Foreign Relations of the United States, 1964–1968, Volume XI, Arms Control and Disarmament

27. Memorandum From the Deputy Under Secretary of State for Political Affairs (Johnson) to the President’s Special Assistant for National Security Affairs (Bundy)¹

Washington, May 7, 1964.

SUBJECT

• International Approval of Nuclear Explosions for Peaceful Applications

National Security Action memorandum No. 282² requested a first report by the end of March on “the probabilities and problems involved in obtaining from the nations signatory to the Test Ban Treaty approval for the utilization of nuclear energy for peaceful explosions under adequate international controls.” This is a response to that request. The problem posed is one which necessarily must be reviewed periodically in the light both of the international situation and the state of our technical development.

There are two ways that international agreement to the conduct of Plowshare excavation projects might be obtained. One would be the amendment of the Test Ban Treaty to exclude peaceful uses applications of nuclear explosives from the restraints of the Treaty. The other method would be the approval of specific described projects through the voting procedures prescribed for amendment of the Treaty. Our view, at the present time, is that the second method would be the more likely of success.

There appears to be little likelihood, however, that the Soviets would be receptive at this time to any proposal to exempt Plowshare excavation experiments or applications from the Treaty restraints. We have very little evidence of active Soviet interest in the application of nuclear excavation techniques (See Tabs A and B),³ although the USSR leads the world in large-scale excavation with conventional explosives. Clearly, at the time of the Test Ban Treaty negotiations, Khrushchev did not envisage early amendment of the Treaty, and his statements about the use of nuclear detonations for peaceful purposes were set in a vague and indefinite future. Perhaps encouraging is Khrushchev’s April 20 statement about allocating “… more fissionable materials for peaceful uses—in atomic power stations, in industry, agriculture, in medicine, in the implementation of major scientific, technical projects, including the distillation of sea water.”⁴ We note, however, that nuclear excavation was not included specifically in the enumerated activities.

We understand that four or five years will be required to develop the devices and cratering technology which would be required in large-scale excavation projects, such as a new trans-Isthmian canal. During this period it would seem important to stimulate international interest and cooperation in the nuclear excavation program to the maximum extent possible. By international participation in Plowshare symposia, observation of cratering shots or experiments and perhaps exchange of test data, it should be possible to demonstrate the economic development potential of nuclear excavation, the absence of hazard to human life and the safeguards that could be provided to prevent evasion of the Treaty for weapons development purposes. Development of international acceptance or even of cooperative effort by Treaty signatories would obviously provide the most favorable atmosphere in which to seek and gain support for international agreement, under the voting procedures of the Treaty, for approval of specific excavation projects.

ACDA has suggested that the most likely opportunity for raising the question of a treaty amendment for the conduct of nuclear excavation projects probably will be in the context of future international discussion of a comprehensive test ban. In the context of such discussions it might be possible to obtain some easing of the restraints on the conduct of nuclear explosions for peaceful purposes. It is difficult to predict, however, when such discussions might be reopened and it is possible that discussions in this context might lead to more rather than less restrictive conditions on Plowshare. (See Tab C)

While development of the nuclear devices can proceed within the Treaty limits, there are some uncertainties as to the limitations placed on the development of the necessary cratering technology by the Treaty language. The committee established by NSAM 269⁵ is charged with reviewing the facts relating to any prospective nuclear test “which might violate or be regarded as violating the Nuclear Test Ban Treaty.” The discussions to date by that committee seem to indicate that the Treaty restraints may well inhibit the development of cratering technology and become a limiting factor earlier than the estimated first large-scale excavation project some four or five years hence. (In presenting the Treaty to the Senate, Administration witnesses, while acknowledging that large-scale applications such as a trans-Isthmian canal could not be carried out under the Treaty, clearly expressed the view that properly devised experiments for developing the excavation technology could be conducted, see Tab D. Similar testimony was given as recently as 4 March 1964 before the Senate Committee on Commerce.)⁶ Certain of the tests designed to develop the necessary cratering technology raise concerns of Treaty violations with some of the committee members. The concern is with the definition of “radioactive debris … present outside the territorial limits” of the United States. While it seems useful to identify the conflicting views on this problem (as is done below), it is not our purpose here to address ourselves to its solution, which is the proper concern of the NSAM 269 committee. The concerns expressed in that forum, however, underline the urgency of establishing an atmosphere of international acceptance of and cooperation on peaceful excavation activities.

The AEC believes that the review committee established by NSAM 269 can adopt policies of appraisal which would allow many of the cratering experiments to be carried out. If so, the need for a Treaty amendment would be obviated for some years. Furthermore, if cratering experiments are carried out with international observation, an atmosphere can be created in which an amendment could be obtained more easily.

In AEC’s opinion a particularly appropriate consideration in appraising cratering experiments, in view of the Treaty limitation on causing debris “to be present” beyond territorial boundaries, is the internationally accepted technical definition of when radionuclides are considered “not present.” Such a definition is found in the health protection guides of both USSR and the US (10 CFR 20) as well as in the guides of the International Commission on Radiation Protection and the International Atomic Energy Agency. In addition a precedent for the use of this definition in interpreting an international treaty is found in the operation of the McMurdo nuclear reactor and the very slight attendant release of radioactivity within the limits of 10 CFR 20. This procedure is considered by the US to be consistent with the prohibition in the Antarctica Treaty of 1961, to which the USSR is a party, against “disposal there of radioactive waste material.”⁷ Soviet representatives have visited this facility.

AEC points out that the legal basis for such policies of appraisal is the principle of “de minimis” or the application of a “rule of reason” to interpret otherwise imprecise provisions of law. Since the Test Ban Treaty does not contain precise technical criteria, it becomes necessary for the NSAM 269 committee to decide when debris might be considered “present.” Among other relevant material to be considered in deciding this question is the understanding of the Senate in advising and consenting to the Treaty. In this connection, the Foreign Relations Committee reported, after hearing all the testimony on this and other questions, its understanding that “the Plowshare program will not be seriously inhibited by the Treaty.”⁸

It should also be noted that, since the technical definition of when radionuclides are “not present” is when their concentration is small compared to maximum permissible concentrations under health protection guides, the levels of radiation involved in this definition are internationally accepted as being far below the point where there might begin to be a health hazard. Thus, this definition would be consistent with a stated objective of the Treaty “to put an end to the contamination of man’s environment by radioactive substances.”

ACDA is concerned about the international repercussions if debris attributable to U.S. underground nuclear explosions should be picked up outside our territorial limits (Tab E). The Tass press release and related cable from Moscow commenting on the accidental venting of one of our recent Nevada tests⁹ (Tab F) show that the Soviets are fully alert to this possibility. In these circumstances, ACDA is concerned that the good faith of the United States in seeking arms control agreements could be thrown into doubt by possible charges of violation, and that our reputation as a country which takes its treaty obligations seriously could be prejudiced. As to the consideration suggested by the AEC for appraising what is acceptable under the Test Ban Treaty, ACDA believes that its application would result in a substantial risk of incurring the international consequences described above. The Treaty speaks simply of causing “radioactive debris” to be “present” outside territorial limits and there is nothing in the text itself to indicate that the presence of small amounts of debris should be accepted. Finally ACDA calls attention to arguments that could be made against the suggested policy of appraisal on the basis of official U.S. records published in connection with the Treaty. (Tab E)

Whether or not the AEC interpretation is accepted by the review committee as a standard of appraisal, it can be borne in mind as possible rebuttal should any nuclear test accident, either weapons or Plowshare, bring forth Soviet charges of Treaty violations.

In summary, we urge

a) the question of amending the Treaty be kept under continuing surveillance,

b) a program of Soviet and international participation and cooperation in the U.S. nuclear excavation development program be devised and carried out, and

c) the acquisition of intelligence on Soviet interest and planning in this area be intensified.

U. Alexis Johnson ¹⁰

1. Source: Johnson Library, National Security File, Subject File, Nuclear Testing—General, Vol. 1, Box 27. Secret.
2. Document 7.
3. None of the tabs has been found.
4. Reference is to Khrushchev’s April 20 statement. See Document 25.
5. Regarding NSAM 269, see Document 3.
6. The testimony before the Senate Commerce Committee has not been further identified.
7. Signed on December 1, 1959, and entered into force on June 23, 1961. (12 UST 794)
8. For text of the entire report, September 3, 1963, see Documents on Disarmament, 1963, pp. 450-483.
9. Though the Tass press release and related cable from Moscow have not been further identified, the reference presumably is to an AEC test of a small nuclear device (called Pike) in Nevada on March 13. In a March 25 information memorandum to President Johnson, McGeorge Bundy noted in part that the device “partially vented” and produced “measurable quantities of radioactive debris at considerable distances from the test site. Although there is no evidence that the debris was detected outside the United States or that the Mexican authorities were in a position to measure it, the possibility cannot be excluded that measurable quantities of debris did, in fact, cross into Mexico. There remains, therefore, a remote possibility that charges may be made subsequently that this event constituted a violation of the Nuclear Test Ban Treaty.” (Johnson Library, National Security File, Subject File, Nuclear Testing—U.S. Testing Program, Vol. II, Niblick Series—FY 1964, Box 27)
10. Printed from a copy that bears this typed signature.