by Nicholas A Sims
Nicholas A. Sims is a Senior Lecturer in the Department of International Relations at the London School of Economics and Political Science (University of London). He is the author of The Diplomacy of Biological Disarmament (1988), and other papers and articles on the Biological and Toxin Weapons Convention, the Chemical Weapons Convention and the Geneva Protocol.
Discussion of Article VIII at the Third Review Conference
1. At the Third Review Conference of the BTWC held on 9-27 September 1991, the Final Declaration of the States Parties reaffirmed the importance of Article VIII which states that:
Nothing in this Convention shall be interpreted as in any way limiting or detracting from the obligations assumed by any State under 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 June 17, 1925. and stressed the importance of the 1925 Geneva Protocol.
2. The Final Declaration of the Third Review Conference1 appealed to all States Parties to the Geneva Protocol of 1925 to fulfil their obligations assumed under the Protocol and urged all States not yet Parties to the Geneva Protocol to accede to it without delay. The Conference acknowledged that the Geneva Protocol, by prohibiting the use of bacteriological methods of warfare, forms an essential complement to the Biological and Toxin Weapons Convention.
3. The Conference stressed the importance of the withdrawal of all reservations to the 1925 Geneva Protocol related to the Biological and Toxin Weapons Convention. It also noted that the United Nations had taken significant action in support of the Geneva Protocol during the period under review including through Security Council resolution 620 (1988) and General Assembly resolutions 41/58 C, 42/37 C, 43/74 A, 44/115 B and 45/57 C. Finally the Conference recalled that the participating States at the Conference of States Parties to the 1925 Geneva Protocol and Other Interested States, held in Paris from 7 to 11 January 1989, had solemnly reaffirmed in its Final Declaration the prohibition as established in the Geneva Protocol of 1925 and urged all States which had not done so to accede to it.
Developments since the Third Review Conference
4. In considering the developments since the Third Review Conference, it is useful first to recall the outcome of the First and Second Review Conferences. In 1980 the Final Declaration of the First Review Conference2 simply reaffirmed Article VIII and called on those States Parties to the Convention which were Parties to the Protocol to comply strictly with its provisions and those States not yet Parties to the said Protocol to ratify or accede to it at the earliest possible date.
5. In 1986 the Final Declaration3 of the Second Review Conference ran into difficulty over the equivalent sentence. After last-minute delays over Iran's wish to have the Conference condemn Iraq for using chemical warfare against Iran in breach of the Protocol, a reference to the most relevant Security Council document (S/17911) was inserted. Other changes were minor: "comply strictly with its provisions", for example, was replaced by "fulfil their obligations assumed under that Protocol" and non-Parties were now "urged to adhere to it" at the earliest possible date.
6. The Second Review Conference prefaced the substantially-repeated paragraph from 1980 with a new one of the most general character, which added little. The two paragraphs now read, in full: The Conference reaffirms the importance of Article VIII and stresses the importance of the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare.
The Conference reaffirms that nothing contained in the Convention shall be interpreted as in any way limiting or detracting from the obligations assumed by any State under 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. Noting the report of the Security Council (S/17911), the Conference appeals to all States Parties to the said Protocol and urges all States not yet Parties to the said Protocol to adhere to it at the earliest possible date.
7. At the Third Review Conference, these two paragraphs, save only for the reference to S/17911 which had been necessary in 1986 to carry Iran with the consensus, were reproduced almost word for word in 1991 as the first two paragraphs of the section dealing with Article VIII in the Final Declaration of the Third Review Conference. (The last nine words were slightly altered to "to accede to it without delay").
8. They were, however, now only the first two paragraphs of six. The third paragraph referred obliquely to the removal of an explicit ban on biological and toxin weapon use during the 1971 negotiation of the Convention.4 The Geneva Protocol had then (although significantly not in the subsequent negotiation of the Chemical Weapons Convention signed in 1993 with an explicit ban on use included5) been invoked as the reason for leaving use out of the list of BTW activities expressly prohibited by the Convention (a "gap" in the Convention which was criticised at the time6). Now, in 1991,
The Conference acknowledges that the 1925 Geneva Protocol, by prohibiting the use of bacteriological methods of warfare, forms an essential complement to the Biological and Toxin Weapons Convention.
9. The fourth paragraph is discussed below, under the heading Withdrawal of Geneva Protocol Reservations, as it requires much fuller analysis and comment.
10. The fifth paragraph noted UN resolutions in support of the Geneva Protocol which had been adopted between 1986 and 1990, and the sixth paragraph the Paris Conference of 1989. Withdrawal of Geneva Protocol Reservations.
11. The most useful single action which the Fourth Review Conference could take in the Article VIII section of its Final Declaration would be to develop the sentiment briefly expressed in the fourth paragraph of the 1991 Article VIII section:
The Conference stresses the importance of the withdrawal of all reservations to the 1925 Geneva Protocol related to the Biological and Toxin Weapons Convention.
In 1996 the withdrawal of those Geneva Protocol reservations which purport to reserve a right of retaliation should form the greater part of the subject matter of the Final Declaration in relation to Article VIII. A much expanded text could extend the short sentence negotiated in 1991 and build on it a major initiative underlining the absolute and permanent character of the Convention, with which other obligations must be consistent. 12. It must be emphasised that many States Parties to the Convention are also Parties to the Protocol without reservation. For them, no asymmetry of obligations arises. For others, it may do, unless they put their legal affairs in order. That was the purport of the fourth paragraph in 1991. Because not all States Parties have acted on it, the problem remains. A short historical account provides useful background7. Reservations already withdrawn.
13. There is an evident asymmetry of obligations for any state, party to both the Protocol and the Convention, which reserves a right of retaliation in respect of "bacteriological methods of warfare" (the terminology of the Protocol), while being bound "never in any circumstances to develop, produce, stockpile or otherwise acquire or retain" (the terminology of the Convention) the very means of waging such warfare. For the right of retaliation could only be exercised by a state which had first broken the Convention.
14. The maintenance in force of a purported right of retaliation with weapons whose development, production, stockpiling, acquisition and retention have all alike been renounced can only be one of two things. Either it is absurd, in which case it brings the structure of international law built on treaty commitments into disrepute; or it is meant to be taken seriously, as a deterrent threat, in which case it undermines the permanent status of the Convention and calls into question the sincerity of the state's attachment to the obligations assumed under it.
15. It was this latter consideration which motivated the Irish government when it led the way in resolving the asymmetry of obligations. In fact its action prevented this asymmetry from arising for the Republic in the first place, because it anticipated Irish adherence to the Convention. In its Note of 7 February 1972 Ireland withdrew the reservation which the Irish Free State had attached to its instrument of accession to the Protocol on 29 August 1930. It explained its reason thus, conflating the prohibitions on acquisition and retention into a single ban on possession:
Ireland considers that the Convention could be undermined if reservations made by the parties to the 1925 Geneva Protocol were allowed to stand, as the prohibition of possession is incompatible with the right to retaliate, and that there should be an absolute and universal prohibition of the use of the weapons in question. When the Convention was opened for signature on 10 April 1972 Ireland attached this Note to its signature. It thereby emphasised as strongly as it could the direct connection between the Protocol and the new Convention, and the need to ensure full compatibility of obligations under these two legal instruments8.
16. Subsequent withdrawals of Geneva Protocol reservations did not indicate whether the governments concerned intended to relate their action directly to the Convention, although all were already parties to the Convention before they took this action:
1976 Barbados 986 Australia 989 New Zealand 990 Mongolia 990 Czech and Slovak Federal Republic 991 Romania 991 Bulgaria
New Zealand expressly withdrew its (1930) reservation in order to demonstrate support for the Chemical Weapons Convention (CWC) then under negotiation in the Conference on Disarmament and to emphasise that there were no circumstances conceivable in which New Zealand would wish to use chemical weapons. Australia in 1986 had referred likewise to its abhorrence of chemical warfare9. Similar considerations appear to have motivated the withdrawals completed in 1990-91. All those reservations, except that of Mongolia (1968), dated from the period 1929-1938.
17. By the time of the Third Review Conference two more states with long-standing reservations of the right of retaliation (Chile 1935 and Spain 1929) had announced their interest in the possibility of withdrawing their reservations10. By this time, too, the Conference on Disarmament was officially committed to a negotiating timetable which envisaged completion of its work on the CWC in 1992. It was generally understood that at some point all Geneva Protocol reservations of the right of chemical retaliation would have to be withdrawn: but at what stage in the treaty life of the CWC? Austria wanted a special conference to be held, for the concerted withdrawal of all remaining reservations, while Egypt advocated making such withdrawal a specific requirement of the CWC, and one which would even apply straight away at the point of signature. Other states, however, were reluctant to move ahead of the United States, which had only in May 1991 moved to acceptance of an obligation to withdraw its reservations at the point of CWC entry into force, rather than much later.
18. It was not surprising, therefore, that the Third Review Conference failed to issue an unqualified call for all Geneva Protocol reservations pertaining to retaliatory rights (chemical as well as biological) to be withdrawn forthwith. Instead it stressed the importance of the withdrawal of all reservations related to the Convention (Emphasis added). This formula accommodated both outright withdrawal and modification of reservations. It was carefully negotiated, under Austrian chairmanship, to satisfy both groups of States Parties, the "withdrawers" and the "modifiers" - and also the many States Parties, including Austria, which had never attached reservations to their adherence to the Protocol. Modification of reservations
19. The Third Review Conference had seen two States Parties, with reservations of the right of retaliation dating from their ratifications of the Geneva Protocol in 1930, announce their decision to modify those reservations so that they would no longer apply "insofar as they relate to bacteriological methods of warfare" (Canada) or "to the use of the agents, toxins, weapons, equipment and means of delivery specified in Article I of the Convention" (United Kingdom). Canada emphasised its wish "to ensure that there can be no suggestion of uncertainty anywhere as to the extent of Canada's abhorrence of biological warfare and the means of conducting it " and the UK action was explained in similar terms of "the continued determination of the British Government to exclude the possibility of the use of biological agents and toxins as weapons".
20. Interestingly, the UK also saw its action as a demonstration of its "commitment to the two key international instruments for this purpose, the 1925 Geneva Protocol and the Biological Weapons Convention".
21. Canada and the United Kingdom in 1991 were broadly assimilating themselves to the position occupied by the Netherlands and the United States ever since ratifying the Protocol, in 1930 and 1975 respectively. Although each of the four has expressed itself in slightly differing terms, their reservations are effectively confined to a right of retaliation with chemical weapons. By 1991 Canada and the UK could look forward to a time when this remaining reservation could be withdrawn so as to be consistent with their eventual obligations under the future CWC; but in the meantime they were ensuring consistency of obligations with the BWC already in force, like the Netherlands and United States all along.
Subsequent developments
22. Chile's withdrawal of reservations took effect just after the Third Review Conference, on 15 October 1991. In Spain, the Council of Ministers authorised withdrawal on 13 December 1991. Estonia announced its intention to withdraw its (1931) reservation when it signed the CWC in January 1993.
24. Yugoslavia, whose reservation dates from 1929, had stated at the Third Review Conference that it welcomed the decisions of some countries to remove these reservations and considered that it would be of utmost importance if further similar steps would be undertaken by others.
25. It will be interesting to learn at the Fourth Review Conference what progress has been made in formalising these withdrawal processes with notifications to France as the Depository for the Protocol. At the moment there is no mechanism by which such information is circulated among States Parties to the Convention: this responsibility might usefully be laid by the Conference upon the Depositories.
26. Only one modification (as distinct from withdrawal) was signalled in the aftermath of the Third Review Conference, although the reference in the Final Declaration could be interpreted as encouraging both actions equally. On 29 January 1992, President Boris Yeltsin declared "that Russia withdraws its reservations concerning the possibility of using biological weapons as a response." 11 This declaration amounted to a modification of the reservation pertaining to retaliation which had been attached by the USSR to its ratification of the Protocol in 1928. Depending on the precise terms in which it may have been notified to the Depository, it would assimilate the Russian Federation to the approximate position occupied (with slight variations) by the Netherlands since 1930, the United States since 1975, Canada since 1991 and the United Kingdom since 1992 (when its already announced modification took legal effect).
Remaining uncertainties
27. There remained only nine "original" (1926-31) reservations which had been neither withdrawn nor modified after the actions of Canada, the UK, Chile, Spain and the Russian Federation between September 1991 and January 1992. These were (in date order of reservations) France 1926, Belgium 1928, China 1929, Yugoslavia 1929, India 1930, South Africa 1930, Portugal 1930, Estonia 1931 and Iraq 1931. All are now parties to the Convention as well as the Protocol. (It should be remembered that many original or early-joining parties to the Protocol - including all the Nordic countries, most of the Latin American countries, and others as diverse as Austria, Egypt, Germany, Iran, Italy, Poland and Turkey - as well as Japan in 1970, had ratified it without reservation.)
28. But several more recent adherents to the Protocol have reserved a right of retaliation, without differentiation as between biological and chemical warfare. Among them are Nigeria 1968, Israel 1969, Kuwait 1971, Libya 1971, Yemen 1971, Jordan 1977, Vietnam 1980, Bahrain 1988, Republic of Korea 1988, Democratic People's Republic of Korea 1988, Bangladesh 1989 and Angola 1990. Most, though not all, of these states are also parties to the Convention.
29. The exact number of States Parties to the Protocol and the Convention which are subject to reservations in respect of their adherence to the former is very difficult to establish, because of differing legal doctrines concerning succession to obligations upon independence12. Some former British colonies, for example, have expressly withdrawn "their" retaliatory reservations (Barbados 1976) or expressly maintained them (Fiji 1973) but many more have done neither. Add to these former colonies of Belgium, France and others, and the total potential number of states subject to reservations "inherited" from the former colonial power is considerable.
30. The suggested draft language for the Article VIII section of the 1996 Final Declaration suggested below seeks to take account of this uncertainty. It sets out a range of ways in which States Parties to the Convention may choose to "regularise" their treaty status in terms of the Protocol so as to rid themselves of any possibility of inconsistency or asymmetry of obligations. Straight withdrawal may not always be legally the most appropriate action. But the end-result should be the same in all cases: clarity.
Issues for the Fourth Review Conference
31. The Fourth Review Conference has an opportunity to emphasise the absolute character and permanent status of the Convention by making a solemn declaration of the necessity for all States Parties to ensure that their treaty status under the Geneva Protocol is henceforth consistent with their obligations under the Convention, and to "regularise" that status, if there is any asymmetry remaining, by taking appropriate legal action.
32. The Final Declaration in 1996 will naturally draw upon language which proved its acceptability in 1991, and thereby continue the cumulative development of the text. It would, however, be desirable to conflate at least the first and third paragraphs, for the avoidance of redundancy. The fifth and sixth paragraphs from 1991 may be felt to have served their purpose. It is suggested that they need not be repeated in 1996 and, instead, could be elided with the second paragraph as has been done below. Suggested language for the Final Declaration
33. It is suggested that the first and third paragraphs of the 1991 text might with advantage be conflated to read:
The Conference reaffirms the importance of Article VIII and of 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, which by prohibiting the use of bacteriological methods of warfare forms an essential complement to the Convention.
34. Likewise the second, fifth and sixth paragraphs of the 1991 text might be combined to read: The Conference reaffirms that nothing contained in the Convention shall be interpreted as in any way limiting or detracting from the obligations assumed by any State under the Geneva Protocol of 1925. Recalling the actions in support of the Protocol taken by the Security Council and General Assembly of the United Nations, and the solemn reaffirmation of the prohibition as established in the Protocol, issued by the Conference of States Parties to the 1925 Geneva Protocol and other Interested States held in Paris from 7 to 11 January 1989, the Conference appeals to all States Parties to the Protocol to comply strictly with its provisions and those States which are not yet Parties to adhere to the Protocol without delay.
35. Then the fourth paragraph of the 1991 text relating to the withdrawal of reservations from the Geneva Protocol might be developed as follows:
The Conference, noting the importance of Article I which provides that never in any circumstances shall the objects of prohibition under the Convention be developed, produced, stockpiled, acquired or retained, and of Article VIII which upholds obligations assumed under the Protocol, declares its solemn conviction that any reservation of a purported right of retaliation, however conditional, envisaging the employment in warfare of any of the objects of prohibition enumerated in Article I, tends to undermine the authority of the Convention by calling into question the absolute character of the prohibitions contained in it and the permanent status of all the obligations assumed under it for an unlimited duration.
The Conference welcomes the action which several States Parties, having recognised the undesirability of an asymmetry of obligations arising from the maintenance in force of such reservations, have separately taken to resolve the problem as far as their own respective obligations are concerned, and expresses the hope that all States Parties at risk of a comparable asymmetry of obligations will take the necessary action to resolve the problem as soon as possible.
The Conference therefore appeals to all States Parties which maintain in force, directly or by succession, reservations to their adherence to the Protocol to declare such reservations null and void or non-applicable or disclaimed upon succession: or to withdraw them; or, as a first step, if they cannot withdraw them completely, at least to modify them so as to exclude from the scope of such reservations all methods of warfare employing the objects of prohibition enumerated in Article I of the Convention. The Conference appeals to States Parties taking such actions to inform the Depositories for the Convention of relevant notifications to the Depository for the Protocol, in order that the information may be circulated by the Depositories for the Convention for the mutual encouragement of all States Parties.
The Conference reiterates its solemn conviction that the maintenance in force of any purported right to employ in warfare, even in retaliation, any of the objects prohibited by the Convention is incompatible with the fundamental principle of the Convention that there should be an absolute and universal prohibition of the development, production, stockpiling, acquisition and retention of bacteriological (biological) and toxin weapons in any circumstances whatever, in order to exclude completely the possibility of their use.
1 United Nations, The Third Review Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Geneva, 9Ð27 September 1991, BWC/CONF.III/23, Geneva 1992. 2United Nations, The First Review Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Geneva, 3Ð21 March 1980, BWC/CONF.I/10, Geneva 1980. 3United Nations, The Second Review Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Geneva, 8Ð26 September 1986, BWC/CONF.II/13, Geneva 1986. 4The United Kingdom, in its 1968 initiative in the Eighteen Nation Disarmament Committee, had targeted BW use for prohibition in ENDC/231 (Working Paper on Microbiological Warfare) and ENDC/255/Rev. 1, the UK Draft Convention developed from it in 1969, had given pride of place to a prohibition on BW use, expressly in order to reinforce the 1925 Geneva Protocol, before proceeding to list the prohibitions on BW production and acquisition which survived 1971 and now form part of Article I of the Convention. 5Article I.1(b) of the 1993 Convention on the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC) reads: "Each State Party to this Convention undertakes never under any circumstances...to use chemical weapons." 6Nicholas Sims, Biological disarmament: Britain's new posture, New Scientist, 52, 18-20, 2 December 1971. 7An earlier treatment of this issue (up to 1985), with the first published draft language for an eventual Review Conference declaration on the subjects is in Nicholas A Sims, The Diplomacy of Biological Disarmament: Vicissitudes of a Treaty in Force, 1975-85, (London: Macmillan; New York: St. Martin's Press, 1988) pp. 273-287. 8Stockholm International Peace research Institute, World Armaments and Disarmament: SIPRI Yearbook 1973, Stockholm: Almqvist & Wiksell; New York: Humanities Press; London: Paul Elek; 1973, p 474. 9Nicholas A Sims, Commonwealth reservations to the 1925 Geneva protocol, 1930-1992: treaty constraints on chemical and biological warfare and the right of retaliation in kind, The Round Table: The Commonwealth Journal Of International Affairs, Issue no 324, pp 477-499, October 1992. 10Chile announced in the Conference on Disarmament on 4 September 1991 that it was introducing the necessary parliamentary procedures for withdrawing its reservation (CD/PV. 605, p 12) and Spain on 25 June 1991 that it was examining the possibility of withdrawal (CD/PV. 597, p 6). 11Statement made on 29 January 1992 by B N Yeltsin, the President of the Russian Federation, on Russia's policy in the field of arms limitation and reduction, issued as CD/1123, 31 January 1992. 12See Nicholas A Sims, The Diplomacy of Biological Disarmament: Vicissitudes of a Treaty in Force, 1975-85, (London: Macmillan; New York: St. Martin's Press, 1988) , pp 280-3, for a comparison of published lists and a survey of divergent international legal views on this aspect of the matter.