American University International Law Review Volume 17 | Issue 2 Article 1 2002 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? George Miron Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Miron, George. "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?" American University International Law Review 17, no. 2 (2002): 189-342. 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]. MEMORANDUM OF LAW 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?* GEORGE MIRON "° I. QUESTIONS ADDRESSED BY THE MEMORANDUM ... 195 II. BACKGROUND ............................................ 195 A. THE THESIS THAT UNDER INTERNATIONAL LAW THE ABM TREATY OF 1972 WITH THE USSR BECAME A TREATY BETWEEN THE UNITED STATES AND THE RUSSIAN * On December 13, 2001, President George W. Bush notified Russia that the United States is withdrawing from the ABM Treaty. President George W. Bush, Remarks on National Missile Defense (Dec. 13, 2001). tit http://www.whitehouse.gove/news/releases/2001/12/20011213-4.html. That announcementdoes not moot the need to understand how the extinction of the USSR in 1991 affected the ABM Treaty. Members of Congress who supported the continuation of the ABM Treaty may decide to file a suit alleging that the Constitution requires a Congressional vote to authorize the United States to withdraw from a treaty. In 1979 the Supreme Court side-stepped that question, when presented in a suit by Senator Barry Goldwater seeking to nullify President Jimmy Carter's disavowal of the United States/Taiwan Mutual Defense Treaty. Goldwater v. Caner, 444 U.S. 996 (1979). ** George Miron practices law with the fimi of Polivert & Luk, LLP. Mr. Miron served in the Antitrust Division of the U.S. Department of Justice and in the Office of the Solicitor of the U.S. Department of the Interior. This Memorandum elaborates on an earlier Memorandum by Douglas J. Feith and George Miron. The earlier Memorandum is reprinted in Hearings before the United States Senate, Committee on Foreign Relations. 106th Congress 106-339 at 231 (May 25. 1999). The author is grateful to lawyers-in-the-making Christian Seitz and John Padilla, for their archival research and their editorial revisions. AM. U. INT'L L. RE[7 [17:189 FEDERATION ............................................. 198 1. The Position Stated by Assistant Attorney General W alter D ellinget ...................................... 198 2. The Positions of Other Commentators ................ 199 B. THE THESIS THAT THE CONSTITUTION EMPOWERS THE PRESIDENT TO MAKE A LEGALLY BINDING TREATY WITH RUSSIA ON ABM MATTERS WITHOUT A CONCURRING VOTE OF TwO-THIRDS OF THE SENATE .................... 201 C. METHODOLOGY AND SCOPE OF THIS MEMORANDUM ...... 205 D. SUMMARY OF CONCLUSIONS .............................. 206 1. InternationalLaw .................................... 206 2. U.S. ConstitutionalLaw .............................. 207 III. FACTUAL BACKGROUND ................................ 209 A. THE UNITED STATES' 1972 VIEW OF FlOW IT WOULD BENEFIT FROM AN ABM TREATY ......................... 210 B. EXTINCTION OF THE USSR ................................ 211 C. STATE DEPARTMENT STUDY OF THE EFFECT OF THE USSR's EXTINCTION ..................................... 213 D. PRESIDENT CLINTON'S STATEMENT OF POSITION .......... 219 IV. INTERNATIONAL LAW: LONG ACCEPTED PRINCIPLES OF INTERNATIONAL LAW SUPPORT THE CONCLUSION THAT THE ABM TREATY BETWEEN THE UNITED STATES AND THE USSR DID NOT, UPON THE USSR'S EXTINCTION, BECOME A TREATY BETWEEN THE UNITED STATES AND THE RUSSIAN FEDERATION .................................. 221 A. THE DECEMBER 1991 DECLARATION THAT THE USSR HAD CEASED TO EXIST CORRECTLY CHARACTERIZED THE CHANGES THAT OCCURRED ON WHAT HAD BEEN THE USSR's TERRITORY ...................................... 221 B. THE ABM TREATY WAS A BILATERAL TREATY ........... 223 C. IF JUDICIAL DECISION, DIPLOMATIC PRACTICE, OR TREATIES Do NOT PROVIDE TRUSTWORTHY EVIDENCE ON A DISPUTED POINT OF CUSTOMARY INTERNATIONAL LAW, A COURT WILL CONSULT THE WORKS OF SCHOLARS TO DETERMINE THE LAW .................................... 224 D. THE WORKS OF SCHOLARS SUPPORT THE CONCLUSION THAT A BILATERAL TREATY OTHER THAN A DISPOSITIVF, TREATY DOES NOT SURVIVE THE EXTINCTION OF ONE OF 2002] ABM TRE,, TY THE TREATY PARTNERS .................................. 224 E. No CONTROLLING DECISION OF AN INTERNATIONAL JUDICIAL TRIBUNAL, QUASIJUDICIAL 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 ................. 230 1. Courts of the United States ............................ 230 2. hIter-nationalJudicial Tribunals ...................... 232 3. IzternzationalArbitration Panel ....................... 233 F. THE UNITED STATES' CONDUCT DESCRIBED BY ASSISTANT ATTORNEY GENERAL DELLINGER DOES NOT CONSTITUTE STATE PRACTICE FOR PURPOSES OF ESTABLISHING CUSTOMARY INTERNATIONAL LAW ........ 233 1. Background ................. 233 2. A State PracticeDoes Not Contribute to the Development of Customai' Inter-nationalLaw Unless the Practiceis Conducted Out of a Sense ojNecessity to Comply with InternationalLai ................... 236 3. The Record Does Not Shoui' That. in Any ofthe Four Episodes Cited b' Dellinget; the United States Accepted a Treati' as Binding on It Out of a Sense That hIter-nationalLaw So Required .................. 240 a. The Dissolution of the Greater Colombian Union, 1829-1831 ............................ 240 b. The Dissolution of the Dual Monarchy of Norway and Sw eden, 1905 ................................ 241 c. The Dissolution of the Austro-Hungarian Empire, 1918 .................................. 243 d. The Secession of Syria from the United Arab Republic, 1961 ................................... 247 4. United States' PracticeRegarding Yugoslavia 's 1992 Dissolution Shoiws That the United States Does Not Consider Itself Bound by International Law to Maintain in Force the Non-Dispositive Treaties of Extinct States ............................. 248 5. AA G Dellinger'sAccount of the Practiceof the United States Omits the Manyv Occasions in Which the United States Took the Position that Treaties Did AM. U. INT'L L. REV. [17:189 Not Survive the Dissolution of a State ................ 248 6. 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 InternationalLaw .... 250 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 .......... 253 H. ARTICLE 34 (1) OF THE 1978 VIENNA CONVENTION DOES NOT REFLECT A RULE THAT HAS PASSED INTO CUSTOMARY INTERNATIONAL LAW ....................... 253 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 WITtl THE TREATY'S OBJECT AND PURPOSE ..................... 258 J. THE ABM TREATY DID NOT BECOME A TREATY BETWEEN THE UNITED STATES AND THE RUSSIAN FEDERATION BY D EVOLUTION ............................................. 260 K. THE ABM TREATY WAS NOT A DISPOSITIVE TREATY ..... 260 1. The ABM Treaty Did Not Create a Legally Recognizable Interest in Any State Other Than the Treaty Partners .................................... 260 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 F orce ............................................. 261 V. U.S. CONSTITUTIONAL LAW: THE PRESIDENT'S IMPLIED POWER TO MAKE SOME KINDS OF INTERNATIONAL AGREEMENTS WITHOUT A CONSENTING VOTE OF TWO-THIRDS OF THE SENATE DOES NOT EXTEND TO THE MAKING OF A LEGALLY BINDING ANTI-BALLISTIC MISSILE T R E A T Y .................................................................................... 264 A. THE PRESIDENT DOES NOT HAVE EXCLUSIVE AUTHORITY TO INTERPRET TREATIES, BUT MUST YIELD TO INTERPRETATIONS BY THE COURTS, WHICH ARE 2002] ABM TREAITY D EFIN ITIVE .............................................. 265 B. THE PRESIDENT DOES NOT HAVE EXCLUSIVE AUTHORITY TO IMPLEMENT TREATIES ................................. 277 C. PRESIDENTIAL AUTHORITY TO RECOGNIZE THE EXISTENCE OF A FOREIGN STATE DOES NOT IMPLY AUTHORITY TO MAKE TREATIES WITH THAT STATE WITHOUT SENATE CONCURRENCE ........................ 278 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 ....................................... 283 E. EXCEPT