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

ly, passage of such an amendment would resolve the existing uncertain situation.

For the text of the legal memorandum, see Cong. Rec., Vol. 122, No. 149-Part II, Sept. 29, 1976, pp. 17145–17149 (daily ed.). For an account of the Mayaguez incident, see the 1975 Digest, pp. 13, 397, 423, 766, 777-783, 879-886.

Legislative Regulation

Section 738 of the Department of Defense Appropriation Act, 1976 (P.L. 94-212), approved February 9, 1976, contains the following prohibition on the use of funds for combat activities in Indochina:

None of the funds herein appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Viet-Nam, South Viet-Nam, Laos, or Cambodia.

National Emergencies Act

On September 14, 1976, President Ford signed into law the National Emergencies Act, "To terminate certain authorities with respect to national emergencies still in effect, and to provide for orderly implementation and termination of future national emergencies" (P.L. 94-412; 90 Stat. 1255; 50 U.S.C. 1601 note).

Title I of the Act terminates all existing powers and authorities based on any general declaration of national emergency in effect on the date of enactment. Exempted from the general termination provision are (1) any action taken or proceeding pending not finally concluded or determined on such date; (2) any action or proceeding based on any act committed prior to such date; or (3) any rights or duties that matured or penalties that were incurred prior to such date. The Senate committee report (S. Rept. 94-1168) points out that Title I does not affect laws, such as the Defense Production Act (50 U.S.C. App. 2061), which are not dependent upon a Presidential declaration of emergency-even though such laws may be referred to in a general sense as "emergency" statutes.

Title II concerns the declaration and termination of future national emergencies and, according to the Senate report, is designed to insure congressional oversight of Presidential actions pursuant to declarations of a national emergency authorized by an act of Congress. The Senate report specifies that the procedures, while patterned on those in the War Powers Resolution (P.L. 93-148; 87 Stat. 555), are not intended to conflict with, supersede, or alter any part of the War Powers Resolution, nor are they meant to supersede existing provisions of law which authorize declarations of emergency by the Congress.

Section 201 provides that, with respect to Acts of Congress authorizing the exercise, during the period of a national emergency,

of any special or extraordinary power, the President is authorized to declare such national emergency. Emergency authorities will come into effect only if the President complies with the provisions of the Act. Any Presidential declaration of an emergency is required to be transmitted to Congress and published in the Federal Register.

Section 202 provides for the termination of Presidentially declared emergencies by either a concurrent resolution of the Congress or a proclamation by the President. Not later than 6 months after a national emergency is declared and not later than the end of each sixmonth period thereafter that such emergency continues, each House of Congress must meet to consider a vote on a concurrent resolution to determine whether that emergency should be terminated. Specific procedures to be followed in considering the concurrent resolution are provided as an exercise of the rulemaking power of the House and Senate. See infra for statement by President Ford regarding the concurrent resolution provision.

Title III states:

Sec. 301. When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specification may be made either in the declaration of a national emergency, or by one or more contemporaneous or subsequent Executive orders published in the Federal Register and transmitted to the Congress.

Previously a Presidential emergency declaration automatically activated emergency provisions throughout the U.S. Code. regardless of the relevance of the statute to the emergency at hand. The new procedure was intended to permit the Executive to invoke only the emergency provisions he needs and to insure that the Congress and the public know what statutes are brought into force. Title IV specifies the accountability and reporting requirements applicable when the President declares a national emergency or Congress declares war. It requires the President to maintain a file of significant orders, and executive agencies to keep a record of rules and regulations issued pursuant to a declaration of emergency or war. This information is to be promptly transmitted to Congress. In addition, the President is required to report emergency expenditures every six months.

Title V deals with the repeal and continuation of certain emergency powers and statutes. It exempts from the force of the legislation certain provisions of law, including section 5(b) of the Act of October 6, 1917, the Trading with the Enemy Act (12 U.S.C. 95a and 50 U.S.C. App. 5(b)). At hearings, administration spokesmen had cited the continuing importance of section 5(b) which provides for the