Soviet inspectors and their American escorts stand among several dismantled Pershing II missiles as they view the destruction of other missile components. The missiles are being destroyed in accordance with the Intermediate-Range Nuclear Forces (INF) Treaty. 14 January 1989. Photo: Wikimedia Commons / US Department of Defense / MSGT Jose Lopez Jr.
President Trump violated the US Constitution when he unilaterally pulled the United States out of the Intermediate Nuclear Forces (INF) Treaty on August 2, 2019.
Treaties signed and ratified by the President of the United States, by consent of the Senate, become “the supreme law of the land” according to Article VI, paragraph 2 of the US Constitution.[i] The INF Treaty was signed by President Reagan on December 8, 1987 and ratified by consent of the US Senate on May 27, 1988. That means this Treaty is as much a part of US law as any Act of Congress or Supreme Court decision.
What the INF Treaty says, and what therefore the law requires, is that the US may withdraw from this Treaty only if “extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests.”[ii] This is known as the ‘extraordinary events clause’ and it was actually the United States who insisted on inserting this clause in the Partial Test Ban Treaty of 1963. This was specifically to ensure that parties to such treaties cannot just withdraw from them without sufficient justification.[iii] The identical language has been included in a number of treaties since then, including the INF Treaty.
In the case of the US withdrawal from the Anti-Ballistic Missile (ABM) Treaty in 2002, for instance, President George W. Bush used 9/11 as the “extraordinary event” needed to justify US withdrawal from that particular treaty.[iv] Withdrawal from the INF Treaty requires a similarly “extraordinary event” related to the subject matter of this treaty and withdrawal on any other grounds is simply not legal.[v]
Whether or not Russian development and deployment of its new 9M729 missile constituted a ‘material breach’ of the treaty is a matter to be dealt with by the provisions of the treaty itself. The INF Treaty provided for the most intrusive on-site inspections of any treaty in history, backed up by mutual verification by satellite and other monitoring mechanisms, and a Special Verification Commission to resolve any disputes about whether violations have indeed occurred.[vi]
Since a material breach of the treaty does not, in any case, satisfy the legal requirement for withdrawal,[vii]the only question relevant to US withdrawal from this treaty was whether the deployment of the 9M729 missile could in some way be considered an “extraordinary event” jeopardizing “the supreme interests of the United States.”
According to one defense analyst, this particular missile is nothing more than “a minor accessory to the nuclear wardrobe of the Russian Federation.”[viii] In fact, this particular missile (the 9M729) is just 21 inches longer than the previous version (the 9M728 missile), which has been deployed for many years with no objection from the United States. The 9M729 may or may not exceed the limits allowed by the INF Treaty. But it is hard to argue that it suddenly jeopardizes the supreme interests of the United States in a way that its predecessor did not.[ix]
Since President Trump pulled the United States out of the INF Treaty on illegal grounds, he has broken US law – regardless of whether President Putin may have also broken his own laws by pulling Russia out of the Treaty as well.
Breaking international treaties is not a trifling matter. These treaties are all we have when it comes to maintaining peaceful relations with the other 194 countries we share this planet with. They are also the supreme law of the land, and presidents should be held accountable for that.
Dr. Timmon Wallis is Executive Director of NuclearBan.US and author of Disarming the Nuclear Argument, Luath Press, 2018 and Warheads to Windmills: How to Pay for the Green New Deal, available at www.NuclearBan.US/w2w/.
Notes
[i]see https://www.law.cornell.edu/constitution/articlevi
[ii]see https://www.state.gov/t/avc/trty/102360.htm
[iii]see rationale for this clause from then Secretary of State Dean Rusk: “We were not at all satisfied with that view [that sovereignty always allowed withdrawal from a treaty], because we feel this gives too little respect to international law and to the obligations of a treaty, so we felt that a withdrawal clause ought to be in, which although it is flexible, and very flexible, would make it quite clear that the purposesof the treaty, the subject matterof the treaty, and the jeopardy to the supreme interestsof the country, would have to be involved to permit withdrawal from the treaty, and that a country could not withdraw for simply frivolous or unrelated matters as a matter of whim and still pretend that it is legal within the treaty to do so.” https://repository.law.umich.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1744&context=mjil
[iv]“Today, as the events of September the 11th made all too clear, the greatest threats to both our countries come not from each other, or other big powers in the world, but from terroristswho strike without warning, or rogue states who seek weapons of mass destruction… We know that the terrorists, and some of those who support them, seek the ability to deliver death and destructionto our doorstep via missile. And we must have the freedom and the flexibility to develop effective defenses against those attacks…”
see https://www.armscontrol.org/act/2002_01-02/docjanfeb02
[v]see https://safna.org/2019/02/20/too-much-policy-not-enough-law-us-suspension-and-potential-withdrawal-from-the-inf-treaty-is-not-only-unwise-but-also-problematic-under-international-law/
[vi]see https://www.state.gov/t/avc/trty/102360.htm
[vii]According to the Vienna Convention on the Law of Treaties (Article 60, para 4), a party may withdraw from a treaty on grounds of a ‘material breach’ only if the treaty does not already specify the requirements for withdrawal. (see https://treaties.un.org/doc/publication/unts/volume 1155/volume-1155-i-18232-english.pdf)
[viii]see http://blogs.plymouth.ac.uk/dcss/2017/03/07/russia-has-deployed-a-treaty-violating-missile-here-is-what-the-usa-should-do-about-it/
[ix]See http://www.thedrive.com/the-war-zone/26138/russia-shows-off-parts-of-its-controversial-cruise-missile-system-but-not-the-missile-itself
