Some Remarks on the US Withdrawal from the INF Treaty

[Maria Xiouri is a Lecturer in Law at the University of Bedfordshire.]

On 2 August 2019 the US Secretary of State, Michael Pompeo, announced that the US withdrawal from the Treaty on the elimination of the intermediate-range and shorter-range missiles signed on 8 December 1987 between the US and the Union of Soviet Socialist Republics (‘INF Treaty’) took effect.This post briefly analyses the factual and legal background of this withdrawal.

First step: suspension by the US of ‘its obligations’ under the INF Treaty

In 2014 the US first officially stated that the Russian Federation, as the successor State of the Soviet Union, was in violation of its obligations under the INF Treaty ‘not to possess, produce, or flight-test a ground-launched cruise missile (GLCM) with a range capability of 500 km to 5,500 km, or to possess or produce launchers of such missiles’ (see here, p. 8).Four years later, on 4 December 2018, the US claimed that the Russian Federation was in material breach of the INF Treaty, a claim that was supported by NATO Member States, andthe US embassy provided a diplomatic note (reproduced here, pp. 117-8) to the Russian Federation, according to which, unless Russia returned to full and verifiable compliance with the INF Treaty in 60 days from the date of the note, the US ‘would suspend its obligations under the Treaty between the United States and other Treaty Parties’ on the ground of the above-mentioned alleged material breach (emphasis added).Until then there was no reference to material breach by the US and the question was whether the US would respond to the alleged Russian breaches on the basis of the customary law of treaties as reflected in Article 60 of the 1969 Vienna Convention on the Law of Treaties (‘VCLT’; the US is not a party to the VCLT)—which would require a material breach of the Treaty—or on the basis of the customary law of State responsibility, by taking countermeasures against Russia pursuant to Articles 49 et seq of the 2001 Articles of the International Law Commission on the Responsibility of States for Internationally Wrongful Acts (‘ARSIWA’), in which case the breach of obligations under the INF Treaty would not need to be material (see also Duncan B. Hollis). According to theUS, the obligations stipulated in Articles I, IV and VI of the INF Treaty, which had been allegedly breached by Russia, were ‘essential to the accomplishment of the Treaty’s object and purpose’ and therefore their breach constituted a material breach of the INF Treaty (see here, p. 16); according to the definition of material breach as stipulated in Article 60(3)(b) VCLT, ‘A material breach of a treaty…consists in:…(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty’.

In any event, according to the US, Russia did not return to compliance, and on 2 February 2019 the US announced that it ‘suspended its obligations under the INF Treaty’, the suspension taking effect on the same day.Since the INF Treaty became a multilateral treaty following the disintegration of the USSR (among the US, the Russian Federation, Belarus, Kazakhstan and Ukraine, see here; see, however, the comment of the MFA of Ukraine here), the US suspension seems to have been effected on the basis of customary international law as reflected in Article 60(2)(c) VCLT, pursuant to which:

2. A material breach of a multilateral treaty by one of the parties entitles…

(c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.

A disarmament treaty such as the INF Treaty is a characteristic example of a treaty having the character required by the aforementioned provision.

Nevertheless, the terminology used creates some confusion: the US referred to suspension of its own obligations under the INF Treaty, while in the case of suspension under Article 60 VCLT, as in any case of suspension of the operation of a treaty under the VCLT, the treaty is not in operation vis-à-vis all parties involved in the suspension. Article 72(1) VCLT provides that the suspension of the operation of a treaty:

releases the parties between which the operation of a treaty is suspended from the obligation to perform the treaty in their mutual relations during the period of suspension;…(emphasis added)

In other words, the obligations of Russia and of the other States parties towards the US under the INF Treaty are also suspended.

On its part, the Russian Federation denied that it had breached the INF Treaty and claimed that it was the US that had committed breaches of the Treaty. On 18 June 2019 the Russian Duma adopted a federal law (see here) on the suspension by the Russian Federation of its participation in the INF Treaty; according to a statement by a Russian official, this decision was made ‘in response to a gross violation of the Treaty by the US’. Therefore, the legal basis of the suspension by Russia was Article 60 VCLT.

These suspensions highlight the problems that might be created in practice with regard to the notion of suspension of the operation of the treaty on the grounds of its material breach. If the US legally suspended the INF Treaty with respect to itself on the grounds of material breach by Russia, as stated above the Treaty was also suspended with regard to Russia in its relations with the US. Moreover, in such a case the US suspension would not be a material breach and would not entitle Russia to suspend the INF Treaty with respect to itself. Of course, by claiming that the US suspension was a material breach of the INF Treaty and by ‘suspending its participation’ in the INF Treaty, Russia purported to also suspend the Treaty in its relations with the other States parties to the Treaty. If the US considered that only its obligations under the INF Treaty were suspended, while Russia and the other States parties continued to be bound by the Treaty towards the US during the period of suspension, this suspension did not follow the law of treaties as reflected in the VCLT.

Second step: US withdrawal from the INF Treaty

On 2 February 2019 the US also notified Russia and the other Treaty parties that it would withdraw from the INF Treaty in six months, pursuant to Article XV of the Treaty, stating that ‘If Russia does not return to full and verifiable compliance with the Treaty…in this six-month period, the Treaty will terminate’ (emphasis added).

The US based its withdrawal on Article XV(2) of the INF Treaty, according to which ‘Each 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’. Can the ‘continued noncompliance’ with the INF Treaty by Russia be considered as such an ‘extraordinary event’? In the literature it has been noted with regard to similar clauses in arms control treaties that ‘The question whether events are “extraordinary”, whether they are “related to the subject matter of this Treaty”, and whether they “have jeopardized [its] supreme interests” are all referred exclusively to the unilateral decision of the withdrawing party’ (Abram Chayes, ‘An Inquiry into the Workings of Arms Control Agreements’ (1972) 85 Harv. L. Rev. 905, 957-8; see also Laurence R. Helfer, ‘Exiting Treaties’ (2005) 91 Va. L. Rev. 1579, 1598). Of course, perhaps the reason for the US withdrawal from the INF Treaty was not only the alleged material breach of the Treaty by Russia, but also the fact that the US considered that the INF Treaty was to a certain extent obsolete, since China was not a party to it and therefore can develop INF Treaty-range missiles, which may have been considered as posing a threat on the US (see here and here).

It should be noted that since the INF Treaty, following the disintegration of the USSR, became a multilateral treaty, and although the US had already claimed that Russia had committed a material breach of the INF Treaty, it could not terminate its participation in the Treaty on the basis of the law of treaties as reflected in Article 60 VCLT, but only suspend the Treaty with respect to itself. Presumably for this reason it resorted to withdrawal from the INF Treaty on the basis of Article XV(2) thereof.

As already mentioned, the US eventually withdrew on 2 August 2019, at the end of the six-month period, from the INF Treaty. Russia, while disputing the legality of the US withdrawal on the basis that it had not breached the INF Treaty contrary to the US, it nevertheless declared that the Treaty ‘has been terminated for all parties: the US, Russia, Belarus, Kazakhstan and Ukraine’ (see here and here). Although, as pointed out above, the US also referred to termination of the Treaty, it is not clear on the basis of which rule of treaty law this termination took place. Clearly, since the two key States parties in the Treaty were the US and Russia, the US withdrawal deprived the Treaty of its purpose; perhaps the above-mentioned statement by Russia that the Treaty had been terminated, combined with similar statements by Belarus and Ukraine, could be considered as application of Article 54(b) VCLT, namely that the INF Treaty was terminated by consent of the (remaining) parties.

In any case, the termination of the INF Treaty opens the door to redeployment of INF Treaty-range nuclear missiles, which is a dangerous prospect. The UN Secretary-General António Guterres expressed his ‘deep regret’ at the ending of the INF Treaty, noting that the INF Treaty ‘contributed tangibly to the maintenance of peace and stability internationally and especially in Europe’ and emphasised the need ‘to urgently seek agreement on a new common path for international arms control’. It is to be hoped that a new treaty will take the place of the INF Treaty in order to maintain global peace and security and that States will show more commitment in upholding the principle pacta sunt servanda.