3. Deterrents attached to product sales may have some face value, but they should be supplemented by vehicles for enforcement against violations.

4. Deterrents should not be used when a high degree of certainty is required that diversions to military applications will not occur.

The North Atlantic Treaty Organization members include Belgium, Canada. Denmark, France, Federal Republic of Germany, Greece, Iceland. Italy, Luxembourg, Netherlands, Norway, Portugal, Turkey, United Kingdom, and United States. The North Atlantic Treaty was signed on Apr. 4, 1949 (TIAS 1964; 63 Stat. 2241; 4 Bevans 828; 34 UNTS 243; entered into force for the United States on Aug. 24, 1949).

The Warsaw Treaty Organization (Warsaw Pact), as created on May 14, 1955, included Albania, Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, Poland, Romania, and the Soviet Union. Albania withdrew in 1968.

Statutory authority for controlling the export and import of arms, ammunition. and implements of war, discussed under the heading of U.S. Classified Weapons System in the Bucy Report, was provided by 22 U.S.C. 1934 until June 30, 1976, when such authority was reenacted by sec. 212(a)(1) of the International Security Assistance and Arms Export Control Act of 1976, P.L. 94–329, as sec. 38 of the Arms Export Control Act, 22 U.S.C. 2778.

Environmental Modification

On May 17, 1977, Secretary Vance joined 33 other signatories in Geneva, Switzerland, to sign the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques. In his remarks at the signing ceremony, Secretary Vance emphasized that the Convention prohibits all significant hostile use of environmental modification techniques but does not proscribe the development of such techniques for peaceful purposes. He noted as well that the Secretary-General of the United Nations has an important role to play in convening the Consultative Committee of Experts which meets on an ad hoc basis in order to clarify the nature of activities suspected to be in violation of the Convention. Portions of Secretary Vance's remarks follow:

This convention was negotiated in this city by the Conference of the Committee on Disarmament and is an achievement to be added to other significant arms control agreements, such as the non-proliferation treaty, seabed arms control treaty, and the biological weapons convention.

While the intentional modification of the environment at present can be done only on a local and small scale at best, we scarcely need remind ourselves that in our era technology can advance to make possible actions which would cause hitherto inconceivable environmental consequences. So we believe it wise to outlaw what is commonly called "environmental warfare" before it has a real chance to be developed significantly for military purposes, with potentially disastrous consequences.

The convention does not prohibit research on and development of, or the use of, environmental modification techniques for peaceful purposes. The United States earnestly desires that all research and

development, as well as use of environmental modification techniques, be dedicated solely to peaceful ends. To this end, as we have made clear in the past, we have no secrets in this area: All of our activities in the area of environmental modification are carried out on an open basis and the information is shared with others.

In the view of the United States, the effect of the convention should be to eliminate the danger of environmental warfare because it prohibits all significant hostile use of environmental modification techniques. According to the present terms, the convention limits the prohibition to those uses having "widespread, long-lasting or severe effects." The United States will be prepared to reexamine this limitation on the scope of the convention at the review conference or possibly before.

I wish to express the gratitude of the United States, as well as my own personal satisfaction, for the presence of the Secretary-General of the United Nations on this occasion. For the first time in the history of our arms control endeavors, the Secretary-General has been designated the depositary for an international convention; moreover, he has an important role to play if a question arises for which the fact finding committee of experts must be convened. . . .

*

76 Dept. of State Bulletin 633–634 (1977).

The convention defines in article II "environmental modification techniques" as "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." Changes in weather or climate patterns, in ocean currents, or in the state of the ozone layer or ionosphere, or an upset in the ecological balance of a region are some of the effects which might result from the use of environmental modification techniques.

Article I sets forth the convention's basic commitment: "Each State Party to this convention undertakes 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 addition, an understanding defining the terms "widespread, long-lasting or severe" was reached at the Conference of the Committee on Disarmament and was transmitted to the U.N. General Assembly along with the text of the convention itself. "Widespread" was defined as "encompassing an area on the scale of several hundred square kilometers;" "long-lasting" was defined as "lasting for a period of months, or approximately a season;" and "severe" was defined as "involving serious or significant disruption or harm to human life, natural and economic resources or other assets."

With regard to complaints the convention provides for mutual consultation, for recourse to the U.N. Security Council, and for the Con

sultative Committee of Experts. As depositary, the Secretary-General is required to convene the Consultative Committee of Experts within one month of the receipt of a request from any state party, to receive a summary of the Committee's findings of fact, and to distribute the summary to all states parties.

The convention provides for a review conference to be convened five years after its entry into force and at subsequent intervals if requested by a majority of states parties to the convention or if the parties so request subsequent to a solicitation of views by the depositary.

For the entire text of the Environmental Modification Convention, see the 1976 Digest, Ch. 14, § 7, pp. 737–741.

The Treaty on the Non-Proliferation of Nuclear Weapons was done on July 1, 1968 (TIAS 6839; 21 UST 483; 729 UNTS 161; entered into force for the United States on Mar. 5, 1970).

The Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof was done on Feb. 11, 1971 (TIAS 7337; 23 UST 701; entered into force for the United States on May 18, 1972).

The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction was done Apr. 10, 1972 (TIAS 8062; 26 UST 583; entered into force for the United States on Mar. 26, 1975.

§ 8

War Powers of the President and
the Congress

War Powers of the President

During the hearing on his nomination to be Secretary of State before the Senate Committee on Foreign Relations on January 11, 1977, Cyrus Vance was questioned by Senator Jacob K. Javits concerning the War Powers Resolution (87 Stat. 555; 50 U.S.C. 1541 et seq.). Set forth below are the portions of the testimony in which Senator Javits read into the record section 3 of the War Powers Resolution and asked Secretary of State-designate Vance about the observance and constitutionality of that section:

Senator JAVITS. Section III reads as follows

The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until the U.S. Armed Forces are no longer engaged in hostilities, or have been removed from such situation.

Do you or the new administration see any problem with the goodfaith observance of that law?

Mr. VANCE. I do not.

Senator JAVITS. Do you challenge it under the Constitution as to the President's power?

Mr. VANCE. No.

Senator JAVITS. Would you, therefore, undertake to confer with this committee as to what methodology and guidelines have already been worked out with the State Department and what the new administration would like to work out in respect of the implementation of this generally regarded very critical aspect of the new policy of our country?

Mr. VANCE. I will.

*

Vance Nomination, Hearing before the Committee on Foreign Relations of U.S. Senate, 95th Cong., 1st Sess. (Jan. 11, 1977), 38–39.

On March 5, 1977, during his national telephone call-in program with Walter Cronkite on the CBS Radio Network, President Carter received a question from Mr. Kerry Kimble of Fulton, Missouri, concerning the War Powers Resolution. President Carter indicated that he believed that the War Powers Resolution had reduced the President's authority from that existing before the Vietnam war and that he would have no hesitancy in consulting with Congress and letting the American people know before starting any combat operation. The text of exchange between President Carter and Mr. Kimble appears below:

Mr. KIMBLE. Yes. Mr. President, my question covers the war powers resolution. And do you feel that it infringes upon your power as Commander in Chief in the limiting or getting the approval from Congress to continue the use of American forces in a certain situation past the 60 days?

THE PRESIDENT. Mr. Kimble, it is a reduction, obviously, in the authority that the President has had prior to the Vietnam war. But I think it's an appropriate reduction. My own attitude toward government is that I would never see our Nation approach a time of war with any sort of predictability about it without discussing it thoroughly and frequently with the Congress and also letting the American people know what is going on.

Although we did get involved in the Vietnam war, and even fought extensively in Cambodia without telling the American people, and sometimes lying to them, I would never have that inclination. So, I have no hesitancy about communicating with Congress, consulting with them and also letting the American people know what we do before we start any combat operation. And I think with that process we can minimize greatly the chances that we will get involved in combat anywhere in the world.

MR. KIMBLE. Sir, you would accept their approval for your actions on that?

257-179 - 79-63

THE PRESIDENT. Yes. There is, I think, a provision that in a time of crisis, where an unanticipated attack might be launched against our country's security, that I could act, but to continue any sort of military operation, I would have to get the Congress' approval. I have no doubt that that is the right thing to do.

13 Weekly Comp. of Pres. Docs. 309-310 (Mar. 11, 1977).

On July 11, 1977, Michael J. Glennon, Legal Counsel to the Committee on Foreign Relations of the U.S. Senate, submitted a memorandum to the members of the Committee concerning the "nonautomaticity" of U.S. mutual security treaties. In this memorandum Mr. Glennon concluded, inter alia, that the United States is not a party to any treaty that authorizes the President or requires the United States to introduce Armed Forces into hostilities automatically if another party is attacked. The text of Mr. Glennon's memorandum follows:

This memorandum discusses the extent of the United States' commitment under mutual security treaties by addressing the question, "Does any treaty to which the United States is a party authorize the President to introduce the Armed Forces into hostilities or require the United States to do so, automatically, if another party to any such treaty is attacked?"

The two issues posed are actually one: if a treaty requires the United States to introduce its armed forces into hostilities upon the happening of certain events and thus precludes a decision by the United States not to do so, then it is fair to construe that treaty as authorizing the President to introduce the Armed Forces into hostilities. Conversely, if a treaty allows the United States to decide in each situation whether to introduce its Armed Forces into hostilities, it is not necessary to construe it as conferring upon the President the authority to introduce the armed forces into hostilities.

The memorandum concludes that the answer to the question posed is no, for two reasons: (A) the wording of the treaties and their legislative histories make clear that they were not intended to be so construed; and (B) such a construction would be constitutionally dubious.

A. Text and Intent of the Treaties. An analysis of the texts of the United States mutual security treaties indicates no intent to bind parties to introduce their armed forces into hostilities. Indeed, each treaty explicitly recognizes that a decision to do so must be made by each party as specific situations arise. Each of the treaties provides that it will be carried out by the United States in accordance with its "constitutional processes" or it contains other language to make clear that the United States' commitment is a qualified one-that the distribution of power within the United States Government is precisely what it would be in the absence of the treaty, and that the United States reserves the right to determine for itself what military action, if any, is appropriate.

In short, each treaty contains an international requirement with a domestic escape clause; each requires that under certain circum