.

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

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

D. Commitment

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

111

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

More important, the chief political figures will have made public representations and created public expectations about the importance of the treaty. Indeed, there is something of an inherent tendency to exaggerate the significance of the treaty and inflate the expectations to which it gives rise. For all the incantation by both President Kennedy and Premier Khrushchev that 109 See, e.g., A. Downs, supra note 41, at 102-09. 110 ALLISON 178. He calls this "The 51-49 Principle." 111 Cf. D. SCHON, BEYOND THE STABLE STATE 225 (1971).

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

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

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

Less can be said about how the Soviet government works in this respect. Certainly the concept of collective leadership is designed to insure that all major power groups are publicly identified with all major decisions.113 The same result may be achieved by the promulgation and elaboration of a party line through the various organizations and organs that make up Soviet society. In the case of the Test Ban at least, there was public identification of all the chief members of the leadership group, including the military, with the adoption of the Treaty. In the two months following the signing of the Treaty, it was applauded by major government and party leaders, all of whom stressed the unanimity of approval. There were public statements reprinted in the newspapers and speeches on the floor of both houses of the Supreme Soviet and in their Foreign Relations Commissions. Especially significant in the Soviet Union were the appearances of leaders at public ceremonies connected with the Treaty.1

112

114

2 [1963] JOHN F. KENNEDY, PUBLIC PAPERS OF THE PRESIDENTS 599, 602 (1964); 15 CURRENT DIGEST OF THE SOVIET PRESS, No. 30, Aug, 21, 1963, at 3 (Pravda, July 26, 1963; Izvestia, July 27, 1963).

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

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

114 See 15 CURRENT DIGEST OF THE SOVIET PRESS, No. 39, Oct. 23, 1963, at 19 (Pravda, Sept. 26, 1963); id. No. 31, Aug. 28, 1963, at 4-7 (Pravda and Izvestia, Aug. 4, 1963) (Statement of Soviet Government criticizing China for failure to adhere: "When Communists .. oppose the treaty... this cannot but provoke justified astonishment" [p. 51); id. No. 30, Aug. 21, 1963, at 3-4 (Pravda, July 27, 1963; Izvestia, July 28, 1963) (account of official approval of Treaty by Conference of First Secretarics of Central Committee of Communist and Worker's Parties and Heads of Government of Warsaw Treaty States); id. No.

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

E. The Sum of the Parts

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

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

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

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

115

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

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

III. ORGANIZATIONAL CONSTRAINTS ON BREACH

116

117

A. Parkinsonian Virtues

Max Weber lays it down that one of the defining characteristics of bureaucracy is legalism-administration in accordance with detailed rules having either directly or mediately the force of law. It is not just that individual bureaucrats, like their fellow men, admit the obligation or indulge the habit of obedience to law. Rules are the integument that makes it possible to coordinate the fragmentary tasks and specialized functions of many people in a large organization. Admittedly, some of Weber's successors may stress the operation of rules as communications or as a basis for coordinating expectations,115 rather than as legal or prescriptive norms. And we are learning about informal arrangements within organizations by which the strictures of prescription may be meliorated.119 But when all is said and done, popular and scholarly judgments agree: rules and regulations are of the essence of bureaucracy.

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

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

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

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

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

120 U.S. CONST. art. VI.

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

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[Vol. 85:905 creativity; unwillingness to take risks; operation by the book all are enlisted in aid of compliance with the agreement.

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

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

123

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

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

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