There are three types of weapons of mass destruction (WMDs)—nuclear, chemical, and biological. Of the three WMDs, biological weapons are arguably the most dangerous as they are the most indiscriminate, the least controllable, and the least expensive to create. The seminal treaty for establishing legal constraints on this vital issue is the 1972 Biological Weapons Convention (BWC).2 Article I of the BWC specifically outlaws State acquisition of “microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes . . .”3
The Vienna Convention on the Law of Treaties4 (VCLT) provides the general rule for how to interpret treaty language: “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”5 Problematically, by reading the BWC in light of this general rule, because the BWC only prohibits acquisitions that have “no justification,” the ordinary meaning of the text creates a wide loophole through which States may argue the acquisition of a potentially prohibited material has some justification, however minor, and therefore is not prohibited.
The Comment first reviews the background of biological weapons and regulation of their use. In this section, the Comment also describes the VCLT requirements for treaty interpretation and the evolutive approach to interpretation. Next, the Comment conducts a global analysis of State practice in regards to biosafety and biosecurity regulatory measures. It then analyzes the BWC using the various treaty interpretation methods—including addressing how subsequent state practice has affected this interpretation, and how an evolutive approach to interpretation changes the meaning of Article I of the BWC. Lastly, in recognition of this evolution in the law, this Comment recommends how to update enforcement mechanisms to accurately reflect the new state of the law.