How long does it take to negotiate and conclude a major international arms control and/or disarmament treaty? Apparently the 2021 answer to this question could be “15 days.” That is how much time is left after President Joe Biden’s inauguration to conclude a new or, more likely, provisionally extend the current New Strategic Arms Reduction Treaty (New START Treaty), which is set to expire on February 5, 2021. It is the last major bilateral nuclear arms control/disarmament agreement between the United States and Russia. What are their options to save this last major arms control treaty from being discarded? What can be expected from the United States on issues of international security under President Biden?
The Way Leading to New START
The New START treaty imposes maximum numbers on the nuclear warheads and their delivery systems on both the United States and Russia, which required them to disarm heavily. In its 1986 Nicaragua judgement, the International Court of Justice stated in Paragraph 269 that “in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited [emphasis added].” The history of modern arms control and disarmament treaties begins after World War II. Many of these relate to weapons of mass destruction, in particular nuclear weapons. Examples are the Partial Nuclear Test-Ban Treaty (1963), which prohibits nuclear tests in the atmosphere, in outer space, and underwater, and treaties creating nuclear weapons-free areas, such as the Antarctic Treaty (1961) and the Outer Space Treaty (1967). The Anti-Ballistic Missile (ABM) Treaty of 1972 was the first major legally-binding bilateral arms control treaty between the United States and the Soviet Union limiting the development of missiles capable of intercepting “strategic missiles.” As a first major measure of disarmament of nuclear weapons, the START I treaty between the United States and the Soviet Union entered into force in 1994. It introduced a limitation of 6,000 deployed nuclear warheads and 1,600 deployed delivery systems, including Intercontinental Ballistic Missiles (ICBMs), Submarine-Launched Ballistic Missiles (SLBMs), and heavy bombers, to the nuclear arsenals of both states. About 80 percent of the global strategic nuclear arsenal was destroyed in implementing START I. START I expired in 2009; however, planned successor agreements START II and START III were never ratified or agreed upon respectively. On February 5, 2011 the New START treaty entered into force, after a roughly two year-long negotiation and ratification period.
The core of New START is contained in its Article II, which sets the numerical limits for the Russian and American nuclear arsenals. The treaty prescribes an envisioned reduction to 1,500 deployed warheads and 700 delivery systems (including ICBMs, SLBMs and heavy bombers). This reduction had to be reached by both sides by 2018. The treaty also makes clear its own limitations. Importantly, the treaty only covers strategic, and not smaller, so-called tactical nuclear weapons and furthermore the limits only apply to deployed warheads. Interestingly, the payload of a deployed heavy bomber is counted as one warhead, regardless of the amount of separate nuclear explosive devices aboard.
The treaty does not apply to missiles designed to intercept ballistic missiles, according to Article III, Para. 7. and there is no limitation on the further development and modernization of the arsenals within the agreed upon numbers. This emphasizes that these kinds of arms control treaties may not prevent a qualitative arms race. This means that a larger arsenal may be out-innovated. The Russian tests of a hypersonic missile in 2020 may serve as an example.
A particularly valuable feature of the treaty is its compliance and coordination mechanism. The treaty includes several due diligence obligations to communicate information to prevent misunderstandings as well as a technical consultative commission to coordinate activities, such as testing and maneuvers. Besides inspection by national technical means, such as satellite-based earth observation, each of the parties to the treaty has the right to conduct on-site inspections where the other side has disclosed, according to the treaty, its bases and testing sites for deployed (type-one inspections) and non-deployed as well as deployed (type-two inspections) bases.
Criticism of the Treaty and Negotiations for Renewal
The chain of withdrawal by the US from arms control agreements, which started in 2002 when the Bush administration withdrew from the ABM treaty, was accelerated under President Trump with the United States’ exit from the Open Skies agreement, the Intermediate-Range Nuclear Forces (INF) treaty and the withdrawal from the JCPOA, aka the Iran nuclear deal. The major criticism of New START by the Trump administration was that the treaty does not bind China as well. The Chinese government has shown no interest whatsoever in being part of any New START negotiations. A look at the numbers of nuclear arsenals worldwide may in part explain why: the Chinese nuclear arsenal is comparatively small and is estimated to contain around 300 nuclear warheads. While it is important to include China on issues of international security and arms control, New START is not designed for parties with starkly disproportionate nuclear weapons stockpiles. Furthermore, it is unclear why China would accept an obligation to allow inspections of its arsenals whilst neither the United States nor Russia will reduce the number of its strategic nuclear weapons to the level of China.
Diplomats of both sides have met repeatedly in 2019 and 2020 to discuss the future of the treaty and Russia has made several proposals to extend the treaty for five years or for one year, potentially with a politically binding freeze on production of all kinds of nuclear warheads. The United States has also taken several stances, the latest being that they were open to a one-year extension, including the warhead production freeze and additional verification. In an article in Foreign Affairs, President-Elect Biden stated his intention to extend New START as a basis for future arms control agreements. The Presidential Envoy for Arms Control Marshall Billingslea wrote on December 17, 2020 that“all we need to do is to define what we are freezing, the cap level & start verification talks.” It is unclear in what way this is supposed to convey the message that the United States and Russia are close to reaching an agreement, if all these major points are not settled. Russia has since reportedly withdrawn the offer of a warhead production freeze.
Options for the Biden Administration To Proceed Under Article XIV of the New START Treaty
- Let the treaty expire without a replacement thus leaving the Russian nuclear arsenal without any restriction and monitoring, potentially leading to an all-out nuclear arms race.
- Negotiate and get the consent of two thirds of the Senate for a completely new comprehensive successor agreement to New START. This is extremely unlikely to be done within the 15 days the new administration will have until the treaty expires.
- Extend the existing treaty for up to five years, without the need for new Senate approval. In the meantime, a comprehensive successor treaty may be negotiated and the Senate will have sufficient time to scrutinize it. This appears to be the best available solution. It could be doable within 15 days and may also provide a basis for addressing further issues of (nuclear) disarmament and arms control, currently not covered by any treaty.
Unwanted or not, this decision will be among the first to make for the Biden administration and how it will be handled both by the executive as well as the Republicans in the Senate will provide a glimpse of what we can expect from the United States on matters of international security over the next four years.
Author Biography: Michael Friedl is Deputy Moderator-in-Chief of the International Law and Policy Brief (ILPB) at The George Washington University Law School. He obtained a first law degree from the University of Vienna (Austria) and currently pursues a LL.M. degree in National Security and U.S. Foreign Relations Law as a Fulbright scholar at The George Washington University Law School.