Chemical and Biological Warfare: Medical Effects and Consequences

Chemical and Biological Warfare: Medical Effects

and Consequences

Leonhard S. Wolfe*

The threat to mankind posed by chemical and
biological weapons rivals that of nuclear
weapons. However, sophisticated delivery
systems are not essential to chemical war-
fare, and consequently, the threat of sabo-
tage may be much greater than is the case
with nuclear weapons. The author traces the
development and incidence of synthetic
chemical warfare from its roots in the fourth
century B.C., through the nerve gases
discovered after World War I, to the military
use of psychochemicals. He then discusses
biological or bacteriological warfare, espe-
cially the military use of microbial toxins and
mycotoxins, the “Yellow Rain” issue, and
defoliants such as “Agent Orange”. In the
author’s opinion, the health care systems of
developed nations would be virtually non-
functional in the aftermath of a war fought
with chemical or biological weapons. De-
veloping countries would be affected even
more seriously. The long term effects to sur-
vivors are far from clear, but enough is
known that public concern and action,
prompting legal control of such weapons,
must be aroused before man’s own
technological sophistication leads to the de-
struction of himself and his world.

La menace pesant sur la race humaine h tra-
vers les armes chimiques et biologiques riva-
lise celle des armes nucl~aires. Toutefois,
les armes chimiques ne requ6rant pas
d’appareillage sophistiqu6, le danger de
sabotage est beaucoup plus grand dans leur
cas. L’auteur d~crit l’volution et l’impact
de ]a guerre chimique et synth6tique de ses
d6buts au 4e si~ele av. J.-C., en passant par
le d6veloppement des gaz de combat apr~s ]a
premiere guerre mondiale, jusqu’A l’utilisa-
tion de produits psychochimiques A des fins
militaires. 11 traite ensuite de la guerre biolo-
gique ou bact&iologique en mettant ‘accent
sur l’utilisation A des fins militaires des
toxines microbiennes et des mycotoxines, de
la question de ]a “Pluie jaune” et des d6fo-
liants tels l”‘Agent orange”. Selon l’auteur,
les syst~mes de soins m6dicaux des pays
d6velopp6s seraient inefficaces apr~s une
guerre o~i des armes chimiques ou biologi-
ques auraient dt6 utilis~es. Les pays en voie
de d6veloppement seraient encore plus s6-
rieusement affect6s. Les effets A long terme
sur les survivants sont loin d’8tre connus
mais nous en savons assez pour r6aliser ‘ur-
gence de mobiliser l’opinion publique afin
d’acc6l&rer le contr6le juridique de telles
armes avant que le d6veloppement technolo-
gique de l’homme ne le conduise A sa propre
destruction et A celle de son milieu.

*M.D., Sc.D., F.R.C.P.(C), F.R.S.(C), Professor, Department of Neurology and Neuro-

surgery, Montrdal Neurological Institute and Hospital, McGill University.

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CHEMICAL AND BIOLOGICAL WARFARE

Synopsis

Introduction
I.

II.

Chemical Weapons
A. Early History of Chemical Warfare
B. Nerve Gases: the 1930s to the Big Eye Bomb
Biological Agents
A. Early Development
B. Microbial Toxins, Mycotoxins and Yellow Rain
C. Defoliants, Chlorinated Dibenzodioxins and the Agent Orange

Controversy

Conclusion: Impact of Chemical and Biological Warfare on Health Care

Systems

In cataracts of fire, blood, & gall,
In whirlwinds of sulphurous smoke,
And enormous forms of energy,
All the seven deadly sins of the soul
In living creations appear’d,
In the flames of eternal fury.

– William Blake’

Introduction

Chemical and biological weapons pose a threat to large segments of
mankind, including civilians, equal to that of nuclear war. Large scale, or
even limited, use of modem toxic agents can kill hundreds of thousands of
people in large cities within minutes, can cause illness that would completely
overwhelm existing health resources even in the most economically de-
veloped country and can prompt unpredictable and long-lasting changes in
our environment. If one survives the initial toxic effects, the long term effects
may result in greatly increased chances for carcinogenesis, fetal malforma-
tion and mutations. Large scale use of defoliants –
would threaten the ecology of the entire planet.

enviromental war –

‘ The First Book of Urizen, ch. III, v. 2 (Boulder: Shambhala Publications, 1978) 47.

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Chemical warfare differs from nuclear warfare in that sophisticated
weaponry is not essential for delivery, and sabotage attacks, particularly with
biological agents, can cause widespread death to man, animals and plants.
Most of the agents cannot be tested before use, so the consequences cannot be
predicted with any degree of accuracy. This paper reviews briefly the types of
chemical agents that have been developed for military use and discusses
biological weapons, including not only disease-producing organisms, but
also microbial toxins, molecular cloning products and defoliants. Binary
nerve gas bombs, Yellow Rain and Agent Orange have been much in the news
and in debate in recent years, but a general understanding of the medical
effects of chemical and biological warfare agents has yet to develop. In
conclusion, discussion will centre on the impact of chemical warfare on
health care systems. Public concern and action against this form of warfare
should equal that sparked by nuclear weapons. The widespread use of chem-
ical and biological weapons would decimate civilian populations and destroy
the fabric of humanity. I do not purport to recommend any particular legal
solutions to these crucial problems. Rather, it is my concern to alert the legal
community to the dangers posed by chemical and biological weapons, and to
urge my legal brethren to deal with these issues seriously and with haste.

I.

Chemical Weapons

Although chemical warfare has been reported often in recorded history,
it is only in the twentieth century that potent chemical agents derived from
industrial chemistry were utilized in military actions.2 The early agents can be
classified under four groups: smokes which obscure vision; gases and toxic
chemicals which affect vital physiological functions; flame agents and incen-
diaries which maim through skin and flesh bums; and riot-control chemicals.

A.

Early History of Chemical Warfare

Suffocating gases from burning pitch, resins and sulfur were used in the
Peloponnesian War between Sparta and Athens in the fourth century B.C.

2The most complete monograph on the history of militarily important chemicals is Stock-
holm International Peace Research Institute [SIPRI], The Problem of Chemical and Biological
Warfare [:] A study of the historical, technical, military, legal and political aspects of CBW,
and possible disarmament measures (1971-82) vols 1-13. For several informative books of a
less technical nature, see J. Rothschild, Tomorrow’s Weapons, Chemical and Biological
(1964); S. Hersh, Chemical and Biological Warfare [:] America’s Hidden Arsenal (1968); R.
Harris & J. Paxman, A Higher Form of Killing [:] The Secret Story of Gas and Germ Warfare
(1982); and Bertrand Russell Peace Foundation, The Threat of Chemical Weapons (1982).

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CHEMICAL AND BIOLOGICAL WARFARE

Combustible chemical mixtures, known as Greek Fire, were used as incen-
diaries in land and sea battles into the Middle Ages. American Indians used
incendiary arrows. King Charles XII of Sweden used smoke from burning
damp straw while crossing the Dvina River in the war against the Polish-
Saxon army in 1700. The large scale burning of sulfur was proposed at the
siege of Sevastopol in the Crimean War in 1855, but the British Government
would not permit it. During the United States Civil War, the use of chlorine in
artillery shells by the Union forces was proposed in 1862 but rejected by the
Government.3

Diatomic chlorine gas, with its powerful asphyxiating and lung irritant
action, was used as a weapon, with devastating effect, in the spring of 1915 by
the Germans in their surprise attack on the British and French lines in the
Ypres salient, Belgium.’ This attack ushered in the modem era of chemical
weaponry and gas warfare. Triggered by initial success and by the rapid
improvements in methods of protection against chlorine which soon fol-
lowed, a range of new, far more toxic, agents were synthesized and brought
into military use. Mustard gas, 5 a powerful blistering agent, was used in the
battlefields of Flanders in 1917 followed by phosgene and the arsenical
vesicants Lewisite and ethyldichlorarsine.6 Many other agents had been
developed by 1919 and plans made by both allied and axis powers for their use
in artillery attacks. In March 1918, mustard gas casualties in the Ypres-San
Quentin area of France totalled over 7,000, although there were less than 100
deaths. Statistics for the entire period of the war showed that 12,000 tons of

IFor other examples, see R. Clarke, We all Fall Down; The Prospect of Biological and
Chemical Warfare (1968); and “Chemical Warfare” inEncyclopediaBritannica (1959), vol. 5,
353-8 and references therein.
4The LD5o (dose causing a fifty per cent death rate) for mice by inhalation of chlorine is 137
parts per million. Inhaled by man at a concentration of 1 part in 10,000 by volume, it can cause
fatal pulmonary edema in minutes. Actually, the French used tear-gas grenades in August 1914
and the Germans in October 1914 and January 1915 used the eye irritants dianisidine chlorsul-
fonate and xylyl bromide but these military actions were not successful.

‘2,2 ‘-dichlorodiethyl sulfide, also called Kampfstoff “Lost” or Yp6rite.
6Useful chemical and toxicological information on these chemicals and many others
mentioned infra can be found in M. Windholz, ed., Merck Index [:] An Encyclopedia of
Chemicals and Drugs, 9th ed. (1976). For an important account of the biochemical toxicity of
arsenicals see Dixon & Needham, Biochemical Research on Chemical Warfare Agents (1946)
158 Nature 432. The Chemical Agent symbol for sulfur mustard is Hl). A mixture of HD with
1,2-bis(2-chloroethylthio)ethane is HQ and with 2-bis(2-chloroethylthio)ether is HT. HQ and
HT are more toxic, more vesicant, have a lower melting point, and are more persistent than
HD. Nitrogen mustard gas analogues were not synthesized until 1935 by K. Ward. See Ward,
The Chlorinated Ethylamines -A New Type of Vesicant (1935) 57 J. Am. Chem. Soc. 914.
They were tested in World War II. The Chemical Agent names are HN3, tris(2-
chloroethyl)amine; HN2, N-methyl-2,2′-dichlorodiethylamine; HN1, 2,2′-
dichlorotriethylamine.

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mustard gas caused 400,000 casualties.7 Concentrations of the gas on the
ground can cause long-lasting contact hazards. Sulphur mustards, like their
counterparts the nitrogen mustards, react covalently with the DNA of the cell
and can induce serious genetic mutation. No effective antidote is available for
mustard gases.8

It is useful to review briefly some of the medical effects of the chemical
agents available in large quantities by the end of the First World War. The
asphyxiants or choking gases, of which phosgene and diphosgene, which
smell like new-mown hay, are the most lethal, irritate the respiratory system
causing coughing, difficulty in breathing, feelings of suffocation, and severe
chest pain. The duration of hazard is short because the gas combines rapidly
with water to form carbon dioxide and hydrochloric acid. In severe expo-
sures, the acid in the lungs causes rapid constriction of the bronchioles and
acute lung inflammation follows leading to pulmonary edema and death.
Victims drown in the fluid that gushes into the lungs. Blister gases, or
vesicants, in liquid or vapor form are absorbed by the skin, particularly when
moist, and by the mucous membranes causing inflammation, bums, blisters,
and skin destruction. These compounds are broken down by water only
gradually and because they persist up to two weeks on the ground, on
vegetation and equipment, they pose long-lasting contact hazards. Severe
exposure can cause lung inflammation, bronchospasm and death. Sneeze
gases, tear gases and vomiting gases are in the class of short term incapaci-
tants and harasssing agents which can be used by the military and by police in
cluster bombs and bomblet dispensers. They have a temporary action rarely

7 These figures do not indicate deficiencies in toxicity of mustard gas, but rather inefficiency
in distribution of the vapor which is 5.5 times heavier than air. See L. Fieser & M. Fieser,
Organic Chemistry (1944) 68-70. Figures given for the total gas casualties range from 800,000
to 1,300,000.

81t is worth mentioning that the brilliant biochemist, the late Sir Rudolf Peters, working as a
young man with the team at the Chemical Defence Experimental Establishment at Porton on the
Salisbury Plain in Britain, became concerned in 1917 with the horrible effects of gas warfare
and particularly of the arsenicals. He was to return to the “arsenic problem” at the start of World
War II, and soon afterwards he discovered that 2,3-dimercaptopropanol BAL, Dimercaprol,
British Anti-lewisite could remove arsenic groups from thiols and could reverse the toxic action
of Lewisite on the pyruvate oxidase system in the brain. These results were soon extended to
human treatment. The research on BAL was one of the best kept secrets of World War II. It was
the first antidote conceived on logical biochemical grounds, and its discovery was a classic in
the relatively new field of biochemical pharmacology. For details of the BAL story which came
in the open literature after the war, see Peters, Stocken & Thompson, British Anti-Lewisite
(BAL) (1945) 156 Nature 616; Waters & Stock, BAL (BritishAnti-Lewisite) (1945) 102 Science
601; R. Peters, BiochemicalLesions andLethal Synthesis (1963); and Peters, The Biochemical
Lesion and its Historical Development (1969) 25 Brit. Med. Bull. 223.

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CHEMICAL AND BIOLOGICAL WARFARE

causing death. 9 Systemic poisons like hydrogen cyanide and the fumigant
cyanogen chloride have extremely rapid paralyzing effects but have little
value as warfare agents because of their low density relative to air and their
volatility.

Efficient incendiary bombs, flame throwers and flame land mines con-
taining Napalm were not developed until 1942, but were used towards the end
of World War II, in the Korean conflict, and particularly in the gruesome
actions of the Vietnam War.’0 The name derives from the mixture of alumi-
num soaps of naphthenic acid and palmitic acid, from coconut oil, used for
the preparation of extraordinarily inflammable gasoline gels. The Napalm B
used in Vietnam contains, instead of the fatty acids, polystyrene – which
makes it stick to the skin as it bums. White phosphorus has been used since
World War I as an effective casualty agent and as a screening smoke. Bombs
and grenades loaded with phosphorus, when exploded, spread burning frag-
ments which, on contact with human skin, cause painful flesh bums that
continue to burn under water and are very slow to heal.

B.

Nerve Gases: the 1930s to the Big Eye Bomb

After World War I, chemical warfare research and the development of
chemical warfare agents, as well as defence measures against them, con-
tinued unabated by all the major world powers. The increasing political
uncertainties, unrest and conflicts throughout the world –
in China,
Ethiopia, Spain, and Germany –
in the 1930s stimulated the formation of
teams to discover new and “secret” gases. Stimulated by the research pre-
sented in a paper by Lange and von Krueger in 1932 ” on the synthesis of
alkyl-fluorophosphonates in which it was noted that inhalation of the vapors

9 Examples are diphenyIchloroarsine (Clark I), diphenylcyanoarsine (Clark 1I), 10-chloro-
5,10 dihydrophenarsazine (DM, adamsite), chloracetophenone (CN), o-
chlorobenzylidenemalononitrile (CS), a-bromobenzylcyanide and xylyl bromide. Agent CS2
is CS treated with a silicone water repellent and can persist for up to forty-five days. For further
details, see World Health Organization [WHO], Health Aspects of Chemical and Biological
Wdapons (1970) 51-5. Phosgene and related gases are today not considered important CW
agents. See also T. Puro, E. Magaha, et al., “Chemical Warfare” in Kirk-Othmer, Ency-
clopedia of Chemical Technology, 2d ed. (1964), vol. 4, 869; and B. Harris, F. Shanty & W.
Wiseman, “Chemicals in War” in Kirk-Othmer, Encyclopedia of Chemical Technology, 3d ed.
(1979), vol. 5, 393.

10For a medical analysis of the effects of Napalm, see Reich & Sidel, Current Concepts [:]
Napalm (1967) 277 New Eng. J. Med. 86. Harvard chemists headed by L.F. Fieser synthesized
Napalm. See Fieser, Napalm (1946) 38 Indus. & Eng. Chem. 768.

11W. Lange & G. v. Krueger, Uber Ester der Monofluorphosphorsdure (1932) 65 Ber.

Deutsch. Chem. Ges. 1598.

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led to difficulty in breathing, disturbance of vision and even loss of conscious-
ness, a British research team was set up during World War II under McCom-
bie and Saunders. They synthesized DFP 2 and tested its toxicity on small
laboratory animals. The results were startling and alarming. Although ex-
posed to vapors in the order of one part per million for only short periods,
animals were dead within ten minutes. Human volunteers exposed to trace
doses as a vapor in testing chambers developed long-lasting constriction of
the pupils. The experimental studies initiated then by Adrian, Feldberg and
Kilby, published in 1947, showed that these fluorophosphonates inhibited
certain chemical processes at specific nerve cell junctions, thus blocking
neurotransmission at those junctions throughout the body. 3 Such interrup-
tions at these junctions can cause, amongst other symptoms, widespread
paralysis or loss of muscle tone. Another Cambridge group, under Mack-
worth and Webb, showed in 1948 that DFP inhibition of neurotransmission
was progressive and irreversible. 4 Because of their selective high toxicity to
the nervous system, these compounds became known as “nerve gases”.

At the end of the war, interrogation officers visiting Germany found that
a great deal of research on new insecticides had been carried out by Gerhard
Schrader since 1934 in the research laboratories of the I.G. Farben Industries
Group in Leverkusen. About 2,000 compounds were made, many of them
having potent insecticidal activity. One compound, first named Bladan,
contained as the active constituent, TEPP, 5 which was particularly effective
against aphids but also highly lethal to mammals in microgram doses. The
reports published in the now-famous documents of the British Intelligence
Objectives Committee, and Schrader’s own account, contain an astonishing
number of compounds, three of which had such extreme toxicity to mammals
that, in Germany towards the end of the war, plants capable of producing one
hundred tons or more a month for nerve gas warfare were built.’6 In the

“Diisopropylfluorophosphonate,

Isofluorophate. For a general review, see B. Saunders,
Some Aspects of the Chemistry and Toxic Action of Organic Compounds Containing Phospho-
rus and Fluorine (1957). The first open report was McCombie & Saunders, AlkylFluorophos-
phonates: Preparation and Physiological Properties (1946) 157 Nature 287.

“Adrian, Feldberg & Kilby, The Cholinesterase Inhibiting Action of Fluorophosphonates

(1947) 2 Brit. J. Pharmacol. 56.

“Mackworth & Webb, The Inhibition of Serum Cholinesterase by Alkyl Fluorophospho-

nates (1948) 42 Biochem. J. 91.

“Tetraethylpyrophosphate, Nifost. The LDso, orally in rats is 1.1 mg/kg. Another com-
pound, p-nitrophenyl diethylthophosphate (E.605, Parathion) was more stable and less toxic to
mammals than its analogue p-nitrophenyl diethyl phenyl phosphate (E.600, Paraoxon) and was
useful against insects resistant to DDT. Parathion is converted into Paraoxon by liver enzymes.

6 See British Intelligence Objectives Sub-Committee, The Development ofNew Insecticides
(1947) 714 (Final Report); British Intelligence Objectives Sub-Committee, The Development
of Methods and Materials for the Control of Plant Pests andDiseases in Germany (1946) 1095
(Final Report). For further information on the chemistry and toxicology of more recent

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CHEMICAL AND BIOLOGICAL WARFARE

postwar years, defence research organizations all over the world continued
chemical syntheses of these toxic substances later known as G-agents.”7 A
new series of compounds, the V-agents, were developed after the war and
were given code names V.E., V.M. and V.X. 8 V.X. was developed in 1955
during the manufacture of the insecticide Amiton. This compound is probably
the most lethal synthetic chemical, both to man and animals, discovered to
date. Much of the information regarding the chemistry and toxicology of the
V-agents is classified. 9 Plans exist in the United States for the development of
so-called binary nerve gas weapons and binary artillery shells or “Big Eye
Bombs”. Indeed, limited production may already have begun. These
weapons make use of non-lethal chemicals stored in casings with two separate
compartments divided by a membrane before delivery. When combined on
activation within the bomb, they produce clouds of lethal nerve gases.2’ This
is obviously a direct application of the principles of nuclear detonation to
chemical warfare. Facilities for the manufacture and storage of these weapons
in the United States have been reported to exist at Pine Bluff Arsenal,
Arkansas; at Toole Army Base and the Dugway Proving Grounds, Utah; and
at the Rocky Mountain Arsenal near Denver, Colorado.

All the nerve gases are potent irreversible inhibitors of the enzyme
acetylcholinesterase. This results in the accumulation of acetycholine in the
central nervous system, and elsewhere. As a consequence, exposure causes a

compounds, see E. Spencer, ed., Guide to Chemicals Used in Crop Protection, 7th ed. (1982)
(Canadian Government Publishing Centre, Supply and Services Canada).

‘7G-agents are alkyl esters of methylphosphonofluoridic acid (Saran GB, Soman GD) or
ethyl N-methylphosphoramidocyanidate (Tabun GA). The code, G-agents, derives from the
markings found on captured German containers of Tabun. Detailed accounts of G-agents and
V-agents can be found in United States Dep’t of the Army, Field Manual 3-9; United States
Dep’t of the Air Force, Field Manual 355-7; United States Government, Military Chemistry
and Chemical Compounds (1975) (U.S. Government Printing Office); and R. Sterlin, V.
Yemel’yanov & V. Zimin, Chemical Weapons and Defense Against Them [1975] Khim.
Oruzhiye i Zashchita ot Nego. For an excellent early account of the pharmacology of Tabun and
related compounds, see Holmstedt, Synthesis and Pharmacology of Dimethyl Amidoethoxy-
phosphorylcyanide (Tabun) Together With a Description of Some Allied Anticholinesterase
Compounds Containing the N-P Bond (1951) 25 Acta Physiol. Scand. 1 (Supp. 90).

“Agent V.X. is S-dimethylaminoethylmethylphosphonothiolate.
19See supra, note 17.
“The Big Eye bomb is the binary version of the existing premixed V.X. Weteye bomb.
Accounts of the binary nerve gas production programme can be found in Carter, Approval
Sought for Nerve Gas Pilot Plant (1979) 206 Science 1164; Holden, Binary Nerve Gas
Production Plans Debated (1982) 216 Science 495. The United States Army wanted approval
for a plant to make binary nerve gas projectiles. See General Accounting Office, Chemical
Warfare: Many Unanswered Questions (1983) (GAO/IPE-83-6 monograph); and Smith,
Congress Questions Binary Weapons Plan (1983) 220 Science 802. Thousands of sheep died
downwind from nerve gas field tests at the U.S. Army’s Proving Grounds, Skull Valley, Utah.
See Boffey, Nerve Gas: DugwayAccidentLinked to Utah Sheep Kill (1968) 162 Science 1460.

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wide variety of initial symptoms which lead to paralysis, convulsions, coma,
and death. Lethal doses in man can be as low as 0.05 mg/kg or less although
little human data are available. The toxicity values available indicate that,
depending on the route through which it enters the body, 0.1 to 2.0 milligrams
can be fatal to a seventy kilogram man. A concentration on the ground of 0.5
to 5.0 mg/sq metre may have the same effect. The hazards of the use of agent
V.X. are staggering because it is absorbed by any body surface, is more
resistant to hydrolysis by water and can persist a long time on the ground, on
,vegetation, on buildings, and on vehicles. Symptoms produced by any of
these agents immediately on exposure are nausea, vomiting, diarrhea, urina-
tion, blurred vision, salivation, sweating, lachrymation, pallor, headache
followed by muscle twitching, weakness, heart arrythmias, and pulmonary
edema, all of which within fifteen minutes lead to paralysis, fall of blood
pressure, convulsions, coma, cyanosis, and death. Certain oxime derivatives
can reactivate the acetylcholinesterase, thus serving as an antidote, but these
compounds are poisonous in their own right. Survivors can develop persistent
paralysis due to the destruction of nerve sheaths.’

In concluding this Part, mention should be made of a group of chemicals
called psychochemicals or psychomimetics. There is much evidence that
these agents have been used for military purposes to produce serious psycho-
logical disturbances and incapacitation of the enemy. LSD is one such
substance, first synthesized by chemists of the Swiss drug company, Sandoz,
in 1943, but in the fifties produced in considerable quantities by American
drug companies such as Eli Lilly.” Oral ingestion of tiny amounts of this
antagonist of the brain neurotransmitter, serotonin, can cause complete men-
tal disorganization for periods of up to twelve hours. Visual hallucinations,
alterations of perception of shape, colours and space, synesthesiae (alteration
in perception of the senses), disturbances of time and body image, experi-
ences of derealization and depersonalization, changes in mood, inability to
move, and negativism are all part of the toxic psychosis.Y In modem parl-
ance, the subject is “freaked out”. More alarming is the well documented
evidence of the manufacture and stockpiling in bomblets for aerosol use of

21 The term “distal axonopathy” has been introduced to describe another effect of organ-
ophosphate compounds –
the symmetrical distal degeneration of peripheral nerve axons
(dying-back degeneration). A thorough account of the chronic effects of organophosphorus
compounds can be found in P. Spencer & H. Schaumburg, eds, Experimental and Clinical
Neurotoxicology (1980) 527-44.

‘ See Stoll & Hofmann, Die optisch aktiven Hydrazide der Lysergsiiure und derIsolyserg-

sdure (1943) 26 Helv. Chim. Acta 922; and Field Manual 3-9, supra, note 17.

‘For a good description of the clinical effects of LSD with many references, see Denber,
“Clinical Aspects of Psychomimetic Drugs” in L. Roizin, H. Shiraki & N. Grcevic, eds,
Neurotoxicology (1977), vol. 1.

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Agent BZ by the United States Army. This mind-altering agent is reported to
be many times more toxic and prolonged in action than LSD. Visual and
auditory hallucinations with disturbance of memory, attention, comprehen-
sion, and problem solving can last for up to four days. Its use has been
reported in Army testings under the name “Project Dork” in Utah in 1964 and
during the Vietnam war.24

11.

Biological Agents

Biological warfare, germ warfare, epidemic warfare, or bacteriological
warfare can be defined as the intentional use or manufacture by culture or
cloning of disease-producing viruses, bacteria, fungi, insects, or toxins pro-
duced by these organisms, for the purpose of causing disease or death of man,
animals and plants. It is public health and preventive medicine in reverse. The
two main divisions of biological warfare are (a) the use of rapidly growing
strains of living organisms to start epidemics, and (b) the direct use of the
purified toxins produced by micro-organisms, or of chemicals which affect
plant growth (defoliants). The public fear generated by biological agents is
even greater than that generated by synthetic chemicals. Biological agents are
suited to covert use, clandestine manufacture and surreptitious importation.21

A.

Early Development

Toxins have been used in warfare since ancient days. In 600 B.C., the
Athenian legislator, Solan, had the poisonous roots of hellebore thrown into
the river from which the enemy obtained drinking water causing violent
gastro-intestional symptoms. A Carthagian general on retreat in 200 B.C. left
behind wine poisoned with mandragora.

War and disease are no strangers. Plague cut down the crusaders at the
gates of Jerusalem; typhus riddled the Moors in Spain; dysentery incapaci-
tated Napoleon’s army in Russia; typhoid fever incapacitated more soldiers
that did bullets in the Boer War; tainted beef laid low many soldiers in the
Spanish-American War; influenza hit soldiers and civilians at the close of
World War I; and malaria, scrub typhus and other endemic infections became
major concerns in the Mediterranean and South Pacific during World War II

2 See supra, notes 2 and 3.
25For further references on biological agents and their history, see ibid.; and “Biological
Warfare” in Encyclopedia Britannica (1959), vol. 3, 598-8B. The Stockholm International
Peace Research Institute [SIPRI], Yearbooks (World Armaments and Disarmament) from
1973-82 are important reliable sources of new information worldwide.

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and in Vietnam. During World War I, the Germans deliberately infected
horses of the enemy with glanders. There have been many charges and denials
of the use of biological weapons during the Japanese-Chinese conflict in
World War I1 and the Korean War in 1951.

Characteristics of living organisms that have been considered important
to the effectiveness of germ warfare are: high infectivity; resistance to heat,
light and dryness; capability for rapid dissemination; ability to cause high
mortality and lasting effects on survivors; and novelty in the part of the world
where their use is intended so that tolerance and immunity have not been
established. World Health Organization reports 6 list human diseases that
meet most of these criteria as (a) viral diseases such as yellow fever, encepha-
litis, dengue, chikungunya, o’nyong-nyong (a highly infective viral disease
of which two million cases were reported in East Africa from 1959 to 1961),
Q fever (a rickettsial disease) and smallpox; (b) bacterial diseases such as
plague, anthrax, typhoid, tularemia, and brucellosis (undulant fever); and (c)
the fungal disease coccidioidomycosis which is caused by a soil organism and
in which infection is produced by inhalation of wind-borne spores. Any of
these pathogenic organisms could be disseminated in aerosols released from
bombs and could cause direct infection of victims. Some of them could spread
as epidemic diseases. A major difficulty in defence against these diseases is
that detection and identification require laboratory procedures which can take
from hours to days. During that period, the infections continue to undermine
the strength and to render infective all strata of the communities exposed.

B. Microbial Toxins, Mycotoxins and Yellow Rain

Many bacteria and fungi, under certain conditions during their growth
cycle, can synthesize complex compounds called biotoxins which can be
extraordinarily toxic to man. Two groups will be considered here, the botuli-
nus toxins and the trichothecenes produced by many common species of
fungi. Botulinus toxin A has been considered as a potential weapon, but there
is no evidence that it has ever actually been used in warfare. On the other
hand, over the past few years, clear evidence has come to light that
trichothecene toxins have been used against civilians in Southeast Asia; this
subject will be considered in more detail below.

Strains of Clostridium botulinum are ubiquitous soil bacilli which under
strictly oxygenless conditions, produce toxic protein aggregates which cause
muscle paralysis. BTX is among the most lethal substances known to man. 27

26See supra, note 9 and further medical details in K. Isselbacher, R. Adams, et al., eds,

Harrison’s Principles of Internal Medicine, 9th ed. (1980).

17See L. Smith, Botulism [:] The Organism, Its Toxins, The Disease (1977).

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CHEMICAL AND BIOLOGICAL WARFARE

The lethal dose to humans is assessed at about one microgram. The toxin, in
crystalline form, was isolated during World War II by research scientists at
Camp Detrick, now known as Fort Detrick, Maryland. It is almost certain that
stockpiles of the toxin were available for military use. It can be disseminated
easily in an aerosol spray. The toxin acts on nerve terminals to all muscles,
preventing the release of an important neurotransmitter. Once the toxin is
ingested, there is a latent period of six to thirty-six hours followed by nausea,
vomiting, diarrhea, dry mouth and skin, sore throat, muscle weakness going
on to paralysis, blurred vision with fixed dilated pupils, and respiratory
failure which is the main cause of death. There is no specific treatment.

Since May 1976, a number of reports have appeared which indicate the
use of some sort of lethal or incapacitating chemical weapon in air attacks
against Hmong tribesmen in Laos and, in 1979 and later, in Kampuchea. 29
The reports were so disturbing and serious that in 1980 and 1981 the United
Nations General Assembly passed two resolutions authorizing the Secretary-
General to establish a group of experts to investigate the alleged use of
chemical weapons.3″ Two reports were submitted by Canada on the toxicolog-
ical and epidemiological aspects. 3′ The events reported cannot be explained
on the basis of naturally occurring phenomena. The United States Department
of State has also reported on this subject. 32 What has come to light is that
mycotoxins produced by species of Fusarium are prime suspects as the cause

2See L. Simpson, ed., Neuropoisons [:] Their Pathophysiological Actions (1971), vol. 1.
“Numerous reports and comments have appeared in issues of Nature and Science during
1981. See, e.g., Wade, Toxic Warfare Changes May be Premature (1981) 214 Science 34;
Wade, Yellow Rain and the Cloud of Chemical War (1981) 214 Science 1008; Holden,
Unequivocal Evidence of Soviet Toxin Use (1982) 216 Science 154; Marshall, A Cloudburst of
Yellow Rain Reports (1982) 218 Science 1202. See also S. Seagrave, YellowRain [:]A Journey
Through the Terror of Chemical Warfare (1981). This is a journalist’s account of the use of
chemicals in the Far East and also contains the little publicized spraying of chemicals by the
U.S.S.R. on the population of Yemen.

“United Nations G.A. Res. 36/96C, 36 U.N. GAOR, Supp. (No. 51) 69, U.N. Doc.
A/36/51 (1981); United Nations G.A. Res. 36/144C, 35 U.N. GAOR, Supp. (No. 48) 61,
U.N. Doc. A/35/48 (1980); andReportofthe Secretary-General on Chemical andBacteriolog-
ical (Biological) Weapons, U.N. Doc. A/36/613 (1981).
31See U.N. Doc. A/37/308, Annex II (1982), A Report to the Department of External
Affairs Canada by Schiefer, Study of the Possible Use of Chemical Warfare Agents in Southeast
Asia, submitted to the General Assembly 25 June 1982; a second group of refugee interviews,
at Ban Vinai, conducted by the Surgeon-General of the Canadian Armed Forces was submitted
to the United Nations Secretary-General on 25 August 1982. It is suspected that
dimethylsulfoxide (DMSO) has been added to the toxic agents to facilitate entry through the
skin. See D. Shapley, Canada and yellow rain [:] UN expert group asked to act (1982) 299
Nature 196.
32G. Shultz, Chemical warfare in SoutheastAsia and Afghanistan: an update (1982) (United

States Dep’t of State, Special Report No. 104).

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of skin lesions and gastro-intestinal hemorrhages found in civilians and are
implicated in the death of chickens, pigs and other livestock that were
exposed to a yellow sticky substance sprayed from jet aircraft on villages in
Laos and Kampuchea during conflicts against the Khmer Rouge. Commonly
referred to as “Yellow Rain”, these incidents have opened up an entirely new
dimension to the horrors of toxin warfare. From descriptions given by the
Hmong, three different types of “gases” appear to have been used, “Yellow”,
“White” and “Green”. All the eye witness reports indicated clearly that a very
different group of agents have been used against the Khmer Rouge.

It is useful here to mention some facts related to the chemistry and
medical aspects of mycotoxins and the mycotoxicoses, a group of diseases
caused by the consumption of mouldy feeds made toxic by fungal growth.
There are three mycotoxicoses for which there is clear evidence to associate
the toxins with human disease: (a) chronic poisoning caused by the toxic
effect of certain alkaloids growing on rye and other cereals; (b) liver cancer
due to the extremely carcinogenic properties of certain toxins which can get
into milk after cows have been fed toxic meal; and (c) poisoning of the
gastro-intestinal tract caused by toxic fungal compounds growing on mouldy
grain.33 It is the last group of toxins which has relevance to the issue of Yellow
Rain.

Outbreaks of a serious disease caused by eating bread contaminated with
mouldy cereals has been reported in parts of Russia since the nineteenth
century. Called alimentary toxic aleukia or “staggering grains” poisoning, the
predominant symptoms are caused by fungi growing on snow-covered over-
wintering grains. The extreme outbreaks of the condition which occurred in
Western Siberia in 1932 and in 1942-47 involved a mortality rate as high as
sixty per cent. Similar conditions –
termed red mould disease and mouldy
corn disease –
have been reported in Japan and the United States. The
toxicosis has four stages: A short time after eating the toxic grain, the mucous
membranes of the mouth become inflamed and an acute gastro-enteritis
develops causing fever, vomiting, diarrhea, and abdominal pain. These
symptoms then disappear and over a latent period of three to four weeks there
are few symptoms except weakness, slight breathing problems, dizziness,
and headaches. During this period, called the leukopenic stage, the white

3’ Comprehensive treatises on microbial toxins, mycotoxicoses and the chemistry of the
trichothecenes can be found in S. Kadis, A. Ciegler & S. Ajl, eds, Microbial Toxins (1971),
vol. 7; T. Wyllie & L. Morehouse, eds, Mycotoxic Fungi, Mycotoxins, Mycotoxicoses: An
Encyclopedic Handbook (1978), vols 1-3; and Y. Ueno, Trichothecene Mycotoxins: Mycolo-
gy, Chemistry, and Toxicology (1980) 3 Adv. Nutr. Res. 301. The National Institute of
Occupational Safety and Health [NIOSH] of the United States Dep’t of Health and Welfare
publishes an updated Registry of Toxic Effects of Chemical Substances which has many
references to trichothecene toxins.

1983]

CHEMICAL AND BIOLOGICAL WARFARE

cells are progressively reduced in number and the body’s general resistance is
undermined. Suddenly, in the third stage, hemorrhagic skin rashes break out
that lead to the localized death of cells in the skin, lips, nose, eyes, and throat
and then the liver and heart. There is exhaustion of the bone marrow with
consequent decrease in blood cells and the immune system is suppressed. The
final stage is either death from hemorrhaging or slow recovery over a period
of about two months. The carcinogenic effects of chronic poisoning have
been little studied. A related condition is stachybotryotoxicosis which,
although more common in horses and cattle, can contaminate man when
handling infested hay or straw. The symptoms are similar, starting with a
cell-destroying skin rash and leading to suppression of the immune system.
However, the initial symptoms are more associated with skin absorption and
inhalation producing an allergic lung reaction.

The important question is whether these forms of poison are the cause of
the toxic symptoms and deaths documented in numerous reports following
military actions involving chemicals in Laos and on the Thailand-Kampuchea
border from 1976 to February 1982. A United States Department of State
report found that (a) fungal toxins had been found in Southeast Asia which
were not of natural origin; (b) the majority of the signs and symptoms could be
explained by the type of poisoning described above although there are res-
ervations about the rapidity of onset and the vomiting of blood, and (c) one
specific toxin was found in blood and urine samples taken twenty-four hours
after exposure of victims to the chemical attacks. Canadian reports from the
Department of External Affairs are less certain. Whether or not any direct
links to the Southeast Asian Yellow Rain are established, one thing is clear:
mycotoxins are a new and frightening addition to the arsenal of chemical
warfare agents.

C. Defoliants, Chlorinated Dibenzodioxins and the Agent Orange

Controversy

called Operation Ranch Hand –

The 1961 decision of the United States Government to use chemical
defoliants as aerial sprays to destroy the jungle cover of the Viet Cong in
Vietnam –
escalated by 1967 into a
defoliation programme that destroyed the rice and pineapple crops on a scale
unprecedented in the history of war. Quite apart from the anti-crop objectives,
the toxic effect on animals and man must also be considered. Public outrage at
the consequences of the defoliation programme persists and today centres on
the long term toxicity effects in man. It is known as the “Agent Orange”
controversy and it is a tangle of scientific, legal, political, and social

McGILL LAW JOURNAL

[Vol. 28

questions.m It is worth-while to review some of the chemical and medical
facts and issues.

The weed herbicides 2,4-D and 2,4,5-T were first synthesized in Britain
during World War I. The manufacture of similar compounds for many
industrial purposes increased greatly after the war. Inherent in the chemical
syntheses are side reactions that produce highly toxic impurities commonly
known as dioxins. 35 Two particular dioxins, TCDD and PCDD, have acute
and chronic toxicity to man and animals. As little as 500 parts per trillion has
been reported to kill fifty per cent of a monkey colony. Since 1949 there have
been over twenty industrial accidents in plants manufacturing the chlorinated
herbicides and fungicides. The most serious were the disaster at the Badische
Anilin and Soda-Fabrik AG in Ludwigshafen, F.R.D. in 1953, the explosions
at the Philips Duphar factory in The Netherlands in 1963, at the Coalite
Company in the United Kingdom in 1968, and, more recently, at the much-
publicized and researched incident at the ICMESA-Mesa plant near Brianza
di Serveso, Italy in 1976. As much as three kilograms of TCDD was released
on a population of 220,000 and at two kilometres from the plant, significant
soil concentrations were found.

Although estimates vary considerably, it seems that in excess of 50,000
tons of chlorinated hydrocarbon defoliants were dropped on Vietnam, de-
stroying 150,000 acres of rice paddy fields and defoliating 500,000 acres of
jungle. The dioxin content of the agents made before 1970 also varied but
could be quite high. This data means that between 100 and 200 kilograms of
TCDD was disseminated on the population of Vietnam during the War. The
formulations used had various code names – Agent Orange I and II, Agent
Pink, Agent Purple, Agent White, and Agent Blue. Soil concentrations of
TCDD in the Pran Buri region of Vietnam were found to be very high.
Although approximately half the TCDD decomposes in a few days, the

For general accounts of the agitation of Vietnam veterans over long term effects of major
herbicide spraying operations, see Holden, Agent Orange Furor Continues to Build (1979) 205
Science 770; Holden, Reviewers Pan Agent Orange Study Plan (1981) 214 Science 1107. For
detailed accounts, see A. Westing, Ecological Consequences of the Second Indo-China War
(1976); A. Westing, Harvest of Death (1982); E. Blair, ed., Chlorodioxins – origin and fate
(1973) 120 Adv. Chem. Ser. 141; National Academy of Sciences, “The Effects of Herbicides
in South Vietnam Part A” in Report (1974); Firestone, The 2,3,7,8 Tetrachlorodibanzo-para-
dioxin problem: a review (1978) 27 Ecol. Bull. 39; and Council on Scientific Affairs, Health
Effects of Agent Orange and Dioxin Contaminants (1982) 248 J.A.M.A. 1895.

3 For full accounts of chemistry and toxicology of dioxins and industrial accidents, see
(1979) 320 Annals N.Y. Acad. Sci. (Special Issue on Health Effects of HalogenatedAromatic
Hydrocarbons, W. Nicholson & J. Moore, eds); and WHO International Agency for Research
on Cancer, Evaluation of Carcinogenic Risk of Chemicals to Man (1977) (IARC Monograph,
vol. 15).

1983]

CHEMICAL AND BIOLOGICAL WARFARE

remainder stays in the soil with an environmental half-life of 3.5 years. In
1980, it was estimated that eight kilograms remained in the soil, and by 1990
one kilogram will still be present from the actions in the Vietnam War. The
grim effects of Vietnam defoliation will be made plain only in the decades
ahead.

The acute symptoms produced by exposure to chlorinated dioxins are
wide-ranging. Nausea and vomiting, headache, loss of appetite, numbness
and tingling of the extremities, mild paralysis of facial muscles, and irritation
of the respiratory tract, eye and skin predominate. Exposure to high concen-
trations leads to death from liver cell destruction in several weeks. Longer
exposure leads to a type of skin disorder termed chloracne which is not
susceptible to treatment. a6 Symptoms include cysts, comedomes and pus-
tules. Skin hyperpigmentation also occurs. Decreased function of the liver,
pancreas and kidneys develops. Loss of sex drive and vague psychiatric and
neurological disturbances such as mood changes, depression, impairments of
sensation, and reduced vision are also reported. The dioxins are known to be
toxic to embryos, and can produce embryonic malformation as well as cancer
in the long term. An increase in the frequency of liver cancer, chromosome
aberrations and birth defects has already~been documented in the areas of
Vietnam that were exposed to dioxin-containing defoliants.37 Higher frequen-
cies of sight impairments, gastro-intestinal bleeding and hepatitis were also
found. However, the epidemiological studies available are far from satisfac-
tory. Agent Orange has also been blamed for a host of health troubles
affecting Vietnam veterans in the United States and this has stimulated the
National Toxicology Program to evaluate the charges.3 8 Such studies are very
complex and it will be years before objective data will be available.

Before leaving the subject of toxic herbicides, the potent and widely
used herbicide Paraquat should be mentioned. It is available in any hardware
store or nursery in North America. Its high toxicity to man was recognized
soon after its introduction in the mid-sixties. Hundreds of fatal poisonings
have occurred since 1966. 39 This chemical causes serious degenerative
changes principally in the lungs, kidneys, liver, and brain. Although there is
no evidence of the use of this defoliant in warfare, it would be an omission not
to include it as a potential agent.

chlorinated naphthalenes) but its dioxin content was 10,000 times more potent.

-‘Hexachloronaphthalene was alleged to be the cause of chloracne or Pema disease (per-
37See K. Lohs, Delayed Toxic Effects of Chemical Warfare Agents (1975) (SIPRI mono-

graph).

3 No reports of this programme have appeared as yet.
“9See Teare, Poisoning by Paraquat (1976) 16 Med. Sci. L. 9.

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Conclusion: Impact of Chemical and Biological Warfare on Health Care

Systems

The impact on the population of bombs releasing one metric ton of an
aerosol version of the nerve gas V.X. from aircraft at a height of 500 metres
across a five kilometre line west of the middle of an urban centre with a
population of two million, such as Montreal, on a weekday morning in
November, and with a westerly non-turbulent wind velocity of fifteen
kilometresper hour and a temperature of five degrees celsius would not differ
greatly from the explosion of a three to five megaton nuclear device. An area
of fifty square kilometres would be immediately affected; within fifteen
minutes, roughly half a million people would die. Before the day was out,
three quarters of a million would have died. Over the subsequent week, the
total deaths would be 1.2 million or sixty per cent of the population. The final
figures could be as high as seventy-fiveper cent. The hospitals, most of which
are concentrated in the city core area, would be made virtually non-functional
and, at top estimates, only a third of the doctors and nurses would be able to
offer help. Because ventilation systems would be functioning and the
commuter population would all be at work in the downtown high-rise office
buildings, few would be able to escape. The aftermath of social disorganiza-
tion, disease and burial problems would be almost insurmountable. The
World Health Organization 4o has made extensive estimates of the health care
system – doctors, nurses, aides, and hospital beds – necessary to have any
impact following a catastrophe of this magnitude. The required health care
system would simply no longer exist. The consequences to a population in a
developing country are even more alarming, if such could be imagined.

The medical nature and the extent of long term effects of chemical and
biological warfare agents upon survivors is much less clear to the public and
even to physicians. Delayed effects can result from acute or sub-acute poison-
ing and protracted or intermittent exposure can produce chronic poisoning. “‘
Multiform psychological and neurological symptoms such as neurasthenia,
depression, hypochondriacal behaviour, fatigue, and irritability can occur.
These conditions decrease greatly the individual’s effectiveness at work and
in the home. Many of the agents discussed also lower the body’s resistance to
infection and increase the risk of cancer. The grim results of the Vietnam War
will only become clear in the decades ahead when epidemiological and
post-hospitalization studies document the rising cancer rate and the increasing
number of deformed children.

4See WHO, supra, note 9.
41 See supra, note 37; and National Academy of Sciences, supra, note 34.

1983]

CHEMICAL AND BIOLOGICAL WARFARE

749

It is my hope that this short paper will inform and alert the reader –

particularly lawyers –
to the appalling realities of chemical and biological
warfare. Through international recognition, discussion and law-formation,
mechanisms must be found to end the deadly, invisible consequences of
man’s own technological sophistication which may lead to the destruction of
himself and his world.

NATIONAL PERSPECTIVES
PERSPECTIVES NATIONALES

The United States Approach to Negotiating Arms Limitation

Agreements with the Soviet Union

Eugene V. Rostow and Mary Elizabeth Hoinkes*

Arms control negotiations with the Soviet Union differ from United
States arms control negotiations with all other states for three reasons: (a) the
Soviet Union is an expansionist nation, whereas most other countries accept
the state system as it is; (b) the Soviet Union’s policy of indefinite territorial
perhaps the
expansion is backed by enormous and growing military forces –
largest in the world; and (c) the Soviet Union does not accept the binding
authority of the United Nations Charter as a codification of international
law.** It regards itself as “exempt” in effect from the rules of the Charter
which purport to confine the international use of force to individual or
collective self-defense and the “enforcement” of Security Council “deci-
sions”.

Since 1945, the Soviet Union has violated art. 2(4) of the Charter so
often that the state system has come to take Soviet aggression for granted, or
even to assume that it must have a kind of “legal” sanction. Over and over
again the Soviet Union has used its own forces or those of its proxies, and has
supported terrorists or armed bands in international attacks on the territorial
integrity or political independence of states from one end of the earth to the
other. The practice has become so common that it has spread outside the zone
of the Cold War. The Secretary-General of the United Nations, Perez de
Cuellar, has recently warned of the threat of world anarchy unless the nations
–

all the nations –
*Professor Rostow, of the School of Law, Yale University. This article was prepared during
Professor Rostow’s tenure as Director, United States Arms Control and Disarmament Agency.
Mary Elizabeth Hoinkes is Deputy Assistant Director, United States Arms Control and
Disarmament Agency.

recommit themselves to art. 2(4) of the Charter.

**The orthodox view among Soviet legal scholars is that “general international law” is the
binding norm, the Charter being only one among its possible sources. The Soviets profess to
agree that the “use of force contravening the provisions of the United Nations Charter is not
only a violation of the Charter but also of general international law”. See G. Tunkin, Theory of
International Law (1974) 268. Tunkin, however, also defends, at 440, the so-called Brezhnev
Doctrine under which “the might of the Soviet Union as the most powerful socialist power” has
the unrestricted right to guarantee the socialist character of each socialist country. This
constitutes a direct rejection of the provisions of art. 2(4) governing the use of force, and one of
the basic purposes of the Charter. Cf. C. Jenks, A New World of Law? (1969) 294. See
generally, Krauss, Internal Conflicts and Foreign States: In Search of the State ofLaw (1979) 5
Yale Stud. World Pub. Ord. 173; and Rostow, Law and the Use of Force by States: The
Brezhnev Doctrine (1981) 7 Yale J. World Pub. Ord. 209.

1983]

NATIONAL PERSPECTIVES

President Reagan was the first among world leaders to support the
Secretary-General’s warning. And the analysis on which it rests is also the
foundation for American arms control policy towards the Soviet Union. Like
his predecessors, President Reagan has consistently rejected the claim that the
Soviet Union is exempt from the rules of world public order which apply to
other states. No nation can claim to be above the law. President Reagan has
said that the world cannot live under a double standard regarding the interna-
tional use of force, and has warned the Soviet Union that the Charter rules
the rules of arts 2(4) and 51 – must be respected
against aggression –
reciprocally or they will lose all influence on the behavior of states. American
spokesmen have said that the Soviet campaign of expansion has gone too far.
It now threatens the balance of power on which the ultimate safety of the
United States, its allies and its interests depend.

Since the early 1950s, at least, the primary strategic goal of Soviet
expansion has been to change the world balance of power by separating
Western Europe from the United States and Canada. To achieve this goal, the
Soviet Union has been following an old and familiar strategic doctrine. It has
been seeking to outflank Europe from the north and south, thus bringing the
entire Eurasian land mass under Soviet control, and, on that basis, taking
control of the Middle East and Africa. That done, the Soviet leaders believe,
Japan and the other nations of the Pacific basin would accept Soviet suzerain-
ty as inevitable; the peoples of Europe would lose hope; and an isolated
United States would have no choice but to acquiesce in Soviet dominion.
Mr Andropov, the new Soviet leader, has defined the strategic goal of
Soviet policy with refreshing candor in a speech he delivered on 5 August
1978, in Karelia, near Finland. The overriding task of foreign policy today,
Mr Andropov said, is to make detente irreversible. That task is indispensable
in the name of humanity. And the outcome is made inevitable by what the
Soviets like to call “the correlation of forces”, and especially the balance of
nuclear forces. Confronting these objective facts, Mr Andropov says, the
West has no alternative but to accept the Soviet conception of detente, which
he defines in these terms:

Here in Karelia, one must stress the significance attached to the lengthy experience of
neighborly, genuinely equal and mutually advantageous co-operation between the Soviet
Union and Finland. Soviet-Finnish relations today form an integral and stable system of
equal co-operation in various spheres of political, economic and cultural life. This is
detente embodied in daily contacts, detente which makes peace more lasting and peoples’
lives better and more tranquil. In the last analysis this is the highly humane meaning of the
foreign policy of socialism and the foreign policy activity of our party and the Soviet state.
In calling for “detente’, Soviet spokesmen have, in fact, asked the West
to adopt a policy of neutrality. For the West as a whole, such a proposal is
unthinkable. For geopolitical reasons which can never change, neutrality is
not among the policy options available to the loose coalitions whose security

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is vital to the security of the’United States. That is one of the main lessons the
nations learned –
from the First and Second World
Wars, from Korea, and from the innumerable skirmishes which have taken
place along the frontier between the two systems during the last forty years.

or should have learned –

The notion of neutrality as the general model for “detente”, Soviet-style,
seems fantastic to the Western mind. But Soviet advocates of this view are
entirely serious in putting it forward. The Soviet Union is striving to neutral-
ize the West, not primarily by war, but by the political influence of credible
military threats, multiplied to an overwhelming degree by the nuclear arms
propaganda now bombarding the West.

This view of the present position is the basis for United States arms
control policy, particularly with respect to negotiations with the Soviet Union
about nuclear, chemical and biological weapons. A generation ago, it was
understood almost universally that “arms control” and “collective security”
were twin concepts. Arms control agreements might reinforce effective
systems of collective security. But without collective security, arms control
agreements were futile at best, and could be misleading and dangerous. The
most fundamental aspect of U.S. arms control policy is that arms control must
be viewed as an integral part of the system of collective security as a whole. It
can never be a substitute for such a system, that is, it can never produce peace
by magic.

The peculiarities of the Soviet Union’s basic attitude towards interna-
tional law, particularly with regard to the legal status of the United Nations
Charter, impose special limitations upon the Soviet-American negotiating
process in the field of arms control. When negotiating parties use different
vocabularies, or use words in different senses, the negotiators must speak and
write with extreme care to make sure they are keeping the number of inadvert-
ent ambiguities to a minimum. And they must at all costs avoid the most
common and most important error of negotiation, the assumption that each
side’s goals are the mirror image of the other’s.

From the beginning of the nuclear age, the United States has fully
appreciated that nuclear weapons could revolutionize not only warfare but
world politics, and that extraordinary steps would be required to protect
civilization from the disaster of nuclear war. Conventional war has profound-
ly damaged the fabric of civilization during this turbulent century: the con-
sequences of nuclear war are unthinkable.

The first major indication of the different Soviet attitude toward nuclear
weapons was the Soviet rejection of the 1946 American offer to put the whole
of nuclear science under international control. Looking back on the fate of the
Baruch Plan, it is obvious that the Soviet refusal was one of the most

19831

PERSPECTIVES NATIONALES

destructive turning points in the history of the Cold War. While a number of
important agreements have subsequently been negotiated, such as the Limited
Test Ban Treaty, the Antarctic Treaty, the Nuclear Non-Proliferation Treaty
and, more recently, the SALT agreements which led to the present negotia-
tions on START and INF, in major respects these agreements have not lived
up to expectations. The U.S.-Soviet negotiating experience has not reduced
the possibility of nuclear war. The United States is convinced that this fact
must strengthen, not weaken, our efforts.

It is evident that an impregnable wall cannot be erected between nuclear
and conventional war. A nuclear standoff is meaningless to the victims of the
many eruptions of hostilities waged with conventional arms. Foreswearing
the use of nuclear weapons, thereby increasing the possibility of ever more
devastating conflicts with conventional arms, would be a mockery of arms
control. In the final analysis, if we are to eliminate the possibility of nuclear
war, we must tackle the underlying problem – war itself. The struggle to
save mankind from nuclear catastrophe must be seen in the context of a wider
struggle to establish world public order, based on the concepts set forth in the
United Nations Charter. The issue is not “colonialism” or “capitalism” or
“communism” or “democracy” or the so-called “arms race”. It is aggression.
The motives for aggression are irrelevant. We live in a shrinking world, a
world which is increasingly dangerous. The arms race is the symptom, not the
cause, of the breakdown in world public order.

The United States must reluctantly accept the factthat Soviet objectives
in arms control negotiations are not those of the United States and other
Western nations. For the United States, the self-evident purpose of nuclear
armament is defense, and the goal of nuclear arms agreements is to confine
nuclear arsenals to a scale and structure which limit them to defense through
deterrence, making it impossible to brandish them as weapons of political
coercion and blackmail. While no one can guarantee the impossibility of
nuclear war, it is apparent that the principal significance of nuclear weapons
now – both in the Third Worid and in the industrialized world –
is political,
not military. The threat of such arsenals gives rise to currents of political fear,
of nuclear anxiety, which are visible and influential in the West: in the
impulse to withdraw, as if neutrality were a feasible choice; in impulses to
surrender to the spectre of superior force; or in impulses to turn away from
collective security to xenophobia, militarism and nuclear proliferation.

Accepting these facts, the United States has constructed its approach to
the nuclear arms negotiations with the Soviet Union on a simple principle: the
goal of the negotiators must be equality in deterrence –
that is, in defensive
nuclear power. The corollary of that principle is equally obvious: The agreed
limits on nuclear arsenals must make impossible any Soviet nuclear blackmail
based on the plausible threat of a successful aggressive first strike. Only this

McGILL LAW JOURNAL

[Vol. 28

approach, firmly rooted in the Charter of the United Nations, can promote the
establishment of political security based on equal defensive power.

In the negotiations about intermediate range nuclear weapons [INF], the
United States has proposed the complete elimination of all ground-based
intermediate range ballistic missiles –
those the Soviet Union has already
deployed in Europe and Siberia, and those the United States is planning to
deploy in Europe. And in the START negotiations, dealing with intercon-
tinental nuclear weapons, the heart of the American proposal is that each side
reduce the number of its ballistic missile warheads from about 7,500 to a first
limit of 5,000, measured not only in numbers of weapons but in their
destructive power as well. No more than half of each side’s ballistic force
could be ground-based. Agreement on these two points, accompanied by
appropriate collateral agreements on related issues, would in itself do much to
transform not only the military, but the political environment.

The two sets of nuclear negotiations at Geneva –

INF and START

are closely linked, and they rest on the same analysis. They are linked because
intercontinental range weapons fired from the Soviet Union can reach targets
in France, Japan or the Middle East as well as the United States. Moreover,
INF and START are linked by the political doctrine embodied in the North
Atlantic Treaty: that an attack on one ally is an attack on all. In short, there is
no such thing as a “balance” between intermediate range forces.

Viewing both sets of negotiations together, the pattern of development
thus far is clear. The United States is seeking to eliminate the Soviet advan-
tage in ground-based intermediate range and intercontinental ballistic mis-
siles and to achieve deterrent equality between the Soviet and American
nuclear forces in other respects. The Soviet Union has built up its formidable
advantage in ground-based ballistic missiles during the last decade, while
American governments hoped in vain that the Soviet Union would accept
parity with the United States. The Soviet lead in ground-based ballistic
missiles –
heavy, swift, accurate, destructive, and beyond the reach of
is the essence of the nuclear anxiety now agitating the
practical defenses –
Western world. If we are to have any hope of peace, that lead must be
eliminated, either by appropriate Soviet reductions in force or by correspond-
ing increases in the American arsenal. The United States strongly prefers to
restore equilibrium by reductions.

The United States positions in the Geneva nuclear arms talks have been
met thus far by Soviet proposals which would preserve, even enhance, the
Soviet advantage in the most destabilizing class of nuclear weapons –
the
ground-based ballistic missile –
and at the same time would deny the United
States the opportunity to offset such deployments significantly. So far, the
Soviet Union has insisted on the principle it calls “equal security”, that is, the

1983]

NATIONAL PERSPECTIVES

view that it is entitled to have forces equal to the sum of all other nuclear
forces in the world. It rejects the goal of equal limits, and insists that
reductions to the levels indicated by the principle of equal security are the only
equitable basis for a Soviet-American agreement. The Soviet Union has
vehemently rejected a number of possible solutions based on the defensive
principle of equal deterrence. It openly seeks not only to split the United
States from its European and Asian allies, but to prevent the modernization of
American forces. Clearly, the Soviet Union is trying through the negotiations
to preserve its growing potential for nuclear coercion.

The choice between agreements which would permit equal nuclear
defense and those which would permit Soviet nuclear blackmail is the main
issue in the Geneva arms talks. The central question in these talks, therefore,
is whether the United States will be able to maintain the foreign policy of
collective security it has pursued since the time of President Truman, or
whether the pressures of the Soviet nuclear advantage in ground-based ballis-
tic missiles will force us to retreat to neutrality and isolation –
that is, to the
Soviet conception of detente.

The principle of equal deterrence, on which the American positions in
the START and INF nuclear arms talks in Geneva are based, is a fair and
equitable answer to the Soviet proposals for the neutralization of the West.
The Soviet Union offers the world a Pax Sovietica based on Soviet military
dominance and Western neutrality. The United States urges, on the contrary,
a system of world public order based on the equality and inviolability of states
the system posited by the Charter of the United Nations. Such a system can
–
be achieved only if all nations, and especially the great powers, respect and
enforce the rules of the United Nations purporting to govern the international
use of force.

The United States agrees with Soviet spokesmen that the great task set
for mankind by history is “to make detente irreversible” –
not detente
Soviet-style, but the universal detente defined by the United Nations Charter.
Again, the importance of the recent warning by the Secretary-General of
the United Nations should be stressed: The rules of the United Nations
Charter regarding the international use of force are being weakened every
year. As a result, the world political system is slipping towards a state of
anarchy which can only result in war. No one can prevent the possible
escalation of conventional war into nuclear war. The only way to prevent
nuclear war, therefore, is for the nations to recommit themselves to the
general and impartial enforcement of the rules of the United Nations Charter
prohibiting both conventional and nuclear aggressive war.

The nuclear arms talks in Geneva are the most important instrument now
available to us for negotiating seriously with the Soviet Union about this vital

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[Vol. 28

series of issues. The INF talks about intermediate-range ballistic missiles
have been going on for more than a year, the START talks on intercontinental
weapons for over six months. As the Soviet Union concedes, those talks have
made progress. They have advanced far enough for each side to understand
the positions of the other, and to see possibilities for negotiation in the pattern
of positions. What is not clear is whether the Soviet Union is interested in
agreements based on the principle of defense through deterrence –
that is,
agreements which are incompatible with the possibility of nuclear blackmail
and nuclear aggression. To date, the Soviet Union has turned down such
possibilities out of hand, although the United States has said it would not view
such rejections as final.

The principal achievement of the Geneva negotiations so far is that the
differences between the United States and the Soviet Union on nuclear arms
policy have never before been clarified so precisely. For that reason, it is now
possible to envision a constructive agreement on the subject between the two
sides. Those responsible for the national security policies of the United States
approach the problem without the illusions which caused so much damage
during the 1960s and ’70s. And the serious and committed men who direct the
affairs of the Soviet Union must thoroughly understand that the expansion of
the Soviet empire has passed its zenith and that the troubles of the Soviet
Union in Afghanistan, the Middle East and, above all, in Poland are incurable
by the methods used since 1945. The constructive alternative of cooperation
with the United States, based on the principles of the United Nations Charter,
is always available.

Arms Limitation and Disarmament Talks: Soviet Approach

Victor L. Issraelyan*

The pursuit of arms limitation and disarmament has been and remains the
most important orientation of U.S.S.R. foreign policy, which is pursued in
close cooperation with the community of socialist states. These goals stem
from the very nature of socialist states, where there are no classes or social
groups attempting to enrich themselves on arms production and who are
interested in an ever-increasing spiral of the arms race, unleashing predatory
wars. Peace is a necessary prerequisite of progress; only peace creates
conditions favourable to the construction of a new social system –
socialism
and communism. War and the arms race divert tremendous material and
moral forces from the process of creation. The Soviet people, perhaps unlike
any other people on our planet, have experienced all the horrors of war.
Twenty million Soviet people sacrificed their lives to the altar of the Second
World War. That is why the struggle against the threat of a new war, for arms
race limitation and disarmament, is the main subject of numerous statements,
meetings and rallies of the Soviet public.

Article 28 of the Constitution of the U.S.S.R. states clearly that Soviet
foreign policy is aimed at “achieving universal and complete disarmament
and consistently implementing the principle of the peaceful coexistence of
states with different social systems”.

The banner of disarmament as a practical task of the foreign policy of the
Soviet State was raised by its founder, V.I. Lenin. As far back as 1922, at the
very first meeting of the conference in Genoa, People’s Commissar on foreign
affairs G.V. Chicherin stated, on Lenin’s instruction, that the Soviet Union
intended to propose general arms reduction and to support all the proposals
aimed at lessening the burden of militarism, providing the reduction of armies
of all the states. At the initiative of the Soviet Government in December of the
same year, an international disarmament conference was held in Moscow,
and though only six states took part, it was the first conference after the World
War of 1914-18 to be devoted specifically to disarmament.

The Soviet Union has conducted a particularly active struggle for arms
limitation and disarmament since World War H. If one brings together all the
Soviet proposals aimed at detente and providing for peace, disarmament and

*Representative of the U.S.S.R. to the Committee on Disarmament, Geneva and author of
The United Nations Organization and Disarmament (1981). Dr Issraelyan is a former Director
of the Political Science Department of the Academy of Diplomacy in Moscow and a current
Member of the Collegium of the Ministry of Foreign Affairs.

McGILL LAW JOURNAL

[Vol. 28

the improvement of relations between the states, which have been put forward
during the post-war period for consideration of international fora and of other
governments, they would fill a large number of sizable volumes.

The aim of the Soviet proposals in the field of disarmament is to prevent
a new World War, and to strengthen peace and international security. The
Soviet Union is making persistent efforts so that the question of the preserva-
tion of peace and the strengthening of international security is always of
paramount concern both at bilateral talks and at international conferences.
Despite the will of the peoples to prevent nuclear catastrophe manifested
so brightly in the course of the anti-war demonstrations held recently all over
the world, and in spite of the efforts of many people from many states over
many years, mankind has failed to attain notable progress in arms limitation.
In this context, doubts are sometimes expressed about the possibility of
overcoming the difficulties and differences which have appeared in the course
of disarmament talks. The question arises whether the long cherished goal of
mankind –
complete and general disarmament under effective international
control –
is achievable.

We believe that this goal is quite achievable. However, success at the
talks on disarmament can be attained only under certain conditions. One of
the most important is the political will of state leaders and governments to
conclude appropriate agreements. Even complicated problems arising in the
course of arms limitation and disarmament talks can be resolved if the
participants in the negotiations display good will and a sincere interest in the
search for an acceptable solution. It is clear that otherwise an agreement
cannot be reached. The history of the talks on disarmament reveals many
examples which confirm this belief. It is enough to remember the Soviet-
American talks, completed in the 1970s by the signing of a number of
agreements on the most important questions of arms limitation.

Another key prerequisite for success at the disarmament talks is accept-
ance of the premise that any agreement should be based on the principle of
undiminished security of states. This principle was set forth in the Final
Document of the First Special Session of the United Nations General Assem-
bly devoted to disarmament, which was adopted by a consensus of all the
member-states of that organization. Paragraph 29 states: “The adoption of
disarmament measures should take place in such an equitable and balanced
manner as to ensure that no individual State or group of States may obtain
advantages over others at any stage. At each stage the objective should be
undiminished security at the lowest possible level of armaments and military
forces”.

This principle, of course, is central to any political, but not only politi-
cal, talks among states. At talks involving problems of arms limitation and

1983]

NATIONAL PERSPECTIVES

disarmament, it has particular importance. What is involved is the vital sphere
of security interests of each state. Soviet diplomacy is always guided by this
principle. Thus, in 1958, the Soviet government, making a proposal to
prohibit the military use of outer space, declared that it was necessary to find a
solution which would not put into advantageous position either the United
States or the Soviet Union, or any third state and would equally take into
account the interests of security.

The principle of undiminished security of states, as a basis for agree-
ments on disarmament, is also included in a number of bilateral documents.
For example, the joint Soviet-American declaration on agreed principles for
the talks on disarmament, published in September 1961, emphasizes that all
measures on general and complete disarmament should be balanced in such a
way that, at any stage of treaty implementation, no single state or group of
states could obtain military superiority and equal security could be provided
for all. The final communiqu6 of the preparatory consultations relating to the
negotiations on the mutual reduction of armed forces and armaments in
Central Europe contains an agreement of the participants at the Vienna talks to
the effect that any concrete measures should be elaborated carefully with
respect to their substance and timing so that, in all respects and at any
moment, the principle of undiminished security of each state would be
upheld.

Finally, one of the most important documents of Soviet-American rela-

tions – Basic guidelines of mutual relations between the USSR and USA –
signed at the highest level in 1972, recognises that the attempts aimed at
obtaining unilateral advantages, directly or indirectly, on the account of the
other side are incompatible with these goals (proclaimed in the agreement).
The necessary prerequisites for maintaining and strengthening the relations of
peace between the U.S.S.R. and U.S.A. are the recognition of the security
interests of the sides based on the principle of equality and renunciation of use
or threat of use of force.

As is noted in United Nations research into the interrelation between
disarmament and international security, the particular form of the general
principle of equal security can be applied to negotiations between sides of
approximately equal military strength. This principle is, of course, particular-
ly relevant for relations between the U.S.S.R. and U.S.A., between the
NATO and Warsaw Treaty states. In the 1970s, the principle of equality and
equal security received wide recognition in Soviet-American documents
signed at the highest level. As an example, one could refer to the Soviet-
‘American communiqud on the occasion of the: visit to the: U.S.S.R. of
American President Nixon in May 1972. It declared that the two sides intend
to continue active negotiations on the limitation of strategic offensive arms
and to conduct those negotiations in a spirit of respect for the legitimate

REVUE DE DROIT DE McGILL

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interests of each other and in observance of the principle of equal security.
The well-known Vladivostok Declaration of 24 November 1974, of which
President Ford was a signatory, underlined that the new agreement on the
limitation of strategic offensive arms was based on the principle of equality
and equal security. Finally, the Treaty on the Limitation of Strategic Offensive
Arms, signed by President Carter for the American side, expressed the
agreement of the parties to consider in the future any measure to ensure the
equality and equal security of the sides.

Thus, at Soviet-American arms limitation talks, the principle of equality
and equal security was recognised by at least three previous United States
Administrations, both Republican and Democratic. Unfortunately, today we
cannot but note that President Reagan’s Administration has taken another
course. It refuses flatly to deal with the U.S.S.R. on the basis of equality and
equal security. It is suitable to rehearse here the words of Y.V. Andropov,
General Secretary of the Communist Party of the Soviet Union, Central
Committee: “Let no one expect from us unilateral disarmament. We are not
naive people. We do not demand the unilateral disarmament of the West, we
are in favour of equality, account of interests of both sides, fair agreement”.
The Soviet point of view is that the use, in practice, of the principle of
equality and equal security presupposes an objective assessment of the ex-
isting balance of world military forces, an unprejudiced analysis of the
armaments and armed forces of the parties to negotiations and of other states
and a realistic approach toward the international situation as a whole.

Security of the state is not an abstract notion. It is made concrete in the
joint elaboration by states of such principles in their mutual relations which
may become a political and legal basis for the security of each state while
creating the conditions for security for all. In addition, the collective inter-
state mechanism for maintaining general security –
the United Nations
Security Council –
is empowered by the Charter to adopt concrete collective
measures preventing and averting any threat to peace, and to suppress any act
of aggression. International trade, as well as mutually-beneficial economic,
scientific and technical cooperation also create a tangible fabric of mutual
interest in long-term relations. All these are the elements of security of states.
There is another side of the security notion, which, under certain conditions,
may become decisive for the destiny of both individual peoples and of
mankind as a whole. I have in mind the military aspects of security. Un-
doubtedly, national security is the direct responsibility of a state on behalf of
its people; it is its duty and right. The inalienable right of states to provide for
individual and collective self-defence, and consequently to possess the means
necessary to that end, is recognised by the United Nations Charter in art. 51.
Within the limits set out in that article, the concern of states for their national
security cannot have negative effects on international security.

1983]

PERSPECTIVES NATIONALES

However, the essence of the problem is the rational determination of
those limits. Experience shows that it is in resolving the question: How much
is enough for security?, that the sense of proportion often escapes the states-
men and politicians of the West and primarily of the U.S.A. Frequently,
military programmes are adopted which in no way can be justified by the
interest in strengthening security, and which may indeed destabilize the
strategic situation in the world.

One of the manifestations of such a trend is a myth about the so-called
“Soviet military threat”, or “Soviet military superiority”. To justify the myth,
juggled data, evidence of “experts” and conclusions of “analysts” are put
forward in the West. Numerous channels of propaganda are very active in
exaggerating the myth.

But if one stands on the solid soil of the facts, and there cannot be another
basis for the objective assessment of the correlation of forces, one has to
recognise that in strategic nuclear arms, in medium-range nuclear arms in
Europe and in conventional armaments and armed forces of NATO and the
Warsaw Treaty nations, there exists, in all cases, an approximate equilibrium
between the sides. There is no “Soviet superiority”. This fact is also recog-
nised by many authoritative figures in the West.

As has been stressed repeatedly by the Soviet leadership, Soviet military
doctrine has a strictly defensive orientation. The character of the Soviet
Armed Forces, the principles of their composition and the strategy and tactics
of their use have been and continue to be formed with a view to repelling any
aggression or threats aimed at the Soviet Union and its allies. The general
defensive orientation of Soviet doctrine has been and is now being expressed
in the military and technical policy of the Soviet State. The U.S.S.R. has
never taken the lead in creating weapons which are particularly dangerous for
peoples, but which could destroy every living thing on Earth. On the contrary,
it has always strived, and is still striving, to prevent warfare from becoming
more cruel, and to inhibit the spread of the arms race to new spheres.

It was so with nuclear and many other types of weapons of mass
destruction. It was not the U.S.S.R., but the U.S.A., which was the first state
to create atomic weapons and then the H-bomb. It was not the U.S.S.R., but
the U.S.A., which was the first to build nuclear submarines, inter-continental
bombers, nuclear aircraft carriers, and to equip missiles with independently-
targeted warheads. Washington has recently taken a new and heavy responsi-
bility upon itself for initiating the production of the neutron bomb.

Of course, one cannot determine with scientific precision the approxi-
mate balance of military forces between the U.S.S.R. and the U.S.A. It does
not mean that the quantitative and qualitative indices of the sides coincide
completely on all types of armed forces and armaments. It is only natural that

McGILL LAW JOURNAL

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the military posture of each side consists of priorities which are determined by
an entire complex of factors, each of which has its own specific character. The
comparison of even roughly equivalent items of the military forces of each
side is an extremely difficult matter. Therefore, when the word “equilibrium”
is used to reflect the correlation of forces between two states or two groups of
states, it means that, in considering the general military and strategic balance,
both sides are approximately in a similar position; neither of them has military
superiority over the other.

Recently, the U.S.A. has undertaken a programme of military build-up
which is in no way justified by the defensive needs of the country. It should be
noted that although the maintenance of a necessary level of defence capability
is lawful for each state as long as it threatens no-one, an unrestrained military
build-up conducted by some states endangers the foundation of security of
others and undermines international security as a whole, creating the threat of
war. The quest for military superiority by one side, particularly in the nuclear
field, compels the other side to adopt necessary measures for strengthening its
defence capability, thereby ensuring a military balance.

Experience has confirmed that the idea of achieving military superiority
over the U.S.S.R. and its allies is completely barren. It failed during the
period of formation of our socialist state; it is all the more incredible now that
the U.S.S.R. and other countries of the socialist community possess
tremendous economic potential which continues to grow steadily. However,
attempts to achieve military superiority are extremely dangerous in that they
lead inevitably to further expansion of the arms race. In a nuclear age, the
fundamental truth is that the higher the level of military confrontation, even
while maintaining the strategic balance, the less stable that balance becomes.
The greater the number of elements of uncertainty, the greater the possibility
of a nuclear conflict. The Political Declaration of the Warsaw Treaty mem-
ber-states of 5 January 1983 emphasizes that recently adopted, and already
implemented United States programmes of development and production of
nuclear weapons are dangerous: “[T]he policy of arms build-up pursued by
the USA and some of its allies to achieve military superiority is leading to the
frustration of international stability”. The Declaration stresses that, under
such conditions, “peace will become less stable and more fragile”. Finally,
the Soviet Union has repeatedly drawn attention to the fact that a new round of
the arms race will make nuclear weapons and other weapons of mass destruc-
tion still more complicated; consequently, it will be much more difficult to
elaborate international agreements on arms limitation and reduction.

In recent years, the policy approach of the socialist states has gained
international recognition. For example, in the previously mentioned United
Nations study on the interrelationship between disarmament and international
security, in which .experts from the U.S.A. and other NATO countries

1983]

NATIONAL PERSPECTIVES

participated, the distinguished experts stated unanimously that a new stage of
the arms race, and the development of new types of weapons, which will be
extremely difficult to control or limit by mutual agreements, may undermine
international stability and increase considerably the danger of war.

Of course, maintaining the established balance is not an end in itself. The
Soviet Union is in favour of starting to curve down the arms race, reducing
gradually the level of military confrontation. The interests of national security
of all states can best be ensured by pursuing peace and the relaxation of
international tension, supplemented by concrete measures in the field of arms
limitation and disarmament. The more durable and stable the peace, the
greater the security in which states and peoples will live. It is not the quest for
military superiority over other states, the notorious policy of “strength posi-
tion”, that enhances general peace and security, but rather a sober and
responsible approach toward the assessment of events in international life, a
readiness to adopt concrete and effective measures in the field of disarmament
based upon strict observance of the principle of undiminished security for
each side.

In this connection, of particular importance is the unilateral commitment
of the Soviet Union, undertaken in 1982, not to be the first state to use nuclear
weapons. This commitment is not simply a declaration about the peaceful
intentions of the U.S.S.R.; it is a concrete step introducing important new
elements into the strategy and tactical planning of the Soviet Armed Forces, a
development serving to strengthen the material basis of international security.
As Dmitry Ustinov, the U.S.S.R. Minister of Defence stated: “It means that
in training the Armed Forces, more attention will be paid to the tasks of
preventing military conflicts from developing into nuclear ones. These tasks,
in all their diversity, become an irrevocable part of our military activity.
Every expert versed a little in military questions, understands that they
establish a strong framework for the training of the troops and headquarters
staff, they determine the composition of armaments, and the organization of
still more strict control in order to preclude an unauthorized launch of nuclear
weapons, both tactical and strategic ones.”

The world community is entitled to expect that, after the commitment
undertaken unilaterally by the Soviet Union not to be the first to use nuclear
weapons, all the nuclear powers which have not done so will follow suit. The
37th Session of the United Nations General Assembly supported the Soviet
initiative in a most unambiguous manner, expressing hope, in a special
resolution, that other states possessing nuclear weapons would follow the
example of the U.S.S.R.

The leaders of the Western powers, at a recent Council of NATO,
elaborated a collective commitment according to which none of their arma-

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[Vol. 28

ments would be used other than in the course of a retaliatory strike. By this
declaration, they attempted to counter the Soviet pledge not to use nuclear
weapons first. The Soviet Union and other countries of the socialist commu-
nity have noted this declaration. The sincerity and seriousness of the declara-
tion will be tested by the reply of the West to the proposal of the Warsaw
Treaty member-states to conclude a treaty with the NATO member- countries
which would establish the principle of the mutual non-use of military force
and would promote the maintenance of peaceful relations.

The core of the treaty would be the mutual commitment of the member-
states of both alliances not to be the first to use either nuclear or conventional
weapons against each other. It is clear that such a proposal unmasks complete-
ly the allegations of the West that the appeal of the Soviet Union to renounce
the first use of nuclear weapons is designed to leave it free to benefit from its
“4superiority” in conventional armaments. The Soviet Union and its allies do
not seek unilateral advantages; they are seeking such mutually acceptable
steps as would divert the military threat and strengthen the security of all. A
positive reaction by the NATO member-states to this proposal of the socialist
countries would undoubtedly exert favourable influence on the future de-
velopment of international law and politics.

The peoples of the world follow with great attention the Soviet-
American strategic arms limitation and reduction talks and the discussions on
nuclear arms limitation in Europe. These two sets of talks have encountered
great difficulties; these difficulties are rooted in the unwillingness of the
United States to achieve an agreement on a fair basis, on the basis of the
principle of equality and equal security.

As far as the strategic arms limitation and reduction talks are concerned,
the U.S.A. has brought to them proposals which are aimed clearly at upsetting
the existing strategic parity and at achieving advantages -for itself. As a basis
for the negotiations at Geneva, the U.S.A. has singled out ballistic missiles
from the totality of the strategic systems, laying special emphasis on ground-
based ICBMs especially the heavy ICBMs of the SS-18 type. It is this type of
strategic system that the American side declares to be the most “destabi-
lizing”.

This posture has been adopted because the strategic nuclear forces of the
U.S.A. and the U.S.S.R. differ considerably in their structure. For several
decades they have developed differently under the influence of such factors as
the military and political situation in specific time periods, the individual
character of the geographic and strategic situation of each side, and the
selected technological solutions. As a result, seventy per cent of the strategic
potential of the U.S.S.R., measured by counting warheads, is represented by
ground-based ICBMs, while in the U.S.A., more than eighty per cent is

19831

PERSPECTIVES NATIONALES

represented by submarine-launched ballistic missiles [SLBMs] and heavy
bombers.

Aware of these structural differences, the U.S.A. put forward a proposal
which, when implemented, would mean that the Soviet strategic nuclear
potential, measured by the number of charges, would be almost three times
less than the American one, while the U.S.A. would be allowed to build up
freely its strategic armaments by deploying new ICBMs, the MX missile,
sea-based ballistic Trident-i and Trident-2 missiles, the B-1 strategic bomb-
er, and long-range cruise missiles.

If the U.S.S.R. followed the example of the U.S.A. and declared to be
most destabilizing those components of strategic forces in which the U.S.A.
has clear superiority, one could consider, as the most destabilising factor, the
almost threefold American superiority in SLBM warheads. One could also
note the particularly destabilizing nature of the United States strategic Air
Force, and the deployment of nuclear weapons on aircraft carriers, in which
the U.S.A. has manifold superiority over the Soviet Union. However, the
Soviet Union is not taking this course because it observes strictly and honestly
the principle of equality and equal security which requires each side to take
into account all the components of strategic forces.

On the basis of this approach, the U.S.S.R. proposes to reduce, stage-
by-stage, the total quantity of ICBM and SLBM launching pads as well as
heavy bombers to 1,800 units for each side by 1990, that is, to reduce by
twenty-five per cent the initial ceiling for these systems established by the
SALT-II Treaty. The number of nuclear charges on these delivery vehicles
would also be reduced to the agreed equal levels. It should be emphasized,
and this is a matter of principle, that at all stages of the reduction, the
U.S.S.R. and the U.S.A. would remain in essential equality regarding their
national security. The parity between them in the strategic field would be
maintained.

Putting forward these proposals, the Soviet Union takes into account the
existence of American forward-based nuclear forces, located in direct prox-
imity to the borders of the U.S.S.R. and its allies. For the U.S.S.R., these
armaments have a strategic character. Because they are not counterbalanced
by anything on the Soviet side (the U.S.S.R. does not possess similar systems
near United States territory), then, with the reduction of the number of
ICBMs, SLBMs and heavy bombers, the weight of the United States forward-
based forces in the strategic balance would increase steadily. Therefore, the
Soviet proposals envisage that during the mutual reduction of strategic nu-
clear forces, the United States, at the very least, should not increase other
nuclear systems capable of reaching Soviet territory. Otherwise, the U.S.A.
would benefit from a significant loophole to circumvent the agreements on

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[Vol. 28

strategic arms limitation and reduction. The Soviet proposals also contem-
plate the limitation of qualitative improvement of strategic armaments. In
particular, the U.S.S.R. favours the total prohibition of cruise missiles with a
range of more than 600 kilometres whether air-, land- or sea-based, and
promotes, within agreed parameters, the limitation of research and develop-
ment geared to the upgrading of existing weapons. If these constructive
proposals are rejected by the American side, and its plans to create new types
of weapons are implemented, then as was stated by Y.V. Andropov, General
Secretary of the Central Committee of the Communist Party of the Soviet
Union: “We will be compelled to counter the challenge of the American side
by deploying corresponding weapons systems of our own –
an analogous
missile to counter the MX missile, and our own long-range cruise missile,
which we are now testing, to counter the U.S. long-range cruise missile.”
However, we would not choose such a development. We are in favour of
ending the arms race by concluding agreements on strengthening security at
lower levels of armaments.

As far as the talks on nuclear arms limitation in Europe are concerned,
the position of the U.S.S.R. is also based clearly on the principle of equality
and equal security. On 21 December 1982, Y.V. Andropov stated that the
U.S.S.R. is prepared to agree that the Soviet Union should retain in Europe
only as many missiles as are kept there by Britain and France. This means that
the Soviet Union would remove hundreds of missiles, including scores of the
most advanced Soviet missiles, known in the West as the SS-20. In this case,
as far as the U.S.S.R. and the U.S.A. are concerned, this would be a really
honest “zero” option for medium-range missiles. Along with such an agree-
ment, there must be also an accord on reducing to equal levels the number of
medium-range nuclear delivery aircraft stationed in Europe by the U.S.S.R.
and the NATO countries.

In connection with these Soviet proposals, attempts are being made by
some interest groups in the West to prove something that cannot be proved:
that the Soviet Union should not take into account the threat to its security
represented by the missiles of the United Kingdom and France. These argu-
ments are beneath criticism. It is known generally that in the total balance of
nuclear forces in Europe, the British and French armaments are on the same
scale as the United States weapons. These states are allies in the North
Atlantic military and political bloc, a fact which speaks for itself. The British
and French nuclear armaments are taken into account by the Soviet Union
now, and they should and will be taken into account in the future, be it in an
agreement or in some other manner. The U.S.S.R. does not demand anything
from Britain and France. But it has many reasons to demand from the U.S.A.
that any treaty on nuclear arms reduction and limitation in Europe should
correspond to the principle of equality and equal security for each side. There

1983]

NATIONAL PERSPECTIVES

cannot be equal security in Europe, however, if the British and French nuclear
armaments are not taken into account.

The continued blocking of negotiations on such important problems as a
general and complete nuclear weapons test ban, a prohibition of chemical
weapons and the destruction of existing stockpiles, the limitation and further
reduction of military activity in the Indian Ocean, the limitation of conven-
tional weapons sale and supply, as well as the talks on the anti-satellite
systems –
all these are links in the same chain, connected inseparably with
the American quest for military superiority.

It is important to examine the verification problem also, for verification
is one of the measures which builds confidence in observing agreements. The
U.S.S.R. approach to verification is based upon the well-known provisions of
the Final Document of the First Special Session of the General Assembly on
Disarmament, which states in particular that disarmament and arms limitation
agreements should envisage verification measures sufficient to satisfy all
states-parties, and to create confidence that would promote observance by all
sides. The forms and terms of verification provided for in any concrete
agreement must depend upon the 6bjectives, scope and character of that
agreement. The Soviet Union also attributes great importance to the provision
of the Final Document which states that methods and procedures for verifica-
tion should be non-discriminatory and should not interfere unduly with the
internal affairs of other states or jeopardize their economic and social de-
velopment.

Some Western observers have attempted recently to limit the principle of
verification to only one of its forms: that is, on-site verification. An agree-
ment on the question of control through on-site inspection has been made a
prerequisite to talks on the substance of disarmament. Other approaches to
control which have won broad international recognition are ignored, as are the
opinions of eminent specialists. An example of this narrow approach, and a
striking one, is the position of the United States regarding a nuclear weapons
test ban. After long negotiations on a test ban, which led to an agreement on a
general approach to all aspects of the problem, and after many years of
studying related questions of control, the United States is now suggesting that
we start the whole thing right from the beginning. At the same time, it has
refused to become involved in the drafting of a treaty on this important
subject.

Moreover, the provisions of the Final Document of the First Special
Session on Disarmament, and the experience that has been gained in the
consideration of control and verification matters, indicate clearly that these
issues should be discussed and dealt with simultaneously, as an organic part
of our consideration of specific arms limitation and disarmament problems,

REVUE DE DROIT DE McGILL

[Vol. 28

rather than being divorced from them. Experience has also shown that
national technological means constitute a very reliable method of verifying
the extent to which an agreement has been implemented. At the same time,
where necessary, various methods of verification should be combined with
other control procedures, including international procedures such as on-site
verification on an agreed basis. The strengthening of trust would help to
ensure the application of additional control measures. This approach, based
on a combination of national and international means of control, is also
reflected in the new proposals for prohibiting chemical weapons and for
banning nuclear weapons tests put forward by the Soviet Union in 1982.

Many of our proposals for control in connection with the nuclear weapon
test ban go even further than the provisions of the relevant tripartite communi-
qu6 to the Committee on Disarmament, which reflected the degree of agree-
ment among the United States, the Soviet Union and the United Kingdom.
Additional functions would be performed by experts who would then deal not
only with the international exchange of seismological data and the promotion
of international consultation and cooperation, but would also play some part
in on-site verification.

Not all states have highly developed national technology available to
them for.effecting control. That being so, a number of Soviet documents put
before the United Nations and the Committee on Disarmament envisage the
possibility of releasing information gathered by means of national control
technology to those states-parties that do not possess such technology. On the
whole, the Soviet Union is ready to undertake business-like discussions to
resolve the question of control and verification of various arms limitation and
disarmament measures. This readiness is equally apparent in our approach to
the question of freezing nuclear arsenals.

At the same time, one cannot fail to see that certain measures, which
themselves do not represent arms reduction and disarmament, may not re-
quire any elaborate system of control. This is particularly true of any pledge or
treaty calling for the non-use of nuclear weapons. We believe that the concern
expressed in some quarters that the Soviet Union’s undertaking not to be the
first to use nuclear weapons and that the Indian draft convention which would
prohibit the use of nuclear weapons, do not envisage sufficient control and are
not subject to verification, is beneath criticism. It would be appropriate to
recall that a few years ago the United States, the United Kingdom and France
made unilateral declarations that they would not use nuclear weapons against
a limited number of states that did not possess such weapons. At that time,
they did not link their declarations to any verification procedure.

In principle, one should not rule out the possibility of creating interna-
tional machinery to verify the implementation of major steps in the process of

1983]

PERSPECTIVES NATIONALES

769

genuine disarmament, provided that the need is dictated by the substance of
the steps themselves. It should be remembered that the Soviet plan for general
and complete disarmament, which was put forward in the United Nations as
far back as the beginning of the 1960s, provided for the creation of just such
an international control organization, ensuring general and complete verifica-
tion. However, at that time we believed, and we continue to believe, that to
divorce control measures from the substance of disarmament agreements is
unwarranted and serves only to jeopardize the cause of disarmament. There
cannot be control without disarmament. If there is, in fact, genuine disarma-
ment, then any method of control, even the most far-reaching, should be
utilized.

The disarmament problem today is a universal problem, concerning
every state. All peoples of the world are interested in a positive solution to the
disarmament dilemma and every people, without exception, can make a
contribution to its solution.

Negotiating Arms Limitation Agreements: Non-Aligned

Perspectives

Inga Thorsson*

Introduction

Iam delighted that the editors of the McGill Law Journal have decided to
devote this issue to the problems of the arms race and disarmament. Having
been asked to contribute an article on the perspectives of non-aligned nations
in negotiating arms limitations agreements, I shall begin with some experi-
ences gained as representative from Sweden at the United Nations General
Assembly Second Special Session on Disarmament [SSOD II] held in New
York during June and July 1982.

As a citizen of Sweden, a neutral European nation that has participated in
the multilateral disarmament negotiations in Geneva since their beginning in
March 1962, 1 must state first that all of these negotiations have so far failed to
achieve the solutions so badly needed. The inability of the SSOD II to
elaborate and adopt a Comprehensive Programme on Disarmament, especial-
ly after several years of negotiations toward one in Geneva, accentuates this
failure.

Nevertheless, there is no way to conclude international agreements on
disarmament but through continued political negotiations; these will have to
be pursued with redoubled effort. Experience has taught us that no longer do
we have reason to believe that governments acting alone possess rational
thinking and common sense. Had these two elements been present, we would
have achieved genuine disarmament long ago. The world would be a different
world than it is today. But that is not the case. For many of us who have
participated over the years in disarmament efforts, our hopes are buoyed by
the determined will of all concerned citizens who seek to stop and to alter the
disastrous course that world events have taken. A similar hope was expressed
by President Eisenhower when, in 1959, he said:

I like to believe that people in the long run are going to do more to promote peace than are
governments. I think that people want peace so much that one of these days governments
had better get out of their way and let them have it.

Disregarding the tone of paternalism, so often heard in American Presidential
statements, I cannot but agree with this remark.

*Under-Secretary of State for Disarmament, Royal Ministry for Foreign Affairs, Sweden
and past Chairman of the United Nations Expert Group on the Relationship Between Disarma-
ment and Development.

1983]

NATIONAL PERSPECTIVES

But time is dear. Twenty-four years have passed since the words “one of
these days” were spoken. The Doomsday Clock on the cover of the Bulletin of
the Atomic Scientists now stands at four minutes to twelve. Viewing the
failure of the SSOD II against the background of today’s accelerating arms
race, this statement by Eisenhower is now a truism.

Many of us had built high hopes on the SSOD II. Unfortunately, the
weeks in New York last summer were weeks of agony and anguish. What,
then, is the final assessment of the Special Session from a neutral European
perspective?

Although in negative terms there is much to be said about the SSOD H,
one should not forget its achievements: It approved a concluding document
which, under the circumstances, is a good document. It approved guidelines
for a World Disarmament Campaign to be run under the auspices of the U.N.
It served as a catalyst for some of the most impressive disarmament and peace
manifestations ever witnessed.

On the other hand, many points can be made in negative terms. To begin
with, statements by the President of the United States and the Prime Minister
of Great Britain were distinctly unconstructive. These two world figures left a
distressing impression in the minds of delegations from non-aligned countries
and indeed set a negative tone which came to dominate the negotiations. One
must question the sensitivity of these two governments, especially given the
reactions of delegations to an earlier statement from U.S.S.R. Foreign Minis-
ter Gromyko and the message contained therein from President Brezhnev. It
is no exaggeration to say that the behaviour of the two leading Western
powers had a decisive impact upon the remaining weeks of the session.

I.

Superpower Behaviour

Such unconstructive behaviour may be traced to two causes. It is due
partly to the existing “cold-war” relations between the two superpowers, a
relationship which has deteriorated sharply since the mid-1970s. It is due
partly to the general attitude that the two superpowers bring to multilateral
disarmament negotiations, both in New York, and in particular, at the Com-
mittee on Disarmament in Geneva. Based on my own experiences, I would
characterize this attitude as negligent and obstructive. Both powers prefer
secret bilateral talks behind closed doors. They deny the Committee on
Disarmament the right and the iossibility to negotiate the highest priority
items on its agenda, an agenda which they themselves have approved. They
disregard U.N. resolutions which, though not legally, are politically and
morally binding – both powers having voted in favour of many of them. By
this behaviour, these powers show not only their disregard, but also their
arrogance toward the world around them, which seems to exist only in
relation to their own power politics and their own mutual relations.

REVUE DE DROIT DE McGILL

[Vol. 28

This attitude of disregard is displayed openly by the United States; it is
kept sheltered behind clever words and free-of-cost proposals by the Soviet
Union. In the United States, this view of the world is revealed also by the
media. In The New York Times of 29 June 1982, the opening day of the
START talks, an editorial began as follows: “The world’s oldest established
permanent floating disarmament conference reopens in Geneva today.”
Those familiar with the Geneva negotiations would have thought surely of the
multilateral Disarmament Committee, which began its work in 1962. The
New York Times, however, was referring to the bilateral SALT talks which
began in 1969. In The New York Times of 3 August 1982, a short report
appeared on the reopening of the Committee on Disarmament in Geneva
following the SSOD II. The report refers to the Committee’s work toward a
proposed ban on the development, production and stockpiling of chemical
weapons. It stated that this group is not expected to produce new agreements,
but that “progress in their talks might spill over into US-Soviet negotiations”.
The attitude of arrogance is revealed once more. If ever there was a field in
which a binding international agreement is needed, it is in the field of
chemical weapons. Any country with a modem chemical industry can pro-
duce chemical weapons. In the absence of an international agreement, this
danger is greatly increased. But in the view of The New York Times
correspondent, these multilateral negotiations were viewed only as a possible
benefit to American-Soviet negotiations!

A few examples of official state behaviour should provide the final proof
of superpower arrogance. But one caveat should be stated first. Although
most of the examples are taken from the United States, no conclusions can be
drawn from this fact alone. Examples of superpower arrogance are found
more readily in the United States only because the United States, unlike the
Soviet Union, is an open society.

In the concluding document of the U.N. SSOD II, the following was

agreed on, among other things, by consensus:

The General Assembly was encouraged by the unanimous and categorical reaffirmation
by all Member States of the validity of the Final Document of the Tenth Special Session
[SSOD I] as well as their solemn commitment to it and their pledge to respect the priorities
in disarmament negotiations as agreed to in its Programme of Action.

The United States subsequently approved this particular sentence. The Pro-
gramme of Action contains, in para. 51, the following sentence:

mhe negotiations now in progress on a treaty prohibiting nuclear-weapon tests… should
be concluded urgently and the result submitted for full consideration by the multilateral
negotiating body with a view to the submission of a draft treaty to the General Assembly at
the earliest possible date.

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PERSPECTIVES NATIONALES

In para. 45 of the same document, nuclear weapons disarmament is to be
given highest priority in disarmament negotiations.

In my view, this 1982 U.N. document, although not legally binding, is
politically and morally binding on all parties that voted for its adoption. The
United States is such a party.

There are also legal grounds for requesting effective negotiations on a
comprehensive test ban treaty. The Treaty Banning Nuclear Weapons Tests in
the Atmosphere, in Outer Space and Under Water of 5 August 1963, provides
in its Preamble that states-parties are: “Seeking to achieve the discontinuance
of all test explosions of nuclear weapons for all time, determined to continue
negotiations to this end.”

The Treaty on the Non-Proliferation ofNuclear Weapons of 1 July 1968,
recalls in its Preamble, “the determination expressed by the Parties to the
1963 Treaty… to achieve the discontinuance of all test explosions for all time
and to continue negotiations to this end”.

As a party to these two Treaties, the United States has a legally binding
obligation to continue negotiations in order to achieve a comprehensive test
ban treaty. The U.N. General Assembly has taken decisions repeatedly
making this issue the item of highest priority on the agenda of the Committee
on Disarmament. The United States has participated in such decisions since
1979. Despite these legal commitments, President Reagan announced, only
ten days after the adoption of the concluding document of the U.N. SSOD II,
his decision not to resume the so-called trilateral preparatory negotiations
between the U.S.A., the U.K. and the U.S.S.R. on such a treaty.

This act was a violation of these two Treaties. But we should not have
been surprised. We had been given advance notice. In a speech to the
Committee on Disarmament on 9 February 1982, the then Director of the
U.S. Arms Control and Disarmament Agency, Dr Eugene Rostow, stated:
“Limitations on testing must necessarily be considered within the broad range
of nuclear issues.” Two points must be made here. First, the reader should
note that the word chosen was “limitations”. No reference was made to the
legally binding commitment to a comprehensive ban. Second, there is noth-
ing in these legally binding commitments of the 1960s implying that a
comprehensive test ban is merely part of “the broad range of nuclear issues”.
The language in the two Treaties quoted above is clear and unequivocal: the
“discontinuance of all test explosions for all time” is not open to interpreta-
tion. An explicit commitment to a complete test ban was made in 1963.

In the same year, the United States concluded with the Soviet Union and
the United Kingdom the Partial Test Ban Treaty. It was ratified in the U.S.
Senate, by a vote of eighty to nineteen. During the ratification debate, the late

McGILL LAW JOURNAL

(Vol. 28

Senate Republican leader Everett M. Dirksen said: “I should not like to have
written on my tombstone: He knew what happened at Hiroshima, but he did
not take a first step.” After twenty years that “first step” is yet to be taken.
What will be written on the tombstones of those responsible for this ominous
fact? Although the negotiations in the early 1960s came very close to achiev-
ing the desired comprehensive test ban, they failed nevertheless. In his recent
book, Kennedy, Khrushshev and the Test Ban, Glenn Seaborg, who partici-
pated in these negotiations as Chairman of the U.S. Atomic Energy Commis-
sion, describes the failure as a “world tragedy of the first magnitude”. Indeed,
had these negotiations been successful, we might well have prevented the
rapid escalation of the nuclear arms race that has occurred since 1963.

The United States must consider also the political reasons for continuing
negotiations. The non-nuclear-weapon states, and particularly the non-
aligned states, are voicing now their growing opposition to the behaviour of
the nuclear-weapon states. These latter states are seen as obstructing the
progress towards nuclear disarmament that would be in accordance with art.
VI of the Non-Proliferation Treaty. Considering the bitter atmosphere at the
first-two Non-Proliferation Treaty Review Conferences in 1975 and 1980, the
United States would do well to remember that we are just two years away from
the third. What will happen then if we do not have a multilaterally-negotiated
comprehensive test ban treaty? Is the United States prepared to risk a collapse
of the Non-Proliferation Treaty? Although deficient, it is the only defence the
international community has against horizontal nuclear weapons prolifera-
tion.

This brings us to the second example of the disregard by superpowers of
international treaties. In the United States Congressional elections held on 2
November 1982, the issue of a “nuclear freeze” was included on the ballot in
eleven states, fifteen counties and twenty-two cities. A majority in ten states,
twelve counties and twenty-two cities voted in favour of a “nuclear freeze”.
The average vote in favour was about sixty per cent. This positive result was
obtained despite the Reagan Administration’s active campaign, led by the
Secretary of Defense, against this issue.

A nuclear freeze would be equivalent to ending the nuclear arms race.
This is something to which the United States, together with the United
Kingdom and the Soviet Union, is legally committed, being a party to the
Non-Proliferation Treaty. Article VI of the Treaty states that the parties
pledge themselves to carry out negotiations in good faith in order to end the
nuclear arms race at an early stage. The Treaty was signed by, among others,
the United States, the United Kingdom and the Soviet Union fifteen years ago
and came into force thirteen years ago.

After fifteen years of an accelerating nuclear arms race, the following
question must be raised: Are the nuclear-weapon states in breach of their

1983]

NATIONAL PERSPECTIVES

obligations under art. VI of the Non-Proliferation Treaty? More particularly,
was the recent campaign of the Reagan Administration against nuclear freeze
a violation of art. VI? My own conclusions, based on the above considera-
tions, are as follows. First, judging by their performance so far, one can
conclude only that the superpowers have failed in their so-called role as “the
trustees for humanity”. This expression I quote from President Reagan him-
self, from a letter addressed to U.S. Ambassador Rowny, chief negotiator at
the START talks, delivered on opening day, 29 June 1982. The rest of the
world is justified in doubting seriously the real chances of a future as
beneficiaries under these self-appointed trustees.

Second, the rest of the world asks to be equal partners in nuclear
disarmament negotiations for two fundamental reasons. Alone, the nuclear-
weapon states have been unable to solve the present dilemma; and all states,
whether nuclear or non-nuclear, aligned, non-aligned or neutral, share a
common fate of possible nuclear holocaust.

H.

The Arms Race

I shall elucidate these conclusions now by turning to the arms race itself.

Both its qualitative and quantitative aspects are relevant.

A.

Qualitative Aspects

Qualitatively, new weapons continue to be developed that are in-
creasingly capable of higher speeds and greater accuracy. New developments
in the conventional weapons field become known rather speedily as the world
witnesses even today such tragedies as the wars in Lebanon, and in the
Falkland Islands. The world came to grasp quickly, for example, the new
capabilities of an Exocet missile.

But while advances in conventional weapon technology, though disturb-
ing, are usually comprehensible, the rate of development of nuclear weapons
is almost incomprehensible to the human mind. In the 1982 issue of World
Military and Social Expenditures, Ruth Leger Sivard writes: “The efficiency
of a US car (fuel use to weight) has doubled since World War II; the efficiency
of a nuclear weapon (destructive yield to weight) has increased 150 times.”
And again: “The World Warll submarine could sink only passing ships. Now
a single submarine can destroy 160 cities as far away as 4,000 miles.”

The extent of military research and development is no less frightening.
Military research and development exploits at present about 500,000 scien-
tists, or about twenty per cent of the world’s total scientific resources. In pure

REVUE DE DROIT DE McGILL

[Vol. 28

monetary terms, twenty-five per cent of the global research and development
budget is devoted to military ends. Only twenty-three per cent is devoted to
four research areas of vital importance to human welfare and human future,
i.e. agriculture, health, energy, and environmental protection combined. One
of the reasons for this gross imbalance is perhaps that, on average, a military
product is said to require twenty times more research and development than an
average civilian product.

Turning to estimates for particular countries, military research and
development in the United States consumes thirty-five per cent of the total
research and development budget. In Japan, the figure is fourper cent and in
West Germany, it is seven per cent. In the United States, total research and
development spending continues to decrease as a share of the Gross National
Product, while in Japan and West Germany, the opposite is true. Some
conclusions can be drawn from these figures regarding the strength, growth
and vitality of the civilian economy in these countries, even in these times of
deepening economic crises. Let me elaborate: The present state of the econ-
omy of the United States compared with those of Japan and West Germany –
irrespective of the present cyclical crisis but related to the structural crisis –
and the degree to which human, material and financial resources are used for
military purposes, together with the general economic policies in the U.S.,
have already shown their negative effects on the civilian economy and will do
so increasingly. In terms of technology, innovations and productivity growth
rates, difficulties have been felt for quite some time now. These policies will
have continuously negative consequences if the present course is not changed
radically.

Another serious problem caused by devoting massive spending to mili-
tary research and development is the effect of new technology on doctrines
and strategies. Improvements in the speed, accuracy and efficiency of
weapons force the strategic planners to rethink the way in which they would
use the new weapons. Both military and political strategies are forced to
change. The now prevalent “flexible-response” doctrine is the obvious exam-
ple. It is of particular importance to examine the arguments made in its
defence.

Proponents of the doctrine contend that the accuracy and efficiency of
modern nuclear weapons systems make it possible to deliver “surgical
strikes” using “clean bombs” against specific military and political targets of
the perceived enemy. These strikes would be made in response to a previous
attack, and thus it would be possible to engage in limited nuclear war.

In my view, the doctrine breaks down for two reasons. First, while the
theory might appear logical on paper, it cannot be applied to conditions in the
actual circumstances of Europe. As the second smallest, most densely popu-
lated and most weapon-studded continent, Europe is hardly a stage on which

1983)

PERSPECTIVES NATIONALES

“surgical strikes” could be played out. The technicians speak of “Circular
Error Probable”. It refers to the size of the area around a target within which
fiftyper cent of the weapons launched would land. With improvements in the
precision and accuracy of weapon systems, this circle is reported to be as
small as 100 feet in diameter. This is a wonderful achievement for military
research and development, but it means nonetheless that fifty per cent of the
weapons used would fall outside the circle. In densely populated Europe,
even minute variance could result in unbelievable devastation.

Second, in considering nuclear doctrines adapted to the latest technical
improvements, the strategic thinker sometimes has to make use of arguments
which show clearly the hollowness of the nuclear era. When the doctrine of
Mutual Assured Destruction [MAD] came under attack some years ago, it
was argued by some strategic thinkers, in attempting to justify new theories,
that MAD was unacceptable not only militarily, but also morally. It is
difficult to follow that kind of argument. If strategists call a particular nuclear
doctrine “immoral” but do not want to give up nuclear weapons, nor even
proclaim no-first-use, another doctrine must be established that would be
moral, or at least less immoral. The presupposition must be that strategists are
prepared actually to use nuclear weapons in war, but are anxious to use them
as morally as possible. Hence the flexible response and the counterforce
doctrines were born, giving rise to theories of”a limited nuclear war”. In turn,
these developed into ideas of “a fightable and winnable nuclear war”.

As a European, I have every reason to reflect on these new strategies and
their effects on other Europeans. It is becoming more and more obvious that
limited nuclear strikes, while horrific in themselves, would have, in turn, dire
consequences: They would not remain limited. As a result, the “flexible-
response” doctrine is encountering increasing public resistance, and has been
indeed a catalyst for the peace movements in Western Europe. Ironically,
recent attempts by both powers to develop this doctrine further, by the
deployment or production of new types of intermediate-range weapons, have
served only to expose the contradictory propositions behind the doctrine, and
indeed, behind nuclear weapons themselves.

B.

The Dilemma

We begin to see now the dilemma of our age. Our theories of defence are
predicated upon the assurance of our own destruction. To protect ourselves,
we must be prepared to destroy ourselves. What is worse, complete and final
destruction could be brought about not only by intention, but even by acci-
dent.

McGILL LAW JOURNAL

[Vol. 28

The need to rid Europe of this insane situation is obvious, but achieving
removal of weapons is as difficult as it is necessary. The plethora of weapons
that have been implanted almost light-heartedly in and around Europe in the
last three decades cannot be removed overnight. And we do not see any
indication of a sincere will to remove the threat imposed on Europe by this
so-called balance of terror. Herein lies the dilemma: reliance on deterrence
leaves the world in a precarious situation at best; the achieving of disarma-
ment appears to be a near-impossible endeavour. On the one hand, we have
the hollowness of unacceptable nuclear doctrines, the concept of deterrence
and the existence of nuclear weapons themselves. No increased security is
gained by any state through a relentless build-up of arms. The only thing
increased is the risk of nuclear holocaust. On the other hand, we have the
difficult but solvable problem of achieving arms limitation agreements and
ultimately disarmament. This is the political and moral dilemma of our age. It
is shared not only by the nuclear-weapon states, it is shared by all of us.
From a slightly different perspective, the dilemma has never been
expressed more eloquently than by Archibald MacLeish, a great American
man of letters. In his essay called “Master or Man”, published in 1978, he
wrote:

increasingly difficult but still possible-

Prior to Hiroshima it had still been possible-
to
believe that science was by nature a human tool, obedient to human wishes and that the
world science and its technology could create, would therefore be a human world,
reflecting human needs, our human purposes. After Hiroshima, it was obvious that the
loyalty of science was not to humanity but to truth –
and that the law of
science was not the law of the good – what humanity thinks of as good, meaning moral,
decent, humane –
but the law of the possible. What it is possible for science to know,
science must know. What it is possible for technology to do, technology will have done. If
it is possible to split the atom, then the atom must be split. Regardless, Regardless … of
anything.

its own truth –

C.

Quantitative Aspects

The relentless arms race has also its quantitative aspects. Total world
military expenditures, estimated for the year 1982 at 650 billion U.S. dollars,
are beyond what even the human mind can grasp. To demonstrate that they are
completely beyond anything reasonable, I shall give two examples. First, in
the 1982 issue of World Military and Social Expenditures, Ruth Leger Sivard
notes: “The world’s stockpile of nuclear weapons is equivalent to 16,000
million tons of TNT. In World War II 3 million tons of munitions were
expended, and 40-50 million people died.” Second, according to estimates in
1955 by the U.S. Strategic Air Command, 600 to 700 nuclear warheads
landing on Soviet targets would be sufficient to destroy completely all
defence capability of the U.S.S.R. The United States has somewhere between
25,000 and 30,000 warheads; and, according to available information, the

1983]

NATIONAL, PERSPECTIVES

Reagan Administration plans to increase the number to 40,000. Even assum-
ing that 700 warheads were necessary to destroy Soviet defence capability,
for what purposes does the President intend to use the remaining 39,300?
The Reagan Administration has held repeatedly to its firm position that
the U.S. has lost its nuclear superiority to the Soviet Union. The position is
contradicted equally repeatedly by American domestic authorities, and one is
not hard-pressed to find examples. In an article in the 1982 Spring issue of
Foreign Policy, Editor Charles William Maynes writes:

America needed superiority in weaponry to make America again “war-proof’.
Technological dominance would make any attack on the US as immediately suicidal as the
attack on Pearl Harbour had been ultimately suicidal for the former military rulers of
Japan. Acting on these lessons the US has since World War II led the way in repeatedly
introducing new and more potent technology into the arms race.

In the 1981 issue of World Military and Social Expenditures, Ruth Leger
Sivard notes that in the action-reaction game between the superpowers in the
nuclear era, the United States has led the way in all but two of twelve cases of
innovations in nuclear military technology. The alleged loss of American
superiority is simply not true.

HI.
A.

Arms Limitation Agreements
Why Failure?

Why have multilateral disarmament negotiations failed? The question is
especially perplexing given that in 1978, the U.N. General Assembly stated
unanimously in the Final Document of SSOD I that “the continued arms race
means a growing threat to international peace and security and even to the
very survival of mankind”. For decades now, the world community has tried,
through political negotiations, to secure genuine and durable peace through
disarmament. Despite these efforts, not a single nuclear weapon system has
been dismantled unless obsolete and useless. The number of nuclear war-
heads continues to increase. Why, then, have we failed so dismally?

While the question is open to much conjecture, it is wise to look to both
the military and political motives that lie behind a continued arms race. One
can discern at least three factors. First, there is “mirror-imaging”. Both
superpowers have a conviction that they must have at least what they believe
their adversary to have. Herein lies the source of the well-known action-
reaction problem. Second, and closely related to the first factor, there is the
extraordinary secrecy that pervades the arms race. Secrecy poses overwhelm-
ing difficulties for efforts to assess the resources and intentions of the per-
ceived adversary. It creates a vicious circle of distrust: secrecy leads to
distrust and lack of confidence, which in turn triggers further secrecy. As long

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as the vicious circle is kept in motion, so is a never-ending arms race. Third,
there is the factor of lead time. With today’s sophisticated and intricate
technology, the period required for planning, development and production of
new weapon systems is about ten years. A lead time of this size causes
additional speculation about the intentions and plans of the adversary. What
sophisticated new weapons will “they” have ten years from now? What,
therefore, must “,ke” begin developing now in order to keep our place in the
arms race?

A second explanation for the failure of disarmament negotiations is
found in the manner in which these negotiations have been carried out. I have
already noted above the arrogant attitude that the superpowers have brought to
the multilateral disarmament negotiations in the forty-nation Committee on
Disarmament in Geneva. The fate of the work toward a comprehensive test
ban treaty demonstrates the kind of results we can expect from such attitudes.
In their arrogance, the superpowers regard the other thirty-eight nations, and
even the rest of the world, primarily in the context of their own bilateral
relations.

B.

A Moratorium is Needed First

In an editorial in the May 1980 issue of the Bulletin of the Atomic
Scientists, Editor-in-Chief, Professor Bernard Feld discusses the idea of a
moratorium on weapons development pending the conclusion of disarmament
treaties. He considers the main problem to be that the two superpowers
negotiate arms control while simultaneously engaging in a vigorous race to
increase and to improve the same weapons the negotiations are supposed to
control. It is common knowledge now that the pace of negotiations is much
slower than the pace of technological development. Efforts to limit, then,
would seem to be in vain unless the development of the arms under considera-
tion is frozen during the negotiating period. Prior agreement on a moratorium
on further development and deployment is a prerequisite for success in arms
limitation negotiations.

Numerous examples prove this point. During various phases of the
SALT I talks, the introduction of new “bargaining chips”, the multiple
independently-targetable re-entry vehicles [MIRVs] and cruise missiles,
caused the negotiations to drag. Momentum remained strong and steady
nevertheless in the technological development of these new missiles
mankind was blessed with MIRVs and cruise missiles.

–

The long, drawn-out negotiations on a comprehensive test ban treaty are
another case in point. While the work toward such a treaty has stretched over
decades now, underground test explosions have continued unchecked by any

1983]

PERSPECTIVES NATIONALES

agreements whatsoever. The most recent example is the planned U.S. MX
missile. In his statement of 22 November 1982, President Reagan introduced
this new weapon as a “bargaining chip” in the START talks with the Soviet
Union in Geneva. Without a moratorium on these kinds of developments, the
likelihood of success in future negotiations is lowered enormously.

Conclusion: The Future

Has disarmament a chance? We are in a race with time, and we are
losing. I believe that our chances of success depend upon two factors. Both
provide a cause for some hope. The first is the possibility of a fundamental
change in power structures. The second is growing public awareness.

There are already indications of fundamental power shifts, and, I be-
lieve, the beginning of a decline in superpower influence. We have witnessed
already a relative rise in the power and influence of countries like Japan and
some members of the European Community. Such shifts in power make it
more difficult for the superpowers to exert their military and political influ-
ence. Furthermore, there could be major shifts in economic power. Both the
United States and the Soviet Union run the grave risk of allowing their
economies to falter by continuing the pursuit of a ruinous arms race in times of
serious economic difficulties. Thus, the economy could become an important
factor in the disarmament process. It is widely acknowledged that one prereq-
uisite of national security is a strong and healthy world economy. It is
therefore of utmost importance to identify the factors which have caused our
global economic crisis. One finds it difficult not to have the impression that
the arms race is one of the major causes. A U.N. Governmental Expert Group
that I chaired was charged with carrying out a comprehensive study on the
relationship between disarmament and development. After three years of
study, our report was submitted to the 36th Session of the General Assembly
in 1981. Our analyses show convincingly the devastating effects on the
economy caused by devoting human, material and financial resources to the
arms race. Based on extensive research, we drew a number of conclisions
which can be summarized in two points. First, a fundamental choice must be
made. The world can either continue to pursue the arms race with characteris-
tic vigour and accept the heavy burden that it places on the economy, or, it
must move consciously toward a more sustainable international economic and
political order. It cannot do both. Second, there is a mutual self-interest
among all countries in effective disarmament, irrespective of economic and
social systems, or levels of economic development. In the words of Dr
Christoph Bertram, a strategic thinker of repute, the economy could become a
factor for disarmament. Indeed, it is a positive sign that the General Assembly
decided in 1982, at its 37th Session, to place this important economic issue on
its agenda at regular intervals.

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[Vol. 28

The other cause for hope is rapidly growing public awareness. For a
growing number of people, the fundamental issue has changed from one of
deterrence and military balance to one of survival. Change is being wrought,
albeit slowly, by a growing awareness of the real threat posed by nuclear
weapons. For the first time since Herman Kahn published Thinking About the
Unthinkable in 1962, people are thinking about the unthinkable. Suddenly,
they have understood that they must do so because military and political
leaders, by their rhetoric of “controlled nuclear counter-attacks” and “pro-
tracted conflict periods”, have made the unthinkable not only thinkable but
also possible, if not probable. Much has been said about the imperative need
for a change of wills and minds, but we have waited a long time for that
change and our patience has run out. People understand now that this present
trend must be stopped for the sake of survival. Recently, many of us have
gained new hope because of the appearance of this potentially significant
political force.

George F. Kennan has called the forceful popular peace movements in
Western Europe, North America and Japan the most striking phenomena of
the early 1980s. Already they are having an influence upon political events. In
Sweden, it is our hope that these movements will continue with increased
momentum, and that they will lead eventually to the successful completion of
multilateral arms limitation and disarmament agreements.

In my view, these popular movements are crucial. The lesson that we
have learned from past negotiations is profound: World political leaders
continue to show a dangerous lack of knowledge, insight and imagination in
coping with the problems and issues in this, our thirty-eighth year of the
nuclear era. They are unlikely to change their modes of thinking. Who, then,
can turn around this calamitous course of history? If we can form an interna-
tional constituency and cast a global ballot for disarmament, then it is we, the
people.

1984 and Beyond: Canadian Policy on Arms Control

and Disarmament

J. Alan Beesley, Q.C.*

Introduction

Given the complexity, diversity and scope of arms control and disarma-
ment, it may seem ambitious to attempt to summarize Canadian policy in a
brief article. However, in light of the intrinsic importance of the subject, and
the unprecedented public interest in and concern over the arms race, it seems
appropriate to include an outline of some of the salient features of Canadian
policy in an issue of a Canadian university law journal devoted wholly to arms
control and disarmament.

I.

Canada’s Tradition of Arms Control and Disarmament

Canada’s involvement in arms control and disarmament can be traced
back to the Rush-Bagot Treaty of 1817 whereby the U.S.A. and Great Britain
agreed to limit the size of their naval forces on the Great Lakes, an early
example of a bilateral agreement between two Great Powers affecting the fate
in this case favourably – of less powerful countries such as Canada. In
–
more recent times, in 1945, Canada, together with the United States and
United Kingdom, proposed the establishment of a United Nations Atomic
Energy Commission for the purpose of “entirely eliminating the use of atomic
energy for destructive purposes”. In August 1957, Canada, France, the
United Kingdom, and the United States submitted a “package” of measures in
the sub-committee of the United Nations Disarmament Commission includ-
ing a commitment “not to transfer out of [their] control any nuclear weapons
or to accept transfer to [them] of such weapons” except for the purposes of
com-
self-defence. Canada was a member of that original sub-committee –
prising also the United States, Great Britain, France, and the Soviet Union –
which was established in 1952. Canada has been continuously a member of
the Eighteen-Nation Disarmament Committee [ENDC] which commenced its
operations in 1962, the Conference on the Committee on Disarmament
[CCD] established in 1969, and the forty-member Committee on Disarma-

*Ambassador of Canada for Disarmament. Ambassador Beesley is a career diplomat who
was Head of the Bureau of Legal Affairs of the Canadian Department of External Affairs and
later Chairman of the Drafting Committee for the UnitedNations Convention on the Law of the
Sea (1982). This article is based, in part, on a speech given by the author to the John E. Read
International Law Society in Halifax, 8 March 1983.

REVUE DE DROIT DE McGILL

[Vol. 28

ment [CD] set up in 1978. The tradition of active and constructive participa-
tion by Canada in arms control and disarmament negotiations has continued
unabated and has, indeed, intensified in recent years.

H.

The Legal Framework

The “law of disarmament” is not lacking in important and effective
examples of conventional law, but is sadly deficient in terms of universal
binding norms. While the League of Nations proved unable to prevent war by
controlling the arms race, it should nonetheless be noted that the Covenant
included the declaration that “maintenance of peace requires the reduction of
national armaments to the lowest point consistent with national safety and the
enforcement by common action of international obligations”. Moreover, the
Treaty of Versailles imposed strict limitations upon Germany’s armaments
and demilitarized the Rhineland, and the allied powers attempted to establish
agreed limits on weapons. These efforts failed when Germany walked out of
the 1932 General Disarmament Conference and left the League, although the
Disarmament Conference continued intermittently until 1937, when it broke
up in the face of deadlock.

The United Ndtions Charter attempted a markedly different approach
based on a system of collective security envisaging multinational U.N. forces
operating under the direction and control of the Security Council. Unlike the
Covenant, the Charter did not assign a high priority to disarmament. On the
contrary, the five Great Powers would retain their armaments and act together
as the “five policemen” to ensure the disarmament of Germany and Japan and
the maintenance of peace pending the establishment of effective U.N. mili-
tary forces. The framers of the Charter intended to prevent “the scourge of
war” by controlling the use of force rather than by the elimination of arms.
Thus the Charter does not include the elimination of the arms race as a
Charter obligation. One must search elsewhere for norms.

Canada has argued before the U.N. General Assembly First Committee
that the principles embodied in the 1925 Protocol for the Prohibition of the
Use in War ofAsphyxiating, Poisonous or Other Gases, and ofBacteriologic-
al Methods of Warfare, signed at Geneva, 17 June 1925, have developed
through the customary law process into peremptory norms of law binding
upon all states (although over a score of the member-states of the U.N. have
not ratified or acceded to the Protocol). Even in the case of some of the most
important and far-reaching arms control agreements concluded since the
Second World War, such as the Non-Proliferation Treaty, the Partial Test
Ban Treaty, the Outer Space Treaty, and the SeabedArms Control Treaty, all
of which have been accepted by well over 100 states, it is not argued seriously
that the principles embodied in such treaties constitute jus cogens (that is to
say, peremptory norms binding on all states).

1983]

PERSPECTIVES NATIONALES

Yet the two important “non-armament” treaties, the Outer Space Treaty,
banning the stationing of weapons of mass destruction in outer space, and the
Seabed Arms Control Treaty, banning the emplacement of such weapons on
the seabed and ocean floor, together wholly encompass two huge environ-
ments. Perhaps it is open to be argued-that these treaties embody principles
that have already developed into normative rules or are in the process of doing
so, but definitive conclusions are not possible. Still less success has been
achieved in developing peremptory norms with respect to land areas (subject
to national sovereignty) and the high seas (beyond national sovereignty), even
in the case of the limited field of weapons of mass destruction. Nevertheless,
important albeit limited conventional law exists even with respect to these
environments, including, in particular, the Antarctic Treaty and the Latin
American Nuclear-Free Zone Treaty. It is not inconceivable that these con-
ventions may be developing into “law-making treaties”, laying down peremp-
tory norms.

It is more difficult to make such an argument in the case of the Partial
Test Ban Treaty and the Threshhold Test Ban Treaty, because important
nuclear weapons states have not yet become parties, and still less so in the
case of the Non-Proliferation Treaty, which has well over 100 parties, but
which has not yet been adopted by France or China, and which is vigorously
opposed by some non-nuclear weapons states. Perhaps there is too much of a
tendency to accept arms control treaties as conventional law binding only
upon their respective parties and insufficient effort to encourage the greater
utilization of the customary law process as a means of translating treaty
obligations on arms control into universally binding norms. It is necessary,
therefore, to employ a variety of means in advancing Canadian arms control
and disarmament objectives.

II. Recent Diplomatic Initiatives

A significant diplomatic initiative was taken by Canada on 1 February
1983, when Canada’s Deputy Prime Minister and Secretary of State for
External Affairs went to Geneva to deliver a major policy statement in the
Committee on Disarmament. His statement is worthy of careful considera-
tion. It was, in fact, much more than a policy declaration; it constituted a part
of the negotiating process now undeiway in Geneva, in particular the negotia-
tions on intermediate-range nuclear forces [INF]. As part of that negotiating
approach, Mr MacEachen had arranged to see both the U.S.A. and the
U.S.S.R. INF and strategic arms [START] negotiators prior to making his
policy statement. Thus, in enunciating the Canadian position, his statement
reflected not only the results of the discussions with the negotiators for the two
superpowers, but was directed to bringing Canada’s influence to bear in those
very negotiations.

McGILL LAW JOURNAL

[Vol. 28

In his address, the Deputy Prime Minister made a public reaffirmation of
NATO solidarity and of continuing commitment to the NATO two-track
decision. Such statements were echoed shortly afterwards by U.S. Vice-
President Bush, as well as by the Foreign Minister of the Federal German
Republic. Rarely does such a series of high level statesmen address the
Committee on Disarmament. It is evident that these policy statements consti-
tute an important part of the negotiating process, even on those issues
discussed bilaterally outside the Committee on Disarmament.

By the same token, the meetings these statesmen have held with the
negotiators on both sides, beginning with those held by Mr MacEachen, are
an important element in the negotiating process. It is by such means possible
–
that Canada’s voice be heard by both sides on
questions of vital concern to Canadians.

and perhaps essential –

Turning to the substance of the policy statement, entitled Mutual Secu-
rity: Negotiations in 1983, it is important to note the overall thrust of the
statement: “[A]n increase in mutual security is the only sound basis for
effective arms control and disarmament”. The message was very clearly
addressed to both superpowers. The Deputy Prime Minister quoted Prime
Minister Trudeau’s statement at the Second United Nations Special Session
on Disarmament [SSOD I], stressing that security in today’s world cannot be
achieved on a purely national basis; that attempts by one side to make gains at
the expense of the security of the other ultimately will not work; and that
action produces reaction and in the end, neither side achieves a long-term
gain.

Mr MacEachen applied these principles in very specific terms to the
bilateral intermediate-range nuclear force negotiations. He pointed out that
such negotiations can succeed only if both parties accept, as their fundamental
objective, increased mutual security rather than unilateral advantage. He
went on to explain that it was only as a result of the December 1979
“two-track” decision by NATO, taken in response to the Soviet build-up of
intermediate-range missiles targeted on Western Europe, that the INF nego-
tiations were begun at all. It will be recalled that the NATO governments
proposed negotiations between the Soviet Union and the United States to limit
land-based intermediate-range missile systems on both sides. At the same
time, the NATO Alliance agreed to deploy Pershing II missiles and ground-
launched cruise missiles beginning in late 1983 if such negotiations were
unsuccessful. Mr MacEachen reminded the Committee on Disarmament that
while, initially, the Soviet Union was critical of the NATO decision and
reluctant to engage in negotiations, eventually, in the autumn of 1980, the
Soviet Union agreed to preliminary discussions, and a year later, in Novem-
ber 1981, formal negotiations began.

1983]

NATIONAL PERSPECTIVES

It is suggested that these events constitute a classic example of the direct
application of the principle of mutual security. As was pointed out by Mr
MacEachen, there is some encouragement to be derived from the fact that the
Soviet Union clearly has recognized that NATO governments have a legiti-
mate concern about the number of SS-20s aimed at their European member-
states, and that a reduction is necessary, as evidenced by a recent Soviet
proposal concerning possible reductions of such weapons. As stated by the
Secretary of State for External Affairs in Geneva, “[t]his in itself is progress.
However, it is not yet clear that both sides have accepted that mutual security
must be the basis of the negotiations. That is why 1983 is crucial.” The events
of 1983 will have important and far-reaching implications for 1984 and
beyond.

At this stage, it is appropriate to make reference to another important
policy pronouncement contained in the February Geneva statement, again
one clearly addressed to all parties, and with significant implications for
future Canadian policy.

After outlining the principles underlying effective arms control and
disarmament negotiations, and emphasizing mutual security as the only
acceptable basis for arms control and disarmament,* Mr MacEachen made
the following statement: “An attempt by any power to develop a policy which
assumes that nuclear war can be winnable contributes to mutual insecurity.”
He went on to describe this statement as a home truth, albeit directly relevant
to the current situation. This statement provides a sharp contrast to some of
the rhetoric directed to the other element of the arms control and disarmament
equation, namely the necessity for sufficient arms to provide an effective
deterrent.

Examples of statements by both sides questioning the long-standing
concept of mutual deterrence, which, in turn, is founded on the certainty of
“Mutually Assured Destruction” [MAD], are readily available. Canada re-
jects the “winnable nuclear war” approach, and will resist it. This, it is
suggested, is an encouraging fact of life.

*In Dr MacGuigan’s statement of 25 February 1982, he indicated the Canadian perception of
the crucial issue of the degree of balance of forces between the two superpowers in the
following words: “We now face approximate parity at the strategic level between the Soviet
Union and the United States, Soviet superiority in intermediate-range nuclear weapons in
Europe, and the numerical superiority of the Warsaw Pact in conventional land forces.”

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IV. Canadian Arms Control and Disarmament Objectives

Canada’s long-standing and active pursuit of arms control and disarma-
ment has never consisted of mere policy pronouncements. Canada has pro-
posed and is today pressing forward negotiations on a series of concrete
proposals on fundamental arms control and disarmament problems. What
follows is a brief summary of recent Canadian proposals which give some
indication of the scope, variety and intensity of Canada’s position.

The control and reduction of armaments form an important part of

Canada’s security policy. Canadian priorities remain:
(a)
(b)

to strongly support negotiations to limit and reduce nuclear arms;
to promote early progress toward the realization of a multilateral
comprehensive test ban treaty [CTBT];
to press forward negotiations on a convention to completely prohibit
chemical weapons;
to promote the evolution of an effective non-proliferation regime based
on the Non-Proliferation Treaty;
to work toward the objective of prohibiting the development, testing
and deployment of all weapons for use in outer space;
to participate actively in negotiations to limit and reduce conventional
forces; and
to seek, step-by-step, to ultimately achieve general and complete
disarmament, consistent with the legitimate security needs of states.

(c)

(d)

(e)

(f)

(g)

The Canadian Government takes every opportunity to stress the impor-
tance it attaches to the continuation of the SALT/START process, for exam-
ple, at the recent meetings in Geneva followed by talks in Ottawa with
Vice-President Bush and at later consultations in Washington between Prime
Minister Trudeau and President Reagan, as well as in exchanges with the
U.S.S.R. through diplomatic channels. In the Committee on Disarmament in
Geneva, Canadian expertise is being applied in the search for a comprehen-
sive nuclear test ban and for a ban on chemical weapons. The Chairman of the
Working Group on Chemical Weapons is Canadian Ambassador D.S.
McPhail. In the Mutual and Balanced Force Reduction Talks in Vienna,
Canada is seeking to limit and reduce conventional forces in Europe.

The Prime Minister, in his address to the Second U.N. Special Session
on Disarmament on 18 June 1982, proposed a “policy of stabilization”, with
two complementary components: the strategy of suffocation which seeks to
inhibit the development of new weapons systems, and Canada’s negotiating

1983]

PERSPECTIVES NATIONALES

approach aimed at qualitative and quantitative reductions in nuclear arsenals
designed to achieve a stable nuclear balance at lower levels. The Prime
Minister had proposed the strategy of suffocation at the First U.N. Special
Session on Disarmament [SSOD I] in 1978. Its objective was to arrest the
dynamics of the strategic nuclear arms race through the realization of four
interrelated verifiable agreements designed to reduce the “technological im-
pulse”: a comprehensive test ban treaty; a ban on the flight-testing of all new
strategic delivery vehicles; a ban on the production of fissionable material for
weapons purposes; and an agreement to limit and then progressively to reduce
military spending on new strategic weapons systems. As the Prime Minister
has noted, “the strategy was never meant to be applied unilaterally”. It was
always envisaged within the context of negotiated agreements between the
nuclear powers.

The strategy of suffocation is being actively promoted in international
fora, in particular at the United Nations. Moreover, Canada continues to
contribute concretely to more specific discussions which deal with im-
plementing elements of the strategy. Canada has called for the resumption of
the U.K.-U.S.A.-U.S.S.R. talks on a comprehensive test ban. In the Com-
mittee on Disarmament in Geneva, Canada is participating in the working
group on a nuclear test ban and, also, in the work of the Seismic Experts
Group which is developing an international verification system for an even-
tual test ban treaty. Canada has also continued its efforts to effect implementa-
tion of the second and third elements of the strategy. Although Canada is also
pressing for action with regard to the fourth element, agreements to reduce
military budgets cannot be concluded until the U.S.S.R. and its allies assume
a more open policy with regard to information about their military spending.
It has been a long-standing Canadian position since the outset of arms
control and disarmament negotiations after the Second World War that
verification mechanisms are not only the key to the implementation of arms
control and disarmament agreements, but in some cases a virtual precondition
to their conclusion. It is encouraging that both superpowers are now directing
their attention to various aspects of the problems of verification which go to
the heart of every arms control and disarmament problem. Canada will
continue to pursue most vigorously its efforts to push forward verification
studies utilizing expertise inside and outside of government.

V.

Canadian Priorities for the Committee on Disarmament

This is an appropriate stage at which to turn to the second part of the
policy statement made by the Secretary of State for External Affairs in
Geneva on 1 February 1983, namely, Canada’s priorities in the Committee on
Disarmament. It is worth noting that the statement was made in the full
knowledge that with respect to some of these priority issues, Canada’s

McGILL LAW JOURNAL

[Vol. 28

proposals present difficulties for one or both of the superpowers. Thus, while
recognizing the facts of life concerning the limits upon Canada’s ability to
influence events, Canada has not hesitated to press vigorously for action and
has sought support for such action from others where it is needed.

Mr MacEachen emphasized that the pursuit of a comprehensive nuclear
test ban is a fundamental – perhaps the fundamental –
nuclear issue before
the Committee on Disarmament. He urged that the new working group begin
to discharge its mandate on that subject as a matter of urgency in 1983. He
argued for a step-by-step approach that could ensure that the key elements of a
treaty are in place even before a final political commitment to a comprehen-
sive nuclear test ban treaty has been undertaken by the nuclear weapons
states.

Mr MacEachen then stressed the importance Canada has always attached
to the prevention of the further spread of nuclear weapons. He pointed out that
the Non-Proliferation Treaty emphasizes the non-discriminatory transfer of
peaceful nuclear technology, but provides also for the de-escalation of the
arms race by nuclear weapons states. He reminded the Committee that while
more non-nuclear weapons states have adhered to the Non-Proliferation
Treaty, such voluntary renunciation has not been matched by corresponding
action by the nuclear weapons states. He suggested that those states with
nuclear technology and those without must seek to persuade the nuclear
weapons states to live up to their bargain.

A third priority cited by Mr MacEachen was the conclusion of a compre-
hensive treaty on chemical weapons. He noted that the time is ripe for
progress toward a treaty on the prohibition of the development, production
and stockpiling of chemical weapons and on the destruction of existing
stocks. He referred to the allocation of funds to enable Canadian technical
experts to be made available to the Canadian Delegation for longer periods to
enhance the active role Canada has been playing in the Chemical Weapons
Working Group.

Mr MacEachen turned then to the sensitive question of weapons for use
in outer space.* He urged the Committee to begin as soon as possible its
essential task of defining the legal and other issues necessary to build upon the
outer space legal regime and made clear Canada’s intention to participate
actively in this work. He concluded by urging the establishment of a working
group on this subject.

*Critics of the Outer Space Treaty as a mere “non-armament” convention, agreed to by the
superpowers in their own self-interest, overlook the possible consequences of the non-
existence of an agreement precluding claims to sovereignty and banning the emplacement of
weapons of mass destruction in outer space or on celestial bodies; it is not hard to imagine the
potentially serious consequences of the U.S.A. landing men on the moon and the U.S.S.R.
landing space vehicles on the moon in the absence of prior agreement on such a treaty,

19831

NATIONAL PERSPECTIVES

VI. Canada’s Security Policy

Various questions raised about Canada’s policy on arms control and
disarmament and some suggestions for future policies resolve themselves into
a single issue, namely, Canada’s role in two collective defence arrangements,
NATO and NORAD. It will be recalled that a searching examination of
Canada’s defence policy and potential contribution to the maintenance of
world peace was carried out by the Canadian Government in the late 1960s.
At the end of this study, on 3 April 1969, Prime Minister Trudeau delivered a
public policy pronouncement which reads, in part, as follows:

The Government has rejected any suggestion that Canada assume a non-aligned or neutral
role in world affairs. Such an option would have meant the withdrawal by Canada from its
present alliances and the termination of all cooperative military arrangements with other
countries. We have decided in this fashion because we think it necessary and wise to
continue to participate in an appropriate way in collective security arrangements with
other states in the interests of Canada’s national security and in defence of the values we
share with our friends. . .. In summary, Canada will continue to be a member of the North
Atlantic Treaty Organization and so cooperate closely with the United States within
NORAD and in other ways in defensive arrangements.

Canada’s membership in these collective security arrangements constitutes an
important element of Canadian security policy.

It is widely accepted that there is a virtually symbiotic relationship
between arms control and disarmament on the one hand, and defence on the
other. It is necessary, therefore, to expand upon, if only briefly, Canada’s
policy for national security. This policy was expressed recently by Canada’s
then Secretary of State for External Affairs, the Honourable Mark Mac-
Guigan, to the Standing Committee on External Affairs and National Defence
on 25 February 1982. Dr MacGuigan pointed out that Canada’s security
policy has three complementary thrusts: “They are (1) deterrence of war
through the collective security arrangements of NATO (the North Atlantic
Treaty Organization) and NORAD (the North American Aerospace Defence
Command); (2) active cooperation in efforts to achieve equitable and verifi-
able arms control and disarmament agreements; (3) support for peaceful
settlement of disputes and the collective effort to resolve the underlying
economic and social cauba of international tensions.” This long-standing
security policy of Canada remains, it is suggested, a further fact of life for
Canadians seeking to develop realistic and attainable arms control and dis-
armament policy options for 1984 and beyond.

The reference made to “deterrence of war” is an important one, the more
so in light of the attention now being focused in Canada and in other NATO
countries on the whole concept of deterrence. In the statement just quoted, Dr
MacGuigan went on to underline that “Canada recognizes the need for
collective efforts to deter aggression against the North American and Euro-

REVUE DE DROIT DE McGILL

[Vol. 28

pean regions of the North Atlantic alliance. It supports and contributes to this
defence effort. We are members of an alliance which relies on a deterrent
strategy in which nuclear weapons play an important part. This is unavoidable
in the world as we know it. … The NATO strategy of flexible response and
forward defence depends on our being ready and able to respond to aggression
at whatever level is necessary to counter it. The nuclear weapons of the United
States and other NATO allies make an essential contribution to the security of
Canada and of the alliance as a whole.”

It is this very policy, this further “fact of life” for Canadians, which is
being questioned by some in Canada, and it may be worthwhile therefore to
examine the policy a little further. In the White Paper Foreign Policy for
Canadians – United Nations, the question is dealt with as follows:

At the present time and in the foreseeable future, the ultimate preventative of war
between the super powers is the mutual balance of nuclear deterrence –
that is, the
existence in both the United States and the Soviet Union of a credible capability to inflict
unacceptable retaliatory damage in a nuclear exchange. However, a sharply accelerated
pace in the competitive evolution of strategic nuclear weapons could upset the existing
balance, which constitutes a credible deterrent, and make it less stable. Potentially
destabilizing developments in the strategic arms race are capable of presenting grave risks
for international security in the 1970s. This adds urgency to the search for successful
nuclear arms control measures.

The relationship between deterrence and disarmament was dealt with by
Dr MacGuigan in the statement previously referred to, in which he empha-
sized that Canada’s support for the maintenance of forces sufficient to deter
aggression and to defend the NATO area is entirely consistent with Canada’s
commitment to a vigorous arms control and disarmament policy. He pointed
out that the two policies are more than consistent; they complement and
support one another, and together constitute a single coherent policy serving
the same goal of enhancing security and preserving peace. Dr MacGuigan
emphasized also that only on a basis of undiminished security can nations be
expected to accept limitations on the numbers and quality of their weapons. It
is suggested that this thesis is a fact of life for all states and all peoples for 1984
and well beyond. It was this concept of “mutual security” that was later
emphasized by the Prime Minister at SSOD II and developed further by
Canada’s present Deputy Prime Minister and Secretary of State for External
Affairs at the Committee on Disarmament in the February policy statement.

VII. Attainability of Priority Objectives

The Geneva policy statement indicates very clearly that in the view of the
Canadian Government, 1983 is a crucial year for both bilateral and multilater-
al arms control and disarmament negotiations. It makes equally clear the
views of the Canadian Government as to the priority areas for action in 1983
and, as a consequence, for 1984 and beyond, because few if any of the
–

1983]

PERSPECTIVES NATIONALES

Canadian objectives can be attained in the space of a single year. The time it
takes to negotiate arms control and disarmament agreements even in the best
conditions is, of course, one of the most significant facts of life for those
engaged in negotiating on such issues.

It will be noted, moreover, that in attempting to determine which
important subjects, all needing urgent attention, should be given priority over
others, difficult choices are entailed, the more so because it is already evident
that Canada’s priorities are not necessarily those of the Soviet bloc or the
non-aligned “Group of 21”, who have somewhat different perceptions from
the West and from each other. Thus, another fact of life is that it is not possible
to do everything at once, and Canada’s priorities, such as the strategy of
suffocation, may not be those of others.

Public opinion is having an important and highly desirable impact in the
whole field of arms control and disarmament, at least in Western countries.
Those committed to the pursuit of arms control and disarmament, both in and
out of government, have long sought to awaken public opinion to the crucial
nature of the issues involved. Clearly, public opinion is now deeply engaged
in these matters. Equally encouraging is the clear evidence that there is a very
broad spectrum of interest groups and individuals from all walks of life who
are taking a serious and sustained interest in these crucial issues.

Not infrequently, the question is posed: “What can Canada do?” It is
necessary to be realistic and to recognize the constraints within which a
country which is not a Great Power can influence events. It is equally
essential, however, to ensure that every ounce of pressure that countries such
as Canada can bring to bear should be exerted.

The “strategy of suffocation” presented by Prime Minister Trudeau at
SSOD I, and developed at SSOD II, includes, for example, a ban on the flight
testing of all new strategic delivery vehicles and a ban on the production of
fissionable material for weapons purposes. It has been pointed out on a
number of occasions by the Prime Minister that the strategy of suffocation
will not be implemented by Canada unilaterally, There is a problem as to how
much can be achieved with respect to such objectives if they are not supported
actively by the Great Powers, as well as by other countries of both the
industrialized and developing world. The outlook is not always encouraging,
but it reflects the basic fact of life for negotiators. Canada must keep up the
pressure by every available means and attempt gradually to expand support
for such objectives. It is a lengthy and difficult process. Those charged with
the task must bring to it commitment and creativity, coupled with patience
and perseverance. It is essential and, indeed, urgent for Canada to participate
in the process of developing imaginative, realistic proposals, utilizing every
legitimate means to seek support for them.

A Political Agenda for Arms Control: A Canadian View

Allan Gotlieb and Jeremy Kinsman*

In the interwoven complex of politics, security and arms control, Cana-
da, like other non-nuclear powers, has only limited influence over strategic
negotiations, though Canadians have as much interest as anyone in their
outcome. Is there a role available, for which Canada is specifically suited?
What is the most effective way Canada can contribute to the stabilization of
international relations? As an advanced industrialized country with a global
foreign policy, Canada should continue to use its influence on a comprehen-
sive and global level to help define the direction and character of arms control.
This involves playing a creative role in establishing the minimum level of
confidence in East-West political relations which viable arms control agree-
ments require.

“It wouldn’t take much to disarm Canada”, General Burns is said to have

remarked once.

Canada may seem to be an under-spender on the military side of the
Government budget, by the norms of most NATO countries, Warsaw Pact
countries and many in the Third World. But Canadians generally consider our
spending levels – which, incidentally, meet recent NATO numerical com-
mitments –
as being in line with our national needs and international role.
We have a distinguished war record and a respected peace-keeping record,
but less of an arms tradition than most countries, due no doubt to the security
of our borders in our 116 years of nationhood.

Our economic and other interests support an active multilateral and
bilateral diplomacy, as well as a strong development assistance programme.
But Canadian interests also argue decisively for active participation in both
collective security and disarmament activity. Canada’s commitment to
NATO is a function not only of our international role but of the way in which
we have linked Canadian interests to the allies with which we have most in
common as a nation.

*Allan Gotlieb is the author of Disarinament and International Law (1965) and of several
articles on disarmament. He served on Canada’s disarmament delegation in Geneva from
1960-64, and has collaborated before on articles with Jeremy Kinsman, notably as Under-
Secretary of State for External Affairs, when Mr Kinsman was Chairman of the Policy Planning
Secretariat. Mr Gotlieb is presently Canadian Ambassador in Washington and Mr Kinsman is
the Embassy’s Minister for Political Affairs, but the following article represents the entirely
personal reflections of these foreign service officers.

1983]

NATIONAL PERSPECTIVES

Canada’s strong role in disarmament activity has always been a natural
calling, with broad public support and strong specialized constituencies.
While arms control is now publicly appreciated as the great over-arching
international issue of our times, to the point where public concern approaches
a level of crisis, this appreciation has been sporadic, rising with periods of
East-West or, more specifically, U.S.S.R.-U.S.A. tension. But Canada has
been active throughout the years since World War II. There is not a multilater-
al arms control discussion in which Canada has not played a leading part.

While the intermediate-range nuclear force [INF] discussions have been
the object of almost unprecedented consultations in NATO, strategic arms
control negotiations are basically bilateral, between the U.S.A. and the
U.S.S.R. Canada, like other non-superpowers, has limited influence over
developments. In a general and comprehensive sense, Canada may have a
position of some abstract moral authority as the first state which voluntarily
eschewed nuclear weapons, particularly in respect of the vital issue of nuclear
non-proliferation. But the key negotiations today are exercises in comparative
strategic security analysis. Canadians consider that our location is strategic in
a global sense, and that Canada’s vast expanse of territory makes it particular-
ly so in terms of the calculations of distance and speed which, along with the
accuracy and destructibility of modem nuclear weapons systems, form the
context for strategic arms control negotiations. In a palpable way, Canadians
know that the factor of space in these calculations is often our space.

This is not a distinction which has very much impact internationally. We
seem to others a relatively secure state which has decided, in its own interests,
not to have any strategic arms, nuclear or conventional, which need be
controlled. As such, we do not seem to be in a primary position to influence
the points of view of countries which do live with a more concrete sense of
threat to their security.

Yet, of course, Canadians judge their security to be very much affected
by world events. We feel vulnerable. The controversy over the possibility of
testing over Canadian territory the guidance systems for U.S. cruise missiles
has become a focus for this concern about nuclear risk, as well as the junction
point for these different streams of perception of Canadian policy, practice
and geography.

Those who oppose the testing of cruise missiles over Canada generally
reflect the view that there is an advantage in influence to be gained by Canada
not being associated with the testing of this weapon system, even in such an
indirect and conditional way, because it diminishes their sense of Canada’s
moral authority. In their eyes, the exercise would seem to taint us in a way we
have not been tainted before, and in their view we shall have helped to
accelerate the arms race. The point of view deserves respect.

REVUE DE DROIT DE McGILL

[Vol. 28

But we are members of an alliance which has judged the cruise missile as
necessary because of Soviet deployments and developments, and unless the
U.S.S.R. changes its position on the matter, it is politically essential for the
allies to go through with deployment in Europe. As to the cruise missile itself,
its introduction is less destabilizing than not responding as an alliance to the
U.S.S.R. SS-20s, whose introduction is indeed destabilizing. Only an ade-
quate military balance can bring about the stability necessary for arms reduc-
tion. The cruise is a significant change in weapons development but is not in
itself particularly destabilizing because it is not in any sense a first-strike
weapon. It poses verification challenges, but these are less daunting than the
risks represented by other weapons systems of far greater destructive and
destabilizing potential, and of more ominous innovative significance, such as
small, mobile, multi-warhead ICBMs. In its air-launched mode, cruise mis-
sile verifiability is dependent on that of its aircraft launcher, a relatively
feasible act of verification by national technical means. In a sea-launched
mode, the missile is similarly dependent on ships and submarines which may
not always be verifiable, but which possess other, more destructive, missiles
as part of their inventory. The ground-launched cruise missile is already
almost unique in that its deployment, at least in Europe, is subject to the arms
control negotiations (in which Canada does have a consultative part) under the
NATO two-track decision of 1979. In other words, there is something of a
brake on the deployment of the system, if both East and West together choose
to use it.

This is not to dismiss the cruise missile controversy as being irrelevant.
But the more pertinent questions are of a broader nature: What can Canada do
to promote the increase of mutual security that Mr MacEachen noted in
Geneva is “the only sound basis for effective arms control and disarmament”
so that the arms race can truly be “suffocated” as Pierre Trudeau proposed to
the United States in 1979, by agreement and action on both sides?

There are ways. Arms control efforts over time have generally focused
on weapons hardware and technology. They still need to pursue that track.
But the link between this track and practical political competition at the basis
of the arms race needs much more explicit examination. For years, arms
control diplomacy has lagged behind developments in technology, political
relationships and, ultimately, strategies. The technology curve has outpaced
consistently the content of agreements to control weapons. The world has not
been able to harness and limit the increasingly menacing threats of new
technology, with the exceptions, perhaps, of the 1972 Anti-Ballistic Missile
Treaty between the U.S.A. and the U.S.S.R. and the Outer Space Treaty
which limits the emplacement of weapons of mass destruction in orbit in outer
space. In one of the seminal observations of our century, Einstein judged that
the “splitting of the atom has changed everything save our mode of thinking
and thus we drift toward unparalleled catastrophe”. The drift is in the be-

1983]

PERSPECTIVES NATIONALES

haviour of nations, as well as in our inability to devise and negotiate viable
arms control agreements, or more precisely, to define the inextricable rela-
tionship between the two. Political relations between the U.S.A. and the
U.S.S.R. have deteriorated, for a variety of reasons, to a point where arms
control agreements which must be founded in mutual confidence and security
are much more difficult to negotiate.

The combination of technological advance and political distrust also
encouraged the apparent proliferation of war-fighting strategies on both sides
which have left the Western public aghast. Strategy, moreover, is adapted to
weapons development, rather than vice-versa. However, strategy seems to be
determined by the emergence of weapons meant tofight nuclear wars, rather
than to deter them, making a military banality of the dangerous doctrine of
nuclear use. The public’s anxiety has been stirred by offhand public remarks
by strategists. In recent months, such loose talk of “prevailing” in a nuclear
war or a “limited” war has pretty much ceased. That is good because, as Mr
MacEachen noted, any “attempt by any power to develop a policy which
assumes that nuclear war can be winnable contributes to mutual insecurity”.
There are few in authority in the West prepared to believe that there can be a
“victor” in a nuclear war. There are few now arguing that a “limited” nuclear
war, involving controllable exchanges, can be a legitimate or sensible nation-
al pursuit or possibility. The political sentiments in Western Europe have
demonstrated amply the unacceptability of such doctrine: a nuclear war
“limited” to Europe would of necessity be “total” for Europeans.

All leaders in the West appear genuinely committed to arms control
agreements with the U.S.S.R. But views of what is possible inevitably vary.

Canada’s contribution to the process should be diplomatic and political,
as well as technical. East-West relations have always been an area of empha-
sis in Canadian foreign policy activity: adapted to the arms control context,
this emphasis has the potential for a contribution of real value. Our influence
has to be spent on improving the means of preventing nuclear war. We should
help to clarify the essential elements in arms control. Canada can continue to
contribute to the development of an adequate comprehensive and universal
framework for viable arms control agreements between the U.S.A. and the
U.S.S.R. Countries other than the superpowers have specific views and
interests, and Canada is aptly placed to understand and represent them.
Multilateral negotiations toward international agreements on the comprehen-
sive banning of nuclear test explosions, chemical weapons and all weapons
for use in outer space remain vital. Moreover, like other countries such as
Sweden, the Canadian reputation for multilateral diplomacy and technical
skill enables a national contribution to the technical side of arms control
negotiations –

such as on the principles and techniques of verification.

McGILL LAW JOURNAL

[Vol. 28

In our stress on the political and diplomatic context for international
security, we should also employ as much diplomatic leverage as possible in
favour of preventing further proliferation of nuclear weapons. We should
continue to pursue peaceful means for resolving conflicts, in the United
Nations and elsewhere.

But above all, we need to do what we can to promote the return of some
confidence in the U.S.A.-U.S.S.R. relationship. That relationship is key to
arms control and world peace. Without a minimum of confidence in each
other, the great powers are inherently insecure, and the rest of the world is
hostage to their insecurity. Basic security against nuclear war is unavailable if
one side or the other is seeking competitive advantage. Arms control is an act
of security. The security of one superpower has to reside in the security of the
other. The concept of strategic advantage must be abandoned.

The U.S.A. and the U.S.S.R. need to recognize mutually that arms
control agreements require the confidence of better mutual relations. The
notion that the negotiation of arms control agreements will in itself be the only
real test whether better relations are possible is false, though undoubtedly
arms control negotiations are an important test. Better relations are important
prior ingredients of arms control negotiations because arms control agree-
ments are by definition rooted in confidence, and the security which only
justified confidence can impart.

International behaviour is vital to the process. The negotiations which
we associate with the process of detente more than a decade ago did not
attempt to determine what sort of international behaviour was acceptable
outside the area of Europe. The United States was, after all, heavily engaged
in Vietnam at the time, in large part because of the perceived activities of the
North Vietnamese, Russian allies. Since then, the Soviet Union has invaded
Afghanistan, and has acted elsewhere in ways which have undermined Amer-
ican official confidence in Soviet intentions. Behaviour is vital to building the
confidence which permits the sense of security necessary for viable arms
control agreements. If arms control agreements are to be viable, they must be
supported by restrained international behaviour, both to prevent crisis, and to
restore and sustain confidence.

On the other hand, arms control agreements cannot be linked to ex-
traneous disputes between East and West. They are objectively in our interest,
if they are fair, and should not be held hostage to concessions somewhere
else. Prime Minister Trudeau stressed at The University of Notre Dame that
arms control agreements are of such overwhelming importance to the interest
of all humanity that they must be set above and apart from the normal
intercourse of international politics.

1983]

NATIONAL PERSPECTIVES

We must be realistic. In saying that improved U.S.A.-U.S.S.R. rela-
tions are the key, our concept of “better relations” is of necessity a limited
one. We cannot ignore the obstacles to better relations across the board which
are formidable. The Soviet Union is a closed, totalitarian society having to
cope with threats to its hegemony in Eastern Europe from the open, more
attractive societies of the West. As Soviet inability to observe the principles of
the Helsinki Accords indicates, truly improved relations across the board of
activities are proscribed by the closed nature of Soviet society. However,
there are real possibilities for improvement in the Soviet-American rela-
tionship if we take specific and objective aim at the primary target of reducing
tensions between the U.S. and U.S.S.R., so as to build the necessary political
and security confidence, and thus permit viable understandings in the areas of
mutual security and arms control.

For this to happen, we need better communication between the princi-
pals and better international machinery for dealing with crises. Canada should
encourage both. We should not over-estimate our influence over either
superpower; each is unwilling to derogate to any third party any part of its
control over vital interests in relations with the other.

The U.S. does consult with its NATO allies but on strategic questions it
is motivated primarily by its unique responsibilities. But at least Canada can
work on encouraging the development of a comprehensive international
political framework, leading to consensus about international behaviour.
Such a comprehensive, conceptual framework should reflect the belief that
disarmament is bound up with concepts of security, stability, confidence, and
political relations in such a way and to such an extent that the discussion or
presentation of such techniques in a vacuum is without substantive purpose.
The framework could be a check list of rules of the game by which the
negotiators and the international community could judge the validity of arms
control proposals. Canadian diplomacy could promote the acceptance of the
rules and promote the conditions whereby each rule could be validated,
thereby also contributing to a political consensus.

Here, then, are ten suggested rules of the game:

Rule 1. Simple and urgent proposals: Because there is clearly a climate of
public anxiety and confusion over the strategic arms control situation, propos-
als for arms reductions must be understandable enough to address public
concern. They must be aimed as well at a relatively urgent conclusion, since
there is instability in prolonged negotiations. Moreover, prolonged negotia-
tions become a self-defeating process because technological change makes
established positions obsolete.

REVUE DE DROIT DE McGILL

[Vol. 28

Rule 2. Comprehensiveness: Proposals should be framed in as comprehen-
sive a strategic-security framework as possible. This means that nuclear
equality can probably not be achieved system-by-system across the board.

Rule 3. No strategic gain: Arms control proposals should not be attempts to
make strategic gains at an adversary’s expense. They should not be attempts
to win the war by other means.

Rule 4. Enhance mutual security: Arms control agreements must have as
their objective the provision of greater security for both sides, but at a lower
level of armament, reinforcing the need that they be as comprehensive as
possible. Obviously, both sides have to be convinced that any agreement does
enhance its security and the United States has special requirements to be able
to sell an agreement publicly and politically on that basis.

Rule 5. Emphasize the destabilizing systems: Since arms control negotia-
tions should be as comprehensive in approach as possible, they should
emphasize the most destabilizing factors and features. For this purpose, they
should try to address these issues at the outset, to seek agreement on respec-
tive perceptions.

Rule 6. Protect the future: Proposals should address explicitly the issue of
new weapons systems as well as specific existing ones. They should be
careful not to make the environment for arms development innovation in the
future too permissive because of vagueness or omission of constraints on
novelty.

Rule 7. Quality as well as quantity: – A qualitative freeze: The emphases
of arms control proposals should be qualitative as well as quantitative, and the
end effect of these proposals should be to bring about a qualitative freeze on
testing, development and production of new weapons systems. Obviously,
such a freeze has to be verifiable. Research cannot realistically be included.
We must assume that research into a higher state of the arms art will not be
verifiable, and continuing research can be a function of continuing security.

Rule 8. A code of conduct: Proposals for arms control and reduction should
be accompanied by political understandings, such as an agreed code of
conduct, to increase confidence on both sides regarding respective intentions
and interests. Without linking arms control to extraneous political issues, the
ground rules for international behaviour bearing upon security interests
should be clarified, something which detente did not accomplish.

Rule 9. Crisis communications: Disarmament proposals should be rein-
forced by more explicit and effective provisions for better crisis communica-
tion between all parties, allowing for constant monitoring and interpretation
of events. Such crisis communication should be within the context of regular

1983]

PERSPECTIVES NATIONALES

communication in the sense of continuing meetings and dialogue between the
U.S.A. and the U.S.S.R., including summits.
Rule 10. Verification is key: The validity of any proposal has to be subject
to reasonably thorough agreed provisions for verification. Indeed, general
principles of verification should be explored and negotiated as objective
entities. Canada could announce its own special contribution to the develop-
ment of such principles –
an international disarmament verification centre.
These are rules of the game which arms control negotiators will obvious-
ly recognize. Indeed, in recent months, some have been given prominent
emphasis. However, we suggest them as a balanced set of possible political
and behavioural checkpoints along the way to a reliable arms control process.
For decades, Canadians have been at the front of arms control efforts at
the United Nations and elsewhere. But our own security position has often
seemed to put us more or less on the outside of critical bilateral strategic
negotiations. This is more apparent than real. We do have a role in promoting
essential arms control. Even though, for the most part, the main burden of
negotiations is bilateral, we can try to make better sense of our political world,
and assist in the development of international instruments which can provide
real security for all the countries concerned.

BOOK REVIEWS
CHRONIQUE BIBLIOGRAPHIQUE

The Fate of the Earth. By Jonathan Schell. New York, N.Y.: Knopf, 1982. Pp. 256 [$11.95
U.S.].

I have read this book three times, and I intend to read it again; for it is one
of the most important books that I have ever read. Its message is clear and
compelling and, unlike many “serious” books, it is extremely well written. It
is even eloquent, but at the same time as logical in its presentation as a
mathematical formula. It may even be a masterpiece.

But reading Schell’s book is not exactly a pleasant experience. For the
conundrum posed – one which our generation must answer –
is perhaps the
hardest question with which mankind has ever had to cope. Can we save our
world, ourselves, the yet unborn, and indeed the very memory of civilization
from the imminent peril of nuclear extinction?

There is much about physics and about philosophy in the book, but its
central message is political. And that is one reason why the book is especially
important for lawyers and law students. For lawyers have a special responsi-
bility and a key role to play in the creation and development of the new world
political structures that must be set up if the threat of nuclear extinction is to be
met. The contemporary state system is, as Schell demonstrates conclusively,
obsolete. It must be replaced by a new and radically different world political
and legal order. What is necessary is nothing less than a revolution in world
politics and institutions. “We are speaking”, he writes, “of revolutionizing
the politics of the earth”.

Self-styled “realists” may argue that this task is impossible given the
kind of people we are and the kind of world we live in. God help us, they may
be right. But true realists will put their money on the possibility that they may
be wrong. All of Schell’s readers may not agree with this analysis or his
conclusions; but even the sceptics must agree that, as long as there is even the
possibility of a nuclear holocaust, or even of something “less” than that, it is
only elementary prudence to begin to take steps to prevent it. The priority item
on the world’s political agenda is therefore to find a solution to the conun-
drum. Our political leaders (and we the people who are responsible for
keeping them in power) must address themselves, at our peril and without
further delay, to the business of creating the new kind of world order that the
situation demands. If “reality” means anything, this goal is its urgent busi-
ness. What may now seem impossible must be made possible. We have no
other choice.

1983]

BOOK REVIEWS

There is little room in the world in which we now live for happy-go-
lucky optimism. But optimism is still the best working hypothesis. Time
however is not on our side. “Evolution was slow to produce us”, says Schell,
“but our extinction will be swift; it will be literally over before we know it. We
have to match swiftness with swiftness”.

John P. Humphrey*

*Of the Faulty of Law, McGill University.

The Global Politics ofArms Sales. By Andrew J. Pierre. Princeton, N.J.: Princeton University
Press, 1981. Pp. 352 [Cloth $20.00 U.S.; Paper $7.95 U.S.]

Influence or Quid-Pro-Fiasco?: The Global Predicament of

Arms Sales

In global terms, measured in constant dollars, arms sales more than
doubled from U.S. $9.4 billion in 1969 to U.S. $19.1 billion in 1978.
Currently, over seventy-five per cent of total arms transfers are destined for
the Third World. The United States, the Soviet Union, France, the United
Kingdom, and West Germany supply over eighty-five per cent of these
weapons. Nations supplying arms have justified this activity as an instrument
of their respective foreign policies. Yet, the ability of arms sales to bolster or
undermine a supplier’s foreign policy depends upon a mixture of national
motives and often unpredictable international conditions and circumstances.
These dynamic variables include: the potential political influence and lever-
age to be gained against an ideological adversary; the potential access to
military bases; the trade-offs of long-term risks and short-term benefits; the
dovetailing of weapon sales with other foreign policy goals; the effect of sales
on regional stability; the political stability of the recipient nation; and the use
to which the delivered weapons are put.

Such a complicated business does carry inherent risks for the “merchants
of foreign policy”; what one day was a measure of political influence could
the next become a foreign policy fiasco. Examples of quid pro quos turned
quid pro fiascos are easy enough to find. Witness President Nixon’s sales of
“any arms short of nuclear weapons” to the Shah of Iran, weapons which later
fell into the hands of the revolutionary Ayatollah Khomeini; or the Soviet
expulsion from Egypt after many years of committing substantial numbers of
arms and advisers to that country. Arms transfers can also act as a source of
both domestic and foreign political division as was seen in the American sale
of Airborne Warning and Control System [AWACS] aircraft to Saudi Arabia,
and as is currently being illustrated by the divisive European debate over
nuclear arms transfers, namely United States Pershing II and cruise missiles.
Risks for Third World recipients are also considerable. The drive toward
nationalism and self-reliance, combined with an inadequate technological
base for arms production, serves to spur on Third World demand for the
acquisition of sophisticated weapons from abroad. One result is that expendi-

1983]

CHRONIQUE BIBLIOGRAPHIQUE

tures on arms have risen twice as fast as development assistance. Scarce
resources that could be used more efficiently for economic development are
often diverted for arms purchases, making domestic stability even less firm.
Guns instead of butter may cause local populations to take up guns in the name
of butter; of course, guns can be used to stifle domestic opposition as well. In
this way, arms transfers can create fiascos in the developing world.

Andrew Pierre explores this global predicament in his Council on For-
eign Relations book, The Global Politics of Arms Sales. Pierre, travelling to
twenty countries to compile his well-researched findings, concludes that
“arms sales are foreign policy writ large” and “must be seen, essentially, in
political terms”.’ Organizing his work into sections on dilemmas, suppliers,
recipients, and restraints, the author has added constructively to an increasing
body of literature on this complicated subject. Much academic attention has
already been focused upon these issues by the Stockholm International Peace
Research Institute [SIPRI], the International Institute of Strategic Studies
[IISS], and by the Council on Foreign Relations [CFR].2 A more journalistic
treatise, by Anthony Sampson,3 has discussed the Realpolitik of “the mer-
chants of death”. Pierre’s book is a balanced blend of academic research and
anecdotal journalism, making for an informative and readable volume.

There do seem to be, however, some lacunae in Pierre’s analysis. The
author expressly delineates the problems that arms transfers pose for the
suppliers as nations, with particular emphasis on the United States, without
discussing adequately the role that private companies play in creating these
dilemmas. The politics of arms sales also involve the corporate politics of
contracts and profits. A chapter on the “politics of financial reward” would
help explain the micro-economic motivations of the arms trade.

While suggesting that President Reagan replaced an inconsistent Carter
Administration arms sales policy with an “overly permissive” one, Pierre
could have gone further to elaborate upon the ramifications of transfers for
regional security and nuclear proliferation. In his short subsection on “Nu-
clear Proliferation and Conventional Arms Sales”, 4 the author says that “the
Reagan administration is far more inclined to sell arms for the purpose of
reducing motivations for obtaining nuclear weapons”, 5 but he does not seem
to recognize that this very policy could serve to create the regional instability
that whets the atomic appetite.

I A. Pierre, The Global Politics of Arms Sales (1982) 3.
2 See, e.g., A. Cahn, et al., Controlling Future Arms Trade (1977). See also United States
Congress, Changing Perspectives on U.S. Arms Transfer Policy (1981) (A Library of Congress
Congressional Research Study).

3A. Sampson, The Arms Bazaar (1978).
4Supra, note 1, 29-31.
5Ibid., 30.

McGILL LAW JOURNAL

[Vol. 28

Pierre prefers instead to focus upon proliferation in the quantity and
sophistication of conventional arms sales. In the past, most arms transfers to
less-developed countries were made up of obsolete weapons of the major
powers. Increasingly, and particularly in the case of American and Soviet
exports, more advanced weaponry has been delivered. In 1960, for instance,
only four developing nations had supersonic aircraft; by 1977, the total was
forty-seven. The Middle East receives fiftyper cent of total world arms sales
and holds the largest regional share of transferred sophisticated weaponry.
Latin American acquisitions have tripled over the last decade, and the sale of
F-16 fighter aircraft to Venezuela will introduce one of the world’s most
advanced weapons into that region for the first time.

The proliferation of sophisticated arms transfers, according to Pierre, is
an integral element in the conduct of foreign policy, especially for the U.S.
and U.S.S.R. As an intended vehicle for the extension of ideological influ-
ence through the demonstration of technological prowess, arms sales have
become a prime element in superpower competition. Though ideological
concerns dominate the arms transfer policies of the superpowers, other
suppliers such as France, the U.K. and West Germany are motivated primari-
ly by other national concerns: access to vital raw materials, maintenance of
employment in industry and balance of trade. France continues to pronounce
a goal of national independence and autonomy, even though its arms industry
has become excessively dependent on exports.

Considering the diverse motives of both suppliers and recipients, is there
any real hope for controlling arms sales? Fuelled by competing national
interests, the increasing volume and sophistication of arms transfers is fast
racing beyond the international political means of control. It is paradoxical
that international law is predicated upon the principle of cooperation between
sovereign states, and yet the self-defined interests of states act consistently as
obstacles to agreement and consensus. Pierre calls for a “supplier’s code of
conduct”. In so doing, he is not the first to suggest the need for multilateral
restraint. Unfortunately, effective multilateral mechanisms have proven more
elusive than the general recognition of the need for them. Perhaps Mr Pierre
can elaborate upon this dilemma in his next book. For the time being,
however, he has accomplished what he set out to do in his preface: he has
increased our knowledge of this perplexing global predicament.

Ronald J. Bee*

*Special Assistant for National Security Affairs, Palomar Corporation, Washington, D.C.

New Directions in Disarmament. By William Epstein and Bernard T. Feld, eds. New York:
Praeger, 1981. Pp. 222 [$31.95 U.S.].

The efforts to work out meaningful disarmament arrangements through
treaties and other less explicit understandings which are designed to arrest
nuclear proliferation and to achieve control over conventional armaments
have confounded for far too long both political leaders and international
negotiators. The management of this man-made disaster has remained beyond
the grasp of world leaders, whether they are relatively strong and in office for
extended periods, or refreshingly new and blessed by the imprint of open
democracy. The agony and frustration of this failure, with its attendant
consequences for human survival, have been the subject of scholarly analysis
for the past four decades. In the vast literature on disarmament, the writings of
William Epstein have been outstanding and widely influential.

New Directions in Disarmament, edited by Epstein and Bernard Feld, is
a compilation of short papers prepared by a group of some twenty scholars
drawn from varied social, political and physical science backgrounds. They
met informally as an international Pugwash group to search for new ideas and
new directions. They hoped that their contribution would be helpful to the
ensuing deliberations of the Second Special Session on Disarmament of the
United Nations General Assembly. For a number of reasons, this goal re-
mained unfulfilled. Not unexpectedly, the Soviet side found itself unable to
take part in the Pugwash deliberations, and the resulting product reads more
like the reports on disarmament we are accustomed to reading in Scientific
American or Time magazines. It is not that the product is pedantic or its
treatment pedestrian; the perspectives brought to bear on this, the most
important and vital issue confronting humanity remain, nevertheless, those of
North American liberal thinkers, mostly from the United States. There is a
token Canadian presence and some less prominent “international” participa-
tion. In any case, the events of the past two years have largely overtaken the
limited hope or guarded optimism manifested by the participants at this
symposium. Despite all these negative aspects, New Directions in Disarma-
ment is a most useful and admirably written book.

In the substantive introduction to the book, the editors explain the
history, purpose and nature of their deliberations. The issues they cover
extend, happily, beyond the highly technical, acronym-jargoned specifics to
include such matters as confidence-building measures, the scope for a global
monitoring system through the United Nations, the problems of arresting new
armament technologies in outer space and on the deep seabed, unilateral
initiatives, and the role of non-nuclear states in achieving a balance and,
possibly, some progress in disarmament negotiations.

REVUE DE DROIT DE McGILL

[Vol. 28

Alessandro Corradini discusses the role of the United Nations Disarma-
ment Commission and the usefulness of a smaller working body such as the
Committee on Disarmament. Herbert Scoville Jr, a retired United States
Government official, describes the problems created by advancing military
technology. Paul Warnke and George Ignatieff both deal with reforms of the
SALT negotiating process. Bernard Feld, a physicist, proposes a freeze on the
development and deployment of new weapons. William Epstein makes a
strong argument for cutting off the production of fissionable material, for a
phased reduction in the militarized uses of such material, and for its ultimate
transformation to peaceful uses. Rod Byers and Joel Wit discuss “sanctuary”
proposals.

An equally important aspect discussed in the book is the role of non-
nuclear-weapon states in disarmament negotiations. Sayed Yassin (Egypt),
Shalheveth Freier (Israel) and Joseph Rotblat (United Kingdom) explore in a
scholarly manner the value of the presence of a third party in negotiations.
Hans Christian Cars of the Swedish Ministry of Defence presents a thoughtful
paper on military budgets, and points out the need for standardized proce-
dures for monitoring military expenditures. Daniel Gallick of the U.S. State
Department points out the difficulties of verifying any actions by govern-
ments purporting to comply with such measures.

There is an awareness among participants that one of the crucial ques-
tions facing any analyst is: What is it that must be “negotiated” to achieve
disarmament? Is it merely the numerical strength of the military arsenals in
each other’s possession? Or, more subtly, the reliability of the political
strategies at the disposal of each side? Do the governments of the superpowers
believe they can achieve strength and security through military means? Do the
leaders of the superpowers believe that their mutual policy of excessive
militarization can achieve for them anything other than a myopic vision of
their own virtuousness? What role, if any, do the smaller, economically- and
technologically-advanced nations, such as Canada, Japan and West Ger-
many, have in this foolish but deadly game of chess in which they have
unwittingly become the expendable pawns? Some of these issues are raised
and discussed in the papers of Jonathan Alford (British Army) and Hans
Gunter Brauch (Heidelberg University) in their analysis of confidence-
building measures. This discussion is the most useful part of the book because
confidence-building measures can lead to meaningful measures of actual
disarmament. Examples such as the Simla Agreement (on the Kashmir issue)
and the Helsinki “non-binding” international treaty are mentioned. However,
the crucial issues remain unanswered.

How can one “build” confidence if, despite advanced technology and
extensive military saturation, the necessary spiritual strength is lacking?
Professor Charles Osgood (Illinois), George Rathjens (M.I.T.) and Betty Lall

1983]

CHRONIQUE BIBLIOGRAPHIQUE

(a U.S. disarmament expert) all examine this question from their respective
vantage points when they raise for discussion the possibilities for taking
unilateral initiatives aimed at achieving a modicum of self-imposed discipline
and restraint in the military field. If negotiations proceed from a premise of
sustained spiritual strength, it will negate the idea that “a chip, once acquired,
may not be expendable”.’ However, the vision projected here appears to be
somewhat too simplistic: “[C]onfidence-building agreements are essentially
declarations of intent and are not enforceable. They need to have a mandatory
character”. 2 But, is virtue verifiable?

The high level of discussion brought to bear by the participants in the
symposium on these and many other related issues makes this book a useful
and stimulating study. In a book of such broad focus and such diversity of
participant skills and expertise, it is unfair to expect greater uniformity in
treatment and more depth of analysis or detail. That is not to suggest that the
Pugwash Movement cannot bring original ideas to light in exploring the
specific reasons for reticence on each side. For example, serious analysis of
why each superpower has not found the negotiating process useful or success-
ful to achieve concrete and enduring results might reveal unique attitudes that
are susceptible to modification. If a nation’s armament policy is, in fact,
“controlled” by its military commanders –
the least likely sector in any
society to be enlightened enough to see the wisdom of unilateral disarmament
– who then makes the policies pertinent to the negotiation process? It is not
helpful to assert simply that both superpowers are equally guilty of spoiling
the broth.3 If a third, fourth or fifth cook were to enter the negotiating
“kitchen”, is there any guarantee that they will not be one too many? One
should also examine carefully the essential dissimilarity of the interests of the
two powers engaged in the negotiating process. Any threat, real or imagined,
from land-based installations in Europe is far greater to the U.S.S.R. than to
the U.S. If so, why can’t the European Community declare unilaterally, and
without any caveats, a nuclear weapon-free zone on the condition of a joint
superpower guarantee of non-intervention? Would that make the United
States more vulnerable in the negotiation process?

The concern for nuclear disarmament, it is worth noting, is beginning
slowly but unmistakeably to slip away from the traditional confines of secret
diplomacy into the realm of public, open and populist debate. Indeed, this
movement is gaining ground not only within the constituencies of those two
superpowers but in the public domains of their surrogates as well. The threat
of unilateral reform championed by private groups may yet have a destabiliz-

IW. Epstein and B. Feld, eds, New Directions in Disarmament (1981) 174.
2 lbid., 132.
3As is done ibid., 2.

McGILL LAW JOURNAL

[Vol. 28

ing effect. The momentum is in favour of a reform, notwithstanding the
seeming lack of interest, or more plausibly, the incapacity, of political leaders
to deliver the goods. Therefore, the public pressure in favour of a “total
freeze” cannot be ignored for too long without an inevitable institutionalized
backlash in one form or another. That is why, at every level of public
discourse and decision-making, it is important to be informed of the complex
issues involved and of the critical choices required to be made by the world
public. Toward that end, New Directions in Disarmament is an important
contribution.

Perhaps the inclusion of a brief current bibliography and an appendix of
international conventions relevant to the topic would have enhanced the value
of the book as a tool for instruction. Even so, this is an excellent source book
and an important addition to the ongoing process of public education.

K. Venkata Raman*

*Of the Faculty of Law, Queen’s University.

McGILL LAW JOURNAL

REVUE DE DROIT DE McGILL

Montr6al

Volume 28

1983

No 4

The Canadian Charter of Rights and Freedoms and the United

States Bill of Rights: A Comparison

Paul Bender*

Although formal constitutional provisions
are not exhaustive of the individual rights
enjoyed by citizens of Canada or of the U-
nited States, a comparison of the new Cana-
dian Charter and the United States Bill of
Rights is illuminating. After discussing cer-
tain general topics relating to the scope of
protected rights, including the requirement
of governmental action, the assertion of
affirmative rights and the degree of protec-
tion offered to victims of the incidental
effects of discrimination, the author under-
takes a comprehensive cataloguing of rights
protected by the relevant United States and
Canadian provisions. He concludes that, in
broad outline, the list of rights textually pro-
tected in each country is similar, but that

M~me si les droits dontjouissent les citoyens
du Canada et des Etats-Unis ne se limitent
pas aux termes de dispositions constitution-
nelles formelles, une comparaison de la
Charte canadienne et du Bill of Rights des
Etats-Unis est rdvelatrice. L’auteur examine
certaines questions d’ordre gfndral se ratta-
chant h l’6tendue des droits prot6g6s, y
compris la nfcessit6 d’interventions gouver-
nementales, la revendication de droits posi-
tifs et le degr6 de protection offert aux vic-
times des effets indirects de la discrimina-
tion. L’auteur dresse ensuite un inventaire
complet des droits expressfment protdg6s
par les constitutions du Canada et des Etats-
Unis, et conclut g6nfralement que quoique
les degrfs de protection ainsi offerts sem-

*Of the School of Law, University of Pennsylvania. The author first became interested in the
Canadian Charter of Rights and Freedoms and its relationship to the U.S. Constitution while
teaching at the summer course in human rights sponsored by the Canadian Human Rights
Foundation and held for the past four years at the University of Prince Edward Island. This
article is based upon lectures on the U.S. Bill of Rights that have been delivered in connection
with that course. A special debt is owed to the P.E.I. students and faculty and to Professor John
P. Humphrey, of the McGill University Faculty of Law, the guiding spirit of the P.E.I.
program.

Some of the ideas in this article were further developed during the author’s appointment as
a visiting lecturer at the University of Alberta Law School during January 1983. The author
wishes to acknowledge the wonderful hospitality of the faculty, staff and friends of that school,
with special thanks to Dean Frank D. Jones, and Mr Justice David C. McDonald.

REVUE DE DROIT DE McGILL

[Vol. 28

there are distinctions which may be of im-
portance, depending upon the approach
taken ultimately by the Canadian judiciary.
For example, the Charter seems to provide
greater opportunities to assert collective
minority rights than does the U.S. Bill of
Rights. On the other hand, the Charter does
not prohibit the “establishment” of religion,
nor does it protect property rights explicitly.
Drawing upon the wealth of United States
case law, the author suggests potential diffi-
culties for Canadian courts grappling with
the Charter, and he points to some possible
solutions that have been devised by U.S.
courts dealing with similar problems.

blent similaires, certaines divergences entre
les textes pourraient s’av6rer importantes se-
Ion l’approche dventuellement prise par les
tribunaux canadiens. Par exemple, Ia reven-
dication de droits collectifs semblerait plus
ais6e sous l’empire de ]a Charte que du Bill
ofRights. En outre, la Charte ne prohibe pas
l’appui de croyances religieuses par l’Etat et
ne protege pas explicitement les droits de
propri6t6. S’inspirant d’une jurisprudence
abondante aux Etats-Unis, l’auteur fait dtat
de certaines difficult6s d’interpr6tation dans
]a Charte, et signale quelques-unes des solu-
tions inventdes par les tribunaux des ttats-
Unis face A des probl~mes semblables.

Synopsis

Introduction
I.

The General Scope of Rights Under the Charter and the U.S.
Constitution
A.
B. The Requirement of Governmental Action
C. When Are Rights Violated: Direct Interferences vs Practical

“Negative” vs “Affirmative” Rights

Effects

II.

Specific Charter Rights and their U.S. Counterparts
A. Legal Rights
B. Due Process in Civil Proceedings
C.
D. Equality Rights
E. Mobility Rights
F. Rights of Religion, Conscience, Free Expression, and

“Substantive” Due Process and the Right to “Privacy”

Association

Conclusion

*

*

*

1983]

CANADIAN CHARTER AND U.S. BILL OF RIGHTS

Introduction

The United States has, for many years, afforded significant constitution-
al protectionI to a broad range of individual political, civil and personal
rights. These rights have been a prominent aspect of government in the U.S.
The constitutionally protected rights and freedoms of U.S. residents are,
indeed, often cited as one of the main positive factors that distinguish life in
the U.S. from that in other countries.

U.S. constitutional rights are ordinarily enforceable through the courts.
Judicial enforcement has become inextricably intertwined with the U.S.
system of constitutional rights and is essential to the strength and quality of
U.S. rights in their present form. Judicial enforcement has, however, also
been a source of deep controversy in the U.S. as the courts have, from time to
time, seemed to play an unusually active role regarding important and widely
debated issues of social policy that are more often left to legislative resolution
in other democratic nations.

Now that Canada has adopted a Charter of Rights and Freedoms with
constitutional status 2 and provided explicitly, as well, for judicial enforce-
ment of those rights 3 –
it seems natural to compare the two systems. Are the
protections for rights offered by Canada’s new Charter basically similar to the
protections that have existed in the United States? Where significant differ-
ences exist, what, if anything, do those differences suggest about the relative
scope and strength of the constitutional protections of individual rights in the
two countries? Will the Canadian judiciary come to play a role regarding
questions of social policy similar to that which the U.S. courts have some-
times seemed to assume? This article and a subsequent one will seek to
compare some of the main features of the new Canadian Charter with
corresponding aspects of the protection of rights under the U.S. Constitution
in an attempt to provide a background for addressing these interesting ques-
tions.

I “Constitutional protection” is used here to refer to guarantees of individual rights that are
“entrenched” in a formal constitutional document. Unlike common law or statutory rights,
constitutionally protected rights cannot be diminished or eliminated by ordinary legislative
action, but only through a specified amendment process. The amendment process applicable to
the Canadian Charter is spelled out in Part V of Schedule B, Canada Act 1982, 1982, c. 11
(U.K.). The amendment procedures for the U.S. Constitution are in art. V of that document.
2Part 1 of Schedule B, Canada Act 1982, 1982, c. I1 (U.K.) [hereinafter the Charter].
Paragraph 52(2)(a) states that the Charter is “the supreme law of Canada”. Any law inconsis-
tent with it “is, to the extent of the inconsistency, of no force or effect” (subs. 52(1)).

‘See the Charter, subs. 24(1).

McGILL LAW JOURNAL

[Vol. 28

A Clarification and Caution – At the outset of such a comparison, it is
appropriate to insert some preliminary words of clarification and caution
about the nature and significance of the task at hand.

In comparing the U.S. and Canadian systems, it is tempting to focus
primarily, or even exclusively, upon the two relevant constitutional texts. In
the case of the Charter, its text is, unquestionably, the proper main focus.
Having come into effect just over a year ago (on 17 April 1982), that
document is as yet unadorned by binding judicial interpretations in the
Supreme Court of Canada. 4 The U.S. text,’ on the other hand (the most

4However, judicial interpretations under the Canadian Bill ofRights, R.S.C. 1970, Appen-
dix I, while not dispositive of the meaning of similar Charter provisions, may nevertheless be
relevant as Canadian courts begin to constue the Charter. See Hovius, The Legacy of the
Supreme Court of Canada’s Approach to the Canadian Bill ofRights: Prospectsfor the Charter
(1982) 28 McGill L.J. 31. For general background on the Supreme Court’s interpretations of
the Bill of Rights, see, e.g., W. Tarnopolsky, The Canadian Bill of Rights, 2d rev. ed. (1975);
Tarnopolsky, “A New Bill of Rights in the Light of the Interpretation of the Present One by the
Supreme Court of Canada” in The Constitution and the Future of Canada [1978] L.S.U.C.
Special Lectures 161; P. Hogg, Constitutional Law in Canada (1977); Gibson, -And One Step
Backward: The Supreme Court and Constitutional Law in the Sixties (1975) 53 Can. Bar Rev.
620; and Berger, The Supreme Court and Fundamental Freedoms: The Renunciation of the
Legacy of Mr. Justice Rand (1980) 1 Supreme Court L.R. 460.

Some Charter provisions are also similar to provisions in the constitutions of countries
other than the U.S., in international documents such as the Universal Declaration of Human
Rights; the International Covenant on Civil and Political Rights, United Nations G.A. Res.
2200, 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1967), reprinted in (1967) 6
I.L.M. 368; the European Convention for the Protection of Human Rights and Fundamental
Freedoms, European T.S. No. 5 (signed 4 November 1950; entered into force 3 September
1953); and the American Declaration of the Rights andDuties ofMan, Res. XXX, O.A.S. Off.
Rec. OEA/Ser. LIV/I.4 Rev. (1965). Interpretations of these provisions by national supreme
courts and by bodies such as the European Court of Human Rights are also of potential
relevance in construing the Charter.

-Although the term “Bill of Rights” is commonly used to refer to all U.S. constitutional
protections for individual rights, the usage is not technically accurate. Strictly speaking the
“Bill of Rights” was the first group of Amendments to the U.S. Constitution. The Constitution
dates from 1789; these Amendments were adopted in 1791. Some of the most important U.S.
individual rights provisions can be found in these 1791 amendments. See, for example, the
protections for the freedoms of speech and religion (First Amendment); the restriction on
unreasonable searches and seizures (Fourth Amendment); the prohibition on compelled self-
incrimination (Fifth Amendment); and the prohibition upon cruel and unusual punishments
(Eighth Amendment). As originally adopted, however, these Amendments did not apply to the
U.S. states (or to local governmental units established under state authority), but constituted
limits only upon the newly formed federal government. See Barron v. The Mayor and City
Council of Baltimore, 7 Pet. 243 (1833). It has only been through a gradual process of
“selective incorporation” into the due process clause of the Fourteenth Amendment (adopted in
1868, shortly after the U.S. Civil War) that most of the provisions of the original 1791 Bill of
Rights have ultimately come to be applicable to state and local governments in the U.S. See,
e.g., Palko v. Connecticut, 302 U.S. 319 (1937); and Duncan v. Louisiana, 391 U.S. 145
(1968). For more on this process of incorporation, see infra, note 19.

1983]

CANADIAN CHARTER AND U.S. BILL OF RIGHTS

important parts of which date from either shortly after the original U.S.
Constitution of 1789 or shortly after the U.S. Civil War of the 1860s), has
been subjected to an enormous amount of authoritative judicial interpretation.
These decisions and opinions often deal with questions on which the U.S.
constitutional text is completely or almost entirely silent, and they also give
meanings to U.S. provisions that could hardly be confidently anticipated –
or in some cases anticipated at all – by a reading of the relevant text. In the
case of the U.S. Constitution, then, primary attention must be focused not on
the bare text, but on the text as it has been authoritatively interpreted in the
Supreme Court of the United States.

In comparing the Charter with the U.S. Constitution, therefore, one is,
to some extent, comparing apples with oranges –
the comparison being
between a bare Canadian text, at the beginning of its life, and an elaborate and
complex system that has been intricately worked out over the years by U.S.
courts. Moreover, the text of the Canadian Charter, like that of the U.S.
Constitution, is quite general in nature; it, too, will undoubtedly undergo a
process of repeated judicial interpretation before the answers to many fun-
damental questions begin to emerge. When we “compare” today’s Charter
with U.S. constitutional rights, therefore, we will often more accurately not
be “comparing” at all, but rather speculating on what the Charter may come to
mean, while using the resolution of similar issues under the U.S. Constitution
as a point of reference and, where it seems appropriate, as a guide. 6

Individual rights provisions also appear in the body of the original 1789 Constitution.
Provisions in that document, for example, prohibit either the federal government or the states
from enacting expostfacto laws or bills of attainder (art. I, 9, cl. 3; art. I, 10, cl. 1); prohibit
the states from impairing the obligation of contracts (art. I, 10, cl. 1); and guarantee jury trials
in federal criminal prosecutions (art. III, 2, cl. 3). Additionally, some of the most significant
U.S. individual rights protections are contained in constitutional amendments adopted after the
Bill of Rights. Most prominent today is the Fourteenth Amendment, which contains two of the
currently most important U.S. provisions-
that states shall not deprive persons of life, liberty
or property without “due process of law”, or deprive persons within their jurisdiction of the
“equal protection of the laws”. In addition to serving as the vehicle for applying the 1791 Bill of
Rights to the states, the due process clause also had independent significance as a protection for
liberty and property, and a vast jurisprudence has, of course, also developed in connection with
Fourteenth Amendment equal protection guarantees. Other Civil War and subsequent amend-
ments also contain important individual rights protections. See, for example, the Thirteenth
Amendment (1870) (prohibiting slavery); the Fifteenth Amendment (1870) (prohibiting racial
discrimination in voting); the Nineteenth Amendment (1920) (gender discrimination in vot-
ing); and the Twenty-Fourth (1964) and Twenty-Sixth (1971) Amendments (outlawing the poll
tax in federal elections and prohibiting age discrimination in voting for persons over eighteen).
This article treats all of these U.S. constitutional protections, not just those in the 1791 “Bill of
Rights”.

6As noted supra, note 4, U.S. interpretations and solutions are by no means the only relevant

comparative decisional materials.

REVUE DE DROIT DE McGILL

[Vol. 28

The caution that should be interposed is this: Although national constitu-
tions unquestionably play an important role in determining the level of respect
for individual rights in a nation, their role is by no means exclusive. Neither
the Canadian Charter nor the U.S. Constitution represent the only – or even
the primary –
protections for individual rights in their respective countries.
Both nations protect rights extensively through the common law, and through
national, provincial, state, and local legislation. Rights may also be protected
through adherence to international treaties and, in the U.S., under State
constitutions, provisions of which were the model for the original U.S. Bill of
Rights and which have continued to play an important role in some areas.
Indeed, both the Canadian Charter and the U.S. Constitution make absolutely
clear that the federal constitutional protections they embody are not intended
to preclude the application of other sources of rights .’

The Charter and U.S. Constitution thus represent national minimum
protections of individual rights. Comparing such constitutional protections is
emphatically not equivalent to comparing the actual status of individual rights
in Canada and the U.S. as a whole, or within a particular state or province.
Rights weakly protected through a national constitution, or not protected at all
by that constitution, may not need to be protected – given national traditions
and prevailing societal attitudes and practices – or they may be protected by
other sources of law. In the U.S., for example, most federal constitutional
provisions, as we shall see, apply only as against “governmental” action.
There is, however, an extensive body of federal and state legislation prohibit-
ing similar private violations, such as private racial or gender discrimination
in employment or housing. In the U.S. there are also presently few, if any,
affirmative constitutional entitlements, such as to public assistance or medi-
cal care for the indigent. Legislatively created rights to these benefits are quite
common, however. On the other hand, drafters or interpreters of constitutions
may be motivated to state or develop strong constitutional protections largely
because other mechanisms have not proved satisfactory in practice. To take
another U.S. example, it is likely that the judicial development of the
“exclusionary rule” (excluding the fruits of unconstitutionally obtained evi-
dence from criminal trials) was influenced heavily by the failure of other,
non-constitutional mechanisms (such as private tort actions and criminal
prosecutions) adequately to control police misbehavior.

Three Modes of Comparison: The Scope, Strength and Enforceability of
In comparing the quality and character of the protection of indi-

Rights –

7See the U.S. Constitution, Amendment IX: “The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others retained by the people”. See
also the Canadian Charter s. 26: “The guarantee in this Charter of certain rights and freedoms
shall not be construed as denying the existence of any other rights or freedoms that exist in
Canada.”

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vidual rights under different constitutions, three important subjects need
investigation. First, it is necessary to examine the catalog of rights that enjoy
protection under each constitution. Does each constitution, for example,
protect freedom of speech? Does each protect the rights of defendants in
criminal proceedings? Is there protection for “property” rights? Are certain
kinds of discrimination or unequal treatment prohibited? Does the constitu-
tion in question confer any “affirmative” rights, such as mandatory entitle-
ments to welfare, employment or public education? When rights are within
the constitutional catalog, against whom do they apply? If there is a constitu-
tional right to be protected from racial discrimination, for example, does that
include a right to be protected from private discriminatory behavior, or only
from governmentally imposed racial discrimination?

Once the applicable constitutional rights are identified, a second vital
question –
less obvious, perhaps, but at least equally important in the long
run – has to do with the level or strength of the protection that is afforded to
rights under each constitution. Some constitutional rights may perhaps be
absolute, admitting of no interference or impingement, no matter how strong
the asserted governmental justification. Under the U.S. Constitution, for
example, the right to be free from governmentally compelled self-
incrimination and the prohibitions upon the establishment of national and
state religions probably fall into this category. A large number of important
U.S. constitutional rights, however, do bow to sufficiently strong gov-
ernmental justifications, and among these are some of the most well recog-
nized and fundamental of rights, such as the freedoms of expression and
religion.

Once a right is thus established as what might be called a qualified, rather
than an absolute, right, the critical question concerns the strength of the
justification requirement that the applicable constitution imposes as a condi-
tion of governmental interference. This requirement may be so strong as to
make the right virtually absolute; on the other hand, a justification require-
ment may, if weak enough, result in no effective constitutional protection at
all. And there is, of course, a large middle ground; the variety of possible
standards of justification for permissibly impinging upon constitutionally
protected interests is almost infinite. In the United States, for example, some
constitutionally protected interests may be overridden by regulations that are
found merely to be conceivably relevant to “legitimate” governmental in-
terests; in other areas, regulations must be shown to be “substantially” related
to “important” governmental concerns; in still other areas, rights may be
restricted only upon a demonstration that doing so is “necessary” to serve
“compelling” governmental interests.

The third important area for inquiry has to do with the available means
for enforcing rights. The most prominent questions here concern judicial

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[Vol. 28

enforcement. In what circumstances is judicial enforcement available? What
sorts of remedies, such as damages, injunctions, exclusion of evidence, and
declaratory judgments, will courts afford? Do doctrines exist that permit or
require courts to decline to enforce rights, even when they are violated
without sufficient justification, or that permit legislatures to forbid or prevent
courts from enforcing rights in some circumstances? Even the strongest of
rights will lose much (although certainly not all) of their strength when no
judicial enforcement is available and when resort must be had to more
informal or political remedies.

These three topics cover an enormous range. The present article restricts
itself to the first of these subjects. It undertakes a comparison of the individual
rights interests afforded at least some protection under the Canadian Charter
and the U.S. Constitution. A subsequent article will consider the remaining
two questions: the relative strengths of rights vis-d-vis asserted governmental
justifications in the two systems, and the availability of judicial enforcement
of rights under each system.

I.

The General Scope of Rights Under the Charter and the U.S.
Constitution

The lists of individual rights afforded protection under the Canadian
Charter and the U.S. Constitution bear a great deal of similarity. Both
constitutional texts, for example, protect explicitly the freedoms of expres-
sion and assembly,8 and the freedom of religion.9 Both texts expressly protect
a range of important rights of defendants in criminal proceedings, including
the rights to counsel and jury trial,’0 and protection against arbitrary or
unreasonable searches and arrests,” compulsory self-incrimination, 2 cruel
and unusual punishments, 3 ex postfacto laws, 4 and double jeopardy.’5 Both
constitutions also offer protection against certain forms of discriminatory
treatment.’ 6 The text of the Canadian Charter, in addition, offers explicit
protection to mobility rights, 7 to the rights to vote in federal and provincial

‘Charter, subss 2(b) and 2(c); U.S. Constitution, Amendment I.
9Charter, subs. 2(a); U.S. Constitution, Amendment I.
“0Charter, subss 10(b) and 1 (f); U.S. Constitution, Amendment VI, and art. III, 2, cl. 3.
“Charter, ss 8 and 9; U.S. Constitution, Amendment IV.
“Charter, subs. 11(c); U.S. Constitution, Amendment V.
“Charter, s. 12; U.S. Constitution, Amendment VIII.
“Charter, subs. I 1(g); U.S. Constitution, art. I, 9, ci. 3; art. I, 10, cl. 1.
“-Charter, subs. 11 (h); U.S. Constitution, Amendment V.
16Charter, s. 15; U.S. Constitution, Amendment XIV, 1.
“1 Charter, s. 6.

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parliamentary elections and to the right to be a candidate in such elections. 18
These rights are not explicit in the text of the U.S. Constitution, but a number
of Supreme Court decisions show that they do, in fact, receive a substantial
degree of federal constitutional protection in the United States.”

“Charter, s. 3.
9 See, e.g., Edwards v. California, 314 U.S. 160 (1941); Shapiro v. Thompson, 394 U.S.
618 (1969); and United States v. Guest, 383 U.S. 745 (1966) (mobility rights); Harper v.
Virginia State Board of Elections, 383 U.S. 663 (1966); and Kramer v. Union Free School
District No. 15, 395 U.S. 621 (1969) (voting); Williams v. Rhodes, 393 U.S. 23 (1968)
(candidacy).

Several constitutional textual bases have been suggested in the cases for the U.S.
protection of rights of mobility and travel. These include the U.S. due process clauses
(prohibiting federal or state deprivations of “liberty” without “due process of law”); art. V, 2,
cl. 1 (“the citizens of each state shall be entitled to all privileges and immunities of citizens in
the several States”); the “privileges or immunities” clause of the Fourteenth Amendment (“no
state shall make or enforce any law which shall abridge the privileges or immunities of citizens
of the United States”); and the “commerce clause” of art. I, 8, cl. 3 (“the Congress shall have
power … to regulate commerce … among the several States”).

Most U.S. voting and candidacy cases rely on equal protection principles. See, in addition
to the cases cited above, San Antonio School District v. Rodriguez, 411 U.S. 1 (1973). Other
relevant U.S. constitutional provisions in these areas are the First Amendment (protecting the
freedoms of speech, press, assembly and petition, and sometimes seen as protecting political
activity generally); the Fifteenth, Nineteenth and Twenty-Sixth Amendments (prohibiting
discrimination in voting on account of race, gender or age); the Twenty-Fourth Amendment
(prohibiting poll taxes in federal elections); art. I, 2, cl. 1 and the Seventeenth Amendment
(providing that the House of Representatives and Senate shall be chosen “by the people”); and
art. IV, 4 (providing that the United States “shall guarantee to every State… a Republican
form of government”).

Close scrutiny of the U.S. constitutional provisions cited in this and the preceding
footnotes will create some doubt in the reader’s mind about whether it is strictly accurate to say,
as the text implies, that the rights mentioned in the paragraph are, in fact, generally applicable
in the U.S. to all governmental action, whether under federal or state authority. For example,
the U.S. First Amendment, the primary textual basis for constitutional expression and religious
rights, provides that “Congress shall make no law” interfering with speech or the free exercise
of religion [emphasis added]. And although the U.S. Fourth, Fifth, Sixth, and Eighth Amend-
ments (the primary textual bases for most of the rights of defendants in criminal proceedings)
do not contain this explicit textual limitation to acts of the federal Congress, the Supreme Court
authoritatively held, in Barron v. The Mayor and City Council of Baltimore, supra, note 5,
249, that all of the first eight Amendments were, like the First Amendment, intended solely as
limitations “on the exercise of power by the government of the United States, and [are] not
applicable to the legislation of the states”. A converse textual problem applies to the equal
protection clause of the Fourteenth Amendment, which is in terms applicable only to “state”
action. (Other rights provisions, such as the Fifteenth, Nineteenth, Twenty-Fourth and Twen-
ty-Sixth Amendments are, however, expressly made applicable to action by “the United States
or by any State”. See also art. I, 9, cl. 3 and art. I, 10, cl. 1, prohibiting expostfacto laws by
the federal and state governments, respectively).

In fact, the implication in the text, that the rights mentioned are applicable to both state and
federal governments in the U.S., is generally correct. This result has been reached through
construction of the “due process” clause of the Fourteenth Amendment. Over the years after the
adoption of the Fourteenth Amendment, the free expression and religion guarantees of the First

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[Vol. 28

Although there is thus a broad range of basic similarity between the
rights protected under the Charter and the U.S. Constitution, there appear to
be some significant differences in coverage as well. The official languages
and minority language educational rights in the Charter,”0 for example, have
no apparent U.S. counterparts, in either text or judicial decision.’, Nor does
the U.S. Constitution contain any general principle resembling that contained
in s. 27 of the Charter, which requires that the Charter be interpreted “in a
manner consistent with the preservation and enhancement of the multicultural
heritage of Canadians”. On the other hand, the Charter contains no prohibi-
tion, as does the U.S. First Amendment, upon governmental “establishment”
of religion. Nor does the Charter explicitly protect property rights to the
extent found in the U.S. constitutional text. The U.S. due process clauses, for
example, apply to deprivations of “life, liberty, or property”,2 whereas the
corresponding language in the Charter covers deprivations of “life, liberty
and security of the person”.? The U.S. Fifth Amendment, moreover, pro-
vides that “private property” shall not “be taken for public use, without just
compensation” and the original Constitution provides further that states shall
not enact laws “impairing the obligation of contracts”. 24 The Charter contains
no directly equivalent provisions.

In addition to these evident textual differences, there appear to be other
significant differences as well, due to the fact that the U.S. Constitution has,
through judicial interpretation, come to embrace some rights that are not at all

Amendment were gradually made fully applicable by the U.S. Supreme Court to state and local
governmental action through “incorporation” of those guarantees into the due process clause of
the Amendment, which applies to “state” action. See, e.g., Gitlov v. New York, 268 U.S. 652
(1925); Palko v. Connecticut, supra, note 5; and Everson v. Board of Education, 330 U.S. 1
(1947). The same process occurred with regard to most of the criminal procedure guarantees of
the Fourth, Fifth, Sixth, and Eighth Amendments. See Duncan v. Louisiana, supra, note 5. In
the opposite direction, the equal protection guarantee of the Fourteenth Amendment has been
effectively “incorporated” into the due process clause of the Fifth Amendment, which applies
to federal governmental action. See Bolling v. Sharpe, 347 U.S. 497 (1954).

10Charter, ss 16 to 23.
2′ But see Lau v. Nichols, 414 U.S. 563 (1974), suggesting possible U.S. constitutional
objections, on grounds of equal protection, in a situation where a public school system offered
education only in the English language, but where a substantial number of students in that
system did not speak English and were not offered supplemental remedial instruction in
English.

2These clauses appear in the Fifth and Fourteenth Amendments, the former applicable to

federal governmental action, the latter to state action [emphasis added].

Charter, s. 7 [emphasis added].
2NArticle I, 10, cl. 1. Nor does the Charter appear to protect “the right of the people to keep
and bear arms” (in the U.S. Second Amendment) or limit the right of government to use private
homes to quarter soldiers (Third Amendment). These rights have not been important ones in
judicial applications of the U.S. Constitution, although the right to bear arms is often invoked
in political debates concerning gun control legislation in the U.S.

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CANADIAN CHARTER AND U.S. BILL OF RIGHTS

apparent in the constitutional text. Chief, perhaps, among these potential
differences, is the quite recently developed U.S. right to “privacy” –
the
right responsible, for example, for the 1973 decision of the U.S. Supreme
Court that most abortion prohibitions are unconstitutional. 5 The Canadian
Charter has no provision clearly embodying this privacy right, although it
may emerge ultimately in the course of judicial interpretation, as it has in the
U.S. United States law also contains a general principle of “substantive” due
process, requiring that all regulations impinging upon liberty and property be,
to some degree, “reasonable”
in light of some legitimate government
policy,6 and a similar general “rationality” requirement for governmental
classifications that has been developed under the equal protection clause of
the Fourteenth Amendment.27 These are relatively weak rights at the present
time, but they have some theoretical and practical significance. It is not clear
whether – or to what extent –
either of these general rationality rules will be
recognized under the Charter.

Before exploring, in greater detail, some of the most important potential
similarities and differences in the catalogs of rights protected under the
Charter and U.S. Constitution, it is useful to consider three general topics
concerning the scope of protected rights that are relevant in examining the
breadth of all of the rights covered by the two documents.

“Roe v. Wade, 410 U.S. 113 (1973). See also Griswold v. Connecticut, 381 U.S. 479
(1965) (contraceptive use by married persons protected by a similar principle). The U.S.
privacy right also applies, in some circumstances, to “informational” privacy, i.e., to situations
where the government seeks to collect or disseminate data about “private” behavior without
directly regulating that behavior. See Whalen v. Roe, 429 U.S. 589 (1977).

“6The degree of judicial review of reasonableness has varied considerably under this
doctrine over the years. Compare the relatively substantial level of review indicated in Lochner
v. New York, 198 U.S. 45, 56 (1905) (“Is this a fair, reasonable and appropriate exercise of the
police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with
the right of the individual to his personal liberty or to enter into those contracts in relation to
labor which may seem to him appropriate or necessary for the support of himself and his
family?”) with the extremely low level of review suggested by the currently applicable standard
of Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 488 (1955) (“It is enough that
there is an evil at hand for correction, and that it might be thought that the particular legislative
measure was a rational way to correct it. The day is gone when this court uses the Due Process
Clause… to strike down state laws, regulatory of business and industrial conditions, because
they may be unwise, improvident, or out of harmony with a particular school of thought”).

“As with the substantive due process rule of rationality, the equal protection rationality
standard has varied in its strength over the years. Compare the relatively substantial test of F.S.
Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920) (“The classification must be
reasonable, not arbitrary, and must rest upon some ground of difference having a fair and
substantial relation to the object of the legislation, so that all persons similarly circumstanced
shall be treated alike”) with the much more permissive standard of Railway Express Agency,
Inc. v. New York, 336 U.S. 106, 110 (1949) (a legislative classification is reasonable if the
local authorities “may well have concluded” that it responded to the legislative concern).