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

55. Paper Prepared in the Arms Control and Disarmament Agency¹

Washington, undated

Article V of the ABM Treaty and Future ABM Systems

QUESTION PRESENTED:

The question presented is whether Article V, paragraph 1 of the ABM Treaty prohibits the development, testing, and deployment of sea-based, air-based, space-based, and mobile land-based ABM systems and components based on physical principles other than those on which ABM systems were based at the time of signature of the ABM Treaty.

CONCLUSION:

Article II of the ABM Treaty defines an ABM system as a “system to counter strategic ballistic missiles or their elements in flight trajectory.” It states that ABM systems “currently consist of” ABM interceptor missiles, ABM launchers and ABM radars. Thus, Article II indicates that there could be other types of ABM systems developed in the future. Article III of the Treaty prohibits the deployment of ABM systems except that fixed land-based ABM systems utilizing technology current in 1972 can be deployed at specific sites under specific limitations. Agreed Statement D associated with Article III provides that should future types of ABM systems appear in the future, they cannot be deployed at these permitted sites without amendment of the Treaty—otherwise the balance established by Article III would be upset. Article V, paragraph 1, prohibits the development, testing and deployment of other than fixed land-based ABM systems. Like Article III, Article V is all encompassing. Article II makes clear that Article III and Article V apply to all types of ABM systems regardless of the technology utilized. In agreeing to the language of Article V, 1, the Soviet negotiators also agreed that the text covers “any type of present and future components.” Thus, the development, testing and deployment of other than fixed land-based ABM systems or components based on other physical principles is prohibited by Article V, 1.

TREATY PROVISIONS:

Article II

1. For the purpose of this Treaty an ABM system is a system to counter strategic ballistic missiles or their elements in flight trajectory, currently consisting of:

(a) ABM interceptor missiles . . .

(b) ABM launchers . . .; and

(c) ABM radars . . . .

Article III

Each Party undertakes not to deploy ABM systems or their components except that: . . .

Article V

1. Each Party undertakes not to develop, test, or deploy ABM systems or components which are sea-based, air-based, space-based, or mobile land based.

Agreed Statement D

In order to insure fulfillment of the objective not to deploy ABM systems and their components except as provided in Article III of the Treaty, the Parties agree that in the event ABM systems based on other physical principles and including components capable of substituting for ABM interceptor missiles, ABM launchers, or ABM radars are created in the future, specific limitations on such systems and their components would be subject to discussion in accordance with Article XIII and agreement in accordance with Article XIV of the Treaty.

ANALYSIS:

In determining the obligations created by a treaty, one first looks to the plain meaning of the words and provisions that comprise the text of the treaty. Only if the plain meaning of the provisions of the treaty is ambiguous is recourse made to the negotiating record.

Article II, paragraph 1, of the ABM Treaty states that an ABM system is a “system to counter strategic ballistic missiles or their elements in flight trajectory.” This is an unambiguous definition of the term ABM system. Any grouping of weapons and devices that have the capability of countering strategic ballistic missiles in flight trajectory falls under the definition of the term ABM system. There is nothing in that definition that restricts the application of the term to systems based on a specific type of technology. The test of whether an ABM system exists is one of capability, not technology. Thus, the term ABM system would cover a system using technology that was not even imagined in 1972, as long as that system has the requisite capability. This conclusion is strengthened by the further language of Article II, paragraph 1. It states that ABM systems “currently consist of” ABM interceptor missiles, ABM launchers, and ABM radars. If the term ABM system only applied to systems utilizing technology current as of 1972, there would have been no reason to use the phrase “currently consisting of.” Therefore, when the phrase ABM system is used in the ABM Treaty, it covers systems based on both existing and future technology.

Article II, paragraph 2, provides that the term “component” includes ABM missiles, launchers, and radars. Agreed Statement D states that ABM systems can be “based on other physical principles and including components capable of substituting for ABM interceptor missiles, ABM launchers, and ABM radars . . .”. This reference indicates that the term ABM components also covers devices using other than current technology.

Given the meanings of the terms ABM systems and ABM components, the scope of the limitations placed on these systems and components is without ambiguity. Article III provides that ABM systems and components cannot be deployed except as specifically provided in that Article. Article III of the ABM Treaty, along with the ABM Protocol, limits the deployment of an ABM system to a numerically limited number of fixed land-based ABM missiles, launchers, and radars situated in one geographically limited deployment area. Since the Article specifies the type of ABM components that can be deployed, any other types—including those based on other physical principles—cannot be deployed without amendment of the Treaty. The purpose of Agreed Statement D is simply to clarify this point. Deployment of 100 large, fixed land-based lasers in place of 100 fixed land-based ABM interceptor missiles would create a different balance than that established by Article III.

Article V, paragraph 1, provides that neither Party shall “develop, test, or deploy ABM systems or components which are sea-based, air-based, space-based, or mobile land-based.” Again, the Article refers to ABM systems and components which, as defined in Article II, include systems and components based on both current and future technology. There is nothing in Article V to imply that the definition of ABM system or component has changed since Article II. The word component in Article V carries the same meaning as it does in Article II, and the same Russian word which was agreed to embrace present and future ABM components is used in both places in the Russian text. Therefore, Article V, paragraph 1, provides a ban on the development, testing, and deployment of any ABM system or component which is other than fixed land-based, whether it is based on other physical principles or on “current” technology. Since a complete ban is contained in Article V, as opposed to limited deployment pursuant to Article III, a formal Agreed Statement such as Agreed Statement D was not necessary.

It can also be argued that acceptance of the assertion that Article V does not prohibit the development and testing of other than fixed land-based ABM systems would provide a means of circumventing Article I. This would be the fact because large-scale development and testing of systems such as land-mobile ABM systems could have the effect of providing the base for a territorial defense, which Article I prohibits.

The above demonstrates that the plain meaning of the provisions of the ABM Treaty in question is unambiguous. Article V of the ABM Treaty prohibits the development, testing, and deployment of other than fixed land-based ABM systems and components based on other physical principles. It is with this plain meaning that the parties are obligated to comply. Unequivocal obligations cannot be nullified by the negotiating record.

It has been asserted that if Articles II and V covered future systems, there would be no purpose served by Agreed Statement D, and thus that the presence of that Agreed Statement indicates that Articles II and V do not cover future systems. This argument is refuted by a simple reading of the language of the Treaty. It is also refuted by the relevant sections of the negotiating history. As explained above Agreed Statement D does have a purpose even though Article V applies to future systems.

On August 17, 1971, the U.S. delegation tabled a draft Article 6 (which later became Article V) that provided in part that:

1. Each Party undertakes not to deploy ABM systems using devices other than ABM interceptor missiles, ABM launchers, or ABM radars to perform the functions of these components.

2. Each Party undertakes not to develop or produce for or test or deploy in sea-based, air-based, space-based, or mobile land-based modes,

— ABM interceptor missiles,

— ABM launchers,

— ABM radars, or

— Other devices to perform the functions of these components.

At first, the Soviet delegation objected to covering future systems in the treaty because these systems could not be technically described and determined, and thus the parties would not know what they had limited. However, on September 8, 1971, the Soviets proposed alternative language for this Article:

“Each Party undertakes not to construct, not to test, and not to deploy mobile land-based, sea-based, air-based, or space-based ABM systems or their components specially designed for such systems.”

On September 15, 1971, the following significant exchange took place:

The discussion started with Article 6(V). Karpov argued that the new formulation of Soviet paragraph 1 (U.S. paragraph 2) of Article 6(V) obviates the requirement for the phrase “other devices for performing the functions of these components” appearing at the end of U.S. paragraph 2. The Soviets were proposing to eliminate specific listing of ABM system components (launchers, interceptors, and radars) and substitute the word “components” (using the literal Russian word (komponenty) for this instead of the word for “components” (sredstva) used in Article 2 when referring to launchers, interceptors, and radars. Karpov agreed with Graybeal’s interpretation that the Soviet text meant “any type of present or future components” of ABM systems. (Emphasis added.)

Here the Soviet negotiators acknowledged that the Russian word “komponenty” used in what was to become Article V, paragraph 1, meant any type of present or future component of an ABM system. It was specifically contrasted to the Russian word then used for component in Article II, where specific, current technology components were listed. Article V, paragraph 1, states that neither side shall “develop, test, or deploy ABM systems or components which are sea-based, air-based, space-based, or mobile land-based”. The word used in the official Russian language version of the text is “komponenty,” which the Soviets acknowledged covers present and future components. The appearance of this word in the official Russian text reinforces the interpretation of that Article discussed above.

The United States in obtaining Soviet agreement to the language of Article V, paragraph 1, containing the word “komponenty” had achieved a prohibition on all types of ABM systems other than fixed land-based systems, including future systems based on other physical principles. The draft of Article V, 1. in this form was inserted in the Joint Draft Text of the ABM Treaty on September 23, 1971 as agreed text. However, the scope of Article V, 1. still depended somewhat on the definition of ABM systems contained in Article II. The Soviet version of that Article referred only to ABM interceptors, launchers and radars following the general definition of ABM systems. Future systems were not explicitly acknowledged. This situation was corrected on December 20, 1971 when the United States suggested that the phrase “currently consisting of” be added to connect the general definition with the specific current components listed. This was accepted by the Soviet side and was incorporated in the Joint Draft Text of December 22, 1971. This settled the issue of the applicability of Article V to future systems based on other physical principles. There remained the United States proposal for a third paragraph of draft Article V which would have banned the deployment of future ABM systems based on other physical principles. Since the deployment of such systems which were other than fixed land-based was already prohibited by draft Article V paragraph 1, there followed discussion concerning limits to be placed on deploying future systems in the context of Article III which regulates fixed land-based ABM systems. This led to Agreed Statement D which is related to Article III. Agreement on the text of Agreed Statement D was reached on February 2, 1972.

The interpretation of the coverage of Article V, 1. set forth above has been the consistent United States interpretation of this provision since 1972. It has been the Soviet interpretation as well.

The above discussion of the negotiating record of the Treaty supports the plain meaning of the language of the ABM Treaty. However, generally speaking, even if there are ambiguous points in the negotiating record, it is not consistent with the rules for interpreting treaties to delve into a negotiating history in order to re-interpret treaty text that is unambiguous. Further, such a practice could establish a bad precedent in that by this means doubts could be raised about the legally binding effect of any treaty language ever agreed upon. In the give and take of a long negotiation many views are expressed; it is what the Parties agreed upon and signed that matters. In this case the meaning of Article V, 1. is unambiguous. It was designed to, and does, prohibit the development, testing and deployment of ABM systems or components of all types which are sea-based, air-based, space-based or mobile land-based, whether utilizing “current” technology or technology based on “other physical principles.”

1. Source: National Security Council, National Security Council Institutional Files, Box SR–110, NSPG 120 11 Oct 1985. Secret.