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September 28, 2000
Foreign Policy Briefing no. 61

Constitutional Problems with Enforcing the Biological Weapons Convention

by Ronald D. Rotunda

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The 1972 Biological Toxins and Weapons Convention--often called the Biological Weapons Convention, or BWC--requires the signatories to renounce the development, employment, transfer, acquisition, production, and possession of all biological weapons listed in the convention.

Yet the BWC does not provide for any protocol for enforcement because, as the United States candidly acknowledged at the time, compliance with the convention would be unverifiable. However, the Clinton administration now supports efforts to develop an enforcement protocol, even though it acknowledged that it does "not believe that the Biological Weapons Convention, in the terms in which the United States assesses that word [BWC], is verifiable."

Efforts to enforce the BWC are noble but probably fruitless. The proposed enforcement protocol's implementation threatens important constitutional rights: the right to privacy reflected in the Fourth Amendment, the separation of powers principle found in the appointments clause, and the right to intellectual property found in the Fifth Amendment.

Unlike most arms control agreements, the BWC applies to private parties--not merely to sovereign signatories. Few constitutional difficulties exist when the U.S. government agrees to implement limits on the number of its intercontinental ballistic missiles by providing for inspection of the facilities that it owns. We do not think of the U.S. government as having a right to privacy.

Things are quite different when the United States wishes to inspect facilities owned by private parties. The U.S. government can search private dwellings only after it has secured a search warrant from a neutral magistrate upon a showing of probable cause, and the government would have to use its officers--executive branch officials who are subject to the Constitution and controlled by the executive. The administration's proposed enforcement protocols--to the extent that they will apply to private parties--would violate these important constitutional principles.

Full text of Foreign Policy Briefing no. 61

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