What ABM Treaty?

By James Woolsey

The Washington Post

15 August 2000

As the Clinton administration approaches its decision this fall on whether to begin deployment of a national missile defense system, the public debate has been heavily influenced by the assumption that the 1972 Anti-Ballistic Missile Treaty between the United States and the Soviet Union is still in effect, and that the United States must "abrogate" it in order to deploy defenses. But as Prof. Robert Turner of the University of Virginia Law School and other scholars have amply chronicled, there is no reasonable case for this widely held view.

According to longstanding principles of international law, when one country has a bilateral treaty with another and is then "succeeded" by a different state (as Russia has succeeded to the rights and duties of the Soviet Union under a number of treaties), the bilateral treaty remains in effect only if both states so affirm–the new state and its predecessor’s treaty partner. The only exception to what international lawyers call this "clean slate" rule is "dispositive" treaties–such as those that dispose of territory. In only these cases is the succession automatic. For example, if the Soviet Union had signed a treaty agreeing to sell back to Japan the portion of the Kurile Islands it seized at the end of World War II, that treaty would automatically be binding on Russia and Japan.

But the administration does not assert that the 1972 U.S.-Soviet ABM Treaty is "dispositive." Indeed, the administration’s only argument that the 1972 treaty automatically remains in effect is that this position is supported by the words of a 1978 convention that seeks to limit the application of this longstanding clean slate rule solely to countries emerging from colonial domination. What the Justice Department’s 1996 memorandum on this issue fails to point out is that neither the United States, the Soviet Union nor Russia is a party to this 1978 convention–and that in fact 90 percent of the world’s states have also refused to sign it. It is irrelevant to the ABM Treaty debate.

So, following the Soviet Union’s demise, the question is: Has the United States consented to substituting Russia or some group of new states as the new parties to the 1972 treaty? At this point the issue ceases to be one of international law and becomes an American constitutional question. Let’s assume that the new party or parties and the U.S. executive branch have all consented. Is that enough? Not by a long shot.

The argument isn’t even close. On substantive changes in treaties, the executive cannot act for the United States by itself. The Constitution requires the consent of two-thirds of the Senate.

Are changes in the ABM Treaty "substantive," requiring Senate approval, if Russia succeeds to the role of the Soviet Union or–as the administration proposed and the Russian government has twice approved- -if Russia, together with Belarus, Ukraine and Kazakhstan become the Soviet Union’s successor states?

In either case, especially the latter, it is impossible to make the argument with a straight face that the changes are not "substantive." Even minor changes in treaties have been deemed substantive by both the executive and the Senate for the past two centuries. The substitution of four states for one in this bilateral 1972 treaty would convert it to a multilateral treaty. I am unaware of any case in which a president has sought to change a treaty from bilateral to multilateral without the consent of the Senate.

Such a change would have major practical effects: The United States would have to persuade not one but four states to go along with any treaty amendments. Moreover one of these states, Belarus, is ruled by the dictatorial and highly corrupt Lukashenko regime that is in league with the most unreconstructed parts of the old Soviet military-industrial complex. How can the administration assert that putting the ability of the United States to defend itself into the hands of Alexander Lukashenko is not "substantive"?

In addition, the area covered by the new treaty would be shrunk by 1 1/2 million square kilometers by the exclusion of 11 countries (the Baltics, the Caucasus, Moldova and four South Asian "stans"). Would the administration also contend that if the Soviet Union had come to U.S. officials in the 1980s and asked for such a huge section of its territory to be exempted from the ban on ABM deployments that would not have been a substantive change to the treaty requiring the Senate’s approval?

For reasons of both history and strategic prudence, the next administration should confer with our allies and Russia about its plans for missile defense, and seriously consider their views. But the next president need not, indeed he should not, do so from the disadvantaged position that he will have to abrogate a treaty before he proceeds to deployment. The executive branch cannot keep a treaty of this importance in limbo indefinitely: Unless some president submits the 1972 ABM Treaty, with its new parties, to the Senate and obtains its consent to the substantive changes, there is nothing to abrogate.

The writer, an attorney and former CIA director, was ambassador, delegate or adviser in five U.S.- Soviet arms control negotiations between 1969 and 1991.