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Legal Aspects of the Geneva Protocol of 1925

  • R. R. Baxter and Thomas Buergenthal (a1)

In his policy statement of November 25, 1969, on chemical and biological warfare, President Richard M. Nixon declared that the Administration would ask the Senate for advice and consent to the ratification of the Geneva Protocol of 1925. At the same time, the President reaffirmed the renunciation by the United States of “the first use of lethal chemical weapons” and extended “this renunciation to the first use of incapacitating chemicals.” With regard to biological weapons, the President renounced the use of all biological weapons and methods of warfare, declared that the United States would confine its biological research to defensive measures, and ordered the Defense Department to make recommendations for the “disposal of existing stocks of bacteriological weapons.” On February 14, 1970, the President extended the ban on biological weapons to include toxins.

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1 61 Dept. of State Bulletin 541 (1969).

2 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, done at Geneva, June 17, 1925, 94 L.N. Treaty Series 65; 25 AJ.I.L. Supp. 94 (1931).

3 New York Times, Feb. 15, 1970, at p. 1, col. 8.

4 For the literature and state practice bearing on this subject, see Bunn, G., “Banning Poison Gas and Germ Warfare: Should the United States Agree?”, (1969) Wisconsin Law Rev. 375, 381-389 ; Meyrowitz, H., Les Armes Biologiques et le Droit International 84-111 (1968).

5 The various types of chemical and biological warfare agents are described in a report of the Secretary General, Chemical and Bacteriological (Biological) Weapons and the Effects of Their Possible Use, U.N. Doc. A/7575/Rev.1; S/9292/Rev.1 (1969).

6 See, e.g., Brownlie, I., “Legal Aspects of CBW,” in Rose, S., CBW: Chemical and Biological Warfare 141, at 148 (1968); Tucker, R. W., “The Law of War and Neutrality at Sea,” 50 Naval War College, International Law Studies 52-53 (1955).

United States Department of the Army Field Manual 27-10, The Law of Land Warfare, par. 38 (1956), takes no position on the state of customary international law and contents itself with a recital that the United States “is not a party to any treaty, now in force, that prohibits or restricts the use in warfare of toxic or nontoxic gas . . . or of bacteriological warfare.”

7 In Res. 2603 A (XXIV) of Dec. 16, 1969, 64 A.J.I.L. 393, 394 (1970), the United Nations General Assembly declared “as contrary to the generally recognized rules of international law, as embodied in the [Geneva] Protocol . . . the use in international armed conflicts of:

“(a) Any chemical agents of warfare—chemical substances, whether gaseous, liquid or solid—which might be employed because of their direct toxic effects on man, animals or plants;

“(b) Any biological agents of warfare—living organisms, whatever their nature, or infective material derived from them—which are intended to cause disease or death in man, animals or plants, and which depend for their effects on their ability to multiply in the person, animal or plant attacked.” General Assembly, 24th Sess., Official Records, Supp. No. 30 (A/7630), p. 16.

However, this resolution was adopted by 80 votes to 3, with 36 abstentions. The dissenting and abstaining states included most of the members of NATO and a number of other important military Powers, many of them parties to the Protocol. U.N. Doc. A/PV.1836, at 16 and 17 (1969).

8 For the official French and English texts of the Geneva Protocol, see 94 L.N. Treaty Series 65 (1929).

9 These statistics have been supplied by the United States Department of State and include states that are bound by the Protocol by virtue of its ratification by governments which they succeeded.

10 The Geneva Protocol was drafted at the Conference on International Trade in Arms, which was convened by the League of Nations and met in Geneva from May 4 through June 17, 1925. For the official records of this conference, see League of Nations, Proceedings of the Conference for the Supervision of the International Trade in Arms and Ammunition and in Implements of War (1925), hereinafter cited as 1925 Geneva Conference Proceedings.

11 The Geneva Protocol was transmitted to the U. S. Senate for its advice and consent on Jan. 12, 1926. It was not put to a vote because the unexpected opposition to it that had developed prompted the Chairman of the Foreign Relations Committee (Senator William Borah) to have the Protocol referred back to his Committee. This was done on Dec. 13, 1926. See 68 Cong. Rec. 368 (1927). It was not reported out of that Committee again and was among a number of treaties that were withdrawn by President Truman in 1947 “with a view to placing the treaty calendar on a current basis.” 16 Dept. of State Bulletin 726 (1947).

12 Convention on the Law of Treaties, opened for signature at Vienna, May 23, 1969, Art. 31, par. 1. U.N. Doc. A/CONF.39/27 (1969); 63 A.J.I.L. 875 (1969).

13 Art. 31, par. 3(b).

14 Art. 32 describes recourse to the travaux préparatoires as “supplementary means of interpretation.”

15 The Geneva Protocol stipulates that the “French and English texts are both authentic.”

16 Those who espouse this argument overlook the fact that the phrase “gaz toxiques” includes, as a matter of French usage, all chemical weapons that are employed for their toxic effect on living organisms. It thus applies to such irritant chemicals as tear gas. See Meyrowitz, Les Armes Biologiques . . . at 38-39; Statement of the French Delegation Submitted to the Preparatory Commission for the Disarmament Conference, par. I, p. 862 below. Moreover, chemical agents of warfare are generally defined as chemical substances, whether gaseous, liquid, or solid, which are employed because of their direct toxic effect on man, animals, and plants. See, e.g., United Nations Secretary General, Chemical and Bacteriological (Biological) Weapons and the Effects of Their Possible Use 5, U.N. Doc. A/7575/Rev.1; S/9292/Rev.1 (1969). This excludes certain chemicals now employed in warfare, such as high explosives, smoke, and incendiary substances (napalm, magnesium, white phosphorus, etc.), which exert their primary effects through physical force, fire, air-deprivation, or “reduced visibility.

17 See G. Bunn, loc. cit. note 4 above, at 396-397.

18 Statement by the U. S. Representatíve (Nabrit) to the U.N. General Assembly, Dec. 5, 1966, reprinted in U. S. Arms Control and Disarmament Agency, (1966) Documents on Disarmament (hereinafter cited as Documents on Disarmament) 800 at 801.

19 For an analysis of the history of this language see Bunn, loc. cit. note 4 above, at 397-402; A. B. Overweg, Die Chemische Waffe und das Völkerrecht 64-89 (1937).

20 See A. A. Fries and C. J. West, Chemical Warfare 15-16 (1921).

21 Treaty of Peace between the Principal Allied and Associated Powers and Germany, signed at Versailles, June 28, 1919, [1919] Great Britain, Treaty Series, No. 4; 13 A.J.I.L. Supp. 151 (1919).

22 An early English-language draft of a provision that subsequently became Art. 171 employed the phrase “or similar gases,” but this wording was changed to “or other gases” in the drafting committee. Bunn asserts that there is no indication that any change in meaning was intended when “other” was substituted for “similar.” Bunn, loc. tit., at 398. He uses this to support a restrictive interpretation of “other.” However, the broad sense in which the original term “similar” was used is clear when one examines the full text of the original provision. It read: “Production or use of asphyxiating, poisonous or similar gases, any liquid, any material and any similar device capable of use in war are [sic] forbidden.” 4 U. S. Foreign Relations, The Paris Peace Conference 1919, at 232 (1943). Emphasis supplied.

23 U. S. Senate, Conference on the Limitation of Armament 888 (1922); 16 A.J.I.L. Supp. 57 (1922).

24 62 Cong. Rec. 4723-4730 (1922).

25 Ibid, at 4729.

26 U. S. Senate, Conference on the Limitation of Armament (1922).

27 Ibid, at 384-395.

28 ibid. at 384-385.

29 Ibid, at 386.

30 ibid, at 386-387.

31 Ibid, at 387.

32 Ibid, at 387-388.

33 Mr. Hughes.

34 Ibid, at 388.

35 Ibid, at 394.

36 It is true, of course, that Secretary Hughes spoke at one point only of an absolute prohibition of “the use of asphyxiating or poison gas.” But this does not detract from the point being made in the text. If the U. S. Government had in fact intended to limit the scope of Art. S to “the use of asphyxiating or poison gas,” prudence would have dictated an unequivocal statement to that effect; and this precisely because the U. S. Delegation had expressly associated itself with the views of its advisory committee and the General Board of the Navy.

37 See note 10 above.

38 1925 Geneva Conference Proceedings at 155.

39 Ibid, at 779.

40 See, e.g., ibid, at 528-535 and 306-308.

41 Ibid, at 310.

42 Ibid, at 316.

43 Ibid, at 155.

44 See 68 Cong. Rec. 141-154, 226-229, and 363-368 (1927).

45 Thus, after Senator Borah, the floor manager of the treaty, assured Senator James Reed that the Geneva Protocol did not apply to the use of tear gas by the police, the latter replied that it outlawed the use of that gas in an international conflict, and then asked, “Would it not be more merciful, assuming that we were at war with some Central American country, to win our battles by the temporary disabling of our enemies than to blow them all over their cactus plants . . . ?” Senator Borah answered this question by asking, “If you put them to sleep for a limited period, unless you took them prisoners and held them, they would be ready for battle the next day, would they not?” Ibid, at 150.

46 This memorandum is reproduced in League of Nations, Documents of the Preparatory Commission for the Disarmament Conference (Series X): Minutes of the Sixth Session (Second Part) 311 (1931).

47 Ibid, at 311.

48 Ibid. (emphasis in the original).

49 The remaining ten states, although not represented on the Preparatory Commission, were Members of the League of Nations, under whose auspices the Commission was operating.

50 See Documents of the Preparatory Commission, note 46 above, at 311-314.

51 Ibid. at 312.

52 Ibid

53 Ibid. at 113. See also Report of the Preparatory Commission for the Disarmament Conference 45 (Dept. of State Conference Series, No. 7, 1931).

54 1 League of Nations, Conference for the Reduction and Limitation of Armaments: Conference Documents 210, at 214 (1932).

55 2 League of Nations, Conference for the Reduction and Limitation of Armaments: Conference Documents 476, at 488 (1935).

56 Minutes of the General Commission (December 14, 1932-June 29, 1933), 2 League of Nations, Records of the Conference for the Reduction and Limitation of Armaments (Series B) 569 (1933); Letter, Secretary of State Hull to Chairman of American Delegation, March 23, 1933, 1933 U. S. Foreign Relations (1) 72, at 75 (1950).

57 It must be remembered that the interpretation of the Protocol was advanced by France and Great Britain, the leading military Powers that had ratified the Protocol, and was supported in the Preparatory Commission by Italy, Spain, and the Soviet Union, among others.

58 For a very thorough treatment of the post-1930 practice, see Stockholm International Peace Research Institute, The Problem of Chemical and Biological Warfare, Part III (CBW at the League of Nations and the United Nations 1920-69), pp. 64- 277 (provisional ed., 1970).

59 See, e.g., U.N. General Assembly, 21st Sess., Official Records, 1st Committee 157, at 158 (1966); U.N. General Assembly, 24th Sess., Official Records, 1st Committee, Doc. A/C.1/PV.1717, p. 16, at 18 (Provisional) (1969). Various other official U. S. statements on this question can be found in the annual Documents on Disarmament, published by the U. S. Arms Control and Disarmament Agency.

60 An Australian representative in the General Assembly stated: “It is the view of the Australian Government that the use of non-lethal substances such as riot control agents, herbicides and defoliants does not contravene the Geneva Protocol nor customary international law.” U.N. General Assembly, 24th Sess., Official Records, 1st Committee, Doc. A/C.1/PV.1716, p. 82, at 87 (Provisional) (1969).

61 This position was justified by Mr. Michael Stewart, Secretary of State for Foreign and Commonwealth Affairs, in reliance on a 1930 Parliamentary statement in which the British Government expressed the view that smoke screens, unlike tear gas, were not prohibited by the Protocol. The explanation given by Mr. Stewart reads as follows: “[M]odern technology has developed CS smoke which, unlike the tear gases available in 1930, is considered to be not significantly harmful to man in other than wholly exceptional circumstances; and we regard CS and other such gases accordingly as being outside the scope of the Geneva Protocol. CS is in fact less toxic than the screening smokes which the 1930 statement specifically excluded.” 795 Parl. Deb. (Hansard), H. C, No. 50, p. 18 (Written Answers to Questions) (1970).

Neither the language of the Geneva Protocol nor previous statements by the British Government afford any basis for a distinction between more toxic tear gases prohibited by the Protocol and less toxic gases not so prohibited. Besides, the tear gases that were used in the First World War were also not deemed to be harmful to man. See Fries and West, Chemical Warfare at 15. The British view regarding CS gas would thus seem to be untenable.

62 Cited note 7 above.

63 U.N. Doc. A/PV.1836, at 16 (Provisional) (1969).

64 Statement by the U. S. Representative (Nabrit) to the U.N. General Assembly, Dec. 5, 1966, (1966) Documents on Disarmament 800, at 801.

65 Statement of U. S. Representative (Leonard), U.N. General Assembly, 24th Sess., Official Records, 1st Committee, Doc. A/C.1/PV.1717, p. 16 at 21 (Provisional) (1969).

66 In 1924 the Temporary Mixed Commission for the Reduction of Armaments, whose report served as a preparatory document for the 1925 Geneva Conference, examined the effect of gas and biological agents on plants. It concluded that only the latter could be used against plants. League of Nations, Report of the Temporary Mixed Commission for the Reduction of Armaments 28 (1924). This conclusion, besides explaining why anti-plant chemicals were not discussed at the Geneva Conference, indicates that the draftsmen of the Protocol cannot be assumed to have wished to limit its scope to anti-personnel chemicals.

67 1925 Geneva Conference Proceedings at 340.

68 Ibid, at 341.

69 The full text of the French statement is reproduced at p. 862 above.

70 See, e.g., the statements of the French and Dutch governments in the General Assembly in 1966, U.N. General Assembly, 21st Sess., Official Records, 1st Committee 204-205 (1966).

71 Statement by Pickering, T. R., Deputy Director, Bureau of Politico-Military Affairs, Department of State, Hearings on Chemical-Biological Warfare Before the Subcommittee on National Security Policy and Scientific Developments of the House Foreign Affairs Committee, 91st Cong., 1st Sess., p. 173 at 179-180 (1969).

72 Legal Controls of International Conflict 304-305 (1954); and see 10 Whiteman, , Digest of International Law 1-26 (1968).

73 Signed Aug. 12, 1949, 6 U. S. Treaties 3114, T.I.A.S., Nos. 3362-3365. Common Art. 3 applies to “armed conflict not of an international character.”

74 Common Art. 2.

75 36 Stat. 2277, Treaty Series No. 539; 2 A.J.I.L. Supp. 97 (1908).

76 See, e.g., the remarks of the delegates of Canada and of Australia in the First Committee, Dec. 9, 1969, U.N. Doc. A/C.1/PV.1716 (1969).

77 The reservations are reproduced in Department of State, Division of Language Services, LS No. 12575, Oct. 3, 1967 [semble 1969], annexed to Statement by Pickering, T. R., Deputy Director, Bureau of Politico-Military Affairs, Department of State, before the Subcommittee on National Security Policy and Scientific Developments of the House Foreign Affairs Committee, Dec. 11, 1969 (mimeographed). This appears to be a more recent and authoritative list than that in G. Bunn, he. cit. note 4 above, at 417-420.

78 Account being taken, of course, of the different languages in which the reservations were framed.

79 Art. 2 of Convention No. IV of The Hague of 1907, 36 Stat. 2277, Treaty Series No. 539, 2 A.J.I.L. Supp. 93 (1908), provides that “The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention.”

80 Common Art. 2 provides that the conventions apply “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U. S. Treaties 3114, T.I.A.S., Nos. 3362-3365.

81 Without, it is assumed, objection by any other party to the Protocol.

82 Convention on the Law of Treaties, Art. 60, par. 2(b), cited note 12 above, hereinafter referred to as the Vienna Convention. The convention is not yet in force and is not retroactive, but it is nevertheless a highly authoritative guide to the interpretation of all treaties.

83 Idem, Art. 60, par. 2(c).

84 Report of the International Law Commission on the Work of Its Eighteenth Session, 1966 I.L.C. Yearbook (2) 255, U.N. Doc. A/CN.4/Ser.A/1966/Add.1 (1967); 61 A.J.I.L. 253 (1967).

85 Vienna Convention, Art. 60, par. 5.

86 2 Oppenheim, , International Law 136-144, 561-565 (7th ed., Lauterpacht, 1952).

87 Art. 33, Civilians Convention, 6 U. S. Treaties 3516, T.I.A.S., No. 3365; 50 A.J.I.L. 724 (1956).

88 Art. 13, Prisoners of War Convention, 6 U. S. Treaties 3316, T.I.A.S., No. 3364; 47 A.J.I.L. Supp. 119 (1953).

89 Vienna Convention, Art. 21, par. 1(b).

90 Testimony before the Senate Foreign Relations Committee was used to record various understandings by the United States of the meaning of the Treaty on Non- Proliferation of Nuclear Weapons. See Hearings on the Treaty on the Non-Proliferation of Nuclear Weapons before the Senate Committee on Foreign Relations, 90th Cong., 2d Sess., at 5-6 (1968).

91 Restatement (Second) of the Foreign Relations Law of the United States, §124, comment c (1965).

92 Ibid.; 2 Hyde, , International Law, Chiefly as Interpreted and Applied by the United States 1436 (2d rev. ed., 1945).

93 Vienna Convention, Art. 19.

94 Vienna Convention, Art. 20, par. 4(b), and Art. 21, par. 3.

95 [1966] LC.J. Rep. 6; 61 A.J.I.L. 116 (1967).

96 Declaration signed by the President, Aug. 14, 1946, 61 Stat. 1218, T.I.A.S., No. 1598.

97 Subsequently to the completion of this article, the President of the United States on Aug. 19, 1970, transmitted the Geneva Protocol of 1925 to the Senate for its approval. In the report of the Secretary of State which was transmitted with the President’s letter, the Secretary of State proposed a reservation asserting the right of the United States to use chemical weapons in retaliation against an enemy state failing to observe the obligations laid down in the Protocol, and explained that it is the understanding of the United States that the Protocol “does not prohibit the use in war of riot-control agents and chemical herbicides.” The Senate may, of course, make its own determinations about reservations and understandings with respect to a treaty submitted to it.

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