International Legal Implications of the Strategic Defense Initiative

• Author: by Major John E. Parkerson, Jr.
• Pages: 02

1. 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.

   1. 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," quoted in ThdLaye, No Fanrry in USStmlspc Drtmse Initziutire. Pac. Def. Rep 79 [Dee. 1984 Jan. 19851

      implement it . , , It is absurd to base the strategy of the West on the credibility of mutual suicide."'

      By the early 198O's, several trends suggested that continued longterm dependence on offensive forces no longer provided a stable basis for deterrence. The chief threat to United States dependence on MAD was the Soviet Union's improvement of its ballistic missile force.@ By 1980, the USSR possessed a force that, in a surprise attack, could eliminate a large part of the US.missile force and the leadership stmcture that commands it, thereby critically threatening American power to retaliate.e United States officials saw this as proof that Soviet leaders had abandoned MAD, if indeed they ever had accepted it, and that they were determined to acquire a missile force that could destroy the military power of the United States in a first strike.I0

      General John W. Vessey, Jr., former Chairman of the Joint Chiefs of Staff, stated that the Soviet Union can now destroy 70 to 16 percent of our Minuteman missiles in a surprise attack." Recent improvements in the accuracy of Soviet warheads have left the land.based leg of the U.S. strategic triad's in such a state of vulnerability that American Minuteman silos can be destroyed by a missile landing et a distance of 250 yards, even it they have been "hardened" by tons of concrete and stedla These Soviet improvements become even more ominous when one considers the missiles' potential for destroying not only U.S. missiles, but also American launch.contro1 centers and the communications links that would relay the President's orders concerning when and how to execute a counterattack." The US. air-based leg of the strategic triad is even more vulnerable, and the submarinebased leg. standing alone, is regarded as ineffective to attack "hard. ened' land-based targets.'S One thing is clear: the capabilities of

      'Id ' S p e d Repart. mpro note 5 at 2 "R.

      Jssrraw. HOW

      to Make Nudeill Weapons Obaoiete 18 ll9SSl. Jastrow is the founder of UASAI Institute for Space Studies and Professor of Earth Scrences at Dartmouth College. he ii a pnme mppartsr of SDI within the scientific comuluty.

      'Old 81 20

      'Id.'The "strategic trisd' eonsiila of the land-based leg. prmarily ltrareglc masiler. the =-bared ieg, prmarily sneienc E-52s and air-launched mise missiles: and the aes-based leg. prynardy submarinp.launched b&sm mssiler ISLEMII.

      InR Jantraw. supra noes 9, at 20

      %(,A _* 0 7

      .I L.l .I.

      "Id si 21.25. Those holding clur view state that, although the svrvivabhfy of the Trident submarine maheii it an excellml deterrent to a Soviet attack, B missilelaunched from a submarine is relatively ma~curate. while it hsa the ability LO

      the Soviet ballistic missile force are far beyond any level needed to maintain a deterrent against a U.S.strategic missile attack.Simultaneously, the USSR is supplementing its offensive missile improvements with extensive development of "active" defenses, to counter U.S. retaliatory forces: and "passive" defenses, to amure survival of a greater portion of the Soviet population.'b These frightening developments indicate a movement away from any thoughts that actually fighting a nuclear war is "unthinkable."

      President Reagan. faced with this threat, determined that continued long.term dependence on otfensive forces. as predicated by MAD, no longer provided a stable basis for deterrence. The options tor a U.S.response to the threat had become extremely dangerous, reduced essentially to a "launch on warning"

      SDI appeared as a strategic reaponse to the paradox. President Reagan envisioned the contemplated defense as a kind of shield between the U.S. and its enemies to protect against nuclear weapons-a defensive system that could intercept and destroy attacking ballistic missiles in mid.fight.'a

      In April 1983, the President ordered two intensive studies, to explore concepts and technologies that hold potential for a reliable bellistic missile detense, and to examine policy strategies relatedto those technologies.'g The Defensive Technology Study Team. headed by former NASA Administrator Dr. James Fletcher. submitted its report to the Department of Defense in October 1983.20 In March 1984, Secretary of Defense Caspar W.Weinberger announced the establishment of the SDI program. Air Force Lieutenant General James Abrahamson, then Associate Administrator for the Space Transportation System at NASA,

      destroy cmei, it is not Lkeiy 10 land close enough to destroy a "hardened ' or proleefed target. Cam/mg the sriafegc "wivg-ng' m e step further, d the USSR launched an aLack againsf US military silos while avoiding its cities rhe

      u S would be deterred from lavnchlng ica submarine mmiie8 agunrt Sovietm reprissl. since the USSR could be terrain Lo respand by attackmy US.wlfh IB hugs arsenal. An sddhiond drawback of the Trident 1s Its h t e d ab when submergcd, to commumcate with ~ f i command and...