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The Abm Treaty: Changed Circumstances, Extraordinary Events, Supreme Interests and International Law

Published online by Cambridge University Press:  17 January 2008

Rein Müllerson
Rein Müllerson*
Affiliation:
Professor of International Law, King's College London; Institut de Droit International, Member.
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Extract

The Cold War years may have been in a way a good period for international lawyers and other international relations specialists: things were rather predictable and any fundamental change seemed to be out of the question. Today much has changed. What was just recently unforeseeable has become a reality in which unforeseeability is the norm. What about international law in this context?

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 50 , Issue 3 , July 2001 , pp. 509 - 539
Copyright
Copyright © British Institute of International and Comparative Law 2001

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References

1. Source: U.S. Arms Control and Disarmament Agency, Arms Control and Disarmament Agreements: Texts and Histories of Negotiations, 1982 ed. (Government Printing Office), pp.139–147.Google Scholar

2. The December 2000 issue of the Journal of Conflict and Security Law had articles by Ambassador Thomas Graham “Law, Politics and the ABM Treaty” and by Professor Barry Kellman “Missile Defence and the ABM Treaty: Considerations of International Security and Law”. John B. Rhinelander's article “The ABM Treaty – Past, Present and Future” (Part I), is forthcoming in the June 2001 issue of the same Journal.

3. Proceedings of the American Society of International Law, 1963, p.14.Google Scholar

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5. The complex of ABM documents includes besides the 1972 Treaty (with 1974 amendments) seven agreed statements, five common understandings and four unilateral statements, (see J. Rhinelander, p.2).

6. On the nature of international law see Higgins, R., Problems and Process: International Law and How We Use It, Clarendon Press, 1994, pp. 1–12.Google Scholar

7. This issue will be discussed later in detail.

8. There have been some voices in the US claiming that the ABM Treaty has ceased to exist as a legally binding document after one of the Treaty partners – the USSR – disappeared from the political and legal map of the world. So a 1998 letter from the Chairmen of the House International Relations Committee and the Senate Foreign Relations Committee to the President stated: ‘If it is unclear as a matter of law whether Russia or any country that emerged from the Soviet Union is today bound by the ABM Treaty, then it should also be unclear whether the United States is so bound’ (Quoted by Graham, T. Jr ‘Law, Politics and the ABM Treaty’, Journal of Conflict and Security Law, 2000, vol. 5, No. 2, p.276)CrossRefGoogle Scholar. Similar views were expressed by some Senators and legal experts during the hearing on the ABM Treaty in the Senate's Committee on Foreign Relations in May 1999. David B. Rivkin, for example, stated that ‘the ABM Treaty no longer binds the United States as a matter of international law and politics’ since ‘the Soviet Union had disappeared in 1991, rendering performance of the ABM Treaty as originally agreed impossible’ (Committee on Foreign Relations. The Legal Status of the ABM Treaty, Tuesday, May 25, 1999, http://www.access.gpo.gov/congress/senate). Such views completely misinterpret some elementary points of international law concerning continuity and succession of States especially as applied in cases of fundamental changes which took place in the former USSR, Eastern and Central Europe.

9. It is important to note, though only in passing, that ‘purity’ of intellectual approaches in social sciences, their completeness and non-openendedness seems to be a sign of immaturity. In law a tendency towards ‘purely legal’ or normative analysis in Kelsen's terms may be explained by the contradiction between the essentially normative character of law and the essentially non-normative nature of any creative process. I believe lawyers (especially academic lawyers) have to constantly balance between being ‘too creative’ and being too normative. If the first impulse prevails, we become fiction writers (and usually not good at all); if the second tendency gains the upper hand we become technicians (maybe useful but of secondary or even tertiary importance in resolving problems of international relations). See more about this in Müllerson, R., Ordering Anarchy: International Law in International Society, Kluwer Law International, 2000, pp.9–86.Google Scholar

10. If one uses the term “rogue” at all in this context, it seems more appropriate to use it in the characterisation of regimes not States, nations or countries.

11. Whenever we speak of changes in geopolitics, ideology or technology it is natural, in the context of this article, that only changes which relate to the circumstances which were essential for the conclusion of the ABM Treaty are taken into account.

12. For an excellent overview of the content of the Treaty and controversies related to its implementation see J. B. Rhinelander's article in the forthcoming June 2001 issue of the Journal of Conflict and Security Law.

13. J. Rhinelander, op. cit., p.2.

14. Belarus, Kazakhstan and Ukraine are participating in meetings of the SCC under the Memorandum of Understanding of 1997 signed by the U.S. and Russia. However, this Memorandum has not had the consent of the Senate and therefore is not legally binding. (J. Rhinelander, op. cit., p.14; The Legal Status of the ABM Treaty, op. cit.)

15. SALT Agreements. Communication from the President of the United States, Washington, June 13, 1972 (file:///A/SALT Agreements.htm)

16. Chayes, A. Handler, Doty, P., Defending Deterrence: Managing the ABM Treaty Regime into the 21st Century, Pergamon-Brassey's, 1989, pp.2–3.Google Scholar

17. Ibid., Rhinelander, “The ABM Treaty – Past, Present and Future”.

18. Executive Summary of the Report of the Commission to Assess the Ballistic Missile Threat to the United States, 17 July 1998, http://www.fas.org/irp/threat/bm-threat.htm.

19. I. H. Daalder, J. M. Goldgeier, J.M. Lindsay, op. cit., p.9.

20. In the law of treaties instead of the word ‘spirit’ of the treaty the term ‘object and purpose of the treaty’ is used. For example, treaties have to be interpreted in the light of their object and purpose, reservations which are contrary to the object and purpose of a treaty are not allowed etc. Article 60 of the Vienna Convention on the Law of Treaties provides that it is only a material breach of a bilateral treaty by one of the parties which entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. A ‘material breach’ is defined as ‘a repudiation of the treaty not sanctioned by the Convention, or the violation of a provision essential to the accomplishment of the object or purpose of the treaty’ (Article 60(3)). When we speak of the fate of the ABM Treaty in radically changed circumstances, we do not mean so much some specific technical clauses in the Treaty which may be violated in case an NMD programme is developed but the very object and purpose of the Treaty.

21. Remarks by the President to Students and Faculty at National Defence University, May 12001, http://www.whitehouse.gov/news/releases/2001/05/20010501–10.html.

22. S. Rogov, “Words are Strong. What about Deeds?”, Nezavisimoe Voennoe Obozrenie [The Independent Military Observer], 16 March 2001, p.6.

23. Ibid., p.9.

24. See Wilkening, D. A., “Amending the ABM Treaty”, Survival, 42, No. 1, Spring 2000, p.38.Google Scholar

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26. This does not mean that this influence was always direct and visible or that other States (or groups of States) did not exercise any influence. The law of the sea, international environmental law and human rights law may be examples of areas where many States have left their imprint.

27. See, e.g., Tunkin, G.I., Coexistence and International Law, RdC, vol. 95 (1958)Google Scholar; McWhinney, E., ‘Peaceful Coexistence’ and Soviet-Western International Law, Leyden, 1964 Google Scholar; McWhinney, E., The International Law of Détente, Sijthoff & Noordhoff, 1978 Google Scholar; Tunkin, G., Theory of International Law, Moscow, 1970, pp.16–56 (in Russian).Google Scholar

28. By this I do not mean to say that States should not co-exist or co-operate peacefully. However, the specific Cold War era “struggle and co-operation of states of the two opposing social systems”, to use Professor Grigory Tunkin's expression, which expressed the central idea of international law and politics of that period, seems to be over for good.

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32. Rogov, op. cit., p.3.

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35. S. Rogov admits that since the mid-1980s the military expenses of the US have decreased by about 40 per cent and that President Bush has plans for unilateral, or in parallel with Russia, limitation of the American strategic nuclear arsenal. Furthermore, George W. Bush has expressed doubts about the ‘balance of nuclear terror’ (Rogov, op. cit, pp.5–6).

36. Remarks by the President to Students and Faculty at National Defence University, op. cit.

37. See, e.g., P. Podvig, Start and the ABM Treaty: Is a Compromise Possible, Program on New Approaches to Russian Security Policy Memo Series, April 2000, http://www.fas.har-vard.edu; C. Wallander, Russian Policy and Potential for Agreement on Revising the ABM Treaty, ibid.

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39. Sergei Karaganov, a prominent Russian political analyst, writes: ‘The dilemma is this: If we are to play fourth or even fifth fiddle in the “First World”, trying to secure a foothold on its sidelines, then we should move toward greater economic openness, a relatively liberal economy, and democratic society; rapprochement with the EU; integration into the information community; and maintenance of a good relationship with the United States… This line is feasible but morally difficult. The alternative is to play on the discontent of countries that have fallen by the wayside, trying to knock together a broad, motley coalition which would inevitably be headed by China, Russia coming second, forced to support Beijing in its apparently intensifying rivalry with Washington, including the strategic sphere’ (S. Karaganov, Who Rules the World, Moscow News, 7 Feb. 2001, p.2).

40. J. Rhinelander, op. cit., p.14.

41. Payne, K. B., “The Case for a National Missile Defence” Orbis, Spring 2000.Google Scholar

42. Ibid., p.6.

43. Ibid., p.7.

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51. See, e.g., Nezavisimoe Voennoe Obozrenie, 8 Dec. 2000, p.l. Sergei Karaganov wrote last year that for Russia, because of its current weakness, its nuclear arsenal is the main ground of its political weight and influence. In his opinion, Russia is still listened to in the world 60 per cent because of its nuclear potential, 15 per cent because of its territory and geography, 15 per cent because of its history and 3–4 per cent because of its economy (Moscow News, 15 Dec. 2000, http://www.Russian periodicals online).

52. Chervov, N., Nuclear Vortex: What Was and What will Be, Moscow, Olma-Press, 2000, pp.171–172 (in Russian).Google Scholar

53. See The Concept of National Security of the Russian Federation, Decree of the President of the Russian Federation, 10 Jan. 2000, No. 24.

54. Yavlinsky, G., ‘Umbrella for Europe, Money for Russia, End for Bin Laden’, Argumenty I Facty, 7 March 2001.Google Scholar

55. Ibid.

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57. See, for example, para. 335 of the Restatement of the Foreign Relations Law of the United States, The American Law Institute, 1986, Vol. 1, pp.218–222,Google Scholar

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60. Quoted by Vamvoukos, Ibid., p.67.

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66. Mosse, op. cit, p.191.

67. Vamvoukos, op. cit., p.71.

68. Documents on Foreign Policy of the USSR, Vol. V, Moscow, 1961, p.236 (in Russian).Google Scholar

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71. Quoted by Stern and Carreau, Ibid., p.577.

72. Ibid., p.639.

73. Gabčikovo-Nagymaros case, Judgment, 25 Sept. 1997, para. 104.

74. On 19 Nov. 1999, the members of the CFE Treaty signed the Agreement on the Adaptation of the Conventional Forces in Europe (Agreement on Adaptation) in Istanbul. This Agreement removed the outdated bloc-to-bloc structure of the original Treaty. … Under a special arrangement, Russia can deploy 2,140 armoured combat vehicles in its Zones’, ‘Flank in North West Russia and the North Caucasus (The Military Balance 2000–2001, The International Institute for Strategic Studies, Oxford University Press, 2000, pp.35–36).Google Scholar

75. After the dissolution of the U.S.S.R. on its territory there emerged four (instead of one) independent States which had nuclear weapons on their territory. In accordance with State succession principles, used in the case of dissolution of the USSR, Ukraine, Kazakhstan and Belarus could have become nuclear powers. This, however, would have been contrary to the very object and purpose of the Non-Proliferation Treaty (to limit the number of nuclear States). A Protocol was signed by five States (the US, Russia, Kazakhstan, Ukraine and Belarus) whereby only Russia became a party to the NPT as a nuclear power while Belarus, Kazakhstan and Ukraine joined as non-nuclear States (see Nash, Leich, ‘Contemporary Practice of the United States Relating to International Law: Arms Control and Disarmament’, 86 A.J.I.L. 799–801 (1992).Google Scholar

76. Although State succession and rebus sic stantibus are different international law concepts, there is considerable similarity and even overlap between them. Dissolution or unification of States often fundamentally change circumstances under which treaties were concluded by predecessor States. Implementation of treaties of predecessor States may either become impossible or too burdensome. Even Russia which considered itself to be the State-continuation of the former U.S.S.R. (and not simply one of the successor States) chose to renegotiate some treaty obligations (and rights) because circumstances which had existed when treaties had been concluded had fundamentally changed in many respects.

77. Müllerson, R., ‘The Continuity and Succession of States’, 42 I.C.L.Q. 1993 CrossRefGoogle Scholar; Stern, B., La succession d'Etat, RdC, 1996, tome 261, Martinus Nijhoff Publishers, 2000.Google Scholar

78. The European Court of Justice in June 1998 considered the A. Racke GmbH Co. v. Hauptzollampt Mianz case which involved the 1980 Cooperation Agreement between the EEC and the Socialist Federal Republic of Yugoslavia which was concluded for an unlimited period and provided that the Agreement could be denounced only upon six months' notification. However, the EEC Council suspended the trade concessions provided under the Agreement with immediate effect because of the changed circumstances. The ECJ, agreeing with the Commission, reasoned that ‘the rules of customary international law concerning the termination and the suspension of treaty relations by reason of fundamental change of circumstances are binding upon the Community institutions and form a part of the Community legal order’. And the Court concluded that the Council's assessment that ‘the pursuit of hostilities and their consequences on economic and trade relations constitute a radical change’ was not manifestly erroneous. (93 A.J.I.L. 206 (1999). It is of interest to note that in this case the EEC Council used the rebus sic stantibus clause to suspend a treaty which contained a denunciation clause and the ECJ found that the Council had acted in accordance with customary international law. The ECJ also found that as customary international law does not contain procedural requirements provided for in Article 65 of the Vienna Convention, and since the EEC is not bound by the Convention, the non-observance of these requirements did not prejudice the Community's action.

79. Existing superpower arms-control agreements do not provide, and in principle could not provide, for any impartial third-party dispute settlement. Therefore, my reference to such a body is just hypothetical. It has been correctly observed that ‘international courts and international arbitration have not had, and almost assuredly will not have, any direct role in interpreting arms control obligations of the United States’. ( Rhinelander, J. B. & Wasserman Goodman, S., “The Legal Environment”, in Defending Deterrence, p.64)Google Scholar. The same can be said of the Soviet Union (Russia).

80. In 1987 the Missile Technology Control Regime (MTCR) was initiated to ‘limit the risk of nuclear proliferation by controlling transfers that could make a contribution to nuclear weapons delivery systems other than manned aircraft’. See, e.g., Petersen, C., ‘Moscow, Washington and the Missile Technology Control Regime’, Contemporary Security Policy, vol. 45, 1995 Google Scholar; Pikayev, A., Spector, L., Kirichenko, E., Gibson, R., Russia, the US and the Missile Technology Control Regime, Adelphi Paper 317, International Institute for Strategic Studies, Oxford University Press, 1998.Google Scholar

81. Müllerson, R., ‘Missiles with Non-Conventional Warheads and International Law’, Israel Yearbook on Human Rights, Vol. 27, 1997, pp.225–250.Google Scholar

82. K. Payne, op. cit., p.14.

83. Popov, V.A., ‘The Range of Parity’, Nezavisimoe Voennoe Obozrenie, 12 Jan. 2001, p.3.Google Scholar

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85. Daalder, Goldgeier, Lindsay, op. cit., p.18.

86. Giddens, A., Beyond Left and Right: The Future of Radical Politics, Polity Press, 1996, pp.78–79.Google Scholar

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88. K. Payne, op. cit., pp.12–13.

89. P. Gordon, op. cit, pp.32–33. However, I tend to disagree with Philip Gordon that a modified ABM Treaty should ensure ‘mutual assured destruction and preventing an armed race’. Preventing an armed race – yes, but it is necessary to avoid slipping back to the situation when the whole world was held hostage to the military balance between the two superpowers, especially since today there are no longer two superpowers. While deterrence has always played a role in international politics, ‘mutual assured destruction’, as its specific form, had its rationale not simply in the presence of massive nuclear arsenals but also in the competition of two hostile ideologies. It is not only the character and number of weapons that ensure ‘mutually assured destruction’ but also the hostile relationship between the parties of the equation. Why should the US and Russia remain assured that they can destroy each other and by doing so bring down the whole world?

90. Nezavisimaya Gazeta, 4 May 2001, p.2.

91. Ibid., p.4.

92. Krasnaya Zvezda, 4 May 2001, p.2.

93. SALT Agreements. Communication from the President of the United States, Washington, 13 June, 1972 (file:///A/SALT Agreements.htm)

94. P. Gordon, op. cit., p.30.

95. Ibid., p.18.

96. 34 UNTS 243.

97. See Jennings, R., Watts, A. Oppenheim's International Law, Vol. I, parts 2 to 4, pp.591–599, 633–43.Google Scholar

98. See, Gromyko & Gromyko, op. cit, p.4.

99. National Intelligence Council. Foreign Missile Developments and the Ballistic Missile Threat to the United States Through 2015, September 1999, http://www.cia.gov/cia/publications/nie/nie99msl.html, p.9.

100. Nicholas Barry writes: “China's warnings that it would increase its strategic missile capability would put pressure on India to do the same in order to maintain its minimum deterrence. India realises that to do so would also induce Pakistan to bolster its missile and nuclear programmes in conjunction with Islamabad's traditional military relationship with China” (N. Barry, “U.S. National Missile Defence: Views from Asia”, http:/www. cdi/, p.6).

101. http://ww.cdi.org/weekly/2001/issue10.html.

102. Rogov, op. cit., p.8.

103. Remarks by the President to Students and Faculty at National Defence University, op. cit.

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105. The Independent, 19 March 2001, p.14.

106. Simma, B., From Bilateralism to Community Interest, Recuille des Cours de l'Academie de Droit International, 1994, Vol. VI, Martinus Nijhoff Publishers, p.230.Google Scholar

107. There are many political (i.e. legally non-binding) obligations in the world which are observed by States not less strictly than legally binding treaties. For example, OSCE obligations and the Nato-Russian Founding Act of 1997 are of such nature (See Müllerson, R., Nato Enlargement and the Nato-Russian Founding Act: The Interplay of Law and Politics, I.C.L.Q., 1998, Vol. 47 Google Scholar, No. 1). Although such political obligations usually stem from written documents for States which have signed them, there seems to be no reason why political obligations cannot arise from acts of behaviour (like, e.g., customary international law) which other States have started to rely upon.