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**QUESTION. Won't a decision to deploy a national missile defense system undermine arms control, including the 1972 Anti-Ballistic Missile Treaty?**

On the contrary, the decision to move forward with a defensive system is more likely to spur meaningful arms control. The greatest progress in arms control was achieving during the late 1980s and early 1990s, when our national leaders appeared most determined to deploy a defensive system. The decision to deploy a robust national missile defense will require us to move beyond the 1972 Anti-Ballistic Missile Treaty. This Cold War fossil should no longer be considered an impediment to deploying a defensive system because it is no longer legal binding. This conclusion, detailed in a comprehensive legal study prepared for The Heritage Foundation by the law firm of Hunton & Williams in 1998, has been endorsed by numerous legal and foreign policy experts, including former Secretary of State Henry Kissinger, an architect of the original treaty.

**QUESTION: Won't letting the ABM Treaty lapse ruin relations with the Russians and make the threat worse?**

No. U.S.-Russian relations are influenced by many political and economic factors quite apart from the status of the ABM Treaty. In any event, we already face the danger of accidental or unauthorized missile launches from an increasingly unstable Russia. Allowing the ABM Treaty to lapse will not ruin relations with Moscow. Revealingly, Russia has opposed Western policy initiatives on many fronts that have nothing to do with the ABM issue, including, for example, NATO enlargement. While Russia's political future remains uncertain, our leaders have a duty to protect us from missile threats, whatever their source.

**QUESTION: Why spend money on protecting ourselves from hostile missiles when terrorist might try to sneak nuclear, biological, or chemical weapons into the our country in a suitcase?**

The possibility of a terrorist strike on our soil is no reason to leave our country naked to the threat of missile attack. Opponents of national missile defense often exploit the suitcase bomb threat as a red herring. Tellingly, their concerns about terrorism seem to arise only in the context of opposing a national missile defense. Taking the missile threat seriously does *not* imply that the terrorist threat is somehow unimportant. A homeowner aiming to deter Burglars would not take pains to lock the doors and yet deliberately leave the windows wide open. Our country needs to defend against a full range of lethal threats, whether they arise from suitcase-toting terrorists or ballistic missiles tipped with deadly weapons.

**QUESTION: Given that there is no such thing as a "perfect" defense against hostile missiles, why build one in the first place?**

The perfect defense argument is a red herring used by those who remain unalterably opposed to protecting ourselves against hostile missiles. If perfection

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were the standard by which all military programs were judged, then our country would never be able to deploy any programs whatsoever. A perfect defense is not necessary to dissuade aggression. An enemy contemplating a missile attack on our country would still face grave uncertainties even if confronted by, say, a defense that were 75 percent effective. The potential attacker could not be sure how many missiles would get through or what targets they would destroy; unknowns such as these strengthen deterrence. Moreover, if an irrational actor decided to attack our country after all, an imperfect defense would be preferable to no defense whatsoever.

**QUESTION: Wouldn't a national missile defense be vulnerable to cheap countermeasures, such as decoy warheads?**

No. A properly designed system should be able to anticipate and neutralize potential countermeasures. For example, a defensive system that can intercept enemy missiles shortly after liftoff will allow the destruction of these missiles *before* they can release individual warheads and decoys. By exploiting our impressive technological advantages, we should be able to deploy a defensive system that can anticipate and offset a wide range of potential countermeasures.

**QUESTION: Why should national missile defense be considered a moral issue?**

Our government's first duty is to provide for the common defense. A policy that purposely leaves us vulnerable to attack, when technologies capable of protecting us show great promise, is immoral. Moreover, if a state attacked us with missiles, the President would have no alternative but to retaliation, which would likely result in the deaths of many innocent lives, or to capitulate. Deploying a defensive system to protect us from hostile missiles presents a morally sound alternative between these two extremes. As President Reagan emphasized in his initial SDI speech in 1983, it is better to have a policy based on "saving lives rather than avenging them."

AUTHORS

Douglas J. Feith and George Miron practice
law in the Washington, D.C. firm of Feith &
Zell, P.C. (2300 M Street, NW, Suite 600,
Washington, DC 20037).

Mr. Feith serves as Chairman of the Board of
the Center for Security Policy. During the
Reagan Administration, he was Deputy
Assistant Secretary of Defense for
Negotiations Policy and a member of the
White House National Security Council staff.

Mr. Miron served in the Antitrust Division of
the U.S. Department of Justice and in the
Office of the Solicitor of the U.S.
Department of the Interior.

[cc]

<table>
  <tbody>
    <tr>
      <td></td>
      <td>maintain in force the non-dispositive treaties of extinct States</td>
      <td>45</td>
    </tr>
    <tr>
      <td>5.</td>
      <td>The U.N. Security Council Decision not to oppose giving the Russian Federation veto power does not evidence customary international law because the decision was not required by international law</td>
      <td>45</td>
    </tr>
    <tr>
      <td>G.</td>
      <td>The 1978 Vienna Convention on Succession of States in Respect of Treaties Does Not Resolve Any ABM Treaty Question Because The United States Is Not a Party to The Vienna Convention And Conventions Do Not Bind Non-Parties</td>
      <td>47</td>
    </tr>
    <tr>
      <td>H.</td>
      <td>Article 34.1 of the 1978 Vienna Convention Does Not Reflect a Rule That Has Passed into Customary International Law</td>
      <td>47</td>
    </tr>
    <tr>
      <td>I.</td>
      <td>The Continuation Principle of the 1978 Vienna Convention Would Not Apply to the ABM Treaty Vis-a-vis the Russian Federation Because the Continuation of the Treaty Would Conflict with the Treaty's Object and Purpose</td>
      <td>50</td>
    </tr>
    <tr>
      <td>J.</td>
      <td>The ABM Treaty Did Not Become a Treaty Between the United States and the Russian Federation by Devolution</td>
      <td>51</td>
    </tr>
    <tr>
      <td>K.</td>
      <td>The ABM Treaty Was Not a Dispositive Treaty</td>
      <td>52</td>
    </tr>
    <tr>
      <td>1.</td>
      <td>The ABM Treaty did not create a legally recognizable interest in any State other than the Treaty parties</td>
      <td>52</td>
    </tr>
    <tr>
      <td>2.</td>
      <td>The ABM Treaty did not evidence an intent to restrict either treaty party's use of particular territory beyond the time that the Treaty was to be in force</td>
      <td>53</td>
    </tr>
    <tr>
      <td>V.</td>
      <td>CONCLUSION</td>
      <td>55</td>
    </tr>
    <tr>
      <td></td>
      <td>TABLE OF AUTHORITIES</td>
      <td>57</td>
    </tr>
  </tbody>
</table>

v

MEMORANDUM OF LAW

DID THE ABM TREATY OF 1972 REMAIN IN FORCE
AFTER THE USSR CEASED TO EXIST IN DECEMBER 1991

AND

DID IT BECOME A TREATY BETWEEN
THE UNITED STATES AND THE RUSSIAN FEDERATION?

by

George Miron and Douglas J. Feith

I. INTRODUCTION

This Memorandum concludes that, following the extinction of the Union of Soviet Socialist Republics ("USSR"), the Anti-Ballistic Missile ("ABM") Treaty of 1972 did not become a treaty between the United States and the Russian Federation. Rather, as a bilateral, non-dispositive treaty, the ABM Treaty of 1972 between the United States and the USSR 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" ("CIS") and proclaimed that the USSR "as a subject of international law and a geopolitical reality no longer exists." By December 21, 1991, the list of States belonging to the CIS and subscribing to the view that, with the CIS's establishment, "the Union of Soviet Socialist Republics ceases to exist" comprised Azerbaijan, Armenia, Belarus, Kazakhstan, Kyrgyzstan, Moldova, the Russian Federation, Tajikistan, Turkenistan, Ukraine and Uzbekistan. Soon thereafter, the United States acknowledged that the USSR "is no more."

In recent centuries, instances in which States have ceased to exist have not been numerous. The United States has officially expressed its view that, upon the extinction of a State, such State's bilateral political treaties automatically lapse, and 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 a 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 or "fall to the ground." 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 "where there is no treaty and no controlling executive or legislative act or judicial decision," works of international legal scholars are acceptable as evidence of the law.

President William Clinton has taken the view that the ABM Treaty of 1972 remains "in force." Representative Ben Gilman, Chairman of the House Committee on International Affairs, asked President Clinton in a June 1997 letter which State, if any, does the United States believe is now its ABM Treaty partner. President Clinton in November 1997 replied that the "succession" issue is "unsettled," adding:

> Neither a simple recognition of Russia as the sole ABM successor (which would have ignored several former Soviet states with significant ABM interests) nor a simple recognition of all NIS [newly independent states] as full ABM successors would have preserved fully the original purpose and substance of the Treaty, as approved by the Senate in 1972.

Representative Gilman and Senator Jesse Helms, Chairman of the Senate Foreign Relations Committee, wrote President Clinton in March 1998 and stated that, if the Administration cannot now identify any country in addition to the United States that is bound by the treaty, then Congress would have to conclude that the treaty is no longer in force. In May 1998, President Clinton replied that the ABM Treaty is in force between the United States and the Russian Federation. He did not state the principle of law on which he based this conclusion. Nor did he explain how this conclusion can be squared with his November 1997 response to Representative Gilman.

## A. Assistant Attorney General Dellinger's Paper

The most extensive publicly available discussion of the ABM Treaty's current legal status produced by a Clinton Administration official is in the June 29, 1996 memorandum from Walter Dellinger, Assistant

Attorney General, Office of Legal Counsel, to Presidential Counsel Jack
Quinn (“Dellinger Paper”). The Dellinger Paper contends that as a matter
of international law the ABM Treaty did not lapse, for these reasons: (i)
The Treaty imposed a permanent burden on the parties’ respective
territories, which would bring the ABM Treaty of 1972 within the
international legal doctrine of “dispositive” treaties (a treaty is dispositive if
it irrevocably fixes a right to particular territory, e.g. it delineates a border
between two States),¹ (ii) U.S. past diplomatic practice assumes that
bilateral treaties “generally” survive a State’s extinction, and (iii) Article
34 of the 1978 Vienna Convention on Succession of States in Respect of
Treaties embodies a general principle of law that bilateral treaties survive a
State’s extinction. This Memorandum concludes that the Dellinger Paper
is incorrect regarding international law and specifically refutes the three
foregoing bases for the contention that the ABM Treaty of 1972 did not
lapse.

A.A.G. Dellinger separately argues that irrespective of
international law, the President can bring a treaty into existence without
Senate consent by exercise of “exclusive” Executive powers. As this
Memorandum shows, however, the President has no power to bring a
treaty into existence without Senate consent.

B. *Methodology and Scope of this Memorandum*

After addressing erroneous Constitutional law assertions in the
Dellinger Paper, this Memorandum examines the sources of international
law bearing on the question of whether, upon the USSR's extinction, the
ABM Treaty became a treaty between the United States and the Russian
Federation. This analysis does not describe the principles of international
law that govern the question of whether a party to a treaty in force has
grounds to terminate that treaty.² Nor does it describe the rules of
international law for allocating the assets, the debt or the archives of a
State that has become extinct. Those rules, parts of the law of "State
succession," do not resolve the question of how a State's extinction affects
what had been that State's bilateral treaties. For example, although the
United Nations and the European Community have declared that no State
is a continuation of the Social Federal Republic of Yugoslavia ("SFRY"),

¹ The concept of dispositive treaties is elaborated infra Part IV.K.

² Grounds for termination of a treaty include the other party's breach or fraud, and a fundamental change of circumstances that defeats the treaty's object and purpose (the latter is referred to as the doctrine of rebus sic standibus).

they nonetheless expect the successor States of the extinct SFRY to bear
portions of the SFRY's debt (in proportions to be determined by a
continuing conference of the successor States that is called the "Brussels
Process"³).

This Memorandum attempts to describe international law as it
would be understood by a disinterested judicial tribunal resolving a dispute
between two States as to whether a particular treaty is in force between
them. This analysis assumes that the tribunal would (i) decide for itself the
relevant questions of fact and law and (ii) give the parties' contentions the
weight they deserved but would not be bound by these contentions.

³ The Brussels Process is described in Declaration of Christopher R. Hill, Director, Office of South Central European Affairs, United States Department of State, filed in *Federal Republic of Yugoslavia v. Park-71st Corp.*, No. 95 Civ. 3659 (AGS) (S.D.N.Y.) (Sept. 21, 1995), *complaint dismissed*, 913 F.Supp. 191 (S.D.N.Y. 1995) (App. 1). See also *The Ottoman Debt Arbitration* (1925), I.R.I.A.A. 529 (debt of the dissolved Ottoman Empire); *Administration of Finances v. Ornstein*, Ann. Dig. 75 *Roumanian Court of Cassation, Third Chamber* (1926) (debt of a successor of the Austro-Hungarian Empire); *RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES* § 209 (1986); P. K. MENON, *THE SUCCESSION OF STATES IN RESPECT TO TREATIES, STATE, PROPERTY, ARCHIVES AND DEBT* 158-201 (1991); PARRY AND GRANT, *ENCYCLOPEDIC DICTIONARY OF INTERNATIONAL LAW* 279 (1986); Thomas Baty, *Division of States: Its Effect on Obligations* 9 TRANSACTIONS OF THE GROTIUS SOCIETY, PROBLEMS OF WAR AND PEACE 119, 121-26 (1923) (published on behalf of the British Institute of International and Comparative Law (1962)); ARTHUR BERRIDALE KEITH, *THE THEORY OF STATE SUCCESSION WITH SPECIAL REFERENCE TO ENGLISH AND COLONIAL LAW* 99-100 (1907).

C. *Summary of Conclusions*

The pertinent sources of international law support the conclusion that, upon the USSR's extinction, the ABM Treaty lapsed, so it no longer has the force of international law. This conclusion is based on the following observations:

1. In December 1991, as accurately characterized by declarations of the CIS States and of the United States, the changes that had recently occurred on what had been the USSR's territory caused the USSR, by operation of law, to cease to exist as a State - that is, such changes brought to an end the international legal personality of the USSR.

2. The ABM Treaty of 1972 was a bilateral treaty.

3. The opinions of recognized scholars constitute evidence of customary international law in a case in which there is (a) no controlling judicial decision, (b) no controlling State practice and (c) no otherwise controlling treaty.

4. Scholars are 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, such bilateral treaties lapse.

5. 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 U.S. practice is generally consistent with the scholars' view.

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

5

7. The 1978 Vienna Convention on Succession of States in Respect of Treaties does not bind the United States because the United States is not a party to the Convention.

8. That 1978 Convention in any event would not impose the ABM Treaty on the United States because the imposition would be incompatible with the ABM Treaty's object and purpose.

9. Article 34.1 of the 1978 Vienna Convention on the succession of States in Respect of Treaties has not passed into customary international law.

10. The ABM Treaty did not become a treaty between the United States and the Russian Federation by devolution.

11. The ABM Treaty was not a dispositive treaty.

## II. U.S. CONSTITUTION

This Memorandum deals primarily with the international law issues relating to the current legal status of the ABM Treaty of 1972. As the Dellinger Paper, however, puts forward a combination of international law and U.S. Constitutional law arguments, it is necessary to say why Dellinger's Constitutional law contentions are erroneous.

The Dellinger Paper asserts that, regardless of whether under international law the ABM Treaty of 1972 became a treaty with the Russian Federation, an ABM treaty was brought into existence by agreement of the Russian Federation and the President of the United States, notwithstanding the absence of U.S. Senate advice and consent. Dellinger contends that the terms of what he argues is an ABM treaty between the United States and the Russian Federation are not so different from those of the ABM Treaty of 1972 as to constitute a substantive amendment of the latter. Dellinger does not argue that an amendment to the ABM Treaty could have been Constitutionally accomplished by an "Executive Agreement" — that is, by an agreement that would not have required Senate action. Rather, he cites powers — i.e., to interpret treaties, to implement treaties, and to recognize the existence of foreign States — that he asserts rest "exclusively" with the President. Dellinger also seems to argue that the Senate is imputed with knowledge of the breadth (as

6

Dellinger understands it) of Presidential power vis-a-vis treaty-making, and therefore that, when the Senate consents to a treaty, it implicitly authorizes later Presidents to decide without further Senate consent whether the treaty should become a treaty with a successor to the extinct State with which the treaty had been made.

Dellinger's interpretation of the Constitution here is flawed and the
principal errors are:

(i) Treaties, like statutes, are the supreme law of the land – under the United States Constitution, Art. VI. Cl. 2⁴ – and, as a consequence: "[T]he courts have authority to construe treaties...."⁵ Therefore, the Constitution vests in U.S. courts the authority to interpret treaties definitively. In exercising that authority, courts say they give great weight to interpretations suggested by the Executive Branch,⁶ but the courts are not bound by those suggestions and have on occasion rejected them.⁷

⁴ U.S. CONST. art. VI, cl. 2. *See Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829); United States v. Schooner Peggy, 5 U.S. (1 Cranch.) 103 (1801); British Caledonian Airways Ltd. v. Bond, 665 F.2d 1153, 159-62 (D.C. Cir. 1981); Kenneth C. Randall, *The Treaty Power*, 51 OHIO ST. L.J. 1089, 1110-12 (1990).*

⁵ *Japan Whaling Ass'n v. American Cetacean Society, 478 U.S. 221, 229 (1986), citing Baker v. Carr, 369 U.S. 186, 217 (1969), as holding that "courts have authority to construe treaties and executive agreements."* Doe v. Braden, 57 U.S. (16 How.) 635, 657 (1853); Valentine v. United States, 299 U.S. 5, 11 (1936); Xerox Corp. v. United States, 41 F.3d 647, 652 (1995); Alcan Aluminum Corp. v. United States, 986 F. Supp. 1436, 1440 (Ct. Int'l Trade 1997), Snap-On Tools, Inc. v. United States, 26 Cl. Ct. 1045, 1064 (Cl. Ct. 1997); Coplin v. United States, 6 Cl. Ct. 115, 124 (Cl. Ct. 1984); United States v. Busby, 1996 WL 927938 (N.M. Ct. Crim. App.) *3 (1996). For a discussion of the principles courts use in interpreting treaties, see James C. Wolf, *The Jurisprudence of Treaty Interpretation*, 21 U.C. DAVIS L. REV. 1023 (1988). Wolfe provides a list of 65 Supreme Court decisions interpreting treaties, from 1795 to 1988. *Id.* at 1025 n.14.

⁶ *United States v. Stuart, 489 U.S. 353, 369 (1989); Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180-85 (1982); Kolovrat v. Oregon, 366 U.S. 187, 194-95 (1961); The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71 (1821); Air Canada v. United States Dept. of Transportation, 843 F.2d 1483, 1487 (D.C. Cir. 1988).*
*See also Military Payment Orders and Certificates Issued to Prisoners of War-Treaty Interpretation Claims Before and Subsequent to Treaty, 38 Comp. Gen. 7, 8 (B-136066, July 7, 1958) (“When there is a doubt as to the meaning of a treaty provision, the construction of the treaty by the political department of the government, while not conclusive, is given weight.”); Sullivan v. Kidd, 254 U.S. 433, 442 (1920) (“While the question of the construction of treaties is judicial in nature, . . . the construction placed upon the treaty . . . by the Executive Department . . . should be given much weight.”).*

⁷ David J. Bederman, *Revivalist Canons and Treaty Interpretation*, 41 U.C.L.A. L. REV. 953, 962 (1994). *See also Chan v. Korean Air Lines, Ltd.*, 490 U.S. 122, 133-34 (1989) (Court rejects Executive Branch interpretation of Article of the Warsaw Convention for the Unification of Certain Rules Relating to International Transportation By Air); Perkins v. Elg, 307 U.S. 325, 334-41 (1939) (Court rejects State Department interpretation of treaty between United States and Sweden relating to citizenship and naturalization); Haitian Centers Council, Inc. v. McNary, 969 F.2d 1350, 1361-65 (2nd Cir. 1992), cert. granted, judgment vacated as moot, Sale v. Haitian

7

Perhaps the most celebrated case of judicial rejection of an
Executive Branch treaty interpretation is *United States v. Libellants and Claimants of the Schooner Amistad*,ª the subject of the motion picture
“Amistad.” In that case, inhabitants of Africa who had been kidnapped by
Spaniards in violation of the laws of Spain mutinied on the high seas and
were later apprehended in Connecticut by American officials. The
Attorney General asked the court to order that the detainees be delivered
to persons claiming to be the detainees’ owners. The Attorney General
argued that the treaty of 1795 between the United States and Spain should
be construed to deny a person held in custody a right to assert that he is
not anyone’s property. The Court, per Justice Story, rejected the Attorney
General’s interpretation of the treaty: “[T]he Treaty with
Spain never could have intended to take away the equal rights of all
foreigners, who should contest their claims before any of our Courts, to
equal justice . . . .”⁹

Moreover, it is often impossible to measure the “weight” a court
gives to an Executive Branch view, because, at the same time that the court
announces that it is giving the Executive Branch view great weight, the
court has independently satisfied itself of the correctness of that view.
Thus, one court said it concurred in the State Department’s view because
that view was “coupled” with the court’s conclusion that the view was
“based on supporting facts.”¹⁰ Another court accepted the Executive
Branch’s interpretation of a treaty after “finding it well-founded and
supported by the weight of legal authority.”¹¹ One commentator observed:

*Centers Council, Inc.*, 509 U.S. 918 (1993) (Court of Appeals rejects as “untenable” the Executive Branch
interpretation of the 1951 Convention Relating to the Status of Refugees, 969 F.2d at 1362); *British Caledonian
Airways Ltd. v. Bond*, 665 F.2d 1153, 1160-61 (1981) (court rejects Executive Branch interpretation of Convention
on International Civil Aviation); *Galanis v. Pallanck*, 568 F.2d 234, 239 (2d Cir. 1977); *Greci v. Birknes*, 527
F.2d 956, 960 (1st Cir. 1976); *Cannon v. U.S. Dept. of Justice, United States Parole Commission*, 973 F.2d 1190,
1192 (5th Cir. 1992); *Mackin v. United States*, 668 F.2d 122, 132-43 (2d Cir. 1981); *Abu Eain v. Wilkes* 641 F. 2d
504, 517-18 (7th Cir. 1981); *Caltagirone v. Grant*, 629 F.2d 739, 742-45 (2d Cir. 1980). Judicial treaty
interpretation that accepted as accurate the views of the Executive Branch include *Kolovrat v. Oregon*, 366 U.S.
187, 192-93 (1961); *Bacardi Corp. of America v. Domenech*, 311 U.S. 150, 157-64 (1940); *Jordan v. Tashiro*, 278
U.S. 123, 127-30 (1928).

⁸ 40 U.S. (15 Pet.) 518 (1841).

⁹ *Id.* at 596.

¹⁰ *Matter of the Extradition of Demjanjuk*, 612 F. Supp. 544, 562-63 (N.D. Ohio 1985).

¹¹ *Ivancevic v. Artukovic*, 211 F.2d 565, 573 (9th Cir.), *cert denied*, 348 U.S. 818 (1954).

8

A typical passage from a court opinion interpreting a treaty will begin with the acknowledgment that "the views of the State Department are ordinarily entitled to great weight", but then will go on to say in words or substance that "we find them wholly unpersuasive in the present case. . . ." The judicial adjectives to describe the State Department's various communications on the meaning and application of the treaty ranged from "entirely conclusory" to "largely insignificant" to "an aberration."¹²

The most recent Supreme Court opinion interpreting a treaty, *Sale v. Haitian Centers Council, Inc.*,¹³ devoted ten pages to an analysis of the meaning of Article 33 of the 1951 Convention relating to the Status of Refugees, including an examination of the history of the drafting of the Convention, and a review of English-French dictionaries to determine how the parenthetical use of "refouler" contributed to understanding the meaning of the phrase "expel or return ('refouler')." That exercise would have represented needless effort if the Court had believed that the Executive Branch's interpretation of Article 33 was necessarily controlling.

The Judiciary's power to interpret treaties definitively includes the power to determine whether a treaty continues to exist. One court observed that in exercising the power to decide whether a treaty exists, the court gives weight to the Executive Branch's view when the court is satisfied that that view "is based on supporting facts."¹⁴

¹² Lori Fisler Damrosch, *Application of Customary International Law by National Tribunals, 76 AM. SOC'Y INT'L. L. PROC.* 231, 252 (Apr. 22-24, 1982).

¹³ 509 U.S. 155, 177-87 (1993).

¹⁴ *Ivancevic v. Artukovic*, 211 F.2d 565, 573 (9th Cir.), cert. denied, 348 U.S. 818 (1954). In articulating the rule that courts should give great weight to the Executive Branch view, courts place varying degrees of emphasis on the weight they say they are giving to the view of the Executive Branch. See, e.g., *Terlinden v. Ames*, 184 U.S. 270, 285 (1902), which, after reviewing the history of the creation of the German empire in the nineteenth century, found that in the creation of the empire, the Kingdom of Prussia had not lost its identity, and therefore that the treaty of extradition between the United States and the Kingdom of Prussia remained in effect unless it had later been terminated by one of the parties. On the issue of whether the Treaty had been terminated, the court found no evidence of "governmental action" to terminate. The Court's inquiry into the German Empire's constitution and the international law of treaties and state succession in order to determine whether the treaty with Prussia survived the formulation of the German Empire has been characterized as "an ordinary adjudication in which the Court plays its usual role, albeit with some deference to the evidence adduced"

9

The preceding description of judicial paramountcy in treaty interpretation is not intended to imply that every separation of power dispute can be resolved by a court. Some cannot be so resolved, because they are "political" questions, and therefore non-justiciable. For example, whether a particular state measure fulfills the Constitution's guaranty of a "republican form of government" is a non-justiciable political question.¹⁵ But the fact that a particular action of the Executive Branch cannot be tested in court does not give that Branch *carte blanche* to encroach on another Branch. The Supreme Court made the point in 1992 in *United States Dept. of Commerce v. Montana*:¹⁶

> In invoking the political question doctrine, a court acknowledges the possibility that a constitutional provision may not be judicially enforceable. *Such a decision is of course very different from determining that specific congressional action does not violate the Constitution.* (emphasis added)

As A.A.G. Dellinger stated in a May 1996 opinion, the Executive Branch has an "independent constitutional obligation to interpret and apply

by government experts.” THOMAS M. FRANCK, POLITICAL QUESTIONS/JUDICIAL ANSWERS: DOES THE RULE OF LAW APPLY TO FOREIGN AFFAIRS? 23-25 (1992). Also, see *Then v. Melendez*, 92 F.3d 851, 854 (9th Cir. 1996), which examined the history of extradition treaties between the United States and the United Kingdom to satisfy itself that none of the changes that occurred when the British colony of Singapore emerged as an independent State nullified, as to territory within Singapore, the 1931 U.S.-U.K. extradition treaty. In reaching that conclusion, the court said it had given great weight to the views of the Executive Branch as to the historical facts, because “federal courts are not as well equipped as the Executive Branch to determine when the emergence of a new country brings changes that terminate old treaty obligations.” Similarly, in *Arnbjornsdottir-Mendler v. United States*, 721 F.2d 679 (9th Cir. 1983), after giving “deference” to the Executive Branch on extradition matters, and after having made “an independent review” of Iceland’s “historical continuity,” the court concluded that an extradition treaty existed between the United States and Iceland. One Court of Appeals decision, *Saroop v. Garcia*, 109 F. 3d 165 (3d Cir. 1997), contains language to the effect that whether a treaty exists between the United States and another State is a “political question” that no American court has capacity to decide. That language was not necessary to resolve the case, because the court held that in any event on the question before it, the court would, as a matter of “comity,” defer to a decision of the highest court of Trinidad and Tobago. In any event, the discussion of the political question doctrine at notes 15-18, *infra*, shows that the Executive Branch is expected to stay within its zone of Constitutional authority, even when a case challenging its encroachment cannot be presented to a court in a justiciable form.

15 *Colegrove v. Green*, 328 U.S. 549 (1946). See also *Baker v. Carr*, 369 U.S. 186, 209 (1962).

16 503 U.S. 442, 457-58 (1992).

10

the Constitution."¹⁷ Dellinger also stated that the Congress as well as the
President has a duty to resist unconstitutional encroachment by the other
Branch. Dellinger invoked a 1933 opinion of Attorney General Mitchell:

> Since the organization of the Government, Presidents have felt bound to insist upon the maintenance of the Executive functions unimpa[i]red by legislative encroachment, just as the legislative branch has felt bound to resist interferences with its power by the Executive.¹⁸

In short, absence of an opportunity for judicial review for a
particular treaty interpretation would not give the President authority by
interpretation to encroach on the Senate's power of advice and consent, or
to arrogate to himself the Congress' power to nullify a treaty by means of a
statute that came into law without the President's signature, i.e., by an
override of a Presidential veto.

The rule that the Judiciary has the last word on treaty
interpretation was not impaired by the announcement of the "sole organ"
doctrine in the *Curtiss-Wright Export* case in 1936.¹⁹ After *Curtiss-Wright*, as well as before, the Judiciary, not the President, interpreted
treaties definitively. That is not surprising, given the narrowness of the
issue resolved in *Curtiss-Wright*, i.e., whether the Congress, by Joint
Resolution, could validly authorize the President to issue regulations
prohibiting a violation of the Joint Resolution, when the President issued
the proclamation the same day as the Joint Resolution was adopted by both
Houses.

17 Walter Dellinger, Assistant Attorney General, Memorandum for the General Counsels of the Federal Government, *The Constitutional Separation of Powers Between the President and Congress* (May 7, 1996), 1996 WL 876050.

¹⁸ Opinion of Attorney General William Mitchell, *Constitutionality of Proposed Legislation Affecting Tax Refunds*, 37 Op. Att'y Gen. 56, 64 (Jan. 24, 1933).

¹⁹ *United States v. Curtiss-Wright Export Corp.*, 299 U.S. 304 (1936). For critical analyses of the "sole organ" *dictum*, see DAVID GRAY ADLER & LARRY N. GEORGE, *THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY* 37-38 (1996); RAUL BERGER, *EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH, 133-35*; Arthur Bestor, *Respective Roles of Senate and President in the Making and Abrogation of Treaties - The Original Intent of the Framers of the Constitution Historically Examined*, 55 WASH. L. REV. 1, 73-106 (1979); Randall, *supra* note 4, at 1106-11.

In the sixty-two years that followed the decision in *Curtiss-Wright*, the Supreme Court has not invoked the "sole organ" doctrine to deprive the judiciary of ultimate authority to interpret treaties. Indeed, soon after *Curtiss-Wright*, the Court decided *Guaranty Trust Co. v. United States*.²⁰ The Court construed an executive agreement between the United States and the Soviet Union (an agreement as to which Senate advice and consent had not been obtained). In *United States v. Pink*²¹ the Court referred to *Guaranty Trust* as supporting the proposition that "[e]ven Treaties with foreign nations will be carefully construed so as not to derogate from the authority and jurisdiction of the States." To the same purpose, the Court cited *Todok v. Union Bank of Harvard, Nebraska*,²² construing a treaty between the United States and Norway on testamentary disposition, where "[t]he only question before us is the construction of the treaty."²³

In short, whatever the sole organ doctrine may mean in other contexts, it does not mean that the Executive Branch has exclusive authority to interpret treaties. Indeed, it does not override the judicial paramountcy in the interpretation of treaties.

Moreover, in light of the rule that a treaty, like a statute, is the supreme law of the land,²⁴ if the President had the final power to interpret a treaty, he would have the *de facto* power to nullify or "dispense with" or "suspend" a treaty - that is, he would have a power to suspend or dispense with a law. But the President has no power to "dispense with" or to "suspend" a law - a principle announced in *United States v. Smith* in 1806, which held that President James Madison was bound by an Act of Congress that prohibited citizens from carrying on war against a nation with which

20 304 U.S. 126 (1938).

21 315 U.S. 203 (1942).

22 281 U.S. 449 (1930).

23 *Id.* at 452.

24 *Reid v. Covert*, 354 U.S. 1, 33 n.34 (1957); *Whitney v. Robertson*, 124 U.S. 190, 194 (1888); *Head Money Cases (Edy v. Robertson)*, 112 U.S. 580, 599 (1884); *Committee of the United States Citizens Living in Nicaragua v. Reagan*, 859 F.2d 929, 936 (D.C. Cir. 1988). As a consequence of the rule that a treaty, like a statute, is the supreme law of the land, if a statute and a treaty conflict, "the one last in date will control the other." *Whitney v. Robertson*, 124 U.S. 190, 194 (1888) (plurality opinion), quoted in *Breard v. Gilmore*, __ U.S. __, 1998 U.S. LEXIS 2465, at *7 (1998). To like effect is *Reid v. Covert*, 354 U.S. 1, 18 (1957).

12

the United States was at peace.²⁵ As the Court explained, "because the President does not possess a dispensing power," he cannot authorize anyone to disregard a statute.²⁶

In 1972, in *United States v. Monongahela Connecting Railroad Co.*,²⁷ District Judge Dumbauld stated: "Of course there is no 'dispensing power' in an executive or administrative agency unless Congress has specifically granted it." Judge Dumbauld cited his own work, EDWARD DUMBAULD, THE CONSTITUTION OF THE UNITED STATES 7, 12 (1964), which describes the struggle between James II and the Parliament that led to James II's abdication and exile, and the acceptance by William and Mary in 1689 of the Bill of Rights, the first article of which recites, "That the pretended power of suspending laws, of the execution of laws, by regal authority, without consent of parliament is illegal." *Id.* at 12. That event is said to have established that the King had no dispensing or suspending power, and therefore made it unnecessary for the Framers of the Constitution to make express that they were not allocating to the office of the President a power to dispense with law. "[N]ot even the most ardent Antifederalists feared that the Constitution of 1787 had given the President a power to suspend the laws"²⁸

²⁵ The question of Presidential authority to terminate a treaty unilaterally was the subject of *Goldwater v. Carter*, 617 F.2d 717 (D.C. Cir.), *vacated on other grounds*, 444 U.S. 996 (1979), discussed at page 12, *infra*.

²⁶ *United States v. Smith*, 27 F. Cas. 1192 (C.C.D.N.Y. 1806). To like effect is *Kendall v. United States ex rel Stokes*, 37 U.S. (12 Pet.) 524, 613 (1838) (The Supreme Court, in declaring invalid the refusal of President Andrew Jackson's Postmaster-General to execute a statute requiring payments to postmasters, stated that, allowing the Postmaster-General, on the President's authority, to refuse to execute a statute, "would be vesting in the President a dispensing power, which has no countenance for its support in any part of the constitution; and is asserting a principle, which, if carried out in its results, to all cases falling within it, would be clothing the President with a power entirely to control the legislation of congress, and paralyze the administration of justice.")

²⁷ 351 F. Supp. 696, 698 (W.D. Pa. 1972).

²⁸ Christopher N. May, *Presidential Defiance of 'Unconstitutional Laws': Reviving the Royal Prerogative*, 21 HASTINGS CONST. L.Q. 865, 885-88 (1994). See also *National Treasury Employees Union v. Nixon*, 492 F.2d 587, 604 (D.C. Cir. 1974), quoting *Kendall v. United States* on the lack of dispensing power, in explanation of why the Court had jurisdiction to declare that the President had not obeyed the Federal Pay Comparability Act. Similarly, in 1975, in *Michigan Head Start Directors Ass'n v. Butz*, 397 F. Supp. 1124 (W.D. Mich. 1975), the court based its decision ordering the Secretary of Agriculture to comply with the National School Lunch Act on the absence of a Presidential power to suspend legislation. "a power not enjoyed by the English Monarch since the Glorious Revolution of 1688." Also, in *Ameron, Inc. v. United States Army Corps of Engineers*, 610 F. Supp. 750 (D.N.J. 1985), *aff'd as modified*, 787 F.2d 875 (3d Cir. 1986), *aff'd on reh'g*, 809 F.2d 979 (3d Cir. 1986), the District Court describes James II's forced exile, and the acceptance of England's Bill of Rights by William and Mary as the foundation for "[t]he rule that no executive official can decide for himself what laws he is bound to obey, but must await the decisions of the Judiciary and until then must obey the laws, [a

13

The most recent decision on the question of whether the President
has dispensing power is *Spence v. Clinton*, a District Court decision in
1996. It explains why the President had no authority to "defy" the Ballistic
Missile Act of 1995. The court stated:

> Such an outcome would [give] the President
> the ability to nullify duly authorized
> congressional actions. The Founding Fathers
> strongly believed that such a power would be
> dangerous and unwarranted. Constitutional
> scholars speak with one voice in concurring
> with this assessment.²⁹

In support of that observation, the court quoted James Madison:

> To give such a prerogative would certainly
> be obnoxious to the temper of this country.³⁰

Nothing in *Goldwater v. Carter*,³¹ is to the contrary. That case
involves undoing a treaty with one regime claiming to govern China and
recognizing a different regime claiming to be the government. Neither
regime nor the United States claimed that China had ceased to exist. The
case arose out of these events: In 1954 the United States entered into a
Mutual Defense Treaty that on its face was a treaty between the United
States and China. The Treaty was signed by a person who was part of a

rule that] has deep roots in our constitutional history." Also, the duty to execute the law faithfully is viewed as a
sign of the non-existence of Presidential suspending power. Statement on Behalf of the Office of General Counsel
to the Clerk of House of Representatives Regarding The Executive Branch's Declaration That The Competition in
Contracting Act Is Unconstitutional, Hearings Before a Subcommittee of the Committee on Government
Operations, House of Representatives, on Constitutionality of GAO's Bid Protest Function, 99th Cong., 1st Sess.
(Feb. 28; March 7, 1985) ("Scholars have concluded that the "faithful execution" clause of our Constitution is a
mirror of the English Bill of Rights' 'abolition of the suspending power,' that is, the abolition of what the English
Bill of Rights has called "the pretended [Royal] power of Suspending . . . the Execution of Laws.") The same point
is made in a Statement of Senator William S. Cohen and Senator Carl Levin in Hearings on the Constitutionality
of GAO's Bid Protest Function Before a Subcommittee of the committee on Government Operations, House of
Representatives, 99th Cong., 1st Sess. 486, 490 (Feb. 28, March 7, 1985) ("Absent a court ruling, we strongly
believe that a unilateral decision by the Executive Branch to refuse to enforce a statute constitutes a usurpation of
the proper role of the judiciary and a failure of the President to meet his constitutional responsibility to take Care
that the Laws be faithfully executed.").

29 *Spence v. Clinton*, 942 F. Supp. 32, 38 (D.D.C. 1996) (footnotes omitted).

30 I.M. FARRAND, *THE RECORDS OF THE FEDERAL CONSTITUTION OF 1787 100* (1966).

31 *Goldwater v. Carter*, 444 U.S. 996 (1979).

14

regime situated on Taiwan calling itself the Republic of China, (the "ROC") and claiming to represent the government for the entire territory of China, including the Chinese Mainland. At that time, and ever since, a regime situated on the Mainland claimed to represent the entire territory of China, including Taiwan. That regime rules a State called the "Peoples Republic of China" (the "PRC"). In 1978, President Jimmy Carter announced that the United States would terminate the Mutual Defense Treaty that had been made with the Taiwan-based regime.

Senator Barry Goldwater brought suit in a District Court, asking the Court to declare that without the consent of the Senate, President Carter lacked authority to terminate the Treaty. Senator Goldwater asserted that termination without Senate deliberation would deprive him of an opportunity to vote on the question of whether the Treaty should be terminated. A majority of Justices of the Supreme Court concluded that Senator Goldwater's case should be sent to the District Court to be dismissed, but no majority could agree on the reasons for that result. Four Justices (Rehnquist, Burger, Stewart and Stevens) said that to decide whether the Senate had authority to participate in a treaty-termination decision would be to decide a non-justiciable "political question," i.e., not the kind of controversy that the Constitution vested authority in the Judiciary to decide. Justice Marshall gave no reason for his decision in favor of dismissal. Justice Powell said that he considered the question to be justiciable, but supported dismissal on the ground that it was not ripe for decision, because the Congress had not yet challenged the President's authority by "appropriate formal action." 444 U.S. at 536. Two of the Justices who voted to hear the case (Blackmun and White) said the case was ripe, and therefore should be heard on the merits. Justice Brennan expressed the view that the case was justiciable, and that the lower court had correctly decided the case to the extent that it rested on the principle that the President had exclusive authority "to recognize, and withdraw recognition from, foreign governments."

Given the absence of a majority explanation of the reason for the result, *Goldwater v. Carter* has little value for predictive jurisprudence with respect to whether treaties with a State that has not lost its existence but only changed its government, let alone with respect to treaties of a State that has ceased to exist.

In any event, even the Judiciary's power to interpret treaties definitively must be exercised so as to avoid making a significant amendment, because that too would trench upon the Senate's power to give advice and consent to the making of the treaty. One court explained:

A significant amendment to a treaty must follow the mandate of the Treaty Clause and therefore must be proposed by the President and be ratified following the advice and consent of the Senate.³²

Similarly,

Courts are not authorized to annul or disregard provisions of a treaty . . . since an annulment or disregard would constitute a modification of the treaty, and treaty modifications are solely within the province of the Senate.³³

(ii) While Dellinger argues that the President has exclusive authority to implement treaties, the Constitution vests in the Congress the authority to make all laws "necessary and proper" to implement, i.e. to "carry into execution," not only all the law-making powers enumerated in Article I, section 8, but also "all other powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof."³⁴ "The recognized powers of Congress to implement (or fail to implement) a treaty by an apportionment or other law essential to its effectuation, . . . are legislative powers, not treaty-making or treaty-termination powers." ³⁵

³² New York Chinese TV Programs, Inc. v. U.E. Enters., Inc., 954 F.2d 847, 853 (2d Cir. 1991), cert. denied, 506 U.S. 827 (1992).

³³ In re Air Crash Disaster at Warsaw Poland on March 14, 1980, 535 F. Supp. 833, 843 (E.D.N.Y. 1982), *aff'd*, 705 F. 2d. 85 (2d. Cir.), cert. denied, 464 U.S. 845 (1983). See also Testimony of Columbia Law School Professor Louis Henkin, in Joint Hearings before the Committee on Foreign Relations and the Committee on the Judiciary, United States, Senate, 100th Cong. 1st Sess., on the ABM Treaty and the Constitution 881 (March 11, 1987).

³⁴ Neely v. Henkel, 180 U.S. 109, 121 (1901) (The necessary and proper clause of U.S. Constitution Article 1, section 8 "includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with a foreign power.") To like effect are *Missouri v. Holland*, 252 U.S. 416, 432-33 (1920); *United States v. Lue*, 134 F.3d 79, 82 (2d Cir. 1998); *Goldwater v. Carter*, 617 F.2d 697, 717 (D.C. Cir.), *vacated on other grounds*, 444 U.S. 996 (1979).

³⁵ PETER M. SHANE & HAROLD H. BRUFF, SEPARATION OF POWERS LAW: CASES AND MATERIALS 621 (1996).

16

Hence, the Congress has the authority to make laws implementing treaties. It follows that the President can no more create a treaty by calling its creation an implementation than he can create a statute by calling its creation an implementation of another statute.

(iii) Finally, there is no evidence that after the USSR's dissolution, the Senate, by voting on various ABM Treaty matters, consented to bringing an ABM Treaty into force between the United States and the Russian Federation. The votes and deliberations on ABM Treaty matters that evidenced a belief that the ABM Treaty of 1972 remained in force cannot reasonably be understood as an authorization for bringing an ABM Treaty into force. None of the laws passed since the USSR's extinction that relate to the ABM Treaty contains words that can be fairly construed as giving consent to the bringing into force of an ABM Treaty that is not already in force. In construing a statute, its words are to be given their plain meanings.³⁶ Moreover, legislative history, an aid to the construction of ambiguous words,³⁷ contains no evidence that either House of Congress, in voting on bills relating to ABM Treaty matters, was voting to bring into force an ABM Treaty that was not otherwise in force.

As a matter of international law, when a U.S. President grants recognition to a foreign State, the President imposes no duty or obligation on the United States that the United States would not in any event be obliged to discharge. In contrast, when a U.S. President brings a treaty into force, its terms must be fulfilled (unless there is a valid ground under international law, such as coercion or fraud, for not fulfilling them.).³⁸

The Constitution, Art. II. sec. 3, requires the President to "receive Ambassadors and other public Ministers," a provision that implies authority to determine whether a particular person is a bona fide representative of a particular foreign State. In turn, that implies that the President has authority to determine whether or not such a foreign State exists. An

36 *United States v. Gonzales*, 520 U.S. 1, __, 117 S. Ct. 1032, 1036 (1997).

37 *Barnhill v. Johnson*, 503 U.S. 393, 401 (1992).

³⁸ *Factor v. Laubenheimer*, 290 U.S. 276, 298 (1933) (“Until a treaty has been denounced, it is the duty of both the government and the courts to sanction the performance of the obligations reciprocal to the rights which the treaty declares and the government asserts even though the other party to it holds a different view of its meaning.”); *United States v. Kirby*, 106 F.3d 855, 859 (9th Cir. 1997); *United States v. A.L. Burbank & Co.*, Ltd., 575 F.2d 9, 22 (2d Cir. 1975). J.H.H. Weiler & Ulrich R. Haltern, *The Autonomy of the Community of Legal Order - Through the Looking Glass*, 37 HARV. INT'L L.J. 411, 441 (1996).

17

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.

Hence, if a foreign State ceases to exist under international law and, consequently, a bilateral treaty between the extinct State and the United States lapses, the President cannot use the "receive Ambassadors" clause to bring a new treaty into force between the United States and a successor to the extinct State without Senate advice and consent. In other words, 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 "receive Ambassadors" clause, it is necessarily limited by the specific Constitutional requirement for Senate advice and consent on the making of treaties.

(iv) When the Senate consents to a treaty with a given foreign State, does it impliedly authorize future Presidents to make a treaty on the same subject with a new State that is a successor to that given foreign State? An affirmative answer would violate the rule against the President's creating law unilaterally. A treaty cannot be interpreted "[t]o alter, amend, or add to the Treaty, by asserting any clause, whether small or great, important or trivial . . ."⁴² In 1989, in *Chan v. Korean Air Lines, Ltd.*,⁴³ the Supreme Court invoked its 1821 decision in *The Amiable Isabella*⁴⁴ to explain that an interpretation that makes a change in a treaty "whether small or great, important or trivial" would constitute a "usurpation of power, and not an exercise of judicial functions," adding: "It would be to make, and not to construe, a treaty." Though the caution in that case was aimed at judges, it applies equally to interpretations by the Executive Branch because it states that any change would be "to make, not construe, a treaty," a clear reference to the treaty-making process, of which Senate advice and consent is an essential part. In light of that rule, there is no room for an inference that Senate advice and consent implicitly authorizes later changes by a President.

⁴² *The Amiable Isabella*, 19 U.S. 1 (6 Wheat.) 1, 71 (1821); *Chan v. Korean Air Lines, Ltd.*, 490 U.S. 122, 135-36 (1984); *Kass v. Reno*, 83 F.3d 1186, 1189 (10th Cir. 1996). See also *The Society for the Propagation of the Gospel in Foreign Parts v. New-Haven*, 21 U.S. (8 Wheat.) 464, 490 (1823).

⁴³ 490 U.S. 122, 134-135 (1989).

⁴⁴ 19 U.S. (6 Wheat.) 1, 71 (1821).

In that regard, Dellinger appears to argue otherwise, conjecturing
that in 1972 the Senate must have known of what Dellinger argues was
past U.S. diplomatic practice with regard to State succession, *i.e.*, when a
State dissolves, its treaties with the United States bind the United States
*vis-à-vis* the extinct State's successor or successors. Dellinger's assertion
disregards the U.S. policy and practice of regarding as lapsed an extinct
State's bilateral treaties, a practice that began at least as early as the
annexation of the Kingdom of Hawaii in 1898,⁴⁵ and was recently
manifested in dealing with all five States that succeeded the extinct
Yugoslavia.⁴⁶ Thus, if any conjecture about the Senate's 1972
understanding is warranted, the reasonable conjecture is that it knew of the
practice of regarding extinct States' treaties as lapsed. In any event,
Dellinger does not claim that, after the USSR's dissolution, the Senate
consented to the making of an ABM Treaty with the Russian Federation.
Presumably, Dellinger understands that "Ordinarily, Congress' silence is
just that — silence,"⁴⁷ and does not constitute the exercise of its power to
make or to repeal laws,⁴⁸ including treaties.⁴⁹

Hence, if an ABM treaty now exists between the United States and
the Russian Federation, it exists only if, under international law, the Treaty
did not lapse upon the USSR's extinction.

None of the Dellinger Paper's arguments is supported by
international law. International law points to an opposite conclusion:
Upon the USSR's extinction, the ABM Treaty did not become a treaty
between the United States and the Russian Federation.

This Memorandum does not contend that the United States and
the Russian Federation cannot make a treaty between themselves or with
other States to limit ABM systems. But such a treaty would require the
concurrence of "two thirds of the Senators present," as provided by Article
II, section 2 of the U.S. Constitution.

⁴⁵ See Statement of Secretary Sherman to Japanese Ministries, described *supra* Part IV.D.

⁴⁶ See discussion at IV.F.4, *infra*.

⁴⁷ *Alaska Airlines, Inc. v. Brock*, 480 U.S. 678, 686 (1987).

⁴⁸ *Patterson v. McLean Credit Union*, 491 U.S. 164, 175 (1989); *United States v. Wells*, 519 U.S. 482, ___, 117 S.Ct. 921, 929 (1997); *NLRB v. Plasterers' Local Union No. 79*, 404 U.S. 116, 129-30 (1971).

⁴⁹ *TransWorld Airlines, Inc. v. Franklin Mint Corp.*, 466 U.S. 243, 252 (1984).

20

### III. FACTUAL BACKGROUND

As a predicate to the legal analysis below, it is useful to review
facts pertaining to the USSR's extinction and the U.S. State Department's
position thereon, President Clinton's position on the ABM Treaty of 1972,
and the purpose of the ABM Treaty of 1972 as seen by the U.S.
government at the time of Senate approval of ratification.⁵⁰

#### A. Extinction of the USSR

On December 8, 1991, at Minsk, the Republic of Belarus, the Russian Federation ("RSFSR") and Ukraine, as the USSR's founders and as signatories to the Union Treaty of 1922 that created the USSR, declared that the USSR, "as a subject of international law and a geopolitical reality no longer exists."⁵¹ Also, they signed the Agreement Establishing the Commonwealth of Independent States. The Agreement invited other States to join. On December 21, 1991, at Alma Ata, eight other States joined.⁵² The Agreement included a provision supporting the Russian Federation's assumption of the USSR's permanent seat in the U.N. Security Council.

President George Bush, in his December 25, 1991 address to the nation on the CIS, said that "The Soviet Union itself is no more."⁵³ On January 22, 1992 President Bush, in addressing the International Conference on Humanitarian Assistance to the former USSR, referred to "the dramatic revolution that swept away Soviet communism and left in its place 12 new

⁵⁰ Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems (the "ABM Treaty"), May 26, 1972, U.S.-U.S.S.R. (App. 2). The Treaty was amended in 1974 to reduce the allowed number of ABM deployment areas of each party from two to one. The United States chose its ICBM emplacements near Grand Forks, North Dakota. The USSR chose Moscow. Each party was given a single option to shift its defense area upon advance notice at the time of scheduled 5-year Treaty review. Protocol to the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems (App. 2) (including 1974 Protocol).

⁵¹ Agreement Establishing the Commonwealth of Independent States, Dec. 8, 1991, Belarus-RSFSR-Ukraine, 31 I.L.M. 143 (App. 3).

⁵² Agreement Establishing the Commonwealth of Independent States, Art. 12, Dec. 21, 1991, 31 I.L.M. 147-54 (App. 4).

⁵³ President George Bush, *Address to the Nation on the Commonwealth of Independent States*, 27 WEEKLY COMP. PRES. DOC. 1883 (Dec. 25, 1991) (App. 5).

21

nations."⁵⁴ President Bush also referred to the "dissolution of the
Soviet Union..."⁵⁵ On April 1, 1992, President Bush referred to
"Russia, Ukraine and the other new States that have replaced the Soviet
Union."⁵⁶ President Bush stated that he was "seeking to conclude trade,
bilateral investment and tax treaties with each of the new Commonwealth
States."⁵⁷

B. *State Department Study of the Effect of the USSR's Extinction*

In early 1992, State Department Legal Adviser Edwin D. Williamson announced that the State Department was conducting a study of the effect of the USSR's extinction on its treaties with the United States, including the ABM Treaty.⁵⁸ In 1997, President Clinton described the process as follows:

> When the USSR dissolved at the end of
> 1991, it became necessary to reach
> agreement as to which former Soviet States
> would collectively assume its rights and
> obligations under the [ABM] Treaty (which
> clearly continued in force by its own terms).
> The United States took the view that, as a
> general principle, agreements between the
> United States and the USSR that were in
> force at the time of the dissolution of the
> Soviet Union would be presumed to continue
> in force as to the former Republics. It
> became clear, however, particularly in the

⁵⁴ President George Bush, *Address to the International Conference on Humanitarian Affairs* (Jan. 22, 1992), in *I PUBLIC PAPERS OF THE PRESIDENT OF THE UNITED STATES, GEORGE BUSH* 127 (GPO 1993) [hereinafter *PUBLIC PAPERS*] (App. 6).

⁵⁵ *Id.*

⁵⁶ President George Bush, Statement at *News Conference on Aid to the States of the Former Soviet Union*, in *PUBLIC PAPERS* *supra* note 34, at 522 (App. 6).

⁵⁷ President George Bush, *Remarks to the American Society of Newspaper Editors*, in *PUBLIC PAPERS* *supra* note 34; at 566 (App. 6).

⁵⁸ Edwin D. Williamson, *Remarks on State Succession and Relations with Federal States*, 86 AM. SOC. OF INT'L L. ANN. MEETING PROCS., 10, 12 (Apr. 1-4, 1992).

22

predecessor State. Thus, even if a newly
emerged State has concluded a devolution
agreement, the only treaty obligations of the
predecessor State which can immediately
become obligations also of the successor
State vis-a-vis the other contracting parties
are such obligations, if any, as would in any
event pass to the successor State by
operation of the general rules of the
international law independently of the
devolution agreement.⁶²

State Department Legal Adviser Edwin D. Williamson stated that while the study of the ABM treaty was pending, the State Department would use a "presumptive continuity" model in its dealings with the USSR's successor States.⁶³ "Continuity," as applied to treaties, is a term used by scholars to describe the fact that a treaty between two particular States (the "treaty partners") has become a treaty between one of the partners and another State. For example, when a State dissolves and a successor State (or States) emerges on what had been the territory of the dissolved State, a successor State may agree with the dissolved State's treaty partner that the dissolved State's treaties should "continue" in effect as between the successor State and the dissolved State's treaty partner. In that event, the treaty in question is said to have come into effect with the successor State by a process of "continuity." Thus, when Norway and the Russian Federation agreed that they would consider as treaties between them certain designated treaties that had been in effect between Norway and the USSR, those treaties are said to have come into effect between Norway and the Russian Federation by the process of continuity.⁶⁴

Since the respective dissolutions of the USSR, of Yugoslavia (the "SFRY") and of Czechoslovakia, the United States, various European States, and the successor States have not all dealt in the same manner in all

⁶² Sir Humphrey Waldock, Special Rapporteur, *Second Report on Succession in Respect of Treaties*, 1969 II Y.B. INT'L L. COMM'N 45, 57, UN Doc. A/CN.4/SER.A/1969/Add.1.

⁶³ Williamson, *supra* note 58, at 10, 12.

⁶⁴ Marti Koskenniemi, *The Present State of Research Carried Out By the English-Speaking Section of the Centre for Studies and Research*, in STATE SUCCESSION: CODIFICATION TESTED AGAINST THE FACTS 98-118 (Hague Academy of International Law 1996); Paul R. Williams, *The Treaty Obligations of the Successor States of the Former Soviet Union, Yugoslavia, and Czeckoslovakia: Do They Continue in Force?*, 23 DENV. J. INT'L L. & POL'Y 1, 31-35 (1994).

24

cases with the treaties of the dissolved States. A few examples: Armenia and Azerbaijan chose not to enter continuation agreements with any State as to any USSR treaty.⁶⁵ Austria, as regards the treaties with the dissolved SFRY, described its practice as a "principle of pragmatic application" of the continuation process – that is, Austria denied that the FRY was a continuity of the SFRY, and yet, in practice, treated the FRY as through it were the continuity of the SFRY.⁶⁶

The U.S. State Department, though expressing a general desire that the USSR's successor States (a term that does not include Estonia, Latvia and Lithuania) be bound by the same treaty obligations vis-á-vis the United States as was the USSR, "abandoned any assertions of automatic continuation of treaty obligations and relied entirely on assurances provided by the successor States."⁶⁷ Also, in seeking assurances of treaty continuation from the successor States, the State Department accepted non-specific (what one commentator has called "feigned") assurances,⁶⁸ and unilateral commitments that the successor States may rescind, and that gave the United States the effective right to discontinue the treaties at its option.⁶⁹ Similarly, the State Department, by accepting assurances of treaty continuity that were linked by context to non-justiciable political commitments – such as promises to develop market economies – rendered the treaties unenforceable as a practical matter and thereby made "continuity" illusory.⁷⁰ Moreover, "Treaties in Force," the authoritative annual State Department publication of the U.S. treaties that are in force, shows as in force only those treaties concluded between the United States and the Russian Federation after the USSR's dissolution.⁷¹ A similar treatment is provided by listings of treaties in force involving other successors of the USSR and other successors of the SFRY.⁷²

65 Koskenniemi, *supra* note 64, at 112.

66 Koskenniemi, *supra* note 64, at 88, 110-11 n. 70; Williams, *supra* note 64, at 31-35 (1994).

67 Williams, *supra* note 64, at 32.

68 *Id.*

69 *Id.*

70 *Id.*

71 *Id.* at 33-34.

72 *Id.*

25

as a result of the SFRY's "dissolution" in 1992, "[t]he SFRY has ceased to
exist and no . . . State represents the continuation of the SFRY. . . ."⁷⁸

In June 1996 U.S. Assistant Attorney General Walter Dellinger advised Counsel to the President John Quinn that the presumption of "continuity" employed in the State Department during the Bush Administration remained in effect in the Clinton Administration. Dellinger stated that the notion of continuity was "rooted" in U.S. "past diplomatic practice" and in the U.S. Executive Branch's understanding of international law.⁷⁹ Dellinger's disregard for U.S. practice as regards treaties of extinct states is described at IV.F., infra.

### C. President Clinton's Statement of Position

On June 16, 1997, Benjamin A. Gilman, Chairman, House Committee on International Relations, asked President Clinton: If the Senate were to reject the President's proposal regarding ABM Treaty succession, "what countries in addition to the United States will, in the view of the Administration, be parties to the ABM Treaty?"⁸⁰ The President did not reply until November 21, 1997,⁸¹ by which time the Secretary of State had signed (in September, 1997) a Memorandum of Understanding (the "MOU") with Russia, Ukraine, Belarus and Kazakhstan to "multi-lateralize" the ABM Treaty. The MOU would create an arrangement embodying features that had been in effect between the United States and the USSR.⁸² President Clinton's November 17, 1997 letter

⁷⁸ Declaration of Christopher R. Hill, Director, Office of South Central European Affairs, United States Department of State, filed in *Federal Republic of Yugoslavia v. Park-71st Corp.*, No. 95 Civ. 3659 (AGS) (S.D.N.Y.) ¶¶ 5, 6 (Sept. 21, 1995), *complaint dismissed*, 913 F.Supp. 191 (S.D.N.Y. 1995). (App. 1).

⁷⁹ Memorandum from Walter Dellinger, Assistant Attorney General, to John M. Quinn, Counsel to the President, Re: Section 233(a) of S. 1745 (June 26, 1996) (App. 10). See also Letter from William C. Danvers, Special Assistant to the President and Senior Director for Legislative Affairs, to Newt Gingrich, Speaker of the House of Representatives (Nov, 29, 1996), transmitting Report on the Livingston ABM Amendment (Nov. 25, 1996) (App. 12), and Letter of Dec. 11, 1996 from Representatives Bob Livingston, Benjamin A. Gilman and Floyd Spence to President Clinton (Dec. 11, 1996) (App. 13).

⁸⁰ Letter from Benjamin A. Gilman, Chairman, Committee on International Relations, House of Representatives, to President William J. Clinton, 2-3 (June 16, 1997) (App. 14).

⁸¹ Letter from President William J. Clinton to Benjamin A. Gilman, Chairman, Committee on International Relations, House of Representatives, 2 (Nov. 21, 1997) (App. 7). Letter from President William J. Clinton to Benjamin A. Gilman, Chairman, Committee on International Relations, House of Representatives, (May 21, 1998) (App. 11).

⁸² United States of America, Republic of Belarus, Ukraine & Kazakhstan, *Memorandum of Understanding Relating to the Treaty Between the United States of America and the Union of Soviet Socialist*

stated that he would ask the Senate to give advice and consent to the
MOU.⁸³ The November 21, 1997 letter also stated

"[n]either a simple recognition of Russia as the sole ABM successor (which would have ignored several former Soviet states with significant ABM interests) nor a simple recognition of all NIS states as full ABM successors would have preserved fully the original purpose and substance of the Treaty, as approved by the Senate in 1972)."⁸⁴

In addition, the letter stated that, if the Senate did not consent to the MOU as a Treaty, succession arrangements would "simply remain unsettled,"⁸⁵ and in any event the ABM Treaty that had been in force between the United States and USSR "would clearly remain in force."⁸⁶ On March 3, 1998, Representative Gilman and Senator Jesse Helms⁸⁷ observed that if none of the four USSR-successor States that had signed the MOU were bound by the ABM Treaty, it followed that the Treaty was no longer in force.⁸⁸

On May 21, 1998 President Clinton responded that the Executive Branch had concluded that "there is no question that the ABM Treaty has continued in force and will continue in force . . . ." Also, President Clinton stated that "[t]he United States and Russia clearly are Parties to the Treaty. . . ."⁸⁹ The President explained neither the basis for this conclusion nor how

*Republics on the Limitation of Anti-Ballistic Missile Systems of May 26, 1972 (Sept. 26, 1997) (App. 15).*

⁸³ Letter from President William J. Clinton to Benjamin A. Gilman, Chairman, Committee on International Relations, House of Representatives 1 (Nov. 21, 1997) (App. 7).

⁸⁴ *Id.* at 2.

⁸⁵ *Id.* at 3.

⁸⁶ *Id.*

⁸⁷ Letter from Benjamin A. Gilman, Chairman, Committee on International Relations, House of Representatives, and Jesse Helms, Chairman, Committee on Foreign Relations, Senate (March 3, 1998) (App. 16).

⁸⁸ *Id.* at 3.

⁸⁹ Letter from President William J. Clinton to Benjamin Gilman, Chairman, Committee on International Relations, House of Representatives 2 (May 21, 1998) (App. 11). Also, on October 5, 1998, Senators Trent Lott, Don Nickles, Larry E. Craig, Jon Kyl, Jesse Helms, Connie Mack, Paul Coverdell and Bob Smith wrote

28

the conclusion can be reconciled with his November 1997 response to
Representative Gilman.

D. *The United States' 1972 view of how it would benefit from an ABM Treaty*

In 1972, Gerard Smith, Director of the Arms Control and Disarmament Agency in the Nixon Administration, told the Congress the following:

> The treaty contains a general commitment not to build a nationwide ABM defense nor to provide a base for such defense. This general undertaking is supplemented by certain specific provisions. By this general undertaking and the specific commitments, both countries in effect agree not to challenge the effectiveness of each other's missile deterrent capabilities by deploying widespread defenses against them. This means that the penetration capability of our surviving deterrent missile forces can be assured. This, to my mind, bears directly on concerns about a first strike against the United States. As long as we maintain sufficient and survivable retaliatory forces, this new assurance of their penetration capability makes "first strike" as a rational act inconceivable, in my judgment. I believe this is a development of prime significance for U.S. security.⁹⁰

President Clinton a letter stating their view that "the ABM Treaty has lapsed and is of no force and effect unless the Senate approves the MOU, or some similar agreement, to revive the Treaty." Letter from Senators Trent Lott, Don Nickles, Larry E. Craig, Jon Kyl, Jesse Helms, Connie Mack, Paul Coverdell and Bob Smith to President William J. Clinton (Oct. 5, 1998) (App. 17.) On December 17, 1998, President Clinton replied, stating that he would provide the MOU to the Senate for its advice and counsel (App. 18).

⁹⁰ Statement by United States Arms Control and Disarmament Agency Director Gerard C. Smith, *Strategic Arms Limitations Agreements* (June 28, 1972), *reprinted in U.S.C.A.C.D.A. DOCUMENTS ON DISARMAMENT 1972, at 423.*

Hence, according to that view, a party without ABM defenses would be less likely to launch first strikes, and therefore would be less likely to start a nuclear war.⁹¹

#### IV. PRINCIPLES OF INTERNATIONAL LAW THAT BEAR ON THE QUESTION OF WHETHER THE ABM TREATY BETWEEN THE UNITED STATES AND THE USSR BECAME, UPON THE USSR'S EXTINCTION, A TREATY BETWEEN THE UNITED STATES AND THE RUSSIAN FEDERATION

##### A. The December 1991 Declaration That the USSR Had Ceased to Exist Correctly Characterized under International Law the Changes That Occurred on What Had Been the USSR's Territory

It is not necessary to resolve any dispute as to whether the USSR became extinct in December 1991, for there has been no dispute between the United States and the USSR's successor States on this point. It bears noting, however, that, had the parties put the question to a disinterested tribunal, that tribunal would have had ample grounds for concluding that the USSR did become extinct at that time, for after December 1991 the USSR lacked the attributes of "statehood" that are essential elements of a State's existence, i.e. sovereignty over defined territory inhabited by a permanent population, and the power to conduct foreign relations.⁹² At the close of the day on December 8, 1991, each of fifteen States had

⁹¹ Report by the United States Senate Foreign Relations Committee, *Treaty on Limitation of Antiballistic Missile Systems*, S. Exec. Rep. 92-28 (July 21, 1972) (App. 19), quoting former Assistant Secretary of Defense for International Security Affairs Paul Warnke, that “[a]cordingly, both sides have accepted the principle that safety resides not in physical defense but in the certainty that the attacker would be destroyed by the retaliatory strike that the other side would be able to mount.”

⁹² A State must have (a) a permanent population; (b) a defined territory; (c) a government; and (d) capacity to enter into relations with other States. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 201 (1986). A State has territorial sovereignty if it “has a monopoly on the exercise of governmental power within its borders . . . .” *Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa*, 482 U.S. 522, 557 (1987) (Blackman, J., concurring in part and dissenting in part); *Hoyt v. Sprague*, 103 U.S. 613, 630 (1880). Justice Story, as quoted in *Cherokee Nation v. Southern Kan. R. Co.*, 33 Fed. 900, 906 (W.D. Ark. 1888), described sovereignty as the “supreme, absolute, uncontrollable power; the jus summi imperii; the absolute right to govern.” The fifteen states included the Baltics, i.e. Latvia, Lithuania, and Estonia, which the United States and Western European States did not regard as having been absorbed into the USSR. *See generally Lawrence S. Eastwood, Jr., Secession, State Practice and International Law after the Dissolution of the Soviet Union and Yugoslavia*, 3 DUKE J. COMP. INT'L L. 299, 316-22 (1983).

30

sovereignty over a part of what had been the USSR's territory. No State claimed that even one *pyt* of territory remained as USSR territory.⁹³

Moreover, the USSR's dissolution was marked by other consequential changes: (1) It occurred abruptly, out of strong secessionist pressures that created the risk of widespread civil strife rather than by a deliberate and peaceful evolution. (2) The USSR government was not a party to any of the declarations of dissolution or independence or to the organizational agreements of the CIS or to any other agreements among the newly independent States. (3) Within the several years immediately before dissolution was declared formally, the USSR government had yielded its political and military control over the other Warsaw Pact States.

(4) In that period before formal dissolution, the USSR government abolished the Communist Party's monopoly on domestic political power, thereby facilitating the acquisition by the people of the USSR's constituent "republics" of control of their territories and economies, and removing an obstacle to the emergence of the new States.⁹⁴ (5) The demography of the new states was markedly different from that of the USSR, the former being far more ethnically homogeneous than the latter was. (6) None of the newly independent States separately has military/strategic resources (including agricultural and mining assets and geographical assets such as access to various ports and contiguity with certain regions on land) that are on par with those possessed by the USSR.

International law does not consider a State extinct solely because it has lost some territory or population. But no USSR successor State embodies the USSR's international legal personality; indeed, none even claims to do so. Given the abruptness of the loss of territory and population, the loss of empire, and the loss of central control over the inhabitants of the fifteen sub-states that led to their independence, the changes in ethnic concentrations and in military/strategic resources, it is not hard to understand why the United States agreed with the newly-emerged States that the USSR's identity had disappeared. Hence, the successor

⁹³ A *pyt* in the Russian language is the smallest measure of area, as in, "not a single inch."
RUSSIAN-ENGLISH DICTIONARY 517 (E.P. Dutton & Co. 1973).

⁹⁴ See generally accounts collected in *THE DECLINE AND FALL OF THE SOVIET EMPIRE* (B. Gwertzman and M. Kaufman, eds. 1992) For a description of Russia's place in the USSR, see RICHARD PIPES, *RUSSIA UNDER THE BOLSHEVIK REGIME* (1993).

31

B. *The ABM Treaty Was a Bilateral Treaty*

A bilateral treaty is a treaty between two "sides," which usually are two States.⁹⁶ Only the United States and the USSR were parties to the ABM Treaty. The Treaty specified no means for adding parties.⁹⁷

C. *If Neither Judicial Decision, Diplomatic Practice Nor Treaty Provides Trustworthy Evidence on a Disputed Point of Customary International Law, a Court Will Consult the Works of Scholars for Evidence of What the Law Is*

International law, like common law in Anglo-American jurisprudence, can grow out of long-practiced custom that becomes accepted as law.⁹⁸ In ascertaining custom, courts often consult the works of scholars, as the Supreme Court explained in *The Paquete Habana*, a landmark case in 1898:

> [W]here there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subject of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their author concerning what the law ought to be, but for

96 ARNOLD DUNCAN MCNAIR, *THE LAW OF TREATIES, BRITISH PRACTICE AND OPINIONS* 5 (1938).

97 Confining discussion in this Memorandum to bilateral treaties does not imply that a State's extinction has no effect on multilateral treaties of which it was a party. State succession as regards multilateral treaties is discussed in Hubert Beemelmans, *State Succession in International Law: Remarks on Recent Theory and State Praxis*, 15 B.U. INT'L L.J. 71, 85 (1997); Yehuda Z. Blum, *U.N. Membership of the "New" Yugoslavia: Continuity or Break?*, 86 AM. J. INT'L L. 830 (1992).

98 On the role of custom in the development of the common law, see WILLIAM BLACKSTONE, I COMMENTARIES ON THE LAWS OF ENGLAND 69-80 (James DeWitt Andrews, ed., 4th ed., 1899); ARTHUR REED HOGUE, ORIGINS OF THE COMMON LAW 190-200 (1966); David J. Bederman, *The Curious Resurrection of Custom: Beach Access and Judicial Tackings*, 96 COLUM. L. REV. 1375, 1451 (1996). On the role of custom in the development of international law, see O'CONNELL, I INTERNATIONAL LAW, *supra* note 39, at 15-20, 35-36.

before the United States was founded, and European scholarly works on
international law were well known in the United States in the early
Nineteenth Century. The most prominent work was by Emmerich de
Vattel, a Swiss scholar who wrote in the second half of the Eighteenth
Century. His treatise, *The Law of Nations* has been cited in 147 cases in
the Supreme Court, from 1781 to 1998. Vattel wrote:

> In the same manner as a personal treaty expires at the death of the king who has contracted it, a real treaty is dissolved, if one of the allied nations is destroyed, — that is to say, not only if the men who compose it happen all to perish, but, also if, from any cause whatsoever, it loses its national quality, or that of a political and independent society.¹⁰²

Another of the prominent early works was Frederic de Martens’
*The Law of Nations*, published in 1788. Martens’ career included
professorships of law at the Imperial School in St. Petersburg and at the
University of Gottingen; as representative of Russia at many official
conferences; and as an arbiter in international disputes, for which he
became known as “Chief Justice of Christendom.”¹⁰³ An English
translation of Martens’ work was published in Philadelphia in 1795,
dedicated to President George Washington. Martens wrote:

> TREATIES, properly so called, cease to be obligatory when the foreign power with whom they were concluded ceases to exist, and when the state passes under the dominion of another power.¹⁰⁴

102 EMMERICH DE VATTEL, THE LAW OF NATIONS, Book II, Chap. XIII, sec. 203, 215 (in English translation 1833). Vattel's work was first published in French, *Le droit de gens, ou, Principes de la loi naturelle, applique a la conduite and aux affaires des nations and des souverains* (1758). Vattel was published in English (in New York), at least as early as 1787 (for Berry and Rogers). Vattel has been cited in 147 cases in the Supreme Court, from *Miller v. The Resolution*, 2 U.S. (Dall) 1, 15 (1781) to *Miller v. Albright*, __ U.S. __, 118 S. Ct. 1428, __ (1998).

103 GEORGE A. FINCH, *THE SOURCES OF MODERN INTERNATIONAL LAW 40-41* (1937); TERRY NARDIN, *LAW, MORALITY AND THE RELATIONS OF STATES* 64 (1983).

104 GEORG FREDERICK VON MARTENS, *THE LAW OF NATIONS*, Book II, Sec. 8, 56 (trans. from the French by William Cobbett, 1795).

35

Henry Wheaton made the same point in his *Elements of International Law* in 1836, perhaps the first treatise exclusively on international law written in the United States. Wheaton was Justice of the Marine Court of New York. Later, as the official reporter of the U.S. Supreme Court, he edited twelve volumes of the Supreme Court's reports. He then became, in succession, Charge d'affaires of the United States to Denmark, U.S. Minister to Prussia, and Lecturer on International Law at Harvard University.¹⁰⁵ Professor Wheaton wrote:

> *Treaties, properly so called, or *fodera*,* are
> those of friendship and alliance, commerce
> and navigation, which even if perpetual in
> terms, expire of course . . . in . . . case either
> of the contracting parties loses its existence
> as an independent State.¹⁰⁶*

In 1889, the State Department stated as a "principle of public law" that a treaty expires when one of the parties "loses its existence."¹⁰⁷ In support, the State Department quoted from General Henry W. Halleck's *International Law*,¹⁰⁸ written in 1861:

> The principle of public law which causes
> Treaties under such circumstance [i.e., the
> cessation of a State's existence as an
> independent State] to be regarded as
> abrogated is thus stated: "The obligations of
> Treaties, even where some of their
> stipulations are in their terms perpetual,

105 FINCH, *supra* note 103, at 35-36.

106 HENRY WHEATON, *ELEMENTS OF INTERNATIONAL LAW* 191 (1836) (unabridged republication by Da Capo Press 1972). "Fodera" are treaties. A "fodus" is a treaty, a league or a compact. BLACK'S LAW DICTIONARY 770 (rev. 4th ed. 1968).

107 United States Department of State, *Treaties and Conventions Concluded Between the United States of America and Other Powers Since July 4, 1776, 1236 n.2* (1899), quoting HALLECK'S *INTERNATIONAL LAW* 899, which is materially the same as HENRY W. HALLECK I *INTERNATIONAL LAW* 316 (G.S. Baker ed., 4th ed. 1908).

108 Halleck, the adopted son of Baron Frederic von Steuben, was a career soldier and lawyer. He was General-in-Chief of the United States Army in the Civil War until replaced by General Ulysses S. Grant. In 1861 he wrote his first book on international law. It was updated in 1866 and has appeared in many subsequent editions. Halleck's career as soldier and lawyer is sketched in Scott R. Morris, *The Laws of War: Rules by Warriors for Warriors*, 1997 ARMY LAW. 4, 10 (1997).

36

expire in case either of the contracting
parties loses its existence as an independent
State . . . ."¹⁰⁹

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. treaty of annexation of the
Kingdom's territory, i.e., "[t]he treaty of annexation does not abrogate [the
Kingdom's treaties], it is the fact of Hawaii's ceasing to exist as an
independent contractant that extinguishes those contracts."¹¹⁰

Likewise, in 1902 Charles E. Magoon, Law Officer in the Office of
the Secretary of the War Department, submitted a Report to Secretary of
War Elihu Root, which Secretary Root ordered to be published. On the
subject of the treaty obligations of extinct States, the Report states:

> But where there is a complete change, not
> only of sovereigns but of sovereignty, of
> necessity the agreement ends, for each
> sovereignty must exercise its grace in
> accordance with its own constitution, laws,
> and customs.¹¹¹

In addition, in 1895 Captain Edwin F. Glenn, Acting Judge
Advocate General of the United States Army, in his *Hand-Book of
International Law*, wrote:

> When some of the stipulations of a treaty
> imply perpetuity, even though the act
> mentioned to be performed has been

¹⁰⁹ United States Department of State, *Treaties and Conventions Concluded Between the United States of America and Other Powers Since July 4, 1776* 1236 (1899).

¹¹⁰ United States Secretary of State John Sherman, *Note to the Minister of Japan* (June 25, 1897), *quoted in* JOHN BASSET MOORE, V DIGEST OF INTERNATIONAL LAW 349, 350 (1906). The treatises invoked in the Note were HALLECK'S I INTERNATIONAL LAW OR RULES REGULATING THE INTERCOURSE OF STATES IN PEACE AND WAR 316 (4th ed. 1908) and WILLIAM EDWARD HALL, A TREATISE ON INTERNATIONAL LAW 96-97 (4th ed. 1895). Secretary Sherman was a lawyer who had been a Senator and a Representative. He is remembered as the author of the Sherman Antitrust Act, 15 U.S.C. § 1 et seq., and the Sherman Silver Purchase Act, 26 Stat. 289 (1890). *See also* *Territory of Hawaii v. Osaki Mankichi*, 190 U.S. 197, 198-211 (1903) (describing the termination of the Kingdom of Hawaii's treaties with other States after it was annexed by the United States).

¹¹¹ Charles E. Magoon, Law Officer, Division of Insular Affairs, Office of the Secretary, War Department, Reports to Secretary of War, Elihu Root, *The Law of Civil Government in Territory Subject to Military Occupation by the Military Forces of the United States* 304 (1902).

personal in so far as they presuppose, in
addition to the territory, also the existence of
a certain sovereign over the territory. To the
succeeding States the treaties concluded by
the former State are *res inter alios acta*.
Professor Erik Castren, University of
Helsinki. 1951.¹¹⁶

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, 1911.¹¹⁷

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, 1962.¹¹⁸

Many other scholars have expressed the same Opinion.¹¹⁹

116 Erik Castren, *Obligations of States Arising from the Dismemberment of Another State*, XIII ZEITSCHRIFT FÜR AUSLANDISCHES OFFENTLICHES RECHT UND VOLKERRECHT 753, 754 (1951). “*Res inter alios acta*” literally, “a thing done between others,” BLACK’S LAW DICTIONARY 1470 (4th ed. 1951) is used figuratively, as “it’s no concern of ours,” EUGENE EHRLICH, AMO, AMAS, AMAT AND MORE 249 (1987).

117 Amos S. Hershey, *The Succession of States*, 5 AM. J. INT'L L. 285, 287 (1911). See also id. at 291-92.

118 GERHARD VON GLAHN, LAW AMONG NATIONS 117 (6th ed. 1992).

119 See, e.g., UN GAOR, 1st Comm., 2d Sess., Annex 14g at 582-83, U.N. Doc. A/C.1/212 (1947) (Letter of October 11, 1947 from the Chairman of Sixth Committee to the Chairman of the First Committee); RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 210(3) (1986); J. L. BRIERLY, THE LAW OF NATIONS 153 (6th ed. 1963); CRAWFORD, *supra* note 74, at 408; GREEN HAYWOOD HACKWORTH, I DIGEST OF INTERNATIONAL LAW 297 (1943); HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 382-87 (2d. ed. 1966); NOYES E. LEECH, ET AL, THE INTERNATIONAL LEGAL SYSTEM: CASES AND MATERIALS 980 (1973); WERNER LEVI, CONTEMPORARY INTERNATIONAL LAW, A CONCISE INTRODUCTION (2d ed. 1991); JOHN BASSETT MOORE, I DIGEST OF INTERNATIONAL LAW 248 (1906); O’CONNELL, I INTERNATIONAL LAW, *supra* note 39, at 368; L. O. OPPENHEIM, I INTERNATIONAL LAW 553 (1905); PAUL REUTER, INTRODUCTION TO THE LAW OF TREATIES 186 (2d. ed. 1995); GEORG SCHWARZENBERGER, A MANUAL OF INTERNATIONAL LAW 169 (5th ed. 1967); MALCOLM N. SHAW, INTERNATIONAL LAW 694 (4th ed. 1997); MAX SORENSON, MANUAL OF PUBLIC INTERNATIONAL LAW 295-98 (1968); OSCAR SVARLIEN, AN INTRODUCTION TO THE LAW OF NATIONS 111-112 (1955); OKON UDOKANG, SUCCESSION OF NEW STATES TO INTERNATIONAL TREATIES 404 (1972); Blum, *supra* note 97, at 833; Albert J. Esgain, *Military Servitudes and the New Nations*, in III YEARBOOK OF WORLD POLITY, THE NEW NATIONS IN INTERNATIONAL LAW AND DIPLOMACY (William V. O’Brien, ed. 1965), quoting H. D.

39

incorporated into the Kingdom of Prussia in
1866. Cessation of independent existence
rendered the execution of treaties
impossible.¹²²

The Court cited as a source an 1889 State Department study of
treaty succession, i.e., "Where a state has lost its separate existence, as in
the case of Hanover and Nassau, no questions [of treaty succession] can
arise."¹²³ The Court also invoked a State Department analysis of the effect
on treaties of a State's loss of existence.¹²⁴

The question of whether a State has become extinct was addressed
by a Court of Appeals in 1954 in *Ivancevic v. Artukovic*.¹²⁵ The court held
that the Kingdom of Serbia had not become extinct when the inhabitants of
adjacent and smaller south Slavic States joined with Serbia to form what
was successively called the Kingdom of the Serbs, Croats and Slovenes; the
Kingdom of Yugoslavia; and the Socialist Federal People's Republic of
Yugoslavia. *Ivancevic* therefore does not address the consequences of
extinction.

Therefore, to the extent that U.S. courts have addressed the
question of State extinction, the Supreme Court's *dictum* in *Terlinden v. Ames* is consistent with the scholarly works that a State's treaties lapse
upon the State's extinction.

2. *International judicial tribunals*

Neither the International Court of Justice nor its predecessor, the
Permanent Court of International Justice, has handed down a decision that
turned on the status of personal bilateral treaties of an extinct State, but in
1996, in the case *Concerning application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia)*, the ICJ Separate Opinion of Judge
Weeramantry observed that the Genocide Convention survived the
dismemberment of Yugoslavia because the Convention in embodying

122 Id. at 283.

123 Id. at 287.

124 John Davis Bancroft, in *Treaties and Conventions Concluded Between the United States of America and Other Powers Since July 4, 1776, 1234-36 (1889).*

125 *Ivancevic v. Artukovic*, 211 F.2d. 565, 568-74 (9th Cir. 1954).

41

universal principles of civilized behavior, transcended the concept of state
sovereignty. Judge Weeramantry distinguished the Genocide Convention
from treaties that are "confined within the ambit of a State's
sovereignty."¹²⁶ As to such treaties, "[a]n important conceptual basis
denying continuity...is that the recognition of the predecessor state's
treaties would be an intrusion upon the sovereignty of the successor
state."¹²⁷ Hence, Judge Weeramantry appears to have concluded that
treaties, other than those of universal humanitarian concern, do not as a
mater of law remain in existence upon a state's dissolution.

3. International arbitration panel

A Tripartite Claims Commission (United States, Austria and Hungary) was created in 1927 to fix the amounts of financial obligations to Americans assumed by Austria in its World War I Peace Treaty (Vienna, 1921) with the United States, and the amount assumed by Hungary in its World War I Peace Treaty (Budapest, 1921) with the United States. The Panel found it unnecessary to resolve any question of obligations imposed by customary international law. In passing, however, the Panel compared the U.S.-Austria and U.S.-Hungary Peace Treaties to the U.S.-Germany Peace Treaty (Berlin, 1921) as follows:

> Unlike the Treaty of Berlin "restoring friendly relations" between the United States and Germany, these Treaties in terms "establish" for the first time such relations between Austria and the United States and between Hungary and the United States.¹²⁸

Thus, the Tripartite Claims Commission believed that the treaties
of the Austro-Hungarian Empire did not, upon its extinction at or near the
end of World War I, automatically pass to Austria and Hungary, which
were several of the States that succeeded to parts of the Empire's territory.

126 Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina), 1996 I.C.J. 803, at *640, 646-47 1996 WL 943410 [I.C.J.]. See also Thomas D. Grant, *Territorial Status, Recognition, and Statehood: Some Aspects of the Genocide Case (Bosnia and Herzegovina v. Yugoslavia)*, 33 STAN. J. INT'L L. 305 (1997).

127 *Id.*

128 Tripartite Claims Commission (United States, Austria and Hungary), *Administrative Decision No. 1, 11 (May 25, 1927) (App. 20).*

42

F. The United States Conduct Described by Assistant Attorney General Dellinger Does Not Constitute State Practice for Purposes of Establishing Customary International Law

1. Background

A State's loss of sovereignty over all its territory was relatively common in the Nineteenth Century and in the early Twentieth Century. France annexed Madagascar and Algiers; Great Britain annexed the Southern African Republic; Japan annexed Korea; Italy annexed various Italian States; Prussia annexed Hanover, Frankfurt and Nassau; the United States annexed the Republic of Texas and the Kingdom of Hawaii. In all of those annexations the United States expressed a view that the treaties of the annexed States ended automatically with respect to the territory annexed.¹²⁹

A State's loss of sovereignty over all its territory from a cause other than annexation was less common. A vast number of States combined to form "composite" States or "confederations" or "unions," but the combining States in many cases retained substantial powers to conduct their own foreign relations, including the power to make treaties. An example was the Dual Monarchy of Norway and Sweden, which ultimately dissolved in 1905. When such a hybrid State dissolves and its members resume full sovereignty, each was expected to continue in effect the treaties it had made when it was part of a union.¹³⁰ The USSR was different. Before dissolution, its sub-States did not make bilateral treaties with nation-States.

AAG Dellinger cites four examples of State dissolution to support his contention that the ABM Treaty of 1972 survived the USSR's extinction:

(a) The breakup of the Greater Columbian Union in 1829-1831 into what became Columbia, Venezuela and Ecuador; (b) the dissolution of the Dual Monarchy of Norway and Sweden in 1905; (c) the dissolution of the Austro-Hungarian Empire at or near the end of World War I and (d)

129 Jones, *supra* note 119, at 362.

130 HERBERT A. WILKINSON, THE AMERICAN DOCTRINE OF STATE SUCCESSION 108-109 (1934); SAMUEL B. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT 438 (2d ed. 1916); ROBERT WILLEM GASTON DE MURALT, THE PROBLEM OF STATE SUCCESSION WITH REGARD TO TREATIES 87-88 (1954).

the dissolution of the United Arab Republic in 1961. According to
Dellinger, those events support the proposition that “[w]here a state
divides into its constituent parts, the [diplomatic] practice supports the
continuity of existing treaty rights and obligations.”¹³¹ The quotation that
Dellinger used is from a law review article by Edwin D. Williamson (former
State Department Legal Adviser) and John E. Osborn.¹³²

Dellinger did not mention Yugoslavia's 1992 dissolution, a curious
omission inasmuch as it is a recent example of a State that has been
dissolved, leaving no sovereignty in the extinct predecessor State. It is
therefore more closely analogous to the USSR case than the foregoing four
examples of State dissolution. Regarding Yugoslavia's dissolution, the
United States has taken the position in U.S. Courts and in the U.S. State
Department's publication *Treaties in Force* that none of the Yugoslav
successor States is a continuation of Yugoslavia,¹³³ and in dealing with the
successors of extinct Yugoslavia has "abandoned any assertions of
automatic treaty obligations and relied entirely on ... assurances provided
by the successor states."¹³⁴

Also, Dellinger does not mention the U.S. practice of regarding as
lapsed the treaties of States made extinct by the annexation of their entire
territories. Dellinger gives no reason why those extinctions should be
treated differently from extinctions caused by dismemberment. Indeed,
with respect to the question of treaty survival, the scholarly literature treats
all extinctions in the same way. For example, Professor Amos S. Hershey,
after explaining that "States are extinguished through voluntary

131 Memorandum from Walter Dellinger, Assistant Attorney General, to John M. Quinn, Counsel to the President, Re: Section 233(a) of S. 1745 (June 26, 1996), at 3 n.5 (App. 10).

132 *Id.* (quoting Edwin D. Williamson & John E. Osborn, *A U.S. Perspective on Treaty Succession and Related Issues in the Wake of the Breakup of the USSR and Breakup of USSR and Yugoslavia*, 33 VA. J. INT'L L. 261, 263 (1993)).

133 Declaration of Christopher R. Hill, Director, Office of South Central European Affairs, United States Department of State, filed in *Federal Republic of Yugoslavia v. Park-71st Corp.*, No. 95 Civ. 3659 (AGS) (S.D.N.Y.) ¶¶ 3, 5 (Sept. 21, 1995), *complaint dismissed*, 913 F.Supp. 191 (S.D.N.Y. 1995) (App. 1). The United Nations also concluded that no State is the continuation of the SFRY. U.N. Resolution 777 (Sept. 19, 1992): “[T]he State formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist,” and as a consequence the FRY “cannot continue automatically [the SFRY’s UN] membership.” The Security Council thereupon asked the General Assembly to rule that the FRY “apply for membership in the United Nations and . . . not participate in the work of the General Assembly.” The event is described in Blum, *supra* note 97, at 833. See also James B. Foley, Deputy State Department Spokesman, Statement on Yugoslav State (Sept. 30, 1997), 1997 WL 14464578 (App. 21).

134 Williams, *supra* note 64, at 32.

incorporation, forcible annexation, division into several *States*, or union
with other States,"¹³⁵ says: "It is clear that political (including personal and
dynastic) treaties and alliances of the extinguished State fall to the
ground."¹³⁶

2. *A State practice does not contribute to the development of customary international law unless the practice is conducted out of a sense of necessity to comply with international law.*

International law, like the common law in Anglo-American jurisprudence, can grow out of long-practiced conduct.¹³⁷ In international law, it is the conduct of States that is relevant. But not all conduct of States contributes to the growth of international law because States, like other persons, sometimes engage in lawful conduct for reasons that have nothing to do with their international legal obligations. For example, States admit aliens for residence, borrow money from other States, make treaties with other States, assert claims to property located in other States, grant diplomatic asylum, settle disputes they have with other States, and do other things "merely for reasons of political expediency."¹³⁸ Indeed, in dealing with questions of treaty survival, States appear to act in the way they act when dealing with questions as to whether they should enter new treaties, i.e., they identify their political, economic, security and other interests and seek the greatest benefits they might achieve, using any arguments they can muster, while giving up as little as they have to.¹³⁹ Therefore, to separate State conduct that can contribute to the growth of international law from State conduct that does not contribute, courts have established a rule that is called *opinio juris sive necessitatis*, which loosely translates as "a

135 HERSHEY, *supra* note 95, at 215 (emphasis added).

136 *Id.* at 218.

137 Bederman, *supra* note 98, at 1451; BLACKSTONE, *supra* note 98, at 72; O'CONNELL, I INTERNATIONAL LAW, *supra* note 39, at 3-37; MARK E. VILLIGER, CUSTOMARY INTERNATIONAL LAW AND TREATIES 3-60 (rev. 2d ed. 1997).

138 *Columbian-Peruvian Asylum Case*, 1950 ICJ 4, 277 (Nov. 20). See generally *Jo Lynn Slama, Opinio Juris in Customary International Law*, 15 OKLA. CITY U. L. REV. 603 (1990).*

139 VILLIGER, *supra* note 137, at 48 (*opinio juris* seems to exclude State conduct engaged in solely for convenience); *Columbian-Peruvian Asylum Case*, 1950 I.C.J. at 276-78.

45

conviction that a rule is obligatory."¹⁴⁰ For short, it is *opinio juris*.
According to this rule, the only State conduct that can contribute to the
growth of international law is an act done out of a sense that the act is
required by international law.¹⁴¹

According to Sir Hersch Lauterpacht, to cite State practice as
evidence of "binding customary international law," one must establish "the
[State's] conviction that the conduct in question is followed as a matter of
legal obligation . . . "¹⁴²

The American Law Institute states the rule of *opinio juris* as
follows:

> For a practice of States to become a rule of customary international law it must appear that the States follow the practice from a sense of legal obligation (*opinio juris sive necessitatis*); a practice that is generally followed but which States feel legally free to disregard does not contribute to customary law.¹⁴³

140 Slama, *supra* note 138, at 605 n.13, *citing* H. STEINER & D. VAGTS, *TRANSNATIONAL LEGAL PROBLEMS* 290 (3d ed. 1986).

141 In addition to the authorities cited in the text, the following describe the rule of *opinio juris* as an established rule of international law: *The Paquete Habana*, 175 U.S. 677, 700 (1900); *The Scotia*, 14 U.S. (Wall.) 170 (1871); Helen Silving, "*Customary Law*": Continuity in *Municipal and International Law*, 31 IOWA L. REV. 615, 622 (1946); Herbert W. Briggs, *The Columbian-Peruvian Asylum Case and Proof of Customary International Law*, 45 AM. J. INT'L L. 728, 730 (1951); J. L. BRIERLY, *THE LAW OF NATIONS, AN INTRODUCTION TO THE INTERNATIONAL LAW OF PEACE 60-61* (5th ed. 1955); Kunz, *supra* note 119, at 71-76; D. P. O'CONNELL, *I INTERNATIONAL LAW 16, 18 (1965); Bin Cheng, *United Nations Resolutions on Outer Space: "Instant" International Customary Law*, 5 INDIAN J. INT'L L. 23, 36 (1965); CLIVE PARRY, *THE SOURCES OF EVIDENCE OF INTERNATIONAL LAW 61-63* (1965); John A. Perkins, *The Changing Foundations of International Law: From State Consent to State Responsibility*, 15 B.U. INT'L L.J. 433, 440 (1997); VILLIGER, *supra* note 137, at 52.

142 SIR HERSCH LAUTERPACHT, *THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT* 368 (1958).

143 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §102(1)(c)(3) cmt. c (1987).

46

In three leading cases, the *North Sea Continental Shelf Cases* (1969),¹⁴⁴ the *Anglo-Norwegian Fisheries Case* (1951),¹⁴⁵ and the *Columbian-Peruvian Asylum Case* (1950),¹⁴⁶ all involving claims based on State practice, the International Court of Justice ruled that a failure to establish that the State practice at issue met the *opinio juris* test required a conclusion that the practice had not passed into customary international law. Also, in the *1927 Lotus* case,¹⁴⁷ the Permanent Court of International Justice likewise rejected a claim because of a failure to meet the *opinio juris* test.

The *Anglo-Norwegian Fisheries* case typifies the application of the *opinio juris* rule. The ICJ held that the evidence did not establish the existence of a purported customary rule of international law limiting the base-line of territorial waters to ten miles in the case of a bay. The evidence was to the effect that some States had adopted the ten-mile limit by statute or by treaty, and some arbitral proceedings had adhered to the ten-mile limit. Nonetheless, the ICJ ruled that, however broadly the limit was respected, the State practice failed as evidence of the existence of customary international law because it was not practice that responded to a command of law.¹⁴⁸

Hence, if the acts of diplomacy cited by AAG Dellinger are to serve as evidence of customary international law, they must pass the *opinio juris* test.

3. The record does not show that, in any of the four episodes cited by Dellinger, the United States accepted a treaty as binding on it out of a sense that international law so required

a. *The Dissolution of the Greater Columbian Union, 1829-1831*

144 *North Sea Continental Shelf Cases*, 1969 I.C.J. 4, 44-45 (Feb. 20).

145 *Anglo-Norwegian Fisheries Case*, 1951 I.C.J. 4, 131 (Dec. 18). See also *Fisheries Jurisdiction Case*, Gr. Brit and N. Ir. v. Ice, 1974 I.C.J. 3.

146 *Columbian-Peruvian Asylum Case*, 1950 I.C.J. 4, 276 (Nov. 20).

147 *The Lotus*, (1927) P.C.I.J. Rep. Ser. A. No. 10, at 28; *Anglo-Norwegian Fisheries Case*, 1951 I.C.J. 4, 131 (Dec. 18).

148 *Anglo-Norwegian Fisheries Case*, 1951 I.C.J. 4, 131 (Dec. 18).

47

[LC]

In 1819, the Spanish Kingdom of New Granada, the Captain-
Generalship of Venezuela and Quito (also called Ecuador) formed the
Greater Columbian Union. The Union Dissolved in 1829-1831. The
extent to which the three States had submerged their separate identities in
the Union is a matter of dispute. According to one scholar, the Union
consisted of three States. Hence, the dissolution did not manifest a unitary
State's loss of sovereignty over territory.¹⁴⁹ Later, Columbia and the
United States signed a new treaty, which contained language that can be
read to imply that each party had considered the pre-dissolution treaties to
have continued in effect in the period between the Union's dissolution and
the making of the new treaty.¹⁵⁰

The episode was described by the U.S. Secretary of State in 1832,
and more recently in books, articles and reports on State succession,
including a report by a Committee of the UN's International Law
Commission.¹⁵¹ If the United States had manifested an understanding that
it acted out of a compulsion of international law, that would have been a
noteworthy event to students of the law of State succession as well as to
AAG Dellinger, *i.e.*, a bona fide manifestation of action *opinio juris* in a
field of few if any such manifestations. Yet, neither Dellinger nor any other
scholar, identifies any such manifestation.

There is, in short, nothing to suggest that the United States was
acting out of *opinio juris* in conducting treaty relations with the successors
of the Greater Columbian Union.

b. *The Dissolution of the Dual Monarchy of Norway and Sweden, 1905*

In 1814, the Kingdom of Norway and the Kingdom of Sweden
formed a "Dual Monarchy" by which one person became King of both

¹⁴⁹ MCNAIR, *supra* note 96, at 412-18.

150 DE MURALT, *supra* note 130, at 86-87.

¹⁵¹ President Andrew Jackson, Message to the House of Representatives, transmitting Report of Secretary of State Edward Livingston, on Government of Columbia, H.Doc. No. 173, 22d Cong. 1st Sess. (March 16, 1832) (App. 22). *Draft Articles on Succession of States in Respect of Treaties with Commentaries Adopted by the International Law Commission at Its Twenty-Sixth Session*, U.N. GAOR, 1977 Sess. & res. Sess. 1978, Vol. III, at 89, U.N. Doc. A/Conf. 80/16/Add. 2 (1979); Jones, *supra* note 119, at 367-68; O'CONNELL, *V THE LAW OF STATE SUCCESSION*, *supra* note 101, at 43-44; D. P. O'Connell, *State Succession in the New Nations*, in *INTERNATIONAL LAW AND DIPLOMACY*, III YEARBOOK OF WORLD POLITY 13 (1965); DE MURALT, *supra* note 130, at 86-87.

48

States.¹⁵² In a 1910 letter to the Minister of Japan in Washington, the U.S. Secretary of State described the treaty operations of the Dual Monarchy from the time it was formed until it dissolved in 1905:

> In point of fact the Government of Norway and the Government of Sweden have hitherto acted independently in execution of their treaty engagements, each within its sovereign jurisdiction. In the matter of extradition the United States has concluded separate treaties with the Governments of Norway and Sweden.¹⁵³

The U.S. practice of concluding separate extradition treaties with Norway and Sweden has been interpreted by the UN's International Law Commission as recognition that the two States had "separate international personalities."¹⁵⁴

In 1905, when Sweden and Norway separated from their Union, each notified the United States and other States of its position on treaties made during the period of the Union, i.e., a treaty that had been made specifically with reference to one member of the Union would continue in effect between that member and its treaty partner, and would not continue in effect otherwise; a treaty made for the Union as a whole would continue in effect to the extent that it related to one of the members of the Union, and would not otherwise continue in effect. The United States and France acquiesced. Great Britain did not acquiesce as to the continuance of any treaty with Norway, and as to Sweden, reserved the right to examine the treaties one-by-one.¹⁵⁵

Like the episode of the Greater Columbia Union, no public account of that episode states or implies that the U.S. acquiescence was driven by a sense of necessity to comply with international law. In one

152 FRIDTJOF NANSEN, NORWAY AND THE UNION WITH SWEDEN 26 (1905).

153 Letter from Secretary of State Elihu Root to Minister of Japan Takahira (Nov. 10, 1905), reprinted in HACKWORTH, *supra* note 119, at 362.

154 *Draft Articles on Succession of States in Respect of Treaties with Commentaries Adopted by the International Law Commission at Its Twenty-Sixth Session*, U.N. GAOR, 1977 Sess. & res. Sess. 1978, Vol. III, U.N. Doc. A/CONF.80/16/Add.2 (1979).

155 Baty, *supra* note 3, at 123-24 (1923). See also KEITH, *supra* note 3, at 101.

49

respect, however, the episodes differ, in that in the period between the dissolution of the Greater Columbian Union (1829-31) and the dissolution of the Dual Monarchy of Norway and Sweden (1905), additional government officials and scholarly writers had expressed opinions on the status of treaties of extinct States. None of them suggest that the dissolution of Greater Columbia was a precedent relevant to the dissolution of the Norway/Sweden Dual Monarchy.

Thus, to the extent that views of law had been expressed after the Greater Columbian Union's dissolution, those views suggested that the United States was not bound by law to acquiesce in Norway's and Sweden's proposal that any of their treaties with the United States remained in effect after their Dual Monarchy's dissolution. Indeed, to the scholars, the law appeared to be to the contrary. Hence, there is no evidence to support Dellinger's implied claim that the U.S. practice *vis-a-vis* the dissolved Dual Monarchy of Norway and Sweden was arrived at by *opinio juris*. That episode therefore does not support the existence of a rule of customary international law.

### c. The Dissolution of the Austro-Hungarian Empire, 1918

The Austro-Hungarian Empire dissolved at or about the end of World War I. The Empire had fought as an ally of the German and Ottoman Empires, against a group of States (the "Allies"), the principals of which were Britain, France, Italy, Japan, Russia, (until its withdrawal in 1917), and the United States (which entered in 1917 as against the German and Austro-Hungarian Empires).

After the War, the Allies jointly negotiated with Germany the Peace Treaty of Versailles (1919),¹⁵⁶ to which the U.S. Senate denied consent. Therefore, the Treaty was not ratified by the United States.¹⁵⁷

The Allies jointly negotiated other Peace Treaties which the United States did not ratify, including treaties with Hungary (Trianon, 1920),¹⁵⁸

¹⁵⁶ Treaty of Versailles, June 28, 1919, reprinted in II MAJOR PEACE TREATIES OF MODERN HISTORY 1265 (F. L. Israel, ed., 1967).

¹⁵⁷ Edwin Borchard, *Shall the Executive Agreement Replace the Treaty?*, 53 YALE L.J. 664, 665-66 (1943-1944).

¹⁵⁸ Treaty of Trianon (June 4, 1920).

50

and with Austria (St. Germain-en-Laye, 1919).¹⁵⁹ The United States made peace by separate treaties, *i.e.*, with Germany (Berlin, 1921),¹⁶⁰ with Austria (Vienna, 1921)¹⁶¹ and with Hungary (Budapest, 1921).¹⁶²

In the recitals at the beginning of the U.S. Treaty with Germany, the parties state that
> "Being desirous of *restoring* the friendly relations existing between the two nations prior to the outbreak of war. . . [h]ave for that purpose appointed their plenipotentiaries. . ." (emphasis added). The recitals introducing the Treaty with Austria are different, *i.e.*, "Considering that the former Austro-Hungarian Monarchy ceased to exist and was replaced by a republican Government . . . ," and "Being desirous of *establishing securely* friendly relations between the two nations. . . [h]ave for that purpose appointed their plenipotentiaries. . ." (emphasis added). The recitals in the Treaty with Hungary are substantially the same as in the Treaty with Austria, *i.e.*, "Considering that the former Austro-Hungarian Monarchy ceased to exist and was replaced in Hungary by a National Hungarian Government . . . ," and "Being desirous of *establishing securely* friendly relations between the two nations . . . [h]ave for that purpose appointed their plenipotentiaries. . ." (emphasis added). Austria insisted that it was not the continuation of the Empire.¹⁶³ Austria's position was supported by its national courts and by a Tripartite Commission that included the United States.¹⁶⁴ The Commission cited the above-described differences in the wording of the U.S. treaties with Germany, Austria and Hungary as evidence that neither Austria nor Hungary was a continuation of the Empire.

Moreover, Article II(1) of the 1921 U.S./Austria Peace Treaty, Austria confers on the United States "the rights, benefits and advantages"

159 Treaty of St. Germain-en-Laye (Sept. 10, 1919).

160 Treaty of Peace with Germany, Aug. 25, 1921, U.S.-F.R.G., T.S. No. 658 (Excerpts, App. 23).

161 Treaty of Peace with Austria, Aug. 24, 1921, U.S.-Aus., T.S. No. 659 (Excerpts, App. 24).

162 Treaty of Peace with Hungary, Aug. 29, 1921, U.S.-Hung., T.S. No. 660 (Excerpts, App. 23).

163 See KELSEN, *supra* note 119, at 384 n.85; MAREK, *supra* note 74, at 230-32; Thomas Baty, *The Obligations of Extinct States*, 35 YALE L.J. 434, 435-37 (1925-1926); Oskar Lehner, *The Identity of Austria 1918 as a Problem of State Succession*, 44 Aus. J. Pub. Int'l L.63 (1992). For a history of the dissolution of the Austro-Hungarian Empire, see ROBERT A. KANN, *A HISTORY OF THE HABSBURG EMPIRE 468-520* (1974); RENE ALBRIGHT-CARRIE, *A DIPLOMATIC HISTORY OF EUROPE SINCE THE CONGRESS OF VIENNA 360-371* (1958).

164 Tripartite Claims Commission (United States, Austria and Hungary) Administrative Decision No. 1, 4-6, 11-14 (May 25, 1927) (App. 20).

51

conferred by Austria on the other Allied and Associated Powers by
designated Parts of the Treaty of St. Germain-en-Laye (1919) (which the
United States did not become a party to),¹⁶⁵ including Part X. Part X of
the Treaty of St. Germain-en-Laye, Section II, Articles 234-247, which
provides a regimen for dealing with the treaties of the dissolved Austro-
Hungarian Empire. Article 234 designates particular treaties of the
dissolved Austro-Hungarian Empire, and provides that these treaties alone
“shall . . . be applied as treaties between Austria and those of the Allied and
Associated powers party

thereto . . .”¹⁶⁶ Some examples are the Convention of October 11, 1909, regarding the international circulation of motor-cars, and the Convention of June 12, 1902, regarding the guardianship of minors. Article 241 provides that each of the Allied or Associate Powers “shall notify to Austria the bilateral agreements of all kinds which were in force between her and the former Austro-Hungarian Monarchy, and which she wishes should be in force as between her and Austria.”¹⁶⁷ Article 241 further provides that “[t]he date of the coming into force shall be that of the notification.”¹⁶⁸ Also, “[o]nly those bilateral agreements which have been the subject of such a notification shall be put into force between the Allied and Associated Powers and Austria.”¹⁶⁹ The U.S. Peace Treaty with Hungary, i.e. Budapest (1921), by reference to the Treaty of Trianon (1920), Article II(1), adopts by reference Article X of the Treaty of Trianon (1920), which is in material respects identical to Article X of the Treaty of St. Germain-en-Laye.¹⁷⁰ Both treaties were submitted to and approved by a two-thirds vote in the U.S. Senate.

In 1923 the State Department Solicitor explained that Article II (i) of the 1921 Treaty with Austria, by incorporating section 241 of the Treaty of St. Germain-en-Laye, had the effect of terminating the U.S./Austria

165 Treaty of Peace between the United States and Austria (Vienna, 1921) (Excerpts, App. 24).

¹⁶⁶ Treaty of Peace between Austria on the one hand and the Allied and Associated Powers on the
Other (St. Germain-en-Laye, 1921).

167 *Supra* note 159, at Article 234 (Excerpts, App. 24).

168 *Id.* at Article 241.

169 *Id.*

170 Treaty of Peace Between the United States and Hungary (Budapest, 1921) (Excerpts, App. 25).

52

Naturalization Treaties of 1870.<sup>171</sup> In 1927 the State Department Solicitor explained that Article 241 gave the United States a "right. . .to revive, by giving notice to Austria within a specified period, any treaty or convention which it may be desired to continue in effect." The Solicitor explained further that the United States did not within the period specified in Article 241, give notice of "its intention to revive the Consular Convention concluded between this country and Austria-Hungary on July 11, 1870," adding that the Department "therefore does not consider that this Consular Convention is now in force."<sup>172</sup>

Given that the United States and Austria agreed to an elaborate regimen by which the United States would select the U.S./Austro-Hungarian Empire treaties that it wanted to be in force with Austria, and that this regimen was consented to by the Senate, there is no support for Dellinger's implied claim that the U.S./Austro-Hungarian treaties continued automatically by operation of law, or Dellinger's implied claim that the Executive Branch revived those treaties without the Senate's consent.

In short, the United States did not regard itself as bound by
international law to the treaties of the extinct Austro-Hungarian Empire.

d. *The Secession of Syria from the United Arab Republic, 1961*

In 1958, Syria and Egypt formed a union called the United Arab Republic (the "UAR"). In 1961, Syria seceded and was once again recognized as a separate State. In the view of the United States, the UAR continued to exist notwithstanding Syria's secession, a view shared by the UAR itself. Under the circumstances, as a matter of international law, treaties would remain in place absent some reason why a particular treaty could no longer fulfill its object and purpose. Moreover, a scholarly work expresses the opinion that Syria's treaties that were in force when it joined the Union never went out of force.<sup>173</sup> Therefore, in 1961 when Syria

171 Letter from United States State Department Solicitor to Mr. Vallance, Effect of War on Naturalization Treaty Concluded Between the United States and Austria on September 20, 1870, at 1-2 (Apr. 6, 1923) (App. 26).

172 Letter from United States State Dept. Solicitor Green H. Hackworth to Mr. Jean Dube 1-2 (May 25, 1927) (App. 27).

173 L. C. Green, *The Dissolution of States and Membership of the United Nations*, in LAW, JUSTICE AND EQUITY 162-166 (R. H. Code Holland & G. Schwarzenberger, eds., 1967); J. H. W. VERZIJL, *INTERNATIONAL LAW IN HISTORIC PERSPECTIVE* 126 (1969); United States Dept. of State, Bureau of Intelligence and Research, *The*

5. The U.N. Security Council Decision not to oppose giving the Russian Federation veto power does not evidence customary international law because the decision was not required by international law

Within days after the USSR dissolved in December, 1991, the Russian Federation asked the United Nations Security Council for the USSR's Permanent Seat (with veto power) on the Security Council. The United States could have exercised its veto to preclude a Security Council decision to grant the Russian Federation's request. Instead, the United States, at a non-public meeting with other members of the Security Council, granted the Russian Federation's request.

The Security Council made no official announcement at the time other than by removing the USSR's nameplate and replacing it with a Russian Federation nameplate in the Security Council chamber.175 The Russian Federation's request was handled quietly and quickly to avoid precipitating consideration of proposals to restructure the Security Council to abolish the veto power, to forge a merger of the veto powers of France and Great Britain, and to give veto powers to Germany or Japan or both. According to one news account, "western diplomats are said to be lobbying hard to avoid a messy debate on the reform of the Security Council."176 Similarly, former U.S. Ambassador to Italy Richard N. Gardner explained: "The one thing the United States, Britain and France wanted to avoid at all costs is anything that would open up the Pandora's box of a Charter amendment altering the present membership of the Security Council and possibly ending the right of a veto."177

Carolyn L. Willson, U.S. Department of State, has called the decision to give the USSR seat to the Russian Federation a "de facto amendment" of the U.N. Charter, a locution that implies that without amendment the U.N. Charter would not have permitted the Russian

175 Michael P. Scharf, *Musical Chairs: The Dissolution of States and Membership in the United Nations*, 28 CORNELL INT'L L.J. 29, 46-53 (1995); Carolyn L. Wilson, *Current Development: Changing the Charter: The United Nations Prepares for the Twenty-First Century*, 90 AM. J. INT'L L. 115, 117-19.

176 Trevor Rose, *Switch of Soviet Security Council Seat Could Spur Reform Ideas*, WASH. POST., Dec. 26, 1991, at A25; see also Paul Lewis, *3 Western Powers for Russian Takeover of Soviet U.N. Seat*, N.Y. TIMES, Dec. 24, 1991, at A8; Paul Lewis, *West Acts to Defer Issue of New U.N. Council Seats*, N.Y. TIMES, Jan. 3, 1992, at A6; Sam Jameson, *Japan to Seek Seat on U.N. Security Council*, L.A. TIMES, Jan. 29, 1992, at A9.

177 Scharf, *supra* note 175, at 48, n.104, quoting from a statement by former Ambassador Gardner, reported in Paul Lewis, *3 Western Powers favor Russian Takeover of Soviet U.N. Seat*, N.Y. TIMES, Dec. 24, 1991, at A8.

Federation to take the USSR's seat, a tacit statement that the Russian Federation was not the same State as the USSR. Professor Michael P. Scharf, who at the time served as the State Department lawyer with responsibility for legal issues concerning succession to membership at the United Nations, goes no farther than to say that "[W]hat is significant is that the members of the United Nations have found it in their interests to act (or at least to depict their actions) concerning membership succession in conformity with legal principles and precedent."¹⁷⁸

The precedent to which Professor Scharf refers is the U.N.'s decision in 1947, that when British Colonial India (a member of the U.N. even before Indian independence) became independent, it would automatically acquire U.N. membership, but that Pakistan, which emerged as a new State at the same time, would have to apply for membership.¹⁷⁹ The two episodes, however, differ in a material respect: treating India as though it were an incumbent U.N. member, rather than as a new applicant could not change the regimen for governing the U.N., whereas allowing the Russian Federation to occupy (as incumbent) the USSR's seat on the Security Council would vastly change the governing regimen, i.e., as an incumbent, the Russian Federation would have a veto power. As just another U.N. member it would not. So, when the Security Council gave the Russian Federation a veto power, it was not bound to do so on the basis of the 1947 decision on India and Pakistan. The Security Council, and the U.N. generally, acted on the basis of expediency, not legal requirement. Therefore, the USSR/Russian Federation decision does not constitute *opinio juris* as to the survival of treaties of the USSR.

In sum, U.S. diplomatic practice has not contributed to the development of a rule of law that a non-dispositive treaty of an extinct State automatically becomes a treaty between a successor State and the extinct State's treaty partner.

G. *The 1978 Vienna Convention on Succession of States in Respect of Treaties Does Not Resolve Any ABM Treaty Question Because The United States Is Not a Party to The Vienna Convention And Conventions Do Not Bind Non-Parties*

178 Scharf, *supra* note 175, at 67-69.

179 *Id.* at 68-69.

56

abhorrence" by way of treaties on human, political and civil rights; by declarations of the United Nations General Assembly; and by domestic laws.¹⁸³ The court, however, issued this caution:

> The requirement that a rule command the "general assent of civilized nations" to become binding upon them all is a stringent one. Were this not so, the courts of one nation might feel free to impose idiosyncratic legal rules upon others, in the name of applying international law.¹⁸⁴

In counseling caution, the court could have cited the *North Sea Continental Shelf* case, decided by the International Court of Justice in 1969.¹⁸⁵ The ICJ rejected the contention of Denmark and the Netherlands (in a dispute with Germany) that, by reason of the adoption of the Convention on the Continental Shelf, a principle for determining continental-shelf boundaries between adjacent coastal States (the principle of "equidistance") had become a rule of customary international law. The Convention was opened for signature for 1958. Between 1958 and 1969, thirty-nine States had become parties.¹⁸⁶ By 1969, approximately 70 States were exploring or exploiting continental shelf areas.¹⁸⁷

Denmark and the Netherlands argued that the participation of 39 States in the Convention was sufficient to establish the equidistance principle as a rule of customary international law binding on every coastal State, not just the 39 States that were parties to the Convention. The ICJ rejected the argument. The participation of 39 States was not sufficiently "widespread and representative" to show that the equidistance principle had passed into a rule binding on States that were not parties to the Convention. That number of participants "though respectable," was "hardly sufficient" even when compared to the total number of States

183 *Id.* at 884.

184 *Id.* at 881.

185 *North Sea Continental Shelf Cases, 1969 I.C.J.* 3 (Feb. 20).

186 *Id.* at 25.

187 *Id.* at 227 (Lachs, J., dissenting).

58

"whose interests were specially affected," i.e. were eligible to join and had continental shelves.¹⁸⁸

The evidence as to States' acceptance of the Vienna Convention does not approach the level of proportional participation that the ICJ found insufficiently widespread in the *North Sea Continental Shelf* case, i.e., 39 out of 70 interested States in the *Continental Shelf* case; 20 out of at least 185 States in the case of the 1978 Vienna Convention (all States have an interest in the making of treaties). Moreover, the 1978 Vienna Convention's participants do not include any developed state other than the Holy See or any Western European State, or any North American State or any of the five States (United States, the Russian Federation, China, France and Great Britain) that has a Permanent Seat (and veto power) on the UN Security Council. The line is pushed even farther from the regimen of customary international law if weight is given to proportion of population, because the 1978 Vienna Convention's participants collectively represent about 15 percent of the World's population.¹⁸⁹ Moreover, in the *North Sea Continental Shelf* case the ICJ ruled that the passage of eleven years between the Convention's signing and the Court's decision was adequate to judge how well the Convention was becoming accepted by States. One commentator explained:

> However, when time passes and States neglect to become parties to a multilateral instrument, the abstention constitutes a silent rejection of the treaty. Early in the history of the treaty, it is impossible to determine what position States will ultimately take, but 20 years after the treaty was drafted, one can

188 *North Sea Continental Shelf Cases*, 1969 I.C.J. 3, 43 (Feb. 20).

189 Participants in the 1978 Vienna Convention are Angola, Bosnia and Herzegovina, Brazil, Chile, Cote d'Ivoire, Croatia, Czech Republic, Democratic Republic of the Congo, Dominica, Egypt, Estonia, Ethiopia, Holy See, Iraq, Madagascar, Morocco, Niger, Pakistan, Paraguay, Peru, Poland, Senegal, Seychelles, Slovakia, Slovenia, Sudan, the former Yugoslav Republic of Macedonia, Tunisia, Ukraine and Uruguay. (U.N. Sales No. F.79.v.10 (1996)). Each of the parties other than the Holy See is a "developing" State according to the classification used by the International Bank for Reconstruction and Development. See The World Bank Group, *The World Bank's Role, and Countries and Regions listings*, <http://www.worldbank.org/html/extdr/backgrd/ibrd/role.htm> (visited Dec. 29, 1998), and <http://www.worldbank.org/html/extdr/country.htm> (visited Dec. 29, 1998). The parties to the 1978 Vienna Convention represent about 15 percent of the world's population of 5.9 billion in 1998. United Nations, Population division, Department of Economic and Social Affairs, 1998 Revision of the World Population Estimates and Projections (1998) (for world population figure); Population Reference Bureau, 1998 World Population Data Sheet (1998) (for population of each of the parties to the 1978 Vienna Convention).

59

gain a fairly clear idea of how much
acceptance the treaty will probably ever
secure.¹⁹⁰

If time available for participation is given weight, there is even less to commend the 1978 Vienna Convention as a maker of customary international law, because nineteen years have elapsed since the 1978 Convention was signed.¹⁹¹

So Article 34.1 of the 1978 Vienna Convention does not meet the "stringent" requirement suggested by *Filartiga* or the "widespread and representative" requirement of the *North Sea Continental Shelf* case. The 1978 Vienna Convention has not passed into customary international law and therefore binds no State other than a party to that Convention.

I. The Continuation Principle of the 1978 Vienna Convention Would Not Apply to the ABM Treaty Vis-a-vis the Russian Federation Because the Continuation of the Treaty Would Conflict with the Treaty's Object and Purpose

The clause in the 1978 Vienna Convention that would require the continuation in force vis-à-vis successor States of the treaties of their extinct predecessors does not apply if continuation would be incompatible with the treaty's object and purpose or would radically change the conditions for its operation.

Article 34.1 of the 1978 Vienna Convention provides:

Succession of the States in cases of separation of parts of a
State

1. When a part or parts of 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

190 Richard Baxter, *Treaties and Custom*, RECUIL DES COURS 25, 99-101 (1970); See also Briggs, *supra* note 141, at 728.

191 "It took nineteen years for the 1978 Vienna Convention or the Succession of States in Respect of Treaties to enter into force with the deposit of the fifteenth instrument of ratification by the Former Yugoslav Republic of Macedonia (FYROM) on 7 October, 1996." Koskenniemi, *supra* note 64, at 89, 93-94 (footnotes omitted).

60

Neither a simple recognition of Russia as the sole ABM successor (which would have ignored several former Soviet states with significant ABM interests) nor a simple recognition of all NIS states as full ABM successors would have preserved fully the original purpose and substance of the Treaty as approved by the Senate in 1972.¹⁹²

Therefore, according to President Clinton, to achieve the Treaty's purposes, the area of its application must include the territories of Belarus, Kazakhstan and Ukraine in addition to the Russian Federation. To include those territories they would have to be made parties. This would require a substantial amendment to the Treaty's provisions on decision-making. Moreover, the alteration in the ABM Treaty's territorial scope would have a material affect on the ability of parties to defend their national territory by means of the one permitted ABM site.

Were Belarus, Kazakhstan and Ukraine simply added as parties (assuming, for the sake of argument, President Clinton's view that the Treaty remains in force between the United States and the Russian Federation), the veto power that the United States has as regards the ABM Treaty of 1972 in treaty governance would be destroyed. Also, the United States and the Russian Federation together could be outvoted by the other three States. So critical a change in the powers of governance would not be compatible with the ABM Treaty as adopted by the United States and the USSR.

Moreover, the dynamics of amending the Treaty would change drastically. It would no longer be enough for the United States to convince the other major party to agree to an amendment. The other three could block an amendment, requiring the major parties to withdraw and start anew if they desired an amended treaty.

J. *The ABM Treaty Did Not Become a Treaty Between the United States and the Russian Federation by Devolution*

In anticipation of dissolving, a State may want to impose its treaties on both its treaty partners and its successors. To that end, it may proclaim that a treaty will become a treaty between its successor and its

¹⁹² Letter from President William J. Clinton to Benjamin A. Gilman, Chairman, Committee on International Relations, House of Representatives (Nov. 21, 1997) (App. 7).

presumption that no third party had such right.¹⁹⁵ In addition, Article XV.2 of the ABM Treaty allows each party to withdraw on specified grounds, without the consent of anyone else, upon six months' advance notice. Finally, a party is allowed to withdraw "if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests" (emphasis added). Hence, the decision as to whether to withdraw is vested exclusively in each party. Therefore, the ABM Treaty cannot reasonably be read as having transferred a legally recognizable interest to any third party.

2. The ABM Treaty did not evidence an intent to restrict either treaty party's use of particular territory beyond the time that the Treaty was to be in force

Some scholars suggest that a treaty may create a "servitude" – that is, a restriction on a particular use of territory for the benefit of the other party that survives the first party's extinction, even if no third-party right is created. Such obligations "are said to be in the nature of covenants running with the land."¹⁹⁶ Whether, in international law, such a device as a servitude actually exists, is hotly contested.

According to F.A. Vali:

> The 'servitude' of international law is the traditional scapegoat of international jurisprudence. There is hardly any concept or doctrine of international law which has suffered such contemptuous criticism and blunt rejection, and at the same time enjoyed such unsubstantiated approval and wanton praise. It has been accused of being the absolute vestige of medieval patrimonial,

¹⁹⁵ "The standard of proof of the existence of rights in rem in customary international law is strict, and it is believed, although it cannot be demonstrated here, that there is no general rule accepted ex opinio juris sive necessitatis that 'real' or 'localized' treaties automatically bind successor States." A. P. Lester, *State Succession to Treaties in the Commonwealth*, 12 INT'L & COMP. L.Q. 475, 501 (footnote omitted).

¹⁹⁶ James Wilford Garner, *Questions of State Succession Raised by the German Annexation of Austria*, 32 AM. J. INT'L L. 421, 432-33 (1938). To like effect is DE MURALT, *supra* note 130, at 108. See also Malcolm N. Shaw, *State Succession Revisited*, 1994 FINNISH Y.B. INT'L L. 34 77 (“where an existing State comes to an end as an international person and is replaced by two or more States it is accepted that political treaties will not continue but that territorially grounded treaties will continue . . . ”)

64

a view to an agreed end." If the ABM Treaty had ended by a party's withdrawal under Article XV.2, neither party would have been further obliged to forego deploying ABM systems anywhere on its territory. The end of the Treaty as a result of the USSR's extinction could not give the Treaty any greater power to burden particular territory. The ABM Treaty therefore was the antithesis of what O'Connell describes as treaties that "impress" upon a territory a "special legal status" that "limit[s] the incidence of sovereignty" on that territory. Similarly, the ABM Treaty was the opposite of Vattel's example of a right acquired by conquest that is "once for all acquired, independent of any mutual performance of subsequent acts." Finally, it cannot be assumed that the United States has, outside any treaty, granted any third State a legal right to require the United States to forego deployment of a national missile defense.

Accordingly, the ABM Treaty was not a dispositive treaty.

V. CONCLUSION

The ABM Treaty was a bilateral, non-dispositive treaty. In accordance with longstanding principles of international law, expounded with remarkable consistency by numerous officials and scholars from various countries over hundreds of years, 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.

67

TABLE OF AUTHORITIES

CASES

<table><tbody><tr><td>Abu Eain v. Wilkes,<br>641 F. 2d 504 (7th Cir. 1981)</td><td>6</td></tr><tr><td>Administration of Finances v. Ornstein,<br>Ann. Dig. 75 Roumanian Court of Cassation, Third Chamber</td><td>3</td></tr><tr><td>Air Canada v. United States Dept. of Transportation,<br>843 F.2d 1483 (D.C. Cir. 1988)</td><td>6</td></tr><tr><td>In re Air Crash Disaster at Warsaw Poland on March 14, 1980,<br>535 F. Supp. 833 (E.D.N.Y. 1982)<br>aff'd, 705 F. 2d. 85 (2d. Cir.),<br>cert. denied, 464 U.S. 845 (1983).</td><td>13</td></tr><tr><td>Alaska Airlines, Inc. v. Brock,<br>480 U.S. 678 (1987)</td><td>17</td></tr><tr><td>Alcan Aluminum Corp. v. United States,<br>986 F. Supp. 1436 (Ct. Int'l Trade 1997)</td><td>6</td></tr><tr><td>Ameron, Inc. v. United States Army Corps of Engineers,<br>610 F. Supp. 750 (D.N.J. 1985),<br>aff'd as modified, 787 F.2d 875 (3d Cir. 1986),<br>aff'd on reh'g, 809 F.2d 979 (3d Cir. 1986)</td><td>11</td></tr><tr><td>The Amiable Isabella,<br>19 U.S. (6 Wheat.) 1 (1821)</td><td>6, 16</td></tr><tr><td>Anglo-Norwegian Fisheries Case,<br>1951 I.C.J. 4 (Dec. 18)</td><td>39</td></tr><tr><td>Arnbjornsdottir-Mendler v. United States,<br>721 F.2d 679 (9th Cir. 1983)</td><td>8</td></tr><tr><td>Bacardi Corp. of America v. Domenech,<br>311 U.S. 150 (1940)</td><td>6</td></tr><tr><td>Baker v. Carr,<br>369 U.S. 186 (1969)</td><td>5, 8</td></tr><tr><td>Banco Nacional de Cuba v. Sabbatino,<br>376 U.S. 398 (1964)</td><td>28</td></tr><tr><td>Barnhill v. Johnson,<br>503 U.S. 393 (1992).</td><td>14</td></tr></tbody></table>

69

<table>
  <tbody>
    <tr>
      <td>Breard v. Gilmore, U.S., 1998 U.S. LEXIS 2465, at *7 (1998)</td>
      <td>10</td>
    </tr>
    <tr>
      <td>British Caledonian Airways Ltd. v. Bond, 665 F.2d 1153 (D.C. Cir. 1981)</td>
      <td>5, 6</td>
    </tr>
    <tr>
      <td>Caltagirone v. Grant, 629 F. 2d 739 (2d Cir. 1980)</td>
      <td>6</td>
    </tr>
    <tr>
      <td>Cannon v. U.S. Dept. of Justice, United States Parole Commission, 973 F.2d 1190 (5th Cir. 1992)</td>
      <td>6</td>
    </tr>
    <tr>
      <td>Chan v. Korean Air Lines, Ltd., 490 U.S. 122 (1989)</td>
      <td>6, 16</td>
    </tr>
    <tr>
      <td>Cherokee Nation v. Southern Kan. R. Co., 33 Fed. 900 (W.D. Ark. 1888)</td>
      <td>25</td>
    </tr>
    <tr>
      <td>Colegrove v. Green, 328 U.S. 549 (1946)</td>
      <td>8</td>
    </tr>
    <tr>
      <td>Columbian-Peruvian Asylum Case, 1950 I.C.J. 4, 276 (Nov. 20)</td>
      <td>38, 39</td>
    </tr>
    <tr>
      <td>Committee of the United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988)</td>
      <td>10</td>
    </tr>
    <tr>
      <td>Coplin v. United States, 6 Cl. Ct. 115 (Cl. Ct. 1984)</td>
      <td>6</td>
    </tr>
    <tr>
      <td>Matter of the Extradition of Demjanjuk, 612 F. Supp. 544 (N.D. Ohio 1985)</td>
      <td>7</td>
    </tr>
    <tr>
      <td>Doe v. Braden, 57 U.S. (16 How.) 635 (1853)</td>
      <td>5</td>
    </tr>
    <tr>
      <td>Factor v. Laubenheimer, 290 U.S. 276 (1933)</td>
      <td>14</td>
    </tr>
    <tr>
      <td>Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).</td>
      <td>48</td>
    </tr>
    <tr>
      <td>Fisheries Jurisdiction Case, Gr. Brit and N. Ir. v. Ice, 1974 I.C.J. 3</td>
      <td>39</td>
    </tr>
    <tr>
      <td>Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829)</td>
      <td>5</td>
    </tr>
    <tr>
      <td>Galahis v. Pallanck, 568 F.2d 234 (2d Cir. 1977)</td>
      <td>6</td>
    </tr>
  </tbody>
</table>

70

<table>
  <tbody>
    <tr>
      <td>Goldwater v. Carter,<br/>617 F.2d 717 (D.C. Cir.)<br/>vacated on other grounds, 444 U.S. 996 (1979)</td>
      <td>10, 12, 13, 14</td>
    </tr>
    <tr>
      <td>Greci v. Birknes,<br/>527 F.2d 956 (1st Cir. 1976)</td>
      <td>6</td>
    </tr>
    <tr>
      <td>Guaranty Trust Co. v. United States<br/>304 U.S. 126 (1938)</td>
      <td>10</td>
    </tr>
    <tr>
      <td>Haitian Centers Council, Inc. v. McNary,<br/>969 F.2d 1350 (2nd Cir. 1992)</td>
      <td>6</td>
    </tr>
    <tr>
      <td>Head Money Cases (Edy v. Robertson),<br/>112 U.S. 580 (1884)</td>
      <td>10</td>
    </tr>
    <tr>
      <td>Hilton v. Guyot,<br/>159 U.S. 113 (1895)</td>
      <td>28</td>
    </tr>
    <tr>
      <td>Hoyt v. Sprague,<br/>103 U.S. 613 (1880)</td>
      <td>25</td>
    </tr>
    <tr>
      <td>Irancevic v. Artukovic,<br/>211 F.2d 565 (9th Cir.), cert denied, 348 U.S. 818 (1954)</td>
      <td>8, 34</td>
    </tr>
    <tr>
      <td>Japan Whaling Ass'n v. American Cetacean Society,<br/>478 U.S. 221 (1986)</td>
      <td>5</td>
    </tr>
    <tr>
      <td>Jet Traders Inv. Corp. v. Tekair,<br/>89 F.R.D. 560, 567 (D. Del. 1981)</td>
      <td>47</td>
    </tr>
    <tr>
      <td>Jordan v. Tashiro,<br/>278 U.S. 123 (1928)</td>
      <td>6</td>
    </tr>
    <tr>
      <td>Kass v. Reno,<br/>83 F.3d 1186 (10th Cir. 1996)</td>
      <td>16</td>
    </tr>
    <tr>
      <td>Kendall v. United States ex rel Stokes,<br/>37 U.S. (12 Pet.) 524 (1838)</td>
      <td>10</td>
    </tr>
    <tr>
      <td>Kolovrat v. Oregon,<br/>366 U.S. 187 (1961)</td>
      <td>6</td>
    </tr>
    <tr>
      <td>The Lotus,<br/>(1927) P.C.I.J. Rep. Ser. A. No. 10</td>
      <td>39</td>
    </tr>
    <tr>
      <td>Mackin v. United States,<br/>668 F. 2d 122 (2d Cir. 1981)</td>
      <td>6</td>
    </tr>
    <tr>
      <td>Michigan Head Start Directors Ass'n v. Butz,<br/>397 F. Supp. 1124 (W.D. Mich. 1975)</td>
      <td>11</td>
    </tr>
  </tbody>
</table>

71

<table>
  <tbody>
    <tr>
      <td>Military Payment Orders and Certificates Issued to Prisoners of War-Treaty Interpretation Claims Before and Subsequent to Treaty, 38 Comp. Gen. 7 (B-136066, July 7, 1958)</td>
      <td>6</td>
    </tr>
    <tr>
      <td>Miller v. Albright, U.S. 118 S. Ct. 1428, (1998)</td>
      <td>29</td>
    </tr>
    <tr>
      <td>Miller v. The Resolution, 2 U.S. (Dall) 1 (1781)</td>
      <td>29</td>
    </tr>
    <tr>
      <td>Missouri v. Holland, 252 U.S. 416 (1920)</td>
      <td>14</td>
    </tr>
    <tr>
      <td>National Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1974)</td>
      <td>11</td>
    </tr>
    <tr>
      <td>Neely v. Henkel, 180 U.S. 109 (1901)</td>
      <td>14</td>
    </tr>
    <tr>
      <td>New York Chinese TV Programs, Inc. v. U.E. Enters., Inc., 954 F.2d 847 (2d Cir. 1991), cert. denied, 506 U.S. 827 (1992)</td>
      <td>13</td>
    </tr>
    <tr>
      <td>NLRB v. Plasterers' Local Union No. 79, 404 U.S. 116 (1971)</td>
      <td>17</td>
    </tr>
    <tr>
      <td>North Sea Continental Shelf Cases, 1969 I.C.J. 3 (Feb. 20)</td>
      <td>39, 48</td>
    </tr>
    <tr>
      <td>The Ottoman Debt Arbitration (1925) I.R.I.A.A. 529</td>
      <td>3</td>
    </tr>
    <tr>
      <td>The Paquete Habana, 175 U.S. 677 (1900)</td>
      <td>27, 38</td>
    </tr>
    <tr>
      <td>Patterson v. McLean Credit Union, 491 U.S. 164 (1989)</td>
      <td>17</td>
    </tr>
    <tr>
      <td>Perkins v. Elg, 307 U.S. 325 (1939)</td>
      <td>6</td>
    </tr>
    <tr>
      <td>Reid v. Covert, 354 U.S. 1 (1957)</td>
      <td>10</td>
    </tr>
    <tr>
      <td>Republic of Croatia v. Girocredit Bank A.G. der Sparkassen, Supreme Court of Austria (4 Ob. 2304 96V, Dec. 17, 1996), reprinted at 36 I.L.M. 1523 (1997).</td>
      <td>22</td>
    </tr>
    <tr>
      <td>Sale v. Haitian Centers Council, Inc., 509 U.S. 918 (1993)</td>
      <td>6, 7</td>
    </tr>
  </tbody>
</table>

72

<table>
  <tbody>
    <tr>
      <td>The Scotia,<br/>14 U.S. (Wall.) 170 (1871)</td>
      <td>38</td>
    </tr>
    <tr>
      <td>The Society for the Propagation of the Gospel in Foreign Parts v. New-Haven,<br/>21 U.S. (8 Wheat.) 464 (1823)</td>
      <td>16</td>
    </tr>
    <tr>
      <td>Snap-On Tools, Inc. v. United States,<br/>26 Cl. Ct. 1045 (Cl. Ct. 1997)</td>
      <td>6</td>
    </tr>
    <tr>
      <td>Societe Nationale Industrielle Aerospatiale v. United States District Court for the<br/>Southern District of Iowa,<br/>482 U.S. 522 (1987)</td>
      <td>25</td>
    </tr>
    <tr>
      <td>Spence v. Clinton,<br/>942 F. Supp. 32 (D.D.C. 1996)</td>
      <td>12</td>
    </tr>
    <tr>
      <td>Sullivan v. Kidd,<br/>254 U.S. 433 (1920)</td>
      <td>6</td>
    </tr>
    <tr>
      <td>Sumitomo Shoji America, Inc. v. Avagliano,<br/>457 U.S. 176 (1982)</td>
      <td>6</td>
    </tr>
    <tr>
      <td>Terlinden v. Ames,<br/>184 U.S. 270 (1902)</td>
      <td>8, 33</td>
    </tr>
    <tr>
      <td>Territory of Hawaii v. Osaki Mankichi,<br/>190 U.S. 197 (1903)</td>
      <td>30</td>
    </tr>
    <tr>
      <td>Then v. Melendez,<br/>92 F.3d 851 (9th Cir. 1996)</td>
      <td>8</td>
    </tr>
    <tr>
      <td>Todok v. Union Bank of Harvard, Nebraska,<br/>281 U.S. 449, 452 (1930)</td>
      <td>10</td>
    </tr>
    <tr>
      <td>TransWorld Airlines, Inc. v. Franklin Mint Corp.,<br/>466 U.S. 243 (1984)</td>
      <td>17</td>
    </tr>
    <tr>
      <td>Tripartite Claims Commission (United States, Austria and Hungary),<br/>Administrative Decision No. 1 (May 25, 1927)</td>
      <td>35, 43</td>
    </tr>
    <tr>
      <td>United States v. A.L. Burbank & Co., Ltd.,<br/>575 F.2d 9 (2d Cir. 1975)</td>
      <td>14</td>
    </tr>
    <tr>
      <td>United States v. Busby,<br/>1996 WL 927938 (N.M. Ct. Crim. App.) *3 (1996)</td>
      <td>6</td>
    </tr>
    <tr>
      <td>United States v. Curtiss-Wright Export Corp.,<br/>299 U.S. 304 (1936)</td>
      <td>9</td>
    </tr>
    <tr>
      <td>United States v. Gonzales,<br/>520 U.S. 1, 117 S. Ct. 1032 (1997).</td>
      <td>14</td>
    </tr>
  </tbody>
</table>

73

<table>
  <tbody>
    <tr>
      <td>United States v. Kirby,<br/>106 F.3d 855 (9th Cir. 1997)</td>
      <td>14</td>
    </tr>
    <tr>
      <td>United States v. Libellants and Claimants of the Schooner Amistad,<br/>40 U.S. (15 Pet.) 518 (1841)</td>
      <td>6</td>
    </tr>
    <tr>
      <td>United States v. Lue,<br/>134 F.3d 79 (2d Cir. 1998)</td>
      <td>14</td>
    </tr>
    <tr>
      <td>United States v. Monongahela Connecting Railroad Co.<br/>351 F. Supp. 696 (W.D. Pa. 1972)</td>
      <td>11</td>
    </tr>
    <tr>
      <td>United States v. Nippon Paper Indus. Co.,<br/>109 F.3d 1 (1st Cir. 1997)</td>
      <td>28</td>
    </tr>
    <tr>
      <td>United States v. Pink<br/>315 U.S. 203 (1942)</td>
      <td>10</td>
    </tr>
    <tr>
      <td>United States v. Schooner Peggy,<br/>5 U.S. (1 Cranch.) 103 (1801)</td>
      <td>5</td>
    </tr>
    <tr>
      <td>United States v. Smith,<br/>27 F. Cas. 1192 (C.C.D.N.Y.) (1806)</td>
      <td>10</td>
    </tr>
    <tr>
      <td>United States v. Stuart,<br/>489 U.S. 353 (1989)</td>
      <td>6</td>
    </tr>
    <tr>
      <td>United States v. Wells,<br/>519 U.S. 482, 117 S.Ct. 921 (1997)</td>
      <td>17</td>
    </tr>
    <tr>
      <td>United States Dept. of Commerce v. Montana,<br/>503 U.S. 442 (1992)</td>
      <td>8</td>
    </tr>
    <tr>
      <td>Valentine v. United States,<br/>299 U.S. 5 (1936)</td>
      <td>5</td>
    </tr>
    <tr>
      <td>Whitney v. Robertson,<br/>124 U.S. 190 (1888)</td>
      <td>10</td>
    </tr>
    <tr>
      <td>Xerox Corp. v. United States,<br/>41 F.3d 647 (1995)</td>
      <td>6</td>
    </tr>
  </tbody>
</table>

74

CONSTITUTION

<table><tr><td>U.S. CONST. art. VI, cl. 2</td><td>5</td></tr></table>

TREATIES AND OTHER INTERNATIONAL AGREEMENTS

Agreement Establishing the Commonwealth of Independent States,
Dec. 8, 1991, Belarus-RSFSR-Ukraine, 31 I.L.M. 143 18

Agreement Establishing the Commonwealth of Independent States,
Art. 12, Dec. 21, 1991, 31 I.L.M. 147 18

Treaty of Peace with Austria, Aug. 24, 1921, U.S.-Aus.,
T.S. No. 659 42

Treaty of Peace with Germany, Aug. 25, 1921, U.S.-F.R.G.,
T.S. No. 658 42

Treaty of Peace with Hungary, Aug. 29, 1921, U.S.-Hung.,
T.S. No. 660 42

Treaty of St. Germain-en-Laye
(Sept. 10, 1919) 42, 43

Treaty of Trianon
(June 4, 1920) 42

Treaty of Versailles, June 28, 1919, reprinted in II MAJOR PEACE TREATIES OF MODERN HISTORY
1265 (F. L. Israel, ed., 1967) 42

Treaty Between the United States of America
and the Union of Soviet Socialist Republics
on the Limitation of Anti-Ballistic Missile Systems
(the "ABM Treaty"), May 26, 1972, U.S.-U.S.S.R. 17

Protocol to the Treaty Between the United States of America
and the Union of Soviet Socialist Republics
on the Limitation of Anti-Ballistic Missile Systems 17

75

MISCELLANEOUS

DAVID GRAY ADLER & LARRY N. GEORGE,
THE CONSTITUTION AND THE CONDUCT OF
AMERICAN FOREIGN POLICY (1996). 9

RENE ALBRIGHT-CARRIE,
A DIPLOMATIC HISTORY OF EUROPE
SINCE THE CONGRESS OF VIENNA (1958) 42-43

John Davis Bancroft,
in Treaties and Conventions Concluded
Between the United States of America and Other Powers
Since July 4, 1776 (1889) 34

Thomas Baty,
Division of States: Its Effect on Obligations
9 TRANSACTIONS OF THE GROTIUS SOCIETY,
PROBLEMS OF WAR AND PEACE 119 (1923) 3, 41

Thomas Baty,
The Obligations of Extinct States,
35 YALE L.J. 434 (1925-1926) 42

Richard Baxter,
Treaties and Custom,
RECUL DES COURS 25 (1970) 49

David J. Bederman,
The Curious Resurrection of Custom:
Beach Access and Judicial Takings,
96 COLUM. L. REV. 1375 (1996) 27, 37

David J. Bederman,
Revivalist Canons and Treaty Interpretation,
41 U.C.L.A. L. REV. 953 (1994) 6

Hubert Beemelmans,
State Succession in International Law:
Remarks on Recent Theory and State Praxis,
15 B.U. INT'L L.J. 71 (1997) 27

RAUL BERGER,
EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH 9

Arthur Bestor,
Respective Roles of Senate and President
in the Making and Abrogation of Treaties - The Original
Intent of the Framers of the Constitution Historically Examined,
55 WASH. L. REV. 1 (1979) 9

76

Letter from Charles I. Bevans.

Assistant Legal Adviser, United States Department of State,
to Professor William W. Bishop, Jr., Editor-in-Chief,
The American Journal of International Law (July 27, 1964),
*reprinted in COMMITTEE ON STATE SUCCESSION TO TREATIES
AND OTHER GOVERNMENTAL OBLIGATIONS,
INTERNATIONAL LAW ASSOCIATION,
THE EFFECT OF INDEPENDENCE ON TREATIES 382 (1965). 19

BLACK'S LAW DICTIONARY

(4th ed. 1951) 29, 32

WILLIAM BLACKSTONE,

I COMMENTARIES ON THE LAWS OF ENGLAND
(James DeWitt Andrews, ed., 4th ed., 1899) 27, 37

Yehuda Z. Blum,

U.N. Membership of the "New" Yugoslavia: Continuity or Break?,
86 AM. J. INT'L L. 830 (1992) 27, 32, 36

Edwin Borchard,

Shall the Executive Agreement Replace the Treaty?,
53 YALE L. J. 664 (1943-1944) 42

J. L. BRIERLY,

THE LAW OF NATIONS, AN INTRODUCTION TO THE INTERNATIONAL LAW OF
PEACE
(5th ed. 1955) 38

J. L. BRIERLY,

THE LAW OF NATIONS 153 (6th ed. 1963) 32

Herbert W. Briggs,

The Columbian-Peruvian Asylum Case and Proof of Customary International
Law,
45 AM. J. INT'L L. 728 (1951) 38, 49

IAN BROWNLIE,

PRINCIPLES OF PUBLIC INTERNATIONAL LAW (2d ed. 1973) 15, 21

Konrad G. Bühler,

Casenote: Two Recent Austrian Supreme Court Decisions on State Succession
from an International Law Perspective,
2 AUS. REV. INT'L & EUR. L. 213 (1997) 22

President George Bush,

Address to the International Conference on Humanitarian Affairs (Jan. 22,
1992),
in I PUBLIC PAPERS OF THE PRESIDENT OF THE UNITED STATES,
GEORGE BUSH 127 (GPO 1993). 18

77

President George Bush,
*Address to the Nation on the Commonwealth of Independent States,*
27 WEEKLY COMP. PRES. DOC. 1883 (Dec. 25, 1991). 18

President George Bush,
*Statement at News Conference on Aid to the States of the Former Soviet Union,*
in I PUBLIC PAPERS OF THE PRESIDENT OF THE UNITED STATES,
GEORGE BUSH 522 (GPO 1993). 18

President George Bush,
*Remarks to the American Society of Newspaper Editors,*
in I PUBLIC PAPERS OF THE PRESIDENT OF THE UNITED STATES,
GEORGE BUSH 566 (GPO 1993). 18

Erik Castren,
*Obligations of States Arising from the Dismemberment of Another State,*
XIII ZEITSCHRIFT FUR AUSLANDISCHES OFFENTLICHES RECHT UND
VOLKERRECHT (1951). 32

Bin Cheng,
*United Nations Resolutions on Outer Space: "Instant" International Customary Law,*
5 INDIAN J. INT'L L. 23 (1965). 38

Letter from President William J. Clinton
to Benjamin A. Gilman, Chairman,
Committee on International Relations,
House of Representatives (Nov. 21, 1997). 19, 23, 51

Letter from President William J. Clinton
to Benjamin A. Gilman, Chairman,
Committee on International Relations,
House of Representatives, (May 21, 1998). 23, 24

Statement of Senator William S. Cohen and Senator Carl Levin
*in Hearings on the Constitutionality of GAO's Bid Protest Function Before a Subcommittee of the Committee on Government Operations,*
House of Representatives, 99th Cong.,
1st Sess. 486, 490 (Feb. 28, March 7, 1985). 11

COMMITTEE ON STATE SUCCESSION TO TREATIES AND OTHER GOVERNMENTAL
OBLIGATIONS, INTERNATIONAL LAW ASSOCIATION,
THE EFFECT OF INDEPENDENCE ON TREATIES (1965). 19, 54

Letter from Senators Trent Lott, Don Nickles, Larry E. Craig, Jon Kyl, Jesse Helms, Connie Mack,
Paul Coverdell and Bob Smith to President William J. Clinton (Oct. 5, 1998). 24

SAMUEL B. CRANDALL,
*TREATIES, THEIR MAKING AND ENFORCEMENT (2d ed. 1916)* 36, 54

78

JAMES CRAWFORD,
THE CREATION OF STATES IN INTERNATIONAL LAW (1979). 21, 32

Lori Fisler Damrosch,
*Application of Customary International Law by National Tribunals,*
76 AM. SOC'Y INT'L. L. PROC. 231 (Apr. 22-24, 1982) 7

Letter from William C. Danvers,
Special Assistant to the President and Senior Director for Legislative Affairs,
to Newt Gingrich, Speaker of the House of Representatives (Nov, 29, 1996),
transmitting Report on the Livingston ABM Amendment (Nov. 25, 1996). 22

THE DECLINE AND FALL OF THE SOVIET EMPIRE
(B. Gwertzman and M. Kaufman, eds. 1992) 26

Memorandum from Walter Dellinger,
Assistant Attorney General, to John M. Quinn, Counsel to the President,
Re: Section 233(a) of S. 1745 (June 26, 1996) 22, 36

Walter Dellinger,
Assistant Attorney General, Memorandum for
the General Counsels of the Federal Government,
The Constitutional Separation of Powers Between the
President and Congress (May 7, 1996), 1996 WL 876050 9

*Draft Articles on Succession of States in Respect of Treaties with Commentaries*
*Adopted by the International Law Commission at Its Twenty-Sixth Session,*
U.N. GAOR, 1977 Sess. & res. Sess. 1978, Vol. III, at 89,
U.N. Doc. A/Conf. 80/16/Add. 2 (1979) 40, 41, 52

Lawrence S. Eastwood, Jr.,
*Secession, State Practice and International Law*
*after the Dissolution of the Soviet Union and Yugoslavia,*
3 DUKE J. COMP. INT'L L. 299 (1983) 25

EUGENE EHRLICH,
AMO, AMAS, AMAT AND MORE (1987) 32

Albert J. Esgain,
*Military Servitudes and the New Nations,*
in THE NEW NATIONS IN INTERNATIONAL LAW AND DIPLOMACY,
III YEARBOOK OF WORLD POLITICS (William V. O'Brien, ed., 1965) 32, 53

I.M. FARRAND,
THE RECORDS OF THE FEDERAL CONSTITUTION OF 1787 (1966) 12

GEORGE A. FINCH,
THE SOURCES OF MODERN INTERNATIONAL LAW (1937). 29

79

Statement on Yugoslav State (Sept. 30, 1997),
1997 WL 14464578 .................................................. 36

Edwin L. Fountain,
*Out from the Precarious Orbit of Politics Reconsidering Recognition and the Standing of Foreign Governments to Sue in American Courts,*
29 VA. J. INT'L L. 473 (1989) .................................... 15

POLITICAL QUESTIONS/JUDICIAL ANSWERS:
DOES THE RULE OF LAW APPLY TO FOREIGN AFFAIRS? (1992) ................ 8

THOMAS M. FRANCK & MICHAEL J. GLENNON,
FOREIGN RELATIONS AND NATIONAL SECURITY LAW:
CASES, MATERIALS AND SIMULATIONS (1993) ........................ 15

James Wilford Garner,
*Questions of State Succession Raised by the German Annexation of Austria,*
32 AM. J. INT'L L. 421 (1938) .................................... 53

Letter from Representatives Bob Livingston, Benjamin A. Gilman and Floyd Spence
to President Clinton (Dec. 11, 1996). ................................ 22

Letter from Benjamin A. Gilman,
Chairman, Committee on International Relations, House of Representatives,
to President William J. Clinton, (June 16, 1997) ........................ 23

Letter from Benjamin A. Gilman,
Chairman, Committee on International Relations, House of Representatives,
and Jesse Helms, Chairman, Committee on Foreign Relations, Senate,
to President William J. Clinton (March 3, 1998) ........................ 24

GERHARD VON GLAHN,
LAW AMONG NATIONS (6th ed. 1992) ................................ 32

EDWIN F. GLENN,
HAND-BOOK OF INTERNATIONAL LAW (1895). ........................ 31

Thomas D. Grant,
*Territorial Status, Recognition, and Statehood: Some Aspects of the Genocide Case (Bosnia and Herzegovina v. Yugoslavia)*
33 STAN. J. INT'L L. 305 (1997) .................................... 34

L. C. Green,
*The Dissolution of States and Membership of the United Nations, in LAW, JUSTICE AND EQUITY*
(R. H. Code Holland & G. Schwarzenberger, eds., 1967) ................ 44

Letter from U.S. State Dept. Solicitor Green H. Hackworth
to Mr. Jean Dube (May 25, 1927) .................................... 44

80

GREEN HAYWOOD HACKWORTH,
I DIGEST OF INTERNATIONAL LAW (1943) 32, 40

WILLIAM EDWARD HALL,
A TREATISE ON INTERNATIONAL LAW (4th ed. 1895). 30, 31

HENRY W. HALLECK
I INTERNATIONAL LAW (G.S. Baker ed., 4th ed. 1908) 30

Letter from Benjamin A. Gilman,
Chairman, Committee on International Relations, House of Representatives,
and Jesse Helms, Chairman, Committee on Foreign Relations, Senate,
to President William J. Clinton (March 3, 1998). 24

Letter from Senators Trent Lott, Don Nickles, Larry E. Craig, Jon Kyl, Jesse Helms, Connie Mack,
Paul Coverdell and Bob Smith to President William J. Clinton (Oct. 5, 1998) 24

Testimony of Columbia Law School Professor Louis Henkin,
in Joint Hearings before the Committee on Foreign Relations
and the Committee on the Judiciary, United States Senate,
100th Cong. 1st Sess., on the ABM Treaty and the Constitution 881
(March 11, 1987) 13

AMOS S. HERSHEY,
THE ESSENTIALS OF INTERNATIONAL PUBLIC LAW AND ORGANIZATION
(rev. ed. 1935) 26, 37

Amos S. Hershey,
The Succession of States,
5 AM. J. INT'L L. 285 (1911) 32, 52

Declaration of Christopher R. Hill,
Director, Office of South Central European Affairs, United States Department
of State,
filed in Federal Republic of Yugoslavia v. Park-71st Corp.,
No. 95 Civ. 3659 (AGS) (S.D.N.Y.) ¶¶ 3, 5 (Sept. 21, 1995),
complaint dismissed, 913 F.Supp. 191 (S.D.N.Y. 1995) 3, 22, 36, 45

ARTHUR REED HOGUE,
ORIGINS OF THE COMMON LAW (1966) 27

MAX HUBER,
THE SUCCESSION OF THE STATES, INTERNATIONAL AND NATIONAL PRACTICE
IN THE NINETEENTH CENTURY (1899) 31

81

Memorandum from the law firm of Hunton and Williams
to the Heritage Foundation,
The Collapse of the Soviet Union and the End
of the 1972 Anti-Ballistic Missile Treaty (June 15, 1998)
(David B. Rivkin, Jr., Lee A. Casey, Darin R. Bartram, authors). 28

Charles Cheney Hyde,
The Termination of the Treaties of a State
in Consequence of Its Absorption by Another
– The Position of the United States,
26 AM. J. INT'L L. 133 (1932) 32

President Andrew Jackson,
Message to the House of Representatives,
transmitting Report of Secretary of State Edward Livingston,
on Government of Columbia, H.Doc. No. 173,
22d Cong. 1st Sess. (March 16, 1832) 40

Sam Jameson,
Japan to Seek Seat on U.N. Security Council,
L.A. TIMES, Jan. 29, 1992 at A9 46

J. Mervyn Jones,
State Succession in the Matter of Treaties,
1947 BRIT. Y.B. INT'L L. 360 32, 35, 40, 54

ROBERT A. KANN,
A HISTORY OF THE HABSBURG EMPIRE (1974) 42

ARTHUR BERRIDALE KEITH,
THE THEORY OF STATE SUCCESSION
WITH SPECIAL REFERENCE TO ENGLISH AND COLONIAL LAW (1907) 3, 31, 41

HANS KELSEN,
PRINCIPLES OF INTERNATIONAL LAW
(Robert W. Tucker, ed., 2d ed. 1966) 32, 42

Marti Koskenniemi,
The Present State of Research Carried Out
By the English-Speaking Section of the Centre for Studies and Research,
in STATE SUCCESSION: CODIFICATION TESTED AGAINST THE FACTS 98-118
(Hague Academy of International Law 1996) 20, 21, 22, 49

Josef L. Kunz,
Identity of States Under International Law
49 AM. J. INT'L L. 66 (1955) 33, 38

Letter from Sénators Trent Lott, Don Nickles, Larry E. Craig, Jon Kyl, Jesse Helms, Connie Mack,
Paul Coverdell and Bob Smith to President William J. Clinton (Oct. 5, 1998) 24

82

<table>
  <tbody>
    <tr>
      <td>SIR HERSCH LAUTERPACHT,<br/>THE DEVELOPMENT OF INTERNATIONAL LAW<br/>BY THE INTERNATIONAL COURT (1958)</td>
      <td>38</td>
    </tr>
    <tr>
      <td>NOYES E. LEECH, ET AL,<br/>THE INTERNATIONAL LEGAL SYSTEM: CASES AND MATERIALS (1973)</td>
      <td>32</td>
    </tr>
    <tr>
      <td>Oskar Lehner,<br/>The Identity of Austria 1918 as a Problem of State Succession<br/>44 AUS. J. PUB. INT'L L.63 (1992)</td>
      <td>42</td>
    </tr>
    <tr>
      <td>WERNER LEVI,<br/>CONTEMPORARY INTERNATIONAL LAW, A CONCISE INTRODUCTION (2d ed.<br/>1991)</td>
      <td>32</td>
    </tr>
    <tr>
      <td>Statement of Senator William S. Cohen and Senator Carl Levin<br/>in Hearings on the Constitutionality of GAO's Bid Protest Function<br/>Before a Subcommittee of the Committee on Government Operations,<br/>House of Representatives, 99th Cong.,<br/>1st Sess. 486, 490 (Feb. 28, March 7, 1985).</td>
      <td>11</td>
    </tr>
    <tr>
      <td>A. P. Lester,<br/>State Succession to Treaties in the Commonwealth,<br/>12 INT'L &amp; COMP. L.Q. 475</td>
      <td>52</td>
    </tr>
    <tr>
      <td>Paul Lewis,<br/>3 Western Powers favor Russian Takeover of Soviet U.N. Seat,<br/>N.Y. TIMES, Dec. 24, 1991, at A8</td>
      <td>46</td>
    </tr>
    <tr>
      <td>Paul Lewis,<br/>West Acts to Defer Issue of New U.N. Council Seats,<br/>N.Y. TIMES, Jan. 3, 1992 at A6</td>
      <td>46</td>
    </tr>
    <tr>
      <td>Letter from Representatives Bob Livingston, Benjamin A. Gilman and Floyd Spence<br/>to President Clinton (Dec. 11, 1996).</td>
      <td>22</td>
    </tr>
    <tr>
      <td>Letter from Senators Trent Lott, Don Nickles, Larry E. Craig, Jon Kyl, Jesse Helms, Connie<br/>Mack,<br/>Paul Coverdell and Bob Smith to President William J. Clinton (Oct. 5, 1998)</td>
      <td>24</td>
    </tr>
    <tr>
      <td>KRYSTYNA MAREK,<br/>IDENTITY AND CONTINUITY OF STATES IN PUBLIC INTERNATIONAL LAW<br/>(1968)</td>
      <td>22, 31, 42</td>
    </tr>
    <tr>
      <td>GEORG FREDERICK VON MARTENS,<br/>THE LAW OF NATIONS, Book II<br/>(trans. from the French by William Cobbett, 1795)</td>
      <td>29</td>
    </tr>
    <tr>
      <td>Christopher N. May,<br/>Presidential Defiance of 'Unconstitutional Laws':</td>
      <td></td>
    </tr>
  </tbody>
</table>

83

Reviving the Royal Prerogative,
21 HASTINGS CONST. L.Q. 865 (1994) 11

ARNOLD DUNCAN MCNAIR,
THE LAW OF TREATIES,
BRITISH PRACTICE AND OPINIONS (1938) 27, 39

P. K. MENON,
THE SUCCESSION OF STATES IN RESPECT TO TREATIES,
STATE, PROPERTY, ARCHIVES AND DEBT (1991) 3

Opinion of Attorney General William Mitchell,
Constitutionality of Proposed Legislation Affecting Tax Refunds,
37 Op. Att'y Gen. 56 (Jan. 24, 1933) 9

JOHN BASSETT MOORE,
I DIGEST OF INTERNATIONAL LAW (1906) 32

Scott R. Morris,
The Laws of War: Rules by Warriors for Warriors,
1997 ARMY LAW. 4 (1997) 30

ROBERT WILLEM GASTON DE MURALT,
THE PROBLEM OF STATE SUCCESSION WITH REGARD TO TREATIES (1984) 40, 53

FRIDTJOF NANSEN,
NORWAY AND THE UNION WITH SWEDEN (1905) 40

TERRY NARDIN,
LAW, MORALITY AND THE RELATIONS OF STATES (1983) 29

D. P. O'CONNELL,
I INTERNATIONAL LAW (1965) 38

D. P. O'CONNELL,
I INTERNATIONAL LAW (2d ed. 1970) 15, 27, 32, 37, 55

D. P. O'CONNELL,
THE LAW OF STATE SUCCESSION (1956) 28, 44

D. P. O'Connell,
State Succession in the New Nations,
in INTERNATIONAL LAW AND DIPLOMACY,
III YEARBOOK OF WORLD POLITICS (1965) 44

84

<table>
  <tbody>
    <tr>
      <td>Statement on Behalf of the Office of General Counsel<br/>to the Clerk of House of Representatives<br/>Regarding The Executive Branch's Declaration<br/>That The Competition in Contracting Act Is Unconstitutional,<br/>Hearings Before a Subcommittee of the Committee<br/>on Government Operations, House of Representatives,<br/>on Constitutionality of GAO's Bid Protest Function,<br/>99<sup>th</sup> Cong., 1<sup>st</sup> Sess. (Feb. 28; March 7, 1985).</td>
      <td>11</td>
    </tr>
    <tr>
      <td>L. O. OPPENHEIM,<br/>I INTERNATIONAL LAW (1905)</td>
      <td>32</td>
    </tr>
    <tr>
      <td>Dieter Papenfuß,<br/>The Fate of the International Treaties of the GDR<br/>within the Framework of German Unification<br/>92 AM. J. INT'L L. 469 (1998)</td>
      <td>33</td>
    </tr>
    <tr>
      <td>CLIVE PARRY,<br/>THE SOURCES OF EVIDENCE OF INTERNATIONAL LAW (1965)</td>
      <td>38</td>
    </tr>
    <tr>
      <td>PARRY AND GRANT,<br/>ENCYCLOPEDIC DICTIONARY OF INTERNATIONAL LAW (1986)</td>
      <td>3</td>
    </tr>
    <tr>
      <td>John A. Perkins,<br/>The Changing Foundations of International Law:<br/>From State Consent to State Responsibility,<br/>15 B.U. INT'L L.J. 433 (1997)</td>
      <td>38</td>
    </tr>
    <tr>
      <td>RICHARD PIPES,<br/>RUSSIA UNDER THE BOLSHEVIK REGIME (1993)</td>
      <td>26</td>
    </tr>
    <tr>
      <td>Kenneth C. Randall,<br/>The Treaty Power,<br/>51 OHIO ST. L.J. 1089 (1990)</td>
      <td>5, 9</td>
    </tr>
    <tr>
      <td>H. D. REID,<br/>INTERNATIONAL SERVITUDES IN LAW AND PRACTICE (1932)</td>
      <td>32</td>
    </tr>
    <tr>
      <td>RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW<br/>OF THE UNITED STATES (1986)</td>
      <td>3, 15, 25, 32, 38, 47, 52</td>
    </tr>
    <tr>
      <td>PAUL REUTER,<br/>INTRODUCTION TO THE LAW OF TREATIES (2d. ed. 1995)</td>
      <td>32</td>
    </tr>
    <tr>
      <td>Letter from Secretary of State Elihu Root<br/>to Minister of Japan Takahira (Nov. 10, 1905)</td>
      <td>40</td>
    </tr>
    <tr>
      <td>Trevor Rose,<br/>Switch of Soviet Security Council Seat Could Spur Reform Ideas,<br/>WASH. POST., Dec. 26, 1991, at A25</td>
      <td>46</td>
    </tr>
  </tbody>
</table>

85

RUSSIAN-ENGLISH DICTIONARY
(E.P. Dutton & Co. 1973) 26

Michael P. Scharf,
Musical Chairs: The Dissolution of States
and Membership in the United Nations,
28 CORNELL INT'L L.J. 29 (1995). 46

GEORG SCHWARZENBERGER,
A MANUAL OF INTERNATIONAL LAW (5th ed. 1967) 32

MALCOLM N. SHAW,
INTERNATIONAL LAW (4th ed. 1997) 32

Malcolm N. Shaw,
State Succession Revisited,
1994 FINNISH Y.B. INT'L L. 34 53

United States Secretary of State John Sherman,
*Note to the Minister of Japan* (June 25, 1897),
*quoted in* JOHN BASSET MOORE,
V DIGEST OF INTERNATIONAL LAW 349 (1906). 30

Helen Silving,
“Customary Law”: Continuity in Municipal and International Law,
31 IOWA L. REV. 615 (1946) 38

Jo Lynn Slama,
Opinio Juris in Customary International Law,
15 OKLA. CITY U. L. REV. 603 (1990). 37, 38

Statement by United States Arms Control and Disarmament Agency Director Gerard C.
Smith,
*Strategic Arms Limitations Agreements* (June 28, 1972) 25

MAX SORENSON,
MANUAL OF PUBLIC INTERNATIONAL LAW (1968) 32

Letter from Representatives Bob Livingston, Benjamin A. Gilman and Floyd Spence
to President Clinton (Dec. 11, 1996) 22

H. STEINER & D. VAGTS,
TRANSNATIONAL LEGAL PROBLEMS (3d ed. 1986) 38

OSCAR SVARLIEN,
AN INTRODUCTION TO THE LAW OF NATIONS (1955) 32

86

<table>
  <tbody>
    <tr>
      <td>UKON UDOKANG, SUCCESSION OF NEW STATES TO INTERNATIONAL TREATIES (1972)</td>
      <td>32, 47</td>
    </tr>
    <tr>
      <td>UN GAOR, 1<sup>st</sup> Comm., 2<sup>nd</sup> Sess., Annex 14g at 582-83, U.N. Doc. A/C.1/212 (1947)</td>
      <td>32</td>
    </tr>
    <tr>
      <td>United Nations, Population Division, Department of Economic and Social Affairs, 1998 Revision of the World Population Estimates and Projections (1998)</td>
      <td>49</td>
    </tr>
    <tr>
      <td>United States of America, Republic of Belarus, Ukraine &amp; Kazakhstan, Memorandum of Understanding Relating to the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems of May 26, 1972 (Sept. 26, 1997)</td>
      <td>23</td>
    </tr>
    <tr>
      <td>United States Department of State, Treaties and Conventions Concluded Between the United States of America and Other Powers Since July 4, 1776, (1889)</td>
      <td>30</td>
    </tr>
    <tr>
      <td>United States Department of State, Bureau of Intelligence and Research, The Outlook for Nasser, Research Memorandum RNA8 (Oct. 30, 1961).</td>
      <td>44</td>
    </tr>
    <tr>
      <td>United States Department of State, Treaties in Force, A List of Treaties and Other International Agreements of the United States in Force on January 1, 1992 (1992)</td>
      <td>19</td>
    </tr>
    <tr>
      <td>United States, Department of State, Treaties in Force, A List of Treaties and Other International Agreements of the United States in Force on January 1, 1997 (1997)</td>
      <td>19</td>
    </tr>
    <tr>
      <td>Letter from U.S. State Department Solicitor to Mr. Vallance, Effect of War on Naturalization Treaty Concluded Between the United States and Austria on September 20, 1870 (Apr. 6, 1923)</td>
      <td>44</td>
    </tr>
    <tr>
      <td>United States Senate Foreign Relations Committee, Treaty on Limitation of Antiballistic Missile Systems, S. Exec. Rep. 92-28</td>
      <td>25</td>
    </tr>
    <tr>
      <td>U.S.C.A.C.D.A. DOCUMENTS ON DISARMAMENT 1972</td>
      <td>25</td>
    </tr>
    <tr>
      <td>F. A. VALI, SERVITUDES OF INTERNATIONAL LAW (2d. ed. 1958)</td>
      <td>53</td>
    </tr>
    <tr>
      <td>EMMERICH DE VATTEL, THE LAW OF NATIONS II (1883)</td>
      <td>29, 54</td>
    </tr>
  </tbody>
</table>

87

J. H. W. VERZIJL,
INTERNATIONAL LAW IN HISTORIC PERSPECTIVE (1969) 44

Vienna Convention on Succession of States in Respect of Treaties,
Art. 34.1, U.N. DOC. A/Conf.80/31 (1978) 47

MARK E. VILLIGER,
CUSTOMARY INTERNATIONAL LAW AND TREATIES
(rev. 2d ed. 1997) 37, 38

Sir Humphrey Waldock,
Special Rapporteur, Second Report on Succession in Respect of Treaties,
1969 II Y.B. INT'L L. COMM'N 45
UN Doc. A/CN.4/SER.A/1969/Add.1 20

J.H.H. Weiler & Ulrich R. Haltern,
The Autonomy of the Community of Legal Order - Through the Looking Glass,
37 HARV. INT'L L.J. 411 (1996) 14

HENRY WHEATON,
ELEMENTS OF INTERNATIONAL LAW (1836) 29

HERBERT A. WILKINSON,
THE AMERICAN DOCTRINE OF STATE SUCCESSION (1934) 36

Paul R. Williams,
The Treaty Obligations of the Successor States of the Former Soviet Union,
Yugoslavia, and Czeckoslovakia: Do They Continue in Force?,
23 DENV. J. INT'L L. & POL'Y 1 (1994) 20, 21, 37

Edwin D. Williamson,
Remarks on State Succession and Relations with Federal States,
86 AM. SOC. OF INT'L L. ANN. MEETING PROCS., 10 (Apr. 1-4, 1992) 19, 20

Edwin D. Williamson & John E. Osborn,
A U.S. Perspective on Treaty Succession and Related Issues in the
Wake of the Breakup of the USSR and Yugoslavia,
33 VA. J. INT'L L. 261 (1993) 33, 36

Carolyn L. Wilson,
Current Development:
Changing the Charter: The United Nations Prepares for the Twenty-First
Century,
90 AM. J. INT'L L. 115 46

James C. Wolf,
The Jurisprudence of Treaty Interpretation,
21 U.C. DAVIS L. REV. 1023 (1988) 6

The World Bank Group,

88