Today marked the two-year anniversary of the entry into force of the New START Treaty.  In this blog piece, I am not going to opine on flexibility, missile defense, or non-strategic nuclear weapons (in the last link, at page 111).

Josh Rogin reports that after the 2012 U.S. elections and what might politely be called Russian “selections” have concluded, the United States and Russia will return to the table in 2013 to work on another agreement that will perform “the next step” in U.S.-Russian strategic treaties, reducing nuclear weapons, generally, or something.  I suspect a more urgent matter is the expiration of the Nunn-Lugar Umbrella Agreement this summer.  Biden did chat up Lavrov at Munich.  (Everything always seems to happen on the margins of Munich’s Security Conference–that was where the New START Treaty was, effectively, born.)

While the New START Treaty entered into force in February 2011, the Obama Administration has yet to inform either Moscow or Congress how it intends to meet New START Article II aggregate limits of 1,550 deployed warheads on 700 delivery vehicles and 800 deployed and non-deployed launchers.  The treaty allowed for that.  The United States need not meet or specify how it would meet such limits until seven years after the entry into force of the treaty.  But it would be a nice thing to know if a new negotiation is actually getting underway.  Particularly since there are likely to be some new kinds of weapons in the future that may or may not count under those limits.

I am going to raise an ambiguity that has never been fully resolved:  How future conventional, long-range systems (called conventional, prompt global strike, or CPGS) would or would not count under New START.  Bottom line up front:  I don’t know.

The article-by-article analysis submitted by the Administration for paragraph 2 of Article V of the New START Treaty stated:

The Parties understand that they may use the Bilateral Consultative Commission [BCC] to discuss whether new kinds of arms are subject to the Treaty.  The United States stated during the negotiations its view that not all new kinds of weapon systems of strategic range would be “new kinds of strategic offensive arms” subject to the New START Treaty.  Specifically, the United States stated that it would not consider future, strategic range non-nuclear systems that do not otherwise meet the definitions of this Treaty to be “new kinds of strategic offensive arms” for purposes of the Treaty.  The Parties understand that, if one Party deploys a new kind of strategic range arm for delivering non-nuclear weapons that it asserts is not a “new kind of strategic offensive arm” subject to the Treaty, and the other Party challenges that assertion, the deploying Party would be obligated to attempt to resolve the issue within the framework of the BCC.  There is no requirement in the Treaty for the deploying Party to delay deployment of the new system pending such resolution.

The Administration stated that the treaty did not prohibit the development, testing, or deployment of potential future long-range weapons systems for conventional prompt global strike “that are currently under development.”  It also stated that it would not consider such non-nuclear systems that do not otherwise meet the definitions of the treaty to be accountable as “new kinds of strategic offensive arms” for the purposes of the treaty.  Later in 2010, the Defense Department issued guidance that stated it would continue to develop such systems whether or not the New START Treaty applied to them.  An exchange (at p. 257 in the linked document) between Senator Lugar and Assistant Secretary Gottemoeller was inconclusive regarding the Article-by-Article analysis:

(a) Did the Russian Federation indicate agreement with the U.S. approach to “strategic range non-nuclear systems that do not otherwise meet the definitions of this Treaty?”

(b) If the answer to (a) is yes, is this agreement contained in any of the documents submitted to the Senate with the New START Treaty?

(c) If the answer to (a) is yes, but the answer to (b) is no, please provide a detailed explanation of how Russian agreement on this issue was communicated.

(d) What other issues, if any, prompted U.S. interpretive statements in the negotiations that were not contained in any of the treaty documents before the Senate?

Answer a:

The Russian Federation did not make a definitive statement regarding this matter.  The provision on new kinds of strategic offensive arms in the New START Treaty recognizes that, during the life of the Treaty, the Parties could develop new kinds of strategic-range systems not currently in existence and provides a mechanism for the Parties to discuss such systems should they emerge.   If such a system does not meet the definitions in the Treaty, a Party could raise the issue of whether the new system should nonetheless be made subject to the Treaty.  The United States stated its view (similar to the U.S. view stated during the START negotiations) that it would not consider future, strategic-range non-nuclear systems that do not otherwise meet the definitions of this Treaty to be “new kinds of strategic offensive arms” for purposes of the Treaty.

Answer b:  Not applicable.

Answer c:  Not applicable.

Answer d:  None.

The Russians never clearly agreed with the U.S. view other than that if they had a problem, they’d raise it.  They will do so, again and again, as they have a long history of disliking (see multiple Russian arguments over converted bombers and missile defense tests in the links) American capabilities to “mix and match.”  It is a unique continuity between the Soviet and Russian diplomatic and legal approach to treaties that they attempt maximum applicability of any treaty’s limits to the other side while being as vague as possible as to the applicability of treaty terms to Russia.  That was the fear that many had in 2010:  That by bringing into the treaty “new kinds of strategic offensive arms” that are not nuclear and over which the two sides had no clear or common view as to whether they counted under treaty limits we had set in motion either a process for regulating conventional systems under strategic arms control or we had created an unhelpful ambiguity (or both).

A charitable view of these treaty provisions and answers was that U.S. planning and programming was at an early stage for such systems in 2010 and negotiators had little clarity on what may actually be deployed in a decade.   In any case, the Senate sought to protect CPGS by adding Understanding (3) to its resolution of ratification regarding such systems.  That, again, was a U.S. view, and it was not very popular in Russia at the time.  The Russian Federal Law on ratification of the New START Treaty took the strong position that there was a burden on the United States to demonstrate inapplicability of the treaty to such systems “prior to the deployment of such new kind of strategic-range offensive arms.”  Recall that the article-by-article analysis said that “There is no requirement in the Treaty for the deploying Party to delay deployment of the new system pending such resolution.”  Thus, there is a degree of tension present in the differing views over paragraph 2 of Article V.

You might just think this is no big deal–if they disagree, they’ll work it out, and if Russia really keeps spinning things out only to delay deployment of a system that the United States thinks it needs, we’ll see it for what it is and move on.  You might also note that Russia has had little to say about the matter since 2010 and may have bigger fish to fry with the United States.  Let’s hope that’s all true.  The United States rather successfully defended its views during previous treaties as to whether or not conventional systems counted under nuclear limits the Soviets tried to make applicable to them (see Secretary Baker’s letter on Tacit Rainbow).  Let’s also hope the Administration will make clear to Moscow that the New START Treaty cannot delay deployment of such systems, if and when the issue arises.

When and how long it would take to demonstrate to Russia that such systems don’t count under the treaty depends greatly on things still unknown:  I can’t say now how we would go about demonstrating to Moscow that the treaty did not apply to a system that does not yet exist (even if I did, I couldn’t say much about it here).  But it is important to recall New START’s new kind of ambiguity on a new kind of weapon over which there is still much attention and discussion, and continued commitment in the Defense Department.

Why?  Well, because there is open and active debate as to whether such weapons could ever substitute for nuclear weapons.  And because such weapons may be relevant and needed in the future, for starters.