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any time allowing such a list to detract by omission from the comprehen-
sive character of the prohibition as expressed in this formulation.
One further issue of scope, the “infestation” problem, will be consid-
ered separately below (at question 4).
2. How comprehensive, in respect of research, is the formulation “never in any cir-
cumstances to develop, produce, stockpile or otherwise acquire or retain”?
Here interpretation has proceeded much more slowly. Indeed, only one
experimental activity has been specifically labeled as falling under this
prohibition. In 1991 the Third Review Conference declared: “The Confer-
ence notes that experimentation involving open-air release of pathogens
or toxins harmful to man, animals and plants that has no justification for
prophylactic, protective or other peaceful purposes is inconsistent with
the undertakings contained in Article I.” 21
What remains unclear is the boundary between research and develop-
ment. Development, like production, stockpiling, acquisition, and reten-
tion is an activity prohibited unless justified for “prophylactic, protective
or other peaceful purposes” (the 4P formula) with which the types and
quantities of the agents or toxins involved are consistent. Research is not
mentioned anywhere in the BWC.
In one view, research is unconstrained because it was finally omitted
from the BWC: even “research aimed at production of the kind prohib-
ited,” which the UK Draft Convention of 1969 had, logically enough,
envisaged the States Parties undertaking “not to conduct, assist or per-
mit,” 22 escaped regulation, let alone prohibition.
In another view, research is constrained by the 4P formula, either be-
cause it is functionally indistinguishable from development in a seamless
R&D process, or because research on microbial or other biological agents
or toxins can be conducted only if those agents or toxins have first been
acquired or retained; and acquisition or retention other than in types and
quantities that are justified for prophylactic, protective, or other peaceful
purposes would be a prior breach of Article I.
No authoritative statement has yet declared that research is con-
strained by the 4P formula, either via development or via acquisition/re-
tention. It is sometimes informally suggested that “offensive” research
may be regarded as incompatible with BWC obligations and “defensive”
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