New Paradigms Forum
July 26, 2010
by Christopher Ford
In my previous NPF essay, I examined “prompt global strike” issues associated with the “New START” strategic arms agreement between the United States and Russia. But a second – and, in political terms, bigger – conflict over ancillary provisions of the treaty has to do with its impact on U.S. missile defense options. This essay examines the BMD issue, as well as the (perhaps) related mater of the Bilateral Consultative Commission (BCC) that “New START” would create.
I. Wrangling Over BMD
Encouraged by President Obama’s decision in 2009, after years of Russian complaints about U.S. missile defense planning, to abandon U.S. agreements with Eastern European NATO allies on the deployment of ground-based interceptor (GBI) missiles in Eastern Europe, Moscow pressed hard to have limits on U.S. ballistic missile defense (BMD) enshrined in the “New START” agreement.
Having already been subjected to considerable domestic political criticism for his reversal of U.S. policy in the face of Russian saber-rattling, however, President Obama and his senior officials reassured anyone who would listen that BMD limitations would absolutely not be a part of the strategic arms treaty they were pursuing with Russia. As we shall see, the Preamble to the treaty does mention missile defense, but the Administration and its friends today insist that Obama indeed succeeded in keeping BMD limitations out of the deal.
What does this new treaty actually say about missile defense? In the Preamble, “New START” declares that there exists an “interrelationship between strategic offensive arms and strategic defensive arms, [and] that this interrelationship will become more important as strategic nuclear arms are reduced.” While the Treaty acknowledges that “current strategic defensive arms do not undermine the viability and effectiveness of the strategic offensive arms of the Parties,” this phrasing highlights the possibility that additional defensive armaments would be destabilizing. The comment about how the relationship between defensive and offensive arms will become more important as strategic reductions continue also highlights the possibility that limits on BMD will become more necessary as President Obama moves forward with his disarmament agenda. These two corollary points, however, are not stated explicitly: all the agreement actually says is that there exists a relationship that will become more important as our arsenals shrink. Nor are such BMD issues discussed in the operative sections of the instrument; these comments appear only in the Preamble.
Senator John Kerry (D-MA), who as chairman of the Senate Foreign Relations Committee is leading the ratification fight in the Senate, has proclaimed that it is “absolutely clear” that “[t]his treaty does not undercut our ability to protect the country from missile attack in any way.” Lt. Gen. Patrick O’Reilly, the current head of the Missile Defense Agency, echoes this assessment, declaring that “[t]he New START Treaty has no constraints on current or future components of the Ballistic Missile Defense System.” (New U.S. deployments such as “a new GBI missile field,” O’Reilly says, would “not [be] prohibited by the treaty.”) Under Secretary of State Ellen Tauscher waxed positively eloquent on the subject: “[T]here is no limit or constraint on what the United States can do with its missile defense systems . . . . Definitely, positively, and no way, no how – there are no limits …”
There seems, however, to be some disagreement on this – not least from the very negotiating partners with whom the Obama Administration cut the deal. According to the Russians, the new treaty “can operate and be viable only if the United States of America refrains from developing its missile defence capabilities quantitatively or qualitatively.” They have explicitly threatened that, should the United States increase its BMD capabilities “in such a way that threatens the potential of the strategic nuclear forces of the Russian Federation,” Moscow would consider this grounds for withdrawal from “New START.” As Foreign Minister Sergei Lavrov put it, the treaty was “signed against the backdrop of particular levels of strategic defensive systems,” and any change in these “particular levels” would “give each side the right to consider its further participation” in the arms control process. Lavrov has been quoted as saying that the treaty’s link to BMD would be “legally binding.”
To be sure, there is some wiggle room in these formulations. As far as I have seen, at least, the Russians have yet explicitly to assert that an increase in U.S. BMD deployments would be a “violation” of the new treaty, and it is in any event clearly true that each side does indeed possess, under Article XIV of “New START,” the right to withdraw if “extraordinary events” related to the subject matter of the treaty jeopardize its “supreme interests.” One could read the Russian statements as being aimed at setting up more a political than a specifically legal confrontation in the event that we deploy any additional capabilities.
One should expect, however, that the Russians will press this issue any way they can, legally or politically. One factor of relevance as Senators debate the treaty is therefore whether the instrument makes such gamesmanship more difficult or less difficult – and how prepared we are to cope with the challenges we must assume Moscow will be prepared to raise at the first opportunity.
It is certainly clear enough that Moscow approaches BMD issues with a considerable degree of paranoia, viewing any U.S. capability to intercept ICBMs “very negatively” – that is, with something between bitter distaste and outright alarm – and regarding “[t]he development of missile defense [as being] aimed against the Russian Federation.” Even the most optimistic American assessment of the new treaty’s impact on BMD, therefore, must anticipate that if we contemplate additional deployments of any significance, Russia will not be particularly shy about using every lever available to slow or prevent such developments, including threatening to abandon strategic arms control with the United States.
How willing we will be to brave such bluster as we develop our ability to defend against relatively small-scale missile salvos from rogue proliferators such as North Korea and Iran is anybody’s guess. In its dealings with the Obama administration, however – given our current president’s psychological and political investment in the theologies of arms control, his dedication to the “reset” in Russian relations, and his semi-messianic, Nobel-fueled pretensions to be the leader that finally sets Planet Earth on the path to “nuclear zero” – Moscow clearly calculates that it has a good chance of making us blink. Would Barack Obama risk scuppering his own dreams of “transformative” nuclear disarmament over the paltry matter of a few missile defense interceptors here or there? Many Senate conservatives clearly doubt it.
Even under the rosiest legal scenario, therefore, to make any serious attempt at BMD will be sentence ourselves to long rounds of bare-knuckle political and public relations warfare with the Russians over the continued viability of “New START.” This worked in undermining the BMD “third site” in Europe, the Kremlin has presumably concluded. Why not next time too?
To some extent, to be sure, such problems are probably unavoidable, and this cannot be held entirely against “New START.” After all, Moscow would surely pick some kind of a fight on these issues no matter what the treaty says. A decision to do so, it should be noted, would not necessarily be the result of the Russians actually wanting to repudiate Russo-American arms control. Moscow has long needed such agreements more than we have, and this likely remains true today. Nevertheless, its leaders appreciate the tactical and political utility of a good public brawl, especially with American leaders they think they can intimidate. No treaty provisions – or revisions – can wholly insure against these problems: even the most rock-solid language cannot protect us from our own timidity.
Nevertheless, Senate conservatives seem to be worried about the degree to which “New START” seems written to encourage and lend seeming legitimacy to such Russian gamesmanship. The provisions of Article XIV, for instance, only permit treaty withdrawal where the damaging change of circumstances is “related to the subject matter of this Treaty.” By declaring there to be an “interrelationship between strategic offensive arms and strategic defensive arms,” however, the treaty’s preamble makes any U.S. missile defense deployment beyond “current” levels something that is clearly “related to the subject matter” of the agreement. (To get this point, imagine, if you will, that the preamble had been written the other way – that is, to deny any such “interrelationship.” Such repudiation of a connection would effectively preclude lawful withdrawal over BMD deployments, because such a preambular comment would make it very hard to argue that strategic defensive arms were in fact “related to the subject matter” of the deal. By contrast, the current draft seems to go out of its way to tee up Russian withdrawal threats.)
The Obama Administration may have succeeded in keeping explicit reference to BMD out of the operative paragraphs of the agreement, but enshrining an offense/defense relationship in treaty text ensures that “New START” is indeed “about” BMD just the same. This goes a long way toward explaining the stridency of Russia’s declarations: the Kremlin’s game of political “chicken” over improvements to U.S. missile defense is already underway.
II. Preambles and their Discontents
But these are basically political worries. What about legal ones? Well, U.S. conservatives also fret that the Obama Administration may be exaggerating the legal “irrelevance” of the treaty’s treatment of BMD. Let’s examine this.
While Russian officials frequently cite the BMD comments in “New START” in arguing that the United States must cap its defenses at current deployment levels, as we have seen, the Obama Administration’s defenders insist that because this is all just preambular language, these comments are, in a legal sense, basically meaningless. The BMD language is, in other words, just some kind of bland exhortation about which no one should worry because it creates no legal rights or obligations. Under Secretary Tauscher dismisses the Russian comments on this issue as being legally-irrelevant bluster: “Russia’s unilateral statement on missile defenses is not an integral part of the New START Treaty. It’s not legally-binding. It won’t constrain U.S. missile defense programs.” But of course the question is not whether Russia’s unilateral statement will constrain BMD, for no one asserts that – at least not in any legal sense. The issue is the extent to which the Treaty and its Protocol will themselves have this effect.
It is true that preambles indeed generally don’t create legal obligations. As the great Justice Joseph Story described things in his famous Commentaries Upon the Constitution, “we must guard ourselves against an error, which is too often allowed to creep into the discussions upon this subject,” by remembering that a preamble “cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the [document in question].” In fact, it is precisely for this reason that, in practice, preambles sometimes become such jumbled and even self-contradictory messes. They function, in part, as repositories for language expressing positions toward which parties wish, for various political reasons, to tip their hats – but which they have proven unwilling to give the force of law. When a preamble conflicts with the main body of a text, moreover, is to be ignored.
Yet it would be too much to dismiss preambles – the “New START” comments on BMD among them – as being entirely irrelevant, for they are not. They can have legal effect insofar as lawyers resort to them in order to help identify the basic objectives and purposes of an agreement, and for assistance in interpreting vague or ambiguous provisions therein. According to Justice Story, for instance, it “has been … universally conceded in all juridical discussions” that “the preamble of a statute is a key to open the mind of the makers, as to the mischiefs which are to be remedied, and [as to] the objects which are to be accomplished by the provisions of the statute.” A preamble does not create powers, but it provides an important window upon “the nature, and extent, and application” of the rights, powers, or obligations created by the main body of the text. In the future, therefore, anyone interpreting the meaning of the “New START” agreement – or trying to resolve ambiguities in the treaty or its Protocol – would have every reason to turn to its preambular language in order to help understand what the parties were really up to.
A preamble will thus help shape subsequent treaty interpretation. Under Article 31(1) of the Vienna Convention on the Law of Treaties* (see note below), for instance, a treaty is to be interpreted in accordance with the ordinary meaning of the terms used in its text, “in their context,” as well as in accordance with the “object and purpose” of the instrument. A treaty’s preamble gives a window upon both of these things, for in addition to the fact that preambular comments are, as Justice Story noted, a key to the “objects which are to be accomplished by the agreement,” Article 31(2) of the Vienna Convention specifies that preambular language also forms part of the aforementioned “context” in which the meaning of treaty terms is to be understood.
Furthermore – under the Vienna Convention, at least – “object and purpose” is itself important when it comes to (a) assessing treaty violations, (b) constraining party behavior in advance of ratification, and (c) determining the validity of any reservations made in the ratification process. Because preambles can give insight into “object and purpose,” they can thus inform these analyses. Let’s unpack the elements a bit.
Article 60 of the Vienna Convention defines a “material breach” to include “the violation of a provision essential to the accomplishment of the object or purpose of the treaty.” This means that since a preamble helps define the “object and purpose” of an agreement, it will also help shape what compliance problems are viewed as being serious enough to constitute material breach – that is, those problems severe enough to give one party the right to terminate the agreement in whole or in part on account of the other side’s perfidy. Significantly, this is a qualitatively different legal situation from merely one in which a party decides to withdraw from a treaty pursuant to its terms. Mere withdrawal need entail no unlawfulness in itself, and is indeed commonly expressly permitted – as it is in Article XIV of “New START.” In cases of material breach, however, one party is deemed a violator. This is hardly trivial. The new treaty’s BMD preamble may thus not merely help facilitate Russian threats to withdraw from the agreement over BMD, but in fact add a patina of plausibility to future Russian arguments that in some sense we have actually violated it.
“Object and purpose” is also cited by the Vienna Convention in the context of limiting what a party can do during the period before its entry into force. Article 18 specifies a party’s “obligation” not to do anything that would “defeat the object and purpose of a treaty” after signature and before ratification, or pending entry into force, provided that the party has not repudiated prior expressions of its intent to be bound by the agreement. (That such issues can be claimed to arise in modern arms control politics is not a mere hypothetical. Article 18 was cited by the Clinton Administration in trying to argue that the United States was legally required not to test nuclear weapons notwithstanding the U.S. Senate’s vote against ratifying the Comprehensive Test Ban Treaty in 1999.) In this sense, if one were to accept the validity of the Convention as expressing customary international law in this regard, United States BMD policy is already constrained as a matter of law inasmuch as we now must not violate the object and purpose of “New START” – as this is interpreted, in part, in light of the BMD provisions in its Preamble.
Finally, “object and purpose” can be important in assessing the validity of reservations made in the ratification process – an issue that may be of no small importance to U.S. Senators considering the degree to which their own reservations on BMD issues might help to limit the impact of the “New START” Preamble upon American missile defense programs. If one believes Article 19 of the Vienna Convention, reservations are not permitted when they are “incompatible with the object and purpose of the treaty.” Because of the role that preambular language can play in shaping understandings of “object and purpose,” this too is a way in which a “mere” preamble can have real legal consequences.
III. The Bilateral Consultative Commission
It is in the context of the BMD controversy over the “New START” Preamble – though not solely there – that one can perhaps see the locus of some U.S. conservatives’ nervousness over the Treaty’s establishment of a Bilateral Consultative Commission (BCC).
A. A Matter of Trust
Under Part Six of the “New START” Protocol, the BCC is called upon to resolve compliance questions, determine how to distinguish Treaty-regulated ICBMs and SLBMs from other missiles (such as missile defense interceptors!), decide how the Treaty applies to “new kind[s] of strategic offensive arm[s],” and “[a]gree upon such additional measures as may be necessary to improve the viability and effectiveness of the Treaty.” These are not insignificant authorities.
It is also worth remembering that, at least according to Article 31 of the Vienna Convention, the meaning of a treaty is also to be interpreted “any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions.” Agreements reached in the BCC would presumably qualify, particularly since the “New START” text itself defines the Commission’s responsibilities to include “resolv[ing] any ambiguities that may arise” with regard to the rule in Article XIII that neither side may undertake “any international obligations or undertakings that would conflict with its provisions.” (Would this cover cooperative missile defense arrangements with U.S. allies?)
Perhaps importantly, moreover, the Treaty’s Article XIII gives the BCC the job of working to “resolve any ambiguities that may arise” in order to “ensure the viability and effectiveness of the Treaty.” If you think you’ve seen that “viability and effectiveness” phrasing before, you have: it tracks the agreement’s preambular comment that “current” BMD does not “undermine the viability and effectiveness of the strategic offensive arms of the Parties.” This suggests that one envisioned role for the BCC may lie precisely in helping determine whether future American BMD deployments are in fact consistent with the object and purpose of the agreement.
Furthermore, Article XV(2) authorizes the BCC to make changes to the Protocol – which includes the Treaty’s verification mechanisms – provided that the Commission does not attempt to change the basic substantive rights and obligations written into the Treaty itself. (This procedure is separate from the formal amendment process described in Article XV(1), though its result is no less legally binding. BCC-driven Protocol amendments would not require Senate advice and consent.) Article XV(2) is particularly interesting insofar as it is Section I of Part Six of the Protocol that defines the roles and responsibilities of the BCC itself. The Commission, in other words, is to be given the authority to define its own authority on an ongoing basis. All in all, therefore, the BCC would enjoy considerable power to shape the meaning and practical import of “New START,” and indeed its own authority to do such shaping.
Conservatives have thus, perhaps not surprisingly, voiced concern at the potential breadth of the BCC’s mandate. Former Bush Administration national security advisor Stephen Hadley, for instance, has described its power as “troubling,” and urged the Senate “explicitly to proscribe the Commission from [exercising this authority to make Protocol amendments].”
Nothing, of course, preordains that the BCC’s authority would be abused, and the historical record of BCC-like bodies suggests that there is more danger of paralyzing disagreement and ineffectiveness than abusive collusion therein. (More on that below.) Nevertheless, some U.S. conservatives clearly worry about the potential for mischief when Russian diplomats sit down in the BCC to discuss their complaints about American BMD with Obama Administration officials drawn from an arms control clerisy that has long opposed missile defense and/or from a Democratic Party base that detests BMD for its long association with the Republican Party in general and with George W. Bush in particular. Given that it is probably safe to assume vigorous Russian pressure on BMD, many U.S. conservatives wonder whether the White House can be trusted to resist such gamesmanship with sufficient tenacity.
B. A Look at Past Commissions
History provides little to work with in assessing such concerns – though it may offer other lessons about the merits and demerits of BCC-like bodies. The idea of something loosely akin to the BCC is not new in the arms control world, for several prior analogues exist. The Moscow Treaty of 2002, for instance, set up a Bilateral Implementation Commission (BIC). This, however, was little more than a diplomatic consulting group for Russo-American discussions on treaty implementation; nothing in that treaty provided the BIC with powers to interpret the meaning of the agreement or to make legally-binding changes.
A closer parallel to the current treaty’s proposed BCC was the Standing Consultative Commission (SCC) established under the Anti-Ballistic Missile (ABM) Treaty of 1972. As a compliance resolution forum, however, the SCC was singularly ineffective. After the Soviet Union built an ABM radar at Krasnoyarsk in obvious and flagrant breach of that treaty, U.S. representatives complained repeatedly about this violation, but to no avail. Despite repeated American efforts to use the SCC as a forum for resolving the Krasnoyarsk problem – and this was, after all, the body’s purpose – the issue lingered throughout the 1980s. By 1988, in fact, things had deteriorated to the point that U.S. diplomats were fairly explicitly threatening to declare the ABM Treaty dead: without Krasnoyarsk’s dismantlement, they warned, Washington would “have to consider declaring this continuing violation a material breach of the Treaty.” (The United States said it reserved “all its rights, consistent with international law, to take appropriate and proportionate responses in the future.”)
The Russians may today assume that U.S. politicians will quail in the face merely of accusations of some BMD-related “material breach” under “New START,” but the grim apparatchiks who ran the old Soviet Union were bothered not at all by America’s actual discovery of a serious violation at Krasnoyarsk. The Soviets glibly denied the problem in its entirety. Moreover, they made it an important point in their public relations campaign that the Krasnoyarsk matter must be dealt with exclusively within the SCC, since that body was specifically “established by the [ABM] Treaty … for the examination of concerns expressed by the sides.” (To escalate the issue out of the SCC, they implied, was to repudiate the arms control process. Did Washington want that on its hands?)
In effect, therefore, the very existence of the SCC served to help the Russians avoid accountability for their violation, inasmuch as that body was said to be the “proper” forum for discussions of the matter – however endless and inconclusive such talks might be. (There is always a political constituency for “one last try” at an amicable diplomatic solution to whatever problem is at hand, and always some constituency for another one after that.) Despite the seriousness of the Soviet violation, the Reagan and George H.W. Bush Administrations never were quite able to get up the political nerve formally to declare Moscow in material breach – much less to take countervailing measures, or to proclaim some or all of the agreement to have been suspended as a result of the Krasnoyarsk violation. Instead, they simply kept going back to the SCC for years, where they were treated to more Soviet denials. To be sure, Moscow did eventually agree to dismantle the Krasnoyarsk radar, but one suspects this had little to do with the ABM Treaty: the Soviet climb-down came just before the fall of the Berlin Wall, and Moscow did not complete the dismantlement process until well after there had ceased to be a Soviet Union at all.
Today’s Russia is not the Soviet Union, of course, but the Krasnoyarsk episode does at least raise some questions about how effective institutions like the SCC – or the proposed BCC – can be in their advertised role as compliance resolution fora. They may work well enough in dealing with problems that arise with a treaty partner who generally operates in good faith, but such bodies’ cooperative and consensual basis undercuts their ability to address serious compliance concerns. With regard to the basic force limits in “New START,” this is unlikely to be a problem: neither Russia nor the United States seems to feel a need for more strategic nuclear weapons or delivery systems than what is set forth in the treaty, so cheating is not likely. (Where you think the other party will comply anyway, for his own reasons, verification measures and compliance leverage become less important. This was part of the reason why U.S. officials felt it unnecessary to put verification provisions in the Moscow Treaty at all.) A more troubling question arises, however, with regard to BMD-related issues of treaty interpretation, for here the two sides have positions and interests that seem to differ sharply, especially on the meaning and impact of the treaty’s contentious Preamble. It is not hard to imagine that heated and quite intractable BMD-related disputes could find their way before the BCC.
Interestingly, though it hardly distinguished itself as a forum for the resolution of compliance problems, one of the ways the old ABM Treaty’s SCC was most active was precisely in determining, on an ongoing basis, what missile defense work was, or was not, prohibited. This is a subject on which our diplomats once had considerable experience, with U.S. BMD development programs over the years (before our withdrawal in 2002) having been carefully restricted according to what could – or could not – be worked out with our Soviet or Russian counterparts in the SCC.
(The SCC, for instance, was used to hammer out a supplementary agreement in 1978 on what it meant for a missile to be “tested in an ABM Mode.” It was also employed in 1997 to develop understandings on what could be done, and not done, with regard to testing ABM technology to counter missiles other than ICBMs – e.g., against shorter-range missiles. After a separate executive agreement was worked out in 1997 on confidence-building measures related to such non-ICBM anti-missile efforts, the SCC was used in order to interpret its terms as well.)
It seems clear that the biggest obstacle to ratification of the “New START” agreement and its Protocol is thus not the basic structure of the treaty itself – nor the strategic arms reductions that it embodies – but rather the way that these instruments deal with ancillary issues, and in which they set up how their own meaning may be interpreted in the future. The U.S. Senate is not entirely without tools with which to try to address such concerns in the ratification process, of course – starting with mere declarations, but ranging up through the historically common practice of reservations all the way to outright amendment – and one may expect to see such potential remedies become increasingly the focus of attention and discussion.
* The United States has not ratified the Vienna Convention, but many observers take it as being virtually coextensive with customary international law on these subjects. There is not universal agreement on this, but the matter is not – to my knowledge – controversial on the legal or political left. (As noted above, Clinton Administration officials tried to invoke Article 18 of the Convention against opponents of the CTBT.) It would be surprising if the Obama Administration did not regard the Vienna Convention as authoritative, and act accordingly.
Christopher A. Ford was formerly Senior Fellow and Director of the Center for Technology and Global Security at Hudson Institute.
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