¹ The principal basis for current local weather modification to date has normally involved the use of cloud “seeding” with dry ice pellets or smoke generated from silver iodide crystals. For a general survey see Report of the Special Commission on Weather Modification, Weather and Climate Modification ([Washington]: National Science Foundation, 1965)Google Scholar. The Union of Soviet Socialist Republics claims success in the hail field.

² Suggestions to date which indicate the scope of conceivable major weather control projects include those of the late Harry Wexler, chief scientist for the United States Weather Bureau, for a spread of lampblack on the polar icecap, of the Russians to dam the Bering Strait, and of Walter Roberts to create layers of artificial cirrus clouds to help influence storms. Most would be very costly; the actual effects of any of them would presently be in part unpredictable. See the testimony of Walter Orr Roberts, U.S. Congress, Senate, Committee on Commerce, Hearings, on S.23 and S.2916, Weather Modification, 89th Congress, 1st and 2nd Sessions, 1965–1966, Part I, pp. 116, 351–352. [Hereinafter cited as Hearings.]

Mr. Wexler also proposed an artificial way of altering the radiation balance by use of thermonuclear explosions to make a tremendous eruption of steam from the Arctic Ocean. He noted that there might be undesirable side effects for some regions. See also Byers, Horace R., “What Are We Doing About Weather,” in Jarrett, Henry (ed.), Science and Resources: Prospects and Implications of Technological Advance (Baltimore, Md: Johns Hopkins Press [for Resources for the Future, Inc.], 1959), pp. 37 and 52–53Google Scholar.

³ The definition of weather modification used in the 1966 Report of the National Academy of Sciences will serve us as a standard here:

The subject of weather and climate modification is concerned with any artificially produced changes in the composition, behavior, or dynamics of the atmosphere. Such changes may or may not be predictable, their production may be deliberate or inadvertent, they may be manifested on any scale from the microclimate of plants to the macrodynamics of the worldwide atmospheric circulation.

See Weather and Climate Modification—Problems and Prospects, Vol. I: Summary and Recommendations, Final report of the Panel on Weather and Climate Modification to the Committee on Atmospheric Sciences, National Academy of Sciences (Publication No. 1350) (Washington: National Research Council, National Academy of Sciences, 1966), p. 1Google Scholar.

⁴ On present programs for gaining information on what “weather” is see, e.g., testimony of Roberts, , Hearings, 89th Congress, 1st and 2nd Sessions, pp. 116, 347Google Scholar.

⁵ See, e.g., National Science Foundation, Weather Modification, Seventh Annual Report, 1965Google Scholar; Eighth Annual Report, 1966; Ninth Annual Report, 1967. See also U.S. Congress, Senate, Weather Modification and Control, a Report for the Use of the Committee on Commerce (Report 1139), 89th Congress, 2nd Session, 1966, especially pp. 45–46.

⁶ On risks in weather modification to the world ecosystem see Sargent, Frederick II, “A Dangerous Game: Taming the Weather,” Scientist and Citizen, 05 1967 (Vol. 9, No. 5), pp. 81–88CrossRefGoogle Scholar. To the effect that the existence of national boundaries has already caused limitations on programs of weather modification see the testimony of Krick, Irving P., Hearings, 89th Congress, 2nd Session, p. 405Google Scholar (re the Columbia River Basin). On the eventual need for an “international weather control commission” see St. Amand, Pierre, Hearings, 89th Congress, 1st Session, p. 38Google Scholar, and Krick, , Hearings, 89th Congress, 2nd Session, p. 423Google Scholar.

⁷ In early July 1967, for example, there were press reports of a United States–Cuba arrangement permitting overflights of Cuba by American planes studying hurricanes and techniques for “modifying” them. The United States–Cuba arrangement did not involve joint attempts to modify these storms. The United States has sought and received permission from Canada to seed clouds on the Canadian portion of the Great Lakes in circumstances where all effects anticipated would occur on American territory. The United States has also set standards for its Project Storm Fury, an effort to seed hurricanes in the Atlantic, to avoid risk to the United States and to the Bahamas. Other international research–oriented cooperative activities are noted below.

⁸ See World Meteorological Organization, Second Report on the Advancement of Atmospheric Sciences and Their Application in the Light of Developments in Outer Space (Geneva: World Meteorological Organization Secretariat, 1963)Google Scholar.

⁹ Dr. Roberts, for example, has noted that in addition to the costs and unpredictability of experimentation in major weather modification projects

we cannot at present even determine that such ideas, if tried out in reality, would not backfire, producing harmful effects, perhaps even irreversible harmful effects, not only in their immediate regions but all the way around the globe.

In short, to try such schemes in nature on the basis of the partial knowledge that exists today would entail serious risk that we cannot and must not take.

See Hearings, 89th Congress, 1st Session, p. 116. For his suggestion that they be “tried out” in simulations on computers see Roberts, Walter, “The State of the Art in Weather Modification,” in Taubenfeld, Howard (ed.), Weather Modification and the Law (Dobbs Ferry, N.Y: Oceana Publications, 1968)Google Scholar.

¹⁰ In a similar vein Edward Teller told the Senate Military Preparedness Subcommittee in November 1957:

Ultimately, we can see again and again that small changes in the weather can lead to very big effects…

Please imagine a world in which the Russians can control weather in a big scale, where they can change the rainfall over Russia, and that—and here I am talking about a very definite situation—that might very well influence the rainfall in our country in an adverse manner…

What kind of a world will it be where they have this new kind of control, and we do not? Cited by Anderson, Clinton P., “Toward Greater Control: High Risks, High Stakes,” in Jarrett, (ed.), pp. 60–61Google Scholar.

¹¹ von Neumann, John, “Can We Survive Technology?” Fortune, 06 1955 (Vol. 51, No. 6), pp. 107, 152Google Scholar. See also Anderson, in Jarrett (ed.), p. 61, and Malone, Thomas F., Hearings, 89th Congress, 1st Session, p. 142Google Scholar.

¹² Malone, , Hearings, 89th Congress, 1st Session, p. 33Google Scholar. On military short-run interests in weather phenomena which influence military operations see remarks of Chalmers W. Sherwin, ibid., pp. 156, 161. Weather modification efforts could possibly produce or eliminate concealment in military operations, for example.

¹³ Thomas F. Bates, ibid., p. 219.

¹⁴ Bates, , Hearings, 89th Congress, 2nd Session, p. 321Google Scholar. There do not seem to have been any international problems between the United States and Canada or Mexico to date with respect to American weather programs though currently discussed types of modification activities in the United States could obviously cause concern across those borders in time. See the testimony of Joyce, J. Wallace, Hearings, 89th Congress, 1st Session, p. 237Google Scholar, and colloquy between Dr. Joyce and Senator Daniel Brewster, Ibid..

¹⁵ Joyce, , Hearings, 89th Congress, 1st Session, p. 238Google Scholar.

¹⁶ Cleveland, Harlan, “The Politics of Outer Space,” Department of State Bulletin, 06 21, 1965 (Vol. 52, No. 1356), p. 1010.Google Scholar

¹⁷ Of the eight cases in the United States records to date, one was abandoned before a decision was reached; two in Pennsylvania are before appellate courts as of this writing; three in Oklahoma, Washington, and California saw plaintiffs defeated on the ground that they could not show that modification efforts had caused their damage; one in Texas saw an injunction issued on the belief that cloud seeding did cause harm to the plaintiff; and one in New York held that cloud seeding could continue even if the plaintiff could show harm where the modifier was the city of New York attempting to alleviate drought conditions. In each the court seems to have accepted the fact that “rainmaking” was possible. All involved commercial efforts to achieve a specific weather objective; none involved weather modification research as such. On causation see also Hassialis, Menelaos D., Bernstein, Robert I., and O'Neill, Lawrence H., Some Major Hazards in Government Sponsored Activities (New York: National Aeronautics and Space Administration, 1964), pp. 131–132Google Scholar.

¹⁸ It is a usual rule that equity will not attempt to cut off a governmental function by injunction. This was an important point in Slutsky v. the City of New York (97 N.Y. S. 2d 238 [1958])Google Scholar.

In the United States where acts are performed by the general government which is ordinarily immune from suit the Federal Tort Claims Act provides limited relief where an officer or employee of the United States is negligent, but the Act expressly excludes claims based on the exercise of a “discretionary function” of die government. In addition, and important from our point of view, the Act excludes recovery for harm which occurs in a foreign country. Even such places as the Pacific trust studies of the domestic liability problems arising out of United States government programs have been published although many basic questions remain unanswered. See, for example, Rosenthal, Albert J., Korn, Harold L., and Lubman, Stanley B., Catastrophic Accidents in Government Programs (Washington: National Security Industrial Association, 1963)Google Scholar.

¹⁹ Some United States departments and agencies may settle certain claims administratively. There is normally a low ceiling on the recovery. See Gilman, Donald L., Hibbs, James R., and Laskin, Paul L., Weather and Climate Modification: A Report to the Chief, United States Weather Bureau (Washington: U.S. Department of Commerce, 07 10, 1965), passimGoogle Scholar. In a few recent analogous instances of great notoriety the United States Congress has authorized payments to the victims of United States activities which while lawful in United States' eyes did involve a high degree of risk. Thus, some $2,000,000 was paid to Japan for the relief of those injured on the Japanese fishing vessel, the Lucky Dragon, which was caught in the fallout of a nuclear test explosion in 1954. This payment was made ex gratia, that is, with no admission of legal liability. Some Pacific islanders were also affected. Payments to the islanders were approved by Congress only in late 1965. See McDougal, Myres S. and Schlei, Norbert A., “The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security,” Yale Law Journal, 04 1955 (Vol. 64, No. 5), p. 648CrossRefGoogle Scholar; Taubenfeld, Howard, “Nuclear Testing in International Law,” Southwestern Law Journal, 09 1962 (Vol. 16, No. 3), p. 365Google Scholar.

²⁰ Cf. United Nations Charter, Articles 2(7) and 51.

²¹ On accepted sovereignty in airspace see Article 1 of the Chicago Convention on International Civil Aviation, December 7, 1944, in U.S. Treaties and Other International Acts Series, No. 1591 (Department of State Publication 2816) (Washington: United States Government Printing Office, 1947)Google Scholar.

²² Corfu Channel case, Judgment of April 9th, 1949: I.C.J. Reports 1949, pp. 4, 22.

²³ See American Journal of International Law, 10 1941 (Vol. 35, No. 4), pp. 684–734Google Scholar. See also Oppenheim, L., Peace, Vol. I of International Law: A Treatise, ed. Lauterpacht, H. (2 vols.; 8th ed.; New York: David McKay Company, 1955), pp. 290–291, 365Google Scholar.

²⁴ On the effectiveness as law of General Assembly resolutions see, e.g., Higgins, Rosalyn, The Development of International Law through the Political Organs of the United Nations (London: Oxford University Press [under the auspices of the Royal Institute of International Affairs], 1963)Google Scholar.

²⁵ See, e.g., Olmstead, C. J., “Uses of the Waters of International Rivers,” Report of the 51st Conference (London: International Law Association, 1965), pp. 119ffGoogle Scholar. The study of river problems is of special interest since efforts at rainmaking may have a direct effect on the rivers.

There are, of course, special treaty arrangements dealing with use and control of specific rivers—the Rhine, the Danube, the Columbia, etc. There are also special treaty arrangements concerning pollution: the Treaty of the European Atomic Energy Commission (Euratom), for example, deals with potential radioactive pollution of all waters affected by Euratom experiments and activities. See also in general Berber, F. J., Rivers in International Law (Library of World Affairs Series, No. 46), ed. Keeton, George W. and Schwarzenberger, Georg (New York: Oceana Publications [for the London Institute of World Affairs], 1959Google Scholar; Wolman, Abel, “Pollution As An International Issue,” Foreign Affairs, 10 1968 (Vol. 47, No. 1), pp. 164–175CrossRefGoogle Scholar.

²⁰ On the European river commissions (the Danube, the Rhine) see Francis Bowes Sayre, Experiments in International Administration (New York: Harper & Brothers, 1919)Google Scholar; Jessup, Philip C. and Taubenfeld, Howard J., Controls for Outer Space and the Antarctic Analogy (New York: Columbia University Press, 1959). PP. 98–100.Google Scholar

²⁷ Griffin, W. L., “Legal Aspects of the Use of Systems of International Waters,” Department of State Memorandum, 85th Congress, 2nd Session, 1958, pp. 89–91Google Scholar.

²⁸ See Wolman, , Foreign Affairs, Vol. 47, No. 1, pp. 167–169Google Scholar, for the failure “to come to grips with the hard-core questions” of pollution control.

²⁹ See Doherty, Kathryn B., “Jordan Waters Conflict,” International Conciliation, 05 1965 (No. 553), especially pp. 11, 35Google Scholar.

³⁰ Between good neighbors one might even foresee the necessity of a regional security system for control of strategic information obtained from joint weather operations. This is unlikely to be welcomed by security-sensitive national states. A compromise stressing the national operation of an internationally regulated, coordinated program is more likely.

³¹ On the activities of the International Civil Aviation Organization and the International Atomic Energy Agency see die Yearbooks of the United Nations (Lake Success, New York, 1946–1948; New York, 1949–), passimGoogle Scholar; see also “International Cooperation and Organization for Outer Space,” Staff Report Prepared for the Committee on Aeronautical and Space Sciences, 89th Congress, 1st Session, 1965.

³² See U.S. Congress, Senate, “Policy Planning for Space Telecommunications,” Staff Report before the Committee on Aeronautical and Space Sciences, Committee Print, 86th Congress, 2nd Session, 1960.

³³ On ITU see Codding, George Arthur, The International Telecommunication Union: An Experiment in International Cooperation (Leiden: E. J. Brill, 1952)Google Scholar; “International Cooperation and Organization for Outer Space,” 89th Congress, 1st Session, 1965, pp. 263–284; Taubenfeld, Howard and Lay, S. Houston, The Law Relating to the Activities of Man in Space (Chicago: University of Chicago Press, forthcoming), Chapter 5Google Scholar.

³⁴ See, e.g., Inter-American Arrangements Concerning Radio Communications, in Sanger, George P. (ed.), United States Statutes at Large, Vol. 54, Part 2 (Washington: U.S. Government Printing Office, 1941), p. 2514.Google Scholar

³⁵ See Underwood, James L., Problems of Participation in the Global Commercial Communications Satellite System, South Carolina Law Review, 1966 (Vol. 18, No. 1), pp. 796, 807–811Google Scholar.

³⁶ See Cleveland, Harlan, “The Political Year of the Quiet Sun,” speech before the Conference Group of United States National Organizations of the United Nations, Carnegie Endowment for International Peace, New York, 02 27, 1964Google Scholar, reprinted in the Congressional Record, 88th Congress, 2nd Session, 1964, Vol. 110, Part 4, pp. 5644–5646. On the international implications see also Malone, Thomas F., “Weather Modification: Implications of the New Horizons in Research,” Science, 05 19, 1967 (Vol. 156, No. 3777), pp. 897–901.CrossRefGoogle ScholarPubMed

⁸⁷ The New York Times, March i, 1966, p. 15.

³⁸ See, e.g., National Aeronautics and Space Administration, Press Release (No. 65–325), 10 8, 1965Google Scholar; Normyle, William J., “Soviet Weather Satellite Photos Sent to U.S.,” Aviation Week, 09 26, 1966 (Vol. 85, No. 13), pp. 26–27Google Scholar.

³⁹ Within the United States various phenomena in addition to industrialization and the automobile have led to weather modification. Thus the introduction of wide-scale irrigation in Arizona has led to a wetter and more humid climate so that air conditioners rather than evaporative coolers are needed.

⁴⁰ The countries include Rumania, Yugoslavia, Hungary, and the Soviet Union.

⁴¹ On the World Meteorological Organization and its background sec U.S. Congress, Senate, “International Cooperation and Organization for Outer Space,” 89th Congress, 1st Session, 1965, pp. 284–308; Transport and Communications Review (United Nations), 04–06 1950 (Vol. 3, No. 2)Google Scholar; World Meteorological Organization, The First Ten Years (1961)Google Scholar; Herrich, Casey I., “From Geneva,” Vista, 09–10 1967 (Vol. 3, No. 2), pp. 27–37Google Scholar; Yearbook, of the United Nations: 1947–48 (Lake Success, N.Y: United Nations, 1949), pp. 980–983Google Scholar, and annually thereafter. In its predecessors the members were the directors of official meteorological services of states and territories.

⁴² World Meteorologiual Organization, First Report on the Advancement of Atmospheric Sciences and Their Application in the Light of Developments in Outer Space (Geneva: World Meteorological Organization Secretariat, 1963), pp. 7–8Google Scholar.

⁴³ On die World Weather Watch and related matters see Yearbook, of the United Nations, 1966 (New York: United Nations, 1968), pp. 1053–1055Google Scholar; UN Monthly Chronicle, 05 1967 (Vol. 4, No. 5), pp. 87–88Google Scholar; Malone, Thomas F., “World Weather Watch,” Science, 11 4, 1966 (Vol. 154, No. 3749), pp. 678–679CrossRefGoogle ScholarPubMed; Walsh, John, “World Weather Watch: Meteorologists of die World Unite,” Science, 06 16, 1967 (Vol. 156, No. 3781), pp. 1470–1472CrossRefGoogle Scholar; Battan, Louis J., in a letter to the editor, Science, 09 15, 1967 (Vol. 157, No. 3794), p. 1263CrossRefGoogle Scholar.

⁴⁴ “Report of the Study Conference held at Stockholm, June 28-July n, 1967, on the Global Atmospheric Research Programme (GARP)” (Washington: ICSU/IUGG Committee on Atmospheric Sciences and COSPAR and WMO, National Academy of Sciences, 1967). See also footnote 43 above.

⁴⁵ Roberts, in Taubenfeld (ed.), p. 15.

⁴⁶ For the Charter of the Committee on Space Research (COSPAR) see The Yearbook, of the International Council of Scientific Unions (Rome: ICSU Secretariat, 1965), pp. 73–78Google Scholar. See generally Schwartz, Leonard E., International Organizations and Space Cooperation (Durham, N.C: World Rule of Law Center, Duke University, 1962), pp. 32–56Google Scholar; Van de Hulst, H. C., “COSPAR and Space Co-operation,” in Odishaw, Hugh (ed.), The Challenges of Spact (Chicago: University of Chicago Press, 1962), pp. 291–298Google Scholar.

⁴⁷ On the International Civil Aviation Organization's activities see, e.g., “International Cooperation and Organization for Outer Space,” 89th Congress, 1st Session, pp. 331–348; Jessup and Taubenfeld, pp. 87–89.

⁴⁸ Indeed, weather and other conditions might negatively affect the utility of satellite observations though they might not have the same effect on much lower surveillance from weather balloons and aircraft. Satellite observation, if limited to relatively "low resolution" sensors, might therefore be less objectionable.

⁴⁹ For an examination of these issues in some depth see Taubenfeld, Rita and Taubenfeld, Howard, The International Implications of Weather Modification Activities (Washington: Office of External Research, Department of State, 1968), pp. 45–59Google Scholar. See especially Article 9 of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, in “President Johnson Hails U.N. Accord on Treaty Governing Exploration of Outer Space,” Department of State Bulletin, 12 26, 1966 (Vol. 55, No. 1435), pp. 953–955Google Scholar.

⁵⁰ This is in part because in the international system different national populations may well receive the benefits and the costs of weather modification activities. Thus, for example, the people of the Gulf states of the United States may be spared hurricane damage; the people of the Altiplano may sustain grave water losses. If the irrigation or odier readaptation programs subsequently required for the latter were apportioned on a cost-benefit basis exclusively from the domestic Mexican point of view, they might well not be undertaken at all or might be very small. If so, Mexican opposition to the international hurricane modification program would be understandable.

⁵¹ See, e.g., Cleveland, Harlan, Department of State Bulletin, Vol. 52, No. 1356.Google Scholar

⁵² This would be a gain from B's point of view if it wanted war or wished to reduce the capacity of A to fight a war.