Bioterrorism, Public Health, and International Law
Fidler, David P., Chicago Journal of International Law
The specter of bioterrorism-long the subject of who-dun-it fiction and wellintentioned but inconclusive policy-making-became a terrifying reality for the United States in October 2001. Less than a month after the worst act of terrorism committed against the United States, and less than two weeks after the United States began waging war against the Taliban in Afghanistan, Americans confronted the malevolent use of microbes to inflict death, illness, fear, and economic damage on the United States. The anthrax crisis developed slowly into a full-blown nightmare as each day seemed to bring new cases, terror, and questions about how ill-prepared the country was for the malignancy of bioterrorism.
The United States is still coming to grips-politically and psychologically-with the perpetration of bioterrorism within its borders. Speculating about the impact of the anthrax attacks on political, economic, or legal areas is, thus, fraught with difficulties. As a veteran of biological weapons and bioterrorism discourse prior to the anthrax attacks, I think it is important, even in this fluid time, to engage in preliminary examination of the possible effects of the recent bioterrorism on the relationship between public health and international law explored in this issue of the Chicago Journal of International Law.
In this article, I contemplate the potential impact of the anthrax attacks on various areas of international law that affect public health-namely, the international law on the use of force, arms control, terrorism, global infectious disease control, human rights, trade in goods, and the protection of intellectual property rights. In addition, I make observations about how the recent bioterrorism may affect the direction and content of global public health efforts. In the end, my analysis generates more questions than answers, but the potential impact of the bioterrorist attacks on international law and global public health is so serious that even preliminary consideration of the matter is warranted.
II. BIOTERRORISM AND PUBLic HEALTH. BEFORE AND AFTER THE ANTHRAx ATTACKS
For many Americans, the anthrax attacks were a frightening initiation into a threat that experts in the United States have been analyzing since at least the early 1990s. The attacks also introduced many Americans to "public health"-a discipline distinct from healthcare and largely obscure to the average American1 Detailing the discourse on biological weapons and bioterrorism before the anthrax attacks is beyond the scope of this article, but I provide an overview in order to focus on the importance of public health to national and international policy in this area.
A. PROLIFERATION OF BiOLOGICAL WEAPONS BY STATES
In the early 1990s, revelations about the former Soviet Union's and Iraq's biological weapons programs caused many experts to focus new attention on the proliferation of biological weapons in the international system.2 While US intelligence suspected that the Soviet Union and Iraq had developed biological weapons, no one anticipated the enormous scale and sophistication of the Soviet and Iraqi programs.
Evidence of Soviet and Iraqi bioweaponeering raised fears that biological weapons proliferation had become a serious international problem. Experts worried not only that "rogue" states might possess biological weapons, but also that state proliferation of biological weapons would make it easier for terrorists to gain access to pathogenic microbes.
These fears partly explain the effort, launched in the first half of the 1990s, to negotiate a protocol to the Biological Weapons Convention of 1972 ("BWC")3 that would establish a verification mechanism for the BWC's prohibition on the development, production, and stockpiling of biological weapons. Adding momentum to this effort was the completion in 1993 of the Chemical Weapons Convention ("Convention"), which contained a verification mechanism for improving compliance with the Convention's prohibitions. …