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What Does "Abrogate" Mean?

Jeremy DerfnerPosted Thursday, July 13, 2000, at 4:49 PM ET

If the United States builds a national missile defense system, it will be in violation of the Anti-Ballistic Missile Treaty, agreed to with the Soviet Union in 1972 and arguably still binding on Russia. It can either amend the treaty (which Russia has said it will not agree to) or withdraw from it. How does a country withdraw from a treaty? And is there a difference between withdrawing from a treaty and abrogating one?

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The terms "withdraw" and "abrogate" are sometimes used interchangeably, but they don't mean the same thing. One side can legally withdraw from a treaty as long as it meets whatever conditions for withdrawal are set out in the treaty. To abrogate means to pull out without meeting those conditions, or to pull out in certain cases when the treaty does not set conditions for withdrawal.

The ABM treaty includes a specific and fairly simple withdrawal provision: If either party decides that changing circumstances have rendered the treaty contrary to its interests, it can withdraw six months after giving notice. The decision can be unilateral. The U.S. would not need Russia's permission, and Russia would have no legal recourse, even if it disagreed with the formal statement the U.S. would be required to issue.

Were the U.S. to abrogate the treaty, the legal effect would be more or less the same as if it withdrew. Russia could take its case to the U.N. International Court of Justice, but since there is no enforcement mechanism for international political treaties (unlike some economic treaties), the U.S. could not be punished even if found guilty. However, abrogating the treaty would have more serious diplomatic consequences than withdrawing from it, and the U.S. is unlikely to do so because it can withdraw from the treaty simply by issuing a statement.

The U.S. rarely withdraws from international treaties. The last time it did so was in 1978, when President Carter withdrew from the Mutual Defense Treaty with Taiwan in order to recognize China. In the 19^th century, the U.S. regularly violated Indian treaties.

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Jeremy Derfner is a former Slate editorial assistant.

COMMENTS

Reader Response from The Fray:

Here's a question: since the USSR does not officially exist anymore, isn't the point moot? After all, the nation that signed the treaty with the U.S. is no longer in existence.

--John Hazlett

(To reply, click here.)

With all this talk about the proposed American anti-ballistic missile defense system and, thereby, the withdrawal from or abrogation of the ABM treaty, it seems our government officials have taken this "Superpower" identity of our nation a little too far. After all, invulnerability is the stuff of Superman comic books, but it's not reality. Did we not learn anything from the history of the Trojan horse or lots of other historical tales about proud but arrogant powers who thought they could build a fortress of invulnerability? Now, we are going to risk, perhaps, the greatest proliferation of nuclear weaponry since the height of the Cold War for an illogical gambit. What the President of the U.S. should be doing is trying to convene an international conference of all nations, especially nuclear-armed nations, and say that this nuclear arms stuff is crazy, let's find a way to get out of this pickle. Then work for anti-proliferation and further disarmament. It's not as macho as that "Superman" stuff, it might even be a little boring, but it's surely more sensible.

--Clifford Mark Greene

(To reply, click here.)

(7/14)

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