350. Telegram From the Department of State to the Embassy in the Soviet Union0

320. To Harriman. Regret that we must return to Deptel 3041 on subject of non-application of test ban treaty to self-defense under Article 51 of the UN Charter. On basis Secretary’s appearance in preliminary consultation with three Senate Committees, it is already clear that text will be given the most minute examination and any point of ambiguity will be critically examined. Further, it would be of the most far-reaching consequence if there is in fact a disagreement between ourselves and the Soviet Union on this point. Therefore, you should tell Gromyko in the casual, informative fashion suggested in Deptel 304 that if this question is raised in the US, either in public discussion or in the course of Senate consideration, it would be our intention to respond by simply saying that the treaty on a nuclear test ban does not affect the right of self-defense against armed attack under Article 51 of UN Charter. We are confident that this is also Soviet Union’s attitude. If he should reflect any different view and disclose that Soviets would claim that this treaty bars the use of nuclear weapons in defense against attack, then procedures presently scheduled should be delayed pending clarification of that point. We are not insisting upon formal changes in the draft treaty or even calling attention to the possibility of a problem in the communiqué. But we must be clear that no effort will be made to pretend later that this treaty attempts to do something which never arose in the course of discussion, namely, to prohibit the use of nuclear weapons in self-defense.

We hope that in fact there will be no difference on the merits on this question and that you can establish the necessary record quite informally. It is after all no more than a matter of saying to Gromyko, without significant dissent from him, that this treaty and self-defense are in fact two very different subjects.

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Suggest you report results by guarded telephone call as soon as feasible.

  1. Source: Department of State, Central Files, DEF 18-6. Secret; Operational Immediate; Eyes Only Ban. Drafted by Rusk; cleared by Foster, Thompson, Ball, and Bundy; and approved by Read.
  2. See footnote 5, Document 344. In telegram 312 from Moscow, July 24, received at 5:30 p.m., Harriman stated that the delegation had considered the problem of a literal interpretation of Article I before recommending the revised text, but had been unable to find any appropriate language to avoid the possibility of such a “highly legalistic” construction. Fisher, McNaughton, and a British legal expert had agreed that the provisions in Article I were not legally applicable to use of nuclear weapons in hostilities. “I do believe that raising subject would substantially complicate our task. Therefore, in accordance authority Deptel 304, I have not raised it.” (Department of State, Central Files, DEF 18-3 USSR (MO)) In an interview with George Bunn on November 21, 1964, McNaughton gave an extended account of the delegation’s consideration of this problem. (Library of Congress, Manuscript Division, Harriman Papers, Classified Series, John T. McNaughton)