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U.S.-USSR Nuclear Arms Negotiations: The Process and the Lawyer

Published online by Cambridge University Press:  27 February 2017

John H. McNeill
John H. McNeill*
Affiliation:
Department of Defense
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Extract

The bilateral negotiating process that has been developed to address the central problems of nuclear arms control has evolved to the point that it can be characterized as a proven mechanism for the negotiation of international agreements on these subjects. Even though the process was recently interrupted, and although it by no means represents the only vehicle available for the purpose, history demonstrates that employment of the methodical bilateral process can lead the way, under favorable political conditions, to the resolution of many of the difficult political and technical questions common to the field of nuclear arms control.

Type
Research Article
Information
American Journal of International Law , Volume 79 , Issue 1 , January 1985 , pp. 52 - 67
Copyright
Copyright © American Society of International Law 1985

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References

1 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5, 1963, United States-United Kingdom-USSR, 14 UST 1313, TIAS No. 5433, 480 UNTS 43.

2 The chief British delegate to the Moscow negotiations used this characterization in his memoirs. Lord, Hailsham, The Door Wherein I Went 219 (1975)Google Scholar.

3 Report of the United States and the Soviet Union to the 16th General Assembly on the Results of their Bilateral Talks, UN Doc. A/4879 (Sept. 20, 1961), U.S. Arms Control and Disarmament Agency [hereinafter cited as ACDA], 1961 Documents on Disarmament 439–41.

4 Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 UST 483, TIAS No. 6839, 729 UNTS 161.

5 ACDA, 1968 Documents on Disarmament 458, 460.

6 May 26, 1972, United States-USSR, 23 UST 3435, TIAS No. 7503.

7 May 26, 1972, United States-USSR, 23 UST 3462, TIAS No. 7504 (no longer in force).

8 Sept. 30, 1971, United States-USSR, 22 UST 1590, TIAS No. 7186.

9 Sept. 30, 1971, United States-USSR, 22 UST 1598, TIAS No. 7187, 806 UNTS 402.

10 June 21, 1973, United States-USSR, 24 UST 1472, TIAS No. 7653.

11 Joint Statement on Strategic Offensive Arms, issued at Vladivostok on Nov. 24, 1974, 71 Dep’t St. Bull. 879 (1974).

12 June 18, 1979, United States-USSR (did not enter into force), S. Exec. Doc. Y, 96th Cong., 1st Sess. (1979).

13 Id. at 71.

14 Brief official descriptions of these efforts may be found in S. Exec. Rep. NO. 33, 96th Cong., 2d Sess. 50–52 (1980).

15 See, e.g., the following U.S.-Swiss agreements: Status, Privileges and Immunities of the Strategic Arms Limitation (SALT) Delegation, Nov. 21 and 22, 1972, 23 UST 3736, TIAS No. 7523; Privileges and Immunities, Theatre Nuclear Forces Delegation, Oct. 17, 1980, TIAS No. 10056; Agreement Establishing Rights, Privileges and Immunities of the Delegation to the Negotiations concerning Intermediate-Range Nuclear Forces, Nov. 11 and 20, 1981, TIAS No. 10298; Agreement Establishing Rights, Privileges and Immunities of the Delegation to the Negotiations concerning the Limitation and Reduction of Strategic Arms (START), June 9, 1982, TIAS No. 10414.

16 The first U.S. Chairman (1969–1973) was Ambassador Gerard C. Smith, who served in that capacity for the duration of the SALT I negotiations, when he was also Director of the U.S. Arms Control and Disarmament Agency (ACDA). The second U.S. Chairman (1973- 1976) was Ambassador U. Alexis Johnson, a Foreign Service officer with the rank of career Ambassador. The third Chairman (1977–1978) was another Director of ACDA, Ambassador Paul C. Warnke, while the fourth (1978–1979) was Ambassador Ralph Earle II, then Special Representative for Arms Control and Disarmament Negotiations, ACDA. Ambassador Paul H. Nitze has been the Chairman of the U.S. INF delegation since the negotiations commenced in November 1981; in addition, he was recently confirmed as a Special Representative for Arms Control and Disarmament Negotiations, ACDA. Ambassador Edward L. Rowny has been the Chairman of the U.S. START delegation since the beginning of those negotiations in July 1982; he has also served since that date as a Special Representative for Arms Control and Disarmament Negotiations, ACDA.

17 The distinguished at-large members have been Dr. Harold Brown, later Secretary of Defense; Lt. Gen. George M. Seignious II (ret.), later ACDA Director; and most recently, R. James Woolsey, former Under Secretary of the Navy and member of the President’s Commission on Strategic Forces.

18 For instance, a key member of the U.S. team during SALT II was interpreter Alexis B. Tatistcheff, who not only had served previously as a member of numerous other U.S. delegations in negotiations with the USSR but had been in 1947 the first Russian-language interpreter ever to be appointed by the Department of State.

19 For example, the Hot Line Upgrade Agreement, supra note 6, was substantially negotiated in such a group. Smith, G., Doubletalk 292–94 (1980)Google Scholar.

20 In a related example of U.S.-Soviet bilateral negotiations on a military but non-nuclear subject, the delegations to the negotiations on the prevention of incidents on and over the high seas, conducted in 1971 and 1972, did not mirror the bureaucratic interests of their capitals. The U.S. and Soviet delegations were compact (some 12 per side in all) and vertically structured. Whereas the substance of the negotiations concerned all of the military branches to one or another degree, as well as the Arms Control and Disarmament Agency, the U.S. delegation was composed almost entirely of officials of the U.S. Navy and the State Department. Of course, all the concerned organizations were represented in the preparation of the U.S. negotiating position and in backstopping the delegation during the actual negotiations. The U.S. delegation was headed by the Under Secretary, and later, the Secretary of the Navy. The Vice Chairman and principal negotiator was a career State Department official, Ambassador Herbert S. Okun, who later served as Deputy Chairman of several other U.S. nuclear arms delegations. Naval officers constituted the bulk of the delegation, which also included a State Department legal adviser, an interpreter and a note taker. The navy had its own legal adviser on the delegation, which attests to the importance attached to legal advice. In the event, the structure proved to be productive: the Agreement on the Prevention of Incidents on and over the High Seas (23 UST 1168, TIAS No. 7379) was negotiated crisply in two rounds, each of 2 weeks’ duration (October 1971 in Moscow, and May 1972 in Washington). It was signed on May 25, 1972 at the Nixon-Brezhnev summit meeting in Moscow, and remains in force.

21 According to Amb. Nitze, he and Amb. Kvitsinskiy agreed in July 1982 “to attempt to develop a complete package of reciprocal concessions that, if accepted by both Governments, would resolve all the principal outstanding issues. This would be done without commitment by either Government.” Nitze, , The U.S. Negotiator’s View of Geneva Talks, N.Y. Times, Jan. 19, 1984, at A23 Google Scholar, col. 1. See also ACDA, Twenty-Third Annual Report 24–26 (1984).

22 See U.S. and Soviet Seek to Prevent a Surprise Attack, N.Y. Times, Dec. 8, 1983, at A6, col. 1.

23 G. Smith, supra note 19, at 62.

24 Talbott, S., Endgame 94 (1979)Google Scholar; Newhouse, J., Cold Dawn 146–48 (1973)Google Scholar; G. Smith, supra note 19, at 109–11.

25 Hearings Before the Senate Comm. on Foreign Relations on the Nomination of Edward L. Rowny of Virginia to be U.S. Special Representative for Arms Control and Disarmament Negotiations with the Rank of Ambassador, 97th Cong., 1st Sess. 40 (1981).

26 G. Smith, supra note 19, at 77.

27 The United States succeeded in gaining Soviet agreement to the text of Article XII of the SALT II Treaty, which was drafted with the assistance of the NATO allies, to protect existing patterns of cooperation and collaboration within the alliance. On June 29, 1979, the United States provided the text of an interpretive statement on this subject to the North Atlantic Council; though presented after the Treaty was signed, the statement was considered to be authoritative. This instance evidences the close involvement of NATO in the negotiations, even in the legal sense. See further Military Implications of the Treaty on the Limitation of Strategic Offensive Arms and Protocol Thereto (SALT II Treaty): Hearings Before the Senate Comm. on Armed Services, 96th Cong., 1st Sess., pt. 1, at 53–54 (1979).

28 See the Final Communique of the Special Meeting of Foreign and Defense Ministers (Brussels), 2 Nato Information Service, Texts of Final Communiques 121–23 (1979).

29 The views of the NATO allies on the SALT II Treaty were considered to be of great import by the Senate Foreign Relations Committee during the ratification hearings. Indeed, that body commissioned a special report on the subject: Staff of the Subcomm. on European Affairs of the Senate Comm. on Foreign Relations, 96th Cong., 1st Sess., Salt and the Nato Allies (Comm. Print 1979).

30 This participation may be viewed as a response to complaints from the Senate Foreign Relations Committee that senatorial participation—even at the observer level—was not permitted during SALT I. S. Rep. N O . 28, 92d Cong., 2d Sess. 2 (1972).

31 For example, a delegation of six senators visited Moscow in August 1979 in preparation for a Senate vote on the ratification of the SALT II Treaty (which vote never occurred). Senate Comm. on Foreign Relations, 96th Cong., 1st Sess., Senate Delegation Report on Salt Discussions in the Soviet Union (Comm. Print 1979).

32 For example, the “Cranston group” was a group of some 25 senators formed in 1978 to monitor the SALT II negotiations; the group made some substantive recommendations to the Carter administration on the agreements. House Comm. on Foreign Affairs, Executive-Legislative Consultation on Foreign Policy, Strengthening the Legislative Side, Congress and Foreign Policy Series No. 5, at 24 (1982). In the broader sense, of course, action and inaction by Congress on defense subjects also has its effects in Geneva; the most famous example is perhaps the narrow approval given by Congress to the U.S. Safeguard ABM program in 1970, discussed by G. Smith, supra note 19, at 148–49. For a less successful example, see S. TALBOTT, supra note 24, at 206–09. Also of interest is the recent and briefly successful effort in Congress to condition MX ICBM procurement on a presidential finding that the USSR is acting “in a manner indicating that it is unwilling to take actions to further the control and limitation of types of strategic nuclear missile weapon systems similar to the MX.” Dickinson Amendment, passed by the House of Representatives on May 16, 1984, 130 CONG. REC H3995, H4045–46 (daily ed. May 16, 1984).

33 S. Rep. No. 277, 98th Cong., 1st Sess. 11 (1983). See also Rowny, E., Start in a Historical Perspective 3 (U.S. Dep’t of State Current Policy Series No. 563, 1984)Google Scholar.

34 For example, the Jackson Amendment (sec. 3 of Pub. L. No. 92–448, 86 Stat. 746 (1972)) by which the SALT I Interim Agreement was approved by Congress, has had a lasting effect on U.S. strategic nuclear arms control efforts.

35 An interesting case is made in favor of the thesis that they do so negotiate in Jönsson, C., Soviet Bargaining Behavior (1979)Google Scholar, where the author documents Soviet internal policy disputes as reflected in the Soviet press. See also J. Newhouse, supra note 24, at 54.

36 See G. Smith, supra note 19, at 58. This tendency has been evident for many years. See Iklé, F., How Nations Negotiate 145 (1964)Google Scholar.

37 See further S. Talbott, supra note 24, at 111–19, 128–30.

38 See, e.g., the views of Iklé, Fred C., as noted in Congressional Research Service, Soviet Diplomacy and Negotiating Behavior, H. Doc. No. 238, 96th Cong., 1st Sess. 494 (1979)Google Scholar.

39 See, e.g., G. Smith, supra note 19, at 283.

40 The very title of Ambassador Smith’s memoir of the SALT I negotiations reflects his impatience with the use by the negotiating Governments of two separate avenues of communication: the Geneva “front channel” and the “back channel.” G. Smith, supra note 19. Smith believes that the collegial approach underlying the delegation’s work is the best way to advance U.S. interests in a successful negotiation. Id. at 62.

41 See further Seaborg, G., Kennedy, Khrushchev, and the Test Ban 235, 252 (1981)Google Scholar.

42 Among the major innovations have been the acknowledgment of the legitimacy of the use of reconnaissance satellites as the normative method available to each side for monitoring the treaty compliance of the other; the establishment of the Standing Consultative Commission, a forum through which each side may ask compliance-related questions of the other without formally charging that a violation of a treaty has taken place; the practice of acknowledging the right of a party to withdraw from an agreement if it decides that extraordinary events relating to the subject matter of the treaty have jeopardized its supreme interests; and the development of “type rules,” that is, accounting methods based on legal rules devised to implement numerical limitations on types of armaments.

43 See F. Iklé, supra note 36, at 5.