South Africa §6 Military Sanctions In response to a request from the United Nations SecretaryGeneral, dated July 2, 1980, for information on measures taken by the United States in accordance with Security Council Resolutions 418 (1977) ("Arms Embargo of South Africa", adopted November 4, 1977) and 473 (1980) ("Condemnation of South Africa", adopted June 13, 1980), the United States Permanent Representative to the United Nations, Ambassador Donald H. McHenry, replied on August 27, 1980: The information requested by the Secretary-General's note of 2 July 1980 already has been supplied by the United States by its note to the Secretary-General of 8 December 1977 (S/12479) and its notes to the Chairman of the Security Council Committee [Arms Embargo Committee] established by resolution 421 (1977) of 23 May 1979 (S/AC.20/15) and 10 April 1980 (S/AC.20/25). To recapitulate briefly the position of the United States, the representative of the United States would like to state that: -the United States in February 1978 issued regulations pursuant to the Export Administration Act prohibiting the export of any goods to, or for the use of the South African military and police. This regulation, it should be noted, goes beyond the requirements of applicable Security Council resolutions. -the United States will not license the sale of computers destined for the South African Government military or police, or to agencies involved in administering apartheid. -the United States Government does not approve any thirdparty transfers of United States Government-origin defense items and services to South Africa. -there continue to be no valid United States licenses for the manufacture of military equipment in South Africa. -the United States will continue to scrupulously uphold both resolutions of the Security Council through enforcement of United States domestic laws. -the United States will continue to co-operate with the Arms Embargo Committee in investigating any infractions of the ban on sale of military goods to South Africa. The representative of the United States has the honour to request that this note be circulated as a document of the Security Council. U.N. Doc. S/14143, Sept. 2, 1980. For the texts of S/RES 418 and 473, see American Foreign Policy: Basic Documents, 1977-1980 (1983), pp. 1185-1186 and 1195-1196. The text of S/RES 421 (1977) (“Question of South Africa", adopted Dec. 9, 1977) may be found at Resolutions and Decisions of the Security Council, U.N.S.C. Off. Rec., 32d year (1977) (S/INF/33), p. 6. In an opening statement to the 40-member Committee on Disarmament on February 7, 1980, United States Ambassador Adrian S. Fisher reviewed the current arms control agenda and reaffirmed the United States Government's deep commitment to the process of mutual and verifiable arms control. Ambassador Fisher urged the Committee to keep its attention riveted to the numerous tasks lying before it, including the negotiation of a convention to prohibit radiological weapons, the laying of a foundation for eventual agreement on an effective and verifiable chemical weapons treaty, work on assurances to non-nuclear-weapon states against nuclear attack, and consideration of a comprehensive program for disarmament. With regard to the SALT II Treaty, Ambassador Fisher quoted President Carter's letter of January 3, 1980, to Senate Majority Leader Byrd as follows: Dear Senator Byrd: In light of the Soviet invasion of Afghanistan, I request that you delay consideration of the SALT II Treaty on the Senate floor. The purpose of this request is not to withdraw the Treaty from consideration, but to defer the debate so that the Congress and I, as President, can assess Soviet actions and intentions, and devote our primary attention to the legislative and other measures required to respond to this crisis. As you know, I continue to share your view that the SALT II Treaty is in the national security interest of the United States and the entire world, and that it should be taken up by the Senate as soon as these more urgent issues have been addressed. (Signed) Jimmy Carter Ambassador Fisher went on to note that the Senate leadership had agreed to President Carter's request and to "stress that the Treaty has not been withdrawn from the Senate; further action on it has simply been deferred for the time being." In that connection, he also referred to President Carter's State of the Union address of January 23, 1980, in which the President had reaffirmed his strong commitment to the overall process of controlling nuclear weapons and specifically to the ratification of the SALT II Treaty when circumstances permitted. "Pending entry into force of the Treaty and assuming a parallel Soviet attitude," Ambassador Fisher further stated, "my Government will do all it can to preserve the SALT (sic] process." For the complete text of Ambassador Fisher's statement, see United States Arms Control and Disarmament Agency, Documents on Disarmament (1980) (1983), pp. 33-37. President Carter's letter to Senate Majority Leader Robert Byrd, dated Jan. 3, 1980, ante, may be found, also, at Weekly Comp. of Pres. Docs., Vol. 16, No. 1, Jan. 7, 1980, p. 12. Chemical and Biological Weapons -S.B. Reported Use of Lethal Chemical Weapons in Afghanistan and Indochina On April 24, 1980, Matthew Nimetz, Under Secretary of State for Security Assistance, Science, and Technology, appeared before the Subcommittees on Asian and Pacific Affairs and International Security and Scientific Affairs of the House Committee on Foreign Affairs to discuss reports of the use of lethal, incapacitating, and irritant chemicals in Afghanistan and Southeast Asia, as well as an outbreak of illness in Sverdlovsk, the Union of Soviet Socialist Republics, one year previously, that might have been connected with a biological warfare agent. Mr. Nimetz summarized information at the disposal of the United States, actions taken to increase its knowledge and to stop any such use of prohibited weapons, and the strategy which the United States planned to follow for the future. See, Strategic Implications of Chemical and Biological Warfare: Hearing before the Subcomms. on International Security and Scientific Affairs and on Asian and Pacific Affairs of the [House] Comm. on Foreign Affairs, 96th Cong., 2d sess., April 24, 1980, pp. 9-23; Dept. of State Bulletin, Vol. 80, No. 2040, July 1980, pp. 35-39. An excerpt from Under Secretary Nimitz' statement may be found at American Foreign Policy: Basic Documents, 1977-1980 (1983), pp. 1128-1130. Under Secretary Nimetz' testimony was based, in part, upon a memorandum of law by Roberts B. Owen, Legal Adviser of the Department of State, dated April 9, 1980, that read: Subject: Reported Use of Chemical Agents in Afghanistan, Laos, and Kampuchea Summary This memorandum considers the legality under international law of the reported use of chemical agents in Afghanistan, Laos and Kampuchea. We have concluded the following: 1. The 1925 Geneva Gas Protocol (concerning the use in war of chemical and bacteriological weapons) does not in itself apply to any of these conflicts, since: (a) it applies by its terms only as between parties to the Protocol, and neither Afghanistan, Vietnam [see, post], Laos nor Kampuchea [see, post] is a party; and (b) the Soviet Union, which is a party to the Protocol, adhered subject to a reservation that it would be bound only with respect to other parties. 2. Nonetheless, the prohibition on the first use in war of chemical weapons has, by reason of the practice and affirmations of states, become a part of the rules of customary international law which are binding on all states; and neither the limitations of the Geneva Protocol text nor reservations to it can detract from these obligations. Therefore, all states should be regarded as being bound to refrain from such first use, whether or not they or their opponents are parties to the Protocol. 3. In view of the fact that the present conflicts in Afghanistan and Kampuchea are the product of uninvited foreign armed intervention and occupation, these are clearly conflicts to which the rule of customary law against the first use of chemical weapons applies. However, it is not clear whether this prohibition would apply to the conflict in Laos, which has more of the attributes of a noninternational conflict. 4. The United States has consistently interpreted the prohibition on first use of chemical weapons as applicable only to lethal or incapacitating chemical agents, and not to riot control agents. Therefore, although the great majority of states do not share this view, the United States is not in a position to charge that Soviet or Vietnamese use of riot control agents violates the prohibition. 5. The prohibition under both the Geneva Protocol and customary international law is only a prohibition on first use; accordingly, the prohibition would not apply in a particular conflict to a state against whom chemical weapons had been used. Furthermore, although the United States does not regard the prohibition as applying to riot control agents, this view is not shared by the great majority of states (including the Soviets), and these states would presumably regard themselves as being entitled to use chemical agents (including lethal agents) in response to any use of riot control agents against them. 6. In any event, particular uses of chemical agents in Afghanistan, Kampuchea or Laos may also conflict with the general rules of international law applicable in international and non-international armed conflicts, particularly with respect to attacks directed against the civilian population. * 8. It is also important that we continue to make every effort, using both national and international channels, to obtain as soon as possible reliable evidence as to whether chemical agents have in fact been used in these conflicts. In particular, it is important that we determine whether, in each case, the agents used were lethal or incapacitating agents, or merely riot control agents. 1. International Legal Constraints on the Use of Chemical Weapons in Armed Conflicts The effort within the international community to prohibit the use in war of chemical weapons began before World War I. In particular, the 1899 Hague Conference adopted a Declaration calling on states "to abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases."1 This Declaration was, however, ignored or treated as inapplicable by the belligerent powers in World War I, and extensive use of tear gas and lethal agents was made on both sides. 2 A number of efforts were made after the War by the United States and other powers to prohibit the use of chemical weapons in future conflicts. Article 171 of the 1918 Versailles Treaty provided that: The use of asphyxiating, poisonous or other gases and all analogous liquids, their manufacture and importation are strictly forbidden in Germany. 3 The 1922 Washington Treaty on Submarines and Noxious Gases, at the initiative of the United States, included the following provision: The use in war of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, having been justly condemned by the general opinion of the civilized world and a prohibition of such use having been declared in treaties to which a majority of the civilized powers are parties, The Signatory Powers, to the end that this prohibition shall be universally accepted as a part of international law binding alike the conscience and practice of nations, declare their assent to such prohibition, agree to be bound thereby as between themselves and invite all other civilized nations to adhere thereto.4 Although this Treaty was ratified by the United States and other signatories, it never entered into force because France, whose ratification was required, objected to its provisions on submarines. 5 Therefore, at the initiative of the United States and France, the 1925 Geneva Conference for the Supervision of the International Traffic in Arms, Ammunition and in Implements of War adopted a Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare (commonly known as the 1925 Geneva Gas Protocol) which restated the prohibition on chemical weapons included in the Versailles and Washington Treaties and added a prohibition on bacteriological warfare. The Protocol provided, in part, that: Whereas the use of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilized world; and Whereas the prohibition of such use has been declared in Treaties to which the majority of Powers of the world are Parties; and To the end that this prohibition shall be universally accepted as a part of International Law, binding alike the conscience and the practice of nations; Declare: That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this |