Kamran Adil
While political analysis rules the analytical plane in International Relations; it leads to inchoate assessments.The point of departure in the debate surrounding purported withdrawal of the US from the Intermediate Range Nuclear Forces Treaty (INF) is that it is a ‘bilateral treaty’ between the US and the then Union of Soviet Socialist Republics ( USSR) now Russia. This premise misses many important points. In the first place, it is against the very text of the INF Treaty. The INF Treaty text in its recitals clearly states that the US and the then USSR were undertaking the INF Treaty due to their ‘obligation under Article VI of the Nuclear Non-Proliferation Treaty’ (NPT). The ‘obligation’ so acknowledged by both the states interconnects the INF Treaty with the larger and multilateral legal framework on nuclear weapons. This type of referral may be treated as salutary by some, but what about the ‘legal obligation’ created under Article VI of the Nuclear Non-Proliferation Treaty?
Should the ‘legal obligation’ created by a multilateral treaty be retrograded to a symbolic recital by alluding to it in a bilateral treaty? Another aspect, which cannot be ignored is that in another recital of the same INF Treaty, the measures ‘agreed to’ were likely to contribute to ‘international peace and security’, a phrase which was frequently used in Chapter VII of the United Nations Charter. The INF Treaty, it must be noted, is a combination of treaty text, memorandum of understanding and protocols that have been declared ‘integral part’ of the Treaty in its Article I. The phrase ‘integral part’ implies that the protocol provisions are to be treated as part of the Treaty. There are two protocols attached to the Treaty; the first one relates to elimination of the intermediate range nuclear weapons while the second one relates to inspections. Article XV of the Treaty deals with the withdrawal from it by providing that the state, which wants to withdraw can do so by giving a notice of the ‘extraordinary events’ necessitating its withdrawal; for a teleological interpretation of the Treaty, it is a must that the relationship between the INF Treaty and the international law governing disarmament must be read and the interconnectedness of the international legal framework be treated as an organic whole instead of an independent part.
Unfortunately, the impression is that the INF Treaty is not going to impact other nations; nothing can be farther from the truth as unlocking the ‘system’ of international law by treating every legal instrument as unconnected will lead not only to flawed policy choices, but also it will lead to unwinding the whole international legal order developed over the last seven decades by the international community.
From the view point of international arrangements, the entry of the US into the Treaty was not an individual country’s choice, as is now asserted by some like John Bolton, but it was backed up by the collective security obligation derived from Article 5 of the North Atlantic Treaty Organization, 1949, which is further based on Article 51 of the UN Charter that provides for collective self-defence.
In view of the internationalization of the INF Treaty, and it being part of the international law, it would be wiser to look at its depth before taking a policy decision on it. The impact of the municipal law on the international law is another aspect of the matter, which is seldom appraised by analysts. The municipal law of the US especially the National Defence Authorization Act for Financial Year 2019 through its Section 1243 required the President to submit a ‘determination’ regarding the ‘material breach’ of Russia to its committees. Requiring such a ‘determination’ by a municipal law can have obvious adverse effects on the executive of any country. Article 27 of the Vienna Convention of International Treaties, 1969 was perhaps designed to deal with such situations when it provided that the ‘internal law’ should not be used as a justification for failure to perform a treaty. Incorporating measures in a municipal law that affect the performance of a treaty must be carefully designed as they are likely to bring unintended consequences, which may be of purely political value within a state. The impact of collective international legal order over non-members to the Treaty and on countries who are obliged by the NPT may be much more as compared to isolated treatment of the INF Treaty. The legal analysis may be of political value if it is properly contextualized and the case of setting the debate on INF Treaty is just one such instance.
Kamran Adil is an Independent Researcher.