For the Agreement Concerning the Establishing and Operation of an Early Warning System in the Sinai, between the United States and Egypt, signed at Alexandria, Sept. 1, 1975 (entered into force Oct. 13, 1975), see U.S. TIAS 8156, 26 UST 2278; for the Agreement Concerning the Establishing and Operation of an Early Warning System in the Sinai, between the United States and Israel, signed at Jerusalem, Sept. 1, 1975 (entered into force Oct. 13, 1975) see U.S. TIAS 8155, 26 UST 2271.

See also the 1976 Digest, pp. 241-242, 716, and 721; and the 1975 Digest, pp. 316-323, 761, and 827-829.

Environmental Modification

U.N. Convention

On September 22, 1978, President Carter transmitted to the Senate for its advice and consent to ratification the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, opened for signature in Geneva on May 1977, and initially signed by thirty-four states, including the United States and the Soviet Union. The accompanying letter of submittal to the President, from Secretary of State Vance, dated August 31, 1978, outlined the "number of initiatives" which had led to its approval by the United Nations General Assembly in 1976, and described its provisions. Excerpts follow:

This Convention, signed on behalf of the United States on May 18, 1977, is the product of a number of initiatives, the first of which was taken more than five years ago. In July of 1972, the Subcommittee on Oceans and International Environment of the Senate Committee on Foreign Relations conducted hearings on Senate Resolution 281 expressing the sense of the Senate that the United States should seek the agreement of other governments to a treaty prohibiting the use of environmental or geophysical modification activity as a weapon of war. On February 22, 1973, Senate Resolution 281 was reintroduced as Senate Resolution 71, which was passed on July 11, 1973, by a vote of 82 to 10.

In early 1974, at the request of the President [Nixon], the Department of Defense carried out a review of the military aspects of weather modification and other environmental modification techniques. This review was followed by an interagency study of possible international restraints on these techniques. Later that year, at the Moscow summit meeting on July 3, 1974, the United States and the Soviet Union issued a joint statement pledging to hold discussions to consider the dangers of environmental warfare and possible measures to overcome such dangers. The sessions were held in late 1974 and 1975, which resulted in agreed language for a multilateral convention. On August 21, 1975, the United States and the Soviet Union tabled identical draft texts of a convention at the Conference of the Committee on Disarmament (CCD) in Geneva.

During the 1976 session of the CCD, representatives from 25 countries addressed the draft convention at 28 plenary meetings. In addition, the CCD formed an Ad Hoc Environmental Modification Working Group, composed of representatives from all 30 CCD participating member countries which negotiated a revised text. On September 2, 1976, the CCD transmitted this revised text, together with a set of Understandings relating to articles I, II, III and VIII of the Convention, to the thirty-first session of the United Nations General Assembly. After extended debate, the First Committee recommended to the General Assembly the adoption of its draft resolution referring the Convention to all states for consideration, signature, and ratification, and requesting that the Secretary-General, as Depositary, open the Convention for signature at the earliest possible date. On December 10, 1976, the General Assembly formally adopted this resolution by a vote of 90 to 8 with 30 abstentions [G.A.Res. 31/72].

The Convention consists of a preamble, 10 operative paragraphs, and an annex.

The preamble sets forth the premises and objectives of the parties. The first and second preambular paragraphs indicate the parties' interest in consolidating peace, halting the arms race and working towards general complete disarmament under strict and effective international control, as well as their desire to save mankind from the dangers presented by new means of warfare, and their determination to continue negotiations toward progress on further measures in the field of disarmament. The third preambular paragraph recognizes the fact that scientific and technical advances may open up new possibilities for modifying the environment. The fourth preambular paragraph recalls the Stockholm Declaration on the Human Environment. The fifth and sixth preambular paragraphs refer to the beneficial and harmful effects, respectively, which may result from the use of environmental modification techniques. The seventh preambular paragraph expresses the parties' desire to prohibit effectively the hostile use of environmental modification techniques and their willingness to work towards achieving the objective of eliminating the dangers to mankind from such use. The final preambular paragraph states the parties' desire to contribute to the strengthening of trust among nations and to the further improvement of the international situation in accordance with the purposes and principles of the Charter of the United Nations.

In paragraph 1 of article I the states parties undertake not to engage "in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage, or injury to any other State Party." In paragraph 2 they further undertake "not to assist, encourage or induce any State, group of States or international organization to engage in activities contrary to the provisions of paragraph 1 of this Article." According to the Understanding related to this article the terms "widespread, long-lasting and se

vere," for purposes of this Convention only, are to be interpreted as follows:

(a) "widespread": encompassing an area on the scale of several hundred square kilometers;

(b) "long-lasting": lasting for a period of months, or approximately a season;

(c) "severe": involving serious or significant disruption or harm to human life, natural and economic resources or other assets.

While the Convention does not prohibit the hostile use of environmental modification techniques having effects over a smaller area, of shorter duration and less severity than set forth in the Understanding, it is the view of the United States that the Convention should have the effect of eliminating the danger of environmental warfare because it prohibits all significant hostile use of environmental modification techniques; however, the United States is prepared to reexamine this limitation on the scope of the Convention at the review conference or possibly before.

Article II defines the term "environmental modification techniques" as "any technique for changing-through the deliberate manipulation of natural processes the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere, and atmosphere, or of outer space." The Understanding related to this article sets forth the following examples as illustrative of the phenomena that could be caused by the use of such techniques:

[E]arthquakes; tsunamis; an upset in the ecological balance of a region; changes in weather patterns (clouds, precipitation, cyclones of various types and tornadic storms); changes in climate patterns; changes in ocean currents; changes in the state of the ozone layer; and changes in the state of the ionosphere.

This Understanding makes clear that the hostile use of an environmental modification technique so as to cause any of the listed phenomena as a means of destruction, damage or injury to any other state party is prohibited, since such phenomena would result, or could reasonably be expected to result, in widespread, long-lasting or severe destruction, damage or injury. The Understanding further affirms that the list is illustrative only.

Article III states that the provisions of the Convention shall not hinder the use of environmental modification techniques for peaceful purposes and shall be without prejudice to generally recognized and applicable rules of international law regarding such use. The associated Understanding points out that the Convention does not deal with the question of whether any particular use of an environmental modification technique for peaceful purposes is in accord with relevant international law.

Article IV requires each state party to take any measures it considers necessary in accordance with its constitutional processes to prohibit and prevent any activity in violation of the Convention anywhere under its jurisdiction or control.

Article V sets forth procedures to foster compliance with the Convention.

Article VI permits any state party to propose amendments which shall be submitted to the Depositary who is to circulate them promptly to all states parties. The article further provides that an amendment shall enter into force for all states parties which have accepted it upon the deposit with the Depositary of instruments of acceptance by a majority of states parties and, thereafter, for any remaining state party on the date of deposit of its instrument of acceptance.

Article VII provides that the Convention shall be of unlimited duration.

Article VIII provides for an initial conference to be held five years after entry into force of the Convention and for subsequent conferences, if requested by a majority of the states parties, at intervals of not less than five years thereafter. The purpose of the conferences is to review the operation of the Convention with a view to ensuring that its purposes and provisions are being realized and, in particular, to examine the effectiveness of the provisions of article I, paragraph 1, in eliminating the dangers of military or any other hostile use of environmental modification techniques. The article further provides that in the event no review conference has been convened within ten years following the conclusion of a previous review conference, the Depositary shall solicit the view of all states parties on the holding of such a conference. If one-third or ten of the states parties, whichever is the lesser number, respond affirmatively, the Depositary shall take immediate steps to convene the conference.

Article IX provides that the Secretary-General of the United Nations shall be the Depositary for the Convention. The Convention is the first multilateral arms control agreement to designate the Secretary-General as Depositary. This article provides that the Convention shall enter into force upon the deposit of instruments of ratification by twenty signatory states. It specifies how states may become parties after entry into force and contains provisions of a formal nature relating to ratification, accession and registration with the United Nations.

1

Adopted at Stockholm in 1972 by the United Nations Conference on the Human Environment, which met to consider "the need for a common outlook and common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment."

S. Ex. K, 95th Cong., 2d sess. (1978), pp. 3-7.

The requisite number of ratifications or accessories having been deposited with the Secretary-General, the convention entered into force Oct. 5, 1978. Multilateral Treaties in Respect of Which the Secretary-General Performs Depositary Functions. List of Signatures, Ratifications, Accessions, etc., as at December 31, 1978. U.N. Doc. ST/LEG/SER.D/12 (1979), p. 593.

See further, the 1977 Digest, pp. 966-968, and for text, also the 1976 Digest, pp. 737-741.

In regard to weather modification, see also, this Digest, Ch. 8, § 7, ante.

§ 8

War and Emergency Powers

War Powers Resolution

Zaire

On May 11, 1978, the southern province of Shaba, formerly known as Katanga, in Zaire (formerly the Belgian Congo) was attacked by Communist-backed Katangan secessionist exiles from Angola, who, seizing and occupying the copper mining town of Kolwezi, began on May 13 to kill European civilian residents. In response to an appeal for assistance from President Mobutu Sese Seko to all friendly nations, including the United States, France, Belgium, Morocco and the People's Republic of China, President Jimmy Carter despatched eighteen United States Air Force transport aircraft (C-14's) to transport French and Belgian paratroopers to secure locations in Zaire, from which they launched rescue operations. Nevertheless, more than one hundred twenty white men, women and children were massacred before the paratroopers arrived.

The Air Force transports also carried cargoes consisting of communications equipment, aircraft spare parts, gasoline, and medical supplies.

It was the opinion of the Legal Adviser to the Chairman of the Joint Chiefs of Staff, concurred in by the General Counsel of the Department of Defense and the Legal Adviser of the Department of State, that the airlift did not require a report to the Congress under section 4 of the War Powers Resolution (P.L. 93-148, Nov. 7, 1973, 87 Stat. 555, 50 U.S.C. (1970, Supp. III 1973) 1543). These opinions were based upon two facts:

(1) the United States forces to be introduced into Zaire were not equipped for combat, but consisted solely of unarmed transport aircraft and personnel not equipped for combat, who were to be involved solely in the operation of the aircraft, and the loading, unloading and handling of the air cargoes; and

(2) the United States forces so introduced into Zaire would not be present at any location where their imminent involvement in hostilities would be clearly indicated by the circumstances.

See also, Memorandum for the Record, approved by Legal Adviser Herbert J. Hansell, May 19, 1978. Dept. of State File No. P78 0093-0420.

Thereafter, in response to an inquiry directed to David D. Newsom, Under Secretary of State for Political Affairs, by Congressman Gerry E. Studds, concerning the possible application of the War Powers Resolution to the May 19-23 United States airlift of foreign military