Article-by-Article Analysis of the Protocol to the START Treaty
The Protocol to the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Reduction and Limitation of Strategic Offensive Arms ("START Treaty") consists of the Preamble and six numbered Articles. The purpose of the Protocol is to enable the START Treaty, which was negotiated with the signed by the Soviet Union, to be implemented between, on the one hand, the United States of America and, on the other hand, the Republic of Byelarus, the Republic of Kazakhstan, the Russian Federation, and Ukraine-the four former Soviet republics, now independent states, within whose territory all strategic offensive arms are based and all declared START-related facilities are located. The Protocol is an integral part of the START Treaty.
Associated with the Protocol and thus with the START Treaty are three separate, legally binding letters signed by, respectively, the Chairman of the Supreme Soviet of the Republic of Byelarus, the President of the Republic of Kazakhstan, and the President of Ukraine. Each letter obligates the signing state to eliminate all nuclear weapons and strategic offensive arms from its territory within seven years of the date of entry into force of the START Treaty.
The Protocol and the three associated letters are discussed in this analysis.
The title of the Protocol is "Protocol to the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Reduction and Limitation of Strategic Offensive Arms." The fundamental purpose of the Protocol is to amend the START Treaty to enable the Treaty's implementation under the changed political circumstances resulting from the demise of the Soviet Union.
The Preamble serves as an introduction to the Protocol and sets forth the intentions of the Parties in broad terms. The first paragraph of the Preamble sets forth and defines the "Parties" to the Protocol and, by virtue of Article I, to the START Treaty itself. The parties are the Republic of Byelarus, the Republic of Kazakhstan, the Russian Federation, Ukraine, and the United States of America.
The next two paragraphs of the Preamble reaffirm the support of the Parties for the START Treaty, while recognizing that the altered political situation resulting from the demise of the Soviet Union and its replacement with a number of independent states requires a formal, legal change as to who the START Parties will be. These paragraphs thus express the link between the START Treaty as originally signed and the new political reality brought about by the demise of the Soviet Union.
The fourth preambular paragraph emphasizes the interest of the parties in maintaining the nuclear forces of the former Soviet Union under the safe, secure and reliable control of a single unified authority. The commitment to such single unified control on the part of the member states of the Commonwealth of Independent States is embodied in "An Agreement Between the Member-States of the Commonwealth of Independent States," signed in Minsk, Byelarus, on December 30, 1991 by Byelarus, Kazakhstan, Russian and Ukraine, among other states. Article II of that Agreement provides that "The Member-States of the Commonwealth recognize the need for joint command of strategic forces and for maintaining unified control of nuclear weapons and other types of weapons of mass destruction of the former USSR." While the commitment to this command and control arrangement is recognized, the Commonwealth of Independent States plays no role in START implementation and is not a Party to the START Treaty.
The final paragraph of the Preamble states the Parties' desire to facilitate implementation of the START Treaty in the altered situation arising from the demise of the Soviet Union.
Article I of the Protocol specifies that Byelarus, Kazakhstan' Russia, and Ukraine together, as successor states to the former Soviet Union for the purposes of the START Treaty, will assume the obligations of the former Soviet Union under the START Treaty. This is one element of the Protocol that has the effect of making these four former Soviet republics Parties to the START Treaty. (Similarly, paragraph 1 of Article M of the Protocol provides that, for purposes of START Treaty implementation, the phrase "Union of Soviet Socialist-Republics" means these four independent states. Furthermore, paragraph 1 of Article VI specifies that each of the four states shall ratify the START Treaty and the Protocol.)
The assumption of the former Soviet Union's obligations by the four states means that the limits of the START Treaty will be applied collectively to the holdings of the four states on the territory of the former Soviet Union. No separate quotas are established for individual states. Note, however, that the separate letters from the respective heads of state require the elimination of strategic offensive arms located in Byelarus, Kazakhstan, and Ukraine within seven years following the date of entry into force of the START Treaty (which is the START period of reductions). This means that no later than seven years after entry into force of the START Treaty, all of the strategic offensive arms that were permitted for the former Union of Soviet Socialist Republics under the START Treaty as originally signed will be located only on the territory of Russia.
Similarly, the collective assumption of obligations in Article I means that inspection quotas will be collective. The United States is, for example, allowed reentry vehicle inspections each year under the START Treaty. The United States could conduct any number of these ten inspections in any of the four states involved. In the same way, there could only be ten such inspections conducted each year in the United States.
Finally, Article I uses the phrase "as successor states of the former Union of Soviet Socialist Republics in connection with the Treaty." The words "in connection with the Treaty" were included to make it clear that the Protocol does not prejudice the consideration of which state or-states succeeds to the rights and obligations of the former Soviet Union with respect to any other agreements or ongoing discussions among the former Soviet republics concerning the division of the rights, obligations, and property of the former Soviet Union.
Article II of the Protocol obligates Byelarus, Kazakhstan, Russia, and Ukraine to make arrangements among themselves to implement the START Treaty's limits and restrictions, to allow functioning of the verification provisions of the START Treaty equally and consistently throughout the territory of all four States, and to allocate costs. The obligation of the four states to make arrangements to implement the START Treaty's rights and obligations means that they will decide among themselves on how to reduce the strategic offensive arms of the former Soviet Union so as to meet the START Treaty limits, how to coordinate inspection of U.S. facilities, how to coordinate. START communications, and similar issues.
Article II also requires that verification provisions be consistent throughout the territory of the four states. This means that the same Inspection Protocol procedures will be used, the same privileges and immunities will be granted inspectors, and the same time lines will be adhered to regardless of the state in which an inspection is being conducted. Minor procedural changes to recognize the sovereignty of the states involved, while ensuring procedural uniformity, can, if necessary, be agreed upon within the framework of the Joint Committee and Inspection Commission, established by Article XV by Article XV of the START Treaty.
The final requirement of Article II is that Byelarus, Kazakhstan, Russia, and Ukraine shall make necessary arrangements among themselves to allocate costs. This requirement serves two purposes. First, it makes clear that the Protocol does not alter the division of costs between the United States and the states assuming the obligations of the former Soviet Union, a division found primarily in paragraphs 18 through 21 of Section V of the Inspection Protocol. Second, it indicates that the division of costs among the four relevant states is a matter for the four states themselves to decide and that the United States does not have an does not seek a voice in that decision.
Article III of the Protocol consists of five paragraphs providing implementing details necessary to allow the START Treaty to function with five Parties.
Paragraph I of Article III specifies that, for purposes of START Treaty implementation, the Treaty phrase "Union of Soviet Socialist Republics" means the Republic of Byrlarus, the Republic of Kazakhstan, the Russian Federation, and Ukraine. Paragraph 2 of the same Article specifies that the phrase "national territory," when used in the Treaty to refer to the Union of Soviet Socialist Republics, means the combined national territories of the Republic of Byelarus, the Republic of Kazakhstan, the Russian Federation, and Ukraine.
Taken together, these two paragraphs allow the combined territory and population of Byelarus, Kazakhstan, Russia, and Ukraine to be treated as a single entity for START Treaty purposes. Thus, for example, the requirement of paragraph 2 of Section H of the Inspection Protocol that inspectors and monitors be citizens of the Soviet Union means that they may be citizens of any of the four states. Similarly, when provisions of the Inspection Protocol require inspectors to leave the territory of the inspected Party (for example, at the conclusion of an inspection), U.S. inspectors would be required to depart from the collective territory of the four states.
Paragraphs 3 and 4 of Article III of the Protocol clarify how certain rights of inspectors and monitors will be exercised. Paragraph 13 of Section VI of the Inspection Protocol requires the inspected Party to provide inspectors with telephone communications to their embassy; paragraph 3 of this Protocol clarifies that, for inspection and continuous monitoring activities on the territory of Byelarus, Kazakhstan, Russia, and Ukraine, this provision refers to the U.S. Embassy in the capital of the state in which the inspection is being conducted. Thus, for example, for inspections conducted in Byelarus, the obligation would be to provide telephonic communications with the U.S. Embassy in Minsk.
Similarly, Section XVI of the Inspection Protocol provides certain rights in connection with perimeter and portal continuous monitoring. For example, under paragraph 16 of Section XVI, the inspected Party is required to provide dedicated telephone lines to the embassy of the inspecting Party. Paragraphs 29 and 30 of Section XVI provide a right for periodic travel from the monitored facility to the Embassy of the inspecting Party and for periodic travel by members of an embassy's Treaty implementation unit to the monitored facility. Paragraph 4 of this Protocol clarifies that, for example, for monitoring conducted at Pavlograd in Ukraine, these rights are to be exercised with respect to the U.S. Embassy in Kiev.
Paragraph 5 of Article III of the Protocol specifies that the working languages for START Treaty purposes shall be English and Russian. This minimizes the burden on the United States in conducting inspections on the territory of the former Soviet Union. For example, inspection reports will be prepared in English and Russian, even for an inspection in Ukraine. Safety briefings required by paragraph 7 of Section VI of the Inspection Protocol will be conducted in Russian, even for an inspection which takes place in Byelarus. The obligation in paragraph 28 of Section VI of the Inspection Protocol to have at least two members of the inspection team who can speak the language of the inspected Party will be met by the United States by having two Russian speakers, even for an inspection which takes place in Kazakhstan. Implementing documentation prepared in the Joint Compliance and Inspection Commission will be prepared in two languages, not in five, even though five states are participating.
Article IV of this Protocol alters the procedures established in the START Treaty for participation in the work of the Joint Compliance and Inspection Commission (JCIC) in order to take account of the fact that there will be five Parties to the START Treaty. The Article specifies that all four of the states assuming the obligations of the former Soviet Union will participate, but provides that the four states themselves shall determine the form of that participation.
Article V of this Protocol requires that Byelarus, Kazakhstan, and Ukraine adhere to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) of July 1, 1968,1 as non-nuclear-weapon States Parties "in the shortest possible time" and immediately begin to take appropriate steps toward this end. The phrase "in the shortest possible time" was used in the Protocol in lieu of a specific date when the three states would be required to become Parties to the NPT due to Ukrainian insistence that, because it has an independent Parliament, it could not guarantee when that Parliament would act to join the NPT. This phrase represents a commitment by the three states to act as fast as possible.
This Article is a central part, both politically and legally, of the solution to the problem of START ratification and implementation reflected in this Protocol. At one time, the Parties were considering a formula where only the United States and Russia would be Parties to the START Treaty, with Byelarus, Kazakhstan, and Ukraine treated as basing countries. One reason prompting consideration of this formula was concern that making Byelarus, Kazakhstan, and Ukraine Parties to START could imply that these three states had ownership and control of the nuclear weapons on their territory, contrary to the requirements of the NPT. Byelarus, Kazakhstan, and Ukraine, however, were concerned that a solution making Russia the only Party to START from among the stats emerging following the demise of the Soviet Union would not have given appropriate recognition to their independence and sovereignty.
This Protocol and the associated letters reconcile these two considerations by giving Byelarus, Kazakhstan, and Ukraine equal standing with Russia under the START Treaty, while ensuring that their status as Parties does not impose any bar to their accession to the NPT status as non-nuclear-weapon States Parties. Specifically:
-The reference in the preamble to single unified control of the strategic and nuclear forces of the former Soviet Union emphasizes that the Parties acknowledge the Byelarus, Kazakhstan, and Ukraine do not have ownership or independent control over nuclear weapons. (The obligation of Russia to seek another state's agreement prior to Russia's use of nuclear weapons does not give that other state "control" of nuclear weapons for NPT purposes. Thus, participation in such a role by Byelarus, Kazakhstan, and Ukraine in a single unified authority that controls the nuclear weapons of the former Soviet Union does not preclude their having a non-nuclear-weapon state status under the NPT.) In addition, the associated letters make it clear that the presence of strategic offensive arms on the territory of Byelarus, Kazakhstan, and Ukraine is temporary. The mere presence of strategic offensive arms does not constitute ownership or control of nuclear weapons, and thus allows the three states to join the NPT as non-nuclear-weapon States Parties.
-Finally, Article V of the Protocol makes it clear that the Parties do not regard adherence to the NPT as non-nuclearweapon States Parties by Byelarus, Kazakhstan, or Ukraine as inconsistent with their START status. On the contrary, this Article makes such adherence an integral part of their START obligations.
1 Treaty on the Non-Proliferation of Nuclear Weapons, done at Washington, London and Moscow July 1, 1968, entered into force March 5, 1970, 21 U.S.T. 483, T.I.A.S. No. 6839, 7729 U.N.T.S. 162.
Article VI of this Protocol consists of two paragraphs concerning the ratification of the START Treaty as well as the Protocol, and the duration of the Protocol.
Paragraph 1 of Article VI specifies that the Protocol, which is an amendment to the START Treaty, is subject to ratification, as is the Treaty. Paragraph 1 also specifies that each Party Will ratify the START Treaty and the Protocol. This provision serves both a political and a legal purpose. Politically, it stresses the sovereignty and equality of each of the four states that are assuming the obligations of the former Soviet Union. Legally, it makes it clear that each of these states will be a Party to the START Treaty.
Paragraph 1 also provides that the START Treaty and the Protocol will be ratified together, and that the START Treaty, of which the Protocol is an integral part, will enter into force when the instruments of ratification are exchanged. Similarly, paragraph 2 provides that the Protocol will remain in force throughout the duration of the START Treaty. Again, these provisions underscore that the Protocol is an integral part of the START treaty.
The final, unnumbered paragraph provides that the Protocol is signed by the Parties in five copies, each containing the Protocol's text in each of the five national languages of the Parties, and that all of the texts are equally authentic. This serves to stress the equality of the five signatories. This provision applies only to the Protocol; the working languages for the START Treaty are English and Russian, as specified in Article III of the Protocol.
Although the START Treaty was signed by the Presidents of the U.S. and the U.S.S.R. in 1991, it was decided to sign the Protocol at a meeting of the Secretary of State, the Foreign Ministers of Byelarus, Russia and Ukraine, and the State Counsellor for Strategic Affairs of Kazakhstan in Lisbon on May 23, 1992. These officials were duly authorized by their governments for this purpose.
Article-by-Article Analysis of the Letters Associated with the Protocol
Associated with the Protocols to the START Treaty are letters from the Chairman of the Supreme Soviet of the Republic of Byelarus, from the President of the Republic of Kazakhstan, and from the President of Ukraine. Each letter is addressed to the President of the United States. Copies were formally transmitted by the signatories to the heads of state of all other Parties to the START Treaty. Each letter imposes legally binding obligations.
Although the letters vary somewhat in wording, in each case the signatories undertake an obligation to eliminate all nuclear weapons located on the territory of the particular state; in accordance with the procedures of the START Treaty, all strategic offensive arms located on the territory of the particular state; and to complete these two steps within seven years following the date of entry into force of the Treaty (the period of START reductions).
No new U.S. security assurances or guarantees are associated with any of these letters. In 1968, the United States made a declaration that it would seek immediate United Nations Security Council action to provide assistance to any non-nuclear-weapons State Party to the Non-Proliferation Treaty that was the victim of aggression or threat of aggression in which nuclear weapons were used. The Soviet Union and the United Kingdom made similar declarations. The United States has made it clear to Byelarus, Kazakhstan, and Ukraine that we stand by this declaration, which will apply in full to these three states once they have adhered to the Non-Proliferation Treaty as non-nuclear-weapon States Parties.
These obligations are in the form of letters for political reasons. During the negotiations, the three non-Russian states made it clear that, in order to preserve their equal status as sovereign State successors of the former Soviet Union with regard to the START Treaty, they could not support an outcome that singled out any state for special treatment in the Protocol itself. Having an obligation in the Protocol to eliminate all nuclear weapons and strategic offensive arms from the territories of Byelarus, Kazakhstan, and Ukraine, while allowing such weapons and arms to remain in Russia, would have, in the view of the non-Russian states, given the appearance of unequal treatment. Consequently, Byelarus, Kazakhstan, and Ukraine agreed to be legally bound to eliminate such weapons and arms in separate letters from their respective heads of State.
Letter from the President of Ukraine
The letter from the President of Ukraine consists of four paragraphs. In the introductory paragraph, the phrase "Ukraine ... shall assume the following obligations" indicates that these are legally binding commitments. This is qualified by the statement that this letter is "in connection with the ratification" of the START Treaty. Thus, the obligations set forth in the letter are legally binding only in the event of ratification of the START Treaty.
The second paragraph of the Ukrainian letter obligates Ukraine to have a non-nuclear status as set forth in the October 24, 1991 statement of the Ukrainian Parliament. The "three non-nuclear principles" referred to are not to accept, not to produce, and not to acquire nuclear weapons; these principles appear in the July 16, 1990 declaration of the Ukrainian Parliament, and derive from Article II of the NPT. Article II of the NPT broadly states those principles as follows: not to receive nuclear weapons, not to manufacture or otherwise acquire nuclear weapons, and not to seek or receive any assistance in the manufacture of nuclear weapons. The "Verkhovna Rada" referred to in this paragraph is the Ukrainian Parliament.
Additional legal obligations undertaken by Ukraine are set forth in the first sentence of the third paragraph. These obligations have two elements. First, Ukraine is obliged to ensure the elimination of all nuclear weapons (i.e., nuclear explosive devices) located on its territory and all strategic offensive arms located on its territory. For strategic offensive arms, this obligation will be met either by physical elimination of the relevant arms or by transfer of such arms to Russia. If strategic offensive arms are to be physically eliminated, the obligation to eliminate such arms requires that they be eliminated using START procedures. As a practical matter, we expect that nuclear weapons will be transferred to and eliminated in Russia.
The obligation to eliminate nuclear weapons applies to, all such weapons physically located within Ukrainian territory. A similar obligation provides that all strategic offensive arms located on Ukrainian territory be eliminated in accordance with the START Treaty. START requires the destruction of silo launchers; it does not require the destruction of ballistic missiles, except as necessary to remain within numerical limits on non-deployed mobile ICBAU. The United States will discuss the details of the ultimate disposition of these ballistic missiles in the JCIC and as part of our response to the request from Ukraine (and other relevant states) for U.S. assistance in eliminating ballistic missiles on their territories. Transfer of such ballistic missiles beyond the confines of Byelarus, Kazakhstan, Russia, or Ukraine is, in any case, prohibited by the START Treaty itself, in conjunction with the May 23, 1992 Protocol.
Second, Ukraine must conduct this elimination both "in accordance with its relevant agreements" and "during the seven year period of time as provided by the START Treaty" (i.e., the seven years allowed by the START Treaty for the Parties to reduce their strategic offensive arms to the levels established by the Treaty). This phrase is intended to make it clear that this letter does not supersede existing agreements (such as the December 30, 1991 "Agreement Between the Member-States of the Commonwealth of Independent States on Strategic Forces," which provides that "until their destruction in full, nuclear weapon located on the territory of Ukraine shall be under the control of the Combined Strategic Forces Command, with the aim that they not be used and be dismantled by the end of 1994.") We would like to see Ukraine honor this Agreement. Since the United States is not a party to these "relevant agreements," however, the letter includes an obligation to the United States, namely, that Ukraine complete the elimination of nuclear weapons and strategic offensive arms within seven years at the latest.
The second sentence of the third paragraph specifies that Ukraine will "take into account" Ukrainian national security interests in conducting "this activity" (i.e., the elimination of all nuclear weapons and strategic offensive arms). This sentence does not provide any relief from the obligations themselves undertaken by Ukraine in this letter. In the event that questions regarding its national security arise, Ukraine is obligated to consult with the other Parties to the Treaty.
The fourth paragraph of the Ukrainian letter expressed Ukraine's view that the elimination of nuclear weapons should be carried out in a manner that involves international oversight so that the nuclear components of the devices eliminated are not reused or exported. This paragraph is not legally binding in that it expresses the desire or belief of Ukraine. While Ukraine advocates the establishment of such a mechanism, its legal obligation is not conditional on the attainment of such a result.
Letter from the President of Kazakhstan
The letter from the President of Kazakhstan is dated May 19, 1992, and consists of two paragraphs. It is based on, although shorter than, the letter from Ukraine. A number of points inserted in the Ukrainian letter at the request of Ukraine were not considered necessary by Kazakhstan.
The introductory paragraph in the Kazakh letter is identical, with minor stylistic exceptions, to that in the Ukrainian letter. In this paragraph, the phrase "Kazakhstan undertakes the following obligations" indicates that these are legally binding commitments. This is qualified by the statement that this letter is "in connection with the ratification" of the START Treaty. Thus, the obligations set forth in the letter are legally binding only in the event of ratification of the START Treaty.
The second paragraph of the Kazakh letter obligates Kazakhstan to eliminate all nuclear weapons including strategic offensive arms located on its territory, and to do so within seven years. The obligation to eliminate nuclear weapons and strategic offensive arms is drawn from the Ukrainian letter and conveys an identical obligation to that undertaken by Ukraine. Unlike the Ukrainian letter, the Kazakh letter contains no reference to "relevant agreements," since no previous agreement to which Kazakhstan is a Party contains any obligation for elimination of nuclear weapons or strategic offensive arms located on Kazakh territory.
The Ukrainian letter obligated Ukraine to have a non-nuclear status as set forth in the October 24, 1991, statement of the Ukrainian Parliament. There is no comparable commitment in the Kazakh letter since, at the time the Kazakh letter was signed, the Parliament of Kazakhstan had made no comparable statement. By signing the Protocol, however, Kazakhstan obligates itself to adhere to the Non-Proliferation Treaty as a non-nuclear-weapon State Party and, thus, to have a non-nuclear status comparable to that of Ukraine.
The letter from the Chairman of the Supreme Soviet of the Republic of Byelarus (who is the Byelarusian head of state) is dated May 20, 1992, and consists of five paragraphs plus a complimentary closing. Like the letter from Kazakhstan, the Byelarusian letter is based on the letter from Ukraine. A number of points inserted by Ukraine into its letter were not considered necessary by Byelarus. In addition, the language of the Byelarusian letter differs in some respects from that of the Ukrainian letter. However, the substantive result is the same on the matters of interest to the United States.
The introductory paragraph in the Byelarusian letter differs somewhat in phrasing from the Ukrainian letter, but is the same in substance. Each confirms that the commitments in the letters are legally binding obligations. The Byelarusian Delegation confirmed at the time of signature of the Protocol that this was the meaning and intent of the Byelarusian language, and Secretary of State Baker then formally stated that the United States was proceeding with signature of the Protocol that this was the meaning and intent of the Byelarusian language, and Secretary of State Baker then formally stated that the United States was proceeding with signature of the Protocol on the basis that the Byelarusian, Kazakh, and Ukrainian letters were all legally binding.
As with the Ukrainian and Kazakh letters, the legally binding nature of the Byelarusian letter is qualified by the statement that is letter is made in connection with the impending ratification of e START Treaty. Thus, the obligations set forth in the letter are legally binding only in the event of ratification of the START Treaty.
The second paragraph of the Byelarusian letter obligates Byelarus to achieve a non-nuclear status and notes that tactical nuclear weapons have already been removed. In addition, by signing the Protocol, Byelarus obligates itself to adhere to the Non-Proliferation Treaty as a non-nuclear-weapon State Party.
The third paragraph of the Byelarusian letter obligates Byelarus to eliminate "nuclear strategic offensive arms" located on its territory, and to do so within seven years. Although phrased slightly differently than the Ukrainian letter, which uses the words "nuclear weapons, including strategic offensive arms," the obligation is drawn from the Ukrainian letter and, with one exception, conveys an identical obligation to that undertaken by Ukraine. Unlike the Ukrainian letter, the Byelarusian letter qualifies its obligation by providing that the Russian Federation must be prepared to receive the nuclear strategic offensive arms removed from Byelarus; the only strategic offensive arms based in Byelarus are road-mobile SS-25 ICBMs.
The fourth paragraph specifies that "this activity" (i.e. the elimination of nuclear strategic offensive arms) shall be conducted "with due accounts" of Byelarusian national security interests. This paragraph does not provide any relief from the obligations undertaken by Byelarus in this letter.
In the event that questions regarding its national security arise, Byelarus is obligated to consult with the other Parties to the Treaty.
The fifth paragraph of the Byelarusian letter expresses Byelarus' view that the elimination of nuclear weapons should be carried out in a manner that involves international oversight. While in this paragraph Byelarus expresses its desire for the establishment of such a mechanism, legal obligations that Byelarus undertakes in this letter are not conditional on attaining such a mechanism.