Live Missiles and Dead Letters

WITH missile threats proliferating, the issue of national missile defense, which
has divided Republicans from Democrats for 15 years, is heating up. India and
Pakistan have tested nuclear weapons; Iran, Iraq, China, and North Korea have
nuclear and missile programs; and Russia’s control over its own nuclear arsenal
is deteriorating. Consequently, congressional support is growing for prompt
deployment of defenses against ballistic missiles.

The Clinton Administration is blocking any such move, insisting that the Anti-Ballistic
Missile (ABM) Treaty of 1972 forbids it. But the United States made that treaty
with the Soviet Union, which became extinct in 1991-and the President is having
a hard time explaining how the treaty survived that demise. In fact, for political
reasons the Administration prefers to cast its opposition to missile defense
as a treaty obligation rather than as a policy choice.

Last year, the Administration signed accords with Russia, Ukraine, Belarus,
and Kazakhstan to bind these former Soviet republics to a treaty arrangement
along the lines of the ABM Treaty. President Clinton promised to ask for the
Senate’s advice and consent on these so-called multilateralization accords.
If he does so, the Senate will have to face the question: Are these accords
a minor amendment adding new parties to an existing treaty, as Mr. Clinton would
have it? Or are they a new treaty, prohibiting defenses that are now legal?
Are they, in other words, the ABM Treaty of 1998?

The Administration has no interest in dispelling the fog surrounding this issue.
The State Department’s annual publication Treaties in Force continues to list
the ABM Treaty as a two-party accord and to designate the other party as the
"Union of Soviet Socialist Republics."

Rep. Benjamin Gilman (R., N.Y.), chairman of the House International Affairs
Committee, has worked admirably to clarify the picture. Last year, he wrote
President Clinton to ask who the other party to the treaty now is. In his reply
to Rep. Gilman, on November 21, 1997, President Clinton wrote that succession
arrangements are currently "unsettled." The Constitution, he implied,
precludes the recognition of either Russia alone or all the newly independent
states (NIS) together as a substitute for the Soviet Union: "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."
The President said that if the Senate were to reject the multilateralization
accords, "succession arrangements will simply remain unsettled," but
the "ABM Treaty itself would clearly remain in force." Clearly?

Gilman pressed President Clinton in a follow-up letter. If the Administration
cannot now in 1998 identify any country in addition to the United States that
is bound by the treaty, he wrote, then Congress would have to conclude that
the treaty is no longer in force. Mr. Clinton’s response: "The United States
and Russia clearly are Parties to the Treaty" (letter of May 21, 1998).
Mr. Clinton did not even try to reconcile this assertion with his November 21
declaration that the succession is unsettled and that U.S. recognition of Russia
as sole successor would not fulfill the treaty’s Senate-approved purposes.

Administration officials point out that the field of treaty succession is characterized
by inconsistency of state practices and a lack of consensus regarding legal
principles. In general, that is true. But there is broad agreement among legal
scholars regarding the particular area of two-party treaties that are "personal"
or "political" in nature: When a party to such a bilateral treaty
ceases to exist, that treaty is extinguished.

This international legal principle is analogous to a venerable principle of
the common law of contracts: If John Smith contracted with Luciano Pavarotti
to sing at Mr. Smith’s wedding, and Mr. Pavarotti died before the event, no
executor or successor could claim the right to sing at the wedding and receive
the fee. Because it is personal in nature, such a contract terminates when Mr.
Pavarotti dies.

In the preeminent modern commentary, State Succession in Municipal Law and
International Law, Professor D. P. O’Connell writes, "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."

The ABM Treaty of 1972 is the quintessential "personal" or "political"
treaty. The United States entered into it with a specific potential adversary
that had a specific character, specific resources and capabilities, and a specific
relationship to the United States. It did not enter the treaty with "whom
it may concern." It did not enter into it as an indestructible commitment:
each party had the right to withdraw from the agreement upon six months’ notice.
International law does not assume that such a treaty’s aims can be fulfilled,
in the event of one party’s extinction, by whatever state or states may happen
to arise on the dead party’s territory.

Furthermore, the newly independent states that arose on the USSR’s territory
jointly declared at Minsk on December 8, 1991, that none of them preserved the
legal personality of the Soviet Union, which "as a subject of international
law and geopolitical reality no longer exists." The U.S. Government promptly
thereafter acknowledged that the Soviet Union had dissolved.

To be sure, the U.S. Government could draw upon the ABM Treaty’s terms for
a new agreement with another state-Russia, for example. But any such new treaty
can come into force under the U.S. Constitution only if the Senate approves
ratification.

President Clinton has not yet submitted the new ABM multilateralization accords
to the Senate. But as recognition spreads that the President is adhering to
the ban on missile defenses not as a legal obligation but as a policy choice,
prospects dim for the accords’ getting the necessary 67 Senate votes for ratification.
Once treaty issues are out of the picture, Congress must address the heart of
the matter: Should our government preserve or end the nation’s vulnerability
to ballistic missiles?

Copyright 1998 National Review