One year post-INF: A moment for NATO evolution
On Armistice Day in 1948, American General Omar Bradley stated, “[w]e have grasped the mystery of the atom and rejected the Sermon on the Mount. The world has achieved brilliance without conscience. Ours is a world of nuclear giants and ethical infants.” General Bradley’s cautionary message on the 29th anniversary of the end of the First World War encapsulates the threat of nuclear annihilation. On 8 December 1986, the Intermediate Range Nuclear Forces Treaty (INF Treaty) was signed by U.S. President Ronald Reagan and Soviet General Secretary Mikhail Gorbachev. The INF treaty removed all intermediate range missiles from Europe, displaying an intention to de-escalate nuclear tensions. Despite serving as a bulwark for peace for over thirty years, U.S. President Donald Trump withdrew the United States from the INF treaty in August 2019, citing numerous violations by the successor state to the treaty—Russia.
In the post-INF world, General Bradley’s warning is prescient. The North Atlantic Treaty Organization (NATO) is fractured and disunited. Russia’s unperturbed aggression in Eastern Europe, the Middle East, and Africa demonstrate growing chasms in the Alliance. Likewise, Russia’s stated policy that it retains the option to respond to any conventional attack with nuclear weapons is troubling. Without a strong alliance, NATO’s deterrence capability dissipates. Furthermore, NATO’s weakness has encouraged Russian malfeasance and defection from the INF Treaty requirements. The subsequent U.S. withdrawal evidences the inherent fragility of the international system based in international law. The system requires commitment from states to uphold agreements to ensure legitimacy.
By Joshua C.T. Keruski and William J. "Joe" Barton**
On Armistice Day in 1948, American General Omar Bradley stated, “[w]e have grasped the mystery of the atom and rejected the Sermon on the Mount. The world has achieved brilliance without conscience. Ours is a world of nuclear giants and ethical infants.” General Bradley’s cautionary message on the 29th anniversary of the end of the First World War encapsulates the threat of nuclear annihilation. On 8 December 1986, the Intermediate Range Nuclear Forces Treaty (INF Treaty) was signed by U.S. President Ronald Reagan and Soviet General Secretary Mikhail Gorbachev. The INF treaty removed all intermediate range missiles from Europe, displaying an intention to de-escalate nuclear tensions. Despite serving as a bulwark for peace for over thirty years, U.S. President Donald Trump withdrew the United States from the INF treaty in August 2019, citing numerous violations by the successor state to the treaty—Russia.
In the post-INF world, General Bradley’s warning is prescient. The North Atlantic Treaty Organization (NATO) is fractured and disunited. Russia’s unperturbed aggression in Eastern Europe, the Middle East, and Africa demonstrate growing chasms in the Alliance. Likewise, Russia’s stated policy that it retains the option to respond to any conventional attack with nuclear weapons is troubling. Without a strong alliance, NATO’s deterrence capability dissipates. Furthermore, NATO’s weakness has encouraged Russian malfeasance and defection from the INF Treaty requirements. The subsequent U.S. withdrawal evidences the inherent fragility of the international system based in international law. The system requires commitment from states to uphold agreements to ensure legitimacy.
1. What Is the INF Treaty, and Why Did It Fail?
During his 1984 State of the Union address, former U.S. President Ronald Reagan stated, “A nuclear war cannot be won and must never be fought. The only value in our nations possessing nuclear weapons is to make sure they will never be used. But then would it not be better to do away with them entirely?”[i] Reagan’s antinuclear and pro-disarmament sentiment supporting negotiation and de-escalation was one part of NATO’s double-track approach. The second track was arms control. In the late 1970s, the Soviets replaced their older SS-4 and SS-5 ballistic missiles with the far more effective SS-20.[ii] The Western Allies at the time were relying on the “flexible response” strategy, which permitted the use of conventional and nuclear forces in order to deter and compensate for the apparent numerical inferiority of their conventional forces.[iii] Therefore, in response to the Soviets’ new ballistic missile, NATO deployed 464 ground-launched cruise missiles and 108 Pershing II missiles in Western Europe.[iv] The 1980s brought with it rising nuclear tensions, the ascendance of reform-minded Mikhail Gorbachev to the Soviet premiership, and the long tenure of Ronald Reagan—known for his disdain for nuclear deterrence strategies—at the helm of U.S. foreign policy. The confluence of these factors, among others, set the stage for the signing of the INF Treaty.
The INF treaty signified the first of several nuclear arms reduction treaties signed in the waning years of the Cold War. The treaty banned all U.S. and Soviet ground-launched ballistic and cruise missile (“GLBMs” and “GLCMs”) launchers, support structures, and equipment with a range between 500 and 5,500 km.[v] By 1 June 1991, 2,692 intermediate-range missiles were eliminated, amounting to 1,846 Soviet and 846 American missiles destroyed.[vi] The treaty called for rigorous adherence to the total ban on “possession, production and flight-testing of INF treaty prohibited systems.”[vii]
In the decades between the treaty signing and U.S. withdrawal, both sides adhered to on-site inspection regimes until 2001 and followed up with established national technical means for verification.[viii] However, Russia’s dissatisfaction with the treaty began to surface as early as 2007 when then Russian Defense Minister Sergey Ivanov stated, “[t]he gravest mistake was the decision to scrap a whole class of missile weapons—medium range ballistic missiles. Only Russia and the United States do not have the right to have such weapons, although they would be quite useful to us.”[ix] Ivanov’s remarks to then U.S. Secretary of Defense, Robert Gates, were based in Russia’s concern over Iranian, Pakistani, and Chinese interest in the deployment of medium-range ballistic missiles.[x] Yet, during President Barack Obama’s administration, both sides levied accusations against the other of INF treaty violations.[xi] Supported by a 2016 State Department Compliance Report documenting Russian INF violations and the inequity that other states such as China were not party to the treaty and thus its restrictions, President Trump declared his intent to withdraw the United States on 20 October 2018. Six months later, the United States officially withdrew from the INF Treaty.
2. The Issue of Russia’s New Deterrent Strategy and Why It Makes Sense in a Post-INF World
U.S.-Russia relations have reached a new low in the post-Cold War period. The window for dialogue and compromise on the issue of restricting intermediate-range ballistic missiles in a renewed or revamped version of the INF is closing. U.S. domestic political pressures as well as Russia’s subversive and intransigent foreign policy that seeks to undermine U.S. power across the globe means that a bilateral solution between the two states is distant. Caught in the middle of this feud and with the most to lose are the European member states of NATO.
Compounding this issue is Russia’s new military deterrent policy, which states,
The Russian Federation reserves the right to use nuclear weapons in response to the use of nuclear and other types of weapons of mass destruction against it and/or its allies, as well as in the event of aggression against the Russian Federation with the use of conventional weapons when the very existence of the state is in jeopardy.[xii]
The alarming aspect of this clause is the term “aggression”. Under international law and as defined by the UN General Assembly Resolution on the Definition of Aggression, “aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations…”[xiii] The International Court of Justice (ICJ) has further expanded this definition through its understanding of two UN Charter provisions: Article 2(4) Use of Force provision and the Article 51 Self Defense provision.[xiv] Specifically, the Court has found that aggression is “the most serious and dangerous form of the illegal use of force” and that an armed attack “is the most grave form of the use of force.”[xv]
Under Russia’s new deterrent policy, the use of nuclear force is justified under the auspices of its Article 51 right of self-defence in response to a presumably NATO-led conventional attack. While an invocation of Article 51 is difficult,[xvi] lowering the threshold for the use of nuclear weapons in response to a conventional attack is disturbing, because the term conventional has no agreed upon definition. Its sole limiting feature is that it includes all general means of warfare/weapons that are not banned specifically and are not biological, chemical, or nuclear in nature.[xvii]
Although the use of nuclear weapons by a state is unlikely, the risk generated by the two greatest nuclear powers[xviii] pulling out of a nuclear arms control treaty—with Russia subverting it for unilateral gain—threatens the safety and stability of millions while undermining international law and treaties. Russia’s demonstrated disregard for the INF Treaty, as well as its strategy in doing so, is contrary to the very existence of an international law regime. For close to a decade, the U.S. and NATO allies have alleged that Russia was not in compliance with the Treaty, with substantive evidence to that effect.[xix] After several years of asking for Russian compliance, several meetings within the Special Verification Commission (SVC) and complete Russian denial and reluctance led to the U.S. decision to legally withdraw from the INF Treaty. Although Russia was in violation of the Treaty, it did not legally withdraw within the Treaty’s parameters and sought to shift the blame on the U.S. for the lack of nuclear security. In INF Treaty Article XV, the parties could lawfully withdraw from the treaty for reasons of national sovereignty, which is the broadest discretionary reason a state could utilize.[xx] Here, however, Russia chose to subversively ignore the treaty without using the proper mechanisms, meaning that Russia could achieve its goal of having intermediate missiles without adhering to its international obligations. Instead of following the international legal method of achieving the same goal, which it achieved one year out from the dismantling of the INF, Russia chose to do so in the shadows in hopes of delegitimizing the international order.
In a world where international agreements and institutions are becoming increasingly unpopular, the breakdown of one of the pillars of nuclear deterrence for the last thirty years is not all that surprising. First, both Russia and United States—although for different reasons—worry about China’s growing power in the world. An important demonstration of this growing power is China’s possession of missiles that are banned by the INF.[xxi] Second, Russia believes that NATO’s global force projection and conventional might requires an intermediate nuclear counterbalance.[xxii] Third, the European Phased Adaptive Approach (EPAA) missile defence system plan for Europe would—as feared during the Cold War—hypothetically give one nuclear power the ability to conduct a first strike without allowing the other nuclear power to inflict a proportionate response.[xxiii] Fourth, as the American public continues to push for increased American withdrawal across the globe, U.S. policymakers may seek to offset weakening conventional forces on the European continent with nuclear forces.[xxiv]
Thus, the new issue presented to NATO—due to the breakdown of the INF treaty—is whether or not there is a way to enforce the treaty or the legal norms supporting it. If the mechanisms for supporting the old structure no longer exist, there is a question of whether or not there is a way for NATO to represent its own interests concerning nuclear disarmament. Additionally, there is an issue of how the Alliance can reorganize and retool in order to satisfy its primary mission of deterring Russian aggression against Europe.
3. Recommendation: NATO at the Table
NATO must move forward, as it has always done, united and flexible. The status quo of the deterrence model of the Cold War does not meet the challenges of a revitalized and belligerent Russia. NATO’s strength is the core Alliance and cooperation of its 30 members. Russia knows that its only hope for a successful victory in Europe is undermining and, eventually, contributing towards the complete dismantling of NATO. In response to new and emerging security threats and engagements across the spectrum of conflict, NATO must evolve.
NATO must step forward as a greater international organization, one that can make treaties and agreements with other international organizations and states, as it has done with the Partnership for Peace Programme and with UN-authorized missions. The consensus model is the best way to assure the collective independence of each member state’s voice in the Alliance: the power of NATO comes from the unified action taken as an organization. Although the North Atlantic Treaty does not specify the power of the organization to negotiate and conclude treaties, it is possible for the organization to amend the treaty and/or continue to make international agreements with states and other international organizations. NATO’s strength is its collective bargaining power with other international actors—backed by the political-military alliance to ensure security.
While the Alliance cannot act in many ways without the consensus of all member states, consensus is a strength in showing that the Alliance is united in its international actions. This article will not go into the application of NATO’s ability to negotiate treaties regarding security. What this article does suggest and support is that NATO as a collective international organization should be able to pursue the option of entering nuclear disarmament treaties with other nuclear powers. Although NATO itself does not have nuclear weapons, there are three Alliance member states that do possess such weapons. The United Kingdom makes all of its nuclear weapons available to NATO planning command and control framework.[xxv] Furthermore, NATO possess two formal groups involved in planning and execution of NATO’s nuclear mission including the Nuclear Planning Group (NPG) and the High Level Group (HLG).[xxvi] Thus, NATO, as a collective defence organization that has a stated interest in nuclear disarmament and with nuclear capable platforms in its defence, has an interest in furthering the goal of security through nuclear arms control.[xxvii]
As Secretary General Stoltenberg stated in 2019, a trilateral agreement would be useful in nuclear arms control. NATO can help in accomplishing this goal by utilizing its military and political power to ensure a multi-lateral agreement; it is in NATO’s, and the free world’s, interest. NATO can have a seat at the table in helping represent the most powerful military alliance in the world. NATO should take the next step in accomplishing its interests in the form of international treaties and agreements as a collective security international actor by engaging and securing its own interests on behalf of the consensus of its allies.
At present, only individual NATO members have the right to make treaties either bilaterally or multilaterally with other states.[xxviii] This right comes from the UN recognition of state sovereignty.[xxix] Yet, modern coalitions of states such as the European Union have shown the strength of unity and cohesion amongst states. NATO is a political and military alliance. NATO has already demonstrated its ability to effectively incorporate the strategic interests of its member states while operating as an international organization through the development, contribution, and oversight of the International Security Assistance Force (ISAF) in Afghanistan.[xxx] Similarly, NATO can incorporate the interests of its members states through a unified nuclear deterrent policy and represent their interests on a bilateral or multilateral basis with other states. Without a nuclear disarmament treaty safeguarding the interests of European states, it may be time for NATO to act in the interests of its European member states. Of course, this would run up against the consensus model enshrined by NATO. NATO as a separate international entity holding the legal capacity of entering treaties might receive pushback from the United States—its primary patron. Yet, there are several reasons why this would serve both NATO and U.S. interests.
First, NATO’s entry into a nuclear arms treaty would send a clear message of unity amongst the Allies backed by military might and international law. In addition, other nuclear powers such as China, India, and Pakistan may be more willing to engage in a NATO-led treaty effort rather than on a bilateral basis. Second, with the U.S. focusing on great-power conflict and seeking greater engagement and contributions from individual member states, this grant of power might serve as the right incentive for states to contribute toward their defence.[xxxi] Third, European member states being able to leverage the collective power of NATO while representing their own interests at the bargaining table with nuclear states like Russia and China would better represent the “conditions on the ground” of European policymakers as it relates to the number and type of weapons that European member states would tolerate on the European continent. Fourth, a NATO equipped with the status of an international organization with treaty-making powers would serve as a deterrent to Russia and its current operations of meddling and attempting to destabilize the Alliance.
Conclusion
The NATO alliance is more important now than ever before. As threats increase across the globe, it is vital that Western democracies under the umbrella of NATO stick together. As former U.S. Secretary of Defense James Mattis stated, “nations with allies thrive and those without wither”.[xxxii] The INF treaty was safeguarding the collective security of NATO for the past three decades with regard to intermediate-range nuclear weapons. With the INF Treaty no longer active, it is time for new and bold ideas as to how to achieve a world as President Ronald Reagan once put “rid of nuclear weapons”.
A critical first step would be to equip NATO with the ability to enter treaties. Former U.S. Supreme Court Justice Sandra Day O’Connor stated while giving a speech at Georgetown Law School, “[i]nternational law is no longer a specialty….it is vital if judges are to faithfully discharge their duties. Since September 11, 2001, we’re reminded some nations do not have the rule of law or [know] that it’s the key to liberty.”[xxxiii] International law serves as the fabric of the international rules-based order. It ensures that states comply with their international agreements. This compliance is secured through the established legitimacy of states participating in international institutions buttressed by legal regimes.[xxxiv] NATO as an international institution would be acting in accordance with international law and on the grounds of collective security for the European continent. Thus, while Russia broke its international obligations to the United States to adhere to the INF treaty requirements, a newly brokered NATO-led treaty that included other nuclear states such as China and Pakistan would at the very least put us on a path towards a safer and secure world.
About the Authors
Joshua C.T. Keruski is a 1st Lieutenant in the United States Army. Upon commissioning from George Mason University with a Bachelor’s in Government and Russian Studies, Lt. Keruski was placed onto the Educational-Delay program to become a Judge Advocate. Lt. Keruski is a third-year law student at Washington & Lee University School of Law. While at W&L Law, Lt. Keruski focuses on Veterans’ Law, International, and National Security Law. Lt. Keruski wrote a legal research paper on Russia’s use of hybrid-warfare.
William J. “Joe” Barton is a 2nd Lieutenant in the United States Air Force. Upon commissioning from the University of California-Irvine with a Bachelor’s in Political Science and Economics, Lt. Barton was placed onto the Educational-Delay Program to become a Judge Advocate. Lt. Barton is a graduate of Washington & Lee University School of Law and will return to active duty as a Judge Advocate after passing the Nevada Bar Exam.
**The views expressed are those solely of the authors and not of the United States, the United States Department of Defense, the U.S. Army, or the U.S. Air Force.**
Notes
[i] “January 5, 1984 State of Union,” Ronald Reagan Presidential Foundation and Institute, https://www.reaganfoundation.org/ronald-reagan/reagan-quotes-speeches/st....
[ii] Raymond L. Garthoff, “The Soviet SS-20 Decision,” Survival 25, no. 3 (1983): 110–19, https://doi.org/https:// doi.org/10.1080/00396338308442097.
[iii] Thomas C. Schelling, “Controlled Response and Strategic Warfare,” London: International Institute of Strategic Studies, Adelphi Paper (1965): 3–11.
[iv] “Final Communiqué,” North Atlantic Treaty Organization, last modified 4 November 2008, https://www.nato.int/cps/en/natohq/official_texts_23146.htm?selectedLoca....
[v] Treaty between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles (INF Treaty), 1987, http://www.state.gov/t/avc/trty/102360.htm.
[vi] Ulrich Kuhn and Anna Peczeli, “Russia, NATO and the INF Treaty,” Strategic Studies Quarterly 11, no. 1 (2017): 66–99.
[vii]“The Intermediate-Range Nuclear Forces Treaty Bureau of Arms Control, Verification and Compliance,” Department of State, https://www.state.gov/inf#:~:text=The Treaty Between the United States of America,after the Treaty entered into force in 1988.
[viii] “Intermediate-Range Nuclear Forces (INF) Treaty,” Department of Defense, https://www.acq.osd.mil/tc/inf/INF-InspProtocol.htm.
[ix] RIA Novosti, “Scrapping Medium-Range Ballistic Missiles a Mistake – Ivanov,” 7 February 2007, http://sputniknews.com/russia/20070207/60350944.html.
[x] Robert M. Gates, Duty: Memoirs of a Secretary at War (New York: Alfred A. Knopf, 2014).
[xi] The Ministry of Foreign Affairs of the Russian Federation, “The Facts of Violation by the United States of its Obligations in the Sphere of Non-proliferation of Weapons of Mass Destruction and Arms Control,” Moscow, 7 August 2010; US State Department, “Adherence to and Compliance with Arms Control, Non-proliferation, and Disarmament Agreements and Commitments,” July 2014, http://www.state.gov /documents/organization/230108.pdf.
[xii] Vladimir Putin, “Basic Principles of State Policy of the Russian Federation on Nuclear Deterrence,” Ministry of Foreign Affairs Russian Federation, last modified 8 June 2020, https://www.mid.ru/en/web/guest/foreign_policy/international_safety/disa....
[xiii] UNGA Res 3314 (XXIX) (14 December 1974).
[xiv] U.N. Charter art 2(4); 51.
[xv] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), para 191 1986, http://www.icjcij.org/docket/files/70/6503.pdf, accessed 12 August 2014.
[xvi] Oil Platforms (Iran v. US) 2003, http://www.icj-cij.org/docket/files/90/9715.pdf, accessed 12 August 2014; 13 Armed Activities on the Territory of the Congo (DRC v. Uganda) 2005, http://www.icjcij.org/docket/files/116/10455.pdf, accessed 12 August 2014.
[xvii] “Conventional Weapons,” International Committee of the Red Cross, https://casebook.icrc.org/glossary/conventional-weapons.
[xviii] Arms Control Association, https://www.armscontrol.org/factsheets/Nuclearweaponswhohaswhat.
[xix] Dr. Jaceck Durkalec, “European security without the INF Treaty,” NATO Review, last modified 30 September 2019, https://www.nato.int/docu/review/articles/2019/09/30/european-security-w....
[xx] “Treaty on Elimination of Intermediate Range and Shorter-Range Missiles-Between USA and USSR (INF Treaty),” https://media.nti.org/documents/inf_treaty.pdf.
[xxi] Victor Yesin, “Nuclear Disarmament: Problems and Prospects,” Russia in Global Affairs, 2 March 2008, /http://eng.globalaffairs.ru/number/n_10357.
[xxii] Decree N 683 of the President of the Russian Federation, “The National Security Strategy of the Russian Federation,” 31 December 2015, http://www.ieee.es/Galerias/fichero. /OtrasPublicaciones/Internacional/2016/Russian-National-Security-Strategy-31Dec2015.pdf.
[xxiii] Jaganath Sankaran, The United States' European Phased Adaptive Approach Missile Defense System, N.p.: RAND Corporation, https://www.jstor.org/stable/pdf/10.7249/j.ctt14bs1nj.9.pdf.
[xxiv] Kingston Reif, “U.S. Continues Intermediate-Range Missile Pursuit,” Arms Control Association, last modified June 2020, https://www.armscontrol.org/act/2020-06/news/us-continues-intermediate-r....
[xxv] Joseph A. Day, “A New Era For Nuclear Deterrence? Modernisation, Arms Control, and Allied Nuclear Forces,” NATO Parliamentary Assembly, last modified 12 October 2019, https://www.nato-pa.int/download-file?filename=sites/default/files/2019-....
[xxvi] Steve Andreasen, Isabelle Williams, Brian Rose, Hans M. Kristensen, and Simon Lunn, “Building a Safe, Secure and Credible NATO Nuclear Posture,” Nuclear Threat Initiative, January 2018, https://media.nti.org/documents/NTI_NATO_RPT_Web.pdf.
[xxvii] “NATO Secretary General Jens Stoltenberg Remarks at the Brussels Forum,” NATO, last modified 23 June 2020, https://www.nato.int/cps/en/natohq/opinions_176715.htm?selectedLocale=fr....
[xxviii] Vienna Convention on the Law of Treaties art. 32, opened for signature 23 May 1969, 1155 U.N.T.S. 331.
[xxix] Flint Colin and Peter J. Taylor, “Territoriality, State and Nation in Political Geography,” World Economy: Nation State and Locality 96 (1985); see also Restatement (Third) of the Foreign Relations Law of the United States §402(1)(a) (1987) (“a state has jurisdiction to prescribe law with respect to…conduct that, wholly or in substantial part, takes place within its territory.”)
[xxx] Oliver Schmidtt, “International organization at war: NATO practices in the Afghan campaign,” SAGE 52, no. 4 (3 April 2017): 502–18, https://doi.org/https://doi.org/10.1177/0010836717701969.
[xxxi] National Defense Authorization Act for Fiscal Year 2020, H.R. Rep. 2500, 116th Cong; Donald J. Trump (@realDonaldTrump), Twitter (Jul. 10, 2018, 5:42 AM) (“NATO countries must pay MORE, the United States must pay LESS. Very Unfair!...The U.S. is spending many times more than any other country in order to protect them” and its not fair to the U.S. tax payer.”
[xxxii] Jim Mattis and Bing West, Call Sign Chaos: Learning to Lead. 2019.
[xxxiii] “Justice O’Connor Notes Importance of International Law.” Death Penalty Information Center, last modified 28 October 2004, https://deathpenaltyinfo.org/news/justice-o-connor-notes-importance-of-i... on Oct 28%2C 2004.
[xxxiv] Julian G. Ku and John Yoo, “Globalization and Sovereignty,” Berkeley Journal of International Law (2013): 210–12.
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