May 25, 1999
The Legal Status of the ABM Treaty
Feith, Douglas J., former Deputy Assistant Secretary of Defense
for Negotiation Policy, partner, Feith & Zell; accompanied by
George Miron, Washington, DC................................... 228
Prepared statement of........................................ 231
Supplementary remarks of Douglas J. Feith and George
Miron on the Legal Status of the ABM Treaty............ 304
Glennon, Michael J., professor of law, the University of
California, Davis, CA.......................................... 276
Prepared statement of........................................ 280
Rivkin, David B., Jr., partner, Hunton & Williams, accompanied by
Lee A. Casey, Washington, DC................................... 263
Prepared statement of........................................ 265
Letter to Senator Helm forwarding additional
documentation.......................................... 272
Text of a letter from the President to the Chairmen of
the Senate and House Committees on Appropriations...... 273
Report to Congress on the Memorandum of Understanding
relating to the treaty between the United States of
America and the Union of Soviet Socialist Republics on
the Limitation of Anti-Ballistic Missile Systems--May
26, 1972............................................... 273
Turner, Robert F., associate director, School of Law, Center for
National Security Law, University of Virginia, prepared
statement...................................................... 313
S. Hrg. 106-339
BALLISTIC MISSILES: THREAT AND RESPONSE
=======================================================================
HEARINGS
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
APRIL 15 AND 20, MAY 4, 5, 13, 25, 26, AND SEPTEMBER 16, 1999
__________
Printed for the use of the Committee on Foreign Relations
<snowflake>
Available via the World Wide Web: http://www.access.gpo.gov/congress/senate
U.S. GOVERNMENT PRINTING OFFICE
56-777 CC WASHINGTON : 2000
COMMITTEE ON FOREIGN RELATIONS
JESSE HELMS, North Carolina, Chairman
RICHARD G. LUGAR, Indiana JOSEPH R. BIDEN, Jr., Delaware
PAUL COVERDELL, Georgia PAUL S. SARBANES, Maryland
CHUCK HAGEL, Nebraska CHRISTOPHER J. DODD, Connecticut
GORDON H. SMITH, Oregon JOHN F. KERRY, Massachusetts
ROD GRAMS, Minnesota RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas PAUL D. WELLSTONE, Minnesota
CRAIG THOMAS, Wyoming BARBARA BOXER, California
JOHN ASHCROFT, Missouri ROBERT G. TORRICELLI, New Jersey
BILL FRIST, Tennessee
Stephen E. Biegun, Staff Director
Edwin K. Hall, Minority Staff Director
(ii)
THE LEGAL STATUS OF THE ABM TREATY
----------
TUESDAY, MAY 25, 1999
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 2:31 p.m., in
room D-562, Dirksen Senate Office Building, Hon. John Ashcroft
presiding.
Present: Senator Ashcroft.
Senator Ashcroft. This hearing will come to order, please.
I am delighted to convene this hearing. You are witnessing what
happens to a Senator who tries to run up five flights of
stairs. But I am delighted to be here.
Senator Biden, I believe, will be coming later. We have had
several votes scheduled, which commenced at 2:15. They will be
intermittent, and I thought it best if we could get underway.
This is a hearing on the legal status of the ABM Treaty.
First ratified in 1972, the treaty has been, for some, the
sacred text of arms control agreements, the underlying basis
for nuclear arms reduction with the former Soviet Union. Even
though the level of offensive nuclear warheads increased by
over 400 percent after the treaty entered into force,
proponents of the agreement continue to argue it is the
``cornerstone of strategic stability.''
It is my view that the treaty has never achieved its
objectives and, at present, poses a particularly grave threat
to the security of the United States and to the stability of
the world. It is in this context that we discuss the legal
status of the treaty.
When the Soviet Union disintegrated in 1991, the State
Department was in the process of reviewing how it would handle
U.S. treaty relationships with the USSR. In an effort to
encourage stability during a chaotic time, the Bush
administration adopted a model of ``presumptive continuity''
where treaties with the USSR would be presumed to continue with
appropriate successor States.
The Bush administration's policy was not an automatic
continuity or continuation of all treaties with the USSR, but
provided a framework to review each agreement and determine
necessary changes. Such a review was particularly important for
arms control agreements. As President Clinton stated in a
letter to Congressman Gilman in March 1997, and I quote,
``Particularly in the area of arms control, a case-by-case
review of each agreement was necessary.''
In that case-by-case review, the administration negotiated
a memorandum of understanding [MOU] on succession to the ABM
Treaty. The MOU, was concluded in September 1997 and identified
Ukraine, Belarus, Kazakhstan and Russia as the successor states
to the treaty. This selection of successor states seemed to be
consistent with a statement by the President that, and I quote,
``neither a simple recognition of Russia as the sole ABM
successor (which would have ignored several former Soviet
States with significant ABM interests) nor a simple recognition
of all NIS, Newly Independent States, as full ABM successors
would have preserved fully the original purpose and substance
of the treaty, as approved by the Senate in 1972.'' That was
the letter from the President to Congressman Gilman.
The administration went on to reiterate in that same letter
that the MOU on succession ``works to preserve the original
object and purpose of the treaty.''
To summarize, the administration believed in 1997 that
recognition of Russia alone or all of the successor states
together would not have preserved the original purpose of the
treaty. The administration negotiated the memorandum of
understanding to preserve the original purpose of the treaty.
The administration's initial formulation for the legal status
of the ABM Treaty begs two questions, however. First, if the
MOU is essential to preserve the original purpose of the ABM
Treaty, what is the status of the treaty since the MOU has not
been ratified? Second, if the MOU is rejected by the Senate,
what will be the status of the ABM Treaty?
The answer to those two questions must be the same, and it
is the answer that this administration does not want to hear.
The fact that this treaty cannot be carried out without the MOU
is evidence enough that it expired with the collapse of the
Soviet Union. The fact that this treaty cannot be carried out
without the MOU on succession is evidence enough that this
treaty will remain void if the Senate rejects the succession
arrangement.
That is a key point my colleagues in the Senate need to
understand. This is not just a debate on a succession
arrangement to the ABM Treaty. If the administration ever
submits the MOU on succession to the Senate, this will be a
vote to revive an expired treaty, a vote on the ABM Treaty of
1999.
When faced with this uncomfortable fact and the awareness
that the Senate would almost certainly reject MOU, the
administration modified its legal argument on ABM Treaty
succession. When pressed on the status of the ABM Treaty if the
MOU on succession is rejected by the Senate, President Clinton
wrote to Congressman Gilman and Senator Helms in a subsequent
letter.
``Belarus, Kazakhstan and Ukraine each has ABM Treaty-
related assets on its territory. Each has participated in the
work of the SCC, [the Standing Consultative Commission of the
treaty], and each has affirmed its desire to succeed to the
obligations of the former Soviet Union under the treaty.
``Thus,'' and I continue to quote, ``a strong case can be
made that even without the MOU, these three states are parties
to the treaty . . . Finally, the United States and Russia
clearly are parties to the treaty. Each has reaffirmed its
intention to be bound by the treaty, and each has actively
participated in every phase of the implementation of the
treaty, including the work of the SCC; and each has on its own
territory extensive ABM Treaty-related facilities. Thus there
is no question that the ABM Treaty has continued in force and
will continue in force, even if the MOU is not ratified.'' That
letter from Clinton to Gilman and Helms, May 21, 1998.
Only 6 months after stating that neither Russia alone nor
all the successor states could fulfill the original purpose of
the treaty, the President argues that clearly Russia is a party
to the treaty, and a few other successor states may also be
parties. Such inconsistency from the administration on a matter
this important to U.S. national security is troubling. Indeed,
administration lawyers briefing Congress in January 1998 could
not say whether any country which emerged from the Soviet Union
was bound by the ABM Treaty.
Such ambiguity within the administration makes it all the
more clear that the ABM Treaty will expire and will remain void
unless the Senate approves the MOU on succession. The MOU is
necessary because the treaty cannot be fulfilled without
amending. The territory covered by the treaty is changed.
Additional parties are added to the treaty. Treaty mechanisms,
such as the Standing Consultative Commission, are altered, and
the strategic landscape upon which the ABM Treaty was based is
dramatically different. These are substantial amendments to the
treaty. And in our constitutional form of government, the
Senate has a responsibility to advise and consent on such
amendments.
As is well established in U.S. law, and I quote, ``A
significant amendment to a treaty must follow the mandate of
the treaty clause and therefore must be proposed by the
President and be ratified following the advice and consent of
the Senate,'' New York Chinese T.V. Programs, Inc., vs. U.E.
Enterprise, 954 Fed 2d.
I find it hard to understand why my Democratic colleagues,
many of whom waged an extensive fight in the eighties over the
interpretation of several words in the ABM Treaty, are not
defending the Senate's prerogative to approve these dramatic
changes in the treaty today. Congress has made its will clear
with regard to succession arrangements for the ABM Treaty.
The Senate gave its advice and consent to the CFE Flank
Document in May 1997 and attached a condition that any
successor arrangement to the ABM Treaty be submitted for the
Senate's advice and consent. In accepting this condition, the
administration is bound not to recognize any party to the ABM
Treaty until the Senate approves a successor arrangement.
We will discuss the compelling constitutional and
international law arguments surrounding the treaty status
today, but the condition in the CFE Flank Document for me
removes all doubt that this treaty is not in force until the
Senate approves a succession arrangement. It is noteworthy that
the State Department's senior arms control lawyer takes a
different view than the White House on the legal status of the
ABM Treaty.
While the President argues that the treaty certainly is in
force, at least with Russia, Mary Elizabeth Hoinkes recently
stated, ``Absent a succession agreement, we do not have a firm
treaty relationship.'' She made that statement in the Forum on
the ABM Treaty sponsored by the Center for National Security
Law of the University of Virginia School of Law in February of
this year. She may be swimming against the tide within the
administration, but her intellectual honesty is appreciated.
The President is bound by the Constitution to submit these
treaty amendments to the Senate for advice and consent. And the
condition of the CFE Flank Document will help him fulfill his
constitutional responsibilities. I do not believe that he can
de facto recognize Russia, or any other former Soviet Republic,
as a party to the treaty before the Senate consents.
Some of the legal arguments that will be discussed today
are complex, but the central point of this hearing is that the
ABM Treaty is expired and will remain expired unless the Senate
approves a succession arrangement.
I thank you all for your additional patience.
It is now my pleasure to call the first panel to testify,
and I am pleased that each of you has come today. Mr. Douglas
Feith, former Deputy Assistant Secretary of Defense for
Negotiation Policy and a partner at Feith and Zell. Mr. Feith
is accompanied by Mr. George Miron, a partner at Feith and
Zell; Mr. David Rivkin, partner at Hunton and Williams,
accompanied by Mr. Lee Casey, associate at Hunton and Williams;
and finally Professor Michael Glennon, professor of law at the
University of California, Davis.
Welcome to the committee. Mr. Feith, if you would please,
begin.
STATEMENT OF DOUGLAS J. FEITH, FORMER DEPUTY ASSISTANT
SECRETARY OF DEFENSE FOR NEGOTIATION POLICY; PARTNER, FEITH &
ZELL, WASHINGTON, DC
Mr. Feith. Thank you, Mr. Chairman. My colleague, George
Miron, and I are honored to have the opportunity to testify
before this committee this afternoon. First of all, I would
like to extend condolences to the committee on the passing of
Admiral Bud Nance. Admiral Nance and I worked together at the
National Security Council at the beginning of the Reagan
administration.
Senator Ashcroft. We are very pleased to receive those. The
entirety of the Foreign Relations Committee mourns his passing
and misses him profoundly.
Mr. Feith. Mr. Chairman, the full testimony that we wish to
present is contained in our legal memorandum, which we provided
to the committee. The memorandum is lengthy, so we respectfully
ask the committee to include it in the record of these
hearings. And I now propose to make only a summary opening
statement.
Senator Ashcroft. Without objection, the entire memorandum
will be part of the record of the hearing.
Mr. Feith. Thank you.
Mr. Chairman, our legal analysis of the status of the ABM
Treaty of 1972 concludes that following the Soviet Union's
extinction, the ABM Treaty did not become a treaty between the
United States and the Russian Federation. Rather, as a
bilateral, non-dispositive treaty, the ABM Treaty lapsed when
the USSR ceased to exist. In December 1991, new states that
emerged on what had been USSR territory declared independence,
announced the formation of the Commonwealth of Independent
States, and proclaimed that the USSR, ``as a subject of
international law and a geo-political reality, no longer
exists.''
Soon thereafter, the United States acknowledged that the
USSR had dissolved and is no more. The United States has
officially expressed its view that upon a state's extinction,
that state's bilateral treaties automatically lapse. The U.S.
Government has acted in accordance with that view in connection
with the extinction of the Kingdom of Hawaii in 1898, the
dissolution of the Austro-Hungarian Empire at the end of World
War I, and the dissolution of Yugoslavia in 1992.
The U.S. view is consistent with the opinion of
international legal scholars who have addressed that issue.
With consistency over more than 200 years, scholarly writings
state that when a state ceases to exist, or becomes extinct in
legal parlance, that state's treaties have no further effect.
Such treaties are said to lapse. The lapsing occurs by
operation of law, which is to say automatically, upon the
state's extinction. It does not require action by any other
treaty party. No judicial decision or applicable treaty
contradicts this principle. And U.S. Supreme Court has
established that works of international legal scholars can be
accepted as evidence of the law.
In 1898, the State Department stated, as a principle of
public law, that a treaty expires when one of the parties
``loses its existence.'' In support, the State Department
quoted from General Henry Halleck well-regarded treatise,
International Law, which was written in 1861.
Halleck said that the principle of public law, which causes
treaties, when a party ceases to exist, to be regarded as
abrogated, is thus stated, ``The obligation of treaties, even
where some of their stipulations are in their terms perpetual,
expire in case either of the contracting parties loses its
existence as an independent state.''
In 1897, U.S. Secretary of State John Sherman invoked
scholarly works to explain to the Government of Japan why the
treaties made by the Kingdom of Hawaii would not survive the
U.S. annexation of the Kingdom's territory. He said it is not
the treaty by which the U.S. annexed Hawaii that abrogates the
Hawaiian Kingdom's treaties, rather ``it is the fact of
Hawaii's ceasing to exist as an independent contractant that
extinguishes those contracts.''
Likewise in 1902, Secretary Elihu Root ordered to be
published a report by a law officer in the Office of the
Secretary of the War Department, which dealt with the treaty
obligations of extinct states. That report says, ``Where there
is a complete change not only of sovereigns but of sovereignty
of necessity the agreement ends.'' Similar observations include
the following: ``It is clear that political, including personal
and dynastic treaties of the extinguished state fall to the
ground.'' That was written by Professor Amos Hershey, the
University of Indiana, in 1911.
``The extinction of the personality of a state results
traditionally in an abrogation of all political and military
treaties concluded between the now extinct entity and other
states,'' Professor Gerhard von Glahn, University of Minnesota,
in 1962.
Many other scholars have expressed the same opinion.
Neither U.S. nor Russian officials deny that the Soviet
Union ceased to exist in December 1991. Its international legal
personality terminated. In other words, it is not in dispute
that the Commonwealth of Independent States and the U.S.
Government in 1991 were accurate when they declared that the
Soviet Union had ceased to exist as a state.
I also would emphasize that the ABM Treaty, as we all know,
was a bilateral treaty. As noted, scholars for over 200 years
have been nearly unanimous in concluding that upon a state's
extinction, its bilateral treaties that are not dispositive
lapse. And a treaty is dispositive if it irrecoverably fixes a
right to a particular territory; for example, delineates a
boundary between states. And the ABM Treaty was not a
dispositive treaty. Dispositive treaties are also supposed to
be--are treaties that were intended to be perpetual, no matter
what happens to the parties. The ABM Treaty, by its own terms,
can be abrogated on 6 months' advance notice by the parties,
which also makes it clear that it was not a dispositive treaty.
No judicial decision contradicts the scholarly view that a
non-dispositive, bilateral treaty of an extinct state does not
automatically become a treaty of its successor or successors.
The United States has never declare that it considered itself
bound by international law to accept as a treaty partner the
successor to an extinct state.
Now the President has constitutional authority to grant
recognition to foreign states. Were he to rely on that
authority as the legal basis for making a treaty, bringing into
being a treaty that would not otherwise exist, he would put the
United States under a legal obligation to other states without
Senate advice and consent. The President's recognition
authority cannot be exercises in a manner that would nullify
the U.S. Senate's authority to advise and consent to the making
of a treaty.
The President cannot, without Senate approval, bring a
lapsed treaty back to life by declaring that a given foreign
state is the successor or continuation of an extinct state. And
it is principles of international law that govern the issue of
whether a state has become extinct.
However broad the President's authority may be to recognize
states and governments of states under the U.S. Constitution's
Receive Ambassadors Clause, it is necessarily limited by the
specific constitutional requirement for Senate advice and
consent on the making of treaties. In sum, when the USSR became
extinct, its bilateral, nondispositive treaties lapsed, hence
the ABM Treaty lapsed. By operation of law, that is
automatically. It did not become a treaty between the United
States and Russia.
The practical conclusion relating to this committee's work
of this description of the law is that the multilateralization
memorandum of understanding that you, Mr. Chairman, discussed
in your opening remarks is not simply an amendment of an
existing treaty. It would be a new treaty. If approved, as you
noted, it would create the ABM Treaty of 1999. And if not
approved, the status quo would continue. That is, there would
be no legally binding international obligation prohibiting the
United States from deploying ballistic missile defenses.
Thank you, Mr. Chairman.
Senator Ashcroft. Thank you very much. Mr. Feith.
[The prepared statement of Mr. Feith and Mr. Miron and
material provided subsequent to the hearing follows:]
Prepared Statement of Douglas J. Feith and George Miron
Did the ABM Treaty of 1972 Remain in Force After the USSR Ceased to
Exist in December 1991?
and
Did it Become a Treaty Between the United States and the Russian
Federation?
i. introduction
This Memorandum concludes that, following the extinction of the
Union of Soviet Socialist Republics (``USSR''), the Anti-Ballistic
Missile (``ABM'') Treaty of 1972 did not become a treaty between the
United States and the Russian Federation. Rather, as a bilateral, non-
dispositive treaty, the ABM Treaty of 1972 between the United States
and the USSR lapsed when the USSR ceased to exist.
In December 1991, new States that emerged on what had been USSR
territory declared independence, announced the formation of the
``Commonwealth of Independent States'' (``CIS'') and proclaimed that
the USSR ``as a subject of international law and a geopolitical reality
no longer exists.'' By December 21, 1991, the list of States belonging
to the CIS and subscribing to the view that, with the CIS's
establishment, ``the Union of Soviet Socialist Republics ceases to
exist,'' comprised Azerbaijan, Armenia, Belarus, Kazakhstan,
Kyrgyzstan, Moldova, the Russian Federation, Tajikstan, Turkenistan,
Ukraine and Uzbekistan. Soon thereafter, the United States acknowledged
that the USSR ``is no more.''
In recent centuries, instances in which States have ceased to exist
have not been numerous. The United States has officially expressed its
view that, upon the extinction of a State, such State's bilateral
political treaties automatically lapse, and has acted in accordance
with that view in connection with the extinction of the Kingdom of
Hawaii in 1898, the dissolution of the Austro-Hungarian Empire at the
end of World War I, and the dissolution of Yugoslavia in 1992. The U.S.
view is consistent with the opinion of international legal scholars who
have addressed that issue. With consistency over more than a hundred
years, scholarly writings state that when a State ceases to exist
(becomes ``extinct'') that State's bilateral treaties have no further
effect. Such treaties are said to lapse or ``fall to the ground.'' The
lapsing occurs by operation of law--that is, automatically upon the
State's extinction. It does not require action by any other treaty
party. No judicial decision or applicable treaty contradicts this
principle, and the U.S. Supreme Court has established that ``where
there is no treaty and no controlling executive or legislative act or
judicial decision,'' works of international legal scholars are
acceptable as evidence of the law.
President William Clinton has taken the view that the ABM Treaty of
1972 remains ``in force.'' Representative Ben Gilman, Chairman of the
House Committee on International Affairs, asked President Clinton in a
June 1997 letter which State, if any, does the United States believe is
now its ABM Treaty partner. President Clinton in November 1997 replied
that the ``succession'' issue is ``unsettled,'' adding:
Neither a simple recognition of Russia as the sole ABM
successor (which would have ignored several former Soviet
states with significant ABM interests) nor a simple recognition
of all NIS [newly independent states] as full ABM successors
would have preserved fully the original purpose and substance
of the Treaty, as approved by the Senate in 1972.
Representative Gilman and Senator Jesse Helms, Chairman of the
Senate Foreign Relations Committee, wrote President Clinton in March
1998 and stated that, if the Administration cannot now identify any
country in addition to the United States that is bound by the treaty,
then Congress would have to conclude that the treaty is no longer in
force. In May 1998, President Clinton replied that the ABM Treaty is in
force between the United States and the Russian Federation. He did not
state the principle of law on which he based this conclusion. Nor did
he explain how this conclusion could be squared with his November 1997
response to Representative Gilman.
A. Assistant Attorney General Dellinger's Paper
The most extensive publicly available discussion of the ABM
Treaty's current legal status produced by a Clinton Administration
official is in the June 29, 1996 memorandum from Walter Dellinger,
Assistant Attorney General, Office of Legal Counsel, to Presidential
Counsel Jack Quinn (``Dellinger Paper''). The Dellinger Paper contends
that as a matter of international law the ABM Treaty did not lapse, for
these reasons: (i) The Treaty imposed a permanent burden on the
parties'' respective territories, which would bring the ABM Treaty of
1972 within the international legal doctrine of ``dispositive''
treaties (a treaty is dispositive if it irrevocably fixes a right to
particular territory, e.g. it delineates a border between two
States),\1\ (ii) U.S. past diplomatic practice assumes that bilateral
treaties ``generally'' survive a State's extinction, and (iii) Article
34 of the 1978 Vienna Convention on Succession of States in Respect of
Treaties embodies a general principle of law that bilateral treaties
survive a State's extinction. This Memorandum, concluding that the
Dellinger Paper is incorrect regarding international law, specifically
refutes the three foregoing bases for the contention that the ABM
Treaty of 1972 did not lapse.
---------------------------------------------------------------------------
\1\ The concept of dispositive treaties is elaborated infra Part
IV.K.
---------------------------------------------------------------------------
A.A.G. Dellinger separately argues that irrespective of
international law, the President can bring a treaty into existence
without Senate consent by exercise of ``exclusive'' Executive powers.
As this Memorandum shows, however, the President has no power to bring
a treaty into existence without Senate consent.
B. Methodology and Scope of this Memorandum
After addressing erroneous Constitutional law assertions in the
Dellinger Paper, this Memorandum examines the sources of international
law bearing on the question of whether, upon the USSR's extinction, the
ABM Treaty became a treaty between the United States and the Russian
Federation. This analysis does not describe the principles of
international law that govern the question of whether a party to a
treaty in force has grounds to terminate that treaty.\2\ Nor does it
describe the rules of international law for allocating the assets, the
debt or the archives of a State that has become extinct. Those rules,
parts of the law of ``State succession,'' do not resolve the question
of how a State's extinction affects what had been that State's
bilateral treaties. For example, although the United Nations and the
European Community have declared that no State is a continuation of the
Social Federal Republic of Yugoslavia (``SFRY''), they nonetheless
expect the successor States of the extinct SFRY to bear portions of the
SFRY's debt (in proportions to be determined by a continuing conference
of the successor States that is called the ``Brussels Process'').\3\
---------------------------------------------------------------------------
\2\ Grounds for termination of a treaty include the other party's
breach or fraud, and a fundamental change of circumstances that defeats
the treaty's object and purpose (the latter is referred to as the
doctrine of rebus sic standibus).
\3\ The Brussels Process is described in Declaration of Christopher
R. Hill, Director, Office of South Central European Affairs, United
States Department of State, filed in Federal Republic of Yugoslavia v.
Park-71st Corp., No. 95 Civ. 3659 (AGS) (S.D.N.Y.) (Sept. 21, 1995),
complaint dismissed, 913 F.Supp. 191 (S.D.N.Y. 1995) (App. 1). See also
The Ottoman Debt Arbitration (1925), I.R.I.A.A. 529 (debt of the
dissolved Ottoman Empire); Administration of Finances v. Ornstein, Ann.
Dig. 75 Roumanian Court of Cassation, Third Chamber (1926) (debt of a
successor of the Austro-Hungarian Empire); Restatement (Third) of the
Foreign Relations Law of the United States Sec. 209 (1986); P. K.
Menon, The Succession of States in Respect to Treaties, State,
Property, Archives and Debt 158-201 (1991); Parry and Grant,
Encyclopedic Dictionary of International Law 279 (1986); Thomas Baty,
Division of States: Its Effect on Obligations, 9 Transactions of the
Grotius Society, Problems of War and Peace 119, 121-26 (1923)
(published on behalf of the British Institute of International and
Comparative Law (1962)); Arthur Berridale Keith, The Theory of State
Succession with Special Reference to English and Colonial Law 99-100
(1907).).
---------------------------------------------------------------------------
This Memorandum attempts to describe international law as it would
be understood by a disinterested judicial tribunal resolving a dispute
between two States as to whether a particular treaty is in force
between them. This analysis assumes that the tribunal would (i) decide
for itself the relevant questions of fact and law and (ii) give the
parties' contentions the weight they deserved but would not be bound by
these contentions.
C. Summary of Conclusions
The pertinent sources of international law support the conclusion
that, upon the USSR's extinction, the ABM Treaty lapsed, so it no
longer has the force of international law. This conclusion is based on
the following observations:
1. In December 1991, as accurately characterized by
declarations of the CIS States and of the United States, the
changes that had recently occurred on what had been the USSR's
territory caused the USSR, by operation of law, to cease to
exist as a State--that is, such changes brought to an end the
international legal personality of the USSR.
2. The ABM Treaty of 1972 was a bilateral treaty.
3. The opinions of recognized scholars constitute evidence of
customary international law in a case in which there is (a) no
controlling judicial decision, (b) no controlling State
practice and (c) no otherwise controlling treaty.
4. Scholars are nearly unanimous in concluding that, upon a
State's extinction, its bilateral treaties that are not
``dispositive'' do not by operation of law, i.e.,
automatically, become treaties between the extinct State's
successor and the extinct State's treaty partner--that is, such
bilateral treaties lapse.
5. No judicial decision contradicts the scholarly view that a
non-dispositive bilateral treaty of an extinct State does not
automatically become a treaty of its successor or successors.
The U.S. practice is generally consistent with the scholars'
view.
6. The United States has never before considered itself bound
by international law to accept as its treaty partner the
successor to an extinct State.
7. The 1978 Vienna Convention on Succession of States in
Respect of Treaties does not bind the United States because the
United States is not a party to the Convention.
8. The 1978 Convention in any event would not impose the ABM
Treaty on the United States because the imposition would be
incompatible with the ABM Treaty's object and purpose.
9. Article 34.1 of the 1978 Vienna Convention on the
succession of States in Respect of Treaties has not passed into
customary international law.
10. The ABM Treaty did not become a treaty between the United
States and the Russian Federation by devolution.
11. The ABM Treaty was not a dispositive treaty.
ii. u.s. constitution
This Memorandum deals primarily with the international law issues
relating to the current legal status of the ABM Treaty of 1972. As the
Dellinger Paper, however, puts forward a combination of international
law and U.S. Constitutional law arguments, it is necessary to say why
Dellinger's Constitutional law contentions are erroneous.
The Dellinger Paper asserts that, regardless of whether under
international law the ABM Treaty of 1972 became a treaty with the
Russian Federation, an ABM treaty was brought into existence by
agreement of the Russian Federation and the President of the United
States, notwithstanding the absence of U.S. Senate advice and consent.
Dellinger contends that the terms of what he argues is an ABM treaty
between the United States and the Russian Federation are not so
different from those of the ABM Treaty of 1972 as to constitute a
substantive amendment of the latter. Dellinger does not argue that an
amendment to the ABM Treaty could have been Constitutionally
accomplished by an ``Executive Agreement''--that is, by an agreement
that would not have required Senate action. Rather, he cites powers--
i.e., to interpret treaties, to implement treaties, and to recognize
the existence of foreign States--that he asserts rest ``exclusively''
with the President. Dellinger also seems to argue that the Senate is
imputed with knowledge of the breadth (as Dellinger understands it) of
Presidential power vis-a-vis treaty-making, and therefore that, when
the Senate consents to a treaty, it implicitly authorizes later
Presidents to decide without further Senate consent whether the treaty
should become a treaty with a successor to the extinct State with which
the treaty had been made.\4\
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\4\ Dellinger does not espouse, and this Memorandum therefore does
not address, the thesis stated in Bruce Ackerman and David Golove, Is
NAFTA Constitutional?, 108 Harv. L. Rev. 799 (1995), that in the 1940s,
Congress and the President, without following a process for amendment
specified in Article V, expunged from the Constitution the requirement
of Article II that treaties require the concurrence of two-thirds of
the Senators present. For a skeptical view of the Ackerman/Golove
thesis, see Lawrence H. Tribe, Taking Text Seriously: Reflections on
Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev.
122 (1995).
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Dellinger's interpretation of the Constitution here is flawed. The
principal errors are these:
A. The President Does Not Have Exclusive Authority to Interpret
Treaties
Treaties, like statutes, are the supreme law of the land--under the
United States Constitution, Art. VI. Cl. 2 \5\--and, as a consequence:
``[T]he courts have authority to construe treaties. . . .'' \6\
Therefore, the Constitution vests in U.S. courts the authority to
interpret treaties definitively. In exercising that authority, courts
say they give great weight to interpretations suggested by the
Executive Branch,\7\ but the courts are not bound by those suggestions
and have on occasion rejected them.\8\
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\5\ U.S. Const. art. VI, cl. 2. See Foster v. Neilson, 27 U.S. (2
Pet.) 253 (1829); United States v. Schooner Peggy, 5 U.S. (1 Cranch.)
103 (1801); British Caledonian Airways Ltd. v. Bond, 665 F.2d 1153,
159-62 (D.C. Cir. 1981); Kenneth C. Randall, The Treaty Power, 51 Ohio
St. L.J. 1089, 1110-12 (1990)./
\6\ Japan Whaling Ass'n v. American Cetacean Society, 478 U.S. 221,
229 (1986), citing Baker v. Carr, 369 U.S. 186, 217 (1969), as holding
that ``courts have authority to construe treaties and executive
agreements.'' Doe v. Braden, 57 U.S. (16 How.) 635, 657 (1853);
Valentine v. United States, 299 U.S. 5, 11 (1936); Xerox Corp. v.
United States, 41 F.3d 647, 652 (1995); Alcan Aluminum Corp. v. United
States, 986 F. Supp. 1436, 1440 (Ct. Int'l Trade 1997), Snap-On Tools,
Inc. v. United States, 26 Cl. Ct. 1045, 1064 (Cl. Ct. 1997); United
States v. Busby, 1996 WL 927938 (N.M. Ct. Crim. App.) 3 (1996). For a
discussion of the principles courts use in interpreting treaties, see
James C. Wolf, The Jurisprudence of Treaty Interpretation, 21 U.C.
Davis L. Rev. 1023 (1988). Wolfe provides a list of 65 Supreme Court
decisions interpreting treaties, from 1795 to 1988. Id. at 1025 n.14.
\7\ United States v. Stuart, 489 U.S. 353, 369 (1989); Sumitomo
Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180-85 (1982); Kolovrat
v. Oregon, 366 U.S. 187, 194-95 (1961); The Amiable Isabella, 19 U.S.
(6 Wheat.) 1, 71 (1821); Air Canada v. United States Dept. of
Transportation, 843 F.2d 1483, 1487 (D.C. Cir. 1988). See also Military
Payment Orders and Certificates Issued to Prisoners of War--Treaty
Interpretation Claims Before and Subsequent to Treaty, 38 Comp. Gen. 7,
8 (B-136066, July 7, 1958) (``When there is a doubt as to the meaning
of a treaty provision, the construction of the treaty by the political
department of the government, while not conclusive, is given
weight.''); Sullivan v. Kidd, 254 U.S. 433, 442 (1920) (``While the
question of the construction of treaties is judicial in nature, . . .
the construction placed upon the treaty . . . by the Executive
Department . . . should be given much weight.'')./
\8\ David J. Bederman, Revivalist Canons and Treaty Interpretation,
41 U.C.L.A. L. Rev. 953, 962 (1994). See also Chan v. Korean Air Lines,
Ltd., 490 U.S. 122, 133-34 (1989) (Court rejects Executive Branch
interpretation of Article of the Warsaw Convention for the Unification
of Certain Rules Relating to International Transportation By Air);
Perkins v. Elg, 307 U.S. 325, 334-41 (1939) (Court rejects State
Department interpretation of treaty between United States and Sweden
relating to citizenship and naturalization); Haitian Centers Council,
Inc. v. McNary, 969 F.2d 1350, 1361-65 (2nd Cir. 1992), cert. granted,
judgment vacated as moot, Sale v. Haitian Centers Council, Inc., 509
U.S. 918 (1993) (Court of Appeals rejects as ``untenable'' the
Executive Branch interpretation of the 1951 Convention Relating to the
Status of Refugees, 969 F.2d at 1362); British Caledonian Airways Ltd.
v. Bond, 665 F.2d 1153, 1160-61 (1981) (court rejects Executive Branch
interpretation of Convention on International Civil Aviation); Galanis
v. Pallanck, 568 F.2d 234, 239 (2d Cir. 1977); Greci v. Birknes, 527
F.2d 956, 960 (1st Cir. 1976); Cannon v. U.S. Dept. of Justice, United
States Parole Commission, 973 F.2d 1190, 1192 (5th Cir. 1992); Mackin
v. United States, 668 F.2d 122, 132-43 (2d Cir. 1981); Abu Eain v.
Wilkes 641 F. 2d 504, 517-18 (7th Cir. 1981); Caltagirone v. Grant, 629
F.2d 739, 742-45 (2d Cir. 1980). Judicial treaty interpretation that
accepted as accurate the views of the Executive Branch include Kolovrat
v. Oregon, 366 U.S. 187, 192-93 (1961); Bacardi Corp. of America v.
Domenech, 311 U.S. 150, 157-64 (1940); Jordan v. Tashiro, 278 U.S. 123,
127-30 (1928).
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Perhaps the most celebrated case of judicial rejection of an
Executive Branch treaty interpretation is United States v. Libellants
and Claimants of the Schooner Amistad,\9\ the subject of the motion
picture ``Amistad.'' In that case, inhabitants of Africa who had been
kidnapped by Spaniards in violation of the laws of Spain mutinied on
the high seas and were later apprehended in Connecticut by American
officials. The Attorney General asked the court to order that the
detainees be delivered to persons claiming to be the detainees''
owners. The Attorney General argued that the Treaty of 1795 between the
United States and Spain should be construed to deny a person held in
custody a right to assert that he is not anyone's property. The Court,
per Justice Story, rejected the Attorney General's interpretation of
the Treaty: ``[T]he Treaty with Spain never could have intended to take
away the equal rights of all foreigners, who should contest their
claims before any of our Courts, to equal justice . . ..'' \10\
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\9\ 40 U.S. (15 Pet.) 518 (1841).
\10\ Id. at 596.
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Moreover, it is often impossible to measure the ``weight'' a court
gives to an Executive Branch view, because, at the same time that the
court announces that it is giving the Executive Branch view great
weight, the court has independently satisfied itself of the correctness
of that view. Thus, one court said it concurred in the State
Department's view because that view was ``coupled'' with the court's
conclusion that the view was ``based on supporting facts.'' \11\
Another court accepted the Executive Branch's interpretation of a
treaty after ``finding it well-founded and supported by the weight of
legal authority.'' \12\ One commentator observed:
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\11\ Matter of the Extradition of Demjanjuk, 612 F. Supp. 544, 562-
63 (N.D. Ohio 1985).
\12\ Ivancevic v. Artukovic, 211 F.2d 565, 573 (9th Cir.), cert
denied, 348 U.S. 818 (1954).
A typical passage from a court opinion interpreting a treaty
will begin with the acknowledgment that ``the views of the
State Department are ordinarily entitled to great weight'', but
then will go on to say in words or substance that ``we find
them wholly unpersuasive in the present case. . . .'' The
judicial adjectives to describe the State Department's various
communications on the meaning and application of the treaty
ranged from ``entirely conclusory'' to ``largely
insignificant'' to ``an aberration.'' \13\
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\13\ Lori Fisler Damrosch, Application of Customary International
Law by National Tribunals, 76 Am. Soc'y Int'l. L. Proc. 231, 252 (Apr.
22-24, 1982).
The most recent Supreme Court opinion interpreting a treaty, Sale
v. Haitian Centers Council, Inc.,\14\ devoted ten pages to an analysis
of the meaning of Article 33 of the 1951 Convention relating to the
Status of Refugees, including an examination of the history of the
drafting of the Convention, and a review of English-French dictionaries
to determine how the parenthetical use of ``refouler'' contributed to
understanding the meaning of the phrase ``expel or return
(``refouler'').'' That exercise would have represented needless effort
if the Court had believed that the Executive Branch's interpretation of
Article 33 was necessarily controlling.
---------------------------------------------------------------------------
\14\ 509 U.S. 155, 177-87 (1993).
---------------------------------------------------------------------------
One scholar observed:
Yet it is clear that the President's interpretive power is
limited. He cannot make an altogether new treaty and dispense
with the requirement of Senate advice and consent by calling
that treaty an ``interpretation'' of an earlier one. . . . The
President's semantic denomination of his act cannot by itself
control the procedure constitutionally required.\15\
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\15\ Michael J. Glennon, Constitutional Diplomacy 134 (1990). From
1977 to 1980, Professor Glennon was Legal Counsel to the United States
Senate Foreign Relations Committee.
The Judiciary's power to interpret treaties includes the power to
determine whether a treaty continues to exist. One court observed that
in exercising the power to decide whether a treaty exists, the court
gives weight to the Executive Branch's view when the court is satisfied
that that view ``is based on supporting facts.'' \16\
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\16\ Ivancevic v. Artukovic, 211 F.2d 565, 573 (9th Cir.), cert.
denied, 348 U.S. 818 (1954). In articulating the rule that courts
should give great weight to the Executive Branch view, courts place
varying degrees of emphasis on the weight they say they are giving to
the view of the Executive Branch. See, e.g., Terlinden v. Ames, 184
U.S. 270, 285 (1902), which, after reviewing the history of the
creation of the German Empire in the Nineteenth Century, found that in
the creation of the Empire, the Kingdom of Prussia had not lost its
identity, and therefore that the Treaty of extradition between the
United States and the Kingdom of Prussia remained in effect unless it
had later been terminated by one of the parties. On the issue of
whether the Treaty had been terminated, the court found no evidence of
``governmental action'' to terminate. The Court's inquiry into the
German Empire's constitution and the international law of treaties and
state succession in order to determine whether the treaty with Prussia
survived the formulation of the German Empire has been characterized as
``an ordinary adjudication in which the Court plays its usual role,
albeit with some deference to the evidence adduced by government
experts.'' Thomas M. Franck, Political Questions/Judicial Answers: Does
the Rule of Law Apply to Foreign Affairs? 23-25 (1992). Also, see Then
v. Melendez, 92 F.3d 851, 854 (9th Cir. 1996), which examined the
history of extradition treaties between the United States and the
United Kingdom to satisfy itself that none of the changes that occurred
when the British colony of Singapore emerged as an independent State
nullified, as to territory within Singapore, the 1931 U.S.-U.K.
extradition treaty. In reaching that conclusion, the court said it had
given great weight to the views of the Executive Branch as to the
historical facts, because ``federal courts are not as well equipped as
the Executive Branch to determine when the emergence of a new country
brings changes that terminate old treaty obligations.'' Similarly, in
Arnbjornsdottir-Mendler v. United States, 721 F.2d 679 (9th Cir. 1983),
after giving ``deference'' to the Executive Branch on extradition
matters, and after having made ``an independent review'' of Iceland's
``historical continuity,'' the court concluded that an extradition
treaty existed between the United States and Iceland. One Court of
Appeals decision, Saroop v. Garcia, 109 F. 3d 165 (3d Cir. 1997),
contains language to the effect that whether a treaty exists between
the United States and another State is a ``political question'' that no
American court has capacity to decide. That language was not necessary
to resolve the case, because the court held that in any event on the
question before it, the court would, as a matter of ``comity,'' defer
to a decision of the highest court of Trinidad and Tobago. In any
event, the discussion of the political question doctrine at notes 17-
20, infra, shows that the Executive Branch is expected to stay within
its zone of Constitutional authority, even when a case challenging its
encroachment cannot be presented to a court in a justiciable form.
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The preceding description of judicial paramountcy in treaty
interpretation is not intended to imply that every separation-of-power
dispute can be resolved by a court. Some cannot be so resolved, because
they are ``political'' questions, and therefore non-justiciable. For
example, whether a particular state measure fulfills the Constitution's
guaranty of a ``republican form of government'' is a non-justiciable
political question.\17\ But the fact that a particular action of the
Executive Branch cannot be tested in court does not give that Branch
carte blanche to encroach on another Branch. The Supreme Court made the
point in 1992 in United States Dept. of Commerce v. Montana: \18\
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\17\ Colegrove v. Green, 328 U.S. 549 (1946). See also Baker v.
Carr, 369 U.S. 186, 209 (1962).
\18\ 503 U.S. 442, 457-58 (1992).
In invoking the political question doctrine, a court
acknowledges the possibility that a constitutional provision
may not be judicially enforceable. Such a decision is of course
very different from determining that specific congressional
---------------------------------------------------------------------------
action does not violate the Constitution. (emphasis added)
As A.A.G. Dellinger stated in a May 1996 opinion, the Executive
Branch has an ``independent constitutional obligation to interpret and
apply the Constitution.'' \19\ Dellinger also stated that the Congress
as well as the President has a duty to resist unconstitutional
encroachment by the other Branch. Dellinger invoked a 1933 opinion of
Attorney General Mitchell:
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\19\ Walter Dellinger, Assistant Attorney General, Memorandum for
the General Counsels of the Federal Government, The Constitutional
Separation of Powers Between the President and Congress (May 7, 1996),
1996 WL 876050.
Since the organization of the Government, Presidents have
felt bound to insist upon the maintenance of the Executive
functions unimpa[i]red by legislative encroachment, just as the
legislative branch has felt bound to resist interferences with
its power by the Executive.\20\
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\20\ Opinion of Attorney General William Mitchell,
Constitutionality of Proposed Legislation Affecting Tax Refunds, 37 Op.
Att'y Gen. 56, 64 (Jan. 24, 1933).
In short, absence of an opportunity for judicial review for a
particular treaty interpretation would not give the President authority
to encroach on the Senate's power of advice and consent, or to arrogate
to himself the Congress'' power to nullify a treaty by means of a
statute that came into law without the President's signature, i.e., by
an override of a Presidential veto.
The rule that the Judiciary has the last word on treaty
interpretation was not impaired by the announcement in the Curtiss-
Wright Export case in 1936 that the President is the ``sole organ'' of
the federal government in the field of international relations.\21\
After Curtiss-Wright, as well as before, the Judiciary, not the
President, interpreted treaties definitively. That is not surprising,
given the narrowness of the issue resolved in Curtiss-Wright, i.e.,
whether the Congress, by Joint Resolution, could validly authorize the
President to issue regulations prohibiting a violation of a Joint
Resolution, when the President issued the proclamation the same day as
the Joint Resolution was adopted by both Houses.
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\21\ United States v. Curtiss-Wright Export Corp., 299 U.S. 304
(1936). For critical analyses of the ``sole organ'' dictum, see David
Gray Adler & Larry N. George, The Constitution and the Conduct of
American Foreign Policy 37-38 (1996); Raul Berger, Executive Privilege:
A Constitutional Myth, 133-35; Arthur Bestor, Respective Roles of
Senate and President in the Making and Abrogation of Treaties--The
Original Intent of the Framers of the Constitution Historically
Examined, 55 Wash. L. Rev. 1, 73-106 (1979); Randall, supra note 5, at
1106-11.
---------------------------------------------------------------------------
In the sixty-two years that followed the decision in Curtiss-
Wright, the Supreme Court has not invoked the ``sole organ'' doctrine
to deprive the judiciary of ultimate authority to interpret treaties.
Indeed, soon after Curtiss-Wright, the Court decided Guaranty Trust Co.
v. United States.\22\ The Court construed an executive agreement
between the United States and the Soviet Union (an agreement as to
which Senate advice and consent had not been obtained). In United
States v. Pink \23\ the Court referred to Guaranty Trust as supporting
the proposition that ``[e]ven Treaties with foreign nations will be
carefully construed so as not to derogate from the authority and
jurisdiction of the States.'' To the same purpose, the Court cited
Todok v. Union Bank of Harvard, Nebraska,\24\ construing a treaty
between the United States and Norway on testamentary disposition, where
``[t]he only question before us is the construction of the treaty.''
\25\
---------------------------------------------------------------------------
\22\ 304 U.S. 126 (1938).
\23\ 315 U.S. 203 (1942).
\24\ 281 U.S. 449 (1930).
\25\ Id. at 452.
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In short, whatever the sole organ doctrine may mean in other
contexts, it does not mean that the Executive Branch has exclusive
authority to interpret treaties. Indeed, it does not override the
judicial paramountcy in the interpretation of treaties.
Moreover, in light of the rule that a treaty, like a statute, is
the supreme law of the land,\26\ if the President had the final power
to interpret a treaty, he would have the de facto power to nullify or
``dispense with'' or ``suspend'' a treaty--that is, he would have a
power to suspend or dispense with a law. But the President has no power
to ``dispense with'' or to ``suspend'' a law--a principle announced in
United States v. Smith in 1806, which held that President James Madison
was bound by an Act of Congress that prohibited citizens from carrying
on war against a nation with which the United States was at peace.\27\
As the Court explained, ``because the President does not possess a
dispensing power,'' he cannot authorize anyone to disregard a
statute.\28\
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\26\ Reid v. Covert, 354 U.S. 1, 33 n.34 (1957); Whitney v.
Robertson, 124 U.S. 190, 194 (1888); Head Money Cases (Edy v.
Robertson), 112 U.S. 580, 599 (1884); Committee of the United States
Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 936 (D.C. Cir.
1988). As a consequence of the rule that a treaty, like a statute, is
the supreme law of the land, if a statute and a treaty conflict, ``the
one last in date will control the other.'' Whitney v. Robertson, 124
U.S. 190, 194 (1888) (plurality opinion), quoted in Breard v. Gilmore,
523 U.S. 371 (1998). To like effect is Reid v. Covert, 354 U.S. 1, 18
(1957).
\27\ The question of Presidential authority to terminate a treaty
unilaterally was the subject of Goldwater v. Carter, 617 F.2d 717 (D.C.
Cir.), vacated on other grounds, 444 U.S. 996 (1979), discussed infra.
\28\ United States v. Smith, 27 F. Cas. 1192 (C.C.D.N.Y. 1806). To
like effect is Kendall v. United States ex rel Stokes, 37 U.S. (12
Pet.) 524, 613 (1838) (The Supreme Court, in declaring invalid the
refusal of President Andrew Jackson's Postmaster-General to execute a
statute requiring payments to postmasters, stated that, allowing the
Postmaster-General, on the President's authority, to refuse to execute
a statute, ``would be vesting in the President a dispensing power,
which has no countenance for its support in any part of the
constitution; and is asserting a principle, which, if carried out in
its results, to all cases falling within it, would be clothing the
President with a power entirely to control the legislation of congress,
and paralyze the administration of justice.'')
---------------------------------------------------------------------------
In 1972, in United States v. Monongahela Connecting Railroad
Co.,\29\ District Judge Dumbauld stated: ``Of course there is no
``dispensing power'' in an executive or administrative agency unless
Congress has specifically granted it.'' Judge Dumbauld cited his own
work, Edward Dumbauld, The Constitution of the United States 7, 12
(1964), which describes the struggle between James II and the
Parliament that led to James II's abdication and exile, and the
acceptance by William and Mary in 1689 of the Bill of Rights, the first
article of which recites, ``That the pretended power of suspending
laws, of the execution of laws, by regal authority, without consent of
parliament is illegal.'' Id. at 12. That event is said to have
established that the King had no dispensing or suspending power, and
therefore made it unnecessary for the Framers of the Constitution to
make express that they were not allocating to the office of the
President a power to dispense with law. ``[N]ot even the most ardent
Antifederalists feared that the Constitution of 1787 had given the
President a power to suspend the laws.'' \30\
---------------------------------------------------------------------------
\29\ 351 F. Supp. 696, 698 (W.D. Pa. 1972).
\30\ Christopher N. May, Presidential Defiance of
``Unconstitutional Laws': Reviving the Royal Prerogative, 21 Hastings
Const. L.Q. 865, 885-88 (1994). See also National Treasury Employees
Union v. Nixon, 492 F.2d 587, 604 (D.C. Cir. 1974), quoting Kendall v.
United States on the lack of dispensing power, in explanation of why
the Court had jurisdiction to declare that the President had not obeyed
the Federal Pay Comparability Act. Similarly, in 1975, in Michigan Head
Start Directors Ass'n v. Butz, 397 F. Supp. 1124 (W.D. Mich. 1975), the
court based its decision ordering the Secretary of Agriculture to
comply with the National School Lunch Act on the absence of a
Presidential power to suspend legislation, ``a power not enjoyed by the
English Monarch since the Glorious Revolution of 1688.'' Also, in
Ameron, Inc. v. United States Army Corps of Engineers, 610 F. Supp. 750
(D.N.J. 1985), aff'd as modified, 787 F.2d 875 (3d Cir. 1986), aff'd on
reh'g, 809 F.2d 979 (3d Cir. 1986), the District Court describes James
II's forced exile, and the acceptance of England's Bill of Rights by
William and Mary as the foundation for ``[t]he rule that no executive
official can decide for himself what laws he is bound to obey, but must
await the decisions of the Judiciary and until then must obey the laws,
[a rule that] has deep roots in our constitutional history.'' Also, the
duty to execute the law faithfully is viewed as a sign of the non-
existence of Presidential suspending power. Statement on Behalf of the
Office of General Counsel to the Clerk of House of Representatives
Regarding The Executive Branch's Declaration That The Competition in
Contracting Act Is Unconstitutional, Hearings Before a Subcommittee of
the Committee on Government Operations, House of Representatives, on
Constitutionality of GAO's Bid Protest Function, 99th Cong., 1st Sess.
(Feb. 28; March 7, 1985) ('Scholars have concluded that the ``faithful
execution'' clause of our Constitution is a mirror of the English Bill
of Rights'' ``abolition of the suspending power,'' that is, the
abolition of what the English Bill of Rights has called ``the pretended
[Royal] power of Suspending . . . the Execution of Laws.'') The same
point is made in a Statement of Senator William S. Cohen and Senator
Carl Levin in Hearings on the Constitutionality of GAO's Bid Protest
Function Before a Subcommittee of the committee on Government
Operations, House of Representatives, 99th Cong., 1st Sess. 486, 490
(Feb. 28, March 7, 1985) (``Absent a court ruling, we strongly believe
that a unilateral decision by the Executive Branch to refuse to enforce
a statute constitutes a usurpation of the proper role of the judiciary
and a failure of the President to meet his constitutional
responsibility to take Care that the Laws be faithfully executed.'').
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The most recent decision on the question of whether the President
has dispensing power is Spence v. Clinton, a District Court decision in
1996. It explains why the President had no authority to ``defy'' the
Ballistic Missile Act of 1995. The court stated:
Such an outcome would [give] the President the ability to
nullify duly authorized congressional actions. The Founding
Fathers strongly believed that such a power would be dangerous
and unwarranted. Constitutional scholars speak with one voice
in concurring with this assessment.\31\
---------------------------------------------------------------------------
\31\ Spence v. Clinton, 942 F. Supp. 32, 38 (D.D.C. 1996)
(footnotes omitted).
---------------------------------------------------------------------------
In support of that observation, the court quoted James Madison:
To give such a prerogative would certainly be obnoxious to
the temper of this country.\32\
---------------------------------------------------------------------------
\32\ I.M. Farrand, The Records of the Federal Constitution of 1787
100 (1966).
Nothing in Goldwater v. Carter,\33\ is to the contrary. That case
involves undoing a treaty with one regime claiming to govern China and
recognizing a different regime claiming to be the government of China.
Neither regime nor the United States claimed that China had ceased to
exist. The case arose out of these events: In 1954 the United States
entered into a Mutual Defense Treaty that on its face was a treaty
between the United States and China. The Treaty was signed by a person
who was part of a government situated on Taiwan calling itself the
Republic of China, (the ``ROC'') and claiming authority over the entire
territory of China, including the Chinese Mainland. At that time, and
ever since, a government situated on the Mainland, and calling itself
the ``People's Republic of China'' (``PRC'') claimed authority over the
entire territory of China, including Taiwan. In 1978, President Jimmy
Carter announced that the United States would terminate the Mutual
Defense Treaty that had been made with the Taiwan-based government.
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\33\ Goldwater v. Carter, 444 U.S. 996 (1979).
---------------------------------------------------------------------------
Senator Barry Goldwater brought suit in a District Court, asking
the Court to declare that without the consent of the Senate, President
Carter lacked authority to terminate the Treaty. Senator Goldwater
asserted that termination without Senate deliberation would deprive him
of an opportunity to vote on the question of whether the Treaty should
be terminated. A majority of Justices of the Supreme Court concluded
that Senator Goldwater's case should be sent to the District Court to
be dismissed, but no majority could agree on the reasons for that
result. Four Justices (Rehnquist, Burger, Stewart and Stevens) said
that to decide whether the Senate had authority to participate in a
treaty-termination decision would be to decide a non-justiciable
``political question,'' i.e, not the kind of controversy that the
Constitution vested authority in the Judiciary to decide. Justice
Marshall gave no reason for his decision in favor of dismissal. Justice
Powell said that he considered the question to be justiciable, but
supported dismissal on the ground that it was not ripe for decision,
because the Congress had not yet challenged the President's authority
by ``appropriate formal action.'' 444 U.S. at 536. Two of the Justices
who voted to hear the case (Blackmun and White) said the case was ripe,
and therefore should be heard on the merits. Justice Brennan expressed
the view that the case was justiciable, and that the lower court had
correctly decided the case to the extent that it rested on the
principle that the President had exclusive authority ``to recognize,
and withdraw recognition from, foreign governments.''
Given the absence of a majority explanation of the reason for the
result, Goldwater v. Carter has little value for predictive
jurisprudence with respect to treaties with a State that has not lost
its existence but only changed its government, let alone with respect
to treaties of a State that has ceased to exist.
In any event, even the Judiciary's power to interpret treaties
definitively must be exercised so as to avoid making a significant
amendment, because that too would trench upon the Senate's power to
give advice and consent to the making of the treaty. One court
explained:
A significant amendment to a treaty must follow the mandate
of the Treaty Clause and therefore must be proposed by the
President and be ratified following the advice and consent of
the Senate.\34\
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\34\ New York Chinese TV Programs, Inc. v. U.E. Enters., Inc., 954
F.2d 847, 853 (2d Cir. 1991), cert. denied, 506 U.S. 827 (1992).
---------------------------------------------------------------------------
Similarly,
Courts are not authorized to annul or disregard provisions of
a treaty
. . . since an annulment or disregard would constitute a
modification of the treaty, and treaty modifications are solely
within the province of the Senate.\35\
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\35\ In re Air Crash Disaster at Warsaw Poland on March 14, 1980,
535 F. Supp. 833, 843 (E.D.N.Y. 1982), aff'd, 705 F. 2d. 85 (2d. Cir.),
cert. denied, 464 U.S. 845 (1983). See also Testimony of Columbia Law
School Professor Louis Henkin, in Joint Hearings before the Committee
on Foreign Relations and the Committee on the Judiciary, United States,
Senate, 100th Cong. 1st Sess., on the ABM Treaty and the Constitution
881 (March 11, 1987).
---------------------------------------------------------------------------
B. The President Does Not Have Exclusive Authority to Implement
Treaties
While Dellinger argues that the President has exclusive authority
to implement treaties, the Constitution vests in the Congress the
authority to make all laws ``necessary and proper'' to implement, i.e.,
to ``carry into execution,'' not only all the law-making powers
enumerated in Article I, section 8, but also ``all other powers vested
by this Constitution in the Government of the United States or in any
Department or Officer thereof.'' \36\ The recognized powers of Congress
to implement (or fail to implement) a treaty ``by an apportionment or
other law essential to its effectuation, . . . are legislative powers,
not treaty-making or treaty-termination powers.'' \37\
---------------------------------------------------------------------------
\36\ Neely v. Henkel, 180 U.S. 109, 121 (1901) (The necessary and
proper clause of U.S. Constitution Article 1, section 8 ``includes the
power to enact such legislation as is appropriate to give efficacy to
any stipulations which it is competent for the President by and with
the advice and consent of the Senate to insert in a treaty with a
foreign power.'') To like effect are Missouri v. Holland, 252 U.S. 416,
432-33 (1920); United States v. Lue, 134 F.3d 79, 82 (2d Cir. 1998);
Goldwater v. Carter, 617 F.2d 697, 717 (D.C. Cir.), vacated on other
grounds, 444 U.S. 996 (1979).
\37\ Peter M. Shane & Harold H. Bruff, Separation of Powers Law:
Cases and Materials 621 (1996).
---------------------------------------------------------------------------
Hence, the Congress has the authority to make laws implementing
treaties. It follows that the President can no more create a treaty by
calling its creation an implementation than he can create a statute by
calling its creation an implementation of another statute.
C. Presidential Authority to Grant Formal Recognition to Foreign States
Does Not Imply Authority to Make Treaties with Those States
Without Senate Concurrence
As a matter of international law, when a U.S. President grants
recognition to a foreign State, the President imposes no duty or
obligation on the United States that the United States would not in any
event be obliged to discharge. In contrast, when a U.S. President
brings a treaty into force, its terms must be fulfilled (unless there
is a valid ground under international law, such as coercion or fraud,
for not fulfilling them.).\38\
---------------------------------------------------------------------------
\38\ Factor v. Laubenheimer, 290 U.S. 276, 298 (1933) (``Until a
treaty has been denounced, it is the duty of both the government and
the courts to sanction the performance of the obligations reciprocal to
the rights which the treaty declares and the government asserts even
though the other party to it holds a different view of its meaning.'');
United States v. Kirby, 106 F.3d 855, 859 (9th Cir. 1997); United
States v. A.L. Burbank & Co., Ltd., 575 F.2d 9, 22 (2d Cir. 1975).
J.H.H. Weiler & Ulrich R. Haltern, The Autonomy of the Community of
Legal Order--Through the Looking Glass, 37 Harv. Int'l L.J. 411, 441
(1996).
---------------------------------------------------------------------------
The Constitution, Art. II. sec. 3, requires the President to
``receive Ambassadors and other public Ministers,'' a provision that
implies authority to determine whether a particular person is a bona
fide representative of a particular foreign State. In turn, that
implies that the President has authority to determine whether or not
such a foreign State exists. An entity exists as a State if it meets
the test of Statehood, i.e., has a defined territory and a permanent
population, controls its own governance, and has the capacity to
conduct formal relations with States.\39\ International law requires
that each other State treat that entity as a State, irrespective of
whether such other State has ``formally'' recognized that entity as a
State.\40\
---------------------------------------------------------------------------
\39\ Restatement (Third) of the Foreign Relations Law of the
United States Sec. 201 (1986). The law pertaining to the recognition
of a State's existence is distinct from international law pertinent to
the recognition of the government of a State. Under international law,
a change in the government of a recognized State, without more, does
not impair the State's existence as a State. Edwin L. Fountain, Out
from the Precarious Orbit of Politics: Reconsidering Recognition and
the Standing of Foreign Governments to Sue in American Courts, 29 Va.
J. Int'l L. 473, 474-76 (1989); D.P. O'Connell, I International Law
127-28 (2d ed. 1970); Restatement (Third) of The Foreign Relations Law
of the United States Sec. 202, 203 (1986).
\40\ Id. at Sec. 202, cmt. c.
Recognition, as a public act of state, is an optional and
political act and there is no legal duty in this regard.
However, in a deeper sense, if an entity bears the marks of
statehood other states put themselves at risk legally if they
ignore the basic obligations of state relations. . . . In this
context of state conduct, there is a legal duty to accept and
apply certain fundamental rules of international law: there is
a legal duty to ``recognize'' for certain purposes at least,
but no duty to make an express, public, and political
determination of the question or to declare readiness to enter
into diplomatic relations by means of recognition. This latter
type of recognition remains political and discretionary.\41\
---------------------------------------------------------------------------
\41\ Ian Brownlie, Principles of Public International Law 94-95
(2d ed. 1973) (emphasis added) (footnote omitted). ``Recognition of
State is the affirmation, usually by the government of another state,
that a new nation has come into existence which, at least as far as the
recognizer is concerned, is subject to all the rights and duties of a
state in international law.'' Thomas M. Franck & Michael J. Glennon,
Foreign Relations and National Security Law: Cases, Materials and
Simulations 1021 (1993).
Were the President to use the recognition function to make a treaty
that would not otherwise exist, he would put the United States under a
legal obligation to other States without Senate advice and consent. In
short, there is no merit to Dellinger's suggestion that the exclusive
power to recognize States allows the President to make treaties without
Senate advice and consent. The President's recognition authority cannot
be exercised in a manner that would nullify the U.S. Senate's authority
to advise and consent on the making of a treaty.
Hence, if a foreign State ceases to exist under international law
and, consequently, a bilateral treaty between the extinct State and the
United States lapses, the President cannot use the ``receive
Ambassadors'' clause to bring a new treaty into force between the
United States and a successor to the extinct State without Senate
advice and consent. In other words, the President cannot, without
Senate approval, bring a lapsed treaty back to life by declaring that a
given foreign State is the successor or continuation of an extinct
State. Principles of international law govern the issue of the
extinction of States. However broad the President's authority may be to
recognize States and governments of States under the ``receive
Ambassadors'' clause, it is necessarily limited by the specific
Constitutional requirement for Senate advice and consent on the making
of treaties.
D. The Senate's Concurrence in the Making of a Treaty With One State
Does Not Constitute Consent to the Making of a Treaty With a
Successor-State
When the Senate consents to a treaty with a given foreign State,
does it impliedly authorize future Presidents to make a treaty on the
same subject with a new State that is a successor to that given foreign
State? An affirmative answer would violate the rule against the
President's creating law unilaterally. A treaty cannot be interpreted
``[t]o alter, amend, or add to the Treaty, by asserting any clause,
whether small or great, important or trivial . . .'' \42\ In 1989, in
Chan v. Korean Air Lines, Ltd.,\43\ the Supreme Court invoked its 1821
decision in The Amiable Isabella \44\ to explain that an interpretation
that makes a change in a treaty ``whether small or great, important or
trivial'' would constitute a ``usurpation of power, and not an exercise
of judicial functions,'' adding: ``It would be to make, and not to
construe, a treaty.'' Though the caution in that case was aimed at
judges, it applies equally to interpretations by the Executive Branch
because it states that any change would be ``to make, not construe, a
treaty,'' a clear reference to the treaty-making process, of which
Senate advice and consent is an essential part. In light of that rule,
there is no room for an inference that Senate advice and consent
implicitly authorizes later changes by a President.
---------------------------------------------------------------------------
\42\ The Amiable Isabella, 19 U.S. 1 (6 Wheat.) 1, 71 (1821); Chan
v. Korean Air Lines, Ltd., 490 U.S. 122, 135-36 (1984); Kass v. Reno,
83 F.3d 1186, 1189 (10th Cir. 1996). See also The Society for the
Propagation of the Gospel in Foreign Parts v. New-Haven, 21 U.S. (8
Wheat.) 464, 490 (1823).
\43\ 490 U.S. 122, 134-135 (1989).
\44\ 19 U.S. (6 Wheat.) 1, 71 (1821).
---------------------------------------------------------------------------
In that regard, Dellinger appears to argue otherwise, conjecturing
that in 1972 the Senate must have known of what Dellinger argues was
past U.S. diplomatic practice with regard to State succession, i.e.,
when a State dissolves, its treaties with the United States bind the
United States vis-a-vis the extinct State's successor or successors.
Dellinger's assertion disregards the U.S. policy and practice of
regarding as lapsed an extinct State's bilateral treaties, a practice
that began at least as early as the annexation of the Kingdom of Hawaii
in 1898,\45\ and was recently manifested in dealing with all five
States that succeeded the extinct Yugoslavia.\46\ Thus, if any
conjecture about the Senate's 1972 understanding is warranted, the
reasonable conjecture is that it knew of the practice of regarding
extinct States'' treaties as lapsed. In any event, Dellinger does not
claim that, after the USSR's dissolution, the Senate consented to the
making of an ABM Treaty with the Russian Federation. Presumably,
Dellinger understands that ``Ordinarily, Congress'' silence is just
that--silence,'' \47\ and does not constitute the exercise of its power
to make or to repeal laws,\48\ including treaties.\49\
---------------------------------------------------------------------------
\45\ See Statement of Secretary Sherman to Japanese Minister,
described supra Part IV.D..
\46\ See discussion at IV.F.4, infra.
\47\ Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987).
\48\ Patterson v. McLean Credit Union, 491 U.S. 164, 175 (1989);
United States v. Wells, 519 U.S. 482, 495 (1997); NLRB v. Plasterers''
Local Union No. 79, 404 U.S. 116, 129-30 (1971).
\49\ TransWorld Airlines, Inc. v. Franklin Mint Corp., 466 U.S.
243, 252 (1984).
---------------------------------------------------------------------------
Finally, there is no evidence that after the USSR's dissolution,
the Senate, by voting on various ABM Treaty matters, consented to
bringing an ABM Treaty into force between the United States and the
Russian Federation. None of the laws passed since the USSR's extinction
that relate to the ABM Treaty contains words that can be fairly
construed as giving consent to the bringing into force of an ABM Treaty
that is not already in force. In construing a statute, its words are to
be given their plain meanings.\50\ Moreover, legislative history, an
aid to the construction of ambiguous words,\51\ contains no evidence
that either House of Congress, in voting on bills relating to ABM
Treaty matters, was voting to bring into force an ABM Treaty that was
not otherwise in force.
---------------------------------------------------------------------------
\50\ United States v. Gonzales, 520 U.S. 1 (1997).
\51\ Barnhill v. Johnson, 503 U.S. 393, 401 (1992).
---------------------------------------------------------------------------
Hence, if an ABM treaty now exists between the United States and
the Russian Federation, it exists only if, under international law, the
Treaty did not lapse upon the USSR's extinction.
None of the Dellinger Paper's arguments is supported by
international law. International law points to an opposite conclusion:
Upon the USSR's extinction, the ABM Treaty did not become a treaty
between the United States and the Russian Federation.
This Memorandum does not contend that the United States and the
Russian Federation cannot make a treaty between themselves or with
other States to limit ABM systems. But such a treaty would require the
concurrence of ``two thirds of the Senators present,'' as provided by
Article II, section 2 of the U.S. Constitution.
iii. factual background
As a predicate to the legal analysis below, it is useful to review
facts pertaining to the USSR's extinction and the U.S. State
Department's position thereon, President Clinton's position on the ABM
Treaty of 1972, and the purpose of the ABM Treaty of 1972 as seen by
the U.S. government at the time of Senate approval of ratification.\52\
---------------------------------------------------------------------------
\52\ Treaty Between the United States of America and the Union of
Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile
Systems (the ``ABM Treaty''), May 26, 1972, U.S.-U.S.S.R. (App. 2). The
Treaty was amended in 1974 to reduce the allowed number of ABM
deployment areas of each party from two to one. The United States chose
its ICBM emplacements near Grand Forks, North Dakota. The USSR chose
Moscow. Each party was given a single option to shift its defense area
upon advance notice at the time of scheduled 5-year Treaty review.
Protocol to the Treaty Between the United States of America and the
Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic
Missile Systems (App. 2) (including 1974 Protocol).
---------------------------------------------------------------------------
A. Extinction of the USSR
On December 8, 1991, at Minsk, the Republic of Belarus, the Russian
Federation ('RSFSR'') and Ukraine, as the USSR's founders and as
signatories to the Union Treaty of 1922 that created the USSR, declared
that the USSR, ``as a subject of international law and a geopolitical
reality no longer exists.'' \53\ Also, they signed the Agreement
Establishing the Commonwealth of Independent States. The Agreement
invited other States to join. On December 21, 1991, at Alma Ata, eight
other States joined.\54\ The Agreement included a provision supporting
the Russian Federation's assumption of the USSR's permanent seat in the
U.N. Security Council.
---------------------------------------------------------------------------
\53\ Agreement Establishing the Commonwealth of Independent States,
Dec. 8, 1991, Belarus-RSFSR-Ukraine, 31 I.L.M. 143 (App. 3).
\54\ Agreement Establishing the Commonwealth of Independent States,
Art. 12, Dec. 21, 1991, 31 I.L.M. 147-54 (App. 4).
---------------------------------------------------------------------------
President George Bush, in his December 25, 1991 address to the
nation on the CIS, said that ``The Soviet Union itself is no more.''
\55\ On January 22, 1992 President Bush, in addressing the
International Conference on Humanitarian Assistance to the former USSR,
referred to ``the dramatic revolution that swept away Soviet communism
and left in its place 12 new nations. . . .'' \56\ President Bush also
referred to the ``dissolution of the Soviet Union . . .''. \57\ On
April 1, 1992, President Bush referred to ``Russia, Ukraine and the
other new States that have replaced the Soviet Union.'' \58\ President
Bush stated that he was ``seeking to conclude trade, bilateral
investment and tax treaties with each of the new Commonwealth States.''
\59\
---------------------------------------------------------------------------
\55\ President George Bush, Address to the Nation on the
Commonwealth of Independent States, 27 Weekly Comp. Pres. Doc. 1883
(Dec. 25, 1991) (App. 5).
\56\ President George Bush, Address to the International Conference
on Humanitarian Affairs (Jan. 22, 1992), in I Public Papers of the
President of the United States, George Bush 127 (GPO 1993) [hereinafter
Public Papers] (App. 6).
\57\ Id.
\58\ President George Bush, Statement at News Conference on Aid to
the States of the Former Soviet Union, in Public Papers, supra note 36,
at 522 (App. 6).
\59\ President George Bush, Remarks to the American Society of
Newspaper Editors, in Public Papers, supra note 36, at 566 (App. 6).
---------------------------------------------------------------------------
B. State Department Study of the Effect of the USSR's Extinction
In early 1992, State Department Legal Adviser Edwin D. Williamson
announced that the State Department was conducting a study of the
effect of the USSR's extinction on its treaties with the United States,
including the ABM Treaty.\60\ In 1997, President Clinton described the
process as follows:
---------------------------------------------------------------------------
\60\ Edwin D. Williamson, Remarks on State Succession and Relations
with Federal States, 86 Am. Soc. of Int'l L. Ann. Meeting Procs. 10, 12
(Apr. 1-4, 1992).
When the USSR dissolved at the end of 1991, it became
necessary to reach agreement as to which former Soviet States
would collectively assume its rights and obligations under the
[ABM] Treaty (which clearly continued in force by its own
terms). The United States took the view that, as a general
principle, agreements between the United States and the USSR
that were in force at the time of the dissolution of the Soviet
Union would be presumed to continue in force as to the former
Republics. It became clear, however, particularly in the area
of arms control, that a case-by-case review of each agreement
was necessary.\61\
---------------------------------------------------------------------------
\61\ Letter from President William J. Clinton to Benjamin A.
Gilman, Chairman, Committee on International Relations, House of
Representatives (Nov. 21, 1997) (App. 7).
During that study, according to the State Department's official
annual list of U.S. Treaties in Force, ``The United States is reviewing
the continued applicability of [listed] agreements [including the ABM
Treaty] . . .''. \62\
---------------------------------------------------------------------------
\62\ United States Department of State, Treaties in Force, A List
of Treaties and Other International Agreements of the United States in
Force on January 1, 1997 282 (1997) (App. 8). Compare with United
States Department of State, Treaties in Force, A List of Treaties and
Other International Agreements of the United States in Force on January
1, 1992 247, 248 (1992) (App. 9).
---------------------------------------------------------------------------
The State Department's practice of studying the status of treaties
between the United States and extinct States was described in 1965 by
Assistant Legal Adviser Charles I. Bevans: The practice is to negotiate
with a new State ``as soon as possible.'' If a new State has a
``devolution'' agreement with or otherwise announces it would be bound
by its predecessor's treaties, the fact is ``noted'' in Treaties in
Force, but the United States does not consider itself bound by the
devolution agreement to accept such a treaty as being in force between
the United States and the successor State.\63\
---------------------------------------------------------------------------
\63\ Letter from Charles I. Bevans, Assistant Legal Adviser, United
States Department of State, to Professor William W. Bishop, Jr.,
Editor-in-Chief, The American Journal of International Law (July 27,
1964), reprinted in Committee on State Succession to Treaties and Other
Governmental Obligations, International Law Association, The Effect of
Independence on Treaties 382, 385-86 (1965). See also Sari T. Korman,
The 1978 Vienna Convention on Succession of States in Respect of
Treaties: An Inadequate Response to the Issue of State Succession, 16
Suffolk Transnat'l L. Rev. 174, 180 (1992).
---------------------------------------------------------------------------
State Department practice regarding devolution agreements and
proclamations is consistent with the view expressed in scholarly
writings. For example, in 1969 a Committee of the United Nations'
International Law Commission stated:
Conversely, on the date of the succession, the territory
passes into the treaty regime of the newly emerged State; and,
since the devolution agreement is incapable by itself of
effecting an assignment of the predecessor's treaty obligations
to the successor State, the agreement does not of itself
establish any treaty nexus between the successor State and
third States parties to the treaties of the predecessor State.
Thus, even if a newly emerged State has concluded a devolution
agreement, the only treaty obligations of the predecessor State
which can immediately become obligations also of the successor
State vis-a-vis the other contracting parties are such
obligations, if any, as would in any event pass to the
successor State by operation of the general rules of the
international law independently of the devolution
agreement.\64\
---------------------------------------------------------------------------
\64\ Sir Humphrey Waldock, Special Rapporteur, Second Report on
Succession in Respect of Treaties, 1969 II Y.B. Int'l L. Comm'n 45, 57,
UN Doc. A/CN.4/SER.A/1969/Add.1.
State Department Legal Adviser Edwin D. Williamson stated that
while the study of the ABM treaty was pending, the State Department
would use a ``presumptive continuity'' model in its dealings with the
USSR's successor States.\65\ ``Continuity,'' as applied to treaties, is
a term used by scholars to describe the fact that a treaty between two
particular States (the ``treaty partners'') has become a treaty between
one of the partners and another State. For example, when a State
dissolves and a successor State (or States) emerges on what had been
the territory of the dissolved State, a successor State may agree with
the dissolved State's treaty partner that the dissolved State's
treaties should ``continue'' in effect as between the successor State
and the dissolved State's treaty partner. In that event, the treaty in
question is said to have come into effect with the successor State by a
process of ``continuity.'' Thus, when Norway and the Russian Federation
agreed that they would consider as treaties between them certain
designated treaties that had been in effect between Norway and the
USSR, those treaties are said to have come into effect between Norway
and the Russian Federation by the process of continuity.\66\
---------------------------------------------------------------------------
\65\ Williamson, supra note 60, at 10, 12.
\66\ Marti Koskenniemi, The Present State of Research Carried Out
By the English-Speaking Section of the Centre for Studies and Research,
in State Succession: Codification Tested Against the Facts 98-118
(Hague Academy of International Law 1996); Paul R. Williams, The Treaty
Obligations of the Successor States of the Former Soviet Union,
Yugoslavia, and Czeckoslovakia: Do They Continue in Force?, 23 Denv. J.
Int'l L. & Pol'y 1, 31-35 (1994).
---------------------------------------------------------------------------
Since the respective dissolutions of the USSR, of Yugoslavia (the
``SFRY'') and of Czechoslovakia, the United States, various European
States, and the successor States have not all dealt in the same manner
in all cases with the treaties of the dissolved States. A few examples:
Armenia and Azerbaijan chose not to enter continuation agreements with
any State as to any USSR treaty.\67\ Austria, as regards the treaties
with the dissolved SFRY, described its practice as a ``principle of
pragmatic application'' of the continuation process--that is, Austria
denied that the FRY was a continuity of the SFRY, and yet, in practice,
treated the FRY as though it were the continuity of the SFRY.\68\
---------------------------------------------------------------------------
\67\ Koskenniemi, supra note 66, at 112.
\68\ Koskenniemi, supra note 66, at 88, 110-11 n. 70; Williams,
supra note 66, at 31-35 (1994).
---------------------------------------------------------------------------
The U.S. State Department, though expressing a general desire that
the USSR's successor States (a term that does not include Estonia,
Latvia and Lithuania) be bound by the same treaty obligations vis-a-vis
the United States as was the USSR, ``abandoned any assertions of
automatic continuation of treaty obligations and relied entirely on
assurances provided by the successor States.'' \69\ Also, in seeking
assurances of treaty continuation from the successor States, the State
Department accepted non-specific (what one commentator has called
``feigned'') assurances,\70\ and unilateral commitments that the
successor States may rescind, and that gave the United States the
effective right to discontinue the treaties at its option.\71\
Similarly, the State Department, by accepting assurances of treaty
continuity that were linked by context to non-justiciable political
commitments--such as promises to develop market economies--rendered the
treaties unenforceable as a practical matter and thereby made
``continuity'' illusory.\72\ Moreover, ``Treaties in Force,'' the
authoritative annual State Department publication of the U.S. treaties
that are in force, shows as ``in force'' only those treaties concluded
between the United States and the Russian Federation after the USSR's
dissolution.\73\ A similar treatment is provided by listings of
treaties in force involving other successors of the USSR and other
successors of the SFRY.\74\
---------------------------------------------------------------------------
\69\ Williams, supra note 66, at 32.
\70\ Id.
\71\ Id.
\72\ Id.
\73\ Id. at 33-34.
\74\ Id.
---------------------------------------------------------------------------
Likewise, the Russian Federation has advised the United States that
it does not deem itself bound by any USSR treaty obligation to the
United States that conflicts with Russian law.\75\
---------------------------------------------------------------------------
\75\ Id. at 35-36. See also Gennady M. Danilenko, Book Review and
Note: The Russian Law of Treaties by William E. Butler, 92 Am.J. Int'l
L. 356, 357 (1998).
---------------------------------------------------------------------------
As regards Ukraine, in May, 1996, the Executive Branch and a
representative of Ukraine agreed that the United States and Ukraine
would regard as in effect as between the two States thirty-five
designated agreements that had been in effect between the United States
and the USSR.\76\ Of the thirty-five US/USSR agreements in question,
thirty-two never received Senate consent, perhaps because they were
among the kinds of binding agreements with foreign nations that the
President ``may enter into without complying with the formalities
required by the Treaty Clause of the Constitution . . .''. \77\ The
three US/USSR treaties that had received Senate consent were a consular
convention of 1968, a tax convention of 1976, and a convention of 1854
relating to the rights of neutrals at sea.
---------------------------------------------------------------------------
\76\ The 1996 US-Ukraine agreement is described at 143 Cong. Rec.
S4462-S4463 (May 14, 1997).
\77\ Weinberger v. Rossi, 456 U.S. 25, 30 n.6 (1982). According to
the Supreme Court, agreements that do not require Senate concurrence
under Article II include agreements to protect U.S. nationals employed
at U.S. military bases abroad, id., and monetary-claims settlements.
Dames & Moore v. Regan, 453 U.S. 654, 679-80 nn.8, 9, 10 (1981); United
States v. Pink, 315 U.S. 203 (1942); United States v. Belmont, 301 U.S.
324 (1937). Such an agreement is called an ``Executive Agreement'' or a
``Sole-Executive Agreement'' if it is made between the United States
and another State without the concurrence of two-thirds of the Senate,
and without the consent of a majority of both Houses of the Congress.
If the Agreement has received the consent of a majority of both Houses
of Congress, it is called a ``Congressional-Executive Agreement.'' The
Court has explained that an agreement of that nature, though sometimes
called a ``treaty,'' is not a treaty ``possessing the dignity of one
requiring ratification by the Senate of the United States . . .'' B.
Altman & Co. v. United States, 224 U.S. 583, 601 (1912). See also
Weinberger v. Rossi, 456 U.S. 25, 29 (1982) ('The word ``treaty'' has
more than one meaning''); Dames & Moore v. Regan, 453 U.S. 654, 679-84
(1981); United States v. Pink, 315 U.S. 203, 225 (1942); United States
v. Belmont, 301 U.S. 324 (1937). No case has been presented to a court,
however, to decide whether an arms-control treaty can constitutionally
be made by the President acting alone or with the consent only of a
majority of both Houses.
---------------------------------------------------------------------------
The wide variety of recent State practice has been summed up as
follows: \78\
---------------------------------------------------------------------------
\78\ Koskenniemi, supra note 66, at 88, 116 (footnote omitted). See
generally Brownlie, supra note 41, at 82-85; James Crawford, the
Creation of States in International Law 400-411 (1979); Krystyna Marek,
Identity and Continuity in Public International Law (1968).
[P]arties have normally negotiated and negotiations have led
to the adoption and publication of lists of treaties that are
to be continued or allowed to lapse. The more weight is given
to such lists, and the agreements they embody, the less
practical significance the ``presumption of continuity''
enjoys--until the presumption must altogether yield to the a
contrario argument that a treaty absent from a list must be
deemed to have lapsed.\79\
---------------------------------------------------------------------------
\79\ Koskenniemi, supra note 66, at 116.
``Continuity'' (or ``continuation'') is also used to identify a
State that, notwithstanding a loss of territory, continues to exist
because it has not lost its international legal personality.\80\ In
that usage ``continuity'' (or ``continuation'') is the antonym of
``dismemberment'' or ``disembratio'' or ``dissolution'' or
``extinction,'' which terms are used interchangeably to identify States
that have ceased to exist.\81\ For example, the United States stated
that it is the position of the ``international community generally''
that, as a result of the SFRY's ``dissolution'' in 1992, ``[t]he SFRY
has ceased to exist and no . . . State represents the continuation of
the SFRY. . . .'' \82\
---------------------------------------------------------------------------
\80\ Republic of Croatia v. Girocredit Bank A.G. der Sparkassen,
Supreme Court of Austria (4 Ob. 2304 96V, Dec. 17, 1996), reprinted at
36 I.L.M. 1523 (1997); Konrad G. Buhler, Casenote: Two Recent Austrian
Supreme Court Decisions on State Succession from an International Law
Perspective, 2 Aus. Rev. Int'l & Eur. L., 213, 224-26 (1997).
\81\ Id.
\82\ Declaration of Christopher R. Hill, Director, Office of South
Central European Affairs, United States Department of State, filed in
Federal Republic of Yugoslavia v. Park-71st Corp., No. 95 Civ. 3659
(AGS) (S.D.N.Y.) para.para. 5, 6 (Sept. 21, 1995), complaint dismissed,
913 F.Supp. 191 (S.D.N.Y. 1995). (App. 1).
---------------------------------------------------------------------------
In June 1996 U.S. Assistant Attorney General Walter Dellinger
advised Counsel to the President John Quinn that the presumption of
``continuity'' employed in the State Department during the Bush
Administration remained in effect in the Clinton Administration.
Dellinger stated that the notion of continuity was ``rooted'' in U.S.
``past diplomatic practice'' and in the U.S. Executive Branch's
understanding of international law.\83\ Dellinger's disregard for U.S.
practice as regards treaties of extinct states is described at IV.F.,
infra.
---------------------------------------------------------------------------
\83\ Memorandum from Walter Dellinger, Assistant Attorney General,
to John M. Quinn, Counsel to the President, Re: Section 233(a) of S.
1745 (June 26, 1996) (App. 10). See also Letter from William C.
Danvers, Special Assistant to the President and Senior Director for
Legislative Affairs, to Newt Gingrich, Speaker of the House of
Representatives (Nov, 29, 1996), transmitting Report on the Livingston
ABM Amendment (Nov. 25, 1996) (App. 12), and Letter of Dec. 11, 1996
from Representatives Bob Livingston, Benjamin A. Gilman and Floyd
Spence to President Clinton (Dec. 11, 1996) (App. 13).
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C. President Clinton's Statement of Position
On June 16, 1997, Benjamin A. Gilman, Chairman, House Committee on
International Relations, asked President Clinton: If the Senate were to
reject the President's proposal regarding ABM Treaty succession, ``what
countries in addition to the United States will, in the view of the
Administration, be parties to the ABM Treaty?'' \84\ The President did
not reply until November 21, 1997,\85\ by which time the Secretary of
State had signed (in September, 1997) a Memorandum of Understanding
(the ``MOU'') with Russia, Ukraine, Belarus and Kazakstan to ``multi-
lateralize'' the ABM Treaty. The MOU would create an arrangement
embodying features that had been in effect between the United States
and the USSR.\86\ President Clinton's November 17, 1997 letter stated
that he would ask the Senate to give advice and consent to the MOU.\87\
The November 21, 1997 letter also stated
---------------------------------------------------------------------------
\84\ Letter from Benjamin A. Gilman, Chairman, Committee on
International Relations, House of Representatives, to President William
J. Clinton, 2-3 (June 16, 1997) (App. 14).
\85\ Letter from President William J. Clinton to Benjamin A.
Gilman, Chairman, Committee on International Relations, House of
Representatives, 2 (Nov. 21, 1997) (App. 7). Letter from President
William J. Clinton to Benjamin A. Gilman, Chairman, Committee on
International Relations, House of Representatives, (May 21, 1998) (App.
11).
\86\ United States of America, Republic of Belarus, Ukraine &
Kazakstan, Memorandum of Understanding Relating to the Treaty Between
the United States of America and the Union of Soviet Socialist
Republics on the Limitation of Anti-Ballistic Missile Systems of May
26, 1972 (Sept. 26, 1997) (App. 15).
\87\ Letter from President William J. Clinton to Benjamin A.
Gilman, Chairman, Committee on International Relations, House of
Representatives 1 (Nov. 21, 1997) (App. 7).
[N]either a simple recognition of Russia as the sole ABM
successor (which would have ignored several former Soviet
states with significant ABM interests) nor a simple recognition
of all NIS states as full ABM successors would have preserved
fully the original purpose and substance of the Treaty, as
approved by the Senate in 1972).\88\
---------------------------------------------------------------------------
\88\ Id. at 2.
In addition, the letter stated that, if the Senate did not consent
to the MOU as a Treaty, succession arrangements would ``simply remain
unsettled,'' \89\ and in any event the ABM Treaty that had been in
force between the United States and USSR ``would clearly remain in
force.'' \90\ On March 3, 1998, Representative Gilman and Senator Jesse
Helms \91\ observed that if none of the four USSR-successor States that
had signed the MOU were bound by the ABM Treaty, it followed that the
Treaty was no longer in force.\92\
---------------------------------------------------------------------------
\89\ Id. at 3.
\90\ Id.
\91\ Letter from Benjamin A. Gilman, Chairman, Committee on
International Relations, House of Representatives, and Jesse Helms,
Chairman, Committee on Foreign Relations, Senate (March 3, 1998) (App.
16).
\92\ Id. at 3.
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On May 21, 1998 President Clinton responded that the Executive
Branch had concluded that ``there is no question that the ABM Treaty
has continued in force and will continue in force . . .''. Also,
President Clinton stated that ``[t]he United States and Russia clearly
are Parties to the Treaty. . . .'' \93\ The President explained neither
the basis for this conclusion nor how the conclusion can be reconciled
with his November 1997 response to Representative Gilman.
---------------------------------------------------------------------------
\93\ Letter from President William J. Clinton to Benjamin Gilman,
Chairman, Committee on International Relations, House of
Representatives 2 (May 21, 1998) (App. 11). Also, on October 5, 1998,
Senators Trent Lott, Don Nickles, Larry E. Craig, Jon Kyl, Jesse Helms,
Connie Mack, Paul Coverdell and Bob Smith wrote President Clinton a
letter stating their view that ``the ABM Treaty has lapsed and is of no
force and effect unless the Senate approves the MOU, or some similar
agreement, to revive the Treaty.'' Letter from Senators Trent Lott, Don
Nickles, Larry E. Craig, Jon Kyl, Jesse Helms, Connie Mack, Paul
Coverdell and Bob Smith to President William J. Clinton (Oct. 5, 1998)
(App. 17.) On December 17, 1998, President Clinton replied, stating
that he would provide the MOU to the Senate for its advice and consent
(App. 18).
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D. The United States'' 1972 View of How it Would Benefit from an ABM
Treaty
In 1972, Gerard Smith, Director of the Arms Control and Disarmament
Agency in the Nixon Administration, told the Congress the following:
The treaty contains a general commitment not to build a
nationwide ABM defense nor to provide a base for such defense.
This general undertaking is supplemented by certain specific
provisions. By this general undertaking and the specific
commitments, both countries in effect agree not to challenge
the effectiveness of each other's missile deterrent
capabilities by deploying widespread defenses against them.
This means that the penetration capability of our surviving
deterrent missile forces can be assured. This, to my mind,
bears directly on concerns about a first strike against the
United States. As long as we maintain sufficient and survivable
retaliatory forces, this new assurance of their penetration
capability makes ``first strike'' as a rational act
inconceivable, in my judgment. I believe this is a development
of prime significance for U.S. security.\94\
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\94\ Statement by United States Arms Control and Disarmament Agency
Director Gerard C. Smith, Strategic Arms Limitations Agreements (June
28, 1972), reprinted in U.S.C.A.C.D.A. Documents on Disarmament 1972,
at 423.
Hence, according to that view, a party without ABM defenses would
be less likely to launch first strikes, and therefore would be less
likely to start a nuclear war.\95\
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\95\ Report by the United States Senate Foreign Relations
Committee, Treaty on Limitation of Antiballistic Missile Systems, S.
Exec. Rep. 92-28 (July 21, 1972) (App. 19), quoting former Assistant
Secretary of Defense for International Security Affairs Paul Warnke,
that ``[a]ccordingly, both sides have accepted the principle that
safety resides not in physical defense but in the certainty that the
attacker would be destroyed by the retaliatory strike that the other
side would be able to mount.''
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iv. principles of international law that bear on the question of
whether the abm treaty between the united states and the ussr became,
upon the ussr's extinction, a treaty between the united states and the
russian federation
A. The December 1991 Declaration That the USSR Had Ceased to Exist
Correctly Characterized Under International Law the Changes
That Occurred on What Had Been the USSR's Territory
It is not necessary to resolve any dispute as to whether the USSR
became extinct in December 1991, for there has been no dispute between
the United States and the USSR's successor States on this point. It
bears noting, however, that, had the parties put the question to a
disinterested tribunal, that tribunal would have had ample grounds for
concluding that the USSR did become extinct at that time, for after
December 1991 the USSR lacked the attributes of ``statehood'' that are
essential elements of a State's existence, i.e. sovereignty over
defined territory inhabited by a permanent population, and the power to
conduct foreign relations.\96\ At the close of the day on December 8,
1991, each of fifteen States had sovereignty over a part of what had
been the USSR's territory. No State claimed that even one pyt of
territory remained as USSR territory.\97\
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\96\ A State must have (a) a permanent population; (b) a defined
territory; (c) a government; and (d) capacity to enter into relations
with other States. Restatement (Third) of the Foreign Relations Law of
the United States Sec. 201 (1986). A State has territorial sovereignty
if it ``has a monopoly on the exercise of governmental power within its
borders . . . .'' Societe Nationale Industrielle Aerospatiale v. United
States District Court for the Southern District of Iowa, 482 U.S. 522,
557 (1987) (Blackman, J., concurring in part and dissenting in part);
Hoyt v. Sprague, 103 U.S. 613, 630 (1880). Justice Story, as quoted in
Cherokee Nation v. Southern Kan. R. Co., 33 Fed. 900, 906 (W.D. Ark.
1888), described sovereignty as the ``supreme, absolute, uncontrollable
power; the jus summi imperii; the absolute right to govern.'' The
fifteen states included the Baltics, i.e. Latvia, Lithuania, and
Estonia, which the United States and Western European States did not
regard as having been absorbed into the USSR. See generally Lawrence S.
Eastwood, Jr., Secession, State Practice and International Law after
the Dissolution of the Soviet Union and Yugoslavia, 3 Duke J. Comp.
Int'l L. 299, 316-22 (1983); Ruta M. Kalvaitis, Citizenship and
National Identity in the Baltic States 16 B.U. Int'l L.J. 231, 234-39
(1998).
\97\ A pyt in the Russian language is the smallest measure of area,
as in, ``not a single inch.'' Russian-English Dictionary 517 (E.P.
Dutton & Co. 1973).
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Moreover, the USSR's dissolution was marked by other consequential
changes: (1) It occurred abruptly, out of strong secessionist pressures
that created the risk of widespread civil strife, rather than by a
deliberate and peaceful evolution. (2) The USSR government was not a
party to any of the declarations of dissolution or independence or to
the organizational agreements of the CIS or to any other agreements
among the newly independent States. (3) Within the several years
immediately before dissolution was declared formally, the USSR
government had yielded its political and military control over the
other Warsaw Pact States. (4) In that period before formal dissolution,
the USSR government abolished the Communist Party's monopoly on
domestic political power, thereby facilitating the acquisition by the
people of the USSR's constituent ``republics'' of control of their
territories and economies, and removing an obstacle to the emergence of
the new States.\98\ (5) The demography of the new states was markedly
different from that of the USSR, the former being far more ethnically
homogeneous than the latter was. (6) None of the newly independent
States separately has military/strategic resources (including
agricultural and mining assets and geographical assets such as access
to various ports and contiguity with certain regions on land) that are
on par with those possessed by the USSR.
---------------------------------------------------------------------------
\98\ See generally accounts collected in The Decline and Fall of
the Soviet Empire (B. Gwertzman and M. Kaufman, eds. 1992) For a
description of Russia's place in the USSR, see Richard Pipes, Russia
Under the Bolshevik Regime (1993).
---------------------------------------------------------------------------
International law does not consider a State extinct solely because
it has lost some territory or population. But no USSR successor State
embodies the USSR's international legal personality; indeed, none even
claims to do so. Given the abruptness of the loss of territory and
population, the loss of empire, and the loss of central control over
the inhabitants of the fifteen sub-states that led to their
independence, the changes in ethnic concentrations and in military/
strategic resources, it is not hard to understand why the United States
agreed with the newly-emerged States that the USSR's identity had
disappeared. Hence, the successor States and the United States aptly
concluded that the USSR had ``ceased to exist,'' i.e., ``was no more.''
\99\
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\99\ ``[S]tates fully extinguished lose all international
personality . . ..'' Amos S. Hershey, The Essentials of International
Public Law and Organization 215 (rev. ed. 1935).
---------------------------------------------------------------------------
B. The ABM Treaty Was a Bilateral Treaty
A bilateral treaty is a treaty between two ``sides,'' which usually
are two States.\100\ Only the United States and the USSR were parties
to the ABM Treaty. The Treaty specified no means for adding
parties.\101\
---------------------------------------------------------------------------
\100\ Arnold Duncan McNair, The Law of Treaties, British Practice
and Opinions 5 (1938).
\101\ Confining discussion in this Memorandum to bilateral treaties
does not imply that a State's extinction has no effect on multilateral
treaties of which it was a party. State succession as regards
multilateral treaties is discussed in Hubert Beemelmans, State
Succession in International Law: Remarks on Recent Theory and State
Praxis, 15 B.U. Int'l L.J. 71, 85 (1997); Yehuda Z. Blum, U.N.
Membership of the ``New'' Yugoslavia: Continuity or Break?, 86 Am. J.
Int'l L. 830 (1992).
---------------------------------------------------------------------------
C. If Neither Judicial Decision, Diplomatic Practice Nor Treaty
Provides Trustworthy Evidence on a Disputed Point of Customary
International Law, a Court Will Consult the Works of Scholars
for Evidence of What the Law Is
International law, like common law in Anglo-American jurisprudence,
can grow out of long-practiced custom that becomes accepted as
law.\102\ In ascertaining custom, courts often consult the works of
scholars, as the Supreme Court explained in The Paquete Habana, a
landmark case in 1898:
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\102\ On the role of custom in the development of the common law,
see William Blackstone, I Commentaries on the Laws of England 69-80
(James DeWitt Andrews, ed., 4th ed., 1899); Arthur Reed Hogue, Origins
of the Common Law 190-200 (1966); David J. Bederman, The Curious
Resurrection of Custom: Beach Access and Judicial Takings, 96 Colum. L.
Rev. 1375, 1451 (1996). On the role of custom in the development of
international law, see O'Connell, I International Law, supra note 39,
at 15-20, 35-36.
[W]here there is no treaty and no controlling executive or
legislative act or judicial decision, resort must be had to the
customs and usages of civilized nations, and, as evidence of
these, to the works of jurists and commentators who by years of
labor, research and experience, have made themselves peculiarly
well acquainted with the subject of which they treat. Such
works are resorted to by judicial tribunals, not for the
speculations of their author concerning what the law ought to
be, but for trustworthy evidence of what the law really
is.\103\
---------------------------------------------------------------------------
\103\ The Paquete Habana, 175 U.S. 677, 700 (1900) (citation
omitted).
Courts continue to look to distinguished commentators for aid in
ascertaining customary international law.\104\
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\104\ Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423
(1964); See also Hilton v. Guyot, 159 U.S. 113, 163 (1895); United
States v. Nippon Paper Indus. Co., 109 F.3d 1, 10-11 (1st Cir. 1997).
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D. The Works of Scholars Support the Conclusion That a Bilateral Treaty
Other than a Dispositive Treaty Does Not Survive the Extinction
of One of the Treaty Partners
In very general terms, a dispositive treaty is one that creates a
disposition--as of a political boundary, for example--that is intended
to be perpetually respected. That the ABM Treaty is not a dispositive
treaty is shown at Part IV.K below. A treaty that is not dispositive is
called a ``personal'' or a ``real'' or ``political'' treaty.
A widely-quoted author on the law of State succession is D.P.
O'Connell. According to Professor O'Connell:
There has been, at least since the late nineteenth century,
almost unanimous agreement that personal treaties of a totally
extinguished State expire with it because they are contracted
with a view to some immediate advantage, and their operation is
conditional on the nice adjustment of the political and
economic relations which they presuppose. When this adjustment
is upset the rationale of the treaty is destroyed.\105\
---------------------------------------------------------------------------
\105\ D. P. O'Connell, The Law of State Succession 16 (1956)
(footnotes omitted). The rationale for treaty lapse has also been
characterized as a case of ``impossibility of performance,'' i.e., it
is impossible for an extinct State to do anything; ergo, it is
impossible for an extinct State to perform its predecessor's treaty
obligations. The principles of impossibility-of-performance are
elaborated in a Memorandum from the law firm of Hunton and Williams to
the Heritage Foundation, The Collapse of the Soviet Union and the End
of the 1972 Anti-Ballistic Missile Treaty 4-10 (June 15, 1998) (David
B. Rivkin, Jr., Lee A. Casey, Darin R. Bartram, authors).
The principle that bilateral treaties of a State lapse on the
State's extinction became a part of the scholarly tradition of
international law even before the United States was founded, and
European scholarly works on international law were well known in the
United States in the early Nineteenth Century. The most prominent work
was by Emmerich de Vattel, a Swiss scholar who wrote in the second half
---------------------------------------------------------------------------
of the Eighteenth Century. Vattel wrote:
In the same manner as a personal treaty expires at the death
of the king who has contracted it, a real treaty is dissolved,
if one of the allied nations is destroyed,--that is to say, not
only if the men who compose it happen all to perish, but, also
if, from any cause whatsoever, it loses its national quality,
or that of a political and independent society.\106\
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\106\ Emmerich de Vattel, The Law of Nations, Book II, Chap. XIII,
sec. 203, 215 (in English translation 1833). Vattel's work was first
published in French, Le droit de gens, ou, Principes de la loi
naturelle, applique a la conduite, aux affaires des nations, et des
souverains (1758). Vattel was published in English (in New York), at
least as early as 1787 (for Berry and Rogers). Vattel has been cited in
148 cases in the Supreme Court, from Miller v. The Resolution, 2 U.S.
(Dall) 1, 15 (1781) to New Jersey v. New York, 523 U.S. 767 (1998).
Another of the prominent early works was Frederic de Martens' The
Law of Nations, published in 1788. Martens' career included
professorships of law at the Imperial School in St. Petersburg and at
the University of Gottingen; as representative of Russia at many
official conferences; and as an arbiter in international disputes, for
which he became known as ``Chief Justice of Christendom.'' \107\ An
English translation of Martens'' work was published in Philadelphia in
1795, dedicated to President George Washington. Martens wrote:
---------------------------------------------------------------------------
\107\ George A. Finch, The Sources of Modern International Law 40-
41 (1937); Terry Nardin, Law, Morality and the Relations of States 64
(1983).
TREATIES, properly so called, cease to be obligatory when the
foreign power with whom they were concluded ceases to exist,
and when the state passes under the dominion of another
power.\108\
---------------------------------------------------------------------------
\108\ Georg Frederick von Martens, The Law of Nations, Book II,
Sec. 8, 56 (trans. from the French by William Cobbett, 1795).
Henry Wheaton made the same point in his Elements of International
Law in 1836, perhaps the first treatise exclusively on international
law written in the United States. Wheaton was Justice of the Marine
Court of New York. Later, as the official reporter of the U.S. Supreme
Court, he edited twelve volumes of the Supreme Court's reports. He then
became, in succession, Charge d'affaires of the United States to
Denmark, U.S. Minister to Prussia, and Lecturer on International Law at
Harvard University.\109\ Professor Wheaton wrote:
---------------------------------------------------------------------------
\109\ Finch, supra note 107, at 35-36.
Treaties, properly so called, or fodera, are those of
friendship and alliance, commerce and navigation, which even if
perpetual in terms, expire of course . . . in . . . case either
of the contracting parties loses its existence as an
independent State.\110\
---------------------------------------------------------------------------
\110\ Henry Wheaton, Elements of International Law 191 (1836)
(unabridged republication by Da Capo Press 1972). ``Fodera'' are
treaties. A ``fodus'' is a treaty, a league or a compact. Black's Law
Dictionary 770 (rev. 4th ed. 1968).
In 1889, the State Department stated as a ``principle of public
law'' that a treaty expires when one of the parties ``loses its
existence.'' \111\ In support, the State Department quoted from General
Henry W. Halleck's International Law,\112\ written in 1861:
---------------------------------------------------------------------------
\111\ United States Department of State, Treaties and Conventions
Concluded Between the United States of America and Other Powers Since
July 4, 1776, 1236 n.2 (1899), quoting Halleck's International Law 899,
which is materially the same as Henry W. Halleck I International Law
316 (G.S. Baker ed., 4th ed. 1908).
\112\ Halleck, the adopted son of Baron Frederic von Steuben, was a
career soldier and lawyer. He was General-in-Chief of the United States
Army in the Civil War until replaced by General Ulysses S. Grant. In
1861 he wrote his first book on international law. It was updated in
1866 and has appeared in many subsequent editions. Halleck's career as
soldier and lawyer is sketched in Scott R. Morris, The Laws of War:
Rules by Warriors for Warriors, 1997 Army Law. 4, 10 (1997).
The principle of public law which causes Treaties under such
circumstance [i.e., the cessation of a State's existence as an
independent State] to be regarded as abrogated is thus stated:
``The obligations of Treaties, even where some of their
stipulations are in their terms perpetual, expire in case
either of the contracting parties loses its existence as an
independent State . . .''. \113\
---------------------------------------------------------------------------
\113\ United States Department of State, Treaties and Conventions
Concluded Between the United States of America and Other Powers Since
July 4, 1776 1236 (1899).
In 1897, U.S. Secretary of State John Sherman invoked scholarly
works to explain to the Government of Japan why the treaties made by
the Kingdom of Hawaii would not survive the U.S. treaty of annexation
of the Kingdom's territory, i.e., ``[t]he treaty of annexation does not
abrogate [the Kingdom's treaties], it is the fact of Hawaii's ceasing
to exist as an independent contractant that extinguishes those
contracts.'' \114\
---------------------------------------------------------------------------
\114\ United States Secretary of State John Sherman, Note to the
Minister of Japan (June 25, 1897), quoted in John Basset Moore, V
Digest of International Law 349, 350 (1906). The treatises invoked in
the Note were Halleck's I International Law or Rules Regulating the
Intercourse of States in Peace and War 316 (4th ed. 1908) and William
Edward Hall, A Treatise on International Law 96-97 (4th ed. 1895).
Secretary Sherman was a lawyer who had been a Senator and a
Representative. He is remembered as the author of the Sherman Antitrust
Act, 15 U.S.C. Sec. 1 et seq., and the Sherman Silver Purchase Act, 26
Stat. 289 (1890). See also Territory of Hawaii v. Osaki Mankichi, 190
U.S. 197, 198-211 (1903) (describing the termination of the Kingdom of
Hawaii's treaties with other States after it was annexed by the United
States).
---------------------------------------------------------------------------
Likewise, in 1902 Charles E. Magoon, Law Officer in the Office of
the Secretary of the War Department, submitted a Report to Secretary of
War Elihu Root, which Secretary Root ordered to be published. On the
subject of the treaty obligations of extinct States, the Report states:
But where there is a complete change, not only of sovereigns
but of sovereignty, of necessity the agreement ends, for each
sovereignty must exercise its grace in accordance with its own
constitution, laws, and customs.\115\
---------------------------------------------------------------------------
\115\ Charles E. Magoon, Law Officer, Division of Insular Affairs,
Office of the Secretary, War Department, Report to Secretary of War,
Elihu Root, The Law of Civil Government in Territory Subject to
Military Occupation by the Military Forces of the United States 304
(1902).
In addition, in 1895 Captain Edwin F. Glenn, Acting Judge Advocate
General of the United States Army, in his Hand-Book of International
---------------------------------------------------------------------------
Law, wrote:
When some of the stipulations of a treaty imply perpetuity,
even though the act mentioned to be performed has been
accomplished according to the letter of the agreement--as, for
instance, in the recognition of a new state,--the act of
recognition is complete when accorded; but the state of things
contemplated implies permanency, and a state is not authorized
to disregard the obligation imposed. If, however, one of the
contracting parties loses its existence, or its interior
constitution undergoes a change of such a nature as to render
the treaty inapplicable to the new state of things, the
contract expires.\116\
---------------------------------------------------------------------------
\116\ Edwin F. Glenn, Hand-Book of International Law, 151-52
(1895).
Also, William Edward Hall (1895) and Max Huber (1899) published
treatises expressing the view that upon a State's extinction, its
personal treaties lapse.\117\
---------------------------------------------------------------------------
\117\ Hall, supra note 114, at 97; Max Huber, The Succession of the
States, International and National Practice in the Nineteenth Century
191-92 (1899).
---------------------------------------------------------------------------
British scholar Arthur Berriedale Keith assessed the evidence of
State practice in 1907. Soon after the dissolution of the Dual Monarchy
of Norway and Sweden, he stated: ``The evidence, from the practice of
nations, is all in favour of the lack of continuity in treaty
obligations.'' \118\
---------------------------------------------------------------------------
\118\ Keith, supra note 3, at 19.
---------------------------------------------------------------------------
Similar observations include the following:
[T]here is no legal resurrection in international law. Once a
State has become extinct, it cannot resume a continued
existence. Professor Krystyna Marek, Graduate Institute of
International Studies, Geneva, 1968.\119\
---------------------------------------------------------------------------
\119\ Marek, supra note 78, at 6.
---------------------------------------------------------------------------
When a State is dismembered into new independent States, its
treaties as a rule become null and void without descending to
the new States. Treaties are generally personal in so far as
they presuppose, in addition to the territory, also the
existence of a certain sovereign over the territory. To the
succeeding States the treaties concluded by the former State
are res inter alios acta. Professor Erik Castren, University of
Helsinki. 1951.\120\
---------------------------------------------------------------------------
\120\ Erik Castren, Obligations of States Arising from the
Dismemberment of Another State, XIII Zeitschrift Fur Auslandisches
Offentliches Recht Und Volkerrecht 753, 754 (1951). ``Res inter alios
acta' literally, ``a thing done between others,'' Black's Law
Dictionary 1470 (4th ed. 1951), is used figuratively, as ``it's no
concern of ours,'' Eugene Ehrlich, Amo, Amas, Amat and More 249 (1987).
---------------------------------------------------------------------------
It is clear that political (including personal and dynastic)
treaties of the extinguished state fall to the ground.
Professor Amos H. Hershey, University of Indiana, 1911.\121\
---------------------------------------------------------------------------
\121\ Amos S. Hershey, The Succession of States, 5 Am. J. Int'l L.
285, 287 (1911). See also id. at 291-92.
---------------------------------------------------------------------------
The extinction of the personality of a state results
traditionally in an abrogation of all political and military
treaties concluded between the now extinct entity and other
states. Professor Gerhard von Glahn, University of Minnesota--
Duluth, 1962.\122\
---------------------------------------------------------------------------
\122\ Gerhard von Glahn, Law Among Nations 117 (6th ed. 1992).
Many other scholars have expressed the same opinion.\123\
---------------------------------------------------------------------------
\123\ See, e.g., UN GAOR, 1st Comm., 2d Sess., Annex 14g at 582-83,
U.N. Doc. A/C.1/212 (1947) (Letter of October 11, 1947 from the
Chairman of Sixth Committee to the Chairman of the First Committee);
Restatement (Third) of the Foreign Relations Law of the United States
Sec. 210(3) (1986); J. L. Brierly, The Law of Nations 153 (6th ed.
1963); Crawford, supra note 78, at 408; Green Haywood Hackworth, I
Digest of International Law 297 (1943); Hans Kelsen, Principles of
International Law 382-87 (2d. ed. 1966); Noyes E. Leech, et al, The
International Legal System: cases and Materials 980 (1973); Werner
Levi, Contemporary International Law, A Concise Introduction (2d ed.
1991); John Bassett Moore, I Digest of International Law 248 (1906);
O'Connell, I International Law, supra note 39, at 368; L. O. Oppenheim,
I International Law 553 (1905); Paul Reuter, Introduction to the Law of
Treaties 186 (2d. ed. 1995); Georg Schwarzenberger, A Manual of
International Law 169 (5th ed. 1967); Malcolm N. Shaw, International
Law 694 (4th ed. 1997); Max Sorenson, Manual of Public International
Law 295-98 (1968); Oscar Svarlien, An Introduction to the Law of
Nations 111-112 (1955); Okon Udokang, Succession of New States to
International Treaties 404 (1972); Blum, supra note 101, at 833; Albert
J. Esgain, Military Servitudes and the New Nations, in III Yearbook of
World Polity, The New Nations in International Law and Diplomacy
(William V. O'Brien, ed. 1965), quoting H. D. Reid, International
Servitudes in Law and Practice 25 (1932); Charles Cheney Hyde, The
Termination of the Treaties of a State in Consequence of Its Absorption
by Another--The Position of the United States, 26 Am. J. Int'l L. 133
(1932); J. Mervyn Jones, State Succession in the Matter of Treaties,
1947 Brit. Y.B. Int'l L. 360, 373; Josef L. Kunz, Identity of States
Under International Law, 49 Am. J. Int'l L. 66 (1955); Dieter PapenfuB,
The Fate of the International Treaties of the GDR within the Framework
of German Unification, 92 Am. J. Int'l L. 469, 470-71 n.16 (1998);
Edwin D. Williamson & John E. Osborn, A U.S. Perspective on Treaty
Succession and Related Issues in the Wake of the Breakup of the USSR
and Yugoslavia, 33 Va. J. Int'l L. 261, 270-71 (1993); Richard Young,
The State of Syria: Old or New, 56 Am J. Int'l L. 482, 487 (1962).
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E. No Controlling Decision of an International Judicial Tribunal or
Quasi-judicial Tribunal or a Court of the United States Holds
That an Extinct State's Treaty Automatically Becomes a Treaty
Between the Extinct State's Successor and the Extinct State's
Treaty Partner
1. Courts of the United States
In Terlinden v. Ames,\124\ the Supreme Court had to decide whether
the extradition treaty of 1853 between the United States and the
Kingdom of Prussia remained in force after 1871, when a number of
Germanic States, including Prussia, formed the German Empire. The Court
held that the treaty remained in force because the German Empire's
Constitution had not extinguished Prussia's sovereignty. The Court
described the adoption of the Empire's Constitution, as follows:
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\124\ Terlinden v. Ames, 184 U.S. 270 (1902).
Then came the adoption of the Constitution of the German
Empire. It found the King of Prussia, the chief executive of
the North German Union, endowed with power to carry into effect
its international obligations, and those of the Kingdom, and it
perpetuated and confirmed that situation.\125\
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\125\ Id. at 284.
The Court was careful to distinguish cases in which a State loses
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its international identity upon joining a union of States:
Undoubtedly treaties may be terminated by the absorption of
powers into other nationalities and the loss of separate
existence, as in the case of Hanover and Nassau, which became
by conquest incorporated into the Kingdom of Prussia in 1866.
Cessation of independent existence rendered the execution of
treaties impossible.\126\
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\126\ Id. at 283.
The Court cited as a source an 1889 State Department study of
treaty succession, i.e., ``Where a state has lost its separate
existence, as in the case of Hanover and Nassau, no questions [of
treaty succession] can arise.'' \127\ The Court also invoked a State
Department analysis of the effect on treaties of a State's loss of
existence.\128\
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\127\ Id. at 287.
\128\ John Davis Bancroft, in Treaties and Conventions Concluded
Between the United States of America and Other Powers Since July 4,
1776, 1234-36 (1889).
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The question of whether a State has become extinct was addressed by
a Court of Appeals in 1954 in Ivancevic v. Artukovic.\129\ The court
held that the Kingdom of Serbia had not become extinct when the
inhabitants of adjacent and smaller south Slavic States joined with
Serbia to form what was successively called the Kingdom of the Serbs,
Croats and Slovenes; the Kingdom of Yugoslavia; and the Socialist
Federal People's Republic of Yugoslavia. Ivancevic therefore does not
address the consequences of extinction.
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\129\ Ivancevic v. Artukovic, 211 F.2d. 565, 568-74 (9th Cir.
1954).
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Therefore, to the extent that U.S. courts have addressed the
question of State extinction, the Supreme Court's dictum in Terlinden
v. Ames is consistent with the scholarly works that a State's treaties
lapse upon the State's extinction.
2. International judicial tribunals
Neither the International Court of Justice nor its predecessor, the
Permanent Court of International Justice, has handed down a decision
that turned on the status of personal bilateral treaties of an extinct
State, but in 1996, in the case Concerning application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), the ICJ Separate Opinion of
Judge Weeramantry observed that the Genocide Convention survived the
dismemberment of Yugoslavia because the Convention in embodying
universal principles of civilized behavior, transcended the concept of
state sovereignty. Judge Weeramantry distinguished the Genocide
Convention from treaties that are ``confined within the ambit of a
State's sovereignty.'' \130\ As to such treaties, ``[a]n important
conceptual basis denying continuity . . . is that the recognition of
the predecessor state's treaties would be an intrusion upon the
sovereignty of the successor state.'' \131\ Hence, Judge Weeramantry
appears to have concluded that treaties, other than those of universal
humanitarian concern, do not as a matter of law remain in existence
upon a State's dissolution.
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\130\ Case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina), 1996 I.C.J. 803, at ``640, 646-47 1996 WL 943410
[I.C.J.]. See also Thomas D. Grant, Territorial Status, Recognition,
and Statehood: Some Aspects of the Genocide Case (Bosnia and
Herzegovina v. Yugoslavia), 33 Stan. J. Int'l L. 305 (1997).
\131\ Id.
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3. International arbitration panel
A Tripartite Claims Commission (United States, Austria and Hungary)
was created in 1927 to fix the amounts of financial obligations to
Americans assumed by Austria in its World War I Peace Treaty (Vienna,
1921) with the United States, and the amount assumed by Hungary in its
World War I Peace Treaty (Budapest, 1921) with the United States. The
Panel found it unnecessary to resolve any question of obligations
imposed by customary international law. In passing, however, the Panel
compared the U.S.-Austria and U.S.-Hungary Peace Treaties to the U.S.-
Germany Peace Treaty (Berlin, 1921) as follows:
Unlike the Treaty of Berlin ``restoring friendly relations''
between the United States and Germany, these Treaties in terms
``establish'' for the first time such relations between Austria
and the United States and between Hungary and the United
States.\132\
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\132\ Tripartite Claims Commission (United States, Austria and
Hungary), Administrative Decision No. 1, 11 (May 25, 1927) (App. 20).
Thus, the Tripartite Claims Commission believed that the treaties
of the Austro-Hungarian Empire did not, upon its extinction at or near
the end of World War I, automatically pass to Austria and Hungary,
which were two of the States that succeeded to parts of the Empire's
territory.
F. The United States Conduct Described by Assistant Attorney General
Dellinger Does Not Constitute State Practice for Purposes of
Establishing Customary International Law
1. Background
A State's loss of sovereignty over all its territory was relatively
common in the Nineteenth Century and in the early Twentieth Century.
France annexed Madagascar and Algiers; Great Britain annexed the
Southern African Republic; Japan annexed Korea; Italy annexed various
Italian States; Prussia annexed Hanover, Frankfurt and Nassau; the
United States annexed the Republic of Texas and the Kingdom of Hawaii.
In all of those annexations the United States expressed a view that the
treaties of the annexed States ended automatically with respect to the
territory annexed.\133\
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\133\ Jones, supra note 123, at 362.
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A State's loss of sovereignty over all its territory from a cause
other than annexation was less common. A vast number of States combined
to form ``composite'' States or ``confederations'' or ``unions,'' but
the combining States in many cases retained substantial powers to
conduct their own foreign relations, including the power to make
treaties. An example was the Dual Monarchy of Norway and Sweden, which
ultimately dissolved in 1905. When such a hybrid State dissolved and
its members resumed full sovereignty, each was expected to continue in
effect the treaties it had made when it was part of a union.\134\ The
USSR was different. Before dissolution, its sub-States did not make
bilateral treaties with nation-States.
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\134\ Herbert A. Wilkinson, The American Doctrine of State
Succession 108-109 (1934); Samuel B. Crandall, Treaties, Their Making
and Enforcement 438 (2d ed. 1916); Robert Willem Gaston de Muralt, The
Problem of State Succession with Regard to Treaties 87-88 (1954).
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AAG Dellinger cites four examples of State dissolution to support
his contention that the ABM Treaty of 1972 survived the USSR's
extinction: (a) The breakup of the Greater Columbian Union in 1829-1831
into what became Columbia, Venezuela and Ecuador; (b) the dissolution
of the Dual Monarchy of Norway and Sweden in 1905; (c) the dissolution
of the Austro-Hungarian Empire at or near the end of World War I and
(d) the dissolution of the United Arab Republic in 1961. According to
Dellinger, those events support the proposition that ``[w]here a state
divides into its constituent parts, the [diplomatic] practice supports
the continuity of existing treaty rights and obligations.'' \135\ The
quotation that Dellinger used is from a law review article by Edwin D.
Williamson (former State Department Legal Adviser) and John E.
Osborn.\136\
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\135\ Memorandum from Walter Dellinger, Assistant Attorney General,
to John M. Quinn, Counsel to the President, Re: Section 233(a) of S.
1745 (June 26, 1996), at 3 n.5 (App. 10).
\136\ Id. (quoting Edwin D. Williamson & John E. Osborn, A U.S.
Perspective on Treaty Succession and Related Issues in the Wake of the
Breakup of the USSR and Breakup of USSR and Yugoslavia, 33 Va. J. Int'l
L. 261, 263 (1993)).
---------------------------------------------------------------------------
Dellinger did not mention Yugoslavia's 1992 dissolution, a curious
omission inasmuch as it is a recent example of a State that has been
dissolved, leaving no sovereignty in the extinct predecessor States. It
is therefore more closely analogous to the USSR case than the foregoing
four examples of State dissolution. Regarding Yugoslavia's dissolution,
the United States has taken the position in U.S. Courts and in the U.S.
State Department's publication Treaties in Force that none of the
Yugoslav successor States is a continuation of Yugoslavia,\137\ and in
dealing with the successors of extinct Yugoslavia has ``abandoned any
assertions of automatic treaty obligations and relied entirely on . . .
assurances provided by the successor states.'' \138\
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\137\ Declaration of Christopher R. Hill, Director, Office of South
Central European Affairs, United States Department of State, filed in
Federal Republic of Yugoslavia v. Park-71st Corp., No. 95 Civ. 3659
(AGS) (S.D.N.Y.) para.para. 3, 5 (Sept. 21, 1995), complaint dismissed,
913 F.Supp. 191 (S.D.N.Y. 1995) (App. 1). The United Nations also
concluded that no State is the continuation of the SFRY. U.N.
Resolution 777 (Sept. 19, 1992): ``[T]he State formerly known as the
Socialist Federal Republic of Yugoslavia has ceased to exist,'' and as
a consequence the FRY ``cannot continue automatically [the SFRY's UN]
membership.'' The Security Council thereupon asked the General Assembly
to rule that the FRY ``apply for membership in the United Nations and .
. . not participate in the work of the General Assembly.'' The event is
described in Blum, supra note 101, at 833. See also James B. Foley,
Deputy State Department Spokesman, Statement on Yugoslav State (Sept.
30, 1997), 1997 WL 14464578 (App. 21).
\138\ Williams, supra note 66, at 32.
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Also, Dellinger does not mention the U.S. practice of regarding as
lapsed the treaties of States made extinct by the annexation of their
entire territories. Dellinger gives no reason why those extinctions
should be treated differently from extinctions caused by dismemberment.
Indeed, with respect to the question of treaty survival, the scholarly
literature treats all extinctions in the same way. For example,
Professor Amos S. Hershey, after explaining that ``States are
extinguished through voluntary incorporation, forcible annexation,
division into several States, or union with other States,'' \139\ says:
``It is clear that political (including personal and dynastic) treaties
and alliances of the extinguished State fall to the ground.'' \140\
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\139\ Hershey, supra note 99, at 215 (emphasis added).
\140\ Id. at 218.
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2. A State practice does not contribute to the development
of customary international law unless the practice
is conducted out of a sense of necessity to comply
with international law
International law, like the common law in Anglo-American
jurisprudence, can grow out of long-practiced conduct.\141\ In
international law, it is the conduct of States that is relevant. But
not all conduct of States contributes to the growth of international
law because States, like other persons, sometimes engage in lawful
conduct for reasons that have nothing to do with their international
legal obligations. For example, States admit aliens for residence,
borrow money from other States, make treaties with other States, assert
claims to property located in other States, grant diplomatic asylum,
settle disputes they have with other States, and do other things
``merely for reasons of political expediency.'' \142\ Indeed, in
dealing with questions of treaty survival, States appear to act in the
way they act when dealing with questions as to whether they should
enter new treaties, i.e., they identify their political, economic,
security and other interests and seek the greatest benefits they might
achieve, using any arguments they can muster, while giving up as little
as they have to.\143\ Therefore, to separate State conduct that can
contribute to the growth of international law from State conduct that
does not contribute, courts have established a rule that is called
opinio juris sive necessitatis, which loosely translates as ``a
conviction that a rule is obligatory.'' \144\ For short, it is opinio
juris. According to this rule, the only State conduct that can
contribute to the growth of international law is an act done out of a
sense that the act is required by international law.\145\
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\141\ Bederman, supra note 102, at 1451; Blackstone, supra note
102, at 72; O'Connell, I International Law, supra note 39, at 3-37;
Mark E. Villiger, Customary International Law and Treaties 3-60 (rev.
2d ed. 1997).
\142\ Columbian-Peruvian Asylum Case, 1950 ICJ 4, 277 (Nov. 20).
See generally Jo Lynn Slama, Opinio Juris in Customary International
Law, 15 Okla. City U. L. Rev. 603 (1990).
\143\ Villiger, supra note 141, at 48 (opinio juris seems to
exclude State conduct engaged in solely for convenience); Columbian-
Peruvian Asylum Case, 1950 I.C.J. at 276-78.
\144\ Slama, supra note 142, at 605 n.13, citing H. Steiner & D.
Vagts, Transnational Legal Problems 290 (3d ed. 1986).
\145\ In addition to the authorities cited in the text, the
following describe the rule of opinio juris as an established rule of
international law: The Paquete Habana, 175 U.S. 677, 700 (1900); The
Scotia, 14 U.S. (Wall.) 170 (1871); Helen Silving, 'Customary Law':
Continuity in Municipal and International Law, 31 Iowa L. Rev. 615, 622
(1946); Herbert W. Briggs, The Columbian-Peruvian Asylum Case and Proof
of Customary International Law, 45 Am. J. Int'l L. 728, 730 (1951); J.
L. Brierly, The Law of Nations, An Introduction to the International
Law of Peace 60-61 (5th ed. 1955); Kunz, supra note 123, at 71-76; D.
P. O'Connell, I International Law 16, 18 (1965); Bin Cheng, United
Nations Resolutions on Outer Space: ``Instant'' International Customary
Law, 5 Indian J. Int'l L. 23, 36 (1965); Clive Parry, The Sources of
Evidence of International Law 61-63 (1965); John A. Perkins, The
Changing Foundations of International Law: From State Consent to State
Responsibility, 15 B.U. Int'l L.J. 433, 440 (1997); Villiger, supra
note 143, at 52; Glennon, supra note 15, at 69 n.197.
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According to Sir Hersch Lauterpacht, to cite State practice as
evidence of ``binding customary international law,'' one must establish
``the [State's] conviction that the conduct in question is followed as
a matter of legal obligation . . .''. \146\
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\146\ Sir Hersch Lauterpacht, The Development of International Law
by the International Court 368 (1958).
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The American Law Institute states the rule of opinio juris as
follows:
For a practice of States to become a rule of customary
international law it must appear that the States follow the
practice from a sense of legal obligation (opinio juris sive
necessitatis); a practice that is generally followed but which
States feel legally free to disregard does not contribute to
customary law.\147\
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\147\ Restatement (Third) of the Foreign Relations Law of the
United States Sec. 102(1)(c)(3) cmt. c (1987).
In three leading cases, the North Sea Continental Shelf Cases
(1969),\148\ the Anglo-Norwegian Fisheries Case (1951),\149\ and the
Columbian-Peruvian Asylum Case (1950),\150\ all involving claims based
on State practice, the International Court of Justice ruled that a
failure to establish that the State practice at issue met the opinio
juris test required a conclusion that the practice had not passed into
customary international law. Also, in the 1927 Lotus case,\151\ the
Permanent Court of International Justice likewise rejected a claim
because of a failure to meet the opinio juris test.
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\148\ North Sea Continental Shelf Cases, 1969 I.C.J. 4, 44-45 (Feb.
20).
\149\ Anglo-Norwegian Fisheries Case, 1951 I.C.J. 4, 131 (Dec. 18).
See also Fisheries Jurisdiction Case, Gr. Brit and N. Ir. v. Ice, 1974
I.C.J. 3.
\150\ Columbian-Peruvian Asylum Case, 1950 I.C.J. 4, 276 (Nov. 20).
\151\ The Lotus, (1927) P.C.I.J. Rep. Ser. A. No. 10, at 28; Anglo-
Norwegian Fisheries Case, 1951 I.C.J. 4, 131 (Dec. 18).
---------------------------------------------------------------------------
The Anglo-Norwegian Fisheries case typifies the application of the
opinio juris rule. The ICJ held that the evidence did not establish the
existence of a purported customary rule of international law limiting
the base-line of territorial waters to ten miles in the case of a bay.
The evidence was to the effect that some States had adopted the ten-
mile limit by statute or by treaty, and some arbitral proceedings had
adhered to the ten-mile limit. Nonetheless, the ICJ ruled that, however
broadly the limit was respected, the State practice failed as evidence
of the existence of customary international law because it was not
practice that responded to a command of law.\152\
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\152\ Anglo-Norwegian Fisheries Case, 1951 I.C.J. 4, 131 (Dec. 18).
---------------------------------------------------------------------------
Hence, if the acts of diplomacy cited by AAG Dellinger are to serve
as evidence of customary international law, they must pass the opinio
juris test.
3. The record does not show that, in any of the four
episodes cited by Dellinger, the United States
accepted a treaty as binding on it out of a sense
that international law so required
a. The Dissolution of the Greater Columbian Union, 1829-
1831
In 1819, the Spanish Kingdom of New Granada, the Captain-
Generalship of Venezuela and Quito (also called Ecuador) formed the
Greater Columbian Union. The Union Dissolved in 1829-1831. The extent
to which the three States had submerged their separate identities in
the Union is a matter of dispute. According to one scholar, the Union
consisted of three States. Hence, the dissolution did not manifest a
unitary State's loss of sovereignty over territory.\153\ Later,
Columbia and the United States signed a new treaty, which contained
language that can be read to imply that each party had considered the
pre-dissolution treaties to have continued in effect in the period
between the Union's dissolution and the making of the new treaty.\154\
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\153\ McNair, supra note 100, at 412-18.
\154\ De Muralt, supra note 134, at 86-87.
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The episode was described by the U.S. Secretary of State in 1832,
and more recently in books, articles and reports on State succession,
including a report by a Committee of the UN's International Law
Commission.\155\ If the United States had manifested an understanding
that it acted out of a compulsion of international law, that would have
been a noteworthy event to students of the law of State succession as
well as to AAG Dellinger, i.e., a bona fide manifestation of action
opinio juris in a field of few if any such manifestations. Yet, neither
Dellinger nor any other scholar, identifies any such manifestation.
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\155\ President Andrew Jackson, Message to the House of
Representatives, transmitting Report of Secretary of State Edward
Livingston, on Government of Columbia, H.Doc. No. 173, 22d Cong. 1st
Sess. (March 16, 1832) (App. 22). Draft Articles on Succession of
States in Respect of Treaties with Commentaries Adopted by the
International Law Commission at Its Twenty-Sixth Session, U.N. GAOR,
1977 Sess. & res. Sess. 1978, Vol. III, at 89, U.N. Doc. A/Conf. 80/16/
Add. 2 (1979); Jones, supra note 123, at 367-68; O'Connell, V The Law
of State Succession, supra note 101, at 43-44; D. P. O'Connell, State
Succession in the New Nations, in International Law and Diplomacy, III
Yearbook of World Polity 13 (1965); De Muralt, supra note 130, at 86-
87.
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There is, in short, nothing to suggest that the United States was
acting out of opinio juris in conducting treaty relations with the
successors of the Greater Columbian Union.
b. The Dissolution of the Dual Monarchy of Norway and
Sweden, 1905
In 1814, the Kingdom of Norway and the Kingdom of Sweden formed a
``Dual Monarchy'' by which one person became King of both States.\156\
In a 1910 letter to the Minister of Japan in Washington, the U.S.
Secretary of State described the treaty operations of the Dual Monarchy
from the time it was formed until it dissolved in 1905:
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\156\ Fridtjof Nansen, Norway and the Union with Sweden 26 (1905).
In point of fact the Government of Norway and the Government
of Sweden have hitherto acted independently in execution of
their treaty engagements, each within its sovereign
jurisdiction. In the matter of extradition the United States
has concluded separate treaties with the Governments of Norway
and Sweden.\157\
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\157\ Letter from Secretary of State Elihu Root to Minister of
Japan Takahira (Nov. 10, 1905), reprinted in Hackworth, supra note 123,
at 362.
The U.S. practice of concluding separate extradition treaties with
Norway and Sweden has been interpreted by the UN's International Law
Commission as recognition that the two States had ``separate
international personalities.'' \158\
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\158\ Draft Articles on Succession of States in Respect of Treaties
with Commentaries Adopted by the International Law Commission at Its
Twenty-Sixth Session, U.N. GAOR, 1977 Sess. & res. Sess. 1978, Vol.
III, U.N. Doc. A/CONF.80/16/Add.2 (1979).
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In 1905, when Sweden and Norway separated from their Union, each
notified the United States and other States of its position on treaties
made during the period of the Union, i.e., a treaty that had been made
specifically with reference to one member of the Union would continue
in effect between that member and its treaty partner, and would not
continue in effect otherwise; a treaty made for the Union as a whole
would continue in effect to the extent that it related to one of the
members of the Union, and would not otherwise continue in effect. The
United States and France acquiesced. Great Britain did not acquiesce as
to the continuance of any treaty with Norway, and as to Sweden,
reserved the right to examine the treaties one-by-one.\159\
---------------------------------------------------------------------------
\159\ Baty, supra note 3, at 123-24 (1923). See also Keith, supra
note 3, at 101.
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Like the episode of the Greater Columbia Union, no public account
of that episode states or implies that the U.S. acquiescence was driven
by a sense of necessity to comply with international law. In one
respect, however, the episodes differ, in that in the period between
the dissolution of the Greater Columbian Union (1829-31) and the
dissolution of the Dual Monarchy of Norway and Sweden (1905),
additional government officials and scholarly writers had expressed
opinions on the status of treaties of extinct States. None of them
suggests that the dissolution of Greater Columbia was a precedent
relevant to the dissolution of the Norway/Sweden Dual Monarchy.
Thus, to the extent that views of law had been expressed after the
Greater Columbian Union's dissolution, those views suggested that the
United States was not bound by law to acquiesce in Norway's and
Sweden's proposal that any of their treaties with the United States
remained in effect after their Dual Monarchy's dissolution. Indeed, to
the scholars, the law appeared to be to the contrary. Hence, there is
no evidence to support Dellinger's implied claim that the U.S. practice
vis-a-vis the dissolved Dual Monarchy of Norway and Sweden was arrived
at by opinio juris. That episode therefore does not support the
existence of a rule of customary international law.
c. The Dissolution of the Austro-Hungarian Empire, 1918
The Austro-Hungarian Empire dissolved at or about the end of World
War I. The Empire had fought as an ally of the German and Ottoman
Empires, against a group of States (the ``Allies''), the principals of
which were Britain, France, Italy, Japan, Russia, (until its withdrawal
in 1917), and the United States (which entered in 1917 as against the
German and Austro-Hungarian Empires).
After the War, the Allies jointly negotiated with Germany the Peace
Treaty of Versailles (1919),\160\ to which the U.S. Senate denied
consent. Therefore, the Treaty was not ratified by the United
States.\161\
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\160\ Treaty of Versailles, June 28, 1919, reprinted in II Major
Peace Treaties of Modern History 1265 (F. L. Israel, ed., 1967).
\161\ Edwin Borchard, Shall the Executive Agreement Replace the
Treaty?, 53 Yale L.J. 664, 665-66 (1943-1944).
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The Allies jointly negotiated other Peace Treaties which the United
States did not ratify, including treaties with Hungary (Trianon,
1920),\162\ and with Austria (St. Germain-en-Laye, 1919).\163\ The
United States made peace by separate treaties, i.e., with Germany
(Berlin, 1921),\164\ with Austria (Vienna, 1921) \165\ and with Hungary
(Budapest, 1921).\166\
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\162\ Treaty of Trianon (June 4, 1920).
\163\ Treaty of St. Germain-en-Laye (Sept. 10, 1919).
\164\ Treaty of Peace with Germany, Aug. 25, 1921, U.S.-F.R.G.,
T.S. No. 658 (Excerpts, App. 23).
\165\ Treaty of Peace with Austria, Aug. 24, 1921, U.S.-Aus., T.S.
No. 659 (Excerpts, App. 24).
\166\ Treaty of Peace with Hungary, Aug. 29, 1921, U.S.-Hung., T.S.
No. 660 (Excerpts, App. 23).
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In the recitals at the beginning of the U.S. Treaty with Germany,
the parties state that ``Being desirous of restoring the friendly
relations existing between the two nations prior to the outbreak of war
. . . [h]ave for that purpose appointed their plenipotentiaries . . .''
(emphasis added). The recitals introducing the Treaty with Austria are
different, i.e., ``Considering that the former Austro-Hungarian
Monarchy ceased to exist and was replaced by a republican Government .
. .,'' and ``Being desirous of establishing securely friendly relations
between the two nations . . . [h]ave for that purpose appointed their
plenipotentiaries . . .'' (emphasis added). The recitals in the Treaty
with Hungary are substantially the same as in the Treaty with Austria,
i.e., ``Considering that the former Austro-Hungarian Monarchy ceased to
exist and was replaced in Hungary by a National Hungarian Government .
. .,'' and ``Being desirous of establishing securely friendly relations
between the two nations . . . [h]ave for that purpose appointed their
plenipotentiaries . . .'' (emphasis added) Austria insisted that it was
not the continuation of the Empire.\167\ Austria's position was
supported by its national courts and by a Tripartite Commission that
included the United States.\168\ The Commission cited the above-
described differences in the wording of the U.S. treaties with Germany,
Austria and Hungary as evidence that neither Austria nor Hungary was a
continuation of the Empire.
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\167\ See Kelsen, supra note 123, at 384 n.85; Marek, supra note
78, at 230-32; Thomas Baty, The Obligations of Extinct States, 35 Yale
L.J. 434, 435-37 (1925-1926); Oskar Lehner, The Identity of Austria
1918 as a Problem of State Succession, 44 Aus. J. Pub. Int'l L.63
(1992). For a history of the dissolution of the Austro-Hungarian
Empire, see Robert A. Kann, A History of the Habsburg Empire 468-520
(1974); Rene Albright-Carrie, A Diplomatic History of Europe Since the
Congress of Vienna 360-371 (1958).
\168\ Tripartite Claims Commission (United States, Austria and
Hungary) Administrative Decision No. 1, 4-6, 11-14 (May 25, 1927) (App.
20).
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Moreover, in Article II(1) of the 1921 U.S.-Austria Peace Treaty,
Austria confers on the United States ``the rights, benefits and
advantages'' conferred by Austria on the other Allied and Associated
Powers by designated Parts of the Treaty of St. Germain-en-Laye (1919)
(to which the United States did not become a party),\169\ including
Part X. Part X of the Treaty of St. Germain-en-Laye, Section II,
Articles 234-247, provides a regimen for dealing with the treaties of
the dissolved Austro-Hungarian Empire. Article 234 designates
particular treaties of the dissolved Austro-Hungarian Empire, and
provides that these treaties alone ``shall . . . be applied as treaties
between Austria and those of the Allied and Associated powers party
thereto . . .''. \170\ Some examples are the Convention of October 11,
1909, regarding the international circulation of motor-cars, and the
Convention of June 12, 1902, regarding the guardianship of minors.
Article 241 provides that each of the Allied or Associate Powers
``shall notify to Austria the bilateral agreements of all kinds which
were in force between her and the former Austro-Hungarian Monarchy, and
which she wishes should be in force as between her and Austria.'' \171\
Article 241 further provides that ``[t]he date of the coming into force
shall be that of the notification.'' \172\ Also, ``[o]nly those
bilateral agreements which have been the subject of such a notification
shall be put into force between the Allied and Associated Powers and
Austria.'' \173\ The U.S. Peace Treaty with Hungary, i.e. Budapest
(1921), by reference to the Treaty of Trianon (1920), Article II(1),
adopts by reference Article X of the Treaty of Trianon (1920), which is
in material respects identical to Article X of the Treaty of St.
Germain-en-Laye.\174\ Both treaties were submitted to and approved by a
two-thirds vote in the U.S. Senate.
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\169\ Treaty of Peace between the United States and Austria
(Vienna, 1921) (Excerpts, App. 24).
\170\ Treaty of Peace between Austria on the one hand and the
Allied and Associated Powers on the Other (St. Germain-en-Laye, 1921).
\171\ Supra note 169, at Article 234 (Excerpts, App. 24).
\172\ Id. at Article 241.
\173\ Id.
\174\ Treaty of Peace Between the United States and Hungary
(Budapest, 1921) (Excerpts, App. 25).
---------------------------------------------------------------------------
In 1923 the State Department Solicitor explained that Article II
(i) of the 1921 Treaty with Austria, by incorporating section 241 of
the Treaty of St. Germain-en-Laye, had the effect of terminating the
U.S.-Austria Naturalization Treaty of 1870.\175\ In 1927 the State
Department Solicitor explained that Article 241 gave the United States
a ``right . . . to revive, by giving notice to Austria within a
specified period, any treaty or convention which it may be desired to
continue in effect.'' The Solicitor explained further that the United
States did not within the period specified in Article 241, give notice
of ``its intention to revive the Consular Convention concluded between
this country and Austria-Hungary on July 11, 1870,'' adding that the
Department ``therefore does not consider that this Consular Convention
is now in force.'' \176\
---------------------------------------------------------------------------
\175\ Letter from United States State Department Solicitor to Mr.
Vallance, Effect of War on Naturalization Treaty Concluded Between the
United States and Austria on September 20, 1870, at 1-2 (Apr. 6, 1923)
(App. 26).
\176\ Letter from United States State Dept. Solicitor Green H.
Hackworth to Mr. Jean Dube 1-2 (May 25, 1927) (App. 27).
---------------------------------------------------------------------------
Given that the United States and Austria agreed to an elaborate
regimen by which the United States would select the U.S.-Austro-
Hungarian Empire treaties that it wanted to be in force with Austria,
and that this regimen was consented to by the Senate, there is no
support for Dellinger's implied claim that the U.S.-Austro-Hungarian
treaties continued automatically by operation of law, or Dellinger's
implied claim that the Executive Branch revived those treaties without
the Senate's consent.
In short, the United States did not regard itself as bound by
international law to the treaties of the extinct Austro-Hungarian
Empire.
d. The Secession of Syria from the United Arab Republic,
1961
In 1958, Syria and Egypt formed a union called the United Arab
Republic (the ``UAR''). In 1961, Syria seceded and was once again
recognized as a separate State. In the view of the United States, the
UAR continued to exist notwithstanding Syria's secession, a view shared
by the UAR itself. Under the circumstances, as a matter of
international law, treaties would remain in place absent some reason
why a particular treaty could no longer fulfill its object and purpose.
Moreover, a scholarly work expresses the opinion that Syria's treaties
that were in force when it joined the Union never went out of
force.\177\ Therefore, in 1961 when Syria seceded, its pre-Union
treaties were in force in any event. The United States did not object
to continuing with Syria the treaties that the United States had made
with the UAR, but the United States did not maintain that it continued
those treaties out of a sense of legal duty.
---------------------------------------------------------------------------
\177\ L. C. Green, The Dissolution of States and Membership of the
United Nations, in Law, Justice and Equity 162-166 (R. H. Code Holland
& G. Schwarzenberger, eds., 1967); J. H. W. Verzijl, International Law
in Historic Perspective 126 (1969); United States Dept. of State,
Bureau of Intelligence and Research, The Outlook for Nasser, Research
Memorandum RNA8 at 1 (Oct. 30, 1961) (Declassified, NARA 1/14/99) (The
1961 separation is called ``The Secession of Syria; U.S. Dept. of
State, Telegram to American Embassies in Bonn, London, Cairo, etc. The
State Department had advised the UAR Ambassador that ``[Syria's
secession] was a special situation in that it was not repeat not a
matter of a new regime having supplanted an old regime, but of a new
regime having been created side by side with the previous regime.'')
(App. 28).
---------------------------------------------------------------------------
4. U.S. practice regarding Yugoslavia's 1992 dissolution
shows that the United States does not consider
itself bound by international law to maintain in
force the non-dispositive treaties of extinct
States
In 1992, the Socialist Federal Republic of Yugoslavia (``SFRY'')
dissolved and five States emerged on its territory, i.e., Slovenia,
Croatia; Bosnia and Herzegovina; Macedonia; and the Federal Republic of
Yugoslavia (Serbia and Montenegro) (``FRY(S&M)''). When the dissolution
occurred, the FRY(S&M) claimed that it was not a new State but merely a
reduced-in-size SFRY and therefore was the SFRY's continuation.
The United States rejected the FRY(S&M)'s claim. In a Declaration
filed with a Statement of Interest of the United States in U.S.
District Court in New York in 1995, Christopher R. Hill, Director of
the State Department Office of South European Affairs, stated:
In the early part of this decade, the SFRY suffered
increasing political crisis that ultimately led to dissolution.
Since 1992 the United States has taken the position that the
SFRY has ceased to exist and that no state represents the
continuation of the SFRY.
The United States' position that the SFRY has ceased to exist
and that no state represents the continuation of the SFRY is
consistent with the position of the international community
generally.\178\
---------------------------------------------------------------------------
\178\ Declaration of Christopher R. Hill, Director, Office of South
Central European Affairs, United States Department of State, filed in
Federal Republic of Yugoslavia v. Park-71st Corp., No. 95 Civ. 3659
(AGS) (S.D.N.Y.) para.para. 3, 5 (Sept. 21, 1995), complaint dismissed,
913 F. Supp. 191 (S.D.N.Y. 1995) (App. 1).
---------------------------------------------------------------------------
5. The U.N. Security Council Decision not to oppose giving
the Russian Federation veto power does not evidence
customary international law because the decision
was not required by international law
Within days after the USSR dissolved in December, 1991, the Russian
Federation asked the United Nations Security Council for the USSR's
Permanent Seat (with veto power) on the Security Council. The United
States could have exercised its veto to preclude a Security Council
decision to grant the Russian Federation's request. Instead, the United
States, at a non-public meeting with other members of the Security
Council, granted the Russian Federation's request.
The Security Council made no official announcement at the time
other than by removing the USSR's nameplate and replacing it with a
Russian Federation nameplate in the Security Council chamber.\179\ The
Russian Federation's request was handled quietly and quickly to avoid
precipitating consideration of proposals to restructure the Security
Council to abolish the veto power, to merge the veto powers of France
and Great Britain, and to give veto powers to Germany or Japan or both.
According to one news account, ``western diplomats are said to be
lobbying hard to avoid a messy debate on the reform of the Security
Council.'' \180\ Similarly, former U.S. Ambassador to Italy Richard N.
Gardner explained: ``The one thing the United States, Britain and
France wanted to avoid at all costs is anything that would open up the
Pandora's box of a Charter amendment altering the present membership of
the Security Council and possibly ending the right of a veto.'' \181\
---------------------------------------------------------------------------
\179\ Michael P. Scharf, Musical Chairs: The Dissolution of States
and Membership in the United Nations, 28 Cornell Int'l L.J. 29, 46-53
(1995); Carolyn L. Willson, Current Development: Changing the Charter:
The United Nations Prepares for the Twenty-First Century, 90 Am. J.
Int'l L. 115, 117-19 (1996); Yehuda Z. Blum, Russia Takes Over the
Soviet Union's Seat at the United Nations, 3 Eur. J. Int'l L. 354
(1992).
\180\ Trevor Rose, Switch of Soviet Security Council Seat Could
Spur Reform Ideas, Wash. Post., Dec. 26, 1991, at A25; see also Paul
Lewis, 3 Western Powers for Russian Takeover of Soviet U.N. Seat, N.Y.
Times, Dec. 24, 1991, at A8; Paul Lewis, West Acts to Defer Issue of
New U.N. Council Seats, N.Y. Times, Jan. 3, 1992, at A6; Sam Jameson,
Japan to Seek Seat on U.N. Security Council, L.A. Times, Jan. 29, 1992,
at A9.
\181\ Scharf, supra note 179, at 48, n.104, quoting from a
statement by former Ambassador Gardner, reported in Paul Lewis, 3
Western Powers Favor Russian Takeover of Soviet U.N. Seat, N.Y. Times,
Dec. 24, 1991, at A8.
---------------------------------------------------------------------------
Carolyn L. Willson, U.S. Department of State, has called the
decision to give the USSR seat to the Russian Federation a ``de facto
amendment'' of the U.N. Charter, a locution that implies that without
amendment the U.N. Charter would not have permitted the Russian
Federation to take the USSR's seat, a tacit statement that the Russian
Federation was not the same State as the USSR.\182\
---------------------------------------------------------------------------
\182\ Willson, supra note 179, at 117.
---------------------------------------------------------------------------
Professor Michael P. Scharf, who at the time served as the State
Department lawyer with responsibility for legal issues concerning
succession to membership at the United Nations, goes no farther than to
say that ``[W]hat is significant is that the members of the United
Nations have found it in their interests to act (or at least to depict
their actions) concerning membership succession in conformity with
legal principles and precedent.'' \183\ The precedent to which
Professor Scharf refers is a U.N. decision in 1947: When British
Colonial India (a member of the U.N. even before Indian independence)
became independent, it automatically acquired U.N. membership, but
Pakistan, which emerged as a new State at the same time, had to apply
for membership.\184\ The USSR episode and the India-Pakistan episode,
however, differ in a material respect: treating India as though it were
an incumbent U.N. member, rather than as a new applicant could not
change the regimen for governing the U.N., whereas allowing the Russian
Federation to occupy (as incumbent) the USSR's seat on the Security
Council would vastly change the governing regimen, i.e., as an
incumbent, the Russian Federation would have a veto power. As just
another U.N. member it would not. So, when the Security Council gave
the Russian Federation a veto power, it was not bound to do so on the
basis of the 1947 decision on India and Pakistan. The Security Council,
and the U.N. generally, acted on the basis of expediency, not legal
requirement. Indeed, one commentator, concluding that the India/
Pakistan episode of 1947 was not analogous to the dissolution of the
USSR, stated that, ``with the demise of the Soviet Union itself, its
membership in the UN should have automatically lapsed and Russia should
have been admitted to membership in the same way as the other newly-
independent republics.\185\
---------------------------------------------------------------------------
\183\ Scharf, supra note 179, at 67-69.
\184\ Id. at 68-69.
\185\ Blum, supra note 179, at 359.
---------------------------------------------------------------------------
Therefore, the USSR/Russian Federation decision does not constitute
opinio juris as to the survival of treaties of the USSR.
In sum, U.S. diplomatic practice has not contributed to the
development of a rule of law that a non-dispositive treaty of an
extinct State automatically becomes a treaty between a successor State
and the extinct State's treaty partner.
G. The 1978 Vienna Convention on Succession of States in Respect of
Treaties Does Not Resolve Any ABM Treaty Question Because The
United States Is Not a Party to The Vienna Convention and
Conventions Do Not Bind Non-Parties
The United States did not sign the 1978 Vienna Convention at the
time it was opened for signature in 1978, or since. A State is not
bound by a convention or treaty to which it is not a party.\186\
---------------------------------------------------------------------------
\186\ Jet Traders Inv. Corp. v. Tekair, 89 F.R.D. 560, 567 (D. Del.
1981); Restatement (Third) of the Foreign Relations Law of the United
States Sec. 324(3); Udokang, supra note 123, at 403; Georg
Swarzenberger, A Manual of International Law 160-61 (5th ed. 1967).
---------------------------------------------------------------------------
H. Article 34.1 of the 1978 Vienna Convention Does Not Reflect a Rule
That Has Passed into Customary International Law
Article 34.1 of the 1978 Vienna Convention provides:
Succession of the States in cases of separation of parts of a
State 1. When a part or parts of the territory of a State
separate to form one or more States, whether or not the
predecessor State continues to exist: (a) any treaty in force
at the date of the succession of States in respect of the
entire territory of the predecessor State continues in force in
respect of each successor State so formed; (b) any treaty in
force at the date of the succession of States in respect only
of that part of the territory of the predecessor State which
has become a successor State continues in force in respect of
that successor State alone.\187\
---------------------------------------------------------------------------
\187\ Vienna Convention on Succession of States in Respect of
Treaties, Art. 34.1, U.N. Doc. A/Conf.80/31 (1978) (emphasis added).
In Filartiga v. Pena-Irala (1980),\188\ a U.S. Court of Appeals
held that an act of torture committed by a foreign State official
against a person held in detention in that State's territory violated a
customary rule of international law. The court inferred the existence
of the rule from evidence that the use of torture had been universally
condemned by States. According to the court, foreign States had
manifested their ``universal abhorrence'' by way of treaties on human,
political and civil rights; by declarations of the United Nations
General Assembly; and by domestic laws.\189\ The court, however, issued
this caution:
---------------------------------------------------------------------------
\188\ Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
\189\ Id. at 884.
The requirement that a rule command the ``general assent of
civilized nations'' to become binding upon them all is a
stringent one. Were this not so, the courts of one nation might
feel free to impose idiosyncratic legal rules upon others, in
the name of applying international law.\190\
---------------------------------------------------------------------------
\190\ Id. at 881.
In counseling caution, the court could have cited the North Sea
Continental Shelf case, decided by the International Court of Justice
in 1969.\191\ The ICJ rejected the contention of Denmark and the
Netherlands (in a dispute with Germany) that, by reason of the adoption
of the Convention on the Continental Shelf, a principle for determining
continental-shelf boundaries between adjacent coastal States (the
principle of ``equidistance'') had become a rule of customary
international law. The Convention was opened for signature for 1958.
Between 1958 and 1969, thirty-nine States had become parties.\192\ By
1969, approximately 70 States were exploring or exploiting continental
shelf areas.\193\
---------------------------------------------------------------------------
\191\ North Sea Continental Shelf Cases, 1969 I.C.J. 3 (Feb. 20).
\192\ Id. at 25.
\193\ Id. at 227 (Lachs, J., dissenting).
---------------------------------------------------------------------------
Denmark and the Netherlands argued that the participation of 39
States in the Convention was sufficient to establish the equidistance
principle as a rule of customary international law binding on every
coastal State, not just the 39 States that were parties to the
Convention. The ICJ rejected the argument. The participation of 39
States was not sufficiently ``widespread and representative'' to show
that the equidistance principle had passed into a rule binding on
States that were not parties to the Convention. That number of
participants ``though respectable,'' was ``hardly sufficient'' even
when compared to the total number of States ``whose interests were
specially affected,'' i.e. were eligible to join and had continental
shelves.\194\
---------------------------------------------------------------------------
\194\ North Sea Continental Shelf Cases, 1969 I.C.J. 3, 43 (Feb.
20).
---------------------------------------------------------------------------
The evidence as to States' acceptance of the Vienna Convention does
not approach the level of proportional participation that the ICJ found
insufficiently widespread in the North Sea Continental Shelf case,
i.e., 39 out of 70 interested States in the Continental Shelf case; 20
out of at least 185 States in the case of the1978 Vienna Convention
(all States have an interest in the making of treaties). Moreover, the
1978 Vienna Convention's participants do not include any developed
state other than the Holy See or any Western European State, or any
North American State or any of the five States (United States, the
Russian Federation, China, France and Great Britain) that has a
Permanent Seat (and veto power) on the UN Security Council. The line is
pushed even farther from the regimen of customary international law if
weight is given to proportion of population, because the 1978 Vienna
Convention's participants collectively represent about 15 percent of
the World's population.\195\ Moreover, in the North Sea Continental
Shelf case the ICJ ruled that the passage of eleven years between the
Convention's signing and the Court's decision was adequate to judge how
well the Convention was becoming accepted by States. One commentator
explained:
\195\ Participants in the 1978 Vienna Convention are Angola, Bosnia
and Herzegovina, Brazil, Chile, Cote d'Ivoire, Croatia, Czech Republic,
Democratic Republic of the Congo, Dominica, Egypt, Estonia, Ethiopia,
Holy See, Iraq, Madagascar, Morocco, Niger, Pakistan, Paraguay, Peru,
Poland, Senegal, Seychelles, Slovakia, Slovenia, Sudan, the former
Yugoslav Republic of Macedonia, Tunisia, Ukraine and Uruguay. (U.N.
Sales No. F.79.v.10 (1996)). Each of the parties other than the Holy
See is a ``developing'' State according to the classification used by
the International Bank for Reconstruction and Development. See The
World Bank Group, The World Bank's Role, and Countries and Regions
listings, <http://www.worldbank.org/html/extdr/backgrd/ibrd/role.htm>
(visited Dec. 29, 1998), and <http://www.worldbank.org/html/extdr/
country.htm> (visited Dec. 29, 1998). The parties to the 1978 Vienna
Convention represent about 15 percent of the world's population of 5.9
billion in 1998. United Nations, Population division, Department of
Economic and Social Affairs, 1998 Revision of the World Population
Estimates and Projections (1998) (for world population figure);
Population Reference Bureau, 1998 World Population Data Sheet (1998)
(for population of each of the parties to the 1978 Vienna Convention).
However, when time passes and States neglect to become
parties to a multilateral instrument, the abstention
constitutes a silent rejection of the treaty. Early in the
history of the treaty, it is impossible to determine what
position States will ultimately take, but 20 years after the
treaty was drafted, one can gain a fairly clear idea of how
much acceptance the treaty will probably ever secure.\196\
---------------------------------------------------------------------------
\196\ Richard Baxter, Treaties and Custom, Recuil des Cours 25, 99-
101 (1970); See also Briggs, supra note 145, at 728.
If time available for participation is given weight, there is even less
to commend the 1978 Vienna Convention as a maker of customary
international law, because nineteen years have elapsed since the 1978
Convention was signed.\197\
---------------------------------------------------------------------------
\197\ ``It took nineteen years for the 1978 Vienna Convention or
the Succession of States in Respect of Treaties to enter into force
with the deposit of the fifteenth instrument of ratification by the
Former Yugoslav Republic of Macedonia (FYROM) on 7 October, 1996.''
Koskenniemi, supra note 66, at 89, 93-94 (footnotes omitted).
---------------------------------------------------------------------------
So Article 34.1 of the 1978 Vienna Convention does not meet the
``stringent'' requirement suggested by Filartiga or the ``widespread
and representative'' requirement of the North Sea Continental Shelf
case. The 1978 Vienna Convention has not passed into customary
international law and therefore binds no State other than a party to
that Convention.
I. The Continuation Principle of the 1978 Vienna Convention Would Not
Apply to the ABM Treaty Vis-a-vis the Russian Federation
Because the Continuation of the Treaty Would Conflict with the
Treaty's Object and Purpose
The clause in the 1978 Vienna Convention that would require the
continuation in force vis-a-vis successor States of the treaties of
their extinct predecessors does not apply if continuation would be
incompatible with the treaty's object and purpose or would radically
change the conditions for its operation.
Article 34.1 of the 1978 Vienna Convention provides:
Succession of the States in cases of separation of parts of a
State 1. When a part or parts of the territory of a State
separate to form one or more States, whether or not the
predecessor State continues to exist: (a) Any treaty in force
at the date of the succession of States in respect of the
entire territory of the predecessor State continues in force in
respect of each successor State so formed; (b) any treaty in
force at the date of the succession of States in respect only
of that part of the territory of the predecessor State which
has become a successor State continues in force in respect of
that successor State alone.
Article 34.2 of the 1978 Vienna Convention provides:
Paragraph 1 does not apply if: (a) the States concerned
otherwise agree; or (b) it appears from the treaty or is
otherwise established that the application of the treaty in
respect of the successor State would be incompatible with the
object and purpose of the treaty or would radically change the
condition for its operation.
In his November, 1997 letter to Representative Gilman, President
Clinton stated that the ABM Treaty of 1972 cannot fully achieve its
purpose with the Russian Federation as the only partner of the United
States because the Treaty refers specifically to territory outside the
boundaries of the Russian Federation and within the boundaries of
Belarus, Kazakstan and Ukraine:
Neither a simple recognition of Russia as the sole ABM
successor (which would have ignored several former Soviet
states with significant ABM interests) nor a simple recognition
of all NIS states as full ABM successors would have preserved
fully the original purpose and substance of the Treaty as
approved by the Senate in 1972.\198\
---------------------------------------------------------------------------
\198\ Letter from President William J. Clinton to Benjamin A.
Gilman, Chairman, Committee on International Relations, House of
Representatives (Nov. 21, 1997) (App. 7).
Therefore, according to President Clinton, to achieve the Treaty's
purposes, the area of its application must include the territories of
Belarus, Kazakstan and Ukraine in addition to the Russian Federation.
To include those territories they would have to be made parties. This
would require a substantial amendment to the Treaty's provisions on
decision-making. Moreover, the alteration in the ABM Treaty's
territorial scope would have a material affect on the ability of
parties to defend their national territory by means of the one
permitted ABM site.
Were Belarus, Kazakhstan and Ukraine simply added as parties
(assuming, for the sake of argument, President Clinton's view that the
Treaty remains in force between the United States and the Russian
Federation), the veto power that the United States has as regards the
ABM Treaty of 1972 in treaty governance would be destroyed. Also, the
United States and the Russian Federation together could be outvoted by
the other three States. So critical a change in the powers of
governance would not be compatible with the ABM Treaty as adopted by
the United States and the USSR.
Moreover, the dynamics of amending the Treaty would change
drastically. It would no longer be enough for the United States to
convince the other major party to agree to an amendment. The other
three could block an amendment, requiring the major parties to withdraw
and start anew if they desired an amended treaty.
J. The ABM Treaty Did Not Become a Treaty Between the United States and
the Russian Federation by Devolution
In anticipation of dissolving, a State may want to impose its
treaties on both its treaty partners and its successors. To that end,
it may proclaim that a treaty will become a treaty between its
successor and its (the dissolving State's) treaty partner. That
proclamation is called a ``devolution proclamation.'' Similarly, the
dissolving State and its about-to-become successor may agree to such a
devolution. In either case, the devolution does not bind a treaty
partner.\199\
---------------------------------------------------------------------------
\199\ Draft Articles on Succession of States in Respect of Treaties
with Commentaries Adopted by the International Law Commission at Its
Twenty-Sixth Session, U.N. GAOR, 197 Sess. & res. Sess. 1978, Vol. III,
at 18-25, U.N. Doc. A/CONF.80/16/Add.2 (1979); Restatement (Third) of
the Foreign Relations Law of the United States Sec. 210 cmt. f (1986)
('Subsection (3) adopts the ``clean slate'' theory . . .. Under that
theory, a new state starts afresh, with neither rights nor obligations
under the agreements . . . of its predecessor state, unless the new
state indicates a desire to adopt a particular agreement . . . and the
other party or parties agree. Even a devolution agreement between the
predecessor state and the successor state, whereby the latter assumes
all or some of the agreements . . . of the predecessor state, is
binding only as between those states; the other party (or parties) to
an agreement must agree to the substitution of the new state. The
principle applies both to newly independent states and to a state
separated from another by secession or other circumstances.'').
---------------------------------------------------------------------------
It follows that neither a devolution proclamation by the USSR nor a
devolution agreement between the USSR and any one or more of its to-be-
successor States could bind the United States to accept one or more of
the successor States as a party to the ABM Treaty.
K. The ABM Treaty Was Not a Dispositive Treaty
1. The ABM Treaty did not create a legally recognizable
interest in any State other than the Treaty parties
Some treaties, like some contracts, are thought to create permanent
rights in third parties. Thus:
It is equally clear that transitory or dispositive treaties
remain in force. Of such a character are stipulations
respecting boundary lines, servitudes or easements resting on
the land relating to the use and repair of roads (including
railways) or the navigation of rivers, etc. In these cases the
rights of third parties, which it would be illegal to ignore or
destroy, are involved.\200\
---------------------------------------------------------------------------
\200\ Hershey, supra note 121, at 287.
The ABM Treaty did not purport to transfer any legally enforceable
right to any third party, and that alone raises a strong presumption
that no third party had such right.\201\ In addition, Article XV.2 of
the ABM Treaty allows each party to withdraw on specified grounds,
without the consent of anyone else, upon six months'' advance notice.
Finally, a party is allowed to withdraw ``if it decides that
extraordinary events related to the subject matter of this Treaty have
jeopardized its supreme interests'' (emphasis added). Hence, the
decision as to whether to withdraw is vested exclusively in each party.
Therefore, the ABM Treaty cannot reasonably be read as having
transferred a legally recognizable interest to any third party.
---------------------------------------------------------------------------
\201\ ``The standard of proof of the existence of rights in rem in
customary international law is strict, and it is believed, although it
cannot be demonstrated here, that there is no general rule accepted ex
opinio juris sive necessitatis that ``real'' or ``localized'' treaties
automatically bind successor States.'' A. P. Lester, State Succession
to Treaties in the Commonwealth, 12 Int.''l & Comp. L.Q. 475, 501
(footnote omitted).
---------------------------------------------------------------------------
2. The ABM Treaty did not evidence an intent to restrict
either treaty party's use of particular territory
beyond the time that the Treaty was to be in force
Some scholars suggest that a treaty may create a ``servitude''--
that is, a restriction on a particular use of territory for the benefit
of the other party that survives the first party's extinction, even if
no third-party right is created. Such obligations ``are said to be in
the nature of covenants running with the land.'' \202\ Whether, in
international law, such a device as a servitude actually exists, is
hotly contested.
---------------------------------------------------------------------------
\202\ James Wilford Garner, Questions of State Succession Raised by
the German Annexation of Austria, 32 Am. J. Int'l L. 421, 432-33
(1938). To like effect is De Muralt, supra note 130, at 108. See also
Malcolm N. Shaw, State Succession Revisited, 1994 Finnish Y.B. Int'l L.
34 77 (``where an existing State comes to an end as an international
person and is replaced by two or more States it is accepted that
political treaties will not continue but that territorially grounded
treaties will continue . . .''.)
---------------------------------------------------------------------------
According to F.A. Vali:
The ``servitude'' of international law is the traditional
scapegoat of international jurisprudence. There is hardly any
concept or doctrine of international law which has suffered
such contemptuous criticism and blunt rejection, and at the
same time enjoyed such unsubstantiated approval and wanton
praise. It has been accused of being the absolute vestige of
medieval patrimonial, feudal and--last but not least--Roman
law. It has been attacked as being the hybrid product of a
servile adaptation of private law concepts, it has been
indicted as being a superfluous and artificial construction,
apt to deform international law and to introduce the utmost
confusion therein. It has been dealt even the deadliest blow
which can be given to any scientific conception . . . its
existence has been denied.\203\
---------------------------------------------------------------------------
\203\ F. A. Vali, Servitudes of International Law 42 (2d. ed.
1958). Arguments pro and con, the existence of international
servitudes, and the identities of the advocates of each position, are
given at Esgain, supra note 123, at 43-44.
But assuming, for the sake of argument, that some restraints on
land use can survive extinction even though they do not vest rights in
third parties, there is good reason to assume that the rule would be
limited to restraints on particularly-described territory. The
servitude is based on the presumption that a State that granted the
restriction intended to transfer a permanent property right to another
State, just as any landowner might transfer to another person a
permanent right in designated property. That view was expressed by
---------------------------------------------------------------------------
Vattel:
But it is here to be observed, that treaties or alliances
which impose a mutual obligation to perform certain acts and
whose existence consequently depends on that of the contracting
powers, are not to be confounded with those contracts by which
a perfect right is once for all acquired, independent of any
mutual performance of subsequent acts. If, for instance, a
nation has forever ceded to a neighboring prince the right of
fishing in a certain river, or that of keeping a garrison in a
particular fortress, that prince does not lose his rights, even
though the nation from whom he has received them happens to be
subdued, or in any other manner subjected to a foreign
dominion. His rights do not depend on the preservation of that
nation; she had alienated them; and the conqueror by whom she
has been subjected can only take what belonged to her.\204\
---------------------------------------------------------------------------
\204\ Vattel, supra note 102, at X113, Sec. 203, quoted in Samuel
B. Crandall, Treaties, Their Making and Enforcement 430-31 (1916);
Jones, supra note 123, at 375 (emphasis added).
---------------------------------------------------------------------------
Similarly, Samuel B. Crandall stated:
Rights in or over the territory, or real rights, which have
been created or transferred by treaty, do not expire with the
extinguishment of the state conveying such rights, but survive
as against the succeeding territorial sovereign. The
instruments under which such rights have passed out of the one
state into the other remain unchanged as documents of
title.\205\
---------------------------------------------------------------------------
\205\ Crandall, supra note 204, at 430.
Likewise, ``[t]here is an incapacity in the successor State to
assert rights of sovereignty greater than those which inhere in respect
of the territory.'' \206\
---------------------------------------------------------------------------
\206\ Committee on State Succession to Treaties and Other
Governmental Obligations, International Law Association, The Effect of
Independence on Treaties 352 (1965).
---------------------------------------------------------------------------
Also, D. P. O'Connell writes:
A distinction is drawn in traditional international law
between ``personal'' and ``impersonal'' or ``dispositive''
treaties. The former are those which are essentially
contractual and presuppose reciprocity between the parties with
a view to an agreed end. The latter are those which impress
upon a territory with some special legal status, and so limit
the incidence of sovereignty upon it.\207\
---------------------------------------------------------------------------
\207\ O'Connell, I International Law , supra note 39, at 368.
The ABM Treaty fell within D. P. O'Connell's description of a
``personal treaty,'' i.e., it presupposed ``reciprocity between the
parties with a view to an agreed end.'' If the ABM Treaty had ended by
a party's withdrawal under Article XV.2, neither party would have been
further obliged to forego deploying ABM systems anywhere on its
territory. The end of the Treaty as a result of the USSR's extinction
could not give the Treaty any greater power to burden particular
territory. The ABM Treaty therefore was the antithesis of what
O'Connell describes as treaties that ``impress'' upon a territory a
``special legal status'' that ``limit[s] the incidence of sovereignty''
on that territory. Similarly, the ABM Treaty was the opposite of
Vattel's example of a right acquired by conquest that is ``once for all
acquired, independent of any mutual performance of subsequent acts.''
Finally, it cannot be assumed that the United States has, outside any
treaty, granted any third State a legal right to require the United
States to forego deployment of a national missile defense.
Accordingly, the ABM Treaty was not a dispositive treaty.
v. conclusion
The ABM Treaty was a bilateral, non-dispositive treaty. In
accordance with longstanding principles of international law, expounded
with remarkable consistency by numerous officials and scholars from
various countries over hundreds of years, when the USSR became extinct,
its bilateral, non-dispositive treaties lapsed. Hence, the ABM Treaty
lapsed by operation of law--that is, automatically--when the USSR
dissolved in 1991. It did not become a treaty between the United States
and the Russian Federation.
Senator Ashcroft. I am going to move now to Mr. Rivkin. It
is my understanding that Mr. Miron is here to be available to
answer questions. And we will be delighted to have you as a
resource in that respect.
I want to try and keep this moving, because the bells will
ring a little bit later. Pardon me. I never wanted to be a
prophet quite like that. But I probably have about 20 minutes
in which to cast my vote. So it might be that I would hear your
testimony before going.
STATEMENT OF DAVID B. RIVKIN, JR., PARTNER, HUNTON AND
WILLIAMS, WASHINGTON, DC
Mr. Rivkin. Thank you, Mr. Chairman. On behalf of myself
and two of my colleagues, whom I want to recognize, Mr. Casey
to my left, Mr. Bartram behind me, we are also delighted to be
here. The totality of our views is also set forth in the
memorandum of June 15, prepared for the Heritage Foundation. If
you do not mind, I would appreciate it if you can include it in
the record.
[The memorandum referred to, ``The Collapse of the Soviet Union and
the End of the 1972 Anti-Ballistic Missile Treaty: A Memorandum of
Law,'' is available on The Heritage Foundation web site at: httl://
www.heritage.org]
Senator Ashcroft. Without objection, we are pleased to do
so.
Mr. Rivkin. And I will proceed with a very short
introductory statement.
In May 1998, my law firm, as part of our pro bono
responsibilities, was asked by the Heritage Foundation to
consider the legal status of a 1972 ABM Treaty. Based upon our
review of a text of the treaty, its history, the relevant
international law authorities and American constitutional law
sources, we concluded that the ABM Treaty no longer binds the
United States as a matter of international and domestic law.
Our argument is as follows: We believe that the ABM Treaty
became extinct when the Soviet Union dissolved in 1991. We
believe that treaties are a species of contract that may be
rendered impossible to perform and may be discharged as a
matter of law by the disappearance of one or both of the treaty
partners. Under the applicable rules of international and
constitutional law, the ABM Treaty could have survived the
Soviet Union's dissolution only if one or more of the surviving
post-Soviet States both continued the Soviet Union's
sovereignty, which is to say its international legal
personality and were capable of fulfilling unimpaired the
totality of the terms and conditions of the original treaty. No
such state survived the Soviet Union's dissolution.
The President's sometime assertion--and Mr. Chairman
recounted how mixed the record is in that regard, so the
President's sometime assertion that Russia is an ABM Treaty
partner--is, in our opinion, incorrect. It is significant that
the Russian Federation is not merely a continuation of the
Soviet Union under a different name and a different system of
government, as the Soviet Union arguably was a continuation of
the Romanov Empire.
The Soviet Union dissolved in 1991. Both the Empire and the
Russian State around which it was built collapsed. Boris
Yeltsin's Russia may be many things, but it is certainly not a
continuation of the Romanov Empire. We believe it is sui
generis.
Moreover, even if today's Russia could be considered to be
a continuation of the Soviet Union, it could not in itself
carry out the totality of the Soviet Union's obligations under
the ABM Treaty. That agreement was painstakingly negotiated. It
was based upon a number of fundamental assumptions about the
parties and their place in the world order during the cold war.
All of these assumptions, or at least most of them, are now
obsolete.
Moreover, the ABM Treaty had a critical geographical
component, which at the bottom guaranteed that the United
States' and the Soviet Union long-range offensive ballistic
missiles had unrestricted access to the entire territory of the
other party. The Russian Federation today controls only a part
of the Soviet Union's territory and has lost control over many
of the Soviet Union's most important population centers.
Any treaty with Russia alone would not preserve the
totality of a bargain that the United States had agreed to with
the advice and consent of the Senate in 1972. Significantly,
the conclusion that the ABM Treaty automatically was discharged
in 1991 is also supported by the application of either of the
two prevailing paradigms of legal analysis governing questions
of state succession to treaties, the continuity analysis and
the clean slate analysis.
Under the continuity analysis, even if one or more of the
former Soviet Republics could have been considered to continue
the USSR's interntional legal personality, the ABM Treaty could
not have survived because it was a bilateral treaty personal to
the Soviet Union. Such treaties are generally discharged when
one treaty partner disappears.
Moreover, and this is a very important point, even if the
continuity analysis were to apply, the end result of the
application of that analysis would have been a series of mini
ABM Treaties with 15 successor states, or, I should say, post-
Soviet States, and not either a multilateral treaty with
several of the post-Soviet States envisioned in the September
1997 MOU or a single treaty with Russia, the position the
administration seems to be taking at this time.
Under the clean slate analysis, one or more of the former
Soviet Republics would have had to agree to undertake to
perform the totality of the Soviet Union's ABM Treaty
obligations, and the United States would have had to accept
this new state or states as a treaty partner. Significantly,
that acceptance under the clean slate theory would have
constituted the creation of a new treaty that could only be
effected with the advice and consent of the U.S. Senate.
To summarize, today the ABM Treaty can be revived only with
the full participation of the U.S. Senate, as provided by the
U.S. Constitution. Moreover, to ensure that the United States
obtain the totality of the benefits of its original 1972
bargain, the ABM Treaty would have to be very significantly and
substantially redrafted.
In any case, the substitution of one or more former Soviet
Republics of the Soviet Union for the USSR would fundamentally
change the original bargain of 1972, to which the Senate
consented. In sum, the President cannot, on his own authority,
change the ABM Treaty in so fundamental a manner, without
obtaining the Senate' advice and consent again.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Rivkin and material provided
subsequent to the hearing follows:]
Prepared Statement of David B. Rivkin, Jr., and Lee A. Casey
i. introduction
In May, 1998, my firm was asked by the Heritage Foundation to
consider the legal status of the 1972 Treaty on Limitation of Anti-
Ballistic Missile Systems (``ABM Treaty'') between the United States
and the Union of Soviet Socialist Republics (``U.S.S.R.'' or ``Soviet
Union''). Based upon our review of the text of the ABM Treaty, its
history, and the relevant international law and American constitutional
law sources, we concluded that the ABM Treaty no longer binds the
United States as a matter of international or domestic law.
This is because the Soviet Union disappeared in 1991, rendering
performance of the ABM Treaty as originally agreed impossible. Because
there is no state, or group of states--including the Russian
Federation--that can both be said to have continued the Soviet Union's
international legal personality (its sovereignty) and that also is
capable of implementing the totality of the U.S.S.R.'s obligations
under the ABM Treaty in accordance with that agreement's original
terms, that treaty was discharged as a matter of law in 1991 and the
United States is not now legally bound by it.
As a direct consequence, any new treaty regarding anti-ballistic
missile defenses between the United States and the former Soviet
Republics can be effected only through renewed negotiations and the
agreement of both the United States and one or more of these states.
Moreover, any such agreement would require the consent of the United
States Senate before it could be ratified by the President.
ii. background
The 1972 ABM Treaty limited severely the ability of the United
States and the U.S.S.R. to defend their respective territory through
deployment of an anti-ballistic missile system.\1\ However, the
U.S.S.R. collapsed in 1991. Its fifteen constituent ``republics''
became independent states, and all were recognized as such by the
United States.
---------------------------------------------------------------------------
\1\ Treaty on the Limitation of Anti-Ballistic Missile Systems, May
26, 1972, 23 U.S.T. 3435.
---------------------------------------------------------------------------
Nearly a decade later, the formal status of the Soviet Union's
bilateral treaties with the United States, including the ABM Treaty,
remains uncertain. The ``official'' stance of the United States is that
the matter remains under review.\2\
---------------------------------------------------------------------------
\2\ See U.S. Department of State, Treaties in Force: A List of
Treaties and Other International Agreements of the United States in
Force on January 1, 1998, 290 (1998) [hereinafter Treaties in Force]
(With respect to bilateral treaties with the ``Union of Soviet
Socialist Republics,'' and their possible applicability to the former
Soviet Republics, this official listing of United States treaties
explains that: ``The United States is reviewing the continued
applicability of the agreements listed below [including the ABM
Treaty].'').
---------------------------------------------------------------------------
In this regard, the Executive Branch has yet to announce a
consistent position regarding the ABM treaty. President Clinton has
both suggested that no single former Soviet Republic, including the
Russian Federation, could carry out the U.S.S.R.'s ABM Treaty
obligations, and that the ABM Treaty would nevertheless remain in force
between the United States and Russia if the Senate were to reject a
series of agreements, signed by Secretary of State Albright in
September, 1997 (``September Agreements''), identifying four former
Soviet Republics (Russia, Belarus, Ukraine and Kazakhstan) as ABM
Treaty parties.\3\ The President has promised to submit these
agreements to the Senate for its advice and consent, but has not yet
done so.
---------------------------------------------------------------------------
\3\ See Letter from William J. Clinton to Benjamin A. Gilman 3-4
(Nov. 21, 1997) [hereinafter Clinton/Gilman Letter]. In this letter to
the Chairman of the Foreign Affairs Committee of the House of
Representatives, the President wrote that ``[n]either a simple
recognition of Russia as the sole ABM successor (which would have
ignored several former Soviet states with significant ABM interests)
nor a simple recognition of all NIS states as full ABM successors would
have preserved fully the original substance and purpose of the Treaty
as approved by the Senate in 1972,'' and that if the Senate does not
consent to ratification of the September Agreements the ``ABM Treaty
itself would clearly remain in force.'' In a subsequent letter to
Chairman Gilman, the President stated that ``the United States and
Russia clearly are parties to the [ABM] Treaty.'' See Letter from
William J. Clinton to Benjamin A. Gilman (May 21, 1998).
---------------------------------------------------------------------------
iii. discussion
The question whether the ABM Treaty survived the Soviet Union's
fall is complex, and there is no single precedent or authority that
definitively resolves the issue. However, when the applicable rules of
international and American constitutional law are consulted, a
compelling argument emerges that the ABM Treaty no longer binds the
United States, and that the Senate's approval must be obtained before
that treaty, or a similar instrument, can bind the United States in the
future.
A. The Impact of the Soviet Union's Demise on the ABM Treaty
The ABM Treaty was a bilateral agreement between the United States
and the Soviet Union, and its key terms could be performed only by
those two states. Like any contract,\4\ a treaty's obligations are
discharged, as a matter of law, when a necessary party (whether an
individual or a ``legal'' person such as a corporation) to the contract
disappears, or is otherwise rendered incapable of performance.\5\ As
the Supreme Court has recognized, a bilateral treaty survives the
disappearance of a state-party only if there is a successor that
continues the state-party's international legal personality, its
``sovereignty,'' and in which ``the power to execute [the treaty]
remains unimpaired.'' \6\ Thus, the ABM Treaty could have survived the
Soviet Union's collapse only if there were one or more successor states
that continue the U.S.S.R.'s international legal personality and which
could execute the treaty in accordance with its original terms. No such
state or group of states exists.
---------------------------------------------------------------------------
\4\ It has long been recognized that treaties are a species of
contract between states. Head Money Cases, 112 U.S. 580, 598 (1884) (A
treaty is primarily a compact between independent nations, and depends
for the enforcement of its provisions on the honor and the interests of
the governments which are parties to it.); Z. & F. Assets Realization
Corp. v. Hull, 114 F.2d 464, 470 (D.C. Cir. 1940) (``A treaty is
primarily a compact between independent nations'').
\5\ See Restatement (Second) of Contracts Sec. 261, 262 & cmt. a
(1981).
\6\ Terlinden v. Ames, 184 U.S. 270, 283 (1902) (``Undoubtedly
treaties may be terminated by the absorption of Powers into other
Nationalities and the loss of separate existence, as in the case of
Hanover and Nassau, which became by conquest incorporated into the
Kingdom of Prussia in 1866. Cessation of independent existence rendered
the execution of treaties impossible. But where sovereignty in that
respect is not extinguished, and the power to execute remains
unimpaired, outstanding treaties cannot be regarded as avoided because
of impossibility of performance.'') (emphasis added).
---------------------------------------------------------------------------
In this regard, the ABM Treaty was based upon a number of
fundamental assumptions about its parties and their place in the world
order during the Cold War. The ABM Treaty's purpose was to ensure that
the whole territory of the United States and the Soviet Union would
remain open to attack by long-range offensive ballistic missiles.\7\
The premise here was that ensuring a calculated ``balance of terror''
between the two nuclear superpowers (the only states capable of
threatening each other with nuclear annihilation) would deter nuclear
war (the aptly named ``MAD'' or ``mutually assured destruction''
theory), enabling both states to control the pace of additional
offensive nuclear deployments. It was assumed that any attempt to build
a national anti-ballistic missile defense system would undermine the
delicate ``stability'' of that balance.
---------------------------------------------------------------------------
\7\ This is true with one exception. Under the ABM Treaty, as
amended, each party was entitled to one ABM site. See Protocol to the
Treaty on the Limitation of Anti-Ballistic Missile Systems, July 3,
1974, 27 U.S.T. 1645. The Soviet Union deployed this site around
Moscow, and the United States--for a time--deployed its site around
Grand Forks, N.D., to protect a nuclear missile field.
---------------------------------------------------------------------------
Moreover, the ABM Treaty had a critical geographical component.
Under the Treaty, both population centers and ICBM sites were to remain
unprotected, and the whole territory of each ABM Treaty partner was to
be free of ABM defenses (such as certain early warning radars), except
for the limited systems permitted under the ABM Treaty regime itself.
In this respect, a number of the key provisions of the ABM Treaty were
linked to the territory of both superpowers, and would have to be
rewritten if any party other than the Soviet Union were to undertake
its ABM obligations, and the United States was to preserve the benefits
of its original bargain. These include, among others,
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