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IV. The Existing Reservations by Other States

Thirty-nine states have entered reservations to the Geneva Protocol at the time of their accession or ratification.[1] With several exceptions, one here relevant and the others not, they fall into two standard forms, the language employed by various countries in each form of reservation being virtually identical.[2] The reservations of Great Britain will be taken as typical of both forms.

The first reservation provides that “The said protocol shall be binding on his Britannic Majesty only with respect to the Powers and States which have signed and ratified it or which have acceded to it permanently.” The purpose of this reservation was to make it altogether clear that the Protocol did not constitute a unilateral renunciation of the use of chemical and bacteriological weapons against all countries, whether or not parties to the Protocol. The Protocol thus operates on the principle of reciprocity of obligation. This mutuality of obligation is generally true of treaties on the conduct of warfare, and in the Hague Regulations[3] and in the

Geneva Conventions of 194 9[4] the principle is spelled out expressly. The reservations undoubtedly arise out of a fear that an adverse inference might be occasioned by the absence of similar unambiguous language of reciprocity in the Protocol. There is no reason to suppose that the draftsmen of the Protocol desired to depart from the usual principle of mutuality of obligations in treaties, but the differing formulation of the treaties on the conduct of warfare is troublesome.

If mutuality of obligation is required under the Protocol, whether according to its original terms or as modified by the reservations in this form, then a state party to the Protocol may employ chemical and bacteriological weapons against a nonparty. If the Protocol is construed not to import any mutuality of obligation but to constitute a unilateral renunciation of the use of these methods of warfare by each party, then some protection is independently afforded to a party by the second reservation, which liberates a state from its obligation if there is in fact noncompliance with the treaty by an enemy state. The fact that nineteen states have entered this reservation calling for reciprocity of obligation weakens the case for saying that this reciprocity is already implicit in the text of the Protocol. Prudence might therefore dictate that the United States reserve on the same basis as these states, which include five important members of NATO, the Soviet Union, and a number of its allies.

Two variants on this form of reservation call for comment. The British reservation, unlike some of the others, states that that country will be bound only to those states which have ratified or acceded to the Protocol “permanently.” The use of this word excludes reciprocity with respect to a state that has become a party to the Protocol for a term of years or has given notice of its denunciation of the treaty but is still bound by it or in any other way has indicated that its intention is not to be permanently bound. This word appears to reflect an excess of caution, and the British example is not necessarily to be emulated. The People’s Republic of China has bound itself to apply the Protocol “subject to reciprocity on the part of all other contracting and acceding Powers.” It is not clear whether this refers merely to factual mutuality in the performance of the treaty or extends also to mutuality of legal obligations.

The second standard form of reservation is, again in the language of the British reservation: “The said protocol shall cease to be binding on His Britannic Majesty with respect to any enemy Power the armed forces of which or the armed forces allied with which fail to respect the interdictions which form the subject of this protocol.” Some of the reservations of this form (for example that of Canada) speak of “allies de jure or de facto.”

In the strict sense, an “ally” is a state allied under a treaty of alliance. An “ally de jure” is to be understood in this sense. But allies may also simply be states that fight together without being linked by any treaty of alliance. They are “allies de facto.”

The more precise “allies de jure or de facto” probably does not differ in substance from the allied armed forces referred to in the British reservation.

Account must be taken of the fact that the expression “armed forces allied with which” could extend to forces, such as guerrillas and resistance movements, that do not depend on a particular state but do fight alongside an enemy Power. Thus, the use of gas by a guerrilla force allied with an enemy state but not necessarily under its control would justify the use of gas against the armed forces of that enemy state.

The effect of the reservation is as follows: States A and B are allied in war against State C, which has entered the above reservation.[5] The armed forces of State B use gas against the forces of State C. State C, by the terms of its reservation, is no longer obliged to apply the Protocol as regards the forces of State A. The reservation apparently limits the obligation of State C whether or not States A and B have entered similar reservations. At the extreme, the reservation could apply to a more complex situation: States A and B are again allied in war against State C, which has reserved. State B is simultaneously engaged in war against State D. If State B uses even a whiff of gas against the forces of State D, under the terms of the reservation State C is freed of its obligations under the Protocol as regards both States A and B.

This reservation clearly goes beyond what would be permitted under customary international law in the absence of the reservation. Put briefly, in the language of the Vienna Convention on the Law of Treaties, “a party specially affected by the [material] breach [of a multilateral treaty by one of the parties to the treaty] [is entitled] to invoke it as a ground for suspending the operation ofthe treaty in whole or in part in the relations between itself and the defaulting state.”[6] A party is also entitled, under the Vienna Convention, to suspend operation of the treaty in the same way if the material breach by one party “radically changes the position of every party with respect to the further performance of its obligations under the treaty.”[7] This provision was directed toward treaties, such as disarmament treaties, where a breach by one party “tends to undermine the whole regime of the treaty.”[8] However, the foregoing stipulations have no application to “provisions relating to the protection of the human person contained in treaties of a humanitarian

character.”[9]

First, a failure “to respect the interdictions” of the Protocol within the meaning of the reservation does not necessarily constitute a “material breach” of the Protocol, so that the circumstances releasing a state from its obligations under the reservation go well beyond what is permitted under international law. Second, it is only a state “specially affected” which is entitled not to perform, and the violation of the Protocol by an ally of an enemy of that state would not necessarily “specially affect” it. Third, the provision relating to a breach which radically changes the position of every party is directed particularly to disarmament treaties, which the Protocol is not. Fourth, the Protocol must probably be looked upon as a humanitarian treaty, like the Geneva Conventions of 1949, to which these provisions regarding the termination or suspension of the operation of a treaty as a consequence of its breach do not apply.

Nor can the terms of the reservation be construed as merely confirming a power to engage in reprisals, since these are temporary departures from the law justified by and directed toward another state’s antecedent violation of the law and designed to coerce that state into renewed compliance with the law. The law imposes requirements of a demand for compliance, lack of other alternatives, and proportionality, none of which are implicit in the reservation.[10] Moreover, the Geneva Conventions of 1949 forbid reprisals against civilians[11] and against prisoners of war.[12] It would be difficult to avoid affecting these two categories of persons if chemical or bacteriological methods of warfare were to be employed.

In its relations with states such as the Soviet Union that have entered this reservation, the United States would be entitled to avail itself of the reservation on a basis of reciprocity.[13] Thus, if the United States were to engage in war with the Soviet Union and an ally of the Soviet Union were to employ gas, the United States would be entitled to terminate performance under the treaty.

The danger ofthe second form ofreservation is that seemingly any violation ofthe Protocol could constitute a failure “to respect the interdictions” of the Protocol and would release the aggrieved state from all of its obligations under the Protocol vis-avis the offending state and its allies. In the absence of verification of which state engaged in “first use,” it would be impossible to determine whether a state unlawfully initiated use of chemical weapons or was merely responding to an antecedent violation of the Protocol. The reservation offers an easy way for combatants to slip into the forbidden forms of warfare.

On the other hand, a reservation to this effect by the United States would assure it of the same measure of protection in the event of a breach of the Protocol by an enemy that is now enjoyed by Great Britain, a number of other NATO partners, and the U.S.S.R., not only in relation to those states but to others as well. The reservation also has the merit of taking account of the fact that in these days international conflicts are usually fought by coalitions and that what is done by the ally of an enemy state may have as profound an impact upon a belligerent state as if it had been the work of the enemy state itself. The reservation simply recognizes that there are two sides in a conflict and that what is done by a participant on one side has an impact on all states arrayed on the other side.

  • [1] The reservations are reproduced in Department of State, Division of Language Services, LSNo. 12575, Oct. 3, 1967 [semble 1969], annexed to Statement by T. R. Pickering, Deputy Director,Bureau of Politico-Military Affairs, Department of State, before the Subcommittee on NationalSecurity 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 inG. Bunn, loc. cit. note 4 above, at 417—420.
  • [2] Account being taken, ofcourse, ofthe different languages in which the reservations were framed.
  • [3] Art. 2 of Convention No. IV of The Hague of 1907, 36 Stat. 2277, Treaty Series No. 539, 2A.J.I.L. Supp. 93 (1908), provides that “The provisions contained in the Regulations referred to inArticle 1, as well as in the present Convention, do not apply except between Contracting Powers, andthen only if all the belligerents are parties to the Convention.”
  • [4] Common Art. 2 provides that the conventions apply “to all cases of declared war or of any otherarmed 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.
  • [5] Without, it is assumed, objection by any other party to the Protocol.
  • [6] Convention on the Law ofTreaties, Art. 60, par. 2(b), cited note 12 above, hereinafter referred toas the Vienna Convention. The convention is not yet in force and is not retroactive, but it isnevertheless a highly authoritative guide to the interpretation of all treaties.
  • [7] Idem, Art. 60, par. 2(c).
  • [8] Report of the International Law Commission on the Work of Its Eighteenth Session, 1966I.L.C. Yearbook (2) 255, U.N. Doc. A/CN.4/Ser.A/1966/Add.1 (1967); 61 A.J.I.L. 253 (1967).
  • [9] Vienna Convention, Art. 60, par. 5.
  • [10] 2 Oppenheim, International Law 136—144, 561—565 (7th ed., Lauterpacht, 1952).
  • [11] Art. 33, Civilians Convention, 6 U. S. Treaties 3516, T.I.A.S., No. 3365; 50 A.J.I.L. 724(1956).
  • [12] 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).
  • [13] Vienna Convention, Art. 21, par. 1(b).
 
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