NATIONAL SECURITY COUNCIL

April 13, 1972

Peter --

Here is the article by Abe Chayes which we discussed. He focuses on how a country will order its activities after an arms control agreement has been signed. (How the country got there would be at least as fascinating a subject, as we can attest.)

I found most challenging his conclusions about probable behavior in response to an agreement and the questionable utility of some verification provisions.

Most important, this is a good attempt to use the models of Graham Allison, Andy Marshall, et.al. to supplement the traditional "rational man" view of national decision-making.

Finally, this should refresh your mind about law review style -- many footnotes and turgid prose.

VOLUME 85

MARCH 1972

NUMBER 5

HARVARD LAW REVIEW

AN INQUIRY INTO THE WORKINGS OF
ARMS CONTROL AGREEMENTS

Abram Chayes *

Professor Chayes examines the prospects for compliance with arms control agreements limiting strategic weapons and finds them good. Drawing on the developing understanding of government structures and decisionmaking processes, he reviews the forces for compliance generated by the negotiation and ratification of a treaty, by the inertia and imperatives of bureaucratic operation under a treaty, and by the contemplated mechanisms for verification and enforcement. The results of this analysis are juxtaposed with those of traditional strategic theory, based on rationalistic assumptions about government behavior and decisionmaking, to expose the weaknesses of this approach. Professor Chayes concludes that under a high visibility strategic arms limitation agreement between the United States and the Soviet Union the dominant factors governing compliance and termination will be political rather than strategic or technical.

I. STRATEGIC THEORY AND MILITARY PRACTICE

A. The Limits of Rationalism

THE literature of arms control is singularly barren on the question of how a treaty or agreement actually affects the

* Professor of Law, Harvard University. A.B. Harvard 1943; LL.B. 1949. Legal Adviser to the Department of State, 1961-64.

The work for this article was done under a grant from the Carnegie Endowment for International Peace for an interdisciplinary study of problems of verification of arms control agreements. The grant was made to Dr. George Rathjens, Professor of Political Science, Massachusetts Institute of Technology, Dr. J.P. Ruina, Professor of Electrical Engineering, Massachusetts Institute of Technology, and the author. Dr. Rathjens was Deputy Director, Advanced Research Projects Agency, Department of Defense, 1960-62, and subsequently Special Assistant to the Director, Arms Control and Disarmament Agency. Dr. Ruina was Director, Advanced Research Projects Agency, Department of Defense, 1961-63, and has been a member of the General Advisory Committee, Arms Control and Disarmament Agency, since 1969.

After some preliminary work, my colleagues and I concluded that a broader inquiry into the nature of the arms race and the structure of arms control agreements would be fruitful. The review panel assembled by the Endowment concurred, and the Endowment kindly authorized us to pursue the broader study. The present article draws heavily on the work of my colleagues, particularly in their fields of special expertise: Dr. Rathjens in strategic theory, and Dr. Ruina

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behavior of states.¹ The premises of “strategic theory” or “strategic analysis”—an amalgam of game theory, operations research, systems analysis, and related disciplines — do not seem to have progressed very far beyond Holmes’ bad-man theory of the law.² In what has been called “the finest formulation of the principles of contemporary strategic thinking.”³ Professor Thomas C. Schelling adopts as a fundamental postulate “the assumption of rational behavior — not just of intelligent behavior, but of behavior motivated by a conscious calculation of advantages.

in the technical characteristics of weapons systems. This study has been in the fullest sense a collaborative effort, and, as is usual in such cases, it is often not possible to pinpoint the sources of individual ideas or contributions. The help and stimulus of my colleagues has been pervasive and is inadequately recognized by the specific references to their work in the footnotes. The responsibility for the conclusions remains my own. Dr. Herbert Scoville, who shepherded the project for the Carnegie Endowment, was lavish with his support and guidance. My research assistant, Barry Goode, was unfailingly resourceful in discovering citations to support my propositions.

¹ The words “treaty” and “agreement” are used interchangeably, without reference to the distinction in United States taxonomy between “treaties,” ratified by the President by and with the advice and consent of the Senate, U.S. CONST. art. II, § 2, and “agreements,” concluded by the President pursuant to legislation or in the exercise of his inherent powers. For materials on the distinction, see I A. CHAYES, T. EHRLICH & A. LOWENFELD, INTERNATIONAL LEGAL PROCESS 344-71 (1968) [hereinafter cited as CHAYES, EHRLICH & LOWENFELD]; 2 id. 987-98. The article deals with formal and explicit agreements, embodied in a writing and importing international legal obligation as opposed to tacit or informal understandings. Professors Schelling and Halperin have developed perceptively and at length the significance of such informal accommodations as arms control measures. T. SCHELLING & M. HALPERIN, STRATEGY AND ARMS CONTROL 77-86 (1961). See also T. SCHELLING, ARMS AND INFLUENCE 264-86 (1966).

In the context of the Strategic Arms Limitation Talks (SALT) between the United States and the USSR, there has been considerable discussion of the relative merits of formal agreement versus informal understanding, much of it stressing the advantages of the informal approach. See, e.g., Bunn, *Missile Limitation: By Treaty or Otherwise?*, 70 COLUM. L. REV. 1, 16-25 (1970). The considerations raised in the present article should have an important bearing on the issue, although as a practical matter it seems unlikely that any significant constraints on strategic weapons deployment would take the form of an informal understanding. Cf. Arms Control and Disarmament Act of 1961, 22 U.S.C. § 2573 (1970):

[N]o action shall be taken under this chapter or any other law that will obligate the United States to disarm or to reduce or to limit the Armed Forces or armaments of the United States, except pursuant to the treaty making power of the President under the Constitution or unless authorized by further affirmative legislation by the Congress of the United States.

² “If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict.” Holmes, *The Path of the Law*, 10 HARV. L. REV. 457, 459 (1897).

³ G. ALLISON, *ESSENCE OF DECISION: EXPLAINING THE CUBAN MISSILE CRISIS* 15 (1971) [hereinafter cited as ALLISON].

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..."⁴ The central concern is with "the exploitation of potential force" by "participants who try to 'win'. ..."⁵

Taken to an extreme, this bad-man, or perhaps rational-actor approach to international behavior would lead to a conclusion that the existence of treaty norms should not affect decisions at all. The coldly rational state would confine its cost-benefit analysis to a strictly military calculus, and the military value of any particular deployment, weapons system, or test would be unaffected whether or not the action is prohibited by treaty.⁶ Most strategic analysis, however, concedes that the purity of the military equation must suffer some admixture of politics in practice, and probably in theory as well.⁷ And among political factors, the existence of a treaty bearing on a proposed course of action can hardly be left out of the account.

A treaty is a legal instrument. It defines a range of prohibited conduct and gives the prohibition the force of law. In so doing, it imports a whole set of attitudes and inhibitions associated with law into what, absent the treaty, was a purely prudential decision. Even to ignore the prohibition entirely involves a choice, and this alone introduces a new factor into the process of decision.

States and other corporate bodies, like individuals, obey law for a variety of reasons: convenience, routine, the pressure of expectation, the sense that the values of the system outweigh the gains from violating a particular norm in a particular instance. In *How Nations Behave*, Professor Louis Henkin, as an international lawyer, has catalogued, documented, and analyzed the operation of these and cognate factors for law abidance in the international system.⁸ Professor Henkin's conclusions are by no means irrelevant to an appraisal of the efficacy of agreements in the arms control field. But ultimately they derive from the same assumptions as strategic analysis — that governments behave more or less like reasonable men, or, at least, that governmental purposes and actions can be understood by analogy to those of individuals.⁹ The classical pro-treaty argument that states will obey the law thus reduces to a claim that ordinarily a proper calculus of advantage will come down on the side of law-abidingness. But the argument is open to the objection that the constraint of the treaty fails just when it is needed most: when the prospective

⁴ T. SCHELLING, *THE STRATEGY OF CONFLICT* 4 (1960).

⁵ *Id.* at 4-5.

⁶ *See*, e.g., E. TELLER & A. LATTER, *OUR NUCLEAR FUTURE* chs. XV, XIX (1958).

⁷ *See*, e.g., T. SCHELLING & M. HALPERIN, *supra* note 1, at 43-48.

⁸ L. HENKIN, *HOW NATIONS BEHAVE* (1968).

⁹ *Id.* at 7 n.†.

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gains of breach, rationally perceived, outweigh the burdens. Then
the "bad man" takes over.

But is it appropriate to analogize the behavior of a complex
corporate aggregate like the state to that of a rational individual?
How do states really "perceive" the relevant costs and benefits?
And how do they "act" on those perceptions?

In fact, the best of the strategic analysts have always recog-
nized the limitations of their model: ¹⁰

[W]e seriously restrict ourselves by the assumption of rational
behavior. . . . If our interest is the study of actual behavior, the
results we reach under this constraint may prove to be either a
good approximation of reality or a caricature. Any abstraction
runs a risk of this sort. . . .

Like any other model, the rationalist model of strategic theory
illuminates the elements of the situation that are thrown into re-
lief by the stated assumptions — in this case, the mathematical
and formal structure of conflict. But it tells very little about those
aspects of the problem that are abstracted out by the assumptions,
and it may even obscure them. The assumption of a unitary actor
deciding by conscious calculation of advantage in terms of an
explicit and self-consistent value system abstracts out most of the
processes by which decisions of governments are actually reached.

A growing body of work by contemporary political scientists,
of whom Graham Allison ¹¹ and C. E. Lindblom ¹² can be taken as
exemplars, explicitly rejects the "assumption of rationality" as
the most useful premise for understanding governmental behavior.
They stress instead the perception that a government is a corpo-
rate entity, and that policy decisions are the results of con-
tinuous interplay among its constituent parts. These include a
myriad of individuals organized in many offices and agencies.
They are interrelated with each other and with outside groups and
power centers in patterns of infinite complexity. The organiza-
tions involved exhibit great diversity in size, structure, and func-
tion. They are not finely-tuned instruments responding to central
direction; they operate in accordance with routines designed to
accomodate their diurnal tasks while protecting and enhancing
organizational integrity. ¹³ The individuals are not united by a
common perspective or, as in Schelling's basic assumption, by "a
single, explicit self-consistent value system." ¹⁴ On the contrary,

¹⁰ T. SCHELLING, *supra* note 4, at 4.

¹¹ *See* ALLISON.

¹² *See* C. LINDBLOM, *THE POLICY-MAKING PROCESS* (1968); C. LINDBLOM, *THE INTELLIGENCE OF DEMOCRACY* (1965).

¹³ E.g., ALLISON 81-82.

¹⁴ T. SCHELLING, *supra* note 4, at 4.

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they differ in personal and organizational goals, in conceptions of the national interest, in how they perceive the facts, issues, and stakes, in roles, power and status in the hierarchy, in constraints and opportunities.¹⁵ Men and organizations both respond to the imperatives of power, interest, or inertia at least as much as to the dictates of sweet reason.

Although most of the work in this field is based on United States experience, it purports to be asserting propositions that hold true to some degree for all contemporary, highly bureaucratized governments. Both Allison and Lindblom adduce argument and evidence that the system operates similarly, *mutatis mutandis*, in the Soviet Union.¹⁶

This line of analysis highlights two aspects of governmental action left out by "the assumption of rational behavior." The first is the set of processes by which bureaucratically organized institutions define and carry out their tasks. And the second is the large element of internal and external bargaining necessarily involved in any government decisionmaking.¹⁷

After examining briefly the dynamic of the arms race against which the treaty must operate, this article explores the question of compliance with arms control agreements in light of these newer theories and perspectives on state behavior.¹⁸ The argument will be somewhat abstract and general. Its propositions, though cast in descriptive, analytic, or prescriptive form, are for the most part hypotheses, with impressionistic support drawn from events of the 1950's and 1960's.¹⁹ The discussion will be addressed primarily to freely negotiated agreements dealing with strategic forces. No particular treaty draft or proposal is taken

¹⁵ E.g., ALLISON 144.

¹⁶ Allison explicitly applies both of his alternative decision models, the Organizational Process Model and the Governmental Politics Model, to the Soviet decisions to emplace and then to withdraw missiles from Cuba. *Id.* at 102-17, 132-43, 210-44. See also *id.* at 97-98; C. LINDBLOM, *THE POLICY-MAKING PROCESS* 44, 90-91, 99 (1968); T. SCHELLING, *supra* note 1, at 276. Among studies of the Soviet Union, A. MEYER, *THE SOVIET POLITICAL SYSTEM* (1965), applies these organizational models systematically.

¹⁷ Whereas Allison concentrates on different patterns within the executive branch, Lindblom explores, in addition, how the legislature, political parties and factions, interest groups, and broader publics relate to the policy-making process. See C. LINDBLOM, *THE POLICY-MAKING PROCESS* (1968).

¹⁸ For a critique of strategic analysis within the framework of the assumption of a unitary decisionmaker, see A. RAPOPORT, *STRATEGY AND CONSCIENCE* (1964).

¹⁹ For the most part the events referred to are fully in the public domain, but occasionally I have resorted to my own recollection of events during my service in the State Department. Unsupported, dogmatic statements concerning incidents inside the Government during the Kennedy administration should be referred to this source.

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as a focus. Rather, the analysis is oriented toward a set of possible agreements in the strategic area. The set would include anything discussed in connection with the Strategic Arms Limitation Talks (SALT), as well as other agreements that might, on a generous estimate, be thought within the range of possibility over the next decade or so. Finally, the article addresses primarily the relations between the United States and the Soviet Union as they would be modulated by such agreements; the impact on the bilateral situation of a third major nuclear power or of the possible proliferation of nuclear weapons to smaller powers is not systematically discussed. These restrictions, I believe, do not represent inherent limitations on the thesis advanced, which should have application across the whole field of arms control agreements, and perhaps international agreements in general. To establish this broader validity, however, would require more extensive analysis — and may even justify some empirical research!²⁰

## B. The “Mad Momentum”²¹ of the Arms Race

The inadequacies of the rationalistic explanation of government decisions are nowhere more tellingly revealed than in the history of the strategic arms race itself — the seemingly inexorable increase over time in levels and types of strategic forces.²² Since a major purpose of arms control agreements is to halt or moderate this process, a more detailed inquiry is necessary into the failure of strategic analysis to account for the arms race and into the availability of alternative explanations.

For some time, most analysts have characterized the strategic situation between the United States and the USSR as one of

²⁰ See ALLISON 264–77 for a smorgasbord of suggestions.

²¹ Address by Sec'y of Defense McNamara to United Press International Editors and Publishers, San Francisco, Calif., Sept. 18, 1967, in ABM: AN EVALUATION OF THE DECISION TO DEPLOY AN ANTIBALLISTIC MISSILE SYSTEM 242 (A. Chayes & J. Wiesner eds. 1969) [hereinafter cited as CHAYES & WIESNER].

²² Proliferation of weapons systems and secular increases in levels of strategic forces do not necessarily imply rising military budgets or even increases in spending on strategic weapons. As a matter of fact, annual expenditures for procurement of strategic weapons, measured in constant dollars, have been below those of 1964 for some years. Hearings on Dep't of Defense Appropriations for Fiscal Year 1972 Before a Subcomm. of the Senate Comm. on Appropriations, 92d Cong., 1st Sess., pt. 1, at 182 (1971) (table 1). Strategic weapons, however, are relatively durable goods, and on the whole, with exceptions when a system aborts before deployment, or more occasionally when an obsolete system is phased out, see., e.g., 115 CONG. REC. 5602 (1969) (statement of Sen. Symington) (expenditures since the Korean War on “unworkable or obsolete missiles” amounted to $23 billion), each year's purchases add to an existing base so that force levels increase even if the rate of spending does not.

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mutual deterrence.²³ That is, the number and configuration of weapons deployed by each side has been such that either could “absorb” a first strike by the opponent and still have enough force left to administer “unacceptable damage” in a retaliatory attack.²⁴ What is more, it is generally conceded that this balance is a stable one. Neither side can alter the situation decisively by any foreseeable deployment or technological breakthrough.²⁵

²³ For the account of the present strategic balance, I have drawn on pre-liminary papers prepared by Dr. George Rathjens in connection with the Carnegie Endowment study described in note * supra, and his continuing tutelage has been invaluable in the general area of strategic theory and the arms race.

²⁴ See, e.g., [1961] JOHN F. KENNEDY, PUBLIC PAPERS OF THE PRESIDENTS 231 (1962); Hearings on Dep't of Defense Appropriations for 1968 Before the Sub-comms. on the Dep't of Defense and on Military Constr. of the House Comm. on Appropriations, 90th Cong., 1st Sess., pt. 2, at 159, 162 (1967) (statement of Sec'y of Defense McNamara); T. SCHELLING, *supra* note 4, at 232. The definition of “unacceptable damage” put forward by Secretary McNamara in the statement cited above was 20-25% “prompt” fatalities among the adversary population and 50-66½% destruction of its industrial capacity. *Hearings, supra*, at 154. These figures have achieved something of the status of official dogma. They do not appear to be based on any objective data, except, perhaps, that the Soviet Union was able to survive World War II with cumulative casualty and destruction levels, over the four years, of about a third of these figures. See, e.g., B. DMYTRYSHYN, USSR: A CONCISE HISTORY 231-32 (1965); I. GREY, THE FIRST 50 YEARS: SOVIET RUSSIA 1917-1967, at 404, 528 nn.2 & 7 (1967). There has always been something bloodless and abstract about this statement of the mutual deterrence equation. A political perspective on the realism of this kind of quantification is supplied by McNamara's colleague, McGeorge Bundy, in an article that is required reading for anyone interested in limitation of strategic weapons:

> There is an enormous gulf between what political leaders really think about nuclear weapons and what is assumed in complex calculations of relative "advantage" in simulated strategic warfare. Think-tank analysts can set levels of "acceptable" damage well up in the tens of millions of lives. They can assume that the loss of dozens of great cities is somehow a real choice for sane men. They are in an unreal world. In the real world of real political leaders — whether here or in the Soviet Union — a decision that would bring even one hydrogen bomb on one city of one's own country would be recognized in advance as a catastrophic blunder; ten bombs on ten cities would be a disaster beyond history; and a hundred bombs on a hundred cities are unthinkable. Yet this unthinkable level of human incineration is the least that could be expected by either side in response to any first strike in the next ten years, *no matter what happens to weapons systems in the meantime*. Even the worst case hypothesized in the ABM debate leaves at least this much room for reply. In sane politics, therefore, there is no level of superiority which will make a strategic first strike between the two great states anything but an act of utter folly.

Bundy, *To Cap the Volcano*, 48 FOREIGN AFFAIRS 1, 9-10 (1969). We need not pursue the argument, for whatever assured retaliatory capacity is, it has been made perfectly clear that both the United States and the Soviet Union have it. [1970] RICHARD M. NIXON, PUBLIC PAPERS OF THE PRESIDENTS 117 (1971).

²⁵ See STOCKHOLM INTERNATIONAL PEACE RESEARCH INSTITUTE, YEARBOOK OF WORLD ARMAMENTS AND DISARMAMENT 1969/70, at 57-58 (1970) [hereinafter cited as SIPRI YEARBOOK 69/70]. Schelling argues that the stability of the balance is sensitive to the force levels at which it is achieved. T. SCHELLING & M. HALPERIN, *supra* note 1, at 56-58. If each side had only ten strategic weapons,

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In such a situation, rational calculation would seem to dictate that each side, pursuing its own self-interest, would simply stop.²⁶ As a matter of fact, of course, neither the United States nor the USSR has followed this apparently obvious line of policy.

The concept of the "action-reaction phenomenon" has been advanced as a way of explaining these observed facts within the rationalistic assumptions of strategic theory.²⁷ Each side, it is said, is under the necessity of reacting to the other's deployments. Lead times for strategic weapons are long. One can never be sure in early stages just what the adversary is deploying and what he "intends" to do once he deploys it. It is best to be on the safe side; and "safe," in this context, means to resolve both imponderables — the character of the opposing deployment and the purpose behind it — as pessimistically as possible. This procedure, known as "worst-case analysis," leads to pressures to increase forces to meet the "worst case." From the perspective of the other side, this reaction itself becomes an action that generates its own reaction. And so the spiral proceeds.

This explanation of the arms race is accepted by many on both sides of the arms control debate.²⁸ For examples they point to the interplay between the first Soviet deployment of an anti-ballistic missile (ABM) defense around Moscow, and the United States response with multiple warhead missile (MIRV) deployment as a way of penetrating the defense. Again, the United

an increase of fifty on one side might be thought to give it a decisive advantage, since it might now destroy the other side's retaliatory capability. And so the balance could be easily upset. With an initial level of 1,000 weapons on each side, however, an increment of 50 or even 500 could not affect retaliatory capacity. Neither side would have any incentive to upset the balance, and so it would be stable. But see Wohlstetter, *The Delicate Balance of Terror, 37 FOREIGN AFFAIRS* 211 (1959). Bundy's analysis, *supra* note 24, also casts doubt on the proposition that the balance is unstable at lower force levels. But in any case, with over 1,000 ICBMs on each side, plus a good deal of other strategic weaponry, Schelling's conditions for stability are surely satisfied.

²⁶ Cf. T. SCHELLING, *supra* note 1, at 264-86; T. SCHELLING, *supra* note 4, at 187-203.

²⁷ McNamara, *supra* note 21, at 236. The action-reaction cycle, with its structure of move and countermove by two opposing players, itself suggests how deeply perceptions of reality have been influenced by the intellectual concepts of game theory.

²⁸ See, e.g., Shulman, *The Effect of ABM on U.S.-Soviet Relations*, in CHAYES & WIESNER 155; STOCKHOLM INTERNATIONAL PEACE RESEARCH INSTITUTE, YEARBOOK OF WORLD ARMAMENTS AND DISARMAMENT 1968/69, at 42-44 (1969) [hereinafter cited as SIPRI YEARBOOK 68/69]; Hearings on ABM, MIRV, SALT, and the Nuclear Arms Race Before the Subcomm. on Arms Control, International Law and Organization of the Senate Comm. on Foreign Relations, 91st Cong., 2d Sess., at 196 (1970) (Statement of W. Panofsky); McNamara, *supra* note 21, at 236, 238.

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States is said to have reacted with an ABM system of its own in response to the intensive Soviet buildup of its ICBM force. Other examples often adduced are the expansion of the United States strategic bomber force in the 1950's in reaction to worst-case projection of a "bomber-gap" vis-a-vis the Soviets, which turned out to be nonexistent. The same pattern was rerun in the 1960's when the Kennedy administration authorized the expansion of United States land-based ICBM forces from about two hundred to about one thousand in the face of a "missile gap" that existed only in the minds of the worst-case analysts.

On a closer examination none of these frequently cited examples turns out to provide compelling evidence for any simple version of the action-reaction cycle. United States development work on the ABM began as early as 1954, not in response to any Soviet deployment, but as an aspect of a more general shift of emphasis from bombers to missiles as strategic delivery vehicles. Research and development work proceeded continuously thereafter. At various stages there were proposals for deployment by the military services. Three of these — in 1959, 1962, and 1966 — reached and were rejected at the presidential level before the final executive branch decision in 1967 for limited deployment.²⁹

MIRV's (multiple independently targetable reentry vehicles), also, were an outgrowth of a dialectic internal to the United States military services. Work on defensive systems stimulated thought about how they might be penetrated. Various kinds of dummies and decoys carried by the offensive missile along with the real nuclear warhead were thought of as possibilities. It soon emerged that it was as easy, and probably as cheap, to multiply the number of actual warheads carried by the missile. Then at least one was likely to get through to the target. Some sacrifice of total megatonnage was entailed but each of the "small" multiple warheads would still be considerably larger than the Hiroshima weapon. From multiple warheads released in a cluster, proceeding on more or less the same trajectory to the same target (multiple reentry vehicles, or MRV's), it was only a short step to the conception of a missile carrying a number of warheads, each of which could be independently targeted. And so the MIRV was born. Its deployment, beginning in 1970, came at a time when Soviet ABM activity had long been quiescent.³⁰

Similarly, the Kennedy decision to deploy a thousand-missile, land-based ICBM force came in 1961, months after the administration knew that the missile gap was a myth and that

²⁹ See Chayes et al., *An Overview*, in CHAYES & WIESNER 3-4.

³⁰ SIPRI YEARBOOK 68/69, at 44.

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ICBM development in the USSR was far behind that of the United States.³¹

The pattern in the USSR is not very different. Graham Allison concludes on the basis of a survey of Soviet deployments since World War II that:³²

> Soviet responses to American procurement typically involve not the choice of the rational countermove but rather a delayed option for something on the menu of one of the present organizations. As A. W. Marshall has argued, the history of Soviet purchases from 1946 to 1962 reveals an interaction between American and Soviet force postures that is muffled, lagged, and very complex.

> If action and reaction do not account for the continued arms race, at least in any very simple sense, what other factors are at work? The evidence suggests that they are primarily bureaucratic and political, with response to anticipated adversary action playing a decidedly secondary role.³³ Rational decisionmaking would demand that weapons development and deployment decisions be based on careful analysis of force requirements in terms of assigned missions and anticipated adversary capabilities. The total military budget and its division among the armed services would be essentially an aggregate of those decisions.³⁴

³¹ T. Greenwood, Reconnaissance and Surveillance: Applications to Arms Control Verification 16-19 (unpublished paper written in connection with Carnegie Endowment grant, *supra* note *) [hereinafter cited as Greenwood]. See also A. SCHLESINGER, A THOUSAND DAYS 499 (1965); 1961 CONGRESSIONAL QUARTERLY ALMANAC 144.

³² ALLISON 98.

³³ Economic interpretations are perhaps slighted here, because of the focus on political and bureaucratic responses to treaty controls. Any comprehensive analysis of the dynamics of the arms race could not neglect economic factors. For some materials, see S. LENS, THE MILITARY-INDUSTRIAL COMPLEX 1-58, 99-121 (1970); E.L.M. BURNS, MEGAMURDER 185-98 (1967); F. COOK, THE WARFARE STATE 20-24, 45-67, 162-194 (1962); Yarmolinsky, *The Problem of Momentum*, in CHAYES & WIESNER 144. Cf. C.W. MILLS, THE POWER ELITE 211-24, 276-78 (1956). A cautionary word is in order, however, against the tendency to ascribe the major responsibility to the evil workings of a "military-industrial complex." The Soviet experience has not differed markedly from that of the United States, although they are presumably not burdened by the contradictions of capitalism or greed for profits. If the argument is that industrial managers in the Soviet Union exercise influence and exhibit behavior like that of corporate managers in the United States, then explanation might be sought in terms of organizational and structural forces in the production sector not unlike those that operate within governments.

³⁴ The emphasis on cost-benefit analysis and Planning-Programming-Budgeting Systems (PPBS) in the Defense Department during the Kennedy Administration was an effort to make the budgetary process conform more adequately to this ideal. See, e.g., C. SCHULTZE, THE POLITICS AND ECONOMICS OF PUBLIC SPENDING 19-34 (1968); Hitch, *Planning-Programming-Budgeting System*, in AMERICAN DEFENSE

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Careful studies of the actual United States budgetmaking process show that it turns this rational procedure upside down.³⁵ Decisions on military force levels are made within the framework of a budget ceiling — more or less formally established — that operates as a given.³⁶ The ceiling is not derived primarily from an analysis of military needs. It reflects an overall weighing and judgment among competing claims on available government resources made largely in political terms by or on behalf of the President.³⁷ The process sometimes produces quantum changes in the military budget in response to changes in the general political climate or other extraneous events. Harry Truman's pre-occupation with domestic programs and his overall post-World War II economy drive led to deep slashes in military spending, down to $11 billion under Defense Secretary Louis Johnson.³⁸ Korea, in 1951,³⁹ and the Berlin crisis a decade later,⁴⁰ served as occasions for substantial overall increases in military expenditures and force levels. But ordinarily the classic budget-making formula is employed: start with last year's number, then adjust it marginally up or down, but mostly up.⁴¹

A number of factors generate continuous upward pressure on the ceiling. Some are peculiar to the military. Inflation is particularly significant in an organization with such large hardware and personnel expenditures. It seems characteristic of weapons systems that they exceed cost projections, even in terms of constant dollars, when they finally reach the stage of deployment. American fascination with technically complex and thus very expensive gadgetry may contribute. But the general tendency of every bureaucratic entity to maintain and increase its share of the pie is also at work.

The same forces also operate in the division of the military

POLICY 212 (W. Posvar et al. eds. 1965); A. ENTHOVEN & K. SMITH, HOW MUCH IS ENOUGH? 31-72 (1971); cf. id. at 309-32.

³⁵ See S. HUNTINGTON, THE COMMON DEFENSE (1961); N. POLSBY, CONGRESS AND THE PRESIDENCY 82-98 (1964); Schilling, *The Politics of National Defense: Fiscal 1950*, in STRATEGY, POLITICS, AND DEFENSE BUDGETS 1 (W. Schilling et al. eds. 1962).

³⁶ S. HUNTINGTON, *supra* note 35, at 223-29; N. POLSBY, *supra* note 35, at 86-89.

³⁷ S. HUNTINGTON, *supra* note 35, at 197-99; A. SCHLESINGER, *supra* note 31, at 317 n.*; Schilling, *supra* note 35, at 250-51.

³⁸ 1953 STATISTICAL ABSTRACT OF THE UNITED STATES 343 (table 370).

³⁹ [1951] HARRY S. TRUMAN, PUBLIC PAPERS OF THE PRESIDENTS 63 (1965); see S. HUNTINGTON, *supra* note 35, at 201.

⁴⁰ [1961] JOHN F. KENNEDY, *supra* note 24, at 533-40; see T. SCHELLING, *supra* note 1, at 270.

⁴¹ See, e.g., A. DOWNS, INSIDE BUREAUCRACY 247-52 (1967); N. POLSBY, *supra* note 35, at 85; Schilling, *supra* note 35, at 220-22.

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budget among the services.⁴² The inertia that perpetuates last year's programs and related expenditures for another year — plus or minus something — operates within the Defense Department as well as between the Department and its rivals for budgetary resources. The basic imperative of maintaining "organizational health . . . in terms of bodies assigned and dollars appropriated"⁴³ applies to each of the military services just as much as to the Defense Department as a whole. Each seeks to maintain and increase its budgetary share. To this end, each service strives for a substantial element of each of the essential force missions to serve as base for high and increasing claims on resources.

This particular form of rivalry has had direct implications for the size and configuration of strategic forces. It has contributed to the development and deployment of three separate and independent nuclear delivery systems, and to continuing pressure for ABM deployment.⁴⁴ In the late 1950's the Air Force responded to the possible obsolescence of the long-range bomber by staking out its claim to the new land-based, solid fuel ICBM's.⁴⁵ But it has not ceased to press for new and better strategic bombers or to resist the phasing out of the existing system.⁴⁶ The Navy is securely in the field with missile-carrying submarines, long considered the most invulnerable of the nuclear weapons systems. The Army lost out on offensive missiles when deployment of soft, liquid fuel Jupiter missiles was terminated in 1960, but it is back in the act as the service responsible for the ABM.⁴⁷

In the USSR also, bureaucratic imperatives seem to win out over rational ones. Allison believes, for example, that Soviet deployment of ABM's can be explained by the Russian Air Defense Command's need for a new defensive project to sustain its budget after it had exhausted all the likely sites for conven-

⁴² See generally S. HUNTINGTON, *supra* note 35. Huntington characterizes the process as “legislative,” defines “legislative” as involving bargaining, negotiation, compromise, and logrolling among relative equals, and contrasts it to expert planning or to “executive” decision, which implies a hierarchal organizational structure and absence of controversy about fundamental goals. *Id.* at 124-65.

⁴³ ALLISON 82.

⁴⁴ See note 53 *infra*.

⁴⁵ H. YORK, *RACE TO OBLIVION: A PARTICIPANT'S VIEW OF THE ARMS RACE* 80-98 (1970).

⁴⁶ *Id.* at 51-59.

⁴⁷ *Id.* at 139-41, 193-97. According to P. Doty, *Can Investigations Improve Scientific Advising? The Case of the ABM*, Feb. 1972, at 8 (mimeographed version of paper to be published in *Minerva*):

The ABM controversy has its roots in the 1959 decision of Mr. McElroy, Secretary of Defense, to give the Army responsibility for missile defense. Many talented and dedicated officers were thereby committed to this mission. Since it was the only license the Army had in the new dimension of space it was certain to be pursued with alacrity.

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tional antiaircraft batteries.⁴⁸ Again, the failure of the USSR to capitalize on its technological headstart to build an ICBM force in the late 1950's has been a major puzzle for strategic analysts. Allison convincingly relates this omission to the organizational arrangements that put missiles under the artillery section of the Soviet ground forces:⁴⁹

> The mission of the artillery section as well as the experience and training of its officers encouraged activity related to the support of Soviet ground forces in Europe. As a result, the Soviets had produced some 750 MRBM's and IRBM's, three times European overkill. . . . A capability for direct attack against the United States was . . . a secondary and perhaps even a peripheral goal of the Soviet army.

In the United States, hardware developments that can absorb any available resources are continuously at hand. They are turned out by a process that is aptly characterized as technological drift.⁵⁰ There are, in the first instance, minor improvements in weapons systems that occur as bugs are worked out and as components with improved performance are made available to replace older ones. Something of a technological imperative seems to operate with respect to changes of this kind. Since this drift is almost continuous and involves enormous numbers of small and modest developments, authorization for change at policy levels and, where necessary, by Congress occurs as a matter of routine, without extensive debate or explicit decision. This is especially true at the stage of research or exploratory development, but for many advanced development programs as well, scrutiny is likely to be pro forma.

This process, operating largely on its own momentum, turns out a continuous array of new possibilities for adoption by the services. Rarely do any of these individual changes — in electronic circuitry, radar frequencies, propellant composition, warhead design, etc. — make much difference in overall strategic capabilities. Cumulatively or in combination, however, they may result in striking evolutionary changes in particular weapons systems. Examples are the great increases in range and payload between the original B-52 and the currently deployed B-52H; the increase in range from about twelve hundred miles for the Polaris A-1 missile to about two thousand five hundred for the A-3; and the

⁴⁸ ALLISON 97-98.

⁴⁹ Id. at 114-15. See also id. at 95.

⁵⁰ This account relies principally on preliminary papers by Professor J.P. Ruina prepared for the Carnegie Endowment study described in note * supra. He is the originator of the term "technological drift." See also SIPRI YEARBOOK 68/69, at 91-93.

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steady improvements in missile guidance and accuracy that have reduced the miss distance by a factor of about two every three or four years since the V-2's.⁵¹ Occasionally, something very much like what is here described as technological drift can result in the development of an entirely new weapons system. The MIRV may well be a case in point. These developments, as they emerge, generate their own pressures for deployment: they are there. But neither the cumulative change nor the occasional departure like MIRV has altered the basic strategic balance between the major nuclear powers.

Strategic analysis in general, and the necessity for response to adversary action in particular, provide the intellectual scaffolding for this process and the argumentation for much of the public debate.⁵² These can always be used to support upward revisions of the budget. The threat to be defended against is, in the “worst case,” the complete destruction of American society — that is to say, infinite. From a narrowly military point of view, any system that gives some promise of preventing or mitigating such an outcome seems well worth the cost. One example of this kind of intellectual backstopping is the doctrine of “the triad,” which has been developed to support the redundant claims of different services for strategic weaponry. Like other mystical threesomes, this one has an inner and inviolable cohesion. The doctrine has it that no single strategic system can by itself provide a reliable deterrent. All three are needed. A more extreme version, often advanced, is that each of the three forces must independently of the others have an assured retaliatory capability.⁵³

⁵¹ Hoag computes on the basis of open information that “an ICBM CEP of 1 kilometer ... is certainly plausible” and “an overall ICBM CEP of 30 meters may be expected with reasonable and practical application of science and technology to the task.” Hoag, *Ballistic-Missile Guidance*, in *IMPACT OF NEW TECHNOLOGIES ON THE ARMS RACE* 19, 77, 81 (B. Feld et al. eds. 1971). CEP, or Circular Error Probability, is the radius of a circle, centered on the target, within which 50% of the shots may be expected to land.

⁵² T. SCHELLING, *supra* note 1, at 275-76 & n.4, analyzes the ways in which information about Soviet activity can influence United States decisionmaking. He lists (1) stimulating “pure imitation,” (2) reminding us of things we have overlooked or underemphasized, (3) demonstrating the feasibility of particular weapons, (4) providing a “powerful argument” to one party or another in a dispute over budgetary or weapons decisions, (5) challenging or belittling American performance so as to influence the political process, and (6) making particular weapons “fashionable.” Of these the last three are wholly rhetorical/political rather than technical/analytic. And political elements inhere in all of the first three as well.

⁵³ In addition to underpinning the argument for three separate *offensive* forces, the doctrine has become the principal justification for deployment of defensive ABM's. These are said to be needed for defense of Minuteman, one of the triad of retaliatory forces. In the ABM debate, there was some effort to argue that all three components — bombers, submarines, and ICBM's — might be vulnerable to

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The psychological and political values of consistency and intellectual respectability are enough to insure that strategic calculation and action-reaction will have their influence on weapons and force decisions. In this respect, the position of the strategic analyst is not so different from that of the international lawyer. He plays his role, which in any case seems more derivative than primary, not as the determinant of decision, but as a part of a complex mix of organizational and political forces.

The remainder of this article explores how an arms control agreement affects the interplay of these more fundamental forces. It considers, in turn, pressures for compliance generated in the negotiating process (Part II), bureaucratic and organizational constraints against breach of a treaty in force (Part III), and the enforcement mechanism of the treaty itself (Part IV). These are not analytically separate divisions and many of the same issues and phenomena recur in each. They represent, rather, different perspectives from which to examine the political and bureaucratic forces bearing on treaty compliance. In this way we may hope to gain an appreciation of the process of compliance and enforcement that is richer and more balanced than that provided by the one-dimensional treatments now available.

## II. NEGOTIATION AND RATIFICATION

Treaties are often analogized to contracts.⁵⁴ But unlike the voluntary exchange of promises between two individuals — itself increasingly misleading as the archetypal contract — the formulation, negotiation, and ratification of a treaty is an elaborate bureaucratic and political affair. In the field of arms control, so intimately connected with national security, the complexity of the process attains the rococo. For proponents of arms limitation, this complexity carries very high costs. It is probably fair to say that the principal reason arms control agreements take so long to

simultaneous attack, but it was not very convincing, since the Navy continued to insist on the invulnerability of the Polaris force. Thus, the strategic case for ABM came down, in the end, to the need to insure that the Minuteman force would have its own assured retaliatory capability, regardless of the vulnerability vel non of the other components. For details of this interchange, see *Hearings on Authorization for Military Procurement, Research and Development Fiscal Year 1970, and Reserve Strength Before the Senate Comm. on Armed Services*, 91st Cong., 1st Sess., pt. 2, at 1126-35 (1969) (testimony of Dr. W. Panofsky); id. at 1258-66 (testimony of Dr. A. Wohlstetter); Wiesner, *Some First-Strike Scenarios*, in CHAYES AND WIESNER 70; Weinberg, *What Does Safeguard Safeguard?*, in id. at 84; P. Doty, *supra* note 47, at 13-20.

⁵⁴ See, e.g., I. DETTER, ESSAYS ON THE LAW OF TREATIES 100 (1967); A. McNAIR, THE LAW OF TREATIES 48, 105, 185, 233, 253 (1938); Llewellyn, *What Price Contract?*, 40 YALE L.J. 704, 728 (1931).

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negotiate and are not more far-reaching is not so much the difficulty of one side convincing the other as the need for each side to generate a broad base of agreement and acceptance within its own and allied policymaking establishments.

But there is something to be entered on the other side of the ledger. The argument of this section is that this very process of negotiation and ratification tends to generate powerful pressures for compliance, if and when the treaty is adopted. At least three interrelated phenomena contribute to these pressures: (1) by the time the treaty is adopted, a broad consensus within governmental and political circles will be arrayed in support of the decision; (2) meanwhile, principal centers of potential continuing opposition will have been neutralized or assuaged, though often by means of concessions that significantly modify the substance of the policy; and (3) many officials, leaders of the administration or regime and opponents as well, will have been personally and publicly committed to the treaty, creating a kind of political imperative for the success of the policy. After a brief description of the negotiating process as it operates in the United States and the Soviet Union, this section examines these forces in greater detail.

### A. Dramatis Personae

The procedures of the United States government in the arms control field involve all individuals and agencies having security responsibilities.⁵⁵ Below the Presidency, leading roles are played by the two great cabinet departments of State and Defense. But neither of these is a monolithic entity responding smoothly to unified policy direction from the top.

Within the State Department, the responsibilities and territories of a bewildering array of offices will be engaged: the Bureau of European Affairs, which itself will need to speak with at least two voices, one for the Soviet desk and one reflecting NATO interests; the Bureau of International Organization Affairs, dealing with UN matters; the Office of Politico-Military Affairs, responsible for liaison with the Pentagon; the Legal Adviser's Office, at a minimum on the formal aspects of the treaty; the Bureau of Intelligence and Research; the Bureau of Public Affairs, for public statements and information; possibly even the Policy Planning Council.

These internal entities are by no means united in institutional

⁵⁵ The following account draws on H. JACOBSON & E. STEIN, DIPLOMATS, SCIENTISTS AND POLITICIANS: THE UNITED STATES AND THE NUCLEAR TEST BAN NEGOTIATIONS 85-87 (1966), supplemented by my own experience from 1961-64 and conversations with others who have been close to the process since then.

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orientation or headed by men who share a consistent philosop-
cal or policy outlook. Arguments within the Department on arms
control policies often parallel disputes in the government as a
whole both in range and intensity.

The Department of Defense has a similar roster of concerned subunits expressing a similar diversity of viewpoints: the Office of the Secretary of Defense; the Bureau of International Security Affairs, which is the Defense Department's Foreign Office and contains a separate section, headed by a Deputy Assistant Secretary, devoted to arms control; the General Counsel's office, if for no other reason than because State's lawyers are in the act; the Defense Intelligence Agency; the Joint Chiefs of Staff, who have, in addition, an independent statutory position as military advisors to the President;⁵⁶ and each of the services, with its separate missions and budget.

Apart from the two main departments, a number of other agencies are involved. Any agreement concerning nuclear weapons implicates the Atomic Energy Commission. Since 1961, the semi-autonomous Arms Control and Disarmament Agency, in the State Department but not of it, has had statutory responsibility for preparing and carrying out arms control negotiations.⁵⁷ And there is the ubiquitous Central Intelligence Agency.

The luxuriantly variegated output of the agencies needs a certain amount of pruning, which is known as "coordination." Until 1969, the formal repository of this function was the Committee of Principals, made up of the Secretaries of State and Defense, the Director of the CIA, the Chairman of the AEC, the Special Assistants to the President for Science and Technology and for National Security Affairs, the Chairman of the Joint Chiefs of Staff, and the Director of the USIA. Since that time, the function of working out differences among the interested agencies and refining unresolved issues for submission to the President has been performed by the Verification Panel, made up of somewhat lower ranking officials and chaired by the President's Special Assistant for National Security Affairs. Formal review at the White House level is by the National Security Council.

This complex congeries of organizations, with a bewildering
variety of formal and informal relationships, deploys hundreds
of people of different roles and ranks in preparing and analyzing
positions, formulating issues and arguments, sifting questions for
consideration at higher levels, and hammering out the answers,
evasions, or compromises by which they are resolved. This proc-
ess occurs not once at the beginning or end of the negotiations,

⁵⁶ See 10 U.S.C. § 141(b) (1970).

⁵⁷ See 22 U.S.C. §§ 2551(b), 2574(a)(1) (1970).

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but continuously, although with fluctuations in intensity, throughout their course.

In the United States, the Congress is also an essential component. For a formal treaty, the requirement of bringing the Senate along is built into the Constitution.⁵⁸ Woodrow Wilson's experience with the League of Nations stands as an unhappy reminder that the process of seeking Senate advice and consent cannot begin after a treaty is signed. Even as to agreements that do not require formal concurrence, the practice of advance consultation is now standard. It is reenforced by alliances, stronger in some cases than others, between particular executive agencies and particular Congressmen or committees. In this way, the process extends itself into a larger circle of concerned press and publics. Some of these — for example, defense industries, on one side, and a loose group of academic scientists, on the other — have personal and official connections within the government that assure a quasi-formal role in the decision process.

A further layer of complexity is added by United States membership in NATO. The mission at Brussels will obviously not have the same point of view as the UN delegation. But apart from this internal problem, the necessities of alliance politics will require at least consultation with other members on major features of an arms control agreement, and a degree of support or acquiescence from the most important. This entails intra-alliance negotiation, which will trigger a similar round of bureaucratic processing activity in each of the governments involved. These features are familiar — perhaps too familiar — to United States participants in NATO affairs.⁵⁹

For the Soviet Union, we have nothing like so clear a picture of either the organizations or the procedures involved. And we cannot simply extrapolate from familiar models. Fundamental differences from western policymaking processes are rooted in the authoritarian character of the system. Soviet leaders, presumably, have no difficulty in securing a compliant legislature. Nor is there the same need to convince broad segments of public opinion, although in recent years scientific and intellectual elites seem increasingly to be able to make themselves felt, particularly on arms control matters.⁶⁰ On the other hand, the problem of bureau-

⁵⁸ U.S. CONST. art. II, § 2, cl. 2.

⁵⁹ See R. NEUSTADT, ALLIANCE POLITICS (1970) for a study of this consultative process and some of the results of breakdown. In addition to its allies, the United States may consult in advance other nations who have taken a prominent role on disarmament issues, particularly members of the UN Disarmament Committee.

⁶⁰ B. LEVYTSKY, THE SOVIET POLITICAL ELITE 2 (1969); A. WEEKS, THE OTHER SIDE OF COEXISTENCE 136 (1970); Morton, *The Structure of Decision-Making in the USSR: A Comparative Introduction*, in SOVIET POLICY-MAKING 9 (P. Juviler

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cratic coordination in the Soviet Union may be complicated by the existence of overlapping hierarchies in party, state, military, and secret police.⁶¹

Recognizing these pervasive differences we can still get some sense of a complex bureaucratic and political process of decision-making, not wholly unlike that in the United States.⁶²

Final power of decision in the Soviet Union rests in the twenty-one man Politburo of the Communist Party Central Committee, which is supreme in foreign affairs.⁶³ Even in periods of one-man dominance, a degree of consensus has been necessary within the Politburo for major decisions. At present the best assessment is that collective leadership is still real, with the Politburo meeting once a week to discuss important matters.⁶⁴

& H. Morton eds. 1967); Skilling, *The Party, Opposition, and Interest Groups in Communist Politics: Fifty Years of Continuity and Change*, in *THE SOVIET UNION: A HALF CENTURY OF COMMUNISM* 119, 135-40 (K. London ed. 1968). The Pugwash meetings, during which leading United States and Soviet scientists discuss arms control issues in a nongovernmental setting, evidence in themselves an involvement and growing sophistication by the Soviet scientific community on strategic theory and arms control issues. Cf. J. ROTBLAT, *PUGWASH—THE FIRST TEN YEARS 35-36* (1967). Dr. Paul Doty, who has been heavily involved in the Pugwash movement, says the USSR change of position on ABM's was "greatly aided . . . [by] private discussions that had taken place over several years." This is apparently a reference to the Pugwash-related activity. P. Doty, *supra* note 47, at 31.

⁶¹ M. FAINSOD, HOW RUSSIA IS RULED 341 (2d ed. 1963). On the secret police, see P. DERIABIN & F. GIBNEY, *THE SECRET WORLD*, app. IV (1959); O. PENKOVSKIY, *THE PENKOVSKIY PAPERS* 59-93 (1965). On the military, see R. KOLKOWICZ, *SOVIET PARTY-MILITARY RELATIONS: CONTAINED CONFLICT* (Rand P-3371) (1966); R. KOLKOWICZ, *THE SOVIET ARMY AND THE COMMUNIST PARTY: INSTITUTIONS IN CONFLICT* (Rand R-446-PR 1966).

⁶² A cautionary word is in order about the following account of Soviet decision-making in the arms control field. The text is based on secondary sources available at the time of writing. Soviet experts have no greater penchant for unanimity than any other breed, and they often disagree about the exact function performed by a particular organizational unit or the weight it carries. Moreover, as to matters of detail, the picture will soon be outdated, if it is not already, by the constant round of reorganization and reallocation of functions that is a favorite indoor sport of bureaucracies the world over. These matters, though of utmost importance to Kremlin watchers, do not offset the main point of the text: despite the authoritarian character of the Soviet government, decisionmaking on arms control matters and foreign policy in general is a complicated and extensive bureaucratic and political process.

⁶³ Speech of Foreign Minister Andrei Gromyko to 24th Congress of the CPUSSR, N.Y. Times, Apr. 10, 1971, at 3, col. 3; M. FAINSOD, *supra* note 61, at 337.

⁶⁴ See M. TATU, *POWER IN THE KREMLIN* 537 (1969) [hereinafter cited as TATU]; J. TRISKA & D. FINLEY, *SOVIET FOREIGN POLICY* 60 (1968) [hereinafter cited as TRISKA & FINLEY]; N.Y. Times, Oct. 26, 1971, at 5, col. 6. As to the earlier period, see note 113 *infra*.

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The second most powerful institution in the Communist Party hierarchy is the Secretariat of the Central Committee. It is responsible for the daily functioning of the decisionmaking apparatus and plays a key role in framing issues, preparing the agenda, and providing information, analysis, and alternatives to the Politburo.⁶⁵ In fact, the membership of the two bodies overlaps substantially. Currently, only 25 men occupy the 31 Politburo and Secretariat positions.

Almost half of the Politburo members concern themselves with foreign affairs.⁶⁶ Three organizations with foreign policy roles are responsible to the Secretariat — the Department of Liaison with Communist and Workers' Parties of Socialist Countries, the International Department, and the Agitprop (Ideological) Department.⁶⁷ Organizational charts of these departments, if they were available, would undoubtedly display a complex scheme of supporting offices and staffs upon which the Secretaries and other party leaders rely. Much of Soviet foreign policy decisionmaking is the result of the pulling and hauling among these men and offices.

The personal nature of political involvement in the Soviet Union suggests that some, if not all, of the major Soviet leaders have private staffs.⁶⁸ It is known, for instance, that Mr. Brezhnev has a "personal secretariat" headed by a man who has worked for him since 1960.⁶⁹ These personal staffs, like their United States counterparts, will inevitably be influential.

Although the Party maintains ultimate direction of Soviet international affairs, State organs also play major roles in the discussion and formulation of arms control policy. Of prime importance are the Ministries of Foreign Affairs and Defense. Indeed the Ministers of these departments probably attend Politburo discussions on disarmament.⁷⁰ The supporting staffs in these two ministries are as variegated as their counterparts in the United States.

In the Ministry of Foreign Affairs,⁷¹ the Minister, a First

⁶⁵ A. DALLIN *et al.*, THE SOVIET UNION, ARMS CONTROL, AND DISARMAMENT 62 (1964) [hereinafter cited as DALLIN]; M. FAINSOD, *supra* note 61, at 338; TRISKA & FINLEY 64-66.

⁶⁶ TRISKA & FINLEY 82-85.

⁶⁷ *Id.* at 66-69; L. SCHAPIRO, THE GOVERNMENT AND POLITICS OF THE SOVIET UNION 68-69 (1965).

⁶⁸ Z. BRZEZINSKI & S. HUNTINGTON, POLITICAL POWER: USA/USSR 204 (1964); TATU 108.

⁶⁹ *See* N.Y. Times, Oct. 25, 1971, at 9, col. 1.

⁷⁰ T. LARSON, DISARMAMENT AND SOVIET POLICY, 1964-1968, at 37 (1969) [hereinafter cited as LARSON].

⁷¹ INSTITUTE FOR THE STUDY OF THE USSR, THE SOVIET DIPLOMATIC CORPS 1917-1967, at 3-7 (E. Crowley ed. 1970); NATIONAL SECURITY STAFFING AND OPERATIONS SUBCOMM. OF THE SENATE COMM. ON GOVERNMENT OPERATIONS, 88th

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Deputy, seven Deputy Ministers, and a Secretary-General form the upper echelon. Below them, several departments are concerned with arms control: all five European Departments, particularly the First, Second and Third (whose major responsibilities are, respectively, France, Great Britain and Germany); the Department of the USA; the Contractual Law Department (the Treaty and Legal Division); and the Department of International Organizations. This last has indirect supervision of the Ministry's Disarmament Section, a small staff with authority to initiate disarmament proposals within the bureaucracy but apparently with little actual power.⁷² As late as 1964, the Disarmament Section was not directly responsible to either the head of the Department of International Organizations or the USSR Representative to the UN Disarmament Committee, who probably has an office and staff of his own.

Less is known about the organization of the Ministry of Defense.⁷³ It is likely that the Minister, his two First Deputies, and several Deputy Ministers divide their responsibilities so that several of them head divisions with an interest in questions of disarmament. The Main Operational Directorate and the Military Science Administration (both headed by Deputy Chiefs of Staff) play significant roles in arms control discussions, as does the GRU (Soviet Military Intelligence), which is under the supervision of the Chief Intelligence Directorate. In addition, it has been supposed that the Ministry has a staff organ for direct consideration of disarmament policy.⁷⁴

Although the Minister of Defense has invariably been a uniformed officer, the Soviet armed forces, like the United States military services, have their own representation within the Ministry of Defense—the Chief of the General Staff.⁷⁵ His office is undoubtedly involved in arms control decisionmaking, not only because of his strategic responsibility, but because the military maintains a semi-monopoly on technological expertise in the weapons field. Each of the five services must have a voice in disarmament debates, particularly the Air Defense Command, responsible for the SAM's and the ABM,⁷⁶ and the Strategic Rocket Forces, which controls strategic offensive missiles.⁷⁷

CONG., 1ST SESS., STAFFING PROCEDURES AND PROBLEMS IN THE SOVIET UNION, chart 10 facing p. 31 (Comm. Print 1963).

⁷² DALLIN 60-61.

⁷³ This paragraph is based on INTELLIGENCE RESEARCH AID: DIRECTORY OF SOVIET OFFICIALS, VOL. I USSR & RSFSR I-B8 to I-B14 (1966).

⁷⁴ LARSON 37.

⁷⁵ INTELLIGENCE RESEARCH AID, *supra* note 73, at I-B8, -B9, -A7.

⁷⁶ ALLISON 97-98, 110.

⁷⁷ *Id.* at 110.

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There has been speculation about the existence of a Supreme Military Council, consisting of Brezhnev, Kosygin, Defense Minister Grechko, the Chief of the General Staff, the Commander of the Warsaw Pact Unified Forces, the head of the Main Political Administration of the Armed Forces, and the Chiefs of the General Staff's Operations and Intelligence Directorates. It is said to be a forum for transmitting the views of the military to the political leadership, as well as a body for the preparation of a statement of military options.

Despite its modest name, the Ministry of Medium Machine Building is responsible for the development and management of the USSR's atomic weapons programs. Its present leader has held his post since 1956, and it is quite likely that he has developed a power base that guarantees him a voice in disarmament matters.⁷⁸

Soviet government agencies are supposed to operate on a principle of collegiality, which requires a Minister to appoint a collegium consisting of himself, his highest ranking subordinates, and, often, persons outside the ministry. The collegium meets to discuss and coordinate the work and policies of the Ministry, and it may appeal a Minister's decision to the Council of Ministers.⁷⁹

At least three state committees⁸⁰ impinge on the disarma-
ment policymaking process. The Committee for State Security
(the KGB) has charge of the operations of the secret police.⁸¹
Within that committee, the First Main Administration (the
Foreign Directorate) is responsible for the collection of foreign
strategic intelligence and the supervision of other Soviet intel-
ligence organizations. It is plausible that the State Commit-
tee for Utilization of Atomic Energy, which has a Department
of Foreign Relations,⁸² has some say on disarmament policy. And
it has been reported that a State Committee on Questions of Dis-
armament exists.⁸³

Although they do not carry much political weight, Soviet
scholars contribute to the disarmament debates. In 1963, the
USSR Academy of Sciences established a Commission for Scien-
tific Problems of Disarmament.⁸⁴ The Institute of World Econ-
omy and International Relations, and the Institutes of Law,

⁷⁸ Turkevich, *Fifty Years of Soviet Science*, in *FIFTY YEARS OF COMMUNISM IN RUSSIA* 255 (M. Drachkovitch ed. 1968).

⁷⁹ A. MEYER, *supra* note 16, at 215; L. SCHAPIRO, *supra* note 67, at 137.

⁸⁰ State committees take a variety of forms but in general they can be charac-
terized as high-level interagency coordinating groups, sometimes including official
representatives of affected Party agencies.

⁸¹ TRISKA & FINLEY 45-48.

⁸² INTELLIGENCE RESEARCH AID, *supra* note 73, at IB-46.

⁸³ DALLIN 62-63.

⁸⁴ LARSON 38.

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History, and Military History have also done relevant research.⁸⁵ It is believed that a few leading scientists and scholars are consulted by policymakers on an individual basis.⁸⁶

Even the problems of alliance leadership may no longer burden the United States alone. A number of observers have concluded that in recent years, "Soviet leaders may be getting a bigger dose of coalition politics than they would like."⁸⁷

## B. Consensus

The mechanics of making an arms control treaty in a modern bureaucratic state insure that the decision to adopt a treaty and accept its obligations as legally binding is far from the calculation, will, and act of a single man and brain, or even of a small group. Instead, it tends to represent a widespread consensus among relevant power centers in each government. The more formal, explicit, and public the agreement, the more difficult it is to shortcircuit normal bureaucratic channels and the more likely, therefore, that the final decision is the result of a consensus-building process.

When the moment of final decision arrived, the Limited Nuclear Test Ban Treaty was concluded in a few short weeks by a narrow circle of insiders.⁸⁸ The feverish last minute activity that produced the treaty, however, was only the tip of an enormous iceberg. The first public suggestion for any kind of limitation on nuclear weapons testing was Prime Minister Nehru's proposal in the spring of 1954 for a standstill agreement for atomic explosions, pending the outcome of discussions on prohibition and elimination of weapons of mass destruction.⁸⁹ The idea

⁸⁵ DALLIN 61.

⁸⁶ Id. at 62. See note 60 *supra*.

⁸⁷ T. WOLFE, *THE EVOLVING NATURE OF THE WARSAW PACT 21* (Rand Memorandum RM-4835-PR) (1965). See also Z. BRZEZINSKI, *THE SOVIET BLOC: UNITY AND CONFLICT 433-35, 453-54* (rev. ed. 1967); TATU 101-03.

⁸⁸ The final stages of the negotiations were triggered by President Kennedy's American University Speech on June 10, 1963. [1963] JOHN F. KENNEDY, *PUBLIC PAPERS OF THE PRESIDENTS 459* (1964). The treaty was initiated on July 25, and the actual discussions in Moscow took only ten days. In the United States, the details of the negotiations were very closely held. The selection of newly appointed Under Secretary of State Harriman as chief of the United States delegation was itself an effort to bypass normal channels. For the Soviet Union the negotiations were apparently conducted by the top leaders personally. See *Communiqué*, 49 DEP'T OF STATE BULL. 239 (1963). For an account of the final stages of negotiations, see H. JACOBSON & E. STEIN, *supra* note 55, at 450-58.

⁸⁹ DEP'T OF STATE, I [1945-1959] *DOCUMENTS ON DISARMAMENT 408, 410* (1960). This volume is one of a series published by the United States Department of State until 1960, and thereafter by the United States Arms Control and Dis-

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was picked up fairly soon by the USSR, which sponsored a test ban and armaments reduction resolution in the 1955 UN General Assembly session.⁹⁰ But during the 1956 presidential campaign in the United States, when candidate Adlai E. Stevenson proposed a ban on nuclear testing, Vice President Nixon dismissed the idea as “catastrophic nonsense,”⁹¹ and President Eisenhower called it “pie-in-the-sky promises and wishful thinking.”⁹² It was only after seven years of political and bureaucratic maneuvering had converted this sharp partisan division into substantial unanimity that the Treaty was finally signed.

The road to Moscow was marked by the litter of countless governmental papers — statements, position papers, drafts, memoranda — each a compromise in itself, laboriously ground out by the bureaucracies. Internal procedures are such that often scores of officials, high and low, involved in the preparation of such a paper must literally “sign off” before it can mature into an official United States position. In August, 1962, the United States and the United Kingdom put before the UN Disarmament Committee in Geneva a complete draft of a treaty banning tests in the atmosphere, underwater, and in outer space.⁹³ The very decision to table treaty language was the product of debate up to the highest levels in each government, and the document itself ran the full bureaucratic gauntlet, including extended consideration by the Principals and their deputies, the White House staff, and the NSC. This draft became the basis of the Moscow negotiations the following year. Although a number of significant changes were made, much of the language, particularly the definition of the basic prohibition in Article I, found its way into the final treaty text.⁹⁴

The operation of this internal process bears out Lindblom's description of decisionmaking:⁹⁵

[A]ny policy-making system has a prodigious effect on the very

armament Agency. Wherever possible, documentary materials in this Article are cited to that series [hereinafter cited as DOCUMENTS ON DISARMAMENT].

⁹⁰ I [1945-1959] DOCUMENTS ON DISARMAMENT 456 (1960); U.N. Doc. DC/SC.1/26, Rev. 2, May 10, 1955, in DISARMAMENT COMM'N, OFFICIAL RECORDS: SUPP. APR.-DEC. 1955, at 17-25 (1956).

⁹¹ N.Y. Times, Oct. 19, 1956, at 1, col. 8.

⁹² K. DAVIS, A PROPHET IN HIS OWN COUNTRY 488-89 (1957).

⁹³ 2 [1962] DOCUMENTS ON DISARMAMENT 804-07 (1963).

⁹⁴ *Compare id. art. I (1962 Draft) with 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, art. I, Aug. 5, 1963, [1963] 2 U.S.T. 1313, T.I.A.S. No. 5433, 480 U.N.T.S. 43 (effective Oct. 10, 1963).* The principal differences are caused by the elimination of the peaceful uses provisions of the 1962 draft.

⁹⁵ C. LINDBLOM, THE POLICY-MAKING PROCESS 101-02 (1968).

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preferences, opinions, and attitudes to which it itself also re-
sponds. It is not, therefore, a kind of machine into which are fed
the exogenous wishes, preferences, or needs of those for whom
the machine is designed and out of which come policy decisions
to meet these wishes, preferences, or needs. The machine actually
manufactures both policies and preferences.

From an initial stance of rather violent antipathy to any test ban,
the preferences of the United States policymaking establishment
moved haltingly by stages, each of which had to command its
own consensus, toward the final result: first, acceptance of a
comprehensive ban on testing as part of a broader disarmament
package;⁹⁶ then acquiescence in a ban unrelated to other meas-
ures but safeguarded by rigid inspection and control provisions;⁹⁷
later, progressive dilution of the control mechanism;⁹⁸ and ulti-
mately, acceptance of a partial ban without international controls.

A contrapuntal movement was occurring on the congressional
side, powered by competitive hearings conducted by the Disarma-
ment Subcommittee of the Senate Foreign Relations Committee,⁹⁹
the Joint Committee on Atomic Energy,¹⁰⁰ and the Preparedness
Investigating Subcommittee of the Senate Armed Services Com-
mittee.¹⁰¹ The denouement found Senator Dodd, a strong oppo-
nent of a comprehensive test ban and a generally reputed hard-
line cold warrior, introducing a resolution endorsing a partial ban
that mustered thirty-four cosponsors.¹⁰²

To some extent, this evolution of administrative and con-
gressional positions reflected changes in the "objective" setting
over the period. The results of test series conducted by both

⁹⁶ I [1945-1959] DOCUMENTS ON DISARMAMENT 608 (1960); UN Doc. DC/SC.1/24, Apr. 3, 1956, in DISARMAMENT COMM', OFFICIAL RECORDS: SUPP. JAN.-DEC. 1956, at 11-15 (1957).

⁹⁷ 2 [1945-1959] DOCUMENTS ON DISARMAMENT 1543 (1960); UN Doc. A/C.1/PV 1059, 68-71.

⁹⁸ See [1960] DOCUMENTS ON DISARMAMENT 33-39 (1961); UN Doc. GEN/DNT/PV.170, at 3-9; [1961] DOCUMENTS ON DISARMAMENT 82-126, 351 (1962); U.S. DISARMAMENT ADMINISTRATION, DEP'T OF STATE, PUB. NO. 7258, GENEVA CONFERENCE ON THE DISCONTINUANCE OF NUCLEAR WEAPONS TESTS: HISTORY AND ANALYSIS OF NEGOTIATIONS 475-521, 620 (1961); 2 [1962] DOCUMENTS ON DISARMAMENT 792-804 (1963); UN Doc. ENDC/58, Aug. 27, 1962.

⁹⁹ See generally *Hearings on the Nuclear Test Ban Treaty Before the Senate Comm. on Foreign Relations*, 88th Cong., 1st Sess. (1963).

¹⁰⁰ See generally *Hearings on Developments in Technical Capabilities for Detecting and Identifying Nuclear Weapons Tests Before the Joint Comm. on Atomic Energy*, 88th Cong., 1st Sess. (1963).

¹⁰¹ See generally *Hearings on Military Aspects and Implications of Nuclear Test Ban Proposals and Related Matters Before the Preparedness Investigating Subcomm. of the Senate Comm. on Armed Services*, 88th Cong., 1st Sess., pts. 1-2 (1963).

¹⁰² S. RES. No. 148, 88th Cong., 1st Sess., 109 CONG. REC. 9483 (1963).

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sides, the entry of China and France into the ranks of nuclear powers, and improvements in the technology of monitoring certainly had their effect. So did the slow moderation of the Cold War and its confrontation psychology. For the most part, however, the successive positions did not embody the competing "exogenous preferences" of particular individuals or groups. They grew out of the interplay and interaction of the policy-making process. Indeed, they were usually elaborated as solutions to the successive problems posed by the slowly unfolding process itself. On the side of the USSR, a vast documentary output and the multitude of agencies and officials known to have been involved testify to a similar process, culminating in a similar broad consensus.

Certainly the Moscow Treaty is not the only conceivable agreement that could have mustered such general support within both governments. The process could have culminated successfully in any one of a number of variations. Or the result might have been no agreement at all. The point here is only that the agreement actually reached was within the limits of the broad internal consensus hammered out in each government over the decade of negotiations.

Such a consensus on both sides is an inevitable product of the successful conclusion of any major arms control agreement. It will give rise to widespread expectation and demand within each government for action in conformity with the treaty.

### C. Concessions

Despite the consensus-building process, foci of opposition may, and probably will, remain. Treaty proponents will seek to minimize or neutralize this opposition. Important elements of the overall decision may reflect this objective and the bargains struck in its pursuit.¹⁰³

Bargaining implies quid pro quo. Like the market and the price system, the political process and the voting system is one of the few available devices for comparing a great many incommensurable, and maybe even unknowable utility and preference functions. The outcome of the policy process, like the outcome of the market process, tends to register — with very large distortions and imperfections to be sure — not only the comparative rationality of particular positions but the political and even psychological strength of the interests that propound them.

The final United States position on the Partial Test Ban

¹⁰³ Cf. C. LINDBLOM, *THE POLICY-MAKING PROCESS* 95 (1968) (discussing "bargaining as a fundamental political process").

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Treaty involved a good deal of this political bargaining, some of the most interesting examples of which do not appear in the Treaty text. The terms and conditions upon which the Treaty was submitted to the Senate included some recognition for the most important groups that might feel their interests threatened. These included Senators and Congressmen traditionally associated with a strong military posture, elements in the armed services and the weapons development laboratories, and supporters and clients of the Plowshare program.

In submitting the Treaty to the Senate for advice and consent President Kennedy said:¹⁰⁴

> Our atomic laboratories will maintain an active development program, including underground testing, and we will be ready to resume testing in the atmosphere if necessary. Continued research on developing the peaceful uses of atomic energy will be possible through underground testing.

Each of these assurances was made more specific in the course of the hearings. The first two — to continue laboratory development and to maintain test readiness — were the subject of explicit undertakings made in form to the Senate leadership but in reality directed to Senators known to be considering a vote against the Treaty.¹⁰⁵ The third — to continue peaceful-uses research — was reinforced by permitting AEC Chairman Seaborg and other administration witnesses to testify that some Plowshare testing would be possible under the Treaty.¹⁰⁶ The final United States decision was thus not a decision for the Treaty simpliciter, but for the Treaty plus the undertakings. It was the decision in its totality that was reflected in subsequent United States action.¹⁰⁷ The Soviet underground test program since August, 1963, is ground for at least suspicion that similar kinds of assurances may have been made in the Soviet Union.¹⁰⁸

Were these concessions “necessary” as a practical matter? It is fairly clear that they were not needed to secure a two-thirds majority in the Senate. Their function was a different one: to

¹⁰⁴ [1963] JOHN F. KENNEDY, PUBLIC PAPERS OF THE PRESIDENTS 623 (1964); [1963] DOCUMENTS ON DISARMAMENT 300-01 (1964).

¹⁰⁵ N.Y. Times, Sept. 12, 1963, at 1, col. 5.

¹⁰⁶ Hearings, supra note 99, at 211, 213, 239. See also id. at 25-26.

A fourth assurance, designed to assuage the disappointment of comprehensive test ban proponents, promised continuation of research on detection of underground tests.

¹⁰⁷ See p. 938-39, 941-42 infra.

¹⁰⁸ The Soviets conducted virtually no underground tests before the Treaty. They had conducted 64 as of July 3, 1970, a rate of almost ten a year after the Treaty. This rate was substantially below that of the United States, but was high enough to provide its own "safeguard." SIPRI YEARBOOK 69/70, at 386-87.

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minimize the possibility that powerful opposition groups, dis-
sociated from the Treaty, would be favorably positioned after its
adoption to promote and exploit any failures. Some may criticize
the effort to "buy off" the opposition with concessions that, to
some extent, "undermined" the Treaty or the "spirit of the test
ban." Yet it can hardly be denied that resistance to the Treaty,
not only at the time of adoption, but later at the stage of opera-
tion, was damped and diverted because significant opposing in-
terests had been partially satisfied.

Again the point here is not whether the right balance was
struck in this case. The proposition is that some such balance is
struck in every case. The result is to enhance the prospects for
compliance by blunting the pressures tending in the opposite
direction.

D. Commitment

The negotiating process also influences compliance with a
treaty by generating personal and political commitment. For a
variety of reasons — personal, bureaucratic, political — individ-
uals both within and without the governmental structure commit
themselves to the goal of a treaty. They go out on a limb; they
become advocates.¹⁰⁹ Advocacy, in turn, pushes the official "to
argue much more confidently than he would if he were a detached
judge,"¹¹⁰ thus reinforcing his public or official commitment.
Bureaucratic and political antennae are very sensitive to moves
of this kind from influential and authoritative figures. Thus, com-
mitment and advocacy work to bridge the gap beyond which
bargaining will not carry the decision process.¹¹¹

Apart from its contribution to consensus, commitment oper-
ates of its own force to provide strong support for compliance
after the adoption of a treaty. Within the permanent official-
dom, those who actively supported the treaty will have an im-
portant stake in the success of the policy. They will become a
built-in pressure group pushing not only for strict compliance
with the treaty, but for avoidance of actions that would create
suspicions or lead to withdrawal or violation on the other side.

More important, the chief political figures will have made
public representations and created public expectations about the
importance of the treaty. Indeed, there is something of an in-
herent tendency to exaggerate the significance of the treaty and
inflate the expectations to which it gives rise. For all the incanta-
tion by both President Kennedy and Premier Khrushchev that

¹⁰⁹ See, e.g., A. DOWNS, *supra* note 41, at 102-09.

110 ALLISON 178. He calls this "The 51-49 Principle."

¹¹¹ Cf. D. SCHON, BEYOND THE STABLE STATE 225 (1971).

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the Test Ban Treaty was only "a first step"¹¹² toward disarma-
ment, it inevitably came to be seen as an event of immense
political significance in each country and worldwide — indeed one
that defined the political and perhaps historical position of both
leaders.

Commitment is not only a matter for heads of government.
Leaders, big and small, in or out, from conviction or otherwise,
will have to decide whether and how far to commit — to identify
themselves publicly and politically with the treaty.

In the United States many familiar techniques are available
for the expression of commitment, whether willing or reluctant:
public statements, legislative debates and hearings, votes, the
ethos of bipartisan foreign policy. The negotiation of the exact
form and content of these commitments is an intricate if minor
political art form.

Less can be said about how the Soviet government works in
this respect. Certainly the concept of collective leadership is
designed to insure that all major power groups are publicly
identified with all major decisions.¹¹³ The same result may be
achieved by the promulgation and elaboration of a party line
through the various organizations and organs that make up Soviet
society. In the case of the Test Ban at least, there was public
identification of all the chief members of the leadership group,
including the military, with the adoption of the Treaty. In the
two months following the signing of the Treaty, it was applauded
by major government and party leaders, all of whom stressed the
unanimity of approval. There were public statements reprinted
in the newspapers and speeches on the floor of both houses of the
Supreme Soviet and in their Foreign Relations Commissions.
Especially significant in the Soviet Union were the appearances
of leaders at public ceremonies connected with the Treaty.¹¹⁴

¹¹² [1963] JOHN F. KENNEDY, PUBLIC PAPERS OF THE PRESIDENTS 599, 602 (1964); 15 CURRENT DIGEST OF THE SOVIET PRESS, No. 30, Aug, 21, 1963, at 3 (Pravda, July 26, 1963; Izvestia, July 27, 1963).

¹¹³ Cf. N. KHRUSHCHEV, KHRUSHCHEV REMEMBERS 256 (1970) (on "collective sentencing" in Stalin's post-war purges):

> In those days when a case was closed — and if Stalin thought it necessary —
> he would sign the sentencing order at a Politbureau session and then pass it
> around for the rest of us to sign.

¹¹⁴ See 15 CURRENT DIGEST OF THE SOVIET PRESS, No. 39, Oct. 23, 1963, at 19 (Pravda, Sept. 26, 1963); id. No. 31, Aug. 28, 1963, at 4-7 (Pravda and Izvestia, Aug. 4, 1963) (Statement of Soviet Government criticizing China for failure to adhere: "When Communists ... oppose the treaty ... this cannot but provoke justified astonishment" [p. 5]); id. No. 30, Aug. 21, 1963, at 3-4 (Pravda, July 27, 1963; Izvestia, July 28, 1963) (account of official approval of Treaty by Conference of First Secretaries of Central Committee of Communist and Worker's Parties and Heads of Government of Warsaw Treaty States); id. No.

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Whatever their personal views, leaders who are identified with a treaty will have strong political motives for supporting strict compliance. For their own political careers and the fortunes of their party or faction will to some degree be related to the success of the treaty and the policies underlying it.

### E. *The Sum of the Parts*

Consensus, concession, and commitment are all interrelated. If the required consensus has been achieved, leaders across the spectrum of parties or factions will have been brought to some degree of public commitment to the treaty. Likewise, the purpose of concessions, like those made to the Test Ban skeptics, is not only to silence opposition. They are meant to induce leaders who might be expected to oppose the treaty to crawl out on the limb of public commitment with the proponents. These forces have operated in every treatymaking exercise of recent years. It is hard to see how a major arms control agreement could be concluded between the United States and the USSR without allowing them full play. The consequence is that both states will embark on the treaty regime with a powerful built-in propensity towards compliance, towards making it work.

If this analysis is sound, it should quiet one of the principal fears that has dominated popular discussion of disarmament: the possibility that a party might enter into a treaty in a preconceived plan to gain advantage by secret noncompliance while the other party, its suspicions lulled, remains subject to treaty constraints. It is simply not possible to carry out a complex and extended bureaucratic and political operation of the kind described above on a foundation of pervasive dissimulation.¹¹⁵ There may be a faction, more or less powerful, entertaining such a secret plan. Or, as in the United States under the Test Ban Treaty, a group may be charged with maintaining readiness to terminate and with reevaluating periodically the consistency of the treaty with the national interest.

But such plans or evaluations cannot be translated directly into concrete action inconsistent with the treaty. For that, a new round of bureaucratic maneuvering and political bargaining will be necessary to dismantle the old consensus, undo the old commitments, and substitute new ones. In other words, once the treaty

35, Sept. 25, 1963, at 30 (Izvestia, Sept. 1, 1963); id. No. 31, Aug. 28, 1963, at 7-8 (Pravda and Izvestia, Aug. 6, 1963).

¹¹⁵ This statement must, no doubt, be qualified for periods of highly concentrated one-man rule in the Soviet Union, as in Stalin's last two decades. *But cf.* ALLISON 238.

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is adopted, violation cannot occur as part of a preconceived plan, but only as a result of a new decision, itself the outcome of complicated and wide-ranging governmental interplay.

### III. ORGANIZATIONAL CONSTRAINTS ON BREACH

#### A. *Parkinsonian Virtues*

Max Weber lays it down that one of the defining characteristics of bureaucracy is legalism — administration in accordance with detailed rules having either directly or mediately the force of law.¹¹⁶ It is not just that individual bureaucrats, like their fellow men, admit the obligation or indulge the habit of obedience to law.¹¹⁷ Rules are the integument that makes it possible to coordinate the fragmentary tasks and specialized functions of many people in a large organization. Admittedly, some of Weber's successors may stress the operation of rules as communications or as a basis for coordinating expectations,¹¹⁸ rather than as legal or prescriptive norms. And we are learning about informal arrangements within organizations by which the strictures of prescription may be meliorated.¹¹⁹ But when all is said and done, popular and scholarly judgments agree: rules and regulations are of the essence of bureaucracy.

When a formal arms control agreement is adopted, it becomes just such a rule for the officials of the affected agencies. It not only creates obligations internationally, but acts as an internal directive (with the force of law in the United States)¹²⁰ against certain kinds of government action. The very promulgation of a formal prohibitory rule, validated by the political processes of the state, works to unify bureaucratic views, settle old arguments, and foreclose options. “An administrative mechanism,” said Henry Kissinger, “has a bias in favor of the *status quo*, however arrived at.”¹²¹ Once the treaty goes into effect, all the classical defects of bureaucracy become virtues from the point of view of arms control. Rigidity; absence of imagination, initiative, or

¹¹⁶ See, e.g., M. WEBER, ESSAYS IN SOCIOLOGY 196 (H. Gerth & C. Mills transl. 1958).

¹¹⁷ See Fisher, *Internal Enforcement of International Rules*, in DISARMAMENT: ITS POLITICS AND ECONOMICS 99 (S. Melman ed. 1962). Fisher argues that the law-abiding propensities of officials as individuals should be harnessed for treaty enforcement by “weav[ing] international obligations into the domestic law of each country.” *Id*. at 100.

¹¹⁸ See, e.g., A. DOWNS, *supra* note 41, at 59-61; T. SCHELLING, *supra* note 4, at 53-80 (1960).

¹¹⁹ See A. DOWNS, *supra* note 41, at 61-65, 113-16.

¹²⁰ U.S. CONST. art. VI.

¹²¹ H. KISSINGER, NUCLEAR WEAPONS AND FOREIGN POLICY 432 (1957).

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936

creativity; unwillingness to take risks; operation by the book — all are enlisted in aid of compliance with the agreement.

This general effect of the agreement as a rule of law aligning typical bureaucratic behavior patterns in support of its provisions is reinforced by a number of more specific modifications that the agreement brings about in decisionmaking on military issues.

First, courses of action involving the violation of a significant arms control agreement ordinarily will not be on the menus of strategic options generated by military and technical planners for presentation to their superiors. This inhibition can occur even without a formal agreement. After President Eisenhower proclaimed a moratorium on nuclear testing in 1958, the AEC and Defense Department sharply reduced what had been a routine activity: cranking out test plans and programs. It was no longer very profitable, from an agency viewpoint or in terms of the career line of an official, to sit around thinking up ideas for interesting weapons tests or planning their execution. As a result, when the USSR resumed atmospheric testing in September 1961, the United States was not ready to respond in kind. It took six months just to complete the physical preparations. But even when the logistics were all worked out, no significant tests and experiments had yet been developed. The tests that were actually carried out were not very productive for purposes of science or weapons technology 122 — they were essentially political.

To make the same point in a contemporary context, under the Test Ban Treaty, it is unlikely that there has ever been a conscious decision by the United States Government on the question whether to conduct full scale atmospheric tests. With the Treaty in effect, there is simply no occasion for gearing up the elaborate paraphernalia of national security decisionmaking to consider the issue. And even if some zealous official 123 were to press the point, he would stand little chance of picking up the bureaucratic support necessary even to precipitate a decision at the policy level, let alone to secure ultimate approval of action amounting to treaty violation. Absent serious indications of breach by the treaty partner or some fundamental change in the political setting, the issue, in all probability, will simply not arise.

122 See H. JACOBSON & E. STEIN, *supra* note 55, at 283; *Hearings, supra* note 99, at 121-22. *But cf.* A. SCHLESINGER, *supra* note 31, at 455-57, who implies there might have been technical reasons for testing.

123 Cf. A. DOWNS, *supra* note 41, at 92-111. Downs makes "zealots" one of five major categories of bureaucratic officials. They continue pushing for their pet projects regardless of political realities. Sometimes, like Admiral Rickover, they win.

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Second, although the treaty will be directed at a reasonably well understood range of undesired conduct, it will tend, as well, to inhibit activities in a kind of penumbra surrounding that core. A zone of doubtful conduct may arise because the agreement establishes what Professor Roger Fisher calls "a precautionary rule," that is, "a rule some distance back from the interest we are trying to protect, so that a breach of the rule does not necessarily offend that interest."¹²⁴ Or the penumbra may result from the familiar failure to define precisely enough, either from inability or political necessity, the prohibited conduct. For example, how will an agreement prohibiting or limiting ABM deployment affect air defense systems? A new surface-to-air missile system designed to cope with high flying, high speed aircraft would undoubtedly have powerful, agile radars and high performance interceptors. It would be designed to operate automatically, without human intervention. The line between such an air defense system and ABM is very thin.¹²⁵ One could expect this particular penumbra to be of intense interest both to officials concerned with maintaining the treaty regime and to those whose main concerns were elsewhere. Similar doubtful areas might arise with respect to replacements and spares under a ceiling on strategic missiles.¹²⁶ Examples could be multiplied.

In general, as long as the treaty regime remains viable, there will be some tendency to maintain a distance from the line demarking the prohibited conduct. An official will have little incentive to stick his neck out by taking responsibility for an action that may become the basis for a charge of treaty violation. Political leaders will be wary of going so close to the line as to risk undermining the adversary's confidence in the treaty relationship or having to accept the onus for breakdown. There may be also a reciprocal reluctance to insist on strict compliance from the other party if the fundamentals of the treaty regime are not threatened.

However, the pressures surrounding the penumbra are not all one way. "The very meaning of a line in the law is that anyone may get as close to the line as he can if he keeps on the right side." ¹²⁷ In fact, this view finds expression in the Soviet strict constructionist doctrine, which holds that a government is bound

¹²⁴ Fisher, *supra* note 117, at 107.

¹²⁵ This passage draws on material prepared by Dr. J. P. Ruina for the Carnegie Endowment study described in note * supra*.

¹²⁶ See T. SCHELLING & M. HALPERIN, *supra* note 1, at 109-10.

¹²⁷ Louisville & N.R.R. v. United States, 242 U.S. 60, 74 (1916) (Holmes, J.).
*See* Superior Oil Co. v. Mississippi *ex rel.* Knox, 280 U.S. 390, 395-96 (1930) (Holmes, J.).

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only to the extent of its express consent.¹²⁸ Also, the combination of a core of clearly prohibited conduct and a more doubtful surrounding penumbra may sometimes provide a tempting setting for feints and probes, and may even accelerate collapse of the treaty regime if it begins to show signs of sagging vitality.

Some of the complexity involved in the interplay of these various conflicting pressures can be seen by comparing the course of underground testing after the adoption of the Test Ban Treaty with that of the Plowshare program.

The United States and the USSR have each continued to conduct underground weapons tests. Some of these have "vented," that is, released radioactive debris. Although the Treaty prohibits any nuclear explosion causing "radioactive debris to be present outside the territorial limits of the State"¹²⁹ conducting it, radioactive matter from some of these tests has been detected outside the boundaries of the testing State. These incidents have been the subject only of rather low-key diplomatic exchanges, largely, it would appear, for the record. Neither side has made them a serious issue, and it seems likely that absent a comprehensive test ban, similar events will continue to occur.¹³⁰

The Plowshare story was somewhat different. At the time of the ratification of the treaty, the AEC had been planning an extensive series of tests designed to develop nuclear devices for excavation and earth moving. Although the devices were to be exploded well below the surface of the earth, the tests were designed to produce craters.¹³¹ Large quantities of radioactive debris would necessarily be released, and at least some debris would have been dispersed in the atmosphere,¹³² possibly to drift beyond the limits of national territory.

As a technical matter, there were ways of construing the Treaty to permit these tests to continue. It might have been argued, for example, that "radioactive debris" meant only fallout potentially dangerous to health, and that the Plowshare experiments would involve essentially "clean" devices. And as we have seen, AEC Chairman Seaborg testified that this aspect of Plow-

¹²⁸ See, e.g., Berman, *Law as an Instrument of Peace in U.S.-Soviet Relations*, 22 STAN. L. REV. 943, 950-52 (1970); cf. TRISKA & FINLEY 411.

¹²⁹ Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5, 1963, art. I, § 1(b), [1963] 14 U.S.T. 1313, T.I.A.S. No. 5433, 480 U.N.T.S. 43 (effective Oct. 10, 1963).

¹³⁰ For a summary of the experience through 1968, see CHAYES, ENRLICH & LOWENFELD 1039-44. The record has since then been supplemented most publicly by the Cannikin test at Amchitka on November 6, 1971. See N.Y. Times, Nov. 7, 1971, at 1, col. 8.

¹³¹ 1962 AEC ANN. REP. 241, 244-53.

¹³² 1963 AEC ANN. REP. 211.

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share would not be completely curtailed by the Treaty.¹³³ In fact, however, the United States Government has not taken the same attitude toward international venting from Plowshare tests as from weapons tests. Only a few of the smallest events in the series were authorized. The schedule was stretched out and the planned test program was never completed.¹³⁴

Third, there will be greater caution both in evaluating and in responding to intelligence reports of military activity on the other side. Interpretations of ambiguous adversary actions relating to the subject matter of the treaty will be more careful and qualified. Absent an agreement, we saw that there is a strong tendency to resolve these doubts on the most pessimistic basis. The essential premise of worst-case analysis is that nothing is lost by assuming the worst. Indeed, there may be no very sharp incentive to press hard for additional information that would clarify the ambiguity. With a treaty in effect, these presumptions are offset, if not reversed. Intelligence chiefs and their clients will need persuasive evidence before taking responsibility for even an internal charge that the other side has violated the agreement, especially when the top leaders are politically committed to the treaty regime.¹³⁵ In effect, the treaty has raised the signal/noise threshold. This may cost something in timeliness of response, if it turns out on further investigation that the ambiguous activity is really signal. But if, as in the overwhelming majority of cases, it is noise, the agreement will have tempered unduly alarmist interpretations.

The elevation of the signal/noise threshold affects not only the interpretation of intelligence about adversary activity but, perhaps more important, the decision whether to respond. In the absence of an agreement, it is relatively easy to move from the premise that the other side is or might be doing something to the conclusion, or at least the argument, that some sort of response

¹³³ Hearings, supra note 99, at 211. See also note 106 supra.

¹³⁴ At present writing, the idea of using atomic devices for engineering activities at or near the earth's surface seems to have been abandoned in the United States. See Hearings on AEC Authorizing Legislation FY 1972 Before the Joint Comm. on Atomic Energy, 92d Cong., 1st Sess., pt. 4, at 2345, 2889, 2891 (1971). The demise of the program seems to be attributable primarily to infeasibility rather than to any zeal in enforcing the Test Ban Treaty. It remains true, however, that in the months immediately after the Treaty was adopted, the momentum of the program was significantly arrested by the penumbral effect. Soviet interest in these activities, however, may well be increasing. Werth, The Soviet Program on Nuclear Explosives for the National Economy, II NUCLEAR TECHNOLOGY 280 (1971).

¹³⁵ Cf. ALLISON 190-92. He argues that one of the factors in the tepid reaction of the CIA in Washington to their absent Director's suspicions about missiles in Cuba in September 1962 was that "[w]hat the President least wanted to hear, the CIA found it difficult to say plainly." Id. at 190.

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is indicated, usually in kind. It is not so easy to pursue this chain of argumentation if an agreement is in effect. At a minimum, it is much more difficult to act without asking the other side to clarify its conduct. The pressure for consultation would be almost irresistible.¹³⁶ The terms of the treaty may contain provisions to this effect.¹³⁷ Even without them, as noted above, the United States and the Soviet Union have pursued the course of diplomatic exploration in connection with the venting incidents under the Test Ban Treaty.

Resistance will be particularly acute where the proposed response is itself an action prohibited by the agreement, for that would risk destruction of the treaty regime, which in turn would require a major readjustment of relations with the adversary. Apart from any question of sanctions that might attend such action,¹³⁸ the existing state of affairs may be desirable on its own merits. The bureaucratic "bias in favor of the status quo" and leadership commitments will tend to overstate rather than disparage this value. A powerful combination of inertial forces will thus be arrayed against such a step, unless the evidence is pretty clear that the adversary has already taken it, or unless circumstances have changed so drastically as to induce a fundamental reappraisal of the bilateral relationship.

Fourth, each of the factors discussed above exemplifies a more general point: any actions that raise substantial questions of compliance or treaty interpretation are likely to be referred to higher authority for decision rather than handled as a matter of organizational routine. This alone could be significant in braking what we have called technological drift in systems within the ambit of the treaty.

In general, the higher the level of decision, the wider the consultation within the government. Agencies and officials with a strong stake in treaty compliance are more likely to get an opportunity to rally their forces, to be heard, and to appeal an adverse decision. A decision at the policy level will be taken in a broader perspective, with greater likelihood of attention to political considerations and questions of values, as well as to purely military and technical factors. The chief of government

136 Even in the Cuban missile crisis, where no breach of a treaty was involved, a considerable body of respectable opinion thought the President should have confronted the Soviets privately with his evidence before taking action. See E. ABEL, THE MISSILE CRISIS 157-58 (1966); Lippmann, *Blockade Proclaimed*, Wash. Post, Oct. 25, 1962, at A25, col. 1.

137 See, e.g., Draft Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof, art. III, G.A. Res. 2660 (xxv).

138 See pp. 956-61 *infra*.

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and his principal associates, as we have seen, are likely to have a
strong political commitment to the agreement, certainly in the
early stages when precedent and practice are being established.
They will thus resist courses of action that may seem to erode or
undermine the treaty regime. Decisions at these levels will in
any case tend toward caution, because these officials will be more
sensitive to the costs of a breakdown of the treaty and the difficulty
of controlling events thereafter.¹³⁹

Again, the Plowshare program, post-Test Ban, is illustrative. A high-level committee was organized to consider AEC proposals for Plowshare tests. The Special Assistant to the President for National Security Affairs was Chairman, and the State and Defense Departments, the AEC, the Arms Control and Disarmament Agency, the Office of Science and Technology, and perhaps others were represented. The committee acted on a case-by-case basis, taking into account not only the technical characteristics of the proposed explosion and its significance in the AEC program, but a multitude of other considerations, including the prevailing winds, both climatic and political.¹⁴⁰ In the end, as noted above, very few Plowshare tests were conducted.

Fifth, both the United States and the Soviet Union are
operating under severe and probably intensifying budget con-
straints. An arms control agreement provides an easy way of
identifying programs that can be eliminated as candidates for
funds, not only at the stage of deployment, but for research and
development as well. It is not easy to apportion limited R & D
funds to systems whose prospects for deployment, even if the
technical problems can be solved, are dim. And it is not easy for
scientists and engineers to get overly excited about working on
such projects.

Again, the history of the Test Ban Treaty may provide an
illustration. It will be recalled that the President personally
undertook to maintain readiness to resume atmospheric testing
in the event of Soviet breach or withdrawal. In the first fiscal
year after the ratification of the Treaty, there was a substantial
appropriation to maintain the Pacific test areas and to keep a
task force in readiness. These amounts have slowly dwindled.
At present there is no substantial United States capability in being
for the resumption of atmospheric or underwater tests.¹⁴¹

139 Cf. ALLISON 128-32, 212, on the sensitivity of both President Kennedy and Premier Khruschchev to the possibility of events getting out of hand in the Cuban missile crisis.

140 See 2 CHAYES, ERHLICH & LOWENFELD 1038-39.

141 Amounts budgeted for maintenance of standby atmospheric test capability dropped from $82.9 million in FY 1964 to $15.6 million in FY 1969. SIPRI

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Maintenance of the weapons laboratories was the subject of an additional presidential assurance. This undertaking has fared rather better than that on testing readiness.¹⁴² The reason is that the underground test program has provided a practical outlet for the work of the laboratories.

Nothing said here should be taken as suggesting that arms control agreements can be expected to lead of their own force to substantial cuts in overall military expenditures. The iron law that every organization strives to maintain or increase its budget will continue to operate on the military establishment in both the United States and the USSR. Forces and systems outside the scope of the agreement will be more heavily worked to take up the slack. For example, there has been no difficulty in carrying out the presidential assurance to continue a vigorous program of underground tests. As of 1970, the rate of United States underground testing had mounted from about six per year before the Treaty to thirty-three per year.¹⁴³ Diversion of significant resources from military ends will, in all likelihood, require separate and explicit political decision.

## B. White Collar Crime

Thus far we have been considering how the structure and procedures of government bureaucracies constrain action in breach of an arms control agreement. These same characteristics will condition the nature and form of a departure from treaty obligations if that should occur. In general, they tend to minimize the possibility of successful clandestine technological development culminating in a sudden, unexpected, and quasi-decisive breakthrough.

YEARBOOK 68/69, at 255. The Institute's summary of total obligatory authority in millions of dollars for the four safeguards in the same period, by fiscal years, is as follows:

<table><thead><tr><th>Safeguard:</th><th>1964</th><th>1965</th><th>1966</th><th>1967</th><th>1968</th><th>1969</th></tr></thead><tbody><tr><td>1. Conduct of underground testing</td><td>10.9</td><td>21.2</td><td>37.7</td><td>39.9</td><td>37.8</td><td>42.9</td></tr><tr><td>2. Maintenance of laboratory facilities and programmes</td><td>55.1</td><td>55.8</td><td>56.8</td><td>53.6</td><td>61.0</td><td>69.6</td></tr><tr><td>3. Maintenance of stand-by atmospheric test capability</td><td>82.9</td><td>72.4</td><td>33.7</td><td>24.5</td><td>22.7</td><td>15.6</td></tr><tr><td>4. Monitoring of Soviet activity</td><td>97.8</td><td>111.9</td><td>110.6</td><td>106.7</td><td>110.2</td><td>99.8</td></tr><tr><td>Total</td><td>245.6 [sic]</td><td>261.3</td><td>238.8</td><td>224.7</td><td>231.7</td><td>227.9</td></tr></tbody></table>

Id.

¹⁴² See note 141 *supra*.

¹⁴³ See SIPRI YEARBOOK 69/70, at 386.

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Bureaucratic behavior is "an enactment of preestablished routines."<sup>144</sup> The hardest thing for a government organization to do is something it has never done before. Moreover, before a new weapon can be effectively used for political or military advantage, it must gain the confidence of government leaders. Achieving this kind of operational system requires extensive research and development, confidence testing, the establishment of reliable production patterns, training of crews, and the like.<sup>145</sup> All this needs patience, a great deal of room for trial and error, and above all, time — running on the order of a decade or more for every new post-World War II strategic weapons system.<sup>146</sup>

These requirements vastly increase the difficulty of keeping the weapons program secret, particularly with today's sophisticated surveillance technology.<sup>147</sup> If the development process is shortened in the interest of secrecy, on the other hand, there will be heavy costs in the form of decreases in the reliability of the weapon and in the confidence that leaders will place in it.

The kinds of violation that might be within the reach of bureaucratic capacities are less fearsome. If it is hard for governments secretly to mount something really new in the weapons field, it is a good deal easier to resume activities that have been done before and stopped. Old routines and operating procedures can be revived. There may be people around who participated in and remember the earlier programs. Still, under forced draft and without the constraint of concealment, it took the United States six months from a standing start to resume atmospheric testing in 1962 after a moratorium of only four years. It is true that the Soviets were able to conceal their preparations for atmospheric testing in 1961 for what must have been at least a comparable period, but this was at a time when the U-2 was blind and mostly before the advent of effective satellite reconnaissance.<sup>148</sup>

Easiest of all is to replicate existing activities at a higher rate or in a new setting. Thus, it should be possible without great organizational or bureaucratic strain to pierce an agreed ceiling on an existing weapons system. At most, what will be involved is the implementation of existing action patterns in somewhat

<sup>144</sup> ALLISON 81.

<sup>145</sup> This passage draws on material prepared by Dr. J. P. Ruina for the Carnegie Endowment study described in note * supra.

<sup>146</sup> Hearings on Department of Defense Appropriations for 1966 Before the Subcomm. on the Dept of Defense of the House Comm. on Appropriations and the Senate Comm. on Armed Services, 89th Cong., 1st Sess., pt. 1, at 132 (1965) (statement of Sec'y of Defense McNamara).

<sup>147</sup> See pp. 951-53 *infra*.

<sup>148</sup> See Greenwood, *supra* note 31, at 14, 77-82.

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novel ways to provide camouflage or other deceptive measures
during the period in which secrecy is desired.¹⁴⁰

This reasoning suggests that there is a real difference in reliability between, to take a current instance, a zero ABM treaty and one that imposes a low ceiling of several hundred interceptors, as has apparently been proposed by the United States in the strategic arms limitations talks.¹⁵⁰ A ceiling of 200-300 ABM's would provide no significant defensive capability.¹⁵¹ But it would permit either side to develop and test weapons, radars and computers, to get production lines running and the bugs worked out, to train field crews and develop operational routines, to work on maintenance and reliability problems. Clandestine violation — or what is a more likely eventuality, rapid expansion upon withdrawal from the treaty — is simply a matter of extrapolating the existing procedures. By contrast, it is almost impossible to conceive either a secret or a speedy development of an operational ABM capability from a zero base.

What experience we have, although it is hardly more than
analogous and must be treated with great caution, tends to bear
out these hypotheses. Professor J. P. Ruina summarizes that
experience as follows:¹⁵²

We have been surprised by the continued production and extent
of deployment of certain Soviet weapons systems such as the SA2
and the SS-9 though we knew of the original deployment. We
have sometimes been surprised by a quick geographic redeploy-
ment of existing weapons systems, as was the case of SA3 de-
ployment in Egypt. SA2 and SA3 deployments in the Suez zone
and the IRBM's in Cuba. But it is very important to note that we
have always had ample notice of the deployment of important
components in the Soviet arsenal before they developed any

149 Even the limited departure from established routines required to camouflage the Cuban missile emplacements seems to have been beyond the capabilities of the Soviet Strategic Rocket Forces units that installed them. See ALLISON 110-11.

150 N.Y. Times, Feb. 10, 1972, at 20, col. 4 (message by President Nixon on the State of the World).

151 The statement is strictly true only of an ABM system of 200-300 interceptors defending land-based ICBM's, like the United States Safeguard system. In a heavy attack, it could easily be overwhelmed; a light attack would be against cities, not retaliatory forces; and a missile accidentally discharged is unlikely to be pointed at North Dakota or Montana. A similar system defending a specially valued target, like the Soviet Moscow system, might, if it worked, have some utility in protecting against an accidentally fired missile, or in causing a light attack to be diverted to other targets.

152 A. Chayes, G. Rathjens & J. Ruina, Preliminary Draft of Study on Nuclear Arms Control, Feb. 19, 1971 (unpublished manuscript prepared in connection with Carnegie Endowment Study described in note * supra ). The quoted material was prepared by Dr. Ruina.

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meaningful operational capability. For example Soviet early warning radars and the Moscow ABM were known to the U.S. almost from the day construction of these weapons systems was started, and many years before any operational capability was realized. Full scale Soviet multiple warhead tests were observed in the Pacific before any meaningful operational capability existed for the Soviet Union. The U.S. knew of important Soviet aircraft from the time of their early flights.

#### IV. THE ENFORCEMENT MACHINERY

A third set of factors inducing compliance with arms control agreements derives from the mechanisms by which it is expected that violations will be detected and sanctions applied. Both policy pronouncements and scholarly analysis have focused almost exclusively on this group. Thus, a cardinal point of United States arms control doctrine has been "no disarmament without inspection and control." This theme, first struck in 1945 in the Baruch-Lilienthal plan for international control of atomic energy,¹⁵³ was endlessly repeated in the policy statements of the 1950's and 1960's.¹⁵⁴ It has been the one point of convergence between the skeptics, who insist on copper-riveted guarantees of Soviet compliance in any agreement to be signed by the United States, and the idealists, who see the development of international institutions for verification of disarmament agreements as a first step on the road to world government.

There is an immense literature on "verification and enforcement" of arms control agreements.¹⁵⁵ For the most part, it concerns itself with the technical problems of detecting violations; it contains little systematic consideration of how an inspection system, whatever its effectiveness, will work to insure compliance with treaty norms.¹⁵⁶ The premise seems to be that the rational

153 [1945] HARRY S. TRUMAN, PUBLIC PAPERS OF THE PRESIDENTS 474-75 (1961); 1 [1945-59] DOCUMENTS ON DISARMAMENT 11, 145-54 (1960).

154 See, e.g., [1958] DWIGHT D. EISENHOWER, PUBLIC PAPERS OF THE PRESIDENTS 635 (1959); 1 [1945-59] DOCUMENTS ON DISARMAMENT 414, 501, 626, 698 (1960); 2 id. 839, 1111, 1392; [1960] DOCUMENTS ON DISARMAMENT 33, 153 (1961); [1964] DOCUMENTS ON DISARMAMENT 7-8 (1965).

155 See generally 1-7 LIBRARY OF CONGRESS, ARMS CONTROL AND DISARMAMENT: A QUARTERLY BIBLIOGRAPHY WITH ABSTRACTS AND ANNOTATIONS under the subheading "Violation, inspection, verification and enforcement of agreements." A representative group of studies includes INSTITUTE FOR DEFENSE ANALYSIS, VERIFICATION AND RESPONSE IN DISARMAMENT AGREEMENTS (1962); S. MELMAN, INSPECTION FOR DISARMAMENT (1958); WESTINGHOUSE ELECTRIC CORP., INSPECTION AND VERIFICATION TECHNIQUES AND REQUIREMENTS (1964).

156 The vast majority of the more than 100 works listed in the QUARTERLY BIBLIOGRAPHY, *supra* note 155, in the past six years have been technical in nature, often explaining and critiquing recently devised inspection techniques. *Iklé, After*

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actor will disregard the agreed limitations when and as he can do so with impunity. And he can do so with impunity if he can arrange things so that he will not be found out. The operation of an arms control agreement is seen as a running duel between the "bad man" and the forces of detection, a kind of computerized game of cops and robbers.

This formulation of the verification issue dominated the dis-
armament and test ban debates of the 1950's and early 1960's.157
It created a gamesman's paradise. The onus of devising a fool-
proof verification system was on the treaty proponents. The
opposition's task was only to demonstrate how each proposed
control scheme could be spoofed or evaded. If they could show, or
even plausibly argue, that some nuclear tests could be performed
without being detected by the proposed system, the round was
over. Back to the drawing board. The debate ground on in a
series of increasingly arcane, quasi-mathematical interchanges
— about the detectability of explosions in huge but hypothetical
underground caverns, for example, or on the other side of the
moon. No doubt all this added to the sum of human knowledge,
but the effect was to stack the cards decisively against an agree-
ment.

So obsessive was the concern with verification that basic
strategic considerations were disregarded or undervalued. For
example, it would seem that a fundamental question for the
United States in the late 1950's was whether its lead in weapons
technology would be eroded more quickly under a continuation
of unrestricted testing or under a treaty banning testing that
afforded some possibilities for undetected violation underground.
This issue managed to escape public discussion almost entirely.
As it turned out, during the five-year period of active negotia-
tions the Soviets made significant relative gains in knowledge
about high yield weapons and weapons effects by conducting
atmospheric tests that were readily detectable.158 If a compre-
hensive test ban had been in effect during this period, and if the
Soviets had contrived to continue underground testing without
being discovered, they still could not have made comparable gains.
Thus even on the assumption of Soviet "cheating," the United

*Detection* — *What?*, 39 *FOREIGN AFFAIRS* 208 (1961), agrees with the proposition in the text but does little to remedy the lack. *But cf.* T. SCHELLING & M. HALPERIN, *supra* note 1, at 91-106.

157 See H. JACOBSON & E. STEIN, *supra* note 55, at 75-79, 188-95, 198-200, 262, 288, 368, 432-33, 438. Indeed, intensive negotiations on a test ban began with the 1958 Conference of Experts in Geneva, which was directed entirely to the verification question.

158 *Id.* at 341-42.

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States would have been better off with a treaty than without it.¹⁵⁹

As the foregoing example shows, the preoccupation with detection is at odds with the premises of strategic analysis. The rational actor contemplating violation would have to evaluate not one, but three factors. In addition to the possibility of getting caught, he would have to assess the gains to be expected from successful violation and the losses to be expected in case of discovery. It is only by integrating all three factors in a single cost-benefit analysis that the “bad man” would reach his decision. This section first explores some of the implications of this more comprehensive rational calculus, then examines it in the real-life setting of bureaucratic and political interplay that is our principal theme.

### A. Crime and Punishment

1. **Gains.**—United States practice, if not doctrine, is consistent with the position that need for special verification and enforcement arrangements depends on the magnitude of the gains a violator might expect to achieve. The greater the possible gain, the greater the need for such arrangements. For example, the Non-Proliferation Treaty has an elaborate safeguards program, the most highly developed verification system to be established in an arms control agreement since World War II.¹⁶⁰ And properly so. The development of even a small nuclear capability by some presently nonnuclear power would represent a radical change in the local military balance, and might even afford wider opportunities for mischief. Such a capability could be readily achieved by withdrawing small amounts of nuclear material from peaceful installations.

By contrast, the Outer Space Treaty contains no special provisions for inspection and enforcement of the ban on weapons in

159 A comparable situation seems to hold true in the field of strategic arms limitation. When President Johnson first proposed a freeze in January 1964, [1963-64] LYNDON B. JOHNSON, PUBLIC PAPERS OF THE PRESIDENTS 171-72 (1965), the Soviets had only about 200 ICBMs to about 800 for the United States; they had no nuclear submarines and the United States had over 400 submarine-launched missiles. SIPRI YEARBOOK 69/70, at 41, 43. Neither side had MIRV's or ABM's. Eight years later, as an agreement begins to seem likely, the USSR has closed much of that gap. One might have expected the Soviets to hang back in such circumstances, but it is hard to explain the United States' lack of enthusiasm.

160 Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, art. III, [1968] 21 U.S.T. 483, 487-88, T.I.A.S. No. 6839 (effective March 5, 1970); see A. MCKNIGHT, ATOMIC SAFEGUARDS: A STUDY IN INTERNATIONAL VERIFICATION 66-81, 86-89, chs. vi-xi (1971). It should be noted that the safeguard provisions apply only to "non-nuclear-weapon[s] State[s] Party" to the Treaty, thus excluding the United States and the USSR from their scope.

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orbit;¹⁶¹ and the United States, at least, has no unilateral capability for reliably detecting individual violations.¹⁶² It is generally agreed, however, that “bombs-in-orbit” is not very promising from a military viewpoint.¹⁶³ Problems of coordinating and synchronizing the attack are much greater for weapons launched from orbit than for those launched from land bases or submarines, which are fully within the physical control of the attacking forces. And there seems to be no compensating advantage. This absence of significant potential gain seems itself to have been regarded as sufficient assurance of compliance.¹⁶⁴

The relation of special verification requirements to the magnitude of the gains to be anticipated from the treaty has special significance in connection with the proposed freeze on strategic weapons and other measures that have been discussed in the strategic arms limitation talks. As has already been said, the bilateral strategic situation between the United States and the USSR is at present one of very stable balance. Even without a treaty, there seems to be little either side can do to gain sig-

161 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, art. IV, [1967] 18 U.S.T. 2410, T.I.A.S. No. 6347 (effective Oct. 10, 1967).

162 Greenwood 58-60, 107. It is generally agreed that it would be possible to detect the emplacement of the considerable number of such weapons that would be necessary, in any view, for the tactic to be significant.

163 The Soviets have tested a fractional orbital bombardment system (FOBS), in which the missile is launched into orbit, but is designed to be depressed from the orbit and fired at the target before it has made one circuit of the earth. See *Hearings on Strategic and Foreign Policy Implications of ABM Systems Before the Subcomm. on International Organization and Disarmament Affairs of the Senate Comm. on Foreign Relations*, 91st Cong., 1st Sess., pt. 1., at 278 (1969). It is not clear whether they have deployed this system. *Id. But cf. H. YORK, supra note 45, at 231.* Nor is there much more than speculation as to how it would be used. See Wiesner, *Some First Strike Scenarios*, in CHAYES & WEISNER 70-72; RUINA, *Aborted Military Systems*, in IMPACT OF NEW TECHNOLOGIES ON THE ARMS RACE 304, 309 (B. Feld et al. eds. 1971). It is apparently considered that the weapon does not violate the Treaty. See *Hearings on ABM, MIRV, SALT, and the Nuclear Arms Race Before the Subcomm. on Arms Control, International Law and Organization of the Senate Comm. on Foreign Relations*, 91st Cong., 2d Sess. 264-65 (1970).

164 The Draft Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof, G.A. Res. 2660 (XXV), is essentially similar. The tactic does not promise advantages over submarine-launched missiles sufficient to compensate for the loss of positive control. The original US/USSR draft provided for verification by national means. [1969] DOCUMENTS ON DISARMAMENT 473, 474 (1970). A Canadian amendment adopted in the late stages of consideration, however, provides that if, after consultation to clarify any ambiguities, a party still doubts the character of a seabed structure, it may inspect it.

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nificant military advantage over the other.¹⁶⁵ Thus, an agreed freeze on strategic deployments at present levels would be an agreement in which the military gains that could be expected from even large scale undetected violations would be very small. It would seem to follow that the need for special verification arrangements is minimal and that this issue should not become a problem in the negotiations.

— It may be objected that the paucity of prospective gains has not prevented competitive deployments over the past decade. As has been seen above, however, absent a treaty limitation, normal bureaucratic and organizational forces will press for exploration and development of all possible lines of action, regardless of the immediate military advantages to be expected. The treaty operates to neutralize or reverse these forces.

2. *The Probability of Detection.* — Traditional rationalistic deterrence theory in the law of crimes or torts treats the possibility of getting caught as affecting primarily the cost side of the would-be law violator's cost/benefit analysis.¹⁶⁶ That is, he will first discount the absolute value of the applicable sanction by the likelihood that he can avoid detection (or, at least, conviction), and then weigh this result against the gains to be expected from the conduct.¹⁶⁷

Under an arms control agreement, it is the benefit side of the

165 A separate question is whether increased deployments can bring political gains apart from their military significance. The point is illustrated by the Soviet emplacement of missiles in Cuba. McNamara, with the support of Bundy, at first insisted that the Soviet move had not altered the military balance and argued for a deflating response. E. ABEL, *supra* note 136, at 51, 53; ALLISON 195-96. President Kennedy in his summary of the events some weeks later said: "It would have appeared to, and appearances contribute to reality." [1962] JOHN F. KENNEDY, PUBLIC PAPERS OF THE PRESIDENTS 898 (1962). And there is wide agreement that if the Soviets had succeeded it would have been a major political reversal for the United States. But special geographical and prestige elements were associated with Cuba. More recently, the United States has been overtaken and then surpassed by the Soviet Union in ICBM strength without any serious political reverberations. See N.Y. Times, Feb. 10, 1972, at 21, cols. 3-4 (accompanying graph to message by President Nixon on State of the World).

166 This form of crudely rationalistic analysis of deterrence is being supplanted in the face of recent empirical and theoretical work on human behavior in response to legal constraints. See, e.g., Chambliss, *Types of Deviance and the Effectiveness of Legal Sanctions*, 1967 WIS. L. REV. 703; Rose, *Sociological Factors in the Effectiveness of Projected Legislative Remedies*, 11 J. LEGAL ED. 470, 472-73 (1959); Skolnik, *Coercion to Virtue: The Enforcement of Morals*, 41 S. CAL. L. REV. 588, 624-26 (1968).

167 The proposition is not strictly true. Detection that is, or might be, good enough to catch the violator in the act—or at least in time to force him to disgorge his gains—would affect the calculation of benefits. This case is not dissimilar to the situation under an arms control agreement, discussed below.

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equation that is affected. Ultimate discovery of violation is virtually certain. Unlike the criminal who may escape with the fruits of his crime, the state cannot avoid disclosure, however successful it may be in concealing its breach. In the end, increases in military power must be translated into political terms if the benefits are to be realized. To do so the violation must be revealed. And unless what is revealed is an overwhelmingly decisive superiority over the adversary, whatever negative consequences are attendant on violation must ensue, tempered, perhaps, by admiration or fear of the success or daring involved.

The military benefits of violation, on the other hand, are in large part a function of the period for which it can be kept concealed. Given enough time, either party could equalize the force increases or technical advances of the other. The essence of the advantage to be gained by clandestine breach is that it gives the violator a head start. Discovery will reduce the head start. The probability of detection is therefore a discount factor reducing the value that can be assigned to expected gains.

If this analysis is correct, it carries an important corollary for the stability of arms control agreements in general. For any given detection system, the probability of discovery increases with the duration of the breach. Thus, the stability of a particular setting depends not only on the magnitude of the advantages to be gained by a change, but on the time needed to accomplish it. The longer it takes to achieve a fait accompli, the more the benefits must be discounted, and the less likely is the calculation to be positive. Again this view confirms the difference in verification requirements, suggested above, as between a SALT-type agreement and the Non-Proliferation Treaty. Whatever strategic advantages could be obtained from a massive shift in force levels would come only at the end of a long period of build up. A small nuclear capability, on the other hand, could be obtained quite rapidly by any moderately advanced nonnuclear power with a good-sized power reactor.

The probability of detection depends not only on the duration of the breach but on the effectiveness of the verification system. As has been noted, this is the issue that has received most of the professional and scholarly attention. For most of the 1950's, it was assumed¹⁶⁸ that an acceptable detection system must include some, and probably extensive, access to and inspection of the ter-

¹⁶⁸ See, e.g., H. Jacobson & E. STEIN, *supra* note 55, at 61, 74-79; Fubini, *Reconnaissance and Surveillance as Essential Elements of Peace*, in IMPACT OF NEW TECHNOLOGIES ON THE ARMS RACE 152, 158-60 (G. Feld et al. eds. 1971); Wiesner, *Inspection for Disarmament*, in ARMS CONTROL: ISSUES FOR THE PUBLIC 112 (L. Henkin ed. 1961).

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ritory and activity of the parties. Seeing was believing. The on-site inspection issue became a sticking point in the comprehensive test ban negotiations, giving rise to debates about the comparative efficacy of three versus seven onsite inspections and the vulnerability of unmanned seismic detectors that would have delighted the heart of any medieval scholastic.¹⁶⁹ And the issue has risen again to plague the renewed discussion of a comprehensive test ban.¹⁷⁰

In fact, no agreement actually in force provides for any kind of inspection on the territory of the superpowers.¹⁷¹ And, whatever the case may have been in the last two decades, the operational significance of onsite inspection will be drastically reduced for the future. The advent of sophisticated high-altitude photography — first from the U-2, and since 1961 by reconnaissance satellite — has added enormously to the volume and reliability of information about opposing deployments and developments that can be obtained by national means.¹⁷² Satellite reconnaissance has

¹⁶⁹ H. JACOBSON & E. STEIN, *supra* note 55, at 75, 185, 190, 432.

¹⁷⁰ Hearings on Prospects for Comprehensive Nuclear Test Ban Treaty Before the Subcomm. on Arms Control, International Law and Organization of the Senate Comm. on Foreign Relations, 92d Cong., 1st. Sess. 12-18 (1971). There was some indication that the United States opening position at the strategic arms limitation talks included a demand for onsite inspection in connection with any ban on MIRV's, but this demand appears to have been abandoned. See N.Y. Times, Nov. 27, 1969, at 7, col. 1. On the other hand, a prohibition against MIRV's does not seem to be under very active discussion either.

¹⁷¹ The Antarctic Treaty provides for free inspection of installations of the parties in Antarctica. The Antarctic Treaty, Dec. 1, 1959, art. VII, [1959] 12 U.S.T. 794, 402 U.N.T.S. 71 (effective June 23, 1961). In 1963-64, the United States conducted an inspection under these provisions without incident. See N.Y. Times, Jan. 22, 1964, at 17, col. 1. The safeguard provisions of the Non-Proliferation Treaty are discussed at p. 947 & note 160 *supra*. They do not apply to the territory of the superpowers. The exchange of letters between President Kennedy and Premier Khruschev settling the Cuban crisis provided for onsite inspection of the removal of the missiles. When Cuba demurred, the United States acquiesced in an inspection on the high seas of Soviet ships carrying the weapons. See 2 CHAYES, EHRLICH & LOWENFELD 1139-41. Suggestions within the United States government that it might agree to some inspection on its own territory as a part of an overall settlement were summarily rejected. See, e.g., E. ABEL, *supra* note 136, at 94-95.

¹⁷² Dr. J. P. Ruina catalogues a number of other "national means" of verification: press reports, public documents, statements by political leaders, normal activities of embassy personnel, including military attaches, technical literature, and exchange of unclassified scientific and technical data at meetings. A. Chayes, G. Rathjens & J. Ruina, *supra* note 152. Dr. Ruina suggests that there may be an asymmetry between United States and Soviet intelligence in terms of military information available in the press and in open technical and scientific literature. It is not clear how significant this asymmetry is or to what extent it is offset by other factors, e.g., resources devoted to intelligence. National means presumably also include the work of intelligence agents.

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been tacitly accepted as a legitimate intelligence activity, at least
by the United States and the USSR. Neither seems to regard it as
violating the rights of the observed state at international law.¹⁷³

Details of the operation and performance of reconnaissance
systems remain closely held secrets on both sides. But quite a
bit can be learned about the state of the art from the open
literature and by not very sophisticated deductions from available
information.¹⁷⁴ Each year since the late 1960's the Department
of Defense has publicly announced an accurate count of each
type of fixed land-based missile actually deployed by the Soviets.¹⁷⁵
We seem also to possess accurate knowledge of the location and
dimensions of missile silos under construction.¹⁷⁶ This suggests
that satellite cameras may be approaching their physical limit,
that is, an ability to distinguish an object on the ground six inches
to one foot in diameter with good contrast.¹⁷⁷ In addition, tele-
vision cameras can now provide real time visual reconnaissance,
although with lesser resolution.¹⁷⁸ Work is now progressing that
will permit photography by moonlight, starlight, and laser illumi-
nation.¹⁷⁹ Satellites carry an array of sensors in addition to visible
light cameras: infra red, gamma ray, X-ray sensors, radar, elec-
tronic interceptors, and the like.¹⁸⁰ Moreover, satellite recon-
naissance is coordinated with a variety of other earth-bound

173 In debates in the UN Outer Space Committee on the Outer Space Treaty, the United States, supported by the United Kingdom and others, took the position that satellite reconnaissance, like any other form of observation of a state from outside its territorial limits, violated no provision of international law. See [1962] U.N. YEARBOOK 43 (1964). Eventually, the Soviet Union withdrew its draft article banning satellite reconnaissance. See UN Doc. A/AC.105/6 at 3 (June 6, 1962); cf. [1963] UN YEARBOOK 97 (1965). And Premier Khrushchev seemed to acknowledge that such surveillance was used and useful on both sides. See T. SCHELLING, ARMS AND INFLUENCE 266 (1966). In these circumstances, it is an interesting question whether action to destroy another country's observation satellite would be consistent with the provision of the Outer Space Treaty that the launching state "is internationally liable for damage to another State Party . . . by such object." Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, art. VII, [1967] 18 U.S.T. 2410, 2415, T.I.A.S. No. 6347 (effective Oct. 10, 1967). Except for the ban on bombs in orbit, the "peaceful uses" provision of article IV of the Treaty seems to apply only to the moon and other celestial bodies, not to space itself.

174 The following account is based on Greenwood.

175 Greenwood 84.

176 *Id.* at 84-86. The recent controversy about the significance of the "big holes" in the Soviet Union openly acknowledges the availability of such information. See N.Y. Times, Oct. 11, 1971, at 1, col. 8.

177 Greenwood 68-71, 83.

178 *Id.* at 68.

179 *Id.* at 71.

180 *Id.* at 71-74, 92-97. See N.Y. Times, Mar. 2, 1972, at 24, col. 4.

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advanced systems. The battery of surveillance techniques is
much more difficult to evade than any single system would be.

This greatly increased unilateral intelligence capability rep-
resents an ability to monitor performance under an arms control
agreement and to detect violations. Greenwood's *Reconnaissance
and Surveillance Applications to Arms Control Verification*, a
recent study based entirely on the open literature, concludes:¹⁸¹

The most important arms control issues of the moment concern
the limitation of offensive and defensive strategic weapons sys-
tems. Our conclusion on this subject has been that a numerical
limitation of ICBMs, IRBMs, SLBMs, submarines themselves or
ABMs could be verified by observation satellites with a high de-
gree of confidence. If mobile, land-based ICBMs exist and are to
be included in the limit, the confidence of the verification would
be reduced somewhat. In order to discourage the deployment of
new systems qualitatively superior to current ones, an overall
ceiling could be imposed on missile tests. Such a limitation would
be most useful accompanied by a proscription that tests be pre-
announced and along a specific flight path. It could be verified
with high confidence. A prohibition against new boosters or new
re-entry vehicles could also be verified with high confidence, un-
less the change were so minor as to be unimportant or in the in-
ternal guidance systems. Distinguishing between MRVs and
MIRVs could be difficult and perhaps not very useful. However,
prohibitions against terminal maneuvering and limitations on
ballistic coefficient could be verified, although probably with
lower confidence than the restrictions previously mentioned.

It is no exaggeration to say that President Eisenhower's call for
"open skies" ¹⁸² has been more than fully realized.

Is there any need for more than this? As we have said, the
main function of verification is to deter clandestine violations of
the treaty by creating the likelihood that they will be discovered
in time to deny the gains of the head start. But even without a
treaty, national intelligence establishments are charged with get-
ting information about adversary dispositions for essentially sim-
ilar purposes: to permit a timely and effective response to the
other side's actions. Why is additional information thought
to be necessary under an arms control regime? The operation
of national intelligence is not constrained by the agreement. It
may even be that by defining and focussing what is to be looked
for the treaty will simplify the task.

¹⁸¹ *Id.* at 108.

¹⁸² [1955] DWIGHT D. EISENHOWER, PUBLIC PAPERS OF THE PRESIDENTS 715-16, 859 (1959); see Greenwood 108; cf. Levison, *Capabilities and Limitations of Aerial Inspection*, in S. MELMAN, *supra* note 155, at 59.

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The argument for more information must start from the proposition that the agreement will inhibit the party's freedom to respond to intelligence results. The very mechanism by which the treaty operates is the suppression of response to ambiguous signals. If self-help is foreclosed, so the argument runs, the party is entitled to reassurance — to clarification of the ambiguity. This must be provided by the verification mechanism of the treaty.

Can such clarification be provided by onsite inspection? What would the inspectors find? What additional information can reasonably be expected from onsite inspection? When United States experts got around to analyzing this problem in the test ban context, they concluded that the odds were very long on the inspectors being able to prove that a clandestine test had actually occurred, given the area to be searched, and reasonable constraints on time and personnel.¹⁸³ Or, to take a more obvious example, inspection of a missile may establish that it does not carry a multiple warhead — at that moment. It would give little or no assurance for the future. Very little can be learned from visual inspection about missile accuracy and still less about reliability.¹⁸⁴

But the question of what the inspector would find can be put differently: Would a party ever permit an inspection in circumstances where discovery of a violation was likely? United States planning proceeded on the basis that in such a case the other party would probably refuse to permit the exercise of inspection rights, and that in itself would be the treaty breach. In other words, inspection would operate not as an information-getting device, but as a trigger mechanism.

This triggering function, however, can be performed equally well by provisions other than onsite inspection. Consider, for example, a treaty requirement that the parties make periodic declarations as to specific aspects of force levels and conditions, or that a party respond with clarifying information to queries from the other side about ambiguities generated by its national intelligence. In these cases, given presently available

¹⁸³ H. JACOBSON & E. STEIN, *supra* note 55, at 253; *Hearings on Technical Aspects of Detection and Inspection Controls of a Nuclear Weapons Test Ban Before the Special Subcomm. on Radiation and the Subcomm. on Research and Development of the Joint Comm. on Atomic Energy, 86th Cong., 2d Sess., pt. 1, at 282-96; 369-74 (1960).*

¹⁸⁴ No doubt inspection results could be improved by making surprise visits and adopting other randomizing techniques. To get any very hard information on reliability or guidance accuracy, however, might require full physical access to the missile, its associated manuals, and the like. It is doubtful that the United States would accept any such extensive inspection system at this stage.

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national surveillance capabilities, it would be hard for a party to falsify with any confidence that its statements would be consistent with all the data available to the other side, the exact contours of which would be unknown to the declarant. As with onsite inspection, a likelier result would be a refusal to honor that obligation — itself a treaty breach. An even simpler verification measure of this kind, although it presents difficult drafting problems, would be to prohibit changes in camouflage or concealment practices that would interfere with satellite observation. Breach of this obligation would call in question the treaty regime.

The position can be carried a step further. There may be little gain from specifying these kinds of requirements in the treaty. Under a withdrawal clause of the type found in the Test Ban Treaty, as we shall see,¹⁸⁵ it seems entirely probable that a party would be justified in treating novel efforts to defeat its satellite observation as justifying withdrawal. Similarly, as suggested above, ambiguous signals are likely to lead to requests for clarification even if that procedure is not specified in the treaty. And again, a plainly unsatisfactory response to a genuine concern could plausibly be cited as grounds for withdrawal.

3. Sanctions.—The reasonable man, if not the rational calculator, might think that the elements already discussed are sufficient to account for the admirable record of compliance by the United States and the USSR with extant arms control agreements. In all of them, the prospective gains from violation are small and the chances of detection high.

Yet despite the record, there has been continuing difficulty in developing the official consensus necessary to adopt new agreements having similar characteristics — as, for example, a comprehensive test ban¹⁸⁶ or limitations on strategic weapons at something like present levels.¹⁸⁷ Nor has strategic analysis been unanimous in concluding that the prospects for compliance in such cases are good. These agreements, like most of those in force, affect the status quo only marginally. There is still less readiness to endorse the viability of more drastic departures,

185 See pp. 957–59 infra.

186 See Hearings on Prospects for Comprehensive Nuclear Test Ban Treaty Before the Subcomm. on Arms Control, International Law and Organization of the Senate Comm. on Foreign Relations, 92d Cong., 1st Sess. 41 (1971) (testimony of Dr. Franklin A. Long); Myers, Extending the Nuclear-Test Ban, 226 SCIENTIFIC AMERICAN 13 (1972); Neild & Ruina, A Comprehensive Ban on Nuclear Testing, 175 SCIENCE 140 (1972).

187 See, e.g., N.Y. Times, Feb. 16, 1972, at 1, col. 1 (report on the Annual Message of the Secretary of Defense); note 159 supra.

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where the possible gains from violation may seem proportionally larger.

The arguments in opposition to such agreements — or, as is more common, *dubitante* — continue to address the positive side of the calculation, the gains that might accrue to the violator. True to the rules of worst-case analysis, they stress the possibility, however remote, that clandestine activity could result in a decisive shift in the political or military balance.¹⁸⁸ In strictly rational terms, however, such a possibility could not be regarded as controlling if the likelihood of detection were high *and* the applicable sanctions were effective. Because we know ultimate discovery is not only probable but certain, the opposition argument is defensible only if the sanctions are regarded as slight, if not negligible. In truth, although there is little careful consideration of the question, that probably represents the general evaluation.

The main sanctions underlying all arms control agreements that have been adopted or even considered by governments since World War II are political in character. They consist essentially of negative responses from the international political environment in which the violator must continue to operate.¹⁸⁹ In the present state of the international system, nobody seriously argues that violation of an arms control agreement should be the occasion for punitive action against the offender, either by other parties to the treaty or by the international community as a whole.

Such attention as is given the problem of sanctions usually focuses on the sanction of political opprobrium — the unfavorable reaction of other states and peoples in the international com-

¹⁸⁸ See, e.g., AMERICAN SECURITY COUNCIL, THE CHANGING STRATEGIC MILITARY BALANCE 11-15 (1967) (report prepared at the request of the House Comm. on Armed Services); W. KINTNER, PEACE AND THE STRATEGY CONFLICT 240-41 (1967). Much of the ABM debate revolved around the contention of the proponents that by a sophisticated combination of new weapons and new strategies the Soviets might be able to overwhelm the United States retaliatory force, or at least some components of it. See note 53 *supra*.

¹⁸⁹ As the history of the late 1950's shows, these forces can operate with some effect even without a treaty. As atmospheric and underwater testing came under increasing pressure, both the United States and the Soviet Union interrupted their test programs with various kinds of moratoria. See, e.g., Decree of Supreme Soviet Concerning the Discontinuance of Soviet Atomic and Hydrogen Weapons Tests, March 31, 1958, in 2 [1945-59] DOCUMENTS ON DISARMAMENT 978 (1960); [1958] DWIGHT D. EISENHOWER, PUBLIC PAPERS OF THE PRESIDENTS (1959) (Ex- perts' Report on the Detection of Nuclear Tests, Aug. 22, 1958). In the end the self-imposed limitations broke down, despite the prospect of a considerable outcry. N.Y. Times, Sept. 2, 1961, at 1, col. 8. A treaty adds the force of law to what are otherwise purely political pressures and may thus have the effect of intensifying, concentrating, and legitimating them.

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munity to the conduct of the violator. There is a strong tendency to disparage the significance of "world public opinion." Yet, it would be wrong to think that political disapproval consists primarily of newspaper editorials and protest marches somewhere "out there" that can be readily discounted by responsible officials of the acting state. In the foreign country, such expressions are domestic opinion. They must necessarily influence to some extent their government's immediate response and future policies. In a world where, even for a major power, most national objectives — from security to economic stability to an effective communications system — require the cooperation of other states, it is not possible to disregard the probable reaction of other governments to a major breach of an arms control agreement.

Despite these caveats, one may conclude that the major powers are less sensitive to international disapproval than they were sometime ago. On a number of occasions in recent years, both the United States and the Soviet Union have shown themselves willing to accept these consequences.¹⁹⁰ The impact has not been negligible; nevertheless, political memories are short, and the other governments involved, like most governments, have been more pragmatic than their constituencies. On balance, the best that can be said is that international opprobrium by itself is a sanction of dubious efficacy.

Preoccupation with the sanction of international disapproval, however, diverts attention from more meaningful aspects of the sanction system. As between superpowers, the most significant constraints are bilateral. The most important responses to be taken into account are those of the treaty partner. These may conveniently be considered under two heads: (a) release of the other party from its treaty obligations; and (b) responses in areas not governed by the treaty.

(a) Withdrawal. — Under the Limited Nuclear Test Ban Treaty, a party may withdraw on three months notice "if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized [its] supreme interests."¹⁹¹ The clause does not require any decision or action by an outside agency. The question whether events are "extraordinary," whether they are "related to the subject matter of this Treaty,"

¹⁹⁰ Examples are the resumption of weapons testing by both countries, N.Y. Times, Aug. 31, 1961, at 1, col. 8; id., Sept. 2, 1961, at 1, col. 2; id., Apr. 26, 1962, at 1, col. 8; the Soviet invasion of Czechoslovakia, id., Aug. 21, 1968, at 1, col. 8; and United States military interventions in the Dominican Republic, id., Apr. 29, 1965, at 1, col. 8; Apr. 30, 1965, at 1, col. 8, at 14, col. 4; and in Vietnam.

¹⁹¹ Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5, 1963, art. IV, 14 U.S.T. 1313, 480 U.N.T.S. 43 (effective Oct. 10, 1963).

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and whether they "have jeopardized [its] supreme interests" are all referred exclusively to the unilateral decision of the withdrawing party.

The withdrawal clause was one of the few issues of the negotiations that caused any trouble.192 In the beginning, the USSR took its traditional view that there was no need for any withdrawal provision at all. Sovereign states, it said, have an inherent right to withdraw from a treaty at any time.193 This version of rebus sic stantibus is the ultimate extension of the rigorously consensual Soviet theory of international law.194 The United States and Britain, on the other hand, started from a rather complicated clause in the draft they put forward in August, 1962.195 There the right of withdrawal depended upon either a breach of the treaty or testing by a nonsignatory that would amount to a breach had it been conducted by a party. In such a case, a party was entitled to call for a conference of the signatories to consider the evidence and assess the situation. Regardless of the outcome of the conference, the party could withdraw from the treaty if it deemed that action "necessary for its national security." The compromise embodied in the Treaty accepted a formal provision for withdrawal from the agreement, but broadened considerably the occasions for withdrawal. The procedure for trying to develop some kind of community judgment on the issues was dropped.

The Test Ban withdrawal clause is embodied verbatim in the Non-Proliferation Treaty with the addition that a party's notice of withdrawal must include "a statement of the extraordinary events it regards as having jeopardized its supreme interests."196 Thus it is reasonable to assume that the withdrawal formula worked out at Moscow is likely to remain for some time to come a feature of arms control agreements to which the two countries are parties.

As a legal matter, withdrawal, either under special provisions in the treaty or under general principles of international law, is freely available as a sanction against breach.197 Indeed, the ag-

192 H. JACOBSON & E. STEIN, *supra* note 55, at 457-58.

193 *Hearings, supra note 99*, at 27-28, 50 (testimony of Secretary of State Rusk). See also H. JACOBSON & E. STEIN, *supra* note 55, at 457.

194 TRISKA & FINLEY 410-11; H. Berman, *supra* note 128, at 950-52.

195 Anglo-American Proposal Submitted to the 18-Nation Disarmament Committee: 1962 Draft Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Aug. 27, 1962, art. III, ENDC Doc. No. 59, in 2 [1962] DOCUMENTS ON DISARMAMENT 804 (1963).

196 Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1969, art. X, 21 U.S.T. 483, T.I.A.S. No. 6839 (effective March 5, 1970).

197 At the hearings on the Test Ban Treaty, government witnesses took the

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grieved party may feel bound to retaliate even if it sees little
prospect of technological or military gain from doing so. The
United States resumed testing in response to the Soviet atmos-
pheric test series of September 1961, even though the technical
results were relatively uninteresting.

In practice, however, this response may be less than completely effective. In the first place, to the extent that the violator has been successful in achieving a head start, withdrawal by the other party does nothing to offset it. Moreover, the existence of changed circumstances and their importance to the supreme interests of a country are not objective facts capable of authoritative determination. The adequacy of the justification for withdrawal will be largely in the eye of the beholder. A government considering the exercise of its withdrawal right must therefore take into account the probable evaluations of its rationale by other states, and these are likely to be more-or-less rather than either-or. Even in cases of breach by the other party, the evidence is rarely unambiguous, and when it is, the breach may not be regarded as justifying ipso facto a reciprocal withdrawal. When the United States did resume atmospheric testing in April 1962, the international outcry was almost as great as that against the USSR itself for first breaking the four year tacit moratorium on tests.¹⁹⁸

(b) *Beyond Reprisal*. — The would-be violator faces more
than simply the withdrawal of the other party and return to the
status quo ante, probably a time of relative calm, caution, and
reciprocal restraint. If the violative conduct cannot be con-
vincingly related to factors outside the bilateral relationship, such
as the need for preparations against a third power, a substantial
breach, or even a withdrawal under the terms of the treaty, will
in all probability be read as an unfriendly act, signalling a far-
reaching shift toward a policy of hostility and confrontation.
Indeed, it is likely to precipitate "a flaming crisis."¹⁹⁹ Unless
the breach achieves a decisive and immediately apparent military
superiority, the prospective violator must anticipate a wide-
ranging set of responses, many of them likely whether or not the

position that in the event of a breach by one party of its essential obligations, the other party would be free to abrogate immediately, without being bound by the three-month waiting period in the withdrawal clause. Soviet and other authorities were adduced for the principle, familiar in domestic legal systems as well as international law, that material breach by one party releases the other, at its option, from its obligations under the agreement. *Hearings, supra* note 99, at 37-40.

¹⁹⁸ See N.Y. Times, Apr. 27, 1962, at 1, col. 2, at 3, col. 5; id., Apr. 28, 1962, at 1, col. 7.

¹⁹⁹ This was Secretary Rusk's description of the Cuban missile confrontation.
E. ABEL, *supra* note 136, at 100.

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other side decides to exercise its withdrawal right: the resumption of an intense, uncontrolled arms race, a worsened political climate, the strengthening of the opposing alliance.

A generalized hostile response is likely even though it may not be a "rational" counter to the breach. It will come about through shifts in power and influence brought about within the offended government. The hands of treaty opponents, who tend to be the military and hard-line elements, will have been strengthened. Officials committed to the treaty, who are often those urging relaxed and accommodating bilateral relations, will have been discredited and may even overreact for political and bureaucratic self-protection.

Whatever the cause, this broad spectrum response is likely to have a serious impact on the violator. From the Soviet standpoint, the increase in overall United States force levels and the generally hardened attitudes that resulted from the Berlin crisis of 1961 were at least as significant as any response in the immediate Berlin context.²⁰⁰ The ultimate effect was on Soviet domestic goals, always an object of the politician's tenderest solicitude. The United States actions led to the cancellation of consumer-oriented cuts in the Russian military budget.²⁰¹

In the context of this kind of bilateral response, the reactions of third states take on added significance. It is no longer a question of generalized disapprobation of the violator. What is involved is cooperation or support for a specific course of action being pursued by the offended state. Any response of the United States or the USSR would be heavily dependent for its success on the energy and enthusiasm with which allies rallied round.²⁰² The positive action of states beyond the immediate circle of alliance may also be required. In the Cuban missile crisis, for example, a key element was the denial of landing rights to Soviet aircraft by Senegal and Guinea,²⁰³ neither of which was renowned for its susceptibility to suggestions from Washington.

(c) *The Effect of Secrecy.* — The sanctions will be intensified in the case of clandestine breach. To look again at the Cuban missile crisis, even though no treaty was involved, the speed and secrecy of the Soviet deployment was an important constituent in the alarm of the United States leaders and in their sense of the urgent need for forceful response.²⁰⁴ It was, as well, a critical

²⁰⁰ T. SCHELLING, *supra* note 1, at 270; A. SCHLESINGER, *supra* note 31, at 404.

²⁰¹ Wolfe, *Introduction* to V.D. SOKOLOVSKY, *SOVIET MILITARY STRATEGY* 19 (1963).

²⁰² See T. SORENSON, KENNEDY 586-87, 733 (1965).

²⁰³ Cf. E. ABEL, *supra* note 136, at 136-38.

²⁰⁴ [1962] JOHN F. KENNEDY, *PUBLIC PAPERS OF THE PRESIDENTS* 806 (1963).

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factor in mobilizing international support or acquiescence.²⁰⁵ It is an interesting speculation whether the United States could have forced a withdrawal of the missiles on the same terms if the Soviets had proceeded openly and deliberately over a considerable period, justifying their action publicly and with copious citation of NATO precedents.

Similarly, a big part of the United States chagrin and confusion at the disclosure of the U-2 was traceable to the secrecy of the program. The result was not only the abandonment of flights over the USSR, but the abortion of the summit conference at Paris, a centerpiece of the Eisenhower administration's foreign policy.²⁰⁶

In both the U-2 and the Cuban missile cases, political sanctions, intensified by the clandestine character of the offending act, forced the abandonment of major military programs with self-evidently high military significance. The examples also confirm the suggestion that the key sanction is the response of the other superpower, and that this may be diffused over the spectrum of bilateral relations rather than limited to the area of the objectionable conduct.

In neither case was there a breach of an agreement between the United States and the USSR. Indeed, the deployment of Soviet missiles in Cuba was entirely "legal."²⁰⁷ It could be expected that in the usual case, the reaction would be even stronger to a deliberate, clandestine violation of an arms control agreement.

## B. The Politics of Enforcement

To this point, we have analyzed the enforcement mechanism in fairly conventional terms. Sensitivity to the organizational and political setting has highlighted some points to which insufficient attention has generally been given. But in the main, we have dealt with the issues of breach, withdrawal, and response as though their resolution were determined by a rational calculus of benefits and burdens. But we know that those decisions will be the products of a complex organizational structure and process in which forces of consensus, commitment, and inertia are at

²⁰⁵ See, e.g., the exchange between Ambassador Stevenson and Ambassador Zorin in the Security Council debates, 17 U.N. SCOR, 1025th meeting 1-17 (1962).

²⁰⁶ N.Y. Times, May 17, 1960, at 1, col. 8; id., May 18, 1960, at 1, col. 8.

²⁰⁷ The United States never took the position that the Soviet action violated any norm or agreement binding at international law, nor did it treat the threat as an armed attack justifying response under article 51 of the U.N. Charter. See *Department of State Memorandum: Legal Basis for the Quarantine of Cuba*, Oct. 23, 1962, in CHAYES, EHRLICH, & LOWENFELD, *Documents Supp. at 552*.

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work. The values assigned to the terms in the calculus are not objectively fixed, but vary with the different perspectives, interests, and objectives of the participants in the process. The answers will thus differ also, even though given in the utmost good faith.

Most important, the focus on relations with an external adversary will be diluted by a concern for the responses and moves of colleagues, organizations, and factions within the deciding country. The various calculations of benefit and cost will not operate as the direct determinants of decision, but as elements of the internal discourse, as means of changing or rebutting the views of others. This more complex political-organizational analysis has a somewhat different bearing on breach and withdrawal than on response. These will be treated separately.

1. *Withdrawal and Breach.* — Termination of the treaty relationship will necessarily have domestic political consequences. These may be larger for an outright breach than for withdrawal under the terms of the treaty. But as suggested above, the justification for withdrawal, except perhaps in response to the adversary's breach, will never be self-validating. And to the extent it is not, reactions like those to breach will be generated.

In democratic societies, the opposition will express itself in normal electoral politics. In the Soviet Union, emerging elites in the scientific and intellectual areas, not completely controlled by state or party, seem to have a special importance on arms control issues.²⁰⁸ This is not to say that public opinion will always favor the treaty. In Germany after World War I, the repudiation of the prohibition against rearmament imposed by the victors at Versailles became a political rallying cry.²⁰⁹ One can imagine a like syndrome emerging out of a period of generally deteriorating relations and mutual recrimination between the chief treaty partners. Often the public will simply be indifferent; and it may even applaud the appearance of energy and action conveyed by a decision to be free of irksome restraints.

Abandoning the treaty will necessarily involve resistance within the government, as well as outside it. As we have seen, the process by which the treaty comes into being insures that there will be individuals, agencies, and factions with power stakes in the agreement. They will have the incentive, and at least some are likely to have the opportunity, to fight to maintain it. Government structures tend to insure that repudiating a major arms

208 See note 60 supra.

209 See, e.g., I R. BURNS & D. URQUIDI, DISARMAMENT IN PERSPECTIVE: AN ANALYSIS OF SELECTED ARMS CONTROL AND DISARMAMENT AGREEMENTS BETWEEN THE WORLD WARS, 1919-1939, at 203-04 (1968) (ACDA RS-55).

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control agreement cannot be the work of a few men in a few
moments. Like the decision to enter the agreement, the decision
to leave it must be a process extending over time, seeking through
familiar techniques of bargaining and persuasion to achieve con-
sensus among the officers and offices whose positions and juris-
dictions give them a claim to be heard.

The extension of the decisionmaking process in time and
space significantly increases the impediments to successful clan-
destine action already discussed. The bureaucracy is no excep-
tion to the rule that the difficulty of keeping a secret grows in
geometrical proportion to the number of people who know about
it. Efforts are made to offset this phenomenon by limiting the
number of people who are in on the decision. And there have
been some successes.²¹⁰ In general, however, bureaucratic rou-
tines for the distribution of documents, the convening of meetings,
and the like are resistant to the exclusion of those whose normal
bureaucratic business would involve them in the decision.

We should not speak so confidently about the Soviet Union.
Government control over the press makes it very much easier to
avoid public disclosure of secret decisions. It does not necessarily
follow that control of information within the relevant bureau-
cracies is equally effective. Nonetheless, students have noted a
high degree of compartmentalization in the Soviet bureaucratic
structure, which may make it easier for the right hand to be
kept in ignorance of what the left is doing.²¹¹

The political and bureaucratic aspects of decisionmaking also
affect the substantive scope of the debate. Termination of the
treaty must be made to appear as the solution not only, and
perhaps not even primarily, to a military problem, but to a po-
litical or bureaucratic problem, and better still to a set of them.²¹²
This in turn works to broaden the range of relevant considera-
tions. It is hard to imagine a decision to terminate, say, the Test
Ban Treaty or the Non-Proliferation Treaty being taken strictly
on the basis of considerations affecting the subject matter of the
treaty itself. A decision to end such an agreement very probably
would require a far-reaching realignment of the country's foreign
policy stance. This in turn most often comes about not in isola-
tion but as an element of a wholesale policy reorientation. Thus,
attack on the treaty may very well be the cause or symptom of
a major power struggle in the affected country.

210 E.g., the recent itineraries of Dr. Henry Kissinger, the President's Special Assistant for National Security Affairs. N.Y. Times, July 16, 1971, at 1, col. 8; id., Jan. 26, 1972, at 1, col. 8.

211 See, e.g., M. FAINSOD, *supra* note 61, at 341, 495.

212 Cf. ALLISON 237-44.

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A democratic system, which finds secrecy in these matters very difficult to maintain, may gain a compensating advantage in that the struggle over this kind of decision can work itself out through normal political processes. In a closed society, however, the decision to abandon a major arms control agreement seems likely to be the occasion or a consequence of a significant power shift, if not at the apex of the leadership group, then in strata immediately below. In addition to personal costs, such a struggle will exact some toll in the functioning of the state.

A political leader in any system will hesitate before assuming the burdens and risks of this kind of a contest. If he does engage, the stakes are high enough to insure that he will not easily prevail.

2. Response. — The response to termination will also be a product of government decision processes rather than rational calculation. We have already suggested that both the need and the intensity of response may be enhanced by political and organizational forces.²¹³ But governmental processes can also work to inhibit response. Violations of post-World War I treaties for the disarmament of Germany were well-known to the British and French cabinets. The failure to enforce the treaty requirements reflected an inability or unwillingness to accept the political responsibility for such action.²¹⁴

In large part as a reaction to this experience, United States policy since World War II has stressed the need for elaborate, formal, and public machinery for arms control verification and enforcement. Objective determination by a neutral entity, operated on an international basis and in a kind of adjudicative mode, has been thought necessary to put pressure on hesitant politicians to take strong counteraction. We saw that in the partial arms control measures adopted or under active discussion, international means of verification and enforcement have been substantially abandoned in favor of national means.²¹⁵ Nevertheless, the traditional position remains an element of more general United States arms control doctrine.

There are good grounds for second thoughts about the value of international and automatic verification and response, at least in essentially bilateral strategic arms limitation agreements. On the most pragmatic level, such a requirement enormously complicates the negotiation and adoption of any treaty. It cuts against a fundamental feature of an international system still based in the main on national sovereignty — the deep unwillingness to remit international issues to third party settlement. And it multiplies

213 See pp. 958–59, 960 *supra*.

214 4 R. BURNS & D. URQUIDI, *supra* note 209, at 17.

215 See note 171 *supra*.

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the problems of draftsmanship. Since the parties will not be in control of the verification process in operation, the tendency — a perfectly typical lawyer's reaction — is to try to preprogram the process in the agreement. This leads to a degree of detail in language that is more appropriate to a tax treaty than an arms control agreement. And it provides innumerable additional occasions for internal and external dispute.

On the merits, it is by no means clear that an automatic linkage between the verification system and response is desirable. The Test Ban-type withdrawal clause is not keyed to violations of the Treaty, but to the occurrence of extraordinary events jeopardizing the supreme interests of a party. The question of response is open even in the absence of breach; and conversely, withdrawal is not necessarily indicated even when the other party's violation seems clear. The clause makes explicit what is true in any case: the problem of response to adversary activity under an arms control agreement is a political problem calling for judgment and discretion.

Judgment is required at two levels: (1) What is the suspected party really doing? (2) What, if anything, should be done about it? Very often the first kind of question is not one on which additional empirical data will be particularly helpful. It may come down essentially to interpreting and analyzing the data so as to predict the adversary's future course of conduct. The problem is classically formulated as that of divining the other party's "intentions." But by this time it should not come as a surprise that such a lapse into anthropomorphism is misleading. Consider a United States weapons program about which almost everything is public — the ABM. The configuration and location of ABM sites; the kinds, performance ratings, and probable numbers of interceptors; the types of radar; the computer requirements — all of these have been the subject of endless public hearings.²¹⁶ The reliability of the system and the tactics that might be used against it have been publicly debated.²¹⁷ But even an American citizen — even a government official — following the question closely could not confidently predict the mission of the weapon

²¹⁶ See, e.g., *Hearings on Strategic and Foreign Policy Implications of ABM Systems Before the Subcomm. on International Organization and Disarmament Affairs of the Senate Comm. on Foreign Relations*, 91st Cong., 1st Sess. (1969); *Hearings on Authorization for Military Procurement, Research and Development, FY 1970, and Reserve Strength Before the Senate Comm. on Armed Services*, 91st Cong., 1st Sess. (1969); *Hearings on Department of Defense Appropriations for 1970 Before the Subcomm. on the Dept. of Defense of the House Comm. on Appropriations*, 91st Cong., 1st Sess. (1969).

²¹⁷ *Compare, e.g., CHAYES & WIESNER with AMERICAN SECURITY COUNCIL, THE CHANGED STRATEGIC MILITARY BALANCE: USSR v. USA (1967).*

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or the size of the ultimate deployment. On these questions of role and scale, whose "intentions" are the significant ones? The President's? Those of the Congress? Which Congressmen? The Secretary of Defense? The Joint Chiefs? The Director of ACDA? And at what point in time?

To put the question this way is to demonstrate again that the concern is not with governmental "intentions" in a psychological sense at all. The effort is to predict probable future lines of political and military policy. The difficulties of this prediction have been circumvented by resort to gross simplifying assumptions, often highly ideological in character. In the recent Cold War period, the rubric has been that since it was impossible to be sure of the other side's intentions, policy decisions should be based on its capabilities. But oversimplification has not always been a monopoly of the warlike. In the interwar period, an equally simplistic rule of attributing benign, or at least satiable, intentions to the adversary had catastrophic results.

Both of these methods of assuming away the problem of careful judgment about the likely course of action on the other side have proven poor guides to policy. In such a judgmental process more information about the nature, personnel, and characteristic modes of operation of the other party's governmental structure may be a great deal more helpful than more information about its weapons systems.

The very existence of the treaty may ease the problem to some degree. If the agreement is observed, a particular set of real-life phenomena is stabilized and does not enter as a variable into the overall analysis of the other side's positions. Since the Test Ban Treaty, for example, neither United States nor Soviet intelligence has had to worry about the significance to be attributed to the other side's atmospheric, space, or underwater tests. There haven't been any. Conversely, if the Soviet Union should continue to deploy SS-9's in the absence of an agreed ceiling, the inferences to be drawn would continue to be subject to debate and speculation. But if deployment were to proceed in violation of an express treaty prohibition, the political significance of the action would be quite plain, even though the military consequences might be rather doubtful.

This leads us to the second level of judgmental issues: What is to be done in response to evidence of an adversary's violation? Even when the evidence of violation is conclusive it is by no means certain what the appropriate action should be. The effect of formal and public verification and enforcement procedures, especially in neutral or international hands, would most likely be to strengthen the forces within the offended government seek-

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ing a harsh or drastic reaction. Even if these forces are over-
borne and the violation overlooked, the publicity tends to com-
promise the efficacy of the treaty restriction. In either case third
party control does not enhance the stability of the treaty regime.

The experience with the Test Ban Treaty illustrates the
values of a less rigid system. Both the United States and the
Soviet Union have conducted tests that vented outside their
territorial limits.²¹⁸ The language of the Treaty prohibits such
tests, but the restriction, as we have seen, is a precautionary
rule. It is not fundamental to the purposes of the Treaty, and
its breach does not significantly frustrate the expectations of the
parties. With informal verification by national monitoring sys-
tems, these venting incidents have received but little public atten-
tion. The parties have exchanged diplomatic correspondence to
clarify their significance.²¹⁹ In the end, both parties have been
able to continue their adherence to the Treaty apparently without
serious internal political resistance and without formal dilution
of its norms. Meanwhile the main benefits sought — the suppres-
sion of atmospheric, space, and underwater testing — have been
preserved.

V. CONCLUSION

This excursus through the terrain of arms control agreements
has consisted chiefly of the elaboration of some rather common-
sensical propositions that may seem self-evident to anyone who
has spent some time in government. The primitive character
of these statements and the supporting documentation is testi-
mony that we are at the very beginning of our understanding of
*how, when, and why* states obey international law in general and
comply with arms control agreements in particular. The question
is a branch of a broader field of investigation, equally virgin:
*how and why do states — and other large corporate aggregates —
order their activities in response to law?*²²⁰ Much more work
needs to be done before we will know how to shape laws to en-
hance the prospects of compliance by the corporate and organiza-

218 See p. 938 *supra*.

²¹⁹ See id.

²²⁰ Forty years ago, in *What Price Contract?*, Karl Llewellyn stopped in mid-passage to lament the distortion introduced into all legal analysis by unspoken assumptions, like those of strategic theory, that the responses of groups and organizations to law can be fairly assimilated to those of individuals. The approach of the printer's deadline prevented Llewellyn from reanalyzing his problem in terms of the "groupness" of modern life. And, in the four decades since, nobody has renewed the quest. See Llewellyn, *supra* note 54, at 733 n.63.

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tional entities on which the effectiveness of the law increasingly depends.

But despite these reservations, the analysis of arms control agreements permits us to hazard a number of conclusions that cast serious doubts on the dominant orthodoxies in the field. Recall that our principal attention has been directed at the general area of strategic arms limitation as between the United States and the Soviet Union. The set of possible agreements to which the discussion has been oriented takes some account of the constraints of political reality: it would include agreements for substantial reductions in strategic weapons, by category or overall, and significant quality controls, but nothing approaching strategic disarmament. What does the analysis suggest about this set of agreements?²²¹

In the first place, we would conclude that the prospects for compliance are very high—much higher than is implicitly assumed in a public and official debate that makes the decisive issue the possibility of “cheating.”

Secondly, verification and enforcement mechanisms do not provide the only forces operating to insure compliance, and probably not the most important ones. (An agreement that is adopted by a modern bureaucratic government will be backed by a broad official consensus generated by the negotiating process, and will carry personal and political endorsement across the spectrum of bureaucratic and political leadership. These are exceedingly hard to undo or reverse, the more so since, once the treaty goes into effect, they are reinforced by the ponderous inertia of the bureaucracy.)

Third, even in the area of verification proper, the special arrangements set up by the agreement are likely to be marginal at best, given the immense capabilities for unilateral surveillance afforded by satellite reconnaissance and associated advanced techniques. The importance of onsite inspection is still more limited, and for all practical purposes, it should be eliminated as an issue. To the extent that supplementary verification provisions are necessary, they can be “legal,” relying on a variety of disclosure and declaration devices, rather than technical/scientific. This is not to say that verification questions do not deserve careful professional attention from analysts, technicians, and lawyers, in government and out. But these are second and even third order questions. The risks from failure of the verification mechanism — and in general they are very small — are only one category of risks to be weighed in decisions on arms control agreements. The

²²¹ In fairness, it should be said that these conclusions are consistent with the views I held before beginning this study.

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focus on the issues of verification, detection, and onsite inspection in the debate of the last two decades has condemned arms control to the fate of Achilles in Xeno's paradox, who could never overtake the Tortoise, because by the time he got to where the Tortoise had been, the animal was already further on his way.

Fourth, a decision to terminate the agreement, if it comes, will be governed principally by political considerations rather than technical or military ones. And in fact, it is likely to be or to accompany a political decision of major proportions, with widespread ramifications in the terminating government. The Dr. Strangelove fantasy — of a superweapon, discovered and deployed in secret, and unveiled to revolutionize the relative military situation — is just that: a fantasy.

Similarly, the timing of the termination and the choice between breach and withdrawal will essentially reflect political urgencies and schedules, rather than the effort to make military capital out of the decision. Once it is decided to terminate, it is possible, and perhaps probable, that there will be a period of clandestine or unacknowledged activity inconsistent with the treaty before the termination is made public. This is most likely to consist of a hasty effort to resurrect abandoned projects, revive old activities, and expand existing ones. These prospects do not portend significant, much less decisive, military gains in case of breach. The analysis reinforces the healthy commonsense instinct that the best way to limit particular weapons systems is to stop them before they get started. Modest or token as opposed to zero ceilings greatly simplify the problems of expansion and deployment after breach.

These conclusions do not appear in the reassuring nimbus of quantification. But if they are anywhere near the mark, they suggest that United States arms control policy, at least in the last decade, guided by the assumptions of strategic analysis, has erred spectacularly on the side of caution. We could have pursued a much more aggressive program, pressing for much more extensive constraints on strategic weapons, without accepting significant risks of violation or of adverse consequences in the event of termination. If we had been successful, the military and civil gains of more extensive disarmament would now be in hand.