International Legal Implications of the Strategic Defense Initiative

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International Legal Implications of the Strategic Defense Initiative

I. AN INTRODUCTION TO THE STRATEGIC DEFENSE INITIATIVE

In a televised speech on March 23, 1983, President Reagan introdueed a new element into the "stratepic calculus" that for many years based the defense of the United States, and the deterrence of nuclear war, on the strategy of Mutual Assured Destruction(MADl.l The new element is known officially as the Strategic Defense Initiative ISDI). Detractors labelled the pro. posal "Star Wars."

The President called the proposal a "vision of the future which offers hope"-a proposal to use defensive measures to counter the Soviet Union's strategic nuclear missile threat.? Accordingly. the President stated "I am directing a comprehensive and intensive effort to define a longterm research and development program to begin to achieve our ultimate goal of eliminating the threat posed by strategic nuclear missilead's Significantly, the President stated that his proposal was consis. tent with U.S. obligations under the Anti.Ballistic Missile (ABM) Treaty? no other treaties were mentioned.

*Judas Advmate GeneraYs Corns. United States Armv Currentlv asaimed 8slmtrueior, Department of Law. iJnited State8 Military Academy: nesi Paml Formerly aasigned 88 Legd Lmaon Officer, CINCUSAREUR LNO, American Embasey. Bono, Federal Repubhe of Germany, 1985.1986: Attorney internatiand Law Division, HQ USAREUR. Heidelberg. Federal Republic of Germany. 1981-1983, Asemrant Staff Judge Advocate HQ CECOY. Fc. Yonmouth, Yew Jersev. 1978-1981. B.A mama cum laude Emorv Umvsrrifv 1974. MAiDiplornatic Hiitaryl. Emory U>versiry, 1975, J D.. E&ry Univer&l976 M.A llnternstiond Relation&tretegc Studied Barton Umversity. 1986 Completed the 34th Judge Advwate Officer Graduate Course. 1986 Member of che Bars of the State of Gearga and the Suprema Court of the United Stales. Author of 7ha Sfahoning Agiaemenls and Their Impat at the Federal German Lwei A BonnPwsoective The Arm" Lever. Februm 1966. at 8 Ths arlicle IS based Y D O ~ a

the& submrted in partrsl.satisfacfion.af the requirements of the 34th judge Advocate Officer Grsduate Course

Pmstdenr's Speech on Military Spending and a New Ditensr. N.Y. Timer.Much 24. 1883. at 20. COI.

1 [hereinafter Pssident's Speech] '72

'Id.'TIsBty mth the Urvon of Soviet Socialist Repubbcs on the Lum~af~on of

Antl-Ballistic Mimils Systems. May 26, 1972, Udtsd States.USSR, 23 UST. 3435, T l.A S. No. 7503 leffeetlve Ocr. 3. 18721 [hereinafter ABM Treaty]

SDI presents many complex international legal issues that cannot, and will not, be resolved by a simple application of principles of treaty interpretation. SDI's impact on international agreements, paliticaldrategic arms control processes, and global ordering mechanisms cannot be considered apart from each other: they are interrelated concepts. This article will show the interrela. tionship between policy and law in this area, thereby permitting discussion of SDI in several areas that previously have not been developed. Domestic statutory constraints generally we not discussed.

A. STRATEGIC CONCEPTS

Mutual Assured Destruction (MAD) in one form or mother has formed the basis far the United States' strategic nuclear strategy for the past twenty years or so. Under MAD, both superpowers theoretically deter each other from launching a first strike by assuring that sufficient numbers of the attacked country's strate. gic missile farces will survive m attack 80 that it cm retaliate massively against the attacker's homeland. This theory, to work, would require the U.S. and the USSR to remain undefended, so that each side would know that if it launched a missile attack against the other, the attacked force would be able to destroy its homeland in reprisal.' This idea provides the strategic "stability" that exists between the two superpowers.

American leaders were not happy with B strategy based on a commitment to "mutual vulnerability" and the fear of mutual annihilation; but, in view of the nuclear stalemate, it generally was accepted as the only practical solution. Still, policymakers wished for an escape from the strategy. Dr. Henry Kissinger's remarks in Brussels in 1979 were typical of the feelings of many: "It cannot have occurred often in history that it was considered an advantageous military doctrine to make yourcountry deliberately vulnerable . . . . Now we have reached the situation so devotedly worked for by the arms control community: we are indeed vulnerable."@ Kisslnger went an to criticize the MAD doctrine an two grounds: "[Tlhe Soviets do not believe it, and . . . we have not yet bred a race of supermen that can

'Bureau ei Rlbbc Affaus. US. Dep't oi Stam, Special Rep. KO. 129. The srrategie Defense lnmsfive 1 119851 [heremafter Sped Repartl, Hmard Nuclear Sfvdy Group, Livmg wfh Nuclear n'eapons 89 91 119831.

*Dr Kmsinger'i remarks were made st a conference m Bmisels spomomd by the Center for Strmegle and International Studms. Georgemun Uruveraicy. under the theme: "NATO The NBXC

Thrrfy Years," qu...

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