and because he thought gas warfare was just as humane as other forms of warfare."

The language of this declaration was so limited that it had little if any effect on gas warfare during the First World War. In the first major poison gas attack of the War, at Ypres in 1915, the chlorine gas used by the Germans came from large cylinders, not the "projectiles" described in the declaration." The French used projectiles containing tear gas which they said was not an "asphyxiating or deleterious" gas within the meaning of the declaration." Similarly, a projectile used by Germany did not have "as its sole object" the diffusion of poison gas because, the Germans argued, it was also used for shrapnel." With these and other arguments, the existing limitations on poison gas were brushed aside in the First World War.

B. The 1919 Versailles Treaty

The treaty contained the following provision:

The use of asphyxiating, poisonous, or other gases and of analogous liquids, materials or devices being prohibited, their manufacture and importation are strictly forbidden in Germany.8

While the United States failed to give its consent to the ratification of the Versailles Treaty primarily because of its provisions establishing a League of Nations, the quoted language was incorporated by reference in the 1921 Treaty of Berlin between the United States and Germany.10 But the United States regarded it as only applicable to Germany.11 World War I treaties of peace

4 J.B. SCOTT, THE HAGUE PEACE ConFERENCES: AMERICAN INSTRUCTIONS AND REPORTS 36 (1916).

5 See E. CASTREN, THE PRESENT LAW OF WAR AND NEUTRALITY 195 (1954); M. GREENSPAN, THE MODERN LAW OF LAND WARFARE 360 (1959); J. SPAIGHT, AIR POWER AND WAR RIGHTS 189 (3rd ed. 1947). See also V. LEFEBURE, THE RIDDLE OF THE RHINE 33-34 (1921).

• Bernstein, The Law of Chemical Warfare, 10 GEO. WASH. L. REV. 889, 905-06 (1942).

7 E. CASTREN, supra note 5, at 195; Bernstein, supra note 6, at 907. This argument was not, however, the basic justification given by Germany for the use of gas. See Kelly, Gas Warfare in International Law, 9 MILITARY L. REV. 1, 39-40 (1960).

8 Treaty of Versailles, June 28, 1919, § 171, reprinted in 3 TREATIES, CONVENTIONS, INTERNATIONAL ACTS, PROTOCOLS AND AGREEMENTS 3331, 3402 (Redmond ed.); 2 A. TOYNBEE, MAJOR PEACE TREATIES OF MODERN HISTORY 1265, 1367 (1968).

9W.S. HOLT, TREATIES DEFEATED BY THE SENATE 249-307 (1933). 10 42 Stat. 1939, 1943 (1921) T.S. No. 658, at 14.

11 The United States' view is necessarily implied by the quotation from the Army Field Manual set forth at the beginning of this article. It is based upon the language of article 171 itself, and of the 1921 Treaty of Berlin which incorporated article 171 by reference for the benefit of the United States. See Kelly, supra note 7, at 24 & n.113.

58-743 O 72 6

applicable to Austria, Bulgaria, and Hungary contained similar provisions.12

C. The 1922 Washington Treaty on Submarines and

Noxious Gases

Drawing on the language of the peace treaties, the Washington Treaty stated:

The use in war of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, having been justly condemned by the general opinion of the civilized world and a prohibition of such use having been declared in treaties to which a majority of the civilized Powers are parties,

The Signatory Powers, to the end that this prohibition shall be universally accepted as a part of international law binding alike the conscience and practice of nations, declare their assent to such prohibition, and agree to be bound thereby between themselves and invite all other civilized nations to adhere thereto.13

This provision was based upon a United States proposal and was adopted at the urging of Secretary of State Hughes.14 Perhaps to help achieve later Senate consent, Senator Elihu Root was asked to represent the United States at the conference. In addition Secretary Hughes took pains to have an advisory committee of prominent citizens appointed by President Harding and attempted to mobilize popular opinion behind the treaty.15 As a result, the Senate gave its consent without a dissenting vote.16 French ratification was necessary, however, and the treaty failed because of French objections to its provisions on submarines.

D. The 1925 Geneva Protocol

This protocol added to the poison gas prohibition of the Washington Treaty a ban on bacteriological warfare. It provided in pertinent part:

12 See 5 H. TEMPERLY, A HISTORY OF THE PEACE CONFERENCE OF PARIS 209 (1920-24).

13 Treaty Relative to the Protection of the Lives of Neutrals and Noncombatants at Sea in Time of War and to Prevent the Use in War of Noxious Gases and Chemicals, February 6, 1922, § V, reprinted in 3 TREATIES, CONVENTIONS AND INTERNATIONAL ACTS, supra note 8, at 3116, 3118. 14 See text at note 116 infra.

15 See R. BUELL, THE WASHINGTON CONFERENCE 206 n.9 (1922); F.J. BROWN, CHEMICAL WARFARE, A STUDY IN RESTRAINTS 64 (1968). Among the members of the advisory committee were Samuel Gompers, Herbert Hoover (then Secretary of Commerce), John L. Lewis, General Pershing, Rear Admiral Rodgers, Franklin Roosevelt (then Assistant Secretary of the Navy), and J. Mayhew Wainright (Assistant Secretary of War). 16 62 CONG. REC. 4723-30 (1922).

Whereas the use of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilized world; and

Whereas the prohibition of such use has been declared in Treaties to which the majority of Powers of the world are Parties; and

To the end that this prohibition shall be universally accepted as part of International Law, binding alike the conscience and the practice of nations:

Declare:

That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration.17

The Geneva Protocol was adopted at the insistence of the United States.18 However, probably because of the ease with which the Washington Treaty had sailed through the Senate, Secretary of State Kellogg did not make the effort to gain support for the Geneva Protocol that Secretary Hughes had made earlier for the Washington Treaty.19 Although Congressman Burton was the head of the United States delegation, no Senator was included.20 No advisory committee was enlisted. The Army's Chemical Warfare Service was not prevented from mobilizing opposition to the protocol.21 It enlisted the American Legion, the Veterans of Foreign Wars, the American Chemical Society, and the chemical industry.22 Senator Wadsworth, Chairman of the Military Affairs Committee, led the Senate opponents of the protocol.28 He argued that it would be torn up in time of war, and that poison gas was in any event more humane than many other weapons. Senator Borah, Chairman of the Senate Foreign Relations Committee, finally withdrew the treaty from Senate consideration, presumably because he and the Senate majority leader had concluded that they did not have the votes.24

The protocol came into force, however, without the United States.

17 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925; 94 L.N.T.S. No. 2138, at 67 (1929).

21 For a history of the activities of the opponents and proponents of the protocol, see id. at 102-08.

22 Id.; see also 68 CONG. REC. 152-54 (1926).

28 See 68 CONG. REC. 144-46 (1926).

24 Id. at 368.

It now has over 60 adherents.25

All members of NATO except the United States, and all Warsaw Pact members, including the Soviet Union, are parties. Indeed, all European states except Albania have joined the protocol. Of the major industrial countries, only Japan and the United States have failed to become parties.

25 The following states have ratified or acceded to the Geneva Protocol on the dates set opposite their names according to the files of the Department of State: Australia, January 22, 1930; Austria, May 9, 1928; Belgium, December 4, 1928; Bulgaria, March 7, 1934; Canada, May 6, 1930; Ceylon, January 20, 1954; Chile, July 2, 1935; China, August 7, 1929; (On July 13, 1952, the People's Republic of China issued a statement recognizing as binding upon it the accession to the Protocol "in the name of China" on August 7, 1929.); Cuba, June 24, 1966; Cyprus, December 12, 1966; Czechoslovakia, August 16, 1938; Denmark, May 5, 1930; Estonia, August 28, 1931; Ethiopia, September 18, 1935; Finland, June 26, 1929; France, May 9, 1926; Gambia, November 16, 1966; Germany, April 25, 1929; (In 1959 Czechoslovakia transmitted to France, the depositary government, an instrument of adherence from the German Democratic Republic.); Ghana, May 3, 1967; Greece, May 30, 1931; Holy See (Vatican), October 18, 1966; Hungary, October 11, 1952; Iceland, November 2, 1967; India, April 9, 1930; Indonesia, October 31, 1930; Iran, July 4, 1929; Iraq, September 8, 1931; Ireland, August 18, 1930; Italy, April 3, 1928; Latvia, June 3, 1931; Liberia, April 2, 1927; Lithuania, June 15, 1933; Luxembourg, September 1, 1936; Madagascar, August 12, 1967; Maldive Islands, January 6, 1967; Mexico, March 15, 1932; Monaco, January 6, 1967; Netherlands, October 31, 1930; (Accession by the Netherlands included Surinam, the Netherlands Antilles, and the Netherlands Indies [Indonesia]. On December 27, 1949, sovereignty over Indonesia was transferred from the Netherlands to the Republic of Indonesia. The Agreement on Transitional Measures adopted by the Round Table Conference at The Hague on November 2, 1949, provides that treaties and other international agreements concluded by the Netherlands are in force for the Republic of Indonesia.); New Zealand, January 22, 1930; Niger, April 19, 1967; Norway, July 27, 1932; Pakistan, 1947; (Pakistan is a party by reason of paragraph 4 of the annex to the Indian Independence Act.); Paraguay, 1933; (In 1933 Paraguay sent to France a note of accession to the Protocol, but there is no record that France notified the other signatories of the accession.); Poland, February 4, 1929; Portugal, July 1, 1930; Rumania, August 23, 1929; Rwanda, June 25, 1964; Sierre Leone, March 20, 1967; Spain, August 22, 1929; Sweden, April 25, 1930; Switzerland, July 12, 1932; Tanzania, April 22, 1963; (Tanganyika acceded to the Protocol on April 22, 1963. In a note dated May 6, 1964, the United Republic of Tanganyika and Zanzibar informed the U.N. Secretary-General that all international agreements formerely in force between either country and other States would continue in force for the United Republic.); Thailand, June 6, 1931; Tunisia, July 12, 1967; Turkey, October 5, 1929; Uganda, May 24, 1965; Union of South Africa, January 22, 1930; United Kingdom, April 9, 1930; U.S.S.R., April 5, 1928; U.A.R., December 6, 1928; (All international agreements concluded with Egypt remain in force for the United Arab Republic.); Venezuela, February 8, 1928; Yugoslavia, April 12, 1929; (Yugoslavia is a party by virtue of the ratification in the name of the Kingdom of Serbs, Croats, and Slovenes on April 12, 1929. The Kingdom changed its official title to "Kingdom of Yugoslavia" in 1929 and in 1954 to the "Federal People's Republic of Yugoslavia."). The following countries have signed the Protocol but have not ratified it to date: United States, Brazil, El Salvador, Japan, Nicaragua, Uruguay.

Of the nuclear weapon powers, only the United States remains outside the protocol.

Many persons credit the protocol with a major role in preventing gas warfare in Europe during World War II.26 It symbolized

26 At the beginning of the war, Britain and France reaffirmed their "intent to abide by the terms of the Geneva Protocol . . . ." assuming Germany did the same. See F.J. BROWN, supra note 15, at 210. Britain apparently considered using gas should all other weapons fail to prevent invasion. Id. at 227-29. The protocol, and the revulsion against poison gas which it symbolized, constituted a restraint. But, in the opinion of Major Brown who has examined many of the British internal papers, the fear of German retaliation was the primary deterrent. Id. at 230.

In response to the British and French declaration of intention to abide by the Geneva Protocol, Germany stated it would "observe during the war the prohibitions which form the subject of the Geneva Protocol. . . ." Id. at 230-31. Germany also considered using poison gas. Major Brown concludes that the three factors which prevented German use of gas were fear of retaliation, the initial abhorrence of gas by key military and civilian decision makers, and a lack of readiness resulting in part from this abhorrence and in part from the ban on manufacture and importation of poison gas in the Versailles Treaty. Id. at 231, 235-45, 293.

In his summary of the restraints in effect on belligerents during World War II, Major Brown concludes that the legal restraints were "moderately effective, but in an unanticipated sense." Id. at 291-94. He believes that the interwar conferences and treaties served to focus renewed public and elite group attention on chemical warfare. This resulted even in military distaste for it, insufficient training and preparation to use it, and strong aversion towards it by high civilian and some military leaders.

[T]he primary value of the legal restraint rests in its tendency to reinforce other restraints. Treaty prohibition, though imperfect, reinforced both public and military dislike and fear of chemical warfare and provided a ready excuse for lack of substantive preparation. Id. at 293.

For views giving greater weight to the effect of the protocol in preventing poison gas wanfare in World War II, see, e.g., A. ENOCK, THIS WAR BUSINESS 95-96 (1951); O'Brien, Biological/Chemical Warfare and the International Law of War, 51 GEO. L.J. 1, 35-36 (1962). But see, e.g., Kelly, supra note 7, at 42 (public opinion and the fear of retaliation were the only effective restraints in World War II).

The official Soviet view is that the protocol greatly contributed to the nonuse of poison gas during World War II. See U.N.G.A. Statement of Soviet Representative Tsarapkin, United States Arms Control and Disarmament Agency, 1961 DOCUMENTS ON DISARMAMENT 577 [hereinafter cited as DocUMENTS ON DISARMAMENT with the appropriate year designated]. Soviet ENDC Representative Roshchin stated in 1968:

The Geneva Protocol set a legal barrier to the use of such [gas and bacteriological] means of mass destruction, and this was of great importance in the Second World War. The warning given by the Powers of the anti-Hitler coalition that the use of gases and bacteriological means of warfare was inadmissible and that a violator would not go unpunished had its effect on fascist Germany. In giving that warning the Powers of the anti-Hitler coalition based themselves on that important international agreement, The Geneva Protocol of 1925.

ENDC/PV. 389, at 25 (Aug. 13, 1968).

The official U.S. view puts considerable weight on the effect of the declaration threatening retaliation against any use of gas by enemies of the United States, a declaration which was made by President Roosevelt in