The Collapse of the Soviet Union and the End of the 1972 Anti-Missle Ballistic Missile Treaty

International & National Security Law Practice Group Newsletter - Volume 2, Issue 2, Summer 1998

August 1, 1998

The following is the Executive Summary of a legal memorandum from the law firm of Hunton & Williams to The Heritage Foundation.

This memorandum of law examines the following questions: (1) whether the 1972 Treaty on the Limitation of Anti-Ballistic Missile Systems ("ABM Treaty") between the United States and the now-defunct Union of Soviet Socialist Republics ("U.S.S.R." or "Soviet Union") continues to bind the United States as a matter of domestic and international law; and (2) what would be the legal impact of action by the United States Senate denying its advice and consent to certain ABM Treaty-related agreements signed by the Secretary of State Madeleine Albright with four former Soviet republics m September 1997. These agreements would, among other things, transform the ABM Treaty from what was a bilateral treaty between the United States and the Soviet Union into a multilateral treaty among the United State, Russia, Belarus, Ukraine, and Kazakhstan. In addition, they would revise the ABM Treaty's provisions to reflect and accommodate its new status as a multilateral agreement, and would introduce a number of additional restrictions on activities related to ballistic missile defense (BMD).

The United States and the Soviet Union entered into the ABM Treaty in 1972. The ABM Treaty barred the deployment of a defensive system for protecting the national territories of the United States and the Soviet Union against missile attack. By so doing, the ABM Treaty served to codify a policy that, 25 year later, leaves the United States completely vulnerable to ballistic missile attack.

We believe that the ABM Treaty no longer binds the United States as a matter of international or domestic law. This is because the Soviet Union has disappeared, and there is no state, or group of states, capable of implementing the Soviet Union's obligations under the ABM treaty in accordance with that agreement's terms. Therefore, in view of the relevant facts, and the applicable doctrines of domestic and international law dealing with state succession issues, the ABM Treaty cannot now be said to be in force. That Treaty expired with the Soviet Union, and any new treaty regarding ballistic missile defenses between the United States and any of the former Soviet republics can be effected only through renewed negotiations and the agreement of both the United States and one or more of these states. As a matter of United States law, the United States Senate would have to consent to such an agreement before it could be ratified by the President.

Our conclusions are based upon the following facts and analysis.

Facts

  • The United States and the Soviet Union signed and ratified the ABM Treaty in 1972. They agreed to constrain severely the ability to deploy anti-ballistic missile systems to defend their respective territories from ballistic missile attack by imposing a broad array of proscriptions and limiting BMD deployments to two permitted sites per treaty partner.
  • The Treaty was modified by a 1974 Protocol, which was ratified in 1976, that reduced the number of allowed ABM sites from two to one per treaty partner.
  • The Soviet Union collapsed in 1991, and 15 independent states emerged.
  • Since 1993, the United States has proceeded to explore ways to resolve the ABM treaty-related succession issues and to determine whether the rights and obligations of the Soviet Union under the Treaty could be assumed by one or more of the states that emerged following its collapse.
  • The United States, Belarus, Kazakhstan, Russia, and Ukraine signed agreements on September 26, 1997, that would, if ratified, effectively multilateralize the ABM Treaty. The President has agreed to submit these agreements for the Senate's advice and consent, although they have not yet been submitted.
  • President Clinton asserted that the original ABM Treaty would remain in force even if the Senate rejects the agreement to multilateralize the Treaty. He asserted this in two letters, one dated November 21, 1997, and a second dated May 21, 1998, to Representative Benjamin A. Gilman, Chairman of the House Committee on International Relations.

Analysis

  • The President's claim that the ABM Treaty would remain in force even following Senate rejection of the agreement to multilateralize the Treaty raises the question of whether the ABM Treaty is currently in force and legally binding on the United States.
  • The resolution of this question must be sought in the rules of international law, as those rules may be applicable in the United States, and in the norms of American constitutional law. When these sources are consulted, a compelling argument emerges that the ABM Treaty no longer binds the United States.
  • A review of the ABM Treaty's provisions, its negotiating history, and the subsequent performance of the treaty parties suggests that the obligations assumed by the United States and the Soviet Union under that agreement did not survive the Soviet Union's dissolution. This is because key terms of the ABM Treaty were drafted in a manner that makes them incapable to being performed by any parties other than the United States and the Soviet Union. These key terms depended on the following assumptions:
    1. That the geographic expanse of the two states would remain as it was in 1972;
    2. That the strategic relationship between the two states would remain essentially as it was in 1972; and
    3. That the Treaty would remain a bilateral agreement.
  • It has long been recognized that treaties are a species of contract between states. As is true with any contract, the performance of obligations under a treaty may be rendered impossible when one party to the agreement disappears or loses its independent existence. The collapse of the Soviet Union was just such an instance, and it has rendered impossible the performance of the ABM Treaty.
  • As applied in the treaty context, a state's treaties do not survive its dissolution under this doctrine unless there is a successor state that (1) can be said to continue its predecessor's international legal personality, and (2) can perform the treaty in accordance with its original terms. There is today no post-Soviet state or combination of such states that can be said to continue the Soviet Union's international legal personality or that could perform the totality of its obligations under the ABM Treaty as it was originally drafted.
  • The doctrines generally applied to resolving questions of treaty succession suggest that the ABM Treaty did not survive the Soviet Union's dissolution. Two competing doctrines — the "continuity" model and the "clean slate" model — are generally applied in determining questions of treaty succession. The continuity doctrine presumes that the treaty rights and obligations of a predecessor state pass to its successor states. However, whether a treaty actually survives under this model depends upon the type of treaty, as well as the type of dissolution suffered by its predecessor state. By contrast, the clean slate doctrine assumes that new states begin afresh, and that the treaties of any predecessor will apply to them only if both the new state and its predecessor's treaty partners agreed (or at least acquiesced) to being bound by a renewed treaty arrangement.
  • The application of either model to the ABM Treaty leads to the conclusion that it did not survive the Soviet Union's collapse. The ABM Treaty cannot be said to have survived under the application of a continuity model because it was a poetical treaty that was "personal" to the Soviet Union. None of the former Soviet republics (including Russia) can be said to continue the U.S.S.R.'s international legal personality.
  • Under the clean slate analysis, the model generally preferred in the post-World War II era, the ABM Treaty also cannot be said to have survived the Soviet Union. Each of the former Soviet republics is a newly independent state, and can accede to the benefits and burdens of the Soviet Union's treaties only upon a renewed agreement with the Soviet Union's former treaty partners. Despite some ambiguous actions and statements, the United States has refused such an agreement to date. Indeed, in the more than six years since the Soviet Union's demise, the State Department has listed the status of the ABM Treaty as unresolved.
  • The United States cannot now be bound by the ABM Treaty without the advice and consent of the Senate. Because the ABM Treaty did not automatically survive the Soviet Union's collapse, it cannot now be revived without the advice and consent of the United States Senate. Because of the ABM Treaty's unique purpose and assumptions, extensive negotiations with the Soviet Union's successor states would have to be undertaken, and the original treaty substantially modified, before the original bargain obtained by the United States in 1972 could be revived. The amendments in this Treaty, and particularly any new treaty's character as a multilateral (as opposed to a bilateral) instrument, would represent changes so fundamental that they can be effected only with the advice and consent of the Senate under the Constitution's treaty-making power.

Conclusion

When the Soviet Union dissolved in 1991, the ABM Treaty became impossible to perform m accordance with its original provisions. Because of the unique terms and conditions of the ABM Treaty, and the underlying assumptions of the parties, none of the states that emerged from the Soviet Union, either alone or with others, could carry out the totality of the Soviet Union's obligations under the ABM Treaty. Consequently, the obligations of the United States under the Treaty were discharged at the time the Soviet Union disappeared. Although a number of the former Soviet republics have indicated that they are prepared to undertake the Soviet Union's role in the ABM Treaty regime, this willingness alone is insufficient to bind the United States. Transforming the ABM Treaty from a bilateral accord, applicable to the entire Soviet territory, into a multilateral convention, applicable only to a portion of the former Soviet territory, and redrafting in the process a number of key substantive Treaty provisions fundamentally alters the bargain originally struck by the United States and the Soviet Union in 1972. The President cannot, of his own authority, accomplish these results.

Accordingly, the United States can again be bound to the ABM Treaty only if two-thirds of the Senate agrees to the revisions required by the transformation of the ABM Treaty, and the President then chooses to ratify them.