Foreign Relations of the United States, 1969–1976, Volume IX, Vietnam, October 1972–January 1973

324. Memorandum From the Department of State Deputy Legal Adviser (Aldrich) to the President’s Assistant for National Security Affairs (Kissinger)¹

Paris, January 22, 1973.

SUBJECT

• Summary and Analysis of the Protocols

The four protocols constitute the necessary advance implementation of the Agreement. In particular, they work out the necessary arrangements for the International Commission of Control and Supervision (Article 18), the Four-Party Joint Military Commission (Article 16), and the Provisional Two-Party Joint Military Commission (Article 10). They also define the cease-fire, determine in greater detail than the Agreement the obligations of the parties concerning return of prisoners, and specify certain arrangements for the clearance of mines.

Positive Elements. In my judgment, the protocols do the following important things:

1. They provide personnel for control and supervision totalling 4,460 for the first 60 days and at least 2,810 thereafter.

• (a) International Commission—1,160
• (b) Four-Party Joint Military Commission—3,300
• (c) Two-Party Provisional Joint Military Commission—1,650

2. They ensure that these supervisory personnel will be scattered around South Vietnam at various points of strategic and political significance, including points on or near infiltration routes from North Vietnam, Laos, and Cambodia.

4. They require the International Commission to report separate and minority views of its members.

3. They require the International Commission to make investigations when requested by any one of the four parties to the Agreement (U.S., DRV, GVN, PRG).

5. They ensure that both the International Commission and the Joint Military Commissions can be equipped with adequate communication and transportation facilities.

6. They require the two South Vietnamese parties to permit freedom of movement for all persons except combat forces throughout South Vietnam after the cease-fire.

7. They define the cease-fire in such a way that aggressive and hostile actions are prohibited, but other movements of military personnel and units are permitted.

8. They place no restriction on the movement of ships, except for the movement of warships into areas of South Vietnam controlled by another party.

9. They require legitimate imports of armaments, munitions and other war material (for replacement only) to enter through agreed points of entry and under the control and supervision of a team of the International Commission.

10. They ensure that both the International Commission and the Four-Party Joint Military Commission will be able to control and supervise the release of American prisoners in North Vietnam.

11. They establish minimum standards for the treatment of prisoners during the period prior to their release.

12. They ensure that a Four-Party Joint Military team will remain after the Four-Party Joint Military Commission ends its operations in 60 days to finish the tasks of accounting for the missing in action and locating graves.

13. They provide for North Vietnam’s cooperation in the clearance of mines from North Vietnamese waters and assure protection for U.S. personnel engaged in this mine clearance activity.

14. They avoid establishing any fixed date for the completion of mine clearance operations in North Vietnamese waters.

15. They provide that mines may either be destroyed, deactivated, or removed. The United States cannot be committed to removal without its consent in a specific case and we made it clear in the negotiations that removal will almost never occur. The DRV accepts that fact.

Negative Elements. Some difficult questions, such as designation of points of entry, were left for the two South Vietnamese parties, but, by and large, the negative features of the protocols reflect unavoidable problems which are also evident in the basic Agreement, particularly political problems inherent in the concept of two “areas of control” in South Vietnam.

1. They provide that the International Commission and the Joint Military Commission work on the principle of unanimity, which could prevent them from acting effectively in a crisis.

2. The large size of the Four-Party Joint Military Commission, however desirable in other respects, inevitably results in spreading the legitimate presence of the Communist members of the Commission to many cities and towns throughout South Vietnam where they could not otherwise openly appear.

3. The definition of the cease-fire makes it clear that control by the PRG of certain, as yet undefined, areas of South Vietnam is recognized in principle and is not to be challenged by armed force.

4. The definition of the cease-fire will prohibit the Vietnamese air force from flying armed combat aircraft over South Vietnam.

5. Under the protocols there will be large stretches of South Vietnam’s border which will be inadequately patrolled either by GVN forces or by the International Commission or the Joint Military Commission to detect and deter infiltration of men and arms.

6. The protocols postponed for subsequent agreement by the two South Vietnamese parties the designation of the legitimate points of entry for replacement armaments, munitions and war materials. This may be a political advantage as far as our relations with the GVN are concerned, but operationally it’s a disadvantage.

7. The protocols leave for subsequent agreement in the Four-Party Joint Military Commission the designation of places to which prisoners will be returned.

8. Protocols limit normal police armament to pistols, except in “unusual circumstances.” The flexibility in this quoted phrase seems adequate for practical purposes, but it may still have some negative political effect.

9. The protocols make U.S. mine clearance operations in North Vietnamese waters subject to concurrence by the DRV.

[Omitted here is a detailed analysis of the protocols.]

1. Source: National Archives, Nixon Presidential Materials, NSC Files, Kissinger Office Files, Box 109, Country Files, Far East, Vietnam Negotiations, Rationale. Secret.