V. Possible Legal Positions that Might be Taken on Irritant Chemicals and Anti-Plant Chemicals

There is a variety of legal positions that the United States might take with respect to irritant gases and anti-plant chemicals if it ratifies the Geneva Protocol. A decision on what line to take will require that the United States Government decide upon the interpretation to be attached to the Protocol by this country and upon the degree of freedom that this country desires to retain. Different treatment might be given to irritant chemicals and anti-plant chemicals.

The range of possibilities seems to be as follows:

1. Acceptance of the view that irritant gases and/or anti-plant chemicals fall within the scope of the Geneva Protocol

In view of the fact that the United States appears hitherto to have inclined to the view that irritant gases and anti-plant chemicals are not prohibited by the Protocol, selection of this option might well be accompanied by a statement, which might or might not form part of the instrument of ratification, whereby the United States would indicate its understanding about the scope of the Protocol. The United States might, for example, state that it is willing to accept the obligation not to use these two forms of chemical weapons and note the concurrence of the eighty members of the United Nations that voted for this interpretation in the General Assembly resolution of 1969. Such a statement would have the beneficial effect of bringing about greater harmonization in the interpretation of the Protocol and might encourager les autres. On the other hand, by putting its understanding on record as to either or both forms of chemicals, the United States would be committing itself to that interpretation. It would thus have less freedom of action than other states that have not expressed themselves and may jump one way or the other when a decision must be made about the applicability of the Protocol to these types of chemicals.

2. Acceptance of the view that irritant gases and/or anti-plant chemicals fall within the scope of the Geneva Protocol, accompanied by the drawing up of a protocol whereby the United States and others might indicate their shared understanding of the Geneva Protocol

This option would differ from the foregoing in that the United States would take the initiative in drawing up an instrument whereby it and other states would indicate their understanding of the scope of the Geneva Protocol. It would be open to countries to become parties to the protocol to the Geneva Protocol and thereby put themselves on record as to their interpretation of the Protocol. While the existence of that protocol might be a stimulus to other nations to declare themselves, it might on the other hand divide the parties to the Protocol into two camps—those willing to exclude the use of anti-plant chemicals or irritant chemicals and those which, by deliberately refusing to become parties to the new instrument, would show that they reserved the right to use such weapons.

3. Leaving open the question whether irritant chemicals and/or anti-plant chemicals are excluded by the Geneva Protocol, without taking any position on the matter

Although this option is theoretically open, it would as a practical matter be extremely difficult to maintain silence on these issues. It is inevitable that questions would be asked in the Senate when the advice and consent of that body are sought and that other governments would be curious about the position of the United States. And if the United States desired to continue to use such weapons, this strategy would not be an effective way of building support for the lawfulness of such conduct by this country. Options 4 and 5 would be more effective than silence.

4. Indication by the United States that it understands the Geneva Protocol not to exclude the use of irritant chemicals and/or anti-plant chemicals without inclusion of any such statement in the instrument of ratification

The United States could simply indicate that it understands the Protocol to permit the use of either irritant gases or anti-plant chemicals or of both types of chemical agents. This might be done through a statement by the President in submitting the Protocol to the Senate or by reading this understanding into the legislative history, as, for example, by an appropriate statement in the report of the Senate Foreign Relations Committee.[1] There could be some pressure within the Senate to move from this position to an outright reservation, but this embarrassment could be avoided if proper advance consultation were to be had.

The advantage of this posture is that the United States would thereby indicate it considers that it would have liberty of action to employ these weapons after ratifying the Protocol, without making itself the target of objections, as might follow from the employment of Option 5 or 6. Foreign states might not feel compelled to take issue with the United States, although understanding what our position is. In time other states might come to accept this interpretation of the Protocol. On the other hand, the United States would not be assured of freedom to use such weapons, in the face of a contrary interpretation attached to the Protocol by the other parties to the instrument. Only Option 6 could assure that degree of security. The United States would in any event have to face the risk that there might be a variety of differing interpretations by other states, to which it would simply add one more.

5. A clear statement, conveyed in the instrument of ratification, that the United States adheres to the view that the Geneva Protocol does not cover irritant gases and/or anti-plant chemicals

The United States could, at the time of ratifying the Geneva Protocol, declare in the instrument of ratification its understanding that certain weapons are excluded from the Protocol. The United States would not thereby be legally protected in the use of such weapons but might hope to persuade other states to agree that such weapons are not covered by the Protocol. If that could be accomplished, enough doubt could be raised about the meaning of the treaty that it would be difficult to maintain that the United States had committed any clear-cut violation of the treaty through the employment of these weapons. There would be advantages and disadvantages in such a course of action.

It is true that “A party may make a declaration which indicates the meaning that it attaches to a provision of an agreement but which it does not regard as changing the legal effect of the provisions.”[2] The understanding may be looked upon as just “one man’s opinion” possessing exactly the same relevance as any individual state’s understanding of the agreement. But it would be open to other states to construe the understanding or declaration as an attempt by the United States to limit its obligations, and those states might choose to treat the understanding or declaration as a reservation.[3] The United States would thus remain at the mercy of other states. If they treat the statement as merely the understanding of the United States, the understanding is only one bit of evidence to be weighed in the balance; if they treat it as a reservation, the consequences alluded to below follow.

Such a course of action, like Option 4, would in all likelihood permit the United States to become a party to the Protocol without embarrassing objections and would buy the government time to try to persuade other states to change their views. Whether the United States would be able to accomplish this is conjectural, and it might be that this country and Great Britain would be faced with widespread objection to the exclusion of tear gas.

If the United States were to maintain that the Protocol does not cover irritant gases or anti-plant chemicals or both, whether in the instrument of ratification or otherwise, that course of action would promote diversity of interpretation of an instrument that should receive a uniform construction if it is to operate effectively. If an enemy state should construe the Protocol as prohibiting the use of tear gas and the United States should nevertheless use that weapon, the enemy state might then tax the United States with the first violation of the agreement and use other forms of chemical and bacteriological warfare under claim of right. It would be easy to cast off the restraints of the Protocol in an argument about how far it carries. Thus the continued use of tear gas by the United States could lead to retaliatory use of far more devastating chemicals by a state claiming that it is acting in full conformity with the law.

6. A reservation that would have the effect of giving the United States full legal protection in the use of irritant gases and/or anti-plant chemicals

On becoming a party to the Protocol, the United States could be legally secure in continuing to use irritant gases or anti-plant chemicals or both only by entering a reservation under which this country would seek to alter its obligation under the Protocol. The problem about a reservation is that it is open to the other parties to the treaty either to accept or reject the reservation, since it constitutes a counter offer by the reserving state to the offer made by all of the other parties to the treaty in its original form. The U.S.S.R. and its allies have generally been in favor of allowing states freely to make reservations to treaties in the exercise of their sovereignty. However, while the war in Viet-Nam continues, and this soon after the General Assembly resolution of 1969, it is too much to expect that the U.S.S.R. would remain silent in the face of a reservation by the United States. And even if the U.S.S.R. were to raise no objection, some other state might.

If a state objects that the reservation is “incompatible with the object and purposes of the treaty,”[4] either one of two consequences may follow: (a) The provisions of the treaty to which the reservation relates do not apply as between the two parties to the extent of the reservation, or (b) the treaty does not enter into force between the reserving and the objecting states, if that is the intention of the objecting state.[5] The difficulty with the first possibility is that it may not be easy to establish exactly what “provisions” do not apply. If the provisions are those referring to “asphyxiating, poisonous or other gases,” the deletion of these provisions in treaty relations between the United States and an objecting state would effectively emasculate the treaty. If only “other gases” are involved, to allow the deletion of this much of the Protocol would amount to an acceptance of a reservation as to irritant gases. But the possibility would still exist that an objecting state would assert that it was better (and perhaps conducive to the withdrawal of a reservation by the United States) if that state refused to accept the reservation and were to deny treaty relations with the United States. One of the risks of a reservation is therefore the possibility that the United States would not be bound as to an objecting state. Faced with that situation, it would of course be open to the United States, with the consent of the Senate, to withdraw the reservation and assume full treaty relations with the objecting state, if that course of action were on balance to be considered desirable.

Acceptance of a reservation, either expressly or through silence, brings the treaty into force between the reserving and accepting states subject to the reservation, which can be relied upon by the accepting state as well, on a basis of reciprocity.

To sum up, the other parties to the Protocol hold the whip hand, for each may, in its discretion, accept a United States reservation, regard the provision to which the reservation applies as not being in force, or reject treaty relations under the Protocol altogether.

7. Securing an authoritative interpretation of the Geneva Protocol through an Advisory Opinion of the International Court of Justice

Elucidation of the text of the Protocol could come from the International Court of Justice. The most feasible way of securing that clarification would be through an advisory opinion of the International Court requested by the Security Council or the General Assembly or a specialized agency of the United Nations pursuant to Article 96 of the United Nations Charter. The decision whether to seek an advisory opinion would naturally rest with those bodies. The United States Government might wish to take the initiative in proposing such action to supplement the measures contemplated under Options 1 through 5. The United States would thereby have a means to press its own understanding of the Protocol and then to yield gracefully if the decision were to go against it. The United States might go further. It could state its understanding of the meaning of the Protocol but agree that it would be bound by any advisory opinion that might be rendered by the Court. It is reasonable to suppose that that decision would not bear out the contention of this country that irritant chemicals and anti-plant chemicals fall outside the scope of the Protocol.

The United States would have to reckon with the possibility that the General Assembly or the Security Council might not be willing to seek an advisory opinion. In the case of the Security Council, the casting of the double veto could preclude resort to the Court. The first veto would be cast on the characterization of the matter as substantive or procedural. The exercise of the veto would then in all likelihood dictate that the question be treated as a substantive one, which would be subject to a second exercise of the veto. Exactly how the matter would be handled would depend to a large measure on the views of the person who happened to be President of the Security Council at that time.

The case for the desirability and the acceptability of resort to the International Court is not as clear as might appear on first impression. Several recent decisions by the Court—notably that in the South West Africa cases[6] have been received with a marked lack of enthusiasm. We are in a period of somewhat diminished confidence in the Court, which might make it difficult to persuade states to take the matter to that body.

From the point of view of the United States, the possibility would have to be faced that a proposed submission to the Court could be used as the occasion for propaganda against the United States. If the request for an advisory opinion were to originate in the General Assembly (which would be the logical way), there would be no way to prevent states from making an issue of the practices of the United States in the Viet-Nam conflict, both as to chemical and bacteriological warfare and as to the conduct of that war in general. The conduct of the United States would also be material in the arguments before the Court, for the case for the prohibition of tear gas and defoliants under the Protocol might be based on the harm in fact caused by these weapons.

And, finally, an advisory opinion would not be binding on the General Assembly or other organ or specialized agency requesting it. If the Court were to come down on the side of interpreting the Protocol to prohibit anti-plant chemicals and irritant gases, there is little likelihood that the General Assembly would object to that conclusion. Since the United States has taken a strong line in the past on the General Assembly’s giving effect to the advisory opinions of the Court, it would be difficult for the United States to do other than comply with the decision of the Court, whatever may be the views of the United States Government on the legal effect of resolutions of the General Assembly. But if the Court were to take a position that did not find favor in the eyes of a majority of the members of the General Assembly—as, for example, by agreeing that tear gas is outside the scope of the Protocol—that organ is not required to follow the Court. Although the Court’s views have generally been accepted in the past, they do not have to be. The General Assembly could attempt to impose its own interpretation of the Protocol on the United States through an overwhelming vote in that body.

Although these hazards would have to be weighed in the balance, an authoritative interpretation of the Protocol by the International Court might provide the United States with a reasonable and acceptable way to stop the use of chemicals found by the Court to be within the prohibition of the Protocol.

8. Other modes of clearing up disagreement about the Geneva Protocol

Even though no advisory opinion of the International Court were to be sought, the possibility exists that the adoption of Option 4 or 5 might lead a state to bring an action against the United States within the contentious jurisdiction of the Court. In that event, the United States would be forced to assert the defense of the Connally Reservation, whereby the United States excludes from its acceptance of the compulsory jurisdiction of the Court “matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America.”[7] The United States would probably be protected by its assertion that the use of irritant chemicals and anti-plant chemicals in warfare is within the domestic jurisdiction of the United States as determined by this country. That defense could be waived but probably only with the consent of the Senate.

The parties to the Protocol could seek to clear up their differences through negotiation. These discussions could in time lead to the adoption of a formal instrument interpreting the agreement, as contemplated in Option 2.

* * *

This or any other country acceding to the Geneva Protocol of 1925 will have to consider whether it is wise to limit its obligations under the Protocol through reservations resembling those that have already been made by a number of states. A far more consequential decision must be made whether it is in the interest of the

United States to retain the option of employing irritant chemicals and anti-plant chemicals.

In the preceding paragraphs we have attempted to set out the range of options open to the United States Government as it prepares to become a party to the Geneva Protocol of 1925. A decision about the course to be taken by this country raises questions going far beyond international law—questions of military policy, of diplomacy, and, above all, of domestic and international politics.[8]

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  • [1] 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 NuclearWeapons. See Hearings on the Treaty on the Non-Proliferation of Nuclear Weapons before theSenate Committee on Foreign Relations, 90th Cong., 2d Sess., at 5—6 (1968).
  • [2] Restatement (Second) of the Foreign Relations Law of the United States, §124, comment c (1965).
  • [3] Ibid.; 2 Hyde, International Law, Chiefly as Interpreted and Applied by the United States 1436(2d rev. ed., 1945).
  • [4] Vienna Convention, Art. 19.
  • [5] Vienna Convention, Art. 20, par. 4(b), and Art. 21, par. 3.
  • [6] [1966] I.C.J. Rep. 6; 61 A.J.I.L. 116 (1967).
  • [7] Declaration signed by the President, Aug. 14, 1946, 61 Stat. 1218, T.I.A.S., No. 1598.
  • [8] 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 theSecretary of State which was transmitted with the President’s letter, the Secretary of State proposed areservation asserting the right of the United States to use chemical weapons in retaliation against anenemy state failing to observe the obligations laid down in the Protocol, and explained that it is theunderstanding of the United States that the Protocol “does not prohibit the use in war of riot-controlagents and chemical herbicides.” The Senate may, of course, make its own determinations aboutreservations and understandings with respect to a treaty submitted to it.
 
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