Sofaer's Case For The "Broad" Interpretation

Sofaer's analysis begins by referring to generally accepted principles for interpreting treaties. Under the usual standards of international law, he notes, the meaning of treaties depends in the first instance on the treaty language itself. When the language is ambiguous, other considerations may be taken into account, notably the parties' understandings as reflected in subsequent agreements, the practical construction of the terms in subsequent conduct, and the record of the negotiating process. Sofaer argues that the review conducted by his office had confirmed his earlier finding that "the Treaty text is ambiguous, and that the negotiating record establishes that the Soviet Union had refused to agree to prohibit

the development and testing of mobile ABM devices based on OPP [other physical principles]."^[34]   

Sofaer's case is based on the interpretation of several provisions in the treaty text—the definition of "ABM system" in Article II(1) of the treaty; the prohibition of development, testing, and deployment of nonfixed land-based systems and components in Article V(1); and Agreed Understanding D, which deals with future systems based on "other physical principles." He contends that there are three possible interpretations of the testing issue as it is dealt with in these provisions. The "restrictive" interpretation holds that the definition in Article II refers to all ABM systems and components, whether they were in existence when the treaty was negotiated or are substitutes introduced later. In this view, the only new systems that can be developed (in the sense that they are brought to the stage of field testing, and not merely worked on in preliminary phases of advanced research) are those that are designed to be used in fixed, land-based systems. Agreed Statement D is only a clarification that establishes no exception for exotic technologies. The "broad" interpretation holds that the language in the text refers only to systems and components using then available technology, and that Agreed Statement D implicitly permits the development of new technologies that could substitute for existing ABM systems by referring to ABM systems and components "created in the future." Deployment of such weapons is prohibited pending consultation and agreement between the parties, and might require amendment. A third even broader interpretation adds that deployment is permissible, according to Agreed Statement D, if the parties discuss the question but cannot agree on deployment restrictions.

These are the relevant passages Sofaer cites:

Article II

Article V

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 and agreement in accordance with Article XIV of the Treaty.

Sofaer dismisses the third, or "broadest," interpretation as very doubtful in view of the reference in Agreed Statement D to the obligation not to deploy ABM systems except as provided for in the treaty and in view of the fact that the treaty is of unlimited duration. If Agreed Statement D were read to permit the parties to proceed with the deployment of ABMs based on other physical principles, the essential stated aim of the treaty in barring any deployments other than those expressly allowed would be undermined. Although the statement does not explicitly ban such deployments but only calls for discussion prior to a decision to deploy, the fact that the discussion is to be held in accordance with the provision of articles XIII and XIV is significant, he points out. Because those provisions call for periodic review, clarification of ambiguities, and amendment in the light of new developments, the intention could not have been to give the parties a way of circumventing the prohibition on deployment. But Sofaer also argues that the "restrictive" interpretation, though plausible and acknowledged in some officially adopted U.S. statements, is not the most persuasive interpretation of the treaty language or a reflection of what the negotiating record reveals about the parties' understanding of the provisions.^[35]   

The negotiating record, as revealed selectively in his study, suggests that the U.S. delegation made a considerable effort to win Soviet agreement to language that would specifically and unambiguously ban both the testing and deployment of all possible "devices" that could be used as ABM systems or components, except for those components that might substitute for existing fixed, ground-based ABM components or systems. The record also indicates that the Soviet delegates balked at such all-embracing language, ostensibly on the ground that there was no sense in banning nonexistent weapons and that new developments could best be dealt with in the SCC, in its role of monitoring compliance. Acting on the basis of National Security Decision Memorandum (NSDM) 117 (July 2, 1971), the U.S. delegation was instructed to propose that the agreement should ban "any systems" capable of countering ballistic

missiles unless allowed by the treaty—though in the same month it received another instruction to hold off, pending an internal review.

The Soviet position, by Sofaer's account, was ambiguous. For example, on September 15, 1971, Soviet delegate Viktor Karpov stated that the term "ABM systems and components" in the Soviet draft was intended to cover "future components." Sofaer argues that this does not indicate Soviet recognition that testing of systems based on other physical principles was to be covered by this understanding. More likely, he argues, it referred to new components designed to substitute for existing ones relying on conventionally applied physical principles. If the Soviet understanding had been otherwise, he contends, the U.S. delegation would not have felt a continuing need to press the Soviets for more express language covering future systems and technologies. Between that date and December the Soviets rejected definitions that would have unambiguously included unknown devices based on other physical principles. Finally, however, an agreement was struck during the period between December 1971 and February 1972. The language of Article II was changed (to include the phrase "currently consisting of") and the Agreed Statement was adopted to address future technologies. Contrary to the views of all the leading negotiators except Nitze, however, Sofaer interprets the Soviet assent to the revision and the Agreed Statement as a refusal to treat new technologies in the same restrictive way as existing ones were treated. Presumably, the Soviet delegation (perhaps in response to promptings from the military) wished the treaty language to permit testing of exotic systems. Why else would they agree that such systems might be "created," to use the language of the Agreed Statement—a term clearly meaning development and testing outside a laboratory?^[36]   

According to Sofaer, the record indicates that at first the decision makers in Washington and the negotiating team were divided on the issue. Some negotiators wanted a total ban on ABM systems. These included the lead negotiator, Gerard Smith. Gen. Royal Allison and Amb. J. Graham Parsons doubted that such a ban was practical because of verification difficulties. On July 20, 1971, President Nixon instructed the delegation, in NSDM 120, not to agree to prohibit deployment of future systems other than those currently in question. In a back-channel cable to National Security Advisor Henry Kissinger, Smith expressed his belief that the United States should try to obtain a ban on future devices, but Kissinger was impatient at the lack of progress over the main issues of deployment owing to controversies over "a plethora of esoteric issues." Smith was sensitive to Kissinger's wish for more rapid progress,

but asked that the decision makers provide him with necessary guidance. Did they want to limit all ABM systems or only those that were then known and in use? Smith queried Kissinger on August 7, 1971: "Do we seek an ABM constraint to provide greater stability by … maintenance of retaliatory capability, halting a buildup of defensive systems that could threaten that capability and lessening pressures for buildup of offensive systems—or just a temporary truce in ABMs—until such time as more effective futuristic ABMs are developed and deployed?"^[37]   

In Washington, the Office of the Secretary of Defense wanted to prohibit only the deployment of future systems; indeed, the Joint Chiefs of Staff opposed even this policy, fearing it would be hard to obtain support for R&D if deployment were prohibited. As the JCS chairman, Adm. Elmo R. Zumwalt, Jr., wrote:

The Joint Chiefs of Staff strongly recommend that futuristic ABM systems not be banned. If deployment of futuristic systems were to be banned but research and development permitted, as advocated by some government agencies, such an approach would make it extremely difficult to get funds for such research and development (R&D) and could lead to unilateral U.S. neglect of the field. In all likelihood, the Soviets would proceed with R&D on such systems. It seems imprudent to foreclose options on future systems that cannot now be defined or envisioned or which may be unverifiable, particularly in view of the numerical super[iority] of Soviet offensive missiles involved in the proposed interim strategic offensive agreement. Under any circumstances, R&D programs must be kept viable to avoid technological surprise.^[38]   

Kissinger was annoyed by this effort to clarify the status of "exotic" devices. In a meeting of principals of the NSC Verification Panel, he argued that the negotiation was becoming stalled because the U.S. delegation was raising "nuances" and "academic" issues. He urged that the issue of seeking a ban on exotics be deferred, given that it would not become a problem until at least the 1980s and could be handled by other existing provisions for review and withdrawal. In August, in response to another request for guidance from Smith, Kissinger cabled back that although the United States had made clear to the Soviets its desire for a comprehensive agreement, it was important to take advantage of Soviet willingness to work out even a partial agreement, and that Soviet reluctance to deal with all possible issues should not be a deterrent: "In matters affecting so directly their vital interests, it is understandable that the Soviet leaders have preferred to move to an initial agreement of limited scope."^[39]    Kissinger's statement seemed to imply

that the delegation need not be concerned about such matters as the "exotics" issue, which might be dealt with at a later stage. Nevertheless, the next day, August 12, 1971, an instruction was issued to the U.S. negotiators calling for inclusion of potential new weapons in the terms of the agreement:

The agreement should contain a provision whereby neither side shall deploy ABM systems using devices other than ABM interceptor missiles, ABM launchers, or ABM radars to perform the function of these components. (This provision along with that in the next paragraph, should not prohibit the development and testing of future ABM components in a fixed, land-based mode.) …

… The agreement should contain a provision whereby neither party shall develop, produce, test, or deploy: (a) sea-based, air-based, space-based, or mobile land-based ABM launchers, ABM missiles, or ABM radars; (b) ABM components other than ABM interceptor missiles, ABM launchers, or ABM radars to perform the functions of these components.

But, the instruction continued, the delegation should not "invite a detailed negotiation or discussion of future ABM systems. Our objective is to reach agreement on the broad principle that the agreement should not be interpreted in such a way that either side could circumvent its provisions through future ABM systems or components."^[40]   

Pursuant to this instruction, the U.S. delegation proposed two new sections for inclusion in the draft then under consideration. One provided that "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." The other added to the provisions banning testing and deployment a specific reference to "other devices to perform the functions of these components." Smith argued that the U.S. draft proposed a more complete prohibition, which would be in the interest of both parties specifically because it makes clear that the obligations in the relevant provision apply "also to possible future types of devices capable of performing the functions of these components."^[41]   

The Soviets rejected the U.S. wording, arguing that it would add an unnecessary element of vagueness to the treaty and that existing provisions for review and amendment would be sufficient. Karpov was reported to have expressed the belief that "it was wrong to limit means not known to anyone." The representative of the Soviet Ministry of Defense, Lt. Gen. Konstantin A. Trusov, objected that the United States was proposing limitations on "conjectural" systems.^[42]   

Smith replied firmly in support of the U.S. position that if the proposed changes were not adopted, "it would be a cruel illusion to the people of both nations to say that we had concluded an agreement on ABM systems. We should more properly say that there had been an agreement to limit ABM launchers, interceptors and radars." He "had a higher regard for Soviet weapon designers than to believe that they are content with ABM technology which dates back to the early 1950s."^[43]   

In Sofaer's view, then, the Soviet negotiators never abandoned their persistent opposition to a total ban on the development of future "devices." In accepting Agreed Statement D, they merely agreed that if such devices were developed (or "created") in the future, the intent of the parties to the Treaty was that such devices not be deployed before discussions between them, and that such discussions should be based on the express aim of the treaty to prevent the deployment of territorial defenses. This provision—coupled with the limiting language of Article II, which referred to ABM systems "currently consisting of" launchers, radars, and missiles—is therefore best understood not as a restriction on the testing of space-based systems incorporating new physical principles, but, on the contrary, as acknowledging that such testing would not be subject to the restrictions imposed on conventional technologies.