But these are the basic elements, and I'm very determined that over a period of time, as described just then, that our ground troops would be withdrawn.

13 Weekly Comp. of Pres. Doc. 330 (1977).

Section 512 of the Foreign Relations Authorization Act, Fiscal Year 1978, Public Law 95–105, 91 Stat. 861, approved August 17, 1977, contains a congressional declaration outlining the manner in which the President's policy of reducing U.S. ground forces from the Republic of Korea should be implemented. The declaration emphasizes that any implementation of the reduction of forces policy must be accomplished in a manner consistent with U.S. interests in Asia with special regard for U.S. interests in Japan and the Republic of Korea and must be carried out in regular consultation with Congress. Section 512 appears below:

(a) The Congress declares that

(1) United States policy toward Korea should continue to be arrived at by joint decision of the President and the Congress;

(2) in any implementation of the President's policy of gradual and phased reduction of United States ground forces from the Republic of Korea, the United States should seek to accomplish such reduction in stages consistent with United States interests in Asia. notably Japan, and with the security interests of the Republic of Korea;

(3) any implementation of this policy should be carried out with a careful regard to the interest of the United States in continuing its close relationship with the people and government of Japan, in fostering democratic practices in the Republic of Korea, and in maintaining stable relations among the countries of East Asia; and

(4) these interests can be served most effectively by a policy which involves consultations by the United States Government, as appropriate, with the governments of the region, particularly those directly involved.

(b) (1) Any implementation of the foregoing policy shall be carried out in regular consultation with the Congress.

(2) Not later than February 15, 1978, and not later than February 15 of each year thereafter until any such withdrawal is completed, the President shall transmit a report in writing to the Speaker of the House of Representatives and the Committees on Foreign Relations, Armed Services, and Intelligence of the Senate assessing the implementation of the foregoing policy.

§ 2 The Laws of War

General

On September 8, 1977, George H. Aldrich, Deputy Legal Adviser, Department of State, and U.S. Representative to the Fourth Session of the Geneva Diplomatic Conference on the Reaffirmation and Develop

ment of International Humanitarian Law Applicable in Armed Conflicts, submitted to the Secretary of State the report of the U.S. Delegation describing the background, organization, and work of the Conference. The report indicated that the Conference drew up and adopted on June 8, 1977, the Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and Annexes I and II; and the Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).

Set forth below is the portion of the conclusion of the report summarizing the substantive successes of the Conference in codifying and developing the law applicable in international armed conflict:

Protocol I includes some provisions we were most pleased to see. These include the articles providing for identification and protection of medical aircraft-articles which will for the first time provide real immunity to these aircraft. Considering the dramatic decrease in fatalities that results from quick removal of wounded personnel to hospitals, the granting of immunity from attack to medical evacuation helicopters may well prove to be the most significant humanitarian accomplishment of the Conference.

For reasons flowing from our experience in Vietnam, the United States Delegation proposed the articles on missing in action and the dead (Articles 32-34), and we welcome their adoption. Similarly, we welcome the clear statement in the Preamble that no person protected by the Geneva Conventions or the Protocol could be denied those protections on the basis of charges of aggression and the statement in article 44 that a combatant may not be deprived of his status as a prisoner of war by allegations of war crimes. Although this latter provision does not, by itself, undo the Communist reservation to article 85 of the Third Convention, it does make it clear that the interpretation given it by the Vietnamese (i.e., that it was a basis for denying PW [prisoner of war] status merely upon charges of war crimes and prior to conviction and exhaustion of rights of appeal) is untenable.

Although the provision on appointment of protecting powers falls short of our desires by failing to provide for a specific substitute, like the ICRC [International Committee of the Red Cross], in the event agreement between the belligerents is not reached, it is an improvement on the 1949 Conventions and, by establishing required procedures, will make the appointment of a protecting power more likely. It will make it more difficult and embarrassing for a state to refuse to permit outside observation of the manner in which it treats its prisoners.

In its adoption of a number of provisions dealing with the relations between combatants and the protection of civilians in the territory of the adversary, the Protocol marks the first significant development of the laws of war since 1907. Of these new provisions the United States Delegation welcomes particularly the prohibition of

indiscriminate attacks, including target area bombardment in cities (Article 51), the prohibition of the starvation of civilians as a method of warfare and of the destruction of crops and food supplies (Article 54), and the special protection (with reasonable exceptions) accorded to dams, dikes, and nuclear power stations (Article 56). We take satisfaction from the first codification of the customary rule of proportionality (Article 57), from a good definition of mercenaries which should not be open to abuse (Article 47), and from the minimum humanitarian standards (Article 75) that must be accorded to anyone not entitled to better treatment.

During the course of the Conference there was no consideration of the issues raised by the use of nuclear weapons. Although there are several articles that could seem to raise questions with respect to the use of nuclear weapons, most clearly, article 55 on the protection of the natural environment, it was the understanding of the United States Delegation throughout the Conference that the rules to be developed were designed with a view to conventional weapons and their effects and that the new rules established by the Protocol were not intended to have any effects on, and do not regulate or prohibit the use of nuclear weapons. We made this understanding several times during the Conference, and it was also stated explicitly by the British and French Delegations. It was not contradicted by any delegation so far as we are aware. Despite this clear record, however, the United States may wish to make a formal statement of understanding on this subject, given its importance, at the times of signature and of ratification.

It is less clear whether we should make a reservation with respect to the right of reprisal. A number of articles (e.g., 51, 52, and 56) have gone far toward limiting the right of reprisal to the use of unlawful weapons. Among most delegates to the Conference, "reprisal" seemed to be a dirty word. Certainly, it is true that the right of reprisal has been abused, and some prohibition of reprisals clearly makes sense, but the U.S. Delegation believes that the Conference has gone unreasonably far in its prohibition of this right in article 51. It is unreasonable to think that massive and continuing attacks directed against a nation's civilian population could be absorbed without a response in kind. By denying the possibility of response and not offering any workable substitute, article 51 is unrealistic and cannot be expected to withstand the test of future conflicts. On the other hand, it will not be easy for any country to reserve, explicitly, the right of reprisal against an enemy's civilian population, and we shall have to consider carefully whether such a reservation is indispensable for us.

*

Report of the U.S. Delegation to the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts-Fourth Session-March 17-June 10, 1977, submitted to the Secretary of State by George H. Aldrich, Chairman of the Delegation, on Sept. 8, 1977, 30-32. For the text of Protocol I, see 16 International Legal Materials 1391–1441 (Nov.

For information concerning Protocol II, see post, Ch. 14, § 3, pp. 929–931.

The referenced Geneva Conventions are the following:

The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field is dated Aug. 12, 1949 (TIAS 3362; 6 UST 3114; 75 UNTS 31; entered into force for the United States on Feb. 2, 1956).

The Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked members of Armed Forces at Sea is dated Aug. 12, 1949 (TIAS 3363; 6 UST 3217; 75 UNTS 85; entered into force for the United States on Feb. 2, 1956, subject to a statement).

The Geneva Convention Relative to the Treatment of Prisoners of War was done on Aug. 12, 1949 (TIAS 3364; 6 UST 3316; 75 UNTS 135; entered into force for the United States on Feb. 2, 1956).

The Geneva Convention Relative to the Protection of Civilian Persons in Time of War is dated Aug. 12, 1949 (TIAS 3365; 6 UST 3516; 75 UNTS 287: entered into force for the United States on Feb. 2, 1956).

Art. 85 of the Third Geneva Convention reads as follows:

Prisoners of war prosecuted under the law of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention.

On Dec. 10, 1977, Warren Christopher, Acting Secretary of State, invested Marvin L. Warner, U.S. Ambassador to the Swiss Confederation, or Ambassador George H. Aldrich to sign Protocol I on behalf of the United States. It was signed on Dec. 12, 1977, subject to the following understandings:

A. Protocol I

1. It is the understanding of the United States of America that the rules established by this Protocol were not intended to have any effect on and do not regulate or prohibit the use of nuclear weapons.

2. It is the understanding of the United States of America that the phrase "military deployment preceding the launching of an attack" in article 44, paragraph 3, means any movement towards a place from which an attack is to be launched.

Dept. of State telegram 295654, Jan. 4, 1978.

Occupied Territories

Israeli-Occupied Territories

On December 17, 1976, an attorney at law in Washington, D.C., wrote a letter to Walter B. Smith II, Director for the Office of Israeli and Arab-Israeli Affairs in the Department of State, posing questions concerning "Israeli rights to explore for, develop and exploit oil resources located in the Sinai and the Gulf of Suez. . . . " This letter reads in part as follows:

We are presently involved in determining the validity of rights granted under an agreement involving exploration in and development of oil fields in the Sinai and the Gulf of Suez. Performance under the agreement by one party is conditioned upon the acquisition of a legally valid concession from the Israeli National Oil Company (INOC) by the other party. One of our concerns is what rights, if any, the State of Israel or INOC has to grant the concession under which the agreement is to be performed. In that regard, since the U.S. has by a 1975 Agreement entered into certain undertakings to provide Israel with the oil Israel needs to meet all of Israel's normal requirements for domestic consumption if Israel is unable to make its own independent arrangements for such oil supply, it is neces

sary for us to ascertain the position of the United States with respect to the rights of Israel in the Sinai Peninsula and the Gulf of Suez as it may affect the validity of concessions granted by Israel for the exploration for and exploitation of oil in the Sinai and the Gulf of Suez. We are, therefore, submitting for your answer . . . [a set of specific] questions on that subject.

Dept. of State File No. P77 0126-1791.

On February 17, 1977, David H. Small, Assistant Legal Adviser for Near Eastern and South Asian Affairs for the Department of State, responded to this letter in part as follows:

With regard to your specific questions, the United States considers Egypt, not Israel, to be sovereign with regard to the Sinai Peninsula, the territorial seas of the Gulf of Suez and the mineral resources of the continental shelf in the Gulf. Israel is a belligerent occupant of those portions of the Sinai it entered in 1967 and which it now occupies.

There is a question whether Israel can claim the rights of a belligerent occupant in the Gulf. The United States does not consider that high seas are subject to occupation and therefore could not now recognize as valid any assertion of such rights outside the threenautical-mile limit of territorial sea jurisdiction recognized by the United States. There is also a question about the timing and circumstances of Israeli assertion of control in various portions of the Gulf which could have a bearing on the issues. We have seen nothing persuasive to support the assertion that occupation of the coast alone gives the occupant rights regarding the resources of the appurtenant continental shelf.

In those areas under belligerent occupation, Israel's rights would be those provided by the 1907 Hague Regulations and by the law of belligerent occupation generally. An occupant's rights regarding public immovable property (the category in which these oil resources in the ground fall, under Egyptian law) are regulated primarily by article 55 of the Hague Regulations. (See, e.g., Oppenheim's International Law, Lauterpacht ed., 7th Edition, Vol. II, p. 397). Looking at the rules of usufruct in civil-law countries (such as article 598 of the French Civil Code), the common-law analogue of life tenancy and waste, as well as international practice indicate that article 55, essentially, allows the occupier only to continue the reasonable exploitation of already operating oil wells, and does not permit the development and exploitation of new cil fields. Further, the rights a belligerent occupant might be able to assert with respect to oil in already operating fields would be limited by the purposes and underlying principles of the law of war, which preclude its use for the general benefit of the occupant's home economy or its sale or taking for commercial or non-military use unrelated to the requirements of the occupation. On this point, you may want to look at Stone, Legal Controls of International Conflict, p. 714; and the Singapore Oil Stocks Case, 51 Am. J. Int'l. L. at 808 (1957).

257-179 O - 79 - 60