Constitutionality of Legislative Provision Regarding ABM

Treaty

There are serious doubts as to the constitutionality o f a provision of a bill stating that the United 

States shall not be bound by any international agreement entered into by the President that would 

substantively modify the Antiballistic Missile Treaty with the Soviet Union, including any agreement that would add other countries as signatories or convert that bilateral treaty into a multilateral 

treaty, unless the agreement is entered pursuant to the President’s treaty making power. The provision intrudes on the Executive’s exclusive constitutional powers to interpret and execute treaties 

and to recognize foreign States.

June 26, 1996

M e m o r a n d u m O p i n i o n f o r t h e C o u n s e l t o t h e P r e s i d e n t

You have asked for our views on section 233(a) of S. 1745, the Department 

of Defense Authorization Act for Fiscal Year 1997, relating to the Antiballistic 

(“ ABM ” ) Treaty with the former Soviet Union, Treaty on the Limitation of AntiBallistic Missile Systems, May 26, 1972, U.S.-U.S.S.R., 23 U.S.T. 3435. Section 

233(a) reads:

(a) Fiscal Year 1997. — During fiscal year 1997, the United 

States shall not be bound by any international agreement entered 

into by the President that would substantively modify the ABM 

Treaty, including any agreement that would add one or more countries as signatories to the treaty or would otherwise convert the treaty from a bilateral treaty to a multilateral treaty, unless the agreement is entered pursuant to the treaty making power of the President under the Constitution.

Section 233(a) raises serious constitutional questions. It is “ a basic principle 

of our constitutional scheme that one branch of the Government may not intrude 

upon the central prerogatives of another.” Loving v. United States, 517 U.S. 748, 

757 (1996); see also Commodity Futures Trading Comm’n v. Schor, 478 U.S. 

833, 850 (1986). It follows that Congress may not hamper or curtail the prerogatives that the Constitution commits exclusively to the executive branch. See Morrison v. Olson, 487 U.S. 654, 694 (1988); Bowsher v. Synar, 478 U.S. 714, 726 

(1986). We have serious doubts about the constitutionality of section 233(a), given 

that it intrudes on two exclusively Executive prerogatives: the power to interpret 

and execute treaties, and the power of recognition.

1. The dissolution of the former Soviet Union during the autumn and winter 

of 1991 required the United States to re-evaluate the bilateral treaties that had

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existed between the Soviet Union and itself, including the ABM Treaty.1 Both 

President Bush and President Clinton operated on the general principle that the 

treaty rights and obligations of the former Soviet Union had passed to the successor States,2 unless the terms or the object and purpose of the treaty required 

a different result. As the Legal Adviser to the State Department during the Bush 

Administration explained,

[a]s an operating principle, agreements between the United States 

and the USSR that were in force at the time of the dissolution of 

the Soviet Union have been presumed to continue in force with 

respect to the former republics. What is the legal basis for adopting 

this position? Except for the Baltic states, which the United States 

never recognized as part of the Soviet Union, we regarded the emergence of Russia and the other former republics to have stemmed 

from what was essentially the complete breakup of the Soviet 

Union. Thus, continuity of treaty relations is supported by our reading of state practice, and by the policy considerations underlying 

this rule. Perhaps most importantly, however, continuity has been 

supported by the republics themselves, who affirmed this approach 

in the Alma Ata Declaration when they guaranteed the “ fulfillment 

of international obligations stemming from the treaties and agreements of the former U.S.S.R.”

Edwin D. Williamson and John E. Osborn, A U.S. Perspective on Treaty Succession and Related Issues in the Wake o f the Breakup o f the USSR and Yugoslavia,

33 Va. J. Int’l L. 261, 264-65 (1993).

Congress was well aware that the executive branch was conducting discussions 

with Russia and several other successor States regarding their rights and obligations under the ABM Treaty, and it twice “ urged” the President to pursue such 

discussions on particular topics. See Missile Defense Act of 1991, Pub. L. No. 

102-190, § 233(c), 105 Stat. 1321, 1322, reprinted as note to 10 U.S.C. §2431;

1 The former Soviet Government recognized the independence of the Baltic States of Estonia, Latvia, and Lithuania 

on September 6, 1991. O n December 8, 1991, the Republics of Ukraine, Belams, and Russia formally declared 

that the Soviet Union had disintegrated, and announced the formation of the Commonwealth of Independent States. 

In an Address to the Nation on December 25, 1991, President Bush announced that ‘‘the United States recognizes 

and welcomes the emergence of a free, independent, and democratic Russia .... Our Embassy in Moscow will 

remain there as our Embassy to Russia. . . . [T]he United States also recognizes the independence of Ukraine, 

Armenia, Kazakhstan, Byelarus [sic], and Kyrgyzstan, all States that have made specific commitments to us. We 

will move quickly to establish diplomatic relations with these States and build new ties to them. . . . [T]he United 

States also recognizes today as independent States the remaining six former Soviet Republics: Moldova, 

Turkmenistan, Azerbaijan, Tadjikistan, Georgia, and Uzbekistan. W e will establish diplomatic relations with them 

when we are satisfied that they have made commitments to responsible security policies and democratic principles, 

as have the other States we recognize today.” 2 Pub. Papers o f George Bush 1654 (1991). See generally Paul 

R. Williams, The Treaty Obligations o f the Successor States o f the Former Soviet Union. Yugoslavia, and Czechoslovakia: Do They Continue in Force?, 23 Denv. J. Int’l L. & Pol'y 1, 3, 24-25 (1994).

2 References to the “ successor States” and the like should not be understood to include the Baltic States, whose 

conquest by the Soviet Union the United States had refused to recognize.

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National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, 

§ 232(c), 107 Stat. 1547, 1593 (1993).

The United States’s presumption that the successor States are generally subject 

to our bilateral treaties with the former Soviet Union is rooted, not only in the 

United States’s past diplomatic practice, but in its understanding of international 

law.3 In a May 10, 1995, diplomatic note to the Government of Ukraine, the 

United States took as its point of departure the “ continuity principle” of article

34 of the Vienna Convention on Succession of States in Respect of Treaties, Aug. 

22, 1978, 17 I.L.M. 1488, 1509, which reads in relevant part:

1. When a part or parts o f the territory of a State separate to form 

one or more States, whether or not the predecessor State continues 

to exist:

(a) any treaty in force at the date of the succession of States 

in respect of the entire territory of the predecessor State continues 

in force in respect of each successor State so formed ....

The State Department informs us that the resolution of succession questions 

after the dissolution of a State has been regarded as a function of the executive 

branch, and that many executive agreements have been concluded that recognized 

the succession of new States to the treaty rights and obligations of their predecessors. Furthermore, the State Department advises us, such agreements have not 

been regarded as treaty amendments or as new treaties requiring Senate advice 

and consent, but rather as the implementation of existing treaties.

2. It belongs exclusively to the President to interpret and execute treaties. This 

is a direct corollary of his constitutional responsibility to “ take Care” that the 

laws are faithfully executed. See U.S. Const, art. II, §3; Goldwater v. Carter,

444 U.S. 996, 1000 n.l (1979) (Powell, J., concurring in judgment) (President 

has “ duty to execute” treaty provisions).4 As the Congressional Research Service 

has stated, “ [t]he executive branch has the primary responsibility for carrying 

out treaties and ascertaining that other parties fulfill their obligations .... The 

executive branch interprets the requirements of an agreement as it carries out its 

provisions.” Treaties and Other International Agreements: The Role o f the United

States Senate, 103d Cong, at xxiv-xxv (1993). (A Study prepared for the Senate 

Comm, on Foreign Relations) (“ CRS Study” ).

3 In an older but still pertinent formulation, “ [a] state formed by separation from another, whether the personality 

of the original state still exists or is completely lost by disintegration, succeeds to such treaty burdens of the parent 

state as are permanent and attached to the territory embraced in the new state.” Samuel B. Crandall, Treaties:

Their Making and Enforcement 434 (1916).

4 See also Constitutionality o f Proposed Conditions to Senate Consent to the Interim Convention on Conservation

o f North Pacific Fur Seals, 10 Op. O.L.C. 12, 14-15, 17 (1986).

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Constitutionality o f Legislative Provision Regarding ABM Treaty

The responsibility to interpret and carry out a treaty necessarily includes the 

power to determine whether, and how far, the treaty remains in force. Again, 

we cite the Congressional Research Service:

there is clear judicial recognition that the President may without 

consulting Congress validly determine the question whether specific 

treaty provisions have lapsed. The following passage from Justice 

Lurton’s opinion in Charlton v. Kelly [229 U.S. 447, 473-76 

(1913)] is pertinent: “ If the attitude of Italy was, as contended, 

a violation of the obligation of the treaty, which, in international 

law, would have justified the United States in denouncing the treaty 

as no longer obligatory, it did not automatically have that effect.

If the United States elected not to declare its abrogation, or come 

to a rupture, the treaty would remain in force. It was only voidable, 

not void; and if the United States should prefer, it might waive 

any breach which in its judgment had occurred and conform to its 

own obligation as if there had been no such breach. . . . That the 

political branch of the Government recognizes the treaty obligation 

as still existing is evidenced by its action in this case. . . . The 

executive department having thus elected to waive any right to free 

itself from the obligation to deliver up its own citizens, it is the 

plain duty of this court to recognize the obligation to surrender the 

appellant as one imposed by the treaty as the supreme law of the 

land as affording authority for the warrant of extradition.”

The Constitution o f the United States o f America: Analysis and Interpretation,

S. Doc. No. 99-16, at 518 (1987). Cases both before and after Charlton v. K elly

regard the Executive’s views as determining whether and to what extent treaties 

remain in effect. See, e.g., Trans World Airlines, Inc. v. Franklin M int Corp.,

466 U.S. 243, 253 (1984); Kolovrat v. Oregon, 366 U.S. 187, 190 n.4 (1961); 

Terlinden v. Ames, 184 U.S. 270, 286-90 (1902); Restatement (Third) o f the F oreign Relations Law o f the United States §208, Reporters’ Note 5 at 102 (1987). 

Hence, “ [u]nder the law of the United States, the President has the power . . . 

to elect in a particular case not to suspend or terminate” a treaty. Id. § 339(c).

Accordingly, in circumstances in which a State that was a party to a bilateral 

treaty with the United States has been dissolved, the President must determine, 

in executing the treaty, whether and how far it remains in force, whether another 

State or States have succeeded to it, and whether their actions do or do not constitute compliance with its terms. In this instance, the President has determined 

that the ABM Treaty’s obligations should be imputed to the Soviet Union’s successor States, including Russia. Congress may not interfere with or direct the 

President’s interpretation and execution of a treaty any more than it may do so

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in the case of a statute. Under the proposed legislation, however, Congress appears 

to be impermissibly interfering in the President’s discharge of those responsibilities with respect to the ABM Treaty, thus violating separation of powers principles. See Nixon v. Administrator o f Gen. Servs., 433 U.S. 425, 443 (1977).

We are aware that the Senate Committee on Foreign Relations, in its Report 

on the Intermediate Range Nuclear Forces Treaty, maintained that it is a constitutional requirement that “ [t]he meaning of a treaty is to be determined in light 

of what the Senate understands the Treaty to mean when it gives its advice and 

consent.” CRS Study at 95. While we have not been able to review the entire 

record of the Senate’s ratification of the ABM Treaty, we would point out that 

the treaty was adopted against a background of diplomatic practice by the United 

States and other nations, and that “ where a state divides into its constituent parts, 

the [diplomatic] practice supports the continuity of existing treaty rights and obligations.” 5 Although the dissolution of the Soviet Union was not likely to have 

been contemplated when the ABM Treaty was ratified, insofar as the Senate may 

be taken to have had an understanding of what the treaty would mean in such 

circumstances, that understanding would have been informed by the pattern of 

diplomatic practice in similar contingencies. Thus, we do not believe that the executive branch’s interpretation of the ABM Treaty contradicts the Senate’s understanding at the time of ratification.6

The Senate Foreign Relations Committee also maintained that it is constitutionally required that ‘ ‘ [t]he President may not amend a treaty without the agreement of the parties and the advice and consent of the Senate.” CRS Study at 

95. Section 233(a) appears to be designed to apply this principle to the ABM 

Treaty, by deeming “ any agreement that would add one or more countries as 

signatories to the treaty or [that] would otherwise convert the treaty from a bilateral treaty to a multilateral treaty” to constitute a “ substantive[ ] modif[ication]” 

of the treaty.

We would take issue with the proposition that the inclusion of other Soviet 

successor States along with the United States and Russia as parties to the ABM 

Treaty would necessarily comprise a substantive modification of that treaty, such 

as to require Senate advice and consent. We think this in part because of the 

international law and general diplomatic practice regarding successorship, and in 

part because, even without the addition of Ukraine, Belarus, Kazakhstan, and possibly other successor States, the ABM Treaty will remain in effect as between

5 W illiamson and Osborn, supra at 263. For example, treaty obligations were found to be continuous in the cases 

o f the dissolution of the following States: the Greater Colombian Union, which broke up into Colombia, Ecuador, 

and Venezuela; the union of Norway and Sweden, dissolved in 1905; the separation of Austria and Hungary upon 

the dissolution of the Austro-Hungarian Empire following W orld War I; and the separation of Syria from Egypt 

after the dissolution o f the United Arab Republic. Id.

6 Post-ratification interpretations of a treaty by the Senate have no special authority. In Fourteen Diamond Rings

v. United States, 183 U.S. 176, 180 (1901), the Court, in ignoring a Senate resolution that sought to clarify the 

customs status o f an American territory under a treaty of peace, stated that ‘‘[t]he meaning of the treaty cannot 

be controlled by subsequent explanations o f some of those who may have voted to ratify it.”

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the United States and Russia. Thus, although some changes in the administration 

of the ABM Treaty may be entailed by the inclusion of other successor States 

as parties, we do not see why their inclusion must be considered a matter of 

“ substantively modifying,” as distinct from “ interpreting” and “ implementing,” 

the treaty. If the changes do not rise to the level of substantive modifications, 

then to insist that the proposed executive agreements be submitted to the Senate 

for its advice and consent would appear to intrude on the President’s exclusive 

authority to interpret and implement treaties.

3. Section 233(a) also raises a serious constitutional question with respect to 

the President’s recognition power.

It is by now firmly established that the power of recognition is exclusively Executive in character. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 

(1964) (“ Political recognition is exclusively a function of the Executive.” ).7 It 

is also established that the Executive’s recognition authority “ includes the power 

to determine the policy which is to govern the question of recognition.” United

States v. Pink, 315 U.S. 203 , 229 (1942). Thus, incident to the recognition of 

a foreign State, the President may “ without the consent of the Senate, . . . determine the public policy of the United States with respect to the [previously unrecognized government’s] nationalization decrees,” id:, or he may unilaterally abrogate a mutual defense treaty with a government that he is derecognizing while 

recognizing another in its stead, see Goldwater v. Carter, 444 U.S. at 1007 (Brennan, J., dissenting). A presidential decision to recognize, or not to recognize, a 

foreign State or government is binding upon the other organs of the Federal Government: for instance, “ [i]t has long been established that only governments recognized by the United States and at peace with us are entitled to access to our 

courts, and that it is within the exclusive power of the Executive Branch to determine which nations are entitled to sue.” Pfizer, Inc. v. Government o f India, 434 

U.S. 308, 319-20 (1978). In sum, the President’s recognition authority is not only 

exclusive, but broad.

The question of determining which States are the “ successors” to a State that, 

like the former Soviet Union, has been completely dissolved, is a matter for the 

President alone to determine in the exercise of his recognition authority. Moreover, 

we believe, in determining which States are the successors of a dissolved State, 

the President may also determine which of the successors are bound by the former

1 See also id. at 461 & n.20 (While, J., dissenting), United States v. Belmont, 301 U.S. 324, 330(1937), Goldwater

v. Carter, 444 U.S. at 1007 (Brennan, J., dissenting); Can v. United States, 14 F.3d 160, 163 (2d Cir. 1994); Phelps

v. Reagan, 812 F.2d 1293, 1294 (10th Cir 1987); Americans United for Separation o f Church and State v. Reagan, 

786 F.2d 194, 202 (3d Cir.), cert, denied, 479 U.S. 914 (1986); Restatement (Third) o f the Foreign Relations Law

o f the United States §204 (“ [T]he President has exclusive authority to recognize or not to recognize a foreign 

state or government, and to maintain or not to maintain diplomatic relations with a foreign government.'*); Section

609 o f the FY 1996 Omnibus Appropriations Act, 20 Op. O.L.C. 189, 193-96 (1996). Bill to Relocate United States

Embassy From Tel Aviv to Jerusalemt 19 Op. O.L.C. 123, 124-26 (1995); Memorandum for the Attorney General, 

from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Diplomatic Relations with the

Vatican at 4*5 (Jan. 6, 1984); Statement o f Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, 

Re: Executive Agreements (S. 1251 and S. 632), Before the Subcomm. on Separation of Powers, Senate Comm, 

on the Judiciary at 13 (May 15, 1975).

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State’s treaty obligations towards the United States, and the extent to which they 

are so bound. The power to recognize newly emergent States formed from a 

State’s dissolution thus encompasses the power to determine the treaty consequences of their successorship to the parent State.

One of the elements of the recognition of these newly emergent States was 

and is their succession to applicable Soviet treaties. By purporting to determine 

that the addition of these successor States to the ABM Treaty would constitute 

an amendment to that treaty requiring the advice and consent of two-thirds of 

the Senate, the proposed legislation would act in derogation of the President’s 

recognition power. Because the recognition power is exclusively Presidential, it 

is doubtful that Congress may take that step.

WALTER DELLINGER 

Assistant Attorney General

Office of Legal Counsel

252