Today is October 1, 2020. In this moment, over 34 million bodies—that we know of—have hosted a deadly virus and more than one million of those bodies have succumbed to the strain of their unwelcome, malignant guest. Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2)—genetically related to, yet different from the coronavirus responsible for the 2003 SARS outbreak—is the virus that causes coronavirus disease 2019 (COVID-19). The virus first materialized in Wuhan, Hubei province, China as early as November 17, 2019, and quickly escalated from a small cluster of cases of what appeared to be pneumonia to a global pandemic by March 11, 2020.

On January 29, 2020, an Israeli air strike proved fatal, taking the lives of an entire family, a twelve-year-old child the youngest among them. The airstrike was carried out as part of Israel's military operation, Operation Protective Edge, in the Gaza Strip, and despite the deaths of numerous civilians, the State of Israel alleged that the strike was committed in pursuance of official duties. Ismail Zeyada, whose mother, brothers, sister-in-law, and nephew all perished in the airstrike, initiated a civil suit in the Netherlands against the two former Israeli military officials involved. In a devastating blow to the victims and their families, the District Court of the Hague dismissed the civil proceeding brought against the former Israeli officers. The Court cited the doctrine of functional immunity as the basis for this decision. The functional immunity, or immunity ratione materiae, of these officials bars the prosecution of them in any state besides Israel, absent a waiver by the Israeli government. As such, the victims of the airstrike, an act that might amount to a war crime, is not one for which victims are being offered redress. Although domestic prosecution of the case before Israeli courts is theoretically possible and is not precluded by the District Court of the Hague's dismissal, domestic prosecution is neither likely to occur nor likely to result in fair redress for the victims of this atrocity. This is not the justice these victims deserve. And it is not the justice that international law assures them.

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.