The Anti-Ballistic Missile Treaty debate: time for some clarification of the president's authority to terminate a treaty.

• Author: O'Donnell, Joshua P.

ABSTRACT

This Note explores the legal issues surrounding a president's legal authority to unilaterally withdraw from a treaty. This Note argues that, while international legal issues surrounding treaty termination are not controversial, the domestic legal issues surrounding the president's authority to terminate a treaty are heavily disputed. An analysis of these domestic legal issues does not resolve the controversy. Instead, this Note argues that a functional analysis is required. This functional analysis reveals that the president should have the power to unilaterally terminate a treaty because it maintains foreign policy effectiveness. The Note then argues that the Senate, which informally recognizes this presidential power, should recognize it formally through a Senate resolution.

TABLE OF CONTENTS I. INTRODUCTION II. THE BACKGROUND AND TEXT OF THE TREATY III. THE NATIONAL MISSILE DEFENSE DEBATE A. President Reagan's Strategic Defense Initiative B. President Clinton's National Missile Defense Policy C. President George W. Bush's National Missile Defense Policy IV. LEGAL ISSUES SURROUNDING TREATY TERMINATION A. International Legal Issues Surrounding Treaty Termination B. Domestic Legal Issues Surrounding Treaty Termination, the Goldwater v. Carter Litigation 1. Background to Goldwater v. Carter 2. The District Court Decision in Goldwater v. Carter 3. The Court of Appeals Decision in Goldwater v. Carter 4. The Supreme Court Decision in Goldwater v. Carter V. RESOLVING THE TREATY TERMINATION DEBATE A. The Arguments For and Against the President's Unilateral Power to Terminate Treaties B. Functional Analysis of the Treaty Termination Debate VI. CONCLUSION I. INTRODUCTION

On December 13, 2001, President George W. Bush announced his decision to terminate the 1972 Anti-Ballistic Missile (ABM) Treaty. (1) President Bush's announcement was significant in two respects. First, the unilateral presidential termination of a treaty is fairly unique in U.S. history. (2) Second, the legal aspects surrounding the termination of treaties are heavily disputed and highly controversial. (3) This Note first takes a look at the background and text of the ABM Treaty. Following this introduction to the ABM Treaty, the Note takes an in-depth look at the domestic history of the treaty and the national missile defense (NMD) debate. Then, this Note sets forth the international and domestic legal concerns surrounding unilateral termination of a treaty. With respect to the domestic legal concerns, this Note focuses on the U.S. Supreme Court case Goldwater v. Carter, the leading case dealing with treaty termination. (4) Finally, this Note presents a potential resolution to the current debate.

2. THE BACKGROUND AND TEXT OF THE TREATY

   At the height of the Cold War, both the United States and the Soviet Union feared the outbreak of nuclear war. (5) The driving force behind each country's nuclear policy, which was employed to prevent such a war, was the doctrine of Mutually Assured Destruction (MAD). (6) The basic premise of this doctrine is that a country will not launch a preemptive first strike as long as the country it is attacking maintains a second strike capability that can cause massive damage to the initial aggressor. (7) MAD cannot deter war if either of two scenarios arise. (8) First, if either country fails to maintain an effective retaliatory capability, then the other country may be tempted to launch a preemptive strike. (9) Second, if either country develops a shield to protect it from a nuclear attack, then MAD would be undermined. (10)

   In the 1960s, a concern existed that both of those factors were working against the United States. (11) The Soviet Union was in the midst of a buildup that could have directly threatened the second strike capabilities of the United States by allowing the Soviets to destroy the U.S. retaliatory capabilities with a Soviet first strike. (12) In addition, the Soviet Union was working on two different types of missile defense systems. (13) In this atmosphere, President Lyndon Johnson wanted to start negotiations with the Soviet Union so that the two nations could reach agreements that would limit the Soviet buildup and ban missile defense systems. (14) The concerns over the need to limit the arms race carried over to the Nixon administration and ultimately led to the Strategic Arms Limitations Talks (SALT) with the Soviets. (15) These talks began in Helsinki in November 1969. (16) It was not until 1972 that each side finally agreed on the ABM Treaty and an interim agreement limiting offensive nuclear weapons. (17) Both were signed at a summit in Moscow in May 1972. (18)

   The ABM Treaty codified the MAD doctrine. (19) Several provisions of the treaty were particularly important and should be discussed at this point. (20) First, several articles of the treaty explicitly banned ABM systems. Article II defined an ABM system as a missile system that has the purpose of countering "strategic ballistic missiles or their elements in flight trajectory." (21) An ABM system included the ABM interceptor missiles, launchers, and radars. (22) Article II also specified that systems that are under construction or undergoing testing are included in the definition of an ABM system. (23) Article I banned ABM systems, as defined in Article II, for the defense of the territories of each country and banned each country from providing a "base for such a defense." (24) Article V mandated that each party not "develop, test, or deploy ABM systems or components which are sea-based, air-based, space-based, or mobile land based." (25)

   Second, two exceptions to this general prohibition were provided in Article III of the treaty. (26) One exception was for an ABM system centered on each nation's capital, and the other exception was for a system centered on an intercontinental ballistic missile (ICBM) field in each nation. (27) The purpose of both of these exceptions was to maintain each nation's retaliatory capability in the event of a first strike. (28) The first exception allowed protection of the nation's capital because strategic command centers are located in the capital areas. (29) Each country needed to maintain these command centers so it could effectively respond to a first strike. (30) The second exception allowed for the protection of an ICBM field because if at least one field could be protected in the event of a first strike, then it would ensure a devastating retaliatory capability for both nations. (31) In 1974, the AMB Treaty was amended to limit each nation to only one ABM system, so that each nation could protect either its capital or an ICBM field, but not both. (32)

   Third, Article XIII of the ABM Treaty established the Standing Consultative Commission (SCC). (33) The Commission's tasks were to "resolve compliance issues, share information, resolve questions, consider amendments, and even consider changes in the strategic situation having a bearing on the treaty." (34) The SCC met at least twice annually, which provided an opportunity for ongoing dialogues between the two nations. (35)

   Fourth, the ABM Treaty had two built-in escape clauses. (36) Article XIV provided that each party "may propose amendments to this Treaty." (37) Article XV allowed a party to withdraw from the Treaty under certain circumstances. (38) More specifically, Article XV provided that, "each party shall, in exercising its national sovereignty, have a 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." (39)

3. THE NATIONAL MISSILE DEFENSE DEBATE

   1. President Reagan's Strategic Defense Initiative

      Former President Ronald Reagan first thought of the idea to pursue a ballistic missile defense system when he visited the North American Aerospace Defense Command (NORAD), which was built into Cheyenne Mountain, Colorado. (40) Reagan visited NORAD in 1979, prior to his presidential election in 1980. (41) During his visit, Reagan was struck by the fact that the United States had no capability of stopping even a single Soviet missile from striking the United States. (42) In 1983, Reagan formally announced his decision to pursue a "space-based X-ray and laser weapons system that could shoot down Soviet missiles in flight." (43) The Reagan Administration called this system the Strategic Defense Initiative (SDI). (44) While this system never fully developed technologically, the announcement proved to be a great success for the United States strategically. (45) The Soviets' fear of a U.S. missile shield forced them to the negotiating table. (46)

      Reagan did not just want a bargaining device through SDI; his administration sought an operational system. (47) A major obstacle to developing, testing, and deploying Reagan's SDI was, of course, the ABM Treaty. (48) Recall that Article V specifically banned the development of space-based ABM systems. (49) Reagan called upon Judge Abraham Sofaer, the legal advisor to the State Department, to conduct a study of whether Reagan's SDI violated the Treaty. (50) Sofaer argued that the Treaty did not prohibit all ABM systems. (51) He believed that Agreed Statement D, which accompanied the Treaty, permitted "ABM systems and components `based on' ... technologies not used in the systems and components described and regulated in the Treaty." (52) Agreed Statement D provided:

      In order to insure fulfillment of the obligation not to deploy ABM systems and their components except as provided in Article III of the ABM Treaty, the Parties agree that in the event ABM systems based on other physical principles and including components capable of substituting for ABM interceptor missiles, ABM launchers, or ABM radars are created in the future, specific limitations on such systems and their components would be subject to discussion in accordance with Article XIII and agreement in accordance with Article XIV of...