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

56. Memorandum Prepared in the Office of the Under Secretary of Defense for Policy (Ikle)¹

Washington, undated

THE MEANING OF AGREED STATEMENT D OF THE ABM TREATY BASED ON THE NEGOTIATING RECORD

This memorandum examines the record of negotiations of the ABM Treaty in order to shed light on the purpose and meaning of Agreed Statement D. Agreed Statement D deals with future ABM systems “based on other physical principles” and was annexed to the Treaty when it was signed.

The memorandum begins with an overview of the issues and a summary of conclusions, followed by a chronology of statements and events which bear on the interpretation of Agreed Statement D. The chronology is not exhaustive but contains the most significant items. Interpretive comments contained in the chronology are enclosed in brackets.

Introduction

There are three key provisions of the ABM Treaty: (1) the definition of “ABM systems” and ABM “components” (Article II); these terms are the subject of the Treaty limitations and prohibitions; (2) the prohibition on deployment of ABM systems, except for permitted deployment of one hundred fixed, land-based systems located in a circumscribed area (Article III, as amended); and (3) the prohibition on testing, development and deployment of mobile ABM systems (Article V, para. 1). In addition, there is an agreed statement, annexed to the Treaty (designated “Agreed Statement D”), which expressly pertains to future ABM systems.

In pertinent part, these provisions are as follows:

Article II

. . . . 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. . . .

(Emphasis added.)

Article III

Each party undertakes not to deploy ABM systems or their components except that: . . . .within one ABM system deployment area having a radius of one hundred and fifty kilometers. . . . a Party may deploy . . . no more than one hundred ABM launchers and no more than one hundred ABM interceptor missiles at launch sites [with associated radars]. . . . (Emphasis added.)

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 obligation 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 (establishing the Standing Consultative Commission] and agreement in accordance with Article XIV of the Treaty [providing for amendment].

(Emphasis added.)

On their face, these provisions raise a number of issues with respect to future ABM systems. The use of the phrase “currently consisting of” in Article II can be read to mean that all future variants of existing ABM systems are covered by the Treaty. In that case, Article V would prohibit testing, development, and deployment of all mobile systems using new technologies. On the other hand, if Articles II and V had this effect, there would be no need for the undertaking in Agreed Statement D to discuss “specific limitations” on future ABM systems “based on other physical principles.” The fact that “specific limitations” on future systems remain “subject to discussion” indicates that the Treaty by itself does not limit these systems. Furthermore, the text of Agreed Statement D is unclear as to what rules, if any, apply before the Parties reach agreement on “specific limitations” and amend the Treaty accordingly.

After the Treaty was signed, United States spokesmen unilaterally interpreted Agreed Statement D as a ban on development, testing and deployment of future ABM systems “based on other physical principles,” unless the Treaty were amended to permit them. As demonstrated below, this interpretation is not supported by the negotiating record.

Specifically, the Soviet Union persistently refused to agree to Treaty provisions proposed by the United States which would have clearly restricted future types of ABM systems. Hence the Soviet Union might well choose not to abide by the restrictive U.S. interpretation, in order to develop and test new technologies for ballistic missile defense more rapidly and more efficiently. If our intelligence later on indicated that the Soviet Union had in fact not observed the restrictive U.S. interpretation, the negotiating record and the ordinary meaning of the language of the Treaty and of Agreed Statement D would not justify a finding that the Soviet Union had violated the ABM Treaty. The U.S. Government would then be forced to recognize that the United States had unilaterally observed critical restrictions in its strategic defense program that the Soviet Union was not legally bound to observe.

Summary

The negotiating record of the ABM Treaty supports the following conclusions:

— The plain meaning of Agreed Statement D—that “specific limitations” on future ABM systems remain “subject to discussion”—is the meaning supported by the negotiating record. In other words, the issue was left unresolved. If there had been agreement to ban future ABM systems “based on other physical principles” (unless the Treaty were amended to permit them), then the Soviet Union presumably would have accepted express language in the Treaty to that effect. The United States repeatedly proffered explicit Treaty provisions to include all future systems within the Treaty limitations. The Soviet Union consistently rejected those proposals.

— Paragraph 1 of Article V, which prohibits the development, testing and deployment of sea-based, air-based, space-based and mobile land-based ABM systems, was not intended to cover future ABM systems “based on other physical principles.” The negotiators originally considered the question of future ABM systems as supplemental to this prohibition, in the form of a separate paragraph under Article V. They reached agreement on the text of paragraph 1 while they were still at an impasse as to whether future technologies should be regulated.

— The Article II definition of “ABM systems” as “currently consisting of” specified “components” (ABM interceptor missiles, ABM launchers, and ABM radars) was not intended to encompass substitute components “based on other physical principles.” Again, the negotiators reached final agreement on the language of Article II at a time when they did not agree to limit future systems using new technologies.

— Agreed Statement D was intended to create obligations only with respect to deployment of systems “based on other physical principles,” as opposed to testing and development of such systems. For this reason, it was linked to Article III, dealing with permitted deployments.

The United States has unilaterally interpreted the ABM Treaty to impose the same restrictions on ABM systems “based on other physical principles” as on ABM systems and components expressly covered by the Treaty. The Soviet Union would have a sound legal basis to develop and test new ABM technologies, in all basing modes, on the grounds that they reserved this right in the Treaty negotiations and never agreed to the restrictive U.S. interpretation.

1. Source: National Security Council, National Security Council Institutional Files, Box SR–110, NSPG 120 11 Oct 1985. Secret. All brackets are in the original.