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Why Russia Is Treating Arms Control Treaties as Bargaining Chips

Putin is trying to exploit a gray area between withdrawal and noncompliance



by Lawfare


In November 2023, Russian President Vladimir Putin announced that he would revoke Russia’s ratification of the Comprehensive Test Ban Treaty (CTBT), an agreement that bans all nuclear explosions. The Kremlin has insisted that this action was taken only to “mirror” the position of the United States, emphasizing that Russia will remain a signatory to the agreement and is not withdrawing completely. The CTBT announcement has clear parallels to Russia’s February 2023 suspension of New START, the last remaining arms control treaty that numerically limited U.S and Russian nuclear arsenals. In a speech to the Federal Assembly, Putin claimed that the suspension was a response to NATO’s intent “to inflict a strategic defeat on us and also to get to our nuclear sites.” He again emphasized, however, that Russia was “not withdrawing from the treaty” and remains open to rejoining should certain conditions be met.

Russia’s actions regarding these treaties are likely part of a larger strategy of threatening nuclear escalation to coerce NATO into cutting aid to Ukraine. Assuming, however, that Putin wanted to send the strongest possible message about the stakes of Russia’s invasion, the question remains: Why not withdraw from the treaties entirely? Or, to be more blunt: What advantage does the Kremlin perceive from suspension or de-ratification that withdrawal does not provide? One possible explanation is that Putin is taking advantage of a legal gray area in which he can attempt to coerce NATO with nuclear threats while simultaneously promoting disinformation about Western aggression. If this is the case, not fully withdrawing from New START or the CTBT may put Russia in the best possible position to pursue its objectives in Ukraine. 


Russia’s Dubious Legal Argument


Putin’s suspension of New START is not legal. Given that there is no provision for suspension in the text of the treaty itself, Russia has appealed to Article 62 of the Vienna Convention on the Law of Treaties (VCLT), which allows for suspension due to a “fundamental change of circumstances.” Speaking to the Federation Council, Russian Senator Konstantin Kosachev claimed that Washington’s “intent to defeat” Russia meets the requirements of a fundamental change. Article 62, however, may not be invoked “if the fundamental change is the result of a breach of the party invoking it … of any other international obligation owed to any other party of the treaty.” Russia’s invasion of Ukraine was a clear violation of the prohibition on the use of force mandated by Article 2(4) of the United Nations Charter, and NATO members are within their rights to provide support to Ukraine, a state acting in legal self-defense. Russia has therefore illegally brought about the fundamental change it cites in its own defense, rendering its justification invalid.

Russia should already know that suspending an international treaty is not more legally defensible than withdrawing. In 2007, Putin announced the suspension of the Conventional Forces in Europe Treaty (CFE), a post-Cold War agreement that limited the quantity of certain conventional arms that signatory countries could possess. The Kremlin also provided false justification here, citing six “exceptional circumstances that affect the security of the Russian Federation” that supposedly permitted them to suspend. The United States strongly opposed this move, demonstrating the legal faults in Russia’s argument through a statement to the Joint Consultative Group of the CFE in 2008. Several of the arguments used in that statement are being recycled today to refute the New START suspension.

The CTBT is less relevant here, as the process of revoking treaty ratification is not addressed in the text of the CTBT or the VCLT but has historically been deemed legally acceptable by the secretary-general of the United Nations. Russia’s entirely illegitimate suspension of New START, however, makes it doubtful that concern for treaty law has been the main driver of its actions, raising questions about alternative motives.


Putin’s Play for Increased Bargaining Power


Despite its illegal nature, Russia is currently acting as though the suspension of New START is in place, refusing inspections and halting treaty-mandated notifications. Regardless of legality, the Kremlin may believe it gains multiple legal advantages from this “gray area” of suspension that withdrawal would not provide. First, under Articles 70 and 72 of the VCLT, a party that withdraws from an international treaty releases all parties to that treaty from their obligations indefinitely, while suspension does so for the period of suspension only. In addition, if a state withdraws, the terms of the treaty cannot bind it again unless a new agreement is reached. Suspension, however, “presumes a more limited duration,” suggesting that treaty operations may be resumed without a new procedure.

Putin may perceive the limited duration of suspension as useful in maintaining the value of New START. When Russia suspended the CFE in 2007, officials listed a series of demands meant to restore “the conventional arms control regime in Europe,” such as ratification of the 1999 “Adapted CFE Agreement.” Putin has followed the same process with New START, demanding that Washington take “honest efforts towards general de-escalation” as a precondition to resuming nuclear arms control talks. These demands indicate that Putin intends to use New START as a bargaining chip to get the United States to cut aid to Ukraine. Given that suspension allows for easier resumption of a treaty, Putin may believe that suspending New START increases its value by making Russia’s potential re-adherence appear more credible.

While the circumstances for the CTBT are slightly different, the same advantage applies. Revoking the ratification of a treaty is a domestic process that, much like suspension, can be reversed without a new agreement. Additionally, Russia has made similar demands. For instance, Deputy Foreign Minister Sergei Ryabkov has stated that the Kremlin will not discuss nuclear issues until the United States drops its “hostile policy.”

The idea that Putin views suspension or revocation as giving him more bargaining power is supported by Russia’s explicit offers to re-adhere to the treaties. Regarding the CFE, the Russian Foreign Ministry’s December 2007 statement declared that suspension “makes it possible, given the political will of Russia’s partners, within a fairly short space of time to resume the operation of the CFE Treaty by a decision of the President.” Russia has taken the same approach to New START, with the release of a statement on Feb. 21, 2023, that urges “the United States to refrain from any steps that might hinder the resumption of the treaty if conditions for this are created.” The Kremlin clearly recognizes the value in not withdrawing, dangling its re-adherence to each treaty as additional leverage for its demands.


Maintaining Treaty Access


A second legal advantage specific to de-ratifying the CTBT is that Russia can maintain access to the International Monitoring System (IMS), a worldwide system built to detect nuclear explosions. States that have signed the CTBT, regardless of their ratification status, become members of the Comprehensive Nuclear-Test-Ban Treaty Organization Preparatory Commission and have access to the IMS, which includes being able to request IMS data on any other state. Russia therefore has maintained access to crucial benefits of the CTBT despite its inflammatory actions.

Russia is well aware of this advantage. At the Tenth Conference on Facilitating the Entry into Force of the CTBT in 2017, the Russian delegation’s statement pointed out the exact discrepancy they are now taking advantage of, highlighting that countries that had signed but not ratified the treaty “benefit from access to the International Monitoring System (IMS), while not being bound by the obligations under the CTBT.” In addition, Russia followed the same path when it suspended the CFE, remaining a member of the Joint Consultative Group, an organization responsible for resolving ambiguities, increasing treaty effectiveness, and answering technical questions. Despite suspending the treaty in 2007, Russia maintained access to this group through 2015, when it stopped participating only because the United States “had forbidden its allies to discuss any substantive issues.” Russia has been unable to abuse this advantage with regard to New START, largely because the agreement involves only the United States and Russia. Putin’s suspension effectively ended all meetings of the Bilateral Consultative Commission, and the United States has subsequently withheld all treaty-mandated data and notifications.


Managing Escalation


The final legal avenue through which Russia may see its actions as an advantage over withdrawal is in limiting escalation. Article 72 of the VCLT states that during a period of suspension “the parties shall refrain from acts tending to obstruct the resumption of the operation of the treaty.” With both the CFE and New START, Russia expressed that it did not intend to violate the baseline terms of each treaty despite its actions. For the CFE, Russia stated that it had “no plans” for a “massive buildup” of forces, and after suspending New START it communicated that it will “continue to strictly comply with the quantitative restrictions stipulated in the treaty.” Had Russia fully withdrawn from the treaty, the United States would be under no legal obligation to limit the number of nuclear weapons in its arsenal. The current state of suspension means that some restrictions still do exist.

With regard to the CTBT, Article 18 of the VCLT obliges states that have signed but not ratified a treaty to avoid actions that would “defeat the object and purpose of a treaty prior to its entry into force.” Russia has insisted it will not pursue testing unless the United States does first. Remaining a signatory to the treaty gives that claim more credibility and may dissuade other nations from pursuing tests of their own.

Presuming that Russia is opposed to a United States arms build-up, both suspension and de-ratification serve their interests better than withdrawal would.


Feeding Russia’s Disinformation Campaign


In addition to the legal advantages, suspension and de-ratification allow Russia to promote disinformation that portrays Russia not as the aggressor in Ukraine, but as a nation forced to respond to a maliciously expanding West. This strategy has seen some success with countries that have historically mistrusted the United States. For example, Brazil and South Africa have blamed the West for instigating the war, and several others have been noticeably ambivalent about condemning Russian aggression.

Putin may perceive treaty suspension or de-ratification as the most effective way of supporting Russian propaganda efforts. At a basic level, abrogating major arms control treaties generates headlines and gives the Kremlin a platform from which it can spew accusations of Western aggression. Regarding New START, Russia has broadly claimed that there is a “total hybrid war launched against Russia by the United States,” and specifically accused the United States of violating the numerical limits and inspection requirements of the treaty. Russia has harped on similar themes regarding the CTBT, insisting that “what is happening in the world today is the exclusive fault of the United States” and accusing Washington of “cheating and cynicism.”

While these accusations are largely baseless, Putin may believe his treaty behavior makes the Kremlin’s claims appear more credible. To better understand Russia’s reasoning, consider the U.S. withdrawal from the Intermediate-Range Nuclear Forces Treaty in 2019, an agreement with Russia that banned all nuclear-capable missiles with a range of 500-5,000 kilometers. Despite the fact that the United States’ withdrawal was in response to Russia’s blatant noncompliance with the treaty, the Kremlin attempted to shift blame onto Washington and claimed that withdrawal was “a serious mistake, which increases the risk of … sliding into uncontrolled escalation.” Putin likely believes that suspension and de-ratification appear to be a more measured response than withdrawal, making Russia’s actions appear less hostile to the nations it is targeting with disinformation. Should tensions boil over and an arms race begin, the limited nature of Putin’s treaty behavior will make the inevitable Russian claims that the United States is the instigator more believable.


Interpreting and Responding to Russia’s Treaty Strategy


There are two main lessons to be drawn from Putin’s apparent strategy. The first is that Russia no longer sees or supports the stabilizing value of treaties, and instead is looking to manipulate them in any way that furthers its international agenda. Putin’s suspension of New START maximized the value of the treaty as a bargaining chip without any regard for its effect on nuclear stability or the legal implications. The same pattern applies to the CTBT, a treaty that the Russian government previously called “an integral element of international security and stability” but has now shown complete disregard for in favor of sending an escalatory nuclear message. As long as the war in Ukraine continues, it appears unlikely that treaties can be trusted to constrain Russian behavior and instead will be weaponized by the Kremlin in the way it deems most effective.

The second lesson is that it is more vital than ever to produce a counternarrative to Russia’s disinformation efforts. Materials like government fact sheets and academic and think tank articles have been crucial to improving awareness of this issue, but more outreach to the Global South is needed. If there is hope for effective future arms control, it is vital that Russia’s current path of destabilization be recognized and condemned on a much broader global scale.

Overall, future agreements must be made with the knowledge that violators will be punished and that suspension cannot be abused to escape blame. Increasing awareness and fighting disinformation will certainly help, but ultimately the United States may need to negotiate stricter treaty language or find stronger enforcement mechanisms to ensure that future agreements cannot be exploited.


Source LawFare

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