There are enclosed a Report by the Secretary of State and a Message by
the President for the resubmission to the Senate, for its advice and
consent to ratification, 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 June 17, 1925. This was requested
in your memorandum to the Secretary of August 5, 1970. The Protocol was
submitted to the Senate in 1926 but did not receive Senate approval and
was returned to the Executive in 1947.
The Report and Message recommend that the Senate advice and consent be
given with a reservation of the right to retaliate with chemical
weapons, but no such reservation is recommended with respect to
biological weapons. The Report indicates that the United States
considers the term “bacteriological methods of warfare” used in the
Protocol includes all biological methods of warfare and the use of
toxins however produced.
The Report and Message reflect the position, which had previously been
recommended by the Department to the White House, that the Senate be
informed of the Administration’s understanding that the United States
does not consider the Protocol to prohibit the use in war of
riot-control agents and chemical herbicides. It is not proposed that
this understanding either be included in the Senate resolution of advice
and consent or formally communicated to the parties to the Protocol.
The proposed submission to the Senate has been approved by the Arms
Control and Disarmament Agency and coordinated with the Department of
Defense.
Enclosure
Message From Secretary of State Rogers to President
Nixon
Washington, August 11, 1970
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The President:
I have the honor to submit to you, with the recommendation that it be
transmitted to the Senate for advice and consent to ratification,
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 June 17, 1925. The United States proposed the
Protocol in 1925 and submitted it to the Senate in 1926. Although
the Senate never voted on the question of ratifying the Protocol,
which was returned to the President in 1947, the United States has
always supported its principles and objectives and has pledged
itself internationally to observe these principles. At present there
are 85 parties to the Protocol, the most recent of which, Japan,
became a party on May 21, 1970. The United States is the only major
military power which is not a party.
Recent support of the principles and objectives of the Protocol was
given by the United States in 1966, 1968 and 1969 at the United
Nations. The United States has voted in the General Assembly for
resolutions which called for “strict observance by all States of the
principles and objectives of the Protocol” and invited “all States
to accede to” the Protocol.
The Protocol prohibits the use in war of asphyxiating, poisonous or
other gases, and of all analogous liquids, materials or devices and
bacteriological methods of warfare. The Protocol is the basic
international agreement in this field, and its principles have been
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observed in almost
all armed conflicts since 1925 by parties and non-parties alike.
While the Protocol itself speaks in terms of flat prohibitions on the
use of chemical and bacteriological agents in war, thirty-nine
States (including France, the Union of Soviet Socialist Republics,
and the United Kingdom) have ratified or acceded with reservations.
The reservations of most of the reserving states assert that the
Protocol is binding on them only with respect to other parties to
the Protocol and limit the prohibitions to no first use.
It is proposed that the Senate give its advice and consent to
ratification subject to a reservation as follows:
“That the said Protocol shall cease to be
binding on the Government of the United States with respect to
the use in war of asphyxiating, poisonous or other gases, and of
all analogous liquids, materials or devices, in regard to an
enemy State if such State or any of its allies fails to respect
the prohibitions laid down in the Protocol.”
This reservation would permit the retaliatory use by the United
States of chemical weapons and agents, but would not limit in any
way the Protocol’s prohibition with respect to biological
weapons.
Ratification of the Protocol as qualified by the proposed reservation
would put the United States in the following position:
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- - unlike France, the Union of Soviet Socialist Republics, the
United Kingdom, and most other reserving States, the United
States would not assert by reservation a limitation of its
obligations under the Protocol to the Parties thereto.
- - like France, the Union of Soviet Socialist Republics, the
United Kingdom, and other reserving States, the United States
would reserve the right to use the prohibited chemical agents in
retaliation against any enemy State if such State or any of its
allies fails to respect the prohibitions laid down in the
Protocol.
- - unlike France, the Union of Soviet Socialist Republics, the
United Kingdom, and all but one other reserving State, the
United States would not assert by reservation the right to use
bacteriological agents in retaliation.
It is the United States interpretation of the Protocol that it does
not prohibit the use in war of riot-control agents and chemical
herbicides. Smoke, flame, and napalm are also not covered by the
Protocol.
The United States considers that the term “bacteriological methods of
warfare” as used in the Protocol encompasses all biological methods
of warfare and the use of toxins however produced.
[Page 6]
The subject of arms control as it relates to chemical warfare and
biological warfare is of continuing and increasing importance in the
international field. At the 1969 summer session of the Conference of
the Committee on Disarmament, the United Kingdom presented a draft
convention establishing a comprehensive ban on the development,
production, stockpiling, and use of biological methods of warfare.
In accordance with your announcement of November 25, 1969 that the
United States would associate itself with the principles and
objectives of that draft convention, we have taken an active role in
its negotiation. Other proposals on the subject of chemical and
biological warfare have also been introduced in the United Nations
General Assembly and the Conference of the Committee on Disarmament
by other Governments.
Members of the Conference of the Committee on Disarmament have
indicated the need for universal adherence to the Protocol as a
condition Precedent to agreement on more comprehensive measures.
The United States should become a party to the Protocol to strengthen
the general prohibitions on the use of chemical warfare and
biological warfare and to facilitate our participation in the
formulation of new arms control provisions in this area.
Respectfully submitted,
