REHEATING THE COLD WAR

REHEATING THE COLD WAR

By: Bonny Birkeland, Volume 103 Staff Member

“We really have no choice. Perhaps we can negotiate a different agreement adding China and others, or perhaps we can’t. And in which case, we will outspend and out-innovate all others by far.”[1]

— President Trump

At the State of the Union Address, President Trump reiterated his hardline approach to Russia’s noncompliance with the Intermediate-Range Nuclear Force Treaty (“INF”): The United States has suspended its treaty obligations effective February 2, 2019 and will withdraw in six months if Russia does not return to total compliance.[2] The withdrawal, coupled with Trump’s rhetoric advocating for revamped weapons production in the absence of a new treaty, marks the end of nearly a half-century of traditional nuclear arms control.[3] As the United States shies from its international obligations and returns to a Cold-War mindset, it is vital to determine whether it is lawful for the President to unilaterally withdraw from an international treaty.[4] To fully comprehend the contours of that determination, it is necessary to understand the INF, its obligations, pitfalls, and the legal basis for withdrawal internationally and domestically. For with the downfall of the INF, a new arms race will begin.

I. The INF’s Origins

In 1987, the INF was signed by United States President Reagan and Union of Soviet Socialist Republics President Gorbachev to eliminate intermediate- and shorter-range missiles.[5] The Treaty was heralded as a milestone and the first step towards USSR and United States nuclear disarmament.[6] Unlike previous treaties, the INF introduced intrusive monitoring systems into its verification regime in conjunction with on-site inspections of select missile assembly facilities and all storage centers, repair, test, and elimination facilities.[7] These safeguards in the INF helped to bring about the end of the Cold War, and under its terms, the United States and the Soviet Union decommissioned 2,692 missiles and launchers.[8] Despite its necessity in upholding the nonproliferation regime, the INF is in its dying throes. The demise of the landmark INF unfolds in roughly two parts: The alleged Russian non-compliance and the large-scale arms buildup by non-Signatories.

A. The Alleged Russian Violation

In 2014, the United States began accusing Russia of noncompliance. The United States State Department released a report stating “the Russian Federation [was] in violation of its obligations under the [1987 Intermediate-range Nuclear Forces] 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.”[9] However, the report did not offer any material details regarding the offending missile or cite any evidence.[10] The 2015, 2016, 2017, and 2018 State Department reports noted the same violations, but similarly lacked substantive evidence of the offending missile.[11] In December 2018, Secretary of State Pompeo offered a concrete statement of Russia’s violations: Russia had deployed several battalions of the 9M729 missile.[12]The U.S. Director of National Intelligence, Daniel Coats, corroborated, “[Russia] began the covert development of an intermediate-range, ground-launched cruise missile designated 9M729 probably by the mid-2000s” and it “had completed a comprehensive flight test program” with launches from both fixed and mobile launchers by 2015.[13]If Russia did in fact deploy an INF-prohibited missile, as the Trump Administration claims, that would perhaps qualify as a material breach under the INF and it may provide Trump with the legal fodder to withdraw from the treaty.[14] But a haphazard retreat from the INF would likely have destabilizing consequences for the United States and its allies by virtue of a renewed arms race between the United States, Russia, and China.

B. An Emergent Security Dilemma

Over the last decade, Russia’s growing concerns relating to the increased militarization of its unbound neighbors has soured its approach towards the INF.[15] At the time the INF was signed, China was still a relatively small, unsophisticated military power.[16] Yet, unconstrained by the treaty which fettered the United States and Russia, China rapidly expanded its missile capacity.[17] As early as 2005, President Vladimir Putin complained it was not reasonable the United States and Russia should be prohibited from having ground-launching intermediate range-missiles when other countries had no such prohibitions.[18] The Russians proposed the Treaty be made multilateral.[19] Just recently, on October 31, 2018, the U.S. National Security Council echoed those earlier Russian sentiments in U.S.-national-security-centric terms, “[T]he United States cannot accept being bound not to produce, possess or deploy these weapons while Russia, Iran, China, North Korea and others act without restraint.”[20] While the third-country problem raised by both Russia and the United States is real, it is not easily resolved.

Making the INF a multilateral treaty is overly ambitious and dangerously unrealistic. The success of a multilateral treaty would hinge upon China’s accession, and if China refused (which it likely would), so would India; if India fails to accede, Pakistan would surely reject the limitations.[21]Moreover, effectively creating a comprehensive multilateral treaty is further frustrated by the Executive Branch’s inciting rhetoric promising to “outspend and out-innovate all others.”[22] The United States’ suspension and imminent withdrawal from the INF has given Russia the legal and political space to avidly pursue militarization previously prohibited under the INF. With a new arms race looming, the question, “Can President Trump unilaterally withdraw from the INF?” must be answered.

II. The Legal Basis for Withdrawal

The legal basis for US withdrawal is derived from customary international law, the INF Treaty terms, and domestic law. Under Article 60(1) of the Vienna Convention on the Law of Treaties—which is widely considered customary international law—the United States may suspend or terminate the treaty if a material breach occurs.[23] If Russia did deploy a 9M769 in violation of the treaty, that could qualify as a material breach. Otherwise, the administration must follow the withdrawal procedure outlined in Article XV of the treaty and “give notice of its decision to withdraw to [Russia] six months prior to withdrawal.”[24] The notice must “include a statement of the extraordinary events the [United States] regards as having jeopardized its supreme interests.” (emphasis added).[25]The only element at issue from the INF would be “extraordinary events.” The United States’ claim of protracted Russian non-compliance and China’s growing missile depositary likely fall within “extraordinary events” language mandated by Article XV.[26] Therefore, from an international law perspective, it seems there is no significant legal impediment barring treaty termination.

Under domestic law, the answer is somewhat murkier. The United States Constitution lays out the process for entering into treaties, but it is silent with respect to which branch has the power to terminate treaties.[27] Throughout the twentieth century, executive-branch practice and congressional inaction have led to a general acceptance that presidents have unilateral power to terminate treaties.[28] The few cases that have challenged such executive actions have failed to reach the merits due to problematics with standing, ripeness, and the political-question doctrine.[29] Yet, if a challenge to Trump’s unilateral withdrawal from the INF Treaty were to reach the merits, the courts would likely view it through the three-part Youngstown framework.[30] Unless Congress proposes legislation in opposition of withdrawal from the INF, in which case President Trump would be acting with the “lowest ebb” of his Presidential powers, President Trump is acting in the “zone of twilight.”[31] To support the validity of his executive power claim, Trump will need to argue Congress has impliedly acquiesced. To this end, Trump will likely point to Congress’s repeated concerns over Russia’s INF Treaty violations.[32] While Congress has explicitly stated that Russia’s material breach merits suspension, its response to those concerns has been to urge the President to take action to bring the Russian Federation back into compliance rather than leave the INF point blank.[33]However, at issue, is whether Congress acquiesced, implicitly endorsed, or explicitly authorized treaty withdrawal. For that inquiry, the most persuasive piece of Congressional authorization (or lack thereof) was Congress’s enactment of the Intermediate- Range Nuclear Forces (INF) Treaty Preservation Act of 2017.[34] As the name suggests, this Act implies that Congress opposes withdrawal and endorses preserving the INF. But this analysis is subject to change. A lot may happen in the upcoming months as Trump still has until July 2, 2019 before formally serving notice of withdrawal. But one thing is sure: If the United States continues to undercut international legal regimes and back away from international cooperation, the Cold War will reheat, and this time, survival is not certain.

Conclusion

President Trump’s decision to suspend and withdraw from the INF Treaty has significant ramifications for current and future international peace and security. Under the guise of “we have no choice,” the United States has masked its withdrawal as a moral decision rather than a strategic one.[35] While international law likely permits the United States’ withdrawal, it is less certain the Executive has the power to unilaterally terminate international treaties. Ultimately, it will be up to Congress to challenge and prevent Executive action. Despite the perhaps lawfulness of Trump’s actions, the better question is whether his actions are prudent.

  1. Trump on INF Treaty: Either a New Agreement, or ‘Out-Innovating’ Others, Radio Free Eur. (Feb. 6, 2019),https://www.rferl.org/a/trump-state-of-the-union-russia/29753986.html
  2. See Julian Borger, Donald Trump Confirms US Withdrawal from INF Nuclear Treaty, Guardian (Feb. 1, 2019), https://www.theguardian.com/world/2019/feb/01/inf-donald-trump-confirms-us-withdrawal-nuclear-treaty (stating Trump left the door open for the Treaty to be salvaged in the six-month period, but only if “Russia destroys all of its violating missiles, launchers and associated equipment”); see also Michelle Kelemen & Steve Inskeep, Trump Administration Announces U.S. Will Pull Out of INF Treaty, NPR (Feb. 1, 2019), https://www.npr.org/2019/02/01/690649756/trump-administration-announces-u-s-will-pull-out-of-inf-treat (“We provided Russia an ample window of time to mend its ways and for Russia to honor its commitment. Tomorrow that time runs out. Russia has refused to take any steps to return real and verifiable compliance over these 60 days. The United States will therefore suspend its obligations under the INF Treaty effective February 2.”). 
  3. David E. Sanger & William J. Broad, U.S. Suspends Nuclear Arms Control Treaty with Russia, N.Y. Times (Feb. 1, 2019), https://www.nytimes.com/2019/02/01/us/politics/trump-inf-nuclear-treaty.html
  4. In an op-ed for the NY Times, former USSR President Mikhail Gorbachev expressed his displeasure at both US and Russian actions. Mikhail Gorbachev, The New Nuclear Arms Race, N.Y. Times (Oct. 25, 2018), https://www.nytimes.com/2018/10/25/opinion/mikhail-gorbachev-inf-treaty-trump-nuclear-arms.html. He criticized Trump and “[t]he United States [for], in effect tak[ing] the initiative in destroying the entire system of international treaties and accords that served as the underlying foundation for peace and security following World War II.” Id. 
  5. Id. Editorial Desk, ‘Getting Tough’ Over a Missile Pact Could Weaken America, N.Y. Times (Oct. 24, 2018), https://www.nytimes.com/2018/10/24/opinion/trump-russia-inf-putin-bolton-china-missiles-.html (“The treaty banned all American and Soviet missiles with ranges between 500 and 5,500 kilometers (310 to 3,417 miles).”). 
  6. See Gorbachev, supra note 4. 
  7. Congressional Research Service, Russian Compliance with the Intermediate Range Nuclear Forces (INF) Treaty: Background and Issues for Congress 14 (2019), https://fas.org/sgp/crs/nuke/R43832.pdf
  8. See Congressional Research Service, supra note 7, at 14 (“The Soviet Union destroyed 1,846 missiles, including 654 SS-20s, whereas the United States destroyed 846 missiles.”); see also Editorial Desk, supra note 5. 
  9. Congressional Research Service, supra note 7, at 2 (quoting U.S. Department of State, Adherence to and Compliance with Arms Control, Nonproliferation, and Disarmament Agreements and Commitments (2014), https://www.state.gov/t/avc/rls/rpt/2014/230047.htm#inf2). 
  10. Id. at 14. 
  11. Id. 
  12. Id. 
  13. Id. 
  14. See, e.g., Thomas Grove, Putin Threatens Arms Race as U.S. Prepares to Exit Nuclear Treaty; U.S. Gives Moscow Deadline to Comply with Pact; Russia Says It Will Respond if Washington Withdraws from the Treaty, Wall St. J. (Dec. 5, 2018), https://www.wsj.com/articles/putin-threatens-arms-race-as-u-s-prepares-to-exit-nuclear-treaty-1544012990 (“Hard facts about Russia’s development and use of banned missiles are difficult to pin down, said Pavel Podvig, a senior research fellow at the U.N. Institute for Disarmament Research.”). 
  15. Jonathan Stevenson, Editor, The Demise of the INF Treaty, 24 Int’l Inst. Strategic Stud. (2018). 
  16. Sanger & Broad, supra note 3. 
  17. Ninety-five percent of its missiles are within the INF range. See Editorial Desk, supra note 5. 
  18. See Jonathan Stevenson, supra note 15. 
  19. Id. 
  20. Id. (quoting the US National Security Council Press Guidance on the INF Situation (2018) (“The ‘others’ could include India, Pakistan and Israel, and more than 20 other countries that possess basic Scud ballistic-missile technology.”). 
  21. See Sanger & Broad, supra note 3. 
  22. Trump on INF Treaty: Either a New Agreement, or ‘Out-Innovating’ Otherssupra note 1. 
  23. Vienna Convention on the Law of Treaties art. 60(1), May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980). 
  24. Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles [INF Treaty] art. 15, U.S.-U.S.S.R., Dec. 8, 1987, 1657 U.N.T.S. 485. 
  25. Id. 
  26. Hilary Hurd & Elena Chachko, U.S. Withdrawal from the INF Treaty: The Facts and the Law, Lawfare Blog (Oct. 25, 2018, 11:03 AM), https://www.lawfareblog.com/us-withdrawal-inf-treaty-facts-and-law
  27. U.S. Const. Art. II, § 2. 
  28. See Hurd & Chachko, supra note 26. 
  29. See id. (outlining two cases—Goldwater v. Carter, 444 U.S. 996 (1979) and Kucinich v. Bush, 236 F. Supp. 2d 1 (D. D. C. 2002)—in which courts have been called to address the issue of unilateral termination. In Goldwater, the Supreme Court declined to rule on the question of whether President Carter’s unilateral termination of the 1954 Mutual Defense Treaty with Taiwan was constitutional. Instead, the Court found the case was a non-justiciable political question. In Kucinic, President George W. Bush’s case on the unilateral withdrawal from the Anti-Ballistic Missile Treaty was dismissed by the U.S. District Court for the District of Columbia on standing and political-question grounds); see also Scott R. Anderson, Three Ways to Leave the INF Treaty, Lawfare Blog (Oct. 29, 2018, 1:18 PM), https://www.lawfareblog.com/three-ways-leave-inf-treaty
  30. Id. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–39 (1952). 
  31. Youngstown, 343 U.S. 579 at 637–39. 
  32. John McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, §§ 1243–45 (2019). 
  33. Id. 
  34. Intermediate-Range Nuclear Forces (INF) Treaty Preservation Act of 2017, S. 430, 115th Cong. (2017). 
  35. But see Eli Lake, Trump Is Right to Withdraw from that Nuclear Treaty, Bloomberg Opinion (Oct. 22, 2018), https://www.bloomberg.com/opinion/articles/2018-10-22/russian-nuclear-deal-trump-right-to-withdraw-from-inf-treaty (maintaining Trump made the right choice to suspend the United States’ INF treaty obligations in the face of Russian violations and likening Trump’s strategy to Reagan’s decision to enhance intermediate-range missiles in Europe); Nathan Levine, Why America Leaving the INF Treaty Is China’s New Nightmare, Nat’l Interest (Oct. 22, 2018), https://nationalinterest.org/blog/buzz/why-america-leaving-inf-treaty-chinas-new-nightmare-34087 (arguing development and placement of intermediate-range missiles in United States’ allies in the Pacific would enable the United States to curb China’s aggression in the Pacific rim).