Foreign Relations of the United States, 1969–1976, Volume XXXIX, European Security

320. Memorandum From Denis Clift of the National Security Council Staff to Secretary of State Kissinger¹

Washington, July 21, 1975.

SUBJECT

• Legal Disclaimers in CSCE Final Document

In accordance with the request at Tab II,² I have drafted the memorandum at Tab I for your signature to the President reviewing the language in the CSCE documents which makes clear that the obligations undertaken by the signatories are not legally binding.

Recommendation

That you sign the memorandum for the President at Tab I.

Tab I³

SUBJECT

• Legal Disclaimers in CSCE Final Document

The following paragraphs identify the measures taken in negotiating the CSCE final document⁴ to make clear that the obligations undertaken by the signatories are not legally binding.

The United States, and to a lesser extent the United Kingdom and Federal Republic of Germany, have insisted throughout the CSCE negotiations that language be included in the final document establishing that the obligations undertaken by the signatories are not legally binding. Two elements of the final document and a letter transmitting it to the UN collectively ensure that it will not be legally binding:

• —Within the document, there is a reference to the fact that it will not be registered with the United Nations. Article 102 of the UN Charter states that every treaty and international agreement will be registered; by implication, therefore, the unregistered document is neither a treaty nor an agreement.
• —A letter will be sent to the UN Secretary General asking him not to register the document but only to circulate it to the member states. The letter is to be formally adopted by the CSCE Stage III participants and transmitted to the UN Secretary General by the Government of Finland. The letter text includes the following: “… permit me to draw your attention to the fact that neither the final act nor any of the documents referred to in it are treaties or international agreements, and therefore they are not to be registered in whole or in part with the Secretariat of the United Nations…” This statement would clearly indicate that the document is not legally binding.
• —Finally, there is an indirect disclaimer near the end of the final document. It reads as follows:

  “Wherefore the undersigned high representatives of the participating states, conscious of the high political importance they attach to the results of the conference, and declaring their determination to act in accordance with the provisions contained in the above texts have subscribed their signatures below.”

This language serves to emphasize that the participating states are undertaking political commitments rather than legally binding obligations.

1. Source: Ford Library, National Security Adviser, Box 13, Presidential Trip Files, July 26–August 4, 1975, Europe, General (7). Confidential. Sent for action. Scowcroft wrote in the margin: “Discussed with Pres.” According to an attached routing memorandum, Scowcroft discussed it with the President on July 25.
2. Tab II, a memorandum from Clift to Scowcroft, July 2, which contained a status report on the CSCE legal disclaimer, is attached but not printed. Scowcroft wrote at the bottom of the memorandum on July 19: “Denis—Will you update this urgently for the President? Thanks.”
3. This draft memorandum from Kissinger to the President, sent for information, was neither signed nor dated.
4. For the text of the Final Act of the Conference on Security and Cooperation in Europe, August 1, 1975, see Department of State Bulletin, September 1, 1975, pp. 323–350.