Legal Constraints on Biological Weapons - Deadly Cultures: Biological Weapons Since 1945 - page 354

Article I. 30 The only doubt is over the route by which harm is caused.
Some who have examined the negotiating record of the BWC claim that
agents of infestation were understood not to be covered by Article I as it
was finally negotiated. However, it is hard to see how the actual text of
Article I conveys this understanding. “The method of waging war was no
longer specified, and thus it can only be assumed that actions preparatory
to both infection and infestation are prohibited.” 31 But is silence a suf-
ficient basis for this assumption? Authoritative confirmation is needed.
Only then will agents of infestation be conclusively covered by the BWC.
Given the prevailing uncertainty, it was prudent of those States Parties
which took the view that the BWC does not cover agents of infestation to
allow the Cuban allegation to be heard in 1997, on a “without prejudice”
basis, rather than to try to have it excluded from the purview of the Arti-
cle V contingency mechanism, which Cuba had invoked. Denmark, the
Netherlands, and others who shared their doubts did not compromise
their positions on the legal issue by taking part in the Consultative Meet-
ing process. Much more harm would have been caused if they had tried
to block it. Procedurally it was generally judged helpful to the BWC: a
useful airing of views and pooling of scientific and technical input albeit
with an inconclusive outcome. 32
Conclusion
The existence of outstanding legal issues points to a need for BWC States
Parties to resume the interrupted process of cumulative interpretation,
achieved through recording extended understandings of the implications
of the BWC in the declarations of their review conferences, on legal as
well as scientific and other issues relevant to the Convention.
They would benefit from the expert advice of a legal advisory panel in
the service of States Parties collectively, working alongside a scientific ad-
visory panel. Such a panel could help with new issues as well as with
those already identified. It could bring an international dimension to
what has up to now been a solely national process of generating legal
opinions, surely an unsatisfactory state of affairs for a multilateral treaty
30 years old with 154 States Parties, though, sadly, only one aspect of the
wider institutional deficit that persists to the detriment of the Conven-
tion.