26 Apr Russia “Suspends” Participation in Conventional Forces Treaty
Maybe Duncan or others can help me out here, but how exactly can Russia legally “suspend” its participation in the Treaty on Conventional Forces in Europe, as the Washington Post reports today? Russia is unhappy about the planned deployment of a limited NATO missile defense system in Europe.
Under the treaty’s Article XIX, the Treaty is of “unlimited duration”. Russia has “the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests.”
Under Article 57 of the Vienna Convention on the Law of Treaties, a treaty may be suspended ‘in conformity with the provisions of the treaty,’ or ‘at any time by consent of all the parties after consultation with the other contracting States.’
Article 60 of the VCLT authorizes suspension due to a “material breach” by one of the parties to a multilateral treaty “specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State. “Material breach” is defined as “the violation of a provision essential to the accomplishment of the object or purpose of the treaty.”
As far as I can tell here (but I more than welcome treaty law experts or arms control experts to correct me), none of these conditions has been met since Russia does not appear to be withdrawing from the treaty nor does it have the consent of the other parties to the treaty. The best argument appears to be “material breach” but it is not obvious to me that the deployment of missile defense systems in Eastern Europe would violate any provision of the CFE Treaty, much less one that is “essential to the accomplishment of the object or purpose of the treaty.” The missile interceptors in question are largely aimed at intercontinental missiles, if I’m not mistaken, which do not appear within the ambit of this treaty.
I’m not trying here to take NATO’s side here against Russia. Russia appears to have real grievances here, as NATO has marched right up to its borders, arguably in violation of prior NATO promises. And this might be a very fair exercise of diplomatic power because it puts pressure on NATO. But none of this makes it “legal.” Or does it?
Julian — I’m not sure how much help I can be on this one having been unable to locate a copy of Putin’s statements to clarify whether he was actually declaring a suspension or merely threatening one. The latest news stories suggest I’m not alone in looking for clarification of that point. I would assume that if Russia is suspending their argument will be they have a right to do that under VCLT Art. 60 on the grounds that they’re a party “specially affected by the breach.” Of course, it’s also possible they might try for impossibilty (VCLT art. 61) under the premise that they can’t perform when there are still NATO states who’ve yet to ratify the CFE. Alternatively, I wonder whether they might not try a “fundamental change of circumstances” line of defense, arguing that US and NATO conduct since 1990 (and 1999?) have fundamentally changed the landscape. Of course, all three arguments face an incredibly high bar (see, e.g., the Gabcikovo-Nagymaros decision of the ICJ), so I’d be pretty skeptical, at least initially, about whether any of these will fly on the merits. Moreover, since Russia’s a party to the VCLT, I wonder whether and when they’ll… Read more »
My understanding is that it’s a threatened suspension on the basis of Article 60 – that also seems to be the impression given in todays IHT.
Thanks Duncan and Fiona for these helpful comments. But I still don’t see how the missile defense system can be construed as a “breach” of the CFE treaty in the first place. But this may have to do with details about the treaty which I don’t fully understand.
For those wishing to understand more about the crisis du jour with Russia, one must also look at the Istanbul Document 1999, a politically binding agreement adopted by the participating States Organization on Security Cooperation in Europe (www.OSCE.org). In connection with the adoption of that agreement, Russia agreed to undertake troop withdrawals from the Republic of Georgia. Russia has not fulfilled those obligations, and this is contributed to the current situation.
Following up on Erika’s comment, Russia’s failure to comply with its Instanbul commitments has been a partiuclar sore spot in the last few years. Russia has claimed that there are certain preconditions to its performance but the NATO countries have maintained that the Treaty said that Russia had an obligation to withdraw troops from Georgia and Moldova without any preconditions. Various ministerials and summits have included arguments back and forth over Russia being a “bad actor” in the CFE treaty.
As the CFE has become a serious annoyance to Russia, I think what is in part going on here is an opportunity for Russia to try to turn the tables and say that it is not the bad actor, but that it is the U.S.that is really at fault. But, in my view, this treaty has been under serious pressure from Russia for a number of years.
@ Erika &Chris: I hope you agree with me that a “politically binding agreement” is not the same as a treaty under international law.