Index


                              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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \9\ 40 U.S. (15 Pet.) 518 (1841). \10\ Id. at 596. --------------------------------------------------------------------------- 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: --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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: --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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.''). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- 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). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \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.'' --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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: --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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: --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \125\ Id. at 284. The Court was careful to distinguish cases in which a State loses --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \129\ Ivancevic v. Artukovic, 211 F.2d. 565, 568-74 (9th Cir. 1954). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \133\ Jones, supra note 123, at 362. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \139\ Hershey, supra note 99, at 215 (emphasis added). \140\ Id. at 218. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \146\ Sir Hersch Lauterpacht, The Development of International Law by the International Court 368 (1958). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \153\ McNair, supra note 100, at 412-18. \154\ De Muralt, supra note 134, at 86-87. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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: --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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.