Senate testimony of Douglas Feith and George Miron on ABM treaties and international law

Excerpts from Statement of Douglas J. Feith and George Miron

Before the Committee on Foreign Relations

U.S. SENATE

May 25, 1999

Mr. Chairman, our legal analysis of the status of the ABM Treaty of 1972 concludes that, following the Soviet Union’s extinction, the ABM Treaty did not become a treaty between the United States and the Russian Federation. Rather, as a bilateral, non-dispositive treaty, the ABM Treaty lapsed when the USSR ceased to exist.

In December 1991, new States that emerged on what had been USSR territory declared independence, announced the formation of the "Commonwealth of Independent States" and proclaimed that the USSR "as a subject of international law and a geopolitical reality no longer exists." Soon thereafter, the United States acknowledged that the USSR had dissolved and "is no more."

The United States has officially expressed its view that upon a State’s extinction, that State’s bilateral political treaties automatically lapse. The U.S. government has acted in accordance with that view in connection with the extinction of the Kingdom of Hawaii in 1898, the dissolution of the Austro-Hungarian Empire at the end of World War I, and the dissolution of Yugoslavia in 1992. The U.S. view is consistent with the opinion of international legal scholars who have addressed that issue. With consistency over more than two hundred years, scholarly writings state that when a State ceases to exist (becomes "extinct"), that State’s treaties have no further effect. Such treaties are said to lapse. The lapsing occurs by operation of law — that is, automatically upon the State’s extinction. It does not require action by any other treaty party. No judicial decision or applicable treaty contradicts this principle, and the U.S. Supreme Court has established that works of international legal scholars can be acceptable as evidence of the law.

In 1889, the State Department stated as a "principle of public law" that a treaty expires when one of the parties "loses its existence." In support, the State Department quoted from General Henry W. Halleck’s well-regarded treatise, International Law, written in 1861. Halleck said that the principle of public law which causes Treaties, when a Party ceases to exist, to be regarded as abrogated is thus stated:

The obligations of Treaties, even where some of their stipulations are in their terms perpetual, expire in case either of the contracting parties loses its existence as an independent State… 

In 1897, U.S. Secretary of State John Sherman invoked scholarly works to explain to the Government of Japan why the treaties made by the Kingdom of Hawaii would not survive the U.S. annexation of the Kingdom’s territory. He said it is not the treaty by which the U.S. annexed Hawaii that abrogates the Hawaiian kingdom’s treaties. Rather, "it is the fact of Hawaii’s ceasing to exist as an independent contractant that extinguishes those contracts."

Likewise, in 1902 Secretary Elihu Root ordered to be published a report by a Law Officer in the Office of the Secretary of the War Department which dealt with the treaty obligations of extinct States. That Report states:

But where there is a complete change, not only of sovereigns but of sovereignty, of necessity the agreement ends …

Similar observations include the following:

It is clear that political (including personal and dynastic) treaties of the extinguished state fall to the ground. Professor Amos H. Hershey, University of Indiana, 1911.

The extinction of the personality of a state results traditionally in an abrogation of all political and military treaties concluded between the now extinct entity and other states. Professor Gerhard von Glahn, University of Minnesota – Duluth, 1962.

Many other scholars have expressed the same opinion.

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Neither U.S. nor Russian officials deny that the Soviet Union ceased to exist in December 1991 – its international legal personality terminated. In other words, it is not in dispute that the Commonwealth of Independent States and the U.S. government in 1991 were accurate when they declared that the Soviet Union had ceased to exist as a State. Also, the ABM Treaty of 1972 was a bilateral treaty.

As noted, scholars for over two hundred years have been nearly unanimous in concluding that, upon a State’s extinction, its bilateral treaties that are not "dispositive" do not by operation of law, i.e. automatically, become treaties between the extinct State’s successor and the extinct State’s treaty partner, that is, some bilateral treaties lapse. (A treaty is dispositive if it irrevocably fixed a right to particular territory, e.g., delineates a border between States.) The ABM Treaty was not a dispositive treaty.

No judicial decision contradicts the scholarly view that a non-dispositive bilateral treaty of an extinct State does not automatically become a treaty of its successor or successors.

The United States has never before considered itself bound by international law to accept as its treaty partner the successor to an extinct State.

The President has constitutional authority to grant recognition to foreign states. Were he to rely on that authority as the legal basis for making a treaty – bringing into being a treaty that would not otherwise exist – he would put the United States under a legal obligation to other States without Senate advice and consent. The President’s recognition authority cannot be exercised in a manner that would nullify the U.S. Senate’s authority to advise and consent on the making of a treaty. The President cannot, without Senate approval, bring a lapsed treaty back to life by declaring that a given foreign State is the successor or continuation of an extinct State. Principles of international law govern the issue of the extinction of States. However broad the President’s authority may be to recognize States and governments of States under the U.S. Constitution’s "receive Ambassadors" clause, it is necessarily limited by the specific Constitutional requirement for Senate advice and consent on the making of treaties.

In sum, when the USSR became extinct, its bilateral, non-dispositive treaties lapsed. Hence, the ABM Treaty lapsed by operation of law – that is, automatically – when the USSR dissolved in 1991. It did not become a treaty between the United States and the Russian Federation.

The practical conclusion relating to SFRC’s work: the Multilateralization MOU is not simply an amendment of an existing treaty, but in fact a new treaty. If approved, it would create the ABM Treaty of 1999. If not approved, it would preserve the status quo – that is, there would continue to be no binding international agreement prohibiting the United States from deploying a defense against ballistic missiles.