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1. Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.
2. Each State Party to this Convention undertakes not to assist, encourage or induce any State, group of States or international organization to engage in activities contrary to the provisions of paragraph 1 of this article.
A major source of ENMOD controvery was the USSR-US draft's introduction of the troika in Article I. With the insertion of the words "widespread, long lasting, or severe" (the troika), the scope of the draft treaty's prohibitions were reduced, and the difficulty of clearly establishing a violation potentially increased.
The USSR found itself in the awkward position of defending its retreat from the unqualified prohibition it had proposed in 1974. Instead of a total ban, the Soviets were now endorsing the more restrictive US-USSR bilateral formula. The US had never endorsed the Soviets' call for a total prohibition and did not similarly suffer. US negotiators did, however, have to contend with Senate Resolution 71 (103), \which called for a total prohibition on environmental warfare (see chronology). Consequently, US negotiators faced a stream of pressure and criticism from legislators at home.
(Later, it became fully apparent it was the US that placed the troika in the identical texts. The US Congress and ENMOD section provides details.)
Despite the diplomatic embarassment, the US and the Soviet Union made it clear that there was no room to compromise. Said the Soviet delegate:
A number of representatives have referred in their statements to the corresponding provisions of the Soviet draft of 1974 as being preferable, in their view, to those in the present text. Indeed, in the draft convention submitted by the Soviet Union to the General Assembly at its twenty-ninth session... the scope of the proposed prohibition is wider... The changes which have been made are the result of the... Soviet - United States negotiations on this question... The considerations expressed by certain representatives concerning the extension of the scope of the prohibition have been linked by them to a substantial change in the procedure for ensuring compliance with the convention... we believe that the draft convention submitted by the USSR and the United States offers the optimum solution to these problems, i.e., to the problem of the scope of the prohibition and the problem of guaranteeing this prohibition. (CCD/PV.698; 30 March 1976, pp. 14-15)
The troika was presented as key to verification, to avoid controversies arising from "trivial" environmental destruction. Without the troika, the US and USSR claimed, the complaints procedure could be abused when the effects of the environmental modification were minor. The US:
In thus defining the scope of the prohibition, the draft takes into account both the need to provide effective protection against the dangers to which the convention is addressed, and the need to ensure that the prohibition will be implemented faithfully and will not give rise friction and controversy over trivial issues. With respect to the latter point it is important to bear in mind that the difficulties of determining compliance increase as the scale of a particular banned activity is reduced. (CCD/PV.691; 4 March 1976, p. 12)
This restrictive formulation of the prohibition was included in the text of the article in order to indicate in the convention that the prohibition applies to substantial measures to modify environment - measures which are obvious and which cannot give rise to any doubt as to whether they are occurring or not. This narrows the possibility of creating debatable situations in which the effects of the use of environmental modification techniques would not be of a 'widespread, long-lasting or severe' nature. (CCD/PV.698; 30 March 1976, p. 15)
Despite the arch-enemies' cooperative defense, the troika received serious criticism from countries who found the terms "widespread, long-lasting and severe" unacceptably ambiguous. These critics included the United Kingdom, West Germany and the Netherlands, who held the view that ENMOD could be used to legitimize hostile environmental modification because countries could argue that their activities fell underneath the threshold.
An Understanding for the terms "widespread, long-lasting and severe" was drafted, as an interpretative text, but not an integral part of the Convention (the Understanding [pdf]). This partially allayed the concerns of some critics. The Understanding, defined "widespread" as encompassing an area of several hundred of square kilometers; "long-lasting" as a period of months or a season, and "severe" as involving serious or significant disruption or harm to human life, natural and economic resources or other assets.
Mexico was one of the most outspoken critics of the troika and repeatedly proposed its elimination. The troika amounted to an international convention legitimizing use of "monstrous" hostile environmental techniques as means of destruction, made worse, in Mexico's view, by the subjectivity inherent in the assessment of such effects. Mexico's ambassador denounced the troika in scathing diplomatic language:
... the text of article I which the super-Powers are now proposing to us is, by any reckoning, inadequate and ambiguous... In order to make clear what we have called the very serious dangers of the foregoing provisions, we need only to re-word them in a positive form which is equivalent from the legal point of view; the text would then read:
"Each State Party to this Convention shall be entitled to use environmental modification techniques for military or other hostile purposes as the means of destruction, damage or injury to another State Party, provided that such techniques do not have widespread, long-lasting or severe effects."
It really seems to us extremely alarming that there can be any thought of legitimizing, in an international convention, such monstrous actions as these, provided that they do not have "widespread, long-lasting or severe effects" especially if it is borne in mind that in the assessment of such effects there will always, inevitably, be a large subjective element. (CCD/PV.724; 25 August 1976, p.8)
The US conceded to its alarmed neighbor that activities below the threshold would not be illegal; but argued that fear of surpassing the threshold would operate as a deterrent:
Given the lack of precise control over such techniques, it is unlikely that any party would attempt to use them to cause sub-threshold effects, because of the risk of producing destruction, damage or injury above the threshold. (CCD/PV.727; 3 August 1976, p. 16)
But Pakistan, Poland, Egypt, Argentina, Mongolia, Romania and Iran sided with Mexico. It was also argued, particularly by Romania and, to some extent, the Netherlands, that the troika created unequal protection for parties, placing small countries and developing countries in disadvantage:
... we believe that circumstances might arise in which the Convention would not provide equal protection for the States parties. It has already been stated that the term 'widespread', defined as covering a more or less specific area, applicable in all cases, could of course place countries with a small territory at a disadvantage. Similarly, the term 'long-lasting' may have a certain meaning for economically developed countries which are, therefore, able to make a rapid recovery, an another meaning for countries with limited economic and technological potential. The same doubts arise concerning the word 'severe'. (CCD/PV.703; 20 April 1976, p.17)
The superpower argument that the troika would facilitate compliance was widely contested. Argentina, for instance, did not think that the number of trivial issues raised would be greater at ENMOD than the Biological Weapons Convention, where such a threshold did not exist. The consultation process established in Article V, along with the qualification in the intention of the State (to produce damage, injury or destruction) would be enough to establish the limits to the prohibition. Said Argentina:
As regards the so-called 'trivial issues', we should like to point out that such issues do not arise from the scope of the ban but from the lack of mutual trust among the parties to a convention. We do not believe that the chances of such issues arising in this case are greater, for instance, that in the case of the far broader ban on bacteriological and toxin weapons. We have not heard of any trivial issue having been raised under the Convention on that subject... In our view, it is through consultation and not through such an uncertain limitation of what is to be prohibited that friction and controversy will be eliminated. (CCD/PV.695; 18 March 1976, p. 10)
Iran was skeptical that the troika would have the effect of to avoiding controversy because, it suggested, even in a serious violation a party could claim that its action falls below the threshold. Iran's compromise suggestion was that the troika be lifted when verification systems were developed:
Yet it seems to us that, if the hostile use of environmental modification techniques is banned only when they have 'widespread, long-lasting or severe' effects, it will still be difficult to avoid controversy. In the case of an activity suspected of being contrary to the provisions of the convention, the party in question would surely deny that his action could be defined by any of these three criteria... If the scope of the ban has been determined by the problem of identifying small-scale hostile activities, then it should be possible to enlarge the scope as verification improves. (CCD/PV.697; 25 March 1976, pp. 30-31)
Also related to scope was the question of whether the protection from environmental modification was limited to State parties, or if it extended to non-party victims. Mexico, the Netherlands, Japan, Iran and Egypt, among others, called for extending the scope of the convention's protection to cover non-Parties. Japan (CCD/PV.699; 1 April 1976, p. 8) and Mexico (CCD/PV.724; 26 August 1976, p. 9) introduced proposals to that effect. One of the arguments in favor of abolishing the distinction was that the effects of environmental modifications like geophysical warfare (e.g. triggering earthquakes) could spill over international borders, impacting many parties and non parties (CCD/PV.692; 9 March 1976, p. 31). The US and USSR insisted in limiting the protection to parties only, arguing that was an incentive to adhere to the convention. According to the USSR:
If the application of such techniques to States not parties to the convention were prohibited as well, the latter would be in a special position. They would enjoy the privileges deriving from the convention, but at the same time would remain free to apply environmental modification techniques for military purposes against parties to the convention. (CCD/PV.698; 30 March 1976, p. 17)
India, Mongolia and Bulgaria agreed with the US and Soviet position.
Furthermore, a ban on research and development of hostile environmental modification techniques. This was included in the 1974 Soviet draft, as well as in U.S. Senate discussions in ENMOD; but deleted in the joint USSR - US text. Several CCD participants spoke in favor of restoring the research and development prohibition. Supported by Hungary, the Netherlands suggested extending the ban to those activities:
Arms control should start at the root of the problem, before weapons and weapon-systems are developed, tested and deployed... It is true that most of the basic research in this field could be used both for hostile and peaceful purposes. However, we must realize that with respect to activities specifically aimed at hostile applications, preparations will normally be in the form of development activities, instead of basic research... In this respect I may mention also that certain environmental modification activities could only be used for hostile purposes, so there is no reason not to prohibit the development of such techniques... (CCD/PV.692; 9 March 1976, p. 32)
Such proposals were quickly rejected by the US and USSR. The US argued that including research and development is unrealistic and ineffective, because of dual use of techniques and difficulties in verification (CCD/P.V.703; 4 April 1976). Similar views were expressed by the Soviets.
Also pertaining to Article I, are the definition of hostile intent and the distinction between hostile and military use. Hostile intent was inserted primarily to include both regular and irregular conflicts. According to the Soviet Union, which also wished to reserve for itself far more than testing and development latitude than the Netherlands and the majority of states favored:
The term 'military or any other hostile use' contained in this article and in the title of the draft convention is justified and logical, and should not be considered in isolation but in the context of the whole article, which also contains the expression 'as the means of destruction, damage or injury to another State Party'. This combination makes possible, on the one hand, to prohibit the use of environmental modification techniques for purely military purposes as a weapon and, on the other, to prohibit their use for any other hostile purposes, even if they are not used by armed forces and in the absence of any armed conflicts. At the same time, this formulation excludes from the prohibition the use of such techniques in cases where they do not have a hostile character and are not designed to cause destruction damage or injury, including situations where such techniques are used by armed forces, for example, during maneuvers, or for providing assistance to the national economy, for scientific purposes, etc. (CCD/PV.726; 2 September 1976, p. 10)
According to the US, ENMOD applies to hostile use carried out by military personnel or others, techniques used in conjunction with other weapons during wartime, in situations in which no other weapons were being used, and where no overt state of conflict exists (CCD GE.76-84195).
Differences of opinion emerged regarding the inclusion of the terms "military and hostile use". Some countries, such as the UK supported by Egypt, felt that the term military was redundant, since "if an action is hostile, it doesn't matter whether the perpetrator is wearing uniform" (CCD/PV.695; 18 March 1976, p. 13).
The question of extending the ban to threat of use was also addressed. Backed by West Germany, Japan, Pakistan, Egypt and Italy, Sweden tried to prohibit the threat of using environmental modification. Sweden based its position on a principle included in the UN Charter:
My delegation continues to hold the view that not only the use but also the threat of use of environmental modification techniques should be forbidden. Such construction would correspond to one the basic principles laid down in article 2(4) of the United Nations Charter, which bans not only the use of force, but also the threat of such use. (CCD/PV.697; 26 February 1976, p. 26)
Yugoslavia, India and the USSR agreed with Sweden's basic position; but argued that such a prohibition was implicit and need not be articulated. The US was opposed prohibiting threat of use, arguing that it would make implementation of the Convention extremely burdensome:
In our view, attempting to prohibit threat of use could raise difficulties of implementation disproportionate to any potential benefits. It might be quite difficult to determine whether or not a threat had been made, particularly if it were stated or carried out in an ambiguous manner. There would be a risk that unfounded accusations and controversies could weaken the treaty. (CCD/PV.691; 4 March 1976, p. 14)
Finally, the definition, among the terms of the troika, the concept of "widespread" received particular attention. The issue in question was whether the cumulative effect of several distinct activities/episodes over time could be accepted as satisfying the widespread criteria. Some delegations felt the question would be relevant for environmental modification techniques such as the spraying of herbicides. The US accepted that the damage could be the result of cumulative operations, conducted over a period of "months or years":
In order to meet the 'widespread' criterion, in our view an entire area on the scale that I have mentioned would have to experience destruction, damage or injury at approximately the same time. This could result from a single operation or it could be the cumulative result of a series of operations conducted over a period of months or years. (CCD/PV.703; 20 April 1976, p. 8).
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