International Law and International Institutions in East Asia:

From the Cold-War to the Future


Susan S. Gibson *

Our defense is not in armaments, nor in science,
nor in going underground. Our defense is in law and order
.
Albert Einstein

A brief glance at the East Asian Cold War Timeline reveals the profound impact that international law and international institutions have had on shaping the political landscape in East Asia and the new order throughout the region. The Timeline also shows a trend of ever increasing use of international law and international institutions to resolve security issues and to further integrate the region with the rest of the world's economy.

During the Cold War, in East Asia as in the rest of the world, security issues tended to dominate the international legal order. Mutual Defense Treaties and Arms Sales or Arms Control Agreements were the main focus of nations throughout the world. If nations were working together, they were either working with their allies for defense and defense related issues, or negotiating with their enemies to control the proliferation of weapons of mass destruction. Battles were fought by the super-powers, but they were fought indirectly through the warring factions in other, often Asian countries. The Korean War and Vietnam War were two of the most significant battlegrounds of the Cold War. The end of the Cold War has brought new vigor to international law, and security issues are giving way to an increasing number of economic and trade initiatives.

The beginning of the Cold War can most clearly be traced to the Korean Peninsula, where the United Nations monitored its first elections in the southern half of a divided Korea in 1948, and authorized the first intervention after North Korea invaded South Korea in 1950. It is perhaps fitting that North Korea is also one of the last Cold War holdouts. However, despite North Korea's reluctance to abandon its isolationist, Cold War past, international institutions and international law are shaping events in North Korea Ō from international humanitarian aid efforts to relieve the North Korean famine, to international intervention and agreements regarding nuclear non-proliferation, and culminating with renewed four-nation peace talks to formally end the Korean War. When these Cold War security issues are settled, North Korea may be able to join the post Cold War world and its expanding international trade institutions.

North Korean is behind the times, but still a part of a growing trend. Every country, in every area of the Pacific Rim is increasingly affected by international law, and the global economy is bringing these nations into international and regional institutions as never before. The limited international economic agreements that were born during the Cold War have matured at a stunning rate since the Cold WarĖs end. In the same way that successive arms control agreements during the Cold War tended to get more specific and provide for greater verification,[n1] so too international trade agreements have expanded and deepened over time to include more nations, cover more issues, and often provide for stronger enforcement mechanisms. This is true for the European Union (EU), for the World Trade Organization (WTO), [n2] and for the Association of Southeast Asian Nations (ASEAN). In one of the most interesting turn-arounds in security relations, nations such as the United States and China, who were once Cold Warriors on the Korean Peninsula are now working together to help broker a lasting peace for the two Koreas. Similar patterns can be seen in Cambodia, in Vietnam, and in other nations of the world where the Cold Warrior nations fought their vicarious battles. Throughout the region, deepening economic ties, and the international institutions that foster those ties, have created forums for the discussion of security measures between countries that may never have come together to discuss security alone.

In East Asia, it is only in those nations that remain mired in Cold War communism that international contacts are dominated by arms control and security issues rather than trade and economic issues. Of course, for countries without free trade, this is not surprising. In the Asian Pacific, North Korea is the obvious example of a nation whose foreign affairs are dominated by security concerns Ō from nuclear weapons, to the sale of missile technology, to the possibility of thousands of refugees trying to escape its ever-worsening famine. China is an example of a nation making the transition from security concerns to trade in its international relations, with each increasingly impacting on the other. Issues regarding Taiwan and the South China Sea will be used to gauge ChinaĖs commitment to peaceful settlement of its disputes within the bounds of international law and international institutions, and thereby to determine whether China is ready to accept the responsibilities that come with membership in organizations like the WTO.

A look at a few case studies in East Asian affairs will serve to illustrate the growing shift from security concerns to wider integration into the world community and to show how international institutions continue to expand from their original purposes to increasingly shape the international relations of the nations of the world. While there are many other examples to choose from, this analysis will focus on the nuclear nonproliferation issues on the Korean Peninsula, and then on the expanding role of ASEAN.

The Korean Peninsula


North Korea's philosophy of self-reliance (juche), which has increasingly led to international isolation, is well known. During the Korean War and much of the Cold War, North Korea, under Kim Il Sung, formed partnerships with both of its communist neighbors and with few others. The full extent of Chinese and Soviet involvement in the events leading up to and during the Korean War is just now becoming widely known.[n3] North Korea's pattern of using both the Soviets and the Chinese to North KoreaĖs advantage became a standard practice for during most of the Cold War. As a result, the breakup of the Soviet Union and the resultant loss of foreign aid and assistance has drastically hurt North Korea. Prior to its break-up, the Soviet Union had been supplying North Korea with most of its fuel. Once the flow of Soviet supplied fuel stopped, North Korea began to experience severe power shortages and was forced to ration electricity beginning in the early 1990s.

On a recent trip to North Korea, U.S. Representative Tony Hall (D-Ohio) traveled the country with a Washington Post reporter to view first-hand the effects of the famine. Allowing a U.S. Representative and newspaper reporter to see vast areas of North Korea is a significant departure for the normally secretive and tightly closed North Korean society and is further evidence of the magnitude of the famine and other difficulties facing the North Korean government. These problems, which are caused by the breaking up of the old Cold War alliances, are forcing North Korea into the wider community of nations. What the visitors saw revealed much more than a food shortage. Hospitals lack basic medicines and the fuel shortage has left entire cities, to include the hospitals, without heat and often without lights. In addition, it was evident that the famine was caused by much more than a few years of drought and flooding.

As is common in many other centrally planned economies, the environment has suffered greatly under mismanagement Ō and years of poor farming policies have left the arable land destroyed from the overuse of petroleum-based fertilizers; the hills stripped of their top soil, which was removed to place on the fields; and the foothills stripped of their trees for other uses. These reckless land-use policies, combined with "an overall breakdown of the country's state-controlled and centrally planned system" have caused long-term, widespread famine and immense hardship throughout North Korea.[n4] Observers note that unlike the African famines, the famine in North Korea is much more extensive and food deprivation has been going on for an extended time Ō so much so that the younger generation of North Koreans are shorter than the older generation.[n5] In an effort to relieve the famine, North Korea has allowed numerous international relief agencies to operate in North Korea, to include the United Nations World Food Bank,[n6] and has apparently undertaken an approach of "bartering" for foreign policy concessions.[n7] At one point, the North Koreans suspended peace talks until the U.S. and South Korea agreed to certain conditions, to include the provision of one million tons of food.[n8]

It is against this backdrop that the Korean Peninsula became the focus of world attention in early 1993, when Kim Il Sung announced that North Korea would withdraw from the Nuclear Non-Proliferation Treaty (NPT).[n9] Some analysts were doubly concerned by the announcement because North Korea had already shown that it was willing to obtain much needed foreign currency by selling weapons to any buyer when it sold SCUD missiles and missile technology to Iraq and other nations. For them, this move was the first step in an attempt by North Korea to manufacture nuclear weapons both for itself and for sale Ō weapons that could be manufactured from the spent fuel used in North Korea's graphite-moderated nuclear reactors. For others, the announcement was seen as part of North KoreaĖs repeated efforts to pressure the United States into bi-lateral talks and to gain concessions that would lead to improved foreign relations and a lifting of U.S. trade restrictions.[n10] Until this time, the United States had held firm on its position that any talks concerned the entire Korean Peninsula and that South Korea must be a party at any talks regarding the Korean Peninsula.

In either event, the prospect of having an increasingly isolated and economically desperate North Korea in a position to manufacture and possibly sell nuclear weapons, along with the missiles to deliver them was frightening. A few weeks after North Korea announced its decision to withdraw from the NPT, the United Nations Security Council passed a resolution urging North Korea to "reconsider" its decision, to "reaffirm its commitment to the [Non-Proliferation] Treaty," and to "honor its non-proliferation obligations."[n11] These obligations included cooperating with the International Atomic Energy Agency (IAEA) inspections.

Despite several false starts and many stops along the way Ō to include a recess for the funeral following the death of North Korea's "Great Leader" Kim Il Sung, North Korea did ultimately agree to remain bound by the NPT as part of a Framework Agreement between the United States and North Korea.[n12] The Framework Agreement, which was finalized in October 1994, provided (1) for North Korea to replace its graphite-moderated reactors with light water reactors, which were to be funded by an international consortium; (2) for an international consortium to provide alternative energy sources (mostly heavy oil) to offset the loss of the graphite-moderated reactors; (3) for North Korea to cease use of its graphite-moderated reactors and dismantle them when the replacement is complete, and (4) for expert talks to discuss the storage and disposal of the spent nuclear fuel currently being held by North Korea. As part of the Framework Agreement, the United States and North Korea also agreed to "move toward full normalization of political and economic relations."[n13] The first major sticking point came soon after the agreement was signed, with the announcement that a South Korean firm would be building the light water reactors in North Korea. Later problems have cropped up on a wide variety of subjects, both large and small, to include one work stoppage precipitated by the discovery of a torn picture of Kim Il Sung in a wastebasket at one of the construction sites.

For the United States, the Framework Agreement was seen as a significant achievement that places the world in a much better security position than North KoreaĖs compliance with the NPT alone would have. Under the Framework Agreement, "North Korea must fulfill additional obligations beyond its NPT requirements. These include no more reprocessing of spent fuel, the shipment of spent fuel containing plutonium out of the country, and the dismantlement of the gas graphite reactor system."[n14] In addition to these security issues, the negotiation of the Framework Agreement also allowed the United States to move North Korea toward cooperation on other issues, and to "bring North Korea out of its international isolation and into the broader community of nations."[n15] Some of the measures to bring North Korea into the community of nations can be seen in the Framework Agreement itself, such as the promises to "move toward full normalization of political and economic relations," which includes reducing trade and investment barriers and opening liaison offices in each otherĖs capitals.[n16] Other international contacts are required as part of the implementation of the Agreement. Each step in the process will require North Korea to cooperate with international institutions, such as the IAEA; and with other nations, from the South Korean firm that will be building the light water reactors, to the KEDO nations that are overseeing and funding the project.[n17]

China, the region's main power, is in a difficult position with regard to the two Koreas and initially tried to distance itself from many of the recent North-South disputes, to include the North Korean nuclear issue. While no one doubts that the Chinese would rather not have another nuclear-armed neighbor on its northern border, as one commentator noted, China "feels that it must consistently defend sovereign rights, regardless of the gravity of the issue involved, lest it weaken its claim that China has the right to do whatever it wishes within its own borders."[n18] Recent events also highlight a transitional China that is trying to walk the line between old Cold War security issues and new global economic issues. As one commentator put it, for the Chinese, the Korean problem "underscores Beijing's divided loyalties between its staunch Communist allies in North Korea and its new-found capitalist friends and investors in the South."[n19] China, which is still party to a mutual defense treaty with North Korea, has, however, been an active participant in the four-nation peace talks aimed at concluding a permanent peace treaty and replacing the Korean War armistice that ended the fighting over forty years ago.[n20] So far, the four-nation talks have not produced much in the way of progress; nonetheless, the North Koreans are at least talking and the forum now exists to encourage those talks. As James Rubin, of the U.S. State Department, noted in October 1997, even though there were "no new developments regarding the four-party talks. That doesn't mean we're pessimistic. . . . This is a marathon, not a sprint."[n21]

At best, dealing with North Korea will continue to be a marathon with more and more international players. At worst, the wide-spread famine and increasing number of defections in North Korea may trigger massive unrest and instability in North Korea, which could lead to thousands of starving refugees attempting to flee the country or even to war. If the alternative is a marathon of negotiations and many frustrating stops and starts in the Peace Talks and during the implementation of the Framework Agreement, it is a small price to pay for the continued opportunity to bring peaceful change to North Korea. While North Korea stays stranded in its Cold War past, the international community must continue to focus on security issues. However, the doors that have opened because of nuclear security issues and famine offer the world an opportunity for cautious engagement and greater integration of North Korea into the community of nations. The Framework Agreement offers the world a chance to see whether the North Koreans are ready to accept the responsibilities of joining that community before they are granted the full international trade benefits that can only come after North Korea begins to throw off its Cold War past.

ASEAN


At the opposite end of the international progress and cooperation spectrum, we find the Association of Southeast Asian Nations (ASEAN) Ō an association formed in 1967 by six nations in southeast Asia that has become a world player in both trade and security issues in the Pacific Region. ASEAN began when Indonesia, Malaysia, the Philippines, Singapore, Thailand, and South Vietnam formed the association to promote political and economic cooperation. Since its inception, four other nations have joined: Brunei in 1984, Vietnam in 1995, and Laos and Burma in 1997. A tenth nation, Cambodia, was also scheduled to join in July 1997; however, violence and political unrest in Cambodia has delayed its admission and scuttled plans to complete the "ASEAN 10" during ASEAN's thirtieth anniversary year.[n22] With ASEAN, we see the same trends that have shaped other regional and international trade organizations in the past few decades, with an acceleration since the end of the Cold War. These trends are marked by increasing cooperation on a greater number of issues and new initiatives in areas other than trade.

ASEAN has used the synergy created by this coalition of otherwise relatively small nations to accomplish significant progress in international trade and to have a substantial impact on trade and security issues in the Pacific Rim. In 1978, ASEAN took a lead in negotiating an end to the killing in Cambodia which ultimately led to the United Nations monitored elections in Cambodia in 1993 and a new Cambodian constitution that same year.[n23] When Hun Sen, one of Cambodia's co-prime ministers resorted to violence to remove co-prime minister Prince Ranhariddh and to take control of the Cambodian government in July 1997, ASEAN responded by refusing to grant Cambodia membership in ASEAN. ASEAN is again taking an active role in efforts to resolve the latest round of violence in Cambodia and to insure that the Cambodian elections scheduled for 1998 take place.[n24]

In 1993 ASEAN formed the ASEAN Regional Forum (ARF), the only region-wide, government-level forum for the discussion of security issues in the Asian Pacific. The first meeting of ARF was held in Bangkok in July 1994 with the foreign ministers from "all the ASEAN countries, Australia, Canada, China, Japan, Laos, New Zealand, Papua New Guinea, Russia, South Korea, the United States, Vietnam, and 18 representatives from the European Union (EU) . . . ."[n25] The ARF has established a "three-stage" approach to security discussions: (1) confidence building measures, (2) preventive diplomacy, and (3) "elaboration of approaches to conflicts."[n26] The existence of a forum for cultivating consultation habits in the Asian Pacific is a welcome addition "in a region generally unaccustomed to such open exchanges."[n27] And, despite its youth, the ARF is already having a meaningful impact on security cooperation in the Asian Pacific. This impact can be seen by events such as the announcement by the Chinese Foreign Minister at the 1995 ARF that China would "seek to resolve the . . . South China Sea dispute peacefully based on principles embodied in the Law of the Sea Convention."[n28]

ASEAN's impact on regional free trade reached a new level in 1993 with the establishment of the ASEAN Free Trade Area (AFTA), which is designed to eliminate tariffs on most goods exchanged between the ASEAN member nations over the next fifteen years.[n29] The growing importance of ASEAN as a force for free trade is also being felt world-wide. A quick search of the Internet for ASEAN-related sites reveals the impact of ASEAN as evidenced by the formation of the ASEAN Centre in Japan, which is aimed at "promoting trade, investment and tourism between ASEAN countries and Japan;"[n30] the revitalization of the ASEAN-European connection at the "9th ASEAN-EC Ministerial Meeting held in Luxembourg in May 1991 [which] discussed . . . enhanced cooperation;"[n31] and then led to the 1994 opening of the ASEAN-EC Management Centre in Brunei.[n32] To some, increased ASEAN-EC cooperation was seen as a response to the 1989 formation of the Asia-Pacific Economic Cooperation organization (APEC), which includes the ASEAN nations, plus Australia, Canada, Chile, China, Japan, Mexico, New Zealand, South Korea, Taiwan, and the United States. In 1993, at the APEC LeadersĖ Meeting , the APEC nations made a commitment to "achieve free trade and investment in the region by the year 2020."[n33] ASEAN has expanded dramatically from a modest regional association and since the end of the Cold War, it has spawned numerous other important international institutions, to become a world player in security and trade issues.

Conclusion

Much of the Cold War turmoil in the Asian Pacific was caused or exacerbated by the behind-the-scenes involvement of the Cold War super-powers. Now that the super-powers have ended their Cold War, and nations are increasingly moving from a preoccupation with security issues and into areas of free trade, the prospects for peace and stability in the region should improve. There are, however, significant issues still confronting the nations of the Asian Pacific. China's emerging role has the potential to be either an immense cause for concern, or a driving force toward peaceful transitions in the region. The world will be watching to see how China resolves the territorial disputes in the South China Seas,[n34] and whether China and Taiwan can peacefully resolve the two-Chinas issue.[n35] Already, China is assisting with the Korean peace process and has withdrawn its support and stopped arms shipments to the Khmer Rouge in Cambodia.[n36] In addition, China's desire to gain entry to the World Trade Organization has begun to shape ChinaĖs economic and human rights policies, in an apparent effort to send a signal regarding the type of world player that China wishes to become.[n37]

The continued violence and bloodshed in Cambodia and the famine and nuclear proliferation issues in North Korea continue to be a troublesome vestige of the Cold War and will continue to challenge the world's diplomatic resources. Aside from these issues, the increasing economic turmoil in the region Ō most recently seen in the 55 billion dollar IMF bailout of South Korea Ō could also destabilize the region. A move away from a preoccupation with security conflicts and toward free trade and international cooperation has marked an era of tremendous change and growth for the region. National protectionist measures in response to economic problems can only be a step back. The international institutions that have developed since the end of the Cold War can provide the mechanisms for cooperation and consultation in the region and the continued use of these international institutions for cooperation and dispute resolution can have a widespread stabilizing effect in the region.

The ongoing involvement of the international community will be crucial to the economic recovery and the progress toward lasting peace and stability for the nations of the Asian Pacific. As Anthony Lake, noted in November 1996:

Asia faces a choice between two global visions for the 21st century. The first is a return to the zero-sum politics of the 19th century Ō a world where great powers are permanent rivals, acting as though what was good for one power was, by definition, detrimental to another. The second is a world where great powers act to increase cooperation, avert chaos, and strengthen economic growth, while preserving the balances of power that preserve the peace.[n38]

The signs are good that the great powers are trading in their Cold War security stand-offs for economic and security cooperation Ō to the benefit of the entire community of nations.

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FOOTNOTES

Underlined Sources are Available on the Internet,
and May Be Accessed by Clicking on the Underlined Text

* Major, Judge Advocate GeneralĖs Corps, United States Army. Presently an LL.M. candidate at the University of Virginia School of Law. The opinions and conclusions in this paper are solely those of the author.

1. See generally, Edwin Smith, Understanding Dynamic Obligations: Arms Control Agreements, 64 S. Cal. L. Rev. 1549 (1991) (arguing that "the evolving relationship between the parties [to arms control agreements], which results from practice and experience under the agreement, influences the viability of these obligations" Id.).

2. See, Miles Kahler, International Institutions and the Political Economy of Integration (1994).

3. See generally, Goncharov, Lewis & Litai, Uncertain Partners, Stalin, Mao, and the Korean War (1993).

4. Keith Richburg, Beyond a Wall of Secrecy, Devastation; Rare Closeup Reveals a North Korea that No Longer Functions, Wash. Post, Oct. 19, 1997, A1. See also, U.S. Institute of Peace Article on The North Korean Nuclear Challenge, for an indication of the state of the North Korean economy. "North Korea's economy has contracted for four years in a row--down by as much as 25 percent in 1993 from the 1989 level. The prospects for stimulating growth through promoting foreign trade have been blocked thus far by foreign opposition to the nuclear program and by the North's unpaid external debts--estimated at $10.3 billion at the end of 1993, equal to roughly one-half of the DPRK's annual GNP."

5. Kevin Sullivan, Survival Instinct; Don't Bet the Collective on North Korea's Imminent Collapse, The Wash. Post, Mar. 9, 1997, C01.

6. For additional information on the North Korean famine, see the Collection of Web Sites on the Humanitarian Situation in North Korea.

7. R. Jeffrey Smith, North Koreans Cancel U.S. Talks; Protesting Diplomats' Defection, Pyongyang Recalls Team on Missile Issues, The Wash. Post, Aug 28, 1997, at A30. "As a prerequisite for halting its exports of Scud missiles and related equipment, North Korea demanded . . . that Washington pay it as much as those exports now earn in foreign currency or provide various commodities of comparable value. 'It's part of the barterization of North Korea's foreign policy,' in which the country repeatedly suggests it will curtail its noxious activities in exchange for cash, one official said." Id.

8. R. Jeffrey Smith, U.S. Aides Pessimistic on Korea Talks; No Progress Expected Soon as North Makes Demands, South Awaits Elections, The Wash. Post, Oct. 13, 1997, at A24. The U.S. refused to accede to these demands, but did agree to provide additional food aid through the UN World Food Bank if requested; the U.S. had already provided 177,000 tons of food. Id.

9. See, U.S. State Department Background Notes on North Korea. Text of the Nuclear Non-Proliferation Treaty. For a full history of the North Korean nuclear inspections issues under the NPT, see Mark E. Newcomb, Non-Proliferation, Self-Defense, and the Korean Crisis, 27 Vand. J. TransnatĖl L. 603, 605-15 (1994). The major events are also included in the East Asian Cold War Timeline.

10. Winston Lord, The U.S. Policy Toward the Korean Peninsula, U.S. Dept. of State Dispatch, Vol. 7 (1996).

11. Security Council Resolution 825 (1993).


12.
Text of Framework Agreement.


13.
Text of Framework Agreement.

14. Warren Christopher, A Comprehensive Strategy for Halting North KoreaĖs Nuclear Program, U.S. Dept. of State Dispatch, Vol. 6 (1995).

15. Id.

16. Text of Framework Agreement, at para. II(1).

17. The Korean Peninsula Energy Development Organization (KEDO) was formed to accomplish portions of the Framework Agreement. KEDO is responsible for the light water reactor project and the provision of fuel oil until the reactors are built. Twenty nations are contributing or intend to contribute funds to these projects, with Japan, South Korea, the EU, and the U.S. being the major contributors. Lord, supra note 10.

18. June Teufel Dreyer, Contemporary China Regional Security Issues, Journal of International Affairs (1996).

19. Patrick E. Tyler, A Defector From Korea Is a Hot Potato For Beijing, The N. Y. Times, Feb. 14, 1997, at A9.

20. The four nations are North Korea, South Korea, the United States, and China. UPI Article.

21. For the Record, The Wash. Post, Oct. 17, 1997, A28.

22. For general information on ASEAN and the plans for the ASEAN 10, see the ASEAN Home Page and click on "ASEAN 10."

23. See, James A Schear, Riding the Tiger: The United Nations and CambodiaĖs Struggle for Peace, in UN Peacekeeping, American Politics, and the Uncivil Wars of the 1990s, 135-191 (William J. Durch, ed., 1996).

24. U.S. State Department Facts on ASEAN. See also, U.S. State Department Briefing of Senate Foreign Relations Committee on the Situation in Cambodia.

25. U.S. State Department Facts on ASEAN.

26. Go to ASEAN Home Page and click on "Political and Security Cooperation."

27. Winston Lord, Southeast Asia Regional Security Issues: Opportunities for Peace, Stability, and Prosperity, U.S. Dept. of State Dispatch, Vol. 7 (1996).

28. Id.

29. U.S. State Department Facts on ASEAN.


30.
Statement of the Secretary General of the ASEAN Center in Japan. See also the ASEAN Center Home Page.

31. Paper on ASEAN-EU Cooperation.

32. ASEAN-EC Management Centre Information.

33. Anthony Lake, The Enduring Importance of American Engagement in the Asia-Pacific Region, U.S. Dept. of State Dispatch, Vol. 7 (1996).

34. For background information on the South China See disputes, see generally, U.S. Institute of Peace Background on the South China Sea Disputes; Journal of IntĖl Affairs, China Regional Security Issues; and The South China Sea Flashpoint, Chapter 3. For a detailed discussion of the South China Sea territorial boundaries and the Law of the Sea Convention, see Jonathan I. Charney, Central East Asian Maritime Boundaries and the Law of the Sea, 89 Am. J. IntĖl L. 724 (1995).

35. See generally, U.S. State Department Background Notes on Taiwan, and Taiwan Home Page History.

36. Nhan T. Vu, The Cambodian Elections and the Benefits of Legitimacy, 20 Fletcher J. World Aff. 81, 89 (1996).

37. See generally, China and the World Trading System, WTO Director-General's Speech at Beijing University.

38. Anthony Lake, The Enduring Importance of American Engagement in the Asia-Pacific Region, U.S. Dept. of State Dispatch, Vol. 7 (1996).

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The opinions and conclusions in this paper are solely those of the author. They do not necessarily reflect the views of the University of Virginia, the Department of the Army, or any other government agency.

Date posted: December 21, 1997

This material is not under copyright; however, any use should be cited to the author and source.