By Michael Krepon – Many of New START’s harshest critics argue that the Treaty’s
monitoring provisions are deficient. Shelving the Treaty will not improve verification. 
On the contrary, doing so will deal another blow to binding legal
obligations protective of monitoring satellites. 

The first arms control agreements protective of monitoring
satellites was the 1972 Anti-Ballistic Missile Treaty and its
companion SALT I Interim (Executive) Agreement.  Article XII of
the ABM Treaty contained these important obligations:

1. For the purpose of providing assurance or compliance with
the provisions of this Treaty, each Party shall use national technical means (NTM)
of verification at its disposal in a manner consistent with generally
recognized principles of international law.

2. Each Party undertakes not to interfere with the national
technical means of verification of the other Party operating in accordance with
paragraph 1 of this Article.

3. Each Party undertakes not to use deliberate concealment
measures which impede verification by national technical means of compliance
with the provisions of this Treaty. This obligation shall not require changes
in current construction, assembly, conversion, or overhaul practices.

Article XV of the Interim Agreement replicated
this language.  The Bush administration withdrew from the ABM Treaty in
December 2001. The Interim Agreement expired in 1977.

Article II of the 1974 Threshold Test Ban Treaty, which
mandated the limitation of underground nuclear tests to yields no greater than
150 kilotons, contained the same language regarding NTM and
noninterference.  This long-forgotten treaty automatically renews every
five years “unless either Party notifies the other of its termination no later
than six months prior to the expiration of the Treaty.” 

The 1979 SALT II Treaty contained similar language regarding
NTM, no harmful interference and deliberate concealment.  The Senate never
voted on its ratification.  Article XII of the 1987 Intermediate Nuclear
Forces Treaty reaffirmed the NTM and no harmful interference provisions. 
This Treaty is of unlimited duration, but its inspections ended in 2001.  Moscow is grumbling about pulling out of the INF Treaty
because it prohibits Russia
from having missiles with ranges possessed by lesser nuclear powers.  The
first (1991) Strategic Arms Reduction Treaty also contained language protective
of national technical means.  Its provisions expired in December
2009.  The second (1993) START Treaty, which contained similar language,
never entered into force.  When the Bush administration withdrew from the
ABM Treaty, the Kremlin pulled the plug on START II because it contained
restrictive limits on Russia’s
land-based missiles.

Article IV of the 1996 Comprehensive Test Ban Treaty
negotiated during the Clinton
administration contains the noninterference with NTM provision. Senate
Republicans voted in large number to block its ratification. The 2002 Strategic
Offensive Reductions Treaty (also known as the Moscow Treaty), viewed by some
critics of New START as a model agreement, had no verification provisions.
 Instead, it borrowed from the START I Treaty, which lapsed a year ago.
The 2010 New START Treaty also contains NTM and noninterference provisions, but
it may not pass muster in the Senate, in part because critics say they are
worried about verification.

Only one multilateral, non-nuclear treaty -The 1990
Conventional Forces in Europe Treaty – contains the NTM and noninterference
provisions.  This Treaty is of indefinite duration, but Moscow feels disadvantaged by its provisions
and has “suspended” its implementation.

Shelving treaties undermines norms protective of America’s
eyes and ears in space. NTM will be placed at further risk by pursuing the
space warfare capabilities that some treaty opponents seek.  Instructing
the Obama administration to go back to the drawing board to improve
verification would result in years of logrolling. In the meantime, there
will be no inspections and no reaffirmation of the norm against harmful
interference with NTM. Without treaties in force that allow on-site inspections
and affirm norms protective of monitoring satellites, complaints about the need
for better verification ring hollow.    

Using treaties for target practice in the Senate also
increases the likelihood that monitoring satellites will become
targets.  If irreconcilable Senators have their way, prohibitions
against interfering with monitoring satellites will rest on a 37 year-old
treaty that can be axed every five years and two treaties from which Moscow may seek to
withdraw.   

This essay was also posted in armscontrolwonk.com  

Photo Credit: iStockphoto File #: 5490445