May 25, 1999
The Legal Status of the ABM Treaty
Feith, Douglas J., former Deputy Assistant Secretary of Defense
for Negotiation Policy, partner, Feith & Zell; accompanied by
George Miron, Washington, DC................................... 228
Prepared statement of........................................ 231
Supplementary remarks of Douglas J. Feith and George
Miron on the Legal Status of the ABM Treaty............ 304
Glennon, Michael J., professor of law, the University of
California, Davis, CA.......................................... 276
Prepared statement of........................................ 280
Rivkin, David B., Jr., partner, Hunton & Williams, accompanied by
Lee A. Casey, Washington, DC................................... 263
Prepared statement of........................................ 265
Letter to Senator Helm forwarding additional
documentation.......................................... 272
Text of a letter from the President to the Chairmen of
the Senate and House Committees on Appropriations...... 273
Report to Congress on the Memorandum of Understanding
relating to the treaty between the United States of
America and the Union of Soviet Socialist Republics on
the Limitation of Anti-Ballistic Missile Systems--May
26, 1972............................................... 273
Turner, Robert F., associate director, School of Law, Center for
National Security Law, University of Virginia, prepared
statement...................................................... 313
S. Hrg. 106-339
BALLISTIC MISSILES: THREAT AND RESPONSE
=======================================================================
HEARINGS
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
APRIL 15 AND 20, MAY 4, 5, 13, 25, 26, AND SEPTEMBER 16, 1999
__________
Printed for the use of the Committee on Foreign Relations
<snowflake>
Available via the World Wide Web: http://www.access.gpo.gov/congress/senate
U.S. GOVERNMENT PRINTING OFFICE
56-777 CC WASHINGTON : 2000
COMMITTEE ON FOREIGN RELATIONS
JESSE HELMS, North Carolina, Chairman
RICHARD G. LUGAR, Indiana JOSEPH R. BIDEN, Jr., Delaware
PAUL COVERDELL, Georgia PAUL S. SARBANES, Maryland
CHUCK HAGEL, Nebraska CHRISTOPHER J. DODD, Connecticut
GORDON H. SMITH, Oregon JOHN F. KERRY, Massachusetts
ROD GRAMS, Minnesota RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas PAUL D. WELLSTONE, Minnesota
CRAIG THOMAS, Wyoming BARBARA BOXER, California
JOHN ASHCROFT, Missouri ROBERT G. TORRICELLI, New Jersey
BILL FRIST, Tennessee
Stephen E. Biegun, Staff Director
Edwin K. Hall, Minority Staff Director
(ii)
THE LEGAL STATUS OF THE ABM TREATY
----------
TUESDAY, MAY 25, 1999
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 2:31 p.m., in
room D-562, Dirksen Senate Office Building, Hon. John Ashcroft
presiding.
Present: Senator Ashcroft.
Senator Ashcroft. This hearing will come to order, please.
I am delighted to convene this hearing. You are witnessing what
happens to a Senator who tries to run up five flights of
stairs. But I am delighted to be here.
Senator Biden, I believe, will be coming later. We have had
several votes scheduled, which commenced at 2:15. They will be
intermittent, and I thought it best if we could get underway.
This is a hearing on the legal status of the ABM Treaty.
First ratified in 1972, the treaty has been, for some, the
sacred text of arms control agreements, the underlying basis
for nuclear arms reduction with the former Soviet Union. Even
though the level of offensive nuclear warheads increased by
over 400 percent after the treaty entered into force,
proponents of the agreement continue to argue it is the
``cornerstone of strategic stability.''
It is my view that the treaty has never achieved its
objectives and, at present, poses a particularly grave threat
to the security of the United States and to the stability of
the world. It is in this context that we discuss the legal
status of the treaty.
When the Soviet Union disintegrated in 1991, the State
Department was in the process of reviewing how it would handle
U.S. treaty relationships with the USSR. In an effort to
encourage stability during a chaotic time, the Bush
administration adopted a model of ``presumptive continuity''
where treaties with the USSR would be presumed to continue with
appropriate successor States.
The Bush administration's policy was not an automatic
continuity or continuation of all treaties with the USSR, but
provided a framework to review each agreement and determine
necessary changes. Such a review was particularly important for
arms control agreements. As President Clinton stated in a
letter to Congressman Gilman in March 1997, and I quote,
``Particularly in the area of arms control, a case-by-case
review of each agreement was necessary.''
In that case-by-case review, the administration negotiated
a memorandum of understanding [MOU] on succession to the ABM
Treaty. The MOU, was concluded in September 1997 and identified
Ukraine, Belarus, Kazakhstan and Russia as the successor states
to the treaty. This selection of successor states seemed to be
consistent with a statement by the President that, and I quote,
``neither a simple recognition of Russia as the sole ABM
successor (which would have ignored several former Soviet
States with significant ABM interests) nor a simple recognition
of all NIS, Newly Independent States, as full ABM successors
would have preserved fully the original purpose and substance
of the treaty, as approved by the Senate in 1972.'' That was
the letter from the President to Congressman Gilman.
The administration went on to reiterate in that same letter
that the MOU on succession ``works to preserve the original
object and purpose of the treaty.''
To summarize, the administration believed in 1997 that
recognition of Russia alone or all of the successor states
together would not have preserved the original purpose of the
treaty. The administration negotiated the memorandum of
understanding to preserve the original purpose of the treaty.
The administration's initial formulation for the legal status
of the ABM Treaty begs two questions, however. First, if the
MOU is essential to preserve the original purpose of the ABM
Treaty, what is the status of the treaty since the MOU has not
been ratified? Second, if the MOU is rejected by the Senate,
what will be the status of the ABM Treaty?
The answer to those two questions must be the same, and it
is the answer that this administration does not want to hear.
The fact that this treaty cannot be carried out without the MOU
is evidence enough that it expired with the collapse of the
Soviet Union. The fact that this treaty cannot be carried out
without the MOU on succession is evidence enough that this
treaty will remain void if the Senate rejects the succession
arrangement.
That is a key point my colleagues in the Senate need to
understand. This is not just a debate on a succession
arrangement to the ABM Treaty. If the administration ever
submits the MOU on succession to the Senate, this will be a
vote to revive an expired treaty, a vote on the ABM Treaty of
1999.
When faced with this uncomfortable fact and the awareness
that the Senate would almost certainly reject MOU, the
administration modified its legal argument on ABM Treaty
succession. When pressed on the status of the ABM Treaty if the
MOU on succession is rejected by the Senate, President Clinton
wrote to Congressman Gilman and Senator Helms in a subsequent
letter.
``Belarus, Kazakhstan and Ukraine each has ABM Treaty-
related assets on its territory. Each has participated in the
work of the SCC, [the Standing Consultative Commission of the
treaty], and each has affirmed its desire to succeed to the
obligations of the former Soviet Union under the treaty.
``Thus,'' and I continue to quote, ``a strong case can be
made that even without the MOU, these three states are parties
to the treaty . . . Finally, the United States and Russia
clearly are parties to the treaty. Each has reaffirmed its
intention to be bound by the treaty, and each has actively
participated in every phase of the implementation of the
treaty, including the work of the SCC; and each has on its own
territory extensive ABM Treaty-related facilities. Thus there
is no question that the ABM Treaty has continued in force and
will continue in force, even if the MOU is not ratified.'' That
letter from Clinton to Gilman and Helms, May 21, 1998.
Only 6 months after stating that neither Russia alone nor
all the successor states could fulfill the original purpose of
the treaty, the President argues that clearly Russia is a party
to the treaty, and a few other successor states may also be
parties. Such inconsistency from the administration on a matter
this important to U.S. national security is troubling. Indeed,
administration lawyers briefing Congress in January 1998 could
not say whether any country which emerged from the Soviet Union
was bound by the ABM Treaty.
Such ambiguity within the administration makes it all the
more clear that the ABM Treaty will expire and will remain void
unless the Senate approves the MOU on succession. The MOU is
necessary because the treaty cannot be fulfilled without
amending. The territory covered by the treaty is changed.
Additional parties are added to the treaty. Treaty mechanisms,
such as the Standing Consultative Commission, are altered, and
the strategic landscape upon which the ABM Treaty was based is
dramatically different. These are substantial amendments to the
treaty. And in our constitutional form of government, the
Senate has a responsibility to advise and consent on such
amendments.
As is well established in U.S. law, and I quote, ``A
significant amendment to a treaty must follow the mandate of
the treaty clause and therefore must be proposed by the
President and be ratified following the advice and consent of
the Senate,'' New York Chinese T.V. Programs, Inc., vs. U.E.
Enterprise, 954 Fed 2d.
I find it hard to understand why my Democratic colleagues,
many of whom waged an extensive fight in the eighties over the
interpretation of several words in the ABM Treaty, are not
defending the Senate's prerogative to approve these dramatic
changes in the treaty today. Congress has made its will clear
with regard to succession arrangements for the ABM Treaty.
The Senate gave its advice and consent to the CFE Flank
Document in May 1997 and attached a condition that any
successor arrangement to the ABM Treaty be submitted for the
Senate's advice and consent. In accepting this condition, the
administration is bound not to recognize any party to the ABM
Treaty until the Senate approves a successor arrangement.
We will discuss the compelling constitutional and
international law arguments surrounding the treaty status
today, but the condition in the CFE Flank Document for me
removes all doubt that this treaty is not in force until the
Senate approves a succession arrangement. It is noteworthy that
the State Department's senior arms control lawyer takes a
different view than the White House on the legal status of the
ABM Treaty.
While the President argues that the treaty certainly is in
force, at least with Russia, Mary Elizabeth Hoinkes recently
stated, ``Absent a succession agreement, we do not have a firm
treaty relationship.'' She made that statement in the Forum on
the ABM Treaty sponsored by the Center for National Security
Law of the University of Virginia School of Law in February of
this year. She may be swimming against the tide within the
administration, but her intellectual honesty is appreciated.
The President is bound by the Constitution to submit these
treaty amendments to the Senate for advice and consent. And the
condition of the CFE Flank Document will help him fulfill his
constitutional responsibilities. I do not believe that he can
de facto recognize Russia, or any other former Soviet Republic,
as a party to the treaty before the Senate consents.
Some of the legal arguments that will be discussed today
are complex, but the central point of this hearing is that the
ABM Treaty is expired and will remain expired unless the Senate
approves a succession arrangement.
I thank you all for your additional patience.
It is now my pleasure to call the first panel to testify,
and I am pleased that each of you has come today. Mr. Douglas
Feith, former Deputy Assistant Secretary of Defense for
Negotiation Policy and a partner at Feith and Zell. Mr. Feith
is accompanied by Mr. George Miron, a partner at Feith and
Zell; Mr. David Rivkin, partner at Hunton and Williams,
accompanied by Mr. Lee Casey, associate at Hunton and Williams;
and finally Professor Michael Glennon, professor of law at the
University of California, Davis.
Welcome to the committee. Mr. Feith, if you would please,
begin.
STATEMENT OF DOUGLAS J. FEITH, FORMER DEPUTY ASSISTANT
SECRETARY OF DEFENSE FOR NEGOTIATION POLICY; PARTNER, FEITH &
ZELL, WASHINGTON, DC
Mr. Feith. Thank you, Mr. Chairman. My colleague, George
Miron, and I are honored to have the opportunity to testify
before this committee this afternoon. First of all, I would
like to extend condolences to the committee on the passing of
Admiral Bud Nance. Admiral Nance and I worked together at the
National Security Council at the beginning of the Reagan
administration.
Senator Ashcroft. We are very pleased to receive those. The
entirety of the Foreign Relations Committee mourns his passing
and misses him profoundly.
Mr. Feith. Mr. Chairman, the full testimony that we wish to
present is contained in our legal memorandum, which we provided
to the committee. The memorandum is lengthy, so we respectfully
ask the committee to include it in the record of these
hearings. And I now propose to make only a summary opening
statement.
Senator Ashcroft. Without objection, the entire memorandum
will be part of the record of the hearing.
Mr. Feith. Thank you.
Mr. Chairman, our legal analysis of the status of the ABM
Treaty of 1972 concludes that following the Soviet Union's
extinction, the ABM Treaty did not become a treaty between the
United States and the Russian Federation. Rather, as a
bilateral, non-dispositive treaty, the ABM Treaty lapsed when
the USSR ceased to exist. In December 1991, new states that
emerged on what had been USSR territory declared independence,
announced the formation of the Commonwealth of Independent
States, and proclaimed that the USSR, ``as a subject of
international law and a geo-political reality, no longer
exists.''
Soon thereafter, the United States acknowledged that the
USSR had dissolved and is no more. The United States has
officially expressed its view that upon a state's extinction,
that state's bilateral treaties automatically lapse. The U.S.
Government has acted in accordance with that view in connection
with the extinction of the Kingdom of Hawaii in 1898, the
dissolution of the Austro-Hungarian Empire at the end of World
War I, and the dissolution of Yugoslavia in 1992.
The U.S. view is consistent with the opinion of
international legal scholars who have addressed that issue.
With consistency over more than 200 years, scholarly writings
state that when a state ceases to exist, or becomes extinct in
legal parlance, that state's treaties have no further effect.
Such treaties are said to lapse. The lapsing occurs by
operation of law, which is to say automatically, upon the
state's extinction. It does not require action by any other
treaty party. No judicial decision or applicable treaty
contradicts this principle. And U.S. Supreme Court has
established that works of international legal scholars can be
accepted as evidence of the law.
In 1898, the State Department stated, as a principle of
public law, that a treaty expires when one of the parties
``loses its existence.'' In support, the State Department
quoted from General Henry Halleck well-regarded treatise,
International Law, which was written in 1861.
Halleck said that the principle of public law, which causes
treaties, when a party ceases to exist, to be regarded as
abrogated, is thus stated, ``The obligation of treaties, even
where some of their stipulations are in their terms perpetual,
expire in case either of the contracting parties loses its
existence as an independent state.''
In 1897, U.S. Secretary of State John Sherman invoked
scholarly works to explain to the Government of Japan why the
treaties made by the Kingdom of Hawaii would not survive the
U.S. annexation of the Kingdom's territory. He said it is not
the treaty by which the U.S. annexed Hawaii that abrogates the
Hawaiian Kingdom's treaties, rather ``it is the fact of
Hawaii's ceasing to exist as an independent contractant that
extinguishes those contracts.''
Likewise in 1902, Secretary Elihu Root ordered to be
published a report by a law officer in the Office of the
Secretary of the War Department, which dealt with the treaty
obligations of extinct states. That report says, ``Where there
is a complete change not only of sovereigns but of sovereignty
of necessity the agreement ends.'' Similar observations include
the following: ``It is clear that political, including personal
and dynastic treaties of the extinguished state fall to the
ground.'' That was written by Professor Amos Hershey, the
University of Indiana, in 1911.
``The extinction of the personality of a state results
traditionally in an abrogation of all political and military
treaties concluded between the now extinct entity and other
states,'' Professor Gerhard von Glahn, University of Minnesota,
in 1962.
Many other scholars have expressed the same opinion.
Neither U.S. nor Russian officials deny that the Soviet
Union ceased to exist in December 1991. Its international legal
personality terminated. In other words, it is not in dispute
that the Commonwealth of Independent States and the U.S.
Government in 1991 were accurate when they declared that the
Soviet Union had ceased to exist as a state.
I also would emphasize that the ABM Treaty, as we all know,
was a bilateral treaty. As noted, scholars for over 200 years
have been nearly unanimous in concluding that upon a state's
extinction, its bilateral treaties that are not dispositive
lapse. And a treaty is dispositive if it irrecoverably fixes a
right to a particular territory; for example, delineates a
boundary between states. And the ABM Treaty was not a
dispositive treaty. Dispositive treaties are also supposed to
be--are treaties that were intended to be perpetual, no matter
what happens to the parties. The ABM Treaty, by its own terms,
can be abrogated on 6 months' advance notice by the parties,
which also makes it clear that it was not a dispositive treaty.
No judicial decision contradicts the scholarly view that a
non-dispositive, bilateral treaty of an extinct state does not
automatically become a treaty of its successor or successors.
The United States has never declare that it considered itself
bound by international law to accept as a treaty partner the
successor to an extinct state.
Now the President has constitutional authority to grant
recognition to foreign states. Were he to rely on that
authority as the legal basis for making a treaty, bringing into
being a treaty that would not otherwise exist, he would put the
United States under a legal obligation to other states without
Senate advice and consent. The President's recognition
authority cannot be exercises in a manner that would nullify
the U.S. Senate's authority to advise and consent to the making
of a treaty.
The President cannot, without Senate approval, bring a
lapsed treaty back to life by declaring that a given foreign
state is the successor or continuation of an extinct state. And
it is principles of international law that govern the issue of
whether a state has become extinct.
However broad the President's authority may be to recognize
states and governments of states under the U.S. Constitution's
Receive Ambassadors Clause, it is necessarily limited by the
specific constitutional requirement for Senate advice and
consent on the making of treaties. In sum, when the USSR became
extinct, its bilateral, nondispositive treaties lapsed, hence
the ABM Treaty lapsed. By operation of law, that is
automatically. It did not become a treaty between the United
States and Russia.
The practical conclusion relating to this committee's work
of this description of the law is that the multilateralization
memorandum of understanding that you, Mr. Chairman, discussed
in your opening remarks is not simply an amendment of an
existing treaty. It would be a new treaty. If approved, as you
noted, it would create the ABM Treaty of 1999. And if not
approved, the status quo would continue. That is, there would
be no legally binding international obligation prohibiting the
United States from deploying ballistic missile defenses.
Thank you, Mr. Chairman.
Senator Ashcroft. Thank you very much. Mr. Feith.
[The prepared statement of Mr. Feith and Mr. Miron and
material provided subsequent to the hearing follows:]
Prepared Statement of Douglas J. Feith and George Miron
Did the ABM Treaty of 1972 Remain in Force After the USSR Ceased to
Exist in December 1991?
and
Did it Become a Treaty Between the United States and the Russian
Federation?
i. introduction
This Memorandum concludes that, following the extinction of the
Union of Soviet Socialist Republics (``USSR''), the Anti-Ballistic
Missile (``ABM'') Treaty of 1972 did not become a treaty between the
United States and the Russian Federation. Rather, as a bilateral, non-
dispositive treaty, the ABM Treaty of 1972 between the United States
and the USSR lapsed when the USSR ceased to exist.
In December 1991, new States that emerged on what had been USSR
territory declared independence, announced the formation of the
``Commonwealth of Independent States'' (``CIS'') and proclaimed that
the USSR ``as a subject of international law and a geopolitical reality
no longer exists.'' By December 21, 1991, the list of States belonging
to the CIS and subscribing to the view that, with the CIS's
establishment, ``the Union of Soviet Socialist Republics ceases to
exist,'' comprised Azerbaijan, Armenia, Belarus, Kazakhstan,
Kyrgyzstan, Moldova, the Russian Federation, Tajikstan, Turkenistan,
Ukraine and Uzbekistan. Soon thereafter, the United States acknowledged
that the USSR ``is no more.''
In recent centuries, instances in which States have ceased to exist
have not been numerous. The United States has officially expressed its
view that, upon the extinction of a State, such State's bilateral
political treaties automatically lapse, and has acted in accordance
with that view in connection with the extinction of the Kingdom of
Hawaii in 1898, the dissolution of the Austro-Hungarian Empire at the
end of World War I, and the dissolution of Yugoslavia in 1992. The U.S.
view is consistent with the opinion of international legal scholars who
have addressed that issue. With consistency over more than a hundred
years, scholarly writings state that when a State ceases to exist
(becomes ``extinct'') that State's bilateral treaties have no further
effect. Such treaties are said to lapse or ``fall to the ground.'' The
lapsing occurs by operation of law--that is, automatically upon the
State's extinction. It does not require action by any other treaty
party. No judicial decision or applicable treaty contradicts this
principle, and the U.S. Supreme Court has established that ``where
there is no treaty and no controlling executive or legislative act or
judicial decision,'' works of international legal scholars are
acceptable as evidence of the law.
President William Clinton has taken the view that the ABM Treaty of
1972 remains ``in force.'' Representative Ben Gilman, Chairman of the
House Committee on International Affairs, asked President Clinton in a
June 1997 letter which State, if any, does the United States believe is
now its ABM Treaty partner. President Clinton in November 1997 replied
that the ``succession'' issue is ``unsettled,'' adding:
Neither a simple recognition of Russia as the sole ABM
successor (which would have ignored several former Soviet
states with significant ABM interests) nor a simple recognition
of all NIS [newly independent states] as full ABM successors
would have preserved fully the original purpose and substance
of the Treaty, as approved by the Senate in 1972.
Representative Gilman and Senator Jesse Helms, Chairman of the
Senate Foreign Relations Committee, wrote President Clinton in March
1998 and stated that, if the Administration cannot now identify any
country in addition to the United States that is bound by the treaty,
then Congress would have to conclude that the treaty is no longer in
force. In May 1998, President Clinton replied that the ABM Treaty is in
force between the United States and the Russian Federation. He did not
state the principle of law on which he based this conclusion. Nor did
he explain how this conclusion could be squared with his November 1997
response to Representative Gilman.
A. Assistant Attorney General Dellinger's Paper
The most extensive publicly available discussion of the ABM
Treaty's current legal status produced by a Clinton Administration
official is in the June 29, 1996 memorandum from Walter Dellinger,
Assistant Attorney General, Office of Legal Counsel, to Presidential
Counsel Jack Quinn (``Dellinger Paper''). The Dellinger Paper contends
that as a matter of international law the ABM Treaty did not lapse, for
these reasons: (i) The Treaty imposed a permanent burden on the
parties'' respective territories, which would bring the ABM Treaty of
1972 within the international legal doctrine of ``dispositive''
treaties (a treaty is dispositive if it irrevocably fixes a right to
particular territory, e.g. it delineates a border between two
States),\1\ (ii) U.S. past diplomatic practice assumes that bilateral
treaties ``generally'' survive a State's extinction, and (iii) Article
34 of the 1978 Vienna Convention on Succession of States in Respect of
Treaties embodies a general principle of law that bilateral treaties
survive a State's extinction. This Memorandum, concluding that the
Dellinger Paper is incorrect regarding international law, specifically
refutes the three foregoing bases for the contention that the ABM
Treaty of 1972 did not lapse.
---------------------------------------------------------------------------
\1\ The concept of dispositive treaties is elaborated infra Part
IV.K.
---------------------------------------------------------------------------
A.A.G. Dellinger separately argues that irrespective of
international law, the President can bring a treaty into existence
without Senate consent by exercise of ``exclusive'' Executive powers.
As this Memorandum shows, however, the President has no power to bring
a treaty into existence without Senate consent.
B. Methodology and Scope of this Memorandum
After addressing erroneous Constitutional law assertions in the
Dellinger Paper, this Memorandum examines the sources of international
law bearing on the question of whether, upon the USSR's extinction, the
ABM Treaty became a treaty between the United States and the Russian
Federation. This analysis does not describe the principles of
international law that govern the question of whether a party to a
treaty in force has grounds to terminate that treaty.\2\ Nor does it
describe the rules of international law for allocating the assets, the
debt or the archives of a State that has become extinct. Those rules,
parts of the law of ``State succession,'' do not resolve the question
of how a State's extinction affects what had been that State's
bilateral treaties. For example, although the United Nations and the
European Community have declared that no State is a continuation of the
Social Federal Republic of Yugoslavia (``SFRY''), they nonetheless
expect the successor States of the extinct SFRY to bear portions of the
SFRY's debt (in proportions to be determined by a continuing conference
of the successor States that is called the ``Brussels Process'').\3\
---------------------------------------------------------------------------
\2\ Grounds for termination of a treaty include the other party's
breach or fraud, and a fundamental change of circumstances that defeats
the treaty's object and purpose (the latter is referred to as the
doctrine of rebus sic standibus).
\3\ The Brussels Process is described in Declaration of Christopher
R. Hill, Director, Office of South Central European Affairs, United
States Department of State, filed in Federal Republic of Yugoslavia v.
Park-71st Corp., No. 95 Civ. 3659 (AGS) (S.D.N.Y.) (Sept. 21, 1995),
complaint dismissed, 913 F.Supp. 191 (S.D.N.Y. 1995) (App. 1). See also
The Ottoman Debt Arbitration (1925), I.R.I.A.A. 529 (debt of the
dissolved Ottoman Empire); Administration of Finances v. Ornstein, Ann.
Dig. 75 Roumanian Court of Cassation, Third Chamber (1926) (debt of a
successor of the Austro-Hungarian Empire); Restatement (Third) of the
Foreign Relations Law of the United States Sec. 209 (1986); P. K.
Menon, The Succession of States in Respect to Treaties, State,
Property, Archives and Debt 158-201 (1991); Parry and Grant,
Encyclopedic Dictionary of International Law 279 (1986); Thomas Baty,
Division of States: Its Effect on Obligations, 9 Transactions of the
Grotius Society, Problems of War and Peace 119, 121-26 (1923)
(published on behalf of the British Institute of International and
Comparative Law (1962)); Arthur Berridale Keith, The Theory of State
Succession with Special Reference to English and Colonial Law 99-100
(1907).).
---------------------------------------------------------------------------
This Memorandum attempts to describe international law as it would
be understood by a disinterested judicial tribunal resolving a dispute
between two States as to whether a particular treaty is in force
between them. This analysis assumes that the tribunal would (i) decide
for itself the relevant questions of fact and law and (ii) give the
parties' contentions the weight they deserved but would not be bound by
these contentions.
C. Summary of Conclusions
The pertinent sources of international law support the conclusion
that, upon the USSR's extinction, the ABM Treaty lapsed, so it no
longer has the force of international law. This conclusion is based on
the following observations:
1. In December 1991, as accurately characterized by
declarations of the CIS States and of the United States, the
changes that had recently occurred on what had been the USSR's
territory caused the USSR, by operation of law, to cease to
exist as a State--that is, such changes brought to an end the
international legal personality of the USSR.
2. The ABM Treaty of 1972 was a bilateral treaty.
3. The opinions of recognized scholars constitute evidence of
customary international law in a case in which there is (a) no
controlling judicial decision, (b) no controlling State
practice and (c) no otherwise controlling treaty.
4. Scholars are nearly unanimous in concluding that, upon a
State's extinction, its bilateral treaties that are not
``dispositive'' do not by operation of law, i.e.,
automatically, become treaties between the extinct State's
successor and the extinct State's treaty partner--that is, such
bilateral treaties lapse.
5. No judicial decision contradicts the scholarly view that a
non-dispositive bilateral treaty of an extinct State does not
automatically become a treaty of its successor or successors.
The U.S. practice is generally consistent with the scholars'
view.
6. The United States has never before considered itself bound
by international law to accept as its treaty partner the
successor to an extinct State.
7. The 1978 Vienna Convention on Succession of States in
Respect of Treaties does not bind the United States because the
United States is not a party to the Convention.
8. The 1978 Convention in any event would not impose the ABM
Treaty on the United States because the imposition would be
incompatible with the ABM Treaty's object and purpose.
9. Article 34.1 of the 1978 Vienna Convention on the
succession of States in Respect of Treaties has not passed into
customary international law.
10. The ABM Treaty did not become a treaty between the United
States and the Russian Federation by devolution.
11. The ABM Treaty was not a dispositive treaty.
ii. u.s. constitution
This Memorandum deals primarily with the international law issues
relating to the current legal status of the ABM Treaty of 1972. As the
Dellinger Paper, however, puts forward a combination of international
law and U.S. Constitutional law arguments, it is necessary to say why
Dellinger's Constitutional law contentions are erroneous.
The Dellinger Paper asserts that, regardless of whether under
international law the ABM Treaty of 1972 became a treaty with the
Russian Federation, an ABM treaty was brought into existence by
agreement of the Russian Federation and the President of the United
States, notwithstanding the absence of U.S. Senate advice and consent.
Dellinger contends that the terms of what he argues is an ABM treaty
between the United States and the Russian Federation are not so
different from those of the ABM Treaty of 1972 as to constitute a
substantive amendment of the latter. Dellinger does not argue that an
amendment to the ABM Treaty could have been Constitutionally
accomplished by an ``Executive Agreement''--that is, by an agreement
that would not have required Senate action. Rather, he cites powers--
i.e., to interpret treaties, to implement treaties, and to recognize
the existence of foreign States--that he asserts rest ``exclusively''
with the President. Dellinger also seems to argue that the Senate is
imputed with knowledge of the breadth (as Dellinger understands it) of
Presidential power vis-a-vis treaty-making, and therefore that, when
the Senate consents to a treaty, it implicitly authorizes later
Presidents to decide without further Senate consent whether the treaty
should become a treaty with a successor to the extinct State with which
the treaty had been made.\4\
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\4\ Dellinger does not espouse, and this Memorandum therefore does
not address, the thesis stated in Bruce Ackerman and David Golove, Is
NAFTA Constitutional?, 108 Harv. L. Rev. 799 (1995), that in the 1940s,
Congress and the President, without following a process for amendment
specified in Article V, expunged from the Constitution the requirement
of Article II that treaties require the concurrence of two-thirds of
the Senators present. For a skeptical view of the Ackerman/Golove
thesis, see Lawrence H. Tribe, Taking Text Seriously: Reflections on
Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev.
122 (1995).
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Dellinger's interpretation of the Constitution here is flawed. The
principal errors are these:
A. The President Does Not Have Exclusive Authority to Interpret
Treaties
Treaties, like statutes, are the supreme law of the land--under the
United States Constitution, Art. VI. Cl. 2 \5\--and, as a consequence:
``[T]he courts have authority to construe treaties. . . .'' \6\
Therefore, the Constitution vests in U.S. courts the authority to
interpret treaties definitively. In exercising that authority, courts
say they give great weight to interpretations suggested by the
Executive Branch,\7\ but the courts are not bound by those suggestions
and have on occasion rejected them.\8\
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\5\ U.S. Const. art. VI, cl. 2. See Foster v. Neilson, 27 U.S. (2
Pet.) 253 (1829); United States v. Schooner Peggy, 5 U.S. (1 Cranch.)
103 (1801); British Caledonian Airways Ltd. v. Bond, 665 F.2d 1153,
159-62 (D.C. Cir. 1981); Kenneth C. Randall, The Treaty Power, 51 Ohio
St. L.J. 1089, 1110-12 (1990)./
\6\ Japan Whaling Ass'n v. American Cetacean Society, 478 U.S. 221,
229 (1986), citing Baker v. Carr, 369 U.S. 186, 217 (1969), as holding
that ``courts have authority to construe treaties and executive
agreements.'' Doe v. Braden, 57 U.S. (16 How.) 635, 657 (1853);
Valentine v. United States, 299 U.S. 5, 11 (1936); Xerox Corp. v.
United States, 41 F.3d 647, 652 (1995); Alcan Aluminum Corp. v. United
States, 986 F. Supp. 1436, 1440 (Ct. Int'l Trade 1997), Snap-On Tools,
Inc. v. United States, 26 Cl. Ct. 1045, 1064 (Cl. Ct. 1997); United
States v. Busby, 1996 WL 927938 (N.M. Ct. Crim. App.) 3 (1996). For a
discussion of the principles courts use in interpreting treaties, see
James C. Wolf, The Jurisprudence of Treaty Interpretation, 21 U.C.
Davis L. Rev. 1023 (1988). Wolfe provides a list of 65 Supreme Court
decisions interpreting treaties, from 1795 to 1988. Id. at 1025 n.14.
\7\ United States v. Stuart, 489 U.S. 353, 369 (1989); Sumitomo
Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180-85 (1982); Kolovrat
v. Oregon, 366 U.S. 187, 194-95 (1961); The Amiable Isabella, 19 U.S.
(6 Wheat.) 1, 71 (1821); Air Canada v. United States Dept. of
Transportation, 843 F.2d 1483, 1487 (D.C. Cir. 1988). See also Military
Payment Orders and Certificates Issued to Prisoners of War--Treaty
Interpretation Claims Before and Subsequent to Treaty, 38 Comp. Gen. 7,
8 (B-136066, July 7, 1958) (``When there is a doubt as to the meaning
of a treaty provision, the construction of the treaty by the political
department of the government, while not conclusive, is given
weight.''); Sullivan v. Kidd, 254 U.S. 433, 442 (1920) (``While the
question of the construction of treaties is judicial in nature, . . .
the construction placed upon the treaty . . . by the Executive
Department . . . should be given much weight.'')./
\8\ David J. Bederman, Revivalist Canons and Treaty Interpretation,
41 U.C.L.A. L. Rev. 953, 962 (1994). See also Chan v. Korean Air Lines,
Ltd., 490 U.S. 122, 133-34 (1989) (Court rejects Executive Branch
interpretation of Article of the Warsaw Convention for the Unification
of Certain Rules Relating to International Transportation By Air);
Perkins v. Elg, 307 U.S. 325, 334-41 (1939) (Court rejects State
Department interpretation of treaty between United States and Sweden
relating to citizenship and naturalization); Haitian Centers Council,
Inc. v. McNary, 969 F.2d 1350, 1361-65 (2nd Cir. 1992), cert. granted,
judgment vacated as moot, Sale v. Haitian Centers Council, Inc., 509
U.S. 918 (1993) (Court of Appeals rejects as ``untenable'' the
Executive Branch interpretation of the 1951 Convention Relating to the
Status of Refugees, 969 F.2d at 1362); British Caledonian Airways Ltd.
v. Bond, 665 F.2d 1153, 1160-61 (1981) (court rejects Executive Branch
interpretation of Convention on International Civil Aviation); Galanis
v. Pallanck, 568 F.2d 234, 239 (2d Cir. 1977); Greci v. Birknes, 527
F.2d 956, 960 (1st Cir. 1976); Cannon v. U.S. Dept. of Justice, United
States Parole Commission, 973 F.2d 1190, 1192 (5th Cir. 1992); Mackin
v. United States, 668 F.2d 122, 132-43 (2d Cir. 1981); Abu Eain v.
Wilkes 641 F. 2d 504, 517-18 (7th Cir. 1981); Caltagirone v. Grant, 629
F.2d 739, 742-45 (2d Cir. 1980). Judicial treaty interpretation that
accepted as accurate the views of the Executive Branch include Kolovrat
v. Oregon, 366 U.S. 187, 192-93 (1961); Bacardi Corp. of America v.
Domenech, 311 U.S. 150, 157-64 (1940); Jordan v. Tashiro, 278 U.S. 123,
127-30 (1928).
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Perhaps the most celebrated case of judicial rejection of an
Executive Branch treaty interpretation is United States v. Libellants
and Claimants of the Schooner Amistad,\9\ the subject of the motion
picture ``Amistad.'' In that case, inhabitants of Africa who had been
kidnapped by Spaniards in violation of the laws of Spain mutinied on
the high seas and were later apprehended in Connecticut by American
officials. The Attorney General asked the court to order that the
detainees be delivered to persons claiming to be the detainees''
owners. The Attorney General argued that the Treaty of 1795 between the
United States and Spain should be construed to deny a person held in
custody a right to assert that he is not anyone's property. The Court,
per Justice Story, rejected the Attorney General's interpretation of
the Treaty: ``[T]he Treaty with Spain never could have intended to take
away the equal rights of all foreigners, who should contest their
claims before any of our Courts, to equal justice . . ..'' \10\
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\9\ 40 U.S. (15 Pet.) 518 (1841).
\10\ Id. at 596.
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Moreover, it is often impossible to measure the ``weight'' a court
gives to an Executive Branch view, because, at the same time that the
court announces that it is giving the Executive Branch view great
weight, the court has independently satisfied itself of the correctness
of that view. Thus, one court said it concurred in the State
Department's view because that view was ``coupled'' with the court's
conclusion that the view was ``based on supporting facts.'' \11\
Another court accepted the Executive Branch's interpretation of a
treaty after ``finding it well-founded and supported by the weight of
legal authority.'' \12\ One commentator observed:
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\11\ Matter of the Extradition of Demjanjuk, 612 F. Supp. 544, 562-
63 (N.D. Ohio 1985).
\12\ Ivancevic v. Artukovic, 211 F.2d 565, 573 (9th Cir.), cert
denied, 348 U.S. 818 (1954).
A typical passage from a court opinion interpreting a treaty
will begin with the acknowledgment that ``the views of the
State Department are ordinarily entitled to great weight'', but
then will go on to say in words or substance that ``we find
them wholly unpersuasive in the present case. . . .'' The
judicial adjectives to describe the State Department's various
communications on the meaning and application of the treaty
ranged from ``entirely conclusory'' to ``largely
insignificant'' to ``an aberration.'' \13\
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\13\ Lori Fisler Damrosch, Application of Customary International
Law by National Tribunals, 76 Am. Soc'y Int'l. L. Proc. 231, 252 (Apr.
22-24, 1982).
The most recent Supreme Court opinion interpreting a treaty, Sale
v. Haitian Centers Council, Inc.,\14\ devoted ten pages to an analysis
of the meaning of Article 33 of the 1951 Convention relating to the
Status of Refugees, including an examination of the history of the
drafting of the Convention, and a review of English-French dictionaries
to determine how the parenthetical use of ``refouler'' contributed to
understanding the meaning of the phrase ``expel or return
(``refouler'').'' That exercise would have represented needless effort
if the Court had believed that the Executive Branch's interpretation of
Article 33 was necessarily controlling.
---------------------------------------------------------------------------
\14\ 509 U.S. 155, 177-87 (1993).
---------------------------------------------------------------------------
One scholar observed:
Yet it is clear that the President's interpretive power is
limited. He cannot make an altogether new treaty and dispense
with the requirement of Senate advice and consent by calling
that treaty an ``interpretation'' of an earlier one. . . . The
President's semantic denomination of his act cannot by itself
control the procedure constitutionally required.\15\
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\15\ Michael J. Glennon, Constitutional Diplomacy 134 (1990). From
1977 to 1980, Professor Glennon was Legal Counsel to the United States
Senate Foreign Relations Committee.
The Judiciary's power to interpret treaties includes the power to
determine whether a treaty continues to exist. One court observed that
in exercising the power to decide whether a treaty exists, the court
gives weight to the Executive Branch's view when the court is satisfied
that that view ``is based on supporting facts.'' \16\
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\16\ Ivancevic v. Artukovic, 211 F.2d 565, 573 (9th Cir.), cert.
denied, 348 U.S. 818 (1954). In articulating the rule that courts
should give great weight to the Executive Branch view, courts place
varying degrees of emphasis on the weight they say they are giving to
the view of the Executive Branch. See, e.g., Terlinden v. Ames, 184
U.S. 270, 285 (1902), which, after reviewing the history of the
creation of the German Empire in the Nineteenth Century, found that in
the creation of the Empire, the Kingdom of Prussia had not lost its
identity, and therefore that the Treaty of extradition between the
United States and the Kingdom of Prussia remained in effect unless it
had later been terminated by one of the parties. On the issue of
whether the Treaty had been terminated, the court found no evidence of
``governmental action'' to terminate. The Court's inquiry into the
German Empire's constitution and the international law of treaties and
state succession in order to determine whether the treaty with Prussia
survived the formulation of the German Empire has been characterized as
``an ordinary adjudication in which the Court plays its usual role,
albeit with some deference to the evidence adduced by government
experts.'' Thomas M. Franck, Political Questions/Judicial Answers: Does
the Rule of Law Apply to Foreign Affairs? 23-25 (1992). Also, see Then
v. Melendez, 92 F.3d 851, 854 (9th Cir. 1996), which examined the
history of extradition treaties between the United States and the
United Kingdom to satisfy itself that none of the changes that occurred
when the British colony of Singapore emerged as an independent State
nullified, as to territory within Singapore, the 1931 U.S.-U.K.
extradition treaty. In reaching that conclusion, the court said it had
given great weight to the views of the Executive Branch as to the
historical facts, because ``federal courts are not as well equipped as
the Executive Branch to determine when the emergence of a new country
brings changes that terminate old treaty obligations.'' Similarly, in
Arnbjornsdottir-Mendler v. United States, 721 F.2d 679 (9th Cir. 1983),
after giving ``deference'' to the Executive Branch on extradition
matters, and after having made ``an independent review'' of Iceland's
``historical continuity,'' the court concluded that an extradition
treaty existed between the United States and Iceland. One Court of
Appeals decision, Saroop v. Garcia, 109 F. 3d 165 (3d Cir. 1997),
contains language to the effect that whether a treaty exists between
the United States and another State is a ``political question'' that no
American court has capacity to decide. That language was not necessary
to resolve the case, because the court held that in any event on the
question before it, the court would, as a matter of ``comity,'' defer
to a decision of the highest court of Trinidad and Tobago. In any
event, the discussion of the political question doctrine at notes 17-
20, infra, shows that the Executive Branch is expected to stay within
its zone of Constitutional authority, even when a case challenging its
encroachment cannot be presented to a court in a justiciable form.
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The preceding description of judicial paramountcy in treaty
interpretation is not intended to imply that every separation-of-power
dispute can be resolved by a court. Some cannot be so resolved, because
they are ``political'' questions, and therefore non-justiciable. For
example, whether a particular state measure fulfills the Constitution's
guaranty of a ``republican form of government'' is a non-justiciable
political question.\17\ But the fact that a particular action of the
Executive Branch cannot be tested in court does not give that Branch
carte blanche to encroach on another Branch. The Supreme Court made the
point in 1992 in United States Dept. of Commerce v. Montana: \18\
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\17\ Colegrove v. Green, 328 U.S. 549 (1946). See also Baker v.
Carr, 369 U.S. 186, 209 (1962).
\18\ 503 U.S. 442, 457-58 (1992).
In invoking the political question doctrine, a court
acknowledges the possibility that a constitutional provision
may not be judicially enforceable. Such a decision is of course
very different from determining that specific congressional
---------------------------------------------------------------------------
action does not violate the Constitution. (emphasis added)
As A.A.G. Dellinger stated in a May 1996 opinion, the Executive
Branch has an ``independent constitutional obligation to interpret and
apply the Constitution.'' \19\ Dellinger also stated that the Congress
as well as the President has a duty to resist unconstitutional
encroachment by the other Branch. Dellinger invoked a 1933 opinion of
Attorney General Mitchell:
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\19\ Walter Dellinger, Assistant Attorney General, Memorandum for
the General Counsels of the Federal Government, The Constitutional
Separation of Powers Between the President and Congress (May 7, 1996),
1996 WL 876050.
Since the organization of the Government, Presidents have
felt bound to insist upon the maintenance of the Executive
functions unimpa[i]red by legislative encroachment, just as the
legislative branch has felt bound to resist interferences with
its power by the Executive.\20\
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\20\ Opinion of Attorney General William Mitchell,
Constitutionality of Proposed Legislation Affecting Tax Refunds, 37 Op.
Att'y Gen. 56, 64 (Jan. 24, 1933).
In short, absence of an opportunity for judicial review for a
particular treaty interpretation would not give the President authority
to encroach on the Senate's power of advice and consent, or to arrogate
to himself the Congress'' power to nullify a treaty by means of a
statute that came into law without the President's signature, i.e., by
an override of a Presidential veto.
The rule that the Judiciary has the last word on treaty
interpretation was not impaired by the announcement in the Curtiss-
Wright Export case in 1936 that the President is the ``sole organ'' of
the federal government in the field of international relations.\21\
After Curtiss-Wright, as well as before, the Judiciary, not the
President, interpreted treaties definitively. That is not surprising,
given the narrowness of the issue resolved in Curtiss-Wright, i.e.,
whether the Congress, by Joint Resolution, could validly authorize the
President to issue regulations prohibiting a violation of a Joint
Resolution, when the President issued the proclamation the same day as
the Joint Resolution was adopted by both Houses.
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\21\ United States v. Curtiss-Wright Export Corp., 299 U.S. 304
(1936). For critical analyses of the ``sole organ'' dictum, see David
Gray Adler & Larry N. George, The Constitution and the Conduct of
American Foreign Policy 37-38 (1996); Raul Berger, Executive Privilege:
A Constitutional Myth, 133-35; Arthur Bestor, Respective Roles of
Senate and President in the Making and Abrogation of Treaties--The
Original Intent of the Framers of the Constitution Historically
Examined, 55 Wash. L. Rev. 1, 73-106 (1979); Randall, supra note 5, at
1106-11.
---------------------------------------------------------------------------
In the sixty-two years that followed the decision in Curtiss-
Wright, the Supreme Court has not invoked the ``sole organ'' doctrine
to deprive the judiciary of ultimate authority to interpret treaties.
Indeed, soon after Curtiss-Wright, the Court decided Guaranty Trust Co.
v. United States.\22\ The Court construed an executive agreement
between the United States and the Soviet Union (an agreement as to
which Senate advice and consent had not been obtained). In United
States v. Pink \23\ the Court referred to Guaranty Trust as supporting
the proposition that ``[e]ven Treaties with foreign nations will be
carefully construed so as not to derogate from the authority and
jurisdiction of the States.'' To the same purpose, the Court cited
Todok v. Union Bank of Harvard, Nebraska,\24\ construing a treaty
between the United States and Norway on testamentary disposition, where
``[t]he only question before us is the construction of the treaty.''
\25\
---------------------------------------------------------------------------
\22\ 304 U.S. 126 (1938).
\23\ 315 U.S. 203 (1942).
\24\ 281 U.S. 449 (1930).
\25\ Id. at 452.
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In short, whatever the sole organ doctrine may mean in other
contexts, it does not mean that the Executive Branch has exclusive
authority to interpret treaties. Indeed, it does not override the
judicial paramountcy in the interpretation of treaties.
Moreover, in light of the rule that a treaty, like a statute, is
the supreme law of the land,\26\ if the President had the final power
to interpret a treaty, he would have the de facto power to nullify or
``dispense with'' or ``suspend'' a treaty--that is, he would have a
power to suspend or dispense with a law. But the President has no power
to ``dispense with'' or to ``suspend'' a law--a principle announced in
United States v. Smith in 1806, which held that President James Madison
was bound by an Act of Congress that prohibited citizens from carrying
on war against a nation with which the United States was at peace.\27\
As the Court explained, ``because the President does not possess a
dispensing power,'' he cannot authorize anyone to disregard a
statute.\28\
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\26\ Reid v. Covert, 354 U.S. 1, 33 n.34 (1957); Whitney v.
Robertson, 124 U.S. 190, 194 (1888); Head Money Cases (Edy v.
Robertson), 112 U.S. 580, 599 (1884); Committee of the United States
Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 936 (D.C. Cir.
1988). As a consequence of the rule that a treaty, like a statute, is
the supreme law of the land, if a statute and a treaty conflict, ``the
one last in date will control the other.'' Whitney v. Robertson, 124
U.S. 190, 194 (1888) (plurality opinion), quoted in Breard v. Gilmore,
523 U.S. 371 (1998). To like effect is Reid v. Covert, 354 U.S. 1, 18
(1957).
\27\ The question of Presidential authority to terminate a treaty
unilaterally was the subject of Goldwater v. Carter, 617 F.2d 717 (D.C.
Cir.), vacated on other grounds, 444 U.S. 996 (1979), discussed infra.
\28\ United States v. Smith, 27 F. Cas. 1192 (C.C.D.N.Y. 1806). To
like effect is Kendall v. United States ex rel Stokes, 37 U.S. (12
Pet.) 524, 613 (1838) (The Supreme Court, in declaring invalid the
refusal of President Andrew Jackson's Postmaster-General to execute a
statute requiring payments to postmasters, stated that, allowing the
Postmaster-General, on the President's authority, to refuse to execute
a statute, ``would be vesting in the President a dispensing power,
which has no countenance for its support in any part of the
constitution; and is asserting a principle, which, if carried out in
its results, to all cases falling within it, would be clothing the
President with a power entirely to control the legislation of congress,
and paralyze the administration of justice.'')
---------------------------------------------------------------------------
In 1972, in United States v. Monongahela Connecting Railroad
Co.,\29\ District Judge Dumbauld stated: ``Of course there is no
``dispensing power'' in an executive or administrative agency unless
Congress has specifically granted it.'' Judge Dumbauld cited his own
work, Edward Dumbauld, The Constitution of the United States 7, 12
(1964), which describes the struggle between James II and the
Parliament that led to James II's abdication and exile, and the
acceptance by William and Mary in 1689 of the Bill of Rights, the first
article of which recites, ``That the pretended power of suspending
laws, of the execution of laws, by regal authority, without consent of
parliament is illegal.'' Id. at 12. That event is said to have
established that the King had no dispensing or suspending power, and
therefore made it unnecessary for the Framers of the Constitution to
make express that they were not allocating to the office of the
President a power to dispense with law. ``[N]ot even the most ardent
Antifederalists feared that the Constitution of 1787 had given the
President a power to suspend the laws.'' \30\
---------------------------------------------------------------------------
\29\ 351 F. Supp. 696, 698 (W.D. Pa. 1972).
\30\ Christopher N. May, Presidential Defiance of
``Unconstitutional Laws': Reviving the Royal Prerogative, 21 Hastings
Const. L.Q. 865, 885-88 (1994). See also National Treasury Employees
Union v. Nixon, 492 F.2d 587, 604 (D.C. Cir. 1974), quoting Kendall v.
United States on the lack of dispensing power, in explanation of why
the Court had jurisdiction to declare that the President had not obeyed
the Federal Pay Comparability Act. Similarly, in 1975, in Michigan Head
Start Directors Ass'n v. Butz, 397 F. Supp. 1124 (W.D. Mich. 1975), the
court based its decision ordering the Secretary of Agriculture to
comply with the National School Lunch Act on the absence of a
Presidential power to suspend legislation, ``a power not enjoyed by the
English Monarch since the Glorious Revolution of 1688.'' Also, in
Ameron, Inc. v. United States Army Corps of Engineers, 610 F. Supp. 750
(D.N.J. 1985), aff'd as modified, 787 F.2d 875 (3d Cir. 1986), aff'd on
reh'g, 809 F.2d 979 (3d Cir. 1986), the District Court describes James
II's forced exile, and the acceptance of England's Bill of Rights by
William and Mary as the foundation for ``[t]he rule that no executive
official can decide for himself what laws he is bound to obey, but must
await the decisions of the Judiciary and until then must obey the laws,
[a rule that] has deep roots in our constitutional history.'' Also, the
duty to execute the law faithfully is viewed as a sign of the non-
existence of Presidential suspending power. Statement on Behalf of the
Office of General Counsel to the Clerk of House of Representatives
Regarding The Executive Branch's Declaration That The Competition in
Contracting Act Is Unconstitutional, Hearings Before a Subcommittee of
the Committee on Government Operations, House of Representatives, on
Constitutionality of GAO's Bid Protest Function, 99th Cong., 1st Sess.
(Feb. 28; March 7, 1985) ('Scholars have concluded that the ``faithful
execution'' clause of our Constitution is a mirror of the English Bill
of Rights'' ``abolition of the suspending power,'' that is, the
abolition of what the English Bill of Rights has called ``the pretended
[Royal] power of Suspending . . . the Execution of Laws.'') The same
point is made in a Statement of Senator William S. Cohen and Senator
Carl Levin in Hearings on the Constitutionality of GAO's Bid Protest
Function Before a Subcommittee of the committee on Government
Operations, House of Representatives, 99th Cong., 1st Sess. 486, 490
(Feb. 28, March 7, 1985) (``Absent a court ruling, we strongly believe
that a unilateral decision by the Executive Branch to refuse to enforce
a statute constitutes a usurpation of the proper role of the judiciary
and a failure of the President to meet his constitutional
responsibility to take Care that the Laws be faithfully executed.'').
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The most recent decision on the question of whether the President
has dispensing power is Spence v. Clinton, a District Court decision in
1996. It explains why the President had no authority to ``defy'' the
Ballistic Missile Act of 1995. The court stated:
Such an outcome would [give] the President the ability to
nullify duly authorized congressional actions. The Founding
Fathers strongly believed that such a power would be dangerous
and unwarranted. Constitutional scholars speak with one voice
in concurring with this assessment.\31\
---------------------------------------------------------------------------
\31\ Spence v. Clinton, 942 F. Supp. 32, 38 (D.D.C. 1996)
(footnotes omitted).
---------------------------------------------------------------------------
In support of that observation, the court quoted James Madison:
To give such a prerogative would certainly be obnoxious to
the temper of this country.\32\
---------------------------------------------------------------------------
\32\ I.M. Farrand, The Records of the Federal Constitution of 1787
100 (1966).
Nothing in Goldwater v. Carter,\33\ is to the contrary. That case
involves undoing a treaty with one regime claiming to govern China and
recognizing a different regime claiming to be the government of China.
Neither regime nor the United States claimed that China had ceased to
exist. The case arose out of these events: In 1954 the United States
entered into a Mutual Defense Treaty that on its face was a treaty
between the United States and China. The Treaty was signed by a person
who was part of a government situated on Taiwan calling itself the
Republic of China, (the ``ROC'') and claiming authority over the entire
territory of China, including the Chinese Mainland. At that time, and
ever since, a government situated on the Mainland, and calling itself
the ``People's Republic of China'' (``PRC'') claimed authority over the
entire territory of China, including Taiwan. In 1978, President Jimmy
Carter announced that the United States would terminate the Mutual
Defense Treaty that had been made with the Taiwan-based government.
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\33\ Goldwater v. Carter, 444 U.S. 996 (1979).
---------------------------------------------------------------------------
Senator Barry Goldwater brought suit in a District Court, asking
the Court to declare that without the consent of the Senate, President
Carter lacked authority to terminate the Treaty. Senator Goldwater
asserted that termination without Senate deliberation would deprive him
of an opportunity to vote on the question of whether the Treaty should
be terminated. A majority of Justices of the Supreme Court concluded
that Senator Goldwater's case should be sent to the District Court to
be dismissed, but no majority could agree on the reasons for that
result. Four Justices (Rehnquist, Burger, Stewart and Stevens) said
that to decide whether the Senate had authority to participate in a
treaty-termination decision would be to decide a non-justiciable
``political question,'' i.e, not the kind of controversy that the
Constitution vested authority in the Judiciary to decide. Justice
Marshall gave no reason for his decision in favor of dismissal. Justice
Powell said that he considered the question to be justiciable, but
supported dismissal on the ground that it was not ripe for decision,
because the Congress had not yet challenged the President's authority
by ``appropriate formal action.'' 444 U.S. at 536. Two of the Justices
who voted to hear the case (Blackmun and White) said the case was ripe,
and therefore should be heard on the merits. Justice Brennan expressed
the view that the case was justiciable, and that the lower court had
correctly decided the case to the extent that it rested on the
principle that the President had exclusive authority ``to recognize,
and withdraw recognition from, foreign governments.''
Given the absence of a majority explanation of the reason for the
result, Goldwater v. Carter has little value for predictive
jurisprudence with respect to treaties with a State that has not lost
its existence but only changed its government, let alone with respect
to treaties of a State that has ceased to exist.
In any event, even the Judiciary's power to interpret treaties
definitively must be exercised so as to avoid making a significant
amendment, because that too would trench upon the Senate's power to
give advice and consent to the making of the treaty. One court
explained:
A significant amendment to a treaty must follow the mandate
of the Treaty Clause and therefore must be proposed by the
President and be ratified following the advice and consent of
the Senate.\34\
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\34\ New York Chinese TV Programs, Inc. v. U.E. Enters., Inc., 954
F.2d 847, 853 (2d Cir. 1991), cert. denied, 506 U.S. 827 (1992).
---------------------------------------------------------------------------
Similarly,
Courts are not authorized to annul or disregard provisions of
a treaty
. . . since an annulment or disregard would constitute a
modification of the treaty, and treaty modifications are solely
within the province of the Senate.\35\
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\35\ In re Air Crash Disaster at Warsaw Poland on March 14, 1980,
535 F. Supp. 833, 843 (E.D.N.Y. 1982), aff'd, 705 F. 2d. 85 (2d. Cir.),
cert. denied, 464 U.S. 845 (1983). See also Testimony of Columbia Law
School Professor Louis Henkin, in Joint Hearings before the Committee
on Foreign Relations and the Committee on the Judiciary, United States,
Senate, 100th Cong. 1st Sess., on the ABM Treaty and the Constitution
881 (March 11, 1987).
---------------------------------------------------------------------------
B. The President Does Not Have Exclusive Authority to Implement
Treaties
While Dellinger argues that the President has exclusive authority
to implement treaties, the Constitution vests in the Congress the
authority to make all laws ``necessary and proper'' to implement, i.e.,
to ``carry into execution,'' not only all the law-making powers
enumerated in Article I, section 8, but also ``all other powers vested
by this Constitution in the Government of the United States or in any
Department or Officer thereof.'' \36\ The recognized powers of Congress
to implement (or fail to implement) a treaty ``by an apportionment or
other law essential to its effectuation, . . . are legislative powers,
not treaty-making or treaty-termination powers.'' \37\
---------------------------------------------------------------------------
\36\ Neely v. Henkel, 180 U.S. 109, 121 (1901) (The necessary and
proper clause of U.S. Constitution Article 1, section 8 ``includes the
power to enact such legislation as is appropriate to give efficacy to
any stipulations which it is competent for the President by and with
the advice and consent of the Senate to insert in a treaty with a
foreign power.'') To like effect are Missouri v. Holland, 252 U.S. 416,
432-33 (1920); United States v. Lue, 134 F.3d 79, 82 (2d Cir. 1998);
Goldwater v. Carter, 617 F.2d 697, 717 (D.C. Cir.), vacated on other
grounds, 444 U.S. 996 (1979).
\37\ Peter M. Shane & Harold H. Bruff, Separation of Powers Law:
Cases and Materials 621 (1996).
---------------------------------------------------------------------------
Hence, the Congress has the authority to make laws implementing
treaties. It follows that the President can no more create a treaty by
calling its creation an implementation than he can create a statute by
calling its creation an implementation of another statute.
C. Presidential Authority to Grant Formal Recognition to Foreign States
Does Not Imply Authority to Make Treaties with Those States
Without Senate Concurrence
As a matter of international law, when a U.S. President grants
recognition to a foreign State, the President imposes no duty or
obligation on the United States that the United States would not in any
event be obliged to discharge. In contrast, when a U.S. President
brings a treaty into force, its terms must be fulfilled (unless there
is a valid ground under international law, such as coercion or fraud,
for not fulfilling them.).\38\
---------------------------------------------------------------------------
\38\ Factor v. Laubenheimer, 290 U.S. 276, 298 (1933) (``Until a
treaty has been denounced, it is the duty of both the government and
the courts to sanction the performance of the obligations reciprocal to
the rights which the treaty declares and the government asserts even
though the other party to it holds a different view of its meaning.'');
United States v. Kirby, 106 F.3d 855, 859 (9th Cir. 1997); United
States v. A.L. Burbank & Co., Ltd., 575 F.2d 9, 22 (2d Cir. 1975).
J.H.H. Weiler & Ulrich R. Haltern, The Autonomy of the Community of
Legal Order--Through the Looking Glass, 37 Harv. Int'l L.J. 411, 441
(1996).
---------------------------------------------------------------------------
The Constitution, Art. II. sec. 3, requires the President to
``receive Ambassadors and other public Ministers,'' a provision that
implies authority to determine whether a particular person is a bona
fide representative of a particular foreign State. In turn, that
implies that the President has authority to determine whether or not
such a foreign State exists. An entity exists as a State if it meets
the test of Statehood, i.e., has a defined territory and a permanent
population, controls its own governance, and has the capacity to
conduct formal relations with States.\39\ International law requires
that each other State treat that entity as a State, irrespective of
whether such other State has ``formally'' recognized that entity as a
State.\40\
---------------------------------------------------------------------------
\39\ Restatement (Third) of the Foreign Relations Law of the
United States Sec. 201 (1986). The law pertaining to the recognition
of a State's existence is distinct from international law pertinent to
the recognition of the government of a State. Under international law,
a change in the government of a recognized State, without more, does
not impair the State's existence as a State. Edwin L. Fountain, Out
from the Precarious Orbit of Politics: Reconsidering Recognition and
the Standing of Foreign Governments to Sue in American Courts, 29 Va.
J. Int'l L. 473, 474-76 (1989); D.P. O'Connell, I International Law
127-28 (2d ed. 1970); Restatement (Third) of The Foreign Relations Law
of the United States Sec. 202, 203 (1986).
\40\ Id. at Sec. 202, cmt. c.
Recognition, as a public act of state, is an optional and
political act and there is no legal duty in this regard.
However, in a deeper sense, if an entity bears the marks of
statehood other states put themselves at risk legally if they
ignore the basic obligations of state relations. . . . In this
context of state conduct, there is a legal duty to accept and
apply certain fundamental rules of international law: there is
a legal duty to ``recognize'' for certain purposes at least,
but no duty to make an express, public, and political
determination of the question or to declare readiness to enter
into diplomatic relations by means of recognition. This latter
type of recognition remains political and discretionary.\41\
---------------------------------------------------------------------------
\41\ Ian Brownlie, Principles of Public International Law 94-95
(2d ed. 1973) (emphasis added) (footnote omitted). ``Recognition of
State is the affirmation, usually by the government of another state,
that a new nation has come into existence which, at least as far as the
recognizer is concerned, is subject to all the rights and duties of a
state in international law.'' Thomas M. Franck & Michael J. Glennon,
Foreign Relations and National Security Law: Cases, Materials and
Simulations 1021 (1993).
Were the President to use the recognition function to make a treaty
that would not otherwise exist, he would put the United States under a
legal obligation to other States without Senate advice and consent. In
short, there is no merit to Dellinger's suggestion that the exclusive
power to recognize States allows the President to make treaties without
Senate advice and consent. The President's recognition authority cannot
be exercised in a manner that would nullify the U.S. Senate's authority
to advise and consent on the making of a treaty.
Hence, if a foreign State ceases to exist under international law
and, consequently, a bilateral treaty between the extinct State and the
United States lapses, the President cannot use the ``receive
Ambassadors'' clause to bring a new treaty into force between the
United States and a successor to the extinct State without Senate
advice and consent. In other words, the President cannot, without
Senate approval, bring a lapsed treaty back to life by declaring that a
given foreign State is the successor or continuation of an extinct
State. Principles of international law govern the issue of the
extinction of States. However broad the President's authority may be to
recognize States and governments of States under the ``receive
Ambassadors'' clause, it is necessarily limited by the specific
Constitutional requirement for Senate advice and consent on the making
of treaties.
D. The Senate's Concurrence in the Making of a Treaty With One State
Does Not Constitute Consent to the Making of a Treaty With a
Successor-State
When the Senate consents to a treaty with a given foreign State,
does it impliedly authorize future Presidents to make a treaty on the
same subject with a new State that is a successor to that given foreign
State? An affirmative answer would violate the rule against the
President's creating law unilaterally. A treaty cannot be interpreted
``[t]o alter, amend, or add to the Treaty, by asserting any clause,
whether small or great, important or trivial . . .'' \42\ In 1989, in
Chan v. Korean Air Lines, Ltd.,\43\ the Supreme Court invoked its 1821
decision in The Amiable Isabella \44\ to explain that an interpretation
that makes a change in a treaty ``whether small or great, important or
trivial'' would constitute a ``usurpation of power, and not an exercise
of judicial functions,'' adding: ``It would be to make, and not to
construe, a treaty.'' Though the caution in that case was aimed at
judges, it applies equally to interpretations by the Executive Branch
because it states that any change would be ``to make, not construe, a
treaty,'' a clear reference to the treaty-making process, of which
Senate advice and consent is an essential part. In light of that rule,
there is no room for an inference that Senate advice and consent
implicitly authorizes later changes by a President.
---------------------------------------------------------------------------
\42\ The Amiable Isabella, 19 U.S. 1 (6 Wheat.) 1, 71 (1821); Chan
v. Korean Air Lines, Ltd., 490 U.S. 122, 135-36 (1984); Kass v. Reno,
83 F.3d 1186, 1189 (10th Cir. 1996). See also The Society for the
Propagation of the Gospel in Foreign Parts v. New-Haven, 21 U.S. (8
Wheat.) 464, 490 (1823).
\43\ 490 U.S. 122, 134-135 (1989).
\44\ 19 U.S. (6 Wheat.) 1, 71 (1821).
---------------------------------------------------------------------------
In that regard, Dellinger appears to argue otherwise, conjecturing
that in 1972 the Senate must have known of what Dellinger argues was
past U.S. diplomatic practice with regard to State succession, i.e.,
when a State dissolves, its treaties with the United States bind the
United States vis-a-vis the extinct State's successor or successors.
Dellinger's assertion disregards the U.S. policy and practice of
regarding as lapsed an extinct State's bilateral treaties, a practice
that began at least as early as the annexation of the Kingdom of Hawaii
in 1898,\45\ and was recently manifested in dealing with all five
States that succeeded the extinct Yugoslavia.\46\ Thus, if any
conjecture about the Senate's 1972 understanding is warranted, the
reasonable conjecture is that it knew of the practice of regarding
extinct States'' treaties as lapsed. In any event, Dellinger does not
claim that, after the USSR's dissolution, the Senate consented to the
making of an ABM Treaty with the Russian Federation. Presumably,
Dellinger understands that ``Ordinarily, Congress'' silence is just
that--silence,'' \47\ and does not constitute the exercise of its power
to make or to repeal laws,\48\ including treaties.\49\
---------------------------------------------------------------------------
\45\ See Statement of Secretary Sherman to Japanese Minister,
described supra Part IV.D..
\46\ See discussion at IV.F.4, infra.
\47\ Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987).
\48\ Patterson v. McLean Credit Union, 491 U.S. 164, 175 (1989);
United States v. Wells, 519 U.S. 482, 495 (1997); NLRB v. Plasterers''
Local Union No. 79, 404 U.S. 116, 129-30 (1971).
\49\ TransWorld Airlines, Inc. v. Franklin Mint Corp., 466 U.S.
243, 252 (1984).
---------------------------------------------------------------------------
Finally, there is no evidence that after the USSR's dissolution,
the Senate, by voting on various ABM Treaty matters, consented to
bringing an ABM Treaty into force between the United States and the
Russian Federation. None of the laws passed since the USSR's extinction
that relate to the ABM Treaty contains words that can be fairly
construed as giving consent to the bringing into force of an ABM Treaty
that is not already in force. In construing a statute, its words are to
be given their plain meanings.\50\ Moreover, legislative history, an
aid to the construction of ambiguous words,\51\ contains no evidence
that either House of Congress, in voting on bills relating to ABM
Treaty matters, was voting to bring into force an ABM Treaty that was
not otherwise in force.
---------------------------------------------------------------------------
\50\ United States v. Gonzales, 520 U.S. 1 (1997).
\51\ Barnhill v. Johnson, 503 U.S. 393, 401 (1992).
---------------------------------------------------------------------------
Hence, if an ABM treaty now exists between the United States and
the Russian Federation, it exists only if, under international law, the
Treaty did not lapse upon the USSR's extinction.
None of the Dellinger Paper's arguments is supported by
international law. International law points to an opposite conclusion:
Upon the USSR's extinction, the ABM Treaty did not become a treaty
between the United States and the Russian Federation.
This Memorandum does not contend that the United States and the
Russian Federation cannot make a treaty between themselves or with
other States to limit ABM systems. But such a treaty would require the
concurrence of ``two thirds of the Senators present,'' as provided by
Article II, section 2 of the U.S. Constitution.
iii. factual background
As a predicate to the legal analysis below, it is useful to review
facts pertaining to the USSR's extinction and the U.S. State
Department's position thereon, President Clinton's position on the ABM
Treaty of 1972, and the purpose of the ABM Treaty of 1972 as seen by
the U.S. government at the time of Senate approval of ratification.\52\
---------------------------------------------------------------------------
\52\ Treaty Between the United States of America and the Union of
Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile
Systems (the ``ABM Treaty''), May 26, 1972, U.S.-U.S.S.R. (App. 2). The
Treaty was amended in 1974 to reduce the allowed number of ABM
deployment areas of each party from two to one. The United States chose
its ICBM emplacements near Grand Forks, North Dakota. The USSR chose
Moscow. Each party was given a single option to shift its defense area
upon advance notice at the time of scheduled 5-year Treaty review.
Protocol to the Treaty Between the United States of America and the
Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic
Missile Systems (App. 2) (including 1974 Protocol).
---------------------------------------------------------------------------
A. Extinction of the USSR
On December 8, 1991, at Minsk, the Republic of Belarus, the Russian
Federation ('RSFSR'') and Ukraine, as the USSR's founders and as
signatories to the Union Treaty of 1922 that created the USSR, declared
that the USSR, ``as a subject of international law and a geopolitical
reality no longer exists.'' \53\ Also, they signed the Agreement
Establishing the Commonwealth of Independent States. The Agreement
invited other States to join. On December 21, 1991, at Alma Ata, eight
other States joined.\54\ The Agreement included a provision supporting
the Russian Federation's assumption of the USSR's permanent seat in the
U.N. Security Council.
---------------------------------------------------------------------------
\53\ Agreement Establishing the Commonwealth of Independent States,
Dec. 8, 1991, Belarus-RSFSR-Ukraine, 31 I.L.M. 143 (App. 3).
\54\ Agreement Establishing the Commonwealth of Independent States,
Art. 12, Dec. 21, 1991, 31 I.L.M. 147-54 (App. 4).
---------------------------------------------------------------------------
President George Bush, in his December 25, 1991 address to the
nation on the CIS, said that ``The Soviet Union itself is no more.''
\55\ On January 22, 1992 President Bush, in addressing the
International Conference on Humanitarian Assistance to the former USSR,
referred to ``the dramatic revolution that swept away Soviet communism
and left in its place 12 new nations. . . .'' \56\ President Bush also
referred to the ``dissolution of the Soviet Union . . .''. \57\ On
April 1, 1992, President Bush referred to ``Russia, Ukraine and the
other new States that have replaced the Soviet Union.'' \58\ President
Bush stated that he was ``seeking to conclude trade, bilateral
investment and tax treaties with each of the new Commonwealth States.''
\59\
---------------------------------------------------------------------------
\55\ President George Bush, Address to the Nation on the
Commonwealth of Independent States, 27 Weekly Comp. Pres. Doc. 1883
(Dec. 25, 1991) (App. 5).
\56\ President George Bush, Address to the International Conference
on Humanitarian Affairs (Jan. 22, 1992), in I Public Papers of the
President of the United States, George Bush 127 (GPO 1993) [hereinafter
Public Papers] (App. 6).
\57\ Id.
\58\ President George Bush, Statement at News Conference on Aid to
the States of the Former Soviet Union, in Public Papers, supra note 36,
at 522 (App. 6).
\59\ President George Bush, Remarks to the American Society of
Newspaper Editors, in Public Papers, supra note 36, at 566 (App. 6).
---------------------------------------------------------------------------
B. State Department Study of the Effect of the USSR's Extinction
In early 1992, State Department Legal Adviser Edwin D. Williamson
announced that the State Department was conducting a study of the
effect of the USSR's extinction on its treaties with the United States,
including the ABM Treaty.\60\ In 1997, President Clinton described the
process as follows:
---------------------------------------------------------------------------
\60\ Edwin D. Williamson, Remarks on State Succession and Relations
with Federal States, 86 Am. Soc. of Int'l L. Ann. Meeting Procs. 10, 12
(Apr. 1-4, 1992).
When the USSR dissolved at the end of 1991, it became
necessary to reach agreement as to which former Soviet States
would collectively assume its rights and obligations under the
[ABM] Treaty (which clearly continued in force by its own
terms). The United States took the view that, as a general
principle, agreements between the United States and the USSR
that were in force at the time of the dissolution of the Soviet
Union would be presumed to continue in force as to the former
Republics. It became clear, however, particularly in the area
of arms control, that a case-by-case review of each agreement
was necessary.\61\
---------------------------------------------------------------------------
\61\ Letter from President William J. Clinton to Benjamin A.
Gilman, Chairman, Committee on International Relations, House of
Representatives (Nov. 21, 1997) (App. 7).
During that study, according to the State Department's official
annual list of U.S. Treaties in Force, ``The United States is reviewing
the continued applicability of [listed] agreements [including the ABM
Treaty] . . .''. \62\
---------------------------------------------------------------------------
\62\ United States Department of State, Treaties in Force, A List
of Treaties and Other International Agreements of the United States in
Force on January 1, 1997 282 (1997) (App. 8). Compare with United
States Department of State, Treaties in Force, A List of Treaties and
Other International Agreements of the United States in Force on January
1, 1992 247, 248 (1992) (App. 9).
---------------------------------------------------------------------------
The State Department's practice of studying the status of treaties
between the United States and extinct States was described in 1965 by
Assistant Legal Adviser Charles I. Bevans: The practice is to negotiate
with a new State ``as soon as possible.'' If a new State has a
``devolution'' agreement with or otherwise announces it would be bound
by its predecessor's treaties, the fact is ``noted'' in Treaties in
Force, but the United States does not consider itself bound by the
devolution agreement to accept such a treaty as being in force between
the United States and the successor State.\63\
---------------------------------------------------------------------------
\63\ Letter from Charles I. Bevans, Assistant Legal Adviser, United
States Department of State, to Professor William W. Bishop, Jr.,
Editor-in-Chief, The American Journal of International Law (July 27,
1964), reprinted in Committee on State Succession to Treaties and Other
Governmental Obligations, International Law Association, The Effect of
Independence on Treaties 382, 385-86 (1965). See also Sari T. Korman,
The 1978 Vienna Convention on Succession of States in Respect of
Treaties: An Inadequate Response to the Issue of State Succession, 16
Suffolk Transnat'l L. Rev. 174, 180 (1992).
---------------------------------------------------------------------------
State Department practice regarding devolution agreements and
proclamations is consistent with the view expressed in scholarly
writings. For example, in 1969 a Committee of the United Nations'
International Law Commission stated:
Conversely, on the date of the succession, the territory
passes into the treaty regime of the newly emerged State; and,
since the devolution agreement is incapable by itself of
effecting an assignment of the predecessor's treaty obligations
to the successor State, the agreement does not of itself
establish any treaty nexus between the successor State and
third States parties to the treaties of the predecessor State.
Thus, even if a newly emerged State has concluded a devolution
agreement, the only treaty obligations of the predecessor State
which can immediately become obligations also of the successor
State vis-a-vis the other contracting parties are such
obligations, if any, as would in any event pass to the
successor State by operation of the general rules of the
international law independently of the devolution
agreement.\64\
---------------------------------------------------------------------------
\64\ Sir Humphrey Waldock, Special Rapporteur, Second Report on
Succession in Respect of Treaties, 1969 II Y.B. Int'l L. Comm'n 45, 57,
UN Doc. A/CN.4/SER.A/1969/Add.1.
State Department Legal Adviser Edwin D. Williamson stated that
while the study of the ABM treaty was pending, the State Department
would use a ``presumptive continuity'' model in its dealings with the
USSR's successor States.\65\ ``Continuity,'' as applied to treaties, is
a term used by scholars to describe the fact that a treaty between two
particular States (the ``treaty partners'') has become a treaty between
one of the partners and another State. For example, when a State
dissolves and a successor State (or States) emerges on what had been
the territory of the dissolved State, a successor State may agree with
the dissolved State's treaty partner that the dissolved State's
treaties should ``continue'' in effect as between the successor State
and the dissolved State's treaty partner. In that event, the treaty in
question is said to have come into effect with the successor State by a
process of ``continuity.'' Thus, when Norway and the Russian Federation
agreed that they would consider as treaties between them certain
designated treaties that had been in effect between Norway and the
USSR, those treaties are said to have come into effect between Norway
and the Russian Federation by the process of continuity.\66\
---------------------------------------------------------------------------
\65\ Williamson, supra note 60, at 10, 12.
\66\ Marti Koskenniemi, The Present State of Research Carried Out
By the English-Speaking Section of the Centre for Studies and Research,
in State Succession: Codification Tested Against the Facts 98-118
(Hague Academy of International Law 1996); Paul R. Williams, The Treaty
Obligations of the Successor States of the Former Soviet Union,
Yugoslavia, and Czeckoslovakia: Do They Continue in Force?, 23 Denv. J.
Int'l L. & Pol'y 1, 31-35 (1994).
---------------------------------------------------------------------------
Since the respective dissolutions of the USSR, of Yugoslavia (the
``SFRY'') and of Czechoslovakia, the United States, various European
States, and the successor States have not all dealt in the same manner
in all cases with the treaties of the dissolved States. A few examples:
Armenia and Azerbaijan chose not to enter continuation agreements with
any State as to any USSR treaty.\67\ Austria, as regards the treaties
with the dissolved SFRY, described its practice as a ``principle of
pragmatic application'' of the continuation process--that is, Austria
denied that the FRY was a continuity of the SFRY, and yet, in practice,
treated the FRY as though it were the continuity of the SFRY.\68\
---------------------------------------------------------------------------
\67\ Koskenniemi, supra note 66, at 112.
\68\ Koskenniemi, supra note 66, at 88, 110-11 n. 70; Williams,
supra note 66, at 31-35 (1994).
---------------------------------------------------------------------------
The U.S. State Department, though expressing a general desire that
the USSR's successor States (a term that does not include Estonia,
Latvia and Lithuania) be bound by the same treaty obligations vis-a-vis
the United States as was the USSR, ``abandoned any assertions of
automatic continuation of treaty obligations and relied entirely on
assurances provided by the successor States.'' \69\ Also, in seeking
assurances of treaty continuation from the successor States, the State
Department accepted non-specific (what one commentator has called
``feigned'') assurances,\70\ and unilateral commitments that the
successor States may rescind, and that gave the United States the
effective right to discontinue the treaties at its option.\71\
Similarly, the State Department, by accepting assurances of treaty
continuity that were linked by context to non-justiciable political
commitments--such as promises to develop market economies--rendered the
treaties unenforceable as a practical matter and thereby made
``continuity'' illusory.\72\ Moreover, ``Treaties in Force,'' the
authoritative annual State Department publication of the U.S. treaties
that are in force, shows as ``in force'' only those treaties concluded
between the United States and the Russian Federation after the USSR's
dissolution.\73\ A similar treatment is provided by listings of
treaties in force involving other successors of the USSR and other
successors of the SFRY.\74\
---------------------------------------------------------------------------
\69\ Williams, supra note 66, at 32.
\70\ Id.
\71\ Id.
\72\ Id.
\73\ Id. at 33-34.
\74\ Id.
---------------------------------------------------------------------------
Likewise, the Russian Federation has advised the United States that
it does not deem itself bound by any USSR treaty obligation to the
United States that conflicts with Russian law.\75\
---------------------------------------------------------------------------
\75\ Id. at 35-36. See also Gennady M. Danilenko, Book Review and
Note: The Russian Law of Treaties by William E. Butler, 92 Am.J. Int'l
L. 356, 357 (1998).
---------------------------------------------------------------------------
As regards Ukraine, in May, 1996, the Executive Branch and a
representative of Ukraine agreed that the United States and Ukraine
would regard as in effect as between the two States thirty-five
designated agreements that had been in effect between the United States
and the USSR.\76\ Of the thirty-five US/USSR agreements in question,
thirty-two never received Senate consent, perhaps because they were
among the kinds of binding agreements with foreign nations that the
President ``may enter into without complying with the formalities
required by the Treaty Clause of the Constitution . . .''. \77\ The
three US/USSR treaties that had received Senate consent were a consular
convention of 1968, a tax convention of 1976, and a convention of 1854
relating to the rights of neutrals at sea.
---------------------------------------------------------------------------
\76\ The 1996 US-Ukraine agreement is described at 143 Cong. Rec.
S4462-S4463 (May 14, 1997).
\77\ Weinberger v. Rossi, 456 U.S. 25, 30 n.6 (1982). According to
the Supreme Court, agreements that do not require Senate concurrence
under Article II include agreements to protect U.S. nationals employed
at U.S. military bases abroad, id., and monetary-claims settlements.
Dames & Moore v. Regan, 453 U.S. 654, 679-80 nn.8, 9, 10 (1981); United
States v. Pink, 315 U.S. 203 (1942); United States v. Belmont, 301 U.S.
324 (1937). Such an agreement is called an ``Executive Agreement'' or a
``Sole-Executive Agreement'' if it is made between the United States
and another State without the concurrence of two-thirds of the Senate,
and without the consent of a majority of both Houses of the Congress.
If the Agreement has received the consent of a majority of both Houses
of Congress, it is called a ``Congressional-Executive Agreement.'' The
Court has explained that an agreement of that nature, though sometimes
called a ``treaty,'' is not a treaty ``possessing the dignity of one
requiring ratification by the Senate of the United States . . .'' B.
Altman & Co. v. United States, 224 U.S. 583, 601 (1912). See also
Weinberger v. Rossi, 456 U.S. 25, 29 (1982) ('The word ``treaty'' has
more than one meaning''); Dames & Moore v. Regan, 453 U.S. 654, 679-84
(1981); United States v. Pink, 315 U.S. 203, 225 (1942); United States
v. Belmont, 301 U.S. 324 (1937). No case has been presented to a court,
however, to decide whether an arms-control treaty can constitutionally
be made by the President acting alone or with the consent only of a
majority of both Houses.
---------------------------------------------------------------------------
The wide variety of recent State practice has been summed up as
follows: \78\
---------------------------------------------------------------------------
\78\ Koskenniemi, supra note 66, at 88, 116 (footnote omitted). See
generally Brownlie, supra note 41, at 82-85; James Crawford, the
Creation of States in International Law 400-411 (1979); Krystyna Marek,
Identity and Continuity in Public International Law (1968).
[P]arties have normally negotiated and negotiations have led
to the adoption and publication of lists of treaties that are
to be continued or allowed to lapse. The more weight is given
to such lists, and the agreements they embody, the less
practical significance the ``presumption of continuity''
enjoys--until the presumption must altogether yield to the a
contrario argument that a treaty absent from a list must be
deemed to have lapsed.\79\
---------------------------------------------------------------------------
\79\ Koskenniemi, supra note 66, at 116.
``Continuity'' (or ``continuation'') is also used to identify a
State that, notwithstanding a loss of territory, continues to exist
because it has not lost its international legal personality.\80\ In
that usage ``continuity'' (or ``continuation'') is the antonym of
``dismemberment'' or ``disembratio'' or ``dissolution'' or
``extinction,'' which terms are used interchangeably to identify States
that have ceased to exist.\81\ For example, the United States stated
that it is the position of the ``international community generally''
that, as a result of the SFRY's ``dissolution'' in 1992, ``[t]he SFRY
has ceased to exist and no . . . State represents the continuation of
the SFRY. . . .'' \82\
---------------------------------------------------------------------------
\80\ Republic of Croatia v. Girocredit Bank A.G. der Sparkassen,
Supreme Court of Austria (4 Ob. 2304 96V, Dec. 17, 1996), reprinted at
36 I.L.M. 1523 (1997); Konrad G. Buhler, Casenote: Two Recent Austrian
Supreme Court Decisions on State Succession from an International Law
Perspective, 2 Aus. Rev. Int'l & Eur. L., 213, 224-26 (1997).
\81\ Id.
\82\ Declaration of Christopher R. Hill, Director, Office of South
Central European Affairs, United States Department of State, filed in
Federal Republic of Yugoslavia v. Park-71st Corp., No. 95 Civ. 3659
(AGS) (S.D.N.Y.) para.para. 5, 6 (Sept. 21, 1995), complaint dismissed,
913 F.Supp. 191 (S.D.N.Y. 1995). (App. 1).
---------------------------------------------------------------------------
In June 1996 U.S. Assistant Attorney General Walter Dellinger
advised Counsel to the President John Quinn that the presumption of
``continuity'' employed in the State Department during the Bush
Administration remained in effect in the Clinton Administration.
Dellinger stated that the notion of continuity was ``rooted'' in U.S.
``past diplomatic practice'' and in the U.S. Executive Branch's
understanding of international law.\83\ Dellinger's disregard for U.S.
practice as regards treaties of extinct states is described at IV.F.,
infra.
---------------------------------------------------------------------------
\83\ Memorandum from Walter Dellinger, Assistant Attorney General,
to John M. Quinn, Counsel to the President, Re: Section 233(a) of S.
1745 (June 26, 1996) (App. 10). See also Letter from William C.
Danvers, Special Assistant to the President and Senior Director for
Legislative Affairs, to Newt Gingrich, Speaker of the House of
Representatives (Nov, 29, 1996), transmitting Report on the Livingston
ABM Amendment (Nov. 25, 1996) (App. 12), and Letter of Dec. 11, 1996
from Representatives Bob Livingston, Benjamin A. Gilman and Floyd
Spence to President Clinton (Dec. 11, 1996) (App. 13).
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C. President Clinton's Statement of Position
On June 16, 1997, Benjamin A. Gilman, Chairman, House Committee on
International Relations, asked President Clinton: If the Senate were to
reject the President's proposal regarding ABM Treaty succession, ``what
countries in addition to the United States will, in the view of the
Administration, be parties to the ABM Treaty?'' \84\ The President did
not reply until November 21, 1997,\85\ by which time the Secretary of
State had signed (in September, 1997) a Memorandum of Understanding
(the ``MOU'') with Russia, Ukraine, Belarus and Kazakstan to ``multi-
lateralize'' the ABM Treaty. The MOU would create an arrangement
embodying features that had been in effect between the United States
and the USSR.\86\ President Clinton's November 17, 1997 letter stated
that he would ask the Senate to give advice and consent to the MOU.\87\
The November 21, 1997 letter also stated
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\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\
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\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\
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\89\ Id. at 3.
\90\ Id.
\91\ Letter from Benjamin A. Gilman, Chairman, Committee on
International Relations, House of Representatives, and Jesse Helms,
Chairman, Committee on Foreign Relations, Senate (March 3, 1998) (App.
16).
\92\ Id. at 3.
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On May 21, 1998 President Clinton responded that the Executive
Branch had concluded that ``there is no question that the ABM Treaty
has continued in force and will continue in force . . .''. Also,
President Clinton stated that ``[t]he United States and Russia clearly
are Parties to the Treaty. . . .'' \93\ The President explained neither
the basis for this conclusion nor how the conclusion can be reconciled
with his November 1997 response to Representative Gilman.
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\93\ Letter from President William J. Clinton to Benjamin Gilman,
Chairman, Committee on International Relations, House of
Representatives 2 (May 21, 1998) (App. 11). Also, on October 5, 1998,
Senators Trent Lott, Don Nickles, Larry E. Craig, Jon Kyl, Jesse Helms,
Connie Mack, Paul Coverdell and Bob Smith wrote President Clinton a
letter stating their view that ``the ABM Treaty has lapsed and is of no
force and effect unless the Senate approves the MOU, or some similar
agreement, to revive the Treaty.'' Letter from Senators Trent Lott, Don
Nickles, Larry E. Craig, Jon Kyl, Jesse Helms, Connie Mack, Paul
Coverdell and Bob Smith to President William J. Clinton (Oct. 5, 1998)
(App. 17.) On December 17, 1998, President Clinton replied, stating
that he would provide the MOU to the Senate for its advice and consent
(App. 18).
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D. The United States'' 1972 View of How it Would Benefit from an ABM
Treaty
In 1972, Gerard Smith, Director of the Arms Control and Disarmament
Agency in the Nixon Administration, told the Congress the following:
The treaty contains a general commitment not to build a
nationwide ABM defense nor to provide a base for such defense.
This general undertaking is supplemented by certain specific
provisions. By this general undertaking and the specific
commitments, both countries in effect agree not to challenge
the effectiveness of each other's missile deterrent
capabilities by deploying widespread defenses against them.
This means that the penetration capability of our surviving
deterrent missile forces can be assured. This, to my mind,
bears directly on concerns about a first strike against the
United States. As long as we maintain sufficient and survivable
retaliatory forces, this new assurance of their penetration
capability makes ``first strike'' as a rational act
inconceivable, in my judgment. I believe this is a development
of prime significance for U.S. security.\94\
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\94\ Statement by United States Arms Control and Disarmament Agency
Director Gerard C. Smith, Strategic Arms Limitations Agreements (June
28, 1972), reprinted in U.S.C.A.C.D.A. Documents on Disarmament 1972,
at 423.
Hence, according to that view, a party without ABM defenses would
be less likely to launch first strikes, and therefore would be less
likely to start a nuclear war.\95\
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\95\ Report by the United States Senate Foreign Relations
Committee, Treaty on Limitation of Antiballistic Missile Systems, S.
Exec. Rep. 92-28 (July 21, 1972) (App. 19), quoting former Assistant
Secretary of Defense for International Security Affairs Paul Warnke,
that ``[a]ccordingly, both sides have accepted the principle that
safety resides not in physical defense but in the certainty that the
attacker would be destroyed by the retaliatory strike that the other
side would be able to mount.''
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iv. principles of international law that bear on the question of
whether the abm treaty between the united states and the ussr became,
upon the ussr's extinction, a treaty between the united states and the
russian federation
A. The December 1991 Declaration That the USSR Had Ceased to Exist
Correctly Characterized Under International Law the Changes
That Occurred on What Had Been the USSR's Territory
It is not necessary to resolve any dispute as to whether the USSR
became extinct in December 1991, for there has been no dispute between
the United States and the USSR's successor States on this point. It
bears noting, however, that, had the parties put the question to a
disinterested tribunal, that tribunal would have had ample grounds for
concluding that the USSR did become extinct at that time, for after
December 1991 the USSR lacked the attributes of ``statehood'' that are
essential elements of a State's existence, i.e. sovereignty over
defined territory inhabited by a permanent population, and the power to
conduct foreign relations.\96\ At the close of the day on December 8,
1991, each of fifteen States had sovereignty over a part of what had
been the USSR's territory. No State claimed that even one pyt of
territory remained as USSR territory.\97\
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\96\ A State must have (a) a permanent population; (b) a defined
territory; (c) a government; and (d) capacity to enter into relations
with other States. Restatement (Third) of the Foreign Relations Law of
the United States Sec. 201 (1986). A State has territorial sovereignty
if it ``has a monopoly on the exercise of governmental power within its
borders . . . .'' Societe Nationale Industrielle Aerospatiale v. United
States District Court for the Southern District of Iowa, 482 U.S. 522,
557 (1987) (Blackman, J., concurring in part and dissenting in part);
Hoyt v. Sprague, 103 U.S. 613, 630 (1880). Justice Story, as quoted in
Cherokee Nation v. Southern Kan. R. Co., 33 Fed. 900, 906 (W.D. Ark.
1888), described sovereignty as the ``supreme, absolute, uncontrollable
power; the jus summi imperii; the absolute right to govern.'' The
fifteen states included the Baltics, i.e. Latvia, Lithuania, and
Estonia, which the United States and Western European States did not
regard as having been absorbed into the USSR. See generally Lawrence S.
Eastwood, Jr., Secession, State Practice and International Law after
the Dissolution of the Soviet Union and Yugoslavia, 3 Duke J. Comp.
Int'l L. 299, 316-22 (1983); Ruta M. Kalvaitis, Citizenship and
National Identity in the Baltic States 16 B.U. Int'l L.J. 231, 234-39
(1998).
\97\ A pyt in the Russian language is the smallest measure of area,
as in, ``not a single inch.'' Russian-English Dictionary 517 (E.P.
Dutton & Co. 1973).
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Moreover, the USSR's dissolution was marked by other consequential
changes: (1) It occurred abruptly, out of strong secessionist pressures
that created the risk of widespread civil strife, rather than by a
deliberate and peaceful evolution. (2) The USSR government was not a
party to any of the declarations of dissolution or independence or to
the organizational agreements of the CIS or to any other agreements
among the newly independent States. (3) Within the several years
immediately before dissolution was declared formally, the USSR
government had yielded its political and military control over the
other Warsaw Pact States. (4) In that period before formal dissolution,
the USSR government abolished the Communist Party's monopoly on
domestic political power, thereby facilitating the acquisition by the
people of the USSR's constituent ``republics'' of control of their
territories and economies, and removing an obstacle to the emergence of
the new States.\98\ (5) The demography of the new states was markedly
different from that of the USSR, the former being far more ethnically
homogeneous than the latter was. (6) None of the newly independent
States separately has military/strategic resources (including
agricultural and mining assets and geographical assets such as access
to various ports and contiguity with certain regions on land) that are
on par with those possessed by the USSR.
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\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).
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International law does not consider a State extinct solely because
it has lost some territory or population. But no USSR successor State
embodies the USSR's international legal personality; indeed, none even
claims to do so. Given the abruptness of the loss of territory and
population, the loss of empire, and the loss of central control over
the inhabitants of the fifteen sub-states that led to their
independence, the changes in ethnic concentrations and in military/
strategic resources, it is not hard to understand why the United States
agreed with the newly-emerged States that the USSR's identity had
disappeared. Hence, the successor States and the United States aptly
concluded that the USSR had ``ceased to exist,'' i.e., ``was no more.''
\99\
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\99\ ``[S]tates fully extinguished lose all international
personality . . ..'' Amos S. Hershey, The Essentials of International
Public Law and Organization 215 (rev. ed. 1935).
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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\
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\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).
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C. If Neither Judicial Decision, Diplomatic Practice Nor Treaty
Provides Trustworthy Evidence on a Disputed Point of Customary
International Law, a Court Will Consult the Works of Scholars
for Evidence of What the Law Is
International law, like common law in Anglo-American jurisprudence,
can grow out of long-practiced custom that becomes accepted as
law.\102\ In ascertaining custom, courts often consult the works of
scholars, as the Supreme Court explained in The Paquete Habana, a
landmark case in 1898:
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\102\ On the role of custom in the development of the common law,
see William Blackstone, I Commentaries on the Laws of England 69-80
(James DeWitt Andrews, ed., 4th ed., 1899); Arthur Reed Hogue, Origins
of the Common Law 190-200 (1966); David J. Bederman, The Curious
Resurrection of Custom: Beach Access and Judicial Takings, 96 Colum. L.
Rev. 1375, 1451 (1996). On the role of custom in the development of
international law, see O'Connell, I International Law, supra note 39,
at 15-20, 35-36.
[W]here there is no treaty and no controlling executive or
legislative act or judicial decision, resort must be had to the
customs and usages of civilized nations, and, as evidence of
these, to the works of jurists and commentators who by years of
labor, research and experience, have made themselves peculiarly
well acquainted with the subject of which they treat. Such
works are resorted to by judicial tribunals, not for the
speculations of their author concerning what the law ought to
be, but for trustworthy evidence of what the law really
is.\103\
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\103\ The Paquete Habana, 175 U.S. 677, 700 (1900) (citation
omitted).
Courts continue to look to distinguished commentators for aid in
ascertaining customary international law.\104\
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\104\ Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423
(1964); See also Hilton v. Guyot, 159 U.S. 113, 163 (1895); United
States v. Nippon Paper Indus. Co., 109 F.3d 1, 10-11 (1st Cir. 1997).
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D. The Works of Scholars Support the Conclusion That a Bilateral Treaty
Other than a Dispositive Treaty Does Not Survive the Extinction
of One of the Treaty Partners
In very general terms, a dispositive treaty is one that creates a
disposition--as of a political boundary, for example--that is intended
to be perpetually respected. That the ABM Treaty is not a dispositive
treaty is shown at Part IV.K below. A treaty that is not dispositive is
called a ``personal'' or a ``real'' or ``political'' treaty.
A widely-quoted author on the law of State succession is D.P.
O'Connell. According to Professor O'Connell:
There has been, at least since the late nineteenth century,
almost unanimous agreement that personal treaties of a totally
extinguished State expire with it because they are contracted
with a view to some immediate advantage, and their operation is
conditional on the nice adjustment of the political and
economic relations which they presuppose. When this adjustment
is upset the rationale of the treaty is destroyed.\105\
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\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
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of the Eighteenth Century. Vattel wrote:
In the same manner as a personal treaty expires at the death
of the king who has contracted it, a real treaty is dissolved,
if one of the allied nations is destroyed,--that is to say, not
only if the men who compose it happen all to perish, but, also
if, from any cause whatsoever, it loses its national quality,
or that of a political and independent society.\106\
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\106\ Emmerich de Vattel, The Law of Nations, Book II, Chap. XIII,
sec. 203, 215 (in English translation 1833). Vattel's work was first
published in French, Le droit de gens, ou, Principes de la loi
naturelle, applique a la conduite, aux affaires des nations, et des
souverains (1758). Vattel was published in English (in New York), at
least as early as 1787 (for Berry and Rogers). Vattel has been cited in
148 cases in the Supreme Court, from Miller v. The Resolution, 2 U.S.
(Dall) 1, 15 (1781) to New Jersey v. New York, 523 U.S. 767 (1998).
Another of the prominent early works was Frederic de Martens' The
Law of Nations, published in 1788. Martens' career included
professorships of law at the Imperial School in St. Petersburg and at
the University of Gottingen; as representative of Russia at many
official conferences; and as an arbiter in international disputes, for
which he became known as ``Chief Justice of Christendom.'' \107\ An
English translation of Martens'' work was published in Philadelphia in
1795, dedicated to President George Washington. Martens wrote:
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\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\
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\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:
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\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\
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\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:
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\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
ind