Another Bad Treaty

And a next step for President Bush

By Dave Kopel & Glenn Reynolds. Dave Kopel is research director at the Independence Institute. Glenn Reynolds is professor of law at the University of Tennessee, and writes for InstaPundit.Com.

National Review Online. September 6, 2001 8:20 a.m. More by Kopel on international treaties.

Although the recent Geneva conference prevented a last-minute effort, led by Cuba and Iran, to blame the United States for its failure to reach an agreement, President Bush has gotten a lot of media flak for refusing to join the new germ-warfare treaty. The treaty — actually a "protocol" to the 1972 Biological Toxins and Weapons Convention (BWC) that the United States has already joined — purports to establish enforcement measures that will make violation of the 1972 Convention more difficult. Coming shortly after the Bush administration torpedoed plans to make the U.N. Small Arms Conference into a vehicle for civilian gun prohibition, the Bush stance on biological weapons has attracted the wrath of the international (would-be) governing class and its American media allies. But, once again, the Bush administration has defended public safety and the Constitution — namely, Article II's requirement that federally authorized law enforcement be subject to the control of the president, the Fourth Amendment's privacy guarantee, and the Fifth Amendment's protection of property rights.

Plenty of people would sacrifice the Bill of Rights to be safe from weapons of mass destruction, such as biological-warfare agents. Would the proposed protocol have made America safer from germ-warfare attacks?

The Bush administration argued that the proposed enforcement measures would not really stop determined violators. A far more intrusive set of restrictions, after all, has failed to stop Saddam Hussein. Instead, the enforcement system would burden companies in honest nations, threatening them with bureaucratic falderal and industrial espionage. Boosters of the protocol reply that it may not be perfect, but that even an imperfect agreement is better than none. At least, they say, it is a move in the right direction.

This turns out not to be the case. As Yale Law School's Arthur Leff pointed out, "In complex processes ... a move in the right direction is not necessarily the right move. To pick a simple illustration, if I am on a desert island, subsisting solely on coconuts and oysters and beginning to hate it a lot, and across the bay from me there is another island, lush and fertile, I do not improve my position in life by swimming half way across." ("Economic Analysis of Law: Some Realism About Nominalism," 60 Va. L. Rev.451, 476 (1974).)

The history of the 1972 convention bears this out. As Ed Regis noted in his excellent history of germ warfare, The Biology of Doom(H. Holt: 1999), the 1972 convention was adopted under just such a philosophy, at a time when germ warfare research was pretty stagnant. But the result of the convention was the greatest increase in germ-warfare research and production ever seen. Within months of signing the treaty, the Soviet Union violated it by starting a massive program, overseen by a new state entity called Biopreparat.

Before the convention, the assumption had been that any progress made by the Soviets would simply be matched by the Americans. After the treaty, the Soviets — and several other nations, most of them also signatories of the 1972 treaty — saw an opportunity to steal a march on the United States.

Not only did the Soviets expand their stocks of traditional biowar agents such as tularemia, brucellosis, and anthrax, but they undertook extensive new research into creating especially lethal and virulent strains of smallpox.

Those stockpiles still exist and continue to pose a threat to humanity, making a mockery of the 1972 convention and making the "triumph" of smallpox eradication a rather contingent one.

The Bush Administration quite reasonably fears a repeat of this phenomenon. Enthusiasts of the new protocol insist that this time things will be different, with stricter enforcement and more certain sanctions for violators. This seems doubtful. As the domestic "war on drugs" illustrates, even within American borders our government can shut down some illegal laboratories without even coming remotely close to closing enough labs to dry up a plentiful supply of product. And the treatment of North Korean nuclear nonproliferation violations — basically bribes in exchange for (quickly broken) promises not to do it again — suggest that the international community can't be counted on to punish violators once they're caught.

A better strategy would involve establishing powerful civilian biotechnology capabilities, such that any germ warfare efforts could be swiftly countered. This isn't so unusual; after all, it is civilian software companies that provide the primary defense against computer viruses. (Imagine if we had tried to control computer viruses by providing for licensing and random inspection of civilian-owned computers.) Couple that with a strategy of retaliation and interdiction (Israel's raid on the Osirak reactor is the only really successful nuclear nonproliferation effort to date) and you have a formula for success.

After the failure of the Geneva talks, observers expect the issue to move to the U.N. General Assembly. (The technical term for such a change is "Going from bad to worse.") Still, the change does offer an opportunity for the United States to make its case clearly and candidly. The administration should argue for controls that are truly workable, backed up by a policy to penalize nations that use germ warfare.

The "international community" — a euphemism for the coterie of diplomats and the journalists who cover them — likes agreements. But the rest of us prefer results to pieces of paper). President Bush was right to reject a dangerous treaty that would have increased the likelihood of the use of biological weapons.

Although the protocol was not intended to promote biological warfare, the protocol certainly was intended to override the American Bill of Rights. The Cato Institute study Constitutional Problems with Enforcing the Biological Weapons Convention, explained that the protocol would have required searches of American businesses without the proper legal warrants, in violation of the Fourth Amendment's requirement that searches be based on warrants issued by a magistrate and based on probable cause.

Article II's appointments clause gives the president exclusive power to appoint and remove "officers of the United States." The inspectors would be exercising federal power — since their only power over an American is the power granted to them by a treaty ratified by Congress. While they could search American property at will, the inspectors would not be appointed by the president, and would therefore be completely immune to Constitutional checks and balances and to accountability through the American political system.

The greatest concern for American negotiators, however, was that the inspectors, many of whom would come from nations (including France) where government-sponsored industrial espionage is considered smart business, would be able to use their "inspections" to steal American trade secrets, particularly from pharmaceutical and biotech companies. These industrial spies/inspectors would enjoy diplomatic immunity, and would be long gone before their theft was discovered.

U.S. Special Negotiator Donald Mahey made it clear that while the U.S. didn't like the particular terms of the draft protocol, the Bush administration supports the eventual creation of some kind of enforcement protocol. But rather than hope that the United Nations will produce a better protocol, the United States ought to realize that the Biological Weapons Convention is a proven failure — having already induced the creation of massive stockpiles of sophisticated biowar agents by the Soviet Union, stockpiles that remain available for terrorists or anyone else who can get hold of them. Like the ABM treaty, the BWC was a well-intentioned mistake by people who mistook peace agreements for peace itself.

Article XIII, section 2, of the BWC authorizes signatories to withdraw from the treaty, after giving three months notice, if "extraordinary events, related to the subject matter of the Convention, have jeopardized the supreme interests of its country." The creation of what is unquestionably the largest and worst germ warfare industry in history — the Biopreperat — as a direct result of the BWC was certainly "extraordinary," and the Biopreperat's products continue to jeopardize the "supreme interests" of the United States. Who knows what other countries have followed the Soviet lead and today are producing biowar weapons because the BWC guarantees that the United States can't fight fire with fire?

If the Bush administration's priority is to protect the American people from biological warfare, it must be willing to take decisive action and withdraw from the BWC, even if it means incurring the wrath of "the international community

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