RSS
Print This PageWhere’s the Joint Understanding for the START Follow-on Treaty?
As widely reported, in Moscow yesterday President Obama and Russian President Medvedev signed a Joint Understanding for the Start Follow-on Treaty. Here’s how the White House fact sheet describes it:
On April 1, Presidents Obama and Medvedev agreed in London that America and Russian negotiators would begin work on a new, comprehensive, legally binding agreement on reducing and limiting strategic offensive arms to replace the Strategic Arms Reduction Treaty (START), which expires on December 5, 2009. On July 6, Presidents Medvedev and Obama signed a Joint Understanding to guide the remainder of the negotiations. The Joint Understanding commits the United States and Russia to reduce their strategic warheads to a range of 1500-1675, and their strategic delivery vehicles to a range of 500-1100. Under the expiring START and the Moscow treaties the maximum allowable levels of warheads is 2200 and the maximum allowable level of launch vehicles is 1600. These numbers reflect a new level of reductions of strategic offensive arms and delivery vehicles that will be lower than those in any existing arms control agreements. The new treaty will include effective verification measures drawn from the experience of the Parties in implementing START . . . . The U.S. and Russian negotiating teams met in April, May, June, and July, and will continue their work toward finalizing an agreement for signature and ratification at the earliest possible date.
But where’s the Joint Understanding itself? I’ve been unable to locate a copy (and would welcome readers pointing one out to me if I’ve overlooked it). As summarized, the fact sheet suggests that yesterday’s Joint Understanding might itself constitute a legally binding international agreement. Specifically, note the statement that the Joint Understanding commits the United States and Russia to reduce their strategic warheads to specified ranges. Commits is a pretty strong verb. I’d normally consider it indicative of an intent to create international legal obligations when used by two heads of state, barring some qualifying language or other evidence that the parties only intended a political commitment. Now, the fact sheet does say that the Joint Understanding will merely “guide” the remaining negotiations for a Follow-On Treaty to START. Such conflicting suggestions make me want to see the actual text; indeed, I long ago gave up on press accounts (including those generated from within the government) accurately reporting the differences between treaties vs. political commitments vs. “deliverables” that are mere rhetoric.
And yet, for international lawyers these differences matter. On the international stage, the choice between a treaty and a political commitment can reflect different expectations in terms of a promise’s credibility or flexibility going forward. Moreover, as a matter of U.S. constitutional law, there are questions about when the President can conclude arms control agreements on his own authority, with congressional approval, or with Senate advice and consent. Julian’s already raised some of those questions with respect to the proposed Follow-On Treaty itself (although I’d note briefly here that to the extent the White House envisions “provisional application” of any Follow-On Treaty, there is some precedent for the President doing so pending Senate advice and consent). And, even if the White House argues yesterday’s Joint Understanding was “only” a political commitment, I think there’s still a constitutional basis for the Senate (or Congress as a whole) to require the White House to produce the text so that the legislature can assess the instrument’s character and implications for U.S. foreign affairs and national security.
Thus, I hope the White House gets around to releasing the text of the Joint Understanding soon; otherwise we’re left guessing if it raises international legal and constitutional questions that the text might easily answer. Now, maybe they’ve not released the Joint Understanding because it contains information (or promises) that one or both sides consider classified. If that’s the case, there may be national security grounds for keeping it out of the public sphere (indeed, the Case-Zablocki Act, 1 USC 112b accommodates such a possibility). Of course, classified international commitments raise their own sets of issues under both international and U.S. law. But that’s a blog topic for another day.
Related Posts
6 Responses
Trackbacks and Pingbacks
- There are no trackbacks or pingbacks associated with this post at this time.
If Party A breaks a commitment that only Party B knows about and Party B isn’t allowed to tell anyone, …
I think that represents something less than ‘law’ - a post for another day indeed!
at 1:02 pm EST Patrick
The Joint Understanding for the START Follow-on Treaty (full text) on Russian: http://www.kremlin.ru/text/docs/2009/07/219078.shtml
Indeed, it’s impossible to find English version anywhere (Why??)
at 3:20 pm EST Max
From the department of un-fricken-believable, I think this is the English version: http://www.kremlin.ru/eng/text/docs/2009/07/219091.shtml
I can only assume that Obama didn’t want to pre-empt the Russians?
Anyway, the wording, to answer Chris’ question, appears to be: ‘confirm their commitment to strengthening their cooperation‘. The only thing unambigously committed to is ‘the nuclear security initiatives begun in 2005′.
So not much to see here!
at 5:17 pm EST Patrick
Max and Patrick — Thanks for weighing in. I can’t read Russian so I’ll have to defer to Max on whether his link is for the text of the Joint Understanding. That said, I don’t think the English-text link Patrick gives for a Joint Statement on Nuclear Cooperation is the same as the Joint Understanding that I was discussing (indeed, the Joint Statement was also already available here on the White House website). I’m inclined to think the Joint Understanding described in the fact sheet is an entirely different instrument. Do others agree?
at 11:59 pm EST Duncan Hollis
To Patrick: No. It’s not the English version. Only Fact Sheet (the same is on http://www.whitehouse.gov).
To Duncan Hollis: I’ve found this translation: http://russianforces.org/blog/2009/07/good_progress_at_the_moscow_su.shtml
But it’s not official ! Where is the official English text??
at 1:07 am EST Max
Perhaps this is what you were seeking in English:
http://www.america.gov/st/texttrans-english/2009/July/20090708154724xjsnommis0.7355005.html?CP.rss=true
08 July 2009
Joint Understanding by Obama, Medvedev on Missile Defense
Leaders outline elements in the START follow-on treaty
(begin text)
THE WHITE HOUSE
Office of the Press Secretary
July 8, 2009
JOINT UNDERSTANDING
The President of the United States of America and the President of the Russian Federation have decided on further reductions and limitations of their nations’ strategic offensive arms and on concluding at an early date a new legally binding agreement to replace the current START Treaty, and directed that the new treaty contain, inter alia, the following elements:
1. A provision to the effect that each Party will reduce and limit its strategic offensive arms so that seven years after entry into force of the treaty and thereafter, the limits will be in the range of 500-1100 for strategic delivery vehicles, and in the range of 1500-1675 for their associated warheads.
The specific numbers to be recorded in the treaty for these limits will be agreed through further negotiations.
2. Provisions for calculating these limits.
3. Provisions on definitions, data exchanges, notifications, eliminations, inspections and verification procedures, as well as confidence building and transparency measures, as adapted, simplified, and made less costly, as appropriate, in comparison to the START Treaty.
4. A provision to the effect that each Party will determine for itself the composition and structure of its strategic offensive arms.
5. A provision on the interrelationship of strategic offensive and strategic defensive arms.
6. A provision on the impact of intercontinental ballistic missiles and submarine-launched ballistic missiles in a non-nuclear configuration on strategic stability.
7. A provision on basing strategic offensive arms exclusively on the national territory of each Party.
8. Establishment of an implementation body to resolve questions related to treaty implementation.
9. A provision to the effect that the treaty will not apply to existing patterns of cooperation in the area of strategic offensive arms between a Party and a third state.
10. A duration of the treaty of ten years, unless it is superseded before that time by a subsequent treaty on the reduction of strategic offensive arms.
The Presidents direct their negotiators to finish their work on the treaty at an early date so that they may sign and submit it for ratification in their respective countries.
Signed at Moscow, this sixth day of July, 2009, in duplicate, in the English and Russian languages.
FOR THE UNITED STATES
OF AMERICA:
Barak Obama
at 11:17 am EST Jacqui Porth