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Diplomacy in Action

125. Statement, Ambassador Greg Govan, regarding issue of state consent with respect to CFE Treaty (March 9, 1999)


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Statement in the Joint Consultative Group
Vienna, 9 March 1999

The concept of consent by any state to a foreign military presence on its sovereign territory is derived from fundamental precepts of sovereign authority. That concept of consent was laid down in the original Treaty. Article IV, paragraph 5 establishes a requirement for consent of the host state to the presence on its territory of the forces of another State Party. This is a Treaty obligation reinforcing the mandate of international law. Due notice must also be taken of the fact that consent is required for "forces", not just for armaments and equipment limited by the Treaty. It is our understanding that the intent of this provision was to make foreign military presence without host nation consent a violation of the CFE Treaty, if States Parties were involved, in addition to such an actor circumstance being against other international laws and norms of behavior. We strongly adhere to this interpretation and reject any contrary explanation.

Although Article IV, paragraph 5 uses the term "stations", we believe that it covers all forces present, regardless of type, composition, or purpose. There is no exemption in the consent clause for what, in one Treaty region, might be called "temporary deployments", nor for any other kind of presence, such as transits or military exercises. In short, although "stationed forces" has come to refer informally to foreign forces present on another's territory "permanently" or for extended duration, the CFE Treaty consent requirement for stationing, as that term is used in paragraph 5, Article IV, applies to all foreign forces present, for whatever purpose, and under whatever CFE Treaty status.

We believe that consent is conditional, as determined by the host, to include:

 • the size or composition of foreign forces, to include limits on its TLE;

 • the duration for all or part of the foreign presence;

 • the locations where foreign forces are permitted or from which they are prohibited;

 • the requirement that the forces comply with all CFE obligations'

 • distribution of costs for inspection and other activities of a Treaty

nature that incur to the host by virtue of the foreign military

presence;

 • other measures, to include environmental protection, that are often part of so-called "status of forces agreements" between host and stationing state.

We also firmly hold that consent may be withdrawn as well as given. At any time, a host state may withdraw consent, and the foreign forces must initiate a timely and prompt withdrawal. Granting or withdrawing consent is a sovereign right, and is not subject to rebuttal by any State Party attempting to establish or maintain its forces on the territory of another State Party. The existence of a prior bilateral agreement that is not associated with the CFE Treaty cannot serve as a basis for circumventing the CFE consent requirement, or for claims that the requirement has been fulfilled in the face of a contemporary denial of consent by the host State Party.



United States Delegation to the Joint Consultative Group Vienna, 9 March 1999



It is precisely because we consider consent so important that we have wholeheartedly endorsed repetition of the requirement for consent in each and every case where the adapted CFE Treaty speaks about a foreign military presence. This does not mean that we in any way restrict consent to this or that foreign military presence only. It only underscores the importance of consent as a general rule, to be applied in each specific instance.

There is a straight and unwavering line from Article IV, paragraph 5 running through all of NATO's proposals for express consent for use of headroom, for transits, for military exercises - in short, for any foreign military presence under an adapted CFE Treaty. We believe this general principle should be reinforced. We believe that it should be made explicit and specific in notifications that act as a public manifestation of host State Party consent to or rejection of the presence of foreign military forces. And because abuse or circumvention of the consent requirement is a direct violation of the CFE Treaty as well as of international law, we shall judge any such occurrences very seriously and react accordingly.



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