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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 invitation 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 reasonably 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 nanoproducts. 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 antiquated) 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.

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