Re-START: Legal Options to Extend a Nuclear Verification Regime

30 July 2007

With tensions raised again between Russia and the United States thanks to the proposed European missile shield, nuclear transparency becomes more important than ever;  in this article, LAWS and WSI Legal Research Assistant Tom McNutt explains how the two sides can come together to renew the Strategic Arms Reduction Treaty (START), and what happens if they don't.

 

By Tom McNutt, LAWS & WSI Legal Research Assistant

 

Tensions are raised on both sides of the Atlantic again.  Russia's planned suspension of participation in the Conventional Forces in Europe Treaty and its warnings surrounding the proposed American missile defense shield in Europe have reflected a post-Cold War low in bilateral relations.  In light of these events, transparency regarding military capabilities and nuclear weapons takes increasing prominence.  In spite of the critical nature of related verification measures, however, Reagan's signature phrase, "Trust, but verify," may soon be reduced simply to "Trust." 

 

The Strategic Arms Reduction Treaty (START)[1] required the first reduction of strategic nuclear arms in history and has eliminated more than 30 percent of existing nuclear weapons.  Yet, the procedural accomplishments of the treaty are even more impressive.  START created an extensive system that reviews and verifies the quantity and quality of American and Soviet nuclear arsenals, creating a very high level of transparency for both nations.  On Dec. 5, 2009, however, START is slated to expire, and neither side appears keen on renewing the agreement.

 

In short, both parties believe that some START procedures are outdated while others are unnecessary.  Without START, however, all of its verification procedures disappear, a prospect that worries the intelligence community and international security research groups alike.[2]

 

Russia and the United States have both indicated, however, that they would like some sort of post-START verification measures.  Russia and the rest of the international community prefer those that are legally binding, while the United States prefers those that are not.  Because informal measures offer little certainty of compliance, this article will explore the legally binding options surrounding START.[3]

 

An overview of the legal landscape

 

International law is derived from a variety of sources including treaties, custom, and general principles of law.  While all international laws, because of the lack of an international sovereign, suffer from less certain enforcement than their domestic brethren, treaties offer the most certain existence of law prior to a judicial decision.  If a law involved something minor, like a small ports dispute, certainty would be merely important; for nuclear weapons control, certainty is critical.  Thus, this article will focus on the most clear-cut source of international law: treaties.[4]

 

In international law, a treaty is "an agreement between two or more states or international organizations that is intended to be legally binding and is governed by international law."[5]  The title of the agreement convention, pact, protocol, accord, etc. is irrelevant.  Treaties are essentially contracts between states.

 

In contrast, U.S. law differentiates between different types of international agreements, creating three distinct categories that are all treaties under international law.[6]  First, "treaties" are international agreements that have received the advice and consent of the Senate and that have been ratified by the president.[7]  When most Americans think of treaties, they imagine this first category. 

 

The remaining two categories involve international agreements made without seeking the advice and consent of the Senate.  The second category, "congressional-executive agreements," contains those agreements made "by the President as authorized in advance or approved afterwards by joint resolutions of Congress."[8]  Many trade agreements such as NAFTA were concluded via a congressional-executive agreement, as was the SALT I Interim Agreement.  The third category, "sole executive agreements," contains those agreements made by the president alone based upon on his own constitutional authority.

 

While formal treaties have the most gravitas and have traditionally been used for arms control agreements, most commentators agree that congressional-executive agreements may be used whenever a treaty could be.[9]  The scope of sole executive agreements is smaller, but it is unclear the extent of the difference.  A president can likely make military agreements pursuant to his or her status as commander in chief.[10]

 

The main difference between the three types of agreements is the manner in which the agreements become law in the United States.  Under the first category, the president[11] typically signs a treaty and sends it to the Senate.  The Senate then considers the treaty and, if two-thirds of senators present consent to the treaty, sends it back to the president.  The president then ratifies the treaty.  Under the second category, the president typically signs an agreement and a majority of both houses of Congress agree to a joint-resolution, which becomes law on presidential signature, either before or after the negotiations occur.  Under the third category, the president signs the agreement which becomes law according to its terms, without any congressional involvement.  Generally, a treaty is the hardest of the processes to complete, followed by a congressional-executive agreement, while a sole executive agreement is the easiest.

 

The status of START and treaty-based options

 

START is a treaty under U.S. law.  The Senate gave its advice and consent to the agreement and President Bill Clinton ratified it in 1994.  When the USSR and the United States negotiated START,[12] they operated under the assumption that it would eventually be replaced by another treaty.  As a result, START explicitly states that it "shall remain in force for 15 years unless superseded earlier by a subsequent agreement on the reduction and limitation of strategic offensive arms."[13]  Yet, that subsequent agreement has not happened.  START II was negotiated and ratified by the United States, but never entered into force.  The 2002 Moscow Treaty (SORT), the only treaty that could potentially meet this provision, explicitly asserts that "START remains in force."[14]   Thus, START is still set to expire on Dec. 5, 2009.

 

Option 1: New treaty

Although the Bush administration has been averse to entering into new treaties, a new treaty would offer significant benefits for Russia and the United States.  First, it would allow them to eliminate Belarus, Kazakhstan, and Ukraine from the agreement, simplifying implementation and future negotiation.[15]  Second, it would allow Russia and the United States to tailor the verification measures to the current weapons environment instead of relying on measures that were relevant 15 years ago, but have lost their importance today.  Third, a major treaty initiative such as this would reinforce the friendship between the two nations and help dampen cries of a Cold War rebirth.

 

In spite of these advantages, the timeframe to negotiate a new treaty is limited and the Bush administration remains opposed to a new treaty.  Russia's new president will take office in May 2008, while the new American president will take office in late January 2009.  This leaves approximately 10 months to negotiate, sign, and ratify a treaty to replace START.  If both new administrations enter office with this treaty high on their agendas, they could beat the December 2009 deadline, but the timing creates a high hurdle.

 

Option 2: Extend START

In case the parties fail to negotiate a new treaty, START also provides a method for extending the treaty in five year increments:

 

No later than one year before the expiration of the 15-year period, the Parties shall meet to consider whether this Treaty will be extended.  If the Parties so decide, this Treaty will be extended for a period of five years&This Treaty shall be extended for successive five-year periods, if the Parties so decide, in accordance with the procedures governing the initial extension.[16]

 

Although neither side currently wishes to extend START, if they cannot reach a new agreement before December 2009, the extension process is relatively easy and painless as far as international agreements go.

 

The parties must meet by Dec. 5, 2008, to consider whether START will be extended, but they can decide whether or not to extend the treaty any time prior to its expiration.[17]  It is required that they have the meeting, but not required that they decide START's future at the meeting.  This option functions as a safety valve because of the limited time available to negotiate a treaty after the new American administration takes office in January 2009.  If the parties are not able to complete new treaty negotiations by December, they can simply decide to extend START another five years, and neither the Senate nor the Duma need approve because they have delegated the authorization in the treaty.  This approach was used in 1995 for the indefinite extension of the Treaty on the Non-Proliferation of Nuclear Weapons.

 

Option 3: Extend START and cut optional measures

Although both parties currently agree that some of the verification measures under START are too expensive and no longer necessary, all of the measures are effectively optional.  Three out of the 13 types of verification measures mentioned in Article XI are mandatory in part, but their mandatory nature relates to exhibitions that were applicable only at the outset of the treaty.[18]  The rest declare that "Each Party shall have the right to" perform a given measure.  In light of this, in a worst case scenario, the parties could renew the treaty for five years but choose not to perform all of the measures to which they have the right.  Unilateral statements of intention could provide guidance, but would not be legally binding.

 

Option 4: Amend START

If the parties are determined not to renew START as written, but still want to keep some verification regime in place, they could also amend START.  The biggest impediment to this, however, is START itself.  Article XVIII states that "amendments shall enter into force in accordance with the procedures governing entry into force of this Treaty."  In other words, any amendment must go through the same advice and consent procedures that START went through.  Whether such an outcome could be achieved before START's expiration is uncertain. 

 

New procedures via executive agreement

The Bush administration has been receptive to executive agreements.  While the United States and Russia could theoretically enter into an executive agreement regarding verification procedures, START might again pose a problem.  When the Senate gave its consent, it imposed a declaration on "Further Arms Reduction Obligations."  It declared that any international agreements that would obligate the United States to reduce or limit the Armed Forces or armaments of the United States in a militarily significant manner must be undertaken only through the advice and consent treaty procedures.[19]  In short, if verification procedures reduce the Armed Forces in a militarily significant manner, any agreement must be sent to the Senate as a treaty.  If they do not reduce the Armed Forces in a significant manner, then an executive agreement could be used.

 

Option 5: New executive agreement

A plain reading of the language would seem to support that these verification procedures would not reduce the forces in a militarily significant manner.  The verification measures themselves would not limit the right to develop, test, or deploy missiles because they would be procedural instead of substantive limits.  Even if the verification measures were considered militarily significant, however, both sides want fewer procedures than contained in START.  Any new agreement would, therefore, increase rather than limit the Armed Forces.  Thus, the Senate declaration and the statute would not be triggered.

 

If the declaration is not triggered, then the president could use either type of executive agreement to conclude an international agreement with Russia on verification procedures.  The political costs, however, might be greater than the legal gains.  Because the argument on whether the declaration is triggered is debatable, the Senate would probably feel that the president was deliberately contravening the chamber if he chose to use an executive agreement.  If the president chose a congressional-executive agreement, then Congress could vote down the agreement in turn.  If the president chose a sole executive agreement, then Congress could refuse to fund the agreed upon measures (although this is politically unlikely). 

 

Option 6: Secret agreements

A final option, theoretically possible but realistically unlikely in arms control agreements, is that there could already be a secret agreement on verification measures and transparency relating to arms control requirements, usage of national technical means, and inspections.  While the State Department publishes a list of "Treaties in Force" each year, there are exceptions for agreements classified for security reasons.[20]  Any such agreement would, however, have to be reported to Congress.[21]  Unfortunately, from an unclassified perspective, there is no way of knowing whether such an agreement exists, but there are no indications or rumors that it does.  The United States and Russia, of course, could also negotiate a new secret agreement on verification measures. 

 

Any secret agreement is just as legally binding as a published agreement.  Although the UN Charter requires that all international agreements be registered with the UN Secretariat, the only punishment for failing to do so is that parties to the agreement may not invoke the agreement before any UN organ.[22]  For an agreement that the parties wish to keep secret anyway, this is of no concern.  In spite of the inability to litigate before the International Court of Justice, however, the agreement would be legally binding.

 

Conclusion

 

If the United States and Russia wish to keep some of the verification measures established by START, avoiding a scenario of "flying blind" in nuclear proliferation, they have six options.  First, they can extend START and create more time for negotiating a new agreement.  Second, they can extend START and come to an understanding as to which of its voluntary measures they wish to undertake.  Third, they can amend START, going through the standard treaty procedure of Senate consent and Duma approval.  Fourth, they could enter into an executive agreement.  Fifth, they could already have a secret verification agreement (or enter into one), but this path loses the public relations benefits of arms control.

 

Finally, the United States and Russia could enter into a new treaty that includes verification measures.  In the long run, a new treaty creates the most certainty and most security.  It also makes the most sense.  The rhetoric and trajectory of arms control treaties indicates that both countries wish to reduce their armaments.  If so, then it's time to negotiate a treaty eschewing flexibility and imposing predictability.  Until that happens, the United States and Russia have several options regarding START, including the appalling option of simply letting it expire.