Russia Suspends CFE Treaty Participation

On July 14, 2007, Russian President Vladimir Putin signed a federal decree "On Suspending the Russian Federation's Participation in the Treaty on Conventional Armed Forces in Europe and Related International Agreements."[1] Beyond the political fallout, Russia's decree raises several questions about when a state can suspend its treaty obligations and the legal consequences that flow from such a suspension.

The CFE Treaty and the Adaptation Agreement

The 1990 Treaty on Conventional Armed Forces in Europe ("CFE Treaty") is a landmark post-Cold War arms control agreement.[2] It established parity and a reduction of forces between member states of the North Atlantic Treaty Organization ("NATO") and the Warsaw Pact. The subsequent dissolution of the Warsaw Pact and NATO's expansion to include several former Warsaw Pact states, however, threatened to undermine the CFE Treaty's continuing relevance. To accommodate the shifting strategic environment, the parties met in Istanbul in 1999 and negotiated and concluded an "Adaptation Agreement" to amend the CFE Treaty.[3] Although Russia and a few other states have ratified it, the Adaptation Agreement has yet to come into force. NATO member states have delayed their ratifications pending Russian compliance with certain political commitments it made at Istanbul in concert with the Adaptation Agreement's conclusion (e.g., withdrawal of Russian forces from Georgia and Moldova).[4]

Russia's suspension announcement has generated substantial discussion of its motivations and the future of Russia's foreign relations. Attention has focused on whether Russia is suspending participation because other CFE parties failed to ratify the Adaptation Agreement-as Russia itself contends-or as a thinly disguised response to NATO efforts to install missile shields in Poland and the Czech Republic.[5] For international lawyers, however, Russia's action will likely draw equal attention for the questions it raises about the suspension of treaty obligations under the CFE Treaty and the law of treaties more generally.

Russia's Right to Suspend Participation Under the Terms of the CFE Treaty

Russia has not articulated a legal basis for its unilateral suspension of the CFE Treaty other than to state generally that its suspension "is in conformity with international law."[6] Most likely, Russia relies on the CFE text itself to authorize suspension. In publicizing the suspension decree, the Kremlin indicated that "the operation of the Treaty will be suspended in 150 days as of the date of Russia's notifying the depositary and other member states of its decision."[7] This 150 day notice period matches that required for withdrawal under CFE Article XIX(2):

Each State 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. A State Party intending to withdraw shall give notice of its decision to do so to the Depositary and to all other States Parties. Such notice shall be given at least 150 days prior to the intended withdrawal from this Treaty. It shall include a statement of the extraordinary events the State Party regards as having jeopardized its supreme interests.[8]

In conjunction with its advance notice, Russia articulated a series of "exceptional circumstances that affect the security of the Russian Federation" to explain its suspension decision.[9] It listed six circumstances, including the failure of former Warsaw Pact states to adjust the treaty framework to account for their accession to NATO, the existence of too many NATO parties in the CFE Treaty, the negative impact of NATO's "exclusive group mentality," the deployment of U.S. forces in Bulgaria and Romania, the failure of CFE Treaty parties to comply with their 1999 Istanbul political commitments, such as early ratification of the Adapted Agreement, and the absence of Estonia, Latvia and Lithuania from the CFE Treaty.[10]

Article 57 of the 1969 Vienna Convention on the Law of Treaties (VCLT), to which Russia is a party, provides "the operation of a treaty in regard . . . to a particular party may be suspended: (a) in conformity with the provisions of the treaty."[11] Thus, if Russia can establish its suspension conforms with CFE Article XIX(2) (i.e., 150 days notice and extraordinary events that jeopardize Russia's supreme interests) Russia will have a valid legal basis for its suspension.

Russia may have difficulty relying on the CFE Treaty to justify suspension since Article XIX(2) does not require 150 days notice to suspend the treaty; rather, it imposes the notice period for a party to withdraw from the treaty. Given that language, in order for Russia to sustain its reliance on the CFE Treaty, the law of treaties would need either to regard suspension and withdrawal rights as interchangeable, or view the suspension power as a lesser, included power within the power to terminate or withdraw from a treaty.

Whether a right to suspend can derive from-or be equated with-a right to withdraw or terminate a treaty is uncertain. On the one hand, to the extent the law of treaties operates to maintain the stability of treaty commitments, conflating suspension and termination would undoubtedly serve that goal.[12] Treaty termination (or withdrawal) brings the treaty to an end for the terminating party; the treaty cannot bind the withdrawing state again unless it goes through a new procedure to express its consent to be bound. Suspension, in contrast, presumes a more limited duration; the treaty's operation can be resumed and the parties continue to have a treaty relationship during the suspension period. Thus, if the law of treaties seeks to preserve the stability of international commitments, it makes sense to always allow suspension in lieu of withdrawal or termination since the former will cause less injury to a treaty's stability.[13]

On the other hand, treaty stability is not the only goal of the VCLT; principles such as free consent, peaceful co-operation, and even jus cogens (peremptory norms) provide additional foundations for the law of treaties. Moreover, the VCLT carefully separates the rights of suspension and termination, without any indication of interchangeability or hierarchy. For example, although VCLT Article 57 permits suspension in conformity with the treaty text, a separate VCLT provision-Article 54-authorizes termination or withdrawal if done "in conformity with the provisions of the treaty."[14] Even though this effectively means a state can suspend or terminate a treaty where authorized by the text, the fact that these rights come in two separate provisions militates against reading the powers as interchangeable; i.e., an express right to terminate only authorizes termination, not suspension.

Even if Russia can rely on Article XIX's provision for withdrawal as grounds for suspension, that provision only operates conditionally-i.e., where Russia can decide extraordinary events relating to the CFE Treaty have jeopardized its supreme interests. Russia will likely insist that any decision to invoke Article XIX is a political one that can be made unilaterally, as the United States did in invoking a similar clause to withdraw from the Anti-Ballistic Missile Treaty.[15] However, when North Korea gave ninety days notice of withdrawal from the Non-Proliferation Treaty in 1993, the three depositary states (Russia, the United Kingdom and the United States) issued a joint statement questioning whether North Korea's reasons for withdrawal met the "extraordinary events" requirement of that treaty's withdrawal provision.[16] Absent an agreed third-party mechanism to review the basis for Russia's suspension, however, the existence of "extraordinary events" will likely remain primarily a subject of political-as opposed to legal-concern.

So far, none of the other CFE parties has overtly challenged Russia's right to suspend its CFE Treaty obligations. The United States expressed disappointment at the Russian announcement.[17] NATO's press release takes a similar tone, but leaves open the possibility of a future challenge to Russia's suspension by indicating an expectation that "all the States Parties will continue to implement fully all their obligations under the CFE Treaty and associated documents."[18]

Grounds for Russian Suspension Under the VCLT

If other CFE state parties challenge Russia's right to suspend its CFE Treaty obligations under the CFE Treaty itself, Russia may try to articulate alternative bases for suspension beyond the treaty text. The VCLT lists several bases on which a state can suspend its treaty obligations irrespective of the treaty text, including material breach (Art. 60), impossibility (Art. 61), and a fundamental change of circumstances (Art. 62).[19] Each of these doctrines is highly complex, and, as the ICJ's decision in the Gabcikovo-Nagymaros case demonstrates, present high hurdles for invoking states.[20] Moreover, if Russia opts to characterize its suspension under any of these grounds, VCLT Article 65 requires it to notify other CFE parties of the basis for its suspension at least three months in advance. Since the 150 days notice Russia has currently provided exceeds this three-month period, Russia may argue it has already given the requisite notification or that it has additional time to make further suspension arguments, provided it does so more than 3 months before its suspension takes effect (December 12, 2007).

Legal Consequences of Russia's CFE Treaty Suspension

Assuming Russia can establish a legal basis for suspension, additional questions arise over what legal effect that suspension will have on Russia's treaty obligations. Pursuant to VCLT Article 72(1), a treaty's suspension "releases the parties between which the operation of the treaty is suspended from the obligation to perform the treaty in their mutual relations during the period of suspension." Thus, if Russia can suspend, that suspension will free it from the CFE's inspection and data sharing requirements (and other CFE parties would correspondingly no longer have an obligation to share data with Russia).

At the same time, in contrast to treaty withdrawal, a suspension does not otherwise affect the parties' legal relations. Moreover, according to VCLT Article 72(2), "[d]uring the period of suspension the parties shall refrain from acts tending to obstruct the resumption of the operation of the treaty." The implications of this provision have gone largely unexplored to date, so it is difficult to predict how it would operate with respect to Russia's suspension.[21] For example, would it bar Russia from escalating its force levels above those listed in the CFE text since that would make it harder for Russia to cease its suspension, or does such a reading deprive suspension of its core meaning? At a minimum, this provision implicates issues similar to those posed for signatory states in implementing their obligation not to defeat a treaty's object and purpose.[22] Depending on how the issue plays out, Russia's suspension may provide a useful opportunity for states to explore more precisely the legal consequences of suspension.

Why Did Russia Suspend Instead of Withdraw?

Given the problems and complexities posed by Russia's CFE Treaty suspension, a final question involves why Russia did not simply withdraw from the CFE Treaty. Certainly, international politics may explain the suspension-i.e., Russia wanted to signal its displeasure with the slow pace of ratification of the Adaptation Agreement and/or object to NATO encroachment into certain areas without destroying the CFE Treaty framework entirely.

TAn alternative explanation for Russia's suspension though may lie in Russian domestic legal requirements. Russia's participation in the CFE Treaty is governed by the 1995 Federal Law on International Treaties of the Russian Federation.[23] According to the Kremlin's press release, Article 37(4) of this law governs Russia's CFE Treaty suspension. That provision authorizes President Putin to suspend certain treaties "in instances requiring the taking of urgent measures," but it does not authorize a treaty's termination. Moreover, it requires the President to inform Russia's legislature of his action and to submit a draft federal law concerning the suspension to the State Duma (if the Duma rejects that law, the treaty immediately resumes operation). Thus, Russia's decision to suspend rather than terminate the CFE Treaty may have turned on President Putin's available options under current Russian law; absent further legislative action by the Duma, he has no domestic legal authority to terminate the CFE Treaty, but can only suspend it.

About the Author
Duncan B. Hollis is an Associate Professor of Law at Temple University's Beasley School of Law where he specializes in treaty law and practice. He is also a permanent member of the international-law blog Opinio Juris.

Footnotes