Russia May Invoke Force Majeure Clause of New START in Response to Possible US Sanctions

According to press reports, a senior Russian military spokesperson has announced that Russia may invoke force majeure clauses in arms reduction treaties to restrict foreign inspection visits in Russia. In 2010, Russia and the US signed the New START treaty pursuant to which the nations committed to make cuts in their respective nuclear arsenals.   The treaty was signed on April 8, 2010 in Prague and entered into force on February 5, 2011.[1] Since its entry into force, close to 6,000 notifications pursuant to the treaty have been exchanged between the U.S. and Russia.[2] The Bilateral Consultative Commission (BCC) for the New START has worked effectively at implementing the treaty and consulting on other issues raised by parties arising under the treaty.  Furthermore, Vienna Document 2011 on Confidence- and Security-Building Measures (“Vienna Document 2011”) between Organization for Security and Cooperation in Europe (OSCE) members also envisages mutual inspections between Russian and NATO militaries as part of confidence-building measures.[3]

The force majeure clause in New START is found in the Protocol to the Treaty Between the United States of America and the Russian Federation on Measures for the Further Reduction and Limitation of Strategic Offensive Arms contains a force majeure clause in Section IX.[4] Pursuant to Section IX, Cancellation of Inspection Activities:

1. An inspection activity shall be cancelled if, due to circumstances brought about by force majeure, it cannot be conducted. If an inspection is cancelled due to circumstances brought about by force majeure, the number of inspections to which the inspecting Party is entitled shall not be reduced.

For exhibitions cancelled due to circumstances brought about by force majeure, the Parties shall agree on the new periods of time for conducting such exhibitions.

2. In the case of a delay, including a delay due to circumstances brought about by force majeure, that prevents an inspection team from arriving at the inspection site during the time specified in paragraph 7 of Section V of this Part, the inspection team leader may cancel or conduct the inspection. If an inspection is canceled for that reason, the number of inspections to which the inspecting Party is entitled shall not be reduced.[5]

The force majeure clause in Vienna Document 2011, Section IX, Compliance and Verification, Inspection, provides:

78.    An inspection will not be counted if, due to force majeure, it cannot be carried out.

(78.1) If the inspecting State is prevented from carrying out an inspection due to force majeure, it shall explain in detail the reasons without delay.

(78.2) If the receiving State is prevented from accepting an inspection due to force majeure, it shall without delay, through diplomatic or other official channels, explain in detail the reasons and provide, if possible, an estimated duration of the circumstances giving rise to the claim of force majeure. This may take place as follows:

(78.2.1) – through the reply to the relevant request for an inspection; or

(78.2.2) – through an appropriate communication delivered to the inspecting State after replying positively to the request for an inspection and before the inspection team has arrived at the point of entry; or

 (78.2.3) – after the arrival of the inspection team at the point of entry. In this case, a corresponding explanation shall be provided immediately to the leader of the inspection team.

79.       The participating State which has received such a request will reply in the affirmative to the request within the agreed period of time, subject to the provisions contained in paragraphs (76) and (77).

The reasons offered by Moscow for the force majeure or countermeasure or reprisal (depending on one’s viewpoint) was the imposition of targeted sanctions by the U.S. against Russian and Ukrainian nationals, and other “unfriendly acts by the U.S. and NATO” with respect to Russia’s Ukraine policy.  As of March 8, 2014, these unfriendly acts presumably include:  (1) U.S. Defense Secretary Chuck Hagel’s announcement on March 6, 2014 to suspend all military-to-military engagements and exercises with Russia; (2) a series of steps U.S. Defense Department will take to reinforce allies in Central and Eastern Europe during this crisis;[6] (3) reinforcement of NATO troops in Poland and presence of a U.S. guided-missile destroyer (USS Truxtun) in the Black Sea.

Legal excuses occasioned by force majeure are typically unavoidable or insurmountable obstacles to performance.  Article 23 of the Articles on Responsibility of States for Internationally Wrongful Acts requires the occurrence of an “irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.”[7] Force majeure cannot be invoked if the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking, or, the State has assumed the risk of that situation occurring.[8]

To avoid legal obligations under related doctrines such as fundamental change of circumstances, rebus sic stantibus, a state has to show that the burden of performance has been increased drastically such that performance would imperil the existence or vital development of some of the parties.[9]

Russia’s force majeure claim under New START seems weak given that Section IX contemplates something akin to impossibility, rather than mere impracticability or inconvenience, of performance (“An inspection activity shall be cancelled if, due to circumstances brought about by force majeure, it cannot be conducted.”) (emphasis added).  Given the tense nature of negotiations between the U.S. and Russia, compliance with the inspection requirements is certainly inconvenient for both parties, but bilateral performance by both states remains entirely possible.  To counter Russia’s force majeure claim, Western partners may assert that Russia’s involvement in Ukraine precipitated the crisis, and consequently that Russia assumed the risk of the ensuing situation. A similar counter-response from Russia would point to evidence of U.S. and EU intervention in Kiev.  A rational, empirically-based resolution to this standoff can only be compromise or good faith adherence to the recommendations of a multilateral truth-finding commission to determine the identities and command-and-control structures of both opposition and pro-Russian groups operating within Ukraine.

A far more troubling development for analysts is the tactical deployment of informal ‘threats of sanctions’ or ‘threats of force majeure’ to attain negotiation leverage either on the issue of Ukraine, or possibly other issues.  If in the minds of Russian policymakers the current political uncertainty in Ukraine constitutes force majeure for purposes of a major arms reduction treaty, it seems to open the door to force majeure claims in private transnational contracts predicated on political stability in Ukraine, such as the Gasprom-Ukraine and various Gasprom-EU agreements.

[5] Id. at 138.

[6] (reporting on arrival of six F-15 fighters in Lithuania and increased joint training between US and Eastern European NATO partners).

[9] Fisheries Jurisdiction Case, UK v. Iceland, 1973 I.C.J. Reports 3, at para. 38.

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