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Newly Independent and Separating States' Succession to Treaties: Considerations on the Hybrid Dependency of the Republics of the Former Soviet Union Andrew M

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American University International Law Review Volume 9 | Issue 2 Article 4 1994 Newly Independent and Separating States' Succession to Treaties: Considerations on the Hybrid Dependency of the Republics of the Former Soviet Union Andrew M. Beato Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Beato, Andrew M. "Newly Independent and Separating States' Succession to Treaties: Considerations on the Hybrid Dependency of the Republics of the Former Soviet Union." American University International Law Review 9, no. 2 (1994): 525-558. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. NEWLY INDEPENDENT AND SEPARATING STATES' SUCCESSION TO TREATIES: CONSIDERATIONS ON THE HYBRID DEPENDENCY OF THE REPUBLICS OF THE FORMER SOVIET UNION Andrew M. Beato* INTRODUCTION While the leadership of Russian President Boris Yeltsin heralded a welcome change in the historically antagonistic relations between the Soviet Union and the United States,' the dissolution of the Soviet Un- ion2 engenders grave concern over the stability of U.S. foreign relations with Eurasia.3 Formerly composed of fifteen republics under one central authority,4 the Soviet Union has fractured into fifteen independent * J.D. Candidate, 1994, Washington College of Law, The American University; B.A., 1991, Boston University. 1. See Richard Pipes, The Soviet Union Adrift, FOREIGN AFF., Vol. 70, No. 1, at 70, 70-73 (1991) (discussing cold war hostilities between the United States and the Soviet Union, and former Soviet President Mikhail Gorbachev's reform efforts includ- ing glasnost and perestroika). See also AMERICAN BAR AssOcIATION, CONFRONTATION IN THE AMERICAN-SOvIET RELATIONSHIP: CAN IT BE MANAGED? (1980) (discussing causes of conflict between the United States and the Soviet Union despite ddtente). 2. See ACCORD ON THE COMMONWEALTH OF INDEPENDENT STATES (1991), reprinted in PERESTROIKA IN THE SOVIET REPUBLICS: DOCUMENTS ON THE NATIONAL QUESTION 355-58 (Charles F. Furtado, Jr. & Andrea Chandler eds., 1992) (providing a translation of the accord officially disbanding the Soviet Union). The Accord dissolved the Soviet Union as a "subject of international law and geopolitical reality." Id. at 355. The named parties in the Accord-Belarus, Russia and the Ukraine-were found- ing members of the Union of Soviet Socialist Republics (U.S.S.R.) and original signa- tories of the Union Treaty of 1922. Id. See infra note 105 and accompanying text (discussing the Union Treaty of 1922). 3. See Dimitri Simes, America and the Post-Soviet Republics, FOREIGN AFF., Vol. 71, No. 3, at 73 (1992) (commenting that political changes in the former Soviet Union are destabilizing potentially and present opportunities for U.S. initiatives). 4. See ROBIN MILNER-GULLAND & NIKOLAI DEJEVSKY, CULTURAL ATLAS OF RUSSIA AND THE SOVIET UNION 185-224 (Andrew Lawson et al. eds., 1989) (citing the former republics of the constituent Soviet Union as Armenia, Azerbaijan, Belarus, 525 526 AM. U. J. INT'L L. & POL'Y [VOL. 9:2 states.' Each of these states has proclaimed their -sovereign indepen- dence;6 with the exceptions of the Baltic countries and the former Re- public of Georgia, each has joined voluntarily the loosely aligned con- federation of the Commonwealth of Independent States (Commonwealth or CIS). The dismemberment of the Soviet empire seemed to signal the tri- umph of Western democratic institutions over the coercive rule of au- thoritarianism.' Nonetheless, it has become painfully apparent to observ- Estonia, Georgia, Kazakhstan, Kirghizia, Latvia, Lithuania, Moldova, Russia, Tadzhikistan, Turkmenistan, Ukraine, and Uzbekistan,). 5. See Focus on the Emerging Democracies: A Periodic Update, U.S. Dep't of State Dispatch, Mar. 2, 1992, available in LEXIS, ITrade Library, DState File (stating that the former republics composing the confederation are Armenia, Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine and Uzbekistan); George Bunn & John B. Rhinelander, The Arms Control Obligations of the Former Soviet Union, 33 VA. J. INT'L L. 323, 323-24 (1993) (noting that fifteen nations were formed out of the dissolution of the Soviet Union). Each of these new states was accorded formal recognition by the United States Government. Id. at 324. 6. See Michael Mendelbaum, Coup De Grace: The End of the Soviet Union, FOREIGN AFF., Vol. 71, No. 1, at 164, 168 (1992) (explaining that each republic de- clared its sovereignty and asserted that its laws took precedence over those of the defunct Soviet Union). The republics declared independence in the period from April through December 1991. See Chronology 1991, FOREIGN AFF., Vol. 71, No. 1, at 184, 195-206 (Patricia Lee Dorff ed., 1992) [hereinafter Chronology 1991]. The first republic to declare its independence was Georgia on March 31, 1991. Id. at 197. The last republic to declare its independence was the Ukraine on December 1, 1991. Id. at 204. See also Bunn & Rhinelander, supra note 5, at 323-24 (noting declaration of in- dependence by the former republics). 7. See Chronology 1991, supra note 6, at 184, 205 (stating that on December 21, 1991, eleven republics coalesced to form the Commonwealth of Independent States (Commonwealth or CIS)). The agreement guarantees "separate sovereignties" to each signatory republic. Id. See also Armenia-Azerbaijan-Belarus-Kazakhstan-Kyrgyzstan- Moldova-Russian Federation-Tajikistan-Turkmenistan-Uzbekistan-Ukraine: Agreements Establishing the Commonwealth of Independent States, Dec. 8, 1991, reprinted in 31 I.L.M. 138 (1992). Neither the Republic of Georgia nor the Baltic States entered the Commonwealth. Chronology 1991, supra note 6, at 184, 205. Furthermore, the eleven members of the Commonwealth signed an additional accord stating that: Until the complete elimination of nuclear weapons, the decision on the need for their use is made by the President of the Russian Federation in agreement with the heads of State of the Republic of Belarus, the Re- public of Kazakhstan and Ukraine, and in consultation with the heads of the other Member States of the Commonwealth. Minsk Agreement on Strategic Forces, Dec. 31, 1991, art. 4, reprinted in ARMS CON- TROL TODAY, Jan./Feb. 1992, at 39. 8. See, e.g., Robert E. Hunter, Starting at Zero: U.S. Foreign Policy for the 1994] STATES' SUCCESSION 527 ers of the emerging new world order9 that international law provides few clear answers to some of the critical legal issues arising from the0 dismantling of the Soviet State. Out of concern for global security, the foremost of these issues prompted inquiry into whether the former Soviet republics, vested with newly found independence, would inherit the bilateral treaty" rights and obligations that existed between the for- mer Soviet Union and other nations, particularly the United States. 2 1990s, WASH. Q., Vol. 15, No. 1, at 24, 26 (1992) (suggesting that the breakup of the Soviet Union has been interpreted as a "triumph for two basic tenets of Western power and position: the market economy and the pluralistic society"). 9. See generally Joseph S. Nye, Jr., What New World Order?, FOREIGN AFF., Vol. 71, No. 2, at 83 (1992) (providing text of a statement by former President George Bush that the new world order includes peaceful resolution of disputes, unity against aggression, and the fair treatment of all individuals). 10. See Bunn & Rhinelander, supra note 5, at 323-27 (disscussing the splintering of the former Soviet nuclear arsenal as a result of the dissolution of the Soviet Un- ion). See also Pipes, supra note 1. at 76 n.6 (detailing concern over the fate of Sovi- et intercontinental nuclear missiles); Simes, supra note 3, at 91-95 (noting apprehen- sion over the dismantling of the second most powerful military in the world and the presence of intercontinental ballistic missiles on Ukrainian soil); Martha Brill Olcott, Central Asia's Catapult to Independence, FOREIGN AFF., Vol. 71, No. 3, at 108, 118- 19 (1992) (noting concern over safety and stability of nuclear weapons currently situ- ated in the former republic of Kazakhstan). 11. See Vienna Convention on Succession of States in" Respect of Treaties, adopt- ed Aug. 22, 1978, opened for signature Aug. 23, 1978, art. 2(a), U.N. Doe. A/CONF. 80/31 (1978), reprinted in 17 I.L.M. 1488, 1490 [hereinafter Vienna Convention] (de- fining a treaty as an "international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation"). 12. See The Strategic Arms Reduction Treaty: Hearings on S. 607 Before the Senate Committee on Foreign Relations, 102d Cong., 2d Sess. 309-19 (1992) [here- inafter Hearings] (memorandum of George Bunn and John Rhinelander) (suggesting that the Nuclear Non-Proliferation Treaty, the Anti-Ballistic Missile Treaty, the Con- ventional Forces in Europe Agreement, and the Strategic Arms Reduction Treaty are bilateral accords of primary concern after the collapse of the Soviet Union); Bunn & Rhinelander, supra note 5, at 323-50 (examining the status of specific arms limitation agreements of the former Soviet Union in the wake of dissolution by application of the conventional law of state succession); Edwin D. Williamson & John I. 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, 264-70 (1993) (stating that bilateral agreements between the former Soviet Union and the United States, effective at the moment of dissolution, should continue to have effect in each former republic except the Baltic nations); Rein Mullerson, New Developments in the Former USSR and Yugoslavia, 33 VA.
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