Parsing the Bioweapons Treaty

The language of the Biological Weapons Convention, especially its pivotal Article I, is not clear-cut. It doesn't draw a bright line between activities that are permitted and those that are prohibited. So compliance with the treaty turns to a great extent on the intent of the activity.

Bush Administration officials, including those in the Department of Homeland Security, insist that the government's biodefense activities will be for defensive purposes, which the treaty permits. For the Administration, compliance with the treaty is based on the intent of the activity. By its reasoning, if the activity's intent is to protect the civilian population against a terrorist act, then the activity is defensive and in compliance with the treaty.

"The problem," explains David P. Fidler, professor of law at Indiana University, "is that intent becomes an easy way to justify anything." And, he points out, the defensive intent approach adopted by the Administration allows it to increase its policy options. "A lot of people want to use the defensive intent argument to minimize the treaty's effect on U.S. biodefense activities in a legal and policy sense," he says.

Fidler proposes that, in this new world of terrorism, policymakers move away from considering compliance in terms of defensive intent and instead adopt a more strategic conception of international law. By that, he means policymakers should begin to consider whether an activity--development or retention of an agent, for example--is justified on the basis of prophylactic, protective, or peaceful purposes--the three p words found in Article I.

He believes that if policymakers move beyond intent and "if the compliance process is transparent and there is political accountability and oversight, then you have biodefense activities moving forward in a context that seems to be more legitimate."

Fidler readily admits that his approach will not make it any easier to determine compliance, but it might rein in the activities pursued. "I'm concerned that increases in biodefense activities are going to create proliferation dangers because of the inadequacy of biosecurity measures nationally and internationally."