"The Versailles Treaty of 1919 referred to 'use of asphyxiating, poisonous or other gases . . being prohibited. . .'. The then-existing prohibitions were the 1899 Hague Gas Declaration, which referred to 'asphyxiating or deleterious gases,' and the 1907 Hague Regulations on 'poison or poisoned weapons' and material which caused unnecessary suffering.' Legal and scientific authority is divided on whether the 1899 Declaration prohibited riot control agents.

"No recognized legal authority takes the view that the 1907 regulations prohibited RCA's. The rapporteur at the Versailles Conference analyzed the Versailles Treaty provisions as a ban on 'poison gas'. Thus, the Versailles Treaty appears not to have prohibited the manufacture and importation of RCA's in Germany.

"The 1922 Washington Treaty, which never entered into force, used the Versailles Treaty language, as suggested by the U.S. This formulation was interpreted by its sponsors as a ban on poison gas which did not go beyond the Hague Regulations and the Versailles Treaty. At the 1925 Geneva Conference, the Protocol was drafted in terms identical to the prohibitions on gas warfare in the Versailles and Washington treaties. There is no record that RCA's were discussed. Later, in 1930, an attempt was made to obtain a uniform interpretation on whether the term 'other gases' prohibited the use in war of 'lachrymatory gases,' i.e., tear agents (which were used as domestic RCA's). Twelve of the twenty-seven states agreed that these were covered by the Protocol. The U.S. expressed serious reservations on this position; the remaining fourteen were silent. In 1931 the Preparatory Commission for the Disarmament Conference reported that it was unable to express a definite opinion on the issue and recognized that it remained open. Since then, several states have said the Protocol does not cover RCA's. The U.S. reaffirmed this view at the U.N. General Assembly sessions in 1966 and 1968. Moreover, the use of these agents in war by parties to the Protocol and others is evidence that their use is not considered prohibited. Thus, the issue remains a source of disagreement.

"The U.N. General Assembly should not seek to resolve this disagreement after relatively brief consideration and without opportunity for expert study of the legal and technical aspects by adopting a Resolution over the opposition of a significant group of member states, including parties to the Protocol and one or more major powers. Approximately 40 members of the General Assembly are not parties to the Protocol, and important parties are not U.N. members. "Article 13 of the U.N. Charter provides that the General Assembly 'shall initiate studies and make recommendations for the purpose of . . . encouraging the development of international law and its codification.' But the General Assembly has not sought to 'legislate' by declaring principles of international law not generally accepted by member states. Instead, the General Assembly has promoted development and codification of international law through drafting conventions subject to voluntary adherence by member states. Politically important disarmament conventions, which require widespread adherence to be effective, have been carefully prepared in UN-related bodies which generally operate on the basis of the widest possible agreement. General Assembly special committees established to elaborate the legal concepts of the Charter also have generally functioned by consensus. In a very few cases, the UN General Assembly has adopted Resolutions expressly affirming or declaring general principles of international law by unanimity or without significant opposition. For example, Resolution 95 (1946), affirming the Nuremberg principles, and Resolution 1962 (1963), on legal principles regarding activities of states in outer space, were adopted unanimously."

The embassies were instructed to stress in particular that it would be a serious mistake for the U.N. General Assembly, as a political and not a legislative body, to abandon this sound approach to the development of international law by purporting to resolve long-standing disputed issues of international law concerning a politically important treaty in a manner opposed by a significant group of member states including parties to the treaty and one or more major powers.

POSITIONS OF COUNTRIES ABSTAINING FROM 1969 GENERAL

ASSEMBLY VOTE

The CHAIRMAN. Is it not true that very often allied countries who cannot vote with us simply abstain? Is that not a general practice? Secretary ROGERS. Yes, that happens quite often.

The CHAIRMAN. How many of those nations which abstained on the United Nations vote took the position that tear gas and herbicides are prohibited by the protocol?

Do you know that?

Secretary ROGERS. I do not believe we know that, Mr. Chairman. The CHAIRMAN. They never explained to us?

Secretary ROGERS. No.

The CHAIRMAN. And none of them have ever evidenced or stated they agree with our position? Do you know that?

Secretary ROGERS. No; I think there are some who disagree, but I am not sure we have any statement or agreement or disagreement from most of them.

We know, for example, France disagrees with our position and they abstained. So that was one nation we know disagreed with our position. Some may have abstained because of the procedural question that you have referred to and some may have abstained because they agree with us.

The CHAIRMAN. It would be interesting, I think, and pertinent if you could supply for the record the position of these countries who did abstain, whether they did it on the ground of a disagreement on the merits or whether simply that it was not the proper forum.

Would that be asking too much?

Secretary ROGERS. No; it would not be asking too much if we had the record. I would not want to go back to those governments and try to find out the reason for their vote. I think they would resent it. But we will try to find out if they had any stated position and, if so, make it known to the committee.

(The information referred to follows:)

POSITIONS OF COUNTRIES ABSTAINING ON 1969 GENERAL ASSEMBLY VOTE, STATEMENT BY DEPARTMENT OF STATE

United Nations records indicate that representatives of seventeen of the thirty-six governments which abstained on the 1969 United Nations General Assembly vote on Resolution 2603A (XXIV) made statements in the First Committee setting forth their views on that Resolution specifically. The following excerpts contain the essence of the positions stated by those delegations in the First Committee. There were no statements on the Resolution in the plenary session of the General Assembly.

We feel

AUSTRIA

that it would somehow be difficult for the Austrian delegation to go along with the proceedings as suggested in the draft resolution before us. Firstly, we have doubts on legal grounds as to extensive interpretations through resolutions by the General Assembly of existing legal instruments; and, secondly, we believe that the most effective way to achieve our common objective would be to proceed in two stages. In the first place, it seems to us imperative to obtain universal acceptance of the 1925 Geneva Protocol.

As we said in our statement in the general debate, we see encouraging indications in that respect and recall in particular, the statement made by the President of the United States on 25 November. We believe, therefore, that at this time we should do everything to encourage all countries which have not yet ratified the Geneva Protocol to do so, and we should refrain from any action which would make it more difficult for any of these countries to accede to the Geneva Protocol as soon as possible.

In our opinion the Geneva Protocol is an essential first step; additional and stronger agreements ensuring the elimination of all chemical and bacteriological weapons, will, we hope, be elaborated in the near future. Our policy in this matter is reflected in my statement of 1 December where I expressed the

hope that the Conference of the Committee on Disarmament will succeed in elaborating and submitting to the twenty-fifth General Assembly a draft convention on total elimination of all chemical and bacteriological (biological) weapons.

BELGIUM

In the document the General Assembly is invited to proceed to authorize certain interpretations of the Geneva Protocol of 1925. In the light of the constant nature of international law, we feel that the interpretation of a multilateral treaty concluded between States-such as the Geneva Protocol of 1925-falls solely within the competence of the States parties to that instrument.

CANADA

While I am speaking, I should like to comment briefly on the other texts to which the Chairman referred. With respect to the draft resolution as I understand it, the essence of that draft is, in our view, an endeavour to (a) lay down an authoritative interpretation of the Geneva Protocol of 1925, and (b) purport to declare that this interpretation is a generally recognized rule of international law. We realize, of course, that the question of interpretation owes its origin to ambiquity in the Geneva Protocol of 1925 as well as in the treaties and conventions regulating chemical and bacteriological (biological) warfare. We recognize and appreciate the endeavours of Sweden and other delegations to take positive steps to strengthen the Protocol, but we are concerned whether the procedure they have adopted is an appropriate one under international law. The question now before the Committee seems to us to be whether the United Nations General Assembly should attempt to legislate an interpretation of the Geneva Protocol as proposed in the draft resolution contained in document A/C.1/L.489. The United Nations declarations, such as the Outer Space Declaration, intended to be authoritative statements of norms of customary international law, should surely be adopted only by consensus. Otherwise opposition, particularly on the part of any party, throws doubt on the validity of the Declaration and calls into question its applicability to the international agreement in question.

Where a doubt exists, as it does in this case, surely the course of prudence is to develop a consensus, through negotiation, building upon the firm foundation of the Geneva Protocol. The United States of America has announced its intention to seek adherence and other major Powers are either already parties or hopefully will soon become so. It would, in our view, be an undesirable complication to seek to interpret the Protocol, to which the widest possible adherence is being sought, at the very moment when a major Power known not to agree with that interpretation has expressed its intention to ratify the Geneva Protocol. I should add that another major Power that has adhered to the Protocol has not made known its attitude on the question of the interpretation proposed, and because it is not at present a member of the United Nations, has no opportunity to influence the Declaration in the draft resolution.

We have difficulty on other points of law involved in that draft resolution. At the time of its ratification of the Geneva Protocol, Canada attached two reservations. The first Canadian reservation stated that the Protocol was binding only as a first-use prohibition among parties, and the second reservation stated that for Canada the prohibition set out in the Protocol applied only as between parties. Similar reservations were made by many other parties to the Protocol. The wording of the draft resolution before us is such that, in effect, it would declare the reservations made by parties to the Protocol as being of no effect under international law. It is our view that changes in or nullification of reservations should not be attempted through a General Assembly resolution, but should be a matter of negotiation and decision for those parties to the instrument that have recorded reservations. The United Nations has demonstrated remarkable codification ability in recent years, and these highly sophisticated techniques should not, in our view, be by-passed in a matter of this importance.

CHINA

All the problems and doubts that may have arisen from the application of the Geneva Protocol can be carefully considered and, we hope, resolved in the form of a new convention or conventions by the Committee on Disarmament in the light of the experience gained from the forty-five years existence of the Geneva Protocol.

This fresh approach is, in the view of my delegation, preferable to any attempt on the part of the General Assembly to assume the role of a party to the Geneva Protocol and to give an interpretation to the Protocol with regard to its scope of application.

DENMARK

My delegation abstained in the vote on the resoltuion contained in document A/C.1/L.489 on legal grounds. We cannot accept the concept on which the resolution is based, namely, that there exist generally recognized rules of international law according to which the prohibition in the 1925 Geneva Protocol is total. Such a concept implies that there is a general, long-standing, well-established practice, as well as a legal conviction, that the resulting conduct manifested by action or inaction is legally binding, that is to say, there exists an opinio juris. Today's vote has proved that this is not the case. In the present situation, moreover, we consider it advisable to refrain from any action that might render it difficult for important nations to accede to the 1925 Geneva Protocol.

EL SALVADOR

Clearly, not all Members of the General Assembly nor all the parties to the Geneva Protocol agree on the scope of the conventional norms laid down by that instrument. Accordingly, the question arises whether a majority of Members of the United Nations or a majority of the parties to the Protocol are able and competent to give an interpretation that would be generally binding. If there were unanimity-I do not say of Members of the United Nations, but, rather, of the parties-it might be considered that an informal or abbreviated Convention had provided a generally binding interpretation of that Protocol; and if it were not a case of interpretation but rather of the amplification of its scope, then the unanimity of the parties would enable this modification to be made. The question to be decided here is not only whether the Geneva Protocol has one or another breadth of scope, but rather-and this is perhaps even more important-whether the General Assembly can make those types of declarations that are interpretative of treaties, treaties that have contracting parties signatory to them, who are the subject of law and obligations. That is the issue that we are to decide on today.

For this reason my delegation considers that if the prohibition already exists in the Geneva Protocol, and therefore this is merely an interpretation of the document, then the draft submitted to us would be unnecessary. If this interpretation does not exist, and if we are really trying to broaden the application of the Protocol, this then is not the appropriate way to do it. None of the provisions of the United Nations Charter endows the General Assembly with competence to interpret treaties. On the contrary, an organ of the United Nations, namely, the International Court of Justice, its legal organ, has that competence under Article 36 of its Statue.

The background that the draft resolution documents in order to justify its operative part, in my opinion, is inadequate. Interpretation is a technique that is subject to specific preliminary procedure for background that should be clearly established. In my delegation's opinion, this is not adequately dealt with in the draft.

Accordingly, my delegation considers that that portion of the preamble does not sufficiently justify the conclusions set forth in the operative part. I do not say that the proposed interpretation is incorrect, and so I am not attempting to deal with that point. What I am saying is that it is not dealt with in sufficient detail or handled in such a fashion as would justify the interpretation that is subsequently proposed. Actually, it is my understanding that the historic interpretation-from the debates of commissions, negotiations and the like-in this case is fundamental to any decision on the scope of the Protocol, and no reference is made to this factor in the draft resolution.

FRANCE

Concerning the draft resolution, the French delegation confirms that it is true that through Mr. Paul Boncour in Geneva in 1925, in connexion with the preparation of the Conference on Disarmament in 1932, France made it clear that the Protocol of 1925, in our view, was of a very general scope. That is still our position. However, we have constantly maintained that the text of 1925 left no doubts on that point. For that precise reason, we do not think it is up to the

General Assembly, as called for in the text of the draft resolution, to give an interpretation of an international convention. Now, while favouring in substance that draft resolution of the twelve countries, my delegation will have to abstain in the vote on it.

GREECE

Greece has signed and ratified the Geneva Protocol of 1925. The Geneva Protocol is an important international document and we do not consider it appropriate that it should be weakened in any way by interpretations in this forum. That is why, as representing a country signatory of the Geneva Protocol, and without disputing the humanitarian motives of the sponsors of this draft resolution, my delegation has considered it proper to abstain on the vote on draft resolution... on legal grounds.

ITALY

The Italian delegation has abstained on the resolution, not because we do not share the general purposes of that resolution, but because we believe that those purposes can best be attained by a more gradual and realistic approach, such as the one in the proposal which we submitted.

The result of the vote confirmed, in our view, that there is not that universal basis of agreement which would have been necessary in order to achieve the farreaching aims of that resolution.

At the same time, my delegation shares the reservations of a legal nature which have been so appropriately expressed by many other delegations, in particular concerning the competence of the General Assembly to establish what is international law.

JAPAN

My comment concerns the reference to the Geneva Protocol, which is contained in the operative paragraph of the draft resolution. It should be pointed out that it was not possible in the Preparatory Committee of the Disarmament Conference of 1931 to reach agreement on a unified interpretation concerning the scope of the prohibition of chemical agents, particularly with respect to tear gas, in the Geneva Protocol. Since then, no attempt has been made by the parties to the Protocol to establish a unified interpretation.

It should also be pointed out that the membership of the United Nations does not include all the parties to the Geneva Protocol. At the same time, the membership of the United Nations does include the States which are not contracting parties to the Protocol. It goes without saying that the interpretation of an international treaty should be finalized only by agreement of the parties to the treaty. Therefore, my delegation has considerable doubts as to the legal effects of such a declaration as envisaged by the draft resolution on the interpretation of the Geneva Protocol by the General Assembly.

NETHERLANDS

During the debate on the important resolution adopted at the 21st session of the General Assembly, my delegation admitted the existence of certain ambiguities in the Protocol. Consequently, we agree it is important to dispel, as soon as the circumstances permit, any uncertainty which might continue to exist with regard to the scope of the Protocol.

My Government has given serious consideration to the proper and most effective procedure which could be followed in this respect. Accordingly, my delegation suggested that in due course the Protocol could best be supplemented by an additional agreement or agreements reflecting the realities of the present and anticipating future developments. But first and foremost it remains imperative to maintain the most favourable conditions to encourage all States to become parties to the Protocol. It is encouraging that certain important States are now considering or actually taking steps to ratify or accede to the Geneva Protocol. My delegation shares the opinion of those delegations which have argued that it is not within the purview of the General Assembly to attempt and to interpret that such an international instrument and to declare that such an interpretation shall be regarded as a rule of international law. Such an undertaking would, in our opinion, and particularly under the present circumstances, be all the more hazardous since it might make it more difficult to obtain universal adherence to the Protocol.

It would appear that the draft declaration contains, with regard to the scope of the prohibitions embodied in the Geneva Protocol, pronouncements which are