Is the U.S. Violating the Biological and Toxin Weapons Treaty?

This interesting Washington Post article on U.S. bioweapons research goes a bit too far trying to drum up a legal controversy. According to the Post, the Department of Homeland Security has a super-secret bioweapons research facility which some fear may violate the 1972 Convention Against Biological and Toxin Weapons.

According to the Post article, the U.S. believes it is in compliance because it has no intention of developing offensive weapons, but is merely developing defensive measures. This doesn’t sound like a terribly good defense, since (as Professor David Fidler of Indiana points out), intent does not appear to be an element of the treaty. Here is Article I (emphasis added):

Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain:

(2) Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

Even if the intent argument doesn’t work, the clear implication of this provision, at least, seems to permit work on biological agents or toxins for “prophylactic, protective, or other peaceful purposes.” This language is further developed in the U.S. statutes implementing the treaty and adding a “reasonability” requirement and a clear exception for “bonafide research”.

So unless the U.S. really is developing weapons for use in armed conflicts, the current program seems to be in compliance. And it is also perfect legal under the treaty to keep your research for developing defensive measures against biological weapons secret. But perhaps I am missing something.