ANSWERS: THE ABM TREATY IS INVALID BECAUSE THE NATION IT WAS SIGNED WITH – THE SOVIET UNION

ANSWERS: THE ABM TREATY IS INVALID BECAUSE THE NATION IT WAS SIGNED WITH — THE SOVIET UNION — NO LONGER EXISTS

ABM TREATY WAS SIGNED WITH A NATION WHICH NO LONGER EXISTS

Greg Torode, January 28, 2001 South China Morning Post SECTION: Pg. 9 HEADLINE: Towards a new Cold War //VT2002acsln

These hawks are driven by both ideological and geostrategic fears. In a post -Cold War world, they want America's leadership and military superiority confirmed by sheer might, rather than what they see as an outdated treaty based on mutual fear. "The ABM treaty was made with the Soviet Union," one senior Republican said. "The Soviet Union no longer exists, and neither should this piece of paper holding America back."

ABM TREATY IS NO LONGER LEGALLY BINDING

FRANK GAFFNEY Center for Security Policy: February 2, 1998 ONLINE Q&A: THE ABM TREATY http://www.pbs.org/newshour/bb/military/jan-june99/nmd_qa.html//ACS-2/4/2000

A new legal analysis by former Deputy Assistant Secretary of Defense Douglas J. Feith and former Justice Department official George Miron being distributed by the Center for Security Policy conclusively demonstrates that, under international legal practice and precedent, the extinction of the Soviet Union caused the ABM Treaty to lapse.

Consequently, the United States has not been legally bound by the terms of this accord since 1991. In light of the ballistic missile threat to this country that even the Clinton Administration now acknowledges is emerging, the nation can no longer afford to continue, as a matter of policy, to constrain its defensive technology and programs in ways not required of it by international law.

LEGALLY, ONCE THE SOVIET UNION ENDS SO DOES THE ABM TREATY

DAVID B. RIVKIN, JR. AND LEE A. CASEY, The Heritage Foundation, June 7, 2000 SIX REASONS WHY ARMS CONTROL ADVOCATES ARE WRONG: THE ABM TREATY IS NOT IN FORCE No. 1375 http://www.heritage.org/library/backgrounder/bg1375.html //VT2002acsln

And under the principles of international law, the ABM Treaty was terminated by operation of law at the moment America's treaty partner, the Soviet Union, was dissolved on December 25, 1991.3

There are two obvious legal reasons why this is the case. First, none of the Soviet Union's former states continued its international legal personality; and second, no state, or group of states, that survived the dissolution of the U.S.S.R. was capable of fulfilling the totality of obligations the treaty imposed on the Soviet Union. Under these circumstances, a defunct state's bilateral treaties automatically are terminated. Successor states may claim the benefit of those treaties only with the consent of the dissolved state's treaty partners, secured according to relevant constitutional processes. Because the recognition of Russia alone, or some other combination of former Soviet republics, would profoundly change the rights and obligations of the United States under the 1972 ABM Treaty, its restrictions on ballistic missile defenses could be re-imposed on the United States only through the signing of a new treaty, with the advice and consent of the U.S. Senate.

THE RUSSIAN FEDERATION IS A NEW ENTITY, AND NOT THE SAME AS THE SOVIET UNION

The Russian Federation is a new political and legal entity. The 1992 claim by President Yeltsin that Russia was the successor to the Soviet Union's treaties was not legally sufficient to substitute the Russian Federation for the Soviet Union as an ABM Treaty party. Yeltsin's Russia did not, by any objective measure, continue the international legal personality of the Soviet Union or the Russian Empire that preceded it. Shorn of its 19th century south and central Asian empire, as well as the ancient territories of Belarus and Ukraine, the Russian Federation is an entirely new political and legal entity. It is not entitled to succeed to the Soviet Union's treaties, absent the consent of the Soviet Union's former treaty partners.

THERE IS NO AUTOMATIC EXTENSION OF THE SOVIET UNION’S TREATIES TO RUSSIA

Russian succession to the Soviet Union's treaties is not automatic. The United States has never purported to accept Boris Yeltsin's blanket claim that Russia is the successor to the U.S.S.R.'s treaties. When the Soviet Union dissolved, the United States determined that it would review succession matters on a treaty-by-treaty basis. This policy was noted by a number of commentators at the time, including one of the lawyers who signed the Lawyers Alliance occasional paper. In 1993, Thomas Graham, Jr., then serving in the Arms Control and Disarmament Agency (ACDA), explained to the staff of Inside the Pentagon that the United States was in fact reviewing succession matters on a treaty-by-treaty basis.5 ACDA's annual reports also made it clear that the United States rejected Yeltsin's claim. The reports stated that any of the newly independent states that wished to become a party to the ABM Treaty had a legitimate claim to that status.6 A case-by-case review of the Soviet Union's treaties is fundamentally inconsistent with automatic Russian succession as an ABM Treaty party.

THE SOVIET UNION DISSOLVED IN 1991, AND SO DID THE ABM TREATY

As a matter of law and fact, the 1972 ABM Treaty ceased to have legal force and effect when the Soviet Union dissolved in 1991. Under the applicable rules of state succession, only a state that could both fulfill the Soviet Union's treaty obligations and continue the U.S.S.R.'s international legal personality would automatically succeed the Soviet Union as a party to the ABM Treaty. No such state survived the Soviet Union's collapse, including Russia. The assertion that first Russia and later Belarus, Kazakhstan, and Ukraine are capable of filling its shoes in the ABM Treaty is sounding more and more troubling with each passing month. In reality, whatever legal restrictions the ABM Treaty imposed to prevent the United States from protecting Americans from ballistic missile attack disappeared on Christmas Day 1991--the day the Union of Soviet Socialist Republics finally made its way onto the ashheap of history.

THE ABM TREATY IS VOID BECAUSE THERE IS NO MORE SOVIET UNION

Baker Spring, Research Fellow in National Security Policy, The Heritage Foundation, 2001, Defending America from Missile Attack http://www.heritage.org/mandate/priorities/chap9.html //VT2002acsln

A careful review of the treaty's diplomatic history demonstrates that the ABM Treaty did not survive the collapse of the Soviet Union. No single state of the former Soviet Union, including Russia, and no combination of these states can fulfill the obligations the treaty imposed on the former Soviet Union. This renders the treaty void.