Russian Treaty Lawyers Work Lots of Overtime

At least that’s my guess, based on yesterday’s news reports that President Putin had signed a decree that will lead to Russia’s suspension of its participation in the 1990 Treaty on Conventional Armed Forces in Europe (CFE). For those unfamiliar with it, the CFE constituted a landmark arms control agreement, establishing parity in major conventional forces and armaments between NATO and the then-Warsaw Pact. Although a “Big” treaty in terms of length, complexity and the number of accompanying and implementing agreements, the CFE’s overarching significance began to diminish with the demise of the Warsaw Pact and NATO’s enlargement. In an effort to have the treaty accommodate the shifting strategic environment, the parties negotiated and concluded an Adaptation Agreement in 1999 in Istanbul. The Adaptation Agreement has yet to come into force, however, as NATO member states have held up their ratifications pending Russian compliance with some of the political commitments it made at Istanbul in concert with the Adaptation Agreement’s conclusion (e.g., the withdrawal of Russian forces from Georgia and Moldova).

Russia had threatened CFE suspension for the last several months and yesterday’s suspension announcement reinvigorated discussion of Moscow’s motivations among foreign policy types — i.e., is suspension primarily a reaction to the failure of other CFE parties to ratify the CFE Adaptation Agreement, or a thinly disguised response to NATO efforts to install missile shields in Poland and other states formerly within the Russian/Soviet sphere of influence? For me, however, Russia’s suspension raises a separate set of legal questions that bear closer scrutiny.

First, as Julian’s earlier post suggested, there is the question of whether and on what grounds Russia can suspend its CFE participation. I don’t yet see a clear answer to this question. On the one hand, yesterday’s decree suggests Russia thinks it can rely on the CFE text itself to authorize suspension. President Putin’s press release indicates that “the operation of the Treaty will be suspended in 150 days as of the date of Russia’s notifying the depositary and other member states of its decision.” The 150 day notice period pretty clearly derives from the CFE text, Article XIX(2) of which provides:

Each State Party shall, in exercising its national sovereignty, have 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. A State Party intending to withdraw shall give notice of its decision to do so to the Depositary and to all other States Parties. Such notice shall be given at least 150 days prior to the intended withdrawal from this Treaty. It shall include a statement of the extraordinary events the State Party regards as having jeopardized its supreme interests.

Russia’s press release also includes a statement of “exceptional circumstances that affect the security of the Russian Federation” and lead Russia to suspend its CFE obligations “until NATO members ratify the Adapted Treaty and begin to implement the document in good faith.” Specifically, Russia complains of —

1. The failure of Bulgaria, Hungary, Poland, Romania, Slovakia and the Czech Republic to make the necessary changes in the composition of [sic.] group of states party to the Treaty on the accession of these countries to NATO;
2. The excessive parties to the CFE Treaty that belong to NATO, and the exclusive group that formed among CFE Treaty members as a result of the widening of the alliance;
3. The negative impact of the planned deployment of America’s conventional forces in Bulgaria and Romania because of this exclusive group mentality;
4. The failure of a number of parties of the CFE Treaty to comply with the political obligations contained in the Istanbul Agreements relating to the early ratification of the Adapted Treaty;
5. The failure of Hungary, Poland, Slovakia and the Czech Republic to comply with commitments accepted in Istanbul to adjust their territorial ceilings;
6. Estonia, Latvia and Lithuania’s failure to participate in the CFE Treaty has adverse effects on Russia’s ability to implement its political commitments to military containment in the northwestern part of the Russian Federation. Estonia, Latvia and Lithuania’s actions result in a territory in which there are no restrictions on the deployment of conventional forces, including other countries’ forces.

So, I envision Russia’s position to be that suspension is consistent with the CFE text, and therefore, consistent with international law (see, e.g., VCLT Art. 57, which allows treaty suspension when provided for in the treaty text).

On the other hand, the CFE doesn’t require 150 days notice and a statement of exceptional circumstances for suspension; it imposes that notice period for a party to withdraw from the treaty due to “extraordinary events” jeopardizing that state’s “supreme interests.” For Russia’s reliance on the CFE to hold, we’d have to conclude that the power to withdraw encompasses suspension as a lesser, included power. And, that may be a fair argument, especially considering the emphasis the law of treaties places on treaty stability. It makes sense to favor suspension over withdrawal where treaty stability is less threatened by suspension, since it implies a possible resumption of treaty relations unavailable post-withdrawal. As such, why not read rights and processes pertaining to withdrawal to apply equally, albeit implicitly, to suspension? Of course, that argument doesn’t find much support in the VCLT, which is quite careful in separating out suspension and withdrawal rights. I’ve not had a chance to go back and look at the VCLT negotiating history or the standard treatises on this question, and would welcome input from those who might know more about whether and how suspension and withdrawal rights operate interchangeably, as it has important implications for Russia’s legal position here.

Separately, I still wonder if CFE Art. XIX(2) is the only ground on which Moscow is resting its suspension. As a party to the VCLT, Russia has other grounds at its disposal that, unlike Art. XIX(2), explicitly authorize suspension (e.g., material breach or impossibility, but not fundamental change of circumstances, which only references a right of withdrawal). To take advantage of these bases for suspending its CFE obligations, VCLT Art. 65 requires Russia to notify the other parties of the grounds for suspension at least three months before taking the contemplated action. Since 150 days well exceeds the three-month notice period, might Russia’s treaty lawyers be thinking about adding additional bases for suspension beyond CFE Art. XIX if other parties challenge its right to suspend. So far, however, none of the other states have done so — for example, the U.S. yesterday merely expressed “disappointment” with Russia’s move, suggesting U.S. reluctance to cabin another state’s right to suspend or withdraw from treaties given recent U.S. interests in having a broad power to suspend/withdraw from treaties (see, e.g., the ABM Treaty).

Finally, most of the attention on Russia’s CFE suspension has focused on the legal and political justifications for suspension, without much attention to the question of why Russia opted to suspend its CFE participation in lieu of withdrawing given the overt language of Art. XIX. Certainly, the explanation could be political — Russia wanted to send a signal of its displeasure with the slow pace of ratification of the Adaptation Agreement and/or its objection to NATO encroachment into areas Russia regarded as within its sphere of influence. But, alternatively, could the reason for suspension in lieu of withdrawal derive from Russian domestic law? According to W.E. Butler’s translation (available in my book on National Treaty Law & Practice), Russia’s 1995 Federal Law on International Treaties of the Russian Federation provides different rules for terminating/suspending treaties depending on who concluded them (e.g., the Russian Federation, the Government of the Russian Federation, or an agency of the Government of the Russian Federation). Moreover, according to Article 37(4),

The operation of an international treaty of the Russian Federation, the decision concerning consent to the bindingness of which for the Russian Federation was adopted in the form of a Federal law, may be suspended by the President of the Russian Federation in instances requiring the taking of urgent measures, with the obligatory immediate informing of the Soviet of the Federation and the State Duma and the submission to the State Duma of a draft respective Federal Law.

I find it interesting that for these treaties, the federal law only allows suspension, not withdrawal (indeed, if the State Duma rejects the draft law concerning suspension, the treaty gets renewed). Now, I’m no expert in Russian law, and I don’t know whether the CFE Treaty was adopted into Federal Law or not (and I also don’t know whether the fact of the CFE’s conclusion by the USSR rather than the Russian Federation changes the analysis), so I’m not suggesting that this has to be the reason for Russia’s decision to suspend rather than withdraw from the CFE. But, I’d at least like to suggest that Russian law could provide an explanation for Russia’s actions yesterday and would welcome insights from readers on this otherwise thorny question.

[Correction — Notwithstanding my characterization to the contrary and although not listed alongside the conditions for termination or withdrawal in VCLT Art. 62(1); VCLT Art. 62(3) makes clear that suspension is an available option in the rare case a fundamental change of circumstances can be established.]