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Articles II, III, IV
Article II
As used in Article I, the term "environmental modification techniques" refers to any technique for changing -- through the deliberate manipulation of natural processes -- the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space.
During the negotiation of ENMOD the merits of including a list of specific natural phenomena that could be altered through environmental modification techniques was discussed. A proscriptive list of prohibited types of activities was included in US Senate Resolution 71 (103), and a descriptive list was included in the identical texts. Delegations expressed concern that including a list would inevitably leave out phenomena of concern. Proponents of the list made clear that it was only intended to be illustrative. That is, that the list would facilitiate understanding of the Convention and did not constitute a comprehensive itemization of prohibited environmental modifications. Among the proponents was West Germany:
A general clause has the advantage of covering both existing and possible future techniques. It would, moreover, be impossible to draw up an exhaustive list either of existing or possible techniques, and considerable work would be necessary to keep up to date. On the other hand, we feel there should be some reference to significant examples of environmental modification techniques, for otherwise the general public would find it difficult, in view of the complex issues involved, to understand what the convention is all about. (CCD/PV.697; 25 March 1976, p. 8)
Sweden opposed the language of Article II. It argued that even if simply illustrative, the drafting approach gave the impression that the threshold of violation was higher:
We continue to have difficulties with the list of examples given in article II. The list seems to us superfluous. It would have no legal effect, but by being limited to these cases, which apparently would invariable fall under the ban, the list gives the impression that the threshold of the whole treaty is higher than is actually the case. There is also the risk, as we have said before, that such examples could focus attention on methods for environmental modification for hostile purposes which might prove to be insignificant in the future.Ó (CCD/PV.697; 25 March 1976, p. 27)
Supported by the US and USSR, the list remained. In a gesture to Sweden and its allies, an Understanding was drafted to clarify that the list was "not exhaustive" and that the absence of any particular phenomenon from the list "does not in any way imply that the undertaking contained in Article I would not be applicable..." (CCD 518; 2 September 1976, p. 7).
Article III
1. The provisions of this Convention shall not hinder the use of environmental modification techniques for peaceful purposes and shall be without prejudice to the generally recognized principles and applicable rules of international law concerning such use.
2. 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 co-operation in the preservation, improvement, and peaceful utilization of the environment, with due consideration for the needs of the developing areas of the world.
Similar to Article X, para. 1 of the Biological and Toxin Weapons Convention, the second paragraph of ENMOD's Article III relates to international cooperation on environmental modification techniques for peaceful uses. In other words, technology transfer. This article was not included in the US-USSR identical texts and came into being as a result of the efforts of developing countries including Egypt and, here, Argentina:
One cannot lose sight of the importance of peaceful applications for developing countries. In my country, for example, research is being carried out with the view of using environmental modification techniques to combat hail and frost, and for the control of heavy rains. (CCD/PV.695; 18 March 1976, p. 12)
Supported by the Netherlands and Bulgaria, the US resisted this language, taking the arguably paternalistic position that the benefits of such techniques were unclear or that they might be offset by risks:
In connection with peaceful uses of environmental modification techniques, it has been suggested that the convention should contain a positive commitment by parties to co-operate in the promotion of such uses, along the lines of article X of the Biological Weapons Convention. There is, however, no clear parallel between peaceful uses of biological agents, notably for medical research, and the potential but as yet largely underdeveloped peaceful use of environmental modification techniques. These techniques are still in a very early stage and it is not clear what benefits they have or whether the benefits outweigh the risks involved. (CCD/PV.691; 4 March 1976, p. 16)
The Netherlands:
I wholeheartedly agree with the United States view that there is no need to incorporate an article along the lines of article X of the Biological Weapons Convention. The treaty under discussion need not encourage parties to develop and use environmental modification techniques for peaceful purposes. (CCD/PV.692; 9 March 1976, p. 33)
Some countries, concerned by the serious effects all environmental modification, proposed that international regulation be extended to peaceful environmental modification activities. Concerned over transboundary effects, Sweden called for the development of international legal principles and guidelines:
Even peaceful measures involved in this context are often of such magnitude that the effects extend beyond the territory of one State. Spillover effects into other States or international areas are very likely to occur. It is important that international legal principles and guidelines be developed simultaneously or Ðeven better, one step ahead of the scientific progress in this field. (CCD/479; 24 February 1976, p. 1)
Iran and Hungary suggested that UN agencies, including the United Nations Environment Program (UNEP) and the World Meteorological Organization (WMO), should deal with peaceful environmental modification. Pakistan advocated making peaceful modifications subject to the Convention, to avoid their being diverted into hostile use. Pakistan said Article III:
appears to give the so-called 'peaceful' uses a status higher than the Convention itself. We have no quarrel with the fact that the use of these techniques for peaceful purposes should be allowed. But we feel that such uses should be allowed under the Convention and there should be safeguards of some sort as to ensure that such uses for ostensibly peaceful purposes should not be such as can be easily diverted to hostile use, and in particular such use as can have an adverse effect on another State, for example a neighboring one. (CCD/PV.717; 3 August 1976, p. 17)
The U.S. asserted that all its research on environmental modification techniques was carried out on unclassified basis and pledged to share information:
I should point out that all United States research in the field of environmental modification is conducted on unclassified basis, and there is absolutely no desire on our part not to share technical information. (CCD/PV. 691; 4 March 1976, p. 16).
Article IV
Each State Party to this Convention undertakes to take any measures it considers necessary in accordance with its constitutional processes to prohibit and prevent any activity in violation of the provisions of the Convention anywhere under its jurisdiction or control.
There was little discussion of Article IV on domestic compliance with ENMOD, and it is almost identical to that contained in the US and Soviet text. The Netherlands expressed its preference to omit the article arguing that it could lead to delays in ratification, while India wanted to leave the adoption of domestic law optional to parties.The Soviet Union stressed that the "the formulation of the article left no room for doubt that every State was free to determine independently, in accordance with its own legislation, the procedure for carrying out the provisions of the Convention" (quoted in ENMOD/CONF II./2; p. 9). The US said that the objective of the article was simply to provide for legal implementation of the article at the domestic level, whenever that was needed.
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