August 14, 2017
Nikolai Sokov
This article originally appeared in The Hill on August 10, 2017.
The U.S. House of Representatives recently approved a provision in the fiscal 2018 defense authorization bill (H.R. 2810) to develop a medium-range conventional ground-launched cruise missile — a move that, is prohibited by the 1987 Intermediate Nuclear Forces (INF) Treaty. Now the bill is in the Senate.
Supporters justify the move as an appropriate response to Russia’s recent violation of the treaty. Given the current anti-Russia climate in Congress, the Senate may feel tempted to match the House’s move.
However, the proposed congressional action risks opening a Pandora’s Box of issues that are far more fundamental than the INF Treaty. If Congress acts on the INF Treaty, especially if it acts in the manner that has been proposed, its decision will affect the status of international treaties under U.S. law and, consequently, the reliability of U.S. obligations under ALL international treaties.
The Unfinished Business of the Vienna Convention
The status of international treaties is governed by the 1969 Vienna Convention, which the United States has signed, but not ratified. The convention places international treaties above domestic law in certain respects: Once a country joins a treaty, it cannot adopt new laws that contravene it. That principle would make the INF Treaty-related language in H.R.2810 impossible.
Since the United States is not party to the Vienna Convention, the status of international treaties in U.S. law is unclear. Following the failed attempt to ratify it in 1971, the United States has treated it as “customary law” and all branches of the U.S. government have carefully avoided situations that could force them to bring greater clarity to the standing of international treaties. This issue has largely remained an esoteric field debated by legal experts who have not been able to come to an agreement.
