Proposed Missile Defenses and the ABM Treaty
May 07, 2001
On May 2, 2001, President George W. Bush announced his administration's intention to deploy defenses against possible missile attacks from states other than those formerly regarded as major threats to the United States. He said that in doing so, "We should leave behind the constraints of an ABM [Anti-Ballistic Missile] Treaty that perpetuates a relationship [with the former Soviet Union] based on distrust and mutual vulnerability."
The ABM Treaty is a bilateral treaty (a treaty in force for only two states) entered into in 1972 between the United States and the then-Soviet Union. While the disintegration of the Soviet Union may raise a question whether the ABM Treaty is still binding on the successor states (four of which--Russia, Belarus, Ukraine and Kazakhstan--still had nuclear weapons at the breakup), it is clear that the United States and Russia have continued to regard it as remaining in force between themselves.
Article I, paragraph 2 of the ABM Treaty says, "Each Party undertakes not to deploy ABM systems for a defense of the territory of its country and not to provide a base for such defense, and not to deploy ABM systems for defense of an individual region except as provided for in Article III" (which allows each party to deploy one ABM system to defend its national capital and one to defend a region containing ICBM silo launchers). The proposed missile defenses would go beyond the limited systems permitted under the ABM Treaty.
The parties to a bilateral treaty may agree, if they wish, to abrogate or modify the treaty at any time. Thus, if the United States and Russia agree that the ABM Treaty no longer serves their purposes and decide to terminate it, they may do so by mutual agreement. Nonparty states would not have a right to object unless they could make the highly unlikely showing that they were intended beneficiaries of the Treaty, that they relied on the Treaty's continuation in force (in the sense that they did or refrained from doing something significant that they otherwise would or would not have done), and that they would suffer material detriment if the Treaty is terminated.
If one of the parties to a treaty unilaterally abandons it, the other party could maintain that the treaty has been breached--unless one of the internationally-recognized grounds for lawful treaty termination is present. One such ground, often invoked when a party wishes to terminate a treaty obligation, is that there has been a fundamental change of circumstances since the treaty was entered into (sometimes called the doctrine of rebus sic stantibus). Under the Vienna Convention on the Law of Treaties, which codifies the customary international law of treaties for the most part, a change of circumstances may be invoked as a ground for terminating or withdrawing from a treaty, but only if certain conditions are met. First, the change must be of circumstances existing at the time the treaty was made. Second, the change of circumstances must be "fundamental." Third, the change must not have been foreseen by the parties. Fourth, the existence of those circumstances must have constituted an essential basis of the consent of the parties to be bound by the treaty in the first place. Fifth, the effect of the change must be radically to transform the "extent" of obligations still to be performed under the treaty.
The Vienna Convention does not define "fundamental," nor does it make clear what is meant by the "extent" of obligations still to be performed. Regarding the latter point, in the French language version of the Vienna Convention, the word translated into English as "extent" is "portÃ©e." It could be translated as "impact."
President Bush's speech on May 2 stressed the change of circumstances from the height of the cold war in 1972 to the present post-cold war era. He said that in 1972, the threat from the Soviet Union was "real and vivid." Few other countries had nuclear weapons, and "most of those who did were responsible allies." Any threat from other countries "was mostly a distant threat, not yet a reality." Today, he said, it is a vastly different world. Russia is not the enemy of the United States. The Iron Curtain no longer exists. More nations have nuclear weapons, and still more aspire to them. Some have ballistic missile technology. And, he said, "the list of these countries includes some of the world's least responsible states." The threat, he continued, emanates today from a small number of missiles in the hands of these states. The Treaty "enshrines the past. No treaty that prevents us from addressing today's threats, that prohibits us from pursuing promising technology to defend ourselves, our friends and our allies, is in our interests or in the interests of world peace."
President Bush thus appears to have set the stage for a change-of-circumstances argument if the United States decides unilaterally to withdraw from the ABM Treaty. The points he raised would be relevant to the five conditions embodied in the Vienna Convention, as outlined above.
About the Author:
Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee University School of Law. He has written a book and several articles on United Nations law, and is a member of the Board of Editors of the American Journal of International Law.
On May 2, 2001, President George W. Bush made a statement in which he called attention to changed circumstances that had occurred since the entry into force of the Antiballistic Missile (ABM) Treaty between the United States and the then-Soviet Union in 1972. As was discussed in the ASIL Insight, "Proposed Missile Defenses and the ABM Treaty" (May 2001), he apparently was setting the stage, if Russia does not agree to terminate or modify the Treaty, for the United States unilaterally to terminate its obligations under the ABM Treaty pursuant to the doctrine in the general law of treaties allowing such action if there has been a fundamental change of circumstances after a treaty has entered into force.
John R. Bolton, the Undersecretary of State for Arms Control and International Security, has now indicated that if the United States and Russia have not agreed to modifications in the ABM Treaty in a matter of months, the United States (instead of relying on the doctrine of fundamental change of circumstances derived from the general law of treaties) may invoke a provision in the ABM Treaty allowing either party to withdraw from it on six months' notice, under the conditions set forth in Article XV. That Article says that the ABM Treaty is of unlimited duration, but "Each Party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests." This language appears to give each party the unilateral authority to decide for itself whether the conditions for withdrawal have occurred. The Treaty does not supply any mechanism for evaluating such a decision, though it does require the withdrawing party to provide the other party with a statement of the extraordinary events it regards as having jeopardized its supreme interests.
Response to Addendum
AndrÃ© de Hoogh
I have read with great interest the Insights of Professor Kirgis on the intention of the United States to withdraw from the ABM treaty. However, I feel that some additional information needs to be put before the public, so that it can judge for itself whether the United States would act lawfully in doing so.
What I miss in both Professor Kirgis's Insights is a reference to Security Council resolution 825 (1993), which can be found at <http://www.un.org/Docs/scres/1993/825e.pdf> and which relates to the intention of the government of North Korea to withdraw from the Treaty on Non-Proliferation of Nuclear Weapons. The NPT, which can be found at <http://fletcher.tufts.edu/multi/texts/BH526.txt> contains a provision identical to the relevant provision of the ABM treaty, namely article X, paragraph 1:
"Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests."
When North Korea signalled its intention to withdraw from the NPT, three States protested and questioned whether the stated reasons of North Korea constituted extraordinary events related to the subject matter of the treaty. These three States were the Russian Federation, the United Kingdom and the United States. The Security Council then called upon, in a clearly non-binding fashion, North Korea to reconsider its announcement, which as we know North Korea did.
I think it is necessary to bring this information to the attention of our audience also. If a small State like North Korea is called upon (among other by the United States) not to withdraw from the NPT, why should the most powerful State in the world, the United States, be able to claim extraordinary events, when the threats to its security must obviously be less serious than those of a small State.
While there is, as Professor Kirgis mentions, no mechanism or procedure to review a decision under the respective treaties, this does not mean that other States may not dispute an announcement to withdraw. Should the requisite jurisdictional basis exist for the International Court of Justice to decide upon this, the question whether certain developments constitute extraordinary events related to the subject matter of the treaty would be a justiciable one, since it concerns the interpretation and application of a treaty provision. Naturally, since the withdrawal of the United States of its declaration under article 36, paragraph 2, of the ICJ Statute, such a jurisdictional basis will be hard to find.
AndrÃ© de Hoogh
Lecturer in international law
University of Groningen, The Netherlands
Reply to Response
I feel compelled to raise a couple of points in reply to Mr. de Hoogh's comments. Despite his claim that the withdrawal provisions of the NPT and the ABM treaty are "identical," there are significant differences between the two. The NPT requires notice "to all other Parties to the Treaty and to the United Nations Security Council." NPT, art. X, para. 1. In contrast, the ABM treaty requires notice "to the other party." ABM Treaty, art. XV, para. 2. Both treaties require the withdrawing party to provide an explanatory statement. But whereas the NPT requires an explanation to all parties and the Security Council, the ABM treaty merely requires an explanation to the other party. Thus, consistent with the distinction between a bilateral and multilateral treaty, the NPT contemplates that withdrawal is a multilateral concern, whereas the ABM treaty contemplates that withdrawal is a bilateral concern.
In both cases, withdrawal is primarily a political issue, not a legal issue. In other words, the question whether a country's "supreme interests" have been jeopardized -- the standard in both treaties -- is not a justiciable question. Nothing in the international response to the North Korean problem suggests that states viewed North Korea's withdrawal as a justiciable question. The United States, Russia and the U.K. responded in their capacity as depositaries for the NPT treaty. (At the time, I was serving in the Executive Branch and was involved in those deliberations.) Their response was "legal" only in the sense that they reminded North Korea that it had a treaty duty to provide "a statement of the extraordinary events it regards as having jeopardized its supreme interests." NPT, art. X, para. 1. To the best of my recollection, neither the depositaries nor the Security Council challenged North Korea's legal right to withdraw. Nor did they challenge North Korea's legal right to determine for itself what jeopardized its supreme interests.
Rather, the depositary governments and the Security Council applied political pressure on North Korea to reconsider. In that vein, Russia can (and, in my view, should) apply political pressure on the United States to reconsider, should the United States provide notice of its intent to withdraw from the ABM Treaty. Russia is also entitled to demand an explanation, per Article XV of the ABM Treaty. And, of course, other states are free to apply political pressure on the United States as well. But if and when the United States provides official notice of its intent to withdraw, the issue must be resolved politically, not legally, in part because that is what the treaty itself envisions.
Assistant Professor of Law
St. Louis University Law School
Withdrawal from the ABM Treaty: A Reply
By CÃ©dric van Assche
Professors Frederic Kirgis and David Sloss say that the language of Article 15, para. 2 of the ABM Treaty appears to grant each party the unilateral discretion to decide for itself whether the conditions for withdrawal have occurred. Taking into account the self-judging nature of Article 15, para. 2, they both conclude that the case would therefore not be justiciable. However, it seems to me that such a conclusion could only be drawn if extraordinary events jeopardizing the supreme interests of a party have actually occurred. As the United States and the Russian Federation have already expressed conflicting views on this point, it seems to me that nothing precludes a court from ruling that the US withdrawal did or did not infringe the provisions of Article 15, para. 2 of the 1972 ABM Treaty inasmuch as the occurrence of such extraordinary events is a matter for objective determination by a Court. I would therefore conclude that the question of US withdrawal is a justiciable international legal dispute.
CÃ©dric van Assche
Centre for International Law
Free University of Brussels (VUB), Belgium
By Frederic L. Kirgis
On December 13, 2001, President Bush announced that he had given formal notice to Russia, in accordance with the provisions of the Anti-Ballistic Missile (ABM) Treaty, that the United States is withdrawing from the Treaty. Article XV of the ABM Treaty says, AEach Party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests.@ Six months= notice to the other party (Russia) is required, so the United States= withdrawal presumably will become effective next June.
Explaining the withdrawal, the President referred to the terrorist events of September 11. He noted that the greatest threats to the United States and Russia now come from Aterrorists who strike without warning, or rogue states who seek weapons of mass destruction.@ He said that terrorists and some of their supporters seek the capability to attack by means of missiles. Consequently, he said, the United States needs the freedom to develop effective defenses against missile attacks from those sources, and this can be done only if the restrictions of the ABM Treaty are removed.
Without saying it in so many words in his public announcement, the President appears to have decided that the events of September 11, together with pre-existing concerns about possible terrorist missile attacks, are Aextraordinary events related to the subject matter of [the ABM] Treaty [which] have jeopardized [U.S.] supreme interests.@ As was noted in the August 2001 ASIL Insight on the ABM Treaty, the Treaty does not set forth any mechanism for evaluating such a decision. Nevertheless, if Russia ultimately acquiesces in the United States= justification for invoking the withdrawal clause in the ABM Treaty, it is possible that the stated grounds of the U.S. withdrawal could be regarded as supplying a precedent for withdrawal by the United States or other countries from other arms control treaties containing similar withdrawal clauses.