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A Dangerous Loophole: the Biological Weapons Convention's New Interpretation that Better Addresses Potentially Deadly Biological Research
Published online by Cambridge University Press: 18 October 2021
Abstract
There are three types of weapons of mass destruction (WMDs)—nuclear, chemical, and biological. Of the three WMDs, biological weapons are arguably the most dangerous as they are the most indiscriminate, the least controllable, and the least expensive to create. The seminal treaty for establishing legal constraints on this vital issue is the 1972 Biological Weapons Convention (BWC).2 Article I of the BWC specifically outlaws State acquisition of “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 . . .”3
The Vienna Convention on the Law of Treaties4 (VCLT) provides the general rule for how to interpret treaty language: “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”5 Problematically, by reading the BWC in light of this general rule, because the BWC only prohibits acquisitions that have “no justification,” the ordinary meaning of the text creates a wide loophole through which States may argue the acquisition of a potentially prohibited material has some justification, however minor, and therefore is not prohibited.
The Comment first reviews the background of biological weapons and regulation of their use. In this section, the Comment also describes the VCLT requirements for treaty interpretation and the evolutive approach to interpretation. Next, the Comment conducts a global analysis of State practice in regards to biosafety and biosecurity regulatory measures. It then analyzes the BWC using the various treaty interpretation methods—including addressing how subsequent state practice has affected this interpretation, and how an evolutive approach to interpretation changes the meaning of Article I of the BWC. Lastly, in recognition of this evolution in the law, this Comment recommends how to update enforcement mechanisms to accurately reflect the new state of the law.
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- Copyright © The Author(s) 2021. Published by International Association of Law Libraries
Footnotes
1
© Lena Raxter 2021.
2
Emphasis added. Full text of the convention can be found at https://front.un-arm.org/wp-content/uploads/2020/12/BWC-text-English-1.pdf
3
Id.
4
Full text of the Treaty can be found at https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
5
Id. at 12.
References
6 The Biological Threat: germs don't respect borders, so biological threats—manmade and naturally occurring—can quickly have global impacts, NTI (Dec. 30, 2015), https://www.nti.org/learn/biological; Richard G. Stearns, An Appropriate Legal Framework for Dealing with Modern Terrorism and WMD, in Intelligence and Human Rights in the Era of Global Terrorism 78, 83–84 (Steve Yui-Sang Tsang ed., 2006).
7 It is important to note that the allegations that COVID-19 was created in a laboratory are unfounded. See Monique Brouillette & Rebecca Renner, Why misinformation about COVID-19's origins keeps going viral, Nat'l Geo. (Sept. 18, 2020), https://www.nationalgeographic.com/science/article/coronavirus-origins-misinformation-yan-report-fact-check-cvd.
8 There are continual fears that non-state actors or adversarial States may obtain the technology necessary to create a biological weapon, and use such a weapon on their enemies. Willem Marx, COVID-19 has shown U.S., U.K. are vulnerable to biological terrorism, experts say, NBC News (May 18, 2020), https://www.nbcnews.com/politics/national-security/experts-covid-19-has-shown-u-s-u-k-are-n1207776. Compare States Must Step Up Efforts to Check Spread of Deadly Weapons as Non-State Actors Exploit Rapid Technology Advances, Speakers Tell Security Council (SC/12888), UN News (June 28, 2017), https://www.un.org/press/en/2017/sc12888.doc.htm (concluding that new technological advances pose a significant threat considering the developments regarding Da'esh and other such non-state actor groups) and Michael Moodie, Options and New Dynamics: Chemical and Biological Weapons Proliferation in 2020, in Over the Horizon Proliferation Threats 266 (James J. Wirtz & Peter R. Lavoy, eds., 2012) (concluding that the international regulatory framework for biological and chemical weapons should be revised considering the advances in science over the past decade), with Christian Enemark, Biological attacks and the non-state actor: a threat assessment, 21 Intel. & Nat'l Sec. 911, 911 (2006) (concluding that a biological weapons attack by non-state actors is unlikely, but also that individual scientists conducting biological research should be closely monitored).
9 James T. Areddy, Coronavirus Epidemic Draws Scrutiny to Labs Handling Deadly Pathogens, Wall St. J. (Mar. 5, 2020), https://www.wsj.com/articles/coronavirus-epidemic-draws-scrutiny-to-labs-handling-deadly-pathogens-11583349777; NTI, supra note 1.
10 See Mark Shwartz, Target, delete, repair: CRISPR is a revolutionary gene-editing tool, but it's not without risk, Stan. Med. (Winter 2018), https://stanmed.stanford.edu/2018winter/CRISPR-for-gene-editing-is-revolutionary-but-it-comes-with-risks.html (elaborating on the revolution in genetic technology that has resulted from the discovery of CRISPR-cas9, and noting the risks posed by the technology unless regulations are implemented); see also Edith Brown Weiss, Establishing Norms in a Kaleidoscopic World 288–302 (2020) (describing CRISPR-cas9 and the related regulatory legal framework, both non-binding and binding).
11 Elisa D. Harris, Dual-Use Threats: The Case of Biological Technology, in Governance of Dual-Use Technologies: Theory and Practice *1 (2016). Moreover, accidents while researching such deadly diseases may also pose a significant threat. See Stefan Riedel, Biological warfare and bioterrorism: a historical review, 17 BUMC Proceedings 400, 404 (2004) (explaining an incident in April 1979, where an anthrax epidemic in Sverdlovsk, Russia was attributed to an accident at a nearby USSR military microbiology facility); Alison Young & Jessica Blake, Here are Six Accidents UNC Researchers Had With Lab-Created Coronaviruses, ProPublica (Aug. 17, 2020), https://www.propublica.org/article/here-are-six-accidents-unc-researchers-had-with-lab-created-coronaviruses (reporting several incidents, from January 1, 2015 to June 1, 2020, of staff violating security measures while researching lab-created coronaviruses in a high-security lab at the University of North Carolina at Chapel Hill); Alison Young & Nick Penzenstadler, Inside America's secretive biolabs, USA Today (May 28, 2015), www.usatoday.com/story/news/2015/05/28/biolabs-pathogenslocation-incidents/26587505 (reporting an investigation which revealed “hundreds of accidents, safety violations, and near misses [which] put people at risk”); Cassandra Willyard, Biosafety bungle leads to bird flu contamination, 15 Nature Med. 349, 349 (2009) (reporting a biosafety accident in the Czech Republic which involved ferrets being accidentally infected with avian influenza); Russian Scientist Russian Scientist Dies after Ebola Lab Accident, 304 Science 1225 (2004) (reporting the death of a Russian scientist after she was accidentally exposed to Ebola while researching the disease); CDC Lab Incident: Anthrax, CDC (July 19, 2014), https://www.cdc.gov/anthrax/news-multimedia/lab-incident/index.html (reporting a lab accident involving Anthrax, which resulted in a moratorium on the transfer of any infectious agents—active or inactive—from any biosafety level 3 or 4 laboratories); cf. Lena H. Sun & Brady Dennis, Smallpox vials, decades old, found in room at NIH campus in Bethesda, Wash. Post (July 8, 2014), https://www.washingtonpost.com/national/health-science/smallpox-vials-found-in-storage-room-of-nih-campus-in-bethesda/2014/07/08/bfdc284a-06d2-11e4-8a6a-19355c7e870a_story.html (describing another serious incident, wherein government scientists unexpectedly found decades-old vials of smallpox in a storage room at the National Institute of Health Bethesda campus).
12 The Biological Weapons Convention (BWC) At A Glance, https://www.armscontrol.org/factsheets/bwc (last visited Jan. 23, 2021).
13 Id.
14 Biological Weapons Convention art. I, open for signature Apr. 10, 1972, 26 U.S.T. 583, 1015 U.N.T.S. (entered into force Mar. 26, 1975) [hereinafter “BWC”].
15 Georg Nolte, Treaties and Their Practice — Symptoms of Their Rise or Decline 219 (2019).
16 Vienna Convention on the Law of Treaties art. 31(a), opened for signature May 23, 1969, 1155 U.N.T.S. 331 [hereinafter “VCLT”].
17 Id., art. 31(b)-(c); Anthony Aust, Modern Treaty Law and Practice 208 (3d ed. 2013).
18 VCLT, supra note 11, at art. 32; Aust, supra note 12, at 208.
19 Nolte, supra note 10, at 356.
20 See VCLT, supra note 11, at art. 31(3)(b); see also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16, ¶¶ 21–22 (June 21).
21 See generally Gigi Kwik Gronvall et al., High-containment biodefense research laboratories: meeting report and center recommendations, 5 Biosecurity Bioterrorism 75 (2007) (explaining the safety measures recommended for laboratories conducting high-risk research, due to the danger posed by the pathogens tested at the facilities).
22 See generally Infographic: Biosafety Lab Levels, CDC (Dec. 21, 2020), https://www.cdc.gov/cpr/infographics/biosafety.htm (explaining the differences in protective measures, depending on lab level, as required by the CDC); Declan Butler, European biosafety labs set to grow, 462 Nature 146 (2009) (explaining what requirements are necessary for each level of biosecurity).
23 See BWC, supra note 9, at art. 2 (“Each State Party to this Convention undertakes to destroy, or to diver to peaceful purposes . . . all agents, toxins, weapons, equipment and means of delivery specified in article I of the Convention. . . . In implementing the provisions of this article, all necessary safety precautions shall be observed to protect populations and the environment.”).
24 See Hussein H. Khachfe et al., An Epidemiological Study on COVID-19: A Rapidly Spreading Disease, 12 Cureus *6–8 (2020) (examining the rapid spread of COVID-19).
25 Bacteria are microorganisms that live throughout nature—including in the human gut. They were first discovered in 1676 by Antoni van Leeuwenhoek, resulting in the development of the field “microbiology” that has transformed our understanding of the role of microbes in causing infectious diseases. Howard Gest, The discovery of microorganisms by Robert Hooke and Antoni Van Leeuwenhoek, fellows of the Royal Society, 58 Notes & Records Royal Soc'y London, 187, 188 (2004).
26 The first virus to be discovered was the tobacco mosaic virus in 1892. Less than ten years later, scientists discovered the first virus which was known to infect humans—yellow fever virus. Since then, scientists have discovered 219 virus species that are capable of infecting humans. Mark Woolhouse et al., Human viruses: discovery and emergence, 367 Philosophical Transactions Royal Soc'y London. Series B, Biological Sci., 2864, 2864 (2012).
27 Riedel, supra note 6, at 400.
28 Stearns, supra note 1, at 83.
29 Friendrich Frischknecht, The history of biological warfare, 4 European Molecular Biology Org. Reports S47, S47 (2003) (explaining how pathogens have historically been used as means of assassination).
30 Examples include the viruses that cause Ebola and Marburg, which have a lethality rate of nearly 100 percent; and smallpox, which has a lethality rate of around 30 percent or higher, depending on whether the population is vaccinated. While smallpox was eradicated from nature in the 1970s, “a successful smallpox attack in Europe or North America would almost certainly become a world-wide pandemic before running its course.” Stearns, supra note 1, at 84.
31 Bioregulators are “biochemical substances produced by the human body in tiny amounts for the regulation of physiological functions.” Alexander Kelle, Kathryn Nixdorff, & Malcolm Dando, Preventing a Biochemical Arms Race 20 (2012).
32 See also Stearns, supra note 1, at 83–84 (explaining that biotoxins are the most toxic known poisons, and are relatively easy to produce. Examples include ricin, which can be extracted from castor beans using a simple process—patented by the US army in 1952—that can be found on the internet. However, biotoxins are not infectious and are therefore more effective as an assassination tool than a method to cause mass death).
33 See generally Biological Weapons, https://www.who.int/health-topics/biological-weapons#tab=tab_1 (last visited Jan. 23, 2021); NTI, supra note 1; Dominika Švarc, Biological Weapons and Warfare, Max Planck Encyclopedias Int'l L. (2015); Hendrik A Strydom, Weapons of Mass Destruction, Max Planck Encyclopedia Int'l L. (2017).
34 Kelle, Nixdorff, & Dando, supra note 26, at 20.
35 Barry Kellman, Bridling the International Trade of Catastrophic Weaponry, 43 Am. U. L. Rev. 755 (1994).
36 Michael A. Hayoun & Kevin C. King, Biological Warfare Agent Toxicity, StatPearls (May 5, 2020), https://www.ncbi.nlm.nih.gov/books/NBK441942/.
37 Frischknecht, supra note 24, at 547; Riedel, supra note 6, at 400.
38 Kelle, Nixdorff, & Dando, supra note 26, at 20–21; Riedel, supra note 6, at 401.
39 Riedel, supra note 6, at 401; see also William V. O'Brien, The Jus in Bello in International Relations Studies, 31 Am. U. L. Rev. 1011, 1022 (1982) (describing false claims against the UN in Korea, claiming that forces used biological warfare agents); John Norton Moore, A Theoretical Overview of the Laws of War in a Post-Charter World, with Emphasis on the Challenge of Civil Wars, Wars of National Liberation, Mixed Civil-International Wars, and Terrorism, 31 Am. U. L. Rev. 841, 844 (1982) (also describing false claims against the UN in Korea, claiming that forces used biological warfare agents).
40 Kelle, Nixdorff, & Dando, supra note 26, at 20–21.
41 For example: Canada, the UK, the US, and the USSR. Id. at 21.
42 For example: France. Id.
43 For example: Iraq and South Africa. Id.
44 H.J. Jansen et al., Biological warfare, bioterrorism, and biocrime, 20 Clinical Microbiology & Infection 488, 488 (2014). However, scholars regularly debate whether terrorist organizations, such as al-Qaeda, are capable of creating, maintaining, and successfully releasing biological weapons. Compare Stearns, supra note 1, at 83–85 (concluding that it is unlikely al-Qaeda maintains the technical capabilities required to produce a biological weapon capable of causing mass infection), with Moodie, supra note 3, at 280–281 (“Even if terrorists cannot exploit the most cutting edge scientific and technological capabilities, however, it does not mean they can do nothing. . . . Their science and technology have to be just ‘good enough.’”).
45 John Lancaster & Susan Schmit, When anthrax-laced letters terrorized Washington and New York, Wash. Post (October 24, 2018), https://www.washingtonpost.com/history/2018/10/24/when-anthrax-laced-letters-terrorized-washington-new-york see Ira P. Robbins, Anthrax hoaxes, 54 Am. U. L. Rev. 1 (2004) (describing a series of real and hoax biological weapons attacks post-9/11, and the regulations US law makers implemented to respond to them).
46 Michael Skopets, Battered Nation Syndrome: Relaxing the Imminence Requirements of Self-Defense in International Law, 55 Am. U. L. Rev. 753, 754–755, 776 n.104, 780 n.125 (2006); see Text of President Bush's 2003 State of the Union Address, Wash. Post (Jan. 28, 2003) (“We must assume that our enemies would use these diseases as weapons, and we must act before the dangers are upon us.”).
47 U.S. Gov't Accountability Office, GAO-09-574, Report to congressional requesters. High containment laboratories: national strategy for oversight is needed (2009); U.S. Gov't Accountability Office, GAO-08-108T, Testimony before the Subcommittee on Oversight and Investigations, Committee on Energy and Commerce, House of Representatives. High-containment biosafety laboratories: preliminary observations on the oversight of the proliferation of BSL-3 and BSL-4 laboratories in the United States (2007). But see Meredith Wadman, Booming biosafety labs probed, 461 Nature 577 (2009) (reporting on the disagreement between scientists and US lawmakers on what regulatory security measures are necessary for high-containment laboratories). See generally Michael P. Scharf, Clear and Present Danger: Enforcing the International Ban on Biological and Chemical Weapons through Sanctions, Use of Force, and Criminalization, 20 Mich. J. Int'l L. 477 (1999).
48 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571 [hereinafter “Geneva Protocol”].
49 “Non-first use” means that the State cannot be the initial party to use a biological weapon against another State; however, the State is permitted to use a biological weapon as a response to a similar attack by another State. Kelle, Nixdorff, & Dando, supra note 26, at 12.
50 Jenni Rissaen, The Biological Weapons Convention, NTI (March 1, 2003), https://www.nti.org/analysis/articles/biological-weapons-convention; About the Biological Weapons Convention, https://www.unog.ch/80256EE600585943/(httpPages)/77CF2516DDC5DCF5C1257E520032EF67?OpenDocument (last visited Jan. 23, 2021).
51 Rissaen, supra note 45.
52 Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons (BTWC), https://www.nti.org/learn/treaties-and-regimes/convention-prohibition-development-production-and-stockpiling-bacteriological-biological-and-toxin-weapons-btwc/#:~:text=The%20Biological%20and%20Toxin%20Weapons,for%20protective%20or%20peaceful%20use (last visited Jan. 23, 2021) [hereinafter “NTI”].
53 Id.
54 Id.
55 Id.
56 Id.
57 Rissaen, supra note 45.
58 Id.
59 Kelle, Nixdorff, & Dando, supra note 26, at 4.
60 Get the Facts: The Biological and Toxic Weapons Convention, NTI (Nov. 2019), https://media.nti.org/documents/btwc_fact_sheet.pdf; Ayers, The Biological Weapons Convention: Creation and Problems with Enforcement, 2 J. Biosecurity Biosafety & Biodefense L. 1 (2012).
61 See NTI, supra note 47 (listing the developments from the review conferences).
62 Sixth Review Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction: Draft Final Document, ¶ 36, U.N. Doc. BWC/CONF.VI/CRP.4 (Dec. 8, 2006).
63 Role of the Implementation Support Unit, https://www.unog.ch/80256EE600585943/(httpPages)/F8521A510F455706C12573A6003F49F2?OpenDocument (last visited Jan. 23, 2021).
64 Implementation Support Unit, https://www.unog.ch/80256EE600585943/(httpPages)/16C37624830EDAE5C12572BC0044DFC1?OpenDocument (last visited Jan. 23, 2021).
65 Relevant Activities overseen by the BWC Implementation Support Unit, https://www.unog.ch/80256EE600585943/(httpPages)/1B69CE1F0B030DA0C1257F39003E9590?OpenDocument (last visited Jan. 23, 2021).
66 Piers Millett, The Biological Weapons Convention: Securing Biology in the Twenty-First Century, 15 J. Conflict & Sec. L. 25 (2010); see David R. Franz, The Dual Use Dilemma: Crying out for Leadership, 7 St. Louis U. J. Health L. & Pol'y 5 (2013); Carole R. Baskin & Todd J. Richardson, Dual Use Research Policy Implementation, 7 St. Louis U. J. Health L. & Pol'y 59 (2013); see also Victoria Sutton, Biodiplomacy: A Better Approach to Dual Use Concerns, 7 St. Louis U. J. Health L. & Pol'y 111 (2013). See generally Dual Use Research of Concern in the Life Sciences: Current Issues and Controversies, Nat'l Acad. of Sci., Eng'g & Med. (2017).
67 Baskin & Richardson, supra note 61, at 59.
68 Selgelid, Michael J., Gain-of-Function Research: Ethical Analysis, 22 Sci. & Eng'g Ethics 924 (2016)Google ScholarPubMed, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4996883.
69 See Gain-of-Function Research: Background and Alternatives, in Potential Risks and Benefits of Gain-of-Function Research: Summary of a Workshop (2015), https://pubmed.ncbi.nlm.nih.gov/25719185 (explaining different types of gain-of-function research and their application in scientific research).
70 Piers Millett, Gaps in the International Governance of Dual-Use Research of Concern *2–4 (Jan. 17, 2017), https://www.nap.edu/resource/24761/Millett_Paper_011717.pdf.
71 See Alexandra Peters, The global proliferation of high-containment biological laboratories: understanding the phenomenon and its implications, 37 Revue scientifique et technique (Int'l Office of Epizootics) 857 (2018), https://pubmed.ncbi.nlm.nih.gov/30964462 (conducting a review of global State practice regarding biosecurity measures); Barbara Johnson & Rocco Casagrande, Comparison of International Guidance for Biosafety Regarding Work Conducted at Biosafety Level 3 (BSL-3) and Gain-of-Function (GOF) Experiments, 21 Applied Biosafety: J. of ABSA Int'l 128 (2016), https://journals.sagepub.com/doi/full/10.1177/1535676016661772 (conducting a comparative review of biosecurity measures within the US, the World Health Organization, Great Britain, Australia and New Zealand, Singapore, and the European Union).
72 See Johnson & Casagrande, supra note 66, at 128–130.
73 See Selgelid, Michael J., Gain-of-Function Research: Ethical Analysis, 22 Sci. & Eng'g Ethics 923 (2016)Google ScholarPubMed, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4996883 (analyzing the ethical debate regarding “gain of function” experiments); W. Ian Lipkin, Biocontainment in Gain-of-Function infectious disease research, 3 mBio 1 (2012), https://mbio.asm.org/content/mbio/3/5/e00290-12.full.pdf (stressing the need for the WHO to establish strict criteria for safety measures in BSL-3 and BSL-4 laboratories).
74 Major biosafety level 3 and 4 (BSL-3 and 4) facilities around the world, Fed'n of Am. Scientists (2009), www.fas.org/programs/bio/biolevel-old.html; Labs form a new front against deadly pathogens, 87 Bulletin of the World Health Org. 245 (2009), www.who.int/bulletin/volumes/87/4/09-010409/en.
75 Jeffery Adamovicz, Select agent program impact on the IBC, Ensuring Nat'l Biosecurity 169 (2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7149598; Salloch, Sabine, The dual use of research ethics committees: why professional self-governance falls short on preserving biosecurity, 19 BMC Med. Ethics 53 (2018)CrossRefGoogle ScholarPubMed; Engineering and Medicine, Developing Norms for the Provision of Biological Laboratories in Low-Research Contexts: Proceedings of a Workshop, Nat'l Acad. of Sci. (2019), https://doi.org/10.17226/25311.
76 World Health Organization, Laboratory Biosafety Manual 47 (3rd ed. 2004) [hereinafter “WHO Laboratory Safety”]. See generally Fact Sheet: Biosafety and Biosecurity, World Health Org. (March 20, 2018), https://www.who.int/influenza/pip/BiosecurityandBiosafety_EN_20Mar2018.pdf?ua=1 (providing information on the difference between the two); Marlon L. Bayot & Faten Limaiem, Biosafety Guidelines, StatPearls (March 25, 2020), https://www.ncbi.nlm.nih.gov/books/NBK537210 (providing detailed information regarding biosafety guidelines).
77 WHO Laboratory Safety, supra note 71, at 47.
78 Nolte, supra note 10, at 219.
79 Id. at 219, 332; cf. J. S. Stanford, The Vienna Convention on the Law of Treaties, 20 U. Toronto L.J. 18 (1970) (explaining the drafting process and legal requirements under the treaty).
80 Georg Nolte, Introduction, in The Interpretation of International Law by Domestic Courts-Uniformity, Diversity, Convergence 3 (Helmut Aust & Georg Nolte, eds., 2016).
81 Anthony Nardi, Armored Plating and Aluminum Foil Are Not like Products: Consequences of the United States' Overbroad Interpretation of Article XXI of the GATT, 69 Am. U. L. Rev. 629, 647 (2019).
82 Int'l Law Comm'n, Rep. of the Seventieth Session, Official Records of the General Assembly, Supplement No. 10, “Subsequent Agreements and Subsequent Practice in Relations to the Interpretation of Treaties,” U.N. Doc. A/73/10, art. 6 ¶ 3 (2018) [hereinafter “SASP draft conclusion”]; Aust, supra note 12, at 205; Nolte, supra note 10, at 331–32.
83 Nolte, supra note 10, at 331–32.
84 Id. at 220.
85 Id. at 333.
86 VCLT, supra note 11, at art. 31, 32; Nardi, supra note 76, at 645.
87 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), Judgment, 1991 I.C.J. 53, ¶ 48 (Nov. 12) (“[The principles of treaty interpretation] are reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary law on the point.”); Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment, 2009 I.C.J. 213, ¶ 47 (July 13); LaGrand (Ger. v. U.S.), Judgment, 2001 I.C.J. 466, ¶ 99 (June 27); Case C-386/08, Firma Brita CmbH v. Hauptzollamt Hamburg-Hafen, 2010 E.C.R. I-01289, ¶¶ 41, 43; Case C-63/09, Axel Walz v. Clickair SA, 2010 E.C.R. I-04239, ¶ 23; Responsibilities and Obligations of States Sponsoring Persons & Entities with Respect to Activities in the Area, Case No. 17, Advisory Opinion of Feb. 1, 2011, 15 ITLOS Rep. 10, ¶ 57; Demir & Baykara v. Turk., Judgment, App. No. 34503/97, ¶ 65 (Nov. 12, 2008); Al-Saadoon & Mufdhi v. U.K., App. No. 61498/08, 2010 Eur. Ct. H.R. 762, ¶ 126 (Mar. 2, 2010).
88 Levesque, Christina A., The International Covenant on Civil and Political Rights: A Primer for Raising a Defense against the Juvenile Death Penalty in Federal Courts, 50 Am. U. L. Rev. 755, 785 (2001)Google Scholar; Louis B. Sohn, The Law of the Sea: Customary International Law Developments—The American University Washington College of Law Edwin A. Mooers Lecture—11 October 1984, 34 Am. U. L. Rev. 271, 276 (1985).
89 Aust, supra note 12, at 208.
90 Id. at 208.
91 Nolte, supra note 10, at 356.
92 VCLT, supra note 11, at art. 31(1); Id. at 335.
93 Aust, supra note 12, at 208.
94 VCLT, supra note 11, at art. 31(2).
95 SASP draft conclusion, supra note 77, at art. 2 commentary ¶¶ 6, 11–14.
96 Nolte, supra note 10, at 336; see Report of the International Law Commission covering the work of its sixteenth session, 11 May-24 July 1964, U.N. Doc. A/5809 (1964), 1964-II Y.B. Int'l L. Comm'n 173, 204 (“[T]he Commission's approach to treaty interpretation was on the basis that the text of the treaty must be presumed to be the authentic expression of the intentions of the parties, . . . making the ordinary meaning of the terms, the context of the treaty, its objects and purposes, and the general rules of international law, together with authentic interpretations by the parties, the primary criteria for interpreting a treaty.”).
97 See, e.g., Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, 1950 I.C.J. 4, 7–8 (Mar. 3); Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon./Malay.), Judgment, 2002 I.C.J. 625, ¶¶ 59–61, 80 (Dec. 17); Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, 1994 I.C.J. 6, ¶¶ 66–71; Dispute regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment, 2009 I.C.J. 213, 290 (July 13) (declaration by Guillaume, J. ad hoc).
98 VCLT, supra note 11, at art. 31(2).
99 Id. at art. 31(4).
100 See NTI, supra note 47 (listing the developments from the review conferences).
101 VCLT, supra note 11, at art. 31(3); Nolte, supra note 10, at 220.
102 SASP draft conclusion, supra note 77, at art. 4 ¶ 1.
103 Id. at art. 4 ¶ 2.
104 Nolte, supra note 10, at 222.
105 Id.; SASP draft conclusion, supra note 77, at art. 10 ¶ 2; cf. Julian Arato, Subsequent Practice and Evolutive Interpretation: Techniques of Treaty Interpretation over Time and Their Diverse Consequences, 9 Law & Practice of Int'l Courts and Tribunals 443, 458 (2010) (“The principle of this mode of interpretation is that the practice of the parties in applying a treaty shall provide evidence for how they interpret, or have come to interpret, that treaty.”) (emphasis in original); Int'l Law Comm'n, Rep. of the Eighteenth Session, 4 May-19 July 1966, Official Records of the General Assembly, Twenty-first Session, Supplement No. 9, “Draft Articles on the Law of Treaties with commentaries,” U.N. Doc. A/CN.4/191, 1966-II Y.B. Int'l L. Comm'n 187, 222 [hereinafter “DALT”] (clarifying that State practice does not require all parties to engage in a practice; it is only necessary that non-engaging parties acquiesce to the practices of engaging States).
106 SASP draft conclusion, supra note 77, at art. 5 ¶ 1.
107 Arato, supra note 100, at 483.
108 Nolte, supra note 10, at 337.
109 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion, 1960 I.C.J. 150, 169 (June 8).
110 Arato, supra note 100, at 458, 462.
111 See, e.g., Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), Judgment, 1993 I.C.J. 38, ¶ 27 (June 14); Oil Platforms (Islamic Republic of Iran v. U.S.), Judgment, 1996 I.C.J. 803, ¶¶ 27, 30 (Dec. 12); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment, 1998 I.C.J. 275, ¶ 67 (June 11).
112 SASP draft conclusion, supra note 77, at art. 3; Aust, supra note 12, at 215; Nolte, supra note 10, at 222; see also Russian Claim for Interest on Indemnities (Russ. v. Turk.), 11 R.I.A.A. 421, 433 (Perm. Ct. Arb. 1912) (“the fulfillment of engagements between States, as between individuals, is the surest commentary on the meaning of those engagements.”). But see DALT, supra note 100, at 222 (“[T]he value of subsequent practice varies accordingly as it shows the common understanding of the parties as to the meaning of the terms” which means that the value of subsequent practice depends on its clarity and consistency).
113 SASP draft conclusion, supra note 77, at art. 5 commentary ¶ 10; Nolte, supra note 10, at 221.
114 Aust, supra note 12, at 215; Arato, supra note 100, at 460; DALT, supra note 100, at 222.
115 Arato, supra note 100, at 452.
116 Aust, supra note 12, at 216; see Kasikili/Sedudu Island (Bots./Namib.), Judgment, 1999 I.C.J. 1045, ¶¶ 47–51, 63, 73, 75 (Dec. 13).
117 Judgment (Preliminary Objections), App. No. 15318/89 (Mar. 23, 1995).
118 Id. at ¶¶ 79–80; see also Demir & Baykara v. Turk., Judgment, App. No. 34503/97, ¶ 52 (Nov. 12, 2008) (“[A]s to the practice of European States, it can be observed that, in the vast majority of them, the right for public servants to bargain collectively with the authorities has been recognized” and “[t]he remaining exceptions can be justified only by particular circumstances.”).
119 See, e.g., Jong-Cheol v. The Republic of Korea, Views, Comm. No. 968/2001 (July 27, 2005), in Report of the Human Rights Committee, Official Records of the General Assembly Sixtieth Session, Supplement No. 40, U.N. Doc. A/60/40, Vol. II, Annex V, G, ¶ 8.3; Yoon and Choi v. The Republic of Korea, Views, Comm. Nos. 1321/2004 & 1322/2004 (Nov. 3, 2006), in Report of the Human Rights Committee, Official Records of the General Assembly, Sixty-second Session, Supplement No. 40, U.N. Doc. A/62/40, Vol. II, Annex VII, V, ¶ 8.4.
120 See, e.g., “Tomimaru” (Japan v. Russ. Fed.), Prompt Release, Case No. 15, Judgment of Aug. 6, 2007, 2005–2007 ITLOS Rep. 74, ¶ 72; Southern Bluefin Tuna (N.Z. v. Japan; Austl. v. Japan), Provisional Measures, Case No. 3 & 4, Order of Aug. 27, 1999, 1999 ITLOS Rep. 280, ¶¶ 45, 50.
121 M/V Saiga (No. 2) (St. Vincent v. Guinea), Case No. 2, Judgement of July 1, 1999, 1999 ITLOS Rep. 10.
122 Id. at ¶ 155.
123 Nolte, supra note 10, at 221.
124 Id.
125 Id.
126 Aust, supra note 12, at 217.
127 VCLT, supra note 11, at art. 32.
128 Aust, supra note 12, at 218.
129 Id. at 218–19.
130 Id. at 219.
131 Nolte, supra note 10, at 356.
132 See VCLT, supra note 11, at art. 31(3)(b); see also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16, ¶¶ 21–22 (June 21).
133 Arato, supra note 100, at 452.
134 SASP draft conclusion, supra note 77, at art. 8 commentary ¶ 8.
135 Arato, supra note 100, at 471 (emphasis added); Int'l Law Comm'n, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, U.N. Doc. A/CN.4/L.682, at ¶¶ 443, 478 (2006) [hereinafter “Fragmentation Report”]; Aegean Sea Continental Shelf (Greece v. Turk.), Judgment, 1978 I.C.J. 3, ¶ 77 (Dec. 19). But see Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment, 2009 I.C.J. 213, ¶ 64 (July 13) (finding that the meaning of the term “comercio” had evolved due to a change in factual circumstances).
136 See, e.g., Sergey Zolotukhin v. Russia, App. No. 14939/03, ¶¶ 78–80 (Feb. 10, 2009) (“Provisions of an international treaty such as the Convention must be construed in light of their object and purpose,” and as such “a failure by the Court to maintain a dynamic and evolutive approach would risk rendering [the European Convention on Human Rights] a bar to reform or improvement” for human rights); cf. Scoppola v. Italy (no. 2), App. No. 10249/03, 2009 Eur. Ct. H.R. 1297, ¶ 104 (2009) (“It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement.”). But see Award in Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands (Belgium v. United Kingdom), 27 UNRIAA 35, ¶¶ 80–84 (Perm. Ct. Arb. 2005) (suggesting that a treaty should only be considered evolutive on the basis of a treaty's object and purpose if the new meaning is necessary to give effect to the treaty's object and purpose).
137 Int'l Law Comm'n, Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, U.N. Doc. A/61/10, 2006-II Y.B. Int'l L. Comm'n 177, at 181 (2006) (internal citations deleted) [hereinafter “Fragmentation Conclusions”].
138 Arato, supra note 100, at 469; see, e.g., Case Concerning the Gabčikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, ¶ 112 (Sept. 25) (finding that a technical provision within the Treaty was not “static” and should therefore be interpreted using the evolutive approach); Appellate Body Report, United States — Import Prohibitions of Certain Shrimp and Shrimp Products, ¶ 130, WTO Doc. WT/DS58/AB/R (adopted Oct. 12, 1998) (“[T]he generic term ‘natural resources’ in Article XX(g) is not ‘static’ in its content or reference but is simply ‘by definition, evolutionary.’”).
139 Aegean Sea Continental Shelf (Greece v. Turk.), Judgment, 1978 I.C.J. 3, ¶ 77 (Dec. 19); Arato, supra note 100, at 443.
140 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16 (June 21).
141 Id. ¶¶ 21–22, 52.
142 Id. at ¶¶ 21–22, 53. But see Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment, 2009 I.C.J. 213, ¶ 47 (July 13) (concluding that, while subsequent agreements and practice can be interpreted as providing a term with a meaning capable of evolving over time, such agreements and practice do not always do so).
143 Leyla Sahin v. Turkey, App. No. 44774/98, 44 Eur. H.R. Rep. 99, ¶ 136 (2005); Tyrer v. United Kingdom, App. No. 5856/72, 1978 Eur. Ct. H.R. 2, ¶ 31 (1978). See also Öcalan v. Turkey, App. No. 46221/99, 2005-IV Eur. Ct. H.R. 12, ¶ 163 (2005) (using subsequent practice and evolutive interpretation to reinterpret the right not to be subject to inhuman and degrading treatment).
144 Award in Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands (Belgium v. United Kingdom), 27 UNRIAA 35, ¶ 80 (Perm. Ct. Arb. 2005); see also Aegean Sea Continental Shelf (Greece v. Turk.), Judgment, 1978 I.C.J. 3, ¶ 77 (Dec. 19); Delimitation of Maritime Boundary between Guinea-Bissau and Senegal (Guinea-Bissau v. Sen.), 20 UNRIAA 119, ¶ 85 (Perm. Ct. Arb. 1989).
145 See, e.g., The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, Inter-Am. Ct. H.R., ¶ 114 (Oct. 1, 1999) (“[The] evolutive interpretation is consistent with the general rules of treaty interpretation established in the 1969 Vienna Convention.”); see also United Nations Convention on the Law of the Sea annex III art. 153(4) & 154(4), 1833 U.N.T.S. 3 (noting that the ITLOS Seabed Disputes Chamber allows the an evolutive interpretation of the certain obligations to ensure environmental protection). See generally Fragmentation Conclusions, supra note 132, at ¶ 478(a); Richard Gardiner, Treaty Interpretation 225, 276 (2009).
146 SASP draft conclusion, supra note 77, at art. 8 (“Subsequent agreements and subsequent practice under articles 31 and 32 may assist in determining whether or not the presumed intentions of the parties upon the conclusion of the treaty was to give a term used a meaning which is capable of evolving over time.”).
147 Id.; Nolte, supra note 10, at 360.
148 Nolte, supra note 10, at 360.
149 Id.; see VCLT, supra note 11, at art. 39 (permitting the modification of treaties by agreement by the States parties).
150 “A treaty may be modified by subsequent practice in the application of the treaty establishing the agreement of the parties to modify its provisions.” Y.B. Int'l Law Comm'n, U.N. Doc. A/6309/Rev.1, 236 (1966).
151 Arato, supra note 100, at 456.
152 Temple of Preah Vihear (Cambodia v. Thailand), Judgment, 1962 I.C.J. 6 (June 15).
153 Id. at 23 (“[A]n acknowledgement by conduct was undoubtedly made in a very definite way . . . it is clear that the circumstances were such as called for some reaction.”); see also Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment, 2002 I.C.J. 303, ¶ 68 (Oct. 1).
154 Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment, 2009 I.C.J. 213 (July 13).
155 Id. at ¶ 64.
156 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16, ¶¶ 21–22 (June 21).
157 Legal Consequence of the Construction of the Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9).
158 1971 I.C.J. 16, at ¶ 22; 2004 I.C.J. 136, at ¶ 28.
159 Nolte, supra note 10, at 353; Arato, supra note 100, at 462. It should be noted that ILC SASP draft conclusion 7 explicitly denies that subsequent practice can modify a treaty; rather, the decisions of the ICJ simply provide for the reinterpretation of a treaty based on subsequent practice. SASP draft conclusion, supra note 77, at art. 7 commentary ¶ 31. However, this Comment disregards this distinction as both reinterpretation and modification have the same effect of changing the obligations required by States.
160 See, e.g., Soering v. United Kingdom, App. No. 14038/88, 11 Eur. H.R. Rep. 439, ¶ 103 (1989) (“Subsequent practice in national penal policy, in the form of a generalized abolition of capital punishment, could be taken as establishing the agreement of the Contracting states to abrogate the exception provided for under Article 2 § 1 (art. 2–1) and hence to remove a textual limit.”); Öcalan v. Turkey, App. No. 46221/99, 2005-IV Eur. Ct. H.R. 12, ¶ 163 (2005) (“[subsequent] practice within the Member States could give rise to an amendment of the Convention.”).
161 Arato, supra note 100, at 464 n.73.
162 See supra note 98 to 101, and accompanying text.
163 See supra note 61 to 65, and accompanying text.
164 It is important to note that, because the guidelines created by the WHO are non-binding, States may choose whether or not to comply with them. Consequently, it is necessary to analyze each State specifically to determine whether or not the State has binding regulatory measures that govern DURC. See Johnson and Casagrande, supra note 66, at 128. See generally WHO Laboratory Safety, supra note 71, at 47 (providing non-binding guidelines for States in implementing biosafety measures).
165 For the purposes of this Comment, Mexico will be addressed in the “Latin America” section.
166 Peters, supra note 66, at 866–70.
167 US National Research Council Staff, United States High-Containment Biological Labs and Regulations, in Biosecurity Challenges of the Global Expansion of High-Containment Biological Laboratories: Summary of a Workshop 193 (2012), https://www.nap.edu/read/13315/chapter/27. See generally Centers for Disease Control and Prevention (CDC), Biosafety in microbiological and biomedical laboratories (5th ed. 2009), www.cdc.gov/biosafety/publications/bmbl5 (providing the biosafety guidelines that the US laboratories must comply with, in accordance with the CDC's enforcement mechanisms); United States Government Policy for Oversight of Life Sciences Dual Use Research of Concern (March 2012), https://www.phe.gov/s3/dualuse/Documents/us-policy-durc-032812.pdf (outlining the US government oversight of dual-use research of concern); Recommended Policy Guidance for Department Development of Review Mechanisms for Potential Pandemic Pathogen Care and Oversight (P3CO) (Jan. 9, 2017), https://www.phe.gov/s3/dualuse/Documents/P3CO-FinalGuidanceStatement.pdf (providing recommendations for the safety measures implemented while researching “Potential Pandemic Pathogens”); Jocelyn Kaiser, White House announces review process for risky virus studies, Science (Jan. 9, 2017), https://www.sciencemag.org/news/2017/01/white-house-announces-review-process-risky-virus-studies.
168 See CDC, supra note 162 (providing the current US guidelines for biosafety); Historical Lab Safety Activities, https://www.cdc.gov/labs/safety-history.html (last visited Jan. 27, 2021) (providing the recent history of biosafety in the US).
169 Harris, supra note 6, at *10–15 (listing the US governance mechanisms for biological weapons development, biological research, and access and use to biological material); see Biosafety worldwide — Historical Background, https://www.biosafety.be/content/biosafety-worldwide-historical-background-0 (last visited Jan. 27, 2021) (explaining that the work of the Public Health Service of the US, in 1969, was adopted by the WHO in their regulatory measures of 1979—which “would afterwards serve as a basis for a large number of national reference documents.”); see also, e.g., Ministry of Environment and Forest, Government of the People's Republic of Bangladesh, Biosafety Guidelines of Bangladesh (2005), http://extwprlegs1.fao.org/docs/pdf/bgd34267.pdf (providing the Bangladeshi guidelines for biosafety, which follow the same guidelines as those set by the CDC); Leila dos Santos Macedo, Overview of Biosafety and Biosecurity in High-containment Labs in Brazil: A report of the Brazilian Biosafety Association, in Biosecurity Challenges of the Global Expansion of High-Containment Biological Laboratories: Summary of a Workshop 143, 145 (2012) https://www.nap.edu/read/13315/chapter/19 (explaining that the Brazilian Ministry of Science and Technology uses the same definition of “selected agents” as the CDC).
170 Canadian Biosafety Standards and Guidelines, https://www.canada.ca/en/public-health/services/canadian-biosafety-standards-guidelines.html (last visited Jan. 27, 2021); see Johnson and Casagrande, supra note 66, at 128 (analyzing the regulatory measures implemented in Canada).
171 Peters, supra note 66, at 866–70.
172 Id.
173 Id.
174 Id. While the lack of DURC in the region limits the relevance of the region for establishing State practice, it is notable in that there is no record of States within the region objecting to other State's DURC or the regulatory regimes created to oversee such research. See supra note 100, and accompanying text.
175 Peters, supra note 66, at 866–70.
176 See World Health Organization, Extended Biosafety Advisory Group meeting: Meeting Report, 14, U.N. Doc. WHO/HSE/GCR/2016.7 (Nov. 24–26, 2014) (providing a report of the efforts CARICOM has implemented).
177 See supra note 98 to 101, and accompanying text.
178 Mexico has no BSL-4 laboratories. Peters, supra note 66, at 868.
179 Institute of Epidemiological Diagnosis and Reference Dr. Manuel Martínez Báez, https://www.gob.mx/salud/acciones-y-programas/instituto-de-diagnostico-y-referencia-epidemiologicos-indre (in Spanish) (last visited Jan. 27, 2021).
180 AMEXBIO, http://amexbio.org/ (in Spanish) (last visited Jan. 27, 2021).
181 World Health Organization, supra note 171, at 13–14.
182 Cuba has a few BSL-4 laboratories in a single facility; however, they have never been used for BSL-4 research. Further, the country probably maintains an offensive research program. Peters, supra note 66, at 867.
183 Eighth Review Conference of Biological Weapons Convention, Non-official Translation; National Document Cuba, Cuban Offers and Requests to the International Cooperation Database under Article X of the BTWC, *2, U.N. Doc. BWC/CONF.VIII/WP.5 (2016).
184 Id. at *1.
185 Peters, supra note 66, at 866–70.
186 Macedo, supra note 164, at 144–45.
187 Id. at 147.
188 Id. at 148.
189 Nidia E. Lucero and Faustino Siñeriz, The Argentine experience in enhancing biosafety through good laboratory practices, 8 Asian Biotechnology & Dev. Rev. 99, 105 (2005), http://www.ris.org.in/images/RIS_images/pdf/article4_v8n1.pdf.
190 Id. at 105.
191 Id. at 108–10.
192 Jordi Molas-Gallart, Coping with Dual-Use: A Challenge for European Research Policy, 40 J. Common Mkt. Studies 155 (2002), https://doi.org/10.1111/1468-5965.00348.
193 Peters, supra note 66, at 866–70.
194 Id. at 866–70.
195 Ingegerd Kallings & Kathrin Summermatter, High-Containment Microbiology Laboratories in Europe, in Biosecurity Challenges of the Global Expansion of High-Containment Biological Laboratories: Summary of a Workshop 151 (2012), https://www.nap.edu/read/13315/chapter/20.
196 Harris, supra note 6, at *28–29; see also id. at 151–55.
197 Johnson and Casagrande, supra note 66, at 128.
198 Harris, supra note 6, at *27, *29.
199 Id.
200 Id. at *27, *30.
201 Id.
202 Id.
203 Johnson & Casagrande, supra note 66, at 128; Id. at *27, *30–31.
204 Boris Pastorino, Xavier de Lamballerie & Rémi Charrel, Biosafety and Biosecurity in European Containment Level 3 Laboratories: Focus on French Recent Progress and Essential Requirements, 5 Frontiers in Public Health 1 (2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5449436/pdf/fpubh-05-00121.pdf.
205 Olena Kysil & Serhiy Komisarenko, High-Containment Laboratories in Ukraine: Local Resources and Regulations, in Biosecurity Challenges of the Global Expansion of High-Containment Biological Laboratories: Summary of a Workshop 171 (2012), https://www.nap.edu/read/13315/chapter/25.
206 Kallings & Summermatter, supra note 190, at 152.
207 Peters, supra note 66, at 870.
208 Johnson & Casagrande, supra note 66, at 128; Neild Davison & Filippa Lentzos, High-Containment Laboratories — UK Case Study, in Biosecurity Challenges of the Global Expansion of High-Containment Biological Laboratories: Summary of a Workshop 175 (2012), https://www.nap.edu/read/13315/chapter/26.
209 Peters, supra note 66, at 869.
210 Michael V. Ugrumov & Sergey V. Netesov, Overview of High-Containment Biological Laboratories in Russia, in Biosecurity Challenges of the Global Expansion of High-Containment Biological Laboratories: Summary of a Workshop 161, 162–64 (2012), https://www.nap.edu/read/13315/chapter/22.
211 For the purposes of this Comment, countries in North Africa include Algeria, Egypt, Libya, Mauritania, Morocco, Western Sahara, and Tunisia.
212 See Erum Khan et al., Biosafety Initiatives in BMENA Region: Identification of Gaps and Advances, 4 Frontiers in Public Health 1 (2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4805608/pdf/fpubh-04-00044.pdf; Regional and National Biosafety and Biosecurity Strategies for the Middle East and North Africa (MENA), The International Council for the Life Sciences (2011), https://www.virtualbiosecuritycenter.org/wp-content/uploads/2011/04/Framework-English-Rev-May102.pdf.
213 Peters, supra note 66, at 866–70.
214 Biosecurity, United Arab Emirates Ministry of Climate Change & Environment, https://www.moccae.gov.ae/en/knowledge-and-statistics/biosecurity.aspx (last visited on Jan. 27, 2021); United Arab Emirates, https://www.nti.org/learn/countries/united-arab-emirates (last visited on Jan. 27, 2021).
215 Hüseyin Avni Öktem, Country Overview for Turkey: Biosecurity Laws and Regulations in Turkey, in Biosecurity Challenges of the Global Expansion of High-Containment Biological Laboratories: Summary of a Workshop 169, 169 (2012), https://www.nap.edu/read/13315/chapter/24.
216 Id. at 169–70.
217 Anwar Nasim & Erum Khan, Biotechnology and Biosecurity Initiatives in Pakistan: A Country Report, Biosecurity Challenges of the Global Expansion of High-Containment Biological Laboratories: Summary of a Workshop 159, 159 (2012), https://www.nap.edu/read/13315/chapter/21.
218 Id.
219 Id. at 160.
220 Arms Control Association, Biological Weapons Convention Signatories and States-Parties, https://www.armscontrol.org/factsheets/bwcsig (last visited Jan. 27, 2021).
221 VCLT, supra note 11, at art. 18(a).
222 Id. at art. 18(b).
223 Peters, supra note 66, at 870.
224 Id.
225 Egypt: Biological, https://www.nti.org/learn/countries/egypt/biological (last visited Jan. 27. 2021).
226 First biosafety level 3 (BSL-3) laboratory in Egypt, http://www.emro.who.int/blood-safety/blood-news/biosafety-lab-egypt.html (last visited Jan. 27, 2021).
227 Arms Control Association, supra note 215.
228 Peters, supra note 66, at 868.
229 Id.
230 Harris, supra note 6, at *28.
231 For the purposes of this Comment, this region includes Comoros, Djibouti, Ethiopia, Eritrea, Kenya, Madagascar, Mauritius, Rwanda, Seychelles, Somalia, South Sudan, Sudan, Tanzania, and Uganda.
232 For the purposes of this Comment, this region includes Benin, Burkina Faso, Cabo Verde, Côte d'Ivoire, Gambia, Ghana, Guinea-Bissau, Guinea, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo.
233 For the purposes of this Comment, this region includes Burundi, Cameroon, Central African Republic, Chad, Congo, Democratic Republic of Congo, Equatorial Guinea, Gabon, and São Tomé-and-Príncipe.
234 For the purposes of this Comment, this region includes Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia, South Africa, Swaziland, Zambia, and Zimbabwe.
235 Peters, supra note 66, at 866–70.
236 Somalia is only a signatory to the BWC; Chad, Comoros, Djibouti, Eritrea, Namibia, and South Sudan have neither signed nor ratified the BWC. Arms Control Association, supra note 215.
237 See generally World Health Organization, Report on the Status of EDPLN BSL-3 in Select Countries in the African Region (Dec. 31, 2016) (analyzing the region's response to biosafety in BSL-3 laboratories).
238 Peters, supra note 66, at 866–70.
239 Betty Muriithi et al., Biosafety and biosecurity capacity building: insights from implementation of the NUITM-KEMRI biosafety training model, 46 Tropical Med. & Health *1–3 (2018), https://doi.org/10.1186/s41182-018-0108-7.
240 Academy of Science of South Africa, The State of Biosafety and Biosecurity in South Africa 13 (May 2015), https://www.assaf.org.za/files/2017%20reports/The%20State%20of%20Biosafety%20%20Biosecurity%20Report%20FINAL.pdf.
241 Academy of Science of South Africa, supra note 235, at 14.
242 For the purposes of this Comment, this region includes Tajikistan, Uzbekistan, Kazakhstan, Turkmenistan, and Kyrgyzstan.
243 For the purposes of this Comment, this region includes China, Mongolia, North Korea, South Korea, Japan, Hong Kong, Taiwan, and Macau.
244 For the purposes of this Comment, this region includes Sri Lanka, Bangladesh, India, Afghanistan, Pakistan, Bhutan, Nepal, and the Maldives.
245 For the purposes of this Comment, this region includes Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, Timor Leste, and Vietnam.
246 Peters, supra note 66, at 866–70; see also Christian Enemark, Preventing accidental disease outbreaks: biosafety in East Asia, APSNet Policy Forum (September 2006), http://nautilus.org/apsnet/0631a-enemark-html/.
247 Peters, supra note 66, at 866–70; cf. Togzhan Kassenova, Policy analysis brief. 1540 in practice: challenges and opportunities for Southeast Asia, Stanley Found. (May 2011), https://stanleycenter.org/publications/pab/KassenovaPAB611.pdf.
248 Peters, supra note 66, at 867.
249 Id.; cf. David Cyranoski, Inside China's pathogen lab, 542 Nature 399 (2017), https://www.nature.com/news/inside-the-chinese-lab-poised-to-study-world-s-most-dangerous-pathogens-1.21487.
250 Guo Rui, China passes first biosecurity law in wake of Covid-19 pandemic, S. China Morning Post (Oct. 20, 2020), https://www.scmp.com/news/china/society/article/3106174/china-passes-first-biosecurity-law-wake-covid-19-pandemic.
251 Huigang Liang et al., History of and suggestions for China's biosafety legislation, 1 J. Biosafety Biosecurity 134, 134 (2019), https://doi.org/10.1016/j.jobb.2019.08.002; Guizhen Wu, Laboratory biosafety in China: past, present, and future, 1 Biosafety & Health 56 (2019), https://doi.org/10.1016/j.bsheal.2019.10.003.
252 Peters, supra note 66, at 868.
253 Tomohiko Makino, Japanese Regulatory Space on Biosecurity and Dual-Use Research of Concern, 8 J. Disaster Research 686 (2013).
254 See Government of India, Ministry of Science and Technology, Regulations and Guidelines for Recombinant DNA Research and Biocontainment (2017); India gets high-security lab for human diseases, 449 Nature 649 (2007), https://doi.org/10.1038/449649e.
255 See National Committee on Biosafety of the Philippines, Philippine Biosafety Guidelines (1990) (providing the biosecurity framework for the Philippines, created by the National Committee on Biosafety which was created by President Corazon C. Aquino in Executive Order No. 430); Designation of the National Training Center for Biosafety and Biosecurity of the National Institutes of Health, University of the Philippines Manila as a Training Provider for Biosafety and Biosecurity, https://hfsrb.doh.gov.ph/?p=1673 (last visited on Jan. 27, 2021) (noting that, in order for laboratories to test COVID-19, the laboratory must train all of its personnel in biosafety and biosecurity).
256 National Institute of Health, South Korea, Division of Biosafety Evaluation and Control, http://www.cdc.go.kr/contents.es?mid=a50101060200 (last visited Jan. 27, 2021).
257 BIOTEC, Regulatory frameworks to prevent the misuse of Science and Technology: Thailand (November 2018), https://www.unog.ch/80256EDD006B8954/(httpAssets)/350A301455C21AAFC12583B000491CDB/$file/SIRAS_Regulatory+frameworks+to+prevent+S&T+misuse.pdf.
258 Peters, supra note 66, at 866–70.
259 Id.
260 Kiribati, Micronesia, and Tuvalu have neither signed nor ratified the BWC. Arms Control Association, supra note 215.
261 Peters, supra note 66, at 866–70.
262 Australian / New Zealand Standard, Safety in Laboratories: Microbiological safety and containment, AS/NZS 2243.3 (2010).
263 Australian / New Zealand Standard, Draft: Safety in Laboratories: Microbiological safety and containment, AS/NZS 2243.3 (2019), revising AS/NZS 2243.3:2010.
264 BWC, supra note 9, at art. I.
265 See supra “Global Survey of State Practice.”
266 VCLT, supra note 11, at art. 31(1); Nolte, supra note 10, at 220.
267 BWC, supra note 9, at preamble ¶¶ 1, 7, 9–10 (emphasis added).
268 Id. at preamble ¶ 2, art. VIII; 1972 Convention on the Prohibition of Bacteriological Weapons and their Destruction, Int'l Comm. Red Cross 1 (2014).
269 VCLT, supra note 11, at art. 31(2).
270 BWC, supra note 9, at preamble ¶ art. 2.
271 BWC, supra note 9, at art. II.
272 See supra note 92, and accompanying text.
273 VCLT, supra note 11, at art. 31(3).
274 See supra note 61 to 65, and accompanying text.
275 Millett, supra note 65, at *2–4.
276 See supra note 161 to 168, and accompanying text.
277 See supra note 187 to 205, and accompanying text.
278 Harris, supra note 6, at *27, *29–30.
279 See supra note 169 to 171, and accompanying text.
280 See supra note 230 to 232 & 253 to 255, and accompanying text.
281 See supra note 171 to 179, and accompanying text.
282 See Peters, supra note 66, at 866–70.
283 See supra note 180 to 186, and accompanying text.
284 See supra note 209, and accompanying text.
285 See supra note 235, and accompanying text.
286 See supra note 98 to 103, and accompanying text.
287 See supra note 210 to 214, and accompanying text.
288 See supra note 210 to 211, and accompanying text.
289 See supra note 212 to 214, and accompanying text.
290 It should also be noted that even non-State Parties, such as Israel, have implemented regulatory frameworks for DURC. This could be evidence of an obligation under customary international law, which requires both state practice and opinio juris. Opinio juris is the belief that State is conducting a practice because the practice is required under international law. However, in Israel's case, there is no evidence of opinio juris; therefore, the elements necessary for customary international law are not present. See International Law Commission, Draft Conclusions on identification of customary international law, with commentary (2018).
291 VCLT, supra note 11, at art. 18(a).
292 Peters, supra note 66, at 870.
293 See VCLT, supra note 11, at art. 18(a)-(b).
294 Id.
295 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16, ¶¶ 21–22 (June 21).
296 See supra note 261 to 263, and accompanying text.
297 Arato, supra note 100, at 452; Fragmentation Report, supra note 130, at ¶ 23.
298 See Shailendra Kumar Verma & Urmil Tuteja, Plague Vaccine Development: Current Research and Future Trends, 7 Frontiers Immunology 602 (2016) (describing research on the deadly disease y. pestis, also known as the Black Death—the deadliest pandemic in world history, in an effort to develop a vaccine to the disease).
299 Jennifer A. Doudna & Samuel H. Sternberg, A Crack in Creation: Gene Editing and the Unthinkable Power to Control Evolution 117–153 (2018).
300 Aegean Sea Continental Shelf (Greece v. Turk.), Judgment, 1978 I.C.J. 3, ¶ 74 (Dec. 19).
301 Merriam-Webster, Justification, https://www.merriam-webster.com/dictionary/justification (last visited Jan. 28, 2021).
302 See supra “Amendment or Modification.”
303 DALT, supra note 100, at 235.
304 Implementation Support Unit, https://www.un.org/disarmament/biological-weapons/implementation-support-unit (last visited Apr. 2, 2021).
305 Id.; Events (2021), https://www.un.org/disarmament/events/ (last visited Apr. 2, 2021).
306 About the Biological Weapons Convention, https://www.state.gov/about-the-biological-weapons-convention (last visited Apr. 2, 2021); see also supra note 55 to 60, and accompanying text.
307 See supra note 57, and accompanying text.
308 See generally H. Lauterpacht, Codification and Development of International Law, 49 Am. J. Int'l L. 16 (1955) (explaining the concept of codification of international law, and the author's experiences with it through his work as a member of the International Law Commission).