Pursuant to your request, here is the current status of the Geneva
Protocol package as of this morning.
These issues require decision before the formal Protocol package can be
forwarded to the President. Once these issues are decided, it will take
only a few days to have the formal papers sent to the White House.
However, since the memorandum setting forth the issues is quite involved,
it may be held up for some time. We understand that Secretary Laird may request a meeting with you,
Secretary Rogers and the
President on this matter. As you know, Secretary Rogers is leaving for Africa in about
ten days. An early meeting could perhaps move these
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matters off the dime.
Attached at Tab A is a description of the issues along with some of the
major arguments and agency positions. (The issues may be modified after
Secretary Laird considers them.)
The issues center about (1) how we handle our understanding on riot
control agents and herbicides; (2) what type of “no first use”
reservation we take; and (3) whether, as promised in NSDM 35, the follow-on NSDM on authorization for use of riot
control agents and herbicides in war should be issued before the
Protocol is submitted to the Senate.
Tab A
Washington, undated
OUTSTANDING ISSUES ON THE GENEVA PROTOCOL
[The information below comes from an informally transmitted draft of
the State-Defense Memorandum and from working group meetings.]
Issue A. Understanding on Riot Control Agents
(RCAs) and Chemical Herbicides
There appears to be three options for handling our understanding that
the Protocol does not prohibit the use in war of RCAs and chemical
herbicides.
Options 1 and 2 involve communication of our understanding to other
States but differ with respect to Senate action. This understanding
would be in the legal form of a formal interpretation; but, of
course, it could be treated as a reservation by other States. Both
Options 1 and 2 are based primarily on legal considerations. Option
3 is based primarily on political considerations in that we would
not formally communicate our understanding on RCAs and herbicides to
other States.
Option 1. Request the Senate to give its
advice and consent to ratification with the
understanding on RCAs and herbicides explicitly stated in the
Senate Resolution. The Resolution would then be formally
communicated to the other States as part of the instrument of
ratification.
The working group had originally agreed to drop this approach, but
DOD persisted in its support for
this option being addressed. This option would
be the most legally effective internationally to preserve our
position on RCAs and chemical herbicides in the event of an
adverse advisory opinion by the International Court on the
scope of the Protocol. If the International Court were requested to
deliver an opinion, it might be rendered within four-six months
after a request.
It is also argued that this approach would avoid any possibility of
later charges that the Senate was misled.
In short, the Senators would be asked to vote
particularly on the issue of RCAs and herbicides. At worst,
the Senate could pass an opposite understanding by majority vote
which would make it impossible to ratify with our understanding.
It is also very likely that, under both Options 1 and 2, a
substantial number of States would make public their disagreement
with our interpretation. Other States would in effect have to choose
between
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rejecting our
interpretation, thereby treating it as a reservation and modifying
the treaty relations to that extent, or being deemed to have
acquiesced in our understanding. (Other States could reject us as a
Party, but this does not appear very likely.)
(Comment: We believe this approach, by placing the monkey on the
Senators’ backs, could both complicate the proceedings and lose some
votes on the Protocol.)
Option 2. Same as Option 1, except the
Senate would be advised of our understanding but it would not be
referred to in the Senate Resolution. Senate
would be advised, however, of our intent to communicate this
understanding to the other Parties in the form of a note
along with the instrument of ratification.
DOD probably supports this as a
fallback position, depending upon the results of Congressional
soundings. This may be the first choice of State and ACDA. However, again depending upon
Congressional soundings, both State and ACDA will have a fallback position in Option 3.
This option is also designed to protect the U.S.
legally should the International Court be requested to deliver
an advisor opinion on the scope of the Protocol and in the event
the Court went against our interpretation. If we had given
formal notification of our interpretation to the other Parties, it
could not then be said that we were legally in violation of a treaty
obligation as our interpretation would become a formal
reservation.
While this would protect the legal position, we would still face the
political problems surrounding the use of RCAs and herbicides in
war. Also, other States would have to choose
between rejecting our interpretation, thereby treating it
as a reservation, or being deemed to have
acquiesced in our understanding.
Option 3. We would advise the Senate of our
understanding, but our understanding would
neither be included in the resolution of the Senate’s advice and
consent nor communicated formally to other Parties.
State and ACDA prefer this option as
a fallback position if it appears to be the only way of obtaining
Senate consent. The option would place neither the Senate nor other
Parties in the position of accepting or rejecting the
interpretation.
DOD probably considers this option
unacceptable for legal reasons. In the event of an adverse
International Court opinion, we could not legally make use of RCAs
and herbicides in war.
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Issue B. No First Use Reservation
There appears to be three alternatives regarding how to deal with our
policy of no first use of chemical weapons.
Option 1. Reserve the right to retaliate with
chemical weapons but not with biological weapons.
State and ACDA prefer this option as
being most consistent with U.S. policy. Unlike the reservations of
all but one other reserving government, the reservation does not
assert the right to use biological weapons in retaliation. DOD probably opposes this option.
There are those who are worried about legally giving up the right of
retaliation with biologicals. While we would indeed be doing such in
terms of this reservation to the Protocol, we understand there is
always the more limited right of reprisal under the Laws of Land
Warfare. There is also a legal position which, in the event of a
violation of the Protocol, could contend that the whole agreement
was suspended with regard to the violating party.
However, this option could leave questions as to whether we had the
right to retaliate with toxins since, in terms of the negotiating
history of the Protocol, other Parties might claim that toxins
should be considered bacteriological methods of warfare in
interpreting the Protocol.
Option 2. Reserve in effect the right to
retaliate with chemicals and biologicals by stating that the
Protocol ceases to be binding upon any State or its allies which
violate the Protocol.
This is similar to the reservation by the U.K., France and the USSR. The U.S. would be reserving tile
right to retaliate with both chemicals and biologicals, and the
question of toxins would not arise.
DOD probably supports this position.
State and ACDA probably oppose
it.
Option 3. Ratify without any explicit
reservation on the right of retaliation.
With respect to the 39 States which have taken reservations, we would
legally have the benefit of their reservations in our relations with
them to retaliate with chemicals or biologicals. With respect to the
States which have not taken reservations, the U.S. could still say
that any violation of the instrument would mean its termination and
we would have the right to retaliate with either chemicals or
biologicals.
This seems to be the fallback position of State, DOD and ACDA.
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Issue C. Follow-On NSDM on RCAs and Chemical Herbicides
NSDM 35 stated that a follow-on
NSDM on the use of RCAs and chemical herbicides would be issued.
State and ACDA recommend (1) that a
follow-on NSDM covering the use of
RCAs and herbicides be issued before final decisions on the form of
the submission of the Protocol to the Senate are made, and (2) that
the NSDM include guidance on public
statements. State and ACDA think a
statement to the effect that use in war would require Presidential
authorization and that more restrictive guidelines for their use had
been instituted might reduce both Senate and international
opposition to our position.
DOD sees no need for the NSDM prior to submission of the
Protocol to the Senate and in any event objects to any public
statement of restrictions on their use in specific tactical
situations.
