Nanotech Agents As Enablers Or Substitutes for Banned Chemical Weapons: Is a New Treaty Needed?
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Fordham International Law Journal Volume 33, Issue 3 2009 Article 4 A Tiny Problem with Huge Implications - Nanotech Agents as Enablers or Substitutes for Banned Chemical Weapons: Is a New Treaty Needed? Evan J. Wallach∗ ∗ Copyright c 2009 by the authors. Fordham International Law Journal is produced by The Berke- ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj A Tiny Problem with Huge Implications - Nanotech Agents as Enablers or Substitutes for Banned Chemical Weapons: Is a New Treaty Needed? Evan J. Wallach Abstract The underlying thesis of this Article is that while smaller-sized particles and separate nano- sized carriers of known agents are clearly covered by the CWC, nanomimics are not as squarely within the relevant provisions. The bulk of this Article deals with that question. Despite the invita- tion to woolgather, this Article is limited to the tightest possible analytical approach. Part I begins with definitions of chemical and biological agents within existing treaties, and of nanoproducts, including those existing beyond presently-known technical capabilities, but which are at least rea- sonably conceivable (“nanobots”). Part II provides an overview of treaty law that is potentially applicable to nanobots. It first examines current treaties that are facially applicable to nanoprod- ucts. Because of the possibility that the “all analogous . devices” language of the 1925 Geneva Protocol bans nanobots, the Article examines very closely the origin, application, and meaning of that language. A close inspection necessarily involves considerable discussion of pre-1914 treaties, as well as the battles, weapons, tactics, and legal analyses in World War I, and the mass reaction to them, which resulted in a series of treaties implicating chemical weapons after the war ended. Part II then looks briefly at other treaties, conventions, and doctrines of international law that may impact the use of nanobots. Part III briefly examines current theories regarding good faith treaty interpretation and their implications for the utilization of antique (but not necessarily anti- quated) doctrines and documents to interpret current law. Part IV then applies the current treaties to nanoproducts, both existing and potential, in light of the preceding discussion, and then turns to a discussion of whether a new treaty, or modifications or clarifications to existing treaties, are advisable. A TINY PROBLEM WITH HUGE IMPLICATIONS— NANOTECH AGENTS AS ENABLERS OR SUBSTITUTES FOR BANNED CHEMICAL WEAPONS: IS A NEW TREATY NEEDED? Evan J. Wallach* “[T]he Law of Nations . allows not the taking the Life of an Enemy, by Poison; which Custom was established for a general Benefit, lest Dangers should be increased too much. Humanity, and the Interests of [the] Parties, equally require it; since Wars are so frequent and . the Mind of Man, ingenious in inventing Means to do hurt . .” —Hugo Grotius1 INTRODUCTION In 2005, the U.S. Army’s Environmental Policy Institute (“AEPI”) posed a scenario and a question. The AEPI offered this provocative picture of future combat: Consider this scenario: A column of soldiers moves through the close confines of a city. Because of the potential for hostilities, the soldiers are maintaining a MOPP2 level 2 * Judge, United States Court of International Trade; Adjunct Professor of Law, New York Law School; Adjunct Professor of Law, Brooklyn Law School; Visiting Professor of Law, University of Munster; Honorary Fellow, Hughes Hall College, University of Cambridge. The views expressed herein are solely the Author’s and do not represent those of any entity or institution with which he is affiliated. This Article was prepared with research assistance from Bebhinn Dunne, N.Y.U. Law School, LL.M 2009; Alexandra Folie, N.Y.U. Law School, LL.M 2009; Nancy Hull, N.Y.U. Law School, J.D. 2009; Donna Lyons, N.Y.U. Law School, LL.M 2009; Alexander Marmar, Columbia Law School, J.D., 2010; and Kamal Siddhu, Columbia Law School, J.D. 2010. Particular credit is due to David H.P. Lee, University of Michigan, J.D. 2011, for a full summer of research on Post-World War I treaty making and politics. The Author wishes to especially thank Neysa Call and the staff of U.S. Senator Harry Reid for extraordinary assistance in nanotechnology research. 1. 3 HUGO GROTIUS, THE RIGHTS OF WAR AND PEACE 567, 567 n.XV(1) (Jean Barbeyrac ed., Lawbook Exchange, Ltd. 2004) (1625). 2. Mission-oriented protective posture, or “MOPP” as it is commonly referred, is a military acronym that is used to specify different levels of protective gear that personnel wear in toxic environments. See U.S. ARMY, THE WARRIOR ETHOS AND SOLDIER COMBAT SKILLS 13-10, § 13-26, Field Manual No. 3-21.75(FM21-75) (Jan. 28, 2008), available at 858 2010] NANOTECH AGENTS 859 posture and chemical detectors are deployed in the column. Suddenly from the surrounding rooftops, there are gunshots and a number of canisters are hurled off the roof tops. Within moments, portions of the column are enveloped in hazy cloud and within a minute or so the soldiers closest to the canisters are twitching and salivating uncontrollably and even those soldiers who were able to don their protective masks and gloves are showing the same symptoms. Soldiers from the rear of the column move forward having easily cleared the roof tops with automatic weapons fire in an effort to aid their comrades. Although the chemical agent detectors show no evidence of conventional chemical agents, they administer nerve agent antidotes in accordance with their training, but the victims worsen and quickly die. Within a few minutes, even the fully garbed soldiers find themselves salivating beyond control and trembling. Soon, they too are dead; the chemical agent detectors remain silent. What happened here is but one possible result of nanotechnology harnessed to do the will of terrorists. Traditional chemical agents are largely prohibited by treaty or agreement and the precursors of traditional agents can be tracked. As nanotechnology advances, it will be possible to design materials that act like chemical agents, in this case a cholinesterase blocking agent, but are not classed as chemical agents under any existing protocol, do not trigger existing chemical agent detectors and in any case do not respond to known nerve agent antidotes and, because of their small size, can penetrate protective fabrics and even mask filters.3 https://rdl.train.army.mil/soldierPortal/atia/adlsc/view/public/24572-1/fm/3-21.75/ fm3_21x75.pdf. The MOPP system designates four levels of increasing protection that are designed to be commensurate with the environmental risk. For a graphical representation of the different levels, see U.S. AIR FORCE, MISSION-ORIENTED PROTECTIVE POSTURES (MOPP), No. AFVA32-4012 (Feb. 1, 1998), available at http://www.fas.org/nuke/guide/usa/doctrine/usaf/32401200.pdf. 3. JOHN P. MCGUINNESS, ARMY ENVTL. POLICY INSTIT., NANOTECHNOLOGY: THE NEXT INDUSTRIAL REVOLUTION—MILITARY AND SOCIETAL IMPLICATIONS 20 (2005), available at http://www.aepi.army.mil/internet/nanotech-industrial-revolution.pdf (emphasis added). The United States Army’s Environmental Policy Institute’s (“AEPI”) assumption here appears to be that the nanomaterials used in the scenario are something other than the chemical agents and their precursors listed in the Chemical Weapons Convention (“CWC”). See discussion infra Part I. Rather, they “act like” chemical agents. The AEPI seems to be describing only one potential type of nanoweapon—a device which mimics the effects of chemicals on the human body by means other than a direct chemical reaction. These devices are what the AEPI calls “nanomachines” in its recommendations section. See id. at 27. 860 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 33:858 In short, the AEPI posited that nanomaterials which mimic banned chemical agents (“nanomimics”)4 might be developed and used in combat. The Institute recommended that someone should determine “if nanomachines are chemical weapons under the provisions of the Chemical Weapons Convention.”5 This Article attempts to do exactly that.6 The results are interesting and, in most instances, very clear. Existing treaties certainly cover both nanoparticles of banned chemical weapon materials and 4. This Article uses the word “nanomimic” to refer to devices that causes the same result as a banned poison, toxin or other chemical substance. In biology, mimicry occurs when one species imitates another. See WOLFGANG WICKLER, MIMICRY IN PLANTS AND ANIMALS 8 (R.D. Martin trans., 1968). Batesian mimicry, is thought to occur when a rare harmless species evolves to resemble closely an abundant noxious model. It gains protection from its predators which cannot tell the difference between model and mimic, and since they tend to encounter models rather than mimics when searching for food, they associate the colour pattern of the model with the nasty experience, and tend to avoid it in future. FRANCIS GILBERT, THE EVOLUTION OF IMPERFECT MIMICRY IN HOVERFLIES 1 (2004), available at http://eprints.nottingham.ac.uk/96/1/ImperfectMimicry.pdf. Hoverflies that resemble bees or wasps are an example. See id. at 4–5. In Mullerian mimicry, “several noxious species evolve to resemble each other, and hence all benefit by a reduction in predation.” Id. at 1. 5. MCGUINNESS, supra note 3, at 27. 6. In a broad sense, the question was raised even earlier by a professor of engineering at West Point: The importance of ethics and professional responsibility in engineering design cannot be overemphasized when weapons of mass destruction can be inexpensively and straightforwardly created by anyone with modest specialized knowledge and equipment. Arms control style agreements offer one option for halting the spread of dangerous technology applications, but these agreements will not include non-state terrorist and radical militant groups. However, arms control treaties would still be important tools to restrain the dark side of emerging technologies, and the Army could provide the prime forces for verification of compliance with international treaties and agreements.