Beard – The Shortcomings of Indeterminacy in Arms Control Regimes

This week we continue our look at arms control. Here we consider the article ‘The Shortcomings of Indeterminacy in Arms Control Regimes: The Case of the Biological Weapons Convention‘ by Jack M. Beard (The American Journal of International Law 101, no. 2 (April 2007): 271–321, avaialble here). It is a fascinating look at the Biological Weapons Convention using game theory and rationalist positions on arms control, and gives an intriguing insight into how states operate in this area.

Take a look and let us know your think about the issues. Here’s what we thought:

In this article the author argues that the Biological Weapons Convention (BWC) of 1972 is fundamentally flawed in a modern context as it is based on a ‘soft law’ approach that relies too heavily on indeterminacy of meaning. To demonstrate this failing, the author cites the suggestion that rogue States and terrorists possess biological weapons, and points to the fact that a significant number of States have still not joined the convention after all these year years. In response, the author calls for the United States to re-evaluate its position on the BWC and for all parties to embrace a new hard-law approach.

While I certainly agree with the premise of the author’s argument, I can’t help but wonder what impact the BWC could possibly have in a world where (by the author’s own admission) non-State actors have access to these types of weapons, that pose perhaps one of the biggest threats to our modern-day world. While the author is right to draw attention to the BWC’s failings in a modern context, the author steers away from dealing with economic, regulatory and trade-related factors that give non-State actors access to the sorts of tools and equipment that enables the production and/or trade in biological and chemical weapons.

Mike Ryder, Lancaster  University

I thought this paper was really interesting. I myself have done some work around game theory and international legal regulation of weapon systems controlled by artificial intelligence. I find game theory to be really useful for understanding arms control. After all, states do try to play games and defect from agreements when it is in their interests.

We see today the potential falling apart of the Iran Deal. The article notes Iran reneging on agreements from previous deals. This obviously raises the issue that if Iran is a nation that plays international games, what is the point in having any deal? Simply put, some regulation is better than nothing. This reminds me of the work of Marxist historian E.P. Thompson on the rule of law. He suggests that the rule of law is an ‘unqualified human good’ because even in stares that oppressive states that often act unlawfully, they must give the appearance of acting lawfully. In doing so, this limits their very worst behaviours. So even where the rule of law is almost ignored, it still does something positive however small an impact that may be.

I think this can apply to arms control regimes also. Even where Iran (or any other defector nation) plays games, tries to get around arms control rules, or breaks rules, they do so whilst giving the illusion that they comply with the arms control regimes. These regimes therefore act to hamper and impair acts contrary to the rules, however small that impact may be. Arguably, we could therefore view arms control as an unqualified human good in much the same way that Thompson viewed the rule of law.

Joshua Hughes, Lancaster University

UPDATE: added 6/5/19, written earlier

With a damning indictment of the failure of the Biological Weapons Convention, this paper argues that the convention was doomed from the start not only, as is often assumed, ‘because it lacks mandatory transparency measures and a dedicated monitoring organization’, but due to its ‘use of indeterminate language in key provisions’. The failure of the BWC ‘illuminates the hazards of choosing indeterminate language to perform critical regime functions amid unstable security conditions’. It grants would be cheaters the chance to ‘[cloak] defection in plausible legality’, thus legitimizing non-compliance. The paper was interesting, and it’s hard to argue with its conclusions that the BWC is unfit for purpose, although I’m still inclined to believe that biological weapons are such a poor and unreliable tool that reality serves as a sufficient check on proliferation.

Ben Goldsworth, Lancaster University

Let us know what you think below.

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