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Commentary | 23 November 2018

Preventing the US INF withdrawal: political and legal dimensions

Image of Carlo Trezza

Carlo Trezza |Former Ambassador for Disarmament and Non-Proliferation, Former Chairman of the Missile Technology Control Regime

INF NATO Russia-West Relations United States Global Security ELN

The INF Treaty (Intermediate Range Nuclear Forces Treaty), signed during the final years of the Cold War in 1987, marked a milestone in nuclear disarmament. Although a bilateral agreement, the Treaty’s guiding principles and provisions were preliminarily agreed by the US and its NATO allies within the framework an ad hoc Special Consultative Group (SCG). This represented a significant moment in transatlantic cooperation. No consulting mechanism equivalent to the NATO SCG was established to discuss the US withdrawal and next steps.

President Trump’s announcement that the US would withdraw from the Treaty puts this achievement at risk.

US National Security Adviser John Bolton stated during a recent visit to Moscow that no formal withdrawal steps had been taken. Before any irreversible steps are made, it is worth examining the INF Treaty’s legal withdrawal provision with the view to preventing this unfortunate development.

Article XV of the Treaty states that each party has the right to withdraw “if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests”. Notice of the decision must be given six months prior to withdrawing from the Treaty. Such notice “shall include a statement of the extraordinary events the notifying Party regards as having jeopardized its supreme interests.”

This language is identical to Art. 15 of the 1972 Anti-Ballistic Missile (ABM) Treaty. In 2001, the US withdrew from the ABM treaty through a unilateral Presidential decision that excluded Congress. A federal court dismissed a suit brought by members of the House of Representatives challenging the constitutionality of that decision. This ABM precedent will likely be followed, particularly since John Bolton was the principal architect of the 2001 withdrawal.

The Treaty withdrawal language was inherited, with some adjustments, from art 10 of the Nuclear Non-Proliferation Treaty (NPT). In 2003, this was invoked by the DPRK to withdraw from the NPT. The legitimacy of the step was challenged by several countries, in particular the US which called the withdrawal a threat to international peace and security. At the time the US pushed for the intervention of the UN Security Council. Current opponents to the INF withdrawal could follow this example.

As long as the withdrawal notice is not given, we will not know the official reason used to justify the “extraordinary events” jeopardizing the US’ supreme interests. In his announcement, President Trump declared, “Russia has violated the agreement. They’ve been violating it for many years and I don’t know why President Obama didn’t negotiate or pull out.” This assessment seems to be now shared by all NATO countries. Russia will certainly challenge such statements and respond that it is not Moscow but rather Washington that is violating the Treaty. Last month at the UN General Assembly (UNGA) First Committee, Russia presented a draft resolution on the preservation of and compliance with the INF Treaty. That initiative failed for procedural reasons but Moscow will likely renew it at the UNGA plenary meeting in December or in the UN Security Council.

Both the US and Russia legitimately feel disadvantaged as the only countries bound by the INF’s prohibitions. However, with their enormous and diversified nuclear arsenals, neither Russia nor the US need to deploy new land-based INF systems to strengthen their nuclear deterrence. Reciprocal accusations of violation are also not the best way to entice other countries to join the treaty. The chances that China, which has a much more limited nuclear arsenal, might join, are slim. The demise of the treaty could even be used as a justification for an increase of China’s nuclear potential.

As before, the collapse of the INF Treaty would render Europe the territory of choice for the deployment of INF delivery systems. And it would be the target, as Putin bluntly told Italian Prime Minister Conte, of Russian nuclear missiles. If Washington wants full European support, it needs to initiate a genuine consultation process with its European Allies, instead of post factum briefings. Such a dialogue could include the question of addressing Russia’s suspicions about NATO Missile Defence installations in Europe, including through offers of increased transparency. A consulting mechanism equivalent to the 1980s NATO SCG could be considered.

The actual withdrawal process has not yet started. It will become irreversible six months after notice has been given. During this period the notice can be suspended and subsequently resumed, or abandoned. There is still time, albeit limited, for Europeans to press Washington to continue to postpone the withdrawal notification and call on both the US and Russia to make additional diplomatic efforts to avoid the Treaty’s collapse. Europeans should also signal to Russia that they treat the INF non-compliance seriously and there will be further consequences to its relations with Europe if Moscow fails. They should ask Moscow to use the narrow window still available to find a solution. An extraordinary meeting of the Special Verification Commission foreseen by Art Xlll “to resolve questions relating to compliance with the INF obligations” should be considered. Moreover, an effort could be made at the legislative level, as we may now find a more responsive interlocutor in the new US House of Representatives following the US midterm elections.

Despite the fact that no legal mechanism can block the US decision, there is still a window of opportunity to save the INF treaty. It should not be missed.

Dr. Stefano Borgiani, Executive Secretary of the Italian European Leadership Network Group cooperated in drafting this article.

The opinions articulated above also do not necessarily reflect the position of the European Leadership Network or any of its members. The ELN’s aim is to encourage debates that will help develop Europe’s capacity to address pressing foreign, defence, and security challenge.