Caution on NMD

Recent media reports suggest that the administration of U.S. President Bill Clinton may soon decide to move forward with a national missile defense that would be scheduled for deployment in 2005. The proposed system has drawn criticism focusing on its effectiveness, practicality and sensibility, but little public attention has been given to the legal aspects of the decision. It is our view that the United States should proceed cautiously and in consultation with Russia in this area. The United States should avoid hasty and unilateral decisions to interpret Anti-Ballistic Missile Treaty provisions related to such matters as construction and deployment of NMD components that likely will directly affect any NMD decision at this time.

The 1972 ABM treaty prohibits the Soviet Union (now Russia) and the United States from deploying a nationwide missile defense or from providing a base for such a defense. In an attempt to justify the beginning stages of construction on NMD deployment in Alaska that would not currently be permitted under the treaty and that would need to start soon if a 2005 deployment deadline is to be met, it has been argued that treaty language allows for some degree of construction short of the deployment of a missile system.

Clinton administration lawyers have reportedly prepared legal arguments that early site preparation and initial construction commencement would not constitute a violation of the treaty. This interpretation would allow the Clinton administration to authorize the beginning of construction while passing the true deployment decision to the next administration and ostensibly uphold U.S. commitments to the ABM treaty. It rests on an interpretation of the treaty whereby they artificially dissect the term "construction" into different stages, e.g., the pouring of a concrete pad on the one hand and the raising of a concrete structure with metal tracks to hold a radar on the other. Supporters of this interpretation seemingly do not consider the first of these steps to constitute "construction" or the "creation of a base" for NMD deployment.

Russia may oppose this interpretation of the treaty on the basis of the Russian-language text as well as on precedent. The argument that the United States can begin construction on NMD without violating the treaty is apparently based on a strained English reading of the text and seemingly neglects the equally valid Russian-language version of the treaty. Article I of the treaty reads, "Each party undertakes not to deploy ABM systems for a defense of the territory of its country and not to provide a base for such a defense." In the Russian text, the term sozdavat is used for "to provide" in Article I. Sozdavat has a broad meaning and is used in the treaty text as an equivalent to multiple English terms: "to provide," "to construct," "to develop" and "to create." The treaty includes in the definition of "ABM system components" those that are under construction. The Russian word "for under construction" — stroitelstvo — simply means those components that are in the state of construction. However, in reading the two terms together, it would appear that in the Russian-language text, all phases of the physical "creation" of ABM components are included in the meaning of the term "construction." Indeed, this is the more normal usage for the concept of "under construction" in English (that is, it begins with ground-breaking), and this is the usage that the United States employed in determining when the construction of the phased-array early-warning radar at Krasnoyarsk in western Siberia by the Soviet Union in the 1980s had become a violation of the ABM treaty.

Russia may argue that breaking ground for a missile defense system component constitutes a violation, as the United States did in insisting that the Soviets dismantle the Krasnoyarsk radar. In that case, the United States acted with caution, ultimately deciding not to formally declare the Soviets in material breach of the ABM treaty because under international law such a declaration would have jeopardized the validity and integrity of the entire treaty, placing the strategic balance at risk. Here, too, both sides should avoid hasty decisions.

The ABM treaty, like any other international commitment, is not sacrosanct and is subject to change. The treaty specifically states that it can be amended by mutual agreement and that interpretations of ambiguous treaty provisions can be discussed and agreed among the parties. For one party simply to declare that a certain interpretation of an ambiguous provision of the ABM Treaty involving a controversial subject is correct without agreement with its treaty partner is not good international treaty practice. This would reinforce the view of the world community that the United States is acting increasingly in a unilateral manner and turning its back on its international undertakings.

Ambassador Thomas Graham Jr., special representative of the president for arms control, nonproliferation and disarmament from 1994 to 1997, is the president of the Lawyers Alliance for World Security, a Washington-based, nonprofit organization that advocates prudent steps in nuclear arms control and nonproliferation. John B. Rhinelander, legal adviser to the U.S. SALT I delegation that negotiated the ABM treaty, is a vice chairman of LAWS. Alexander Yereskovsky, a Russian arms control expert involved in such treaty negotiations as the SALT I Interim Agreement, ABM treaty, START I and START II, served as deputy commissioner on the Russian Delegation to the Standing Consultative Commission of the ABM treaty. They contributed this comment to The Moscow Times.