07 Jul Where’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.