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Legal Restraints in Modern Arms Control Agreements

Published online by Cambridge University Press:  28 March 2017

Eric Stein
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In theory, we may envisage five principal types of national arms policy,reflecting as many policy objectives:

(1) Arming to obtain the greatest possible weapons preponderance on the assumption that armed conflict is imminent. This policy of amassing military forces without regard for its effect on the other side results in an unrestrained arms race.

(2) Arming to deter. The idea of deterrence is familiar to lawyers since it figures so prominently in criminal law. According to Schelling, deterrence as a strategic concept “is concerned with influencing the choices that another party will make, and doing it by influencing his expectations of how we will behave.” Deterrence “requires that there be both conflict and common interest between the parties involved; it is as inapplicable to a situation of pure and complete antagonism of interest as it is to the case of pure and complete common interest.”

(3) Arms control. This policy envisages measures that aim at reducing the danger of war and at slowing down the arms race. Such measures may or may not involve actual restrictions upon military activities or reduction of armaments.

(4) Comprehensive, reciprocal disarmament (“general and complete disarmament”), usually seen as a scheme “embodied in a single grand treaty leading by stages from less to more drastic and radical measures.” In the final stage, the capabilities of national forces are reduced to those required for internal security only and a centralized international machinery is charged with peacekeeping.

(5) Unilateral disarmament, a concept that is self-explanatory.

Type
Research Article
Information
American Journal of International Law , Volume 66 , Issue 2 , April 1972 , pp. 255 - 289
Copyright
Copyright © American Society of International Law 1972 

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Footnotes

*

Of the Board of Editors. This article draws on materials used in a series of lectures at the Hague Academy of International Law in the summer of 1971; it is published here with the permission of the Academy. Other aspects treated in the lectures were: form of the arms control agreements; participants; negotiation forums; the rôle of the international law factor in arms control negotiations; legality of weapons of mass destruction; verification of compliance; dispute settlement and enforcement; duration, modification, review, termination. The complete text will appear under the title “Impact of New Weapons Technology on International Law: Selected Aspects,” in the 1971 volume of Recueil des Cours of the Hague Academy of International Law.

References

1 Schelling, T. C., The Strategy of Conflict at 13 (Cambridge, Mass.: Harvard University Press, 1960)Google Scholar.

2 Ibid, at 11.

3 H. Bull, The Control of the Arms Race—Disarmament and Arms Control in the Missile Age at 137 (New York: Frederick A. Praeger, 1961), referring to general and comprehensive disarmament.

4 Comprehensive reciprocal disarmament in the sense of this alternative was the subject of the unsuccessful League of Nations Disarmament Conference in 1932. After the second World War, draft treaties on “general and complete disarmament” have been considered intermittently in the United Nations with little promise of an agreement. P. Noel-Baker, The Arms Race—A Programme for World Disarmament at 12––30, 42––46, 387––392 (London: Atlantic Books, Ltd.; New York: Oceana Publications, 1958); The United Nations and Disarmament 1945––1970 at 78––125 (New York: U.N., 1970). For a unique study of post-1946 negotiations, see B. G. Bechhoefer, Postwar Negotiations for Arms Control (Washington, D.C.: The Brookings Institution, 1961). See also A. Nutting, Disarmament: An Outline of the Negotiations (London-New York-Toronto: Oxford University Press, 1959).

5 “Headlong Western Disarmament after World War II” may be offered as an example. Bechhoefer, note 4 above, at 5. For the above scheme generally, see Singer, “Weapons Technology and International Stability,” 5 Centennial Review 415 at 424––427 (Fall, 1961). The scheme is a theoretical and necessarily arbitrary model that does not purport to include every conceivable national arms policy objective, e.g., arming for “prestige,” etc.

6 See Schelling, note 1 above, at 11, 230.

7 A Canadian lawyer-diplomat offers a useful classification of such measures, proposed and adopted up to 1965: A. Gotlieb, Disarmament and International Law—A Study of the Role of Law in the Disarmament Process at 68––69 (Toronto: Canadian Institute of International Affairs, 1965). See also Bull, note 3 above, at 155––157, 166––174; The United Nations and Disarmament, note 4 above, at 137––171.

8 402 U.N.T.S. 71; [1961] 12 U.S.T. 794. Entered into force June 23, 1961; 16 countries have ratified or acceded to this treaty. Arms Control Achievements 1959––1971, Arms Control and Disarmament Agency, Pub. 59 at 1 (Oct. 1, 1971. Washington, D.C.: U.S. Government Printing Office).

9 [1967] 18 U.S.T. 2410. Entered into force Oct. 10, 1967; 89 states have signed and 60 have ratified or acceded. This treaty is referred to here as the Outer Space Treaty. The data on signatures and ratifications of this and the other treaties mentioned below are based on Arms Control and Disarmament Agency, Pub. 59, note 8 above. Because of the U.S. policy of non-recognition, the signatures or ratifications by the German Democratic Republic, the Byelorussian S.S.R. and the Ukrainian S.S.R. are not included in the totals.

10 Text in Appendix II, 10th Annual Report to Congress, Jan. 1, 1970–Dec. 31, 1970, U.S. Arms Control and Disarmament Agency 37–40 (1971). This treaty, which is not yet in force, is referred to as the Seabed Treaty. 83 states have signed, 19 have ratified.

11 480 U.N.T.S. 43; [1963] 14 U.S.T. 1313. Entered into force on Oct. 10, 1963; 106 states signed, 105 states ratified or acceded. This treaty is referred to here as the Partial Test Ban Treaty or the Test Ban Treaty.

12 [1970] 21 U.S.T. 483. Entered into force March 5, 1970; 97 states signed, 70 ratified or acceded. This treaty is referred to here as the Non-Proliferation Treaty.

13 Treaty for the Prohibition of Nuclear Weapons in Latin America, with Additional Protocols I and II, signed at Tlatelolco, Mexico City, on Feb. 14, 1967, U.N. Doc. A/C.1/946 (1967); 1967 Documents on Disarmament at 69––83 (Washington, D.C.: U.S. Arms Control and Disarmament Agency, 1967). The treaty entered into force on April 22, 1968; 22 Latin American states signed, 19 ratified or acceded to the treaty. The United States and the United Kingdom have signed and ratified Protocol II. It entered into force for the United States May 12, 1971. See Senate Res. of April 19, 1971, Cong. Rec. S 5060––5062 (1971). See, generally, Alfonso García Robles, The Denuclearization of Latin America (New York: Carnegie Endowment for Int. Peace, 1967); Robinson, , “The Treaty of Tlatelolco and the United States,” 64 A.J.I.L. 282 (1970)Google Scholar.

Because of space limitations I was able to deal here only with arms control treaties of world-wide scope and for this reason it was impossible to include more than a few passing references to the Tlatelolco Treaty.

14 CCD/353 of Sept. 28, 1971, in Annex A to the Report of the Conference of the Committee on Disarmament to the U.N. General Assembly, U.N. Doc. A/8457 and DC/234, Oct. 6, 1971.

Three bilateral agreements concluded by the United States and the Soviet Union should also be mentioned here:

(1) Memorandum of Understanding Regarding the Establishment of a Direct Communications Link (“Hot Line”), signed on June 20, 1963, 472 U.N.T.S. 163, [1963] 14 U.S.T. 825, T.I.A.S., No. 5362. See Fisher, , “Arms Control and Disarmament in International Law,” 50 Va. Law Rev. 1200 at 1203 (1964)CrossRefGoogle Scholar; Bunn, , “Missile Limitation: By Treaty or Otherwise?” 70 Columbia Law Rev. at 12 (1970)Google Scholar.

(2) An agreement to modernize the Washington-Moscow Direct Communications Link, signed on Sept. 30, 1971. It provides for the establishment of two satellite circuits (one by each party) as well as multiple terminals to increase both the capacity and reliability of the communications line. 65 Dept. of State Bulletin 401–403 (1971).

These two agreements are of limited legal interest since the only obligations accepted by the parties relate to the maintenance of specified means of communication between them.

(3) An agreement of Sept. 30, 1971, to reduce the risk of accidental outbreak of nuclear war covers three areas: (i) an obligation to take the steps each side feels necessary to guard against “accidental or unauthorized use of nuclear weapons”; (ii) arrangements for rapid communications should the danger of nuclear war arise from such nuclear incidents or from detection of unidentified objects on early-warning systems and an obligation to render harmless a nuclear weapon involved in such an incident; (iii) advance notification of planned missile launches which “will extend beyond . . . national territory in the direction of the other Party.” 65 Dept. of State Bulletin 400–401 (1971).

The two agreements of Sept. 30, 1971, were concluded by the United States and Soviet negotiators in the “Strategic Arms Limitation Talks” (SALT) in parallel with the principal SALT negotiations envisaging bilateral agreements for the limitation upon, and control of, strategic nuclear delivery systems.

In a sense, the establishment of the International Atomic Energy Agency could also be listed among the “partial” arms control measures. Statute of the International Atomic Energy Agency, 276 U.N.T.S. 3, [1957] 8 U.S.T. 1093.

15 On May 20, 1971, President Nixon and the Soviet Government announced that a decision had been made to concentrate in SALT on working out an agreement to limit the deployment of antiballistic missile systems (ABMs); and, together with concluding an agreement to limit ABMs, the two countries would agree on certain measures with respect to the limitation of offensive strategic weapons. Arms Control Achievements 1959–1971, note 8 above, at 8–9.

16 See also Art. IX (1) (a) (“use of Antarctica for peaceful purposes only”) and the first and fourth preambular paragraphs. See, generally, G. Mencer, Mezinárodně právni problémy Antarktidy 106–135 (Praha: Nakladatelstvì Československé Akademie Věd, 1963).

17 H. Taubenfeld, A Treaty for Antarctica (International Conciliation, No. 531) at 262 (New York: Carnegie Endowment for International Peace, 1961).

18 Ibid, at 283.

19 Art. I (2). Hanessian, “The Antarctic Treaty—An Analysis of the Provisions of an Extraordinary International Treaty Up for Ratification by Twelve Countries,” American University Field Staff Reports Series, Polar Area Series, Vol. 1, No. 2, at 10 (1960); idem, “The Antarctic Treaty, 1959,” 9 Int. and Comp. Law Q. 436 at 468 (1960).

20 According to Art. V (2), if all the contracting parties were to adhere to any broader international agreements on these subjects, those agreements were to apply to Antarctica. The ban on testing was added at the insistence of Latin American states in particular, which were concerned lest the fallout from any atmospheric tests be carried by northward winds to the Southern Hemisphere. Taubenfeld, he. cit. note 17 above, at 285.

21 Controlled reactions in a nuclear power reactor are not considered “explosions” within the meaning of the treaty.

22 On peaceful explosions see below at 268.

23 Art. VI. Taubenfeld, loc. cit. note 17 above at 286.

24 Darwin reports that the sentences relating to personnel and equipment represented “a difficult compromise reached at a late stage of negotiations.” Darwin, , “The Outer Space Treaty,” 42 Brit. Yr. Bk. Int. Law 278 at 284 (1967)Google Scholar. See also Dembling, and Arons, , “The United Nations Celestial Bodies Convention,” 32 J. of Air Law 535 at 542 (1966)Google Scholar.

Installation of weapons of mass destruction on celestial bodies is prohibited in the first paragraph of Art. IV; see immediately below.

For a bibliography on the Outer Space Treaty, see S. H. Lay and H. J. Taubenfeld, The Law Relating to Activities of Man in Space at 328–330 (Chicago and London: Univ. of Chicago Press, 1970).

25 “Installations” are added as specifically prohibited in this paragraph of the Outer Space Treaty.

26 See J. E. S. Fawcett, International Law and the Uses of Outer Space at 34 (Dobbs Ferry, New York: Oceana Publications; and Manchester: Manchester Univ. Press, 1968). See also Meyer, , “Der Weltraumvertrag,” 16 Zeitschrift für Luftrecht und Weltraumrechtsfragen 65 at 69 (1967)Google Scholar. Poulantzas, , “The Outer Space Treaty of January 27, 1967, A Decisive Step Towards Arms Control, Demilitarization of Outer Space and International Supervision,” 20 Revue Hellénique de Droit International 66 at 69 (1969)Google Scholar, suggests that “peaceful” should be read as “non-armed.”

27 Consider the first sentence of the paragraph with the clause “exclusively for peaceful purposes” in the light of Art. I (exploration and use for the benefit and in the interest of all countries . . .) and second preambular paragraph (“exploration and use of outer space for peaceful purposes”). See to this effect Markoff, “La Notion ‘Utilisation Paciflque’ en Droit International Cosmique,” Proc, 9th Colloquium on the Law of Outer Space, Oct. 14, 1966, Madrid, Spain at 170–171 (Davis, Cal.: Univ. of California School of Law, 1967).

The above interpretation would also hamper effective application of the provision, because the distinction between aggressive and non-aggressive (defensive) uses of systems may not be easy to draw, and the treaty fails to provide for settlement procedures in case of a dispute.

28 McNaughton, “Space Technology and Arms Control” in Maxwell Cohen (ed.), Law and Politics in Space—Specific and Urgent Problems in the Law of Outer Space at 69 (Montreal: McGill University Press, 1964). Fawcett, note 26 above, at 35, correctly points to questionable drafting of paragraph two of Art. IV:

“It is perhaps a mistake to press these points of interpretation too far, but in an instrument of the supposed importance of the Outer Space Treaty, some care and precision of language may be expected. An oddity here is the omission of the Moon from the critical provision in Article 4 (2) prohibiting the establishment of military bases and so on. This provision as it stands covers only celestial bodies. Does this expression include the Moon in this context? Instead of a definitions clause, that might have been expected, the stock phrase ‘outer space, including the Moon and other celestial bodies’ is used twenty-two times in thirteen Articles, and its components are sometimes used separately. So in Article 4 ( 2 ) itself the expression ‘the Moon and other celestial bodies’ appears twice save in the central sentence, where the omission of the Moon must either be intentional, or an egregious mistake, only to be saved by saying that the whole tenor requires that the expression ‘celestial bodies’ in that sentence must include the Moon.”

The treaty does not deal specifically with the interesting question of the legal status of non-military installations on the moon and celestial bodies. See, on this problem, generally, Brownlie, , “The Maintenance of International Peace and Security in Outer Space,” 40 Brit. Yr. Bk. Int. Law 1 at 27–28 (1964)Google Scholar.

29 U. N. Doc. A/8391, June 4, 1971.

30 Emphasis added. In U. N. terminology the concept of “any other kinds of weapons of mass destruction” includes “lethal chemical and biological weapons.” Thus, e.g., the Commission for Conventional Armaments, established by the Security Council, adopted a resolution on Aug. 12, 1948, defining weapons of mass destruction to include atomic explosive weapons, radioactive material weapons, lethal chemical and biological weapons, and any weapons developed in the future which have characteristics comparable in destructive effect to those of the atomic bomb or other weapons mentioned above.” United Nations, Resolution of the Commission for Conventional Armaments of Aug. 12, 1948, U. N. Doc. S/C.3/32, Aug. 18, 1948.

31 General Assembly Res. 1884 (XVIII) of Oct. 17, 1963, U. N. GAOR, Supp. 15 at 13, U. N. Doc. A/5515 (1963); Fawcett, note 26 above, at 32. Darwin considers it relevant that this resolution, in contrast to Res. 1962 (XVIII) “does not claim to lay down legal principles.” Darwin, note 24 above, at 288.

32 Bloomfield in L. P. Bloomfield (ed.), Outer Space—Prospects for Man and Society at 125 (rev. ed., New York-Washington-London: Frederick A. Praeger, 1968). Deputy Secretary of Defense Cyrus R. Vance stated with reference to possible nuclear weapon systems in orbit: “Our studies show that these systems have technical and economic drawbacks in addition to safety and command disadvantages. They would, if deployed now be inaccurate, costly, and dangerous; and they would be less effective than present ICBM systems. Nevertheless, as technology advances, it is possible that some of these disadvantages could be eliminated.” Treaty on Outer Space, Hearings before the Committee on Foreign Relations, U. S. Senate, 90th Cong., 1st Sess., on Exec. D, 90th Cong., 1st Sess., March 7, 13, and April 12, 1967, at 81.

33 Ambrosini, “The Meaning of the Romantic Enunciations of Article I, §1 of the Space Treaty of January, 1967,” in Further Outlook on Space (No. 11) at 6, speaks of “the rule sanctioning the complete demilitarization of outer space and of the celestial bodies” relying on “Articles I (para. 2), IX, X, XII, VIII, etc.”; and idem, “The Space Treaty of 1967,” loc. cit. (No. 10), at 7–9, relying on Art. IV.

34 The legislative history indicates that both super-Powers intended to draw a distinction between the regimes for outer space and for celestial bodies and the other states were aware of this distinction. Mr. Azimi (Iran) pointed out in the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space that both the Soviet and U. S. drafts and working papers mentioned peaceful uses only of celestial bodies, but not peaceful uses of outer space, and suggested that outer space should be included by an amendment. No such amendment was made. Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, 5th Sess., 66th meeting, July 25, 1966, U. N. Doc. A/AC.105/C.2/SR.66 at 7 (1966). See also Mr. Rao (India) in 71st meeting, Aug. 4, 1966, U. N. Doc. A/AC.105/C.2/SR. 71 and Add. 1 at 8–9 (1966). On Art. IV, see N. M. Matte, Aerospace Law at 297–305 (London: Sweet & Maxwell Ltd.; Toronto: Carswell Co. Ltd., 1969); Goedhuis, , “An Evaluation of the Leading Principles of the Treaty on Outer Space of 27th January 1967,” 15 Nederl. Tijdschrift voor Intern. Recht 17 at 34–38 (1968)Google Scholar; Adams, T. R., “The Outer Space Treaty: An Interpretation in Light of the No-Sovereignty Provision,” 9 Harvard Int. Law J. 140 at 149 (1968)Google Scholar; Cheng, , “The 1967 Space Treaty,” 95 Journal du Droit International 532 at 602 (1968)Google Scholar.

35 Hessellund-Jensen, “Some Problems Concerning the Creation and Implementation of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,” 38 Nordisk Tidsskrift for International Ret 97 at 110 (1968).

36 U. N. Docs. A/AC.105/C.2/L.6 at 2 (1963); A/AC/105/C.2/L.1 at 2 (1962).

37 U. N. Doc. A/AC.105/C.2/SR.7 (1962); Meeker, “Observation in Space,” in Cohen, note 28 above, at 82. See, generally, McMahon, , “Legal Aspects of Outer Space,” 38 Brit. Yr. Bk. Int. Law 339 at 365–375 (1962)Google Scholar; “Legal Aspects of Reconnaissance in Airspace and Outer Space,” 61 Columbia Law Rev. 1074 at 1080–1082 (1961).

38 Brennan, “Arms and Arms Control in Outer Space,” in Bloomfield, note 32 above, at 161, reports that “Soviet officials at various levels up to former Premier Khrushchev have spoken in relaxed terms about U. S. reconnaissance satellites activities, and of their own activities of similar kind.”

39 Fawcett, note 26 above, at 33. Brennan, he. cit. note 38 above, at 163–164, points out that it is important that each major Power have a reasonably accurate inventory information on the strategic force levels of the other to avoid exaggerated estimates and counter-actions. However, it is difficult to obtain such information through reconnaissance satellites without also obtaining targeting information (i.e., location of weapons and carriers) and this increases the vulnerability of the forces. The United States unilaterally deployed a system of satellites for monitoring compliance with the prohibition of testing in outer space at a cost of at least $200 million. Ibid, at 176.

40 An ICBM normally does not go into orbit, but rather follows a ballistic trajectory with a typical apogee of 500–800 miles above the surface of the earth. M. Willrich, Non-Proliferation Treaty: Framework for Nuclear Arms Control at 57 (Charlottesville, Va.: The Michie Co., 1969).

41 Bloomfield in Bloomfield, note 32 above, at 125. “[T]he vehicle launched in a FOBS mode is fired into very low orbit about 100 miles above the earth, and at a given point in time, rockets are fired to bring the vehicle out of orbit. The vehicle is not intended to orbit completely around the earth.” Willrich, note 40 above, at 57. An effort by the Italian Representative to establish an interpretation of illegality of “semi-orbital” weapons did not seem to have been successful. See U. N. Doc. A/7221 (Sept. 10, 1968) and the statement by Representatives of the United States, United Kingdom and U.S.S.R. in 23rd Session of the General Assembly, U. N. Doc. A/BUR/SR.175 (Oct. 17, 1968); Ambrosini, “The Space Treaty of 1967,” Further Outlook on Space (No. 10) at 8.

42 See statements by U. S. Secretary of State Rusk and Ambassador Goldberg in Hearings before the Committee on Foreign Relations on Outer Space Treaty, note 32 above, at 17–18. Brennan, in Bloomfield, note 32 above, at 154, speculates about future problems with possible aerospace planes, capable of taking off from a more or less conventional airport, using wings for airlift and gradually flying higher until they are in orbit. He sees possible problems under the treaty if they came to be used in anything like global flight patterns for exercise or other purposes.

48 The difference between “emplant” and “emplace” was never explained. These words appeared in the very first drafts of the treaty.

44 Art. I(1).

45 General Assembly Res. 2340 (XXII), Supp. 16 at 14, U. N. Doc. A/6716 (1967); see, generally, Stoever, “The ‘Race’ for the Seabed: The Right to Emplace Military Installations on the Deep Ocean Floor,” 4 The Int. Lawyer 560 at 564–568 (1970); Pfeiffer, , “Zur Frage eines internationalen Abkommens über die Begrenzung der Meeresbodenrustung,” 24 Europa Archiv 581 (1969)Google Scholar; Kalinkin, , “Military Use of the Sea-bed Should Be Banned,” 1969 International Affairs (Moscow) 45 (No. 2)Google Scholar.

46 The arguments on both sides are conveniently summarized by Mr. Husain of India in ENDC/PV.428 at 5–8 (Aug. 14, 1969).

47 C. M. Roberts, The Nuclear Years—The Arms Race and Arms Control, 1945–70, at 111 (New York-Washington-London: Frederick A. Praeger, 1970). See also “U. S.-Soviet Accord Barring Atom Arms on Sea-bed Reported,” New York Times, Oct. 7, 1969 at C 2 ( L 2 ) , cols. 5–6.

48 Art. II. The reference to the Geneva Convention (516 U.N.T.S. 205; [1964] 15 U.S.T. 1606) was criticized by a number of states: The contiguous zone in the convention is a surface criterion applying to superjacent waters and not to the seabed or subsoil. Moreover, as a practical matter, what would happen if the Geneva Convention were terminated, were differently interpreted, or were amended in the relevant articles? Only a minority (less than 30) of states have ratified the convention. SIPRI, Yearbook of World Armaments and Disarmament 1969/70 at 166–167 (Stockholm, London, New York, New Delhi: Almquist and Wiksell, 1970). In order to assure that the differing positions of states parties to the treaty would not be affected by the reference to the convention, a separate Art. IV was inserted containing a disclaimer of such sweeping proportions that, “if taken literally, [it] may contradict the very sense of the treaty.” Ibid. at 168.

49 The Soviet Union apparently meant to deny the possibility of the “allied option” mentioned above, CCD/PV.492 at 8 (1970). The United States took the view that the exemption would not “in itself constitute granting of permission for the emplacement of weapons of mass destruction within such territorial sea.” Ibid, at 13. Mexico noted the possible interpretation that would allow the “allied option” and expressed the view that if the phrase “or the sea-bed beneath its territorial waters” were to have any meaning of its own (apart from the possible “allied option” interpretation) and if it is not a mere repetition of the prior phrase exempting the coastal state within the adjacent 12-mile zone, then the phrase must refer to situations where the territorial waters are wider than the 12-mile zone. Thus it could be interpreted as authorizing a state to emplace weapons of any kind within an area extending as much as 200 miles, if its territorial waters go that far. CCD/PV.477 at 13–15 (1970). This interpretation was rejected by the United States, which declared that the exemption for the coastal state applied only “with respect to the sea-bed beneath the territorial sea within the sea-bed zone,” not to any part beyond the 12-mile zone. CCD/PV.492 at 13 (1970).

50 Art. I (3): “not to assist, encourage or induce any State to carry out activities referred to in paragraph 1 of this article and not to participate in any other way in such actions.” The Non-Proliferation Treaty, Art. I, and the Test Ban Treaty, Art. I (2), served as model.

51 Poland in ENDC/PV.406 at 809 (April 24, 1969); SIPRI, note 48 above, at 160.

52 CCD/PV.440 at 9 (Oct. 7, 1969).

53 SIPRI, note 48 above, at 160.

54 E.g., United Kingdom in CCD/PV.444 at 22 (Oct. 21, 1969).

55 United States, CCD/PV.440 at 9 (Oct. 7, 1969) and CCD/PV.444 at 44 (Oct. 21, 1969). Since not only fixed but certain mobile faculties are prohibited, the use of words “emplant or emplace” does not seem to be proper. What about nuclear mines originally emplanted on the seabed but later allowed to float?

56 Netherlands, CCD/PV.440 at 9 (Oct. 7, 1969); U.A.R., CCD/PV.445 at 36 (Oct. 23, 1969).

57 SIPRI, note 48 above, at 162.

58 U. S. Arms Control and Disarmament Agency, 10th Annual Report to Congress, Jan. 1, 1970–Dec. 31, 1970, at 9.

59 SIPRI, note 48 above, at 96–97. At present submarines operate usually at 1,000 feet and not more than 2,000–3,000 feet. A submersible vehicle capable of operating at 20,000 feet could use 95% of the entire ocean volume.

60 Ibid. at 106. On the relation between the Seabed Treaty and the U. S. proposal for a Convention on the International Seabed Area, see Auburn, , “The International Seabed Area,” 20 (2) Int. and Comp. Law Q. 173 at 190 (1971)CrossRefGoogle Scholar.

61 The full text of Art. I reads as follows:

“1. Each of the Parties to this Treaty undertakes to prohibit, to prevent, and not to carry out any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control:

(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. It is understood in this connection that the provisions of this subparagraph are without prejudice to the conclusion of a treaty resulting in the permanent banning of all nuclear test explosions, including all such explosions underground, the conclusion of which, as the Parties have stated in the Preamble to this Treaty, they seek to achieve.

“2. Each of the Parties to this Treaty undertakes furthermore to refrain from causing, encouraging, or in any way participating in, the carrying out of any nuclear weapon test explosion, or any other nuclear explosion, anywhere which would take place in any of the environments described, or have the effect referred to, in paragraph 1 of this Article.”

See generally Schwelb, , “The Nuclear Test Ban Treaty and International Law,” 58 A.J.I.L. 642 (1964)Google Scholar and the literature cited therein.

62 For a comparison of the U. S.-U. K. draft and the text of the treaty, see Nuclear Test Ban Treaty, Hearings before the Committee on Foreign Relations, U. S. Senate, 88th Cong., 1st Sess., on Exec. M, 88th Cong., 1st Sess., Aug. 12–15, 19–23, 26–27, 1963, at 814–816. The Soviet Union was suspicious that under the guise of peaceful uses the West was going to conduct advance weapon tests since there was no difference in the advancement of basic technology between the two uses. Hearings, ibid, at 822. See also H. K. Jacobson and E. Stein, Diplomats, Scientists and Politicians—the United States and the Nuclear Test Ban Negotiations at 409–412 (Ann Arbor, Mich.: Univ. of Michigan Press, 1966).

63 Schwelb summarized the interpretation as it was developed during the hearings before the U. S. Senate Committee on Foreign Relations: The words “or any other nuclear explosions” were inserted for the sole purpose of banning peaceful-use explosions that would have been exempted in the U. S.-U. K. draft. The title and the Preamble speak of tests. The purpose and general scheme of the treaty are inconsistent with a contrary interpretation. The subsequent resolutions by the General Assembly and the statement by the Secretary General calling for a conference for signing a convention on the prohibition of the use of nuclear weapons for war purposes would be unnecessary if the Test Ban Treaty itself contained such prohibition. The above conclusion is confirmed by contemporaneous interpretations given by President Kennedy, Premier Khrushchev and others. Schwelb, “The Nuclear Test Ban Treaty and International Law,” note 61 above, at 643–646; Chayes, Ehrlich, Lowenfeld, International Legal Process at 1008–1013 (Boston: Little, Brown and Co., 1968).

64 Art. I (1) (b), see text in note 61 above.

65 Jacobson and Stein, note 62 above, at 410.

66 Jacobson and Stein, note 62 above, at 410; Chayes et al., note 63 above, at 1024; Secretary of State Rusk in Hearings on Nuclear Test Ban Treaty, note 62 above, at 35. However, the Soviet Union is reported to have “solved” the radiation problem in this connection. Hamilton, , “Madagascar Asks for Atomic Advice,” New York Times, Sun., Dec. 12, 1971, at 28, col. 1Google Scholar.

67 Two criteria have been suggested: “contamination” of an area beyond the borders or injury to health; and “detectability,” that is, the amount of actual radioactive debris that can be detected in sufficient detail so that it can be identified and its origin determined. Chayes et al, note 63 above, at 1026–1028.

68 Dr. Glenn T. Seaborg, Chairman of the U. S. Atomic Energy Commission in Hearings on the Nuclear Test Ban Treaty, note 62 above, at 211; Secretary of Defense McNamara, ibid, at 181–182. See generally Brooks and Myers, “Plowshare Evaluation,” in B. Boskey and M. Willrich (eds.), Nuclear Proliferation: Prospects for Control at 87–101 (New York: The Dunellen Co., 1970).

69 Opinion of the Legal Adviser of the U. S. Department of State in Hearings on Test Ban Treaty, note 62 above, at 61–62; 58 A.J.I.L. 175–76 (1964); Schwelb, “The Nuclear Test Ban Treaty and International Law,” note 61 above, at 647–648. Under water is clearly above ground, not under ground. Only the ban of underground explosions is reserved by the Preamble and Art. I (1) (b) for regulation in a later treaty.

70 Schwelb, note 61 above, at 648, correctly argues that there is no reason why “under water” should, contrary to its natural and ordinary meaning, not be understood to cover also waters which do not form part of territorial waters or high seas.

71 Chandrasckhara Rao, P., “The Test Ban Treaty, 1963: Form and Content,” 3 Indian J.I.L. 315 at 317 (1963)Google Scholar.

72 According to newspaper reports, the reason was the decision by the United States to channel its civil nuclear assistance through Euratom, of which France is a member. Chayes et ah, note 63 above, at 1051.

73 New York Times, Dec. 6, 1964, reprinted in Chayes et al, note 63 above, at 1052.

74 See, generally, the New York Times, Dec. 19, 1964, reprinted in Chayes et al., note 63 above, at 1052–1053.

75 Art. IV. I discuss this clause in the study cited in the initial footnote above.

76 This purpose would of course be attained later by the Non-Proliferation Treaty. However, some states which became parties to the Test Ban Treaty did not sign or ratify the Non-Proliferation Treaty (e.g., India, Brazil, Chile, South Africa, Spain).

77 Willrich, note 40 above, at 54–55.

78 “The United States publicly announced 233 nuclear tests between the beginning of the Limited Test Ban Treaty, August 5, 1963, and June 30, 1971. The Soviet Union announced only three of their tests during this period. The United States announced 50 seismic events which were centered in a Soviet nuclear test area as suspected nuclear tests during the same period. It is U. S. policy, however, not to announce all U. S. tests or all suspected USSR tests.” Prospects for Comprehensive Nuclear Test Ban Treaty, Hearings before the Subcommittee on Arms Control, International Law and Organization of the Committee on Foreign Relations, U. S. Senate, 92d Cong., 1st Sess., July 22 and 23, 1971, at 128.

In 1962, the Soviet Union ended up ahead of the United States in the development of large-yield multi-megaton warheads, while the United States had an edge in smaller explosives with a higher yield-weight ratio. An argument was made in the United States that the Test Ban Treaty enables the Soviet Union to “catch up” with the United States on smaller explosives while making it impossible for the United States to reach the level of Soviet technology in multi-megaton weapons.

79 Roberts, note 47 above, at 110.

80 Several of these incidents are described in Chayes et al., note 63 above, at 1039– 1043.

81 Washington Post, May 4, 1971, at A 15, reports that Sweden questioned the United States in connection with a 1968 underground nuclear test in Nevada which, Stockholm claimed, vented detectable radiation.

82 Art. IX (3).

83 Art. I: “Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.”

84 Bunn, “Horizontal Proliferation of Nuclear Weapons” in Boskey and Willrich, note 68 above, at 31. See also Bunn, , “The Nuclear Non-Proliferation Treaty,” 1968 Wis. Law Rev. 766 at 771 Google Scholar; Firmage, , “The Treaty on the Non-Proliferation of Nuclear Weapons,” 63 A.J.I.L. 711 at 722 (1969)Google Scholar.

85 Art. II: “Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.”

86 This was an interpretation offered by the United States and not rejected by the Soviet Union. Willrich, note 40 above, at 69 and 284, note 3. The treaty does not distinguish between offensive nuclear warheads and defensive nuclear warheads associated with ABM defense systems. The prohibitions in Arts. I and II apply to both.

Only the Treaty of Tlatelolco contains the definition of a “nuclear weapon.” Art. 5 of that treaty defines “nuclear weapon” as “any device which is capable of releasing nuclear energy in an uncontrolled manner and which has a group of characteristics that are appropriate for use for warlike purposes. An instrument that may be used for the transport or propulsion of the device is not included in this definition if it is separable from the device and not an indivisible part thereof.”

“Much of this language seems to have been derived from the United States Atomic Energy Act which defines ‘atomic weapon’ as ‘any device utilizing atomic energy, exclusive of the means for transporting or propelling the device (where such means is a separable and divisible part of the device) the principal purpose of which is for use as, or development of, a weapon, a weapon prototype, or a weapon test device.’

“Thus, the definitions in both the Treaty of Tlatelolco and the United States legislation expressly exclude nuclear delivery and propulsion systems. An important difference between the definitions is that the United States legislation includes a subjective element of purpose, the intended ‘use’ for the device in a nuclear weapons program, while the Latin American definition is not dependent on the intended purpose for which the device will be used, as long as it possesses a ‘group of characteristics’ which make it ‘appropriate’ for use as a nuclear weapon. Hence, Plowshare devices might be excluded from the definition of nuclear weapons under United States law, but would seem to be included in the Treaty of Tlatelolco.” Willrich, ibid, at 68.

87 Bunn, in Boskey and Willrich, note 68 above, at 31.

88 Brazil maintains, as Willrich reports (note 40 above, at 70–71), “that the Treaty of Tlatelolco ‘draws a clear cut distinction’ between peaceful nuclear explosives and nuclear weapons.

“The United States and some of the Latin American states have taken repeated exception to such an interpretation. The Treaty of Tlatelolco permits the parties to ‘carry out explosions of nuclear devices for peaceful purposes—including explosions which involve devices similar to those used in nuclear weapons . . . provided that they do so in accordance with . . . articles 1 and 5.’

“However, in light of the definition of nuclear weapons in Article 5, discussed above, the United States has interpreted the Treaty of Tlatelolco as in effect ‘prohibiting the contracting parties from acquiring or testing nuclear explosive devices for peaceful purposes . . . unless someone can some day invent a nuclear explosive which cannot be used as a nuclear weapon . . . .’

“The Soviet Union has been as unyielding as the United States with respect to the transfer of peaceful nuclear explosive devices, although it has been understandably less concerned than the United States about the impact of its position on relations with the Latin American states.”

Brazil ratified the Tlatelolco Treaty subject to preconditions that have not been met and thus is not bound by the treaty. See Art. 28 of the Tlatelolco Treaty, note 13 above.

89 Bunn, in Boskey and Willrich, note 68 above, at 31.

90 The Federal Republic is committed by the Treaty of Brussels of Oct. 23, 1954, “not to manufacture on its territory atomic, biological and chemical weapons.” Art. I, Part I of Protocol III (On the Control of Armaments) of Oct. 23, 1954, modifying and completing the Treaty of Brussels of March 17, 1948, 211 U.N.T.S. 364. Neither the United States nor the Soviet Union is a party to this treaty. The post-World-War II Peace Treaties with Austria, Bulgaria, Hungary, Finland, Italy and Rumania contain clauses prohibiting these states to possess, test or manufacture nuclear weapons.

91 Bunn, “The Nuclear Nonproliferation Treaty,” note 84 above, at 769–771.

92 Secretary of State Rusk in Hearings on Exec. H (Treaty on the Non-Proliferation of Nuclear Weapons), before the Committee on Foreign Relations, U. S. Senate, 90th Cong., 2nd Sess., July 10–12 and 17, 1968, at 5–6; Hearings on the Military Implications of the Treaty on the Non-Proliferation of Nuclear Weapons, before the Committee on Armed Services, U. S. Senate, 91st Cong., 1st Sess., Feb. 27 and 28, 1969, at 11–12. The treaty does prohibit the transfer of even defensive antiballistic missiles to NATO or any other “transferee” but it would not preclude a transfer of delivery vehicles such as Polaris submarines and missiles (less warheads).

98 U. S. statement in ENDC, ENDC/PV.253 at 10–16 (March 31, 1966).

99 Willrich, note 40 above, at 90–93.

95 Statement by Sweden in ENDC, ENDC/PV.243 at 11–12 (Feb. 24, 1966).

96 Bunn in Boskey and Willrich, note 68 above, at 31, summarizing statement by William C. Foster, Director, U. S. Arms Control and Disarmament Agency.

97 Willrich, note 40 above, at 93–94.

98 Art. Ill (2).

99 Art. I (2) of the Test Ban Treaty prohibits “causing, encouraging, or in any way participating in . . . .”

100 See above, at p. 271.

101 As far as the problems between the U. S. and France are concerned, however, it should be kept in mind that the prohibition “to assist, encourage, or induce” to manufacture applies only to manufacture by non-nuclear-weapon states.

For a series of questions of interpretation, including a ‘loophole” in Art. II, see Willrich, note 40 above, at 94–98.

102 Moreover, while nuclear-weapon states are barred from transferring nuclear weapons to anyone, they are not barred from assisting each other in the manufacture of such weapons. They may also receive such assistance (e.g., in the form of source material) from a non-nuclear-weapon state. A non-nuclear-weapon state party to the treaty may not receive such assistance. However, if the treaty is given literal interpretation, there would be no violation if a non-nuclear-weapon state party to the treaty should give such assistance to a non-nuclear-weapon state not a party.

103 Security Council Res. 255 (XXIII), U. N. Doc. S/INF/23/Rev. 1 (1968). Bunn, “The Nuclear Nonproliferation Treaty,” note 84 above, at 776–778; Larson, T. B., Disarmament and Soviet Policy 1964–1968 at 153–154 (Englewood Cliffs, N. J.: Prentice-Hall, 1969)Google Scholar; Fisher, , “Global Dimensions” in Boskey and Willrich, note 68 above, at 6 Google Scholar; Lenefsky, , “The United Nations Security Council Resolution on Security Assurances for Non-nuclear Weapon States,” 3 N.Y.U. J. of Int. Law 56 (1970)Google Scholar.

104 Art. V.

105 For a controversial, strongly critical German view of the treaty, see M. Hepp, Der Atomsperrvertrag—Die Supermächte verteilen die Welt (Stuttgart-Degeresch: Seewalt Verlag, 1968). But see O. Kimminich, Völkerrecht im Atomzeitalter—Der Atomsperrvertrag und seine Folgen (Freiburg im Breisgau: Verlag Rombach, 1969). For an unofficial Italian view, see Albonetti in Willrich, M., Civil Nuclear Power and International Security at 85, 89–90 (New York-Washington-London: Praeger Publishers, 1971)Google Scholar.

106 This agreement was reached within the International Atomic Energy Agency. It is embodied in the document “The Structure and Content of Agreements between the Agency and States Required in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons,” INFCIRC/153 (IAEA, May, 1971). By the end of 1971, seven states (Austria, Bulgaria, Canada, Finland, Hungary, Poland and Uruguay) completed the negotiations for a bilateral safeguards agreement with IAEA under this document. U. N. Press Release WS/530, Nov. 25, 1971, at 12 and oral report.

107 President Johnson’s Remarks by Closed-Circuit Television During Ceremonies Marking the 25th Anniversary of the First Nuclear Reactor, Dec. 2, 1967, 3 Weekly Compilation of Presidential Documents 1650 (Washington, D. C: U. S. Govt. Printing Office, Dec. 11, 1967). The list of U. S. facilities to be covered is under discussion with the International Atomic Energy Agency in Vienna.

108 Aron, R., The Great Debate—Theories of Nuclear Strategy 237–241 (Garden City, N. Y.: Doubleday & Co., 1965)Google Scholar.

109 New China News Agency, statement of March 13, 1968, cited in Bunn, “The Nuclear Nonproliferation Treaty,” note 84 above, at 778. See, generally, Halperin, M. H., China and Nuclear Proliferation (The University of Chicago, Center for Policy Studies, 1966)Google Scholar. Of the “nuclear threshold states,” India and Israel did not sign, Japan and the Federal Republic of Germany have signed, Canada and Sweden have signed and ratified.

110 Fisher in Boskey and Willrich, note 68 above, at 5–6. But see Kaplan, , “Weaknesses of the Nonproliferation Treaty,” XII Orbis 1042 at 1045 (1969)Google Scholar; see also Foscaneanu, , “International Security and Cooperation,” (France) in Int. Law Association, Report of the 53rd Conference, Buenos Aires at 468 (London: Int. Law Ass’n., 1969)Google Scholar.

111 It has not been explained why all parties involved use the term “convention” rather than “treaty” in this field.

I discuss the distinguishing characteristics of the chemical and bacteriological weapons in my study cited in the initial footnote to this article. Bacteriological (biological) agents of warfare are living organisms (bacteria, viruses, fungi, etc.) and infective material derived from them which are intended to cause disease or death in man, animal, or plants, and whose effectiveness depends on their ability to multiply in the organism attacked. Chemical and Bacteriological (Biological) Weapons and the Effects of Their Possible Use, Report of the Secretary General at 5 (New York: United Nations, 1969). The Report points out that, in the context of warfare, all the above agents are generally recognized as “bacteriological weapons,” but in order to eliminate any possible ambiguity, the Report uses the phrase “bacteriological (biological) weapons” to comprehend all forms of biological warfare, ibid. I shall use generally the term “biological.”

112 294 L.N.T.S. 65 (1929). The Protocol prohibits “the use in war of asphyxiating, poisonous, or other gases, and of all analogous liquids, materials or devices” and “the use of bacteriological methods of warfare.” It is now binding upon 96 nations, including all the major military and industrial Powers with the sole exception of the United States 64 Dept. of State Bulletin 455 at 456 (1971). President Nixon resubmitted the Protocol to the U.S. Senate for its advice and consent. Message from the President of the United States Transmitting the Protocol, etc., 91st Cong., 2d Sess., Sen. Exec. J, Aug. 19, 1970 (Washington, D.C.: U.S. Govt. Printing Office, 1970). See, generally, Baxter, and Buergenthal, , “Legal Aspects of the Geneva Protocol of 1925,” 64 A.J.I.L. 853 (1970)Google Scholar, and in The Control of Chemical and Biological Weapons, Carnegie Endowment for Int. Peace at 1 (New York, 1971); Bunn, , “Banning Poison Gas and Germ Warfare: Should the United States Agree?” 1969 Wis. Law Rev. 375 Google Scholar.

113 Working Paper on Microbiological Warfare, ENDC/231 (Aug. 6, 1968).

114 39 states (including France, the Soviet Union and the United Kingdom) have ratified or acceded with reservations. Most of the reserving states assert that the protocol is binding on them only with respect to other parties, and nineteen reserving states limit the prohibitions to “no first use,” leaving unaffected the right of retaliatory use of the weapons covered. Baxter and Buergenthal, note 112 above, at 869–873.

115 General Assembly Res. 2603A (XXIV) of Dec. 16, 1969, Supp. 30 at 16, U.N. Doc. A/7630 (1969). The division on this resolution was 80 votes in favor, with Australia, Portugal and the United States voting against and 36 Members abstaining.

116 ENDC/231 at 2 (Aug. 6, 1968). Draft Convention and Accompanying draft Security Council Resolution, ENDC/255 (July 10, 1969), subsequently revised as ENDC/255/Rev. 1 (Aug. 26, 1969) and Rev. 2 (Aug. 18, 1970). Thomas, A. V. W. and Thomas, A. J. Jr., Legal Limits on the Use of Chemical and Biological Weapons at 113–117 (Dallas: Southern Methodist University Press, 1970)Google Scholar.

117 The arguments made in CCD are summarized in SIPRI, note 48 above, at 194–195. For the actual debates, see generally CCD/PV. 449, 457, 458, 461, 462, 466, 468, 481, 491 (all 1970). I deal with the problem of verification in the study cited in the initial footnote to this article.

118 U.N. Docs. A/7655 (1969), A/8136 (1970). For a Soviet view, see Petrov, “An Important Aspect of Disarmament (on Banning Chemical and Biological Weapons),” 1970 International Affairs (Moscow) 53–56 (No. 2/3, March, 1970).

119 General Assembly Res. 2662 (XXV), U.N. GAOR, Supp. 28 at 14–15, U.N. Doc. A/8028 (1970); see also General Assembly Res. 2603B III (XXIV), U.N. GAOR, Supp. 30 at 17, U.N. Doc. A/7630 (1969).

120 Hamilton, , “Mexico Urges the Nonaligned at Geneva to Press Arms Plans Shelved by Big 2,” New York Times, May 5, 1971 at C3, col. 4–6 Google Scholar. The Socialist draft of a convention limited to biological weapons was contained in CCD/325 (March 30, 1971).

121 See “parallel” drafts CCD/337 and CCD/338 of Aug. 5, 1971, and the final joint text sponsored by the eight Socialist states and Canada, Italy, Netherlands, United Kingdom and United States in CCD/353 of Sept. 28, 1971, entitled “Draft convention on the prohibition of development, production and stockpiling of bacteriological (biological) and toxin weapons and their destruction,” reprinted below, p. 451. The final endorsement by the General Assembly is in A/RES.2826 (XXVI), Dec. 16, 1971; no negative votes were cast, but France abstained. There is no provision in the convention for verification of compliance by observation or access to the installations concerned or by any other safeguards machinery. According to Art. VI, a party may bring an alleged violation before the U.N. Security Council and each party undertakes “to co-operate in carrying out any investigation which the Security Council may initiate.. . .” France expressed concern that this procedure (which may be considered as adequate for weapons of little or no military use) will be pressed as a precedent for future treaties dealing with more effective weapons.

122 Art. I (1). The full definition reads: “Microbial or other biological agents, or toxins whatever their origin or method of production.” This definition, minus the final clause on toxins, appeared in the principal prohibition clause of the original British draft and it was adopted by the Socialist draft. Toxins are biologically produced chemical substances which differ from biological agents in that they do not reproduce within the host organism. It is, however, conceivable that toxins could be produced by chemical synthesis. The clause elaborating on toxins was added in the final joint text at the suggestion of Sweden to ensure that the prohibition extended to toxins produced by chemical synthesis as well as those produced by bacteriological or any other biological methods. See Mr. Leonard (U.S.), CCD/PV.542 at 16 (Sept. 28, 1971). Toxins were added to the prohibition originally at the suggestion of the United States.

There appears to be no disagreement that all B agents or toxins “causing death, damage or disease to man, other animals or crops” (U.K. draft Art. I, CCD/225/Rev. 2, Aug. 18, 1970) are included. The coverage reflects the substance of the definition in Chemical and Bacteriological (Biological) Weapons and the Effects of Their Possible Use, Report of the Secretary General, par. 17, at 5 (New York: United Nations, 1969).

Given the possibility of new scientific developments, a question could still conceivably arise whether an agent was chemical rather than biological, and thus not covered by the convention. See ibid., par. 19, at 6.

123 Art. 1 (2). The concept “hostile purposes” has not appeared in any previous arms control agreement. It may suggest action by a civilian saboteur not necessarily connected with an armed conflict.

124 Art. II.

125 Art. III.

126 Mr. Hainsworth (U.K.), CCD/PV.542 at 42.

127 Mr. Leonard (U.S.), ibid, at 16; Mr. Roshchin (U.S.S.R.), ibid, at 32.

128 Soviet representatives consistently maintained that the prohibition of the use of chemical and bacteriological weapons is “a universally recognized rule of international law.” The argument was that the inclusion of such prohibition in a convention dealing with production was unnecessary and, because the convention was limited to B agents, even risky. See, generally, SIPRI, note 48 above, at 200–201.

129 The U.K. maintained that it was not practicable to specify what types and quantities are consistent with peaceful purposes, for the possible circumstances were too varied; however, the types and quantities of agents would be important criteria in deciding the question of peaceful-hostile purpose. The U.N. Security Council would have to decide whether the types and quantities indicated in an investigation could be justified as necessary for peaceful research or use. ENDC/PV.418 at 10 (July 10, 1969).

130 E.g., protective masks and clothing, air and water filtration systems, detection and warning devices, and decontamination equipment. Mr. Leonard (U.S.), CCD/PV.542 at 16 (Sept. 28, 1971).

131 Ibid. at 17. See also U. K. statement in ENDC/PV.418 at 10 (July 10, 1969). On the nature of defensive measures, see Màlek, , “Biological Weapons,” in Rose, S. (ed.), CBW Chemical and Biological Warfare at 19–26, 81–82 (Boston: Beacon Press, 1969)Google Scholar.

132 U. S. Representative in CCD/PV.542 at 17 (Sept. 28, 1971). The U. S. Representative also stated that the exemption would not permit retention for “non-peaceful” purposes of quantities that, when acquired, had a justification for a peaceful purpose. See, to the same general effect, Mr. Roshchin (U.S.S.R.), ibid, at 33–35. For an earlier discussion see CCD/PV.479 at 9 (July 16, 1970).

133 See my study cited in initial footnote above.

134 CCD/PV.513 at 18–19 (May 4, 1971). President Nixon stated that, since biological weapons have “massive, unpredictable, and potentially uncontrollable consequences,” the United States will renounce any use of biological and toxin weapons, confine its program to research “for defensive purposes, strictly defined” (such as immunization and safety measures), dispose of existing stocks of bacteriological weapons, and seek further agreement on effective arms control measures in the CBW field. He requested the Senate to give its consent to ratification of the Geneva Protocol. See above, note 112. White House Press Releases, Nov. 25, 1969, and Aug. 19, 1970. See also White House Press Release (Key Biscayne, Fla.) dated Feb. 14, 1970, including toxins in the renunciation.

The Soviet Union has not admitted the possession of BW weapons. Alexander, in The Control of Chemical and Biological Weapons, note 112 above, at 100. In discussing the provision of the new convention requiring destruction or diversion to peaceful purposes of the prohibited substances, the Soviet Union’s Representative declared that the “Soviet side” is prepared to give “appropriate notification of the compliance with this provision on the understanding that other parties to the Convention do likewise.” CCD/PV.542 at 36 (Sept. 28, 1971).

135 Art. IX of the new convention. See also Art. XII on a conference to be held in five years to review the “operation” of the convention, including the progress in the negotiations on chemical weapons. Cf. the Socialist draft, Art. IX, CCD/325 at 4 (March 30, 1971).

138 “Banning Germ Warfare,” New York Times, April 3, 1971, at C 28.

137 On the bilateral agreements, see note 14 above.

138 General Assembly Res. 1653 (XVI), GAOR, Supp. 17 at 4–5, U. N. Doc. A/5100 (1961).