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

199. Memorandum from David Elliott of the National Security Council Staff to the President’s Assistant for National Security Affairs (Scowcroft)¹

Washington, June 10, 1976.

SUBJECT

• Negotiation of the ENMOD Treaty

The summer session of the CCD is scheduled to open June 22, and we will hold bilateral discussions with the Soviets prior to that. The main subject of the summer session will be the negotiation of the ENMOD treaty. Our discussions with the Soviets will focus on what modifications to the joint draft—which we tabled last year—might be acceptable in order to obtain the support of the other CCD members.

During our preparation for these discussions, DOD expressed a serious reservation about the legal character of the draft treaty, even in its present form. According to the DOD communication to you (Tab B), there is a dilemma represented by the ENMOD treaty because it encompasses both arms control and law of wars issues and attempts to treat them together in regard to the regulation of obligations undertaken by parties to the treaty. In DOD’s view this situation could lead to confusion and could impact on the negotiation of future treaties, as well as on the present ENMOD deliberations.

DOD recommends that a special interagency legal review be made of the issues they perceive, before proceeding further with substantive ENMOD negotiations. The lawyers at State and ACDA have reviewed the concerns expressed by DOD and find them to be almost incomprehensible. They are also uncertain as to what DOD intends in the way of an alteration to our already-tabled draft ENMOD treaty. (It should be noted that none of these DOD concerns were expressed in the original study that lead to the President approving our ENMOD treaty proposal.) However, inasmuch as Jim Wade indicates that these concerns are strongly held at the highest level in DOD, it would seem best to accede to their request for a rapid interagency assessment of the issues that they have raised. A study directive is at Tab A.

Recommendation:

That you sign the memorandum at Tab A.

1. Summary: Elliott informed Scowcroft that the Department of Defense had requested a special interagency review of issues related to the draft environmental modification treaty prior to the U.S.-Soviet negotiations and the summer session of the Conference of the Committee on Disarmament.

   Source: Ford Library, National Security Adviser, Presidential Files of NSC Logged Documents, IF/NS File for the President, Box 40, 7603369, ENMOD (Environmental Modification) Negotiations. Confidential. Sent for action. Tabs A and B are not attached and not found. Scowcroft highlighted the last sentence of the memorandum, underlined “accede to their request for a rapid,” and wrote “bull” at the end of the paragraph.