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413. Memorandum From the Executive Secretary of the Department of State (Tarnoff) to the President’s Assistant for National Security Affairs (Brzezinski)1

SUBJECT

  • U.S. Adherence to Additional Protocol I to the Treaty of Tlatelolco

In response to Mr. Hornblow’s memorandum of May 132 the Departments of State and Defense3 have agreed that when the President submits Protocol I to the Senate for advice and consent, he should recommend that United States ratification be made subject to the following statements:

“That the understandings and declarations attached to its ratification of Additional Protocol II apply also to its ratification of Additional Protocol I;

“That the provisions of the Treaty made applicable by this Additional Protocol do not affect the exclusive power and legal competence under international law of a state adhering to this Protocol to grant or deny transit and transport privileges to its own or any other vessels or aircraft;

“That the provisions of the Treaty made applicable by this Additional Protocol do not affect rights under international law of a state adhering to this Protocol regarding the exercise of the freedoms of the seas, or regarding passage through or over waters subject to the sovereignty of a state.”

The first of these statements has the effect of repeating our earlier declarations and understandings, notably those stating that Treaty parties retain unimpaired power to grant transit and transport rights to other countries; that the United States recognizes national claims of sovereignty over territorial waters only insofar as such claims are consistent with international law; and that the United States considers that the Treaty covers nuclear explosive devices which are ostensibly for peaceful purposes as well as devices acknowledged to be nuclear weapons. The second statement is designed to express our understanding that we retain our rights to transit our territories’ waters and [Page 1047]airspace with vessels containing nuclear weapons, and to call at ports there; such transitory presence of nuclear weapons would not infringe our undertaking to keep the territories free of nuclear weapons. The purpose of the third statement is to make known our understanding that our obligations under the Protocol do not affect our operations on the high seas, or our rights of innocent passage through territorial waters (or of passage of straits, or of archipelagic passage, if either of these is adopted as international law).

I will forward to you shortly a set of formal submittal and transmittal documents incorporating these interpretive statements.

The Department of State has also consulted with the Puerto Rican Secretary of State on the question of attaching a statement to our ratification that would allow reconsideration of our adherence as to Puerto Rico if Puerto Rico became a state. The effect of ratifying without such a reservation would be that Puerto Rico could not legally be removed from coverage of the Protocol if it became a state; and Puerto Rico would be the only state in which by international obligation we could not place nuclear weapons. The Puerto Rican authorities understood this consequence when they stated during our consultations with them that they had no objection to our ratifying without such a reservation.

The Departments of State and Defense have agreed to recommend that such a provision should not be included in the statements recommended for attachment to our ratification. To do so would dilute the effect of our ratification. Moreover, we believe that application of the Protocol to Puerto Rico as a state would not create an objectionable distinction among states of the Union. In this connection, we note that a number of other treaties have had a similarly limited geographic effect within the United States (e.g., Rush-Bagot Agreement limiting naval forces on the Great Lakes). However, we have noted the matter because the absence of such a reservation could have domestic political consequences in the event of Congressional consideration of statehood for Puerto Rico.

Finally, we believe no mention of the recommended interpretive statements need be made when the President signs the Protocol, since all the proposed statements are technical in character and none reserves obligations of the United States under the Protocol. However, we intend to give a copy of the statements privately to Mexican officials in connection with the signing, indicating to them that we anticipate that these statements will be submitted to the Senate for its consideration.

Peter Tarnoff Executive Secretary
  1. Source: Library of Congress, Manuscript Division, Harold Brown Papers, Box 74, General Files, Tlatelolco, Treaty of. Limited Official Use.
  2. Not found.
  3. A more detailed description of the Defense Department’s position is contained in a letter from Secretary Brown to Secretary Vance attached to this memorandum. [Footnote is in the original. Brown’s letter is attached but not printed.]