International Law

What’s Happening with the INF Treaty?

By Scott R. Anderson
Thursday, December 13, 2018, 11:26 AM

On Dec. 4, Secretary of State Mike Pompeo brought an end to weeks of ambiguity by finally laying out the administration’s plans for the future of the Intermediate-Range Nuclear Forces (INF) Treaty—or at least he tried. The failure of the United States to take any formal steps toward exiting the non-proliferation treaty after President Trump announced his intent to do so in October left some question as to when and how the Trump administration intended to follow through. Pompeo’s announcement gave Russia 60 days to stop violating the agreement, setting out a clear timeline for U.S. action. But inconsistencies within Pompeo’s remarks and across other official U.S. statements leave some confusion about what exact legal remedy the United States intends to pursue once that time is up.

Originally an agreement between the United States and the Soviet Union to limit both parties’ development and deployment of ground-based medium-range missile technology, the INF Treaty persists today as a bilateral agreement with Russia—or, possibly, a multilateral agreement between the United States and several Soviet successor states, with Russia being the primary actor of concern. As Hilary Hurd and Elena Chachko wrote on Lawfare, the United States has openly accused Russia of violating the INF Treaty every year since 2014. This creates several possible legal routes through which the Trump administration could seek to exit the INF Treaty, which I describe in detail in a separate piece.

Notably, Pompeo issued his Dec. 4 remarks from NATO’s Brussels headquarters, where he was attending meetings with the foreign ministers of other NATO member states. According to media reports, the Trump administration had originally planned to announce an immediate exit from the treaty but was persuaded to take a more incremental approach by European allies. As part of this compromise, NATO members issued a statement of support endorsing U.S. claims that Russia is in “material breach” of the INF Treaty. Citing this support in his remarks, Pompeo reiterated the U.S. case that Russia is in violation of the INF Treaty, then stated:

These violations of the INF Treaty cannot be viewed in isolation from the larger pattern of Russian lawlessness on the world stage. The list of Russia’s infamous acts is long: Georgia, Ukraine, Syria, election meddling, Skripal, and now the Kerch Strait, to name just a few.

In light of these facts, the United States today declares it has found Russia in material breach of the treaty and will suspend our obligations as a remedy effective in 60 days unless Russia returns to full and verifiable compliance. . . .

[T]he burden falls on Russia to make the necessary changes. Only they can save this treaty. If Russia admits its violations and fully and verifiably comes back into compliance we will, of course, welcome that course of action. But Russia and Russia only can take this step.

Pompeo’s assertion that the United States plans to “suspend [its] obligations as a remedy” to Russia’s “material breach” implies a specific legal remedy—and not one that most observers were expecting. Under general rules of international law, a party to a treaty may suspend its participation in a treaty when another party is in material breach, defined as a “violation of a provision essential to the accomplishment of the object or purpose of the treaty.” Pompeo’s remarks represent the first time that the United States has openly declared Russia to be in material breach—as opposed to simply “in violation”—underscoring Pompeo’s intent to move forward with a related legal remedy.  Suspension, however, wouldn’t remove the United States from the INF Treaty, whose obligations would snap back into place as soon as Russia comes back into compliance. This would make make this remedy a potentially significant departure from the approach Trump endorsed in his Oct. 20 statement, in which he said the United States intended to “terminate the agreement” and “pull out”—all terms that usually mean a clean break from the treaty altogether.

But Pompeo did not stop there. After completing his prepared remarks, he took questions from the media and provided some additional details regarding U.S. intentions:

[A]s I said in my remarks, we would welcome a Russian change of heart, a change in direction, the destruction of their program and their follow-on continuance of the terms of the treaty. And so over the next 60 days they have every chance to do so. And we would welcome that.

I will tell you, our European partners appreciate that extra time. We work closely with them. They asked for an extended period, and we, in our efforts to make sure that we had complete unity – and I will tell you, as you speak to the other 28 ministers who are here today, there is complete unity around this – we believe this is the right outcome. The six-month period will begin to run 60 days from now. During the 60 days, we will still not test or produce or deploy any systems, and we’ll see what happens during this 60-day period.

Pompeo’s discussion of a “six-month period” is undoubtedly a reference to Article XV of the INF Treaty itself, which provides for a separate means of exit: withdrawal. Under Article XV, any party to the INF Treaty may exercise “the right to withdraw ... if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests” so long as it provides a written explanation of those events at least six months in advance of withdrawing. But withdrawal is a very different remedy than suspension. It would permanently sever U.S. rights and obligations under the treaty.

Curiously, other official State Department statements—including the live-tweet of Pompeo’s remarks by the U.S. Mission to NATO, as well as a related official fact sheet and a subsequent briefing by senior State Department officials—only discuss suspension, and make no mention of withdrawal. Pompeo only referenced the possibility of withdrawal in his unprepared remarks, which are less likely to have been reviewed and cleared on by legal and subject matter experts. This may be a sign that the decision to withdraw has not yet been fully vetted or formally finalized. Perhaps Pompeo simply got ahead of the formal policy-making process in describing that next step.

A more likely explanation, however, is that the United States intends to pursue both suspension and withdrawal in tandem. While withdrawal allows for eventual permanent exit from the INF Treaty, the United States would normally have to remain in compliance during the six-month advance notice period. But suspending the treaty’s obligations on the grounds of Russia’s material breach would provide a means of evading this requirement. The combined effect would be similar to the “immediate withdrawal” reportedly preferred by Trump and National Security Advisor John Bolton, which does not directly correspond to a legal remedy. (If the INF Treaty were a bilateral treaty with Russia, then the United States could perhaps terminate it altogether in response to Russia’s material breach. But if the United States views the treaty as multilateral—or, perhaps more likely, disagrees with other countries as to its status—then termination for breach would require coordination with other treaty parties, which could prove burdensome.)

If the Trump administration is in fact planning to pursue suspension and withdrawal simultaneously, then  the focus on suspension in most official U.S. statements may simply be a matter of emphasis so as to avoid minimize the irking of European allies who still have reservations about ending the treaty altogether. Or it may simply reflect the fact that the speakers and authors of those statements are policy-makers who are not as sensitive to such legal nuances and are using suspension as shorthand for the combined measures.

From a policy perspective, the difference between suspension and suspension combined with withdrawal is substantial. Suspension alone would still allow the United States to develop and deploy intermediate-range missiles so long as Russia remains in material breach, providing the United States the ability to “respond to Russian violations” in kind and “hold them accountable” that Pompeo claimed it needs in his remarks. But it would also preserve the INF Treaty as a policy option for future presidential administrations, allowing them to lift suspension and restore mutual compliance with the treaty in the event that Russia were to come back into compliance after the 60-day ultimatum period has passed.

Suspension alone, however, would leave the United States in a treaty relationship that, in Pompeo’s words, “cede[s] [a] crucial military advantage to revisionist powers like China” by restricting the U.S. production of intermediate-range missiles based on the actions of Russia alone. Only a full exit from the treaty can permanently escape these obligations. And that’s what the Trump administration seems set to pursue by withdrawing alongside suspension. The reasons why have little to do with Russia’s actions. Instead, Russian violations are as much a vehicle for the administration to realize its broader strategic objectives as a motivation driving its actions.

Legally, the decision to pursue suspension and withdrawal in tandem has one additional consequence of note: opponents of the Trump administration’s policies have a full eight months (six months plus 60 days, per Pompeo’s statement) to act before the U.S. relationship with the INF Treaty is fully severed. This is particularly relevant for Congress, which has for the past several years incorporated legislation into annual National Defense Authorization Acts (NDAAs) urging suspension of the INF Treaty and directing the president to pursue measures intended to encourage Russia to come back into compliance. All this would be rendered moot if the United States withdraws.

This conflict with Congress could in theory make the president’s decision to withdraw vulnerable to legal challenge. Though presidents have exercised the authority to withdraw unilaterally in recent years, they have not done so in the face of opposed legislation. Under some legal theories, the president may only do so where he can show that treaty withdrawal is subject to “exclusive presidential control” under the Constitution—a hard case to make, as the Constitution does not explicitly address treaty withdrawal let alone vest that authority in the executive. Congress could amplify this legal vulnerability by enacting additional measures that more explicitly oppose withdrawal and authorizing counsel to represent them in related litigation so as to ensure standing. Even then, any such litigation would be unprecedented and the outcome far from certain. But the credible threat of a legal challenge could change the Trump administration’s strategic calculus and tip the scales away from withdrawal.

Even absent a legal challenge, the Trump administration’s approach means the debate over the future of the INF Treaty is not necessarily over. While suspension will allow the Trump administration to develop and deploy medium-range missiles after 60 days, it does not by itself end the INF Treaty or abandon the prospect of U.S.-Russian limitations on those arms. And even after the United States starts the withdrawal process, it can be stopped anytime before the six-month advance notice period is up. For all the sense of finality Pompeo sought to project, the long-term U.S. policy towards INF Treaty is not yet decided, and may yet be subject to change.