historical.html=. Although forty-two states originally made reservations to the Protocol, many would later withdraw them upon becoming a party to the BWC.

39 The regulation of biological weapons has always been complicated by the requirement of intention, while no such requirement is stated for chemical weapons. See Ingrid, Detter, The Law of War 258 (2d ed. 2000).Google Scholar Thus, the UN General Assembly has defined prohibited biological agents of warfare as “living organisms, whatever their nature, or infective material derived from them—which are intended to cause disease or death in man, animals or plants.” GA Res. 2603A (XXIV), supra note 33 (emphasis added).

40 J. Perry, Robinson & Leitenberg, M., The Rise of CB Weapons 332 Google Scholar (SIPRI, The Problem of Chemical and Biological Warfare Vol. 1, 1971) (arguing that during the interwar years groups of individuals in the most powerful states decided that potential enemy countries were interested in biological warfare when in fact it appears that in most countries other than Japan biological weapons were “at most the part-time concern of very small groups of people”).

41 Id. at 332-33.

42 Sheldon, H. Harris, Factories of Death: Japanese Biological Warfare 1932-45 and The American Cover-UP 161 (1995)Google Scholar; see also Barton, J. Bernstein, Churchill’s Secret Biological Weapons, Bull. Atom. Sci., Jan./Feb. 1987, at 46, 47–49.Google Scholar

43 Early U.S. BW planners concluded that “the best defense is offense and the threat of offense.” U.S. National Academies, War Bureau of Consultants, Final Report (1942), quoted in Ed Regis, The Biology of Doom: The History of America’s Secret Germ Warfare Project 177 (1999). Britain conducted tests in which 25-pound anthrax bombs were dropped among tethered sheep on Gruinard Island off the coast of Scotland. Tom Mangold & Jeff Goldberg, Plague Wars 30 (2001); Bernstein, supra note 42.

44 Daniel, Barenblatt, A Plague Upon Humanity: The Secret History of Axis Japan’s Germ Warfare Operation 207–09 (2004)Google Scholar; Mangold & Goldberg, supra note 43, at 27-28, 44; Regis, supra note 43, at 107-11.

45 Bernstein, supra note 42, at 49; Henry L. Stimson Center, History of the U.S. Offensive Biological Warfare Program (1941-1973), available at <http://www.stimson.org/cbw/?sn=CB2001121275=.Google Scholar

46 National Security Council, Reg. NSC 5062/1 (Mar. 15, 1956), quoted in Regis, supra note 43, at 177. This new policy appeared to be broad enough to envision the first use of biological weapons.

47 Richard, M. Nixon, Statement on Chemical and Biological Defense Policies and Programs, 1969 Pub. Papers 461, 461 (Nov. 25, 1969).Google Scholar The renunciation was later extended to cover the use and production of all biological toxins as well. Mangold & Goldberg, supra note 43, at 56 n.22 (citing White House Press Release (Feb. 14, 1970)).

48 Mangold & Goldberg, supra note 43, at 55, 61. U.S. military officials believed that biological weapons were not likely to be useful for either tactical applications or strategic deterrence. President Nixon is quoted as telling his staff, “We’ll never use the damn germs, so what good is biological warfare as a deterrent? If somebody uses germs on us, we’ll nuke ‘em.” William, Safire, Essays; Iraq’s Ton of Germs, N.Y. Times, Apr. 13, 1995, at A25.Google Scholar

49 In August 1968, the United Kingdom proposed a convention banning biological weapons by submitting a working paper to the Eighteen-Nation Disarmament Committee. Susan, Wright, Evolution of Biological Warfare Policy, 1945-1990, in Preventing a Biological arms Race 26, 38 (Susan, Wright ed., 1990).Google Scholar

50 Mangold & Goldberg, supra note 43, at 57.

51 On December 16, 1971, the General Assembly approved the treaty by a vote of 110-0. GARes. 2826 (XXVI) (Dec. 16, 1971).

52 Following the Senate’s advice and consent, President Gerald Ford ratified the treaty for the United States and also took the long-overdue action of ratifying the Geneva Protocol, doing so with no reservations regarding the use of biological weapons.

53 Although there are at least seventy-eight different two-person, two-strategy games, game theorists and political scientists have often focused on the Prisoners’ Dilemma and its associated problems, even though it does not apply to most conflicts. William Poundstone, Prisoner’s Dilemma 129 (1992). The Prisoners’ Dilemma in fact became so commonly associated with nuclear arms rivalry that it was “oversold” as a paradigm for Cold War relations, sometimes overshadowing the realities of arms races. Id.

54 Many arms races are not true Prisoners’ Dilemmas since relativistic assessments of mutual armament and disarmament may appear to provide higher returns to one of the parties, resulting in a zero-sum game in which the equilibrium outcome is no longer Pareto-deficient. Stein, supra note 10, at 126-27. While a disarmament agreement is more likely to meet the requirements for a true Prisoners’ Dilemma, the parties negotiating such agreements may not be genuinely focused on reducing competition between themselves but may instead be more interested in achieving relative advantages over third parties. Id. at 133.

55 See Letter from Matthew S. Meselson to Henry A. Kissinger, national security adviser (Sept. 1969), quoted in Judith, Miller et al., Germs: Biological Weapons and America’s Secret War 62 (2001)Google Scholar; Susan, Wright, Introduction: In Search of a New Paradigm of Biological Disarmament, in Biological Warfare And Disarmament: New Problems/New Perspectives 3, 7 (Susan, Wright ed., 2002).Google Scholar

56 See Susan, Wright, Geopolitical Origins, in Biological Warfare and Disarmament, supra note 55, at 313, 323 Google Scholar (drawing largely on declassified UK government biological arms control studies).

57 See Anthony, Rimmington, The Soviet Union’s Offensive Program: The Implications for Contemporary Arms Control, in Biological Warfare and Disarmament, supra note 55, at 103,121.Google Scholar

58 See Abbott & Snidal, supra note 17, at 436.

59 Id. at 423, 436 (noting how soft law can serve as a “compromise at a point in time” that can accommodate “different interests and values, different time horizons and discount rates, and different degrees of power”); Raustiala, supra note 19, at 586, 613; Weiss, supra note 16, at 6.

60 For a review of formerly classified internal documents detailing the British government’s deliberations on joining the BWC and its assessment of the legal, political, and military implications of biological and chemical disarmament, see Wright, supra note 56, at 313-42. For a variety of reasons, including a desire to protect both commercial and military secrets, the Western powers were also reluctant to accept highly intrusive verification measures. Id. at 335.

61 Id. at 336; Jonathan, B. Tucker, A Farewell to Germs: The U.S. Renunciation of Biological and Toxin Warfare, 1969-70, 27 Int’l Security 107, 124 (2002)Google Scholar (discussing the desire of U.S. military planners to maintain a sufficient BW program to “avoid technological surprise by an enemy”).

62 BWC, supra note 1, Art. 1(1).

63 Id.

64 Weapons, equipment, or means of delivery of agents and toxins are also prohibited, provided that they are “designed to use such agents or toxins for hostile purposes or in armed conflict.” Id., Alt. 1(2).

65 The BWC envisions that states parties will do much of the policing, requiring each one to take “any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition, or retention of the agents, toxins, weapons, equipment and means of delivery specified in article I of the Convention, within the territory of such State, under its jurisdiction or under its control anywhere.” Id., Art IV.

66 Id., Art. VI(1). Without UN action, resolution of disputes between states parties is subject only to voluntary consultation and cooperation under Article V.

67 Id., Art. X(l). In addition, the states parties are encouraged to cooperate in contributing to the “further development and application of scientific discoveries in the field of bacteriology (biology) for prevention of disease, or for other peaceful purposes.” Id.

68 Id., Art.X(2).

69 Rimmington, supra note 57, at 108-13; see also Amy, E. Smithson, Toxic Archipelago: Preventing Proliferation from The Former Soviet Chemical and Biological Weapons Complexes 10 (Henry, L. Stimson Center Report No. 32, Dec. 1999), available at <http://www.stimson.org/cbw/pdf/toxicarch.pdf=>>Google Scholar; Jonathan, B. Tucker et al., Biological Weapons Proliferation from Russia: How Great a Threat? in Repairing The Regime: Preventing The Spread of Weapons of Mass Destruction 217, 217–19(Joseph, Cirincione ed., 2000).Google Scholar

70 Michael, Moodie, The Soviet Union, Russia, and the Biological and Toxin Weapons Convention, Nonproliferation Rev., Spring 2001, at 59, 60–61.Google Scholar

71 States parties held a review conference five years after the BWC’s entry into force to assure its provisions were being “realized.” BWC, supra note 1, Art. XII. The first review conference was held in Geneva on March 3-21, 1980, and subsequent review conferences have since been held every five years.

72 Second Review Conference of the Parties to the BWC, Final Document: Part II, Final Declaration, Doc. BWC/CONF. 11/13/11 (1986), available at BWC Web site, supra note 7. These voluntary exchanges were conducted as a “consultation” activity under Article V.

73 Third Review Conference of the Parties to the BWC, Final Document: Part II, Final Declaration, Annex, Doc. BWC/CONF.III/23 (Part II Annex) (1991), available at BWC Web site, supra note 7.

74 Id, Final Declaration, Doc. BWC/CONF.III/23 (Part II), Art. V. In September 1993, VEREX issued a report concluding that a combination of twenty-one verification and assurance measures (including information monitoring, data exchange, remote sensing, inspections, and continuous monitoring) could help strengthen the BWC through increased transparency. See Ad Hoc Group of Governmental Experts to Identify and Examine Potential Verification Measures from a Scientific and Technical Standpoint: Summary Report, Doc. BWC/CONF.Ill/ VEREX/8, at 7 -8 (1993), available at BWC Web site, supra note 7.

75 Graham, S. Pearson, The Essentials of Biological Threat Assessment, in Biological Warfare 55, 75–78 (Raymond, A. Zilinskas ed., 2000).Google Scholar

76 See Jonathan, B. Tucker, The BWC New Process: A Preliminary Assessment, Nonproliferation Rev., Spring 2004, at 26, 28, available at <http://cns.miis.edu/pubs/npr/voll1/111/111tucker.pdf=>Google Scholar (noting that since the first CBMs were developed in 1986, “only a small minority of member states have submitted the CBM declarations on a consistent basis”).

77 For a review of the Ad Hoc Group’s unsuccessful attempt to develop a BWC verification protocol and an examination of its different components, see Jez, Littlewood, The Biological Weapons Convention: a Failed Revolution (2005).Google Scholar

78 Richard, Butler, Inspecting Iraq, in Repairing the Regime, supra note 69, at 175, 175–78.Google Scholar Iraq signed the BWC on May 11, 1972, and finally ratified it on June 19, 1991, after being directed to do so by the UN Security Council. SC Res. 687, paras. 8-10 (Apr. 3, 1991).

79 Protocol to the BWC, Doc. BWC/AD HOC GROUP/CRP.8 (draft, Apr. 3, 2001), available at BWC Web site, supra note 7. The proposed legally binding text included provisions requiring states to make declarations regarding their biodefense programs and relevant facilities, to submit to routine site visits and challenge-type investigations of suspect facilities, and to permit investigations of suspicious outbreaks of infectious disease.

80 Ambassador Donald, Mahley, Statement to the Ad Hoc Group of Biological Weapons Convention States Parties (July 25, 2001), at <http://www.state.gOv/t/ac/rls/rm/2001/5497.htm=>>Google Scholar.

81 See, e.g., Editorial, Germ-Warfare Abdication, Boston Globe, Nov. 16, 2002, at A18 Google Scholar (arguing that both the Clinton and Bush administrations “bought the dubious argument of representatives of the pharmaceutical industry that an aggressive system of international inspections might result in the disclosure of trade secrets”); Rachel, Giese, Fear and Secrecy Along 49th Parallel, Toronto Star, Dec. 6, 2001, at A35.Google Scholar

82 Michael, Crowley, Letter to the Editor, Iraq’s Weapons, Independent (London), Dec. 5, 2001, at 2 Google Scholar (senior analyst, British American Security Information Council, noting that “the US consistently watered down suggestions for intrusive investigations due to concerns over national security and the protection of its pharmaceutical industry. It then rejected and effectively destroyed the whole protocol process on grounds that it would ‘not improve our ability to verify compliance’.”).

83 John, R. Bolton, Remarks to the 5th Biological Weapons Convention RevCon Meeting (Nov. 19, 2001), available at <http://www.state.gOv/t/us/rm/janjuly/6231.htm=>>Google Scholar. The states that the United States accused of pursuing prohibited BW programs were Iran, Iraq, Libya, North Korea, Sudan, and Syria. The United States has continued to make such allegations against several of these countries, most recently at the sixth review conference in 2006.

84 See Fifth Review Conference of the States Parties to the BWC, Final Document, Doc. BWC/CONF.V/17 (2002), available at BWC Web site, supra note 7. States parties have since been engaged in brief meetings designed to “discuss, and promote common understanding and effective action” on voluntary measures. Id., para. 18(a). Delegates to the sixth review conference in 2006 continued to avoid discussing any initiatives similar to the draft protocol and agreed on little beyond the need for continuing to talk. See Peter, Crail, The Sixth Review Conference of the Biological Weapons Convention: Success or Failure? [interview of Jonathan, B. Tucker] (Jan. 4, 2007), at <http://cns.miis.edu/pubs/week/070I04.htm=>>Google Scholar (observing that the fact that the conference was hailed as a success “suggests how dysfunctional the biological arms control process has become”).

85 With a lack of determinate rules and no monitoring mechanisms to confirm suspicions, there is predictable disagreement among experts about which states are states of BW concern. Various research institutes and nonproliferation experts list approximately a dozen states that, to varying degrees, could be considered of BW concern, with a higher level of consensus on the following nine countries: China, Egypt, India, Iran, Israel, North Korea, Russia, Syria, and, with growing reservations, Cuba. See Joseph, Cirincione et al., Deadly Arsenals: Tracking Weapons of Mass Destruction 68 (2d ed. 2005)Google Scholar; Arms Control Association, Chemical and Biological Weapons Proliferation at a Glance (2002), at <http://www.armscontrol.org/factsheets/=>>Google Scholar; Federation of American Scientists, States Possessing, Pursuing or Capable of Acquiring Weapons of Mass Destruction (2000), at <http://www.fas.org/irp/threat/wmd_state.htm=>>Google Scholar; Center for Nonproliferation Studies, Chemical and Biological Weapons: Possession and Programs Past and Present (2002), at <http://cns.miis.edu/research/cbw/=>>Google Scholar; Henry L. Stimson Center, Biological Weapons Proliferation Concerns (2007), at <http://www.stimson.org/cbw/?sn=CB2001121274=>>Google Scholar.

86 See, e.g., Seth, Brugger, Briefing Paper on the Status of Biological Weapons Nonproliferation (Arms Control Association, Sept. 2002, updated by Kerry, Boyd, May 2003), available at <http://www.armscontrol.org/pdf/bwissuebrief.pdf=>>Google Scholar; see also Milton, Leitenberg et al., Biodefense Crossing the Line, 22 Pol. & Life Sci. 1, 1–2 (2004).Google Scholar

87 See Stein, supra note 10, at 97, 40; Guido den, Dekker, The Effectiveness of International Supervision in Arms Control, 9 J. Conflict & Security 315 (2004).Google Scholar

88 See Chayes & Shelton, supra note 30, at 523-24 (arguing that “some of the most elaborate ‘soft’ international law” is in the area of arms control).

89 See supra notes 29 and 30.

90 Williamson, supra note 29, at 64 (suggesting that “[t]he role of law in fostering compliance may be quite different in bilateral arms control than in multilateral arms control”). Game theory suggests that in contrast to two player scenarios, multistate Prisoners’ Dilemma may be more difficult for participants to overcome. Further complications are created by increased monitoring costs and the likelihood of increased “undetected or unredressed free-riding.” Jack, L. Goldsmith & Eric, A. Posner, The Limits of International Law 36 (2006).Google Scholar

91 See Robert, Jervis, Cooperation Under the Security Dilemma, 30 World Pol. 167, 186–206 (1978).Google Scholar

92 Stein, supra note 10, at 97. Thus, rational arguments may be made by states both for cooperation and for defection in any particular situation. Id.

93 Id. While mutual cooperation is a Pareto-superior outcome to mutual defection, a state may also rationally choose to pursue a dominant strategy of defection regardless of other states’ actions or it may choose to defect on a defensive basis to ensure that it at least achieves its maximum possible outcome in the context of feared noncooperation. Id.

94 Id. at 40.

95 See Robert, Jervis, Security Regimes, in International Regimes, supra note 27, at 173, 174.Google Scholar

96 Id.

97 See Robert, Jervis, Realism, Neoliberalism, and Cooperation: Understanding the Debate, 24 Int’l Security 42, 49 (1999).Google Scholar

98 Chayes & Shelton, supra note 30, at 521.

99 See, e.g., Jeffrey, L. Dunoff & Joel, P. Trachtman, The Law and Economics of Humanitarian Law Violations in Internal Conflict, 93 AJIL 404 (1999)Google Scholar (suggesting that an agreement providing enhanced individual responsibility for human rights violations in internal conflicts could overcome Prisoners’ Dilemmas and help suppress incentives for states to defect when it is accompanied by commitment techniques that provide some assurance that the agreement will be performed, such as universal jurisdiction or some kind of mandatory “extraterritorial” jurisdiction); Laurence, R. Heifer, Exiting Treaties, 91 Va. L. Rev. 1579, 1631–32 (2005)Google Scholar (suggesting that the Prisoners’ Dilemma may be overcome in some multilateral agreements by better ensuring iteration or an increased “shadow of the future” by restricting exit opportunities).

100 Abbott, supra note 9, at 4-5.

101 As Thomas Franck notes, indeterminacy also has costs and these costs are usually “paid in the coin of legitimacy.” Thomas, M. Franck, The Power of Legitimacy Among Nations 53–54 (1990)Google Scholar. Franck further suggests that “[t]he degree of determinacy of a rule directly affects the degree of its perceived legitimacy,” and that “the more determinate the standard, the more difficult it is to resist the pull of the rule to compliance and to justify noncompliance.” Franck, supra note 12, at 716, 714.

102 Franck, supra note 101, at 54-55.

103 See Thomas, C. Schelling, The Strategy of Conflict 21–52 (1960)Google Scholar; Oliver, Williamson, The Mechanisms of Governance 48–9 (1985).Google Scholar

104 See, e.g., James, D. Fearon, Signaling Foreign Policy Interests: Tying Hands Versus Sinking Costs, 41 J. Conflict Resol. 68 (1997)Google Scholar; Slaughter et al., supra note 14, at 386 (noting how Institutionalists focus on credible commitments in international relations theory as one of several mechanisms that can reduce the opportunity for cheating).

105 See Charles, Lipson, Why Are Some International Agreements Informal? 45 Int’l Org. 495, 508, 511 (1991)Google Scholar (noting that states use treaties to “signal their intentions with special intensity and gravity,” to “underscore the durability and significance of the underlying promises,” and as “a conventional way of raising the credibility of promises by staking national reputation on adherence”); see also Jack, L. Goldsmith & Eric, A. Posner, International Agreements: A Rational Choice Approach, 44 Va. J. Int’l L. 113, 127 (2003).Google Scholar

106 Jon, Hovi, Games, Threats & Treaties 16 (1998)Google Scholar; Schelling, supra note 103, at 21-52. In terms of psychological mechanisms, experiments have demonstrated that a clear message that seems to make sense will be accepted regardless of its source, while a message with less clear content is more likely to be accepted only if it comes from a respected source. Robert Jervis, Perception and Misperception in International Politics 123 (1976).

107 See Robert, Axelrod, The Evolution of Cooperation 140 (1984)Google Scholar (suggesting that recognizing defection is an important requirement in promoting cooperation and that the “scope of sustainable cooperation can be expanded by any improvements in the players’ ability to recognize each other from the past, and to be confident about the prior actions that have actually been taken”).

108 See Abbott & Snidal, supra note 17, at 446; Chayes & Shelton, supra note 30, at 526.

109 See Raustiala, supra note 19, at 611.

110 See, e.g., Axelrod, supra note 107, at 140 (noting that the technical difficulties in monitoring nuclear explosions and distinguishing them from earthquakes under applicable test ban treaties were eventually overcome by advances in technology); Mohamed, ElBaradei [IAEA director general], Nuclear Technology in a Changing World: Have We Reached a Turning Point? (Nov. 3, 2005), at <http://www.iaea.org/Archive/DgStatements/2005.html=>>Google Scholar (noting the key role of advanced technology in IAEA efforts to prevent nuclear weapons proliferation, such as the use of advanced nuclear forensic techniques to help to “reconstruct the chronology and nature of past nuclear activity, and to verify the origin of the associated nuclear material”).

111 If the terms of a bilateral arms control agreement are sufficiently determinate, states have shown themselves able to establish procedures to control related technology even if it is currently unknown. See, e.g., Treaty on the Limitation of Anti-ballistic Missile Systems, Agreed Interpretations, Common Understandings and Unilateral Statements, Statement D, May 26, 1972, U.S.-USSR, 23 UST 3435,3456,944 UNTS 13 (committing the parties to conduct additional negotiations with a view to establishing appropriate limitations for future antiballistic missile systems if based on technologies utilizing physical principles not present at the time the treaty enters into force).

112 See Edwin, M. Smith, Understanding Dynamic Obligations:Arms ControlAgreements, 64 S.Cal.L.Rev. 1549, 1604 (1991).Google Scholar

113 As long as the possibility exists that conflict will be conducted by force, “competition in the arts and the instruments of force” will take place. Kenneth N. Waltz, Theory of International Politics, Anarchic Orders and Balances of Power 180(1979) (further suggesting that this competition will produce a tendency toward sameness of competitors and that contending states will imitate the military innovations of the country of greatest capability and ingenuity); see also John, J. Mearsheimer, The Tragedy of Great Power Politics 231–32 (2001).Google Scholar

114 Mearsheimer, supra note 113, at 231.

115 See, e.g., Raustiala, supra note 19, at 583 n.10.

116 See Stein, supra note 10, at 133. A frequently cited example is the experience of the Washington Naval Armaments Treaty of 1922 in which the major naval powers of the world agreed to limit the construction of a variety of different types of ships then in existence, resulting immediately in a major arms race in the classes of ships not covered by the agreement. Charles, H. Fairbanks et al., Arms Control to Arms Reductions: The Historical Experience, Wash. Q., Summer 1987, at 59 Google Scholar (noting that the Washington Naval Treaty ironically encouraged the extraordinarily rapid emergence of the aircraft carrier).

117 Unsubstantiated allegations by the U.S. representative at the fifth review conference in 2001 that six specific states were pursuing illegal BW programs were accompanied by vague assertions of other noncompliant states that were not publicly identified. See Bolton, supra note 83. These U.S. allegations were widely criticized as selective and politically motivated. Richard, Wolffe, US Names Iran as Chief State Sponsor of Terror, Fin. Times (London), May 22, 2002, at 1.Google Scholar U.S. nonproliferation experts would also later claim that BW and other WMD intelligence had been exaggerated to make a case for unilateral American action against countries such as Cuba and Iraq. Steven, R. Weisman, In Stricter Study, U.S. Scales back Claim on Cuba Arms, N.Y. Times, Sept. 18, 2004, at A5 Google Scholar; Sonni, Efron, Harsh Critic of U.N. Named Ambassador, L.A. Times, Mar. 8, 2005, at A1.Google Scholar

118 See Richard, Falk, Inhibiting the Reliance on Biological Weaponry: The Role and Relevance of International Law, in Preventing a Biological Arms Race, supra note 49, at 241, 244.Google Scholar

119 As early as 1986, the BWC Conference of States Parties officially noted “apprehensions” about developments in microbiology, genetic engineering, and biotechnology, but could not agree on any serious reforms to address them. See Final Declaration, supra note 72, Art. I.

120 Egypt, Israel, and Syria are widely viewed by nonproliferation experts and many governments as having offensive BW research programs or some level of BW capability. See supra note 85.

121 All states in the region are parties to the BWC except Egypt, Israel, Syria, and the United Arab Emirates (UAE); however, Egypt, Israel, and Syria are parties to the Geneva Protocol. See SIPRI, supra note 36. Egypt and Syria have signed but not yet ratified the BWC. See BWC Web site, supra note 7. Although Israel is a nonsignatory, it attends BWC review sessions as an observer.

122 One of these legacies in the Middle East appears to be that WMDs are most likely to be used against states and populations that do not possess them, creating the strategic perception that the best deterrent against such weapons is the ability to launch an in-kind response. Peter, Sabin, Restraints on Chemical, Biological, and Nuclear Use: Some Lessons from History, in Non-Conventional-Weapons Proliferation in The Middle East: Tackling The Spread of Nuclear, Chemical, and Biological Capabilities 13, 15 (Efraim, Karshetal.eds., 1993)Google Scholar [hereinafter Non-Conventional-Weapons Proliferation].

123 The alleged involvement of Iran in BW and CW programs apparently began as defensive measures in response to the extensive and devastating use of chemical weapons against it during the Iran-Iraq war (1980-1988) and is widely suspected of continuing. See Central Intelligence Agency, Unclassified Report to Congress on the Acquisition of Technology Relating to Weapons of Mass Destruction and Advanced Conventional Munitions, 1 January Through 30 June 2001 (2001), available at <https://www.cia.gov/cia/reports/archive/reports_2001.html=>>Google Scholar. Iran’s interests in biological weapons thus did not originate in a strategy to use them to threaten other states in the region.

124 The considerable deterrent value that Iraq perceived with respect to its apparent chemical weapons capabilities was extensively (and ironically) documented by U.S. investigators interviewing former Iraqi officials and reviewing Iraqi government records after the U.S. invasion of Iraq. See Transmittal Message, in 1 Comprehensive Report of the Special Advisor to the Dci on Iraq’s WMD 1 (2004)Google Scholar [hereinafter CIA Comprehensive Report], available at <https://www.cia.gov/cia/reports/iraq_wmd_2004/=>. Saddam’s view that WMDs had helped to save his regime on multiple occasions helps explain why he “purposely gave an ambiguous impression about possession as a deterrent to Iran,” although this approach would have unexpected consequences for his regime in its relations with both the United Nations and the United States. Id. at 9.

125 See Susan, Wright & Richard, Falk, Rethinking Biological Disarmament, in Biological Warfare and Disarmament, supra note 55, at 413, 421.Google Scholar

126 Judith, Miller et al., U.S. Germ Warfare Research Pushes Treaty Limits, N.Y. Times, Sept. 4, 2001, at A1 Google Scholar; Judith, Miller, When Is a Bomb Not a Bomb? Germ Experts Confront U.S., N.Y. Times, Sept. 5, 2001, at A5 Google Scholar [hereinafter Miller, Not a Bomb].

127 Victoria Clarke, assistant secretary of defense for public affairs, U.S. Department of Defense, Regular Briefing (Sept. 4, 2001), available in Lexis, Federal News Service File.

128 Judith, Miller, Next to Old Rec Hall, a ‘Germ-Making Plant,’ N.Y. Times, Sept. 4, 2001, at A6.Google Scholar Project Bachus was designed to assess the difficulties in constructing a BW facility using only commercially available components and to find out whether it emitted “signatures” for identification purposes. See Miller et al., supra note 55, at 297-99; Miller et al., supra note 126.

129 Miller et al., supra note 55, at 290-96; Miller et al., supra note 126.

130 Miller et al., supra note 55, at 308-12; Vernon, Loeb, U.S. Seeks Duplicate of Russian Anthrax; Microbe to Be Used to Check Vaccine, Wash. Post, Sept. 5, 2001, at A16.Google Scholar

131 See Miller, Not a Bomb, supra note 126 (quoting a former U.S. arms control official as saying that other countries would call it “a dangerous violation of the treaty,” and that “it surely appears to be a violation of the treaty in terms of common interpretation”); see also Seth, Brugger, International Reaction to Secret U.S. Bio-weapons Research Muted, 31 Arms Control Today, Oct. 2001, at 22, 22 Google Scholar(quoting a European official as saying that the projects made “gray areas grayer still” when attempting to distinguish offensive from defensive activities under the BWC); Oliver, Meie, On the Wrong Side of the Line? Bull. Atom. Sci, Nov./Dec. 2001, at 19, 21 Google Scholar

132 Joby, Warrick, The Secretive Fight Against Bioterror, Wash. Post, July 30, 2006, at A1 Google Scholar (quoting one arms control expert as saying that “[i]f we saw others doing this kind of research, we would view it as an infringement of the bioweapons treaty”).

133 Loeb, supra note 130.

134 Susan, Wright, Taking Biodefense Too Far, Bull. Atom. Sci., Nov./Dec. 2004, at 58, 63.Google Scholar

135 Id. at 63-64.

136 Leitenberg et al., supra note 86, at 3.

137 Wright, supra note 134, at 65.

138 See Goldsmith & Posner, supra note 105, at 124-25; see also Chayes & Shelton, supra note 30, at 526-27 (arguing that some evidence in arms control cases suggests that legally binding norms create their own compliance pull and that “a norm in a treaty may induce more conforming state behavior than one that is purely non-binding”).

139 Lipson, supra note 105, at 511 (noting that while treaty commitments can be used to deceive unwary states and create false presumptions of compliance,” [i] nformal agreements are less susceptible to these dangers. They raise expectations less than treaties and so are less likely to dupe the naive.”).

140 This problem was demonstrated by the contentious efforts of the British, Americans, and Russians to inspect each others’ BW facilities in the early 1990s without the benefit of agreed BWC benchmarks. See infra notes 181-83 and corresponding text.

141 Lipson, supra note 105, at 508 (noting that states desiring to signal a binding commitment use formal agreements to raise the political costs of noncompliance and that these costs “are highest when the agreement contains specific written promises”); see also Raustiala, supra note 19, at 5 82 (noting how trade-offs between ex ante credibility and ex post flexibility are central to functionalist analysis).

142 See Franck, supra note 12, at 721 (noting that rules that lend themselves to broad interpretations, even for humane or rational reasons, are “unlikely to inhibit any state from pursuing every opportunity for short-term interest gratification”); Claire, R. Kelly, The Value Vacuum: Self-Enforcing Regimes and the Dilution of the Normative Feedback Loop, 22 Mich. J. Int’l L. 673, 706 (2001).Google Scholar

143 Franck, supra note 12, at 716.

144 Id.

145 Malcolm, R. Dando, New Developments in Biotechnology and Their Impact on Biological Warfare, in Enhancing The Biological Weapons Convention 21 (Oliver, Thriinerted., 1996)Google Scholar [hereinafter Enhancing the BWC].

146 Smith, supra note 112, at 1582. As regards regulation of future technologies, see supra note 111.

147 With its demonstrated ballistic missile technology, proclivity for CW use, and previously declared BW arsenal, Saddam Hussein’s Iraq constituted a particularly difficult strategic predicament for states in the region, especially for Israel. Avner, Cohen, Israel: Reconstructing the Black Box, in Biological Warfare and Disarmament, supra note 55, at 181, 192–95.Google Scholar

148 Id. at 190 (noting that Israeli military strategists reportedly concluded that biological weapons could not be relied on for strategic deterrence or as an effective strategic or tactical military weapon, especially since most wars in the Middle East have been decisively terminated in a matter of days and leave no military use for “such uncertain weapons with a long incubation time”). The proximity of interdependent populations in a relatively small space has led others to argue that the use of WMDs such as biological weapons in the Middle East would be “highly irrational.” Yezid, Sayigh, Middle Eastern Stability and the Proliferation of Weapons of Mass Destruction, in Non-Conventional- Weapons Proliferation, supra note 122, at 179, 180.Google Scholar

149 See Jonathan, B. Tucker, Motivations for and Against Proliferation: The Case of the Middle East, in Biological Warfare, supra note 75, at 27, 33–35 Google Scholar (noting the uncertain military utility of biological weapons, the significant difficulties in delivering and preserving them in adverse meteorological conditions, and their very limited deterrent value compared to other WMDs and even conventional weapons). Experts note that Israel in particular, because of its nuclear weapons capability, now has little strategic reason to maintain BW capabilities or a posture of “CBW ambiguity.” Cohen, supra note 147, at 202.

150 Despite Egypt’s status as only a BWC signatory state and Israel’s status as a nonsignatory observer, both countries participated in the fifth and sixth review conferences and Egypt actively participated in the work of the Ad Hoc Group. Three signatories in the region, Egypt, Syria, and the UAE, were also invited to participate in the preparatory work for the sixth review conference.

151 See Laura, Drake, The Middle East: Integrated Regional Approaches to Arms Control and Disarmament, in Biological Warfare and Disarmament, supra note 55, at 151, 166–67.Google Scholar

152 Jervis, supra note 95, at 176.

153 See Abbott & Snidal, supra note 17, at 438 (“Even the most powerful states recognize that legalization will circumscribe their autonomy.”).

154 Id.

155 General, but unexplained, concerns about such costs were expressed by the United States in rejecting the final composite text of the BWC draft protocol in 2001. See John, R. Bolton, The U.S. Position on the Biological Weapons Convention: Combating the BW Threat (Aug. 26, 2002), at <http://www.state.gov/t/us/rm/13090.htm=>>Google Scholar (saying that the draft protocol “would have compromised national security”).

156 Noting that Realists such as Hans J. Morgenthau have observed that “the national interest wins out over the international objective” in many areas, Robert Keohane suggests that such views ignore the possibility that states may nonetheless choose international cooperation by defining their interests more broadly and by eschewing immediate or “myopic” interests. Robert O. Keohane, after Hegemony 99 (1994).

157 Id. at 107.

158 Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, S. Treaty Doc. No. 103–21 (1993)Google Scholar, 32 ILM 800 (1993) [hereinafter CWC].

159 See Laura, Reed & Seth, Shulman, A Perilous Path to Security? Weighing U.S. “Biodefense” Against Qualitative Proliferation, in Biological Warfare and Disarmament, supra note 55, at 57, 59.Google Scholar The unpredictable nature of the threat and the related inability of civil biodefense to prevent outbreaks from spreading out of control were important factors in the U.S. decision to renounce BW programs in 1969 and have continued to inform U.S. BW policy since that time. Id. at 59-60.

160 Id. at 72 (“ [I] t has been frequently pointed out that vaccines are useful only in the face of positive intelligence with respect to the nature of the hostile agent; similarly, treatment with drugs such as antibiotics is useful only for bacteria and only after the isolation and testing of the organism.”).

161 See Victor, W. Sidel, Defense Against Biological Weapons: Can Immunization and Secondary Prevention Succeed? in Biological Warfare and Disarmament, supra note 55, at 77, 81 Google Scholar (noting that other nations may negatively view the intense interest shown by U.S. military researchers in vaccines intended to counter specific and rare organisms that are unlikely to cause public health problems unless intentionally spread); Richard, Novick & Seth, Shulman, New Forms of Biological Warfare? in Preventing a Biological Arms Race, supra note 49, at 103, 112 Google Scholar (noting that since vaccines are more useful against agents contemplated for use as offensive weapons, their possession inevitably serves to “unbalance the international biological warfare situation”); see also Jonathan, King & Harlee, Strauss, The Hazards of Defensive Biological Warfare Programs , in id. at 121.Google Scholar

162 Reed & Shulman, supra note 159, at 68; see also Sidel, supra note 161, at 81 (noting that such circumvention appears to have motivated the Russians’ search for a new strain of anthrax).

163 See Warrick, supra note 132 (noting that critics of the NBACC fear that “its work fuels suspicions that could lead other countries to pursue secret biological research”). Such suspicions are increased by the close ties of the National Biodefense Analysis and Countermeasures Center to the U.S. intelligence community and the assignment of special CIA advisers to the lab. Id. While national security officials may be quick to draw inferences about aggressive behavior from the military posture of adversary states, they are often not inclined to apply this reasoning to their own behavior, incorrectly assuming that other states are aware of their peaceful intentions and see no threat or menace in their actions. Jervis, supra note 106, at 68.

164 Choffnes, supra note 4, at 29 (arguing that expanding U.S. biodefense activities risks training and equipping would-be bioterrorists).

165 Id. (noting that” [t] errorists who want to mount a major attack with bioweapons would need substantial help from state sponsors to do so”); Malcolm, Dando, The Bioterrorist Cookbook, Bull. Atom. Sci., Nov./Dec. 2005, at 34, 36 Google Scholar (describing “barriers to entry” as potentially quite high for terrorists seeking to develop “weapons on a destructive scale comparable to those developed by states for military use”); Dana, A. Shea & Frank, Gottron, Small-Scale Terrorist Attacks Using Chemical and Biological Agents: An Assessment Framework and Preliminary Comparisons, at CRS-11 (Congressional Research Service, 2004), available at <http://fpc.state.gov/documents/organization/33629.pdf=>>Google Scholar (noting that some experts suggest that “development of weaponized biological agents presents remarkably high hurdles, particularly in mass dissemination, which would require teams of scientists with state backing to overcome”).

166 For example, the disease glanders had not been reported in English-language medical literature since 1949 until a young microbiologist was hospitalized in Maryland in March 2004. This incident reportedly occurred in the context of “research on agents of biological warfare.” Arjun, Srinivasan et al., Glanders in a Military Research Microbiologist, 345 New Eng. J. Med. 256, 256 (2001)Google Scholar (further noting that labs face difficulties in recognizing potential agents of biological warfare and that this case may serve as a harbinger of the resurgence of nearly forgotten diseases). In another incident in 2004, three laboratory workers at Boston University were exposed to the bacterium that causes tularemia. The workers were reportedly working on a vaccine to protect against bioterrorist attacks. Scott, Shane, Exposure at Germ Lab Reignites a Public Health Debate, N.Y. Times, Jan. 24, 2005, at A13.Google Scholar

167 Franck, supra note 12, at 714, 718.

168 See Stein, supra note 10, at 65.

169 Abbott, supra note 9, at 16 (noting that concern for offensive defections will be especially pronounced when states fear technological advances by other states that are “capable of producing one-time gains large enough to offset the likely future costs or, in the extreme case, to end the game”).

170 The Department of State abandoned the term “rogue state” in 2000 in favor of other terms such as “state of concern.” See Robert, S. Litwak, What’s in a Name? The Changing Foreign Policy Lexicon, 54 J. Int’l Aff. 375, 377, 379 (2001).Google Scholar The term has since been resurrected by the Bush administration and used prominently in official policy statements. See National Security Strategy of The United States 13 (Sept. 2002), available at <http://www.whitehouse.gov/nsc/nssall.html=>>Google Scholar [hereinafter 2002 National Security Strategy] (“new deadly challenges have emerged from rogue states and terrorists”).

171 The term “rogue state” has been so overused that some scholars have argued that it is often little more than “an ideological tag with no content.” Anthony Clark, Arend, International Law and Rogue States: The Failure of the Charter Framework, 36 New Eng. L. Rev. 735, 735 (2002).Google Scholar

172 Id.; see also 2002 National Security Strategy, supra note 170, at 14.

173 Although the terms “rogue state” and “revisionist state” are sometimes used interchangeably, a revisionist state is best defined as a rational one that nonetheless takes risks and violates international norms in an effort to change the status quo, as exemplified by imperial Japan and Nazi Germany and their use of force to achieve greater power and influence in the 1930s. See Richard, Falk, Re-framing the Legal Agenda of World Order in the Course of a Turbulent Century, 9 Transnat’l L. & Contemp. Probs. 451, 458 (1999).Google Scholar While rogue states are also likely to be dissatisfied with the status quo, they tend to be marginal actors that threaten regional stability without the capabilities of a Hitler or a Stalin to challenge the entire international system. See Litwak, supra note 170, at 387.

174 For example, North Korea is a rogue state that is often characterized by U.S. government officials and other commentators as irrational. See Denny, Roy, North Korea and the ‘Madman Theory,’ 25 Security Dialogue 307, 316 n.15 (1994)Google Scholar (noting that “the great majority of analysts implicitly or explicitly accept the premise of North Korean irrationality”); see also Victor, D. Cha, Hawk Engagement and Preventive Defense on the Korean Peninsula, 27 Int’l Security 40, 46 (2002)Google Scholar (noting that the irrationality of the North Korean regime is commonly argued to be a threat to peace on the Korean Peninsula).

175 See Winston, P. Nagan & Craig, Hammer, The New Bush National Security Doctrine and the Rule of Law, 22 Berkeley J. Int’l L. 375 (2004)Google Scholar; Elaine, Sciolino & Steven Lee, Myers, U.S. Study Reopens Division over Nuclear Missile Threat, N.Y. Times, July 5, 2000, at A1 Google Scholar (quoting senior U.S. officials as rejecting deterrence against countries like North Korea because their leaders were “capable of irrational self-destructive behavior”).

176 See Schelling, supra note 103, at 130.

177 In contrast to strategies for dealing with a status quo adversary in the Cold War, U.S. policy was revised in 2002 to reflect the view that “deterrence based only upon the threat of retaliation is less likely to work against leaders of rogue states more willing to take risks, gambling with the lives of their people, and the wealth of their nations.” 2002 National Security Strategy, supra note 170, at 15.

178 Abbott, supra note 9, at 4.

179 Id. at 5. States will often have reasons to use both systems. Many bilateral arms control regimes are designed to mesh with various other external monitoring procedures and capabilities (such as satellites or other “national technical means”), the most extensive verification measures being dependent on the active cooperation of the parties under observation. Id.

180 The BWC draft protocol incorporated many of the twenty-one identified verification and assurance measures recommended by VEREX. See supra note 74.

181 David, C. Kelley, The Trilateral Agreement: Lessons for Biological Weapons Verification, 2002 Verification Y.B. (Verification Research, Training and Information Centre) 93, 96–97.Google Scholar

182 Id.; see also Moodie, supra note 70, at 66. U.S. officials found what they considered to be clear evidence of continuing offensive BW programs during their visits to several Russian facilities. Contentious Russian visits to Pfizer Corporation facilities in Indiana and Connecticut later resulted in accusations by Russian state media that Pfizer was producing biological weapons. See Milton Leitenberg, Biological Weapons Arms Control 11 n. 17(PRAC Paper No. 16, 1996), available at <http://www.cissm.umd.edu/papers/files/prac.pdf=>>Google Scholar. Although the trilateral process began in 1992, no further visits occurred after 1994 owing to disagreements over visits to military facilities.

183 Moodie, supra note 70, at 66.

184 See Bolton, supra note 83. For the findings of nonproliferation and research institutes regarding possible or alleged North Korean BW programs, see supra note 85. North Korea was also designated by the United States as a dangerous member of an “axis of evil.” George, W. Bush, State of the Union Address (Jan. 29, 2002)Google Scholar, 38 Weekly Comp. Pres. Doc. 133, 135 (Feb. 4, 2002), available at <http://www.gpoacces.gov/sou/index.html=>>Google Scholar.

185 See supra note 85.

186 Robert, G. Joseph, under secretary of state for arms control and international security, Remarks to Carnegie International Nonproliferation Conference (Nov. 7, 2005), available at <http://www.state.gov/t/us/rm/56584.htm=>>Google Scholar (“The traditional arms control verification approach . . . . would not have deterred those who would seek to violate the [Biological Weapons] Convention.”).

187 See Jervis, supra note 97, at 42, 53.

188 SJPIN, supra note 10, at 48. Even ancient Athens, whose aggressive conquests as recounted by Thucydides continue to be related by modern political Realists, was influenced by a combination of different motives. See Speech of the Athenians, in 1 Simon Hornblower, a Commentary on Thucydides i.75.3, at 120 (1991)Google Scholar (“fear was our first motive, afterwards honour, and finally advantage”).

189 The Russian Ministry of Defense steadfastly continues to refuse to allow any access to four of its facilities (in Kirov, Sergiev Posad, Ekaterinburg, and St. Petersburg) that appeared to be at the center of the Soviet offensive BW program. See Rimmington, supra note 57, at 117.

190 According to a prominent defector involved in the post-BWC Soviet B W program, many Soviet generals were not originally convinced of the military utility of biological weapons but felt that it was “dangerous, if not outrageous, to be behind the West in anything.” See Ken Alibek With Stephen Handelman, Biohazard 41 (1999).

191 There is some evidence even suggesting that the U.S. government may have deliberately attempted to create a false impression of continuing work on BW programs to encourage the Soviets to dedicate resources on BW work rather than on other military programs. See Raymond, L. Garthoff, Polyakov’s Run, Bull. Atom. Sci., Sept./Oct. 2000, at 40 Google Scholar; Rimmington, supra note 57, at 109.

192 See Leonid A. Skotnikov, permanent representative of the Russian Federation to the Conference on Disarmament, Statement to the Fifth Review Conference of the States Parties to the BWC (Nov. 19, 2001), available at BWC Web site, supra note 7 (expressing concern about BW proliferation, calling for approval of legally binding multilateral verification measures for the BWC, and noting the enactment of criminal sanctions and export control laws to implement the BWC in Russia).

193 Id. (“[W]e would like to emphasize once more the importance that we have been and still are giving to the inclusion of terminology and objective criteria into the Protocol.”).

194 Predicting other states’ capabilities and intentions involves inherent uncertainties and a “probabilistic assessment of an uncertain and unknown future,” potentially leading to “bad predictions, miscalculations, and misassessments” by any state actor, including a rogue state. See Stein, supra note 10, at 60 - 61 .

195 See Litwak, supra note 170, at 376, 379 (arguing that in the absence of a Cold War adversary, U.S. policymakers have used the term “rogue state” to demonize a disparate group of states in an effort to mobilize international and domestic political support for the adoption of “hard-line policies” against these states, potentially obscuring a better understanding of these states and distorting policy); see generally Zbigniew, Brzezinski et al., Differentiated Containment, Foreign Aff., May/June 1997, at 20.Google Scholar

196 Some critics question the assumption that the North Korean regime is irrational when it clearly seems interested in its own self-preservation and the United States has successfully contained it on the Korean Peninsula for many years. See Jihwan, Hwang, Offensive Realism, Weaker States, and Windows of Opportunity: The Soviet Union and North Korea in Comparative Perspective, World Aff., June 22, 2005, at 39 Google Scholar; David, C. Kang, Rethinking North Korea, 35 Asian Survey 253 (1995)Google Scholar; Steven, Mufson, Threat of ‘Rogue’ States: Is It Reality or Rhetoric? Wash. Post, May 29, 2000, at A1.Google Scholar

197 Although North Korea is criticized for taking irrational risks, some commentators argue that it is a classic example of the effective use of threats, bluffs, blackmail, and brinksmanship to create crises in order to extract maximum concessions from more powerful countries. Scott Snyder, Negotiating on the Edge (1999); Roy, supra note 174.

198 Jack, L. Goldsmith & Eric, A. Posner,yl Theory of Customary International Law, 66 U. Chi. L. Rev. 1113, 1135 (1999)Google Scholar (“Weak states with idiosyncratic domestic arrangements—like Iraq, Serbia, or North Korea—may benefit from being unpredictable or irrational.”); Benedict, Kingsbury, The Concept of Compliance as a Function of Competing Conceptions of International Law, in International Compliance, supra note 16, at 49, 55.Google Scholar

199 See Peter, Baker & Anthony, Faiola, U.S., S. Korea Find Unity Against North’s Nuclear Arms Program, Wash. Post, Nov. 17, 2005, at A20 Google Scholar (noting how two years of six-party negotiations resulted in an offer of “economic incentives” in exchange for abandonment by North Korea of its nuclear weapons program). On February 13, 2007, North Korea is reported to have agreed to take certain incremental steps with respect to its nuclear programs, including shutting down the Yongbyang reactor and readmitting international nuclear inspectors, in exchange for energy aid and other inducements. Glenn Kessler & Edward Cody, U.S. Flexibility Credited in Nuclear Deal with N. Korea, Wash. Post, Feb. 14, 2007, at A11. In the aftermath of an apparent North Korean nuclear weapons test, the UN Security Council appears to continue to display a belief in the ability of North Korea to make rational assessments by imposing a variety of sanctions designed to change its behavior. See SC Res. 1718 (Oct. 14, 2006). With respect to the Council’s attempts to influence the behavior of the Islamic Republic of Iran and that country’s continuing pursuit of economic and other concessions in exchange for actions related to its nuclear activities, see infra notes 273-76 and corresponding text.

200 Efforts by North Korea to obtain various economic and other concessions have been a major part of its often aggressive negotiating positions with the international community with respect to its nuclear activities. See Nancy, E. Soderberg, Op-Ed, Escaping North Korea s Nuclear Trap, N.Y. Times, Feb. 12, 2003, at A37 Google Scholar (“The history of negotiation with North Korea is one in which the international community has repeatedly offered incentives to North Korea to rein in its nuclear programs.”). North Korea’s vice foreign minister stated the issue bluntly: “Our demand is also for the U.S. to make due compensation for the freeze and dismantlement of nuclear facilities that we have built with huge investment, tightening our belts.” Colum, Lynch, North Korea Resists Talks on Nuclear Arms; Meeting by U.S. Election Is Unlikely, Wash. Post, Sept. 28, 2004, at A21.Google Scholar

201 See supra notes 67-68 and corresponding text.

202 Treaty on the Non-proliferation of Nuclear Weapons, Arts. IV(2), X(2), July 1, 1968, 21 UST 483, 729 UNTS 161 [hereinafter NPT]; see infra notes 262-63 and corresponding text.

203 David, A. Koplow & Philip, G. Schrag, Carrying a Big Carrot: Linking Multilateral Disarmament and Development Assistance, 91 Colum. L. Rev. 993, 1034–35 (1991).Google Scholar For example, non-nuclear states such as Iran may argue that part of their “compensation” under the NPT for agreeing not to exercise their right to develop nuclear weapons is an inalienable right to acquire all forms of “peaceful” nuclear technology. See Henry, Sokolski, Taking Proliferation Seriously, Pol’y Rev., Oct. 1, 2003, at 18.Google Scholar

204 See Tucker, supra note 149, at 33-34 (noting that it is highly unlikely that biological weapons could ever provide the same level of deterrence as nuclear weapons since nuclear retaliation is immediate, devastating, and effective against military equipment as well as troops, while biological weapons are “slow, uncertain in their effects, and incapable of destroying military hardware and buildings”).

205 Randall, L. Schweller, Unanswered Threats, A Neoclassical Realist Theory of Under balancing International Security, 29 Int’l Security 159, 165 (2004)Google Scholar; see also Randall, L. Schweller, Bandwagoning for Profit: Bringing the Revisionist State Back In, 19 Int’l Security 72, 87–89 (1994).Google Scholar

206 The nonbinding “Agreed Framework,” under which North Korea promised in 1994 that it would verifiably freeze certain nuclear-processing activities in exchange for Western assistance, collapsed in 2002 after North Korea refused to deny claims that it was secretly enriching weapons-grade uranium. Key ambiguous terms, especially those related to the timing and sequence of activities and assistance, had been disputed by both sides for many years and undermined effective cooperation. See Korean Reactions, Fin. Times, Aug. 9, 2002, at 14 Google Scholar (“[T]he Agreed Framework clearly contains many flaws and ambiguities that have stalled its implementation.”). Beyond initial energy aid, receipt by North Korea of additional assistance under the agreement reached on February 13, 2007, appears to depend on meeting more determinate requirements than those found in the 1994 Agreed Framework. See Faces Saved AU Around—The North Korean Nuclear Deal, Economist, Feb. 17, 2007, at 28, 30 Google Scholar (quoting the chief American negotiator as having repeatedly told the North Koreans “that America needed to know ‘precisely’ what was happening with uranium enrichment”).

207 George, Downs et al., Is the Good News About Compliance Good News About Cooperation? 50 Int’l Org. 379, 397 (1996)Google Scholar (noting that “[c]ooperation in arms, trade, and environmental regulation may begin with agreements that require little enforcement, but continued progress seems likely to depend on coping with an environment where defection presents significant benefits”).

208 See Guzman, supra note 14, at 1860.

209 Reputational models have been criticized as overused or incomplete and the reputational costs associated with violation of international law in particular have been described as exaggerated or too heavily relied upon by scholars. See Goldsmith & Posner, supra note 90, at 102.

210 Guzman, supra note 14, at 1860.

211 The BWC relies on each state party to enact implementing legislation with appropriate criminal penalties under Article IV and to participate on a voluntary basis in additional consultation and confidence-building measures; most states have declined to participate in these voluntary measures. See supra note 76.

212 BWC, supra note 1, Art. VI(1). No state has ever availed itself of this right.

213 Id. Each state party to the BWC undertakes in Article VI, paragraph 2, “to cooperate in carrying out any investigation which the Security Council may initiate, in accordance with the provisions of the Charter of the United Nations, on the basis of the complaint received by the Council.”

214 Id.

215 SC Res. 1540 (Apr. 28, 2004).

216 See Abbott & Snidal, supra note 17, at 427.

217 Id. (noting that legal review in the context of agreed rules and procedures is also more likely to increase the reputational costs associated with violations).

218 See, e.g., David, Kennedy, A New Stream of International Law Scholarship, 7 Wis. Int’l L.J. 1 (1988)Google Scholar. Kennedy further argues that international law has become obsessively process oriented and inappropriately state centered when in fact the state might be better viewed as a “linguistic relationship between law and politics.” Id. at 2, 49; see also David, Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (2004).Google Scholar

219 See Franck, supra note 101, at 53, 56-57.

220 See Bin, Cheng, Studies in International Space Law 513–22 (1997).Google Scholar Cheng describes definitional problems related to the phrase “for peaceful purposes only” in Article IV of the Outer Space Treaty as giving rise to “grave anxiety.” Id. at 513. The United States has chosen to interpret “peaceful purposes” in this Treaty as meaning “non-aggressive” (rather than “non-military”), an expansive view that leaves the door open to controversies over the defensive nature of weapons and military activities, and one that Cheng describes as “needless, wrong, and potentially noxious.” Id. at 520. Article IV does, however, provide the following clarifying language: “The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden.” Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Art. IV, Jan. 27, 1967, 18 UST 2410, 610 UNTS 205. The limiting term “peaceful purposes” in the Antarctic Treaty similarly has the potential to raise definitional concerns, although Article I of that Treaty prohibits “any measures of a military nature” and further provides that specific prohibitions set forth in that agreement are, as Cheng explains, “exemplificative and not exhaustive.” Antarctic Treaty, Art. I, Dec. 1, 1959, 12 UST 794, 402 UNTS 71; Cheng, supra, at 517.

In spite of attempts to establish parameters for the term “peaceful purposes,” both the Antarctic and Outer Space Treaties also contain potentially problematic exemptions for these clarifying elaborations in subsequent provisions. See Antarctic Treaty, supra, Art. 1(2) (providing: “The present Treaty shall not prevent the use of military personnel or equipment for scientific research or for any other peaceful purpose.”); Outer Space Treaty, supra, Art. IV (providing: “The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited.”).

221 See Graham, S. Pearson, Biological Weapons: Their Nature and Arms Control, in Non-Conventional-weapons Proliferation, supra note 122, at 99, 117 Google Scholar (noting that “the depth of understanding and the scale of work has to be much greater to support an offensive programme”). Subjecting key elements of offensive BW programs to restrictions or special scrutiny does not require, and should not be used to promote, the establishment of lists or definitions of types or quantities of permitted biological agents or toxins, since such an action could be used to undermine the scope of the BWC’s general prohibitions.

222 See Huxsoll, D. L. et al., Medicine in Defense Against Biological Warfare, 262 J. Am. Med. Ass’n 677 (1989)CrossRef Google Scholar, cited in Pearson, supra note 221, at 294. An initial attempt to establish rules based in part on these key elements was made, unsuccessfully, in the BWC draft protocol.

223 These and other useful potential restrictions are suggested by the Australia Group’s existing control lists and could serve to clarify not only what is prohibited under the BWC but also what is appropriate for exchange and transfer. See infra notes 251-56 and corresponding text.

224 See Bolton, supra note 83; Mahley, supra note 80 (stressing that the “draft Protocol will not improve our ability to verify BWC compliance”).

225 Donald, A. Mahley, Testimony, Biological Weapons Convention, in Hearing Before the Subcomm. on National Security, Veterans Affairs and International Relations of the House Comm. on Government Reform, 106th Cong. (2000), available in Lexis, Transcripts Library, Fed. Doc. Clearing House File, available at <http://www.fas.org/spp/starwars/congress/2000_h/testimony_of_ambassador_donald_a.htm=>Google Scholar. But see Barbara, Hatch Rosenberg & Gordon, Burck, Verification of Compliance with the Biological Weapons Convention, in Preventing a Biological Arms Race, supra note 49, at 300, 305 Google Scholar (noting that while no BWC verification regime will detect all violations, “[a]dequate verification will deter violation of the Convention, make illegal actions difficult and limit their scale, and provide workable means for international investigation of concerns that may be raised through national intelligence”).

226 See, e.g., 3 Cia Comprehensive Report, supra note 124, at 39 (noting that as early as 1992, UN sanctions, inspections, mandatory declarations, and monitoring of the importation and use of media needed for the growth of bacterial BW agents created “impediments for any Iraqi biological production effort”).

227 Rosenberg & Burck, supra note 225, at 304 (arguing in addition that the difficulties in monitoring BW activities at the research level have been overstated).

228 Compliant signatory states in the developing world that have not yet completed the formal processes necessary to become parties to disarmament regimes, like conformist nonsignatory states, may find full membership in such regimes unattractive.

229 Keohane, supra note 156, at 103 (“Insofar as regimes create incentives for compliance, they also make it more attractive for conscientious potential members to join them.”).

230 See Status of Multilateral Arms Regulation and Disarmament Agreements, at <http://disarmament2.un.org/TreatyStatus.nsf=>. A state that is not a member of the United Nations, the Holy See, is a party to the BWC. Id.

231 Even U.S. officials quick to allege violations by other states have conceded that “the vast majority of the BWC’s parties have conscientiously met their commitments.” John, R. Bolton, Beyond the Axis of Evil: Additional Threats from Weapons of Mass Destruction, Remarks to the Heritage Foundation (May 6, 2002), available at <http://www.state.gov/t/us/rm/9962.htm=>.Google Scholar

232 The 16 states that have signed the BWC but not yet become parties are Burundi, the Central African Republic, Côte d’Ivoire, Egypt, Gabon, Guyana, Haiti, Liberia, Madagascar, Malawi, Myanmar, Nepal, Somalia, Syria, Tanzania, and die UAE. See Status of Multilateral Arms Regulation and Disarmament Agreements, supra note 230. As signatories, these states are obliged to refrain from acts that would defeat the object and purpose of the BWC pending their ratification, acceptance, or approval of die Convention or until it “shall have made its intention clear not to become a party to the treaty.” See Vienna Convention on the Law of Treaties, Art. 18(a), May 23, 1969, 1115 UNTS 331. There are currently 108 states parties, including Egypt, Syria, and 5 other BWC signatory states.

233 See supra note 85.

234 The 21 members of the United Nations that have not signed the BWC are Andorra, Angola, Cameroon, Chad, the Comoros, Djibouti, Eritrea, Guinea, Israel, Kazakhstan, Kiribati, the Marshall Islands, Mauritania, Micronesia, Mozambique, Namibia, Nauru, Samoa, Trinidad and Tobago, Tuvalu, and Zambia. See Weapons of Mass Destruction, at <http://disarmament.un.org/wmd/=>.

235 See supra note 85. One nonsignatory, Kazakhstan, is not generally regarded as a state of BW concern but is one of several states that inherited a significant amount of BW infrastructure from the former Soviet Union. See generally Smithson, supra note 69.

236 Twelve of the 21 BWC nonsignatory states are listed by the United Nations as “least developed countries.” See UN Office of the High Representative for the Least Developed Countries, List of Least Developed Countries, at <http://www.un.org/special-rep/ohrlls/ldc/list.htm=>>Google Scholar [hereinafter LDC List]. An additional 5 are listed in the World Bank’s lowest two of five categories of economic development. See World Bank, Data and Statistics (2007), at <http://www.worldbank.org/countries=>>Google Scholar [hereinafter World Bank Data].

237 Ten of the 16 BWC signatory states are listed by the United Nations as least-developed countries. See LDC List, supra note 236. An additional 4 are listed in the World Bank’s lowest two of five categories of economic development. See World Bank Data, supra note 236.

238 Contrary to a view popularized in Western countries, the advanced science and technology required for BW programs make biological weapons an unlikely component in the arsenals of developing countries. See Wright, supra note 55, at 6 (finding “some irony” in describing biological weapons as the “poor man’s nuke” in view of their development by industrialized countries).

239 Only 12 UN member states have become parties to the BWC since 2000. See Status of Multilateral Arms Regulation and Disarmament Agreements, supra note 230. All of the 16 signatory states that have failed to complete the necessary procedures to become a member of the BWC originally signed the Convention in 1972 or 1973 immediately after it was opened for signature. Id.

240 Shelton, supra note 13, at 319; pt. V, “Perceived Discriminatory Effect on Developing Countries,” supra.

241 BWC, supra note l.Art. 1(1). The AG is an informal consultative arrangement of states that was founded in 1984 after events in the Iran-Iraq war revealed that some countries were producing chemical weapons with materials obtained through international trade and a lack of uniform licensing measures. The AG first sought to impede the proliferation of chemical weapons through coordinated national export control laws and later expanded its mandate to include biological weapons. All thirty-eight states that participate in the AG are parties to the BWC and the CWC and include most of the states of the world with advanced biological and biotechnology industries. See AG, Origins of the Australia Group, at <http://www.australiagroup.net=>>Google Scholar.

242 BWC, supra note 1, Art. X(l).

243 See AG, Objectives of the Group, at <http://www.australiagroup.net=>.

244 BWC, supra note 1, Art. X(2).

245 See, e.g., Sha, Zukang, Head of the Chinese Delegation, Statement to the Fifth Review Conference of the States Parties to the BWC (Nov. 19, 2001),Google Scholar available at BWC Web site, supra note 7, at 3 (criticizing advanced countries for “stubbornly sticking to existing discriminatory practices” that were “detrimental... to the legitimate rights of states parties”); John, Zarocostas, Gaps Remain in Weapons Ban Talks, UPI, Feb. 23, 2001, available in Lexis, Wire Service Stories Library.Google Scholar

246 See, e.g., Rakesh, Sood, Head of Delegation of India, Statement to the Fifth Review Conference of the States Parties to the BWC (Nov. 20, 2001)Google Scholar, available at BWC Web site, supra note 7, at 5 (“The promotional aspects of Article X are, we believe, a crucial element in strengthening the Convention and even perhaps in achieving universal adherence.”).

247 See Franck, supra note 101, at 153.

248 See Oliver, Thränert, Enhancing the Biological Weapons Convention, in Enhancing the BWC, supra note 145, at 17 Google Scholar (further noting that many African countries perceive greater threats from diseases like HIV and Ebola than from BW programs); Zarocostas, supra note 245 (quoting Ambassador Tibor Tóth, chairman of the Ad Hoc Group, as saying that export controls “were debated in a heated manner,” with emphasis by developing countries on the need for access to technology related to diseases).

249 See Chayes & Shelton, supra note 30, at 525 (“Long-term stability and efficiency require that arms control regimes be built upon mutual interests and relationships, not confrontation.”).

250 See Celina M. Assumpçao de Valle Pereira, ambassador, Statement to the Fifth Review Conference of the States Parties to the BWC (Nov. 19, 2001), available at BWC Web site, supra note 7 (describing nonproliferation and technological cooperation as viewed as the “two main pillars” of the BWC); Sood, supra note 246, para. 7 (describing Articles III and X as “two mutually inseparable aspects of any disarmament agreement that deals with a dual-use technology”); Sha Zukang, supra note 245, at 3 (arguing that nonproliferation activities and the promotion of peaceful uses of biotechnology “should be complementary and mutually reinforcing,” while noting with regret that “a minority of countries have gone out of their way to separate the two issues”); Abdul Basit, acting permanent representative of Pakistan, Statement to the Fifth Review Conference of the States Parties to the BWC (Nov. 19, 2001), available at BWC Web site, supra note 7, para. 10 (emphasizing that Pakistan “cannot agree to an interpretation of Article III that is in any manner at variance with the provisions of Article X”).

251 Protective and containment equipment includes complete containment facilities (at the “containment” or “maximum containment,” known as the P3 and P4, levels, as specified by the WHO) and various types of protective suits and biological safety cabinets or isolators. AG, Control List of Dual Use Biological Equipment and Related Technology, §§I.1,I 6 (Apr. 2005), at <http://www.australiagroup.net=>.

252 Id. §1.2.

253 Id. §1.3.

254 Id. §1.7.

255 Id. §1.8. Other items of concern that seem unlikely to be used primarily for peaceful civilian activities have been included on AG-controlled lists so as to raise the awareness of the industry, including equipment for the microencapsulation of live microorganisms and toxins in the range of one to ten microns particle size; fermenters that have small capacities but are part of aggregate orders or are designed for use in combined systems would similarly justify special treatment. Id., Items for Inclusion in Awareness Raising Guidelines, paras. 1—2.

256 For example, each state party with specified facilities would have been required under the protocol to declare production of designated agents using bioreactors/fermenters with total internal volume of 50 liters or more, see Protocol to the BWC, supra note 79, at 19 -20, and would also have been required to supply information concerning various other types of equipment present at or used in a declared facility, including specified types of continuous or semicontinuous centrifuges with throughput capacity greater than 100 liters per hour, see id. at 118.

257 BWC developing states strongly criticize this extraregime regulatory approach, arguing that “the transfer of dual-use materials for medical, diagnostic and treatment purposes should be regulated on the basis of guidelines to be negotiated and accepted by all States Parties.” See Sood, supra note 246, para. 7. For its part, the United States has argued that the guidelines in the draft protocol “could undermine U.S. regulations against the export of sensitive technology used in bioweapons.” Glenda, Cooper, U.S. Rejects Biological Arms Ban Protocol, Wash. Post, July 26, 2001, at A1.Google Scholar Some arms control experts, however, have questioned why the draft protocol’s clearer requirements for export controls would undermine AG efforts rather than support them. See Brugger, supra note 86.

258 “Myopic” self-interest refers to a state’s perception of the relative costs and benefits of alternative available courses of action with respect to a particular issue when the assessment of that issue is made in isolation from others. Keohane, supra note 156, at 99. The apparent anomaly of egoistic states acting in ways that appear to be inconsistent with their interests may often be explained by the fact that they are complying with rules that conflict with their immediate or “myopic” self-interests. Id.

259 See Status of Multilateral Arms Regulation and Disarmament Agreements, supra note 232. Only one state, Angola, has signed neither the CWC nor the BWC; two other BWC nonparties, the Comoros and Israel, have signed but not yet ratified the CWC. Id. As noted above, thirty-one of the thirty-seven UN member states that are not parties to the BWC are designated as least-developed countries by the United Nations or are in the World Bank’s bottom two categories of economic development. See LDC List, supra note 236; World Bank Data, supra note 236. Yet only seven of these poorest developing states (Angola, the Central African Republic, the Comoros, Egypt, Myanmar, Somalia, and Syria) are not parties to the CWC. See Status of Multilateral Arms Regulation and Disarmament Agreements, supra note 232.

260 See infra text at notes 280-85.

261 Mikhail, Berdennikov, special advisor to the director-general, The Experience of the Organization for the Prohibition of Chemical Weapons, in The Implementation of Legally Binding Measures to Strengthen The Biological and Toxin Weapons Convention 103, 107 (Marie, Isabelle Chevrier et al. eds., 2004)Google Scholar [hereinafter Implementation of Legally Binding Measures]; Graham, S. Pearson, The Key Elements of a Legally Binding Instrument to Strengthen the Biological and Toxin Weapons Convention , in id. at 55, 77 Google Scholar (“A comparison of the BWTC legally binding instrument regime and the CWC regime has shown that the two regimes are indeed comparable and effective.”).

262 NPT, supra note 202, Arts. II, III.

263 Id., Art. IV(1), (2).

264 Unlike biological weapons, nuclear weapons are widely viewed as an effective strategic deterrent and have become an integral part of the security policies of NPT nuclear weapons states parties. Moreover, biological weapons are less likely to inspire the “ferocious nationalistic pride” that nuclear weapons and energy generate in some states. See Christopher, Dickey et al., Iran’s Rogue Rage, Nukes: Iranians Want Nuclear Know-How—and Seem to Be Daring the West to Stop Them, Newsweek, Jan. 23, 2006, at 26, 26.Google Scholar

265 The IAEA is a UN-related organization whose safeguards system is intended to verify NPT compliance. As of March 22, 2007, thirty-one NPT non-nuclear weapon states had not yet brought into force a comprehensive safeguards agreement with the IAEA. NPT Comprehensive Safeguards Agreement: Overview of Status (Mar. 22, 2007), at <http://www.iaea.org/Publications/Factsheets/English/nptstatus_overview.html=>.

266 One hundred and eleven UN member states have signed additional protocols and seventy-seven are currently in force; a protocol with Iran is being implemented pending its formal entry into force, although Iran recently curtailed most access to its facilities. See id.

267 See IAEA Staff Reports, More States Sign Safeguards Agreements and Additional Protocols (Nov. 28, 2005), available at <http://www.iaea.org/NewsCenter/News/2005/safeguardsrights.html=>.

268 The IAEA Board of Governors urged Iran to adopt these additional transparency measures on September 24, 2005, noting that “Iran’s full transparency is indispensable and overdue.” IAEA Res. GOV/2005/77, pmbl., para. 4 (Sept. 24, 2005), at <http://www.iaea.org/Publications/Documents/Board/2005/gov2005-77.pdf=>. Subsequent board resolutions have continued to stress the need for Iran to implement all required transparency measures and support ongoing board investigations. See, e.g., IAEA Res. GOV/2006/14 (Feb. 4, 2006), at <http://www.iaea.org/Publications/Documents/Board/2006/gov2006-14.pdf=>. The UN Security Council has repeatedly affirmed that Iran must comply with IAEA Res. GOV/2006/14 in order “to build confidence in the exclusively peaceful purpose of its nuclear programme and to resolve outstanding questions.” SC Res. 1696, para. 1 (July 31, 2006); SC Res. 1737, para. 1 (Dec. 27, 2006); SC Res. 1747, para. 1 (Mar. 24, 2007).

269 India, Israel, and Pakistan have not signed the NPT; North Korea joined the NPT in 1985, but in January 2003 announced its intention to withdraw. See Status of Multilateral Arms Regulation and Disarmament Agreements, supra note 230.

270 IAEA Director General, Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran, IAEA Doc. GOV/2005/67 (Sept. 2, 2005), at <http://www.iaea.org/Publications/Documents/Board/2005/gov2005-67.pdf=> (detailing how over many years Iran had failed to meet its obligations under its safeguards agreement by not reporting nuclear material, its processing, and its use; not declaring related processing and storage facilities; not providing design information; and engaging in “extensive concealment activities”).

271 Statement by the Iranian Government and Visiting EU Foreign Ministers, para. 2(b)(i) (Oct. 21, 2003), available at <http://www.iaea.org/NewsCenter/Focus/IaeaIran/statement_iran21102003.shtml=>. Iran’s chief nuclear negotiator noted that Iran had “won a crucial change to reflect the fact that the freeze of its enrichment program was ‘not legally binding.’“ Elaine Sciolino, Iran Backs away from a Demand on A-Bomb Fuel, N.Y. Times, Nov. 29, 2004, at Al.

272 Steven, R. Weisman & Nazila, Fathi, Iranians Reopen Nuclear Centers, N.Y. Times, Jan. 11, 2006, at A1.Google Scholar

273 Nazila, Fathi & Elaine, Sciolino, Iran Open to Incentives on Nuclear Talks, with a Hedge, N.Y. Times, June 7, 2006, at A14.Google Scholar Subsequent attempts by the European Union to work out an “incentives package” with Iran led to Iranian requests for specific details on “verification” and “sequencing.” See Judy, Dempsey, Iranian and Europe Envoy Open Talks on Uranium Enrichment, N.Y. Times, Sept. 28, 2006, at A14.Google Scholar

274 SC Res. 1696 (July 31, 2006). Iran failed to comply with the Council’s sixty-day deadline for suspension of these activities. See Dafna, Linzer & Colum, Lynch, Iran Continues Nuclear Work Despite Deadline, Sanction Threat, Wash. Post, Feb. 22, 2007, at A14.Google Scholar

275 See SC Res. 1737 (Dec. 27, 2006) (prohibiting trade with Iran in nuclear materials and ballistic missiles and freezing financial assets often key Iranian entities and twelve individuals associated with these programs); SC Res. 1747 (Mar. 24, 2007) (banning all Iranian arms exports and freezing financial assets of fifteen Iranian individuals and thirteen entities linked to Iranian military and nuclear agencies).

276 Fathi & Sciolino, supra note 273.

277 The OPCW includes the Conference of States Parties, Executive Council, Technical Secretariat, Confidentiality Commission, and advisory boards on science and administrative and financial matters.

278 An integral part of the CWC is a detailed Annex on Chemicals that includes Guidelines for Schedules of Chemicals. The guidelines in part I of the annex contain specific criteria for determining whether toxic chemicals or precursors should be included in one of three different schedules or levels of regulation in part II of the annex. These schedules identify chemicals for the application of extensive verification measures according to the provisions of the detailed Verification Annex. See CWC, supra note 158, Annex on Chemicals.

279 See CWC, Annex on the Protection of Confidential Information; id., Annex on Implementation and Verification.

280 David, A. Koplow, How Do We Get Rid of These Things?: Dismantling Excess Weapons While Protecting the Environment, 89 Nw. U. L. Rev. 445, 451 (1995).Google Scholar

281 See Status of Multilateral Arms Regulation and Disarmament Agreements, supra note 230; Organisation for the Prohibition of Chemical Weapons, Declarations and Inspections, and Chemical Weapons Destruction Under Way (Mar. 16, 2007), at <http://www.opcw.org/factsandfigures/index.html=> (further noting that “[o]ver 30% of the 8.6 million chemical munitions and containers covered by the Convention have been verifiably destroyed”).

282 Organisation for the Prohibition of Chemical Weapons, Declarations and Inspections, supra note 281.

283 See Wright & Falk, supra note 125, at 433 (arguing for “a heightened mobilization of global civil society” as with conclusion of the antipersonnel land mines treaty as only way to avoid a biological arms race); see also Kenneth, Anderson, The Ottawa Convention Banning Landmines, the Role of International Non-governmental Organizations, and the Idea of International Civil Society, 11 Eur j. Int’l L. 91 (2000)Google Scholar; Richard, Price, Reversing the Gun Sights: Transnational Civil Society Targets Land Mines, 52 Int’l Org. 613 (1998).Google Scholar

284 See Anne-Marie, Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AJIL 205, 225 (1993)Google Scholar; Andrew, Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 Int’l Org. 513, 522 (1997)Google Scholar; Anne-Marie, Slaughter, A Liberal Theory of International Law, 94 ASIL Proc. 240 (2000).Google Scholar

285 See generally David, P. Fidler, SARS: Political Pathology of the First Post-Westphalian Pathogen, 31 J. L. Med. & Ethics 485 (2003).Google Scholar

286 See David, P. Fidler, Constitutional Outlines of Public Health s New World Order, 77 Temp. L. Rev. 247, 267 (2004)Google Scholar (noting how nonstate actors performed key monitoring functions and provided accurate data on the SARS outbreak in China in 2003, eventually forcing China to deal more openly with the outbreak and causing similar embarrassment for the governments of Thailand and Indonesia).

287 While transnational societal factors may contribute to the larger phenomenon of globalization or the crossnational convergence of national economic and regulatory systems, state interests continue to play a critical role, and this globalization is not proceeding evenly either across the globe or across economic sectors or other regulatory topics. See Richard, H. Steinberg, Trade-Environment Negotiations in the EU, NAFTA, and WTO: Regional Trajectories of Rule Development, 91 AJIL 231, 232 (1997).Google Scholar

288 The U.S. government’s financial involvement with academic institutions in this area began in 1942 with contracts for secret work at over two dozen major U.S. universities. See Barton, J. Bernstein, Origins of the Biological Warfare Program, in Preventing a Biological Arms Race, supra note 49, at 9, 12.Google Scholar By 1968, U.S. government involvement in both chemical and biological weapons programs had made such weapons “big business” for industry and higher learning. Clarke, supra note 31, at 8. Massive increases in U.S. biodefense spending in recent years involve numerous government agencies and nonstate institutions. In the civilian biodefense sector alone, the government has dramatically increased spending since 2001. Joby, Warrick, Custom-Built Pathogens Raise Bioterror Fears, Wash. Post, July 31, 2006, at A1 Google Scholar (“Five years after the Sept. 11 attacks, the federal government budgets nearly $8 billion annually—an 18-fold increase since 2001—for the defense of civilians against biological attack.”).

289 Steve, Charnovitz, Nongovernmental Organizations andInternationalLaw, 100 AJIL 348, 348 (2006)Google Scholar (noting that” [t] oday, overwhelming NGO support for the international rule of law can no longer be assumed. NGOs follow their own stars.”).

290 Mahley, supra note 80 (“In our assessment, the draft Protocol would put national security and confidential business information at risk.”).

291 See Tibor, Tóth, The Requirement to Strengthen the Biological and Toxin Weapons Convention, in Implementation of Legally Binding Measures, supra note 261, at 9, 13 Google Scholar (arguing that the industry players involved in BWC-related activities “will need clear-cut rules of the game” and that “these companies and industrial actors would prefer clarity in the rules of the game that are applicable globally”).

292 See Abbott & Snidal, supra note 17, at 451 (private demandeurs will normally press for hard law, other things being equal, to raise the costs of violation for other parties and to facilitate enforcement against resister groups and governments, including their own).

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The Shortcomings of Indeterminacy in Arms Control Regimes: The Case of the Biological Weapons Convention

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