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from the Convention, an omission that left the constraint on use in need
of strengthening in parallel with the constraint on possession.
This strengthening of the constraint on use was sought in three distinct
ways: by the withdrawal (noted above) of Geneva Protocol reservations
pertaining to retaliation; by the deliberate insertion of three “constraints
on use” references in the Final Declaration of the Fourth (1996) BWC
Review Conference; 2 and by an unsuccessful Iranian proposal to amend
the Convention by adding the word “use” to its title and to the list of
prohibitions in Article I. This last proposal was not widely welcomed,
because although its substance was acceptable the procedure of formal
amendment was thought too risky to be invoked on any occasion or on
any issue; but the first two ways remain valid and need to be continued
in a cumulative process centering on the Final Declaration of the Sixth
(2006) BWC Review Conference and on any gathering of States Parties to
the Geneva Protocol that may be convened, in order to achieve a more
nearly perfect convergence of the two constraints.
The convergence of the two constraints can also be seen as a coming
together of the law of war and the law of disarmament. In an eloquent
concluding passage to his SIPRI study, CBW and the Law of War, Anders
Boserup wrote, just after the BWC had been opened for signature: “At
some point in the development of the law there is a recognition of the ab-
solutely inhumane and uncivilized character of the use of BW under any
circumstances and whatever the pretext. At this point, the logic of devel-
opments within the law of war breaks the confines of that field. The tran-
sition from a conditional prohibition to an absolute prohibition opens the
way to the field of the law of disarmament: renunciations of use fuse with re-
nunciations of possession ” (emphasis added). 3
Historical Perspective, 1945-2005
At its simplest, the legal status of BW since 1945 falls neatly into two
halves. Although this statement will have to be qualified as the historical
part of this chapter progresses, it remains essentially correct as defining
the two distinct periods in which BW were very differently constrained.
From 1945 to 1975 the only legal constraint on most states with regard
to BW concerned their use. Certain states, defeated in World War II, were
subject to further constraints; but most states were not. They remained
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