Legal Constraints on Biological Weapons - Deadly Cultures: Biological Weapons Since 1945 - page 333

Article III
Each State Party to this Convention undertakes not to transfer to any
recipient whatsoever, directly or indirectly, and not in any way to assist,
encourage, or induce any State, group of States or international organiza-
tions to manufacture or otherwise acquire any of the agents, toxins,
weapons, equipment or means of delivery specified in article I of this
Convention.
Convergence of the Two Categories of Constraints
The relationship between the two categories of constraints has histori-
cally been an uneasy one. So long as the Geneva Protocol was regarded as
merely a no-first-use declaration, with its reservations allowing retalia-
tion to be threatened and thereby serving to bolster a tacit deterrence
(whether in World War II or in the Cold War that followed), it was upon
deterrence that the constraint on use principally relied. The availability of
BW for use in retaliation logically ruled out a constraint on possession,
because such a constraint would, on that logic, have weakened deter-
rence and hence the constraint on use. It was only when this tacit reli-
ance on deterrence with a retaliatory BW capability lost whatever attrac-
tion it had once held, and universal biological disarmament became the
goal of international policy and diplomatic endeavor instead, that a con-
straint on possession could logically be admitted to complement the con-
straint on use. The two constraints were henceforth on a convergence
course, but their convergence is not yet perfect.
As the constraint on possession developed, especially through the ex-
pansion of BWC adherence and through the review process for the BWC,
a need was recognized for the constraint on use to be strengthened. Un-
fortunately, the BWC does not refer explicitly to use in its operative part,
although it was clear from its final preambular paragraphs that one of the
purposes of the BWC was “to exclude completely the possibility of bacte-
riological (biological) agents and toxins being used as weapons” because
“such use would be repugnant to the conscience of mankind.” It was also
widely recognized that any use of the prohibited objects by a State Party
to the Convention must logically presuppose a prior breach of one or
more of the prohibitions on development, production, stockpiling, acqui-
sition, and retention. Nevertheless, an explicit ban on use was omitted