Legal Constraints on Biological Weapons - Deadly Cultures: Biological Weapons Since 1945 - page 353

4. Does the BWC prohibit agents of infestation?
This issue arose acutely on 30 June 1997, when Cuba formally invoked
the BWC's Article V contingency mechanism, namely a Consultative
Meeting open to all States Parties at expert level, over an allegation of in-
festation of crops. 26
Cuba accused the US of deliberately spraying Thrips palmi pests from an
aircraft overflying its western province of Matanzas so that the insects
would devour its potato crop, thereby causing economic damage to Cuba.
Thrips had been detected on 18 December 1996; the overflight had taken
place, using a permitted air corridor, on 21 October. The US denied any
connection between the two events.
Denmark and the Netherlands explicitly, and other States Parties tac-
itly, reserved their positions on the legal issue of the BWC's scope during
the BWC Consultative Meeting process while addressing other issues in
dispute between Cuba and the US over events between October and De-
cember 1996 and the origin of the Thrips infestation. 27
The legal issue concerns the scope of Article I. When introducing the
British Draft Convention in 1969, UK Minister of State Fred W. Mulley
had explained its intended scope as follows: “The Convention is, of
course, aimed at prohibiting the use for hostile purposes of disease-carry-
ing microbes...However, it is possible to envisage the use in war of bio-
logical agents which are not microbes: hookworm, for instance, or the
bilharzia worm, or even crop-destroying insects such as locusts or Colo-
rado beetles.” 28
The British Draft Convention had accordingly given infestation equal
prominence with infection in its proposed Article I: “Each of the Parties
to the Convention undertakes never in any circumstances, by making use
for hostile purposes of microbial or other biological agents causing death
or disease by infection or infestation in man, other animals, or crops, to
engage in biological methods of warfare.” 29
But the words “by infection or infestation” had fallen away during ne-
gotiation of the BWC, leaving uncertainty as to whether, in the definitive
Article I, “microbial or other biological agents” included agents of infesta-
tion (such as Colorado beetles, locusts or, indeed, Thrips palmi ) as well as
agents of infection.
There has been no doubt since 1991 that “agents or toxins harmful to
plants and animals, as well as humans” are covered by the definition in