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Key Issues Missile Defense Issues Memorandum of Law

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?
by Douglas J. Feith and George Miron
January 22, 1999 (Revised May 21, 1999)
Written testimony to a hearing by the U.S. Senate Foreign Relations Committee, May 25, 1999


Douglas J. Feith and George Miron

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Treaties on Missile Defense

practice law in the Washington, D.C
firm of Feith & Zell, P.C.
(2300 M Street, NW, Suite 600, Washington, DC 20037) .
During the Reagan Administration,
Mr. Feith was Deputy Assistant Secretary of Defense for Negotiations Policy
and a member of the White House
National Security Council staff.

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.



A. Assistant Attorney General Dellinger's Paper 2
B. Methodology and Scope of this Memorandum 3
C. Summary of Conclusions 4
A. The President Does Not Have Exclusive Authority to Interpret Treaties 6
B. The President Does Not Have Exclusive Authority to Implement Treaties 14
C. Presidential Authority to Grant Formal Recognition to Foreign States Does Not Imply Authority to Make Treaties with Those States Without Senate Concurrence 15
D. The Senate's Concurrence in the Making of a Treaty With One State Does Not Constitute to the Making of a Treaty With a Successor-State 17
A. Extinction of the USSR 19
B. State Department Study of the Effect of the USSR's Extinction 20
C. President Clinton's Statement of Position 25
D. The United States' 1972 View of How It Would Benefit From an ABM Treaty 26
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 27
B. The ABM Treaty Was a Bilateral Treaty 29
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 29
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 30
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 35
1. Courts of the United States 35
2. International judicial tribunals 36
3. International arbitration panel 37
F. The United States Conduct Described by Assistant Attorney General Dellinger Does Not Constitute State Practice for Purposes of Establishing Customary International Law 37
1. Background 37
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. 39
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 41
a. The Dissolution of the Greater Columbian Union, 1829-1831 41
b. The Dissolution of the Dual Monarchy of Norway and Sweden, 1905 42
c. The Dissolution of the Austro-Hungarian Empire, 1918 43
d. The Secession of Syria from the United Arab Republic, 1961 46
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 47
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 47
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 49
H. Article 34.1 of the 1978 Vienna Convention Does Not Reflect a Rule That Has Passed into Customary International Law 49
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 52
J. The ABM Treaty Did Not Become a Treaty Between the United States and the Russian Federation by Devolution 54
K. The ABM Treaty Was Not a Dispositive Treaty 54
1. The ABM Treaty did not create a legally recognizable interest in any State other than the Treaty parties 54
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 55

TABLE OF AUTHORITIES 59 position was supported by its national courts and by a Tripartite Commission that included the United States. 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.

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), 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 . . . ." 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." Article 241 further provides that "[t]he date of the coming into force shall be that of the notification." 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." 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. Both treaties were submitted to and approved by a two-thirds vote in the U.S. Senate.

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. 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."

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.

In 1958, Syria and Egypt formed a union called the United Arab Republic (the "UAR"). In 1961, Syr ia 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. 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.

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.

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. 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." 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."

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.

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." 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. 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.

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.

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.

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.

In Filartiga v. Pena-Irala (1980), 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. The court, however, issued this caution:

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.

In counseling caution, the court could have cited the North Sea Continental Shelf case, decided by the International Court of Justice in 1969. 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. By 1969, approximately 70 States were exploring or exploiting continental shelf areas.

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.

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. 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:

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.

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.

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.

The clause in the 1978 Vienna Convention that would require the continuation in force vis-á-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.

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.

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.

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.