Legal Constraints on Biological Weapons - Deadly Cultures: Biological Weapons Since 1945 - page 352

“designed to use [them] for hostile purposes or in armed conflict”—
which may be regarded as a functional equivalent of the (possibly) miss-
ing 4P formula. On this reasoning, just as under its first part Article I
allows States Parties to develop, produce, stockpile, acquire, or retain
agents or toxins provided they do so for prophylactic, protective, or other
peaceful purposes with which the types and quantities of agents or toxins
are consistent, so under the second limb Article I allows them to develop,
produce, stockpile, acquire, or retain weapons, equipment, and means of
delivery provided they are not designed to use agents or toxins for hostile
purposes or in armed conflict.
It was presumably on this reasoning that US government lawyers were
relying (those from the State Department reportedly dissenting) when
they apparently advised that US efforts to replicate key parts of a biologi-
cal bomb designed in the former Soviet Union, in order to better under-
stand the BW threat, would not be in breach of Article I. The absence of
an intention “to use such agents or toxins for hostile purposes or in
armed conflict” would on this argument (which depends crucially upon
the interpretation of “designed” to mean the same as “intended”) render
the design of such a weapon compatible with US obligations under the
BWC. 24
There remains the further objection that to advance such a permissive
interpretation of the design criterion is undesirably subjective, allowing
each State Party to decide for itself whether its intention, in designing a
biological bomb, is to hold it in readiness to use it for hostile purposes or
in armed conflict, or merely to acquire a better understanding of how
others might use it in such circumstances. There can be no assurance that
this latter intention will not change over time and carry the project over
the border of international legality (assuming that it was legal in the first
place). Because the assessment of intention is the State Party's own, it is
subject to no international scrutiny. It is hardly surprising if others' as-
sessments differ and are seldom so charitable. Skepticism prevails. Per-
ceptions of vulnerability translate easily into perceptions of threat. As
Malcolm Dando and Simon Whitby recommend, “This particular case
underlines also the essential need for mechanisms through which States
Parties can demonstrate their compliance with the Convention and
through which possible ambiguities, anomalies and uncertainties can be
addressed.” 25