Foreign Relations of the United States, 1969–1976, Volume E–14, Part 2, Documents on Arms Control and Nonproliferation, 1973–1976

13. Information Memorandum From the Department of State Deputy Legal Adviser (Aldrich) to Acting Secretary of State Rush¹

Washington, September 13, 1973.

Department’s Position on NSSM 157

PM is forwarding to you a recommended position on the question of United States policy on chemical weapons. While we have concurred in PM’s recommendations, we want to emphasize in particular our support, based upon our analysis of weaknesses in the present legal, political, and military deterrents to CW use, for a decision to move as quickly as possible toward an agreement prohibiting maintenance of CW stockpiles, along the lines of option 3 in the NSSM study. Given the present legal and practical difficulties involved in the maintenance of an effective CW capability, we believe that United States interests would best be served by the establishment of a total legal prohibition on the stockpiling, as well as the production and transfer, of chemical weapons, regardless of its verifiability.

Discussion

The fundamental objective of our CW policy is, of course, the prevention of the use of chemical weapons against us in any conflict. It is not clear whether an effective deterrent-in-kind against CW use would add in any significant way to the deterrent already provided by our conventional and nuclear capabilities, on which, according to NATO military doctrine, the Alliance places “principal” reliance for deterrence against CW attack. What is clear is that present U.S. (and NATO) CW capabilities, both offensive and passive-defensive, which make possible only token CW usage in response to attack, can contribute essentially nothing to deterrence against an adversary well-enough equipped to launch a meaningful CW attack in the first place. The PM memorandum and the NSSM 157 study fully describe the practical impossibilities of either making effective deployment and use of our existing stockpiles or developing alternatives which overcome the obstacles to an effective CW capability.

Of course, there already exist significant legal/political barriers against the use of CW. However, the present legal constraints have some weaknesses which might well destroy their effectiveness in an actual conflict situation. The Geneva Protocol of 1925 with its reservations, our unilaterally declared policy, and, perhaps, customary international law prohibit only the first use of CW. The priority of use in a confused battlefield situation can be very difficult for third parties, and even for the participants, to ascertain, so long as both parties to the conflict have offensive CW capabilities. This makes it quite conceivable that CW use could be initiated on the basis of mistaken field reports of first use by one party, or as a result of unauthorized or inadvertent action by a single unit, or on the simple pretext, unverifiable by a third party, that the other side had initiated use. And once CW use has been initiated, even at token levels, there are no legal restrictions on the dimensions of use by the other side.

The question, then, is whether, at least in the absence of an effective deterrent-in-kind for the foreseeable future, we cannot best achieve our basic objective by strengthening the legal and political “firebreak” against CW use. A total prohibition on stockpiles would make explicit what is already implicit in the realities of the situation: that we will in fact rely on our other capabilities, including our nuclear capabilities, for deterrence against initiation or continuation of any CW attack. By denying ourselves any semblance of an offensive CW capability, and by creating a strong new legal barrier to possession (and thus use) of CW, we would make more credible the escalatory deterrent on which we would in fact be compelled to rely in any case. Elimination of our stockpiles, of which there could be no question given our open society, would deprive an adversary of any pretext for “retaliatory” use of CW against us. Concentration of CW resources on passive-defensive equipment, such as protective clothing and warning devices, in which United States forces are presently sadly deficient, could further reduce any temporary military advantage an adversary might anticipate as a result of CW use.

Conclusions

The conclusions we draw from this analysis are basically as follows:

First, it is in the interests of the United States to seek the establishment of an internationally agreed legal prohibition on the stockpiling, as well as the production and transfer, of chemical weapons.

Second, although we can and should, as suggested by PM, use our negotiating leverage on this issue to obtain the maximum possible opening-up of Soviet society and to increase the perceived risk to them that a violation would be detected, a total prohibition would be in our interest regardless of its degree of verifiability because of the additional inhibitions it would place upon the use of CW, to which we will not in any event be in a position effectively to respond in kind.

Third, therefore, we should not establish rigid verification requirements as conditions for our willingness to enter into a production and stockpile ban, particularly in light of the general recognition that no verification measures—even on-site inspections—would produce high-confidence verification. Rather, we should adopt a flexible approach which would permit us to negotiate the best possible combination of inspection and other confidence-building measures as part of such an agreement but which would not result in a stalemate over the verification issue.

Declarations

As we have made clear within the Department and in the interagency working group, we are strongly opposed to the use of bilateral or multilateral “declarations” in place of an agreement. As we understand it, in light of the legal and domestic political problems involved, the Department is not considering recommending either approach. Should either be seriously considered, we would want an opportunity to explain to you our objections to the use of such a procedure.

1. Summary: Aldrich informed Rush that the Bureau of Politico-Military Affairs planned to submit a recommendation on the question of U.S. chemical weapons policy as stated in the NSSM 157 study. Aldrich indicated that the Office of the Legal Adviser concurred in PM’s recommendation and offered several conclusions drawn from the PM analysis.

   Source: National Archives, RG 59, Central Files 1970–73, POL 27–10. Secret. Drafted by Steven C. Nelson (L/UNA) on September 11. The date on the memorandum is stamped. Rush served as Acting Secretary from September 3 until September 22 after Rogers tendered his resignation on September 3. The memorandum prepared in the Bureau of Politico-Military Affairs is Document 14. For the text of the “Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (26 UST 571),” commonly known as the Geneva Protocol of 1925, see Arms Control and Disarmament Agreements: Texts and History of Negotiations, pp. 14–17. In November 1969, Nixon indicated that he would resubmit the Geneva Protocol to the Senate for ratification. (NSDM 35; Foreign Relations, 1969–1976, volume E–2, Documents on Arms Control and Nonproliferation, 1969–1972, Document 165)