Post-1925 Practice Relating to the Geneva Protocol
(a) The Franco-British Interpretation of 1930.—Until 1930 no government appears to have expressed the view that the Geneva Protocol did not outlaw all forms of chemical warfare. The issue was formally raised in November of that year in a memorandum by the British Delegation to the League of Nations Preparatory Commission for the Disarmament Conference. At the time this memorandum was submitted, the Preparatory Commission had under consideration a draft disarmament convention containing a provision relating to the “use in war of asphyxiating, poisonous or similar gases.” The use of the word “similar” apparently prompted some delegations to inquire whether the departure from the formula of the English text of the Geneva Protocol was designed to restrict the prohibition on chemical warfare in the draft convention. Realizing that the different wording in the two official texts of the Geneva Protocol might support the argument that the Protocol did not, for example, outlaw tear gas and other irritant chemicals, the British Delegation made the following statement:
Basing itself on this English text [of the Geneva Protocol], the British Government have taken the view that the use in war of “other” gases, including lachrymatory gases, was prohibited. They also considered that the intention was to incorporate the same prohibition in the present Convention.
From every point of view it is highly desirable that a uniform construction should prevail as to whether or not the use of lachrymatory gases is considered to be contrary to the Geneva Protocol....
The French Delegation responded with the following statement:
I. All the texts at present in force or proposed in regard to the prohibition of the use in war of asphyxiating, poisonous or similar gases are identical. In the French delegation’s opinion, they apply to all gases employed with a view to toxic action on the human organism, whether the effects of such action are more or less temporary irritation ofcertain mucous membranes or whether they cause serious or even fatal lesions.
II. The French military regulations, which refer to the undertaking not to use gas for warfare (gaz de combat) subject to reciprocity, classify such gases as suffocating, blistering, irritant and poisonous gases in general, and define irritant gases as those causing tears, sneezing, etc.
III. The French Government therefore considers that the use of lachrymatory gases is covered by the prohibition arising out of the Geneva Protocol. . . .
The fact that, for the maintenance of internal order, the police, when dealing with offenders against the law, sometimes use various appliances discharging irritant gases cannot, in the French delegation’s opinion, be adduced in a discussion on this point, since the Protocol or Convention in question relates only to the use of poisonous or similar gases in war.
At the time these declarations were made, the Geneva Protocol had been ratified by twenty-eight states, including France and Great Britain. Eighteen of these states were members of the Preparatory Commission. Ten of them associated themselves expressly with the French and British interpretation, whereas the remaining six states did not respond to the British invitation for an expression of opinion. And although a number of other states that subsequently ratified the Protocol also supported this interpretation, only the United States representative, Mr. Hugh Gibson, expressed doubts. Since the United States had not ratified the Geneva Protocol, he was careful not to offer an opinion on the prohibitory scope of that instrument. He addressed himself instead to the prohibition of chemical warfare that should be included in the draft convention. In that context, Mr. Gibson declared:
I think there would be considerable hesitation on the part of many Governments to bind themselves to refrain from the use in war, against an enemy, of agencies which they have adopted for peace-time use against their own population, agencies adopted on the ground that, while causing temporary inconvenience, they cause no real suffering or permanent disability, and are thereby more clearly humane than the use of weapons to which they were formerly obliged to resort to in times of emergency.
Mr. Gibson concluded his statement with the proposal that the Preparatory Commission not make a decision on the scope of the chemical warfare prohibition of the draft convention but that the states to be represented at the forthcoming Disarmament Conference “be requested to give this entire subject careful study and consideration, with a view to arriving at that Conference equipped with adequate knowledge of the problem in all its aspects.” This proposal was accepted by the Preparatory Conference.
At the Disarmament Conference itself no attempt was made to interpret the Geneva Protocol. It is significant, however, that the special committee which studied the questions Mr. Gibson had raised recommended that
... there should be included in qualitative disarmament the use, for the purpose of injuring an adversary, of all natural or synthetic noxious substances, whatever their state, whether solid, liquid or gaseous, whether toxic, asphyxiating, lachrymatory, irritant, vesicant, or capable in any way of producing harmful effects on the human or animal organism, whatever the method of their use.
This recommendation was subsequently embodied in Article 48 of the draft convention, which provided that the prohibition of the use of chemical weapons applied “to the use, by any method whatsoever, for the purpose of injuring an adversary, of any natural or synthetic substance harmful to the human or animal organism, whether solid, liquid or gaseous, such as toxic, asphyxiating, lachrymatory, irritant or vesicant substances.” The United States found this provision acceptable. The draft convention never entered into force for reasons unrelated to the scope of its prohibition of chemical and biological warfare.
To the extent that none of the states parties to the Protocol that were represented on the Preparatory Commission recorded their opposition to the British interpretation either during the meetings or within a reasonable period thereafter, they can be deemed to have assented thereto. The same is also true ofthe states parties to the Protocol that participated in the subsequent Disarmament Conference (all states which had up to that time ratified the Protocol were represented at the Conference), for they were on notice as to what had happened in the Preparatory Commission.
(b) The Post-1930 Practice.—No state has at any time either before or after 1930 ratified or acceded to the Protocol with a reservation limiting the types of chemical weapons to which it applies. The fact that states acceding to the Protocol after 1930 did not enter a reservation excluding tear gas from the reach of the Protocol is particularly important because they had clearly been alerted to the interpretation of the treaty in that respect.
The use of tear gas and herbicides by the United States in Viet-Nam has provoked lengthy debates in the United Nations concerning the legality of these weapons. The United States has consistently asserted that the use of these weapons did not violate the Protocol. Significantly, only one state party to the Protocol— Australia, which has troops in Viet-Nam—has associated itself in the United Nations with the United States view that the prohibition of the treaty applied neither to irritant chemicals nor to anti-plant chemicals.
Great Britain has not taken this view, but that government has declared that, although it still adhered to the position that “tear gases... are... prohibited under the Protocol,” it considered that this prohibition did not extend to CS gas, the form of tear and harassing gas most widely used today in riot control and in combat.
On December 16, 1969, the United Nations General Assembly adopted Resolution 2603A (XXIV) reciting its recognition “that the Geneva Protocol embodies the generally recognized rules of international law prohibiting the use in international armed conflicts of all biological and chemical methods of warfare, regardless of any technical developments.... ” The resolution went on to declare
as contrary to the generally recognized rules of international law, as embodied in the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925, 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;...
The resolution was adopted by eighty votes to three (the United States, Australia, and Portugal), with thirty-six abstentions.63 Although the vote cannot be regarded as a resounding affirmation of the proposition that irritant chemicals fall under the prohibition of the Protocol, the large number of states voting in favor of the resolution indicates that there is a very substantial amount of support for that view.
These few dissenting voices and thirty-six states whose silence supports neither one construction nor the other do not evidence any strong enthusiasm for a restrictive interpretation of the Protocol. And finally, legal niceties aside, what governments believe the Protocol to mean today probably counts for a good deal more than all of the other drafting history and subsequent practice put together.
The text of the prohibition of chemical warfare in the Geneva Protocol admits of both a broad and a restrictive interpretation ofits intended scope. It is clear, however, that by their conduct and declarations in the past four decades the parties to the Protocol have demonstrated their understanding that this prohibition bars the use in war of all chemical agents having a direct toxic efFect on man that might be used as anti-personnel weapons, including tear gas and other forms of irritant chemicals.
-  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).
-  Ibid. at 311. 2 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.
-  See Documents of the Preparatory Commission, note 46 above, at 311—314.
-  Ibid. at 312. 3 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).
-  1 League of Nations, Conference for the Reduction and Limitation of Armaments: ConferenceDocuments 210, at 214 (1932).
-  2 League of Nations, Conference for the Reduction and Limitation of Armaments:Conference Documents 476, at 488 (1935).
-  Minutes ofthe General Commission (December 14, 1932—June 29, 1933), 2 League ofNations,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, 1933U. S. Foreign Relations (1) 72, at 75 (1950).
-  It must be remembered that the interpretation ofthe Protocol was advanced by France and GreatBritain, 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.
-  For a very thorough treatment of the post-1930 practice, see Stockholm International PeaceResearch Institute, The Problem of Chemical and Biological Warfare, Part III (CBW at the League ofNations and the United Nations 1920—69), pp. 64—277 (provisional ed., 1970).
-  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 foundin the annual Documents on Disarmament, published by the U. S. Arms Control and DisarmamentAgency.
-  An Australian representative in the General Assembly stated: “It is the view of the AustralianGovernment 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. GeneralAssembly, 24th Sess., Official Records, 1st Committee, Doc. A/C.1/PV.1716, p. 82, at 87 (Provisional) (1969).
-  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 Governmentexpressed the view that smoke screens, unlike tear gas, were not prohibited by the Protocol. Theexplanation given by Mr. Stewart reads as follows: “[M]odern technology has developed CS smokewhich, unlike the tear gases available in 1930, is considered to be not significantly harmful to man inother than wholly exceptional circumstances; and we regard CS and other such gases accordingly asbeing outside the scope of the Geneva Protocol. CS is in fact less toxic than the screening smokes whichthe 1930 statement specifically excluded.” 795 Parl. Deb. (Hansard), H. C., No. 50, p. 18 (WrittenAnswers to Questions) (1970). Neither the language of the Geneva Protocol nor previous statements by the British Governmentafford any basis for a distinction between more toxic tear gases prohibited by the Protocol and less toxicgases not so prohibited. Besides, the tear gases that were used in the First World War were also notdeemed to be harmful to man. See Fries and West, Chemical Warfare at 15. The British view regardingCS gas would thus seem to be untenable.
-  Cited note 7 above. 63 U.N. Doc. A/PV.1836, at 16 (Provisional) (1969).