May 25, 1999
The Legal Status of the ABM Treaty
Feith, Douglas J., former Deputy Assistant Secretary of Defense
for Negotiation Policy, partner, Feith & Zell; accompanied by
George Miron, Washington, DC................................... 228
Prepared statement of........................................ 231
Supplementary remarks of Douglas J. Feith and George
Miron on the Legal Status of the ABM Treaty............ 304
Glennon, Michael J., professor of law, the University of
California, Davis, CA.......................................... 276
Prepared statement of........................................ 280
Rivkin, David B., Jr., partner, Hunton & Williams, accompanied by
Lee A. Casey, Washington, DC................................... 263
Prepared statement of........................................ 265
Letter to Senator Helm forwarding additional
documentation.......................................... 272
Text of a letter from the President to the Chairmen of
the Senate and House Committees on Appropriations...... 273
Report to Congress on the Memorandum of Understanding
relating to the treaty between the United States of
America and the Union of Soviet Socialist Republics on
the Limitation of Anti-Ballistic Missile Systems--May
26, 1972............................................... 273
Turner, Robert F., associate director, School of Law, Center for
National Security Law, University of Virginia, prepared
statement...................................................... 313
S. Hrg. 106-339
BALLISTIC MISSILES: THREAT AND RESPONSE
=======================================================================
HEARINGS
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
APRIL 15 AND 20, MAY 4, 5, 13, 25, 26, AND SEPTEMBER 16, 1999
__________
Printed for the use of the Committee on Foreign Relations
<snowflake>
Available via the World Wide Web: http://www.access.gpo.gov/congress/senate
U.S. GOVERNMENT PRINTING OFFICE
56-777 CC WASHINGTON : 2000
COMMITTEE ON FOREIGN RELATIONS
JESSE HELMS, North Carolina, Chairman
RICHARD G. LUGAR, Indiana JOSEPH R. BIDEN, Jr., Delaware
PAUL COVERDELL, Georgia PAUL S. SARBANES, Maryland
CHUCK HAGEL, Nebraska CHRISTOPHER J. DODD, Connecticut
GORDON H. SMITH, Oregon JOHN F. KERRY, Massachusetts
ROD GRAMS, Minnesota RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas PAUL D. WELLSTONE, Minnesota
CRAIG THOMAS, Wyoming BARBARA BOXER, California
JOHN ASHCROFT, Missouri ROBERT G. TORRICELLI, New Jersey
BILL FRIST, Tennessee
Stephen E. Biegun, Staff Director
Edwin K. Hall, Minority Staff Director
(ii)
THE LEGAL STATUS OF THE ABM TREATY
----------
TUESDAY, MAY 25, 1999
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 2:31 p.m., in
room D-562, Dirksen Senate Office Building, Hon. John Ashcroft
presiding.
Present: Senator Ashcroft.
Senator Ashcroft. This hearing will come to order, please.
I am delighted to convene this hearing. You are witnessing what
happens to a Senator who tries to run up five flights of
stairs. But I am delighted to be here.
Senator Biden, I believe, will be coming later. We have had
several votes scheduled, which commenced at 2:15. They will be
intermittent, and I thought it best if we could get underway.
This is a hearing on the legal status of the ABM Treaty.
First ratified in 1972, the treaty has been, for some, the
sacred text of arms control agreements, the underlying basis
for nuclear arms reduction with the former Soviet Union. Even
though the level of offensive nuclear warheads increased by
over 400 percent after the treaty entered into force,
proponents of the agreement continue to argue it is the
``cornerstone of strategic stability.''
It is my view that the treaty has never achieved its
objectives and, at present, poses a particularly grave threat
to the security of the United States and to the stability of
the world. It is in this context that we discuss the legal
status of the treaty.
When the Soviet Union disintegrated in 1991, the State
Department was in the process of reviewing how it would handle
U.S. treaty relationships with the USSR. In an effort to
encourage stability during a chaotic time, the Bush
administration adopted a model of ``presumptive continuity''
where treaties with the USSR would be presumed to continue with
appropriate successor States.
The Bush administration's policy was not an automatic
continuity or continuation of all treaties with the USSR, but
provided a framework to review each agreement and determine
necessary changes. Such a review was particularly important for
arms control agreements. As President Clinton stated in a
letter to Congressman Gilman in March 1997, and I quote,
``Particularly in the area of arms control, a case-by-case
review of each agreement was necessary.''
In that case-by-case review, the administration negotiated
a memorandum of understanding [MOU] on succession to the ABM
Treaty. The MOU, was concluded in September 1997 and identified
Ukraine, Belarus, Kazakhstan and Russia as the successor states
to the treaty. This selection of successor states seemed to be
consistent with a statement by the President that, and I quote,
``neither a simple recognition of Russia as the sole ABM
successor (which would have ignored several former Soviet
States with significant ABM interests) nor a simple recognition
of all NIS, Newly Independent States, as full ABM successors
would have preserved fully the original purpose and substance
of the treaty, as approved by the Senate in 1972.'' That was
the letter from the President to Congressman Gilman.
The administration went on to reiterate in that same letter
that the MOU on succession ``works to preserve the original
object and purpose of the treaty.''
To summarize, the administration believed in 1997 that
recognition of Russia alone or all of the successor states
together would not have preserved the original purpose of the
treaty. The administration negotiated the memorandum of
understanding to preserve the original purpose of the treaty.
The administration's initial formulation for the legal status
of the ABM Treaty begs two questions, however. First, if the
MOU is essential to preserve the original purpose of the ABM
Treaty, what is the status of the treaty since the MOU has not
been ratified? Second, if the MOU is rejected by the Senate,
what will be the status of the ABM Treaty?
The answer to those two questions must be the same, and it
is the answer that this administration does not want to hear.
The fact that this treaty cannot be carried out without the MOU
is evidence enough that it expired with the collapse of the
Soviet Union. The fact that this treaty cannot be carried out
without the MOU on succession is evidence enough that this
treaty will remain void if the Senate rejects the succession
arrangement.
That is a key point my colleagues in the Senate need to
understand. This is not just a debate on a succession
arrangement to the ABM Treaty. If the administration ever
submits the MOU on succession to the Senate, this will be a
vote to revive an expired treaty, a vote on the ABM Treaty of
1999.
When faced with this uncomfortable fact and the awareness
that the Senate would almost certainly reject MOU, the
administration modified its legal argument on ABM Treaty
succession. When pressed on the status of the ABM Treaty if the
MOU on succession is rejected by the Senate, President Clinton
wrote to Congressman Gilman and Senator Helms in a subsequent
letter.
``Belarus, Kazakhstan and Ukraine each has ABM Treaty-
related assets on its territory. Each has participated in the
work of the SCC, [the Standing Consultative Commission of the
treaty], and each has affirmed its desire to succeed to the
obligations of the former Soviet Union under the treaty.
``Thus,'' and I continue to quote, ``a strong case can be
made that even without the MOU, these three states are parties
to the treaty . . . Finally, the United States and Russia
clearly are parties to the treaty. Each has reaffirmed its
intention to be bound by the treaty, and each has actively
participated in every phase of the implementation of the
treaty, including the work of the SCC; and each has on its own
territory extensive ABM Treaty-related facilities. Thus there
is no question that the ABM Treaty has continued in force and
will continue in force, even if the MOU is not ratified.'' That
letter from Clinton to Gilman and Helms, May 21, 1998.
Only 6 months after stating that neither Russia alone nor
all the successor states could fulfill the original purpose of
the treaty, the President argues that clearly Russia is a party
to the treaty, and a few other successor states may also be
parties. Such inconsistency from the administration on a matter
this important to U.S. national security is troubling. Indeed,
administration lawyers briefing Congress in January 1998 could
not say whether any country which emerged from the Soviet Union
was bound by the ABM Treaty.
Such ambiguity within the administration makes it all the
more clear that the ABM Treaty will expire and will remain void
unless the Senate approves the MOU on succession. The MOU is
necessary because the treaty cannot be fulfilled without
amending. The territory covered by the treaty is changed.
Additional parties are added to the treaty. Treaty mechanisms,
such as the Standing Consultative Commission, are altered, and
the strategic landscape upon which the ABM Treaty was based is
dramatically different. These are substantial amendments to the
treaty. And in our constitutional form of government, the
Senate has a responsibility to advise and consent on such
amendments.
As is well established in U.S. law, and I quote, ``A
significant amendment to a treaty must follow the mandate of
the treaty clause and therefore must be proposed by the
President and be ratified following the advice and consent of
the Senate,'' New York Chinese T.V. Programs, Inc., vs. U.E.
Enterprise, 954 Fed 2d.
I find it hard to understand why my Democratic colleagues,
many of whom waged an extensive fight in the eighties over the
interpretation of several words in the ABM Treaty, are not
defending the Senate's prerogative to approve these dramatic
changes in the treaty today. Congress has made its will clear
with regard to succession arrangements for the ABM Treaty.
The Senate gave its advice and consent to the CFE Flank
Document in May 1997 and attached a condition that any
successor arrangement to the ABM Treaty be submitted for the
Senate's advice and consent. In accepting this condition, the
administration is bound not to recognize any party to the ABM
Treaty until the Senate approves a successor arrangement.
We will discuss the compelling constitutional and
international law arguments surrounding the treaty status
today, but the condition in the CFE Flank Document for me
removes all doubt that this treaty is not in force until the
Senate approves a succession arrangement. It is noteworthy that
the State Department's senior arms control lawyer takes a
different view than the White House on the legal status of the
ABM Treaty.
While the President argues that the treaty certainly is in
force, at least with Russia, Mary Elizabeth Hoinkes recently
stated, ``Absent a succession agreement, we do not have a firm
treaty relationship.'' She made that statement in the Forum on
the ABM Treaty sponsored by the Center for National Security
Law of the University of Virginia School of Law in February of
this year. She may be swimming against the tide within the
administration, but her intellectual honesty is appreciated.
The President is bound by the Constitution to submit these
treaty amendments to the Senate for advice and consent. And the
condition of the CFE Flank Document will help him fulfill his
constitutional responsibilities. I do not believe that he can
de facto recognize Russia, or any other former Soviet Republic,
as a party to the treaty before the Senate consents.
Some of the legal arguments that will be discussed today
are complex, but the central point of this hearing is that the
ABM Treaty is expired and will remain expired unless the Senate
approves a succession arrangement.
I thank you all for your additional patience.
It is now my pleasure to call the first panel to testify,
and I am pleased that each of you has come today. Mr. Douglas
Feith, former Deputy Assistant Secretary of Defense for
Negotiation Policy and a partner at Feith and Zell. Mr. Feith
is accompanied by Mr. George Miron, a partner at Feith and
Zell; Mr. David Rivkin, partner at Hunton and Williams,
accompanied by Mr. Lee Casey, associate at Hunton and Williams;
and finally Professor Michael Glennon, professor of law at the
University of California, Davis.
Welcome to the committee. Mr. Feith, if you would please,
begin.
STATEMENT OF DOUGLAS J. FEITH, FORMER DEPUTY ASSISTANT
SECRETARY OF DEFENSE FOR NEGOTIATION POLICY; PARTNER, FEITH &
ZELL, WASHINGTON, DC
Mr. Feith. Thank you, Mr. Chairman. My colleague, George
Miron, and I are honored to have the opportunity to testify
before this committee this afternoon. First of all, I would
like to extend condolences to the committee on the passing of
Admiral Bud Nance. Admiral Nance and I worked together at the
National Security Council at the beginning of the Reagan
administration.
Senator Ashcroft. We are very pleased to receive those. The
entirety of the Foreign Relations Committee mourns his passing
and misses him profoundly.
Mr. Feith. Mr. Chairman, the full testimony that we wish to
present is contained in our legal memorandum, which we provided
to the committee. The memorandum is lengthy, so we respectfully
ask the committee to include it in the record of these
hearings. And I now propose to make only a summary opening
statement.
Senator Ashcroft. Without objection, the entire memorandum
will be part of the record of the hearing.
Mr. Feith. Thank you.
Mr. Chairman, our legal analysis of the status of the ABM
Treaty of 1972 concludes that following the Soviet Union's
extinction, the ABM Treaty did not become a treaty between the
United States and the Russian Federation. Rather, as a
bilateral, non-dispositive treaty, the ABM Treaty lapsed when
the USSR ceased to exist. In December 1991, new states that
emerged on what had been USSR territory declared independence,
announced the formation of the Commonwealth of Independent
States, and proclaimed that the USSR, ``as a subject of
international law and a geo-political reality, no longer
exists.''
Soon thereafter, the United States acknowledged that the
USSR had dissolved and is no more. The United States has
officially expressed its view that upon a state's extinction,
that state's bilateral treaties automatically lapse. The U.S.
Government has acted in accordance with that view in connection
with the extinction of the Kingdom of Hawaii in 1898, the
dissolution of the Austro-Hungarian Empire at the end of World
War I, and the dissolution of Yugoslavia in 1992.
The U.S. view is consistent with the opinion of
international legal scholars who have addressed that issue.
With consistency over more than 200 years, scholarly writings
state that when a state ceases to exist, or becomes extinct in
legal parlance, that state's treaties have no further effect.
Such treaties are said to lapse. The lapsing occurs by
operation of law, which is to say automatically, upon the
state's extinction. It does not require action by any other
treaty party. No judicial decision or applicable treaty
contradicts this principle. And U.S. Supreme Court has
established that works of international legal scholars can be
accepted as evidence of the law.
In 1898, the State Department stated, as a principle of
public law, that a treaty expires when one of the parties
``loses its existence.'' In support, the State Department
quoted from General Henry Halleck well-regarded treatise,
International Law, which was written in 1861.
Halleck said that the principle of public law, which causes
treaties, when a party ceases to exist, to be regarded as
abrogated, is thus stated, ``The obligation of treaties, even
where some of their stipulations are in their terms perpetual,
expire in case either of the contracting parties loses its
existence as an independent state.''
In 1897, U.S. Secretary of State John Sherman invoked
scholarly works to explain to the Government of Japan why the
treaties made by the Kingdom of Hawaii would not survive the
U.S. annexation of the Kingdom's territory. He said it is not
the treaty by which the U.S. annexed Hawaii that abrogates the
Hawaiian Kingdom's treaties, rather ``it is the fact of
Hawaii's ceasing to exist as an independent contractant that
extinguishes those contracts.''
Likewise in 1902, Secretary Elihu Root ordered to be
published a report by a law officer in the Office of the
Secretary of the War Department, which dealt with the treaty
obligations of extinct states. That report says, ``Where there
is a complete change not only of sovereigns but of sovereignty
of necessity the agreement ends.'' Similar observations include
the following: ``It is clear that political, including personal
and dynastic treaties of the extinguished state fall to the
ground.'' That was written by Professor Amos Hershey, the
University of Indiana, in 1911.
``The extinction of the personality of a state results
traditionally in an abrogation of all political and military
treaties concluded between the now extinct entity and other
states,'' Professor Gerhard von Glahn, University of Minnesota,
in 1962.
Many other scholars have expressed the same opinion.
Neither U.S. nor Russian officials deny that the Soviet
Union ceased to exist in December 1991. Its international legal
personality terminated. In other words, it is not in dispute
that the Commonwealth of Independent States and the U.S.
Government in 1991 were accurate when they declared that the
Soviet Union had ceased to exist as a state.
I also would emphasize that the ABM Treaty, as we all know,
was a bilateral treaty. As noted, scholars for over 200 years
have been nearly unanimous in concluding that upon a state's
extinction, its bilateral treaties that are not dispositive
lapse. And a treaty is dispositive if it irrecoverably fixes a
right to a particular territory; for example, delineates a
boundary between states. And the ABM Treaty was not a
dispositive treaty. Dispositive treaties are also supposed to
be--are treaties that were intended to be perpetual, no matter
what happens to the parties. The ABM Treaty, by its own terms,
can be abrogated on 6 months' advance notice by the parties,
which also makes it clear that it was not a dispositive treaty.
No judicial decision contradicts the scholarly view that a
non-dispositive, bilateral treaty of an extinct state does not
automatically become a treaty of its successor or successors.
The United States has never declare that it considered itself
bound by international law to accept as a treaty partner the
successor to an extinct state.
Now the President has constitutional authority to grant
recognition to foreign states. Were he to rely on that
authority as the legal basis for making a treaty, bringing into
being a treaty that would not otherwise exist, he would put the
United States under a legal obligation to other states without
Senate advice and consent. The President's recognition
authority cannot be exercises in a manner that would nullify
the U.S. Senate's authority to advise and consent to the making
of a treaty.
The President cannot, without Senate approval, bring a
lapsed treaty back to life by declaring that a given foreign
state is the successor or continuation of an extinct state. And
it is principles of international law that govern the issue of
whether a state has become extinct.
However broad the President's authority may be to recognize
states and governments of states under the U.S. Constitution's
Receive Ambassadors Clause, it is necessarily limited by the
specific constitutional requirement for Senate advice and
consent on the making of treaties. In sum, when the USSR became
extinct, its bilateral, nondispositive treaties lapsed, hence
the ABM Treaty lapsed. By operation of law, that is
automatically. It did not become a treaty between the United
States and Russia.
The practical conclusion relating to this committee's work
of this description of the law is that the multilateralization
memorandum of understanding that you, Mr. Chairman, discussed
in your opening remarks is not simply an amendment of an
existing treaty. It would be a new treaty. If approved, as you
noted, it would create the ABM Treaty of 1999. And if not
approved, the status quo would continue. That is, there would
be no legally binding international obligation prohibiting the
United States from deploying ballistic missile defenses.
Thank you, Mr. Chairman.
Senator Ashcroft. Thank you very much. Mr. Feith.
[The prepared statement of Mr. Feith and Mr. Miron and
material provided subsequent to the hearing follows:]
Prepared Statement of Douglas J. Feith and George Miron
Did the ABM Treaty of 1972 Remain in Force After the USSR Ceased to
Exist in December 1991?
and
Did it Become a Treaty Between the United States and the Russian
Federation?
i. introduction
This Memorandum concludes that, following the extinction of the
Union of Soviet Socialist Republics (``USSR''), the Anti-Ballistic
Missile (``ABM'') Treaty of 1972 did not become a treaty between the
United States and the Russian Federation. Rather, as a bilateral, non-
dispositive treaty, the ABM Treaty of 1972 between the United States
and the USSR lapsed when the USSR ceased to exist.
In December 1991, new States that emerged on what had been USSR
territory declared independence, announced the formation of the
``Commonwealth of Independent States'' (``CIS'') and proclaimed that
the USSR ``as a subject of international law and a geopolitical reality
no longer exists.'' By December 21, 1991, the list of States belonging
to the CIS and subscribing to the view that, with the CIS's
establishment, ``the Union of Soviet Socialist Republics ceases to
exist,'' comprised Azerbaijan, Armenia, Belarus, Kazakhstan,
Kyrgyzstan, Moldova, the Russian Federation, Tajikstan, Turkenistan,
Ukraine and Uzbekistan. Soon thereafter, the United States acknowledged
that the USSR ``is no more.''
In recent centuries, instances in which States have ceased to exist
have not been numerous. The United States has officially expressed its
view that, upon the extinction of a State, such State's bilateral
political treaties automatically lapse, and has acted in accordance
with that view in connection with the extinction of the Kingdom of
Hawaii in 1898, the dissolution of the Austro-Hungarian Empire at the
end of World War I, and the dissolution of Yugoslavia in 1992. The U.S.
view is consistent with the opinion of international legal scholars who
have addressed that issue. With consistency over more than a hundred
years, scholarly writings state that when a State ceases to exist
(becomes ``extinct'') that State's bilateral treaties have no further
effect. Such treaties are said to lapse or ``fall to the ground.'' The
lapsing occurs by operation of law--that is, automatically upon the
State's extinction. It does not require action by any other treaty
party. No judicial decision or applicable treaty contradicts this
principle, and the U.S. Supreme Court has established that ``where
there is no treaty and no controlling executive or legislative act or
judicial decision,'' works of international legal scholars are
acceptable as evidence of the law.
President William Clinton has taken the view that the ABM Treaty of
1972 remains ``in force.'' Representative Ben Gilman, Chairman of the
House Committee on International Affairs, asked President Clinton in a
June 1997 letter which State, if any, does the United States believe is
now its ABM Treaty partner. President Clinton in November 1997 replied
that the ``succession'' issue is ``unsettled,'' adding:
Neither a simple recognition of Russia as the sole ABM
successor (which would have ignored several former Soviet
states with significant ABM interests) nor a simple recognition
of all NIS [newly independent states] as full ABM successors
would have preserved fully the original purpose and substance
of the Treaty, as approved by the Senate in 1972.
Representative Gilman and Senator Jesse Helms, Chairman of the
Senate Foreign Relations Committee, wrote President Clinton in March
1998 and stated that, if the Administration cannot now identify any
country in addition to the United States that is bound by the treaty,
then Congress would have to conclude that the treaty is no longer in
force. In May 1998, President Clinton replied that the ABM Treaty is in
force between the United States and the Russian Federation. He did not
state the principle of law on which he based this conclusion. Nor did
he explain how this conclusion could be squared with his November 1997
response to Representative Gilman.
A. Assistant Attorney General Dellinger's Paper
The most extensive publicly available discussion of the ABM
Treaty's current legal status produced by a Clinton Administration
official is in the June 29, 1996 memorandum from Walter Dellinger,
Assistant Attorney General, Office of Legal Counsel, to Presidential
Counsel Jack Quinn (``Dellinger Paper''). The Dellinger Paper contends
that as a matter of international law the ABM Treaty did not lapse, for
these reasons: (i) The Treaty imposed a permanent burden on the
parties'' respective territories, which would bring the ABM Treaty of
1972 within the international legal doctrine of ``dispositive''
treaties (a treaty is dispositive if it irrevocably fixes a right to
particular territory, e.g. it delineates a border between two
States),\1\ (ii) U.S. past diplomatic practice assumes that bilateral
treaties ``generally'' survive a State's extinction, and (iii) Article
34 of the 1978 Vienna Convention on Succession of States in Respect of
Treaties embodies a general principle of law that bilateral treaties
survive a State's extinction. This Memorandum, concluding that the
Dellinger Paper is incorrect regarding international law, specifically
refutes the three foregoing bases for the contention that the ABM
Treaty of 1972 did not lapse.
---------------------------------------------------------------------------
\1\ The concept of dispositive treaties is elaborated infra Part
IV.K.
---------------------------------------------------------------------------
A.A.G. Dellinger separately argues that irrespective of
international law, the President can bring a treaty into existence
without Senate consent by exercise of ``exclusive'' Executive powers.
As this Memorandum shows, however, the President has no power to bring
a treaty into existence without Senate consent.
B. Methodology and Scope of this Memorandum
After addressing erroneous Constitutional law assertions in the
Dellinger Paper, this Memorandum examines the sources of international
law bearing on the question of whether, upon the USSR's extinction, the
ABM Treaty became a treaty between the United States and the Russian
Federation. This analysis does not describe the principles of
international law that govern the question of whether a party to a
treaty in force has grounds to terminate that treaty.\2\ Nor does it
describe the rules of international law for allocating the assets, the
debt or the archives of a State that has become extinct. Those rules,
parts of the law of ``State succession,'' do not resolve the question
of how a State's extinction affects what had been that State's
bilateral treaties. For example, although the United Nations and the
European Community have declared that no State is a continuation of the
Social Federal Republic of Yugoslavia (``SFRY''), they nonetheless
expect the successor States of the extinct SFRY to bear portions of the
SFRY's debt (in proportions to be determined by a continuing conference
of the successor States that is called the ``Brussels Process'').\3\
---------------------------------------------------------------------------
\2\ Grounds for termination of a treaty include the other party's
breach or fraud, and a fundamental change of circumstances that defeats
the treaty's object and purpose (the latter is referred to as the
doctrine of rebus sic standibus).
\3\ The Brussels Process is described in Declaration of Christopher
R. Hill, Director, Office of South Central European Affairs, United
States Department of State, filed in Federal Republic of Yugoslavia v.
Park-71st Corp., No. 95 Civ. 3659 (AGS) (S.D.N.Y.) (Sept. 21, 1995),
complaint dismissed, 913 F.Supp. 191 (S.D.N.Y. 1995) (App. 1). See also
The Ottoman Debt Arbitration (1925), I.R.I.A.A. 529 (debt of the
dissolved Ottoman Empire); Administration of Finances v. Ornstein, Ann.
Dig. 75 Roumanian Court of Cassation, Third Chamber (1926) (debt of a
successor of the Austro-Hungarian Empire); Restatement (Third) of the
Foreign Relations Law of the United States Sec. 209 (1986); P. K.
Menon, The Succession of States in Respect to Treaties, State,
Property, Archives and Debt 158-201 (1991); Parry and Grant,
Encyclopedic Dictionary of International Law 279 (1986); Thomas Baty,
Division of States: Its Effect on Obligations, 9 Transactions of the
Grotius Society, Problems of War and Peace 119, 121-26 (1923)
(published on behalf of the British Institute of International and
Comparative Law (1962)); Arthur Berridale Keith, The Theory of State
Succession with Special Reference to English and Colonial Law 99-100
(1907).).
---------------------------------------------------------------------------
This Memorandum attempts to describe international law as it would
be understood by a disinterested judicial tribunal resolving a dispute
between two States as to whether a particular treaty is in force
between them. This analysis assumes that the tribunal would (i) decide
for itself the relevant questions of fact and law and (ii) give the
parties' contentions the weight they deserved but would not be bound by
these contentions.
C. Summary of Conclusions
The pertinent sources of international law support the conclusion
that, upon the USSR's extinction, the ABM Treaty lapsed, so it no
longer has the force of international law. This conclusion is based on
the following observations:
1. In December 1991, as accurately characterized by
declarations of the CIS States and of the United States, the
changes that had recently occurred on what had been the USSR's
territory caused the USSR, by operation of law, to cease to
exist as a State--that is, such changes brought to an end the
international legal personality of the USSR.
2. The ABM Treaty of 1972 was a bilateral treaty.
3. The opinions of recognized scholars constitute evidence of
customary international law in a case in which there is (a) no
controlling judicial decision, (b) no controlling State
practice and (c) no otherwise controlling treaty.
4. Scholars are nearly unanimous in concluding that, upon a
State's extinction, its bilateral treaties that are not
``dispositive'' do not by operation of law, i.e.,
automatically, become treaties between the extinct State's
successor and the extinct State's treaty partner--that is, such
bilateral treaties lapse.
5. No judicial decision contradicts the scholarly view that a
non-dispositive bilateral treaty of an extinct State does not
automatically become a treaty of its successor or successors.
The U.S. practice is generally consistent with the scholars'
view.
6. The United States has never before considered itself bound
by international law to accept as its treaty partner the
successor to an extinct State.
7. The 1978 Vienna Convention on Succession of States in
Respect of Treaties does not bind the United States because the
United States is not a party to the Convention.
8. The 1978 Convention in any event would not impose the ABM
Treaty on the United States because the imposition would be
incompatible with the ABM Treaty's object and purpose.
9. Article 34.1 of the 1978 Vienna Convention on the
succession of States in Respect of Treaties has not passed into
customary international law.
10. The ABM Treaty did not become a treaty between the United
States and the Russian Federation by devolution.
11. The ABM Treaty was not a dispositive treaty.
ii. u.s. constitution
This Memorandum deals primarily with the international law issues
relating to the current legal status of the ABM Treaty of 1972. As the
Dellinger Paper, however, puts forward a combination of international
law and U.S. Constitutional law arguments, it is necessary to say why
Dellinger's Constitutional law contentions are erroneous.
The Dellinger Paper asserts that, regardless of whether under
international law the ABM Treaty of 1972 became a treaty with the
Russian Federation, an ABM treaty was brought into existence by
agreement of the Russian Federation and the President of the United
States, notwithstanding the absence of U.S. Senate advice and consent.
Dellinger contends that the terms of what he argues is an ABM treaty
between the United States and the Russian Federation are not so
different from those of the ABM Treaty of 1972 as to constitute a
substantive amendment of the latter. Dellinger does not argue that an
amendment to the ABM Treaty could have been Constitutionally
accomplished by an ``Executive Agreement''--that is, by an agreement
that would not have required Senate action. Rather, he cites powers--
i.e., to interpret treaties, to implement treaties, and to recognize
the existence of foreign States--that he asserts rest ``exclusively''
with the President. Dellinger also seems to argue that the Senate is
imputed with knowledge of the breadth (as Dellinger understands it) of
Presidential power vis-a-vis treaty-making, and therefore that, when
the Senate consents to a treaty, it implicitly authorizes later
Presidents to decide without further Senate consent whether the treaty
should become a treaty with a successor to the extinct State with which
the treaty had been made.\4\
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\4\ Dellinger does not espouse, and this Memorandum therefore does
not address, the thesis stated in Bruce Ackerman and David Golove, Is
NAFTA Constitutional?, 108 Harv. L. Rev. 799 (1995), that in the 1940s,
Congress and the President, without following a process for amendment
specified in Article V, expunged from the Constitution the requirement
of Article II that treaties require the concurrence of two-thirds of
the Senators present. For a skeptical view of the Ackerman/Golove
thesis, see Lawrence H. Tribe, Taking Text Seriously: Reflections on
Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev.
122 (1995).
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Dellinger's interpretation of the Constitution here is flawed. The
principal errors are these:
A. The President Does Not Have Exclusive Authority to Interpret
Treaties
Treaties, like statutes, are the supreme law of the land--under the
United States Constitution, Art. VI. Cl. 2 \5\--and, as a consequence:
``[T]he courts have authority to construe treaties. . . .'' \6\
Therefore, the Constitution vests in U.S. courts the authority to
interpret treaties definitively. In exercising that authority, courts
say they give great weight to interpretations suggested by the
Executive Branch,\7\ but the courts are not bound by those suggestions
and have on occasion rejected them.\8\
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\5\ U.S. Const. art. VI, cl. 2. See Foster v. Neilson, 27 U.S. (2
Pet.) 253 (1829); United States v. Schooner Peggy, 5 U.S. (1 Cranch.)
103 (1801); British Caledonian Airways Ltd. v. Bond, 665 F.2d 1153,
159-62 (D.C. Cir. 1981); Kenneth C. Randall, The Treaty Power, 51 Ohio
St. L.J. 1089, 1110-12 (1990)./
\6\ Japan Whaling Ass'n v. American Cetacean Society, 478 U.S. 221,
229 (1986), citing Baker v. Carr, 369 U.S. 186, 217 (1969), as holding
that ``courts have authority to construe treaties and executive
agreements.'' Doe v. Braden, 57 U.S. (16 How.) 635, 657 (1853);
Valentine v. United States, 299 U.S. 5, 11 (1936); Xerox Corp. v.
United States, 41 F.3d 647, 652 (1995); Alcan Aluminum Corp. v. United
States, 986 F. Supp. 1436, 1440 (Ct. Int'l Trade 1997), Snap-On Tools,
Inc. v. United States, 26 Cl. Ct. 1045, 1064 (Cl. Ct. 1997); United
States v. Busby, 1996 WL 927938 (N.M. Ct. Crim. App.) 3 (1996). For a
discussion of the principles courts use in interpreting treaties, see
James C. Wolf, The Jurisprudence of Treaty Interpretation, 21 U.C.
Davis L. Rev. 1023 (1988). Wolfe provides a list of 65 Supreme Court
decisions interpreting treaties, from 1795 to 1988. Id. at 1025 n.14.
\7\ United States v. Stuart, 489 U.S. 353, 369 (1989); Sumitomo
Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180-85 (1982); Kolovrat
v. Oregon, 366 U.S. 187, 194-95 (1961); The Amiable Isabella, 19 U.S.
(6 Wheat.) 1, 71 (1821); Air Canada v. United States Dept. of
Transportation, 843 F.2d 1483, 1487 (D.C. Cir. 1988). See also Military
Payment Orders and Certificates Issued to Prisoners of War--Treaty
Interpretation Claims Before and Subsequent to Treaty, 38 Comp. Gen. 7,
8 (B-136066, July 7, 1958) (``When there is a doubt as to the meaning
of a treaty provision, the construction of the treaty by the political
department of the government, while not conclusive, is given
weight.''); Sullivan v. Kidd, 254 U.S. 433, 442 (1920) (``While the
question of the construction of treaties is judicial in nature, . . .
the construction placed upon the treaty . . . by the Executive
Department . . . should be given much weight.'')./
\8\ David J. Bederman, Revivalist Canons and Treaty Interpretation,
41 U.C.L.A. L. Rev. 953, 962 (1994). See also Chan v. Korean Air Lines,
Ltd., 490 U.S. 122, 133-34 (1989) (Court rejects Executive Branch
interpretation of Article of the Warsaw Convention for the Unification
of Certain Rules Relating to International Transportation By Air);
Perkins v. Elg, 307 U.S. 325, 334-41 (1939) (Court rejects State
Department interpretation of treaty between United States and Sweden
relating to citizenship and naturalization); Haitian Centers Council,
Inc. v. McNary, 969 F.2d 1350, 1361-65 (2nd Cir. 1992), cert. granted,
judgment vacated as moot, Sale v. Haitian Centers Council, Inc., 509
U.S. 918 (1993) (Court of Appeals rejects as ``untenable'' the
Executive Branch interpretation of the 1951 Convention Relating to the
Status of Refugees, 969 F.2d at 1362); British Caledonian Airways Ltd.
v. Bond, 665 F.2d 1153, 1160-61 (1981) (court rejects Executive Branch
interpretation of Convention on International Civil Aviation); Galanis
v. Pallanck, 568 F.2d 234, 239 (2d Cir. 1977); Greci v. Birknes, 527
F.2d 956, 960 (1st Cir. 1976); Cannon v. U.S. Dept. of Justice, United
States Parole Commission, 973 F.2d 1190, 1192 (5th Cir. 1992); Mackin
v. United States, 668 F.2d 122, 132-43 (2d Cir. 1981); Abu Eain v.
Wilkes 641 F. 2d 504, 517-18 (7th Cir. 1981); Caltagirone v. Grant, 629
F.2d 739, 742-45 (2d Cir. 1980). Judicial treaty interpretation that
accepted as accurate the views of the Executive Branch include Kolovrat
v. Oregon, 366 U.S. 187, 192-93 (1961); Bacardi Corp. of America v.
Domenech, 311 U.S. 150, 157-64 (1940); Jordan v. Tashiro, 278 U.S. 123,
127-30 (1928).
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Perhaps the most celebrated case of judicial rejection of an
Executive Branch treaty interpretation is United States v. Libellants
and Claimants of the Schooner Amistad,\9\ the subject of the motion
picture ``Amistad.'' In that case, inhabitants of Africa who had been
kidnapped by Spaniards in violation of the laws of Spain mutinied on
the high seas and were later apprehended in Connecticut by American
officials. The Attorney General asked the court to order that the
detainees be delivered to persons claiming to be the detainees''
owners. The Attorney General argued that the Treaty of 1795 between the
United States and Spain should be construed to deny a person held in
custody a right to assert that he is not anyone's property. The Court,
per Justice Story, rejected the Attorney General's interpretation of
the Treaty: ``[T]he Treaty with Spain never could have intended to take
away the equal rights of all foreigners, who should contest their
claims before any of our Courts, to equal justice . . ..'' \10\
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\9\ 40 U.S. (15 Pet.) 518 (1841).
\10\ Id. at 596.
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Moreover, it is often impossible to measure the ``weight'' a court
gives to an Executive Branch view, because, at the same time that the
court announces that it is giving the Executive Branch view great
weight, the court has independently satisfied itself of the correctness
of that view. Thus, one court said it concurred in the State
Department's view because that view was ``coupled'' with the court's
conclusion that the view was ``based on supporting facts.'' \11\
Another court accepted the Executive Branch's interpretation of a
treaty after ``finding it well-founded and supported by the weight of
legal authority.'' \12\ One commentator observed:
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\11\ Matter of the Extradition of Demjanjuk, 612 F. Supp. 544, 562-
63 (N.D. Ohio 1985).
\12\ Ivancevic v. Artukovic, 211 F.2d 565, 573 (9th Cir.), cert
denied, 348 U.S. 818 (1954).
A typical passage from a court opinion interpreting a treaty
will begin with the acknowledgment that ``the views of the
State Department are ordinarily entitled to great weight'', but
then will go on to say in words or substance that ``we find
them wholly unpersuasive in the present case. . . .'' The
judicial adjectives to describe the State Department's various
communications on the meaning and application of the treaty
ranged from ``entirely conclusory'' to ``largely
insignificant'' to ``an aberration.'' \13\
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\13\ Lori Fisler Damrosch, Application of Customary International
Law by National Tribunals, 76 Am. Soc'y Int'l. L. Proc. 231, 252 (Apr.
22-24, 1982).
The most recent Supreme Court opinion interpreting a treaty, Sale
v. Haitian Centers Council, Inc.,\14\ devoted ten pages to an analysis
of the meaning of Article 33 of the 1951 Convention relating to the
Status of Refugees, including an examination of the history of the
drafting of the Convention, and a review of English-French dictionaries
to determine how the parenthetical use of ``refouler'' contributed to
understanding the meaning of the phrase ``expel or return
(``refouler'').'' That exercise would have represented needless effort
if the Court had believed that the Executive Branch's interpretation of
Article 33 was necessarily controlling.
---------------------------------------------------------------------------
\14\ 509 U.S. 155, 177-87 (1993).
---------------------------------------------------------------------------
One scholar observed:
Yet it is clear that the President's interpretive power is
limited. He cannot make an altogether new treaty and dispense
with the requirement of Senate advice and consent by calling
that treaty an ``interpretation'' of an earlier one. . . . The
President's semantic denomination of his act cannot by itself
control the procedure constitutionally required.\15\
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\15\ Michael J. Glennon, Constitutional Diplomacy 134 (1990). From
1977 to 1980, Professor Glennon was Legal Counsel to the United States
Senate Foreign Relations Committee.
The Judiciary's power to interpret treaties includes the power to
determine whether a treaty continues to exist. One court observed that
in exercising the power to decide whether a treaty exists, the court
gives weight to the Executive Branch's view when the court is satisfied
that that view ``is based on supporting facts.'' \16\
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\16\ Ivancevic v. Artukovic, 211 F.2d 565, 573 (9th Cir.), cert.
denied, 348 U.S. 818 (1954). In articulating the rule that courts
should give great weight to the Executive Branch view, courts place
varying degrees of emphasis on the weight they say they are giving to
the view of the Executive Branch. See, e.g., Terlinden v. Ames, 184
U.S. 270, 285 (1902), which, after reviewing the history of the
creation of the German Empire in the Nineteenth Century, found that in
the creation of the Empire, the Kingdom of Prussia had not lost its
identity, and therefore that the Treaty of extradition between the
United States and the Kingdom of Prussia remained in effect unless it
had later been terminated by one of the parties. On the issue of
whether the Treaty had been terminated, the court found no evidence of
``governmental action'' to terminate. The Court's inquiry into the
German Empire's constitution and the international law of treaties and
state succession in order to determine whether the treaty with Prussia
survived the formulation of the German Empire has been characterized as
``an ordinary adjudication in which the Court plays its usual role,
albeit with some deference to the evidence adduced by government
experts.'' Thomas M. Franck, Political Questions/Judicial Answers: Does
the Rule of Law Apply to Foreign Affairs? 23-25 (1992). Also, see Then
v. Melendez, 92 F.3d 851, 854 (9th Cir. 1996), which examined the
history of extradition treaties between the United States and the
United Kingdom to satisfy itself that none of the changes that occurred
when the British colony of Singapore emerged as an independent State
nullified, as to territory within Singapore, the 1931 U.S.-U.K.
extradition treaty. In reaching that conclusion, the court said it had
given great weight to the views of the Executive Branch as to the
historical facts, because ``federal courts are not as well equipped as
the Executive Branch to determine when the emergence of a new country
brings changes that terminate old treaty obligations.'' Similarly, in
Arnbjornsdottir-Mendler v. United States, 721 F.2d 679 (9th Cir. 1983),
after giving ``deference'' to the Executive Branch on extradition
matters, and after having made ``an independent review'' of Iceland's
``historical continuity,'' the court concluded that an extradition
treaty existed between the United States and Iceland. One Court of
Appeals decision, Saroop v. Garcia, 109 F. 3d 165 (3d Cir. 1997),
contains language to the effect that whether a treaty exists between
the United States and another State is a ``political question'' that no
American court has capacity to decide. That language was not necessary
to resolve the case, because the court held that in any event on the
question before it, the court would, as a matter of ``comity,'' defer
to a decision of the highest court of Trinidad and Tobago. In any
event, the discussion of the political question doctrine at notes 17-
20, infra, shows that the Executive Branch is expected to stay within
its zone of Constitutional authority, even when a case challenging its
encroachment cannot be presented to a court in a justiciable form.
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The preceding description of judicial paramountcy in treaty
interpretation is not intended to imply that every separation-of-power
dispute can be resolved by a court. Some cannot be so resolved, because
they are ``political'' questions, and therefore non-justiciable. For
example, whether a particular state measure fulfills the Constitution's
guaranty of a ``republican form of government'' is a non-justiciable
political question.\17\ But the fact that a particular action of the
Executive Branch cannot be tested in court does not give that Branch
carte blanche to encroach on another Branch. The Supreme Court made the
point in 1992 in United States Dept. of Commerce v. Montana: \18\
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\17\ Colegrove v. Green, 328 U.S. 549 (1946). See also Baker v.
Carr, 369 U.S. 186, 209 (1962).
\18\ 503 U.S. 442, 457-58 (1992).
In invoking the political question doctrine, a court
acknowledges the possibility that a constitutional provision
may not be judicially enforceable. Such a decision is of course
very different from determining that specific congressional
---------------------------------------------------------------------------
action does not violate the Constitution. (emphasis added)
As A.A.G. Dellinger stated in a May 1996 opinion, the Executive
Branch has an ``independent constitutional obligation to interpret and
apply the Constitution.'' \19\ Dellinger also stated that the Congress
as well as the President has a duty to resist unconstitutional
encroachment by the other Branch. Dellinger invoked a 1933 opinion of
Attorney General Mitchell:
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\19\ Walter Dellinger, Assistant Attorney General, Memorandum for
the General Counsels of the Federal Government, The Constitutional
Separation of Powers Between the President and Congress (May 7, 1996),
1996 WL 876050.
Since the organization of the Government, Presidents have
felt bound to insist upon the maintenance of the Executive
functions unimpa[i]red by legislative encroachment, just as the
legislative branch has felt bound to resist interferences with
its power by the Executive.\20\
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\20\ Opinion of Attorney General William Mitchell,
Constitutionality of Proposed Legislation Affecting Tax Refunds, 37 Op.
Att'y Gen. 56, 64 (Jan. 24, 1933).
In short, absence of an opportunity for judicial review for a
particular treaty interpretation would not give the President authority
to encroach on the Senate's power of advice and consent, or to arrogate
to himself the Congress'' power to nullify a treaty by means of a
statute that came into law without the President's signature, i.e., by
an override of a Presidential veto.
The rule that the Judiciary has the last word on treaty
interpretation was not impaired by the announcement in the Curtiss-
Wright Export case in 1936 that the President is the ``sole organ'' of
the federal government in the field of international relations.\21\
After Curtiss-Wright, as well as before, the Judiciary, not the
President, interpreted treaties definitively. That is not surprising,
given the narrowness of the issue resolved in Curtiss-Wright, i.e.,
whether the Congress, by Joint Resolution, could validly authorize the
President to issue regulations prohibiting a violation of a Joint
Resolution, when the President issued the proclamation the same day as
the Joint Resolution was adopted by both Houses.
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\21\ United States v. Curtiss-Wright Export Corp., 299 U.S. 304
(1936). For critical analyses of the ``sole organ'' dictum, see David
Gray Adler & Larry N. George, The Constitution and the Conduct of
American Foreign Policy 37-38 (1996); Raul Berger, Executive Privilege:
A Constitutional Myth, 133-35; Arthur Bestor, Respective Roles of
Senate and President in the Making and Abrogation of Treaties--The
Original Intent of the Framers of the Constitution Historically
Examined, 55 Wash. L. Rev. 1, 73-106 (1979); Randall, supra note 5, at
1106-11.
---------------------------------------------------------------------------
In the sixty-two years that followed the decision in Curtiss-
Wright, the Supreme Court has not invoked the ``sole organ'' doctrine
to deprive the judiciary of ultimate authority to interpret treaties.
Indeed, soon after Curtiss-Wright, the Court decided Guaranty Trust Co.
v. United States.\22\ The Court construed an executive agreement
between the United States and the Soviet Union (an agreement as to
which Senate advice and consent had not been obtained). In United
States v. Pink \23\ the Court referred to Guaranty Trust as supporting
the proposition that ``[e]ven Treaties with foreign nations will be
carefully construed so as not to derogate from the authority and
jurisdiction of the States.'' To the same purpose, the Court cited
Todok v. Union Bank of Harvard, Nebraska,\24\ construing a treaty
between the United States and Norway on testamentary disposition, where
``[t]he only question before us is the construction of the treaty.''
\25\
---------------------------------------------------------------------------
\22\ 304 U.S. 126 (1938).
\23\ 315 U.S. 203 (1942).
\24\ 281 U.S. 449 (1930).
\25\ Id. at 452.
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In short, whatever the sole organ doctrine may mean in other
contexts, it does not mean that the Executive Branch has exclusive
authority to interpret treaties. Indeed, it does not override the
judicial paramountcy in the interpretation of treaties.
Moreover, in light of the rule that a treaty, like a statute, is
the supreme law of the land,\26\ if the President had the final power
to interpret a treaty, he would have the de facto power to nullify or
``dispense with'' or ``suspend'' a treaty--that is, he would have a
power to suspend or dispense with a law. But the President has no power
to ``dispense with'' or to ``suspend'' a law--a principle announced in
United States v. Smith in 1806, which held that President James Madison
was bound by an Act of Congress that prohibited citizens from carrying
on war against a nation with which the United States was at peace.\27\
As the Court explained, ``because the President does not possess a
dispensing power,'' he cannot authorize anyone to disregard a
statute.\28\
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\26\ Reid v. Covert, 354 U.S. 1, 33 n.34 (1957); Whitney v.
Robertson, 124 U.S. 190, 194 (1888); Head Money Cases (Edy v.
Robertson), 112 U.S. 580, 599 (1884); Committee of the United States
Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 936 (D.C. Cir.
1988). As a consequence of the rule that a treaty, like a statute, is
the supreme law of the land, if a statute and a treaty conflict, ``the
one last in date will control the other.'' Whitney v. Robertson, 124
U.S. 190, 194 (1888) (plurality opinion), quoted in Breard v. Gilmore,
523 U.S. 371 (1998). To like effect is Reid v. Covert, 354 U.S. 1, 18
(1957).
\27\ The question of Presidential authority to terminate a treaty
unilaterally was the subject of Goldwater v. Carter, 617 F.2d 717 (D.C.
Cir.), vacated on other grounds, 444 U.S. 996 (1979), discussed infra.
\28\ United States v. Smith, 27 F. Cas. 1192 (C.C.D.N.Y. 1806). To
like effect is Kendall v. United States ex rel Stokes, 37 U.S. (12
Pet.) 524, 613 (1838) (The Supreme Court, in declaring invalid the
refusal of President Andrew Jackson's Postmaster-General to execute a
statute requiring payments to postmasters, stated that, allowing the
Postmaster-General, on the President's authority, to refuse to execute
a statute, ``would be vesting in the President a dispensing power,
which has no countenance for its support in any part of the
constitution; and is asserting a principle, which, if carried out in
its results, to all cases falling within it, would be clothing the
President with a power entirely to control the legislation of congress,
and paralyze the administration of justice.'')
---------------------------------------------------------------------------
In 1972, in United States v. Monongahela Connecting Railroad
Co.,\29\ District Judge Dumbauld stated: ``Of course there is no
``dispensing power'' in an executive or administrative agency unless
Congress has specifically granted it.'' Judge Dumbauld cited his own
work, Edward Dumbauld, The Constitution of the United States 7, 12
(1964), which describes the struggle between James II and the
Parliament that led to James II's abdication and exile, and the
acceptance by William and Mary in 1689 of the Bill of Rights, the first
article of which recites, ``That the pretended power of suspending
laws, of the execution of laws, by regal authority, without consent of
parliament is illegal.'' Id. at 12. That event is said to have
established that the King had no dispensing or suspending power, and
therefore made it unnecessary for the Framers of the Constitution to
make express that they were not allocating to the office of the
President a power to dispense with law. ``[N]ot even the most ardent
Antifederalists feared that the Constitution of 1787 had given the
President a power to suspend the laws.'' \30\
---------------------------------------------------------------------------
\29\ 351 F. Supp. 696, 698 (W.D. Pa. 1972).
\30\ Christopher N. May, Presidential Defiance of
``Unconstitutional Laws': Reviving the Royal Prerogative, 21 Hastings
Const. L.Q. 865, 885-88 (1994). See also National Treasury Employees
Union v. Nixon, 492 F.2d 587, 604 (D.C. Cir. 1974), quoting Kendall v.
United States on the lack of dispensing power, in explanation of why
the Court had jurisdiction to declare that the President had not obeyed
the Federal Pay Comparability Act. Similarly, in 1975, in Michigan Head
Start Directors Ass'n v. Butz, 397 F. Supp. 1124 (W.D. Mich. 1975), the
court based its decision ordering the Secretary of Agriculture to
comply with the National School Lunch Act on the absence of a
Presidential power to suspend legislation, ``a power not enjoyed by the
English Monarch since the Glorious Revolution of 1688.'' Also, in
Ameron, Inc. v. United States Army Corps of Engineers, 610 F. Supp. 750
(D.N.J. 1985), aff'd as modified, 787 F.2d 875 (3d Cir. 1986), aff'd on
reh'g, 809 F.2d 979 (3d Cir. 1986), the District Court describes James
II's forced exile, and the acceptance of England's Bill of Rights by
William and Mary as the foundation for ``[t]he rule that no executive
official can decide for himself what laws he is bound to obey, but must
await the decisions of the Judiciary and until then must obey the laws,
[a rule that] has deep roots in our constitutional history.'' Also, the
duty to execute the law faithfully is viewed as a sign of the non-
existence of Presidential suspending power. Statement on Behalf of the
Office of General Counsel to the Clerk of House of Representatives
Regarding The Executive Branch's Declaration That The Competition in
Contracting Act Is Unconstitutional, Hearings Before a Subcommittee of
the Committee on Government Operations, House of Representatives, on
Constitutionality of GAO's Bid Protest Function, 99th Cong., 1st Sess.
(Feb. 28; March 7, 1985) ('Scholars have concluded that the ``faithful
execution'' clause of our Constitution is a mirror of the English Bill
of Rights'' ``abolition of the suspending power,'' that is, the
abolition of what the English Bill of Rights has called ``the pretended
[Royal] power of Suspending . . . the Execution of Laws.'') The same
point is made in a Statement of Senator William S. Cohen and Senator
Carl Levin in Hearings on the Constitutionality of GAO's Bid Protest
Function Before a Subcommittee of the committee on Government
Operations, House of Representatives, 99th Cong., 1st Sess. 486, 490
(Feb. 28, March 7, 1985) (``Absent a court ruling, we strongly believe
that a unilateral decision by the Executive Branch to refuse to enforce
a statute constitutes a usurpation of the proper role of the judiciary
and a failure of the President to meet his constitutional
responsibility to take Care that the Laws be faithfully executed.'').
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The most recent decision on the question of whether the President
has dispensing power is Spence v. Clinton, a District Court decision in
1996. It explains why the President had no authority to ``defy'' the
Ballistic Missile Act of 1995. The court stated:
Such an outcome would [give] the President the ability to
nullify duly authorized congressional actions. The Founding
Fathers strongly believed that such a power would be dangerous
and unwarranted. Constitutional scholars speak with one voice
in concurring with this assessment.\31\
---------------------------------------------------------------------------
\31\ Spence v. Clinton, 942 F. Supp. 32, 38 (D.D.C. 1996)
(footnotes omitted).
---------------------------------------------------------------------------
In support of that observation, the court quoted James Madison:
To give such a prerogative would certainly be obnoxious to
the temper of this country.\32\
---------------------------------------------------------------------------
\32\ I.M. Farrand, The Records of the Federal Constitution of 1787
100 (1966).
Nothing in Goldwater v. Carter,\33\ is to the contrary. That case
involves undoing a treaty with one regime claiming to govern China and
recognizing a different regime claiming to be the government of China.
Neither regime nor the United States claimed that China had ceased to
exist. The case arose out of these events: In 1954 the United States
entered into a Mutual Defense Treaty that on its face was a treaty
between the United States and China. The Treaty was signed by a person
who was part of a government situated on Taiwan calling itself the
Republic of China, (the ``ROC'') and claiming authority over the entire
territory of China, including the Chinese Mainland. At that time, and
ever since, a government situated on the Mainland, and calling itself
the ``People's Republic of China'' (``PRC'') claimed authority over the
entire territory of China, including Taiwan. In 1978, President Jimmy
Carter announced that the United States would terminate the Mutual
Defense Treaty that had been made with the Taiwan-based government.
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\33\ Goldwater v. Carter, 444 U.S. 996 (1979).
---------------------------------------------------------------------------
Senator Barry Goldwater brought suit in a District Court, asking
the Court to declare that without the consent of the Senate, President
Carter lacked authority to terminate the Treaty. Senator Goldwater
asserted that termination without Senate deliberation would deprive him
of an opportunity to vote on the question of whether the Treaty should
be terminated. A majority of Justices of the Supreme Court concluded
that Senator Goldwater's case should be sent to the District Court to
be dismissed, but no majority could agree on the reasons for that
result. Four Justices (Rehnquist, Burger, Stewart and Stevens) said
that to decide whether the Senate had authority to participate in a
treaty-termination decision would be to decide a non-justiciable
``political question,'' i.e, not the kind of controversy that the
Constitution vested authority in the Judiciary to decide. Justice
Marshall gave no reason for his decision in favor of dismissal. Justice
Powell said that he considered the question to be justiciable, but
supported dismissal on the ground that it was not ripe for decision,
because the Congress had not yet challenged the President's authority
by ``appropriate formal action.'' 444 U.S. at 536. Two of the Justices
who voted to hear the case (Blackmun and White) said the case was ripe,
and therefore should be heard on the merits. Justice Brennan expressed
the view that the case was justiciable, and that the lower court had
correctly decided the case to the extent that it rested on the
principle that the President had exclusive authority ``to recognize,
and withdraw recognition from, foreign governments.''
Given the absence of a majority explanation of the reason for the
result, Goldwater v. Carter has little value for predictive
jurisprudence with respect to treaties with a State that has not lost
its existence but only changed its government, let alone with respect
to treaties of a State that has ceased to exist.
In any event, even the Judiciary's power to interpret treaties
definitively must be exercised so as to avoid making a significant
amendment, because that too would trench upon the Senate's power to
give advice and consent to the making of the treaty. One court
explained:
A significant amendment to a treaty must follow the mandate
of the Treaty Clause and therefore must be proposed by the
President and be ratified following the advice and consent of
the Senate.\34\
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\34\ New York Chinese TV Programs, Inc. v. U.E. Enters., Inc., 954
F.2d 847, 853 (2d Cir. 1991), cert. denied, 506 U.S. 827 (1992).
---------------------------------------------------------------------------
Similarly,
Courts are not authorized to annul or disregard provisions of
a treaty
. . . since an annulment or disregard would constitute a
modification of the treaty, and treaty modifications are solely
within the province of the Senate.\35\
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\35\ In re Air Crash Disaster at Warsaw Poland on March 14, 1980,
535 F. Supp. 833, 843 (E.D.N.Y. 1982), aff'd, 705 F. 2d. 85 (2d. Cir.),
cert. denied, 464 U.S. 845 (1983). See also Testimony of Columbia Law
School Professor Louis Henkin, in Joint Hearings before the Committee
on Foreign Relations and the Committee on the Judiciary, United States,
Senate, 100th Cong. 1st Sess., on the ABM Treaty and the Constitution
881 (March 11, 1987).
---------------------------------------------------------------------------
B. The President Does Not Have Exclusive Authority to Implement
Treaties
While Dellinger argues that the President has exclusive authority
to implement treaties, the Constitution vests in the Congress the
authority to make all laws ``necessary and proper'' to implement, i.e.,
to ``carry into execution,'' not only all the law-making powers
enumerated in Article I, section 8, but also ``all other powers vested
by this Constitution in the Government of the United States or in any
Department or Officer thereof.'' \36\ The recognized powers of Congress
to implement (or fail to implement) a treaty ``by an apportionment or
other law essential to its effectuation, . . . are legislative powers,
not treaty-making or treaty-termination powers.'' \37\
---------------------------------------------------------------------------
\36\ Neely v. Henkel, 180 U.S. 109, 121 (1901) (The necessary and
proper clause of U.S. Constitution Article 1, section 8 ``includes the
power to enact such legislation as is appropriate to give efficacy to
any stipulations which it is competent for the President by and with
the advice and consent of the Senate to insert in a treaty with a
foreign power.'') To like effect are Missouri v. Holland, 252 U.S. 416,
432-33 (1920); United States v. Lue, 134 F.3d 79, 82 (2d Cir. 1998);
Goldwater v. Carter, 617 F.2d 697, 717 (D.C. Cir.), vacated on other
grounds, 444 U.S. 996 (1979).
\37\ Peter M. Shane & Harold H. Bruff, Separation of Powers Law:
Cases and Materials 621 (1996).
---------------------------------------------------------------------------
Hence, the Congress has the authority to make laws implementing
treaties. It follows that the President can no more create a treaty by
calling its creation an implementation than he can create a statute by
calling its creation an implementation of another statute.
C. Presidential Authority to Grant Formal Recognition to Foreign States
Does Not Imply Authority to Make Treaties with Those States
Without Senate Concurrence
As a matter of international law, when a U.S. President grants
recognition to a foreign State, the President imposes no duty or
obligation on the United States that the United States would not in any
event be obliged to discharge. In contrast, when a U.S. President
brings a treaty into force, its terms must be fulfilled (unless there
is a valid ground under international law, such as coercion or fraud,
for not fulfilling them.).\38\
---------------------------------------------------------------------------
\38\ Factor v. Laubenheimer, 290 U.S. 276, 298 (1933) (``Until a
treaty has been denounced, it is the duty of both the government and
the courts to sanction the performance of the obligations reciprocal to
the rights which the treaty declares and the government asserts even
though the other party to it holds a different view of its meaning.'');
United States v. Kirby, 106 F.3d 855, 859 (9th Cir. 1997); United
States v. A.L. Burbank & Co., Ltd., 575 F.2d 9, 22 (2d Cir. 1975).
J.H.H. Weiler & Ulrich R. Haltern, The Autonomy of the Community of
Legal Order--Through the Looking Glass, 37 Harv. Int'l L.J. 411, 441
(1996).
---------------------------------------------------------------------------
The Constitution, Art. II. sec. 3, requires the President to
``receive Ambassadors and other public Ministers,'' a provision that
implies authority to determine whether a particular person is a bona
fide representative of a particular foreign State. In turn, that
implies that the President has authority to determine whether or not
such a foreign State exists. An entity exists as a State if it meets
the test of Statehood, i.e., has a defined territory and a permanent
population, controls its own governance, and has the capacity to
conduct formal relations with States.\39\ International law requires
that each other State treat that entity as a State, irrespective of
whether such other State has ``formally'' recognized that entity as a
State.\40\
---------------------------------------------------------------------------
\39\ Restatement (Third) of the Foreign Relations Law of the
United States Sec. 201 (1986). The law pertaining to the recognition
of a State's existence is distinct from international law pertinent to
the recognition of the government of a State. Under international law,
a change in the government of a recognized State, without more, does
not impair the State's existence as a State. Edwin L. Fountain, Out
from the Precarious Orbit of Politics: Reconsidering Recognition and
the Standing of Foreign Governments to Sue in American Courts, 29 Va.
J. Int'l L. 473, 474-76 (1989); D.P. O'Connell, I International Law
127-28 (2d ed. 1970); Restatement (Third) of The Foreign Relations Law
of the United States Sec. 202, 203 (1986).
\40\ Id. at Sec. 202, cmt. c.
Recognition, as a public act of state, is an optional and
political act and there is no legal duty in this regard.
However, in a deeper sense, if an entity bears the marks of
statehood other states put themselves at risk legally if they
ignore the basic obligations of state relations. . . . In this
context of state conduct, there is a legal duty to accept and
apply certain fundamental rules of international law: there is
a legal duty to ``recognize'' for certain purposes at least,
but no duty to make an express, public, and political
determination of the question or to declare readiness to enter
into diplomatic relations by means of recognition. This latter
type of recognition remains political and discretionary.\41\
---------------------------------------------------------------------------
\41\ Ian Brownlie, Principles of Public International Law 94-95
(2d ed. 1973) (emphasis added) (footnote omitted). ``Recognition of
State is the affirmation, usually by the government of another state,
that a new nation has come into existence which, at least as far as the
recognizer is concerned, is subject to all the rights and duties of a
state in international law.'' Thomas M. Franck & Michael J. Glennon,
Foreign Relations and National Security Law: Cases, Materials and
Simulations 1021 (1993).
Were the President to use the recognition function to make a treaty
that would not otherwise exist, he would put the United States under a
legal obligation to other States without Senate advice and consent. In
short, there is no merit to Dellinger's suggestion that the exclusive
power to recognize States allows the President to make treaties without
Senate advice and consent. The President's recognition authority cannot
be exercised in a manner that would nullify the U.S. Senate's authority
to advise and consent on the making of a treaty.
Hence, if a foreign State ceases to exist under international law
and, consequently, a bilateral treaty between the extinct State and the
United States lapses, the President cannot use the ``receive
Ambassadors'' clause to bring a new treaty into force between the
United States and a successor to the extinct State without Senate
advice and consent. In other words, the President cannot, without
Senate approval, bring a lapsed treaty back to life by declaring that a
given foreign State is the successor or continuation of an extinct
State. Principles of international law govern the issue of the
extinction of States. However broad the President's authority may be to
recognize States and governments of States under the ``receive
Ambassadors'' clause, it is necessarily limited by the specific
Constitutional requirement for Senate advice and consent on the making
of treaties.
D. The Senate's Concurrence in the Making of a Treaty With One State
Does Not Constitute Consent to the Making of a Treaty With a
Successor-State
When the Senate consents to a treaty with a given foreign State,
does it impliedly authorize future Presidents to make a treaty on the
same subject with a new State that is a successor to that given foreign
State? An affirmative answer would violate the rule against the
President's creating law unilaterally. A treaty cannot be interpreted
``[t]o alter, amend, or add to the Treaty, by asserting any clause,
whether small or great, important or trivial . . .'' \42\ In 1989, in
Chan v. Korean Air Lines, Ltd.,\43\ the Supreme Court invoked its 1821
decision in The Amiable Isabella \44\ to explain that an interpretation
that makes a change in a treaty ``whether small or great, important or
trivial'' would constitute a ``usurpation of power, and not an exercise
of judicial functions,'' adding: ``It would be to make, and not to
construe, a treaty.'' Though the caution in that case was aimed at
judges, it applies equally to interpretations by the Executive Branch
because it states that any change would be ``to make, not construe, a
treaty,'' a clear reference to the treaty-making process, of which
Senate advice and consent is an essential part. In light of that rule,
there is no room for an inference that Senate advice and consent
implicitly authorizes later changes by a President.
---------------------------------------------------------------------------
\42\ The Amiable Isabella, 19 U.S. 1 (6 Wheat.) 1, 71 (1821); Chan
v. Korean Air Lines, Ltd., 490 U.S. 122, 135-36 (1984); Kass v. Reno,
83 F.3d 1186, 1189 (10th Cir. 1996). See also The Society for the
Propagation of the Gospel in Foreign Parts v. New-Haven, 21 U.S. (8
Wheat.) 464, 490 (1823).
\43\ 490 U.S. 122, 134-135 (1989).
\44\ 19 U.S. (6 Wheat.) 1, 71 (1821).
---------------------------------------------------------------------------
In that regard, Dellinger appears to argue otherwise, conjecturing
that in 1972 the Senate must have known of what Dellinger argues was
past U.S. diplomatic practice with regard to State succession, i.e.,
when a State dissolves, its treaties with the United States bind the
United States vis-a-vis the extinct State's successor or successors.
Dellinger's assertion disregards the U.S. policy and practice of
regarding as lapsed an extinct State's bilateral treaties, a practice
that began at least as early as the annexation of the Kingdom of Hawaii
in 1898,\45\ and was recently manifested in dealing with all five
States that succeeded the extinct Yugoslavia.\46\ Thus, if any
conjecture about the Senate's 1972 understanding is warranted, the
reasonable conjecture is that it knew of the practice of regarding
extinct States'' treaties as lapsed. In any event, Dellinger does not
claim that, after the USSR's dissolution, the Senate consented to the
making of an ABM Treaty with the Russian Federation. Presumably,
Dellinger understands that ``Ordinarily, Congress'' silence is just
that--silence,'' \47\ and does not constitute the exercise of its power
to make or to repeal laws,\48\ including treaties.\49\
---------------------------------------------------------------------------
\45\ See Statement of Secretary Sherman to Japanese Minister,
described supra Part IV.D..
\46\ See discussion at IV.F.4, infra.
\47\ Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987).
\48\ Patterson v. McLean Credit Union, 491 U.S. 164, 175 (1989);
United States v. Wells, 519 U.S. 482, 495 (1997); NLRB v. Plasterers''
Local Union No. 79, 404 U.S. 116, 129-30 (1971).
\49\ TransWorld Airlines, Inc. v. Franklin Mint Corp., 466 U.S.
243, 252 (1984).
---------------------------------------------------------------------------
Finally, there is no evidence that after the USSR's dissolution,
the Senate, by voting on various ABM Treaty matters, consented to
bringing an ABM Treaty into force between the United States and the
Russian Federation. None of the laws passed since the USSR's extinction
that relate to the ABM Treaty contains words that can be fairly
construed as giving consent to the bringing into force of an ABM Treaty
that is not already in force. In construing a statute, its words are to
be given their plain meanings.\50\ Moreover, legislative history, an
aid to the construction of ambiguous words,\51\ contains no evidence
that either House of Congress, in voting on bills relating to ABM
Treaty matters, was voting to bring into force an ABM Treaty that was
not otherwise in force.
---------------------------------------------------------------------------
\50\ United States v. Gonzales, 520 U.S. 1 (1997).
\51\ Barnhill v. Johnson, 503 U.S. 393, 401 (1992).
---------------------------------------------------------------------------
Hence, if an ABM treaty now exists between the United States and
the Russian Federation, it exists only if, under international law, the
Treaty did not lapse upon the USSR's extinction.
None of the Dellinger Paper's arguments is supported by
international law. International law points to an opposite conclusion:
Upon the USSR's extinction, the ABM Treaty did not become a treaty
between the United States and the Russian Federation.
This Memorandum does not contend that the United States and the
Russian Federation cannot make a treaty between themselves or with
other States to limit ABM systems. But such a treaty would require the
concurrence of ``two thirds of the Senators present,'' as provided by
Article II, section 2 of the U.S. Constitution.
iii. factual background
As a predicate to the legal analysis below, it is useful to review
facts pertaining to the USSR's extinction and the U.S. State
Department's position thereon, President Clinton's position on the ABM
Treaty of 1972, and the purpose of the ABM Treaty of 1972 as seen by
the U.S. government at the time of Senate approval of ratification.\52\
---------------------------------------------------------------------------
\52\ Treaty Between the United States of America and the Union of
Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile
Systems (the ``ABM Treaty''), May 26, 1972, U.S.-U.S.S.R. (App. 2). The
Treaty was amended in 1974 to reduce the allowed number of ABM
deployment areas of each party from two to one. The United States chose
its ICBM emplacements near Grand Forks, North Dakota. The USSR chose
Moscow. Each party was given a single option to shift its defense area
upon advance notice at the time of scheduled 5-year Treaty review.
Protocol to the Treaty Between the United States of America and the
Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic
Missile Systems (App. 2) (including 1974 Protocol).
---------------------------------------------------------------------------
A. Extinction of the USSR
On December 8, 1991, at Minsk, the Republic of Belarus, the Russian
Federation ('RSFSR'') and Ukraine, as the USSR's founders and as
signatories to the Union Treaty of 1922 that created the USSR, declared
that the USSR, ``as a subject of international law and a geopolitical
reality no longer exists.'' \53\ Also, they signed the Agreement
Establishing the Commonwealth of Independent States. The Agreement
invited other States to join. On December 21, 1991, at Alma Ata, eight
other States joined.\54\ The Agreement included a provision supporting
the Russian Federation's assumption of the USSR's permanent seat in the
U.N. Security Council.
---------------------------------------------------------------------------
\53\ Agreement Establishing the Commonwealth of Independent States,
Dec. 8, 1991, Belarus-RSFSR-Ukraine, 31 I.L.M. 143 (App. 3).
\54\ Agreement Establishing the Commonwealth of Independent States,
Art. 12, Dec. 21, 1991, 31 I.L.M. 147-54 (App. 4).
---------------------------------------------------------------------------
President George Bush, in his December 25, 1991 address to the
nation on the CIS, said that ``The Soviet Union itself is no more.''
\55\ On January 22, 1992 President Bush, in addressing the
International Conference on Humanitarian Assistance to the former USSR,
referred to ``the dramatic revolution that swept away Soviet communism
and left in its place 12 new nations. . . .'' \56\ President Bush also
referred to the ``dissolution of the Soviet Union . . .''. \57\ On
April 1, 1992, President Bush referred to ``Russia, Ukraine and the
other new States that have replaced the Soviet Union.'' \58\ President
Bush stated that he was ``seeking to conclude trade, bilateral
investment and tax treaties with each of the new Commonwealth States.''
\59\
---------------------------------------------------------------------------
\55\ President George Bush, Address to the Nation on the
Commonwealth of Independent States, 27 Weekly Comp. Pres. Doc. 1883
(Dec. 25, 1991) (App. 5).
\56\ President George Bush, Address to the International Conference
on Humanitarian Affairs (Jan. 22, 1992), in I Public Papers of the
President of the United States, George Bush 127 (GPO 1993) [hereinafter
Public Papers] (App. 6).
\57\ Id.
\58\ President George Bush, Statement at News Conference on Aid to
the States of the Former Soviet Union, in Public Papers, supra note 36,
at 522 (App. 6).
\59\ President George Bush, Remarks to the American Society of
Newspaper Editors, in Public Papers, supra note 36, at 566 (App. 6).
---------------------------------------------------------------------------
B. State Department Study of the Effect of the USSR's Extinction
In early 1992, State Department Legal Adviser Edwin D. Williamson
announced that the State Department was conducting a study of the
effect of the USSR's extinction on its treaties with the United States,
including the ABM Treaty.\60\ In 1997, President Clinton described the
process as follows:
---------------------------------------------------------------------------
\60\ Edwin D. Williamson, Remarks on State Succession and Relations
with Federal States, 86 Am. Soc. of Int'l L. Ann. Meeting Procs. 10, 12
(Apr. 1-4, 1992).
When the USSR dissolved at the end of 1991, it became
necessary to reach agreement as to which former Soviet States
would collectively assume its rights and obligations under the
[ABM] Treaty (which clearly continued in force by its own
terms). The United States took the view that, as a general
principle, agreements between the United States and the USSR
that were in force at the time of the dissolution of the Soviet
Union would be presumed to continue in force as to the former
Republics. It became clear, however, particularly in the area
of arms control, that a case-by-case review of each agreement
was necessary.\61\
---------------------------------------------------------------------------
\61\ Letter from President William J. Clinton to Benjamin A.
Gilman, Chairman, Committee on International Relations, House of
Representatives (Nov. 21, 1997) (App. 7).
During that study, according to the State Department's official
annual list of U.S. Treaties in Force, ``The United States is reviewing
the continued applicability of [listed] agreements [including the ABM
Treaty] . . .''. \62\
---------------------------------------------------------------------------
\62\ United States Department of State, Treaties in Force, A List
of Treaties and Other International Agreements of the United States in
Force on January 1, 1997 282 (1997) (App. 8). Compare with United
States Department of State, Treaties in Force, A List of Treaties and
Other International Agreements of the United States in Force on January
1, 1992 247, 248 (1992) (App. 9).
---------------------------------------------------------------------------
The State Department's practice of studying the status of treaties
between the United States and extinct States was described in 1965 by
Assistant Legal Adviser Charles I. Bevans: The practice is to negotiate
with a new State ``as soon as possible.'' If a new State has a
``devolution'' agreement with or otherwise announces it would be bound
by its predecessor's treaties, the fact is ``noted'' in Treaties in
Force, but the United States does not consider itself bound by the
devolution agreement to accept such a treaty as being in force between
the United States and the successor State.\63\
---------------------------------------------------------------------------
\63\ Letter from Charles I. Bevans, Assistant Legal Adviser, United
States Department of State, to Professor William W. Bishop, Jr.,
Editor-in-Chief, The American Journal of International Law (July 27,
1964), reprinted in Committee on State Succession to Treaties and Other
Governmental Obligations, International Law Association, The Effect of
Independence on Treaties 382, 385-86 (1965). See also Sari T. Korman,
The 1978 Vienna Convention on Succession of States in Respect of
Treaties: An Inadequate Response to the Issue of State Succession, 16
Suffolk Transnat'l L. Rev. 174, 180 (1992).
---------------------------------------------------------------------------
State Department practice regarding devolution agreements and
proclamations is consistent with the view expressed in scholarly
writings. For example, in 1969 a Committee of the United Nations'
International Law Commission stated:
Conversely, on the date of the succession, the territory
passes into the treaty regime of the newly emerged State; and,
since the devolution agreement is incapable by itself of
effecting an assignment of the predecessor's treaty obligations
to the successor State, the agreement does not of itself
establish any treaty nexus between the successor State and
third States parties to the treaties of the predecessor State.
Thus, even if a newly emerged State has concluded a devolution
agreement, the only treaty obligations of the predecessor State
which can immediately become obligations also of the successor
State vis-a-vis the other contracting parties are such
obligations, if any, as would in any event pass to the
successor State by operation of the general rules of the
international law independently of the devolution
agreement.\64\
---------------------------------------------------------------------------
\64\ Sir Humphrey Waldock, Special Rapporteur, Second Report on
Succession in Respect of Treaties, 1969 II Y.B. Int'l L. Comm'n 45, 57,
UN Doc. A/CN.4/SER.A/1969/Add.1.
State Department Legal Adviser Edwin D. Williamson stated that
while the study of the ABM treaty was pending, the State Department
would use a ``presumptive continuity'' model in its dealings with the
USSR's successor States.\65\ ``Continuity,'' as applied to treaties, is
a term used by scholars to describe the fact that a treaty between two
particular States (the ``treaty partners'') has become a treaty between
one of the partners and another State. For example, when a State
dissolves and a successor State (or States) emerges on what had been
the territory of the dissolved State, a successor State may agree with
the dissolved State's treaty partner that the dissolved State's
treaties should ``continue'' in effect as between the successor State
and the dissolved State's treaty partner. In that event, the treaty in
question is said to have come into effect with the successor State by a
process of ``continuity.'' Thus, when Norway and the Russian Federation
agreed that they would consider as treaties between them certain
designated treaties that had been in effect between Norway and the
USSR, those treaties are said to have come into effect between Norway
and the Russian Federation by the process of continuity.\66\
---------------------------------------------------------------------------
\65\ Williamson, supra note 60, at 10, 12.
\66\ Marti Koskenniemi, The Present State of Research Carried Out
By the English-Speaking Section of the Centre for Studies and Research,
in State Succession: Codification Tested Against the Facts 98-118
(Hague Academy of International Law 1996); Paul R. Williams, The Treaty
Obligations of the Successor States of the Former Soviet Union,
Yugoslavia, and Czeckoslovakia: Do They Continue in Force?, 23 Denv. J.
Int'l L. & Pol'y 1, 31-35 (1994).
---------------------------------------------------------------------------
Since the respective dissolutions of the USSR, of Yugoslavia (the
``SFRY'') and of Czechoslovakia, the United States, various European
States, and the successor States have not all dealt in the same manner
in all cases with the treaties of the dissolved States. A few examples:
Armenia and Azerbaijan chose not to enter continuation agreements with
any State as to any USSR treaty.\67\ Austria, as regards the treaties
with the dissolved SFRY, described its practice as a ``principle of
pragmatic application'' of the continuation process--that is, Austria
denied that the FRY was a continuity of the SFRY, and yet, in practice,
treated the FRY as though it were the continuity of the SFRY.\68\
---------------------------------------------------------------------------
\67\ Koskenniemi, supra note 66, at 112.
\68\ Koskenniemi, supra note 66, at 88, 110-11 n. 70; Williams,
supra note 66, at 31-35 (1994).
---------------------------------------------------------------------------
The U.S. State Department, though expressing a general desire that
the USSR's successor States (a term that does not include Estonia,
Latvia and Lithuania) be bound by the same treaty obligations vis-a-vis
the United States as was the USSR, ``abandoned any assertions of
automatic continuation of treaty obligations and relied entirely on
assurances provided by the successor States.'' \69\ Also, in seeking
assurances of treaty continuation from the successor States, the State
Department accepted non-specific (what one commentator has called
``feigned'') assurances,\70\ and unilateral commitments that the
successor States may rescind, and that gave the United States the
effective right to discontinue the treaties at its option.\71\
Similarly, the State Department, by accepting assurances of treaty
continuity that were linked by context to non-justiciable political
commitments--such as promises to develop market economies--rendered the
treaties unenforceable as a practical matter and thereby made
``continuity'' illusory.\72\ Moreover, ``Treaties in Force,'' the
authoritative annual State Department publication of the U.S. treaties
that are in force, shows as ``in force'' only those treaties concluded
between the United States and the Russian Federation after the USSR's
dissolution.\73\ A similar treatment is provided by listings of
treaties in force involving other successors of the USSR and other
successors of the SFRY.\74\
---------------------------------------------------------------------------
\69\ Williams, supra note 66, at 32.
\70\ Id.
\71\ Id.
\72\ Id.
\73\ Id. at 33-34.
\74\ Id.
---------------------------------------------------------------------------
Likewise, the Russian Federation has advised the United States that
it does not deem itself bound by any USSR treaty obligation to the
United States that conflicts with Russian law.\75\
---------------------------------------------------------------------------
\75\ Id. at 35-36. See also Gennady M. Danilenko, Book Review and
Note: The Russian Law of Treaties by William E. Butler, 92 Am.J. Int'l
L. 356, 357 (1998).
---------------------------------------------------------------------------
As regards Ukraine, in May, 1996, the Executive Branch and a
representative of Ukraine agreed that the United States and Ukraine
would regard as in effect as between the two States thirty-five
designated agreements that had been in effect between the United States
and the USSR.\76\ Of the thirty-five US/USSR agreements in question,
thirty-two never received Senate consent, perhaps because they were
among the kinds of binding agreements with foreign nations that the
President ``may enter into without complying with the formalities
required by the Treaty Clause of the Constitution . . .''. \77\ The
three US/USSR treaties that had received Senate consent were a consular
convention of 1968, a tax convention of 1976, and a convention of 1854
relating to the rights of neutrals at sea.
---------------------------------------------------------------------------
\76\ The 1996 US-Ukraine agreement is described at 143 Cong. Rec.
S4462-S4463 (May 14, 1997).
\77\ Weinberger v. Rossi, 456 U.S. 25, 30 n.6 (1982). According to
the Supreme Court, agreements that do not require Senate concurrence
under Article II include agreements to protect U.S. nationals employed
at U.S. military bases abroad, id., and monetary-claims settlements.
Dames & Moore v. Regan, 453 U.S. 654, 679-80 nn.8, 9, 10 (1981); United
States v. Pink, 315 U.S. 203 (1942); United States v. Belmont, 301 U.S.
324 (1937). Such an agreement is called an ``Executive Agreement'' or a
``Sole-Executive Agreement'' if it is made between the United States
and another State without the concurrence of two-thirds of the Senate,
and without the consent of a majority of both Houses of the Congress.
If the Agreement has received the consent of a majority of both Houses
of Congress, it is called a ``Congressional-Executive Agreement.'' The
Court has explained that an agreement of that nature, though sometimes
called a ``treaty,'' is not a treaty ``possessing the dignity of one
requiring ratification by the Senate of the United States . . .'' B.
Altman & Co. v. United States, 224 U.S. 583, 601 (1912). See also
Weinberger v. Rossi, 456 U.S. 25, 29 (1982) ('The word ``treaty'' has
more than one meaning''); Dames & Moore v. Regan, 453 U.S. 654, 679-84
(1981); United States v. Pink, 315 U.S. 203, 225 (1942); United States
v. Belmont, 301 U.S. 324 (1937). No case has been presented to a court,
however, to decide whether an arms-control treaty can constitutionally
be made by the President acting alone or with the consent only of a
majority of both Houses.
---------------------------------------------------------------------------
The wide variety of recent State practice has been summed up as
follows: \78\
---------------------------------------------------------------------------
\78\ Koskenniemi, supra note 66, at 88, 116 (footnote omitted). See
generally Brownlie, supra note 41, at 82-85; James Crawford, the
Creation of States in International Law 400-411 (1979); Krystyna Marek,
Identity and Continuity in Public International Law (1968).
[P]arties have normally negotiated and negotiations have led
to the adoption and publication of lists of treaties that are
to be continued or allowed to lapse. The more weight is given
to such lists, and the agreements they embody, the less
practical significance the ``presumption of continuity''
enjoys--until the presumption must altogether yield to the a
contrario argument that a treaty absent from a list must be
deemed to have lapsed.\79\
---------------------------------------------------------------------------
\79\ Koskenniemi, supra note 66, at 116.
``Continuity'' (or ``continuation'') is also used to identify a
State that, notwithstanding a loss of territory, continues to exist
because it has not lost its international legal personality.\80\ In
that usage ``continuity'' (or ``continuation'') is the antonym of
``dismemberment'' or ``disembratio'' or ``dissolution'' or
``extinction,'' which terms are used interchangeably to identify States
that have ceased to exist.\81\ For example, the United States stated
that it is the position of the ``international community generally''
that, as a result of the SFRY's ``dissolution'' in 1992, ``[t]he SFRY
has ceased to exist and no . . . State represents the continuation of
the SFRY. . . .'' \82\
---------------------------------------------------------------------------
\80\ Republic of Croatia v. Girocredit Bank A.G. der Sparkassen,
Supreme Court of Austria (4 Ob. 2304 96V, Dec. 17, 1996), reprinted at
36 I.L.M. 1523 (1997); Konrad G. Buhler, Casenote: Two Recent Austrian
Supreme Court Decisions on State Succession from an International Law
Perspective, 2 Aus. Rev. Int'l & Eur. L., 213, 224-26 (1997).
\81\ Id.
\82\ Declaration of Christopher R. Hill, Director, Office of South
Central European Affairs, United States Department of State, filed in
Federal Republic of Yugoslavia v. Park-71st Corp., No. 95 Civ. 3659
(AGS) (S.D.N.Y.) para.para. 5, 6 (Sept. 21, 1995), complaint dismissed,
913 F.Supp. 191 (S.D.N.Y. 1995). (App. 1).
---------------------------------------------------------------------------
In June 1996 U.S. Assistant Attorney General Walter Dellinger
advised Counsel to the President John Quinn that the presumption of
``continuity'' employed in the State Department during the Bush
Administration remained in effect in the Clinton Administration.
Dellinger stated that the notion of continuity was ``rooted'' in U.S.
``past diplomatic practice'' and in the U.S. Executive Branch's
understanding of international law.\83\ Dellinger's disregard for U.S.
practice as regards treaties of extinct states is described at IV.F.,
infra.
---------------------------------------------------------------------------
\83\ Memorandum from Walter Dellinger, Assistant Attorney General,
to John M. Quinn, Counsel to the President, Re: Section 233(a) of S.
1745 (June 26, 1996) (App. 10). See also Letter from William C.
Danvers, Special Assistant to the President and Senior Director for
Legislative Affairs, to Newt Gingrich, Speaker of the House of
Representatives (Nov, 29, 1996), transmitting Report on the Livingston
ABM Amendment (Nov. 25, 1996) (App. 12), and Letter of Dec. 11, 1996
from Representatives Bob Livingston, Benjamin A. Gilman and Floyd
Spence to President Clinton (Dec. 11, 1996) (App. 13).
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C. President Clinton's Statement of Position
On June 16, 1997, Benjamin A. Gilman, Chairman, House Committee on
International Relations, asked President Clinton: If the Senate were to
reject the President's proposal regarding ABM Treaty succession, ``what
countries in addition to the United States will, in the view of the
Administration, be parties to the ABM Treaty?'' \84\ The President did
not reply until November 21, 1997,\85\ by which time the Secretary of
State had signed (in September, 1997) a Memorandum of Understanding
(the ``MOU'') with Russia, Ukraine, Belarus and Kazakstan to ``multi-
lateralize'' the ABM Treaty. The MOU would create an arrangement
embodying features that had been in effect between the United States
and the USSR.\86\ President Clinton's November 17, 1997 letter stated
that he would ask the Senate to give advice and consent to the MOU.\87\
The November 21, 1997 letter also stated
---------------------------------------------------------------------------
\84\ Letter from Benjamin A. Gilman, Chairman, Committee on
International Relations, House of Representatives, to President William
J. Clinton, 2-3 (June 16, 1997) (App. 14).
\85\ Letter from President William J. Clinton to Benjamin A.
Gilman, Chairman, Committee on International Relations, House of
Representatives, 2 (Nov. 21, 1997) (App. 7). Letter from President
William J. Clinton to Benjamin A. Gilman, Chairman, Committee on
International Relations, House of Representatives, (May 21, 1998) (App.
11).
\86\ United States of America, Republic of Belarus, Ukraine &
Kazakstan, Memorandum of Understanding Relating to the Treaty Between
the United States of America and the Union of Soviet Socialist
Republics on the Limitation of Anti-Ballistic Missile Systems of May
26, 1972 (Sept. 26, 1997) (App. 15).
\87\ Letter from President William J. Clinton to Benjamin A.
Gilman, Chairman, Committee on International Relations, House of
Representatives 1 (Nov. 21, 1997) (App. 7).
[N]either a simple recognition of Russia as the sole ABM
successor (which would have ignored several former Soviet
states with significant ABM interests) nor a simple recognition
of all NIS states as full ABM successors would have preserved
fully the original purpose and substance of the Treaty, as
approved by the Senate in 1972).\88\
---------------------------------------------------------------------------
\88\ Id. at 2.
In addition, the letter stated that, if the Senate did not consent
to the MOU as a Treaty, succession arrangements would ``simply remain
unsettled,'' \89\ and in any event the ABM Treaty that had been in
force between the United States and USSR ``would clearly remain in
force.'' \90\ On March 3, 1998, Representative Gilman and Senator Jesse
Helms \91\ observed that if none of the four USSR-successor States that
had signed the MOU were bound by the ABM Treaty, it followed that the
Treaty was no longer in force.\92\
---------------------------------------------------------------------------
\89\ Id. at 3.
\90\ Id.
\91\ Letter from Benjamin A. Gilman, Chairman, Committee on
International Relations, House of Representatives, and Jesse Helms,
Chairman, Committee on Foreign Relations, Senate (March 3, 1998) (App.
16).
\92\ Id. at 3.
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On May 21, 1998 President Clinton responded that the Executive
Branch had concluded that ``there is no question that the ABM Treaty
has continued in force and will continue in force . . .''. Also,
President Clinton stated that ``[t]he United States and Russia clearly
are Parties to the Treaty. . . .'' \93\ The President explained neither
the basis for this conclusion nor how the conclusion can be reconciled
with his November 1997 response to Representative Gilman.
---------------------------------------------------------------------------
\93\ Letter from President William J. Clinton to Benjamin Gilman,
Chairman, Committee on International Relations, House of
Representatives 2 (May 21, 1998) (App. 11). Also, on October 5, 1998,
Senators Trent Lott, Don Nickles, Larry E. Craig, Jon Kyl, Jesse Helms,
Connie Mack, Paul Coverdell and Bob Smith wrote President Clinton a
letter stating their view that ``the ABM Treaty has lapsed and is of no
force and effect unless the Senate approves the MOU, or some similar
agreement, to revive the Treaty.'' Letter from Senators Trent Lott, Don
Nickles, Larry E. Craig, Jon Kyl, Jesse Helms, Connie Mack, Paul
Coverdell and Bob Smith to President William J. Clinton (Oct. 5, 1998)
(App. 17.) On December 17, 1998, President Clinton replied, stating
that he would provide the MOU to the Senate for its advice and consent
(App. 18).
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D. The United States'' 1972 View of How it Would Benefit from an ABM
Treaty
In 1972, Gerard Smith, Director of the Arms Control and Disarmament
Agency in the Nixon Administration, told the Congress the following:
The treaty contains a general commitment not to build a
nationwide ABM defense nor to provide a base for such defense.
This general undertaking is supplemented by certain specific
provisions. By this general undertaking and the specific
commitments, both countries in effect agree not to challenge
the effectiveness of each other's missile deterrent
capabilities by deploying widespread defenses against them.
This means that the penetration capability of our surviving
deterrent missile forces can be assured. This, to my mind,
bears directly on concerns about a first strike against the
United States. As long as we maintain sufficient and survivable
retaliatory forces, this new assurance of their penetration
capability makes ``first strike'' as a rational act
inconceivable, in my judgment. I believe this is a development
of prime significance for U.S. security.\94\
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\94\ Statement by United States Arms Control and Disarmament Agency
Director Gerard C. Smith, Strategic Arms Limitations Agreements (June
28, 1972), reprinted in U.S.C.A.C.D.A. Documents on Disarmament 1972,
at 423.
Hence, according to that view, a party without ABM defenses would
be less likely to launch first strikes, and therefore would be less
likely to start a nuclear war.\95\
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\95\ Report by the United States Senate Foreign Relations
Committee, Treaty on Limitation of Antiballistic Missile Systems, S.
Exec. Rep. 92-28 (July 21, 1972) (App. 19), quoting former Assistant
Secretary of Defense for International Security Affairs Paul Warnke,
that ``[a]ccordingly, both sides have accepted the principle that
safety resides not in physical defense but in the certainty that the
attacker would be destroyed by the retaliatory strike that the other
side would be able to mount.''
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iv. principles of international law that bear on the question of
whether the abm treaty between the united states and the ussr became,
upon the ussr's extinction, a treaty between the united states and the
russian federation
A. The December 1991 Declaration That the USSR Had Ceased to Exist
Correctly Characterized Under International Law the Changes
That Occurred on What Had Been the USSR's Territory
It is not necessary to resolve any dispute as to whether the USSR
became extinct in December 1991, for there has been no dispute between
the United States and the USSR's successor States on this point. It
bears noting, however, that, had the parties put the question to a
disinterested tribunal, that tribunal would have had ample grounds for
concluding that the USSR did become extinct at that time, for after
December 1991 the USSR lacked the attributes of ``statehood'' that are
essential elements of a State's existence, i.e. sovereignty over
defined territory inhabited by a permanent population, and the power to
conduct foreign relations.\96\ At the close of the day on December 8,
1991, each of fifteen States had sovereignty over a part of what had
been the USSR's territory. No State claimed that even one pyt of
territory remained as USSR territory.\97\
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\96\ A State must have (a) a permanent population; (b) a defined
territory; (c) a government; and (d) capacity to enter into relations
with other States. Restatement (Third) of the Foreign Relations Law of
the United States Sec. 201 (1986). A State has territorial sovereignty
if it ``has a monopoly on the exercise of governmental power within its
borders . . . .'' Societe Nationale Industrielle Aerospatiale v. United
States District Court for the Southern District of Iowa, 482 U.S. 522,
557 (1987) (Blackman, J., concurring in part and dissenting in part);
Hoyt v. Sprague, 103 U.S. 613, 630 (1880). Justice Story, as quoted in
Cherokee Nation v. Southern Kan. R. Co., 33 Fed. 900, 906 (W.D. Ark.
1888), described sovereignty as the ``supreme, absolute, uncontrollable
power; the jus summi imperii; the absolute right to govern.'' The
fifteen states included the Baltics, i.e. Latvia, Lithuania, and
Estonia, which the United States and Western European States did not
regard as having been absorbed into the USSR. See generally Lawrence S.
Eastwood, Jr., Secession, State Practice and International Law after
the Dissolution of the Soviet Union and Yugoslavia, 3 Duke J. Comp.
Int'l L. 299, 316-22 (1983); Ruta M. Kalvaitis, Citizenship and
National Identity in the Baltic States 16 B.U. Int'l L.J. 231, 234-39
(1998).
\97\ A pyt in the Russian language is the smallest measure of area,
as in, ``not a single inch.'' Russian-English Dictionary 517 (E.P.
Dutton & Co. 1973).
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Moreover, the USSR's dissolution was marked by other consequential
changes: (1) It occurred abruptly, out of strong secessionist pressures
that created the risk of widespread civil strife, rather than by a
deliberate and peaceful evolution. (2) The USSR government was not a
party to any of the declarations of dissolution or independence or to
the organizational agreements of the CIS or to any other agreements
among the newly independent States. (3) Within the several years
immediately before dissolution was declared formally, the USSR
government had yielded its political and military control over the
other Warsaw Pact States. (4) In that period before formal dissolution,
the USSR government abolished the Communist Party's monopoly on
domestic political power, thereby facilitating the acquisition by the
people of the USSR's constituent ``republics'' of control of their
territories and economies, and removing an obstacle to the emergence of
the new States.\98\ (5) The demography of the new states was markedly
different from that of the USSR, the former being far more ethnically
homogeneous than the latter was. (6) None of the newly independent
States separately has military/strategic resources (including
agricultural and mining assets and geographical assets such as access
to various ports and contiguity with certain regions on land) that are
on par with those possessed by the USSR.
---------------------------------------------------------------------------
\98\ See generally accounts collected in The Decline and Fall of
the Soviet Empire (B. Gwertzman and M. Kaufman, eds. 1992) For a
description of Russia's place in the USSR, see Richard Pipes, Russia
Under the Bolshevik Regime (1993).
---------------------------------------------------------------------------
International law does not consider a State extinct solely because
it has lost some territory or population. But no USSR successor State
embodies the USSR's international legal personality; indeed, none even
claims to do so. Given the abruptness of the loss of territory and
population, the loss of empire, and the loss of central control over
the inhabitants of the fifteen sub-states that led to their
independence, the changes in ethnic concentrations and in military/
strategic resources, it is not hard to understand why the United States
agreed with the newly-emerged States that the USSR's identity had
disappeared. Hence, the successor States and the United States aptly
concluded that the USSR had ``ceased to exist,'' i.e., ``was no more.''
\99\
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\99\ ``[S]tates fully extinguished lose all international
personality . . ..'' Amos S. Hershey, The Essentials of International
Public Law and Organization 215 (rev. ed. 1935).
---------------------------------------------------------------------------
B. The ABM Treaty Was a Bilateral Treaty
A bilateral treaty is a treaty between two ``sides,'' which usually
are two States.\100\ Only the United States and the USSR were parties
to the ABM Treaty. The Treaty specified no means for adding
parties.\101\
---------------------------------------------------------------------------
\100\ Arnold Duncan McNair, The Law of Treaties, British Practice
and Opinions 5 (1938).
\101\ Confining discussion in this Memorandum to bilateral treaties
does not imply that a State's extinction has no effect on multilateral
treaties of which it was a party. State succession as regards
multilateral treaties is discussed in Hubert Beemelmans, State
Succession in International Law: Remarks on Recent Theory and State
Praxis, 15 B.U. Int'l L.J. 71, 85 (1997); Yehuda Z. Blum, U.N.
Membership of the ``New'' Yugoslavia: Continuity or Break?, 86 Am. J.
Int'l L. 830 (1992).
---------------------------------------------------------------------------
C. If Neither Judicial Decision, Diplomatic Practice Nor Treaty
Provides Trustworthy Evidence on a Disputed Point of Customary
International Law, a Court Will Consult the Works of Scholars
for Evidence of What the Law Is
International law, like common law in Anglo-American jurisprudence,
can grow out of long-practiced custom that becomes accepted as
law.\102\ In ascertaining custom, courts often consult the works of
scholars, as the Supreme Court explained in The Paquete Habana, a
landmark case in 1898:
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\102\ On the role of custom in the development of the common law,
see William Blackstone, I Commentaries on the Laws of England 69-80
(James DeWitt Andrews, ed., 4th ed., 1899); Arthur Reed Hogue, Origins
of the Common Law 190-200 (1966); David J. Bederman, The Curious
Resurrection of Custom: Beach Access and Judicial Takings, 96 Colum. L.
Rev. 1375, 1451 (1996). On the role of custom in the development of
international law, see O'Connell, I International Law, supra note 39,
at 15-20, 35-36.
[W]here there is no treaty and no controlling executive or
legislative act or judicial decision, resort must be had to the
customs and usages of civilized nations, and, as evidence of
these, to the works of jurists and commentators who by years of
labor, research and experience, have made themselves peculiarly
well acquainted with the subject of which they treat. Such
works are resorted to by judicial tribunals, not for the
speculations of their author concerning what the law ought to
be, but for trustworthy evidence of what the law really
is.\103\
---------------------------------------------------------------------------
\103\ The Paquete Habana, 175 U.S. 677, 700 (1900) (citation
omitted).
Courts continue to look to distinguished commentators for aid in
ascertaining customary international law.\104\
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\104\ Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423
(1964); See also Hilton v. Guyot, 159 U.S. 113, 163 (1895); United
States v. Nippon Paper Indus. Co., 109 F.3d 1, 10-11 (1st Cir. 1997).
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D. The Works of Scholars Support the Conclusion That a Bilateral Treaty
Other than a Dispositive Treaty Does Not Survive the Extinction
of One of the Treaty Partners
In very general terms, a dispositive treaty is one that creates a
disposition--as of a political boundary, for example--that is intended
to be perpetually respected. That the ABM Treaty is not a dispositive
treaty is shown at Part IV.K below. A treaty that is not dispositive is
called a ``personal'' or a ``real'' or ``political'' treaty.
A widely-quoted author on the law of State succession is D.P.
O'Connell. According to Professor O'Connell:
There has been, at least since the late nineteenth century,
almost unanimous agreement that personal treaties of a totally
extinguished State expire with it because they are contracted
with a view to some immediate advantage, and their operation is
conditional on the nice adjustment of the political and
economic relations which they presuppose. When this adjustment
is upset the rationale of the treaty is destroyed.\105\
---------------------------------------------------------------------------
\105\ D. P. O'Connell, The Law of State Succession 16 (1956)
(footnotes omitted). The rationale for treaty lapse has also been
characterized as a case of ``impossibility of performance,'' i.e., it
is impossible for an extinct State to do anything; ergo, it is
impossible for an extinct State to perform its predecessor's treaty
obligations. The principles of impossibility-of-performance are
elaborated in a Memorandum from the law firm of Hunton and Williams to
the Heritage Foundation, The Collapse of the Soviet Union and the End
of the 1972 Anti-Ballistic Missile Treaty 4-10 (June 15, 1998) (David
B. Rivkin, Jr., Lee A. Casey, Darin R. Bartram, authors).
The principle that bilateral treaties of a State lapse on the
State's extinction became a part of the scholarly tradition of
international law even before the United States was founded, and
European scholarly works on international law were well known in the
United States in the early Nineteenth Century. The most prominent work
was by Emmerich de Vattel, a Swiss scholar who wrote in the second half
---------------------------------------------------------------------------
of the Eighteenth Century. Vattel wrote:
In the same manner as a personal treaty expires at the death
of the king who has contracted it, a real treaty is dissolved,
if one of the allied nations is destroyed,--that is to say, not
only if the men who compose it happen all to perish, but, also
if, from any cause whatsoever, it loses its national quality,
or that of a political and independent society.\106\
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\106\ Emmerich de Vattel, The Law of Nations, Book II, Chap. XIII,
sec. 203, 215 (in English translation 1833). Vattel's work was first
published in French, Le droit de gens, ou, Principes de la loi
naturelle, applique a la conduite, aux affaires des nations, et des
souverains (1758). Vattel was published in English (in New York), at
least as early as 1787 (for Berry and Rogers). Vattel has been cited in
148 cases in the Supreme Court, from Miller v. The Resolution, 2 U.S.
(Dall) 1, 15 (1781) to New Jersey v. New York, 523 U.S. 767 (1998).
Another of the prominent early works was Frederic de Martens' The
Law of Nations, published in 1788. Martens' career included
professorships of law at the Imperial School in St. Petersburg and at
the University of Gottingen; as representative of Russia at many
official conferences; and as an arbiter in international disputes, for
which he became known as ``Chief Justice of Christendom.'' \107\ An
English translation of Martens'' work was published in Philadelphia in
1795, dedicated to President George Washington. Martens wrote:
---------------------------------------------------------------------------
\107\ George A. Finch, The Sources of Modern International Law 40-
41 (1937); Terry Nardin, Law, Morality and the Relations of States 64
(1983).
TREATIES, properly so called, cease to be obligatory when the
foreign power with whom they were concluded ceases to exist,
and when the state passes under the dominion of another
power.\108\
---------------------------------------------------------------------------
\108\ Georg Frederick von Martens, The Law of Nations, Book II,
Sec. 8, 56 (trans. from the French by William Cobbett, 1795).
Henry Wheaton made the same point in his Elements of International
Law in 1836, perhaps the first treatise exclusively on international
law written in the United States. Wheaton was Justice of the Marine
Court of New York. Later, as the official reporter of the U.S. Supreme
Court, he edited twelve volumes of the Supreme Court's reports. He then
became, in succession, Charge d'affaires of the United States to
Denmark, U.S. Minister to Prussia, and Lecturer on International Law at
Harvard University.\109\ Professor Wheaton wrote:
---------------------------------------------------------------------------
\109\ Finch, supra note 107, at 35-36.
Treaties, properly so called, or fodera, are those of
friendship and alliance, commerce and navigation, which even if
perpetual in terms, expire of course . . . in . . . case either
of the contracting parties loses its existence as an
independent State.\110\
---------------------------------------------------------------------------
\110\ Henry Wheaton, Elements of International Law 191 (1836)
(unabridged republication by Da Capo Press 1972). ``Fodera'' are
treaties. A ``fodus'' is a treaty, a league or a compact. Black's Law
Dictionary 770 (rev. 4th ed. 1968).
In 1889, the State Department stated as a ``principle of public
law'' that a treaty expires when one of the parties ``loses its
existence.'' \111\ In support, the State Department quoted from General
Henry W. Halleck's International Law,\112\ written in 1861:
---------------------------------------------------------------------------
\111\ United States Department of State, Treaties and Conventions
Concluded Between the United States of America and Other Powers Since
July 4, 1776, 1236 n.2 (1899), quoting Halleck's International Law 899,
which is materially the same as Henry W. Halleck I International Law
316 (G.S. Baker ed., 4th ed. 1908).
\112\ Halleck, the adopted son of Baron Frederic von Steuben, was a
career soldier and lawyer. He was General-in-Chief of the United States
Army in the Civil War until replaced by General Ulysses S. Grant. In
1861 he wrote his first book on international law. It was updated in
1866 and has appeared in many subsequent editions. Halleck's career as
soldier and lawyer is sketched in Scott R. Morris, The Laws of War:
Rules by Warriors for Warriors, 1997 Army Law. 4, 10 (1997).
The principle of public law which causes Treaties under such
circumstance [i.e., the cessation of a State's existence as an
independent State] to be regarded as abrogated is thus stated:
``The obligations of Treaties, even where some of their
stipulations are in their terms perpetual, expire in case
either of the contracting parties loses its existence as an
independent State . . .''. \113\
---------------------------------------------------------------------------
\113\ United States Department of State, Treaties and Conventions
Concluded Between the United States of America and Other Powers Since
July 4, 1776 1236 (1899).
In 1897, U.S. Secretary of State John Sherman invoked scholarly
works to explain to the Government of Japan why the treaties made by
the Kingdom of Hawaii would not survive the U.S. treaty of annexation
of the Kingdom's territory, i.e., ``[t]he treaty of annexation does not
abrogate [the Kingdom's treaties], it is the fact of Hawaii's ceasing
to exist as an independent contractant that extinguishes those
contracts.'' \114\
---------------------------------------------------------------------------
\114\ United States Secretary of State John Sherman, Note to the
Minister of Japan (June 25, 1897), quoted in John Basset Moore, V
Digest of International Law 349, 350 (1906). The treatises invoked in
the Note were Halleck's I International Law or Rules Regulating the
Intercourse of States in Peace and War 316 (4th ed. 1908) and William
Edward Hall, A Treatise on International Law 96-97 (4th ed. 1895).
Secretary Sherman was a lawyer who had been a Senator and a
Representative. He is remembered as the author of the Sherman Antitrust
Act, 15 U.S.C. Sec. 1 et seq., and the Sherman Silver Purchase Act, 26
Stat. 289 (1890). See also Territory of Hawaii v. Osaki Mankichi, 190
U.S. 197, 198-211 (1903) (describing the termination of the Kingdom of
Hawaii's treaties with other States after it was annexed by the United
States).
---------------------------------------------------------------------------
Likewise, in 1902 Charles E. Magoon, Law Officer in the Office of
the Secretary of the War Department, submitted a Report to Secretary of
War Elihu Root, which Secretary Root ordered to be published. On the
subject of the treaty obligations of extinct States, the Report states:
But where there is a complete change, not only of sovereigns
but of sovereignty, of necessity the agreement ends, for each
sovereignty must exercise its grace in accordance with its own
constitution, laws, and customs.\115\
---------------------------------------------------------------------------
\115\ Charles E. Magoon, Law Officer, Division of Insular Affairs,
Office of the Secretary, War Department, Report to Secretary of War,
Elihu Root, The Law of Civil Government in Territory Subject to
Military Occupation by the Military Forces of the United States 304
(1902).
In addition, in 1895 Captain Edwin F. Glenn, Acting Judge Advocate
General of the United States Army, in his Hand-Book of International
---------------------------------------------------------------------------
Law, wrote:
When some of the stipulations of a treaty imply perpetuity,
even though the act mentioned to be performed has been
accomplished according to the letter of the agreement--as, for
instance, in the recognition of a new state,--the act of
recognition is complete when accorded; but the state of things
contemplated implies permanency, and a state is not authorized
to disregard the obligation imposed. If, however, one of the
contracting parties loses its existence, or its interior
constitution undergoes a change of such a nature as to render
the treaty inapplicable to the new state of things, the
contract expires.\116\
---------------------------------------------------------------------------
\116\ Edwin F. Glenn, Hand-Book of International Law, 151-52
(1895).
Also, William Edward Hall (1895) and Max Huber (1899) published
treatises expressing the view that upon a State's extinction, its
personal treaties lapse.\117\
---------------------------------------------------------------------------
\117\ Hall, supra note 114, at 97; Max Huber, The Succession of the
States, International and National Practice in the Nineteenth Century
191-92 (1899).
---------------------------------------------------------------------------
British scholar Arthur Berriedale Keith assessed the evidence of
State practice in 1907. Soon after the dissolution of the Dual Monarchy
of Norway and Sweden, he stated: ``The evidence, from the practice of
nations, is all in favour of the lack of continuity in treaty
obligations.'' \118\
---------------------------------------------------------------------------
\118\ Keith, supra note 3, at 19.
---------------------------------------------------------------------------
Similar observations include the following:
[T]here is no legal resurrection in international law. Once a
State has become extinct, it cannot resume a continued
existence. Professor Krystyna Marek, Graduate Institute of
International Studies, Geneva, 1968.\119\
---------------------------------------------------------------------------
\119\ Marek, supra note 78, at 6.
---------------------------------------------------------------------------
When a State is dismembered into new independent States, its
treaties as a rule become null and void without descending to
the new States. Treaties are generally personal in so far as
they presuppose, in addition to the territory, also the
existence of a certain sovereign over the territory. To the
succeeding States the treaties concluded by the former State
are res inter alios acta. Professor Erik Castren, University of
Helsinki. 1951.\120\
---------------------------------------------------------------------------
\120\ Erik Castren, Obligations of States Arising from the
Dismemberment of Another State, XIII Zeitschrift Fur Auslandisches
Offentliches Recht Und Volkerrecht 753, 754 (1951). ``Res inter alios
acta' literally, ``a thing done between others,'' Black's Law
Dictionary 1470 (4th ed. 1951), is used figuratively, as ``it's no
concern of ours,'' Eugene Ehrlich, Amo, Amas, Amat and More 249 (1987).
---------------------------------------------------------------------------
It is clear that political (including personal and dynastic)
treaties of the extinguished state fall to the ground.
Professor Amos H. Hershey, University of Indiana, 1911.\121\
---------------------------------------------------------------------------
\121\ Amos S. Hershey, The Succession of States, 5 Am. J. Int'l L.
285, 287 (1911). See also id. at 291-92.
---------------------------------------------------------------------------
The extinction of the personality of a state results
traditionally in an abrogation of all political and military
treaties concluded between the now extinct entity and other
states. Professor Gerhard von Glahn, University of Minnesota--
Duluth, 1962.\122\
---------------------------------------------------------------------------
\122\ Gerhard von Glahn, Law Among Nations 117 (6th ed. 1992).
Many other scholars have expressed the same opinion.\123\
---------------------------------------------------------------------------
\123\ See, e.g., UN GAOR, 1st Comm., 2d Sess., Annex 14g at 582-83,
U.N. Doc. A/C.1/212 (1947) (Letter of October 11, 1947 from the
Chairman of Sixth Committee to the Chairman of the First Committee);
Restatement (Third) of the Foreign Relations Law of the United States
Sec. 210(3) (1986); J. L. Brierly, The Law of Nations 153 (6th ed.
1963); Crawford, supra note 78, at 408; Green Haywood Hackworth, I
Digest of International Law 297 (1943); Hans Kelsen, Principles of
International Law 382-87 (2d. ed. 1966); Noyes E. Leech, et al, The
International Legal System: cases and Materials 980 (1973); Werner
Levi, Contemporary International Law, A Concise Introduction (2d ed.
1991); John Bassett Moore, I Digest of International Law 248 (1906);
O'Connell, I International Law, supra note 39, at 368; L. O. Oppenheim,
I International Law 553 (1905); Paul Reuter, Introduction to the Law of
Treaties 186 (2d. ed. 1995); Georg Schwarzenberger, A Manual of
International Law 169 (5th ed. 1967); Malcolm N. Shaw, International
Law 694 (4th ed. 1997); Max Sorenson, Manual of Public International
Law 295-98 (1968); Oscar Svarlien, An Introduction to the Law of
Nations 111-112 (1955); Okon Udokang, Succession of New States to
International Treaties 404 (1972); Blum, supra note 101, at 833; Albert
J. Esgain, Military Servitudes and the New Nations, in III Yearbook of
World Polity, The New Nations in International Law and Diplomacy
(William V. O'Brien, ed. 1965), quoting H. D. Reid, International
Servitudes in Law and Practice 25 (1932); Charles Cheney Hyde, The
Termination of the Treaties of a State in Consequence of Its Absorption
by Another--The Position of the United States, 26 Am. J. Int'l L. 133
(1932); J. Mervyn Jones, State Succession in the Matter of Treaties,
1947 Brit. Y.B. Int'l L. 360, 373; Josef L. Kunz, Identity of States
Under International Law, 49 Am. J. Int'l L. 66 (1955); Dieter PapenfuB,
The Fate of the International Treaties of the GDR within the Framework
of German Unification, 92 Am. J. Int'l L. 469, 470-71 n.16 (1998);
Edwin D. Williamson & John E. Osborn, A U.S. Perspective on Treaty
Succession and Related Issues in the Wake of the Breakup of the USSR
and Yugoslavia, 33 Va. J. Int'l L. 261, 270-71 (1993); Richard Young,
The State of Syria: Old or New, 56 Am J. Int'l L. 482, 487 (1962).
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E. No Controlling Decision of an International Judicial Tribunal or
Quasi-judicial Tribunal or a Court of the United States Holds
That an Extinct State's Treaty Automatically Becomes a Treaty
Between the Extinct State's Successor and the Extinct State's
Treaty Partner
1. Courts of the United States
In Terlinden v. Ames,\124\ the Supreme Court had to decide whether
the extradition treaty of 1853 between the United States and the
Kingdom of Prussia remained in force after 1871, when a number of
Germanic States, including Prussia, formed the German Empire. The Court
held that the treaty remained in force because the German Empire's
Constitution had not extinguished Prussia's sovereignty. The Court
described the adoption of the Empire's Constitution, as follows:
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\124\ Terlinden v. Ames, 184 U.S. 270 (1902).
Then came the adoption of the Constitution of the German
Empire. It found the King of Prussia, the chief executive of
the North German Union, endowed with power to carry into effect
its international obligations, and those of the Kingdom, and it
perpetuated and confirmed that situation.\125\
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\125\ Id. at 284.
The Court was careful to distinguish cases in which a State loses
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its international identity upon joining a union of States:
Undoubtedly treaties may be terminated by the absorption of
powers into other nationalities and the loss of separate
existence, as in the case of Hanover and Nassau, which became
by conquest incorporated into the Kingdom of Prussia in 1866.
Cessation of independent existence rendered the execution of
treaties impossible.\126\
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\126\ Id. at 283.
The Court cited as a source an 1889 State Department study of
treaty succession, i.e., ``Where a state has lost its separate
existence, as in the case of Hanover and Nassau, no questions [of
treaty succession] can arise.'' \127\ The Court also invoked a State
Department analysis of the effect on treaties of a State's loss of
existence.\128\
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\127\ Id. at 287.
\128\ John Davis Bancroft, in Treaties and Conventions Concluded
Between the United States of America and Other Powers Since July 4,
1776, 1234-36 (1889).
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The question of whether a State has become extinct was addressed by
a Court of Appeals in 1954 in Ivancevic v. Artukovic.\129\ The court
held that the Kingdom of Serbia had not become extinct when the
inhabitants of adjacent and smaller south Slavic States joined with
Serbia to form what was successively called the Kingdom of the Serbs,
Croats and Slovenes; the Kingdom of Yugoslavia; and the Socialist
Federal People's Republic of Yugoslavia. Ivancevic therefore does not
address the consequences of extinction.
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\129\ Ivancevic v. Artukovic, 211 F.2d. 565, 568-74 (9th Cir.
1954).
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Therefore, to the extent that U.S. courts have addressed the
question of State extinction, the Supreme Court's dictum in Terlinden
v. Ames is consistent with the scholarly works that a State's treaties
lapse upon the State's extinction.
2. International judicial tribunals
Neither the International Court of Justice nor its predecessor, the
Permanent Court of International Justice, has handed down a decision
that turned on the status of personal bilateral treaties of an extinct
State, but in 1996, in the case Concerning application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), the ICJ Separate Opinion of
Judge Weeramantry observed that the Genocide Convention survived the
dismemberment of Yugoslavia because the Convention in embodying
universal principles of civilized behavior, transcended the concept of
state sovereignty. Judge Weeramantry distinguished the Genocide
Convention from treaties that are ``confined within the ambit of a
State's sovereignty.'' \130\ As to such treaties, ``[a]n important
conceptual basis denying continuity . . . is that the recognition of
the predecessor state's treaties would be an intrusion upon the
sovereignty of the successor state.'' \131\ Hence, Judge Weeramantry
appears to have concluded that treaties, other than those of universal
humanitarian concern, do not as a matter of law remain in existence
upon a State's dissolution.
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\130\ Case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina), 1996 I.C.J. 803, at ``640, 646-47 1996 WL 943410
[I.C.J.]. See also Thomas D. Grant, Territorial Status, Recognition,
and Statehood: Some Aspects of the Genocide Case (Bosnia and
Herzegovina v. Yugoslavia), 33 Stan. J. Int'l L. 305 (1997).
\131\ Id.
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3. International arbitration panel
A Tripartite Claims Commission (United States, Austria and Hungary)
was created in 1927 to fix the amounts of financial obligations to
Americans assumed by Austria in its World War I Peace Treaty (Vienna,
1921) with the United States, and the amount assumed by Hungary in its
World War I Peace Treaty (Budapest, 1921) with the United States. The
Panel found it unnecessary to resolve any question of obligations
imposed by customary international law. In passing, however, the Panel
compared the U.S.-Austria and U.S.-Hungary Peace Treaties to the U.S.-
Germany Peace Treaty (Berlin, 1921) as follows:
Unlike the Treaty of Berlin ``restoring friendly relations''
between the United States and Germany, these Treaties in terms
``establish'' for the first time such relations between Austria
and the United States and between Hungary and the United
States.\132\
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\132\ Tripartite Claims Commission (United States, Austria and
Hungary), Administrative Decision No. 1, 11 (May 25, 1927) (App. 20).
Thus, the Tripartite Claims Commission believed that the treaties
of the Austro-Hungarian Empire did not, upon its extinction at or near
the end of World War I, automatically pass to Austria and Hungary,
which were two of the States that succeeded to parts of the Empire's
territory.
F. The United States Conduct Described by Assistant Attorney General
Dellinger Does Not Constitute State Practice for Purposes of
Establishing Customary International Law
1. Background
A State's loss of sovereignty over all its territory was relatively
common in the Nineteenth Century and in the early Twentieth Century.
France annexed Madagascar and Algiers; Great Britain annexed the
Southern African Republic; Japan annexed Korea; Italy annexed various
Italian States; Prussia annexed Hanover, Frankfurt and Nassau; the
United States annexed the Republic of Texas and the Kingdom of Hawaii.
In all of those annexations the United States expressed a view that the
treaties of the annexed States ended automatically with respect to the
territory annexed.\133\
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\133\ Jones, supra note 123, at 362.
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A State's loss of sovereignty over all its territory from a cause
other than annexation was less common. A vast number of States combined
to form ``composite'' States or ``confederations'' or ``unions,'' but
the combining States in many cases retained substantial powers to
conduct their own foreign relations, including the power to make
treaties. An example was the Dual Monarchy of Norway and Sweden, which
ultimately dissolved in 1905. When such a hybrid State dissolved and
its members resumed full sovereignty, each was expected to continue in
effect the treaties it had made when it was part of a union.\134\ The
USSR was different. Before dissolution, its sub-States did not make
bilateral treaties with nation-States.
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\134\ Herbert A. Wilkinson, The American Doctrine of State
Succession 108-109 (1934); Samuel B. Crandall, Treaties, Their Making
and Enforcement 438 (2d ed. 1916); Robert Willem Gaston de Muralt, The
Problem of State Succession with Regard to Treaties 87-88 (1954).
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AAG Dellinger cites four examples of State dissolution to support
his contention that the ABM Treaty of 1972 survived the USSR's
extinction: (a) The breakup of the Greater Columbian Union in 1829-1831
into what became Columbia, Venezuela and Ecuador; (b) the dissolution
of the Dual Monarchy of Norway and Sweden in 1905; (c) the dissolution
of the Austro-Hungarian Empire at or near the end of World War I and
(d) the dissolution of the United Arab Republic in 1961. According to
Dellinger, those events support the proposition that ``[w]here a state
divides into its constituent parts, the [diplomatic] practice supports
the continuity of existing treaty rights and obligations.'' \135\ The
quotation that Dellinger used is from a law review article by Edwin D.
Williamson (former State Department Legal Adviser) and John E.
Osborn.\136\
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\135\ Memorandum from Walter Dellinger, Assistant Attorney General,
to John M. Quinn, Counsel to the President, Re: Section 233(a) of S.
1745 (June 26, 1996), at 3 n.5 (App. 10).
\136\ Id. (quoting Edwin D. Williamson & John E. Osborn, A U.S.
Perspective on Treaty Succession and Related Issues in the Wake of the
Breakup of the USSR and Breakup of USSR and Yugoslavia, 33 Va. J. Int'l
L. 261, 263 (1993)).
---------------------------------------------------------------------------
Dellinger did not mention Yugoslavia's 1992 dissolution, a curious
omission inasmuch as it is a recent example of a State that has been
dissolved, leaving no sovereignty in the extinct predecessor States. It
is therefore more closely analogous to the USSR case than the foregoing
four examples of State dissolution. Regarding Yugoslavia's dissolution,
the United States has taken the position in U.S. Courts and in the U.S.
State Department's publication Treaties in Force that none of the
Yugoslav successor States is a continuation of Yugoslavia,\137\ and in
dealing with the successors of extinct Yugoslavia has ``abandoned any
assertions of automatic treaty obligations and relied entirely on . . .
assurances provided by the successor states.'' \138\
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\137\ Declaration of Christopher R. Hill, Director, Office of South
Central European Affairs, United States Department of State, filed in
Federal Republic of Yugoslavia v. Park-71st Corp., No. 95 Civ. 3659
(AGS) (S.D.N.Y.) para.para. 3, 5 (Sept. 21, 1995), complaint dismissed,
913 F.Supp. 191 (S.D.N.Y. 1995) (App. 1). The United Nations also
concluded that no State is the continuation of the SFRY. U.N.
Resolution 777 (Sept. 19, 1992): ``[T]he State formerly known as the
Socialist Federal Republic of Yugoslavia has ceased to exist,'' and as
a consequence the FRY ``cannot continue automatically [the SFRY's UN]
membership.'' The Security Council thereupon asked the General Assembly
to rule that the FRY ``apply for membership in the United Nations and .
. . not participate in the work of the General Assembly.'' The event is
described in Blum, supra note 101, at 833. See also James B. Foley,
Deputy State Department Spokesman, Statement on Yugoslav State (Sept.
30, 1997), 1997 WL 14464578 (App. 21).
\138\ Williams, supra note 66, at 32.
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Also, Dellinger does not mention the U.S. practice of regarding as
lapsed the treaties of States made extinct by the annexation of their
entire territories. Dellinger gives no reason why those extinctions
should be treated differently from extinctions caused by dismemberment.
Indeed, with respect to the question of treaty survival, the scholarly
literature treats all extinctions in the same way. For example,
Professor Amos S. Hershey, after explaining that ``States are
extinguished through voluntary incorporation, forcible annexation,
division into several States, or union with other States,'' \139\ says:
``It is clear that political (including personal and dynastic) treaties
and alliances of the extinguished State fall to the ground.'' \140\
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\139\ Hershey, supra note 99, at 215 (emphasis added).
\140\ Id. at 218.
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2. A State practice does not contribute to the development
of customary international law unless the practice
is conducted out of a sense of necessity to comply
with international law
International law, like the common law in Anglo-American
jurisprudence, can grow out of long-practiced conduct.\141\ In
international law, it is the conduct of States that is relevant. But
not all conduct of States contributes to the growth of international
law because States, like other persons, sometimes engage in lawful
conduct for reasons that have nothing to do with their international
legal obligations. For example, States admit aliens for residence,
borrow money from other States, make treaties with other States, assert
claims to property located in other States, grant diplomatic asylum,
settle disputes they have with other States, and do other things
``merely for reasons of political expediency.'' \142\ Indeed, in
dealing with questions of treaty survival, States appear to act in the
way they act when dealing with questions as to whether they should
enter new treaties, i.e., they identify their political, economic,
security and other interests and seek the greatest benefits they might
achieve, using any arguments they can muster, while giving up as little
as they have to.\143\ Therefore, to separate State conduct that can
contribute to the growth of international law from State conduct that
does not contribute, courts have established a rule that is called
opinio juris sive necessitatis, which loosely translates as ``a
conviction that a rule is obligatory.'' \144\ For short, it is opinio
juris. According to this rule, the only State conduct that can
contribute to the growth of international law is an act done out of a
sense that the act is required by international law.\145\
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\141\ Bederman, supra note 102, at 1451; Blackstone, supra note
102, at 72; O'Connell, I International Law, supra note 39, at 3-37;
Mark E. Villiger, Customary International Law and Treaties 3-60 (rev.
2d ed. 1997).
\142\ Columbian-Peruvian Asylum Case, 1950 ICJ 4, 277 (Nov. 20).
See generally Jo Lynn Slama, Opinio Juris in Customary International
Law, 15 Okla. City U. L. Rev. 603 (1990).
\143\ Villiger, supra note 141, at 48 (opinio juris seems to
exclude State conduct engaged in solely for convenience); Columbian-
Peruvian Asylum Case, 1950 I.C.J. at 276-78.
\144\ Slama, supra note 142, at 605 n.13, citing H. Steiner & D.
Vagts, Transnational Legal Problems 290 (3d ed. 1986).
\145\ In addition to the authorities cited in the text, the
following describe the rule of opinio juris as an established rule of
international law: The Paquete Habana, 175 U.S. 677, 700 (1900); The
Scotia, 14 U.S. (Wall.) 170 (1871); Helen Silving, 'Customary Law':
Continuity in Municipal and International Law, 31 Iowa L. Rev. 615, 622
(1946); Herbert W. Briggs, The Columbian-Peruvian Asylum Case and Proof
of Customary International Law, 45 Am. J. Int'l L. 728, 730 (1951); J.
L. Brierly, The Law of Nations, An Introduction to the International
Law of Peace 60-61 (5th ed. 1955); Kunz, supra note 123, at 71-76; D.
P. O'Connell, I International Law 16, 18 (1965); Bin Cheng, United
Nations Resolutions on Outer Space: ``Instant'' International Customary
Law, 5 Indian J. Int'l L. 23, 36 (1965); Clive Parry, The Sources of
Evidence of International Law 61-63 (1965); John A. Perkins, The
Changing Foundations of International Law: From State Consent to State
Responsibility, 15 B.U. Int'l L.J. 433, 440 (1997); Villiger, supra
note 143, at 52; Glennon, supra note 15, at 69 n.197.
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According to Sir Hersch Lauterpacht, to cite State practice as
evidence of ``binding customary international law,'' one must establish
``the [State's] conviction that the conduct in question is followed as
a matter of legal obligation . . .''. \146\
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\146\ Sir Hersch Lauterpacht, The Development of International Law
by the International Court 368 (1958).
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The American Law Institute states the rule of opinio juris as
follows:
For a practice of States to become a rule of customary
international law it must appear that the States follow the
practice from a sense of legal obligation (opinio juris sive
necessitatis); a practice that is generally followed but which
States feel legally free to disregard does not contribute to
customary law.\147\
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\147\ Restatement (Third) of the Foreign Relations Law of the
United States Sec. 102(1)(c)(3) cmt. c (1987).
In three leading cases, the North Sea Continental Shelf Cases
(1969),\148\ the Anglo-Norwegian Fisheries Case (1951),\149\ and the
Columbian-Peruvian Asylum Case (1950),\150\ all involving claims based
on State practice, the International Court of Justice ruled that a
failure to establish that the State practice at issue met the opinio
juris test required a conclusion that the practice had not passed into
customary international law. Also, in the 1927 Lotus case,\151\ the
Permanent Court of International Justice likewise rejected a claim
because of a failure to meet the opinio juris test.
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\148\ North Sea Continental Shelf Cases, 1969 I.C.J. 4, 44-45 (Feb.
20).
\149\ Anglo-Norwegian Fisheries Case, 1951 I.C.J. 4, 131 (Dec. 18).
See also Fisheries Jurisdiction Case, Gr. Brit and N. Ir. v. Ice, 1974
I.C.J. 3.
\150\ Columbian-Peruvian Asylum Case, 1950 I.C.J. 4, 276 (Nov. 20).
\151\ The Lotus, (1927) P.C.I.J. Rep. Ser. A. No. 10, at 28; Anglo-
Norwegian Fisheries Case, 1951 I.C.J. 4, 131 (Dec. 18).
---------------------------------------------------------------------------
The Anglo-Norwegian Fisheries case typifies the application of the
opinio juris rule. The ICJ held that the evidence did not establish the
existence of a purported customary rule of international law limiting
the base-line of territorial waters to ten miles in the case of a bay.
The evidence was to the effect that some States had adopted the ten-
mile limit by statute or by treaty, and some arbitral proceedings had
adhered to the ten-mile limit. Nonetheless, the ICJ ruled that, however
broadly the limit was respected, the State practice failed as evidence
of the existence of customary international law because it was not
practice that responded to a command of law.\152\
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\152\ Anglo-Norwegian Fisheries Case, 1951 I.C.J. 4, 131 (Dec. 18).
---------------------------------------------------------------------------
Hence, if the acts of diplomacy cited by AAG Dellinger are to serve
as evidence of customary international law, they must pass the opinio
juris test.
3. The record does not show that, in any of the four
episodes cited by Dellinger, the United States
accepted a treaty as binding on it out of a sense
that international law so required
a. The Dissolution of the Greater Columbian Union, 1829-
1831
In 1819, the Spanish Kingdom of New Granada, the Captain-
Generalship of Venezuela and Quito (also called Ecuador) formed the
Greater Columbian Union. The Union Dissolved in 1829-1831. The extent
to which the three States had submerged their separate identities in
the Union is a matter of dispute. According to one scholar, the Union
consisted of three States. Hence, the dissolution did not manifest a
unitary State's loss of sovereignty over territory.\153\ Later,
Columbia and the United States signed a new treaty, which contained
language that can be read to imply that each party had considered the
pre-dissolution treaties to have continued in effect in the period
between the Union's dissolution and the making of the new treaty.\154\
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\153\ McNair, supra note 100, at 412-18.
\154\ De Muralt, supra note 134, at 86-87.
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The episode was described by the U.S. Secretary of State in 1832,
and more recently in books, articles and reports on State succession,
including a report by a Committee of the UN's International Law
Commission.\155\ If the United States had manifested an understanding
that it acted out of a compulsion of international law, that would have
been a noteworthy event to students of the law of State succession as
well as to AAG Dellinger, i.e., a bona fide manifestation of action
opinio juris in a field of few if any such manifestations. Yet, neither
Dellinger nor any other scholar, identifies any such manifestation.
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\155\ President Andrew Jackson, Message to the House of
Representatives, transmitting Report of Secretary of State Edward
Livingston, on Government of Columbia, H.Doc. No. 173, 22d Cong. 1st
Sess. (March 16, 1832) (App. 22). Draft Articles on Succession of
States in Respect of Treaties with Commentaries Adopted by the
International Law Commission at Its Twenty-Sixth Session, U.N. GAOR,
1977 Sess. & res. Sess. 1978, Vol. III, at 89, U.N. Doc. A/Conf. 80/16/
Add. 2 (1979); Jones, supra note 123, at 367-68; O'Connell, V The Law
of State Succession, supra note 101, at 43-44; D. P. O'Connell, State
Succession in the New Nations, in International Law and Diplomacy, III
Yearbook of World Polity 13 (1965); De Muralt, supra note 130, at 86-
87.
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There is, in short, nothing to suggest that the United States was
acting out of opinio juris in conducting treaty relations with the
successors of the Greater Columbian Union.
b. The Dissolution of the Dual Monarchy of Norway and
Sweden, 1905
In 1814, the Kingdom of Norway and the Kingdom of Sweden formed a
``Dual Monarchy'' by which one person became King of both States.\156\
In a 1910 letter to the Minister of Japan in Washington, the U.S.
Secretary of State described the treaty operations of the Dual Monarchy
from the time it was formed until it dissolved in 1905:
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\156\ Fridtjof Nansen, Norway and the Union with Sweden 26 (1905).
In point of fact the Government of Norway and the Government
of Sweden have hitherto acted independently in execution of
their treaty engagements, each within its sovereign
jurisdiction. In the matter of extradition the United States
has concluded separate treaties with the Governments of Norway
and Sweden.\157\
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\157\ Letter from Secretary of State Elihu Root to Minister of
Japan Takahira (Nov. 10, 1905), reprinted in Hackworth, supra note 123,
at 362.
The U.S. practice of concluding separate extradition treaties with
Norway and Sweden has been interpreted by the UN's International Law
Commission as recognition that the two States had ``separate
international personalities.'' \158\
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\158\ Draft Articles on Succession of States in Respect of Treaties
with Commentaries Adopted by the International Law Commission at Its
Twenty-Sixth Session, U.N. GAOR, 1977 Sess. & res. Sess. 1978, Vol.
III, U.N. Doc. A/CONF.80/16/Add.2 (1979).
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In 1905, when Sweden and Norway separated from their Union, each
notified the United States and other States of its position on treaties
made during the period of the Union, i.e., a treaty that had been made
specifically with reference to one member of the Union would continue
in effect between that member and its treaty partner, and would not
continue in effect otherwise; a treaty made for the Union as a whole
would continue in effect to the extent that it related to one of the
members of the Union, and would not otherwise continue in effect. The
United States and France acquiesced. Great Britain did not acquiesce as
to the continuance of any treaty with Norway, and as to Sweden,
reserved the right to examine the treaties one-by-one.\159\
---------------------------------------------------------------------------
\159\ Baty, supra note 3, at 123-24 (1923). See also Keith, supra
note 3, at 101.
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Like the episode of the Greater Columbia Union, no public account
of that episode states or implies that the U.S. acquiescence was driven
by a sense of necessity to comply with international law. In one
respect, however, the episodes differ, in that in the period between
the dissolution of the Greater Columbian Union (1829-31) and the
dissolution of the Dual Monarchy of Norway and Sweden (1905),
additional government officials and scholarly writers had expressed
opinions on the status of treaties of extinct States. None of them
suggests that the dissolution of Greater Columbia was a precedent
relevant to the dissolution of the Norway/Sweden Dual Monarchy.
Thus, to the extent that views of law had been expressed after the
Greater Columbian Union's dissolution, those views suggested that the
United States was not bound by law to acquiesce in Norway's and
Sweden's proposal that any of their treaties with the United States
remained in effect after their Dual Monarchy's dissolution. Indeed, to
the scholars, the law appeared to be to the contrary. Hence, there is
no evidence to support Dellinger's implied claim that the U.S. practice
vis-a-vis the dissolved Dual Monarchy of Norway and Sweden was arrived
at by opinio juris. That episode therefore does not support the
existence of a rule of customary international law.
c. The Dissolution of the Austro-Hungarian Empire, 1918
The Austro-Hungarian Empire dissolved at or about the end of World
War I. The Empire had fought as an ally of the German and Ottoman
Empires, against a group of States (the ``Allies''), the principals of
which were Britain, France, Italy, Japan, Russia, (until its withdrawal
in 1917), and the United States (which entered in 1917 as against the
German and Austro-Hungarian Empires).
After the War, the Allies jointly negotiated with Germany the Peace
Treaty of Versailles (1919),\160\ to which the U.S. Senate denied
consent. Therefore, the Treaty was not ratified by the United
States.\161\
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\160\ Treaty of Versailles, June 28, 1919, reprinted in II Major
Peace Treaties of Modern History 1265 (F. L. Israel, ed., 1967).
\161\ Edwin Borchard, Shall the Executive Agreement Replace the
Treaty?, 53 Yale L.J. 664, 665-66 (1943-1944).
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The Allies jointly negotiated other Peace Treaties which the United
States did not ratify, including treaties with Hungary (Trianon,
1920),\162\ and with Austria (St. Germain-en-Laye, 1919).\163\ The
United States made peace by separate treaties, i.e., with Germany
(Berlin, 1921),\164\ with Austria (Vienna, 1921) \165\ and with Hungary
(Budapest, 1921).\166\
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\162\ Treaty of Trianon (June 4, 1920).
\163\ Treaty of St. Germain-en-Laye (Sept. 10, 1919).
\164\ Treaty of Peace with Germany, Aug. 25, 1921, U.S.-F.R.G.,
T.S. No. 658 (Excerpts, App. 23).
\165\ Treaty of Peace with Austria, Aug. 24, 1921, U.S.-Aus., T.S.
No. 659 (Excerpts, App. 24).
\166\ Treaty of Peace with Hungary, Aug. 29, 1921, U.S.-Hung., T.S.
No. 660 (Excerpts, App. 23).
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In the recitals at the beginning of the U.S. Treaty with Germany,
the parties state that ``Being desirous of restoring the friendly
relations existing between the two nations prior to the outbreak of war
. . . [h]ave for that purpose appointed their plenipotentiaries . . .''
(emphasis added). The recitals introducing the Treaty with Austria are
different, i.e., ``Considering that the former Austro-Hungarian
Monarchy ceased to exist and was replaced by a republican Government .
. .,'' and ``Being desirous of establishing securely friendly relations
between the two nations . . . [h]ave for that purpose appointed their
plenipotentiaries . . .'' (emphasis added). The recitals in the Treaty
with Hungary are substantially the same as in the Treaty with Austria,
i.e., ``Considering that the former Austro-Hungarian Monarchy ceased to
exist and was replaced in Hungary by a National Hungarian Government .
. .,'' and ``Being desirous of establishing securely friendly relations
between the two nations . . . [h]ave for that purpose appointed their
plenipotentiaries . . .'' (emphasis added) Austria insisted that it was
not the continuation of the Empire.\167\ Austria's position was
supported by its national courts and by a Tripartite Commission that
included the United States.\168\ The Commission cited the above-
described differences in the wording of the U.S. treaties with Germany,
Austria and Hungary as evidence that neither Austria nor Hungary was a
continuation of the Empire.
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\167\ See Kelsen, supra note 123, at 384 n.85; Marek, supra note
78, at 230-32; Thomas Baty, The Obligations of Extinct States, 35 Yale
L.J. 434, 435-37 (1925-1926); Oskar Lehner, The Identity of Austria
1918 as a Problem of State Succession, 44 Aus. J. Pub. Int'l L.63
(1992). For a history of the dissolution of the Austro-Hungarian
Empire, see Robert A. Kann, A History of the Habsburg Empire 468-520
(1974); Rene Albright-Carrie, A Diplomatic History of Europe Since the
Congress of Vienna 360-371 (1958).
\168\ Tripartite Claims Commission (United States, Austria and
Hungary) Administrative Decision No. 1, 4-6, 11-14 (May 25, 1927) (App.
20).
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Moreover, in Article II(1) of the 1921 U.S.-Austria Peace Treaty,
Austria confers on the United States ``the rights, benefits and
advantages'' conferred by Austria on the other Allied and Associated
Powers by designated Parts of the Treaty of St. Germain-en-Laye (1919)
(to which the United States did not become a party),\169\ including
Part X. Part X of the Treaty of St. Germain-en-Laye, Section II,
Articles 234-247, provides a regimen for dealing with the treaties of
the dissolved Austro-Hungarian Empire. Article 234 designates
particular treaties of the dissolved Austro-Hungarian Empire, and
provides that these treaties alone ``shall . . . be applied as treaties
between Austria and those of the Allied and Associated powers party
thereto . . .''. \170\ Some examples are the Convention of October 11,
1909, regarding the international circulation of motor-cars, and the
Convention of June 12, 1902, regarding the guardianship of minors.
Article 241 provides that each of the Allied or Associate Powers
``shall notify to Austria the bilateral agreements of all kinds which
were in force between her and the former Austro-Hungarian Monarchy, and
which she wishes should be in force as between her and Austria.'' \171\
Article 241 further provides that ``[t]he date of the coming into force
shall be that of the notification.'' \172\ Also, ``[o]nly those
bilateral agreements which have been the subject of such a notification
shall be put into force between the Allied and Associated Powers and
Austria.'' \173\ The U.S. Peace Treaty with Hungary, i.e. Budapest
(1921), by reference to the Treaty of Trianon (1920), Article II(1),
adopts by reference Article X of the Treaty of Trianon (1920), which is
in material respects identical to Article X of the Treaty of St.
Germain-en-Laye.\174\ Both treaties were submitted to and approved by a
two-thirds vote in the U.S. Senate.
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\169\ Treaty of Peace between the United States and Austria
(Vienna, 1921) (Excerpts, App. 24).
\170\ Treaty of Peace between Austria on the one hand and the
Allied and Associated Powers on the Other (St. Germain-en-Laye, 1921).
\171\ Supra note 169, at Article 234 (Excerpts, App. 24).
\172\ Id. at Article 241.
\173\ Id.
\174\ Treaty of Peace Between the United States and Hungary
(Budapest, 1921) (Excerpts, App. 25).
---------------------------------------------------------------------------
In 1923 the State Department Solicitor explained that Article II
(i) of the 1921 Treaty with Austria, by incorporating section 241 of
the Treaty of St. Germain-en-Laye, had the effect of terminating the
U.S.-Austria Naturalization Treaty of 1870.\175\ In 1927 the State
Department Solicitor explained that Article 241 gave the United States
a ``right . . . to revive, by giving notice to Austria within a
specified period, any treaty or convention which it may be desired to
continue in effect.'' The Solicitor explained further that the United
States did not within the period specified in Article 241, give notice
of ``its intention to revive the Consular Convention concluded between
this country and Austria-Hungary on July 11, 1870,'' adding that the
Department ``therefore does not consider that this Consular Convention
is now in force.'' \176\
---------------------------------------------------------------------------
\175\ Letter from United States State Department Solicitor to Mr.
Vallance, Effect of War on Naturalization Treaty Concluded Between the
United States and Austria on September 20, 1870, at 1-2 (Apr. 6, 1923)
(App. 26).
\176\ Letter from United States State Dept. Solicitor Green H.
Hackworth to Mr. Jean Dube 1-2 (May 25, 1927) (App. 27).
---------------------------------------------------------------------------
Given that the United States and Austria agreed to an elaborate
regimen by which the United States would select the U.S.-Austro-
Hungarian Empire treaties that it wanted to be in force with Austria,
and that this regimen was consented to by the Senate, there is no
support for Dellinger's implied claim that the U.S.-Austro-Hungarian
treaties continued automatically by operation of law, or Dellinger's
implied claim that the Executive Branch revived those treaties without
the Senate's consent.
In short, the United States did not regard itself as bound by
international law to the treaties of the extinct Austro-Hungarian
Empire.
d. The Secession of Syria from the United Arab Republic,
1961
In 1958, Syria and Egypt formed a union called the United Arab
Republic (the ``UAR''). In 1961, Syria seceded and was once again
recognized as a separate State. In the view of the United States, the
UAR continued to exist notwithstanding Syria's secession, a view shared
by the UAR itself. Under the circumstances, as a matter of
international law, treaties would remain in place absent some reason
why a particular treaty could no longer fulfill its object and purpose.
Moreover, a scholarly work expresses the opinion that Syria's treaties
that were in force when it joined the Union never went out of
force.\177\ Therefore, in 1961 when Syria seceded, its pre-Union
treaties were in force in any event. The United States did not object
to continuing with Syria the treaties that the United States had made
with the UAR, but the United States did not maintain that it continued
those treaties out of a sense of legal duty.
---------------------------------------------------------------------------
\177\ L. C. Green, The Dissolution of States and Membership of the
United Nations, in Law, Justice and Equity 162-166 (R. H. Code Holland
& G. Schwarzenberger, eds., 1967); J. H. W. Verzijl, International Law
in Historic Perspective 126 (1969); United States Dept. of State,
Bureau of Intelligence and Research, The Outlook for Nasser, Research
Memorandum RNA8 at 1 (Oct. 30, 1961) (Declassified, NARA 1/14/99) (The
1961 separation is called ``The Secession of Syria; U.S. Dept. of
State, Telegram to American Embassies in Bonn, London, Cairo, etc. The
State Department had advised the UAR Ambassador that ``[Syria's
secession] was a special situation in that it was not repeat not a
matter of a new regime having supplanted an old regime, but of a new
regime having been created side by side with the previous regime.'')
(App. 28).
---------------------------------------------------------------------------
4. U.S. practice regarding Yugoslavia's 1992 dissolution
shows that the United States does not consider
itself bound by international law to maintain in
force the non-dispositive treaties of extinct
States
In 1992, the Socialist Federal Republic of Yugoslavia (``SFRY'')
dissolved and five States emerged on its territory, i.e., Slovenia,
Croatia; Bosnia and Herzegovina; Macedonia; and the Federal Republic of
Yugoslavia (Serbia and Montenegro) (``FRY(S&M)''). When the dissolution
occurred, the FRY(S&M) claimed that it was not a new State but merely a
reduced-in-size SFRY and therefore was the SFRY's continuation.
The United States rejected the FRY(S&M)'s claim. In a Declaration
filed with a Statement of Interest of the United States in U.S.
District Court in New York in 1995, Christopher R. Hill, Director of
the State Department Office of South European Affairs, stated:
In the early part of this decade, the SFRY suffered
increasing political crisis that ultimately led to dissolution.
Since 1992 the United States has taken the position that the
SFRY has ceased to exist and that no state represents the
continuation of the SFRY.
The United States' position that the SFRY has ceased to exist
and that no state represents the continuation of the SFRY is
consistent with the position of the international community
generally.\178\
---------------------------------------------------------------------------
\178\ Declaration of Christopher R. Hill, Director, Office of South
Central European Affairs, United States Department of State, filed in
Federal Republic of Yugoslavia v. Park-71st Corp., No. 95 Civ. 3659
(AGS) (S.D.N.Y.) para.para. 3, 5 (Sept. 21, 1995), complaint dismissed,
913 F. Supp. 191 (S.D.N.Y. 1995) (App. 1).
---------------------------------------------------------------------------
5. The U.N. Security Council Decision not to oppose giving
the Russian Federation veto power does not evidence
customary international law because the decision
was not required by international law
Within days after the USSR dissolved in December, 1991, the Russian
Federation asked the United Nations Security Council for the USSR's
Permanent Seat (with veto power) on the Security Council. The United
States could have exercised its veto to preclude a Security Council
decision to grant the Russian Federation's request. Instead, the United
States, at a non-public meeting with other members of the Security
Council, granted the Russian Federation's request.
The Security Council made no official announcement at the time
other than by removing the USSR's nameplate and replacing it with a
Russian Federation nameplate in the Security Council chamber.\179\ The
Russian Federation's request was handled quietly and quickly to avoid
precipitating consideration of proposals to restructure the Security
Council to abolish the veto power, to merge the veto powers of France
and Great Britain, and to give veto powers to Germany or Japan or both.
According to one news account, ``western diplomats are said to be
lobbying hard to avoid a messy debate on the reform of the Security
Council.'' \180\ Similarly, former U.S. Ambassador to Italy Richard N.
Gardner explained: ``The one thing the United States, Britain and
France wanted to avoid at all costs is anything that would open up the
Pandora's box of a Charter amendment altering the present membership of
the Security Council and possibly ending the right of a veto.'' \181\
---------------------------------------------------------------------------
\179\ Michael P. Scharf, Musical Chairs: The Dissolution of States
and Membership in the United Nations, 28 Cornell Int'l L.J. 29, 46-53
(1995); Carolyn L. Willson, Current Development: Changing the Charter:
The United Nations Prepares for the Twenty-First Century, 90 Am. J.
Int'l L. 115, 117-19 (1996); Yehuda Z. Blum, Russia Takes Over the
Soviet Union's Seat at the United Nations, 3 Eur. J. Int'l L. 354
(1992).
\180\ Trevor Rose, Switch of Soviet Security Council Seat Could
Spur Reform Ideas, Wash. Post., Dec. 26, 1991, at A25; see also Paul
Lewis, 3 Western Powers for Russian Takeover of Soviet U.N. Seat, N.Y.
Times, Dec. 24, 1991, at A8; Paul Lewis, West Acts to Defer Issue of
New U.N. Council Seats, N.Y. Times, Jan. 3, 1992, at A6; Sam Jameson,
Japan to Seek Seat on U.N. Security Council, L.A. Times, Jan. 29, 1992,
at A9.
\181\ Scharf, supra note 179, at 48, n.104, quoting from a
statement by former Ambassador Gardner, reported in Paul Lewis, 3
Western Powers Favor Russian Takeover of Soviet U.N. Seat, N.Y. Times,
Dec. 24, 1991, at A8.
---------------------------------------------------------------------------
Carolyn L. Willson, U.S. Department of State, has called the
decision to give the USSR seat to the Russian Federation a ``de facto
amendment'' of the U.N. Charter, a locution that implies that without
amendment the U.N. Charter would not have permitted the Russian
Federation to take the USSR's seat, a tacit statement that the Russian
Federation was not the same State as the USSR.\182\
---------------------------------------------------------------------------
\182\ Willson, supra note 179, at 117.
---------------------------------------------------------------------------
Professor Michael P. Scharf, who at the time served as the State
Department lawyer with responsibility for legal issues concerning
succession to membership at the United Nations, goes no farther than to
say that ``[W]hat is significant is that the members of the United
Nations have found it in their interests to act (or at least to depict
their actions) concerning membership succession in conformity with
legal principles and precedent.'' \183\ The precedent to which
Professor Scharf refers is a U.N. decision in 1947: When British
Colonial India (a member of the U.N. even before Indian independence)
became independent, it automatically acquired U.N. membership, but
Pakistan, which emerged as a new State at the same time, had to apply
for membership.\184\ The USSR episode and the India-Pakistan episode,
however, differ in a material respect: treating India as though it were
an incumbent U.N. member, rather than as a new applicant could not
change the regimen for governing the U.N., whereas allowing the Russian
Federation to occupy (as incumbent) the USSR's seat on the Security
Council would vastly change the governing regimen, i.e., as an
incumbent, the Russian Federation would have a veto power. As just
another U.N. member it would not. So, when the Security Council gave
the Russian Federation a veto power, it was not bound to do so on the
basis of the 1947 decision on India and Pakistan. The Security Council,
and the U.N. generally, acted on the basis of expediency, not legal
requirement. Indeed, one commentator, concluding that the India/
Pakistan episode of 1947 was not analogous to the dissolution of the
USSR, stated that, ``with the demise of the Soviet Union itself, its
membership in the UN should have automatically lapsed and Russia should
have been admitted to membership in the same way as the other newly-
independent republics.\185\
---------------------------------------------------------------------------
\183\ Scharf, supra note 179, at 67-69.
\184\ Id. at 68-69.
\185\ Blum, supra note 179, at 359.
---------------------------------------------------------------------------
Therefore, the USSR/Russian Federation decision does not constitute
opinio juris as to the survival of treaties of the USSR.
In sum, U.S. diplomatic practice has not contributed to the
development of a rule of law that a non-dispositive treaty of an
extinct State automatically becomes a treaty between a successor State
and the extinct State's treaty partner.
G. The 1978 Vienna Convention on Succession of States in Respect of
Treaties Does Not Resolve Any ABM Treaty Question Because The
United States Is Not a Party to The Vienna Convention and
Conventions Do Not Bind Non-Parties
The United States did not sign the 1978 Vienna Convention at the
time it was opened for signature in 1978, or since. A State is not
bound by a convention or treaty to which it is not a party.\186\
---------------------------------------------------------------------------
\186\ Jet Traders Inv. Corp. v. Tekair, 89 F.R.D. 560, 567 (D. Del.
1981); Restatement (Third) of the Foreign Relations Law of the United
States Sec. 324(3); Udokang, supra note 123, at 403; Georg
Swarzenberger, A Manual of International Law 160-61 (5th ed. 1967).
---------------------------------------------------------------------------
H. Article 34.1 of the 1978 Vienna Convention Does Not Reflect a Rule
That Has Passed into Customary International Law
Article 34.1 of the 1978 Vienna Convention provides:
Succession of the States in cases of separation of parts of a
State 1. When a part or parts of the territory of a State
separate to form one or more States, whether or not the
predecessor State continues to exist: (a) any treaty in force
at the date of the succession of States in respect of the
entire territory of the predecessor State continues in force in
respect of each successor State so formed; (b) any treaty in
force at the date of the succession of States in respect only
of that part of the territory of the predecessor State which
has become a successor State continues in force in respect of
that successor State alone.\187\
---------------------------------------------------------------------------
\187\ Vienna Convention on Succession of States in Respect of
Treaties, Art. 34.1, U.N. Doc. A/Conf.80/31 (1978) (emphasis added).
In Filartiga v. Pena-Irala (1980),\188\ a U.S. Court of Appeals
held that an act of torture committed by a foreign State official
against a person held in detention in that State's territory violated a
customary rule of international law. The court inferred the existence
of the rule from evidence that the use of torture had been universally
condemned by States. According to the court, foreign States had
manifested their ``universal abhorrence'' by way of treaties on human,
political and civil rights; by declarations of the United Nations
General Assembly; and by domestic laws.\189\ The court, however, issued
this caution:
---------------------------------------------------------------------------
\188\ Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
\189\ Id. at 884.
The requirement that a rule command the ``general assent of
civilized nations'' to become binding upon them all is a
stringent one. Were this not so, the courts of one nation might
feel free to impose idiosyncratic legal rules upon others, in
the name of applying international law.\190\
---------------------------------------------------------------------------
\190\ Id. at 881.
In counseling caution, the court could have cited the North Sea
Continental Shelf case, decided by the International Court of Justice
in 1969.\191\ The ICJ rejected the contention of Denmark and the
Netherlands (in a dispute with Germany) that, by reason of the adoption
of the Convention on the Continental Shelf, a principle for determining
continental-shelf boundaries between adjacent coastal States (the
principle of ``equidistance'') had become a rule of customary
international law. The Convention was opened for signature for 1958.
Between 1958 and 1969, thirty-nine States had become parties.\192\ By
1969, approximately 70 States were exploring or exploiting continental
shelf areas.\193\
---------------------------------------------------------------------------
\191\ North Sea Continental Shelf Cases, 1969 I.C.J. 3 (Feb. 20).
\192\ Id. at 25.
\193\ Id. at 227 (Lachs, J., dissenting).
---------------------------------------------------------------------------
Denmark and the Netherlands argued that the participation of 39
States in the Convention was sufficient to establish the equidistance
principle as a rule of customary international law binding on every
coastal State, not just the 39 States that were parties to the
Convention. The ICJ rejected the argument. The participation of 39
States was not sufficiently ``widespread and representative'' to show
that the equidistance principle had passed into a rule binding on
States that were not parties to the Convention. That number of
participants ``though respectable,'' was ``hardly sufficient'' even
when compared to the total number of States ``whose interests were
specially affected,'' i.e. were eligible to join and had continental
shelves.\194\
---------------------------------------------------------------------------
\194\ North Sea Continental Shelf Cases, 1969 I.C.J. 3, 43 (Feb.
20).
---------------------------------------------------------------------------
The evidence as to States' acceptance of the Vienna Convention does
not approach the level of proportional participation that the ICJ found
insufficiently widespread in the North Sea Continental Shelf case,
i.e., 39 out of 70 interested States in the Continental Shelf case; 20
out of at least 185 States in the case of the1978 Vienna Convention
(all States have an interest in the making of treaties). Moreover, the
1978 Vienna Convention's participants do not include any developed
state other than the Holy See or any Western European State, or any
North American State or any of the five States (United States, the
Russian Federation, China, France and Great Britain) that has a
Permanent Seat (and veto power) on the UN Security Council. The line is
pushed even farther from the regimen of customary international law if
weight is given to proportion of population, because the 1978 Vienna
Convention's participants collectively represent about 15 percent of
the World's population.\195\ Moreover, in the North Sea Continental
Shelf case the ICJ ruled that the passage of eleven years between the
Convention's signing and the Court's decision was adequate to judge how
well the Convention was becoming accepted by States. One commentator
explained:
\195\ Participants in the 1978 Vienna Convention are Angola, Bosnia
and Herzegovina, Brazil, Chile, Cote d'Ivoire, Croatia, Czech Republic,
Democratic Republic of the Congo, Dominica, Egypt, Estonia, Ethiopia,
Holy See, Iraq, Madagascar, Morocco, Niger, Pakistan, Paraguay, Peru,
Poland, Senegal, Seychelles, Slovakia, Slovenia, Sudan, the former
Yugoslav Republic of Macedonia, Tunisia, Ukraine and Uruguay. (U.N.
Sales No. F.79.v.10 (1996)). Each of the parties other than the Holy
See is a ``developing'' State according to the classification used by
the International Bank for Reconstruction and Development. See The
World Bank Group, The World Bank's Role, and Countries and Regions
listings, <http://www.worldbank.org/html/extdr/backgrd/ibrd/role.htm>
(visited Dec. 29, 1998), and <http://www.worldbank.org/html/extdr/
country.htm> (visited Dec. 29, 1998). The parties to the 1978 Vienna
Convention represent about 15 percent of the world's population of 5.9
billion in 1998. United Nations, Population division, Department of
Economic and Social Affairs, 1998 Revision of the World Population
Estimates and Projections (1998) (for world population figure);
Population Reference Bureau, 1998 World Population Data Sheet (1998)
(for population of each of the parties to the 1978 Vienna Convention).
However, when time passes and States neglect to become
parties to a multilateral instrument, the abstention
constitutes a silent rejection of the treaty. Early in the
history of the treaty, it is impossible to determine what
position States will ultimately take, but 20 years after the
treaty was drafted, one can gain a fairly clear idea of how
much acceptance the treaty will probably ever secure.\196\
---------------------------------------------------------------------------
\196\ Richard Baxter, Treaties and Custom, Recuil des Cours 25, 99-
101 (1970); See also Briggs, supra note 145, at 728.
If time available for participation is given weight, there is even less
to commend the 1978 Vienna Convention as a maker of customary
international law, because nineteen years have elapsed since the 1978
Convention was signed.\197\
---------------------------------------------------------------------------
\197\ ``It took nineteen years for the 1978 Vienna Convention or
the Succession of States in Respect of Treaties to enter into force
with the deposit of the fifteenth instrument of ratification by the
Former Yugoslav Republic of Macedonia (FYROM) on 7 October, 1996.''
Koskenniemi, supra note 66, at 89, 93-94 (footnotes omitted).
---------------------------------------------------------------------------
So Article 34.1 of the 1978 Vienna Convention does not meet the
``stringent'' requirement suggested by Filartiga or the ``widespread
and representative'' requirement of the North Sea Continental Shelf
case. The 1978 Vienna Convention has not passed into customary
international law and therefore binds no State other than a party to
that Convention.
I. The Continuation Principle of the 1978 Vienna Convention Would Not
Apply to the ABM Treaty Vis-a-vis the Russian Federation
Because the Continuation of the Treaty Would Conflict with the
Treaty's Object and Purpose
The clause in the 1978 Vienna Convention that would require the
continuation in force vis-a-vis successor States of the treaties of
their extinct predecessors does not apply if continuation would be
incompatible with the treaty's object and purpose or would radically
change the conditions for its operation.
Article 34.1 of the 1978 Vienna Convention provides:
Succession of the States in cases of separation of parts of a
State 1. When a part or parts of the territory of a State
separate to form one or more States, whether or not the
predecessor State continues to exist: (a) Any treaty in force
at the date of the succession of States in respect of the
entire territory of the predecessor State continues in force in
respect of each successor State so formed; (b) any treaty in
force at the date of the succession of States in respect only
of that part of the territory of the predecessor State which
has become a successor State continues in force in respect of
that successor State alone.
Article 34.2 of the 1978 Vienna Convention provides:
Paragraph 1 does not apply if: (a) the States concerned
otherwise agree; or (b) it appears from the treaty or is
otherwise established that the application of the treaty in
respect of the successor State would be incompatible with the
object and purpose of the treaty or would radically change the
condition for its operation.
In his November, 1997 letter to Representative Gilman, President
Clinton stated that the ABM Treaty of 1972 cannot fully achieve its
purpose with the Russian Federation as the only partner of the United
States because the Treaty refers specifically to territory outside the
boundaries of the Russian Federation and within the boundaries of
Belarus, Kazakstan and Ukraine:
Neither a simple recognition of Russia as the sole ABM
successor (which would have ignored several former Soviet
states with significant ABM interests) nor a simple recognition
of all NIS states as full ABM successors would have preserved
fully the original purpose and substance of the Treaty as
approved by the Senate in 1972.\198\
---------------------------------------------------------------------------
\198\ Letter from President William J. Clinton to Benjamin A.
Gilman, Chairman, Committee on International Relations, House of
Representatives (Nov. 21, 1997) (App. 7).
Therefore, according to President Clinton, to achieve the Treaty's
purposes, the area of its application must include the territories of
Belarus, Kazakstan and Ukraine in addition to the Russian Federation.
To include those territories they would have to be made parties. This
would require a substantial amendment to the Treaty's provisions on
decision-making. Moreover, the alteration in the ABM Treaty's
territorial scope would have a material affect on the ability of
parties to defend their national territory by means of the one
permitted ABM site.
Were Belarus, Kazakhstan and Ukraine simply added as parties
(assuming, for the sake of argument, President Clinton's view that the
Treaty remains in force between the United States and the Russian
Federation), the veto power that the United States has as regards the
ABM Treaty of 1972 in treaty governance would be destroyed. Also, the
United States and the Russian Federation together could be outvoted by
the other three States. So critical a change in the powers of
governance would not be compatible with the ABM Treaty as adopted by
the United States and the USSR.
Moreover, the dynamics of amending the Treaty would change
drastically. It would no longer be enough for the United States to
convince the other major party to agree to an amendment. The other
three could block an amendment, requiring the major parties to withdraw
and start anew if they desired an amended treaty.
J. The ABM Treaty Did Not Become a Treaty Between the United States and
the Russian Federation by Devolution
In anticipation of dissolving, a State may want to impose its
treaties on both its treaty partners and its successors. To that end,
it may proclaim that a treaty will become a treaty between its
successor and its (the dissolving State's) treaty partner. That
proclamation is called a ``devolution proclamation.'' Similarly, the
dissolving State and its about-to-become successor may agree to such a
devolution. In either case, the devolution does not bind a treaty
partner.\199\
---------------------------------------------------------------------------
\199\ Draft Articles on Succession of States in Respect of Treaties
with Commentaries Adopted by the International Law Commission at Its
Twenty-Sixth Session, U.N. GAOR, 197 Sess. & res. Sess. 1978, Vol. III,
at 18-25, U.N. Doc. A/CONF.80/16/Add.2 (1979); Restatement (Third) of
the Foreign Relations Law of the United States Sec. 210 cmt. f (1986)
('Subsection (3) adopts the ``clean slate'' theory . . .. Under that
theory, a new state starts afresh, with neither rights nor obligations
under the agreements . . . of its predecessor state, unless the new
state indicates a desire to adopt a particular agreement . . . and the
other party or parties agree. Even a devolution agreement between the
predecessor state and the successor state, whereby the latter assumes
all or some of the agreements . . . of the predecessor state, is
binding only as between those states; the other party (or parties) to
an agreement must agree to the substitution of the new state. The
principle applies both to newly independent states and to a state
separated from another by secession or other circumstances.'').
---------------------------------------------------------------------------
It follows that neither a devolution proclamation by the USSR nor a
devolution agreement between the USSR and any one or more of its to-be-
successor States could bind the United States to accept one or more of
the successor States as a party to the ABM Treaty.
K. The ABM Treaty Was Not a Dispositive Treaty
1. The ABM Treaty did not create a legally recognizable
interest in any State other than the Treaty parties
Some treaties, like some contracts, are thought to create permanent
rights in third parties. Thus:
It is equally clear that transitory or dispositive treaties
remain in force. Of such a character are stipulations
respecting boundary lines, servitudes or easements resting on
the land relating to the use and repair of roads (including
railways) or the navigation of rivers, etc. In these cases the
rights of third parties, which it would be illegal to ignore or
destroy, are involved.\200\
---------------------------------------------------------------------------
\200\ Hershey, supra note 121, at 287.
The ABM Treaty did not purport to transfer any legally enforceable
right to any third party, and that alone raises a strong presumption
that no third party had such right.\201\ In addition, Article XV.2 of
the ABM Treaty allows each party to withdraw on specified grounds,
without the consent of anyone else, upon six months'' advance notice.
Finally, a party is allowed to withdraw ``if it decides that
extraordinary events related to the subject matter of this Treaty have
jeopardized its supreme interests'' (emphasis added). Hence, the
decision as to whether to withdraw is vested exclusively in each party.
Therefore, the ABM Treaty cannot reasonably be read as having
transferred a legally recognizable interest to any third party.
---------------------------------------------------------------------------
\201\ ``The standard of proof of the existence of rights in rem in
customary international law is strict, and it is believed, although it
cannot be demonstrated here, that there is no general rule accepted ex
opinio juris sive necessitatis that ``real'' or ``localized'' treaties
automatically bind successor States.'' A. P. Lester, State Succession
to Treaties in the Commonwealth, 12 Int.''l & Comp. L.Q. 475, 501
(footnote omitted).
---------------------------------------------------------------------------
2. The ABM Treaty did not evidence an intent to restrict
either treaty party's use of particular territory
beyond the time that the Treaty was to be in force
Some scholars suggest that a treaty may create a ``servitude''--
that is, a restriction on a particular use of territory for the benefit
of the other party that survives the first party's extinction, even if
no third-party right is created. Such obligations ``are said to be in
the nature of covenants running with the land.'' \202\ Whether, in
international law, such a device as a servitude actually exists, is
hotly contested.
---------------------------------------------------------------------------
\202\ James Wilford Garner, Questions of State Succession Raised by
the German Annexation of Austria, 32 Am. J. Int'l L. 421, 432-33
(1938). To like effect is De Muralt, supra note 130, at 108. See also
Malcolm N. Shaw, State Succession Revisited, 1994 Finnish Y.B. Int'l L.
34 77 (``where an existing State comes to an end as an international
person and is replaced by two or more States it is accepted that
political treaties will not continue but that territorially grounded
treaties will continue . . .''.)
---------------------------------------------------------------------------
According to F.A. Vali:
The ``servitude'' of international law is the traditional
scapegoat of international jurisprudence. There is hardly any
concept or doctrine of international law which has suffered
such contemptuous criticism and blunt rejection, and at the
same time enjoyed such unsubstantiated approval and wanton
praise. It has been accused of being the absolute vestige of
medieval patrimonial, feudal and--last but not least--Roman
law. It has been attacked as being the hybrid product of a
servile adaptation of private law concepts, it has been
indicted as being a superfluous and artificial construction,
apt to deform international law and to introduce the utmost
confusion therein. It has been dealt even the deadliest blow
which can be given to any scientific conception . . . its
existence has been denied.\203\
---------------------------------------------------------------------------
\203\ F. A. Vali, Servitudes of International Law 42 (2d. ed.
1958). Arguments pro and con, the existence of international
servitudes, and the identities of the advocates of each position, are
given at Esgain, supra note 123, at 43-44.
But assuming, for the sake of argument, that some restraints on
land use can survive extinction even though they do not vest rights in
third parties, there is good reason to assume that the rule would be
limited to restraints on particularly-described territory. The
servitude is based on the presumption that a State that granted the
restriction intended to transfer a permanent property right to another
State, just as any landowner might transfer to another person a
permanent right in designated property. That view was expressed by
---------------------------------------------------------------------------
Vattel:
But it is here to be observed, that treaties or alliances
which impose a mutual obligation to perform certain acts and
whose existence consequently depends on that of the contracting
powers, are not to be confounded with those contracts by which
a perfect right is once for all acquired, independent of any
mutual performance of subsequent acts. If, for instance, a
nation has forever ceded to a neighboring prince the right of
fishing in a certain river, or that of keeping a garrison in a
particular fortress, that prince does not lose his rights, even
though the nation from whom he has received them happens to be
subdued, or in any other manner subjected to a foreign
dominion. His rights do not depend on the preservation of that
nation; she had alienated them; and the conqueror by whom she
has been subjected can only take what belonged to her.\204\
---------------------------------------------------------------------------
\204\ Vattel, supra note 102, at X113, Sec. 203, quoted in Samuel
B. Crandall, Treaties, Their Making and Enforcement 430-31 (1916);
Jones, supra note 123, at 375 (emphasis added).
---------------------------------------------------------------------------
Similarly, Samuel B. Crandall stated:
Rights in or over the territory, or real rights, which have
been created or transferred by treaty, do not expire with the
extinguishment of the state conveying such rights, but survive
as against the succeeding territorial sovereign. The
instruments under which such rights have passed out of the one
state into the other remain unchanged as documents of
title.\205\
---------------------------------------------------------------------------
\205\ Crandall, supra note 204, at 430.
Likewise, ``[t]here is an incapacity in the successor State to
assert rights of sovereignty greater than those which inhere in respect
of the territory.'' \206\
---------------------------------------------------------------------------
\206\ Committee on State Succession to Treaties and Other
Governmental Obligations, International Law Association, The Effect of
Independence on Treaties 352 (1965).
---------------------------------------------------------------------------
Also, D. P. O'Connell writes:
A distinction is drawn in traditional international law
between ``personal'' and ``impersonal'' or ``dispositive''
treaties. The former are those which are essentially
contractual and presuppose reciprocity between the parties with
a view to an agreed end. The latter are those which impress
upon a territory with some special legal status, and so limit
the incidence of sovereignty upon it.\207\
---------------------------------------------------------------------------
\207\ O'Connell, I International Law , supra note 39, at 368.
The ABM Treaty fell within D. P. O'Connell's description of a
``personal treaty,'' i.e., it presupposed ``reciprocity between the
parties with a view to an agreed end.'' If the ABM Treaty had ended by
a party's withdrawal under Article XV.2, neither party would have been
further obliged to forego deploying ABM systems anywhere on its
territory. The end of the Treaty as a result of the USSR's extinction
could not give the Treaty any greater power to burden particular
territory. The ABM Treaty therefore was the antithesis of what
O'Connell describes as treaties that ``impress'' upon a territory a
``special legal status'' that ``limit[s] the incidence of sovereignty''
on that territory. Similarly, the ABM Treaty was the opposite of
Vattel's example of a right acquired by conquest that is ``once for all
acquired, independent of any mutual performance of subsequent acts.''
Finally, it cannot be assumed that the United States has, outside any
treaty, granted any third State a legal right to require the United
States to forego deployment of a national missile defense.
Accordingly, the ABM Treaty was not a dispositive treaty.
v. conclusion
The ABM Treaty was a bilateral, non-dispositive treaty. In
accordance with longstanding principles of international law, expounded
with remarkable consistency by numerous officials and scholars from
various countries over hundreds of years, when the USSR became extinct,
its bilateral, non-dispositive treaties lapsed. Hence, the ABM Treaty
lapsed by operation of law--that is, automatically--when the USSR
dissolved in 1991. It did not become a treaty between the United States
and the Russian Federation.
Senator Ashcroft. I am going to move now to Mr. Rivkin. It
is my understanding that Mr. Miron is here to be available to
answer questions. And we will be delighted to have you as a
resource in that respect.
I want to try and keep this moving, because the bells will
ring a little bit later. Pardon me. I never wanted to be a
prophet quite like that. But I probably have about 20 minutes
in which to cast my vote. So it might be that I would hear your
testimony before going.
STATEMENT OF DAVID B. RIVKIN, JR., PARTNER, HUNTON AND
WILLIAMS, WASHINGTON, DC
Mr. Rivkin. Thank you, Mr. Chairman. On behalf of myself
and two of my colleagues, whom I want to recognize, Mr. Casey
to my left, Mr. Bartram behind me, we are also delighted to be
here. The totality of our views is also set forth in the
memorandum of June 15, prepared for the Heritage Foundation. If
you do not mind, I would appreciate it if you can include it in
the record.
[The memorandum referred to, ``The Collapse of the Soviet Union and
the End of the 1972 Anti-Ballistic Missile Treaty: A Memorandum of
Law,'' is available on The Heritage Foundation web site at: httl://
www.heritage.org]
Senator Ashcroft. Without objection, we are pleased to do
so.
Mr. Rivkin. And I will proceed with a very short
introductory statement.
In May 1998, my law firm, as part of our pro bono
responsibilities, was asked by the Heritage Foundation to
consider the legal status of a 1972 ABM Treaty. Based upon our
review of a text of the treaty, its history, the relevant
international law authorities and American constitutional law
sources, we concluded that the ABM Treaty no longer binds the
United States as a matter of international and domestic law.
Our argument is as follows: We believe that the ABM Treaty
became extinct when the Soviet Union dissolved in 1991. We
believe that treaties are a species of contract that may be
rendered impossible to perform and may be discharged as a
matter of law by the disappearance of one or both of the treaty
partners. Under the applicable rules of international and
constitutional law, the ABM Treaty could have survived the
Soviet Union's dissolution only if one or more of the surviving
post-Soviet States both continued the Soviet Union's
sovereignty, which is to say its international legal
personality and were capable of fulfilling unimpaired the
totality of the terms and conditions of the original treaty. No
such state survived the Soviet Union's dissolution.
The President's sometime assertion--and Mr. Chairman
recounted how mixed the record is in that regard, so the
President's sometime assertion that Russia is an ABM Treaty
partner--is, in our opinion, incorrect. It is significant that
the Russian Federation is not merely a continuation of the
Soviet Union under a different name and a different system of
government, as the Soviet Union arguably was a continuation of
the Romanov Empire.
The Soviet Union dissolved in 1991. Both the Empire and the
Russian State around which it was built collapsed. Boris
Yeltsin's Russia may be many things, but it is certainly not a
continuation of the Romanov Empire. We believe it is sui
generis.
Moreover, even if today's Russia could be considered to be
a continuation of the Soviet Union, it could not in itself
carry out the totality of the Soviet Union's obligations under
the ABM Treaty. That agreement was painstakingly negotiated. It
was based upon a number of fundamental assumptions about the
parties and their place in the world order during the cold war.
All of these assumptions, or at least most of them, are now
obsolete.
Moreover, the ABM Treaty had a critical geographical
component, which at the bottom guaranteed that the United
States' and the Soviet Union long-range offensive ballistic
missiles had unrestricted access to the entire territory of the
other party. The Russian Federation today controls only a part
of the Soviet Union's territory and has lost control over many
of the Soviet Union's most important population centers.
Any treaty with Russia alone would not preserve the
totality of a bargain that the United States had agreed to with
the advice and consent of the Senate in 1972. Significantly,
the conclusion that the ABM Treaty automatically was discharged
in 1991 is also supported by the application of either of the
two prevailing paradigms of legal analysis governing questions
of state succession to treaties, the continuity analysis and
the clean slate analysis.
Under the continuity analysis, even if one or more of the
former Soviet Republics could have been considered to continue
the USSR's interntional legal personality, the ABM Treaty could
not have survived because it was a bilateral treaty personal to
the Soviet Union. Such treaties are generally discharged when
one treaty partner disappears.
Moreover, and this is a very important point, even if the
continuity analysis were to apply, the end result of the
application of that analysis would have been a series of mini
ABM Treaties with 15 successor states, or, I should say, post-
Soviet States, and not either a multilateral treaty with
several of the post-Soviet States envisioned in the September
1997 MOU or a single treaty with Russia, the position the
administration seems to be taking at this time.
Under the clean slate analysis, one or more of the former
Soviet Republics would have had to agree to undertake to
perform the totality of the Soviet Union's ABM Treaty
obligations, and the United States would have had to accept
this new state or states as a treaty partner. Significantly,
that acceptance under the clean slate theory would have
constituted the creation of a new treaty that could only be
effected with the advice and consent of the U.S. Senate.
To summarize, today the ABM Treaty can be revived only with
the full participation of the U.S. Senate, as provided by the
U.S. Constitution. Moreover, to ensure that the United States
obtain the totality of the benefits of its original 1972
bargain, the ABM Treaty would have to be very significantly and
substantially redrafted.
In any case, the substitution of one or more former Soviet
Republics of the Soviet Union for the USSR would fundamentally
change the original bargain of 1972, to which the Senate
consented. In sum, the President cannot, on his own authority,
change the ABM Treaty in so fundamental a manner, without
obtaining the Senate' advice and consent again.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Rivkin and material provided
subsequent to the hearing follows:]
Prepared Statement of David B. Rivkin, Jr., and Lee A. Casey
i. introduction
In May, 1998, my firm was asked by the Heritage Foundation to
consider the legal status of the 1972 Treaty on Limitation of Anti-
Ballistic Missile Systems (``ABM Treaty'') between the United States
and the Union of Soviet Socialist Republics (``U.S.S.R.'' or ``Soviet
Union''). Based upon our review of the text of the ABM Treaty, its
history, and the relevant international law and American constitutional
law sources, we concluded that the ABM Treaty no longer binds the
United States as a matter of international or domestic law.
This is because the Soviet Union disappeared in 1991, rendering
performance of the ABM Treaty as originally agreed impossible. Because
there is no state, or group of states--including the Russian
Federation--that can both be said to have continued the Soviet Union's
international legal personality (its sovereignty) and that also is
capable of implementing the totality of the U.S.S.R.'s obligations
under the ABM Treaty in accordance with that agreement's original
terms, that treaty was discharged as a matter of law in 1991 and the
United States is not now legally bound by it.
As a direct consequence, any new treaty regarding anti-ballistic
missile defenses between the United States and the former Soviet
Republics can be effected only through renewed negotiations and the
agreement of both the United States and one or more of these states.
Moreover, any such agreement would require the consent of the United
States Senate before it could be ratified by the President.
ii. background
The 1972 ABM Treaty limited severely the ability of the United
States and the U.S.S.R. to defend their respective territory through
deployment of an anti-ballistic missile system.\1\ However, the
U.S.S.R. collapsed in 1991. Its fifteen constituent ``republics''
became independent states, and all were recognized as such by the
United States.
---------------------------------------------------------------------------
\1\ Treaty on the Limitation of Anti-Ballistic Missile Systems, May
26, 1972, 23 U.S.T. 3435.
---------------------------------------------------------------------------
Nearly a decade later, the formal status of the Soviet Union's
bilateral treaties with the United States, including the ABM Treaty,
remains uncertain. The ``official'' stance of the United States is that
the matter remains under review.\2\
---------------------------------------------------------------------------
\2\ See U.S. Department of State, Treaties in Force: A List of
Treaties and Other International Agreements of the United States in
Force on January 1, 1998, 290 (1998) [hereinafter Treaties in Force]
(With respect to bilateral treaties with the ``Union of Soviet
Socialist Republics,'' and their possible applicability to the former
Soviet Republics, this official listing of United States treaties
explains that: ``The United States is reviewing the continued
applicability of the agreements listed below [including the ABM
Treaty].'').
---------------------------------------------------------------------------
In this regard, the Executive Branch has yet to announce a
consistent position regarding the ABM treaty. President Clinton has
both suggested that no single former Soviet Republic, including the
Russian Federation, could carry out the U.S.S.R.'s ABM Treaty
obligations, and that the ABM Treaty would nevertheless remain in force
between the United States and Russia if the Senate were to reject a
series of agreements, signed by Secretary of State Albright in
September, 1997 (``September Agreements''), identifying four former
Soviet Republics (Russia, Belarus, Ukraine and Kazakhstan) as ABM
Treaty parties.\3\ The President has promised to submit these
agreements to the Senate for its advice and consent, but has not yet
done so.
---------------------------------------------------------------------------
\3\ See Letter from William J. Clinton to Benjamin A. Gilman 3-4
(Nov. 21, 1997) [hereinafter Clinton/Gilman Letter]. In this letter to
the Chairman of the Foreign Affairs Committee of the House of
Representatives, the President wrote that ``[n]either a simple
recognition of Russia as the sole ABM successor (which would have
ignored several former Soviet states with significant ABM interests)
nor a simple recognition of all NIS states as full ABM successors would
have preserved fully the original substance and purpose of the Treaty
as approved by the Senate in 1972,'' and that if the Senate does not
consent to ratification of the September Agreements the ``ABM Treaty
itself would clearly remain in force.'' In a subsequent letter to
Chairman Gilman, the President stated that ``the United States and
Russia clearly are parties to the [ABM] Treaty.'' See Letter from
William J. Clinton to Benjamin A. Gilman (May 21, 1998).
---------------------------------------------------------------------------
iii. discussion
The question whether the ABM Treaty survived the Soviet Union's
fall is complex, and there is no single precedent or authority that
definitively resolves the issue. However, when the applicable rules of
international and American constitutional law are consulted, a
compelling argument emerges that the ABM Treaty no longer binds the
United States, and that the Senate's approval must be obtained before
that treaty, or a similar instrument, can bind the United States in the
future.
A. The Impact of the Soviet Union's Demise on the ABM Treaty
The ABM Treaty was a bilateral agreement between the United States
and the Soviet Union, and its key terms could be performed only by
those two states. Like any contract,\4\ a treaty's obligations are
discharged, as a matter of law, when a necessary party (whether an
individual or a ``legal'' person such as a corporation) to the contract
disappears, or is otherwise rendered incapable of performance.\5\ As
the Supreme Court has recognized, a bilateral treaty survives the
disappearance of a state-party only if there is a successor that
continues the state-party's international legal personality, its
``sovereignty,'' and in which ``the power to execute [the treaty]
remains unimpaired.'' \6\ Thus, the ABM Treaty could have survived the
Soviet Union's collapse only if there were one or more successor states
that continue the U.S.S.R.'s international legal personality and which
could execute the treaty in accordance with its original terms. No such
state or group of states exists.
---------------------------------------------------------------------------
\4\ It has long been recognized that treaties are a species of
contract between states. Head Money Cases, 112 U.S. 580, 598 (1884) (A
treaty is primarily a compact between independent nations, and depends
for the enforcement of its provisions on the honor and the interests of
the governments which are parties to it.); Z. & F. Assets Realization
Corp. v. Hull, 114 F.2d 464, 470 (D.C. Cir. 1940) (``A treaty is
primarily a compact between independent nations'').
\5\ See Restatement (Second) of Contracts Sec. 261, 262 & cmt. a
(1981).
\6\ Terlinden v. Ames, 184 U.S. 270, 283 (1902) (``Undoubtedly
treaties may be terminated by the absorption of Powers into other
Nationalities and the loss of separate existence, as in the case of
Hanover and Nassau, which became by conquest incorporated into the
Kingdom of Prussia in 1866. Cessation of independent existence rendered
the execution of treaties impossible. But where sovereignty in that
respect is not extinguished, and the power to execute remains
unimpaired, outstanding treaties cannot be regarded as avoided because
of impossibility of performance.'') (emphasis added).
---------------------------------------------------------------------------
In this regard, the ABM Treaty was based upon a number of
fundamental assumptions about its parties and their place in the world
order during the Cold War. The ABM Treaty's purpose was to ensure that
the whole territory of the United States and the Soviet Union would
remain open to attack by long-range offensive ballistic missiles.\7\
The premise here was that ensuring a calculated ``balance of terror''
between the two nuclear superpowers (the only states capable of
threatening each other with nuclear annihilation) would deter nuclear
war (the aptly named ``MAD'' or ``mutually assured destruction''
theory), enabling both states to control the pace of additional
offensive nuclear deployments. It was assumed that any attempt to build
a national anti-ballistic missile defense system would undermine the
delicate ``stability'' of that balance.
---------------------------------------------------------------------------
\7\ This is true with one exception. Under the ABM Treaty, as
amended, each party was entitled to one ABM site. See Protocol to the
Treaty on the Limitation of Anti-Ballistic Missile Systems, July 3,
1974, 27 U.S.T. 1645. The Soviet Union deployed this site around
Moscow, and the United States--for a time--deployed its site around
Grand Forks, N.D., to protect a nuclear missile field.
---------------------------------------------------------------------------
Moreover, the ABM Treaty had a critical geographical component.
Under the Treaty, both population centers and ICBM sites were to remain
unprotected, and the whole territory of each ABM Treaty partner was to
be free of ABM defenses (such as certain early warning radars), except
for the limited systems permitted under the ABM Treaty regime itself.
In this respect, a number of the key provisions of the ABM Treaty were
linked to the territory of both superpowers, and would have to be
rewritten if any party other than the Soviet Union were to undertake
its ABM obligations, and the United States was to preserve the benefits
of its original bargain. These include, among others,
Article I(b), in which the parties agreed ``not to deploy
ABM systems for a defense of the territory of its country and
not to provide a base for such a defense, and not to deploy ABM
systems for defense of an individual region.''
Article III(a), as amended by the 1974 Protocol, which
allowed the Soviet Union to deploy one ABM system, with no more
than one hundred launchers and one hundred interceptors, around
its national capital, and no more than six ABM radar complexes
within its territory as a whole.
Article VI(b), in which the parties agreed not to deploy
early warning radars except at locations ``along the periphery
of its national territory and oriented outward.'' \8\
---------------------------------------------------------------------------
\8\ This key provision was designed to prevent the Soviet Union
from creating a large-scale radar network that could serve as a base
for an ABM Treaty ``breakout.''
---------------------------------------------------------------------------
Article IX (as clarified by Agreed Interpretation G), in
which each party agreed not to ``transfer to other States, and
not to deploy outside its national territory, ABM systems or
their components limited by this Treaty.'' \9\
---------------------------------------------------------------------------
\9\ In addition, a number of other provisions also would have to be
rewritten, including Article XIII, which establishes a consultative
mechanism--the Standing Consultative Commission (``SCC'')--tasked with
helping the two original treaty parties deal with various treaty
related issues, and Article XIV, establishing treaty amendment
procedures that become far more burdensome if more than two parties are
involved.
None of these provisions can be implemented in accordance with their
original terms by one or more of the post-Soviet states. Only the
Soviet Union could do so. Because the Soviet Union is extinct, the ABM
Treaty is no longer in force.
B. The ABM Treaty and the Soviet Union's ``Successor States''
The President has suggested that, even if the Senate refuses to
consent to the September Agreements, the ABM Treaty would nevertheless
survive as an agreement between the United States and the Russian
Federation. This cannot be the case. Although the President has very
broad authority to conduct the Nation's foreign affairs, including the
authority to interpret and implement its treaty obligations, his power
must be exercised in accordance within the recognized boundaries of
domestic and international law, as that law is understood and applied
in the United States.\10\ When these rules are applied, it becomes
clear that the ABM Treaty cannot be said to have survived as an
agreement between the United States and Russia.
---------------------------------------------------------------------------
\10\ The President is not a legislator, Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579, 587 (1952) (``[i]n the framework of our
Constitution, the President's power to see that the laws are faithfully
executed refutes the idea that he is to be a lawmaker.'') and, even in
the foreign affairs area, the President must exercise his authority in
``subordination to the applicable provisions of the Constitution.''
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318-19
(1936). With respect to questions of state succession, his
determinations are entitled to deference only so long as they are based
upon the supporting law and facts. Ivancevic v. Artukovic, 211 F.2d
565, 573-74 (9th Cir. 1954) (``There is no exact formula by which it
can be determined that a change of a nation's fortunes amounts to a
continuance of the old or the beginning of a new nation, there can be
no better equipped vehicle for decision than the Chiefs of State of the
countries concerned. If their agreed decisions, when based upon
supporting facts, are not conclusive, they should at least weigh very
heavily.") (emphasis added).
---------------------------------------------------------------------------
Two competing rules traditionally have been advanced in resolving
questions of state treaty succession--the ``continuity'' model, under
which a new state is presumed automatically to be a party to all of the
treaties of its predecessor, and the ``clean-slate'' model, under which
a new state is bound by its predecessor's treaties only if: (1) the new
state agrees to be bound; and (2) the relevant treaty partner itself
agrees to, or acquiesces in, the new relationship.\11\
---------------------------------------------------------------------------
\11\ See Restatement (Third) of the Foreign Relations Law of the
United States Sec. 210(3) [hereinafter Restatement (Third)].
---------------------------------------------------------------------------
1. The ABM Treaty Under a Continuity Rule
The United States is said to favor the continuity analysis.\12\
However, the continuity rule, or rule of ``universal state
succession,'' has rarely been applied in practice--by the United States
or by others--because it would automatically bind a new state, and all
of its predecessor's treaty partners, to the old state's treaties
without alteration. When the Soviet Union dissolved, the State
Department actually claimed to adopt a ``presumptive'' continuity rule
to determine which of the U.S.S.R.'s bilateral treaties with the United
States remained in force.\13\ Under this rule, the State Department
proceeded to make an individual assessment of the Soviet Union's
treaties with the United States to determine which could be continued
in force as bilateral agreements between the United States and the
former Soviet Republics. This ``case-by-case'' approach was continued
by the Clinton Administration,\14\ and has still not been
completed.\15\
---------------------------------------------------------------------------
\12\ See e.g., Edwin D. Williamson & John E. Osborn, A U.S.
Perspective on Treaty Succession and Related Issues in the Wake of the
Breakup of the USSR and Yugoslavia, 33 Va. J. Int'l L. 261, 264-65
(1993); Hubert Beemelmans, State Succession in International Law:
Remarks on Recent Theory and State Practice, 15 B.U. Int'l L.J. 71, 97
n.97 (1997).
\13\ Williamson & Osborn, supra note 12, at 264-65.
\14\ See Clinton/Gilman Letter, supra note 3, at 1 (``The United
States took the view that, as a general principle, agreements between
the United States and the U.S.S.R. that were in force at the time of
the dissolution of the Soviet Union would be presumed to continue in
force as to the former Republics. It became clear, however,
particularly in the area of arms control, that a case-by-case review of
each agreement was necessary.'') (emphasis added).
\15\ See Treaties in Force, supra note 2, at 290. A similar
position has been adopted in practice by the former Soviet Republics.
For example, although the Russian Federation and ten other former
Soviet republics declared their willingness to be bound by the Soviet
Union's treaty commitments in the Alma Ata Declaration, the former
Soviet Republics have not been willing to accept application of the
universal succession approach. Russia, for example, has stated that it
will honor those treaties only to the extent that they do not conflict
with Russian law. Paul R. Williams, ``The Treaty Obligations of the
Successor States of the Former Soviet Union, Yugoslavia, and
Czechoslovakia: Do They Continue in Force?, 23 Denv. J. Int'l L. &
Pol'y 1, 36 (1994).
---------------------------------------------------------------------------
Nevertheless, when a continuity analysis, whether ``presumptive''
or actual, is applied to the ABM Treaty, it becomes clear that this
agreement did not survive the Soviet Union's demise. The ABM Treaty was
a bilateral agreement that was based upon a careful calculation by both
treaty partners of their competing interests and objectives during the
Cold War. It ordered one important facet of the relationship between
the United States and the Soviet Union during that period. Under a
continuity analysis, such treaties are considered to be political or
``personal'' (i.e., to a particular monarch or state) treaties, and
automatically expire at the sovereign's death or extinction.\16\ Thus,
``[t]here has been, at least since the late nineteenth century, almost
unanimous agreement that personal treaties of a totally extinguished
State expire with it because they are contracted with a view to some
immediate advantage, and their operation is conditional on the nice
adjustment of the political and economic relations which they
presuppose. When this adjustment is upset the rationale of the treaty
is destroyed.'' \17\
---------------------------------------------------------------------------
\16\ See E. de Vattel, The Law of Nations or the Principles of
Natural Law 178 (1758) (Carnegie Institution ed. 1916) (``Just as a
personal treaty expires at the death of the King, a real treaty comes
to an end if one of the allied Nations is destroyed; that is to say,
not only if the men composing it should all happen to perish, but even
if, for any cause whatever, the Nation should lose its character as an
independent political society.''). Only a small category of ``real'' or
``dispositive'' treaties, involving the grant of rights or obligations
intended to last in perpetuity, could survive a state's disappearance.
As Vattel explained:
[W]e must not confound those treaties or alliances which,
since they impose the obligation of repeated acts on both
sides, can not remain in force except through the continued
existence of the contracting powers, with those contracts
by which a right is once and for all acquired,
---------------------------------------------------------------------------
independently of any subsequent acts of either party.
Id. (emphasis added).
---------------------------------------------------------------------------
\17\ 2 D.P. O'Connell, State Succession in Municipal Law and
International Law 26-27 (1967).
---------------------------------------------------------------------------
Moreover, even assuming that the ABM Treaty were the type of treaty
that could survive the Soviet Union's dissolution, a continuity
analysis would not result in an ABM Treaty between the United States
and the Russian Federation. This is because the Russian Federation is
not a continuation of the Soviet Union's international legal
personality. It is, like the other former Soviet Republics, an entirely
new state.
Although ``Russia'' was at the heart of the Soviet Union, the
Russian State that controlled the Soviet Union was not Boris Yeltsin's
Russia. Rather, it was the successor of the Romanov empire, around
which the Russian colonial empire of the 18th and 19th centuries had
been built. In 1991, that empire collapsed, finally following the
example of the Spanish, British, and French empires before it. The
borderland territories in Europe and Asia, absorbed by the Russian
Empire in the 18th, 19th and 20th centuries regained, or established,
their independence.
At the same time, the metropolitan Russian state, around which this
colonial empire was built, also disintegrated. That state, which had
been created by the Muscovite tsars from the fifteenth through the
seventeenth centuries, included Great Russia (generally the territory
of the old Grand Duchy of Muscovy), White Russia (now Belarus, an area
largely absorbed into the Russian State from territory belonging to the
medieval Polish-Lithuanian kingdom), and Little Russia or the Ukraine
(now Ukraine) a territory joined to Muscovy in the 17th century which
itself could properly claim to be the cradle of Russian
civilization.\18\
---------------------------------------------------------------------------
\18\ See generally Janet Martin, Medieval Russia 980-1584 1-133
(1995); Nicholas V. Riasanovsky, A History of Russia 23-59 (4th ed.
1984).
---------------------------------------------------------------------------
Thus, when the Soviet Union collapsed, its metropolitan center also
fragmented. In this regard, to fully appreciate the scope of the
catastrophe that overtook the Russian State in 1991, it is necessary to
imagine that the British and French colonial empires had not merely
dissolved over the past fifty years, but that Britain and France also
had dissolved into their ancient kingdoms, principalities and
provinces, i.e., England, Scotland, and Wales, or Normandy, Brittany,
Anjou, and so forth. The Russian Federation cannot, therefore, be
considered to be merely a continuation of the Soviet Union's
international legal personality in the same manner that Britain or
France are clearly the same states that once also were the metropolitan
hubs of great empires.
Finally, under Terlinden's teaching, the ABM Treaty could have
survived between the United States and Russia only if the Russian
Federation was both a continuation of the Soviet Union's international
legal personality and was able to fulfil the Soviet Union's obligations
under the ABM Treaty as originally agreed. The Russian Federation
cannot fulfil these obligations.
As explained above, the geographical component was critical to the
ABM Treaty, at the very core of the bargain struck between the U.S. and
the U.S.S.R. Russia, however, no longer controls vast stretches of
former Soviet territory, and can no longer assure the United States
that its ICBMs and SCBMs would have access to the full area and all of
the population centers of the old Soviet Union. (Were the United States
bound, of course, both its territory and population centers would
continue to be entirely open to attack by Russian missiles.).
2. The ABM Treaty Under a ``Clean Slate'' Analysis
When the ABM Treaty is analyzed under a ``clean slate'' approach,
it also is clear that it did not survive the Soviet Union. Under a
``clean-slate'' rule, ``[w]hen a new state emerges it is not bound by
the treaties of the predecessor sovereign by virtue of a principle of
state succession . . . and in addition other parties to a treaty are
not bound to accept a new party as it were, by operation of law.'' \19\
This view has increasingly gained acceptance since the Second World War
and the dissolution of the European colonial empires, and was
identified as the general rule by the American Law Institute's
Restatement (Third) of the Foreign Relations Law of the United States
whenever ``part of a state becomes a new state.'' \20\ Under this
approach, a new state would not be presumed to be bound by its
predecessor's treaties. Only if the new state agrees to be bound, and
obtains the consent of its predecessor's one-time treaty partners, can
such treaty obligations be said to continue. Neither condition has been
meet with respect to the ABM Treaty.
---------------------------------------------------------------------------
\19\ Ian Brownlie, Principles of Public International Law 668 (4th
ed. 1990).
\20\ Restatement (Third), supra note 11, Sec. 210(3); see also
Brownlie, Principles of Public International Law, supra note 19, 668
(``The rule of non-transmissibility (forming part of general
international law) applies both to secession of `newly independent
states' (that is, to cases of decolonization) and to other appearances
of new states by the union or dissolution of states.'').
---------------------------------------------------------------------------
Although a number of the former Soviet republics, including the
Russian Federation, have suggested that they are willing to be bound by
the ABM Treaty, none have agreed to undertake the Soviet Union's
obligations without alteration or condition. Moreover, even if one or
more former Soviet Republics were to agree to accept these obligations,
they could not become ABM Treaty parties without the corresponding
consent of the United States. This consent has not been given--as noted
above, the Executive Branch's official statement in Treaties in Force
indicates that the matter remains under review--and could not, in any
case, be given without the consent of the Senate. To substitute one or
more of the former Soviet republics for the ``Soviet Union'' would so
fundamentally change the bargain approved by the Senate when it
consented to the ABM Treaty's ratification, that its consent would have
to be obtained again.
C. The President Must Obtain the Advice and Consent of the Senate
Before Reviving the ABM Treaty and Adding New Parties
The President has, of course, recognized that the United States
cannot obtain the same strategic benefits from the ABM Treaty, to which
it was entitled originally, if only the Russian Federation is an ABM
Treaty partner. In the September Agreements, the Administration would
add to the ABM Treaty regime at least four new parties: Russia,
Belarus, Ukraine, and Kazakhstan. This would transform the ABM Treaty
into a multilateral convention, and would itself constitute so
significant an alteration of the original treaty's terms and conditions
that the Senate's approval would have to be obtained.
As a President can make a treaty only with the Senate's consent, so
he can amend a treaty only with that same consent.\21\ The substitution
of four new parties in place of the original treaty partner is a change
so significant that it cannot be achieved through the process of
interpreting a treaty. As described above, the United States entered
the ABM Treaty on the understanding that it was dealing with a single
power, capable of implementing its obligations under the treaty. If the
ABM Treaty were multilateralized, the United States would become
dependent upon at least four separate states to implement the
obligations originally assumed and guaranteed by a single state--the
Soviet Union. This would not only require the United States to accept a
less advantageous bargain than was originally struck, but also would
impose upon it the additional burden of assuring the compliance of four
governments, instead of only one.\22\
---------------------------------------------------------------------------
\21\ Amiable Isabella, 19 U.S. (6 Wheat.) 1, 75 (1821) (``the
obligations of the treaty [may] not be changed or varied but by the
same formalities with which they were introduced; or at least by some
act of as high an import, and of as unequivocal an authority.''); N.Y
Chinese T.V. Programs v. U.E. Enterprise, 954 F.2d 847, 853-54 (2d Cir.
1992) (``A significant amendment to a treaty must follow the mandate of
the Treaty Clause, and therefore must be proposed by the President, and
ratified following the advice and consent of the Senate . . . [A]
treaty is `amended' only if the obligations imposed by that treaty
change.''); see also Treaties and Other International Agreements: The
Role of the United States Senate, S. Rep. No. 98-205 144-51 (1984)
(``Amendments to a treaty or international agreement require the same
procedure as the original agreement, unless otherwise specified in the
original agreement.''); Restatement (Third), supra note 11, Sec. 339
cmt. a (``The President's power to terminate an international agreement
does not imply authority to modify an agreement or to conclude a new
one in its place.'').
\22\ In addition, the multilateralization of the ABM Treaty would
significantly change the ability of the United States to obtain
amendments and revisions to the Treaty. Under the original agreement,
the United States was required to obtain the agreement of only one
treaty partner, the Soviet Union, to any modification of the agreement
it might wish to make. If the Treaty is transformed into a multilateral
agreement, the agreement of more than one, and potentially of all four,
treaties partners would have to be obtained before modifications could
be effected.
---------------------------------------------------------------------------
If the President attempted to transform the ABM Treaty into a
multilateral agreement without the Senate's consent, purporting to act
on his own authority in recognizing one or more Soviet successor states
as being bound by the ABM Treaty, he would be on the very thinnest of
constitutional ice. As explained by Justice Robert Jackson in his
defining concurrence in Youngstown Sheet & Tube Co. v. Sawyer,
``Presidential powers are not fixed but fluctuate, depending upon their
disjunction or conjunction with those of Congress.'' \23\ The
President's authority is at its ``maximum'' when he acts ``pursuant to
an express or implied authorization of Congress.'' \24\ By contrast,
``[w]hen the President takes measures incompatible with the expressed
or implied will of Congress, his power is at its lowest ebb.'' \25\
---------------------------------------------------------------------------
\23\ 343 U.S. 579, 635 (1952).
\24\ Id.
\25\ Id.
---------------------------------------------------------------------------
It has been the longstanding understanding and practice of both the
Executive Branch and the Senate that arms control agreements must have
the Senate's consent.\26\ Indeed, when Congress established the United
States Arms Control and Disarmament Agency it specifically provided
that agreements limiting ``the Armed Forces or armaments of the United
States in a militarily significant manner,'' had to be subject to the
Senate's advice and consent power, or be based upon ``affirmative
legislation by the Congress of the United States.'' \27\ Moreover, with
respect to the ABM Treaty itself, Congress has specifically stated that
the President may not enter an agreement that ``would substantively
modify the ABM Treaty unless the agreement is entered pursuant to the
treaty making power of the President under the Constitution.'' \28\
---------------------------------------------------------------------------
\26\ See S.Rep. No. 98-205, supra note 21, at 149-51.
\27\ 22 U.S.C. Sec. 2573 (as amended). The undisputed purpose of
this language was to make clear that ``any action obligating the United
States to disarm, reduce, or limit our Armed Forces or armaments, shall
have congressional approval either in the form of a treaty ratified by
the Senate or, in the case of an obligation other than a treaty, by a
majority vote of the House and Senate.'' H. Rep. No. 863, reprinted in
1963 U.S.C.C.A.N. 1110, 1115.
\28\ See Pub. L. No. 337, Sec. 232, 103d Cong., 2nd Sess., 108
Stat. 2700.
---------------------------------------------------------------------------
For his part, the President has agreed to this limitation. The
Senate imposed this condition in its Resolution of Ratification to the
Document Agreed Among the States Parties to the Treaty on Conventional
Armed Forces in Europe (CFE)--the so-called CFE ``Flank Document.''
Specifically, it required that, before ratifying this treaty, the
President ``shall certify to the Senate that he will submit for Senate
advice and consent to ratification any international agreement (i) that
would add one or more countries as state parties to the ABM Treaty, or
otherwise convert the ABM Treaty from a bilateral treaty to a
multilateral treaty; or (ii) that would change the geographic scope or
coverage of the ABM Treaty, or otherwise modify the meaning of the term
`national territory' as used in Article VI and Article IX of the ABM
Treaty.'' \29\ The Senate unanimously approved the Flank Amendment, and
President Clinton accepted this condition. Recognizing Russia, or any
other former Soviet Republic, as an ABM Treaty partner would violate
this condition, calling into question the continuing validity of the
CFE Flank Document.
---------------------------------------------------------------------------
\29\ Senate Report to Accompany Treaty Doc. No. 105-5, Flank
Document Agreement to the CFE Treaty, 105th Cong. 20-21 (1997).
---------------------------------------------------------------------------
Thus, overall, if the President determines to revise the ABM Treaty
by accepting the substitution of four former Soviet republics for the
Soviet Union as a party to that treaty, he must do so based upon his
own authority which, in these circumstances, will be ``at its lowest
ebb.'' Given the fact that allowing these states to step into the
Soviet Union's place in the ABM Treaty would fundamental alter the
bargain struck by the United States, and originally approved by the
Senate, it is hard to discern a plausible legal justification for such
action.
conclusion
When the Soviet Union dissolved in 1991, the ABM Treaty became
impossible to perform in accordance with its original provisions.
Because of the unique terms and conditions of the ABM Treaty, and the
underlying assumptions of the parties, none of the states that emerged
from the Soviet Union, either alone or with others, could carry out the
U.S.S.R.'s obligations under the ABM Treaty. Consequently, the
obligations of the United States under the Treaty were discharged at
the time the Soviet Union disappeared.
Although a number of the former Soviet republics have indicated
that they are prepared to undertake the U.S.S.R.'s role in the ABM
Treaty regime, this willingness is insufficient to bind the United
States. None of these states can claim to continue the Soviet Union's
international legal personality, and therefore to be the automatic
successor to its treaties in general, and to the ABM Treaty in
particular, under a ``continuity'' analysis. In fact, whether a
``continuity'' or ``clean slate'' analysis is applied to the Soviet
Union's dissolution, a case-by-case review of its treaties must be made
to determine which of those treaties may become binding upon both the
former Soviet republics and the Soviet Union's one-time treaty
partners. In this process, each of those partners must agree to accept
one or more of the former Soviet republics as its treaty partner, and
to be bound by the relevant agreements in accordance with that
acceptance.
In the United States, this renewed agreement to be bound can come
only by and with the advice and consent of the Senate. The substitution
of one or more former Soviet Republics for the Soviet Union would
fundamentally change the ABM Treaty's original bargain, to which the
Senate consented. The President cannot, on his own authority, change
the ABM Treaty in so fundamental a manner without obtaining the
Senate's advice and consent again.
______
Hunton & Williams
1900 K Street, NW,
Washington, DC, June 2, 1999
Hon. Jesse Helms,
Chairman, Committee on Foreign Relations,
U.S. Senate,
Dirksen Senate Office Building,
Washington, DC.
Dear Mr. Chairman: At the conclusion of the Committee's May 25th
hearing on the current legal status of the ABM Treaty, Senator Ashcroft
indicated that the hearing record would be left open so that additional
material may be supplied. We would like to add this letter, and the two
attached documents, to the record at this time. The first document is a
certification, issued by President Clinton on February 9, 1999, along
with its accompanying report, which has been transmitted to the House
and Senate Appropriations Committees. The second document is a
transcript of a statement made by the then-General Counsel of the Arms
Control and Disarmament Agency, Mary Elizabeth Hoinkes, on February 18,
1999, at a forum in Washington on the ABM Treaty sponsored by the
Center for National Security Law of the University of Virginia School
of Law.
The Senate Foreign Relations Committee may be left with the
impression from the May 25th hearing that the ABM Treaty is in force
today because the Executive Branch has consistently taken the position
that Russia is an ABM Treaty party. Not only is this incorrect as a
matter of law--the ABM treaty was automatically extinguished when the
Soviet Union dissolved in 1991--but the attached documents reveal that
it has, in fact, been the consistent practice of the United States,
since the collapse of the Soviet Union in 1991, to avoid recognizing
any of the former Soviet republics, including the Russian Federation,
as ABM Treaty parties until the formal conclusion of a succession
arrangement. The documents also reveal that, in the view of the United
States, there is no ABM Treaty relationship with any foreign state at
this time.
An assertion that Russia is an ABM Treaty party presupposes that
Russia's claim to ABM Treaty succession is qualitatively different from
those of other states also claiming succession rights. The attached
documents also make it clear that it has been the consistent practice
of the United States since 1991 to treat all such claims from the newly
independent states on an equal footing. The United States has not
viewed Russia's claim to ABM Treaty succession as one of separate or
special legal status, nor could it do so.
In fact, as the President himself recognized in his November 21,
1997, letter to Representative Benjamin Gilman, Chairman of the House
Foreign Affairs Committee, Russia could never be the sole ABM Treaty
successor to the Soviet Union. Not only is Russia not a continuation of
the Soviet Union's international legal personality, but, as the
President suggested, Russia alone is incapable of fulfilling the Soviet
Union's ABM Treaty obligations. However, even if there was a legitimate
claim that Russia, by itself, could fulfill the obligations of the
Soviet Union under the AMB Treaty, the attached documents make it clear
that such a claim would not be consistent with the diplomatic record.
The diplomatic record reveals that the United States has never
recognized Russia as party to the ABM Treaty, and this is fully
consistent with the ``official'' statements of the Executive Branch
contained in the Department of State's authoritative listing of United
States treaty obligations, Treaties-in-Force. This document indicates
that the status of the Soviet Union's bilateral treaties with the
United States, including the ABM Treaty, is under study, and does not
list the ABM Treaty as a Treaty between the United States and the
Russian Federation.
Finally, we would like briefly to respond to statements by
Professor Glennon at the close of the May 25th hearing, suggesting that
domestic ``contract'' law does not control the status of the ABM
Treaty. This is, of course, correct. However, as we pointed out in our
Memorandum of Law for the Heritage Foundation, treaties have long been
recognized as a form of contract between states, and the international
law rules governing the disappearance of a state party to a bilateral
treaty are, in all important respects, the same as those governing the
disappearance of a party to a contract under domestic law. Cf Terlinden
v. Ames, 184 U.S. 270 (1902). Under these rules, the ABM Treaty was
discharged by operation of law at the time the Soviet Union dissolved.
Today, neither the United States, nor any of the former Soviet
republics, are parties to, or bound by, the ABM Treaty. Under American
constitutional law, this treaty relationship can be restored only
through the ratification of a new treaty instrument, which can be
accomplished only by and with the advice and consent of the United
States Senate.
We thank you for the opportunity to appear before the Committee on
May 25th, and hope that you find these further materials appropriate
for inclusion in the record of that hearing.
Sincerely,
David B. Rivkin, Jr.
Lee A. Casey
Enclosures.
THE WHITE HOUSE
Office of the Press Secretary--For Immediate Release--February 10, 1999
text of a letter from the president to the chairmen of the senate and
house committees on appropriations
February 9, 1999
Dear Mr. Chairman:
In accordance with section 625 of the Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriations
Act, 1999 (as contained in the Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999, Public Law 105-277) (the
``Act''), I hereby certify and affirm that the United States Government
is not implementing the Memorandum of Understanding Relating to the
Treaty Between the United States of America and the Union of Soviet
Socialist Republics on the Limitation of Anti-Ballistic Missile Systems
of May 26, 1972 (the ``MOU''), entered into in New York on September
26, 1972.
Attached is a report to the Congress on the MOU submitted pursuant
to section 625 of the Act.
Sincerely,
William J. Clinton
2report to congress on the memorandum of understanding relating to the
treaty between the united states of america and the union of soviet
socialist republics on the limitation of anti-ballistic missile systems
of may 26, 1972
Authority
Section 625 of the Departments of Commerce, Justice, and State the
Judiciary, and Related Agencies Appropriations Act, 1999 (as contained
in the Omnibus Consolidated and Emergency Supplemental Appropriations
Act, 1999, P.L. 105-277) provides that:
Beginning 60 days from the date of enactment of this Act, none of
the funds appropriated or otherwise made available by this Act may be
made available for the participation by delegates of the United States
to the Standing Consultative Commission unless the President certifies
and so reports to the Committees on Appropriations that the United
States Government is not implementing the Memorandum of Understanding
Relating to the Treaty Between the United States of America and the
Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic
Missile Systems of May 26, 1972, entered into in New York on September
26, 1997, by the United States, Russia, Kazakhstan, Belarus, and
Ukraine, or until the Senate provides its advice and consent to the
Memorandum of Understanding.
Presidential Certification
The President certifies and affirms that the United States
Government is not implementing the Memorandum of Understanding Relating
to the Treaty Between the United States of America and the Union of
Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile
Systems of May 26, 1972, hereinafter referred to as the MOU.
The MOU will not be implemented until it enters into force. This
requires that all signatory states deposit instruments of ratification
or approval with the United States. Only after the Senate gives its
advice and consent will the United States deposit its own instrument of
ratification.
Background
In 1992, Belarus, Kazakhstan, Russia, and Ukraine (along with a
number of other former Soviet states) declared themselves to be
successor states to the USSR for purposes of the ABM Treaty and
declared their intention to comply with its provisions. Since then,
representatives of Belarus, Kazakhstan, Russia, and Ukraine have
participated with the United States in the deliberations and
negotiations in the Standing Consultative Commission (SCC). (The SCC
was established under the ABM Treaty for consultation on matters
affecting the object and purpose of the Treaty, and to promote
implementation of its objectives and provisions, and to maintain its
viability and effectiveness.) The purpose of these multilateral
discussions in the framework of the SCC was to ensure a full, common
understanding of the rights and obligations of the USSR under the
Treaty, and to record agreement as to the terms and conditions under
which the USSR Successor States would assume those rights and
obligations.
The outcome of these negotiations was the MOU that was signed in
New York on September 26, 1997, by the United States Secretary of State
and the Foreign Ministers of Belarus, Kazakhstan, Russia, and Ukraine.
The MOU provides for the recognition of the four latter states as USSR
Successor States for purposes of the ABM Treaty and establishes that
upon its entry into force the Parties to the ABM treaty shall be the
United States, Belarus, Kazakhstan, Russia, and Ukraine. The MOU
provides that its entry into force shall occur on the date when the
goverments of all the signatory states have deposited instruments of
ratification or approval with the United States. To date, none of the
signatory states has deposited such an instrument.
Along with the signing of the MOU on September 26, 1972,
representatives of the five states signed: the First and Second Agreed
Statements, which help clarify the difference between ABM (i.e.,
strategic) and theater ballistic missile defenses; an Agreement on
confidence-Building Measures (CBMA); and, new regulations that will
provide for effective operation of the SCC on a multilateral basis.
Entry into force of these agreements is linked to that of the MOU;
thus, none of them can enter into force unless and until the MOU enters
into force.
Meaning of Implementation
None of the activity to date, in the SCC or elsewhere, constitutes
``implementation'' of the MOU. Participation in the SCC for the purpose
of negotiating succession arrangements does not constitute
``implementation'' of those succession arrangements. Thus, none of the
provisions of the MOU, e.g., those establishing the meaning of
``national territory'' and prescribing use of the new SCC regulations,
has been implemented.
Both before and after the conclusion of the MOU, representatives of
Belarus, Kazakhstan, Russia, and Ukraine participated in sessions of
the SCC, because each has asserted a claim to succeed to the rights and
obligations of the former Soviet Union. That participation, in and of
itself, does not settle succession to the Treaty. We have made clear
over the years, with respect to such meetings, that a guiding principle
in our discussions in the SCC with these states has been that
participation does not prejudice the final outcome on succession.
Confirmation of succession, by entry into force of the MOU, still is
required. However, as a matter of policy, the United States accepted
the participation of these states in the SCC negotiations on the MOU
and demarcation agreements, as well as the required Treaty reviews,
because their participation was necessary to achieve stated policy
goals and was consistent with preserving the object and purpose of the
Treaty. It also accorded with the general foreign policy interests of
the United States.
However, from the outset, the United States made clear that the
succession and demarcation agreements could only be concluded and
brought into force simultaneously as a package, insisting that no
agreement should take effect prior to ratification and entry into force
of a succession agreement. The United States successfully negotiated
appropriate provisions ensuring that entry into force of the two Agreed
Statements, the CBMA, and the new SCC Regulations that would govern a
multilateralized body would only occur simultaneously with the entry
into force of the MOU. The United States also successfully resisted
proposals to provisionally apply the MOU and SCC Regulations before
formal approval by the signatory states, as well as any reference to
these states as ABM Treaty ``Parties'' in other SCC documents prior to
entry into force.
Presidential Communications with Congress
On May 14, 1997, the United States Senate adopted a resolution of
advice and consent to ratification on the Document Agreed Among the
States Parties to the Treaty on Conventional Armed Forces in Europe of
November 19, 1990 (the ``CFE Flank Document). In accordance with that
resolution, on May 14, 1997, the President certified that:
In connection with Condition (9), Senate Prerogatives on
Multilateralization of the ABM Treaty, I will submit to the
Senate for advice and consent to ratification any international
agreement (i) that would add one or more countries as States
Parties to the ABM Treaty, or otherwise convert the ABM Treaty
from a bilateral treaty to a multilateral treaty; or (ii) that
would change the geographic scope or coverage of the ABM
Treaty, or otherwise modify the meaning of the term ``national
territory'' as used in Article VI and Article IX of the ABM
Treaty.
The President has on several occasions reaffirmed his commitment to
submit the MOU to the Senate for its advice and consent to
ratification.
Recent Activities in the SCC
Pending entry into force of the MOU, Belarus, Kazakhstan, Russia,
and Ukraine continue to have equities in the ABM Treaty. For example,
they possess and operate mosy of the ABM Treaty-related facilities of
the former Soviet Union. Thus, while awaiting ratification of the MOU,
the United States has continued to include them in the ABM Treaty
discussions in the SCC. Similarly, the United States met with Belarus,
Kazakhstan, and Ukraine, as well as with Russia, on START I issues
prior to its ratification. To fulfill its obligations under the ABM
Treaty, the United States participated, along with Belarus, Kazakhstan,
Russia, and Ukraine, in the required two sections of the SCC in 1998
during which they completed work on details for providing information
and notifications in accordance with the CBMA. No data has been
provided, and none will be provided until the CBMA enters into force.
By their own provisions, neither the CBMA nor the MOU will enter into
force until both documents enter into force.
In addition, during the SCC session that ended on October 14, 1998,
the sides conducted the fifth periodic review of the ABM Treaty, as
required by Article XIV of the Treaty, and issued a ``Joint Statement
on the Fifth ABM Treaty Review.'' This communique referred to Belarus,
Kazakhstan, Russia, and Ukraine as the ``sides participating in the ABM
Treaty review'' and made no reference to those sides as constituting
Parties to the ABM Treaty. Moreover, it emphasized the importance of
the New York agreements signed on September 26, 1997, to the ABM Treaty
``upon their entry into force.''
Conclusion
The United States Government is not implementing the MOU. It
remains the policy of this Administration to submit the MOU and the
First and Second Agreed Statements--along with the START II Protocol--
to the Senate for its advice and consent to ratification, after the
Russian Duma approves the START II Treaty.
______
In response to the question ``wouldn't the validy of the CFE Flank
Agreement be called into question if Deputy Secretary Talbott
negotiated with the Russians alone as a state party to the ABM
Treaty?'' (referring to the fact that the Senate made submission of any
ABM succession agreement to the Senate for its approval a condition of
ratification of the CFE Flank agreement, and the President accepted the
condition by ratifying the Flank Agreement)
Hoinkes responded
I don't think we have to get to that problem. I read with great
interest the analyses of that issue in incoming letters from Committees
of the Senate. I think it [the status of the CFE Flank Agreement] is a
non-problem. We [the Administration] have said we are going to submit
any succession agreement (or as you've stated and as the condition
requires, any agreement that deals either with a change in the
territory covered by, or the parties to, the ABM Treaty) to the Senate,
for the advice and consent of the Senate, and we will do so. And we
will not have a treaty relationship with which to deal with others as
parties, party-to-party, until that issue is finally resolved. So if
this [the current] succession agreement does not fly, (and since we
have no formal state party relationship with any of the potential state
parties at this time) because we have promised to send any succession
agreement up [to the Senate], absent a succession agreement we do not
have a firm treaty relationship.
But you know that's not consistent with what the President is
saying. The President is saying that Russia is state__________that's
Russia
Hoinkes. We have, I think it's fair to say, a difference in the
interpretation that is possible to draw from the two separate letters
that have been sent, I think it's two, it may have been three . . .
Senator Ashcroft. I appreciate your willingness to push
through this, and I hope that you will accommodate me in my
effort to run to the Senate floor to cast a vote and then come
back, because, if I am not mistaken, we might have contrary
views expressed. And a good exchange would be, I think,
probably even better than what we have done so far.
So with your indulgence, I will recess this hearing until
10 minutes after 3. That gives me 12 minutes to make it over
and back. And I intend to be equally out of breath when I
reappear.
[Recess at 2:58 p.m.]
[Reconvened at 3:21 p.m.]
Senator Ashcroft. I am pleased to be able to reconvene this
hearing. There is an old military command, I think, that says,
``As you were.'' We were fortunate enough to get two votes out
of the way, and we should be relatively unimpeded for a while.
So I thank you for your patience.
As I recall, Mr. Rivkin, you had completed your----
Mr. Rivkin. Yes, I have.
Senator Ashcroft. If you unduly truncated them I would
welcome you to add----
Mr. Rivkin. Thank you, Mr. Chairman, but no, I am quite
done. In fact, I believe it would be nice to have an
opportunity to----
Senator Ashcroft. Yes, that is good. Good.
It is my understanding that Mr. Casey is also here as a
resource for questions afterwards. And so I am pleased now to
call upon Professor Glennon and ask him to present his
testimony at this time.
Professor Glennon.
STATEMENT OF PROFESSOR MICHAEL J. GLENNON, PROFESSOR AT LAW,
THE UNIVERSITY OF CALIFORNIA, DAVIS, CA
Professor Glennon. Thank you, Mr. Chairman. With your
permission, I will give you a quick summary of the testimony
and ask that it be entered in the record in its entirety.
Senator Ashcroft. Well, we would be very pleased to
accommodate any written statements you wish to make or that you
have already presented and make it a part of the record. And
the committee is grateful for your work. It is clear to me that
the endeavor of assembling these complex documents is not
without effort. And we are the beneficiaries of your efforts.
Thank you.
Professor Glennon. Well, Mr. Chairman, thank you for
inviting me to be present today. It is a privilege to appear
again before this committee. I have been asked to address two
issues, one, whether the ABM Treaty is currently in force, and
second, whether the ABM Treaty will continue in force, if the
Senate rejects the MOU on succession.
My answer to each of those questions is yes. The debate
thus far, Mr. Chairman, has focused on international law, and
specifically the issue of state succession, the concrete
question being whether, under principles of state succession,
Russia is a successor to the rights and duties of the Soviet
Union under the ABM Treaty. If it is, of course, the ABM Treaty
continues to exist.
With respect, Mr. Chairman, I would suggest that this is
the wrong question, at least at the outset. It is the wrong
question because the President has purported to answer this
question. The President has said that he regards Russia as a
successor state to the Soviet Union with respect to the ABM
Treaty and that the ABM Treaty is, therefore, in effect. The
question, therefore, at the outset is a constitutional
question, not an international law question.
The question is: Has the President acted within the scope
of his constitutional authority? My answer to that question is
that he has. The Constitution, as you know, divides the treaty
power between the President and the Senate. There has been much
debate over where that line is drawn in issues such as treaty
interpretation, treaty termination, and now identification of a
successor state to a treaty.
It is basic black letter constitutional law, Mr. Chairman,
that in situations such as this constitutional custom--practice
between the Congress and the executive branch--provides a gloss
on the constitutional text and is an appropriate source of
authority in resolving ambiguities in that text.
Turning, therefore, to practice, one finds that since
virtually day one, since the earliest days of the Republic, the
President--not the Congress, not the Senate--the President has
determined whether a given state is a successor state to a
treaty to which the United States is a party. I have been
unable to find any instance in which either the Congress or the
Senate sought to overturn the President's judgment on this
issue of state succession.
The principle again is clear, Mr. Chairman. When, over a
substantial period of time, the Congress acquiesces to a claim
of executive power, the President in the first instance, at
least, has the authority to exercise that power. And with
respect to state succession, I suggest to you again it has been
done probably hundreds of times without challenge from either
the Congress or the Senate since the beginning of the Republic.
Now I turn, therefore, to the posture of the Congress.
Under the applicable constitutional framework, the President's
powers are at his lowest when he acts in the face of
congressional objection. The President's powers are at his
highest when he acts pursuant to explicit or implicit
congressional authorization. And when the President acts in the
face of congressional silence, things are pretty much up in the
air, and the answer is a function not of abstract rules of law
but of, as Justice Jackson said, contemporary political
imponderables.
The question that we confront, therefore, is applying this
framework to the current facts. Has Congress approved,
disapproved or been silent with respect to the determination of
the President that Russia is a successor state to the ABM
Treaty and that the ABM Treaty is in force? The answer is, Mr.
Chairman, that clearly Congress and the Senate have concurred
in the President's judgment that Russia is a successor state
and that the ABM Treaty is therefore in force.
In 1994, as you know, Congress enacted a statute insisting
that any substantive modification of the ABM Treaty be
submitted to the Senate for its advice and consent. In 1997,
the Senate insisted in a condition to the CFE Flank Document
that any multilateralization of the ABM Treaty be submitted to
the Senate for its advice and consent.
The question obviously arises: Why would Congress, why
would the Senate, insist upon inclusion in the process of
modifying the ABM Treaty if either Congress or the Senate
believed that the ABM Treaty is not in effect? The reasonable
inference to be drawn, Mr. Chairman, both from the 1994 statute
and the 1997 condition added to the CFE Flank Document is not
that Congress is silent, surely not that Congress or the Senate
objects to the President's determination, but rather that
Congress and the Senate agree with the President that the ABM
Treaty is indeed in effect.
Now, let me turn briefly to questions of international law.
The issue arises whether there is a basis in international law
for the President's determination that the ABM Treaty is in
effect and that Russia is a party to it. And I would suggest to
you that there clearly is a basis for the President's
determination.
The law of states succession is a complicated and muddled
matter. It has been debated heatedly for many years, and there
are competing versions of most of the rules in question. The
most widely accepted formulation of the applicable principle of
state succession, Mr. Chairman, is the formulation given by the
American Law Institute in the Restatement Third on Foreign
Relations Law. That formulation is set out in section 210,
paragraph 3, of the Restatement (Third).
To summarize it briefly, it applies a simple test. It says
that the joint intent of the parties controls. The Restatement
says, in other words, if Russia and the United States both
believe that the treaty is in effect, if Russia and the United
States both believe that Russia is a party to the treaty, that
joint intent controls, the treaty exists, and Russia is a
party.
What has been the posture of the United States? Well, I
refer your attention, Mr. Chairman, to the January 29, 1992
joint press conference at which President Boris Yeltsin and
Secretary of State James Baker each addressed this issue. Here
are the words, Mr. Chairman, of President Boris Yeltsin, spoken
again only 1 month after the dissolution of the Soviet Union:
``Russia regards itself as the legal successor to the USSR in
the field of responsibility for fulfilling international
obligations. We confirm all obligations under bilateral and
multilateral agreement to the field of arms limitations and
disarmament, which were signed by the Soviet Union and are in
effect at present.''
Secretary of State James Baker, speaking obviously for the
Bush administration, said virtually the same thing. He said,
``I made the point to President Yeltsin that the United States
remains committed to the ABM Treaty. We expect the States of
the commonwealth to abide by all the international treaties and
obligations that were entered into by the former Soviet Union,
including the ABM Treaty.''
So given that the test applied by international law, Mr.
Chairman, is the joint intent of the parties; given that the
intent of the Bush administration--reiterated many times, as
you know, by the Clinton administration--given that the intent
of President Yeltsin, reiterated also many times, as you know,
by the Russian Government, is that Russia is a party to the ABM
Treaty--it is clear that under international law the ABM Treaty
is in force, Russia is a party to that treaty.
Now I do not want to get into the remaining international
law issues in any detail. It is argued, as you have heard, that
the treaty is void because of an impossibility of performance,
because of changed circumstances, because continuation of the
treaty in force violates domestic law. I would simply point out
to you that if you look at each of those doctrines in
international law closely, you will find that indeed a treaty
is not void if it meets the test of those doctrines, it is
voidable.
No entity within the United States, not the President, not
the Senate, not the Congress, has taken the affirmative step
necessary in international law to void the treaty. I repeat,
neither the Congress, nor the Senate, nor the President has
acted to make this treaty, if it is voidable, to be in fact
void in international law.
So my conclusion, Mr. Chairman, is, with respect to this
first issue, that the ABM Treaty is in force and that Russia is
a party.
Now the second question that you have asked me to address I
can address far more briefly--that is, whether the ABM Treaty
would cease to be in effect if the Senate were to take up and
reject the MOU on succession. The answer to this question is
that of course the treaty would continue in effect, if the MOU
on succession is rejected.
To put the constitutional doctrine succinctly, Mr.
Chairman, the rule is, you cannot repeal something with
nothing. You cannot, in effect, try to make legislative history
in connection with a statute that is never enacted or a treaty
that is never ratified and argue later that that legislative
history has effectively terminated an existing statute or
treaty.
And the suggestion that you can do that, with all due
respect is voodoo jurisprudence. It is clear under the Chadha
case that if you want to repeal a statute, you have to involve
the President in the process. The President has to be permitted
to exercise his veto or to sign the statute. And if he is
excluded from the process, what is done cannot have the force
and effect of law.
Similar principles apply with respect to treaties. To have
effect, a treaty has to be presented to the President,
obviously, and the President has got to deposit the instrument
of ratification. That is the only time that a treaty can have
the force and effect of law.
So in short, Mr. Chairman, there are ways that the Congress
and the Senate can end the ABM Treaty, if it wants to do that.
But rejecting the MOU on succession is not one of them.
I would be glad to answer your questions.
[The prepared statement of Professor Glennon follows:]
Prepared Statement of Professor Michael J. Glennon
Thank you for inviting me to be here today. You have asked me to
address two questions: whether the ABM Treaty is still in force, and,
if it is, whether that Treaty will remain in force if the Senate
rejects the ABM Memorandum of Understanding on Succession.
To each question, my answer is yes.
The initial and most important issue concerns the body of law by
which the matter is to be resolved. Two bodies of law address different
aspects of these questions: international law, and domestic
constitutional law. International legal principles address issues of
state succession--questions concerning the circumstances under which a
state succeeds to the treaty rights and obligations undertaken by
another, earlier state. Constitutional principles address the
allocation of decision-making power within the government of the United
States--questions concerning the power of the President to determine
the identity of a successor state and to decide whether treaty
relations exist with that state as ``law of the land.''
Constitutional principles, in turn, fall into two categories
plenary and concurrent. If the presidential power in question is
plenary, constitutionally it may be exercised exclusively by the
President, and neither the Congress nor the Senate may by law or treaty
overrule it. If the presidential power is concurrent, on the other
hand, it is shared with Congress or the Senate; if the President acts
first, his action controls, but often his initial policy can be
modified or countermanded. As I will explain, I believe that the
constitutional questions raised with respect to the status of the ABM
Treaty fall into this latter category, the realm in which power is
concurrent rather than plenary.
Most of the debate thus far has involved the application of
international law. The issue has been cast as a question of state
succession. The question that has been posed is whether one, or some,
or none, of the 15 states that occupy territory of the former Soviet
Union is a party to the ABM Treaty. If none of those states is a party,
obviously the ABM Treaty is no longer in force.
I believe that this is the wrong question, at least the wrong
question to be addressed at the outset. The reason is that the
Executive has already purported to answer the question whether Russia
is a party to the ABM Treaty. The answer given by the Executive is that
Russia is a party and that the ABM Treaty is therefore still in effect.
(This answer has been given, moreover, in the face of explicit
affirmation by both Congress and the Senate that the ARM Treaty is in
force, which I will discuss shortly.) Given the implicit claim of the
Executive that it has constitutional power to answer the question,
therefore, the threshold question before the Congress is not an
international law issue concerning state succession. Rather, the issue
is whether the President has constitutional power to determine in the
first instance whether there exists a successor state to a treaty.
I believe that he does, although I reject the argument that the
President has plenary power to act in this matter. Power is shared
between the President and Congress, and Congress can, in fact, have the
last word if it so desires. Absent a desire of Congress to express its
will, however, the President's determination would control, as it would
a fortiori if the Congress concurred in the President's determination.
To elaborate: Nothing in the constitutional text, case law, custom,
Framers' intent or institutional structure suggests that the President
is possessed of plenary constitutional power to determine whether a
given state is a successor state to a treaty with the United States.
There is no reason, in other words, to believe that the Executive
Branch has exclusive power to determine for the United States whether
there exists a successor state to a treaty. The Executive Branch has
contended that the power exercised here is an incident of the
President's exclusive recognition power. But that argument stretches
the recognition power beyond the traditional practice by which the
Executive has simply identified, and acknowledged the existence of, a
particular state or government for diplomatic purposes. In the face of
timely congressional objection, the President's determination would not
control.
In the face of congressional silence, however, the result would be
different. The legal status of the President's determination is a
function of the posture of the Congress. If Congress approves his
determination, the President's power will be at its highest. If
Congress disapproves, the President's power will be at its lowest. If
Congress says nothing, the matter will remain relegated to a ``zone of
twilight,'' a realm in which the answer derives less from abstract
rules of law than from the interplay of political forces. Then, if
there was a basis in international law for the President's
determination that Russia is a successor state to the ABM Treaty, that
determination would control, albeit only provisionally: Congress could
enact a contrary law, or, perhaps, the Senate could make a contrary
declaration in conditioning its consent to some other treaty.
This is the stage in the analysis at which international law
becomes pertinent. The issue is whether international law provides
support for the President's conclusion that Russia is a successor state
to the ABM Treaty. Clearly it does. The most widely accepted summary of
applicable international legal principles concerning state succession
is set out by the American Law Institute (ALI) in its Restatement
(Third) on the Foreign Relations Law of the United States. The ALI
drafted the Restatement with particular attention to the understanding
and practice of the United States in international law. The ALI
emphasizes that both treaty partners must agree to or acquiesce in the
new agreement. Section 210(3) of the Restatement provides as follows:
When part of a state becomes a new state, the new state does
not succeed to the international agreements to which the
predecessor state was party, unless expressly or by
implication, it accepts such agreements and the other party or
parties thereto agree or acquiesce.
The Restatement thus provides that a new state can be presumed to
be bound to a treaty of a predecessor state if two conditions have been
met: (1) the new state--in this case, Russia--must agree to be bound;
and (2) the relevant treaty partner--here, the United States--must
itself agree to, or acquiesee in, the new relationship.
Both conditions are met. Russia agreed to be bound by the ABM
Treaty. On December 8, 1991, Russia signed the initial charter of the
Commonwealth of Independent States--the so-called ``Minsk Accords''--
with Belarus and Ukraine, agreeing therein to ``discharge the
international obligations incumbent on them under treaties and
agreements entered into by the former Union of Soviet Socialist
Republics.'' On December 21, 1991, Russia signed the Alma Ata
Declaration, committing itself to ``the discharge of the international
obligations deriving from treaties and agreements concluded by the
former Union of the Soviet Socialist Republics.'' On January 13, 1992,
the Ministry of Foreign Affairs of the Russian Federation transmitted a
note to the U.S. State Department indicating that ``[t]he Russian
Federation continues to perform the rights and fulfill the obligations
following from the international agreements signed by the Union of the
Soviet Socialist Republics,'' and adding that ``the Ministry kindly
requests that the Russian Federation be considered as the Party in all
international treaties in force in place of the USSR.'' Two weeks
later, on January 29, 1992, Russian President Boris Yeltsin said the
following:
Russia regards itself as the legal successor to the USSR in
the field of responsibility for fulfilling international
obligations. We confirm all obligations under bilateral and
multilateral agreements to the field of arms limitations and
disarmament which were signed by the Soviet Union and are in
effect at present.
The Commonwealth States joined in the following declaration on October
9, 1992, again reaffirming the continuity of relations with the United
States under the ABM Treaty:
The member States of the Commonwealth of Independent States
as successor states of the USSR will fulfill the terms of the
Treaty Between the USSR and the USA on the Limitation of Anti-
Ballistic Missile Defense Systems of 26 May, 1972, as it
applies to their territories and in consideration of the
national interests of each will conclude, as necessary,
corresponding agreements among themselves for fulfilling the
obligations of the Treaty.
There is, therefore, no question that Russia considers itself a party
to the ABM Treaty.
The United States has, similarly, agreed to the relationship. Only
a month after the dissolution of the Soviet Union, the Bush
Administration explicitly affirmed that the United States regarded
Russia as a successor to the Soviet Union's rights and obligations
under the ABM Treaty. At a joint press conference on January 29, 1992,
following a meeting with President Yeltsin, Secretary of State James
Baker stated as follows:
I made the point to President Yeltsin that the United States
remains committed to the ABM Treaty. . . . [W]e expect the
states of the Commonwealth to abide by all of the international
treaties and obligations that were entered into by the former
Soviet Union, including the ABM Treaty.
The Legal Adviser to the State Department during the Bush
Administration, Edwin D. Williamson, reaffirmed the U.S. view that
Russia became a successor state to the Treaty. ``As an operating
principle,'' he has written, ``agreements between the United States and
the USSR that were in force at the time of the dissolution of the
Soviet Union have been presumed to continue in force with respect to
the former republics.'' The Clinton Administration has similarly viewed
the United States as a partner with Russia in the ABM Treaty. President
Clinton, in a November 21, 1997 letter to Rep. Benjamin A. Gilman, said
that the ``ABM Treaty itself would clearly remain in force'' even if
the Senate did not approve the ABM Memorandum of Understanding on
Succession. In a May 21, 1998 letter to Chairman Helms, the President
wrote that ``the United States and Russia clearly are parties to the
Treaty.'' He continued:
Each has reaffirmed its intention to be bound by the Treaty;
each has actively participated in every phase of the
implementation of the Treaty, including the work of the SCC;
and each has on its territory extensive ABM Treaty-related
assets.
The Executive continues to regard the Treaty as in force. On December
17, 1998 President Clinton wrote Senator Paul Coverdell that ``there is
no question that the ABM Treaty has continued in force following the
dissolution of the Soviet Union.'' Secretary of State Madeleine
Albright testified before the House International Relations Committee
on February 25, 1999 that ``we have maintained, along with many, many
Americans and many members of Congress. that the ABM Treaty is central
to our strategic posture. And we have supported the ABM Treaty, and
we'll continue to do so.'' National Security Adviser Samuel Berger said
the next day that ``We believe very deeply in the ABM Treaty. We
believe it is a stabilizing treaty between the United States and now,
Russia.''
Thus there simply is no question that both Russia and the United
States continue to regard the ABM Treaty as fully in force. Under
international law, as summarized by the American Law Institute's
Restatement, their joint intent suffices to establish Russia as a
successor state.\1\
---------------------------------------------------------------------------
\1\ This same conclusion obtains under other leading formulations
of state succession principles, although no such formulation has
commanded the widespread acceptance of the Restatement. The much-
criticized 1978 Vienna Convention on Succession of States in Respect of
Treaties, for example, has not been approved by the Senate. Article 34
of the Convention sets forth a version of the ``continuity rule,''
which is applicable when a part or parts of the territory of a State,
such as the USSR, separates to form one or more States, such as Russia.
It provides as follows:
When a part or parts of the territory of a State separate
to form one or more States . . . any treaty in force at the
date of the succession of States in respect of the entire
territory of the predecessor State continues in force in
---------------------------------------------------------------------------
respect of each successor State so formed. . . .
Under the Convention, however, a state is not bound if ``it appears
from the treaty or is otherwise established that the application of the
treaty in respect of the successor State would be incompatible with the
object and purpose of the treaty.'' Art. 34(2)(b). This exception would
not apply with respect to the ABM Treaty because Russia, as noted, has
rejected this notion. Like the Restatement, therefore, the Vienna
Convention would also provide a basis in international law for the
President's finding that Russia is a successor state to the rights and
obligations of the Soviet Union under the ABM Treaty.
It is worth noting that, under international law, official
statements such as these have legal consequences beyond and apart from
the operation of state succession principles. In holding the government
of France bound by certain statements of French officials (concerning
atmospheric tests of nuclear weapons), the International Court of
Justice said the following:
[France] was bound to assume that other States might take
note of these statements and rely on their being effective. The
validity of these statements and their legal consequences must
be considered within the general framework of the security of
international intercourse, and the confidence and trust which
are so essential in the relations among States. It is from the
actual substance of these statements, and from the
circumstances attending their making, that the legal
implications of the unilateral act must be deduced. The objects
of these statements are clear and they were addressed to the
international community as a whole, and the Court holds that
they constitute an undertaking possessing legal effect. Nuclear
Tests Case (Australia v. France), 1974 I.C.J. 253.
For the same reasons, it would appear that both the Russian and
American statements announcing continued adherence to the ABM Treaty
constitute binding undertakings in international law.
Several other arguments are made that, under international law, the
ABM Treaty is invalid. These arguments contend that, even if Russia was
at some point a party to the Treaty, the Treaty is now null and void.
It is argued, for example, that the President's failure to seek Senate
advice and consent for continuation of the ABM Treaty with Russia is
grounds for viewing the Treaty as void in international law. Another
argument is made that a fundamental change of circumstances has
rendered the Treaty void. Finally, it is contended that an
impossibility of performance has invalidated the Treaty.
It is not necessary to consider the substantive doctrines on which
these arguments rest. Even if their tests were met with respect to the
ABM Treaty, the Treaty would remain in force because each such doctrine
requires that that the state invoking a treaty's invalidity take an
affirmative step to terminate or withdraw from such a treaty. Under
widely accepted principles of international law, in other words, an
international agreement is voidable--not void, but voidable--if such
circumstances arise. No one, of course, has taken any step toward
voiding the Treaty. The President has not voided it. The Congress has
not voided it. The Senate has not voided it. To the contrary, as I will
discuss in a moment, the President, the Congress, and the Senate all
have proclaimed that the Treaty is in force. Under none of these
international law doctrines, therefore, can the Treaty be found to be
void.
To the contrary, the doctrine of international law that continues
to have overriding relevance with respect to the ABM Treaty is pacta
sunt servanda. This doctrine has been called the glue that holds the
international legal system together. Under this doctrine, every treaty
in force is binding upon the parties to it and must be performed in
good faith. The ABM Treaty, as a treaty in force, is thus binding upon
the United States and must be performed in good faith. That is the
unmistakable requirement of international law.
There is, accordingly, clearly a basis in international law for the
President's conclusion that the Treaty continues in force and that
Russia is a party. This returns us, therefore, to the constitutional
issue concerning the allocation of decision-making power. As I
indicated earlier, the power exercised by the President to identify a
successor treaty partner is properly regarded as concurrent. The
conclusion that that power is shared by the political branches derives
from the Constitution's text, and also from two centuries of custom
that has added a gloss to that text. The constitutional text gives both
the President and the Senate a role in the making of treaties. The
practice in the United States since the earliest days of the Republic
has been that the President acts initially to determine the identity of
the successor. In upholding the Iran claims settlement agreement in
Dames & Moore v. Regan, 453 U.S. 654 (1981). the U.S. Supreme Court
quoted Justice Frankfurter's observation in the Steel Seizure Case
concerning the effect of such practice. ``[A] systematic, unbroken,
executive practice, long pursued to the knowledge of the Congress and
never before questioned . . . may be treated as a gloss on `Executive
Power' vested in the President by sec. 1 of Art. II.'' 343 U.S. 579
(1952). This practice argues strongly that the President has concurrent
power to identify successor treaty partners.
There is, however, no custom here which would suggest that the
President necessarily prevails in the face of congressional or Senate
opposition. Presidential disputes over such matters with the Congress
or the Senate simply have been too rare to justify reliance upon custom
as a source of plenary presidential power. The most analogous issue is
perhaps treaty termination. When the issue of power to terminate
treaties arose in connection with the mutual security treaty with the
Republic of China, this Committee asserted--correctly, I believe--that
the Senate has the constitutional power to insist that it be included
in the termination process. It argued, in other words, that the power
to terminate treaties is concurrent, not plenary. By the same token,
the Congress, or the Senate, can constitutionally insist upon its
inclusion in the process of identifying a successor state or states to
a treaty.
This means that, in principle, Congress could constitutionally have
enacted a statute overturning the President's determination that Russia
has succeeded to the rights and obligations of the Soviet Union under
the ABM Treaty. The Senate could have conditioned its consent to the
ABM Treaty with a requirement that the Senate approve any presidential
identification of successor states to that Treaty. Had it done so, I
believe that the President would be bound by that condition.
But neither Congress nor the Senate has objected to the President's
determination. In fact, Congress and the Senate have not been silent
during this period. Congress and the Senate have concurred in the
President's judgment that the ABM Treaty remains in force. As you are
aware, in 1994 the Congress enacted section 232 of P.L. 103-337, which,
inter alia, provided in subsection (a) thereof that the United States
``shall not be bound by any international agreement entered into by the
President that would substantively modify the ABM Treaty unless the
agreement is entered pursuant to the treaty making power of the
President under the Constitution.'' Of course, it would have made no
sense to prohibit the President from modifying an agreement that did
not exist; the Congress must have believed the ABM Treaty to be in
effect in 1996, or there would have been no reason to seek to limit
presidential power to amend it. Similarly, in approving the Flank
Document Agreement to the CFE Treaty, the Senate again in 1997
concurred that the ABM Treaty was in full force and effect. It added a
condition to its resolution of ratification requiring that the
President
certify to the Senate that he will submit for Senate advice and
consent to ratification any international agreement:
i. that would add one or more countries as state parties to
the ABM Treaty, or otherwise convert the ABM Treaty from a
bilateral treaty to a multilateral treaty; or
ii. that would change the geographic scope or coverage of the
ABM Treaty, or otherwise modify the meaning of the term
``national security'' as used in Article VI and Article IX of
the ABM Treaty.
Again, the question arises: Why would the Senate seek to ensure its
inclusion in efforts to amend the ABM Treaty if it believed that the
Treaty was not in force? The reasonable inference to be drawn from both
such measures is not that Congress and the Senate disagree with the
President's judgment that the ABM Treaty remains in effect, or even
that they have remained silent on the issue, but rather that both agree
that the Treaty is indeed in force. ``When the President acts pursuant
to an express or implied authorization of Congress,'' Justice Jackson
wrote in his famous concurring opinion in the Steel Seizure Case, 343
U.S. 579 (1952), ``his authority is at its maximum, for it includes all
that he possesses in his own right plus all that Congress can delegate.
In these circumstances, and in these only, may he be said (for what it
may be worth) to personify the federal sovereignty.''
In concluding my discussion of this first question, whether the ABM
Treaty is still in force, I call the Committee's attention to the words
of then-Justice Rehnquist, speaking for the Supreme Court in Dames &
Moore v. Regan, 453 U.S. 654 (1981). As you know, the Court in that
case unanimously upheld the executive agreement entered into by
President Carter to settle conflicting claims with Iran. The Court said
the following, using words that seem directly applicable to this issue:
[We] cannot ignore the general tenor of Congress' legislation
in this area in trying to determine whether the President is
acting alone or at least with the acceptance of Congress.
[Congress] cannot anticipate and legislate with regard to every
possible action the President may find it necessary to take or
every possible situation in which he might act. Such failure of
Congress specifically to delegate authority does not,
``especially . . . in the areas of foreign policy and national
security,'' imply ``congressional disapproval'' of action taken
by the Executive. On the contrary, the enactment of legislation
closely related to the question of the President's authority in
a particular case which evinces legislative intent to accord
the President broad discretion may be considered to ``invite''
``measures on independent presidential responsibility.''
Youngstown (Jackson, J., concurring). At least this is so where
there is no contrary indication of legislative intent and when,
as here, there is a history of congressional acquiescence in
conduct of the sort engaged in by the President.
The second question that you have asked me to address is an easier
one. namely, whether the ABM Treaty will remain in force if the Senate
rejects the ABM Memorandum of Understanding on Succession. Clearly it
will. The ABM Treaty is now in force. Congress can cause the ABM Treaty
not to be in force by directing the President to terminate the Treaty.
Whether such presidential action would place the United States in
breach of the Treaty is a different and complicated question, which I
do not here address.\2\ Under INS v. Chadha, 462 U.S. 919 (1983),
however, Congress can do so only through the enactment of a measure
that is presented to the President for his signature or veto, i.e., a
joint resolution or bill. Neither Congress nor the Senate can terminate
a law, or (in its domestic effect) a treaty, by expressing
``legislative intent'' during the consideration of another measure,
such as the ABM Memorandum of Understanding on Succession, that is not
presented to the President. It is legally irrelevant whether the
adoption of the ABM Memorandum of Understanding on Succession is viewed
by some members of Congress as necessary for the continuation in force
of the ABM Treaty. Obviously, the President does not share that view,
or he would not regard the ABM Treaty as currently in force.
---------------------------------------------------------------------------
\2\ Three issues would arise. First, is termination consistent with
the provisions of Article XV of the Treaty? That Article permits each
party to withdraw ``if it decides that extraordinary events related to
the subject matter of this Treaty have jeopardized its supreme
interests.'' If this condition is met, the Treaty would not be breached
by U.S. withdrawal.
Second, if the condition set out in Article XV were not met, would
international law otherwise permit withdrawal? Under various
international legal doctrines, discussed earlier, a treaty is voidable
under specific circumstances. Whether such circumstances have actually
arisen is a question that would require careful analysis of the facts
as well as the particular doctrine in question.
Third, is transmittal of the notice of termination timely? The
Soviet Union dissolved on December 25, 1991--more than seven years ago.
During that period, the President, Congress, and the Senate failed to
object. Under the laches doctrine, undue delay in asserting a right or
claiming a privilege causes the right or privilege to be extinguished.
In international law, this principle goes by various names, including
extinctive prescription, acquiescence, and estoppel. Whatever the
label, analogous substantive principles clearly are part of customary
international law, as the International Court of Justice held in the
Temple of Preah Vihear Case in 1962. The Court there considered a claim
made by the government of Siam (now Thailand) concerning the location
of the border with Thailand. In rejecting the claim, the Court said the
following:
[Siam] has, for fifty years, enjoyed such benefits as the
Treaty of 1904 conferred on her . . . France. and through
her Cambodia, relied on Thailand's [conduct]. . . . It is
not now open to Thailand, while continuing to claim and
enjoy the benefits of the settlement, to deny that she was
---------------------------------------------------------------------------
ever a consenting party to it. 1962 I.C.J. 6.
These same principles counsel against viewing voidability options as
surviving ad infinitum in international law. At some point, states'
interest in stable and predictable treaty relations come to outweigh
their interest in complete procedural regularity in the making of
treaties. Seven years may be a reasonable period in which to expect the
United States to have objected.
The President's view is not, however, dispositive. If the Congress
wishes to have the last word, it can--even if the consequence is to
place the United States in violation of international law. Nothing in
the Constitution prohibits Congress from requiring that the President
act in a manner that would make the United States a law violator in the
international system. The Constitution requires simply that if Congress
wishes to express its will, it do so in the manner prescribed by
Article I, section 7 of the Constitution, the ``Presentment Clause.''
This, the Supreme Court has held, means that Congress must accord the
President the opportunity to participate in the process--by veto, if he
wishes--subject to the possibility of congressional override.
Similar principles apply to ending a treaty as law of the land
through use of the treaty power. A treaty in force, such as the ABM
Treaty, can of course be superceded domestically through ratification
of a second treaty that is inconsistent with the earlier treaty. If the
second treaty is not ratified, however, either because the Senate
declines to give its advice and consent or because the President
declines to deposit the instrument of ratification, nothing exists to
supercede the prior treaty. To reiterate, statements made during the
consideration of a measure that is never enacted or ratified cannot
have the effect of ending an earlier statute or treaty. Even if the
Senate were to adopt a resolution expressly purporting to govern the
interpretation of an existing treaty, the Supreme Court has told us,
that resolution would be without effect. Fourteen Diamond Rings v.
United States, 183 U.S. 176 (1901).
Accordingly, if Congress or the Senate wishes to end the ABM
Treaty, the way to do that is to enact a law or to approve a treaty
that explicitly or implicitly does so.
I conclude, therefore, that the ABM Treaty is in force and that the
Treaty will remain in force even if the Senate rejects the ABM
Memorandum of Understanding on Succession.
I would be happy to answer any questions.
Senator Ashcroft. There are a lot of questions. I just do
not know where to start.
Professor Glennon, what happened to the ABM Treaty when the
President decided that Russia was a succeeding party to the
treaty?
Professor Glennon. The treaty continued in force, Mr.
Chairman.
Senator Ashcroft. It continued. Did the President announce
that at the same time that there was an announcement that the
Soviet Union had ceased to exist, that it was extinct as
declared by all the parties?
Professor Glennon. Well, the Soviet Union was dismembered
on December 19, 1991. Secretary of State James Baker, the next
month, on January 29, 1992, announced that the ABM Treaty----
Senator Ashcroft. I was interested in that. First of all,
it was interesting to me that you say that the President has
the authority to do it, and then you rely on a statement by
James Baker. You said you are assuming that he was speaking for
the President, when he said so. And it may be that we could
assume that.
But if the principle exists that the USSR was extinguished
and extinct, is it your view that there is a limbo for treaties
that intervenes between the time of the extinction of a country
and then a time of revival, that it is sort of like the prince
coming and knocking the apple out of Snow White's mouth, and
the treaty springs back to life? If all the successor states to
the USSR declared the USSR extinct, what is the status of the
treaty? Is this purgatory, or what is the intermediate
standing?
What was it during that month after the USSR collapsed but
before Secretary Baker made that comment?
Professor Glennon. Well, clearly, if President Bush had
determined that he wished at that point to terminate American
participation in the ABM Treaty regime, he could have done
that. And had Secretary Baker announced that the United States
no longer considered itself bound by the ABM Treaty at that
point, this test of joint intent of the parties would not be
met. The ABM Treaty would indeed have terminated at that point.
Senator Ashcroft. The joint intent test is interesting to
me, because the intent to enter a treaty has to be both by the
President and the Congress. The intent of the American people
to enter into treaties always involves two branches of
government.
Why are we to assume that you can have intent expressed
only by one branch of government in this setting and not by two
branches of government as when you create a treaty?
Professor Glennon. Well, Mr. Chairman, as I indicated, in
1994 and in 1997 Congress and the Senate both expressed their
intent with respect to this issue. And they concurred with the
President that the ABM Treaty is in force.
Senator Ashcroft. Well, I think that is a very interesting
argument. And I can understand--I think it is worthy of being
made. I think it is also possible for Congress to say, look, if
there is a treaty, if you are going to act as if there is,
these are the conditions we want to demand. For Congress to
make such statements does not necessarily mean that the
Congress has acceded to the proposition that a treaty exists.
It looks to me as if there are other folks out here ready
to do what we had hoped might happen and have a discussion of
this. I do not know which of you wants to go first. I see both
of you indicating that you do. So we will go in the inverse
order that we went previously.
Mr. Rivkin.
Mr. Rivkin. Thank you very much, Mr. Chairman. And perhaps
we can separate the legal issue of whether or not the joint
intent test accurately describes the norms of constitutional
and international law from sort of a factual predicate. What I
would briefly like to address is a factual predicate, with all
due respect to my colleague, Professor Glennon.
I think the record of both the Russian behavior and
American behavior is not at all what it seems to be. No. 1, who
speaks for the state and how those expressions are made.
Statements by secretaries of state and presidents are
important, but their official actions, taken through official
channels, are truly dispositive.
The thing that puzzles me is Treaties in Force, the
official publication by the State Department, still lists the
Soviet Union as the entity. You in your own statement went
through numerous permutations of executive branch position. By
the way, to set the record straight, what was said by President
Bush and Secretary Baker is, ``We are going to look carefully
on a case-by-case basis, utilizing presumptive continuity model
at different arms control treaty.''
We had the President saying one thing--and again, in the
interest of time, I will--it is all in the record--the
President saying one thing in a letter to Congressman Gilman in
1997 and another thing in 1998. The thing that one sort of--the
last fact here, which is very interesting to me, as recently as
February 10 of this year, the President, in transferring the
certification to the House and Senate Appropriations Committee,
had a report to the President that says that there are no
treaties, no foreign states, that are ``parties to the
treaty.'' I mean that to me does not at all amount to this
clear certitude that Professor Glennon expressed.
Senator Ashcroft. Are you conceding that if there had been
a clear, unequivocal statement 1 month after the disintegration
and extinction of the Soviet Union, is it your view that that
would have somehow revived the treaty relationship?
Mr. Rivkin. No. Very briefly, no. This is a legal issue.
But one obvious limitation in the President's ability or
ability of both sides to reviving it by invoking the intent is
very simple.
If the resulting treaty is dramatically at variance with a
bargain that was originally entered into and approved by the
Senate exercising its advise and consent function, then clearly
the President can do that. And again, I would direct your
attention to all the debates that took place back in the
eighties.
Battlebroad vs. Narral, where a number of your colleagues
were expressing the view that a slight alteration in the
interpretation of three words in the treaty incites violence to
very esteemable, you know, prerogatives of the Senate, that it
was not the same bargain. Here we are talking about obvious
limitations on the President's ability to revive a treaty. If
you agreed originally to A, B and C, the way it is revived, it
is only A and B. That cuts you out of a process.
Senator Ashcroft. Professor Glennon, let me just read a
statement. ``Neither a simple recognition of Russia as the sole
ABM successor, which would have ignored several former Soviet
States with significant ABM interests, nor a simple recognition
of all CIS States as full ABM successors''--I believe that is
CIS. Maybe it is NIS States--``would have preserved fully the
original purpose and substance of the treaty as approved by the
Senate in 1972.''
That is a statement of the President of the United States.
Do you agree with him that neither of these simple recognitions
could have served the purposes of the treaty and therefore
would each alone have been an insufficient basis upon which to
continue the treaty?
Professor Glennon. Well, Mr. Chairman, I think that the
President's statement has to be taken in context. I am aware
that he did write that to a Member of Congress. He also,
however, on May 21, 1998, wrote to Chairman Helms of this
committee as follows, referring to the United States and
Russia, ``Each has reaffirmed its intention to be bound by the
treaty. Each has actively participated in every phase of the
implementation of the treaty, including the work of the SCC,
and each has on its territory extensive ABM Treaty-related
assets.''
He went on to write Senator Coverdell on December 17,
1998----
Senator Ashcroft. Now, in that respect he is just saying
what has happened. He did not say what the effect of it was.
Professor Glennon. Well, he says in the letter to Senator
Coverdell what the effect of it was. ``There is no question
that the ABM Treaty has continued in force following the
dissolution of the Soviet Union.''
So President Clinton takes precisely the same position that
President Bush took. There is no ambiguity in the executive's
position.
Senator Ashcroft. President Bush took a very ambiguous
position when he said he is going to look at these on a case-
by-case basis.
Professor Glennon. Well, evidently, Senator, Secretary of
State Baker, reviewing the ABM Treaty on a case-by-case basis,
came to the conclusion that it was still in force.
Senator Ashcroft. Well, I think that is so. I mean, he may
well have. I guess--how do you know? You are relying on
statements by people in the administration, whether that is a
Presidential statement that commits the Nation and provides the
agreement of the entire Nation, like it or not.
Professor Glennon. I would like to respond to that, if I
may, Senator.
Senator Ashcroft. Sure. I would like to have you do that.
Professor Glennon. There is in my testimony a case that I
cite on page five from the International Court of Justice that
addresses precisely that point. The case is the famous Nuclear
Tests Case between Australia and France decided in 1974. The
issue was very much the one that we have before us here today.
The French foreign ministry, officials of the foreign
ministry, made statements to the effect that France would no
longer detonate nuclear devices in the South Pacific. France
changed its mind and announced that it, contrary to what was
said, intended to recommence nuclear detonations in the South
Pacific.
New Zealand and Australia went to the International Court
of Justice and said, ``Hey, the French foreign minister and his
colleagues said they were not going to do this.'' The
International Court of Justice said, ``France is bound by those
statements. And Australia and New Zealand were right to rely
upon them.
I think probably that is the same principle applies----
Senator Ashcroft. Does that mean the Secretary of State
could bind us to treaties by just making pronouncements, and we
would be bound later in some international court, contrary to
the need of the Senate to ratify the treaty? It seems to me--I
wonder about the appropriateness of saying that since a court
in the international arena bound the French because their
officials made statements, whether that means that the U.S.
Senate no longer would have an appropriate role in fashioning
U.S. treaty commitments. That is a somewhat distressing
position, if that is your position.
Professor Glennon. Well, my position is that if there is
nothing in the Constitution and nothing in international law
that says that the Secretary of State is acting beyond the
scope of his authority in making the statement that he does,
that statement is binding.
Senator Ashcroft. Well, there is something in an obscure
part of the Constitution which has been disregarded suggests
that authority not explicitly given to officials in the
Constitution is not theirs. I mean, there are implied powers, I
am sure. But even states are reserved all the authority not
explicitly given. They were until the 10th amendment was so
eroded.
I do not find it very difficult to believe that
administrations would like to operate on the basis of the idea
that they have the capacity to extend treaties and to adjust
things and, frankly, to do so with good intentions and in the
national interest. But I find difficulty in the detail.
What happens in these intervals? Who has the authority? How
does it have to be expressed? Can it be expressed merely by a
Secretary of State, and at what time? When Congress expresses
reservations about the existence of a treaty, how can the
administration say that the treaty does not exist because
Congress talked about it?
What is the status of a treaty when both Congress and the
President have different views on its useability and
applicability to the United States?
Does the treaty responsibility require agreement on the
part of the Senate and the President? We get back to that
fundamental question.
So I am going to try and do this. I am going to try and
make sure you all have the last word. So I apologize for giving
as many myself. But, Mr. Feith, I believe it is, wanted to
speak earlier. And now I will call upon him.
Mr. Feith. Thank you, Mr. Chairman. It is true that the
meeting occurred between Boris Yeltsin and Secretary Baker and
that the Russian President expressed the willingness of Russia
to step into the shoes of the Soviet Union under the ABM
Treaty. And I do not disagree that the United States could, on
the basis of that statement, have entered into an agreement
with Russia that had the same essential terms as the ABM Treaty
and made the agreement with Russia, taking Yeltsin up on his
statement, ``I am happy to assume the rights and duties of the
Soviet Union under the ABM Treaty.''
There is nothing in international law or domestic law that
prevents the United States from making such an agreement with
Russia. But, under the U.S. constitutional principles, if we
are going to do that, it has to be submitted to the Senate for
advice and consent. So it is not that I disagree with the
thrust of Professor Glennon's point that we could have made
that agreement, but we have our Constitution that tells us what
the process is required for making that agreement.
And on the question of whether there have been hundreds of
cases where the President has exercised his recognition
authority, of course there have been hundreds of cases where
the President has exercised recognition authority. And nobody
disputes that the President has recognition authority under the
Constitution.
The essential point, though, is there is an international
legal doctrine that has existed, as we pointed out, for about
250 years and is essentially unchallenged, which provides that
treaties lapse, bilateral treaties lapse, when one of the two
parties becomes extinct.
And the fundamental question is: If a treaty has lapsed--
and I believe this is what you, Senator, were getting at--if
the treaty has lapsed, then it is not in purgatory or limbo or
in some state from which it can be revived. If it lapsed, it is
dead. Scholars have pointed out there is no resurrection in
international law.
If a new agreement is going to come into being----
Senator Ashcroft. Well, that is the fundamental point. I
think Professor Glennon says that it--he uses the terms that
are consistent with contractual law, that there is a difference
between a voidable agreement and a void agreement.
A voidable agreement is one that is in full force and
effect, but one of the parties has a right--and it could be
that both parties, perhaps, but I doubt if it is really a
contract, if both parties do. At least one of the parties has a
right to set the whole thing aside.
Now, is it your view that the doctrine of international law
provides that it is not voidable, that it is nonexistent upon
extinction?
Mr. Feith. Yes, that is precisely the point. And the
authorities are clear on that point. Professor Glennon was, I
believe, correct in citing a number of doctrines of
international law that permit governments to treat treaties as
voidable at their option. Those exist, and that is correct. It
is just not the doctrine of international law that we were
talking about.
The doctrine of international law that we have called
attention to and that goes back to Vattel and has been cited by
U.S. authorities and many other authorities throughout the
centuries does not create a voidable contract. It states that
the treaties lapse. They become void when one of the two
parties becomes extinct.
And it happens, and this is the essential point, it happens
by operation of law. In other words, the voiding of the treaty
does not await the affirmative decision, action, announcement
of the other party. So again, Professor Glennon is correct that
the U.S. Government has never announced that the ABM Treaty
lapsed.
Our point is that under this well-established doctrine of
international law, it does not have to do so, precisely because
this doctrine makes it clear that upon the extinction of one of
the parties, the treaty becomes void and is not merely
voidable.
Senator Ashcroft. I want to go back to Professor Glennon,
who wants to--have you finished?
Mr. Feith. I would like to, if I may, make one additional
point in answer to something that Professor Glennon, which is
this issue of congressional acquiescence, because he made a
major point of the significance of the several congressional
actions that suggest that Members of Congress believe that the
ABM Treaty is in effect, and therefore somehow that supports
the conclusion that the ABM Treaty is in effect.
It is established in U.S. constitutional law that there is
no principle of estoppel for Congress. And there is no ``gotcha
principle'' that if Members of Congress, even in legislation,
make a factual misstatement, that they are somehow bound by
even a factual misstatement. And it is not the case, I believe,
that anything that was said in any of the legislations cited by
Professor Glennon or any other legislation that we are aware of
regarding the ABM Treaty, even those statements that suggest
that Congress may have believed that the ABM Treaty may be
still in effect, none of that could be reasonably construed as
authorizing the President to bring such a treaty into effect,
if it had lapsed. And so it cannot be taken as consent to bring
a new treaty into effect.
Senator Ashcroft. I do not think Professor Glennon means to
say that if Congress for a long enough period of time acts like
there is a treaty, that a treaty that was nonexistent is
revived. I do not think that is his point. If he would ever
agree with you that a treaty did not exist--but he does make
this argument that somehow there is a treaty susceptible to
resuscitation.
I am going to go back to him now, because he is probably
tired of me putting his arguments in my words, which cast it
less favorably than he would choose to cast it.
Professor Glennon. Actually, I agree with a number of your
words, Mr. Chairman. Let me make four points, beginning with
your earlier question concerning the power of Congress to
declare that the treaty is extinct.
Clearly, Congress can, I think, enact a statute directing
the President to terminate the ABM Treaty. Clearly, the Senate
could have included itself in the termination process by adding
a condition to the resolution of ratification to the ABM Treaty
in 1972, when it approved the ABM Treaty. That is the debate
that we had when I was legal counsel to this committee in 1979
on termination of the treaty with the ROC, the Mutual Security
Treaty that was at issue in Goldwater against Carter.
And this committee accurately, I think, took the position
that if the Senate wanted to include itself in the termination
process, it can do that. But it has to say that. It had not
done that with respect to the ROC Treaty.
A very similar principle is at issue with respect to the
ABM Treaty. I think that if it had added a condition to the ABM
Treaty saying that, in the event an issue of state succession
arises at some point down the pike, we, the Senate, would like
to be included in the process of determining the identity of
the successor state is, the Senate could have done that. But it
did not. That is point one.
Second, it is not accurate to state that Boris Yeltsin, on
December 29, 1992, simply indicated the willingness of Russia
to be a successor to the Soviet's rights and obligations under
the ABM Treaty. He said, ``Russia regards itself as the legal
successor to the Soviet Union with respect to that treaty.''
Senator Ashcroft. How can he regard himself as a successor
to the obligations when some of the obligations require the
maintenance of conduct and the satisfaction of conditions
beyond the limits and boundaries of his territory?
Professor Glennon. Well, the question is, why should the
United States acquiesce in his assertion that Russia continues
to be a successor to the treaty? And my answer is, if Secretary
Baker and President Bush did not wish the United States to
continue as a party to the treaty under those circumstances, as
I said, they had every right under international and
constitutional law at that point to say the United States is
out of this treaty. They did not do that. They said the
opposite. And the Senate acquiesced in that.
Senator Ashcroft. Let me just ask this question, and see if
I can refine this just a minute, because I find this to be very
interesting. What if they had said nothing? What if we had had
silence for the last 8 years?
Professor Glennon. As a matter of international law or
constitutional law, Mr. Chairman?
Senator Ashcroft. Yes. I mean, I am asking these questions
in good faith. You may think I--when I get to reading the
questions the staff has prepared, that is when I am trying to
pin you down. I am just trying to get educated now.
Professor Glennon. The issue of silence arises in
connection with the question that was just posed concerning the
United States' ability to opt out of a treaty that was not sent
to the Senate for its advice and consent. And the question that
was posed is this: Suppose the Secretary of State goes abroad
and makes statements in an exchange of statements with a
foreign leader that clearly constitute a treaty, that
constitutionally ought to be submitted to the Senate for its
advice and consent.
Is that binding constitutionally? Is that binding in
international law? That is where the question of silence
becomes pertinent. And that is where the question of voidness
versus voidability becomes pertinent.
And let me read, Mr. Chairman, if I may----
Senator Ashcroft. Well, I really want you to have a chance
to fairly explain what you are talking about.
Professor Glennon. I appreciate that, and you have given me
that.
Senator Ashcroft. Please correct me, if I do not give you
that chance.
Professor Glennon. The applicable international law
doctrine is set out in article 46 of the Vienna Convention on
the Law of Treaties. It deals with precisely this hypothetical
that I just discussed. And it says, ``In these circumstances,
if a law of fundamental importance of a state is violated''--I
think the treaty clause is a law of fundamental importance--if
that violation is manifest, a ``state may not invoke the fact
that its consent to be bound was expressed in violation of that
principle of fundamental importance, unless the violation is
manifest.'' That is the principle of voidability. That is where
your question about silence is answered.
International law----
Senator Ashcroft. Well, is the United States a party to the
Vienna Convention? It is my understanding we are not a party to
that.
Professor Glennon. We are not, Mr. Chairman, but article
46, of course, is widely accepted as codifying preexisting
customary international law.
Senator Ashcroft. Go ahead.
Professor Glennon. And I would finally indicate, with
respect to the question concerning estoppel, of course the
Senate is not estopped, of course Congress is not estopped,
from saying today that it was wrong in 1994, that it was wrong
or it has changed its mind from 1997, and it no longer views
the United States as a party to the ABM Treaty.
My point in referring you to this piece of legislation and
the condition to the CFE Flank Document was simply to point out
that the President is acting consistent with congressional
concurrence--and that under Justice Jackson's steel seizure
analysis, his power is therefore at its highest. Congress can
always change its mind. It has not done that.
Senator Ashcroft. Mr. Rivkin, I think it is your turn, and
then it will be Mr. Feith's turn. And then I get a turn.
Mr. Rivkin. You are most gracious, Mr. Chairman.
In the interest of time, I will not go through a lengthy
recitation of facts. Suffice it to say that just as is the case
with our record, the Russian record is much more ambiguous than
Professor Glennon describes. And we go for a number of pages in
our legal memorandum looking at what the Soviet Union, post-
Soviet States stated in Alma Ata, and what they said in Minsk
and what they said in Bishkek.
Most importantly, the Russian record is much more ambiguous
than a simple recitation of a statement by President Yeltsin
would reveal. One thing I just wanted to focus on--and again,
there are many disagreements Professor Glennon and I may have
about how far a President's recognition power and power to deal
with state succession would stretch. But I would just pose a
very simple proposition, which we have not discussed yet.
I think it is manifestly clear that in circumstances not
involving state succession, just involving treaty
interpretation, the President cannot, under the guise of
interpretation, come up with a different treaty. And again, I
am basically reminding everybody how this issue was dealt with
during the debate over broad versus narrow of the ABM Treaty.
It is clear to me that even if the President is operating
in the context of recognizing a new successor state, he still
cannot come up, utilizing his recognition power, with a very
different treaty bargain. I would challenge anybody to look at
the totality of the bargain which President Nixon has entered
into in 1972 with advice and consent by the Senate, looking--
and again, in the interest of time, I would not go into
details--looking at articles 26, et cetera, et cetera, dealing
with the issue of radars, and explain how is it possible for
Russia to deliver, Mr. Chairman, the totality of the bargain
that the Senate had endorsed in 1972.
And clearly, the context of a Presidential action is
irrelevant, if what you are getting is not the treaty that you
agreed to. We bargained for an opportunity to strike at the
heart of the Soviet Union.
We bargained for the specific arrangements relating to
early warning radars. We bargained for many other things, none
of which can be fully delivered by Russia today. It is not the
same treaty. It may be a good treaty, but it is not the same
treaty.
And again, I would challenge anybody to explain to me how
the treaty with Russia is going to give the United States the
strategic benefits and the specific legal benefits the Senate
sought and agreed to acquiesce in 1972. Thank you.
Senator Ashcroft. Mr. Feith, I indicated that I would call
on you. And if you choose to yield to Mr. Miron----
Mr. Feith. Mr. Miron.
Senator Ashcroft. Miron. And pardon me for mispronouncing
your name earlier.
Mr. Miron. No problem. Mr. Chairman, I want to focus on one
point, perhaps because I am more of a common lawyer and less of
an international lawyer than the rest of my colleagues here.
And that is on the question of void versus voidable. And I want
to start with a treaty, that is the Vienna Convention on
Treaties. I think it is a misdescription of it to say that the
only way you get out of a treaty is by asserting that you have
the right to have it voided. That is the voidable category.
There are some clearly distinct and listed grounds for
asserting that a treaty should be avoided: fraud, undue
influence, just as though they were in any--they were in the
common law of Texas or Missouri or anywhere else. But nothing
in that treaty says that a treaty which does not exist has to
be denounced in accordance with that notice procedure for
voidability. It is not a treaty anymore.
To that extent, a void treaty is like a void contract, a
contract for the sale of a child. I mean, there are a lot of
examples in common law that nobody has to go into court to get
a declaration of voidness about, because it is void on its
face. And therefore, I think repairing to that treaty, which,
as you rightly point out, we are not a party in any event, does
not give us any aid in analyzing what happened to the ABM
Treaty in 1991.
And with respect to the point about whether the Vienna
Convention itself, even though the United States is not a
party, it is a treaty for principles which are widely accepted,
there is nothing in that treaty which in any way adopts a rule
that an extinct state can be resurrected in no way, shape or
form. There is nothing in the treaty that deals with that
subject at all.
And the only thing that deals with that subject in any
elaborate way are the several hundred years of scholarly works
and the positions of major United States executives in the
latter part of the 19th century. And all of them say that when
a treaty is extinct--I am sorry--when a State is extinct, its
treaties fall to the ground.
It is as simple as that. Nothing that anybody else can do
can revive it.
Thank you.
Senator Ashcroft. I think Professor Glennon wants to make
some more remarks.
Professsor Glennon. Thanks, Mr. Chairman. I will be brief.
First, I agree that if a treaty does not exist, action
cannot and need not be taken to void it. The ABM Treaty,
however, exists.
Second, with respect to the suggestion that the Vienna
Convention on the Law of Treaties is irrelevant to this
discussion, one, it is by its terms irrelevant to principles of
state succession. Two, however, a number of issues have been
raised which do not relate to principles of state succession.
The question of supervening impossibility of performance,
which was raised a moment ago, is, for example, dealt with in
article 61 to the treaty. The question of fundamental change of
circumstances, which is raised in the Heritage Foundation's
memorandum, is dealt with in article 62 to the treaty.
The question of invoking invalidity by virtue of a
violation of a rule of fundamental importance is dealt with in
article 46 of the treaty. And I would suggest that each of
those articles, as I indicated in response to your question,
codifies preexisting customary international law norms.
Senator Ashcroft. I have a series of questions I do want to
ask you, but I--when you keep saying it exists, I am fascinated
by that, because that is a very pragmatic sort of thing that
says we do not have to decide where it came from or whether it
existed at any particular time in the past, we will just say
that it exists now.
Is it your view that it has always existed since it was
ratified by the U.S. Senate in 1972 and that it persisted in
existence after the declared extinction of the Soviet Union and
prior to its subsequent attempted affirmation of the treaty?
Professor Glennon. Yes, sir.
Senator Ashcroft. So you just--when a state no longer
exists, there is some interval, you are saying, during which
the treaty persists absent the state, and that it is sort of
naked in its existence. There is no state which is a party. And
then later on, those who were in some ways associated with the
nonexistent state can at some time later come and reconstruct
the apparatus to which the treaty is appended.
Professor Glennon. Well, as an abstract question, Mr.
Chairman, that is----
Senator Ashcroft. Well, I do not want this to be abstract.
I tried to get this--we got this down to dates earlier. It was
about a month before the United States made its statement. I do
not know how long it was before the Russians made their
statement. I just think you have to answer that question
somehow. What happens? Is there a treaty that is sort of
floating without a party?
Professor Glennon. Well, as I was about to suggest, Mr.
Chairman, your question presupposes that there was no party. In
fact, there was a party. As soon as the Soviet Union ceased to
exist, Russia commenced. The Federation of Russian States
traces its existence to the instant that the Soviet Union
ceased to exist. So there was no floating season or treaty that
had to be held in abeyance during any period.
Senator Ashcroft. But it seems to me that the Russian
Federation preexisted the Soviet Union. So I think there are
all kinds of ways to talk about continuities there. But it is
pretty clear to me that the different parties to this agreement
have been negotiating what they wanted as a successorship, not
participating in the prior definition of the parties.
And when you have the idea in the MOU that the United
States of America, the Republic of Belarus, the Republic of
Kazakhstan, the Russian Federation and the Ukraine, upon entry
into force of this memorandum, shall constitute the parties to
the treaty, you redefine the membership of the treaty in a way
that previously was not defined.
I wonder why the United States and Russia are included as
members here, particularly Russia, if they were already
members. If this is not a new treaty, why--if these are just
accessions of Kazakhstan, Ukraine, Belarus, what already
exists, why would the U.S. and Russia be named in the MOU?
Professor Glennon. Mr. Chairman, I cannot answer that. But
I would simply suggest that it does not go to the question
whether the ABM Treaty exists, for all the reasons that I have
described.
Senator Ashcroft. Well, the MOU appears to be an
international agreement, signed by the Secretary of State. And
it states that the triggering event for Russian membership in
the ABM Treaty is the entry into force of the MOU. The
agreement provides no other mechanism to allow for Russian
accession to the treaty.
Do you think that the MOU has come into force? Is it your
view that the MOU is in force?
Professor Glennon. Well, my understanding is that it
cannot, as a matter of domestic law, come into force under
section 232 or condition 9 to the CFE Flank Document until it
receives the advice and consent of the Senate. So my answer
would be that it is not in force.
Senator Ashcroft. They negotiated the MOU expressing that
Russian membership was contingent on it. At least that is my
understanding. And now you say that it is not in force. Those
two points together indicate that if membership is contingent
upon something that is not in force, Russia is not a member.
Professor Glennon. Well, Mr. Chairman, I may need to be
educated on this, but my understanding is that the MOU has yet
to be submitted to the Senate for its advice and consent, and
that until it does receive the Senate's advice and consent and
is then ratified by the President, it by definition will not be
in force.
Senator Ashcroft. Well, that is exactly it. And it appears
that the administration, in making contingent upon the
ratification of MOU the membership of Russia in the ABM Treaty,
is taking an inconsistent position. And I want to know if you
embrace that inconsistent position or whether you disagree with
them.
Professor Glennon. I am sorry, Mr. Chairman. I think I did
not understand your question initially.
Senator Ashcroft. That is understandable.
Professor Glennon. No, and I apologize.
By including the term ``Russian Federation'' in article I
of the MOU on succession, I gather that the administration is
simply repeating the existing state of affairs and reiterating
the status quo in an effort to make as clear as possible in
article I of the MOU what the parties to this agreement are. It
would look a little strange if Russia, being a party to the ABM
Treaty, were not listed in article I to the MOU.
So I surely would not infer from this that the
administration does not regard Russia as a party to the ABM
Treaty until the MOU is ratified by the Senate. To the
contrary, I think this is intended probably simply to reflect
the status quo with respect to Russia.
Senator Ashcroft. The testimony mentions condition 9 of the
CFE Flank Agreement. Russia obviously does not comprise the
same territory as the Soviet Union. If today Russia were the
other party to the ABM Treaty, would this, in your view,
necessarily mean that there had been a change in the geographic
scope or coverage of the ABM Treaty?
Professor Glennon. Well, that is a difficult question,
because implicitly, Mr. Chairman, your question is whether
there are additional successor states, Belarus, Kazakhstan,
Ukraine, states that also have ABM assets, to the Soviet Union
under the ABM Treaty. And I must tell you I do not know the
answer to that. And I think that the administration also would
respond that it has taken no position with respect to that
issue.
Senator Ashcroft. Does it trouble you at all to think that
we might have a treaty and people cannot name who the parties
are?
Professor Glennon. Yes.
Senator Ashcroft. It is so troublesome to me that I might
think that it would be a good rule of law that any treaty to
which you cannot name the parties is not really a treaty.
Professor Glennon. Well----
Senator Ashcroft. The identity of the parties being so
fundamental to a treaty relationship, I am 32 years out of law
school, and am going back to simple contracts. It seems to me
that the parties to a contract are important, and for treaties
it would seem to be equally important. I had earlier tried to
focus in on this when I mentioned Russia alleging its capacity
to control extra territorial things.
Now that is not uncommon these days. NATO has converted
itself to something that is dealing with extra territorial
matters. It had once been a defense organization, and now it is
outside the limits of what it had been designed to defend.
I appreciate your candor in saying you do not know who the
members of this treaty are, and you do not know whether or not
Russia really has a responsibility under the treaty to fulfill
the terms of the treaty as it relates to territory outside of
its borders.
Professor Glennon. Well, Russia surely would not have such
a responsibility. The question is whether these other states
would. And I think that is the issue that is up in the air.
Senator Ashcroft. I would like to follow that up with you.
This is very interesting to me. Could it be possible that these
countries have such a responsibility without knowing it. Not
all these countries have embraced this responsibility. Could it
be possible that they are living with a responsibility under a
treaty which they do not understand or know that they are a
party, and that they have these responsibilities of which they
are unaware?
Professor Glennon. Well, Senator, the fact that I am not
aware whether they are parties to the treaty or, more
specifically, aware what their intent is with respect to this
issue does not imply that they themselves are unaware of their
own intent. They may believe that their intent has been
unequivocally expressed. And they may indeed be comporting
themselves in a manner fully consistent with the obligations
imposed by the ABM Treaty.
If I might just say, Mr. Chairman, on the broader question
that you raise, if I may say so, I think you are right to be
discomforted by this ambiguity. And it would be, it seems to
me, entirely understandable if the Senate, in view of this
ambiguity, said: Look, we do not want any longer to be a party
to a treaty the other parties to which cannot be identified and
which, on top of it, we view as a bad bargain.
If the Senate were to come to that conclusion, however, it
has to do something. It has to join with the House and enact a
statute and direct the President to terminate the treaty or act
through the operation of the treaty process to get out of the
ABM Treaty. And it has not done that.
Senator Ashcroft. Well, I find rather interesting your
concession that this would be a discomforting thing, and it is
hard to imagine a Senate that would want to be a party to a
treaty that you could not determine who the members were, and
you could not determine what the territory to be covered was,
and who had responsibility.
And yet what you are basically arguing, I think, is that
when we ratified this treaty in 1972, we implicitly provided
any administration that succeeded the ability to, with some
sort of constructive presumption, move us into that position.
Arguing that the United States is bound by a treaty to which
parties cannot be identified is a position that is very
disconcerting. No reasonable person would want to be party to a
treaty whose membership was not defined or defineable. But you
are willing to say that is the power that the Congress granted
to the President and to the administration in 1972 when it
entered into the ABM Treaty.
I find some real tension in that, because I think treaties
ought to be construed in a constitutional fashion. I cannot
look at the ABM Treaty and reasonably conclude that the
Congress in 1972 intended, either by the language or
interpretation therefrom, to authorize the President of the
United States, and any President thereafter, to change the
territorial definition of the treaty, to change the membership
of the treaty, and to do so without obtaining the advice and
consent of the Senate. I think it carries us right back to
ground zero in this debate.
We have gotten to the place where we all admit that we do
not know who the parties to the ABM Trteaty are. We all admit
that we do not know what territory the treaty covers. But some
of us are saying, well, that is alright, because the Congress
would have agreed, when it provided this ratification in 1972.
The other argument is no, it is not acceptable to amend a
treaty without abtaining the advice and consent of the Senate.
The Senate would not abdicate its responsibility in such a way.
We would not have done it then. We would not do it now. You do
not want to be party to a treaty that so directly affects world
security when you do not know who the members are, what the
territory is, what the responsibilities are.
There are ABM radar sites right now outside of Russia. If I
am not mistaken, it would be virtually impossible for Russia to
comply with this treaty as the sole other party.
So I think we find ourselves in a very troubling situation,
not knowing who the members are, not knowing what the territory
covered is, not knowing what the responsibilities are, and yet
persisting in saying this is what the Senate authorized in
1972.
Frankly, I have not always respected prior Senates. I have
sometimes thought that they have made mistakes. But I do not
think they made that big of a mistake in what they were doing
with regard to this treaty.
Now I have to give you another opportunity to speak because
I told you I would let you speak last. Yes, Mr. Casey.
Mr. Casey. Mr. Chairman, if I could make one point, you
mentioned earlier contract law. And in fact, contract law is a
very good place for us to be, because treaties are in fact
contracts. And if two parties contract and one party
disappears, that contract does not become merely voidable, it
is void. There is in fact no other party to whom you can give
notice of voidability.
I mean, if you hire me as your lawyer and the next day I
die, that contract is over. You do not need to send anybody
notice saying I no longer want a part of this contract. And
that is exactly what happened.
Senator Ashcroft. The question, though, is, if you hire a
lawyer and he dies the next day, how can you tell?
Mr. Casey. It would depend on the lawyer.
Senator Ashcroft. It is so hard to communicate with
lawyers. Never mind. Sorry.
Mr. Casey. This is true.
But the fact is that when a state disappears, there is no
need to send notice that you no longer consider yourself bound
by the treaties. Those treaties are discharged by operation of
law. The doctrines that Professor Glennon refers to do indeed
exist. There is a real question, though, how they are supposed
to operate when a state disappears.
And indeed, there have been instances when, for example,
during World War II, President Roosevelt's attorney general was
faced with the question of exactly that. Could we, using the
International Law Doctrine of rebus stantibus, which is the
doctrine that Professor Glennon is talking about, to declare a
particular convention void?
And the answer is, well, the countries who we were parties
to that treaty with are now occupied. They no longer have
independent international legal personality. There is no one to
send notice to. The treaty is, in fact, just void. There is
nothing more that needs to be done.
The only way that the ABM Treaty could still be in force is
if the Russian Federation constitutes a continuation of the
international legal personality of the Soviet Union. And it
does not. There is no way that you can--the President has broad
discretion in this area, but he cannot be arbitrary.
And the state that is Boris Yeltsin's Russia is not the
Russian State that formed the core of the Soviet Union, which
included at the very minimum Great Russia, the Ukraine, and
Bela-Russia. That state dissolved. It no longer exists.
And the treaties that that state was a party to, whether it
was under the name of the Russian empire or the Soviet Union,
dissolved along with it.
Senator Ashcroft. I think this follows up on that, and I
thank you, Mr. Casey. The President in May 1997 agreed to
submit to the Senate for advice and consent, and now I am
quoting, ``any international agreement that would add one or
more countries as states parties to the ABM Treaty or otherwise
convert the ABM Treaty from a bilateral treaty to a
multilateral treaty or that would change the geographic scope
or coverage of the ABM Treaty or otherwise modify the meaning
of the term national territory, as used in article 6 and
article 9 of the ABM Treaty.''
The President has not submitted agreement to the Senate. I
find it hard to believe that the administration can allege that
the treaty is still in force when the geographic scope has been
changed, the number of the parties has changed, but no
agreement recognizing these changes has been submitted to the
Senate.
Do any of you wish to comment on that?
Mr. Rivkin. If I may just add a brief point, Mr. Chairman.
Obviously in full accord with my good colleague, Mr. Casey, I
just wanted to perhaps emphasize a little bit more sharply one
proposition.
I have spent most of my professional career being a strong
opponent of Presidential powers. It is an ancient debate, as
you know, Mr. Chairman, which goes back to the Pacificus-
Helvedius debates. However, what I think is instructive here,
is that even the strongest possible proponent of Presidential
prerogatives cannot take the view that the President, in
exercising his permittable constitutional powers, can act
arbitrarily.
So the President has to be bound by the applicable
doctrines of international law. There may be instances where
the facts are sort of in a gray zone, and reasonable people can
disagree.
But I think few people would argue that the President, in
exercising admittedly a very formidable power of recognition,
can recognize the Holy Roman Empire. I believe very few people
can agree with the proposition that the President, in
exercising his formidable power to interpret treaties, which
Congress cannot easily second guess, can interpret the treaty
in a way that is manifestly absurd.
So I am not troubled by the need to reconcile the
President's constitutional prerogatives upon the rule of
reason. It may be difficult to challenge the President in doing
that. The case may not be judiciable. But again, to me, the
voidness and impossibility of performance very much, insofar as
they are part and parcel of, for example, the continuity
doctrine, should very much structure the President's conduct.
Again, the President cannot recognize the Holy Roman Empire
and say that this is reasonable conduct. It does not exist. And
the facts, I would argue, may strike you as a bit of an
exaggeration. But the facts are pretty similar to that here.
There may be other instances, where, depending on whether
you are a Presidentialist or somebody who believes Congress
possesses greater foreign affairs powers, would disagree, but
not in this instance.
Thank you.
Senator Ashcroft. Mr. Feith.
Mr. Feith. Mr. Chairman----
Senator Ashcroft. This is the last line, so whatever you
want to say, say it with some dispatch.
Mr. Feith. I think I have said virtually everything I
wanted to say. The one point I would like to make, picking up
on your last remark, is President Bush said this issue needs to
be studied. And it is a complex issue. And when the Soviet
Union broke up, it was quite a shock. And people said, ``We
need to think this thing through.''
And in the period when the administration was studying
these various treaties on a case-by-case basis, Congress a
number of actions that, as Professor Glennon said, reflected a
thought that maybe the ABM Treaty remains in force. I think it
is important to point out that they did that under
circumstances where the administration said, ``We do not know.
We are still studying the question.''
President Clinton came forward initially and said that the
issue of succession is unsettled and asserted that if the
Senate rejected the multilateralization MOU, the succession
issue would simply remain unsettled, President Clinton said.
And it was when the President was pressed by Members of
Congress on the proposition that you yourself have emphasized
this afternoon, which is they do not understand this idea of a
treaty that is the sound of one hand clapping, a treaty that
only has one party, a bilateral treaty whose other party has
died. And they do not understand the concept. How can that be?
And when President Clinton was pressed after initially
saying that the issue was unsettled, and then he was told, ``If
it is really unsettled, and you cannot identify another party,
then the treaty does not exist in the view of Congress,'' it
was only then that President Clinton came forward with a
position that was flatly inconsistent with his earlier
assertion that Russia alone could not be the successor, if the
treaty is to fulfill the object and purpose of the agreement,
as approved by the Senate.
And what has happened is the administration was put into a
corner logically. And when it found itself in a corner, it
simply asserted that Russia is the other party, and the treaty
remains in effect.
But nobody from the administration to this day has put
forward a public statement laying out a theory to justify how
they can argue that Russia, in the place of the Soviet Union,
is in the ABM Treaty.
There is nothing extant from the administration anywhere
explaining the theory that underlies the President's assertion
that Russia is the other party and that the treaty remains in
force.
And it is important to point out that when President
Yeltsin said, ``We consider ourselves the successor to the
Soviet Union for purposes of the ABM Treaty,'' at the very same
time, a few weeks before, Russia made it absolutely clear,
explicitly in the Minsk Declaration of December 1991, that
Russia does not consider itself the continuation of the Soviet
Union. And in the Minsk Declaration itself, there is a
statement in article 11, ``From the moment of signature of the
present agreement,'' which is the agreement to create the
Commonwealth of Independent States, ``application of the laws
of third states, including the former Union of Soviet Socialist
Republics, shall not be permitted in the territories of the
signatory states.'' Russia was one of the signatories. So
Russia itself referred to the Soviet Union as a third state.
And I think it is quite clear that the only logical way to
read Russia's willingness to consider itself a party to the ABM
Treaty was that it was an offer. It was an offer to the United
States: Let us make a new agreement based on the ABM Treaty.
That is the only reasonable interpretation. The
administration has every right to make such a new agreement.
But under the U.S. Constitution it can do so only if it comes
to you and your colleagues and gets the requisite two-thirds
approval in the advice and consent process.
Thank you.
Senator Ashcroft. Thank you, Mr. Feith and Mr. Miron,
Rivkin, Casey.
Professor Glennon, you are going to have basically the
opportunity to close. I would like to ask you in your closing
if you would answer this one question: The memorandum of
understanding on succession includes four states that the
administration has identified as critical parties to the
treaty, if the original purpose of the treaty is to be
fulfilled.
The administration contends that even if the Senate rejects
the MOU on succession, that the treaty will still be in force
and succession issues unresolved.
Now if the Senate rejects the MOU, which is really the only
conceivable succession arrangement for the ABM Treaty, will
that make a clear enough statement of Congress' will that the
ABM Treaty is no longer in force? Basically, if we reject the
MOU, would that be a clear statement of Congress? And would you
consider the treaty not to be in force? I think you may have
answered that before.
But would you please take another run at that and then
close? And then I have a paragraph.
Professor Glennon. Thanks, Mr. Chairman. Let me, while I
have a moment, thank you for your fairness in allowing me ample
time to respond to the many arguments made on the other side.
Senator Ashcroft. Well, the poor guys over there and me----
Professor Glennon. I do appreciate that.
I did address that question that you just put to me very
briefly in my opening statement. And my answer, once again, to
put it briefly, is you cannot repeal something with nothing.
And if the Senate rejects the MOU on state succession, there
would be no instrument in existence for there to be any
legislative history to.
Now, if the MOU or some other treaty were ratified, if that
treaty were inconsistent with the prior treaty, or if it said
that it was the intent to supersede that prior treaty, then the
prior treaty would, of course, give way to the extent that it
is or was inconsistent. But you cannot, again, without
ratifying a subsequent treaty, have the effect of supersession
that some Senators apparently would desire.
Now with respect to a number of these other arguments that
have been made, first, I would want to agree with the point
that has been made that there is, so far as I have seen, no
theory that the administration has put forth elaborating the
administration's position on supersession and the principles of
state succession.
There is, of course, an opinion of the Assistant Attorney
General Walter Dellinger that addresses a slice of those
issues. But by and large, the truth is it has been like trying
to pull nails to get positions on legal issues from this
administration. And this is an example of many legal issues
that have been fairly frustrating for the Senate to deal with.
Second, I think that with respect to this comment that the
President made concerning state succession issues being
unsettled, what the President was referring to was the same
issue that you were referring to a moment ago, and that is the
status of the ABM Treaty with respect to Belarus, Kazakhstan
and Ukraine.
Clearly, state succession issues are unsettled with respect
to those three states. That is the reason, as I understand it,
that the MOU is seen to be necessary by the administration.
I do not believe, however, that this administration or the
Bush administration has ever suggested that the status of the
ABM Treaty with respect to Russia is unsettled. Since the
earliest days, as I pointed out, the Bush administration took
the position that the ABM Treaty is in effect and that Russia
is a party.
Third, I surely agree that the President could not
arbitrarily recognize the Holy Roman Empire as a successor
state to the ABM Treaty. That is not this case. If the point is
that the President must act with some basis in international
law, as I pointed out, section 210, paragraph 3, of the
Restatement, as formulated by the American Law Institute,
provides all the basis that the President needs to argue that
he has acted consonant with international law. It is the joint
intent of Russia and the United States that Russia be regarded
as a successor state to the treaty.
Finally, with respect to Mr. Casey's discussion of
principles of contract law in addressing the issue of voidness
versus voidability, I would really respond to Mr. Casey with
all respect that this issue is not governed by American
contract law. It is governed by international law and
specifically principles of state succession. The two do not
always coincide.
Senator Ashcroft. Well, let me thank you. Let me thank all
of you. I really have enjoyed this. It is a very serious
matter. Whenever I enjoy a discussion, I sometimes wonder
whether I have taken it seriously enough. But I thank each of
you for the contributions you have made today. And I thank
Professor Glennon for his contribution he made to this
committee. He served this committee previously, and he served
it again today.
I think the debate on the legal status of the ABM Treaty is
long overdue. The American people need to be reminded that the
present administration is intentionally pursing a policy which
keeps the United States vulnerable to a ballistic missile
attack. In my view, there is no treaty binding us to follow
this course of vulnerability.
The fact that the administration has not declared this
treaty null and void is a striking example of the defeatist
policies which have kept our country defenseless for too long.
George Washington once said, ``If we desire to avoid insult, we
must be able to repel it.''
Why are North Korea and Iran pursuing advanced missile
technology at breakneck speed? These terrorist governments are
seeking the tools of aggression because they know that we are
not prepared to repel their attacks, either here or at places
that are important to our national strategic security
interests.
It is my hope that this hearing has made it clear that
there is no longer a treaty preventing the United States from
defending itself. As Franklin Roosevelt said in September 1941,
and I quote, ``Let us not ask ourselves whether the Americas
should begin to defend themselves after the first attack or the
fifth attack or the tenth attack or the twentieth attack. The
time for active defense is now.'' I could not agree more.
Having thanked you all there appears to be no further
business and the committee is adjourned.
The hearing record will remain open until June 2 at 5 p.m.
I invite any of you to supplement your remarks or to enlighten
us further, if thoughts come to mind that will help us make
better decisions or might even change a Senator's mind.
Thank you very much.
[Whereupon, at 4:48 p.m., the committee adjourned, to
reconvene at 10 a.m., May 26, 1999.]
Supplementary Remarks of Douglas J. Feith and George Miron--Senate
Foreign Relations Committee Hearing on The Legal Status of the ABM
Treaty
introduction
At a hearing of the Senate Foreign Relations Committee on May 25,
1999, Professor Michael Glennon of the University of California--Davis,
Law School, stated his opinion that ``the ABM Treaty'' is in force and
that the Russian Federation (``Russia'') and the United States are
parties. The Legal Status of the ABM Treaty, Testimony of Michael J.
Glennon before the Committee on Foreign Relations, United States
Senate, May 25, 1999 [``Glennon Testimony''] at 1. It is not clear from
his testimony whether he was referring to the ABM Treaty of 1972,
originally made by the United States and the USSR, or to a new treaty
between the Russia and the United States regarding ABM--i.e., anti-
ballistic missile--systems. Parts of his testimony suggest that the ABM
Treaty of 1972 remains in force and that Russia has simply succeeded to
the rights and obligations of the USSR thereunder. Other parts suggest
that Russia and the United States, as a result of statements made in
January 1 1992 by the Russian President and the U.S. Secretary of
State--statements in which the U.S. Congress supposedly acquiesced by
refraining from making a ``timely'' objection--entered into a new ABM
agreement, presumably with essentially the same terms as the ABM Treaty
of 1972.
If Professor Glennon were to argue that the ABM Treaty of 1972, as
such, remains in force, he would owe an explanation of how that two-
party Treaty survived the extinction of one of its parties, the USSR.
As our legal memorandum observes, for more than 200 years, legal
scholars and government officials have acknowledged the international
legal rule that bilateral treaties (other than ``dispositive''
agreements, which dispose permanently and irrevocably of rights to
specific territories) lapse automatically when one of the two parties
dissolves. See Douglas J. Feith and George Miron, Memorandum of Law:
Did the ABM Treaty of 1972 Remain in Force after the USSR Ceased to
Exist in December 1991, and Did It Become a Treaty Between the United
States and the Russian Federation 27-58 (May 21, 1999). The scholars
and officials who have done so come from many States, including the
United States, and include such eminent figures as Vattel, Halleck and
O'Connell. No scholar of note, no judicial opinion and no relevant U.S.
statute contradicts this venerable rule.
Professor Glennon does not address this rule at all in his
testimony. He neither acknowledges it nor denies it. He does not make a
case that it is inapplicable to the ABM Treaty of 1972. He does not
argue, for example, that that treaty is dispositive. Nor does he argue
that the USSR's international legal personality has survived.
Rather, he builds his case that Russia and the United States are
now parties to ``the ABM Treaty'' on the following points (page
references are to Glennon Testimony):
(i) The U.S. President ``has constitutional power to
determine in the first instance whether there exists a
successor state to a treaty.'' (Page 2)
(ii) International law supports the U.S. President's
``conclusion that Russia is a successor state to the ABM
Treaty.'' (Id.)
(iii) ``[A] new state can be presumed to be bound to a treaty
of a predecessor state'' if the new state (Russia) agrees to be
bound and if the other party (the United States) agrees to
``the new relationship.'' (Page 3) ``[B]oth treaty partners
must agree to or acquiesce in the new agreement.'' (Id.)
(iv) Russia agreed to be bound by the ABM Treaty of 1972--for
example, in its Foreign Ministry's January 13, 1992 note to the
U.S. State Department stating that ``the Ministry kindly
requests that the Russian Federation be considered as the Party
in all international treaties in force in place of the USSR.''
(Id.)
(v) The United States has agreed to that request, as
evidenced by Secretary of State James Baker's January 29, 1992
statements (at a joint press conference with Russian President
Boris Yeltsin) that ``the United States remains committed to
the ABM Treaty'' and that ``we expect the states of the
Commonwealth [of Independent States] to abide by all of the
international treaties and obligations that were entered into
by the former Soviet Union, including the ABM Treaty.'' (Page
4)
(vi) The ``joint intent'' of Russia and the United States
``suffices to establish Russia as a successor state'' to the
ABM Treaty of 1972. (Page 5)
(vii) The U.S. Congress ``could constitutionally have enacted
a statute overturning the President's determination that
Russia'' is the USSR's ABM Treaty successor. (Page 7)
(viii) There has been no ``timely congressional objection,''
(page 2) however, and, in fact, ``Congress and the Senate have
concurred in the President's judgment that the ABM Treaty
remains in force'' (page 7; emphasis in original), as evidenced
in a statute and a Senate treaty ratification resolution by
references that imply a belief that the ABM Treaty of 1972
remains in force.
Point (i) begs the key question raised in our testimony to the
Committee on May 25, 1999, which is not whether the President has
authority to determine the successor to a treaty, but whether the
Treaty lapsed by operation of law when the USSR dissolved in December
1991. If the Treaty lapsed, there can be no successor to that Treaty as
such, for there is no resurrection in international law, no bringing a
treaty back from the dead. The surviving party--the United States--can,
as Professor Glennon notes, agree to make a treaty along the same lines
as the lapsed Treaty with any State or set of States that arose on the
territory of the extinct USSR, but such an agreement would constitute a
new treaty, which under the U.S. Constitution could come into force
only if two-thirds of the Senate approved ratification.
Point (iii) implies that Professor Glennon recognizes that the
U.S.-Russian agreement on which he hinges his argument is a ``new
agreement'' for a ``new relationship'' and not a continuation of the
old U.S.-USSR treaty.
Point (v) is an especially dubious link in Professor Glennon's
chain of logic. The record, as elaborated upon below, does not support
the conclusion that Secretary Baker intended his press conference
comments to create a legally-binding commitment of the United States to
enter into an ABM Treaty with Russia.
As to point (viii), Professor Glennon offers no standard for
determining whether a ``congressional objection'' is timely. Also, he
ascribes more significance than is justified to the Congressionally
approved language that implies that the ABM Treaty, notwithstanding the
USSR's dissolution, remains in force. He asserts that such language
constitutes ``concurrence'' with the President's judgment. But in what
proposition exactly is the Congress supposed to have concurred? Nothing
in that language authorized the President to create new legally-binding
ABM-related obligations, if and where none now exist. There is no basis
in U.S. constitutional law for the notion that the Congress now is
somehow estopped from concluding that the ABM Treaty lapsed when the
USSR dissolved.
QUESTION: At a press conference in January 1992 with Boris Yeltsin,
did Secretary of State James Baker create a legally-binding agreement
between the United States and Russia on ABM systems?
A. Professor Michael Glennon's hypothesis as to how the United
States entered into a legally-binding agreement with the USSR on the
subject of ABM defense
Professor Michael Glennon testified that the ABM Treaty of 1972
became a legally-binding agreement between the United States and Russia
by the following process: (i) on or shortly before January 29, 1992
Russian President Yeltsin stated that Russia regarded itself as the
``legal successor'' to the USSR's bilateral treaties that were still in
effect, including arms limitations and disarmament; (ii) Secretary
Baker expressed the United States response to President Yeltsin as
follows:
I made the point to President Yeltsin that the United States
remains committed to the ABM Treaty . . . [W]e expect the
States of the commonwealth to abide by all of the international
treaties and obligations that were entered into by the former
Soviet Union, including the ABM Treaty.
Glennon Testimony at 4 (quoting Secretary of State James Baker);
(iii) according to Professor Glennon, in 1994 the Congress concurred in
Secretary Baker's statement, by way of Section 232(a) of Pub. L. No.
103-337, the National Defense Authorization Act for Fiscal Year 1995
(Note to 10 U.S.C.A. Sec. 2431) as follows:
The United States shall not be bound by any international
agreement entered into by the President that would
substantively modify the ABM treaty unless the agreement is
entered pursuant to the treaty making power of the President
under the Constitution.
Also, Professor Glennon says that the Senate in 1997 independently
manifested its concurrence by way of Condition 9 to the ratification
resolution for the CFE Flank Document. For Senate consideration of
ratification, see 143 Cong. Rec. S4451-01, 1997 WS 250192 (May 14,
1997). Condition 9 provides that:
The President shall certify to the Senate that he will submit
for Senate advice and consent to ratification any international
agreement:
(i) that would add one or more countries as state parties to
the ABM Treaty, or otherwise convert the ABM treaty from a
bilateral treaty to a multilateral treaty; or
(ii) that would change the geographic scope or coverage of
the ABM Treaty, or otherwise modify the meaning of the term
``national territory'' as used in Article VI and Article IX of
the ABM Treaty.
Finally, Professor Glennon contends as a general proposition that
the concurrence of the Congress may be inferred from its silence, i.e.
by its failing to make a ``timely objection'' to a President's
``determination'' that a treaty exists between the United States and
another State. Glennon Testimony at 2. Professor Glennon offers no rule
to determine Congressional timeliness, and in any event does not
contend that the time for Congressional objection to the making of an
ABM treaty with Russia had expired before the Congress in 1994
allegedly concurred by way of Section 232(a) of the National Defense
Authorization Act for FY 1995.
Under international law, as well as U.S. law, words of commitment,
accord or agreement do not create a legally-binding agreement unless
they were so intended. Otherwise, the words create only a political or
moral agreement. Hence, the validity of Professor Glennon's thesis that
Secretary Baker's words of commitment created a legally-binding
agreement with Russia depends on how Secretary Baker's words should be
interpreted. The discussion below shows that under accepted rules of
interpretation, Secretary Baker's words cannot reasonably be
interpreted as manifesting an intent to create a legally-binding
agreement. Hence, when Secretary Baker said that the United States
remains ``committed'' to ``the'' ABM Treaty, he was referring to a
political or moral commitment to work toward the making of an agreement
on ABM systems that would account for the fundamental changes resulting
from the USSR's dissolution and the emergence of fifteen successor
States on what had been the USSR's territory. Such a commitment
constituted what Professor Glennon has referred to in a law review
article in 1983 as a declaration of ``Nonbinding Adherence to a
Treaty.'' Michael J. Glennon, The Senate Role in Treaty Ratification,
77 Am. J. Int'l L. 257, 267 (1983). The State Department has referred
to such undertakings as ``intended to have political or moral weight,
but not intended to be legally binding agreements.'' United States
Department of State, Airgram to All U.S. Diplomatic Posts (Mar. 9,
1976), reprinted in I United States Foreign Relations Law 15 (Michael
J. Glennon and Thomas Franck eds., 1980).
B. Secretary Baker's Press Statement on January 29, 1992 cannot
reasonably be interpreted as accepting a Russian offer to have a
legally-binding agreement between the United States and Russia
1. The United States makes commitments to other States that
are not legally binding, though they may have moral or
political effect
The Case-Zablocki Act of 1972, now codified at 1 U.S.C. Sec. Sec.
112a, 112b, requires the Secretary of State to publish annually all the
``treaties'' and ``international agreements other than treaties'' to
which the United States became a party during that year. 1 U.S.C. Sec.
112a(a). The Secretary of State must transmit to the Congress every
treaty or other international agreement to which the United States has
become a party ``as soon as is practicable after such agreement has
entered into force with respect to the United States but in no event
later than sixty days thereafter.'' (There is a special provision for
secret transmissions where public disclosure would prejudice national
security. 1 U.S.C. Sec. 112b). There is no evidence that the State
Department ever transmitted the text of the Baker-Yeltsin exchange to
the Congress pursuant to the Case-Zablocki Act, though, since the
USSR's dissolution, the State Department has transmitted to the
Congress 135 treaties and other international agreements with Russia.
The non-publication of the Baker-Yeltsin exchange and the failure
to send the documents to the Congress suggest that the State Department
did not consider the Baker-Yeltsin exchange to be either a treaty
requiring Senate concurrence or otherwise an international agreement to
which the United States was a party. That is not surprising, in light
of the State Department regulations implementing the Case-Zablocki Act,
22 C.F.R. Part 181. According to 22 C.F.R. Sec. 181.2(a)(1), not every
undertaking is an international agreement:
The parties must intend their undertaking to be legally
binding, and not merely of political or personal effect.
Documents intended to have political or moral weight, but not
intended to be legally binding, are not international
agreements.
The distinction between legally-binding commitments on the one hand
and moral and political commitments on the other is understood by the
Congress. Senator Biden emphasized the distinction in his remarks on
consideration of NATO's ``Strategic Concept,'' in the context of the
National Defense Authorization for Fiscal Year 2000:
Mr. President, one of the things that we sometimes confuse
here--I know I do--is what is a political obligation and what
is a constitutional obligation. I respectfully suggest that
there is no constitutional requirement for the President of the
United States--this President or any future President--to
submit to the Senate for ratification, as if it were an
amendment to a treaty, a Strategic Concept that is a political
document. We use the words interchangeably on this floor. A new
commitment or obligation, as I said, does not a treaty make.
145 Cong. Rec. S5889-07, S5901 (daily ed. May 25, 1999) (statement of
Sen. Biden).
Also, Senator Biden stated that the distinction required in U.S.
law was also recognized in international law:
The rules under U.S. law on what constitutes a binding
international agreement are set forth in the Restatement of
Foreign Relations Law of the United States, as well as in the
State Department regulations implementing the Case-Zablocki
Act.
Under the Restatement, the key criterion as to whether an
international agreement is legally binding is if the parties
intend that it be legally binding and governed by international
law. Restatement, Sec. 301(1)).
Similarly, the State Department regulations state that ``the
parties must intend their understanding to be legally binding
and not merely of political or personal effect.'' (22 Code of
Federal Regulations Sec. 181.2(a)(1)).
Thus, many agreements that are not binding are essentially
political statements. There is a moral and political obligation
to comply in such cases, but not a legal one.
The most well-known example of such a political statement is
the Helsinki Final Act of 1975, negotiated under the Ford
administration and credited by most of us as the beginning of
the end of the Soviet Union, the most significant political act
that began to tear the Berlin Wall down . . .
Id. at S5902 (emphasis added). See also Michael J. Glennon, The Senate
Role in Treaty Ratification, 77 Am. J. Int'l L. 257, 267 n.72 (1983),
explaining that in Nuclear Tests Case (Australia v. France), 1974
I.C.J. Rep. 253, 472, the I.C.J. cautioned that a State's declaration
of intent to pursue a course of action does not bind the State legally
unless ``it is the intention of the state making the declaration that
it should become bound.''
2. Secretary of State James Baker did not intend to create a
legally-binding agreement
It is impossible to conclude from Secretary Baker's words, standing
alone, that he intended to create a legally-binding agreement.
Moreover, Secretary Baker's words do not stand alone. They appear in
the context of adjustment to the USSR's dissolution, and uncertainty
within the U.S. Executive Branch as to how to create an ABM regime that
would take account of the fact that four USSR successor-States
possessed on their territories substantial parts of what had been one
ABM defense system under the USSR's control.
Some of the dissolution-caused uncertainties to be faced were
these:
(i) Not only Russia, but each of fourteen other newly
independent States, could claim a right to deploy 100 launchers
of an ABM defense system around its capital.
(ii) Six of the twelve early warning radar systems permitted
to the USSR by the ABM Treaty were located outside the
territory of Russia, i.e., in Latvia, Belarus, Ukraine,
Azerbaijan and Kazakstan.
(iii) ICBM launch sites, equipped with nuclear-armed ICBMs,
were located in States other than Russia, i.e., in Belarus,
Ukraine, and Kazakstan.
(iv) Ukraine alone was the third largest nuclear-weapon State
in the world. Roman Papadiuk, Amereican-Ukrainian Nuclear
Relations 2(1996). Ukraine's nuclear arsenal included 176 ICBMs
with 1,240 nuclear-tipped warheads, and 3,000 tactical nuclear
weapons. Id. at 279.
(v) Both before and after Baker's January 29, 1992 conference
with Yeltsin, the U.S. Executive Branch was troubled by
Ukraine's and Kazakstan's possession and control of strategic
nuclear weapons and sought to have those weapons under the
control of Russia. By April 1992, ``it had become obvious that
this would not work, as Ukraine and Kazakstan, unable to work
out their differences with Russia at CIS summits, began to
insist on equal treatment with Russia.'' Roman Papadiuk,
American-Ukrainian Nuclear Relations 6 (1996). During the
period before May 1992, when Ukraine signed the Lisbon Protocol
to START I (a treaty that required, and received, 2/3 consent
of the U.S. Senate), Ukraine had ``balked'' when it came to
implementing its promises to give up control of, or dismantle,
its nuclear weapons. Id. at 7. After the signing of START I,
and before it was ratified, Ukraine's Prime Minister Leonid
Kuchma stated that Ukraine may have to retain its more modern
SS-24 missiles ``temporarily.'' Id. at 12. In March 1993, the
Executive Branch was ``deeply concerned'' that Ukraine was
developing its own launch capability. Id. at 26, 28. Russia
expressed its own concern on that score to the United States.
Id. at 30. The issue of right-to-control Ukraine's nuclear
weapons, as a practical matter, was not resolved until November
1994, when the Ukrainian parliament acceded to the Non-
Proliferation Treaty. Id. at 41-43.
(vi) The only ABM testing site in the USSR's territory was in
Kazakstan.
(vii) The distance between Moscow and the USSR's periphery
(on its west and southwest) was far greater than the distance
between Moscow and Russia's periphery (on its west and
southwest), a change that raised questions as to Russia's
capacity to protect a Moscow ABM defense area as compared to
the USSR's capacity to protect a Moscow ABM defense area.
(viii) By a separate Agreement on Joint Measures with Respect
to Nuclear Weapons at Alma Ata, on December 21, 1991, Russia,
Ukraine, Belarus and Kazakstan agreed to ``jointly develop a
policy on nuclear issues,'' Art. 3. Also, they agreed that
until nuclear weapons were eliminated from the territories of
Ukraine and Belarus, a decision to use those weapons would
require agreement of Belarus, Ukraine, Kazakstan and Russia
(the ``participating States.''). Art. 4. At the same time, no
participating State agreed to share with any other
participating State its decision as to whether to develop and
deploy an ABM defense system. By contrast, Secretary Baker
expected ``the States of the Commonwealth to abide by all of
the international treaties and obligations that were entered
into by the former Soviet Union, including the ABM treaty.''
Yet, the Commonwealth included seven states that were not
``participating States'' within the meaning of the Alma Ata
separate agreement on nuclear weapons. Hence, it was not clear
how much control Secretary Baker assumed the seven
nonparticipating States would have over the four participating
States as regards ABM defense matters.
As regards facts of that character, George Bunn and John B.
Rhinelander who, as U.S. officials, participated substantially in the
development of U.S. arms-control policies and treaties, and who
advocate the continuation of an ABM Treaty regime with the USSR
successor states, made these observations in 1993:
If each of the former Soviet republics--including all the
``states of the Commonwealth'' in Secretary Baker's words--
succeeded to all Soviet rights under the ABM treaty, each might
theoretically claim the right to build 100 launchers for an ABM
system around its capital. (There is already one around Moscow
equipped with short- and longer-range nuclear-armed ABM
missiles.) That would clearly be inconsistent with the purpose
of the ABM Treaty, as amended in 1974, to limit the ABM systems
to one small, regional system on each side. Unless the ABM
Treaty was formally amended, to permit each republic to have an
ABM system would change the basic bargain of the ABM Treaty as
much as permitting each to become a nuclear-weapon state would
change the NPT. Nevertheless, as in the case of each of the
other three arms control treaties discussed in this Article,
further negotiations between the United States and the
pertinent former republics will be necessary.
At the Commonwealth of Independent States summit in Bishkek
on October 9, 1992, ten of the Commonwealth members, including
Ukraine, stated that they ``will implement the terms'' of the
ABM Treaty ``as applied to their territories and in
consideration of the national security interests of each of
them.'' The simplest way of doing this might have been to treat
Russia as the primary successor to the Soviet Union and ask it
to work out whatever implementation steps are necessary with
other former republics concerning the ABM Treaty. This method,
however, did not work for the START I Treaty. . . . An
alternative that is suggested by the Bishkek resolution is the
method used for START I: a multilateral agreement between the
United States and all of the relevant former republics with
either treaty-limited facilities on their territories or with
the possibility of building defensive missile systems.
George Bunn & John B. Rhinelander, The Arms Control Obligations of the
Former Soviet Union, 33 Va. J. Int'l L. 323, 339-40 (1993) (footnotes
omitted) (emphasis added.).
Bunn and Rhinelander's observation predicted the course that the
U.S. Executive Branch has pursued, and that led to the publication of a
proposed multilateralization Memorandum of Understanding of September,
1997. That MOU is a proposed multilateral agreement among the United
States and all of the relevant successor States having ABM Treaty-
limited facilities on their territories.
What Bunn and Rhinelander spoke of in 1993 must have been known to
Secretary Baker and President Yeltsin in 1992: An ABM treaty with
Russia that did not place necessary restraints on Ukraine, Belarus, and
Kazakstan ``would change the basic bargain of the ABM Treaty.''
Secretary Baker therefore must have known at the time of his January
29, 1992 press conference that he was not, as a matter of law,
committing the United States to continue to abjure strategic missile
defense while Belarus, Kazakstan and Ukraine (which together had
massive ICBM-delivery capacity and substantial ABM early warning radars
on their western and southern peripheries) were legally free to develop
and deploy full ABM systems. And it is equally implausible that Yeltsin
understood Baker as committing the United States to such a one-sided
bargain.
Moreover, the words of Baker and Yeltsin do not have to be read to
reach such an absurd result. Baker must have known that, at that time,
his Department was studying the question of which U.S.-USSR treaties
(if any) legally survived the USSR's dissolution, and he surely knew
that his Department had not declared the ABM Treaty to be in effect
with any State other than the USSR. Indeed, the next issue of his
Department's official annual listing of treaties in force (on January
1, 1993) does not list an ABM Treaty as in force between the United
States and Russia. Moreover, with respect to the USSR, that listing
states that the ABM Treaty's status is ``under review'' in view of the
developments with respect to the USSR in 1991. United States Department
of State, Treaties in Force 252-53 (1993).
3. Secretary of State Baker's remarks can be read as a moral
or political commitment
Finally, Secretary Baker's remarks can be understood as a moral and
political commitment to make an ABM treaty that would take into account
the changes resulting from the USSR's dissolution and thereby fulfill
the object and purpose of the ABM Treaty of 1972. Such a reading not
only comports with the reality of changed circumstances, but adheres to
the rule that the words of an agreement should be construed in context
to avoid producing an absurd result. The rule for using context to
avoid absurdity applies to treaties and other international agreements
because the general rules of construction apply. See, e.g., Smith v.
Maryland, 10 U.S. (6 Cranch) 286, 294 (1810) (``No construction of a
treaty is to be admitted which leads to an absurdity . . . '') (citing
Vattel at 380-382). See also Chan v. Korean Air Lines, Ltd, 490 U.S.
122 (1989); Societe Nationale Industrielle Aerospatiale v. United
States District Court for the Southern District of Iowa, 482 U.S. 522,
533 (1987) (quoting Trans World Airlines, Inc. v. Franklin Mint Corp.
466 U.S. 243, 253 (1984)); Air France v. Saks, 470 U.S. 392, 397
(1985), quoted in Societe Nationale Industrielle Aerospatiale v. United
States District Court for the Southern District of Iowa, 482 U.S. 522,
533-34 (1987). In O'Connor v. United States, 479 U.S. 27, 31 (1986),
the Court rejected the reading of a treaty out of context where that
would lead to an ``utterly implausible'' result. See also Eastern
Airlines, Inc. v. Floyd, 499 U.S. 530, 534 (1991) (listing cases
standing for the proposition that ``when interpreting a treaty, we
`begin with the text of the treaty and the context in which the words
are used.' ''). See generally Jeffrey L. Dunoff & Joel P. Trachtman,
Economic Analysis of International Law, 24 Yale J. Int'l L. 1, 29
(1999); David J. Bederman, Revivalist Canons and Treaty Interpretation,
41 UCLA L. Rev. 953, 975-1015 (1994). An ABM treaty that did not place
under its control the ABM assets of Ukraine, Belarus, and Kazakstan
would have been absurd because, as Bunn and Rhinelander observed, it
``would change the basic bargain of the ABM Treaty.''
4. The Executive Branch's conduct after January, 1992 also
shows that Secretary Baker's words were not understood to have
created a legally-binding ABM Treaty with Russia.
Executive Branch conduct after January 29, 1992 includes the
following:
(i) Neither the President, the Department of Justice, nor the
State Department has ever claimed that Secretary Baker's
January 29, 1992 response to President Yeltsin created a
legally binding ABM agreement with Russia.
(ii) The purpose of Assistant Attorney General Walter
Dellinger's Memorandum to John Quinn, Counsel to President
Clinton of June 26, 1996, was to establish support for an
argument that the ABM treaty of 1972 survived the USSR's
dissolution. Yet, the Memorandum does not even mention the
Baker-Yeltsin exchange.
(iii) As recently as October, 1997, the Arms Control and
Disarmament Agency's Chief Negotiator on the MOU and START II,
claimed that the conclusions of those agreements in September
1997 preserved and enhanced the ``viability'' of the ABM Treaty
in three ways, the first of which was ``by settling the issue
of which states of the former Soviet Union are parties to the
ABM Treaty.'' Matt Murphy, ACDA: Threat Control Through Arms
Control, State Magazine (November/December 1997).
In any case, Secretary Baker should be imputed with knowledge of 22
U.S.C. Sec. 2573, Pub. L. No. 87-297, Sept. 26, 1961, amended in 1994;
by Pub. L. No. 103-236, Sec. 709, which provided in pertinent part as
follows:
The Director [of the Arms Control and Disarmament Agency] is
authorized and directed to prepare for the President, the
Secretary of State, and the heads of such other Government
agencies, as the President may determine, recommendations
concerning United States arms control and disarmament policy:
Provided, however, That no action shall be taken under this
chapter or any other law that will obligate the United States
to disarm or to reduce or to limit the Armed Forces or
armaments of the United States, except pursuant to the treaty
making power of the President under the Constitution or unless
authorized by further affirmative legislation by the Congress
of the United States. . . .
Thus, Secretary Baker knew that the President was statutorily
barred from obligating the United States, pursuant to any law, to
``limit'' the ``armaments'' of the United States, except pursuant to a
Senate-approved treaty or if authorized by ``further affirmative
legislation.'' Secretary Baker could not have reasonably read that
prohibition as containing a loophole whereby he could legally obligate
the United States if he did so in a manner that was not pursuant to a
law of the United States.
5. The United States is not required by international law to
denounce a lapsed treaty
Professor Glennon separately invokes the principle of international
law that if a party to a treaty in force wishes to terminate it or to
declare it invalid, that party must take an affirmative step toward
doing so. That is a correct statement of the rule, but the rule assumes
that a treaty is in effect. If no treaty is in effect, there is no
treaty to terminate or to declare invalid. When a State becomes
extinct, all of its bilateral treaties (other than dispositive ones)
lapse by operation of law, a principle that Professor Glennon does not
take into account. See Feith & Miron, supra, at 27-5 8; Hunton &
Williams, The Collapse of the Soviet Union and the End of the 1972
Anti-Ballistic Missile Treaty: A Memorandum of Law 4-10 (June 15, 1998)
(David B. Rivkin, Jr., Lee A. Casey, Darin R. Bartram, authors). Hence,
when the USSR became extinct, there was no ABM Treaty in effect with
the USSR. Indeed, Professor Glennon implicitly concedes that point
because he argues that only after Secretary Baker's press statement on
January 29, 1992, did a process begin for making the United States a
party to a legally-binding ABM agreement with Russia.
The difference between denouncing a treaty that is in effect and
taking as given that an extinct state's bilateral non-dispositive
treaties lapsed by operation of law is illustrated by the fact that the
drafters of the 1969 Convention on the Law of Treaties (which includes
provision for giving notification of intention to denounce treaties
that are in effect) intentionally avoided dealing with treaty relations
in the context of State succession. Article 72 provides:
The provisions of the present Convention shall not prejudge
any question that may arise in regard to a treaty from a
succession of States or from the international responsibility
of a State or from the outbreak of hostilities between States.
6. Article 34 of the 1978 Vienna Convention on Succession of
States in Respect of Treaties is not legally binding on the
United States
Professor Glennon also cites Article 34 of the 1978 Vienna
Convention on Succession of States in Respect of Treaties as support
for his thesis that the Baker-Yeltsin press conference of January 29,
1997 produced a legally-binding ABM agreement between the United States
and Russia. Glennon Testimony at 5 n.1. The 1978 Vienna Convention,
however, does not legally bind the United States because the United
States is not a party and because rules embodied in the 1978 Vienna
Convention have not passed into customary international law. See Feith
& Miron, supra, at 49-54.
7. The United States is not estopped to deny that it has a
legally-binding ABM Treaty with Russia
Citing Nuclear Tests Case (Australia v. France), 1974 I.C.J. 253,
Professor Glennon asserts that the United States is barred from denying
that a legally-binding ABM agreement between the United States and
Russia came into existence because, in Professor Glennon's opinion,
U.S. officials (Executive Branch and the Congress) had made public
statements that the ABM Treaty of 1972 was in effect between the United
States and Russia. Glennon Testimony at 5. Presumably, Professor
Glennon believes that Russia would argue that the United States was
estopped to deny that it made a legally-binding agreement with Russia.
But the law of promissory estoppel, like the law on agreements, does
not enforce a promise that the promissee knew or should have known was
absurd. See, e.g. Principal Mut. Life Ins. Co. v. Charter Barclay
Hosp., Inc., 81 F.3d 53, 57 (7th Cir. 1996); Wilsmann v. The Upjohn
Co., 865 F.2d 1269, 1989 WL 835 **4 (6th Cir. 1989) (unpublished
opinion) (promissory estoppel is not an available remedy if the alleged
obligation appears to be totally implausible). And, Russia knew or
should have known that it would have been absurd for Secretary Baker to
have promised that the United States would abjure a defense against
ICBMs irrespective of whether the three ICBM powers (Ukraine, Belarus
and Kazakstan) were legally bound as tightly as the United States and
Russia allegedly were bound to obligations of the character imposed by
the ABM Treaty of 1972. Moreover, Russia knew or should have known of
the practice of States of making commitments that are not legally
binding, though they may have moral or political effect. The
distinction between legally-binding agreements and agreements having
only political or moral effect is a recognized part of international
law. Malcolm N. Shaw, International Law 635-36 (4th ed. 1997); III
Encyclopedia of International Law 606-12 (1997); Marian Nash (Liech),
Contemporary Practice of the United States Relating to International
Law, 88 Am. J. Int'l L. 515-19 (1994); Oscar Schachter, Editorial
Comment, The Twilight Existence of Nonbinding International Agreements,
71 Am. J. Int'l L. 296 (1977). For example, Russia, as one of the
USSR's successors, must have known of the final Act of the Helsinki
Conference on Security and Cooperation in Europe, Aug. 1, 1975, 73
Dep't St. Bull. 323 (1975), which has been described as not intended to
create legal rights. Remarks of Senator Joseph Biden, 145 Cong. Rec.
S5902 (May 25, 1999); see also Robert F. Turner, International Law and
the ``Exit Tax'': Does Section 203 of the Tax Compliance Act of 1995
Violate the ``Right to Emigrate'' Recognized in the U.N. Covenant on
Civil and Political Rights and Other U.S. and International Legal
Instruments?, reprinted at 141 Cong. Rec. S5304-01, S5308 (Apr. 6,
1995). In short, Russia cannot make a case that it understood that the
United States, by means of Secretary Baker's oral comments, had legally
foregone its right to develop a defense against ICBMs.
8. The Nuclear Test Case decision of the International Court
of Justice does not support a conclusion that Secretary Baker
intended to make a legally-binding ABM treaty with Russia
As noted, Professor Glennon invokes the Nuclear Test Case
(Australia v. France), 1974 I.C.J. 253 in support of his estoppel
argument. That case, however, does not depart from, indeed, does not
address, the rule that words should be interpreted so as to avoid (to
the extent possible) an absurd construction. The case turned on an
interpretation of statements by the government of France that it
intended to end atmospheric nuclear testing in the Pacific after the
summer of 1974. France did not appear in the proceedings. After
Australia filed its claim, France announced several times that it did
not intend to conduct atmospheric nuclear tests after 1974. France's
announcement included a proviso, i.e., ``Thus, atmospheric tests which
are soon to be carried out will, in the normal course of events, be the
last of this type.'' 1974 I.C.J. at 266 (emphasis added). Australia
tried to convince the Court that France's announcements were inadequate
because a proviso therein left France free to resume testing.
Therefore, Australia argued, France's announced intention to end
testing was not by itself legally binding. Id. at 268-69. The Court
disagreed. ``The Court finds that the unilateral undertaking resulting
from [France's] statements cannot be interpreted as having been made in
implicit reliance of an arbitrary power of reconsideration.'' Id. at
270. Thus, the Court ruled that France's announcement gave Australia
all the relief it sought in Court, i.e., an unambiguous promise to end
the testing, and Australia's claim therefore need not be given further
consideration. Id. at 272. In short, the Nuclear Tests Case involved an
interpretation of a particular State's announcement of a particular
commitment, not the establishment of a broad rule that every State's
announcement of a commitment on any subject must be read as intending
to create a legally-binding obligation. In any event, to the extent
that the Court opined on the method of interpreting the promise of a
State, it cautioned that ``when the States make statements by which
their freedom of action is to be limited, a restrictive interpretation
is called for.'' Id. at 267.
conclusion
The principal gap in Professor Glennon's analysis is the failure to
address the question of what became of the ABM Treaty of 1972 upon the
USSR's dissolution in December 1991. Professor Glennon supports
President Clinton's position that that Treaty (indisputably in force
until the dissolution) remains in force today. Yet he bases this latter
contention on an exchange of statements by U.S. and Russian officials
that did not occur until some weeks after the USSR's dissolution. What
was the Treaty's status in the interim?
Are we to suppose that the Treaty remained in force for several
weeks with only one party, the United States? If so, what would have
been the Treaty's status if the U.S.-Russian exchange of official
statements had occurred not a few weeks but a few years after the
USSR's dissolution? What if that exchange had never occurred? The
notion that the Treaty could continue uninterruptedly to bind the
United States despite the USSR's extinction, for years or even weeks
defies the logic and prudence embodied in the longstanding
international legal rule that bilateral treaties lapse by operation of
law if and when one of the two parties dissolves.
As noted, Professor Glennon's testimony did not acknowledge that
rule. His testimony, however, did not contradict it and, in fact,
comports with it, if we interpret that testimony as contending that the
post-dissolution U.S.-Russian agreement on the ABM Treaty (based on the
aforementioned statements in January 1992 of President Yeltsin and
Secretary Baker) aimed to create a new treaty. One can square our
testimony with that of Professor Glennon to a substantial degree by (1)
accepting that the ABM Treaty of 1972 did automatically cease to be in
force when the USSR dissolved and (2) acknowledging that, after the
dissolution, the United States and Russia could, by mutual consent,
apply the terms of that treaty to themselves mutatis mutandis.
We part company from Professor Glennon when he asserts that the
Yeltsin-Baker agreement constituted more than an agreement to agree on
terms for a new accord regarding the subject matter of the ABM Treaty
of 1972. He believes that agreement in and of itself produced a
legally-binding accord between the United States and Russia that can
accurately be referred to as ``the ABM Treaty.'' As explained above,
however, the record refutes the claim that Secretary Baker intended his
oral remarks to create a new, legally-binding ABM treaty. Moreover,
even if he had so intended, no such treaty could come into force under
U.S. law--to wit, Article II, Section 2 of the U.S. Constitution--
without the advice and consent of two-thirds of the U.S. Senate.
Hence, the ABM Treaty of 1972 is not now in force and no new treaty
on the same subject matter between the United States and Russia has
come into force.
______
Prepared Statement of Robert F. Turner, Associate Director, School of
Law, Center for National Security Law, University of Virginia
Dear Mr. Chairman: Thank you for your letter of October 11th,
seeking my written views on the legal status of the 1972 ABM Treaty
with the Soviet Union and offering to include them in the published
record of the Committee's May 25th hearing. As I explained to Senator
Ashcroft's staff when they called to invite me to testify, I had a
prior commitment for that date involving the education and welfare of
my six-year-old son, Thomas. Had it been any other conflict, I would
have done everything possible to take part in the hearing, as this is
in my view among the most important national security issues facing the
nation today. I am therefore especially grateful to you for providing
me with the opportunity to submit my thoughts in writing at this time.
Perhaps I should begin with a quick summary of some of my relevant
background on these issues. I hold both professional and academic
doctorates from the University of Virginia School of Law, where in 1981
I co-founded the Center for National Security Law. My 1700-page SJD
dissertation was entitled: ``National Security and the Constitution: An
Inquiry into the Separation of Powers.'' After teaching, inter alia,
the basic International Law course here at Virginia in the Woodrow
Wilson Department of Government and Foreign Affairs for several years,
I held the Charles H. Stockton Chair of International Law at the U.S.
Naval War College in Newport, RI. I wrote the separation-of-powers
chapter in the law school casebook, National Security Law, which I also
co-edited. For three terms each I chaired the ABA Standing Committee on
Law and National Security and the Committee on Executive-Congressional
Relations of the ABA Section of International Law and Practice. I am a
former senior editor of the Virginia Journal of International Law, and
since 1992 I have edited the ABA National Security Law Report. I've
also written or edited more than a dozen books, many of which dealt
specifically with issues of International Law and/or the constitutional
separation of national security powers. Finally, as a practitioner, I
worked for five years in the mid-1970s as national security adviser to
a member of your committee, and subsequently served in the Pentagon,
the White House, as Principal Deputy Assistant Secretary of State for
Legislative and Intergovernmental Affairs, and as the first President
of the U.S. Institute of Peace. Having mentioned a variety of
organizations and institutions, I should emphasize that the views which
follow are entirely personal and should not be attributed to the
Center, the School of Law, the University of Virginia, the ABA, or any
other group or entity with which I am or have been affiliated.
Over the years I have had the pleasure of testifying on several
occasions as an expert witness before your Committee, and roughly a
dozen other congressional committees as well. I think it is fair to say
that I have usually been chosen to reflect a ``pro-Executive''
perspective, and much (if not most) of the time I suspect I have not
been the most popular witness on the panel. (Not all legislators like
to be told that what they want to do is unconstitutional, and that has
often been my conclusion.) I take some pride in the fact that I haven't
shifted my legal views over the years to reflect partisan or personal
policy preferences. I have consistently championed the President's role
as ``senior partner'' in America's dealings with the external world,
whether the President in question was named Nixon, Ford, Carter,
Reagan, Bush, or Clinton. Indeed, on the ABM Treaty itself, I was
sharply critical of Senate efforts a dozen years ago to overturn
President Reagan's interpretation of the Treaty during the so-called
``broad-narrow'' debate.
But I have also always acknowledged that there were important
national security powers clearly vested in Congress and the Senate, and
the President has a constitutional obligation to respect them. I
believe that the current controversy involves just such a power, and if
the President carries through on his threat to keep the 1972 ABM Treaty
in force with Russia (and/or any other former Soviet republics)
following a Senate rejection of the 1997 Memorandum of Understanding, I
believe he will be in clear violation of his oath of office to
``protect and defend'' the Constitution. Indeed, I fear such a course
of action could precipitate a constitutional crisis of the first
order--rivaling any dispute since Vietnam.
These issues are complex and tremendously important to the security
of the nation, but I shall try to be reasonably brief. My full analysis
of these issues is contained in a 70,000-word monograph (The ABM Treaty
and the Senate: Issues of International and Constitutional Law)
scheduled for publication by our Center later this month, and I will be
happy to provide a copy to the Committee for its files. Since that
study includes several hundred footnotes to scores of sources, I shall
not attempt to duplicate that effort here.
i. the law governing state succession to treaties and the abm treaty
The international law governing the succession of States to treaty
obligations is both complex and highly unsettled. I devote more than
twenty-five pages to it in my monograph. Briefly summarized, a
nondispositive bilateral treaty like the 1972 ABM accord with the
Soviet Union would normally cease to exist with the demise of either of
the Parties. Efforts by very able administration lawyers to portray the
Treaty as creating permanent burdens on the territory of the former
Soviet Union are highly unpersuasive.
It is therefore tempting to conclude, as have several respected
legal writers and at least some Senators, that the ABM Treaty ceased to
exist ipso jure on December 24, 1991, with the death of the Soviet
Union. While such a conclusion is not unreasonable, it fails to
acknowledge the right of sovereign States to agree to depart from
traditional rules and to maintain the terms of a treaty in force even
in a setting where international law would otherwise not permit either
State to enforce its terms against the will of the other.
Put differently, the law of State succession to treaties does not
prohibit the United States from maintaining the terms of the U.S.-
Soviet ABM Treaty in force with Russia or other States that have arisen
from the ashes of the Soviet Union; it merely provides that the Treaty
will not remain in force unless both States--or, if the agreement is to
be multilateralized, unless all concerned States--clearly express their
consent to be legally bound.
Presidents Bush, Clinton, and Yeltsin have repeatedly affirmed that
the ABM Treaty remains in force. At various times following the
collapse of the Soviet Union, other Newly Independent States occupying
former Soviet territory affirmed a similar intent. Under well-
established principles of international law, heads of state are
recognized as having the power to speak for their countries in
diplomatic intercourse.
This, in turn, might seem to suggest that the 1972 Treaty remains
in full force today--but the situation is more complex than that. In a
setting of State succession in which a preexisting treaty would
normally expire, it is true that the surviving treaty partner and one
or more ``successor States'' may consent to keep the agreement in
force; but this is done through a new international agreement which,
under international law, is of equal dignity to the original accord.
How each State allocates authority to make such a new commitment is
of little concern to the international community and is normally
governed by a domestic constitution or other instrument of domestic
law. In the United States, the President often resolves simple and
uncontroversial succession issues by executive agreement (often
referred to as ``sole executive agreements'' or ``presidential
agreements,'' to distinguish them from agreements made by the President
pursuant to authority granted by legislation or a prior treaty).
However, if the new agreement involves substantive changes to the
original treaty, under the Constitution the President must submit it to
the Senate like any other new treaty. And like any other new treaty, it
may not be ratified by the President unless two-thirds of those
Senators present affirm their consent.
ii. the legal effect of signing the 1997 mou
As President Clinton explained in a letter to Chairman Gilman dated
November 21, 1997, ``[n]either a simple recognition of Russia as the
sole ABM successor . . . nor a simple recognition of all NIS as full
ABM successors would have preserved fully the original purpose and
substance of the Treaty, as approved by the Senate in 1972.'' To
resolve the future status of the Treaty, a new international agreement
was clearly necessary.
During a meeting in New York City on September 26, 1997, the
foreign ministers of Belarus, Kazakhstan, the Russian Federation, and
Ukraine joined U.S. Secretary of State Madeleine Albright in signing a
``Memorandum of Understanding'' (MOU) relating to the 1972 ABM Treaty.
The first article is worth quoting in its entirety:
Article I
The United States of America, the Republic of Belarus, the
Republic of Kazakhstan, the Russian Federation, and Ukraine,
upon entry into force of this Memorandum, shall constitute the
Parties to the Treaty.
In other words, the five States agreed to become Parties to the
1972 ABM Treaty--subject to the changes and other provisions of the
MOU--if, and when, the MOU entered into force. It did not become
effective upon signature. And Article IX of the MOU specified that it
was ``subject to ratification or approval by the signatory States, in
accordance with the constitutional procedures of those States.''
The ``constitutional procedures'' of the United States permit
international agreements by formal treaty or by various forms of
executive agreements. However, it is well established that the terms of
a treaty may not be changed by the President alone. Both sides of the
current debate have acknowledged that if the ABM Treaty is
``substantially changed'' it must be submitted to (and approved by) the
Senate like any other treaty before entering into force.
iii. substantive changes in the 1972 treaty
From my perspective, it is preposterous to argue that the MOU does
not involve ``substantive changes'' to the 1972 Treaty, and the same
conclusion would result from any effort to transform the U.S.-Soviet
treaty into a bilateral accord with Russia alone. I discuss this at
length in my monograph, but the changes in territory alone are clearly
sufficiently substantial to require resubmission to the Senate.
To be sure, in some settings of State succession a change in
territory would not be critical, but the ABM Treaty is specifically
designed to prevent the territory under the sovereign control of the
two Parties from being used for a certain purpose. If you have any
doubts about this, ask yourself how many of the 88 Senators who
consented to the ratification of the 1972 Treaty would have voted that
way had they been told that the Soviets had reserved, say, ten sites
around their territory of five square kilometers each, which they
insisted would not be constrained by the Treaty? I worked for a member
of the Foreign Relations Committee for five years after that Treaty was
ratified, and I would be shocked if as many as eight Senators would
have consented to such an accord--which would have permitted the Soviet
Union to deploy a national ballistic-missile defense system totally
contrary to the object and purpose of the treaty.
If the MOU goes into effect, it will exclude from the legal
constraints of the 1972 ABM Treaty approximately 1.5 million square
kilometers of territory formerly belonging to the Soviet Union. Based
upon the territory required for the various elements of the U.S.
Safeguard ABM system deployed near Grand Forks, ND, in 1974 (which I
visited as a Senate staff member that year), approximately 400,000 new
ABM sites, with millions of new interceptor missiles, could be
constructed in such a vast expanse of territory.
On the other hand, if the President attempted to keep the ABM
Treaty in force with Russia alone, he would by presidential fiat be
excluding roughly 5.5 million square kilometers from coverage by the
Treaty--an area roughly fifty times larger than the Commonwealth of
Virginia. A space this large could hold approximately 1.5 million ABM
sites, housing 150 million interceptor missiles (and half of this space
would be used for each site to have its own PAR radar, whereas a small
number of PARs could actually support numerous launcher sites each).
Since the ABM Treaty, as amended in 1994, limits each side to a single
site with no more than 100 interceptor missiles, exempting these vast
tracts of land (without exempting so much as a single square foot of
U.S. territory) obviously constitutes a substantive change in the
Treaty.
Yet another major change involves the number of Parties to the
Treaty. Under the MOU, the bilateral ABM Treaty would be changed to a
multilateral agreement--which, in turn, involves different legal rules
governing things like amendment and remedies for material breach. This,
by itself, is enough to clearly require submission to the Senate, and I
know of not a single instance in U.S. history where a president has
even attempted to multilateralize a treaty without Senate consent.
Last January, Secretary of Defense Cohen announced that next summer
the United States may seek to amend the terms of the ABM Treaty. As
that Treaty was approved by the Senate in 1972, the Soviet Union would
have had a veto over any proposed U.S. amendment(s). Under the MOU,
Belarus, Kazakhstan, the Russian Federation, and Ukraine would each
have a veto. Obviously that is a very relevant `substantive change.''
From this it is absolutely clear that the President may not
unilaterally commit the United States to a long-term extension of the
1972 ABM Treaty without the advice and consent of the Senate as
required by Article II, Section 2, Clause 2, of the Constitution.
iv. current u.s. abm obligations
This leads to the question of our current international legal
obligations regarding ABM defenses. The situation is complex, and
honorable people may disagree. Some may argue that the statements made
by the leaders of the United States and the Russian Federation (and
perhaps other former Soviet republics) resulted in the interim
continuation of the 1972 Treaty pending negotiation and ratification
(or rejection) of a new ABM agreement. There is considerable precedent
for American presidents making interim policy decisions even in areas
where Congress or the Senate are given a constitutional veto, at least
until Congress or the Senate have had an opportunity to examine the
issues and take a position.
However, in this instance, both Congress and the Senate had taken
positions long before the MOU was negotiated. For example:
Section 33 of the Arms Control and Disarmament Act of 1961
prohibits action under that, or any other, statute that would
limit U.S. armaments ``in a militarily significant manner,
except pursuant to the treaty-making power of the President . .
. or unless authorized by the enactment of further affirmative
legislation by the Congress. . . .''
In 1987, during the so-called ``Broad-Narrow'' ABM
reinterpretation debate (in which I believe the Senate exceeded
its proper authority), the Senate passed a resolution declaring
that ``no amendment to the ABM Treaty may occur without the
agreement of the parties and the advice and consent of the
Senate.''
The Defense Authorization Act for FY 1995 expressly provides
that ``the United States shall not be bound by any
international agreement entered into by the President that
would substantively modify the ABM Treaty unless the agreement
is entered into pursuant to the treaty making power of the
President under the Constitution.''
Four months before the signing of the MOU, the Senate
attached ``Condition 9'' to its resolution consenting to the
ratification of the CFE Flank Document, again demanding that
any effort to continue the ABM Treaty in force be submitted to
the Senate; and President Clinton agreed to these terms.
Given this clear history, it would be very difficult to argue with
a straight face that the President believed the Senate would acquiesce
to his unilaterally making any international agreement to continue the
1972 ABM Treaty in force.
International law does not require States to be familiar with the
internal political processes--including the legislative process and its
products--of its treaty partners. Thus, the fact that a State's own
domestic laws prohibited the making of a particular treaty or category
of treaties is not legal justification to avoid the obligations of such
a treaty if it is otherwise properly made. This is reflected in Article
46 of the Vienna Convention on the Law of Treaties, which the United
States has long recognized reflects binding customary international
law. Article 46 provides:
1. A State may not invoke the fact that its consent to be
bound by a treaty has been expressed in violation of a
provision of its internal law regarding competence to conclude
treaties as invalidating its consent unless that violation was
manifest and concerned a rule of its internal law of
fundamental importance.
Note the exception here: ``unless that violation was manifest and
concerned a rule of its internal law offundamental importance.'' What
that means is that the United States can not be bound by a treaty--
whether a new treaty, or one incorporating amendments to an earlier
treaty--concluded in manifest violation of the constitutional
requirement for Senate approval.
One might argue that the initial statements about continuing the
ABM Treaty in force were, upon more careful reflection, superseded by
the decision to negotiate and sign the MOU. By this reasoning, the
terms of the 1972 Treaty will only come into effect between the MOU
signatory States if and when it is properly ratified. On the other
hand, one might also contend that the intent of the Parties was to keep
the Treaty in force on an interim basis until the MOU could be
negotiated and ratified. Given some ambiguity, the obligation of ``good
faith'' inherent in all diplomatic intercourse might suggest that the
terms of the 1972 Treaty ought not be violated until its future is
decided by approval or rejection of the MOU.
Fortunately, as a practical matter, it is not necessary to resolve
this issue. When Secretary Albright signed the 1997 MOU, the United
States clearly incurred a legal duty not to ``defeat the object or
purpose'' of the treaty (the MOU) ``until it shall have made its
intention clear not to become a party . . . .'' This widely recognized
principle of customary international treaty law is reflected in Article
18 of the Vienna Convention on the Law of Treaties.
The United States has historically (and I think properly)
interpreted this obligation as one not to take ``irreversible'' actions
contrary to a signed but unratified treaty. Thus, I argue in my
monograph, that while enactment of the National Missile Defense Act of
1999 clearly established a national policy that is contrary to the
clear object and purpose of the MOU, it did not violate our interim
obligations under that Treaty because the policy could be changed prior
to the entry into force of the MOU. On the other hand, research and
testing that is prohibited by a signed treaty is clearly improper
during the interval between signature and ratification or rejection, as
there is no way to verify that a State has destroyed or ``forgotten''
the acquired knowledge which the treaty was designed to prohibit.
v. where to from here?
A few conclusions may now be in order.
While academically interesting arguments can be made for or
against the proposition that the 1972 ABM Treaty ceased to
exist with the demise of the Soviet Union at the end of 1991,
it is not as a practical matter necessary to resolve that
issue. When Secretary of State Albright signed the MOU in 1997,
the United States incurred a clear legal obligation not to
defeat the object or purpose of that agreement--which for
practical purposes incorporates the terms of the 1972 ABM
Treaty.
The President has a clear constitutional duty to submit the
MOU to the Senate before attempting to implement it; and, given
his position that the United States is bound by the terms of
the 1972 Treaty in the interim, submission of the MOU to the
Senate should not be unreasonably delayed.\1\
---------------------------------------------------------------------------
\1\ I have intentionally chosen an imprecise term because we
address here one of the ``gray areas'' of constitutional law.
Historically, in making a new international commitment, the President
was seen as being under no duty to submit a signed treaty to the Senate
at any particular time. The constitutional requirement was merely that
he not ``ratify'' the agreement (i.e., establish a legally-binding
obligation for the United States) until after two-thirds of the
Senators present had voiced their consent. The modern rule found in
Article 18 of the Vienna Convention--essentially a clarification of a
traditionally recognized duty of ``good faith'' in such matters--raises
an interesting constitutional problem, as the President may be able to
incur legal obligations on the nation that are strongly opposed by more
than a third of the Senate by merely withholding signed treaties from
that body. At the same time, the President needs to have some
discretion as to his timing in such matters. While I personally have
some reservations about holding up action on the ABM MOU until after
President Yeltsin can persuade the Russian State Duma to consent to the
ratification of the START II agreement--reservations premised upon the
knowledge that our apparent duplicity may incur ill will towards the
United States within the Duma and the Russian people that will
transcend the current administrations in both countries--I nevertheless
recognize that this is the President's call and would caution against
any constitutional interpretation that would deny him reasonable
discretion in such matters.
---------------------------------------------------------------------------
Even more clearly, if the Senate rejects the MOU, the
President has absolutely no constitutional authority to keep
the 1972 ABM Treaty in force with any country other than the
Soviet Union, which no longer exists. To attempt to do so would
likely precipitate a most unfortunate confrontation that might
dwarf the ``broad-narrow'' dispute of a dozen years ago.
No one would benefit from such a confrontation: neither political
branch of the Government, neither political party, and certainly not
the American people. It can only be hoped that the President will
reconsider his earlier threats to act unilaterally in the event the
Senate rejects his proposed treaty.
So where do we go from here? My belief when I first began examining
this problem more than two years ago was that we needed a fundamental
national debate to decide who we are as a nation, what our threats are,
where we want to go from here, and how to get there. The issue of
ballistic-missile defenses would be a major part of that debate. But
within the past year I have sensed a major change. That debate may be
over, at least with respect to the ABM issue. The successful testing of
ABM components has certainly undercut contentions that the technology
can't work, and the reports of the Rumsfeld Commission and Cox
Committee were clearly influential in producing a bipartisan 97 to 3
Senate vote last March in favor of building a national ballistic
missile defense system. Despite earlier threats of a veto, the
President made that policy the law this summer.
Fifteen years ago, I served for several months as acting Assistant
Secretary of State for Legislative and Intergovernmental Affairs. In
that capacity, I spent many hours paving the way for ratification of
the Genocide Convention, which the United States had signed more than
three decades earlier. Based upon that experience--and the knowledge
that 97 Senators voted just seven months ago to build a national
missile defense as soon a technologically possible, in the hope of
reducing the risk to tens of millions of Americans from newly emerging
ballistic missile threats--I submit that anyone who would predict that
two-thirds of the Senate will now vote in favor of ratification of the
ABM MOU ought to be tested for possible recreational chemical abuse.
The MOU is clearly not going to be approved unless there are some major
changes in attitudes.
If one accepts that conclusion, then we are left asking when and
how to deal with this reality. And a major consideration in this
decision is the importance of dealing in good faith with the Russians
and our other potential treaty partners.
Our own leaders (first in the Bush administration and more recently
the Clinton administration) have given assurances to Russia and other
former Soviet republics concerning the status of the 1972 Treaty, and
even if we have the legal option of simply disavowing these assurances
that would be horrible policy. If your checks aren't good, you either
have to bring cash or people will refuse to do business with you.
From my perspective, the answer is fairly simple. It is my
impression that, were the United States to move forward expeditiously
with the development and deployment of a national ballistic-missile
defense system, no steps likely to occur during the first six months
would violate the terms of the 1972 ABM Treaty. Assuming that this is
true (or, if it is mistaken, that any such steps could be postponed
briefly to ensure compliance during that period), there is thus no need
to undermine the President's assurances that the Treaty is still in
force. Nor, for that matter, is it necessary to affirm those
statements. All we need to do is to clearly comply with the provisions
of Article XV (2) of the Treaty, which provides:
Each Party shall, in exercising its national sovereignty,
have the right to withdraw from this Treaty if it decides that
extraordinary events related to the subject matter of this
Treaty have jeopardized its supreme interests. It shall give
notice of its decision to the other Party six months prior to
withdrawing from the Treaty. Such notice shall include a
statement of the extraordinary events the notifying Party
regards as having jeopardized its supreme interests.
To begin with, the test for exercising this option is entirely
subjective: If the United States ``decides'' that the emerging new
ballistic-missile threats discussed by the Rumsfeld Commission
jeopardize our ``supreme interests'' (which clearly they do, as they
involve threats to the lives of millions of our people), then
withdrawal is permitted by simply giving six-months notice.
Just as American presidents from both political parties have for
the past quarter-century finessed the issue of whether they are bound
by the controversial 1973 War Powers Resolution by submitting required
reports pursuant to a ``desire that Congress be kept fully informed of
this matter and consistent with the War Powers Resolution,'' the United
States could address diplomatic communications to the other MOU
signatories that fully satisfied the requirement of Article XV of the
ABM Treaty without necessarily resolving the current status of that
Treaty. If a former Soviet republic believes the 1972 Treaty to still
be in force, such a notice would serve lawfully to terminate it. If
another MOU signatory State does not consider the 1972 Treaty to be in
force, then the same notice would relieve the United States of its
obligations as reflected in Article 18 of the Vienna Convention.
Before closing, I would make four more brief observations:
As a matter of international law, the Senate has no
authority to communicate directly with foreign States; and thus
any such notice will have to come from the President. Ideally,
this should be worked out through consultations and in a spirit
of bipartisan cooperation and mutual comity. However, there is
also precedent for either Congress or the Senate to instruct
the President to give notice of termination of a treaty, and it
is my understanding that presidents have always followed those
congressional instructions.\2\
---------------------------------------------------------------------------
\2\ Candidly, whether the Congress or Senate has the constitutional
power to direct the President to terminate a treaty is not clear to me.
Past precedent may be largely a result of presidential prudence,
especially in a setting where Congress was likely to enact (or perhaps
had already enacted) legislation in conflict with treaty obligations,
or when the President knew that future treaty implementation would
require additional funding by legislative appropriations.
---------------------------------------------------------------------------
While the Senate ought not attempt to communicate formally
with any foreign government or people, its Members should keep
in mind that the Russians can read. They will draw conclusions
from Senate action in this area, and it would be prudent for
Senators to keep this in mind. A few carefully crafted,
bipartisan, colloquies during the course of related hearings or
debates--emphasizing that the perceived ballistic missile
threat is not from Russia but from radical States that ought
also to be of concern to our new Russian friends--might be very
helpful. This is an area where close coordination with the
Department of State might prove especially wise.
The United States is today the world's most powerful
country, which ironically makes it all the more important for
us both to be honorable, and to be perceived as being
honorable, in our relations with other States. To be sure, we
can probably defend ourselves against any existing threat for
the foreseeable future. But we can not beat every existing or
foreseeable threat, and we ought to be trying hard to reassure
the world that there is no need to unite against America. The
examples we set in our diplomacy in the years following World
War II are instructive, as then we were also the world's most
powerful nation.
Our relationships with Russia and the other former Soviet
republics are important, and it is in our interest to treat
these countries honorably and with appropriate respect. The
reason the United States is concerned about the threat of
nuclear- or biologically-armed ballistic missiles has little to
do with a democratic Russia and almost everything to do with
rogue States like North Korea, Iraq, and Iran. These States are
also potential threats to the Russian people, and we ought to
be emphasizing both points as we move forward on this issue.
Consistent with preserving critical national security secrets,
I would recommend broad cooperation with Russia in developing
and building ABM facilities that might be able to protect both
countries, and other potential victims around the world as
well. I believe that, if properly handled, a clarification of
our ABM policy might actually improve relations with Russia; as
the mixed signals we have been sending have exacerbated
paranoia and long-standing mistrust among Russians.
Mr. Chairman, I hope these views have been helpful. Again, I was
delighted to have been invited to testify on May 25th, and I deeply
regret that my prior commitment precluded my participation in person at
that time. Nevertheless, I am pleased to have been able to provide my
views for the record at this later date. I will of course be happy to
attempt to answer any questions which you or any of your colleagues
might have for the record.
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