446. Telegram From the Department of State to the Embassies in the United Kingdom and France1

304639. USMission IAEA. Subject: U.S. Response to Soviet Statement on Protocol II to the Treaty of Tlatelolco.

1. On May 18, 1978, the Soviet Union signed Protocol II to the Treaty for the Prohibition of Nuclear Weapons in Latin America, also known as the Treaty of Tlatelolco.2 Protocol II is open for adherence to nuclear weapon states only and requires them to respect the nuclear weapon-free zone established by the Treaty and to refrain from using or threatening to use nuclear weapons against the parties to the Treaty. The U.S., UK, France and People’s Republic of China have previously signed and ratified Protocol II.

2. We welcome Soviet signature of Protocol II. However, their signature was accompanied by a declaration which, inter alia, stated that:

“The final act of the preparatory commission for the denuclearization of Latin America interprets the Treaty in the sense that the granting of transit authorization for nuclear weapons requested by States that are not party to the Treaty shall lie within the jurisdiction of each State party to the Treaty. In this regard, the Soviet Union reaffirms [Page 1110]its position that transit authorization for nuclear weapons in any form would be contrary to the purposes of the Treaty, according to which, as specifically stated in the Preamble, Latin America must be completely free from nuclear weapons, and would be incompatible with the non-nuclear status of the States party to the Treaty and with their obligations laid down in Article 1 of the Treaty.”

“Any actions carried out by a State or States Party to the Tlatelolco Treaty that are incompatible with their non-nuclear status . . . shall be considered by the Soviet Union to be incompatible with the obligations of those countries under the Treaty. In such cases the Soviet Union reserves the right to review its obligations under additional Protocol II.”

“The Soviet Union also reserves the right to review its attitude toward additional Protocol II in the event of actions by other States possessing nuclear weapons which are incompatible with their obligations under the aforementioned Protocol.”

3. It is not clear to U.S. whether this declaration was intended as a statement of Soviet view as to the legal obligations of the parties, or only a statement as to how they might react to certain actions by others which they would regard as politically objectionable even though legally permissible; and we would not want to characterize the statement one way or the other. Nonetheless, the above parts of the Soviet statement take exception to the negotiating history of the Treaty and are in conflict with the formal understanding placed on record by the United States at time of its ratification, and we would not wish to leave them unchallenged. The USG instrument of ratification of Protocol II included the following understanding: “that the United States government takes note of the preparatory commission’s interpretation of the Treaty, as set forth in the final act, that governed by the principles and rules of international law, each of the contracting parties retains exclusive power and legal competence, unaffected by the terms of the Treaty, to grant or deny non-contracting parties transit and transport privileges.” (In fact, the idea of including in the Treaty a prohibition on granting such transit and transport privileges was explicitly rejected during the negotiation of the Treaty.) Thus, it is clear that the Treaty permits the contracting parties to grant transit rights through their territories to airplanes or vessels carrying nuclear weapons, and the USG placed explicit reliance on that interpretation in ratifying Protocol II.

4. We have requested that the Soviets reconsider their declaration and have strongly urged them not to repeat it upon ratification. However, they have not given any indication that they are willing to refrain from repeating it. Soviet declaration will be a negative factor when Senate considers U.S. ratification of separate Protocol to Treaty (Protocol I), applicable to non-Latin American States who administer territory in Treaty’s zone of application.

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5. USG intends to reply formally to the Soviet declaration through the depositary (the Government of Mexico) and to request the depositary to circulate reply to all signatories and parties to the Treaty and its protocols. USG reply could be made either at time of Soviet ratification or at this time. If statement were made now and if the Soviet Union were to repeat its declaration on ratification on Protocol II, we would then reiterate our own position in an appropriate manner. FYI: We want to have our statement on record when Senate considers U.S. ratification of Protocol I next year. End FYI.

6. Proposed U.S. reply follows:

Begin text. The Department of State refers to the note from the Embassy of Mexico, dated June 7, 1978,3 transmitting a copy of the Spanish translation of a declaration made by the Government of the Union of Soviet Socialist Republics on the occasion of its signing of Protocol II to the Treaty for the Prohibition of Nuclear Weapons in Latin America.

The Government of the United States welcomes the signature of the Protocol by the Government of the Union of Soviet Socialist Republics. However, the Government of the United States does not agree with the view expressed by the Government of the Union of Soviet Socialist Republics in the second sentence of paragraph 5 of its statement on signature:

“That transit authorization for nuclear weapons in any form would be contrary to the purposes of the Treaty . . . and would be incompatible with the non-nuclear status of the States party to the Treaty and with their obligations laid down in Article 1 of the Treaty.”

The Government of the United States wishes to reaffirm its position, as expressed in the statement accompanying its ratification of Protocol II, that, as set forth in the preparatory commission’s final act, each of the contracting parties retains exclusive power and legal competence, unaffected by the terms of the Treaty, to grant or deny non-contracting parties transit and transport privileges.

It is therefore the position of the Government of the United States that the statement made by the Government of the Union of Soviet Socialist Republics in no way affects the legal rights and obligations of any party to the Treaty or its protocols.

The Department requests the Embassy to take the necessary steps to have the Government of Mexico inform the other parties to the [Page 1112]Treaty and its protocols of the view expressed by the Government of the United States with respect to this matter. End text.

7. Since both UK and France are parties to Protocol II, we request that you advise appropriate British and French officials of the foregoing, encourage them to make similar replies to the Soviet declaration, and elicit their views as to the timing of such replies (i.e., whether they prefer to await Soviet ratification). We will provide copies of above to Embassies in Washington.

Vance 4
  1. Source: National Archives, RG 59, Central Foreign Policy Files, D780496–1184. Confidential; Immediate. Sent for information Priority to Moscow, Mexico City, USUN, Vienna, and Panama City. Drafted by Margot Mazeau (ACDA/GA) and Michael Matheson (L/PM); cleared by Louis Nosenzo (OES/NET), Lorna Watson (ACDA/NP), Charles Steiner (PM/NPP), George Jones (ARA), Kent Brown (EUR/SOV), Pastor (NSC), Susan Flood (OSD/ISA), Mark Lissfelt, and Peter Reams (EUR/NE); and approved by James Michel (L).
  2. See Document 437.
  3. Not found.
  4. On December 12, the Soviet Presidium officially ratified Protocol II. Its statement made no mention of the transit issue. (Documents on Disarmament, 1978, pp. 709–710)