Constitutionality of Legislative Provision Regarding ABM Treaty

Constitutionality of Legislative Provision Regarding ABM
Treaty

There are serious doubts as to the constitutionality o f a provision of a bill stating that the United
States shall not be bound by any international agreement entered into by the President that would
substantively m odify the Antiballistic Missile Treaty with the Soviet Union, including any agree­
m ent that would add other countries as signatories or convert that bilateral treaty into a multilateral
treaty, unless the agreement is entered pursuant to the President’s treaty making power. The provi­
sion intrudes on the Executive’s exclusive constitutional powers to interpret and execute treaties
and to recognize foreign States.

June 26, 1996

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

You have asked for our views on section 233(a) of S. 1745, the Department
o f Defense Authorization Act for Fiscal Year 1997, relating to the Antiballistic
(“ A B M ” ) Treaty with the former Soviet Union, Treaty on the Limitation of Anti-
Ballistic Missile Systems, May 26, 1972, U.S.-U.S.S.R., 23 U.S.T. 3435. Section
233(a) reads:

(a) Fiscal Year 1997. — During fiscal year 1997, the United
States shall not be bound by any international agreement entered
into by the President that would substantively modify the ABM
Treaty, including any agreement that would add one or more coun­
tries as signatories to the treaty or would otherwise convert the trea­
ty from a bilateral treaty to a multilateral treaty, unless the agree­
m ent is entered pursuant to the treaty making power of the Presi­
dent under the Constitution.

Section 233(a) raises serious constitutional questions. It is “ a basic principle
o f our constitutional scheme that one branch of the Government may not intrude
upon the central prerogatives o f another.” Loving v. United States, 517 U.S. 748,
757 (1996); see also Commodity Futures Trading Comm’n v. Schor, 478 U.S.
833, 850 (1986). It follows that Congress may not hamper or curtail the preroga­
tives that the Constitution commits exclusively to the executive branch. See M orri­
son v. O lson, 487 U.S. 654, 694 (1988); Bowsher v. Synar, 478 U.S. 714, 726
(1986). W e have serious doubts about the constitutionality of section 233(a), given
that it intrudes on two exclusively Executive prerogatives: the power to interpret
and execute treaties, and the power of recognition.
1. The dissolution of the form er Soviet Union during the autumn and winter
o f 1991 required the United States to re-evaluate the bilateral treaties that had

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existed between the Soviet Union and itself, including the ABM Treaty.1 Both
President Bush and President Clinton operated on the general principle that the
treaty rights and obligations of the former Soviet Union had passed to the suc­
cessor States,2 unless the terms or the object and purpose of the treaty required
a different result. As the Legal Adviser to the State Department during the Bush
Administration explained,

[a]s an operating principle, agreements between the United States
and the USSR that were in force at the time of the dissolution of
the Soviet Union have been presumed to continue in force with
respect to the former republics. What is the legal basis for adopting
this position? Except for the Baltic states, which the United States
never recognized as part of the Soviet Union, we regarded the emer­
gence of Russia and the other former republics to have stemmed
from what was essentially the complete breakup of the Soviet
Union. Thus, continuity of treaty relations is supported by our read­
ing of state practice, and by the policy considerations underlying
this rule. Perhaps most importantly, however, continuity has been
supported by the republics themselves, who affirmed this approach
in the Alma Ata Declaration when they guaranteed the “ fulfillment
of international obligations stemming from the treaties and agree­
ments of the former U.S.S.R.”

Edwin D. Williamson and John E. Osborn, A U.S. P erspective on Treaty Succes­
sion and R elated Issues in the Wake o f the Breakup o f the USSR and Yugoslavia,
33 Va. J. Int’l L. 261, 264-65 (1993).
Congress was well aware that the executive branch was conducting discussions
with Russia and several other successor States regarding their rights and obliga­
tions under the ABM Treaty, and it twice “ urged” the President to pursue such
discussions on particular topics. See Missile Defense Act of 1991, Pub. L. No.
102-190, § 233(c), 105 Stat. 1321, 1322, reprinted a s note to 10 U.S.C. §2431;

1The former Soviet Government recognized the independence o f the Baltic States o f Estonia, Latvia, and Lithuania
on September 6, 1991. O n December 8, 1991, the Republics o f Ukraine, Belams, and Russia formally declared
that the Soviet Union had disintegrated, and announced the formation o f the Commonwealth of Independent States.
In an Address to the N ation on December 25, 1991, President Bush announced that ‘‘the United States recognizes
and welcomes the emergence o f a free, independent, and democratic Russia . . . . O ur Embassy in Moscow will
remain there as our Em bassy to Russia. . . . [T]he United States also recognizes the independence of Ukraine,
Armenia, Kazakhstan, Byelarus [sic], and Kyrgyzstan, all States that have made specific commitments to us. We
will move quickly to establish diplomatic relations with these States and build new ties to them. . . . [T]he United
States also recognizes today as independent States the remaining six former Soviet Republics: Moldova,
Turkmenistan, Azerbaijan, Tadjikistan, Georgia, and Uzbekistan. W e will establish diplomatic relations with them
when we are satisfied that they have made commitments to responsible security policies and democratic principles,
as have the other States we recognize today.” 2 Pub. Papers o f George Bush 1654 (1991). See generally Paul
R. Williams, The Treaty Obligations o f the Successor States o f the Former Soviet Union. Yugoslavia, and Czecho­
slovakia: Do They Continue in Force?, 23 Denv. J. Int’l L. & P ol'y 1, 3, 24-25 (1994).
2 References to the “ successor States” and the like should not be understood to include the Baltic States, whose
conquest by the Soviet U nion the United States had refused to recognize.

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National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160,
§ 232(c), 107 Stat. 1547, 1593 (1993).
The United States’s presumption that the successor States are generally subject
to our bilateral treaties with the former Soviet Union is rooted, not only in the
United States’s past diplomatic practice, but in its understanding of international
law.3 In a May 10, 1995, diplomatic note to the Government of Ukraine, the
United States took as its point o f departure the “ continuity principle” of article
34 of the Vienna Convention on Succession of States in Respect of Treaties, Aug.
22, 1978, 17 I.L.M. 1488, 1509, which reads in relevant part:

1. When a part or parts o f the territory o f a State separate to form
one or more States, whether or not the predecessor State continues
to exist:

(a) any treaty in force at the date of the succession of States
in respect of the entire territory of the predecessor State continues
in force in respect of each successor State so formed . . . .

The State Department informs us that the resolution of succession questions
after the dissolution o f a State has been regarded as a function of the executive
branch, and that many executive agreements have been concluded that recognized
the succession o f new States to the treaty rights and obligations of their prede­
cessors. Furthermore, the State Department advises us, such agreements have not
been regarded as treaty amendments or as new treaties requiring Senate advice
and consent, but rather as the implementation of existing treaties.
2. It belongs exclusively to the President to interpret and execute treaties. This
is a direct corollary of his constitutional responsibility to “ take Care” that the
laws are faithfully executed. S ee U.S. Const, art. II, §3; G oldwater v. Carter,
444 U.S. 996, 1000 n.l (1979) (Powell, J., concurring in judgment) (President
has “ duty to execute” treaty provisions).4 As the Congressional Research Service
has stated, “ [t]he executive branch has the primary responsibility for carrying
out treaties and ascertaining that other parties fulfill their obligations . . . . The
executive branch interprets the requirements of an agreement as it carries out its
provisions.” Treaties and Other International Agreements: The Role o f the United
States Senate, 103d Cong, at xxiv-xxv (1993). (A Study prepared for the Senate
Comm, on Foreign Relations) (“ CRS Study” ).

3 In an older but still pertinent formulation, “ [a] state formed by separation from another, w hether the personality
o f the original state still exists o r is completely lost by disintegration, succeeds to such treaty burdens of the parent
state as are perm anent and attached to the territory embraced in the new state.” Samuel B. Crandall, Treaties:
Their Making and Enforcement 434 (1916).
4 See also Constitutionality o f Proposed Conditions to Senate Consent to the Interim Convention on Conservation
o f North Pacific Fur Seals, 10 Op. O.L.C. 12, 14-15, 17 (1986).

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The responsibility to interpret and carry out a treaty necessarily includes the
power to determine whether, and how far, the treaty remains in force. Again,
we cite the Congressional Research Service:

there is clear judicial recognition that the President may without
consulting Congress validly determine the question whether specific
treaty provisions have lapsed. The following passage from Justice
Lurton’s opinion in Charlton v. Kelly [229 U.S. 447, 473-76
(1913)] is pertinent: “ If the attitude of Italy was, as contended,
a violation of the obligation of the treaty, which, in international
law, would have justified the United States in denouncing the treaty
as no longer obligatory, it did not automatically have that effect.
If the United States elected not to declare its abrogation, or come
to a rupture, the treaty would remain in force. It was only voidable,
not void; and if the United States should prefer, it might waive
any breach which in its judgment had occurred and conform to its
own obligation as if there had been no such breach. . . . That the
political branch of the Government recognizes the treaty obligation
as still existing is evidenced by its action in this case. . . . The
executive department having thus elected to waive any right to free
itself from the obligation to deliver up its own citizens, it is the
plain duty of this court to recognize the obligation to surrender the
appellant as one imposed by the treaty as the supreme law o f the
land as affording authority for the warrant o f extradition.”

The Constitution o f the United States o f America: Analysis and Interpretation,
S. Doc. No. 99-16, at 518 (1987). Cases both before and after Charlton v. K elly
regard the Executive’s views as determining whether and to what extent treaties
remain in effect. See, e.g., Trans W orld Airlines, Inc. v. Franklin M int Corp.,
466 U.S. 243, 253 (1984); K olovrat v. Oregon, 366 U.S. 187, 190 n.4 (1961);
Terlinden v. Ames, 184 U.S. 270, 286-90 (1902); Restatement (Third) o f the F or­
eign Relations Law o f the United States §208, Reporters’ Note 5 at 102 (1987).
Hence, “ [u]nder the law of the United States, the President has the power . . .
to elect in a particular case not to suspend or terminate” a treaty. Id. § 339(c).
Accordingly, in circumstances in which a State that was a party to a bilateral
treaty with the United States has been dissolved, the President must determine,
in executing the treaty, whether and how far it remains in force, whether another
State or States have succeeded to it, and whether their actions do or do not con­
stitute compliance with its terms. In this instance, the President has determined
that the ABM Treaty’s obligations should be imputed to the Soviet U nion’s suc­
cessor States, including Russia. Congress may not interfere with or direct the
President’s interpretation and execution of a treaty any more than it may do so

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in the case o f a statute. Under the proposed legislation, however, Congress appears
to be impermissibly interfering in the President’s discharge of those responsibil­
ities with respect to the ABM Treaty, thus violating separation of powers prin­
ciples. See Nixon v. Administrator o f Gen. Servs., 433 U.S. 425, 443 (1977).
W e are aware that the Senate Committee on Foreign Relations, in its Report
on the Intermediate Range Nuclear Forces Treaty, maintained that it is a constitu­
tional requirement that “ [t]he meaning of a treaty is to be determined in light
o f what the Senate understands the Treaty to mean when it gives its advice and
consent.” CRS Study at 95. W hile we have not been able to review the entire
record o f the Senate’s ratification of the ABM Treaty, we would point out that
the treaty was adopted against a background o f diplomatic practice by the United
States and other nations, and that “ where a state divides into its constituent parts,
the [diplomatic] practice supports the continuity of existing treaty rights and obli­
gations.” 5 Although the dissolution of the Soviet Union was not likely to have
been contemplated when the ABM Treaty was ratified, insofar as the Senate may
be taken to have had an understanding of what the treaty would mean in such
circumstances, that understanding would have been informed by the pattern of
diplomatic practice in similar contingencies. Thus, we do not believe that the exec­
utive branch’s interpretation o f the ABM Treaty contradicts the Senate’s under­
standing at the time of ratification.6
The Senate Foreign Relations Committee also maintained that it is constitu­
tionally required that ‘ ‘ [t]he President may not amend a treaty without the agree­
ment o f the parties and the advice and consent of the Senate.” CRS Study at
95. Section 233(a) appears to be designed to apply this principle to the ABM
Treaty, by deeming “ any agreement that would add one or more countries as
signatories to the treaty or [that] would otherwise convert the treaty from a bilat­
eral treaty to a multilateral treaty” to constitute a “ substantive[ ] modif[ication]”
o f the treaty.
W e would take issue with the proposition that the inclusion of other Soviet
successor States along with the United States and Russia as parties to the ABM
Treaty would necessarily comprise a substantive modification of that treaty, such
as to require Senate advice and consent. We think this in part because of the
international law and general diplomatic practice regarding successorship, and in
part because, even without the addition of Ukraine, Belarus, Kazakhstan, and pos­
sibly other successor States, the ABM Treaty will remain in effect as between

5 W illiam son and Osborn, supra at 263. F o r example, treaty obligations were found to be continuous in the cases
o f the dissolution o f the following States: the G reater Colombian Union, which broke up into Colombia, Ecuador,
and V enezuela; the union o f Norway and Sweden, dissolved in 1905; the separation o f Austria and Hungary upon
the dissolution o f the Austro-Hungarian Em pire following W orld War I; and the separation of Syria from Egypt
after the dissolution o f the United Arab Republic. Id.
6 Post-ratification interpretations of a treaty by the Senate have no special authority. In Fourteen Diamond Rings
v. United States, 183 U.S. 176, 180 (1901), the Court, in ignoring a Senate resolution that sought to clarify the
custom s status o f an American territory under a treaty o f peace, stated that ‘‘[t]he meaning o f the treaty cannot
be controlled by subsequent explanations o f some o f those w ho may have voted to ratify it.”

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the United States and Russia. Thus, although some changes in the administration
of the ABM Treaty may be entailed by the inclusion of other successor States
as parties, we do not see why their inclusion must be considered a matter of
“ substantively modifying,” as distinct from “ interpreting” and “ implementing,”
the treaty. If the changes do not rise to the level of substantive modifications,
then to insist that the proposed executive agreements be submitted to the Senate
for its advice and consent would appear to intrude on the President’s exclusive
authority to interpret and implement treaties.
3. Section 233(a) also raises a serious constitutional question with respect to
the President’s recognition power.
It is by now firmly established that the power of recognition is exclusively Exec­
utive in character. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410
(1964) (“ Political recognition is exclusively a function of the Executive.” ).7 It
is also established that the Executive’s recognition authority “ includes the power
to determine the policy which is to govern the question of recognition.” U nited
States v. Pink, 315 U.S. 203 , 229 (1942). Thus, incident to the recognition of
a foreign State, the President may “ without the consent of the Senate, . . . deter­
mine the public policy of the United States with respect to the [previously unrec­
ognized government’s] nationalization decrees,” id:, or he may unilaterally abro­
gate a mutual defense treaty with a government that he is derecognizing while
recognizing another in its stead, see G oldw ater v. Carter, 444 U.S. at 1007 (Bren­
nan, J., dissenting). A presidential decision to recognize, or not to recognize, a
foreign State or government is binding upon the other organs of the Federal Gov­
ernment: for instance, “ [i]t has long been established that only governments recog­
nized by the United States and at peace with us are entitled to access to our
courts, and that it is within the exclusive power of the Executive Branch to deter­
mine which nations are entitled to sue.” Pfizer, Inc. v. Government o f India, 434
U.S. 308, 319-20 (1978). In sum, the President’s recognition authority is not only
exclusive, but broad.
The question of determining which States are the “ successors” to a State that,
like the former Soviet Union, has been completely dissolved, is a matter for the
President alone to determine in the exercise of his recognition authority. Moreover,
we believe, in determining which States are the successors of a dissolved State,
the President may also determine which of the successors are bound by the former
1 See also id. at 461 & n.20 (W hile, J., dissenting), United States v. Belmont, 301 U.S. 324, 330(1937), Goldwater
v. Carter, 444 U.S. at 1007 (Brennan, J., dissenting); Can v. United States, 14 F.3d 160, 163 (2d Cir. 1994); Phelps
v. Reagan, 812 F.2d 1293, 1294 (10th C ir 1987); Americans United fo r Separation o f Church and State v. Reagan ,
786 F.2d 194, 202 (3d Cir.), cert, denied, 479 U.S. 914 (1986); Restatement (Third) o f the Foreign Relations Law
o f the United States § 2 0 4 ( “ [T]he President has exclusive authority to recognize or not to recognize a foreign
state or government, and to maintain or not to maintain diplomatic relations with a foreign government.'*); Section
609 o f the FY 1996 Omnibus Appropriations Act, 20 Op. O.L.C. 189, 193-96 (1996). Bill to Relocate United States
Embassy From Tel Aviv to Jerusalemt 19 Op. O.L.C. 123, 124-26 (1995); Memorandum for the Attorney General,
from Theodore B. Olson, Assistant Attorney General, O ffice o f Legal Counsel, Re: Diplomatic Relations with the
Vatican at 4*5 (Jan. 6, 1984); Statement o f Antonin Scalia, Assistant Attorney General, Office o f Legal Counsel,
Re: Executive Agreements (S. 1251 and S. 632), Before the Subcomm. on Separation o f Powers, Senate Comm,
on the Judiciary at 13 (May 15, 1975).

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State’s treaty obligations towards the United States, and the extent to which they
are so bound. The power to recognize newly emergent States formed from a
State’s dissolution thus encompasses the power to determine the treaty con­
sequences of their successorship to the parent State.
One of the elements of the recognition o f these newly emergent States was
and is their succession to applicable Soviet treaties. By purporting to determine
that the addition o f these successor States to the ABM Treaty would constitute
an amendment to that treaty requiring the advice and consent of two-thirds of
the Senate, the proposed legislation would act in derogation of the President’s
recognition power. Because the recognition power is exclusively Presidential, it
is doubtful that Congress may take that step.

WALTER DELLINGER
A ssistant Attorney General
Office o f Legal Counsel

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