Sweden: Ratification of Convention on Certain Conventional Weapons

State Sweden
Treaty Convention on Certain Conventional Weapons
Action Type Ratification
Depositary Secretary-General of the United Nations
Date 7 July 1982
Note
Objection:
 
2 February 2010
 
 
With regard to the reservation made by the United States of America upon consenting to be bound by Protocol III to the above Convention:
 
       “… the Government of Sweden has examined the reservation made by the Government of the United States of America concerning the latter’s consent, on 21 January 2009, to be bound by Protocol III to 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.
       According to customary international law, as codified in the Vienna Convention on the Law of Treaties, reservations incompatible with the object and purpose of a treaty shall not be permitted.  It is in the common interest of all States that treaties to which they have chosen to become parties are respected as to their object and purpose by all parties, and that States are prepared to undertake any legislative changes necessary to fulfill their obligations under the treaties.
       The Government of Sweden notes that the United States of America has made a reservation to the core provisions of Protocol III.
       The Protocol provides (Article 2.2) that it is prohibited in all circumstances to make any military objective located within a concentration of civilians the object of attack by air-delivered incendiary weapons.  This is a clear-cut ban on the use of air-delivered incendiary weapons.  The provision does not allow for any exceptions.
       The formulation of the United States of America that it ‘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’ seems to open for an interpretation that air-delivered incendiary weapons could be used under certain conditions also when military objectives are located within concentrations of civilians.  Such an interpretation is neither consistent with the wording of the treaty, nor with the object and purpose of the treaty.
       Article 2.3 of the Protocol prohibits the use of attacks by means of incendiary weapons other than air-delivered weapons located within a concentration of civilians.  This is the main rule.  There is an exception to this main rule and the parameters of the exception are clearly set out in the Article.  An attack against a military objective that is clearly separated from the concentration of civilians’ and where ‘all feasible precautions are taken 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’ is not prohibited under the Protocol.
       The reservation of the United States appears to disregard the fact that incendiary weapons may only be used under these circumstances.  It is, for example, not possible to neglect the requirement that the military objective must be clearly separated from the concentration of civilians.
       Hence, this reservation is contrary to the obligation contained in Article 2.3 and inconsistent with the object and purpose of the treaty.
       It should be underlined that all States are under an obligation to take feasible precautions before an attack.  This follows from customary law and from treaty provisions, including Article 2.3 of the Protocol on incendiary weapons.  The duty to take feasible precautions does not remove the obligation to ensure that specific treaty obligations are fulfilled, such as the obligation to ensure that the military objective is clearly separated which goes to the heart of the object and purpose of the treaty.
       The reservation of the United States of America concern the core provisions of the Protocol and must therefore also be regarded as incompatible with the object and purpose of the treaty.
       The Government of Sweden objects to the aforesaid reservation made by the Government of the United States of America to Protocol III to 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 and considers the reservation without legal effect.  This objection shall not preclude the entry into force of the Convention between the United States of America and Sweden.  The Convention enters into force in its entirety between the United States of America and Sweden, without the United States of America benefiting from its reservation.”
Other Actions Signature on deposit with UN — 10 April 1981