Статус Протокола о запрещении или ограничении применения зажигательного оружия (Протокол III) (Женева, 10 октября 1980 года) [рус., англ.]

[неофициальный перевод]

СТАТУС ПРОТОКОЛА

PROTOCOL ON PROHIBITIONS OR RESTRICTIONS ON THE USE OF INCENDIARY WEAPONS (PROTOCOL III)

Geneva, 10 October 1980

Entry in force: 02.12.1983

State parties (117) — State signatories (35)

<1> Ratification: a treaty is generally open for signature for a certain time following the conference which has adopted it. However, a signature is not binding on a State unless it has been endorsed by ratification. The time limits having elapsed, the Conventions and the Protocols are no longer open for signature. The States which have not signed them may at any time accede or, in the appropriate circumstances, succeed to them.

Accession: instead of signing and then ratifying a treaty, a State may become party to it by the single act called accession.

<2> Reservation / Declaration: unilateral statement, however phrased or named, made by a State when ratifying, acceding or succeeding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State (provided that such reservations are not incompatible with the object and purpose of the treaty).

Argentina

The Argentine Republic makes the express reservation that any references to the 1977 Protocols Additional to the Geneva Conventions of 1949 that are contained in the [said Convention and its Protocols I, II and III] shall be interpreted in the light of the interpretative declarations in the instrument of accession of the Argentine Republic to the aforementioned additional Protocols of 1977.

SOURCE: United Nations, C.N.359.TREATIES-5

Canada

«1. It is the understanding of the Government of Canada that: (a) The compliance of commanders and others responsible for planning, deciding upon, or executing attacks to which the Convention and its Protocols apply cannot be judged on the basis of information which subsequently comes to light but must be assessed on the basis of the information available to them at the time that such actions were taken; and (b) Where terms are not defined in the present Convention and its Protocols they shall, so far as is relevant, be construed in the same sens as terms contained in additional Protocol I to the Geneva Conventions of August 12, 1949. 2. With respect to Protocol I, it is the understanding of the Government of Canada that the use of plastics or similar materials for detonators or other weapons parts not designed to cause injury is not prohibited. 3. With respect to Protocol II, it is the understanding of the Government of Canada that: (a) Any obligation to record the location of remotely delivered mines pursuant to sub-paragraph 1 (a) of article 5 refers to the location of mine fields and not to the location of individual remotely delivered mines; (b) The term „pre-planned“, as used in sub-paragraph 1 (a) of article 7 means that the position of the minefield in question should have been determined in advance so that an accurate record of the location of the minefield, when laid, can be made; (c) The phrase „similar functions“ used in article 8, includes the concepts of „peace-making“, preventive peace-keeping and peace enforcement» as defined in an agenda for peace (United Nations document A/47/277 S/2411 of 17 June 1992). 4. With respect to Protocol III, it is the understanding of the Government of Canada that the expression «clearly separated» in paragraph 3 of article 2 includes both spatial separation or separation by means of an effective physical barrier between the military objective and the concentration of civilians.»

SOURCE: Multilateral Treaties deposited with the Secretary-General, Status as at 31 December 1994, United Nations, New York, pp. 912 and 913.

China

Statement made upon signature:

1. The Government of the People's Republic of China has decided to sign the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects adopted at the United Nations Conference held in Geneva on 10 October 1980.

2. The Government of the People's Republic of China deems that the basic spirit of the Convention reflects the reasonable demand and good intention of numerous countries and peoples of the world regarding prohibitions or restrictions on the use of certain conventional weapons which are excessively injurious or have indiscriminate effects. This basic spirit conforms to China's consistent position and serves the interest of opposing aggression and maintaining peace.

3. However, it should be pointed out that the Convention fails to provide for supervision or verification of any violation of its clauses, thus weakening its binding force. The Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices fails to lay down strict restriction on the use of such weapons by the aggressor on the territory of his victim and to provide adequately for the right of a state victim of an aggression to defend itself by all necessary means. The Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons does not stipulate restrictions on the use of such weapons against combat personnel. Furthermore, the Chinese texts of the Convention and Protocol are not accurate or satisfactory enough. It is the hope of the Chinese Government that these inadequacies can be remedied in due course.

SOURCE: Multilateral treaties deposited with the Secretary-General, New York, 1992, p. 854.

France

18 July 2002

Interpretative declarations [made upon consent to be bound by Protocol III]:

The French Republic accepts the provisions of article 2, paragraphs 2 and 3, insofar as the terms used in these paragraphs do not lead to the assumption that an attack using incendiary weapons launched from an aircraft would involve any greater risk of indiscriminate hits than one launched by any other means.

It is the understanding of the French Republic that the term «clearly separated» used in article 2, paragraph 3, can be interpreted as meaning either a separation in terms of space or a separation by means of a physical barrier between the military target and the concentration of civilians.

Holy See

Declaration:

«The Holy See, as a signatory of the [said Convention and annexed Protocols], in keeping with its proper nature and with the particular condition of Vatican City State, intends to renew its encouragement to the International Community to continue on the path it has taken for the reduction of human suffering caused by armed conflict.»

Every step in this direction contributes to increasing awareness that war and the cruelty of war must be done away with in order to resolve tensions by dialogue and negotiation, and also by ensuring that international law is respected.

The Holy See, while maintaining that the above-mentioned Convention and Protocols constitute an important instrument for humanitarian international law, reiterates the objective hoped for by many parties: an agreement that would totally ban anti-personnel mines, the effects of which are tragically well-known.

In this regard, the Holy See considers that the modifications made so far in the second Protocol are insufficient and inadequate. It wishes, by means of its own accession to the Convention, to offer support to every effort aimed at effectively banning anti-personnel mines, in the conviction that all possible means must be used in order to build a safer and more fraternal world

Italy

Declaration made upon signature:

On 10 October 1980 in Geneva, the representative of Italy at the Conference speaking at the closing meeting, emphasized that the Conference, in an effort to reach a compromise between what was desirable and what was possible, had probably achieved the maximum results feasible in the circumstances prevailing at that time.

However, he observed in his statement that one of the objectives which had not been achieved at the Conference, to his Government's great regret, was the inclusion in the text of the Convention, in accordance with a proposal originated by the Federal Republic of Germany, of an article on the establishment of a consultative committee of experts competent to verify facts which might be alleged and which might constitute violations of the undertakings subscribed to.

On the same occasion, the representative of Italy expressed the wish that proposal, which was aimed at strengthening the credibility and effectiveness of the Convention, should be reconsidered at the earliest opportunity within the framework of the mechanisms for the amendment of the Convention expressly provided for in that instrument.

Subsequently, through the representative of the Netherlands, speaking on behalf of nine States members of the European Community in the First Committee of the United Nations General Assembly on 20 November 1980, when it adopted draft resolution A/C.1/31/L.15 (subsequently adopted as General Assembly Resolution 35/153), Italy once again expressed regret that the States which had participated in the preparation of the texts of the Convention and its Protocols had been unable to reach agreement on provisions that would ensure respect for the obligations deriving from those texts.

In the same spirit, Italy — which has just signed the Convention in accordance with the wishes expressed by the General Assembly in its resolution 35/153 — wishes to confirm solemnly that it intends to undertake active efforts to ensure that the problem of the establishment of a mechanism that would make it possible to fill a gap in the Convention and thus ensure that it achieves maximum effectiveness and maximum credibility vis — à - vis the international community is taken up again at the earliest opportunity in every competent forum.

SOURCE: Multilateral treaties deposited with the Secretary-General, New York, 1992, p. 855.

Netherlands

Declaration made upon ratification:

1. With regard to article 2, paragraph 4, of Protocol II: It is the understanding of the Government of the Kingdom of the Netherlands that a specific area of land may also be a military objective if, because of its location or other reasons specified in paragraph 4, its total or partial destruction, capture, or neutralization in the circumstances ruling at the time, offers a definitive military advantage;

2. With regard to article 3, paragraph 3, under c, of Protocol II: It is the understanding of the Government of the Kingdom of the Netherlands that military advantage refers to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack;

3. With regard to article 8, paragraph 1, of Protocol II: It is the understanding of the Government of the Kingdom of the Netherlands that the words «as far as it is able» mean «as far as it is technically able»;

4. With regard to article 1, paragraph 3, of Protocol III: It is the understanding of the Government of the Kingdom of the Netherlands that a specific area of land may also be a military objective if, because of its location or other reasons specified in paragraph 3, its total or partial destruction, capture, or neutralization in the circumstances ruling at the time, offers a definitive military advantage.

SOURCE: Multilateral treaties deposited with the Secretary-General, New York, 1992, p. 855.

Declaration of territorial application made on 28.04.2014:

Netherlands: territorial application to the Caribbean part of the Netherlands (the Islands of Bonaire, Sint Eustatius and Saba)

Romania

Reservation made upon signature:

1. ...

2. Romania considers that the Convention and the three Protocols annexed thereto constitute a positive step within the framework of the efforts which have been made for the gradual development of international humanitarian law applicable during armed conflicts and which aim at providing very broad and reliable protection for the civilian population and the combatants.

3. At the same time, Romania would like to emphasize that the provisions of the Convention and its Protocols have a restricted character and do not ensure adequate protection either to the civilian population or to the combatants as the fundamental principles of international humanitarian law require.

4. The Romanian Government wishes to state on this occasion also that real and effective protection for each individual and for peoples and assurance of their right to a free and independent life necessarily presuppose the elimination of all acts of aggression and the renunciation once and for all of the use of force and the threat of the use of force, of intervention in the domestic affairs of other States and of the policy of domination and diktat and strict observation of the sovereignty and independence of peoples and their legitimate right to self-determination.

In the present circumstances, when a vast quantity of nuclear weapons has been accumulated in the world, the protection of each individual and of all peoples is closely linked with the struggle for peace and disarmament and with the adoption of authentic measures to halt the arms race and ensure the gradual reduction of nuclear weapons until they are totally eliminated.

5. The Romanian Government states once again its decision to act, together with other States, to ensure the prohibition or restriction of all conventional weapons which are excessively injurious or have indiscriminate effects, and the adoption of urgent and effective measures for nuclear disarmament which would protect peoples from the nuclear war which seriously threatens their right to life — a fundamental condition for the protection which international humanitarian law must ensure for the individual, the civilian population and the combatants.

SOURCE: Multilateral treaties deposited with the Secretary-General, New York, 1992, pp. 855 — 856.

United Kingdom of Great Britain and Northern Ireland

Declaration made upon signature:

The Government of the United Kingdom of Great Britain and Northern Ireland will give further consideration to certain provisions of the Convention, particularly in relation to the provisions of Protocol I additional to the Geneva Conventions of 12 August 1949, and may wish to make formal declarations in relation to these provisions at the time of ratification.

SOURCE: Multilateral treaties deposited with the Secretary-General, New York, 1992, p. 856.

Upon ratification:

(a) Generally

(i) The term «armed conflict» of itself and in its context denotes a situation of a kind which is not constituted by the Commission of ordinary crimes, including acts of terrorism, whether concerted or in isolation.

(ii) The United Kingdom will not, in relation to any situation in which it is involved, consider itself bound in consequence of any declaration purporting to be made for the purposes of article 7 (4), unless the United Kingdom shall have expressly recognised that it has been made by a body which is genuinely and authority representing a people engaged in an armed conflict of the type to which that paragraph applies.

(iii) The terms «civilian» and «civilian population» have the same meaning as in article 50 of the 1st Additional Protocol of 1977 to the 1949 Geneva Conventions. Civilians shall enjoy the protection afforded by this Convention unless and for such time as they take a direct part in hostilities.

(iv) Military commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time.

(b) Re: Protocol II, article 2; and Protocol III, article 1

A specific area of land may be a military objective if, because of its location or other reasons specified in this article, its total or partial destruction, capture or neutralisation in the circumstances ruling at the time offers a definite military advantage.

(c) Re: Protocol II, article 3

In the view of the United Kingdom, the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.

(d) Re: Protocol III, article 2

The United Kingdom accepts the provisions of article 2 (2) and (3) on the understanding that the terms of those paragraphs of that article do not imply that the air-delivery of incendiary weapons, or of any other weapons, projectiles or munitions, is less accurate or less capable of being carried out discriminately than all or any other means of delivery.

SOURCE: United Nations, C.N.48.1995.TREATIES-1 (Depositary Notification)

United States of America

The above action was effected on 21 January 2009, with:

Reservation (Original: English)

«The United States of America, with reference to Article 2, paragraphs 2 and 3, reserves the right to use incendiary weapons against military objectives located in concentrations of civilians where it is judged that such use would cause fewer casualties and/or less collateral damage than alternative weapons, but in so doing will take all feasible precautions with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.»

Understanding (Original: English)

«It is the understanding of the United States of America that any decision by any military commander, military personnel, or any other person responsible for planning, authorizing or executing military action shall only be judged on the basis of that person's assessment of the information reasonably available to the person at the time the person planned, authorized, or executed the action under review, and shall not be judged on the basis of information that comes to light after the action under review was taken.»