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Agent Orange's Shadow: Herbicides and ENMOD
Prior to the negotiation of ENMOD, the massive US use of herbicides in Southeast Asia had become an issue of global controversy. In the 1960s and early 70s, the US sprayed broad spectrum herbicides over a huge area of Vietnam's forest and cropland, approximately 2.5 million hectares in total. The horrendous environmental and human health consequences for Vietnam and its people (and even for some of the US soldiers) were apparent in the 1970s and remain so today.
While the devastating impact of Agent Orange and other 'defoliants' drove countries toward negotiating ENMOD, they made few explicit references to US use of herbicides in Vietnam. This is because an international consensus had already emerged that the spraying had violated international law. In 1969, the General Assembly approved Resolution No. 2603-A (XXIV), restating that the 1925 Geneva Protocol prohibited the use of chemical or biological agents against plants in international armed conflicts. The United States did not accept this interpretation and voted against the resolution.
The US insisted that herbicide weapons were entirely permissable until 1975. In that year the US ratified the 1925 Protocol, and restated its interpretation of the legality of herbicides in warfare:
The United States renounces, as a matter of national policy, first use of herbicides in war except use, under regulations applicable to their domestic use, for control of vegetation within U.S. bases and installations or around their immediate defensive perimeters... (Executive Order 11850, 8 April 1975)
Less than two weeks after the US Executive Order, the more specific question of defining the use of herbicides as a violation of ENMOD was raised by the United Kingdom at the CCD. To the relief of many, the US delegation echoed the Executive Order's language and declared its view that use of herbicides would violate the convention (although,of course, provided that at least one of the troika conditions was met):
One question, raised most recently by the representative of the United Kingdom, is whether the use of herbicides as an instrument for upsetting the ecological balance of a region would be prohibited. In our view, the convention would prohibit such use of herbicides as the means of destruction, damage, or injury if the effects were widespread, long-lasting, or severe. An upset of the ecological balance of a region through the use of such techniques would be, at a minimum, a widespread effect. The convention would not, of course, affect the use of herbicides for control of vegetation within military bases and installations around their immediate defensive perimeters. (CCD/PV.703; 20 April 1976, p. 10)
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