149. Memorandum From Robert H. Johnson of the National Security Council Staff to the President’s Deputy Special Assistant for National Security Affairs (Rostow)0

SUBJECT

  • Draft Protocols Relating to the ICC for Laos

In response to your request, I have obtained from the State Department various documents relating to the ICC issue. Of these, the most important is a draft French agreement which was tabled with our concurrence, articles supplementing this agreement tabled by the U.S., an alternative Indian draft and comments by the Department to Geneva on the Indian draft. I have summarized and compared the French-U.S. and Indian drafts in the attached and included the State comments. This attachment will, I believe, save you a good deal of time in finding your way through the issues and in describing the area within which negotiations must take place. I have arranged it topically, but with some variation it follows the format of the French-U.S. draft.

The attachment does not answer, however, the basic questions you raised as to (a) exact numbers of personnel, kinds of equipment, where they are to be located, etc.; and (b) the U.S. fallback position on the several issues involved. On the first, the Department of Defense has done a good deal of detailed planning. I have just requested the DOD papers. It is not planned to incorporate these details in the new agreement itself except for a statement on the location of the most important operations centers for the inspection teams (see Par. 5 of attached). However, State did not seem very clear as to the means by which our views on these subjects would be put forward. It might, I would suppose, be useful to consider whether such specifics should be put forward at Geneva as further bargaining counters. However, agreement on specifics would not seem to me to make compromise possible on such basic principles as full access, control of transport and communications equipment, majority rule, etc. These principles obviously have broader applications that cannot be satisfied by agreement on specifics.

When I first asked about a fallback position I was told that the French draft (ex the supplementary U.S. articles?) was the minimum. When I talked with Usher of State today, however, he said that he had been working on the question of fallback position over the weekend (presumably because of the President’s expression of interest).

[Page 328]

Usher emphasized that we do not want to fall back into hobbles. After some reflection and effort to think out possible compromises on specific articles, he had come to the personal conclusion that we needed first to prepare a statement of the objectives or principles which would guide any effort to offer compromises. He is attempting to incorporate this approach in the draft general guidance message to Geneva which we saw last week. He will send me his language when it is available. Following is the statement of the essential characteristics of a control mechanism as set forth in the version of the draft telegram we saw last week:

1.
Its own transport and communications equipment and unconditional control thereof;
2.
Free and immediate access to all areas of Laos;
3.
It must be able to make decisions and issue reports by majority vote;
4.
Adequate fixed and mobile teams to do its job;
5.
Its security assured by RLG.

Usher confirmed my impression that the Indian draft is probably to be considered the principal alternative to our position. In response to my query he said that he did not know whether the Indian draft also reflected the Communist position. He suspected it did, in general, but agreed that this was a question worth exploring. He also acknowledged, in response to my suggestion, that the Communists might offer some proposals of their own to facilitate a “compromise” on the Indian version.

If the Indian draft does pretty well reflect the Communist position, the attached comparison will illustrate something of the range within which compromise will have to take place if agreement is to be reached (unless we offer new points for bargaining purposes). Although I have made no thorough effort to compare the Indian draft with the Geneva Accords of 1954 and although they differ in a number of obvious respects, my general impression from reading the two is that the Indian draft would establish an ICC that would have roughly equivalent functions and authority. As the attached statement may suggest, the Indian draft is rather obscure on some of the most important points, partly because the several provisions having a bearing on a particular subject are scattered.

I have summarized in this memo and the attachment all of the material I received from State except for a general memo of explanation of the U.S. position on the ICC submitted by State to the White House last May,1 a Cambodian draft (thoroughly vague and unsatisfactory) and [Page 329] State comments upon it.2 The May statement is principally valuable for the background it provides on the question of membership of the ICC on which, because of objection by all concerned, we have, as you know, retreated to the 1954 formula.3

Bob

[Attachment]

SUMMARY COMPARISON OF FRENCH AND U.S. DRAFT PROTOCOL ON CONTROL WITH INDIAN DRAFT

(Note: The U.S. accepted the draft tabled by the French but offered supplementary articles. State comments on the Indian draft are from Fecon 309 of July 27, 1961.)4

1. Composition of International Control Commission

French Draft: Continues the commission created by 1954 agreements (Art. 1).

Indian Draft: Same (Art. 2).

2. General Functions of ICC

French Draft: To supervise and control implementation of the cease-fire agreement and the neutrality declaration (Art. 1).

Indian Draft: On cease-fire: same (Art. 2). On neutrality: preservation of neutrality, including exclusion of outside interference, is concern of Laotian Government; ICC to assist in preservation of neutrality, establishing necessary machinery in agreement with Government of Laos and in accord with this agreement (Art. 6).

3. Relations with Government of Laos: General

French Draft: Commission to act in close cooperation with government (Art. 1). Government to ensure safety of ICC and its inspection [Page 330] teams, in particular: (a) including, at their request, placing of protective forces at their disposal; (b) taking measures to enable them to travel quickly and safely so they may perform duties more effectively; (c) granting all privileges and immunities required for performance of duties (Art. 5).

Indian Draft: ICC to function in close cooperation with government as in French draft (Art. 10). Would have government place protective forces at disposal of ICC “if required” (instead of, if requested); privileges and immunities granted would be those “agreed”; no specific reference to measures relating to travel, though this may be covered by general provision relating to facilities for visits and inspections (see Par. 6 below) (Art. 3).

4. Authority of ICC and Its Inspection Teams

French Draft: To have all authority for investigation, inspection and verification necessary for performance of duties, including authority to hear witnesses; unrestricted access by land, sea and air to all parts of Laos; full freedom to inspect all installations, units, organizations and activities which might be of a military nature; and access to relevant documents relating to civil and military aircraft, vehicles and river craft (Art. 3).

Indian Draft: ICC “will investigate by visiting and inspecting or in other ways as appropriate such difficulties in regard to the maintenance of the cease-fire as may arise.” (Art. 3). ICC to “exercise vigilance” to assist in preventing introduction or reintroduction of foreign military personnel and military equipment whose introduction is contrary to provisions of the agreement, establishing such machinery as is necessary to this purpose in agreement with the Laotian Government (Arts. 4 and 7).

(State Comment: Investigatory power of ICC seems limited to “maintenance of cease-fire”. Is not clear whether reference to exercising vigilance includes investigation. See also State comment under Par. 5 below. Making establishment of ICC machinery subject to RLG agreement would undermine effectiveness and freedom of action of ICC.)

5. Composition and Location of Inspection Teams

French Draft: ICC to establish fixed and mobile teams on which the three states on the ICC shall be equally represented; the absence of the representative of one state shall not prevent ICC or teams from performing functions. ICC to establish (and change if need arises) sufficient number of operations centers to permit efficient operation of the inspection system; in particular these to be established at main points of entry and exit from the territory (Art. 2).

Supplementary U.S. Draft: Initially the ICC shall establish operating centers for its inspection teams at all major points of entry and communications [Page 331] centers throughout Laos. These places shall include:—————. All military personnel and advisers, armaments, munitions and equipment will enter and leave only at such places specified above as may be designated by the ICC and then only after prior notification and prior approval and under the supervision of an inspection team. The ICC to withhold approval of movements inconsistent with provisions of the agreement under its supervision and control (Art. 13). When the ICC has established these operating centers and determined that it is able to operate effectively throughout Laos it will so inform the Laotian Government and members of the Conference. On the day after that notification, the provisions with respect to elimination of foreign military, the introduction of arms and equipment and movements of both will come into effect (Art. 14).

Indian Draft: Apart from general authorization to ICC to establish, in agreement with Laotian Government, machinery to prevent illegal movement of military personnel, equipment, etc. (see Par. 4 above), draft contains no comparable provisions. Draft does specify (Art. 13) that ICC personnel shall be exclusively Canadian, Indian, Polish or Laotian nationals.

(State Comment: ICC should have all authority for investigation, inspection and verification necessary for performance of their duties. Effective inspection can best be attained by requiring free and immediate access (Par. 4 above), fixed and mobile teams, commission and teams to function when any two members present, and inspections at request of any member of ICC or inspection team (see Par. 7 below).)

6. Logistic and Other Support

French Draft: Laotian Government to ensure assistance is provided at all administrative and military levels (Art. 1). ICC to have sufficient logistic resources, including all means of transport and communications required for effective performance of its duties; to have free use of these and of facilities necessary for their maintenance (Art. 4).

Indian Draft: ICC and its teams will be “afforded” facilities needed to carry out its inspections expeditiously and effectively (Art. 3). The Government of Laos shall extend to the ICC necessary facilities and assistance (Art. 10). Administrative control of personnel and equipment at the disposal of the ICC rests, to the extent necessary for the purposes of the discharge of its functions, in the ICC (Art. 14).

(State Comment: Art. 3 leaves open who will “afford” ICC equipment. It appears that RLG alone is to provide “necessary facilities and assistance”, presumably including equipment. This is contrary to principle that Commission should be permitted to accept equipment from any source. Phrase in Art. 14 “to the extent necessary for such purposes” [Page 332] is possible source of future disputes. Complete control by ICC is necessary for effective operation of the ICC.)

7. Initiation of Investigation and Voting Provisions

French Draft: Shall be undertaken without delay when requested by Laotian Government or by any member of the ICC or any member of an inspection team (Art. 6). Decisions relating to operations of the commission or its teams and all procedural decisions shall be by majority vote (Art. 7).

Indian Draft: ICC shall undertake investigations relating to maintenance of cease-fire upon receiving information or reports from Laotian Government or other authorities designated for the purpose, or at its own initiative and in agreement with Laotian Government (Art. 3). No reference is made to investigations not relating to cease-fire other than general references with respect to “exercising vigilance” with respect to illegal introduction of military personnel and equipment (see Par. 4 above). The ICC shall decide major questions by agreement among its members (Art. 8).

(State Comment: Investigations cannot be undertaken without RLG’s consent, thus making ICC freedom of access subject to RLG agreement. Voting formula seems less satisfactory than in 1954 agreement amounting to unanimity rule for “major questions” without indicating how members decide which questions are major ones.)

8. Reporting by Inspection Teams and by the ICC

French Draft: The inspection teams will report regularly, and, where urgent measures are required, immediately, to the ICC. The ICC will send the Conference a regular quarterly report and special reports (including suggestions as to measures to be taken) in case of urgency. Where members of the ICC or of a team cannot agree, majority and minority or three separate reports shall be submitted (Art. 8). The Laotian Government and the ICC may at any time propose to members of the Conference arrangements they consider necessary to adapt the activities and resources of the ICC to the situation (Art. 9). As long as the ICC exists, heads of the diplomatic missions to (country) of those states which are members of the Conference shall meet at least twice a year (or by majority agreement, at the request of one head of mission) to consider ICC reports (which will be circulated directly to them) and proposals by the ICC or the Laotian Government for changes in arrangements pursuant to Art. 9 (Art. 10).

Indian Draft: The ICC will report to the Co-Chairmen as and when necessary and in any case whenever it investigates an incident or takes other important steps. The Co-Chairmen will circulate ICC reports to members of the Conference (Art. 9). The Co-Chairmen shall, at the end [Page 333] of three years or earlier if requested by the Laotian Government, report to members of the Conference on the question of substantial modifications in (as well as termination of) the operations of the ICC (Art. 12). The draft contains no arrangement for regular or special meetings of Conference representatives.

(State Comment: Regular reports should be required and minority reports authorized. Transmission through the Co-Chairmen offers possibilities for delay; they should at least be required to circulate them immediately.)

9. Withdrawal of Foreign Military Personnel and Advisers

Supplementary U.S. Draft: Military personnel and advisers, other than those whose presence is consistent with the 1954 agreement [the French]5 shall be withdrawn as soon as possible and in no case later than _____ days after the notification by the ICC of its establishment of operating centers and of its ability to operate effectively throughout Laos (Art. 16).

Indian Draft: All foreign military and para-military personnel and units to be withdrawn immediately under the supervision of the ICC; in any case withdrawal shall be completed within _____ days of entry into force of the agreement (Art. 4). Retention of French personnel for training of security forces may be mutually agreed between governments of France and Laos. The French cannot delegate its responsibilities to any other authority than the Laotian Government and may not recruit any personnel other than French or Laotian for this purpose (Art. 5).

(State Comment: Immediate withdrawal of foreign forces without provision similar to U.S. draft for ICC determination that it can operate effectively throughout Laos is unsatisfactory. Prohibition on delegation of French authority too restrictive; it would even prevent delegation to neutrals which might in future be desirable.)

10. Introduction of Arms and Equipment

Supplementary U.S. Draft: No arms or equipment inconsistent with the Laotian Government’s declaration on the organization of its national army shall be introduced (Art. 18).

Indian Draft: Introduction of arms and war material generally, except as required for the defense and security forces of Laos, is contrary to the agreement (Art. 7).

11. ICC Costs

French Draft: Shall be borne as follows: _____ (Note: Proposed U.S. formula, not included in text of draft agreement would have U.S., USSR, [Page 334] Communist China, France and U.K. share equally in meeting 80 percent of costs, providing that our share for the year ending June 30, 1962, shall not be more than $2 million. Other 20 percent to be borne by the nine other members of the Conference.)

Indian Draft: To be allocated on the basis of the principles governing contributions to expenses of the UN.

(State Comment: Would mean U.S. share would be approximately one-third.)

12. Termination of the ICC

French Draft: To remain in being until members of Conference agree it can be terminated and in any case until July 31, 1964. The Co-Chairmen shall report to the Conference by that date on the question.

Indian Draft: The Co-Chairmen to report on the question at end of three years, or earlier if requested by Laotian Government.

Provisions of Supplementary U.S. Draft Not Included in Indian Draft

The parties to the cease-fire shall simultaneously inform the ICC within thirty days of the location, organization, strength and equipment of all of their forces and all foreign forces and advisers as well as the quantities of arms and equipment in their possession (Art. 15). The ICC is to report to the Laotian Government and members of the Conference any arms and equipment which appear in excess of the needs of national forces and shall recommend disposition (Art. 17).

Within ten days all POW’s and civilian internees shall be released, non-Laotians being released to the ICC for repatriation (Art. 19). There shall be no reprisals or discrimination against persons, groups or organizations for their role in the hostilities (Art. 20).

Provision of the Indian Draft Not Included in French or U.S. Drafts

The ICC for Laos shall cooperate with those for Cambodia and Viet-Nam in accordance with the 1954 Geneva Agreements (Art. 11).

  1. Source: Kennedy Library, National Security Files, Countries Series, Laos: General, 7/61. Confidential.
  2. Memorandum from Battle to McGeorge Bundy, May 27. (Ibid., 5/14/61–5/31/61)
  3. The Cambodian draft included provisions for “troika” and a veto by the ICC co-chairman, but nonetheless was rejected by China and the Soviet Union, causing Sihanouk to leave the Geneva Conference and have only a single Cambodian representative remain at Geneva. (Confe 318 from Geneva, June 30; Department of State, Central Files, 751J.00/6–3061)
  4. Johnson wrote the following note at the bottom of the page: “Do you want me to send a copy of this to General Taylor?”
  5. Not printed. (Department of State, Central Files, 751J.00/7–1461)
  6. Brackets in the source text.