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Thursday, 22 May 1980
Page: 3198

Mr Holding asked the Minister for Foreign Affairs, upon notice, on 19 February 1980:

(   1) Was Australia a signatory to the Geneva Protocol of 17 June 1925, (an international treaty for the restriction of chemical and biological warfare) at (a) 17 June 1925, (b) any time between 1 January 1959 and 31 December 1972 and (c) 3 1 December 1979.

(2)   Is he able to state whether any legal opinions have been argued in international law that the Geneva Protocol is an accepted part of international law and therefore binding on all states; if so, will he cite the appropriate references.

(3)   Did the Australian Government make any protest to the United States of America Government at any time between 1960 and 1972 about the use of chemical and biological warfare in Vietnam.

(4)   If so, did the protest specifically refer to (a) 24D, (b) 245T, (c) cacodylic or dimethylarsenic acid, (d) picloram (e) arsenic trioxide, (0 various arsenates (lead, etc.) and arsenites, (g) calcium cyanamide, (h) sodium cyanide and other cyanides, (i) DNP, (j) 6,4 dinitro orthocresol, (k) maleic hydrazide, (1) malathion, (m) CMU, (n) DDT, (o) pas.turella pestis (plague) and (p) irritant gases.

(5)   Is Australia currently, or has Australia at any time been, a signatory to the 1945 Nuremberg Chaner denning war crimes and responsibilities.

(6)   If so, has the Australian Government sought and received any legal opinion on the applicability of any pan of that Charter to the use of chemical and biological weapons against any opposing military forces or any civilian populations affected by war at any time since the inception of that Charter.

(7)   When, and by whom, was the opinion sought and received and what was the substance of the opinion.

(8)   Has the United Nations adopted any resolutions, at any time since 1946, which are designed to control or limit the use of chemical and biological weapons in time of war; if so, (a) what are the terms of those resolutions, (b) when were they adopted, (c) what was the vote on each occasion and (d) what UN member-nations (i) abstained from voting and (ii) voted against those resolutions on each occasion.

(9)   Is Australia still a signatory to the quadripartite agreement made in 1964 between Great Britain, the USA, Canada and Australia (known at the Technical Cooperation Program and/or the Basic Standardisation Agreement) for the purposes of research and development of chemical and biological weapons.

(10)   Which Minister or Ministers of the then Australian Government were signatories to that quadripartite agreement, or if delegation of that power was made to the Public Service on behalf of the Australian Government, what were the names of the signatories, what were their designations and salaries and which Department did they represent.

(11)   What was the date on which that agreement was signed and where was it signed.

(12)   Is Australia a signatory to any other international agreements covering research and development of chemical and biological weapons; if so, when were those agreements made and who were the other parties to those agreements.

(13)   Does the Government intend to make a stand on the use of chemical and biological weapons.

(14)   In respect of all international treaties, conventions and agreements governing conduct in war to which Australia is a party what reservations has Australia placed on acceptance of the terms of those treaties.

Mr Peacock - The answer to the honourable member's question is as follows:

(1)   (a), (b) and (c) Australia was not one of the thirtyeight countries which signed the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (known as the Geneva Protocol) on 17 June 1925. Australia deposited an instrument of accession to the Protocol on 22 January 1930 with the Government of France, which on 24 May 1930 notified other states of Australian accession. Australian accession took effect from 24 May 1930.

(2)   The most recent occasion on which the status of the Geneva Protocol in international law has been argued in an international forum was during the debate on the UN General Assembly resolution 2603A(XXIV) (see answer to 8 below) the preamble of which reads in part 'Recognising therefore . . . that the Geneva Protocol embodies the generally recognised rules of international law prohibiting the use in international armed conflcts of all biological and chemical methods of warfare'. It remains a matter of considerable contention whether or not it is binding on all states (a vote on this preambular paragraph was carried in the First Committee by only 57 votes to 10, with 24 abstentions). The same preamble calls for 'an affirmation of these rules and for dispelling, for the future, any uncertainty as to their scope and, by such affirmation, to assure the effectiveness of the rules and to enable all states to demonstrate their determination to comply with them.' An account of the consideration of this issue is given in the Yearbook of the UN for 1969 on pages 27 and 28.

(3)   and (4) No.

(5)   The Nuremberg Charter, whose full title is the Agreement for the Persecution and Punishment of War Criminals of the European Axis and Charter of the International Military Tribunal, had four signatory Governments, France, the USSR, the United Kingdom and the United States. The four signatory Governments signed the Agreement in London on 8 August 1945. Australia notified the Government of the United Kingdom of its adherence to the Agreement on 5 October 1945. The Agreement is still in force.

(6)   and (7) No. Although there have been debates about the nature and effects of the Charter (including on the extent to which it, and the pronouncements of the International Military Tribunal, reflected or created international law) Austrafia shares the view of those who believe the Charter was created for a specific purpose and that its purpose having been satisfied it has none but a persuasive force. The use of chemical and biological weapons, as weapons in combat (as opposed to the quite separate issue of the use of poison for genocide), was not considered by the International Military Tribunal.

(8)   The United Nations every year adopts a resolution on chemical and biological weapons. The terms of these resolutions vary, but generally they refer to earlier resolutions and urge the necessity of negotiations on an agreement for a complete ban. Such resolutions could not be described as designed to control or limit the use of chemical and biological weapons in time of war. The one which might be so described is resolution 2603A(XXIV) (see 2 above), adopted on 16 December 1969 by 80 votes to 3 with 36 abstentions. It was a contentious resolution and Australia, which voted against (with the United States and Portugal), took the position that it formulated an interpretation of the 1925 Geneva Protocol not shared by all parties to it and that it was for those parties, not the General Assembly, to interpret its scope and application. Australia at that time voted instead for resolution 2603B(XXIV) adopted by 120 to 0 with 1 abstention- this resolution, without commenting on the international legal status or scope of the Geneva Protocol, nevertheless called for its strict observance and requested the Conference of the Committee on Disarmament to give urgent consideration to all aspects of the problem of the elimination of chemical and biological weapons. Resolution 26038(XXIV) has been referred to in all annual resolutions since 1969 while Resolution 2603A(XXIV) has not. Since 1 969 no negative vote has been registered against these resolutions and since 1974 the resolutions have been adopted by consensus.

The United Nations adopted six resolutions on chemical and biological weapons between 1969 and 1974. These, with voting results, were as follows:


Apart from two of the 1971 resolutions, these were standard resolutions urging progress on prohibitions of chemical and biological weapons. In 197 1, Resolution 2826, prepared by the USA and USSR, commended to governments for signature the Biological Weapons Convention (see answer to (12) below). Resolution 2827A in the same year was a standard resolution asking the Conference of the Committee on Disarmament to continue negotiations on a chemical weapons agreement as a priority item. Mexico, which had argued that chemical weapons and biological weapons should be dealt with in the one convention tabled first a working paper and then a draft resolution which was subsequently adopted as Resolution 2827B. The text of this resolution (mention of which, unlike Resolution 2827A, has not been re-iterated in successive annual resolutions) is as follows:

The General Assembly,

Noting that the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons contains an undertaking to continue negotiations in good faith with a view to reaching early agreement on effective measures for the prohibition of the development, production and stockpiling of chemical weapons and for their destruction,

Believing that it is most desirable that some measures of a preliminary nature be adopted immediately,

Urges all States to undertake, pending agreement on the complete prohibition of the development, production and stockpiling of chemical weapons and their destruction, to refrain from any further development, production or stockpiling of those chemical agents for weapons purposes which because of their degree of toxicity have the highest lethal effects and are not usable for peaceful purposes. (9), ( 10) and (11) The Technical Co-operation Program and the Basic Standardisation Agreement are two separate agreements.

An account of Australian involvement in the Technical Co-operation Program was given in the Senate by the then Minister for Supply on 28 November 1968 in answer to a question on notice. The Program's aims are essentially unaltered today and provide for the exchange of information over a wide spectrum of non-nuclear military research and development activities in which each country is free to participate selectively. Among many chosen for Australian participation are chemical and biological defence. The Basic Standardisation Agreement, to which the Australian Army is still a signatory, also has as one of its areas of endeavour the task of considering standardisation potential between armies in the field of defence against biological and chemical weapons.

On 21 July 1965 Australia was formally invited by the United States to join in the (then) Tripartite Technical Cooperation Program. No formal Agreement as such exists, the Program being based on a statement of policies, organisation and procedures. Acceptance was approved by Senator the Hon. Sir Shane Paltridge, Minister for Defence. It was conveyed to the United States Embassy on 27 August 1965. With Ministerial concurrence the Chief of the General Staff, Lieutenant General R. G. Pollard, formally accepted the invitation to join the Basic Standardisation Agreement on 18 January 1 963. The Agreement was signed by Colonel E. J. H. Howard, Australian Army Representative, Washington.

(12)   Australia is a party to the Convention on the Prohibition of the Development, Production of Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction which opened for signature at London, Moscow and Washington on 10 April 1972 and entered into force on 26 March 1 975. Australia signed the convention on 10 April 1 972 and ratified it on 5 October 1977. The other States Parties to the Convention are as follows: Afghanistan, Argentina, Austria, Barbados, Belgium, Bolivia, Brazil, Bulgaria, Byelorussian SSR, Canada, Cape Verde Is., Cuba, Cyprus, Czechoslovakia, Dahomey, Denmark, Dominican Republic, Ecuador, Ethiopia, Fiji, Finland, German DR, Ghana, Greece, Congo, Guatemala, Guinea-Bissau, Honduras, Iceland, India, Iran, Ireland, Italy, Jamaica, Jordan, Kenya, Kuwait, Laos, Lebanon, Lesotho, Luxembourg, Malta, Mauritius, Mexico, Mongolia, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Pakistan, Philippines, Poland, Portugal, Qatar, Romania, Rwanda, San Marino, Senegal, Sierra Leone, Singapore, South Africa, Spain, Sweden, Switzerland, Seychelles, Thailand, Togo, Tonga, Tunisia, Turkey, Ukrainian SSR, Union of Soviet Socialist Republics, United Arab Emirates, United Kingdom, United States of America, Venezuela, Yemen PDR, Yugoslavia, Zaire.

(13)   Australia is taking a prominent role in efforts in the Committee on Disarmament to negotiate a complete prohibition on chemical weapons. It also participated actively in the conference convened in Geneva from 3-2 1 March 1980 to review the 1972 Biological Weapons Convention. In January 1979 I told the inaugural session of the Committee on Disarmament that the control of chemical weapons represented an aspect of conventional arms control where practical measures were immediately possible and that the question of a chemical warfare convention was an immediate task for the Committee. Since then the Committee has agreed to make the question one of its priorities for 1980. The Australian representative, Sir James Plimsoll, on 5 February outlined to the Committee how it might undertake useful, practical and detailed work this year while recognising the complex and difficult issues involved. The Australian delegation formally circulated a proposal for a chemical weapons workshop to involve experts in the subject and those negotiating a chemical weapons convention.

(14)   Australia has made reservations to the following international treaties, conventions and agreements governing conduct in wan

(a)   International Convention for adapting to Maritime Warfare the principles of the Geneva Convention of 22 August 1864, done at The Hague on 29 July 1899. The instrument of ratification was deposited by Great Britain on 4 September 1 900. The Convention applies to Australia. The instrument of ratification excluded Article X.

(b)   International Convention relative to the laying of Automatic Submarine Contact Mines, signed at The Hague on 18 October 1907. The instrument of ratification was deposited by Great Britain 27 November 1909. The Convention applies to Australia with the reservation of the following declaration: 'In affixing their signatures to the above convention, the British Plenipotentiaries declare that the mere fact that this Convention does not prohibit a particular act or proceeding must not be held to debar his Britannic Majesty's Government from contesting its legitimacy '.

(c)   International Convention respecting Bombardments by Naval Forces in Time of War, signed at The Hague on 1 8 October 1 907. The instrument of ratification was deposited by Great Britain, 27 November 1909. The Convention applies to Australia, under reservation of paragraph 2 Article 1 (Art 1 para 2 'A place may not be bombarded solely on the ground that automatic submarine contact mines are anchored off the harbour').

(d)   Protocol for the Prohibition of the Use of War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17June 1925. The Protocol was acceded by Australia on 22 January 1930. Australia's accession is subject to the reservation that 'His Majesty is bound by the said Protocol only towards those Powers and States which have both signed and ratified the Protocol or have acceded thereto, and that His Majesty shall cease to be bound by the Protocol towards any Power at enmity with Him whose armed forces, or the armed forces of whose allies, do not respect the Protocol '.

(e)   Geneva Convention relative to the Protection of Civilian Persons in time of War of August 12, 1949. The instrument of ratification was deposited by Australia on 14 October 1958. It was ratified subject to the following reservation and declaration. 'In ratifying the Convention, the Government of the Commonwealth of Australia reserves the right to impose the death penalty in accordance with the provisions of paragraph 2 of Article 68 of the said Convention without regard to whether the offences referred to therein are punishable by death under law of the occupied territory at the time the occupation begins, and declared that it interprets the term "military installations" in paragraph 2 of Article 68 of the said convention as meaning installations having an essential military interest for an occupying Power'.

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