Points Regarding Section 233 of the National Defense Authorization Act for FY 1997 concerning the ABM Treaty and the Treaty Making Power

• Section 233 is inconsistent with the treaty practice of the United States. The resolution of succession questions has been regarded as a function of the Executive Branch, and many executive agreements have been concluded that recognized the succession of new States to the treaty rights and obligations of their predecessors. Such agreements have not been treated as treaty amendments or new treaties requiring Senate advice and consent, but rather as the implementation of existing treaties, a recognized Executive Branch function.

• Further, in the case of the dissolution of the Soviet Union and Yugoslavia, both the Bush and Clinton Administrations operated on the principle that the treaty rights and obligations of the predecessor passed to the successors, unless the terms or the object and purpose of the treaty required a different result.

• If the advice and consent of the Senate were generally required before the United States could recognize treaty succession, then the continuity of obligations under essential treaties would be impaired and the Senate would be inundated with requests for advice and consent to treaties for a multiplicity of successor states covering the entire gamut of our treaty relations.

• For example, in the case of Ukraine, the United States last year reached agreement on Ukrainian succession to over 35 international instruments originally concluded between the United States and the Soviet Union. In the arms control arena, the United States has, since the dissolution of the Soviet Union, recognized treaty succession for major agreements, including the Treaty on Conventional Armed Forces in Europe (the CFE Treaty), the Treaty Between the USA and the USSR on the Limitation of Underground Nuclear Weapons Tests (the Threshold Test Ban Treaty), the Treaty Between the USA and the USSR on Underground Nuclear Explosions for Peaceful Purposes (the PNE Treaty) and the Treaty on the Non-Proliferation of Nuclear Weapons (the Non-Proliferation Treaty).

• The Proposition that succession arrangements in general or in particular, require Senate advice and consent would cast doubt on well-established principles of treaty succession. It could well have the unfortunate effect of encouraging parliamentarians of other states to reconsider the validity of their currently settled national expressions of succession.

Succession Status of Certain
Arms Control Treaties

The following Treaties were concluded by the U.S. and the former Soviet Union and later based on principles of treaty law and states succession, adjusted in light of the dissolution of the Soviet empire.

Treaty on Conventional Armed Forces in Europe (CFE Treaty)

• The CFE Treaty reduces and sets a ceiling from the Atlantic to the Urals in key categories of conventional military equipment: armor, artillery, combat aircraft and attack helicopters. It was signed on November 19, 1990. Following Senate advice and consent, the Parties concluded the Oslo Final Document which resolved the succession questions surrounding the Treaty, in part by referring to the Tashkent Agreement of May 15, 1992 in which eight former Soviet Republics (those with territory subject to the Treaty), apportioned, among themselves CFE Treaty rights and responsibilities.

Treaty Between the USA and the USSR on the Limitation of Underground Nuclear Weapons Tests (Threshold Test Ban Treaty)

• The Threshold Test Ban Treaty (TTBT) prohibits underground nuclear weapon tests of more than 150 kilotons. It was signed on July 3, 1974 and entered into force on December 11, 1990. In 1992, following the dissolution of the Soviet Union, Russia and the United States agreed within the framework of the Treaty's implementation body, the Bilateral Consultative Commission (established by a 1990 Protocol to the Treaty) that Semipalatinsk, a former Soviet nuclear test site in Kazakhstan, would cease to be a designated test site for Russia under the Treaty, This effectively resolved the succession issue, clarifying that Russia would be the sole TTBT partner.

Treaty Between the USA and the USSR on Underground Nuclear Explosions for Peaceful Purposes (PNE Treaty)

• The PNE Treaty (PNET) governs all underground nuclear explosions carried out at locations outside those specified under the Threshold Test Ban Treaty (TTBT) and limits any individual nuclear explosions to 150 kilotons. It was signed on May 28, 1976 and entered into force on December 11, 1990. The PNET implementation body, the Joint Consultative Commission (JCC) never convened, however, the U.S. and Russia continue to exchange annual notifications under the Treaty -- de facto recognition on the part of both countries that, consistent with the succession arrangement for TTBT, Russia is the sole successor of the former Soviet Union to the PNE Treaty.

Treaty Between the USA and the USSR on the Elimination of Their Intermediate-Range and Shorter-Range Missiles (INF Treaty)

• The INF Treaty eliminates all US and former Soviet ground-launched ballistic and cruise missiles with a range capability of between 300 and 3400 miles (500 and 5500 km). It was signed on December 8, 1987 and entered into force on June 1, 1988. In July 1992 the U.S. informed all 12 USSR successor states that it regarded each of them as a successor state with regard to the INF Treaty, even though only six had former INF facilities on their soil. In October 1992 the CIS states (not including Georgia) signed a declaration in Bishkek pledging themselves to "fulfill the obligations of the INF Treaty as it applies to their territories and in consideration of their national interests." Georgia later made a similar, unilateral pledge to the U.S.

Treaty on the Non-Proliferation of Nuclear Weapons (Non-Proliferation Treaty)

• The NPT was designed to prevent the spread of nuclear weapons, while promoting the peaceful uses of nuclear energy. It was signed on July 1, 1968 and entered into force in March 5, 1970. The Russian Federation required an expression of adherence by Ukraine, Belarus and Kazakhstan to the NPT as a condition of its ratification of the START I Treaty. All three newly independent states are now party to the NPT.

In no case did Congress assert a requirement to approve such arrangements.