United States. Most of the discussion in the Senate debate on the treaty related to submarine warfare and the question whether chemical weapons were more or less humane than other weapons. 18 The only discussion concerning the nature of the prohibition laid down in Article 5 consisted of the following exchange between Senator James Wadsworth, Jr. and Senator Henry Cabot Lodge:

Mr. Wadsworth: . . . I think article 5 is drawn somewhat carelessly. . . . The phrase "other gases" is all inclusive. It reads: "asphyxiating, poisonous, or other gases."

Mr. Lodge: To be used in war.

Mr. Wadsworth: Yes; but there are gases used in war other than asphyxiating or poisonous gases.

Mr. Townsend: What for?

Mr. Wadsworth: For balloons, such as helium gas, and hydrogen. A strict construction would seem to prevent the use of any gas in war. Undoubtedly that is not meant...

It would seem in the French text that the word "similaires" ties the matter up, but in the English text the equivalent of "similaires" is not used. That, however, is a point of comparatively small importance. 15

19

As his remarks indicate, Senator Wadsworth was concerned lest the language of Article 5 be construed to apply not only to the use of gas as a weapon, but to any use of gas in war whatsoever. But neither he nor any other Senator inquired whether Article 5 prohibited the use of tear gas or any other irritant chemical. This is particularly noteworthy because the documents of the conference at which the treaty was drafted, and which were before the Senate,20 indicate that this question had been considered but had not been unequivocally resolved.21

The proposal to include in the Treaty of Washington a provision relating to chemical warfare came from the United States delegation, which was led by Secretary of State Charles Evans Hughes and included Senator Elihu Root. The deliberation on this agenda item took place in the Committee on Limitation of Armaments, which was chaired by Secretary Hughes. He introduced the discussion of this subject by reading a number of reports relating to chemical warfare. The

• 6

first was prepared by the Committee's own technical subcommittee. This report noted, among other things, that "the kinds of gases and their effects on human beings can not be taken as a basis for limitation. . . . [T]hat the only limitation practicable is to wholly prohibit the use of gases against cities and other large bodies of noncombatants. . . but that there could be no limitation on their use against the armed forces of the enemy, ashore or afloat."22 The second report, prepared by the Advisory Committee of the United States delegation, proposed that "chemical warfare, including the use of gases, whether toxic or nontoxic, should be prohibited by international agreement." "23 The next document to be presented by Mr. Hughes was a memorandum by the General Board of the Navy. It asserted that the use of gas was "almost universally condemned" if it violated "the two principles in warfare, (1) that unnecessary suffering in the destruction of combatants should be avoided, [and] (2) that innocent noncombatants should not be destroyed." The Navy emphasized the following considerations:

24

Certain gases, for example tear gas, could be used without violating the two principles above cited. Other gases will, no doubt, be invented which could be so employed; but there will be great difficulty in a clear definite demarcation between the lethal gases and those which produce unnecessary suffering as distinguished from those gases which simply disable temporarily.

The report accordingly closed with the declaration that "the General Board believes it to be sound policy to prohibit gas warfare in every form and against every objective, and so recommends."25

Having presented these reports to the Committee, Mr. Hughes made the following statement:

[D]espite the conclusions reached by the subcommittee of this committee... the American delegation, in the light of the advice of its advisory committee and the concurrence in that advice of General Pershing... and of the specific recommendation of the General Board of the Navy, felt that it should present the recommendation that the use of asphyxiating or poison gas be absolutely prohibited. 26

The resolution containing the text of what was to become Article 5 was introduced by Senator Root:

Mr. Root said that the chairman27 had asked him to prepare this resolution, pursuant to the recommendation of those military and naval authorities and advisory committees to which the American delegation was bound to pay the highest respect. There was an expression on this subject which presented the most extraordinary consensus of opinion that one could well find upon any international subject. He had drafted the resolution... in the language of the Treaty of Versailles which was subscribed to by the four of the five powers here and was appropriated and taken over by the United States and Germany in the treaty concluded between them on the 25th of August [1921]....28

The resolution presented by Senator Root was adopted unanimously29 and, although it sparked some general discussion, no attempt was made to explore the intended scope of the prohibition formulated in Article 5.

Legally the most significant aspect of the history of Article 5 of the Treaty of Washington is that not one of the delegations present made any attempt to exclude irritant chemicals from the prohibition of this clause. The legal significance of this omission derives from two interrelated facts: First, the reports Secretary Hughes presented to the Conference addressed themselves specifically to these weapons. Second, two of the three reports recommended a prohibition of all chemical weapons. The United States delegation relied expressly on these reports and specifically rejected, as too limited in scope, the recommendations of the technical subcommittee. It is therefore most unlikely that a government which believed that Article 5 did not outlaw all forms of chemical warfare would have failed to state its views to the Conference.3

30

(c) The Geneva Protocol. The Geneva Protocol was drafted at the Conference for the Supervision of the International Trade in Arms and Ammunition and in Implements of War, which was convened to consider the adoption of a comprehensive treaty relating to the international arms trade.31 Noting that the draft treaty before the Conference did not contain a prohibition against the export of chemical weapons, 32 the United States delegation submitted two alternative texts deal

ing with this subject.33 The first of these, after proclaiming that "the use in war of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilized world," would have bound the Contracting Parties "to prohibit the export from their territory of any such asphyxiating, poisonous or other gases and all analogous liquids, intended or designed for use in connection with operations of war." The other text provided that the Contracting Parties would "agree to control the traffic in poisonous gases by prohibiting the exportation of all asphyxiating, toxic or deleterious gases, and all analogous liquids, materials and devices manufactured and intended for use in warfare." When serious doubts were expressed at the Conference regarding the practicability of controlling the exportation of these chemicals since they had many peaceful industrial uses, the United States proposed a separate instrument embodying the provisions of Article 5 of the Treaty of Washington.35 This proposal was adopted36 and explains why the chemical warfare prohibition of the Geneva Protocol came to be drafted in the language of Article 5.

34

No attempt was made at the Geneva Conference to discuss the scope of this prohibition and no reference to tear gas or other irritant chemicals appears in the records of the Conference. The only evidence pointing to an intention to exclude such agents is the statement of the United States delegate (Congressman Theodore E. Burton), who, in urging the adoption of a prohibition on the export of chemical weapons, expressed "the very earnest desire of the Government and people of the United States that some provision be inserted in this Convention relating to the use of asphyxiating, poisonous, and deleterious gases" and emphasized that a "prohibition of the exportation of these gases" would receive the "express approval" of President Calvin Coolidge." No significance was attached to this statement in the Senate when it debated the advisability of ratification of the Protocol.38 As a matter of fact, one of the arguments that was advanced in the Senate against the ratification of the Geneva Protocol was that it would prohibit the use in war of tear gases, even though they were harmless and had been adopted by "every intelligent

police force in the United States." And while the floor manager of the treaty did not fail to emphasize immediately that the Geneva Protocol did not apply to the use of tear gas by the police, he apparently believed that it outlawed the use of this gas in an international conflict.39

2. Post-1925 practice relating to the Geneva Protocol.

40

(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....41

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