Foreign Relations of the United States, 1981–1988, Volume XLIV, Part 1, National Security Policy, 1985–1988

265. Memorandum From the President’s Assistant for National Security Affairs (Powell) to President Reagan¹

Washington, July 5, 1988

SUBJECT

• NSPG, Wednesday, July 6
• Handling the Krasnoyarsk Radar Issue

On Wednesday, we have scheduled an NSPG to discuss whether we should declare the illegal Soviet large phased-array radar at Krasnoyarsk to be a “material breach” of the ABM Treaty. Your advisors are split over the issues associated with this decision; and we have already begun receiving Congressional correspondence aimed at helping you sort this all out.

Attached at Tab A is a short paper developed by NSC staff and designed to help you prepare for this NSPG. The paper summarizes the situation and provides the recent Congressional correspondence. It also offers two options for handling the package of related issues.

Tab A

Paper Prepared in the National Security Council²

Washington, undated

HANDLING THE KRASNOYARSK/MATERIAL BREACH ISSUE (U)

INTRODUCTION (U)

The ABM Treaty requires us to conduct a five-year review by October 2 of this year; and we had previously told the Soviets that we intended to conduct the review by that date. (U)

ISSUES (U)

1. Are there sufficient grounds to support declaring the Krasnoyarsk radar a material breach of the ABM Treaty? (U)

2. If so, should we declare it a material breach in the context of the upcoming five-year ABM Treaty review? (U)

ISSUE 1: Are there sufficient grounds for material breach? (U)

According to the 1969 Vienna Convention on the Law of Treaties, a material breach of a treaty consists in . . . “violation of a provision essential to the accomplishment of the object or purpose of the treaty.” (U)

The International Law Commission (ILC), which provided the official commentary to the Vienna Convention, stated that a material breach should be limited to cases where the violation or breach was of a serious nature; however, that this should not imply that it must involve a violation of a fundamental provision of the treaty. Other provisions considered by a party to be essential to the effective execution of the treaty may have been very material in inducing it to enter into the treaty, even although these provisions may be of an ancillary character. (U)

Finally, the American Law Institute position is that “not every breach of an agreement is material; only . . . a significant violation of a provision essential to the agreement . . .” (U)

The legal and policy experts of the various agencies have looked at the issue of the Krasnoyarsk radar in light of these definitions. All agree that the prohibition on construction of illegal large phased-array radars was considered essential to the agreement since the construction of such radars, which takes years, provides warning that one party is moving to deploy a nation-wide defense. (U)

Setting aside, for the moment, the subsequent issue of whether to declare it to be so at this time, most feel that the illegal Krasnoyarsk radar satisfies the definition of a material breach since the construction already completed erodes that warning time. (S)

However, there remain some who hold the opinion that there are insufficient grounds for upgrading our assessment of the radar to a material breach at this time since:

(1) it has been four years since we discovered the construction of the radar,

(2) we have already declared it to be a serious violation of the treaty and demanded the Soviets dismantle it,

(3) while not taking the radar down, the Soviet Union has claimed to have stopped all work on the radar and there is some evidence that this is the case, and

(4) the Soviets have hinted that they would be prepared to take down the radar in the context of a new strategic forces treaty. (S)

Some twenty Senators, including Bob Dole and key Republican conservatives, recently sent a letter (attached at Tab 1) arguing that Krasnoyarsk is a clear violation of the ABM Treaty, likely intended as a battle management radar, and a material breach. In fact, the twenty Senators encourage that we declare Krasnoyarsk to be material breach at the ABM Treaty review. (U)

ISSUE 2: Should we declare material breach? (U)

Even if we decide there are sufficient grounds for calling the Krasnoyarsk violation a material breach, a second basic issue is should we do so now? (U)

Some within the Executive Branch argue that we should declare Krasnoyarsk a material breach because, in their view, it is the only honest, straightforward thing to do. They would note that if this Administration can’t declare Krasnoyarsk to be a material breach, then what hope do we have for future administrations taking appropriate measures against significant, but likely less clear-cut violations. They would further argue that a failure to declare a material breach now would send the wrong signal to the Soviets concerning our seriousness about their compliance. (S)

Others advise against declaring a material breach at this time. Some, as discussed earlier, simply feel that such a step is unwarranted at this time. Others, however, take the view that while there are sufficient grounds for calling the Krasnoyarsk radar a material breach, we still should not take the step of declaring it as such at this time. They point out that the declaration of material breach is normally associated with some parallel declaration of a response to the breach; and, under customary international law, the declaration of material breach serves notice that the declaring party feels it has the right, because of the material breach, to suspend some or all of the provisions of the treaty involved. (S)

We have already declared the Krasnoyarsk radar a significant violation of the ABM Treaty. Having done so, we already have the right to take any programmatic response to the violation we wish as long as we do not exceed the ABM Treaty’s provisions. However, to move beyond the treaty by suspending its provisions in whole or in part in response to the Krasnoyarsk radar we must take the step of declaring a material breach. (S)

We currently have no specific programmatic responses to the Krasnoyarsk radar that we wish to take, and no agency has proposed that we suspend any part of the ABM Treaty at this time. This being the case, those against declaring a material breach now point out that, in their view, by doing so:

1. we may give the wrong impression that we are rapidly moving out from under the ABM Treaty (and that this is part of a tactic to do so before the end of the Administration);

2. in turn, we may encourage legislation designed to ensure we stay under the ABM Treaty, potentially hurting both our Defense & Space negotiating position and SDI options;

3. as time passes should we take no response, although legally we would retain the right, we may politically weaken our ability to take future action against the Krasnoyarsk violation;

4. declaring the material breach and taking no action may signal political weakness in this area to the Soviets; and

5. as a result of all of the above, we may significantly undercut U.S. compliance policy and its ability to affect Soviet non-compliance in the future. (S)

OPTIONS

At the Senior Arms Control Group meeting held last week, we examined six options for handling the Krasnoyarsk radar in the upcoming review.³ Attached at Tab 2 are two options which represent an effort to capture elements common to all approaches while maintaining the basic difference concerning whether or not to declare Krasnoyarsk a material breach. (S)

QUESTIONS FOR DISCUSSION

(1) Are the grounds sufficient to call Krasnoyarsk a material breach? (U)

(2) If so, should we do it at this time? (U)

(3) Should we choose either of the options presented? (S)

(4) What would be the consequences of implementing each of the two options suggested? (S)

Tab 1

Letter From Multiple U.S. Senators to President Reagan⁴

Washington, June 28, 1988

Dear Mr. President:

As you know, the Senate voted overwhelmingly and the House voted unanimously last year to support your 1984 finding that the Soviet Krasnoyarsk radar was a clear violation of the SALT I ABM Treaty. Your 1985 report to Congress on Soviet SALT violations stated that the Krasnoyarsk radar violates the key provision of the ABM Treaty.

The Krasnoyarsk radar itself will have about ten times the power of each of the 12 U.S. Safeguard ABM radars only planned in 1969 for a U.S. nationwide ABM defense. Moreover, the siting of the Krasnoyarsk radar deep in the interior of the Soviet Union near many key ICBM complexes sacrificed at least 6 minutes of warning time. The high power, interior siting near strategic targets, and sacrifice of warning time all strongly suggest that Krasnoyarsk is intended for ABM battle management. This is contrary to the heart of the ABM Treaty.

As you said in your 1985 compliance report, “Militarily, the Krasnoyarsk radar violation goes to the heart of the ABM Treaty.” The almost unanimous Congressional votes agreeing that Krasnoyarsk is a clear violation indicate that there will be strong support for your declaration that it is a “material breach” of the Treaty. We urge you to maintain this policy and to declare Krasnoyarsk a “material breach” at the forthcoming third five year review of the ABM Treaty. The credibility of American foreign policy will be severely damaged if your longstanding policy is changed.

Respectfully,

• Malcolm Wallop
• Bob Dole
• Richard Shelby
• Pete Wilson
• Ernest F. Hollings
• John McCain
• Dan Quayle
• Phil Gramm
• Alan J. Dixon
• Bill Cohen
• Steve Symms
• Gordon Humphrey
• Chuck Grassley
• Chic Hecht
• James A. McClure
• John Warner
• David K. Karnes
• Strom Thurmond
• Howell Heflin
• Jesse Helms

Tab 2

Paper Prepared in the National Security Council⁵

Washington, undated

OPTIONS FOR HANDLING KRASNOYARSK AND THE ISSUE OF MATERIAL BREACH

I. AT THE REVIEW, the U.S. delegation should take the following steps.

a. Reiterate that the Krasnoyarsk radar is a significant violation of a central element of the ABM Treaty, essential to the treaty’s object and purpose.

b. Clearly make the point that the Krasnoyarsk violation will continue to raise questions of material breach and proportional response until resolved [and that if the Soviets cannot provide any satisfaction with respect to the Krasnoyarsk issue at this review, following the review, the United States will have to consider declaring this continuing violation as a material breach of the treaty (Option 1)⁶].

c. State that, in this connection, the United States reserves all rights, consistent with international law, to take appropriate and proportionate responses at a later time should the Soviets continue to refuse to correct the violation.

d. Further state, for the record, that there will be no START or Defense & Space Treaties until this violation is resolved.

e. Be prepared to tell the Soviets what specific steps the United States expects the Soviet Union to take to dismantle in a verifiable fashion the Krasnoyarsk radar.

f. Ask the Soviets what they are prepared to do to resolve this situation promptly.

II. AFTER THE REVIEW (assuming no satisfactory response from the Soviet Union), the President would issue publicly a arms control policy statement making the following main points.

a. Based on the just concluded ABM Treaty review, the United States considers the Krasnoyarsk radar to be a significant violation of a central element of the ABM Treaty, essential to the treaty’s object and purpose.

b. [Since the Soviet Union has given no indication of any willingness to correct this violation, the United States has no alternative but to identify it for what it is, a material breach of the ABM Treaty. (Option 1)⁷]

or

[The Krasnoyarsk violation will continue to raise questions of material breach and proportional response until resolved. (Option 2)⁸]

c. While it would be fully justified in doing so, the United States does not intend to take an appropriate response at this time to this [material breach (Option 1)⁹] [significant violation (Option 2)¹⁰], rather it will once again go the extra mile to give the Soviet Union additional time (amount unspecified) to reverse its position and act responsibly.

d. The United States reserves all rights, consistent with international law, to take appropriate and proportionate responses at a later time should the Soviets continue to refuse to correct the violation.

e. In any case, it is the position of the United States that there will be no START or Defense & Space Treaties until this violation is resolved.

III. AFTER THE REVIEW (assuming no satisfactory response from the Soviet Union), in parallel with the PUBLIC arms control policy statement the President would issue an INTERNAL study directive including the following elements.

a. The Department of Defense, working with other agencies as appropriate, should develop an options paper which presents a range of proportionate responses (programmatic and otherwise) from which the President could choose should the Soviets resume construction of the Krasnoyarsk radar or otherwise refuse to correct this violation.

b. During the first three weeks of this activity, a plan should be developed and promptly submitted for Presidential approval on how best to involve the Congress in the options development and review process.

c. As the study continues and options are developed, for programmatic responses, the options should be described in sufficient detail so that, should the President decide to execute one of the options, implementation steps could begin without further study.

d. Individual options should be developed as quickly as possible. They should be presented to the President for his consideration, as a hedge against all contingencies, as soon as each has been thoroughly staffed, evaluated and coordinated.

e. The overall study, and a comprehensive evaluation of all options developed, should be completed by the end of this calendar year.

1. Source: National Security Council, National Security Council Institution Files, Box SR–113, 0193. Secret. Copies were sent to Bush and Duberstein. A stamped notation indicates Reagan saw the memorandum on July 15. Reagan wrote his initials in the upper right-hand corner of the memorandum.
2. Secret.
3. See Document 261.
4. No classification marking.
5. Secret. All brackets are in the original.
6. Option 1 has the President declare Krasnoyarsk a material breach. [Footnote is in the original.]
7. Option 1 has the President declare Krasnoyarsk a material breach. [Footnote is in the original.]
8. Option 2 does not have the President declare Krasnoyarsk a material breach. [Footnote is in the original.]
9. Option 1 has the President declare Krasnoyarsk a material breach. [Footnote is in the original.]
10. Option 2 does not have the President declare Krasnoyarsk a material breach. [Footnote is in the original.]