Although the recent summit in Moscow between President Bill Clinton and Russian President Vladimir Putin yielded little agreement on missile defense, both presidents made clear that they believe the 1972 Anti-Ballistic Missile (ABM) Treaty between the United States and the former Soviet Union remains in force. This has long been Russia's position, but it was echoed recently by an arms control advocacy group in the United States known as the Lawyers Alliance for World Security.1 On May 5, this group released a document to refute a 1998 letter to the President from several prominent members of the U.S. Senate, who concluded that the ABM Treaty ceased to be binding on the United States following the Soviet Union's collapse in 1991.2 The arms control group asserts that the treaty survived the Soviet Union's demise because the Bush Administration recognized Russia as the Soviet Union's successor and an ABM Treaty party in 1992, and because Belarus, Kazakhstan, and Ukraine became ABM Treaty parties in 1993. Both of these assertions, which may have been issued to influence the summit, are factually incorrect and based on erroneous legal analysis.
In fact, the United States has never formally acknowledged that Russia, or any of the other 14 former Soviet republics, are America's ABM Treaty partners. Indeed, under the U.S. Constitution, neither the President nor the Secretary of State could make Russia or any other state an ABM Treaty party by their own authority. The President has the power to recognize states and successors to states, but this power is not absolute or arbitrary. It is limited by the accepted principles of international law, to the extent that those principles have been accepted as binding on the United States within the limits of the U.S. Constitution and U.S. law. And under the principles of international law, the ABM Treaty was terminated by operation of law at the moment America's treaty partner, the Soviet Union, was dissolved on December 25, 1991.3
There are two obvious legal reasons why this is the case. First, none of the Soviet Union's former states continued its international legal personality; and second, no state, or group of states, that survived the dissolution of the U.S.S.R. was capable of fulfilling the totality of obligations the treaty imposed on the Soviet Union. Under these circumstances, a defunct state's bilateral treaties automatically are terminated. Successor states may claim the benefit of those treaties only with the consent of the dissolved state's treaty partners, secured according to relevant constitutional processes. Because the recognition of Russia alone, or some other combination of former Soviet republics, would profoundly change the rights and obligations of the United States under the 1972 ABM Treaty, its restrictions on ballistic missile defenses could be re-imposed on the United States only through the signing of a new treaty, with the advice and consent of the U.S. Senate.
SIX REASONS THE ABM TREATY IS NOT IN FORCE
In particular, the following points demonstrate why the claims of the Lawyers Alliance and other arms control advocates are in error.
- There is no U.S.-recognized legal
successor to the ABM Treaty.
Based upon a statement made by then Secretary of State James Baker, the Lawyers Alliance alleges that Russia succeeded the Soviet Union as the ABM Treaty partner of the United States in 1992. At the time, the Secretary of State suggested that the United States expected the Commonwealth of Independent States (CIS) to choose to abide by the treaties entered into by the Soviet Union, including the ABM Treaty. It must be noted that Baker's statement reflected a negotiating position taken during discussions with Russian President Boris Yeltsin. It described U.S. expectations for the CIS (the Bush Administration evidently expected the CIS would survive as a centralized state consolidating control of Soviet strategic weapons under one authority), rather than the Russian Federation. The CIS is now moribund, and the 15 former republics of the Soviet Union are recognized as fully sovereign and independent states.
Moreover, even with respect to the CIS, Secretary Baker's statement never was translated into official U.S. policy. The United States never accepted or recognized the CIS as a treaty partner to any of the former Soviet Union's treaties with the United States. In fact, since 1992, the official annual gazetteer of the treaties of the United States entitled Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force has continued to list the ABM Treaty under the entry for the Soviet Union, with a notation recognizing that Russia claims to "perform the rights and fulfil the obligations following from the international agreements signed by the Union of Soviet Socialist Republics," but with the following disclaimer: "The United States is reviewing the continued applicability of the agreements listed below."4 (This Treaties in Force entry belies the Lawyers Alliance's claim that Belarus, Kazakhstan, and Ukraine succeeded to the ABM Treaty in 1993 as well.)
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The Russian Federation is a new political and legal entity.
The 1992 claim by President Yeltsin that Russia was the successor to the Soviet Union's treaties was not legally sufficient to substitute the Russian Federation for the Soviet Union as an ABM Treaty party. Yeltsin's Russia did not, by any objective measure, continue the international legal personality of the Soviet Union or the Russian Empire that preceded it. Shorn of its 19th century south and central Asian empire, as well as the ancient territories of Belarus and Ukraine, the Russian Federation is an entirely new political and legal entity. It is not entitled to succeed to the Soviet Union's treaties, absent the consent of the Soviet Union's former treaty partners. -
Russian succession to the Soviet Union's treaties is not automatic.
The United States has never purported to accept Boris Yeltsin's blanket claim that Russia is the successor to the U.S.S.R.'s treaties. When the Soviet Union dissolved, the United States determined that it would review succession matters on a treaty-by-treaty basis. This policy was noted by a number of commentators at the time, including one of the lawyers who signed the Lawyers Alliance occasional paper. In 1993, Thomas Graham, Jr., then serving in the Arms Control and Disarmament Agency (ACDA), explained to the staff of Inside the Pentagon that the United States was in fact reviewing succession matters on a treaty-by-treaty basis.5 ACDA's annual reports also made it clear that the United States rejected Yeltsin's claim. The reports stated that any of the newly independent states that wished to become a party to the ABM Treaty had a legitimate claim to that status.6 A case-by-case review of the Soviet Union's treaties is fundamentally inconsistent with automatic Russian succession as an ABM Treaty party. -
The United States has not treated any other state as its ABM Treaty partner.
The actions of the United States since 1991 contradict the claims of arms control advocates that the issue of ABM Treaty succession was settled in 1992 and 1993. It has permitted representatives of Russia, Belarus, Kazakhstan, and Ukraine to participate in meetings of the treaty's implementing body, the Standing Consultative Commission (SCC), only as observers, not as ABM Treaty parties. President Clinton acknowledged this point in a February 1999 report sent to the appropriations committees of the U.S. House of Representatives and the U.S. Senate. In that report, the President stated that the participation of Belarus, Kazakhstan, Russia, and Ukraine in periodic meetings of the SCC "in and of itself, does not settle succession to the [ABM] Treaty."7 -
The Administration signed a new agreement with four former Soviet states, effectively acknowledging the absence of succession.
The fact that, upon the Soviet Union's collapse, no state or group of states became ABM Treaty parties as a matter of law (under the rules of state succession) also was acknowledged in September 1997, when the United States signed an agreement on succession to the treaty with Belarus, Kazakhstan, Russia, and Ukraine. (Had these states become ABM Treaty parties through a process of automatic state succession, as the Lawyers Alliance claims, signing such an agreement would have been superfluous.) This new agreement, in any case, would substantially revise the original ABM Treaty by, among other things, altering its geographical extent, fundamentally changing the treaty withdrawal and amendment procedures, and transforming it from a bilateral treaty into a multilateral one. The rights and obligations of the United States under this instrument would differ dramatically from those rights and obligations under the 1972 ABM Treaty. Thus, the new agreement on succession must be presented to the Senate for advice and consent, in accordance with the Constitution, before it could take effect. If the Senate does give its consent to this agreement, and if the President then ratifies it, a new treaty would be constituted. - Allowing Russia to succeed the Soviet
Union would fundamentally alter the treaty and therefore require
the Senate's consent.
International legal issues aside, as a matter of constitutional law, the recognition of Russia alone as an ABM Treaty party would have required the advice and consent of the Senate. This is the case because a deal with Russia would so profoundly alter the original bargain struck in 1972, that a new treaty would have to be concluded, by and with the advice and consent of the Senate. Indeed, although President Clinton has supported continuation of the ABM Treaty, even he has recognized that neither a recognition of Russia alone, nor a recognition of Russia and the other former Soviet republics together, could reconstruct the 1972 bargain. In a letter to House Foreign Relations Committee Chairman Benjamin Gilman (R-NY), dated November 21, 1997, the President unequivocally stated that
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 substance and purpose of the Treaty as approved by the Senate in 1972.8
CONCLUSION
As a matter of law and fact, the 1972 ABM Treaty ceased to have legal force and effect when the Soviet Union dissolved in 1991. Under the applicable rules of state succession, only a state that could both fulfill the Soviet Union's treaty obligations and continue the U.S.S.R.'s international legal personality would automatically succeed the Soviet Union as a party to the ABM Treaty. No such state survived the Soviet Union's collapse, including Russia. The assertion that first Russia and later Belarus, Kazakhstan, and Ukraine are capable of filling its shoes in the ABM Treaty is sounding more and more troubling with each passing month. In reality, whatever legal restrictions the ABM Treaty imposed to prevent the United States from protecting Americans from ballistic missile attack disappeared on Christmas Day 1991--the day the Union of Soviet Socialist Republics finally made its way onto the ashheap of history.
There are today no legal limits on the right of the United States to build and deploy an anti-ballistic missile system to defend its citizens from ballistic missile attack, whether from former Soviet states or some other state. If there are to be limitations on mounting such a defense in the future, they can be imposed only after a new ABM treaty has been negotiated and ratified. That ratification could occur only after the U.S. Senate gave its consent by a two-thirds vote. Clearly, arms control advocates like those in the Lawyers Alliance for World Security believe the United States should be limited in its ability to deploy a ballistic missile defense system. However, in the absence of a binding ABM Treaty, deciding whether to build a national ballistic missile defense is a policy decision, not a legal one.
David B. Rivkin, Jr., and Lee A. Casey are attorneys with the firm of Baker & Hostetler, 1050 Connecticut Ave., N.W., Suite 1100, Washington, D.C. 20036-5304.
1. The Lawyers Alliance for World Security is a Washington-based research organization that studies national security and arms control issues, with a special emphasis on legal matters. For its recent study on the status of the ABM Treaty, see Lawyers Alliance for World Security, "State Succession and the Legal Status of the ABM Treaty," Occasional Paper, May 5, 2000.
3. For a legal analysis of why the ABM Treaty is no longer binding, see David B. Rivkin, Jr., Lee A. Casey, and Darin Bartram, "The Collapse of the Soviet Union and the End of the 1972 Anti-Ballistic Missile Treaty: A Memorandum of Law," prepared for The Heritage Foundation by Hunton & Williams, Washington, D.C., June 15, 1998.
4. 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, 1999, p. 296 (1999).
5. Jeffrey Moag, "Says Acting ACDA Director, U.S. Won't Seek ABM Treaty Changes to Permit More Robust Missile Defenses," Inside the Pentagon, Vol. 9, No. 22 (June 3, 1993), p. 1.
6. Arms Control and Disarmament Agency, Threat Control Through Arms Control: Annual Report to Congress (Washington, D.C.: Arms Control and Disarmament Agency, 1997), p. 32.
