Violating treaty to punish Russia has major consequences

The U.S. House of Representatives recently approved a provision in the fiscal 2018 defense authorization bill (H.R. 2810) to develop a medium-range conventional ground-launched cruise missile — a move that, is prohibited by the 1987 Intermediate Nuclear Forces (INF) Treaty. Now the bill is in the Senate.

Supporters justify the move as an appropriate response to Russia’s recent violation of the treaty. Given the current anti-Russia climate in Congress, the Senate may feel tempted to match the House’s move. 

{mosads}However, the proposed congressional action risks opening a Pandora’s Box of issues that are far more fundamental than the INF Treaty. If Congress acts on the INF Treaty, especially if it acts in the manner that has been proposed, its decision will affect the status of international treaties under U.S. law and, consequently, the reliability of U.S. obligations under ALL international treaties. 

The Unfinished Business of the Vienna Convention 

The status of international treaties is governed by the 1969 Vienna Convention, which the United States has signed, but not ratified. The convention places international treaties above domestic law in certain respects: Once a country joins a treaty, it cannot adopt new laws that contravene it. That principle would make the INF Treaty-related language in H.R.2810 impossible.

Since the United States is not party to the Vienna Convention, the status of international treaties in U.S. law is unclear. Following the failed attempt to ratify it in 1971, the United States has treated it as “customary law” and all branches of the U.S. government have carefully avoided situations that could force them to bring greater clarity to the standing of international treaties. This issue has largely remained an esoteric field debated by legal experts who have not been able to come to an agreement. 

Experts have generally agreed that an international treaty, once duly ratified, becomes part of domestic law. Some of them contend, further, that since its status is the same as that of any domestic law, Congress can overturn an international treaty any time it wishes. This is precisely what might happen to the INF Treaty.

Outside the United States, such a move would be seen as demonstration that Congress can overturn any treaty if this is seen as expedient. The precise issue and context will not matter much: All U.S. commitments under all treaties will be seen as less serious and subject to the prevailing political winds in Washington. 

Senate vs. House 

Another potential controversy that H.R.2810 could raise is the relative power of the Senate and the House.

U.S. law distinguishes between “treaties” and “agreements.” The former require the approval of two-thirds of the Senate while the latter simple majority of both houses. The failure to ratify the Vienna Convention in 1971 was caused by the desire of the Nixon administration to treat all international deals as “agreements” — a notion that the Senate rejected. 

However, if one accepts the notion that Congress has the right to overturn a treaty by passing legislation that contradicts it, such a move could mean that simple majority of both houses can overrule two-thirds of the Senate. It does not appear that the authors of that language — including a group of senators — have seriously considered the precedent-building implications, including the possibility of undermining the prerogatives of the Senate. 

What Could and Should be Done?

Given the potentially detrimental consequences of the language in H.R.2810 on the INF Treaty for the credibility of U.S. obligations and commitments under literally all international treaties, what are the alternatives? 

The first and preferable option is to leave it to the executive, as has always been done in the past. This may take long time, of course: In the late 1970s, the United States declared the Soviet Union in violation of the 1972 ABM Treaty, but it took the Soviet Union about 10 years to admit to the violation and address it. 

The Obama administration began to handle the INF violation and the Trump administration has already announced its determination to keep pursuing the issue. Most importantly, this option leaves the issue of the status of treaties and the power of Congress to overturn them in the relative obscurity it has enjoyed for nearly half a century.

If the Senate still wants to act, it could at least modify the language of H.R. 2810 by substituting the word “development,” which is commonly assumed to include testing, with a different term, “research,” which the INF Treaty does not ban because it is unverifiable. 

That option would help avoid, at least temporarily, the broad political and legal consequences of attacking the INF Treaty head-on. However, even that weakened language would demonstrate the intention to overturn the treaty. The international fallout would still be significant. In addition, the message to the Kremlin would be weakened. 

Alternatively, Congress could decide to formally abrogate the INF Treaty. The procedure for abrogation is unclear. There are very few examples. Sometimes the executive did it by its own decision; in other cases, it sought the support of Congress. The matter should be approached with great caution because it could set a precedent. 

Formal abrogation of the INF Treaty should help avoid the conundrum that will ensue if Congress overturns it. On the other hand, the message to Moscow will be the opposite to what is intended: After all, they have wanted to escape the INF Treaty for a decade (they first raised the issue with the George W. Bush administration), and, by abrogating, the United States would allow them to escape diplomatic fallout.

The political winds in Washington, however, seem to favor bold decisive action to “punish” Russia, as well as the exclusion of the executive, which the majority of Congress does not trust, especially when it comes to Russia. One is only left to hope that legislators pause and give thought to the long-term consequences of their action. After all, hope dies last.

Nikolai Sokov, Ph.D., is a senior fellow at the James Martin Center for Nonproliferation Studies, the largest nongovernmental organization in the world devoted to curbing the spread of weapons of mass destruction.

The views expressed by contributors are their own and not the views of the Hill.