International Law

Deteriorating U.S.-Russian Relations and Treaty Compliance

By Alex Ely
Thursday, September 11, 2014, 3:28 PM

Proceeding in lockstep with a general chill in relations brought about by the Ukraine crisis, the United States and the Russian Federation are currently at odds over compliance with international arms treaties, most notably the Intermediate-Range Nuclear Forces Agreement (INF). Reuters reported that American and Russian officials will meet in Moscow today to discuss allegations that Russia violated the INF by test-firing a ground-launched cruise missile in violation of the treaty.

Many observers seem unsurprised by Russia’s alleged violations. Writing in the Wall Street Journal last month, Keith Payne and Mark Schneider argued that Russia’s policy was one of “compliance if convenient,” and contrasted Russian treaty behavior with that of the United States:

The INF violation fits into a long pattern of Soviet-Russian misbehavior that can only be described as "compliance if convenient." Moscow appears to observe arms-control commitments when convenient but violates them when not. This contrasts sharply with America's scrupulous adherence to the letter and often the supposed "spirit" of treaty commitments, long after Moscow has ceased to do so.

Even accepting the argument that America’s compliance record on international arms agreements is exemplary when contrasted with Russia’s (hardly a soaring compliment), there are a series of worrisome trends in American treaty behavior that deserve mentioning.

First, the United States still refuses to ratify the Comprehensive Nuclear Test Ban Treaty, despite being a signatory. Russia, on the other hand, ratified the agreement in 2000. Despite initially identifying the CTBT as a “top priority” during the President’s second term in March of 2013, the administration later acknowledged that getting Congress to move on the Test Ban fell somewhere between highly-unlikely and hopeless.

Second, the Obama Administration has struggled to push treaties through the Senate—as our colleague John Bellinger has chronicled here and here, arguing that the White House has failed to put the necessary muscle into both submitting treaties to the Senate in a timely fashion and in expending political capital to secure their ratification. With respect to arms control issues, in addition to the CTBT, the Senate has yet to ratify Protocols 1, 2, and 3 to the South Pacific Nuclear Free Zone Treaty (transmitted to the Senate in 2011), as well as Protocols I and II to the African Nuclear-Weapon-Free Zone Treaty (which the other four permanent members of the UN Security Council have signed and ratified).

What do these additional Protocols require of State parties that make them so controversial? Take the African NWFZ case. Protocol I provides that each party to that instrument undertakes not to use or threaten to use a nuclear explosive device against (1) any African NWFZ Treaty Party or (2) any territory within the zone for which a Protocol III Party is internationally responsible (France is currently the only party to Protocol III; Spain is the only other country eligible to become a party). In his message to the Senate accompanying the text to Protocol I, the President added the following caveat (on p. IX), presumably to encourage otherwise-skeptical legislators that the NWFZ Protocols would not affect America’s freedom of maneuver in its nuclear posture:

With respect to Article 1 of Protocol I, the United States of America will not use or threaten to use nuclear weapons against any Party to the Treaty that is a non-nuclear weapons State Party to the Nuclear Non-Proliferation Treaty (NPT) and in compliance with its nuclear non-proliferation obligations.”  (emphasis added).

In other words, the President suggested that the Senate include a Reservation in its assent to the Treaty that the United States would consider itself free (as a legal matter) to use nuclear force against some nuclear-weapons states party to the African NWFZ Treaty (but not to the NPT and/or in compliance with its obligations under that instrument), and by ratifying the Protocols was in reality only committing itself not to use nuclear weapons against the non-nuclear likes of Mauritius, Gabon and Lesotho. Notwithstanding that suggested Reservation, Sen. Jon Kyl, a Republican heavyweight on nuclear issues before his retirement in 2013, expressed deep concern that the President was “attempting to codify by international agreement his flawed nuclear weapons declaratory policy, which would limit the instances in which the President would use nuclear weapons to defend the United States and its allies from attack.” Three years later, no action has been taken on either of the two Protocols to the African NWFZ Treaty (Protocol II asks states to agree not to test nuclear weapons in African zone, and is presumably even more of a political non-starter in the Senate given the problems associated with the Test Ban Treaty).

Ultimately, recent US treaty behavior in the area of arms control may have little impact on the talks with the Russian Federation over its alleged violation of the INF. That said, the fact that relatively innocuous treaties related to arms control – including those that would lead to no change whatsoever in US law – have been languishing in the Senate for years with no action taken suggests that the United States may have some future difficulties in convincing other states to both join international treaty regimes and to comply with their requirements down the line.