‘Material Breach’ Charge Against Siberian Radar Is More Legalistic Than Real

The controversial radar near Krasnoyarsk in central Siberia is back in the news. The Soviets have offered to dismantle some equipment at the radar if the United States agrees not to withdraw from the anti-ballistic-missile treaty for at least 10 years. Just a few days earlier, according to press reports, the National Security Planning Group had recommended to President Reagan that he charge the Soviets with a “material breach” of the treaty in constructing the radar. We thought then that the President was getting poor advice, and we still think so after the new Soviet offer.

Nearly everyone agrees that the Krasnoyarsk radar violates the treaty. Although the Soviets continue to insist that the radar is legitimate, their offer to partly dismantle it amounts to tacit admission that it is not; construction was in fact halted more than a year ago, and the radar remains far from complete.

But there are good reasons to conclude that this breach is not “material.”

As defined by the 1969 Vienna Convention on the Law of Treaties, a material breach is “the violation of a provision essential to the accomplishment of the object or purpose of the treaty.” The aggrieved party is entitled to invoke the breach as a ground for terminating the treaty or for suspending its operation.

The central purpose of the ABM treaty is to prevent either side from deploying a territorial missile defense or providing the base for such a defense. Because large phased-array radars could be important components of a territorial defense, the treaty restricts deployment as follows:

--A limited number of ABM radars is permitted at one designated site and at designated test ranges.

--Radars for early warning of ballistic-missile attack are permitted, but only on the periphery of the country and oriented outward (Article VIb). These restrictions severely diminish their potential for performing the critical role of battle management in an ABM defense.

--Radars for tracking objects in outer space or for verification are permitted without limit.

If the Krasnoyarsk radar were to have appreciable battle-management capability when completed, it would without question be a material breach of the treaty. But there are several technical reasons why that is not the case: The radar is designed to operate at substantially too low a frequency for battle management, its location is not optimal, and it is highly vulnerable and could be quickly disabled in any conflict. (It is also not optimally designed or sited for space tracking--the mission that the Soviets ascribe to it.)

The radar was almost surely intended for early warning--it is almost identical to other Soviet early-warning radars, and fills a gap in their early-warning network. Inasmuch as Krasnoyarsk is far from the periphery of the nation and the radar does not point outward, it violates Article VIb.

A strong case can be made that Article VIb is essential to the purposes of the treaty. But if, as in the case of the Krasnoyarsk radar, the actual violation does not frustrate those purposes, should the breach be classified as material? That case is at best a legalistic one.

Why did the Soviets deploy a legal radar at an illegal place? The most plausible motives are convenience and economy. Constructing a radar in the permafrost of far northern Siberia, where it would have been legitimate, would have been much more difficult and costly. If this explanation is correct, it doesn’t make the radar any less a violation, but it is relevant to the question of whether it is a material breach.

What does the United States stand to accomplish by accusing the Soviets of a material breach? Is the President prepared to abrogate the treaty over this issue? It is no secret that many in the Administration would be delighted to see the treaty die. Abrogation would end the controversy over the treaty’s interpretation as applied to new technology for strategic defense and would free the SDI program from all constraints. It is a step that the President can take without congressional approval.

But as the Joint Chiefs of Staff have pointed out, according to press reports, the Soviets would be in a better position than America to move ahead in the short term with ABM development if no longer restrained by the treaty. This would not be in U.S. security interests. Furthermore, abrogation would surely generate a firestorm of opposition in Congress and doom all prospects for a START agreement this year.

Another option open to the United States is to take some “compensatory” action without abrogating the treaty--for example, to proceed with the SDI tests that are barred by the treaty according to the strict interpretation. Those tests, however, are specifically intended to develop a territorial defense. Such a U.S. response could well be seen as more material a breach of the treaty than is the Soviet radar, and would invite the charge that the President is simply using the Soviet radar as a pretext for an end run around the treaty.

Charging the Soviets with a material breach and doing nothing about it would be the worst course to follow. It would be seen as a futile gesture and a sign of weakness.

The halt in construction and the recent offer to remove equipment at the facility suggest that Mikhail S. Gorbachev is embarrassed by Krasnoyarsk and is looking for a face-saving way out. The new Soviet offer is not likely to be accepted. It will be argued that the Soviets are not entitled to anything in return for complying with their treaty obligations. Besides, the Administration is seeking Soviet concessions on SDI testing and START in return for a U.S. pledge to stay with the ABM treaty.

It would appear that the Soviets do not intend to let Krasnoyarsk stand in the way of an overall settlement. Their best course would be to remove it as an obstacle now; the United States should continue to press them in private channels to take the necessary corrective action. But rekindling the controversy with publicized charges of a material breach would serve no useful purpose, and could undo much of the recent progress in U.S.-Soviet relations.