On the ‘Suspension’ of the New START Treaty by Russia

On 21 February 2023, the President of Russia, Vladimir Putin, announced to the Federal Assembly that Russia would suspend the Treaty between the United States of America and the Russian Federation on Measures for the Further Reduction and Limitation of Strategic Offensive Arms (the ‘New START Treaty’, signed on 8 April 2010 and entered into force on 5 February 2011), which had been extended by agreement between the US and Russia on 3 February 2021 for five years. On the following day, the Duma adopted the relevant draft law which ‘suspended’ the Treaty.

The New START Treaty replaced the 1991 Strategic Arms Reduction Treaty (START), which expired on 5 December 2009. Pursuant to the New START Treaty, each Party agreed to reduce and limit its strategic offensive arms in accordance with the provisions of the Treaty, so that, seven years after its entry into force, such arms would not exceed certain aggregate numbers.

The Russian announcement of the purported suspension came following the US allegations that Russia had breached its procedural obligations under the Treaty. More specifically, in the Report to Congress on the Implementation of the New START Treaty of January 2023, the US claimed that the Russian Federation: i) based on the incorrect invocation of the ‘temporary exemption’ provision in the Treaty, had denied the US its right to conduct inspection activities on Russian territory; and ii) had failed to comply with its obligation to convene a session of the Bilateral Consultative Commission (BCC) provided under the Treaty within the required timeline (ibid, 5 and 6-15). Moreover, the US expressed concerns with regard to Russian compliance with its substantive obligations under the Treaty, namely the relevant warhead limit (ibid), clarifying, however, that this was not a determination of non-compliance and that Russia was likely under the Treaty warhead limit at the end of 2022 (ibid, 6 and 16-8).

Russia denied the US allegations and sought to suspend the Treaty. However, this ‘suspension’ presents various problems, which will be analysed below.

Legal grounds for suspension

The Treaty does not provide for the suspension of its operation; Art XIV(3) only provides for the possibility of withdrawal of each Party from the Treaty ‘in exercising its national sovereignty…if it decides that extraordinary events related to the subject matter of [the] Treaty have jeopardized its supreme interests’, by giving notice of its decision to the other Party. Contrary to such withdrawal—which would lead to the termination of the Treaty three months from the date of receipt by the other Party of the above-mentioned notice, unless the notice specified a later date—the suspension of the operation of a treaty does not put an end to the treaty, but, pursuant to Art 72(1)(a) VCLT, ‘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 the suspension’. Therefore, the question which arises is on which legal basis Russia purports to suspend the Treaty. As will be seen, the answer is not entirely clear.

First of all, the Russian Foreign Ministry in its relevant statement argued that there had been a fundamental change of circumstances. It claimed, inter alia, that:

[T]he New START’s preamble, which is an integral part of the treaty, sets forth the commitment by the parties to the principle of indivisible security and forging relations based on mutual trust and cooperation. However, the United States is now openly seeking to inflict a “strategic defeat” on Russia, while tensions encouraged by Washington go far beyond the Ukraine crisis with the United States and the US-led West trying to harm our country at every possible level, in every sphere and region of the world.

There is every reason to argue that the United States policy aims to undermine Russia’s national security, which directly contradicts the fundamental principles and understandings set forth in the New START’s preamble and forming its foundation. It would not have been signed without stating these principles. This de facto amounts to a fundamental change of circumstances compared to those prevailing at the time of signing the New START Treaty (emphasis added).

The fundamental change of circumstances is regulated in Art 62 of the 1969 Vienna Convention on the Law of Treaties (‘VCLT’). This provision is applicable to the suspension of the New START Treaty only to the extent that it constitutes customary international law, since the US is not a party to the VCLT. Art 62 VCLT can be considered ‘in many respects’ as a codification of customary international law (see Fisheries Jurisdiction (United Kingdom v. Iceland) [36]; Gabčíkovo-Nagymaros Project [46]; A.Racke GmbH&Co. v. Hauptzollamt Mainz [24]). It should however be emphasised that Art 62 VCLT must be applied only in exceptional circumstances (Fisheries Jurisdiction [43]; Gabčíkovo-Nagymaros Project [104]). Moreover, even if it were accepted that the conditions of Art 62(1) VCLT are met (although Russia did not explain in particular how the circumstances described by it meet the condition of Art 62(1)(b), namely how the effect of the change is to radically transform the extent of obligations still to be performed by Russia under the New START Treaty, see in this regard also Gottemoeller and Brown), it could be questioned whether the condition of Art 62(2)(b) is met, given the fact that it could be argued that the fundamental change of circumstances is the result of the breach by the party invoking it, namely Russia, of international obligations owed also to the US; namely, of erga omnes obligations including the prohibition of the aggressive use of force (see, indicatively, Barcelona Traction [34]), a breach which Russia committed by attacking Ukraine.

Apart from a fundamental change of circumstances, it seems that Russia invoked the alleged material breach of the Treaty by the US as another legal basis for its suspension. It claimed that the US ‘has long been seriously violating the fundamental provisions of the treaty’ on, inter alia, the quantitative restrictions of the parties’ relevant armaments. It also argued that it was the US anti-Russia restrictions—which allegedly curtailed Russia’s ability to freely conduct verification inspections on a fully equal basis in the US— that violated the inspection procedures under the Treaty (see here). It concluded that ‘the United States has seriously violated the New START Treaty and that this violation is of fundamental importance for the realisation of the treaty’s objective and goals’.

Art 60(1) VCLT provides for the suspension of the operation of a bilateral treaty, in whole or in part, in case of its material breach; and pursuant to Art 60(3) VCLT, ‘A material breach of a treaty… consists in…b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty’. Art 60 is also considered, ‘in many respects’, as a codification of customary international law (see, indicatively, Gabčíkovo-Nagymaros Project [46], [99]). Although Russia had expressed in the past some concerns with regard to the US approach to compliance with the Treaty (see, indicatively, here), it had not characterised them as Treaty breaches, and it is the first time since the extension of the Treaty that Russia makes such claims of material breach on the part of the US.

Russia actually opted for partial ‘suspension’ of the New START Treaty, making clear that it would continue ‘to strictly comply with the quantitative restrictions stipulated in the treaty for strategic offensive armaments within the life cycle of the treaty’. Consequently, the main practical effect of this partial ‘suspension’ is to prohibit the conduct by the US of inspection activities under the Treaty on Russian territory. Russia has stated that the decision for the ‘suspension’ of the Treaty can be reversed if the US ‘demonstrates the political will and takes honest efforts towards general de-escalation and the creation of conditions for resuming the comprehensive operation of the treaty and, consequently, its survival.’

From the above analysis, it can be inferred that the substantive conditions of Arts 60 and 62 VCLT (to the extent that they constitute customary international law) do not seem to have been met. If this is indeed the case, then the suspension has not been brought about in accordance with international law and has no legal effect (and this is why inverted commas have been used for the word suspension). The US through its Secretary of State characterised the ‘suspension’ as ‘deeply unfortunate and irresponsible’ (see also the State Department Spokesperson here), without, however, addressing the question of whether this ‘suspension’ is in accordance with international law, based on the grounds of suspension put forward by Russia.

The problem of ‘unilateral suspension’

Another problem which arises with regard to this ‘suspension’ is whether procedural conditions have been complied with. On the one hand, it is doubtful that the procedural conditions of Arts 65-68 and Annex VCLT (which exist for both Art 60 and Art 62)—with the exception of the notification requirement in Art 65(1) with which Russia has complied—constitute customary international law. On the other hand, the text of both Art 60 and Art 62 (which, as mentioned above, are considered as reflecting ‘in many respects’ customary international law) makes clear that the material breach of a treaty or the fundamental change of circumstances respectively can only be invoked as a ground for suspending the operation of the treaty, namely the suspension of the operation of the treaty cannot be brought about unilaterally. Thus, the acceptance of the possibility of unilateral suspension of a treaty questions the customary international law character not only of the above-mentioned procedural conditions, but also of the notion of suspension of the operation of a treaty as regulated in the VCLT. The phenomenon of ‘unilateral suspension’, at least with regard to Art 60 VCLT (see M. Xiouri, The Breach of a Treaty: State Responses in International Law, 158-73, 251-6), is not new in State practice. The US noted (see also here) that Russia had decided to ‘unilaterally suspend its implementation’ of the Treaty, referred to it as ‘purported suspension’ and stated that the US would ‘remain in full compliance with the treaty’. However, pursuant to Art 72(1)(a) VCLT, ‘Unless the treaty otherwise provides or the parties otherwise agree, the suspension of the operation of a treaty…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 the suspension’ (emphasis added). Thus, pursuant to this provision, if the Treaty had indeed been suspended in part, it would have been suspended in part for both Russia and the US. This is yet another example of the confusion which exists in State practice with regard to the notion of suspension of the operation of a treaty, which has been extensively analysed in the above-mentioned book.

Some final remarks

In spite of this purported ‘suspension’, both Russia (see here) and the US (see here, 22 and here) seem convinced as to the Treaty’s contribution to strengthening international security. Though difficult under the current circumstances, compliance with the Treaty—the last remaining nuclear arms control treaty between the two countries—must be resumed, so that it can still survive, for the benefit of international peace and security.

Photo: ‘Signing of Russian-US Treaty on Reduction and Limitation of Strategic Offensive Arms. With US President Barack Obama’ (8 April 2010, www.kremlin.ru).