disarmament under strict and effective international control, and of saving mankind from the danger of using new means of warfare,

Determined to continue negotiations with a view to achieving effective progress towards further measures in the field of disarmament,

Recognizing that scientific and technical advances may open new possibilities with respect to modification of the environment,

Recalling the Declaration of the United Nations Conference on the Human Environment adopted in Stockholm on June 16, 1972,

Realizing that the use of environmental modification techniques for peaceful purposes could improve the interrelationship of man and nature and contribute to the preservation and improvement of the environment for the benefit of present and future generations,

Recognizing, however, that military or any other hostile use of such techniques could have effects extremely harmful to human welfare,

Desiring to prohibit effectively military or any other hostile use of environmental modification techniques in order to eliminate the dangers to mankind from such use. and affirming their willingness to work towards the achievement of this objective, Desiring also 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,

Have agreed as follows:

Article I

1. Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, longlasting or severe effects as the means of destruction, damage or injury to any other State Party.

2. Each State Party to this Convention undertakes 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.

Article II

As used in article I, the term "environmental modification techniques" refers to 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.

Article III

1. The provisions of this Convention shall not hinder the use of environmental modification techniques for peaceful purposes and shall be without prejudice to generally recognized principles and applicable rules of international law concerning such use.

2. The States Parties to this Convention undertake to facilitate, and have the right to participate in, the fullest possible exchange of scientific and technological information on the use of environmental modification techniques for peaceful purposes. States Parties in a position to do so shall contribute, alone or together with other States or international organizations, to international economic and scientific cooperation in the preservation, improvement, and peaceful utilization of the environment, with due consideration for the needs of the developing areas of the world.

Article IV

Each State Party to this Convention undertakes to take any measures it considers necessary in accordance with its constitutional processes to prohibit and prevent any activity in violation of the provisions of the Convention anywhere under its jurisdiction or control.

Article V

1. The States Parties to this Convention undertake to consult one another and to cooperate in solving any problems which may arise in relation to the objectives of, or in the application of the provisions of, the Convention. Consultation and cooperation pursuant to this article may also be undertaken through appropriate international procedures within the framework of the United Nations and in accordance with its Charter. These international procedures may include the services of appropriate international organizations, as well as of a consultative committee of experts as provided for in paragraph 2 of this article.

2. For the purposes set forth in paragraph 1 of this article, the Depositary shall, within one month of the receipt of a request from any State Party, convene a consultative committee of experts. Any State Party may appoint an expert to this committee whose functions and rules of procedure are set out in the Annex, which constitutes an integral part of this Convention. The committee shall transmit to the Depositary a summary of its findings of fact, incorporating all views and information presented to the committee during its proceedings. The Depositary shall distribute the summary to all States Parties.

3. Any State Party to this Convention which has reasons to believe that any other State Party is acting in breach of obligations deriving from the provisions of the Convention may lodge a complaint with the Security Council of the United Nations. Such a complaint should include all relevant information as well as all possible evidence supporting its validity.

4. Each State Party to this Convention undertakes to cooperate in carrying out any investigation which the Security Council may initiate, in accordance with the provisions of the Charter of the United Nations, on the basis of the complaint received by the Council. The Security Council shall inform the States Parties to the Convention of the results of the investigation.

5. Each State Party to this Convention undertakes to provide or support assistance, in accordance with the provisions of the Charter of the United Nations, to any Party to the Convention which so requests, if the Security Council decides that such Party has been harmed or is likely to be harmed as a result of violation of the Convention.

Article VI

1. Any State Party may propose amendments to this Convention. The text of any proposed amendment shall be submitted to the Depositary who shall promptly circulate it to all States Parties.

2. 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. Thereafter it shall enter into force for any remaining State party on the date of deposit of its instrument of acceptance.

Article VII

This Convention shall be of unlimited duration.

Article VIII

1. Five years after the entry into force of this Convention, a conference of the States Parties to the convention shall be convened by the Depositary in Geneva. The conference shall review the operation of the Convention with a view to ensuring that its purposes and provisions are being realized, and shall in particular 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.

2. At intervals of not less than five years thereafter, a majority of the States Parties to this Convention may obtain, by submitting a proposal to this effect to the Depositary, the convening of a conference with the same objectives.

3. If no review conference has been convened pursuant to paragraph 2 of this article within ten years following the conclusion of a previous review conference, the Depositary shall solicit the views of all States Parties to this Convention on the holding of such a conference. If one third or ten of the States Parties, whichever number is less, respond affirmatively, the Depositary shall take immediate steps to convene the conference.

Article IX

1. This Convention shall be open to all States for signature. Any State which does not sign the Convention before its entry into force in accordance with paragraph 3 of this article may accede to it at any time.

2. This Convention shall be subject to ratification by signatory States. Instruments of ratification and instruments of accession shall be deposited with the SecretaryGeneral of the United Nations.

3. This Convention shall enter into force upon the deposit with the Depositary of instruments of ratification by twenty Governments in accordance with paragraph 2 of this article.

4. For those States whose instruments of ratification or accession are deposited after the entry into force of this Convention, it shall enter into force on the date of the deposit of their instruments of ratification or accession.

5. The Depositary shall promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification or of

accession and the date of the entry into force of this Convention and of any amendments thereto, as well as of the receipt of other notices.

6. This Convention shall be registered by the Depositary in accordance with Article 102 of the Charter of the United Nations.

Article X

This Convention, of which the Arabic, Chinese, English, French, Russian, and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations who shall send certified copies thereof to the Governments of the signatory and acceding States.

IN WITNESS WHEREOF, the undersigned, duly authorized thereto, have signed this Convention.

Done at

On

ANNEX

Consultative Committee of Experts

1. The Consultative Committee of Experts shall undertake to make appropriate findings of fact and provide expert views relevant to any problem raised pursuant to article V, paragraph 1, of this Convention by the State Party requesting the convening of the Committee.

2. The work of the Consultative Committee of Experts shall be organized in such a way as to permit it to perform the functions set forth in paragraph 1 of this annex. The Committee shall decide procedural questions relative to the organization of its work where possible by consensus but otherwise by a majority of those present and voting. There shall be no voting on matters of substance.

3. The Depositary or his representative shall serve as the chairman of the Committee.

4. Each expert may be assisted at meetings by one or more advisers.

5. Each expert shall have the right, through the Chairman, to request from States. and from international organizations, such information and assistance as the expert considers desirable for the accomplishment of the Committee's work.

UNDERSTANDINGS

Understanding relating to article I

It is the understanding of the Committee that, for the purposes of this Convention, the terms "widespread," "long-lasting" and "severe" shall 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.

It is further understood that the interpretation set forth above is intended exclusively for this Convention and is not intended to prejudice the interpretation of the same or similar terms if used in connection with any other international agreement.

Understanding relating to article II

It is the understanding of the Committee that the following examples are illustrative of phenomena that could be caused by the use of environmental modification techniques as defined in article II of the Convention: earthquakes; 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.

It is further understood that all the phenomena listed above, when produced by military or any other hostile use of environmental modification techniques, would result, or could reasonably be expected to result, in widespread, long-lasting or severe destruction, damage or injury. Thus, military or any other hostile use of environmental modification techniques as defined in article II, so as to cause those phenomena as a means of destruction, damage or injury to another State Party, would be prohibited.

It is recognized, moreover, that the list of examples set out above is not exhaustive. Other phenomena which could result from the use of environmental modification techniques as defined in article II could also be appropriately included. The absence

of such phenomena from the list does not in any way imply that the undertaking contained in article I would not be applicable to those phenomena, provided the criteria set out in that article were met.

Understanding relating to article III

It is the understanding of the Committee that this Convention does not deal with the question whether or not a given use of environmental modification techniques for peaceful purposes is in accordance with generally recognized principles and applicable rules of international law.

Understanding relating to article VIII

It is the understanding of the Committee that a proposal to amend the Convention may also be considered at any conference of Parties held pursuant to article VIII. It is further understood that any proposed amendment that is intended for such consideration should, if possible, be submitted to the Depositary no less than 90 days before the commencement of the conference.

Report of the Conference of the Committee on Disarmament, Vol. I., U.N. General Assembly Official Records; 31st sess., Supp. No. 27 (A/31/27).

Military Forces in the Indian Ocean

A sense-of-the-Congress provision with respect to limitation of military forces in the Indian Ocean is embodied in section 407 of the International Security Assistance and Arms Export Control Act of 1976 (P.L. 94-329; 90 Stat. 759; 22 U.S.C. 2151 note), approved June 30, 1976, as follows:

SEC. 407. (a) It is the sense of Congress that the President should undertake to enter into negotiations with the Soviet Union intended to achieve an agreement limiting the deployment of naval, air, and land forces of the Soviet Union and the United States in the Indian Ocean and littoral countries. Such negotiations should be convened as soon as possible and should consider, among other things, limitations with respect to

(1) the establishment or use of facilities for naval, air, or land forces in the Indian Ocean and littoral countries;

(2) the number of naval vessels which may be deployed in the Indian Ocean, or the number of "shipdays" allowed therein; and (3) the type and number of military forces and facilities allowed therein.

(b) Not later than December 1, 1976, the President shall transmit a report to the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate with respect to steps he has taken to carry out the provisions of this section.

88

War and Emergency Powers

War Powers of the President

A legal memorandum dated August 4, 1976, by Raymond J. Celada, senior specialist in American public law, American Law Division of the Congressional Research Service, addressed the question raised by Senator J. Glenn Beall of whether a U.S. President, sua sponte, can respond in the manner of the Israeli rescue

of 100 plus hostages at Entebbe, Uganda, or if he is prevented from doing so by the War Powers Resolution (87 Stat. 555; 50 U.S.C. 1541 et seq.) or other provisions of domestic law. For an account of the rescue at Entebbe, see ante, Ch. 3, § 6, p. 149.

Senator Beall inserted the legal memorandum in the Congressional Record of September 29, 1976, and stated that, after viewing its findings, he believed "that the President of the United States does have the authority to order an Entebbe-like mission." The memorandum contains a review of the debates at the Constitutional Convention on the division of the war powers between the two political branches, the opinions of legal writers on the executive authority to use force as a last resort to safeguard the lives and property of nationals abroad, the legislative record concerning the War Powers Resolution, and an analysis of its provisions. The memorandum concludes:

That there exist various tensions among certain provisions of the War Powers Resolution and between the War Powers Resolution and the Commander-in-Chiefship powers seems fairly obvious. Illustrative of the former is the apparent conflict between the "Purpose and Policy-Congressional Declaration" section, 50 U.S.C.A. 1542, which, inter alia, purports to limit presidential use of U.S. Armed Forces in hostile situations, actual or potential, to three specified circumstances, and a reading of the reporting and congressional action sections, 50 U.S.C.A. 1543 and 1544, so as to mean that the President is authorized to use such forces in combat as long as he complies with the reporting requirement and Congress does not adopt a disapproving resolution, 119 Cong. Rec. 33,860, 33,870, 33,872, 36207 (1973). An example of the latter is the seeming contradiction between the same "Purpose and Policy. etc.," section and the range. of pure Article II initiatives. The uncertainty is heightened by the aforementioned legislative history which indicates that that section is not deemed to be controlling of the substantive provisions of the War Powers Resolution.

Although there appears to be almost universal agreement that the Nation has the right and duty to use reasonable force to safeguard citizens and nationals abroad, opinions vary as to whether the President is constitutionally authorized to undertake such an initiative. For a dissenting view, see Kelley, "The Constitutional Implications of the Mayaguez Incident," 3 Hastings Constitutional Law Quarterly 301 (Winter 1976). However one views the matter, that is, either as an exercise of constitutional power or a statutorily delegated power, the Mayaguez episode stands as evidence that that and similar rescue efforts are not out of the question. In the aftermath of the Mayaguez affair, Senator Eagleton proposed various amendments to the War Powers Resolution, including one which would declare that the President has the right to rescue endangered citizens even in the absence of congressional authorization. S. 1790, 94th Cong., 1st Sess. Obvious