Craig Cerniello, " SCC Parties Sign Agreements On Multilateralization, TMD Systems", Arms Control Today 27 (September 1997): 26/32.

SCC Parties Sigti Agreements On Multilateralization, TMD Systems

IN A SEPTEMBER 26 ceremony at the Waldorf-Astoria Hotel in New York, representatives of the United States, Russia, Belarus, Kazakhstan and Ukraine signed a set of agreements that seek to establish a "demarcation line" between theater missile defense (TMD) systems, which are not limited by the 1972 ABM Treaty, and strategic missile defense systems, which are restricted. They also signed a memorandum of understanding (MOU) that designates Russia, Belarus, Kazakhstan and Ukraine as the successor states to the former Soviet Union under the treaty. [...]

These agreements mark the conclusion of nearly four years of difficult negotiations in the Geneva-based Standing Consultative Commission (SCC), and are critical to U.S. and Russian efforts to secure the Russian Duma's approval of START II. The Clinton administration has indicated that it will submit the demarcation agreements and the MOU to the Senate for approval, where a tough battle is expected, after the Duma ratifies START II. Some Russian legislators have linked further nuclear reductions to constraints on highly capable U.S. TMD systems.

TMD 'Demarcation'

The "First Agreed Statement" pertains to so-called "lower-velocity" TMD systems (those with interceptor velocities of 3 kilo­meters per second or less). According to the statement, deployment of such TMD systems will be permitted under the ABM Treaty provided that they are not tested against ballistic missile targets with velocities above 5 kilometers per second or ranges that exceed 3,500 kilometers. The statement will enable the United States to deploy the Army's Patriot Advanced Capability-3 (PAC-3) and Theater High Altitude Area Defense (THAAD) systems as well as the Navy's Area Defense system, all of which the United States had previously declared to be treaty compliant.

Under the "Second Agreed Statement," which covers "higher-velocity" TMD systems (those with interceptor velocities above 3 kilometers per second), the five states are prohibited from testing such systems against ballistic missile targets with velocities above 5 kilometers per second or ranges that exceed 3,500 kilometers. The agreed statement also bans the development, testing or deployment of space-based TMD interceptor missiles or space-based components based on other physical principles that are capable of substituting for such interceptor missiles. The sides will continue to make deployment decisions on higher-velocity TMD systems based on their national compliance determinations, and the United States has already indicated that the Navy's Theater‑Wide Defense (NTWD) system is consistent with the ABM Treaty. Both agreed statements on demarcation will enter into force simultaneously with the MOU on succession.

The United States, Russia, Belarus, Kazakhstan and Ukraine also signed an "Agreement on Confidence‑Building Measures" (CBMs) to govern the deploy­ment of both lower- and higher-velocity TMD systems. These measures, which include detailed information exchanges and prior notification of TMD test launches, apply to the U.S. THAAD and NTWD systems as well as to the Russian, Belarusan and Ukrainian SA-12 system (Kazakhstan does not possess the SA-12). This agreement will enter into force simultaneously with the First and Second Agreed Statements.

Moreover, to facilitate implementation of the CBM agreement the five countries signed a "Joint Statement" requiring each party to provide information annually on the status of its TMD plans and programs. In this regard, the five states each issued a statement on their TMD plans that reiterates understandings reached between Presidents Bill Clinton and Boris Yeltsin at the Helsinki summit in March. (See ACT, March 1997.)

MOU on Succession

The collapse of the Soviet Union in December 1991 created a situation in which ABM-related facilities were located in several of the newly independent states. Although the only operational ABM interceptor system was deployed in Moscow, a number of early warning radars and an ABM test range were located outside of Russian territory. Russia, therefore, sought multilateralization of the ABM Treaty in order to facilitate its ability to maintain a functional ABM system. Meanwhile, Belarus, Kazakhstan, and Ukraine, viewed treaty membership as an important ele­ment of their independent status.

In June 1996, the United States, Russia, Belarus, Kazakhstan and Ukraine reached a preliminary agreement that would have allowed any state of the former Soviet Union to become a party to the ABM Treaty. However, in the final stages of the negotiations on ABM succession, the sides agreed to restrict treaty membership to just the five states.

Under the MOU on succession, Russia, Belarus, Kazakhstan and Ukraine will collectively be limited to the terms of the treaty: ABM deployment at a single site and a total of 15 ABM launchers at test ranges. Those states that choose to ratify or approve the MOU will also be bound by both of the agreed statements on demarcation.

In addition, the five states signed an agreement establishing revised regulations for the multilateral operation of the SCC. It will enter into force simultaneously with the MOU on succession.

Issues May Remain

Despite the demarcation agreements, Russian and Ukrainian officials have pointed out that the First and Second Agreed Statements do not resolve all of the ABM-TMD demarcation issues. During the September 26 signing ceremony in New York, Foreign Minister Yevgeniy Primakov said the agreements [do] not end the work to prevent the circumvention of the ABM Treaty." He noted that the agreements only reflect the status quo and will have to be revisited as TMD technologies evolve in the future. Likewise, Ukrainian Foreign Minister Hennadiy Udovenko said the agree­ments "[do] not remove all the problems related to the demarcation between the ABM and TMD systems." That same day, a senior Clinton administration official responded in a background briefing that "this agreement [on demarcation] settles the issue of protecting our right to proceed with the THAAD systems that we are now pursuing."

Before the ABM agreements can enter into force, they must be ratified or approved by each of the five signatory states according to their respective constitutional procedures. Speaking at the Carnegie Endowment for International Peace on September 8, Robert Bell, senior director for defense policy and arms control at the National Security Council, said that once [//32] Russia ratifies START II, the Clinton administration intends to submit a package of arms control agreements to the Senate for its advice and consent to ratification. This package will include the MOU on succession, the First Agreed Statement, the Second Agreed Statement as well as two other agreements related to the START treaties.

The Senate may have serious resevations; about the ABM portion of this package. Some conservative Republicans are likely to argue that the demarcation agreements will restrict future U.S. TMD capabilities. They are also expected to challenge the MOU on succession on the grounds that it will make it more difficult to amend the ABM Treaty in the future. Senator Jon Kyl (R-AZ) has even suggested that if the Senate rejects the MOU, then the ABM Treaty will become null and void.

The Clinton administration maintains that the demarcation agreements do not constrain any planned U.S. TMD systems, and that in light of the president's responsibility under the Constitution to implement existing treaties, it was under no legal obligation to submit the MOU to the Senate and that the treaty remains viable between the United States and Russia even if the MOU is rejected. By submitting the START and ABM agreements as a package, the administration will also be able to argue that if the Senate rejects the ABM accords, it in effect will be rejecting major Russian nuclear weapons reductions because the two issues have been linked in the Duma.