New START Treaty’s Swiss-Cheese Ratification Trap
President Obama’s push for lame-duck Senate ratification of his New START arms treaty ran into a brick wall when Arizona Sen. Jon Kyl, a GOP arms-treaty expert, announced that he opposes a floor vote before the new Congress is seated in January 2011, when a more extensive, detailed exploration of treaty issues can be conducted. Sen. John Kerry intends to press for a vote nonetheless, animating the concern of supporters that a new Senate will bring more opposition votes.
It seems clear that New START cannot win ratification in the lame-duck session, let alone the next Congress, without major unilateral reservations attached to the treaty. Most notable among likely conditions is restoring the unlimited right to monitor unencrypted telemetry data from all Russian strategic missile flight tests. Other modifications would include conditions on missile defense, mobile missiles, and submarine-launched nuclear cruise missiles.
But just as what I recently called “Swiss-Cheese verification” lays a trap for the unwary, so does what may equally be termed “Swiss-cheese ratification” lay a treaty trap. Put simply, unilateral reservations are merely a statement of conditions to winning Senate ratification of a treaty, that in the real world bind no one. Yes, not even the administration as a practical matter is bound, let alone other treaty parties.
How so? True, such reservations legally bind American administrations. But that which is legally binding on paper is not always binding in reality, because any administration need simply decline to vigorously press such conditions in post-treaty negotiations with other parties. Nor is treaty interpretation a saving guide.
As first-rate diplomat John Bolton & legal ace John Yoo have noted, the Russians could simply ignore the Senate’s conditions. They reported that the late arms negotiator Eugene Rostow, a top international lawyer, said that such reservations have “the same legal effect as a letter from my mother.” The Russians, of course, did just that during the Reagan years, ignoring Cold
War arms treaties. Ratification reservations are thus merely a form of unilateral treaty interpretation.
Furthermore, Russia can count on ardent arms controllers who like New START just as it is without any reservations attached to join the Russians in condemning any effort by any administration to enforce unilaterally adopted conditions. In “Don’t Rush New START” former missile defense chief Henry Cooper details how, during the term of the 1972 ABM Treaty, Moscow and many American arms controllers joined to stifle laser missile defense development.
Article XIII of New START provides for a Bilateral Consultative Commission to resolve disputes between the parties. This is essentially a clone of the Standing Consultative Commission established under SALT I. The two parties must agree what constitutes a violation and what if anything is to be done to adddress it. It is as if you sue someone and victory in the trial can only be achieved if the person you sue agrees to be found liable. You may as well submit that letter from mom as evidence.
This means that only wholesale treaty renegotiation can create a sounder arms treaty. But an administration whose enthusiasm for the treaty and manifest eagerness to “reset” relations with Moscow will likely refuse to renegotiate, and a Democratic Senate will back their party’s president. Russia, sure that it has bagged this administration hook, line, and sinker, will threaten to walk out rather than recast the bargain. Swiss-cheese ratification now or in the next Senate simply cannot fix New START’s defects.
What is left, then, is to accept an extended period without any ability to verify encrypted Russian strategic missile tests. Having no new treaty is an undesirable option, but having a bad treaty is a worse one. A new administration can take advantage of considerable leverage to restart New START. Russia has, according to the Heritage Foundation, only 566 strategic missiles deployed now, due to Moscow’s economic distress, far worse than our own. To reach the 700-launcher sublimit Russia gets to add 134 while we must cut several hundred of ours. Instead, we can stay at our higher level in the interim. Put simply, Moscow cannot afford a new arms race, and thus we need not fear one by standing pat. The administration will argue that we must “set an example” for other nuclear nations or aspirants by reducing first, but the U.S. has already reduced its nuclear warhead stockpile by over 70 percent, and deployed nuclear warheads by over 80 percent, without impressing the likes of North Korea, Pakistan, and Iran.
The New Senate should decline to ratify New START and insist that it will accept no treaty with weaker verification than earlier START treaties negotiated by the Bush I, Clinton, and Bush II administrations. It should also address other gaping holes in New START, such as the loopholes exempting rail-mobile missiles from inclusion, and submarine-launched nuclear cruise missiles. Our formal, explicit right to deploy missile defense without Moscow’s having a veto would also be back on the table, without Moscow offering unilateral reservations in the preamble (as is the case with New START) or anywhere else. Moscow’s continuing weak economic position would likely force it to return to the negotiating table.
So let New START collapse un-ratified, rather than fall into the trap of relying upon unilateral “letters from mom” to compel Russian acceptance of reservations Moscow never signed on to. A “RESTART” treaty can await a new administration and a Republican Senate not driven by a “reset” mentality, to bargain harder with the very unsentimental Russians. Preferably this would be in 2013, but if 2017 proves to be the case, it will be worth the wait to get a sound treaty later instead of an unsound one sooner.