198. Memorandum From the President’s Assistant for National Security
Affairs (Kissinger)
to President Nixon1
2
Washington, July 3, 1970
SUBJECT:
- Issues for Decision re Submission of the Geneva Protocol to the
Senate for Its Advice and Consent to Ratification
Acting Secretary Richardson
forwarded a joint State/Defense/ACDA
memorandum (Tab C) requesting your decision on three issues preparatory
to forwarding a recommendation to the Senate for its advice and consent
to ratification of the 1925 Geneva Protocol.
The issue of how we handle our interpretation on tear gas and chemical
herbicides is the most complex. On March 10, I recommended that you
authorize Senate soundings on this matter (Tab D). You approved in
principle but requested that, before any
action on soundings, I come back to you in 30 days (Tab D, Page 2). In
the meantime, the following events have occurred:
- — Agriculture, Interior and HEW have announced the suspension of
the herbicide 2,4,5-T for all uses except in remote areas as tests
indicate it could constitute a hazard to human fetuses.
- — Deputy Secretary Packard
immediately suspended the use of 2,4,5-T by US forces pending a further evaluation. [2,4,5-T and
2,4-D have been the most widely used defoliants in Vietnam; 2,4-D is
also used with other chemicals; it is suspect and being studied
further.]
- — The Vietnamese General Staff embargoed the use of 2,4,5-T by
their forces.
- — Senator Fulbright, whose
committee will handle the Protocol, has written you (Tab E)
expressing his concern about a possible reservation on tear gas and
herbicides and his belief that our long-term interests would be
better served by a uniform interpretation.
- — A House Foreign Affairs Subcommittee issued a report
recommending that (1) the Protocol be submitted to the Senate as
soon as possible; (2) the question of using tear gas and herbicides
in war be left open by the Executive and/or the Senate; and (3) the
US, after becoming a Party, seek
agreement on a uniform interpretation of the Protocol either through
a special international conference among the Parties or through
established international juridical procedures.
[Page 2]
Issue A. How to inform the Senate and the Parties
to the Protocol of our understanding that we do not consider the
Protocol to prohibit the use of tear gas and herbicides in war.
NSDM 35 directed State and Defense to
prepare an appropriate interpretive statement on tear gas and
herbicides. The statement is to be unilateral
in form and not a formal reservation.
The direction was the genesis of Option 3 below. But State and Defense
Legal Advisers subsequently raised a question of legal ambiguity in the
event of an adverse International Court of Justice (ICJ) opinion. This question prompted
Options 1 and 2 below.
Option 1. Ask the Senate for its advice and consent
to a resolution proposed by the Administration with our
understanding explicitly stated therein, which resolution would be
formally communicated to the other Parties.
Option 2. Advise the Senate of our understanding
and of our intention to communicate it to other Parties as part of
our instrument of ratification, but it would not be placed in the
Senate resolution proposed by the Administration.
Options 1 and 2 are designed to protect against any possible
international legal ambiguity regarding our right to use tear gas and
herbicides in war. Our interpretation, communicated to other Parties
formally, would have the legal effect of a reservation in the event of a
subsequent ICJ advisory opinion that
such agents are prohibited by the Protocol.
Communicating our understanding would place all other Parties in the
position of having to choose among rejecting us as a Party, objecting to
our understanding and treating it as a reservation, or being deemed to
have acquiesced in our understanding.
Options 1 and 2 differ only in our approach to the Senate. Option 1 would
require a Senate vote expressly on the question of tear gas and
herbicides. Option 2 attempts to avoid the direct vote, but the Senators
would be informed that we intend to communicate our interpretation as
part of our instrument of ratification.
Option 3. Advise the Senate of our understanding,
but it would be neither included in the Senate resolution proposed
by the Administration nor communicated to other Parties as part of
our instrument of ratification.
[Page 3]
Option 3 has the advantages of (1) not placing other Parties in the
position of having formally to declare their opposition to our
interpretation, and (2) not placing the US in the position of being the
only formally interpreting Party to the Protocol with respect
to the exclusion of certain agents.
The UK, Portugal, Japan and Australia have
unilaterally announced policies on tear gas similar to our policy, but
none has formally communicated its understanding to the other Parties.
[The Japanese Diet recently gave its advice and consent to ratification
of the Protocol; the UK, Portugal and
Australia ratified in 1930.]
Option 3 carries some risk of an ambiguous legal right to use such agents
in war if the ICJ were requested for an
opinion and were to rule that the use of these agents in war was
prohibited by the Protocol. If the ICJ
were so to rule and we then used such agents in war, we could be
considered in violation of our treaty obligations.
State and Defense Legal Advisers maintain, as does the joint
State/Defense/ACDA memorandum, that
such an ICJ opinion would foreclose the
option to use these agents in war if we selected Option 3 as we would
then have no legal right for such use.
On the other hand, ICJ advisory opinions
are not legally binding though we have stated in the past, particularly
when rulings were adverse to the position of the Soviet Union, that such
opinions should be considered authoritative and followed by nations.
State, Defense and ACDA recommend that,
before final decisions on the form of the submission are made,
preliminary Senate soundings be taken on Options 1 and 2. State and
ACDA believe Option 3 should be
considered at least as a fallback position if it appears necessary to
obtain Senate ratification. Defense considers Option 3 unacceptable.
Recommendation and Rationale
I recommend Option 3.
Upon reexamining the legal issues and in light of the herbicides problems
and Senator Fulbright’s letter, I
do not think Senate soundings would accomplish much. There may be a
possibility of obtaining agreement among the Senate leadership that the
primary issue is US ratification of the
Protocol and that no interest will be served by having the Protocol
bogged down in a “Vietnam-Laos-Cambodia-tear gas-herbicides” debate,
though full hearings would be expected.
I believe Option 3 provides the best mechanism for possible Senate
leadership agreement. We would make our position clear in the hearings,
but not by formal language in a proposed Senate resolution or in
communication to the other Parties.
[Page 4]
On the other hand, it is normal treaty practice, for good reason, to
inform other Parties of interpretations on controversial matters (Option
1 or 2). An interpretive statement would be of doubtful international
legal effect unless formally communicated to the other Parties.
Therefore, if we did not communicate our interpretation (Option 3) and
if the ICJ were to deliver an opinion
contrary to our position, I believe that we would be accused of
violating our treaty obligations if we were to use these agents in
war.
Nevertheless, I consider the ICJ issue
largely a “red herring”. While Options 1 and 2 would clearly legally
reserve against an adverse opinion, in a practical sense neither would
mitigate the political and psychological flak we would take in continued
use of such agents. An unfavorable ICJ opinion would be embarrassing
under all three options. Moreover, depending upon the circumstances and
further analysis of the utility of these agents in war, we would still
retain the option of abiding by such an ICJ opinion should we deem it in our interest.
Though there may be risks of international legal ambiguity later, Option
3 does not place the US in the position
of being the only Party formally to submit an interpretation on the
scope of the Protocol. Other Parties (e.g., Britain) have announced
policies similar to our understanding, but none has formally
communicated its understanding to the other Parties. Option 3 neither
flags the tear gas-herbicides issue nor places every Party in the
position of having to react or acquiesce, thus leading to a complex web
of interlocking legal relationships.
On balance I recommend that you approve Option 3, whereby the
Administration will inform the Senate of its understanding but it will
neither be included in the proposed Senate resolution nor formally
communicated to the other Parties.
APPROVE [RN initialed]
DISAPPROVE
SEE ME
Issue B. Whether Presidential authorization should
be required for the future use of tear gas and herbicides in war and
whether some restrictions should be placed on current use in
Southeast Asia.
Option 1. Require Presidential authorization for
future use of these agents in war and place some general
restrictions or guidelines upon their use (e.g., no use for
offensive purposes in conjunction with high explosives).
Option 2. Require Presidential authorization for
the future use of these agents in war, but do not affect current
authorities in Southeast Asia.
Option 3. Require no authorization except that of
the Secretary of Defense.
[Page 5]
NSDM 35 states that a follow-on NSDM on authorization will be issued.
Those favoring Presidential authorization argue that (1) the political
implications of unrestricted use of these weapons are grave as
demonstrated by our experience in Vietnam; (2) we should not authorize
future use in war unless the need is unequivocal; and (3) these weapons
may have utility in Vietnam, but their utility in other potential
conflicts may be less evident.
Others argue that (1) these non-lethal weapons are of proven utility for
both offensive and defensive purposes in Southeast Asia; and (2) maximum
flexibility for their use should be retained.
State and ACDA recommend Option 1.
Defense recommends Option 3.
Recommendation and Rationale
I recommend Option 2: that is, require Presidential authorization for
future use in war without restricting present authorities and uses in
Southeast Asia.
A policy of Presidential level review and decision could be very helpful
in approaching the Senate. Moreover, the future utility of these weapons
is still under study and, therefore, no bases exist to judge whether the
weapons should constitute part of the US
arsenal for the future. Since the political costs are even now high and
could be higher in terms of longer-range effects, Presidential level
review and decision should precede any introduction of these weapons in
other theaters or conflict situations.
I recommend that you approve Option 2.
APPROVE [RN initialed]
DISAPPROVE
SEE ME
Issue C.
What rights of retaliation, if any, should the
United States expressly reserve in ratifying the Protocol.
Option 1.
Expressly reserve the right of retaliation with
respect to chemical weapons but not with biological weapons.
This option would reflect your new policy and also
codify this policy with respect to the Protocol. State and ACDA recommend this option.
Option 2.
Take a reservation which states that the Protocol
as a whole shall cease to be binding on us with respect to any State
or its allies which fail to respect the prohibitions of the
Protocol.
This option would reserve the right to retaliate with either chemical or
biological weapons. It parallels reservations which all but one of the
39 reserving States have adopted since 1925. Defense prefers this
option.
[Page 6]
Option 3. Ratify without any formal reservations
with respect to either chemical or biological weapons.
With respect to the 39 reserving States, we would have the reciprocal
benefit of their reservation on retaliation with chemical or biological
weapons. With respect to non-reserving States, we could rely upon a
general rule of law, if occasion arose, to regard a material breach of
the Protocol as suspending Protocol relations with any violating
State.
All agencies have a fallback position in Option 3, though they agree that
it does not establish our legal position as clearly as either Options 1
or 2.
Recommendation and Rationale
I recommend Option 1, expressly reserving the right of retaliation with
chemical weapons but not biological weapons. It is clear reaffirmation
of your policy and would internationally signal your renunciation of
biological weapons, whereas Option 2 might be interpreted as a
qualification of your renunciation.
Option 3 could involve complicated explanations of our legal position,
but I can live with Option 3 as a fallback position.
I recommend that you approve Option 1.
APPROVE [RN initialed]
DISAPPROVE
SEE ME
Summary
Attached at Tab A is a proposed memorandum to the Secretary of State for
your approval which informs him of your decisions along the lines
recommended.
Attached at Tab B is a draft NSDM which
states that the use in war of tear gas and chemical herbicides shall
require Presidential approval, but that present authorities for use in
Southeast Asia are not affected. The NSDM clarifies which agents are considered in this category
and reaffirms the policy of Presidential approval for the use of all
other chemical weapons.
Following your decisions, I will prepare a scenario leaving the timing
flexible. The proposed NSDM and
memorandum to the Secretary of State will be held pending a further
decision on timing.
Timmons’ Office (Ken BeLieu)
concurs in forwarding the issues to you for decision, but stresses that
there is no current sensing of Congress because of Cambodia. His main
concerns are that there should be no inconsistency with your statement
of November 25 and that we should do whatever possible to take the steam
out of the tear gas-herbicides issue.
[Page 7]
Tab C
Memorandum From Acting Secretary of State Richardson to
President Nixon
Washington, February 18, 1970
Subject:
- Submission of 1925 Geneva Protocol to Senate
Recommendations:
(1) No First Use Reservation
This memorandum discusses three alternative ways of dealing with our
policy of no first use of chemical weapons. State and ACDA recommend the first alternative
discussed under this heading; Defense recommends the second
alternative; each prefers the third alternative as a second
choice
First alternative Approved
Second alternative Approved
Third alternative Approved
(2) Follow-on NSDM on RCAs and Chemical Herbicides
NSDM 35 stated that a follow-on
NSDM on use of riot-control
agents (RCAs) and chemical herbicides would be issued. State and
ACDA recommend that a follow-on
NSDM covering use of RCAs and
chemical herbicides be issued before final decisions on the form of
the submission of the Protocol to the Senate are made, and that the
NSDM include guidance on public
statements. Defense 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
use of RCAs and chemical herbicides in specific tactical
situations.
State/ACDA position Approved
Defense position Approved
[Page 8]
(3) Understandings on RCAs and Chemical
Herbicides
(a) This memorandum discusses three options for handling our
understanding that the Geneva Protocol does not prohibit the use in
war of RCAs and chemical herbicides. The first two (Options 1 and 2)
include communication of our understanding to other Parties but
involve different formal action by the Senate. Option 3 would
involve no formal communication of our understanding to other
Parties. State, Defense and ACDA
agree that Options 1 and 2 have the same international legal effect
and that the choice between them should be made on the basis of
Congressional soundings. State, Defense and ACDA recommend that, before final decisions on the form
of the submission of the Protocol are made, coordinated preliminary
Congressional soundings be taken on Options 1 and 2 (but not on
Option 3).
Approved______ Disapproved_____________
(b) State and ACDA believe you
should be prepared to consider Option 3 at least as a fall-back
position if it appears to be the only way of obtaining Senate
consent to ratification of the Protocol. Option 3 is considered
unacceptable by Defense since it would not be legally effective
internationally to preserve our position on RCAs and chemical
herbicides in the event of an adverse ICJ opinion.
State/ACDA position on Option 3:
Approved
Defense position on Option 3: Approved
(4) Chief Coordinator.
State, Defense and ACDA recommend
that the Legal Adviser of the Department of State should be
designated chief coordinator of the Administration’s presentation of
the Protocol to the Senate.
Approved__________ Disapproved
[Page 9]
Discussion:
Implementation of NSDM 35 with respect to Protocol
NSDM 35 records your decision to
submit the Geneva Protocol of 1925 to the Senate for its advice and
consent to ratification.
With respect to the renunciation of the first use of lethal and
incapacitating chemical weapons, the NSDM contains no directive as to the procedure to be
followed in making the Administration’s policy in this respect
legally effective internationally, i.e., it is silent as to whether
ratification should be subject to a reservation.
With respect to legal preservation of a right to make first use of
RCAs and chemical herbicides, the NSDM directs that our interpretation of the Protocol
not be made by means of a “formal reservation” and that it be
“unilateral in form”.
Since, for reasons of brevity, the NSDM did not treat the legal distinction between
reservations and interpretive statements (or understandings), nor
discuss the domestic and international law requirements applicable,
we need your further decision as to how to proceed in the context of
the considerations outlined below.
A reservation under international law is by definition a formal
statement made by a State before it becomes bound by a treaty
whereby it purports to exclude or to modify the legal effect of
certain provisions of the treaty in their application to that State.
A reservation must be communicated in writing to the Parties. If no
objection is made to the reservation, the treaty is modified to the
extent of the reservation on a reciprocal basis between the
reserving State and a non-objecting Party. A Party formally
objecting to the reservation may regard the treaty as not in force
at all between it and the reserving State or may elect to regard all
of the treaty except for the reserved provisions as in force between
them. Under United States practice, a reservation proposed by the
President must receive the advice and consent of the Senate, and the
Senate may also, on its own initiative, formulate a reservation as
part of its resolution advising and consenting to ratification.
[Page 10]
An interpretive statement (or understanding) under international law
is a declaration which indicates the meaning that a State attaches
to a provision of a treaty but which it does not regard as changing
the legal effect of the provision. Such a statement would be of
doubtful international legal effect unless formally communicated to
the other Parties. Under customary treaty law and the Vienna
Convention on the Law of Treaties, any statement by which a
ratifying State seeks to limit or otherwise condition its legal
obligations under a treaty must be communicated to the Parties.
Unless other Parties to the treaty formally object to the
interpretation communicated to them, they are bound by it in their
relations with the declaring State. If a Party disagrees with the
interpretation, it may treat the interpretive statement as a
reservation and apply the rules on reservations.* Under United States law, an
interpretive statement which the President proposes to communicate
to other Parties must be made known to the Senate, which can either
concur or acquiesce in such communication or Prevent it by making
clear that it does not consent to ratification with such a
statement. The Senate may also, on its own initiative, formulate an
interpretive statement as part of its resolution of advice and
consent.
If the Senate, on its own initiative, formulates a reservation or an
interpretive statement as part of its resolution of advice and
consent, the President must include the reservation or interpretive
statement in the instrument of ratification if he decides to ratify
the treaty.
No First Use Reservation
The Protocol itself prohibits any use of
chemical and bacteriological agents in war among Parties. The
Protocol is frequently described as prohibiting “first use” since
thirty-nine (including France, the United Kingdom, the Soviet Union
and other major powers) of the eighty-four Parties have ratified
subject to a reservation that expressly preserves the right to
retaliate should chemical or bacteriological weapons be used by
another State or its allies.
[Page 11]
There are three alternative means of dealing under the Protocol with
our policy of renunciation of any use of biological weapons and
first use of chemical weapons.
First, we could ratify with a reservation
in the following form:
“That the said Protocol shall cease to be binding on the
Government of the United States with respect to the use in war
of asphyxiating, poisonous or other gases and analogous liquids,
materials or devices in regard to any State if such State or any
of its allies de jure or de facto fails to respect the
prohibitions laid down in the Protocol.”
This reservation is designed to implement our policy of no first use
of chemical weapons, since the Protocol itself proscribes any use of such weapons in war. Unlike the
reservations of all but one other reserving government, however, the
proposed reservation does not assert the right to use biological
weapons in retaliation, and thus reflects your recent announcement
that we would renounce any use of such weapons. Furthermore, it does
not state that the United States is bound only toward other Parties
to the Protocol. Such a qualification might be redundant (in the
light of the language of the Protocol itself) and seems undesirable
since it would be narrower than our announced policy of no first use
of chemical agents.
Second, we could ratify with a reservation
in the following form:
“That the said Protocol shall cease to be binding on the Government
of the United States in regard to any State if such State or any of
its allies de jure or de facto fails to respect the prohibitions
laid down in the Protocol.”
This reservation is similar to the reservations by France, the United
Kingdom, the Soviet Union and other major powers. However, like
alternative 1, it does not state that the United States is bound
only toward other Parties to the Protocol. It reserves the right to
use both chemical and bacteriological agents in retaliation.
[Page 12]
Third, we could ratify without any
reservation. With respect to the thirty-nine States that have
ratified with reservations, we would legally have the benefit of
their reservations in our relations with them to retaliate with
chemicals or biologicals. With respect to each of the non-reserving
States, the United States could rely upon the right under
international treaty law to regard a first use by another State of
materials prohibited by the Protocol as constituting a breach of
that instrument which gave us the right to consider that instrument
as suspended or terminated in our relations with the State
committing the breach.
If this alternative is selected we should make our position clear in
the President’s submission of the Protocol to the Senate that we
nevertheless had the retaliatory rights described above in order to
offset the possible argument that, having ratified without any
reservation in the face of reservations by thirty-nine other States,
the United States intended to apply the prohibitions of the Protocol
in all circumstances without any exception as to “first use”.
State and ACDA prefer alternative 1.
They consider alternative 2 undesirable since it would appear to
undercut the United States renunciation of biological methods of
warfare, and since they do not believe that preserving the legal
right to use such methods of warfare would be necessary or
particularly helpful to the negotiation of the U.K. draft convention
on the prohibition of biological means of warfare. In addition,
alternative 1 would establish our legal position more clearly than
alternative 3, especially with respect to Parties who ratified
without any reservations. Their second choice would be alternative
3, since it would not require the formal communication to other
Parties of a reservation that could be claimed to be inconsistent
with the United States renunciation of biological methods of
warfare.
[Page 13]
Defense prefers alternative 2. A reservation such as alternative 1
which would assert only the right to retaliate with chemical weapons
is an unnecessary unilateral international legal codification of a
policy decision, and would create a significant legal imbalance
between the United States and other major powers. It is unlikely to
result in similar initiatives under the Protocol by the other
Parties to the Protocol and would deprive the United States of a
bargaining point in upcoming arms control negotiations on biological
warfare. Further, since most other Parties who have made
reservations have adopted the standard broad reservation, they would
not be in a position to criticize us for using the same formulation.
These same considerations lead Defense to prefer alternative 3 over
alternative 1. As between alternatives 2 and 3, Defense prefers
alternative 2 since it would more clearly establish our legal
position.
Understanding on RCAs and Chemical
Herbicides
The most sensitive issue is how we handle our understanding that the
Protocol does not apply to RCAs or chemical herbicides. While the
United States has maintained since at least 1930 that the Protocol
does not prohibit the use of RCAs in war, a large number of other
States will not agree with this understanding. Any formal
communication of the United States position should be in the form of
an understanding (rather than a reservation), to sustain our
position that we are interpreting, rather than modifying, the
Protocol. Three possible ways of handling this matter are as
follows:
Option 1 - Follow the normal treaty
practice of requesting the Senate to give its advice and consent to
ratification with such understanding explicitly stated in its
resolution, which would then be formally communicated to the Parties
to the Protocol.
Option 2 - Same as Option 1 except that,
while you would advise the Senate of the understanding and of your
intention to communicate it to other Parties, it would not be
referred to in the resolution of advice and consent. However, you
could not communicate the understanding in this event if the Senate
made it clear that it did not consent to your doing so, and even
serious Senatorial criticism of this understanding could make its
communication difficult politically.
[Page 14]
Option 3 - While you would advise the
Senate of the understanding, it would neither be included in the
resolution of advice and consent nor communicated formally to other
Parties.
Whichever option is chosen, disagreement with this understanding by
the Senate might be expressed in the report of the Committee on
Foreign Relations or otherwise. At worst, the Senate could, by
majority vote, add to the resolution of advice and consent an
amendment expressing the opposite understanding. If it did so, and
the resolution were passed in this form, we would be unable to carry
out the decision to ratify the Protocol while preserving the right
to use RCAs and chemical herbicides.
It is virtually certain that a substantial number of Parties to the
Protocol will make public their disagreement with our understanding.
The way in which they do so would, of course, be affected by the way
in which we record our view (through formal communication or
otherwise). Beyond this registering of disagreement, the most
serious risks with respect to countries that disagree with our
position are (i) that some Parties might refuse to accept us as a
Party to the Protocol on this basis; or (ii) that the UN General Assembly might request an
advisory opinion of the International Court of Justice as to the
correctness of our understanding. (Such an opinion might be rendered
as soon as four to six months after it is requested.)
The likelihood of such a UNGA
request is difficult to judge, but it might be affected by which of
the options we pursue. There is a substantial risk that the ICJ, if requested to rule, would decide
that the Protocol prohibits the use of RCAs in war. It is not likely
that the ICJ would determine that
the Protocol prohibits the use of chemical herbicides in war. It is
probable that, in any event, the ICJ
would have more difficulty in ruling that customary international law prohibits the use of RCAs or
chemical herbicides.
If the United States formally communicates its understanding to other
Parties (Options 1 or 2), our views would have the legal effect of a
reservation in the event of an adverse opinion by the ICJ. Accordingly, our legal position
would be preserved as against other Parties, although we would still
face difficult political problems if we wished to act contrary to
the Court’s opinion. If our views are not formally communicated
(Option 3), we could not legally make use of RCAs or chemical
herbicides in war after the ICJ
decision.
[Page 15]
The pros and cons of the three options are briefly described
below:
Option 1
(Included in Senate resolution and formally
communicated)
Pros:
- (1)
- Is consistent with our normal treaty practice of stating in
Senate resolution United States understanding on important
ambiguous issues and formally communicating this understanding
to other Parties.
- (2)
- Avoids any question as to the Senate’s acquiescence in our
understanding.
- (3)
- Makes the issue clear in Senate consideration, thus avoiding
later charges (as in Tonkin Gulf Resolution) that Senate was
misled.
- (4)
- Preserves legal right to use RCAs in war in event of adverse
interpretation of the Protocol by the ICJ. (An interpretation formally communicated to
other Parties would be treated as a reservation in this
event.)
Cons:
- (1)
- Requires Senate vote on our understanding, which might lead to
impasse with, or rejection by, Senate.
- (2)
- Requires other Parties to choose between rejecting United
States as Party, objecting to United States interpretation and
treating it as a reservation modifying the treaty to that
extent, or being deemed to have acquiesced in our understanding
in treaty relations with them. (Facing them with this choice
would probably intensify international controversy over this
issue.)
- (3)
- Might not be effective politically (even though effective
legally) in protecting the option to use RCAs and chemical
herbicides in the face of an adverse ICJ opinion on the scope of the Protocol.
Option 2
(Not included in Senate resolution but formally
communicated)
Pros:
- (1)
- Does not require Senate to vote on resolution expressly
stating understanding that Protocol does not prohibit
[Page 16]
use in war of RCAs
and chemical herbicides, but would require you to advise Senate,
before its vote, that you intended to communicate formally our
understanding to other Parties.
- (2)
- Same as Pro 4, Option 1.
Cons:
- (1)
- If more than an aggregate of one-third of the Senators voting
and present either voted against such a resolution of advice and
consent or indicated that their affirmative vote did not
constitute consent to your communicating the understanding to
other Parties, you could not properly effect such
communication.
- (2)
- Could lead to charge that you are trying to mislead the Senate
or limit the exercise of its constitutional prerogative in
advising and consenting to a treaty.
- (3)
- Same as Con (2), Option 1.
- (4)
- Same as Con (3), Option 1.
Option 3 (Neither included in Senate resolution
nor formally communicated)
Pros:
- (1)
- Does not require Senate to vote on resolution expressly
stating understanding that Protocol does not prohibit use in war
of RCAs and chemical herbicides.
- (2)
- Does not require other Parties to choose between rejecting
United States as Party, objecting to United States understanding
and treating it as a reservation, or being deemed to have
acquiesced in our understanding in their treaty relations with
us, and thus might avoid some of the adverse international
political consequences of Options 1 and 2.
- (3)
- Is consistent with practice of all other Parties (none have
formally communicated understanding on RCAs or chemical
herbicides).
- (4)
- Would provide a possible way out of impasse if Senate
unwilling to consent to ratification with our understanding on
RCAs and chemical herbicides. Thus we could take the position
that, unless and until an adverse ruling of the ICJ were obtained, we would
continue to act in accordance with
[Page 17]
the understanding we have had for many
years that the Protocol does not cover RCAs and herbicides, but
that we would be willing to abide by a ruling of the ICJ on this question. This approach
might mollify those Senators who disagreed with our
understanding; our use of RCAs and herbicides pending the ICJ decision could at worst be
claimed to be a mistake of law (rather than a deliberate
violation of our treaty undertakings); and the political impact
of an adverse ruling would be softened by our willingness to
abide by it. This approach would also add to the stature of the
ICJ and demonstrate our
respect for international law.
Cons:
- (1)
- Would result in foreclosing use of RCAs and chemical
herbicides in future wars if adverse advisory opinion by ICJ were obtained. (If the United
States were to disregard its treaty obligations as interpreted
by the Court, this would seriously undermine the position of the
Courtand the basic cornerstone of treaty law that pacta sunt servanda.)
- (2)
- While not requiring a Senate vote, it would not preclude a
Senate debate on the issue and, as under Options 1 and 2, the
Senate could on its own initiative formally or informally reject
our understanding.
- (3)
- While not requiring other Parties to take a position on our
understanding, other Parties will inescapably become aware of
the reaffirmation of our position during the course of the
Senate hearings and debates and hence international controversy
is not likely to be substantially foreclosed.
- (4)
- If adverse opinion by ICJ is
issued while Viet-Nam war is still in progress, it could be used
for propaganda purposes to substantiate charges previously made
that our operations have been in disregard of the laws of war in
many respects. In addition, there is a substantial risk that a
“mistake of law” might not be regarded as a defense (as
distinguished from mitigation of punishment) in a war crimes
trial of personnel sanctioning or using RCAs after our
ratification of the Protocol should such persons be captured by
Hanoi.
Follow-on NSDM
on Use of RCAs and Chemical Herbicides
State and ACDA believe that a
follow-on NSDM on the use of RCAs
and chemical herbicides should be issued prior to submission
[Page 18]
of the Protocol to the
Senate. It is their view that both Senate and international
opposition to our understanding on RCAs and chemical herbicides
might be reduced if Administration witnesses could testify that as a
matter of policy, Presidential authorization would be required for
specific uses of such agents in specific theatres, or could describe
some general guidelines for such use.
Defense sees no need for the issue of a NSDM prior to submission of the Protocol to the Senate.
Defense agrees that Washington level authorization would be required
for the use of RCAs and chemical herbicides in specific theatres.
Presidential authorization, however, appears unnecessary; Secretary
of Defense authorization is considered adequate.
However, Defense believes that, with respect to public announcement
of restrictions on specific use of these weapons, any statement of
restrictions would be inadvisable. First, it would communicate our
battlefield rules of engagement to an enemy, or to a prospective
enemy, without any compensating benefit to us. Second, the utility
of such a public statement in securing Senate support for
ratification of the Geneva Protocol appears illusory since the
initial impact of such a statement would be dissipated as soon as
debate on the issue began. The result might be to create pressure
for the imposition of further restrictions which, if imposed, could
result in increased United States casualties in Viet-Nam and future
conflicts.
The Deputy Secretary of Defense and the Director, ACDA, join in this memorandum.
Eliot Richardson
Acting Secretary
