that the undertaking contained in Article I would not be applicable to those phenomena, provided the criteria set out in that Article were not. 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. THE UNIVERSITY OF ARIZONA, WILLIAM MANSFIELD, DEAR SIR: At the request of Jacob Scherr of the Natural Resources Defense Council, I am submitting the enclosed comments about the Draft Environmental Assessment on the Environmental Modification Treaty. They are a reflection of personal views and not of the views of any organization or group with which I am associated. I am interested in the outcome of any efforts at obtaining ratification of the Convention. Would you please keep me informed of any progress. Yours truly, RAY JAY DAVIS, COMMENTS OF "ENVIRONMENTAL ASSESSMENT FOR THE CONVENTION OF THE PROHIBITION OF MILITARY OR ANY OTHER HOSTILE USE OF ENVIRONMENTAL MODIFICATION TECHNIQUES (By Ray Jay Davis) SCOPE OF THE CONVENTION The Convention has a very limited scope. Parties to it only agree to refrain from military or other hostile use of environmental modification techniques with "widespread, long-lasting or severe effects." The environmental assessment quite appropriately emphasizes present lack of technological capacity to bring about such effects. At least in the foreseeable future it will be difficult to demonstrate that application of environmental modification technologies have caused such "widespread, long-lasting or severe effects." Problems in proving the threshold will continue for the following reasons: (1) Statistical evaluation of impacts from environmental modification activities will depend on use of control areas and randomized application of the technologies. Project design for military use is unlikely to incorporate such limitations on application of a technology. (2) Systematic data collection from monitoring instruments in the affected area is the only way to get a complete record of physical impacts. This is expensive for an impacted country; it is extremely difficult for a country operating over, in or near enemy-held territory. (3) Even with the interpretation in the Understanding accompanying the Convention of the key words, they are sufficiently open to interpretation that there might well be honest differences of opinion in evaluation of any data. ASSESSMENT OF WEATHER MODIFICATION The environmental assessment appears to adopt a view of the effectiveness of precipitation modification that is more cautious than positions contained in statements from the National Science Foundation, National Academy of Sciences, American Meterological Society and Weather Modification Association. Reference is made to lack of knowledge about the necessary conditions for success and degree of change possible (page 5) and unreliable techniques (page 11). There is a great deal of information available about operational criteria and techniques and about meteorological consequences of silver iodide seeding for precipitation enhancement. U.S. DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, Mr. WILLIAM MANSFIELD, DEAR MR. MANSFIELD: This letter sets forth our comments on the Draft Environmental Assessment (the Assessment) for the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (the Convention), released by the Arms Control and Disarmament Agency (the Agency) for public comment on April 12, 1978. In our view the Assessment is seriously deficient. The document is so perfunctory that it provides little assistance in considering the environmental implications of the Convention. Among the most important deficiencies are the following: 1. The Assessment discusses weather modification techniques without sufficient detail to provide the reader with an independent understanding of the current state of the art. 2. The Assessment fails to discuss potential hostile environmental modification techniques other than weather modification, except to dismiss them with little discussion, as undemonstrated. In addition, the Assessment apparently excludes discussion of a number of such techniques on the ground that they are the subject of other agreements or negotiations on "chemical weapons," without any details of how this distinction between environmental modification techniques and chemical weapons has been drawn. 3. The Assessment does not discuss the types of hostile environmental modification activities that are permitted under the Convention if they are neither "widespread," "long lasting," nor "severe," nor does it discuss the potential effects of such actions, except to claim that such activities have not yet been identified. It is not clear that techniques such as localized defoliation or precipitation would be prohibited under these definitions, or whether there is any uncertainty about the prohibition. 4. The Assessment does not discuss any alternatives to ratification of the Convention in its current form, except to note the existence of a "range" of alternatives. The most important of these alternatives (such as refusal to ratify the Convention, refusal to accept the "widespread, long lasting, or severe" limitations, or insistence upon more stringent enforcement provisions) should be identified, and the costs and benefits of such alternatives should be described. We do not believe that the current thirteen-page Assessment is the best that can be done. We recommend that it be rewritten and rereleased for public comment. Sincerely yours, JAMES P. WALSH, Deputy Administrator. U.S. ARMS CONTROL AND DISARMAMENT AGENCY, Hon. CLAIBORNE PELL, DEAR MR. CHAIRMAN: At the October 3rd hearing before the Committee on Foreign Relations concerning the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, the Environmental Assessment for the Convention and comments on the Draft Environmental Assessment were provided to the Committee. We are now forwarding, as promised, our responses to the comments on the Draft Environmental Assessment. RESPONSES TO COMMENTS ON DRAFT ENVIRONMENTAL ASSESSMENT FOR THE CONVENTION ON THE PROHIBITION OF MILITARY OR ANY OTHER HOSTILE USE OF ENVIRONMENTAL MODIFICATION TECHNIQUES Nine parties submitted comments, appended hereto as Attachments 1-9, most of them relating to the scope or "threshold" of the Convention. Where pertinent, as indicated in the following responses, the comments have been accommodated in the Final Assessment. For ease of reference, the comments are numbered in the order in which they appear in the respective Attachments; where appropriate, the comments have been paraphrased or combined for clarity or convenience. ATTACHMENT 1 (LADY KENNET) 1. Comment: The use of the word techniques excludes from the Convention's ambit activities which do not involve the use of specific techniques, but which do, or may turn out to, result in harmful environmental modification (thus the kind of bombing of Vietnam which had at least local long-lasting effects would not be covered.) Response: The comment is correct. The Convention does not nor was it ever intended to cover activities other than those involving the use of environmental modification techniques. Activities involving the use of conventional weapons would be governed by the general rules of warfare, including the Protocols to the Geneva Conventions of 1949. To dispel doubts regarding the intended scope of the Convention, appropriate changes have been made in the introduction of the assessment. 2. Comment: All environmental modification techniques which are nonmilitary, or non-hostile, or non-deliberate, however damaging they may or may prove to be, are excluded from the Convention and from cooperation and consultations proposed in Article V. Response: The Convention does not exclude hostile non-military activities; otherwise, the comment is essentially correct. The Convention deals with a form of warfare, and was never intended to regulate the use of environmental modification techniques for peaceful purposes. However, the preamble recalls the Declaration of the United Nations Conference on the Human Environment, adopted at Stockholm in 1972, and Article III specifically states that the Convention shall be without prejudice to the generally recognized principles and applicable rules concerning the use of environmental modification techniques for peaceful purposes. The assessment has been amended to eliminate any misunderstanding regarding the intended scope of the Convention. Cooperation and consultation relating to the use of environmental modification techniques for peaceful purposes are covered in Article III, para. 2 which provides that: 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. 3. Comment: The ratification of the Treaty by the Senate could be usefully accompanied by a request to the Administration to set in motion, in the appropriate bodies, studies, and eventually negotiations, for setting up International Environmental Assessment machinery. Response: The U.S. Senate already has adopted a resolution (S. Res. 49), expressing the sense of the Senate that the U.S. Government should seek a multilateral treaty requiring the preparation of an international environmental assessment for any major project that may have an adverse effect on the environment of another nation or global commons area. The Executive Branch has expressed its support for the basic objective of this resolution, and is now considering what steps could usefully be taken internationally to promote this objective. ATTACHMENT 2 (LAWRENCE JUDA) 1. Comment: The assessment does not give a credible explanation for the U.S. insistence on retention of the threshold, given the opposition it generated among other delegations in the CCD; possibly this reflects an undisclosed desire to keep certain military options open. Response: Section 1 has been revised to include a more lengthy description of the reasoning put forward by U.S. representatives in explanation of the threshold in the CCD. Section 4 has been revised to deal in greater detail with activities not prohibited by the Convention. Those sections are believed to describe adequately the reasons for U.S. insistence on the threshold. 2. Comment: Why shouldn't the U.S. Government immediately suggest removal of the threshold? The Senate, in granting its advice and consent, should adopt a sense-of-the-Senate resolution seeking immediate revision of the Convention to delete the threshold. Response: Section 6 of the assessment now treats in greater detail possible ways of reexamining the threshold. Secretary Vance has already made it clear that the U.S. would be prepared to reconsider this question at the first Review Conference, or possibly sooner. An appropriate way for expressing Senatorial support for the Secretary's statement would be the inclusion of language to that effect in the Report of the Foreign Relations Committee. This was the procedure followed in the case of U.S. adherence to the Geneva Gas Protocol, where the Committee Report contained particular mention of the President's decision with respect to U.S. use of riot control agents and chemical herbicides. ATTACHMENT 3 (EDITH BROWN WEISS) Comment: The United States, in ratifying the Convention, should unilaterally renounce all hostile use of environmental modification techniques, citing as precedent the unilateral U.S. renunciation of the use of biological weapons. Response: The suggested action is not an alternative to ratifying the Convention and, therefore is outside the scope of the assessment. ATTACHMENT 4 (HOWARD J. TAUBENFELD) 1. Comment: The draft assessment errs in underestimating already established techniques of winter orographic seeding and other snow-increase work. Response: The assessment now discusses orographic seeding, drawing in large measure on the recent report of the Weather Modification Advisory Board. 2. Comment: The statements appearing in the first paragraph of page 6 of the draft assessment should be modified, as the paragraph will seem naive as written. Response: The statements in question are almost verbatim quotes from previous testimony given by a Department of Defense witness, and have been repeated in substance in Senate hearings on the Convention. 3. Comment: It is naive to argue that only a "radical" increase could cause heavy flooding. Response: This statement has been revised to take account of this comment. 4. Comment: Contrary to the statement contained in the last sentence of the first paragraph on page 9, these activities have been conducted, quite literally, over all of the U.S. at one time or another. Response: The statement was intended to illustrate a point about the scope of the Convention. The assessment no longer contains the illustration. ATTACHMENT 5 (GEORGE BENNSKY) Before addressing the comments made in this attachment, it should be pointed out that the draft assessment was prepared in accordance with court-approved stipulation voluntarily entered into by State and ACDA. 1. Comment: There is no discussion of the use of chemicals to defoliate large tracts of forest or to poison water supplies or the atmosphere. Response: The use of herbicides to effect defoliation is discussed at pages 22-23, 27-28 and 31 of the final assessment. The use of chemicals to poison water or the atmosphere does not per se constitute an environmental modification technique. However, such use in armed conflict is prohibited by Hague Regulation 23(a)1 and the 1925 Geneva Gas Protocol, respectively. 2. Comment: The coverage of weather modification is sparse when it comes to environmental consequences. Response: The treatment of weather modification has been expanded in the final assessment. ATTACHMENT 6 (JAMES N. BARNES) 1. Comment: The draft assessment does not discuss adequately either weather modification or other environmental modification possibilities. 1 Laws and Customs of War on Land (Hague IV). Convention signed at The Hague, October 18, 1907, with annex of regulations, 36 Stat. 2277, Treaty Series 539. Response: The draft assessment has been revised to accommodate this comment; see, in particular, section 2. 2. Comment: ACDA acted improperly in failing to prepare the assessment prior to U.S. signature of the Convention. Response: No formal environmental impact statement or assessment was required under NEPA for this Convention. This assessment was prepared solely by way of compromise of the suit brought by the NRDC; the stipulation providing for the assessment was entered into after U.S. signature of the Convention and obviously did not contemplate preparation of an assessment prior to signature. However, the Executive Branch did take relevant environmental factors into account throughout the decision-making process relative to the Convention. 3. Comment: The draft assessment fails to discuss alternatives to ratification, such as ratification with reservations, or resubmission for further negotiations. Response: The treatment of alternatives has been expanded in the final assessment. Alternatives, including those mentioned in the comment, are addressed on pages 33-41. 4. Comment: The discussion in the draft assessment of the use of environmental modification techniques not falling within the scope of the prohibition is "incomplete and illogical" and contains "mutually inconsistent statements." Response: The statements in the draft assessment are both correct and consistent. The first statement, i.e., that hostile activity permitted by the Convention is so limited as to render questionable its usefulness as a weapon, reflects the understanding of the U.S. and other participants in the negotiations leading to the adoption of the Convention. To cite but a few examples: In our assessment, the definition of the scope of the prohibition in the Treaty in practice prevents the modification of the environment for hostile purposes. (Statement by Mr. Pastinen, Finland) It should be noted here that the formulations of Article I, together with the agreed understanding relating to this article by the Committee on Disarmament, practically exclude the possibilities of hostile modification of the environment. (Statement by Mr. Likhatchev, USSR) At the start of the negotiations the Netherlands Government was rather doubtful about the restriction of the prohibition to only those activities which had 'widespread, long-lasting or severe' effects. . . After careful consideration of [the] 'understandings', my Government came to the conclusion that it could accept the so-called 'threshold' approach. Indeed, there seem to be only very limited possibilities for hostile use of environmental modification techniques without surpassing the threshold. The draft convention thus prohibits, in our view, nearly all potentially hostile activities in this field. (Statement by Mr. Kooijmans, Netherlands) The final assessment has been amended to reflect that the first statement is not a mere assertion, but is based on the understanding of the scope by the negotiating parties. The second statement, i.e., that the effects of available techniques are so uncertain that a potential user could not be confident that unexpected damage violative of the terms of the Convention will not result, reflects the present state of the art and the unpredictability of the results of the use of environmental modification techniques. 5. Comment: There is uncertainty as to whether the use of herbicides is covered by the Convention. Response: See response to Attachment 5, first comment. 6. Comment: The Convention should prohibit all hostile environmental modification techniques and activities, including research and development. Response: With respect to the threshold, see the response to Attachment 2. The issue as to whether or not to prohibit research and development activities for hostile purposes was debated at length in the CCD, and the United States Government position is reflected in the attached statement by Ambassador Joseph Martin made during the discussions of this issue in April of 1976. 7. Comment: The Convention prohibits only injuries to parties, i.e., states that have ratified or acceded to the Convention. Response: The Convention was limited in this fashion in order to encourage the widest possible adherence. 8. Comment: The Review Conference mechanism provided in Article VIII does not provide a basis for reconsideration of the threshold. Response: This comment is incorrect. By reading Article VIII in conjunction with Article V of the Convention, the author appears to suggest that possible |