53 See, The Conduct of Armed Conflict and Air Operations, cited in note 47 above, pp. 6-1, 6-2; The Law of Land Warfare, Change No. 1, cited in note 51 above, p. 5; Article 51 of Protocol I to the Geneva Conventions of 1949, cited in note 51 above. 54 Article 33 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, cited in note 49 above. 55 Article 3 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, cited in note 49 above; Articles 4 and 13 of Protocol II to the Geneva Conventions of 1949, reprinted in 72 Am. J. Int'l Law, pp. 502, 503, 507. (Protocol II is not yet in force for the United States or the Soviet Union.) Dept. of State File No. P85 0072-1535. (Tab A) Reservations to the 1925 Geneva Gas Protocol Concerning Obligations Toward Non-Parties The records of the Department of State show that the following States have made reservations or declarations to the Protocol which have (or may be interpreted to have) the effect of denying obligations under the Protocol to States which are not party to it: (This list does not include former British colonies that are Parties because of their general succession to British treaty obligations on independence, and whose adherence to the Protocol is therefore technically subject to the prior U.K. reservation even though they have not affirmatively expressed a desire to maintain that reservation.) The following are of particular interest: -United Kingdom: "The said protocol shall be binding on His Britannic Majesty only with respect to the Powers and States which have signed and ratified it or which have acceded to it permanently . . . .” -France: "The said protocol shall be binding on the Government of the French Republic only with respect to the States which have signed and ratified it or which have acceded to it . . . ." -U.S.S.R.: "The said protocol shall be binding on the Government of the Union of Soviet Socialist Republics only with respect to the States which have signed and ratified it or which have acceded to it permanently. . . ." -China (PRC): “. . . subject to reciprocity on the part of all other contracting and acceding Powers." [The Socialist Republic of Vietnam became a State Party to the 1925 Geneva Gas Protocol, effective Dec. 15, 1980, subject to reservations (1) that it was bound thereby only with States that had signed and ratified the Protocol or adhered thereto, and (2) that it would not be bound thereby in its relations with enemy States whose armed forces or allies failed to respect the Protocol's provisions.] In addition to the States Parties listed, ante, the United States considers that the following States were also parties, as of January 1, 1986, to the 1925 Geneva Gas Protocol: (1) Through general notifications of their succession to treaties upon achieving independence, by note or letter to the United Nations Secretary-General, in regard to which, see Treaties in Force, A List of Treaties and Other International Agreements of the United States in Force on January 1, 1986, under the respective country entries in Part 1: Bilateral Treaties and Other Agreements: Antigua & Barbuda, Belize, Dominica, Kirabati, St. Christopher & Nevis, St. Lucia, St. Vincent & the Grenadines, Solomon Islands, Tuvalu, and Zimbabwe. For an indication of reservations to the Protocol, see ibid., Part 2: Multilateral Treaties and Other Agreements, under “Gas Warfare”. (2) Through notifications to the Government of France, as depositary under the Protocol, with the effective date being shown in parentheses: Bolivia (Aug. 13, 1985); Kampuchea (Mar. 15, 1983); Papua New Guinea (Sept. 16, 1975); Peru (Aug. 13, 1985); Sudan (Dec. 17, 1980); and the Socialist Republic of Vietnam (Dec. 15, 1980). Bolivia, Kampuchea, Peru, and Sudan became parties without reservations; Papua New Guinea and Vietnam entered reservations. For the reservation of the Socialist Republic of Vietnam, see editorial note following Tab A, ante. [The names of the Federal Islamic Republic of Comoros and of the Republic of Djibouti were dropped from the list of States Parties to the Geneva Gas Protocol, in view of the fact that the Depositary did not consider them Parties.] Bacteriological (Biological) Weapons: Anthrax Outbreak in U.S.S.R. The United States Senate expressed in S. Res. 405, adopted on May 14, 1980, its sense with respect to compliance by the Soviet Union with the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, done at Washington, London, and Moscow on April 10, 1972 (TIAS 8062; 26 UST 583; entered into force, March 26, 1975). The Senate's action was prompted by the failure of the Government of the Union of Soviet Socialist Republics to reply to an inquiry by the Government of the United States as to the nature of an outbreak of pulmonary anthrax reported to have taken place near Sverdlovsk during April 1979. The United States had received the report in February 1980, and had made its inquiry on March 17, 1980. The resolution stated that the President should: (1) urge and request the Soviet Government to exchange such scientific data as might be necessary to resolve any dispute regarding the nature of the outbreak, as provided for in Article V of the Convention; and (2) undertake consultative and cooperative measures through appropriate international procedures, as provided by Article V, or, if necessary, lodge a complaint with the United Nations Security Council, as provided by Article VI of the Convention, if the Soviet Government failed to make such data available. Cong. Rec., Vol. 126, Pt. 9 (1980), p. 11196. See, also, testimony of Under Secretary of State Matthew Nimetz before the Subcommittees on Asian and Pacific and International Security and Scientific Affairs of the House Committee on Foreign Affairs, April 24, 1980, at Strategic Implications of Chemical and Biological Warfare: Hearing, ante, pp. 22-23; Dept. of State Bulletin, Vol. 80, No. 2040, July 1980, p. 39. §8 Persian Gulf War and Emergency Powers In his State of the Union address on January 23, 1980, President Carter, speaking of the threat to the security of the Persian Gulf region caused by the Soviet invasion of Afghanistan, and of United States policy regarding this threat, stated: Let our position be absolutely clear: An attempt by any outside force to gain control of the Persian Gulf region will be regarded as an assault on the vital interests of the United States, and such an assault will be repelled by use of any means necessary, including the use of military force. Public Papers of the President: Jimmy Carter, 1980-81, Bk. I (1981), pp. 194-197. On January 28, 1980, the Legal Adviser of the Department of State, Roberts B. Owen, produced an analysis of issues relevant to the exercise of Presidential authority to execute the policy announced by President Carter in his State of the Union address. The major portion of the memorandum follows: I. International Law The United Nations Charter generally prohibits the use of armed force against the territorial integrity or political independence of any State. Under the Charter it is generally recognized that the only authorized uses of force are: (1) those authorized by the United Nations (by the Security Council acting pursuant to Article 42 of the Charter, or, possibly, by the General Assembly under the "Uniting for Peace" resolution); and (2) individual or collective measures necessary to repel an armed attack (pursuant to Article 51 of the Charter). The permissible scope of the right of self-defense under international law is unclear. However, there is respectable support for the right of a State, in the exercise of self-defense, to use force for the protection of its own nationals within the territory of another State in situations where the territorial sovereign is unable or unwilling to afford the necessary protection against imminent threat of injury or death. The United States has asserted such a right (in the Dominican Republic in 1965) and has defended its assertion by others (the Israeli rescue at Entebbe in 1976). It is also generally recognized that the use of force in self-defense is limited by the principles of necessity and proportionality. That is, a State may use force only when other measures would not be effective in terminating the harm or threatened harm; unnecessary destruction or punitive measures in the nature of armed reprisals must be avoided; and the response may not be disproportionate to the attack being defended against. The application of these rules, of course, must be evaluated in the circumstances of each individual case. Finally, it is clear that the right to collective self-defense permits a State which has not itself been attacked to come to the aid of a State which is the victim of an armed attack, upon the latter's request, irrespective of whether the assisting State is under any pre-existing obligation, by mutual defense treaty or otherwise, to do so. II. The Constitution The authority to commit the armed forces of the United States to hostilities abroad falls within the concurrent powers of the President and the Congress. Both the President and the Congress can point to textual authorities in the Constitution; the United States has sometimes become involved in international conflict as a result of legislative action, and the President has sometimes acted on his own. The President's independent constitutional authority to use military force where necessary to defend the nation or to protect the lives of Americans has been recognized by the courts, Durand v. Hollins, 8 Fed. Cas. 111, 112 (No. 4186) (1860), Prize Cases, 67 U.S. (2 Black) 635, 668 (1862), Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), In re Neagle, 135 U.S. 1, 64 (1889), and is supported by numerous historical examples, especially in China and Latin America. As with other shared powers, the authority of the President to use military force is subject to the formula suggested by Mr. Justice Jackson in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 635-37 (1952): 1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate... 2. When the President acts in absence of either a Congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. . . .[See Henkin, Foreign Affairs and the Constitution, 105-106 (1972).] Beginning in 1973, the Congress enacted a series of statutes prohibiting the use of appropriated funds to finance the involvement of United States military forces in hostilities in Indochina. (See, e.g., §13, P.L. 93-126, 87 Stat. 452.) No comparable legislation has been enacted with respect to the Persian Gulf, or any other region. The use of force in the Persian Gulf by the President would not be incompatible with any existing expression of the will of the Congress. On the other hand, the Congress has not given the President any additional authority to act in the region. The only relevant statute is the Joint Resolution of March 9, 1957, 71 Stat. 5, popularly known as the Middle East Resolution. Section 2 of the Middle East Resolution provides in pertinent part: |