In response to your earlier request, Dr. DuBridge and I have prepared for your consideration the
attached Issues Paper (Tab A) on the relationship of the proposed Cape
Keraudren nuclear excavation project to the Limited Test Ban Treaty
(LTBT) and the various options by
which we might proceed with the project. I think that it is clear from
the attached paper that this is a very complex issue that will have to
be dealt with carefully to avoid serious complications.
While it will not be possible to make a final judgment on the magnitude
of this problem until the joint US-Australia technical feasibility study has been completed, I
think that we should develop a better understanding of the options
available to us as soon as possible. In view of the Senate’s interest in
this problem, the Administration will probably have to lay the
groundwork for its approach to the problem very soon. In this
connection, Senator Fulbright has
sent the attached letter (Tab B) to Secretary Rogers requesting a formal
Administration statement on whether or not the SCHOONER event, a nuclear
excavation shot in Nevada last December, violated the provisions of the
LTBT. The answer to Senator
Fulbright’s question will
present problems since the amount of radioactive debris that left US territorial limits was considerably in
excess of the maximum that had been predicted.
I therefore recommend that you direct that a formal study be prepared on
the relationship of the Cape Keraudren project to the LTBT and the options by which we might
proceed with the Australian project. If you approve, I will sign the
attached NSSM (Tab C) setting up an ad
hoc NSC group under the Secretary of
State with appropriate representatives of other agencies, including the
AEC, to prepare the study for NSC consideration.
Tab A
Issues Paper
Washington, February 11, 1969
CAPE KERAUDREN NUCLEAR EXCAVATION PROJECT and the
LIMITED TEST BAN TREATY
We have now agreed to a joint technical feasibility study with the
Australians on the nuclear excavation of a harbor at Cape Keraudren
on the northwestern coast of Western Australia. The issue must now
be examined as to the relationship of this project to the provisions
of the Limited Test Ban Treaty (LTBT) (copy attached). Consideration should then be
given to the relative merits of the various options under which we
might carry out the project.
The following questions should be answered in developing the U.S.
position on this project in the light of the provisions of the
LTBT.
- 1.
- Would the Cape Keraudren nuclear excavation project in
Australia constitute a violation of the Limited Test Ban
Treaty?
- 2.
- Would a unilateral U.S. interpretation of the LTBT to permit the Cape Keraudren
project provide an acceptable basis for the project?
- 3.
- Would an agreed bilateral (or trilateral) US–USSR–(UK)
interpretation of the LTBT to
permit the Cape Keraudren project provide an acceptable basis
for the project?
- 4.
- Would an effort to amend the LTBT to permit nuclear excavation activities such
as the Cape Keraudren project be in the overall U.S. interests
at this time?
[Page 3]
The pros and cons on each of these questions can be summarized along
the following lines:
1. Would the Cape Keraudren nuclear excavation
project in Australia constitute a violation of the Limited Test
Ban Treaty?
a. Pro:
(1) The LTBT prohibits any nuclear explosion “(a) in the
atmosphere; beyond its limits, including outer space; or underwater, including territorial
waters or high seas; or (b) in any
other environment if such explosion causes radioactive debris to
be present outside the territorial limits of the State
under whose jurisdiction or control such explosion is conducted.”
The Cape Keraudren project, which will involve underwater excavation
will inject radioactive debris into both the atmosphere and the
ocean. Since the proposed harbor is on the coast of Australia, it
will be extremely difficult to find weather conditions that will
assure that debris vented to the atmosphere will not go past the
three-mile territorial limits. In addition, the fact that the
excavation will take place underwater might be construed to
constitute a separate violation of the provisions of the treaty
against underwater tests even in territorial waters. In any event,
even if it is argued that this underwater test is in fact
underground, there appears to be little possibility that the
radioactivity injected into the water could be prevented from going
beyond the territorial waters of Australia which would also be a
violation of the treaty.
[Page 4]
(2) Although both we and the Soviets have conducted a number of tests
that clearly put radioactive debris beyond our respective
territories, neither the Soviet Union, nor any other signatory, has
accepted a de minimis or any other interpretation of the meaning of
the treaty language. In fact, on January 21, 1969, the Soviet Union
informed us privately that they had detected debris from the
SCHOONER nuclear excavation event in Nevada and that they considered
this to be a violation of the LTBT.
(3) The fact that the project will be subject to close public
scrutiny, as a consequence of its international nature and strong
Congressional interest, will make it impossible to obscure the
treaty implications and therefore will establish any violation as a
premeditated act.
b. Con:
(1) The treaty does not define “radioactive debris” nor establish
quantitatively how much must be present outside the territorial
limits in order to constitute a violation. The language clearly was
not intended to cover the presence of a single radioactive atom.
This is, therefore, clearly a case where a de minimis interpretation
is required to make the treaty operationally meaningful. In these
circumstances, a reasonable interpretation could vary anywhere from
the level of detectability to the normal international safety
standards. By carefully choosing the site and meteorological
condition, it should be possible to design this test so that levels
of radioactivity outside of Australian [Page 5] territorial waters, both in the atmosphere
and in the ocean, would be kept within normal safety standards.
(2) There is, in fact, an implicit international acceptance of a de
minimis interpretation of the treaty. Our nuclear excavation program
to date has been conducted on this basis since we knew that some of
the tests would put radioactivity outside our boundaries and that
there was a reasonable probability that they would be detected in
Canada and possibly elsewhere. The Soviets have also conducted
nuclear excavation and other underground tests in a manner in which
they obviously knew that some radioactivity would go beyond their
territory, and we detected these tests in a number of instances. In
these circumstances, it is significant that neither country has
chosen to protest publicly that these tests have violated the LTBT, nor has any other country chosen
to charge formally that these tests have violated the treaty.
(3) The location of the Australian event makes it very unlikely that
the debris would be detected by any other country and makes it
extremely unlikely that detectable amounts would enter into the
territory of other countries. Moreover, there is no possibility that
amounts approaching international safety standards will enter the
territory of other countries. There would, therefore, almost
certainly not be an injured party to claim a treaty violation.
[Page 6]
2. Would a unilateral U.S. interpretation of
the LTBT to permit the Cape
Keraudren project provide an acceptable basis for the
project?
a. Pro:
(1) A unilateral U.S. interpretation of the LTBT would provide an adequate basis for the conduct of
this test since there is strong worldwide support, including the
Soviet Union, for such peaceful applications of nuclear explosives.
Other countries, which in general see potential benefits from
nuclear excavation, would welcome our getting on with the job.
(2) The public would in fact be reassured by a U.S. interpretation
that kept debris levels outside of national territories below
internationally accepted safety levels.
b. Con:
(1) This would present the Soviet Union, and others, with a
unilateral U.S. reinterpretation of a formal multilateral treaty and
would thereby force them to challenge the position even if they had
some sympathy with the objective.
(2) There would be substantial foreign and domestic public criticism
that the U.S. was attempting to undercut the LTBT and contaminate the
atmosphere.
(3) This could have a major long-term effect in undercutting
confidence in international treaties by creating the impression that
they could be unilaterally interpreted by individual major powers to
suit their immediate purposes.
[Page 7]
(4) This action might even start a chain reaction of treaty
interpretations by other countries that could have the effect of
destroying the LTBT.
3. Would an agreed bilateral (or trilateral)
US–USSR–(UK)
interpretation of the LTBT to
permit the Cape Keraudren project provide an acceptable basis
for the project?
a. Pro:
(1) This procedure would be generally acceptable internationally for
the reasons given in 2a(1)&(2) above.
(2) There would be additional support for this procedure among
nations and individuals that would look with favor on a joint US–USSR–(UK) undertaking in
an activity involving the extension of the peaceful uses of the atom
on a worldwide basis.
b. Con:
(1) Some countries would deeply resent this as a dictate by the
nuclear powers to arbitrarily reinterpret the LTBT for their own purposes.
(2) Although possibly somewhat muted by the joint US–USSR–(UK) character of
the interpretation, there would still be considerable public
disapproval on the grounds that this would undercut the LTBT.
(3) This could also have a long-term effect in undercutting
confidence in international treaties by indicating that the key
nuclear powers could arbitrarily reinterpret the treaties to suit
their immediate purposes.
[Page 8]
4. Would an effort to amend the LTBT to permit nuclear excavation
activities such as the Cape Keraudren project be in the overall
U.S. interests at this time?
a. Pro:
(1) An amendment to the LTBT would
give us a clear-cut legal basis to go forward with nuclear
excavation projects and would avoid any possibility that we would be
charged with violations of the treaty.
(2) An amendment would in any case almost certainly have to be made
before we could undertake really large-scale projects such as the
sea-level Atlantic-Pacific canal or projects less favorably located
geographically.
b. Con:
(1) It is extremely unlikely that an amendment to the LTBT could be brought into force on a
time-scale consistent with the Cape Keraudren project. The form of
the amendment will probably in practice prove to be quite complex,
both with regard to the establishment of levels of radioactivity and
with the definition of inspection procedures to insure that venting
tests are in fact intended for peaceful purposes. Moreover, the
formal procedures for amending the treaty would undoubtedly prove
quite time-consuming since the treaty provides that amendments must
be considered at a conference called for by at least one-third of
the parties to the treaty and that the amendments would only enter
[Page 9] into force if
ratified by a majority of the parties, including the US, the USSR, and the UK.
(2) An amendment would weaken the force of the LTBT, an agreement to prevent
contamination of the atmosphere.
(3) It is not certain that the Senate would in fact ratify an
amendment. In addition to concern about endorsing increased
radioactivity in the atmosphere, questions may well be raised
concerning the security implications of the amendment. Specifically,
if the procedures do not include inspection in the Soviet Union,
which seems unlikely, the charge will be made that special weapons
effects tests could be conducted by the Soviets in the atmosphere
under the provisions of the amendment.
(4) An effort to reopen the LTBT for
amendment will result in counter proposals from other countries to
amend the LTBT to make it a
Comprehensive Test Ban Treaty with or without provisions for
PLOWSHARE activities.
Tab B
Letter From Senator Fulbright to Secretary of State
Rogers
Washington, January 22, 1969
Dear Mr. Secretary:
Over the past few years the United States has conducted a number of
Plowshare cratering experiments. These tests have increased in
frequency and size. The test in January of 1968, for example was
somewhat less than the equivalent of 3,000 tons of TNT, while the
most recent December 1968 test was equivalent to 35,000 tons of TNT.
It is the pattern of these tests and the implications of this
pattern for the United States responsibilities under the Nuclear
Test Ban Treaty of 1963 that concern me.
According to press reports, the cratering experiment in December of
1968 may have resulted in a violation of the 1963 Test Ban
agreement. A few days after this experiment reports indicate that
radiation levels in Canada rose from 10 to 20 times what they are
normally. I understand from the press that the United States is
investigating these reports.
Inasmuch as this Committee approved the Test Ban Treaty with its
restricting provisions, I would appreciate a complete report from
the Department of State on what actually happened as a result of the
December experiment. My primary concern at this time is not with the
question of whether the radioactive debris that may have gone into
Canada was of a dangerous level of radiation. Nor do I find the
question of whether Canada has officially noted any violation of the
treaty that may have occurred as particularly relevant to my
interest. What concerns me is the integrity of United States
adherence to Article I (b) of the Nuclear Test Ban Treaty. That
Article explicitly bans any nuclear [Page 11] explosion which “causes radioactive debris to
be present outside the territorial limits of the State under whose
jurisdiction or control such explosion is conducted.” There is no
exception to this provision. Adherence to, or violation of, this
article is not modified by the circumstances of the experiment, the
radiation level outside the United States as a result of an
incident, or whether or not the incident is officially noticed by
the country where the radioactive debris lands.
On behalf of the Committee I would appreciate it if you would provide
us with a full report on the alleged radioactive fallout over Canada
and its relationship to the December 1968 cratering experiment. In
particular I should like to have a clear and unequivocal statement
from the Department of State whether the United States, for whatever
reason, violated the Nuclear Test Ban Treaty.
It would be very helpful if the Committee could have this information
at the earliest possible date.
Sincerely yours,
