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Key Issues Missile Defense Issues Statement of David Rivkin and Lee Casey

Statement of David B. Rivkin, Jr and Lee A. Casey on the Legal Status of the ABM Treaty before the Committee on Foreign Relations United States Senate

I. INTRODUCTION

In May, 1998, my firm was asked by the Heritage Foundation to consider the legal status of the

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1972 Treaty on Limitation of Anti-Ballistic Missile Systems ("ABM Treaty") between the United States and the Union of Soviet Socialist Republics ("U.S.S.R." or "Soviet Union"). Based upon our review of the text of the ABM Treaty, its history, and the relevant international law and American constitutional law sources, we concluded that the ABM Treaty no longer binds the United States as a matter of international or domestic law. This is because the Soviet Union disappeared in 1991, rendering performance of the ABM Treaty as originally agreed impossible. Because there is no state, or group of states -- including the Russian Federation -- that can both be said to have continued the Soviet Union's international legal personality (its sovereignty) and that also is capable of implementing the totality of the U.S.S.R.'s obligations under the ABM Treaty in accordance with that agreement's original terms, that treaty was discharged as a matter of law in 1991 and the United States is not now legally bound by it.

As a direct consequence, any new treaty regarding anti-ballistic missile defenses between the United States and the former Soviet Republics can be effected only through renewed negotiations and the agreement of both the United States and one or more of these states. Moreover, any such agreement would require the consent of the United States Senate before it could be ratified by the President.

II. BACKGROUND

The 1972 ABM Treaty limited severely the ability of the United States and the U.S.S.R. to defend their respective territory through deployment of an anti-ballistic missile system. However, the U.S.S.R. collapsed in 1991. Its fifteen constituent "republics" became independent states, and all were recognized as such by the United States.

Nearly a decade later, the formal status of the Soviet Union's bilateral treaties with the United States, including the ABM Treaty, remains uncertain. The "official" stance of the United States is that the matter remains under review.

In this regard, the Executive Branch has yet to announce a consistent position regarding the ABM treaty. President Clinton has both suggested that no single former Soviet Republic, including the Russian Federation, could carry out the U.S.S.R.'s ABM Treaty obligations, and that the ABM Treaty would nevertheless remain in force between the United States and Russia if the Senate were to reject a series of agreements, signed by Secretary of State Albright in September, 1997 ("September Agreements"), identifying four former Soviet Republics (Russia, Belarus, Ukraine and Kazakhstan) as ABM Treaty parties.clearly are parties to the [ABM] Treaty." See Letter from William J. Clinton to Benjamin A. Gilman (May 21, 1998). The President has promised to submit these agreements to the Senate for its advice and consent, but has not yet done so.

III. DISCUSSION

The question whether the ABM Treaty survived the Soviet Union's fall is complex, and there is no single precedent or authority that definitively resolves the issue. However, when the applicable rules of international and American constitutional law are consulted, a compelling argument emerges that the ABM Treaty no longer binds the United States, and that the Senate's approval must be obtained before that treaty, or a similar instrument, can bind the United States in the future.

A. The Impact of the Soviet Union's Demise on the ABM Treaty. The ABM Treaty was a bilateral agreement between the United States and the Soviet Union, and its key terms could be performed only by those two states. Like any contract, a treaty's obligations are discharged, as a matter of law, when a necessary party (whether an individual or a "legal" person such as a corporation) to the contract disappears, or is otherwise rendered incapable of performance. As the Supreme Court has recognized, a bilateral treaty survives the disappearance of a state-party only if there is a successor that continues the state-party's international legal personality, its "sovereignty," and in which "the power to execute [the treaty] remains unimpaired." Thus, the ABM Treaty could have survived the Soviet Union's collapse only if there were one or more successor states that continue the U.S.S.R.'s international legal personality and which could execute the treaty in accordance with its original terms. No such state or group of states exists.

In this regard, the ABM Treaty was based upon a number of fundamental assumptions about its parties and their place in the world order during the Cold War. The ABM Treaty's purpose was to ensure that the whole territory of the United States and the Soviet Union would remain open to attack by long-range offensive ballistic missiles. The premise here was that ensuring a calculated "balance of terror" between the two nuclear superpowers (the only states capable of threatening each other with nuclear annihilation) would deter nuclear war (the aptly named "MAD" or "mutually assured destruction" theory), enabling both states to control the pace of additional offensive nuclear deployments. It was assumed that any attempt to build a national anti-ballistic missile defense system would undermine the delicate "stability" of that balance.

Moreover, the ABM Treaty had a critical geographical component. Under the Treaty, both population centers and ICBM sites were to remain unprotected, and the whole territory of each ABM Treaty partner was to be free of ABM defenses (such as certain early warning radars), except for the limited systems permitted under the ABM Treaty regime itself. In this respect, a number of the key provisions of the ABM Treaty were linked to the territory of both superpowers, and would have to be rewritten if any party other than the Soviet Union were to undertake its ABM obligations, and the United States was to preserve the benefits of its original bargain. These include, among others,

Article I(b), in which the parties agreed "not to deploy ABM systems for a defense of the territory of its country and not to provide a base for such a defense, and not to deploy ABM systems for defense of an individual region."

Article III(a), as amended by the 1974 Protocol, which allowed the Soviet Union to deploy one ABM system, with no more than one hundred launchers and one hundred interceptors, around its national capital, and no more than six ABM radar complexes within its territory as a whole.

Article VI(b), in which the parties agreed not to deploy early warning radars except at locations "along the periphery of its national territory and oriented outward."

Article IX (as clarified by Agreed Interpretation G), in which each party agreed not to "transfer to other States, and not to deploy outside its national territory, ABM systems or their components limited by this Treaty."

None of these provisions can be implemented in accordance with their original terms by one or more of the post-Soviet states. Only the Soviet Union could do so. Because the Soviet Union is extinct, the ABM Treaty is no longer in force.

B. The ABM Treaty and the Soviet Union's "Successor States."

The President has suggested that, even if the Senate refuses to consent to the September Agreements, the ABM Treaty would nevertheless survive as an agreement between the United States and the Russian Federation. This cannot be the case. Although the President has very broad authority to conduct the Nation's foreign affairs, including the authority to interpret and implement its treaty obligations, his power must be exercised in accordance within the recognized boundaries of domestic and international law, as that law is understood and applied in the United States.exact formula by which it can be determined that a change of a nation's fortunes amounts to a continuance of the old or the beginning of a new nation, there can be no better equipped vehicle for decision than the Chiefs of State of the countries concerned. If their agreed decisions, when based upon supporting facts, are not conclusive, they should at least weigh very heavily.") (emphasis added). When these rules are applied, it becomes clear that the ABM Treaty cannot be said to have survived as an agreement between the United States and Russia.

Two competing rules traditionally have been advanced in resolving questions of state treaty succession -- the "continuity" model, under which a new state is presumed automatically to be a party to all of the treaties of its predecessor, and the "clean-slate" model, under which a new state is bound by its predecessor's treaties only if: (1) the new state agrees to be bound; and (2) the relevant treaty partner itself agrees to, or acquiesces in, the new relationship.

1. The ABM Treaty Under a Continuity Rule.

The United States is said to favor the continuity analysis. However, the continuity rule, or rule of "universal state succession," has rarely been applied in practice -- by the United States or by others -- because it would automatically bind a new state, and all of its predecessor's treaty partners, to the old state's treaties without alteration. When the Soviet Union dissolved, the State Department actually claimed to adopt a "presumptive" continuity rule to determine which of the U.S.S.R.'s bilateral treaties with the United States remained in force. Under this rule, the State Department proceeded to make an individual assessment of the Soviet Union's treaties with the United States to determine which could be continued in force as bilateral agreements between the United States and the former Soviet Republics. This "case-by-case" approach was continued by the Clinton Administration, and has still not been completed.

Nevertheless, when a continuity analysis, whether "presumptive" or actual, is applied to the ABM Treaty, it becomes clear that this agreement did not survive the Soviet Union's demise. The ABM Treaty was a bilateral agreement that was based upon a careful calculation by both treaty partners of their competing interests and objectives during the Cold War. It ordered one important facet of the relationship between the United States and the Soviet Union during that period. Under a continuity analysis, such treaties are considered to be political or "personal" (i.e., to a particular monarch or state) treaties, and automatically expire at the sovereign's death or extinction. [W]e must not confound those treaties or alliances which, since they impose the obligation of repeated acts on both sides, can not remain in force except through the continued existence of the contracting powers, with those contracts by which a right is once and for all acquired, independently of any subsequent acts of either party. Id. (emphasis added). Thus, "[t]here has been, at least since the late nineteenth century, almost unanimous agreement that personal treaties of a totally extinguished State expire with it because they are contracted with a view to some immediate advantage, and their operation is conditional on the nice adjustment of the political and economic relations which they presuppose. When this adjustment is upset the rationale of the treaty is destroyed."

Moreover, even assuming that the ABM Treaty were the type of treaty that could survive the Soviet Union's dissolution, a continuity analysis would not result in an ABM Treaty between the United States and the Russian Federation. This is because the Russian Federation is not a continuation of the Soviet Union's international legal personality. It is, like the other former Soviet Republics, an entirely new state.

Although "Russia" was at the heart of the Soviet Union, the Russian State that controlled the Soviet Union was not Boris Yeltsin's Russia. Rather, it was the successor of the Romanov empire, around which the Russian colonial empire of the 18th and 19th centuries had been built. In 1991, that empire collapsed, finally following the example of the Spanish, British, and French empires before it. The borderland territories in Europe and Asia, absorbed by the Russian Empire in the 18th, 19th and 20th centuries regained, or established, their independence.

At the same time, the metropolitan Russian state, around which this colonial empire was built, also disintegrated. That state, which had been created by the Muscovite tsars from the fifteenth through the seventeenth centuries, included Great Russia (generally the territory of the old Grand Duchy of Muscovy), White Russia (now Belarus, an area largely absorbed into the Russian State from territory belonging to the medieval Polish-Lithuanian kingdom), and Little Russia or the Ukraine (now Ukraine) a territory joined to Muscovy in the 17th century which itself could properly claim to be the cradle of Russian civilization.

Thus, when the Soviet Union collapsed, its metropolitan center also fragmented. In this regard, to fully appreciate the scope of the catastrophe that overtook the Russian State in 1991, it is necessary to imagine that the British and French colonial empires had not merely dissolved over the past fifty years, but that Britain and France also had dissolved into their ancient kingdoms, principalities and provinces, i.e., England, Scotland, and Wales, or Normandy, Brittany, Anjou, and so forth. The Russian Federation cannot, therefore, be considered to be merely a continuation of the Soviet Union's international legal personality in the same manner that Britain or France are clearly the same states that once also were the metropolitan hubs of great empires.

Finally, under Terlinden's teaching, the ABM Treaty could have survived between the United States and Russia only if the Russian Federation was both a continuation of the Soviet Union's international legal personality and was able to fulfil the Soviet Union's obligations under the ABM Treaty as originally agreed. The Russian Federation cannot fulfil these obligations.

As explained above, the geographical component was critical to the ABM Treaty, at the very core of the bargain struck between the U.S. and the U.S.S.R. Russia, however, no longer controls vast stretches of former Soviet territory, and can no longer assure the United States that its ICBMs and SCBMs would have access to the full area and all of the population centers of the old Soviet Union. (Were the United States bound, of course, both its territory and population centers would continue to be entirely open to attack by Russian missiles.).

2. The ABM Treaty Under a "Clean Slate" Analysis.

When the ABM Treaty is analyzed under a "clean slate" approach, it also is clear that it did not survive the Soviet Union. Under a "clean-slate" rule, "[w]hen a new state emerges it is not bound by the treaties of the predecessor sovereign by virtue of a principle of state succession . . . and in addition other parties to a treaty are not bound to accept a new party as it were, by operation of law." This view has increasingly gained acceptance since the Second World War and the dissolution of the European colonial empires, and was identified as the general rule by the American Law Institute's Restatement (Third) of the Foreign Relations Law of the United States whenever "part of a state becomes a new state." Under this approach, a new state would not be presumed to be bound by its predecessor's treaties. Only if the new state agrees to be bound, and obtains the consent of its predecessor's one-time treaty partners, can such treaty obligations be said to continue. Neither condition has been meet with respect to the ABM Treaty.

Although a number of the former Soviet republics, including the Russian Federation, have suggested that they are willing to be bound by the ABM Treaty, none have agreed to undertake the Soviet Union's obligations without alteration or condition. Moreover, even if one or more former Soviet Republics were to agree to accept these obligations, they could not become ABM Treaty parties without the corresponding consent of the United States. This consent has not been given -- as noted above, the Executive Branch's official statement in Treaties in Force indicates that the matter remains under review -- and could not, in any case, be given without the consent of the Senate. To substitute one or more of the former Soviet republics for the "Soviet Union" would so fundamentally change the bargain approved by the Senate when it consented to the ABM Treaty's ratification, that its consent would have to be obtained again.

C. The President Must Obtain the Advice and Consent of the Senate Before Reviving the ABM Treaty and Adding New Parties.

The President has, of course, recognized that the United States cannot obtain the same strategic benefits from the ABM Treaty, to which it was entitled originally, if only the Russian Federation is an ABM Treaty partner. In the September Agreements, the Administration would add to the ABM Treaty regime at least four new parties: Russia, Belarus, Ukraine, and Kazakhstan. This would transform the ABM Treaty into a multilateral convention, and would itself constitute so significant an alteration of the original treaty's terms and conditions that the Senate's approval would have to be obtained.

As a President can make a treaty only with the Senate's consent, so he can amend a treaty only with that same consent. The substitution of four new parties in place of the original treaty partner is a change so significant that it cannot be achieved through the process of interpreting a treaty. As described above, the United States entered the ABM Treaty on the understanding that it was dealing with a single power, capable of implementing its obligations under the treaty. If the ABM Treaty were multilateralized, the United States would become dependent upon at least four separate states to implement the obligations originally assumed and guaranteed by a single state -- the Soviet Union. This would not only require the United States to accept a less advantageous bargain than was originally struck, but also would impose upon it the additional burden of assuring the compliance of four governments, instead of only one.

If the President attempted to transform the ABM Treaty into a multilateral agreement without the Senate's consent, purporting to act on his own authority in recognizing one or more Soviet successor states as being bound by the ABM Treaty, he would be on the very thinnest of constitutional ice. As explained by Justice Robert Jackson in his defining concurrence in Youngstown Sheet & Tube Co. v. Sawyer, "Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." The President's authority is at its "maximum" when he acts "pursuant to an express or implied authorization of Congress." By contrast, "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb."

It has been the longstanding understanding and practice of both the Executive Branch and the Senate that arms control agreements must have the Senate's consent. Indeed, when Congress established the United States Arms Control and Disarmament Agency it specifically provided that agreements limiting "the Armed Forces or armaments of the United States in a militarily significant manner," had to be subject to the Senate's advice and consent power, or be based upon "affirmative legislation by the Congress of the United States." Moreover, with respect to the ABM Treaty itself, Congress has specifically stated that the President may not enter an agreement that "would substantively modify the ABM Treaty unless the agreement is entered pursuant to the treaty making power of the President under the Constitution." For his part, the President has agreed to this limitation. The Senate imposed this condition in its Resolution of Ratification to the Document Agreed Among the States Parties to the Treaty on Conventional Armed Forces in Europe (CFE) -- the so-called CFE "Flank Document." Specifically, it required that, before ratifying this treaty, the President "shall certify to the Senate that he will submit for Senate advice and consent to ratification any international agreement (i) that would add one or more countries as state parties to the ABM Treaty, or otherwise convert the ABM Treaty from a bilateral treaty to a multilateral treaty; or (ii) that would change the geographic scope or coverage of the ABM Treaty, or otherwise modify the meaning of the term 'national territory' as used in Article VI and Article IX of the ABM Treaty." The Senate unanimously approved the Flank Amendment, and President Clinton accepted this condition. Recognizing Russia, or any other former Soviet Republic, as an ABM Treaty partner would violate this condition, calling into question the continuing validity of the CFE Flank Document.

Thus, overall, if the President determines to revise the ABM Treaty by accepting the substitution of four former Soviet republics for the Soviet Union as a party to that treaty, he must do so based upon his own authority which, in these circumstances, will be "at its lowest ebb." Given the fact that allowing these states to step into the Soviet Union's place in the ABM Treaty would fundamental alter the bargain struck by the United States, and originally approved by the Senate, it is hard to discern a plausible legal justification for such action.

CONCLUSION

When the Soviet Union dissolved in 1991, the ABM Treaty became impossible to perform in accordance with its original provisions. Because of the unique terms and conditions of the ABM Treaty, and the underlying assumptions of the parties, none of the states that emerged from the Soviet Union, either alone or with others, could carry out the U.S.S.R.'s obligations under the ABM Treaty. Consequently, the obligations of the United States under the Treaty were discharged at the time the Soviet Union disappeared.

Although a number of the former Soviet republics have indicated that they are prepared to undertake the U.S.S.R.'s role in the ABM Treaty regime, this willingness is insufficient to bind the United States. None of these states can claim to continue the Soviet Union's international legal personality, and therefore to be the automatic successor to its treaties in general, and to the ABM Treaty in particular, under a "continuity" analysis. In fact, whether a "continuity" or "clean slate" analysis is applied to the Soviet Union's dissolution, a case-by-case review of its treaties must be made to determine which of those treaties may become binding upon both the former Soviet republics and the Soviet Union's one-time treaty partners. In this process, each of those partners must agree to accept one or more of the former Soviet republics as its treaty partner, and to be bound by the relevant agreements in accordance with that acceptance.

In the United States, this renewed agreement to be bound can come only by and with the advice and consent of the Senate. The substitution of one or more former Soviet Republics for the Soviet Union would fundamentally change the ABM Treaty's original bargain, to which the Senate consented. The President cannot, on his own authority, change the ABM Treaty in so fundamental a manner without obtaining the Senate's advice and consent again.