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S. 993, 101st. CONG., 1st SESS.

The Biological Weapons Anti-Terrorism Act of 1989


The United States Senate Committee on the Judiciary

July 26, 1989


Francis A. Boyle

Professor of International Law and

Program in Arms Control, Disarmament and International Security The University of Illinois at Urbana-Champaign

Counsel, The Committee for Responsible Genetics

A.B. (Chicago: 1971), J.D. Magna Cum Laude (Harvard: 1976), A.M. and Ph.D. in Political Science (Harvard: 1978 and 1983)

Good Day. My name is Francis A. Boyle, Professor of International Law and Member of the Program in Arms Control, Disarmament, and International Security at the University of Illinois at Urbana-Champaign. I am also Counsel to the Committee for Responsible Genetics (CRG) and in that capacity I have directly supervised CRG's project to sponsor the passage of implementing legislation for the Biological Weapons Convention of 1972. I should point out that I have not been paid any fee by any individual, group, corporation, or organization including the Committee for Responsible Genetics for the testimony I am giving here today.

It is generally agreed that the Biological Weapons Convention of 1972 applies to recombinant DNA experiments and other techniques of genetic engineering. One of the great loopholes and severe deficiencies of the Convention, however, is the exception article I thereof has created for biological agents or toxins that are retained "for prophylactic, protective, or other peaceful purposes." Indeed, article X of the Convention makes it clear that parties to the Convention have the right to participate in the fullest possible exchange of equipment, materials, and scientific and technological information for the use of bacteriological agents and toxins for "peaceful" purposes. Hence, one of the major problems with the Convention today is the undeniable fact that it becomes almost impossible to conduct genuinely "peaceful" research into genetic engineering applications of a "defensive" nature (e.g., developing a vaccine) without obtaining results that could readily be put to use for the production of proscribed offensive biological weapons.

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The best way to deal with the serious compliance problems created by such intrinsically dual-use genetic engineering research is for the United States Congress to adopt tough implementing legislation designed to guarantee that all

such projects conducted in U.S. territory be undertaken in strict accordance

with the terms of the Biological Weapons Convention.


In this regard, article IV of the Convention requires eac tate party to adopt such implementing Hence the United States government is under an obligation to adopt implementing legislation in order to carry out the terms of the Convention within its domestic legal order to make sure that all U.S. citizens adhere to its terms whether persons in the government, government

contractors, and especially individuals in the private sector.

The enactment of such implementing legislation would also constitute one of the primary mechanisms for preventing "terrorist" states, groups, or individuals from contracting with U.S. genetic engineering firms for the production of biological weapons that could serve as a relatively inexpensive alternative to the development of nuclear weapons for the threat or use of mass extermination in order to accomplish their terroristic objectives. At this point in time private American DNA genetic engineering firms are perfectly free to ignore the terms of the Convention. So far the Convention can only bind the United States government as a matter of international law in its relations with other state parties to the Convention. The prohibitions of the Convention do not yet bind any private citizen or corporation within the United States of America of their own accord.


Indeed, it would be unconstitutional as a violation of due process of law to prosecute or punish any individual pursuant to the terms of the Convention because it has not yet been implemented by a specific congressional statute that precisely defines the nature of the offense, fixes the penalty, establishes proper venue for the prosecution, etc. See, e.g., The Over the Top Case, 5 F.2d 838, 845 (D. Conn. 1925). Hence, today it would not be criminal for a private DNA genetic engineering firm to contract with a terrorist state

or group or even a private individual to manufacture biological weapons. The only way to stop such a tragic disaster from happening is for Congress to adopt tough implementing legislation now that would make such activity a crime whether committed by a government contractor or someone in the private sector. Although not absolutely foolproof, the imposition of severe criminal penalties would serve as an effective deterrent upon governmental contractors and private sector individuals who are currently conducting genetic engineering research that could be put to such prohibited uses.

In response to these compelling arguments the previous Reagan administration had adopted the somewhat debatable position that various statutes already on the books could, when considered together, serve the purpose of "implementing" the Biological Weapons Convention: viz, the Arms Export Control Act; Export Administration Act; Hazardous Material Transportation Act; Toxic Substances Control Act; Public Health Service Act; Federal Insecticide, Fungicide and Rodenticide Act; and the National Institutes of Health Guidelines for Research Involving Recombinant DNA Molecules. In the brief time allotted to me here today, I will not have the opportunity to analyze in great detail why this is not so. But in this regard, at the request of the Committee for Responsible Genetics I had drafted a Memorandum at Law entitled The Need for United States Implementing Legislation for the Biological Weapons Convention of 1972, that was dated April 1, 1987. Attached you will find a Supplement to my Testimony that contains the relevant portions of that Memorandum. As you can see, this 1987 Memorandum contains an extensive analysis of these various statutes then cited by the Reagan administration, together with a detailed explanation on a point-by-point basis of exactly why these statutes, whether considered individually or collectively, would be

completely inadequate to serve for the purpose of implementing the Biological Weapons Convention.

Technically, therefore, the United States government still stands in breach of its solemn international legal obligation under Convention article IV to enact such domestic implementing legislation. By contrast, for example, the British government adopted strict implementing legislation for the Biological Weapons Convention as long ago as 1974. Similarly, France had enacted legislation which it considered far more protective than the Convention in 1972. Belgium adopted legislation to implement the Convention in 1978, and Australia adopted the Crimes (Biological Weapons) Act of 1976. Japan, Nigeria, the Netherlands and Sweden, inter alia, also have domestic legislation dealing with such matters. In Communist states such as the Soviet Union and China where there is no private sector as a matter of law, the terms of the Biological Weapons Convention would apply directly to all agencies and instrumentalities of the government as well as to all government employees, which would presumably include anyone who might conceivably be engaged in such genetic engineering research. Also, other states in the world community do not specifically require domestic implementing legislation in order for treaty obligations to be directly binding upon their private citizens.

The proposed implementing legislation would place the U.S. government on the same legal footing as many of our friends and allies and thus strengthen the Convention's strict regime. In addition, such implementing legislation would drastically curtail the ability of terrorist states, groups or individuals to contract with American DNA genetic engineering firms for the production of biological weapons for their own nefarious purposes. Such implementing legislation would also serve notice to government contractors and private sector individuals that there exists a bright red line demarcating

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