Legal Constraints on Biological Weapons - Deadly Cultures: Biological Weapons Since 1945 - page 351

research as compatible. Yet the words “offensive” and “defensive” do not
occur in the Convention, any more than “research” does. No Review
Conference has yet pronounced on research, other than on experimenta-
tion involving open-air release of pathogens or toxins.
Silence on the legal status of research has left the scope of the formula-
tion in this part of Article I uncertain. Any conclusion on legal status can
be only tentative. An earlier study argued that “incorporation of research
within the [BWC] treaty regime can proceed...through the final decla-
rations of successive review conferences” and that the next one “might,
for example, return to the language of the British draft conventions of
1969 and 1970 and state that the parties recognize an obligation 'not to
conduct, assist or permit research aimed at production of the kind prohib-
ited' under Article I.” It “might also declare that research and develop-
ment are so intricately related to each other that, in order for the ban on
BTW [T for toxin] development to be upheld, it is necessary for research
to be constrained by the same condition. Research would then require”
justification by the 4P formula, and “the general purpose criterion would
be understood as also encompassing research.” 23
3. Does the 4P formula apply to the “weapons, equipment or means of delivery”
prohibited in the second part of Article I; and what is the legal effect of the qualify-
ing phrase “designed to use such agents or toxins for hostile purposes or in armed
conflict”?
The prohibition on “weapons, equipment or means of delivery” is
qualified by a purpose criterion: “designed to use such agents or toxins
for hostile purposes or in armed conflict.” The words “such agents or tox-
ins” refer back to the first part of Article I and thereby import the 4P for-
mula, but only if the application of the word “such” is to the complete
category “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.” If,
however, the reference of the word “such” is limited to the first part of
the phrase only—“microbial or other biological agents, or toxins”—then
the prohibition on weapons, equipment, and means of delivery is abso-
lute, because the exceptions allowed by the 4P formula do not apply.
On the other hand, a new qualifying phrase does undoubtedly apply—