Text
No. 13
• http://www.learnworld.org/
• email: gc.dd@learnworld.org
• date: 20 Dec 2001.

PAPER [2001.12.20]

Bruce Larkin on the forthcoming ABM Treaty struggle.


Treaty Abrogation and GW Bush’s Designs on the ABM Treaty

Bruce D. Larkin, Professor of Politics, University of California at Santa Cruz.

Who may, and by what means, lift the commitment the United States has made to a treaty which it has duly signed and ratified?


The Problem

The GW Bush administration has made clear its intention to undo US obligations under the ABM Treaty. It has not made clear how, when, or by what means. In the spring and summer of 2001 it moved to bring about an early deployment of some system, perhaps at Fort Greely and Kodiak Island, Alaska, under the guise of operating a test facility. It declared the target date for a first deployment to be 2004.

A duly signed and ratified treaty is, of course, an obligation on any State which has acceded to the treaty. Central to the ‘public law of nations’ is the doctrine pacta sunt servanda: treaties are to be observed. The United States Constitution declares treaties “the supreme law of the land.” [1] The issue whether to build and deploy ‘national missile defense’ is above all a political, not legal, question, but building a ‘national missile defense’ without adjusting existing obligations would have profound consequences for the legal regime. The essence of a constitutional republic is that politics is conducted within a framework of law.

Is the Executive free to abandon a treaty? May the Executive alone invoke the withdrawal clause of the treaty? Is legislative consent required? If so, how is consent to be given? What is the position of an Executive which commits an unambiguous, acknowledged treaty violation? And what if the Executive commits an act which many regard as a direct treaty violation, but which the Executive insists is not?

The United States came close, in the 1980s, to confronting these issues during the last great debate on missile defense and treaty-based security provisions. The 1983 Reagan ‘Star Wars’ proposal, in some versions, also threatened the ABM Treaty; and its advocates, such as defense official Richard Perle, identified themselves with abandonment of the treaty. During this same ‘evil empire’ period, US nuclear delivery deployments approached the numeric limits set out in the signed but unratified SALT II accord, inviting calls for unilateral breach of those terms.

In August 2001 Russian officials, while Russia was negotiating with US Under Secretary of State John R. Bolton in Moscow, said the US had led them to understand that the US would declare ABM Treaty withdrawal in October or November. Pressed whether the US had in fact established a deadline, GW Bush declared flatly that he intended to withdraw from the ABM Treaty but “at a time convenient to America.” [2]

We will consider treaty termination as it bears on the ABM Treaty and the global debate about ‘national missile defense’. After sketching the facts as of 15 September 2001 we will look at the texture of precedent in treaty termination, drawing especially on positions developed during abandonment of the Mutual Security Treaty with Taiwan [1979].

The Situation on 15 September 2001

From its winning control of the House in 1994 and the Senate in 1996, the new Republican organization, deeply in thrall to isolationism and the ‘radical right’, endeavored to press for missile defense schemes which echoed the March 1983 Reagan ‘Strategic Defense Initiative’, the ‘Star Wars’ program. Although Reagan’s plans were held to design and test phases, they cost large sums; and it became a litany of US defense policy that research and development should continue in ‘national missile defense’.

Since the 1950s a succession of proposals for missile systems to shoot down aircraft, and then missiles, had been devised and undertaken. Missile defense was again brought to the fore by the failure of the Patriot anti-aircraft missile to protect US forces, or Israel, during the Gulf War of 1991. Ambitious schemes, proposing to defend fleet formations, land forces and diverse assets over ever-larger areas, were brought under the rubric ‘theater missile defense’.

Would a ‘theater missile defense’ actually be able to intercept strategic ballistic missiles, and so offend the ABM Treaty? Russia and the United States negotiated this issue; the resulting texts, including the ABM Demarcation Agreement, await consideration by the US Senate.

Skeptics of the wisdom of missile defense spending, Democrats and Republicans alike, were caught in the classic vulnerability of incumbents, unwilling to expose themselves at the next election to being ‘soft on defense’. The Newt Gingrich House undertook to bind President Clinton by enacting legislation calling for deployment by a date certain. Such legislation was enacted, but with carefully-drafted criteria which would enable indefinite, or at least long, postponement. President Clinton signed that legislation and it is law.

In the last full year of his presidency Bill Clinton faced the requirement to declare whether concrete steps to deployment should begin. On 23 July 1999 he set out four criteria by which to judge whether missile defense was feasible: threat, cost, technological performance, and adherence to the ABM Treaty as renegotiated with Russia. On 1 September 2000 he said the technology did not yet justify deployment, and so postponed the issue to the next president. GW Bush, after his designation as president, undertook to speed deployment. During his campaign GW Bush had made clear his preference for prompt deployment, and the appointees to his administration who would in fact exercise authority on this question, Richard Cheney and Donald Rumsfeld, had long been vigorous public advocates of accelerated missile defense.

On May Day 2001 GW Bush read a speech to the National Defense University, underlining the Administration’s intention to deploy, and urged working “to replace this treaty,” but without specifics.

We need a new framework that allows us to build missile defenses to counter the different threats of today’s world. To do so, we must move beyond the constraints of the 30-year-old ABM Treaty. This treaty does not recognize the present or point us to the future. It 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. . .

This treaty ignores the fundamental breakthroughs in technology during the last 30 years. It prohibits us from exploring all options for defending against the threats that face us, our allies and other countries.

That’s why we should work together to replace this treaty with a new framework that reflects a clear and clean break from the past, and especially from the adversarial legacy of the Cold War . . .

At the end of the month, however, the GW Bush group encountered a new obstacle. Republican Senator James Jeffords became an Independent and voted with the Democrats on organizational matters. Control of the Senate’s agenda, and committee chairmanships, shifted to the Democrats. While Republicans still controlled the House--though by a narrow majority--the White House could no longer be sure of a friendly hearing on controversial matters. The new chairs of the Senate Foreign Relations Committee and Armed Services Committee, Joseph Biden and Carl Levin, declared their intentions to look closely at GW Bush’s ‘national missile defense’ plans.

The internal maneuvering was shifted radically in the second week of July 2001 when Pentagon plans to create test installations with launchers and interceptors in Alaska were suddenly revealed. Never previously part of public dialogue, this appeared to be a maneuver to catch opponents off-guard and keep the initiative for Cheney-Rumsfeld. Both launchers (which could launch toward California) and interceptors (of missiles from Vandenberg AFB, California or Kwajelein) would be placed on Kodiak Island, Alaska, while command and storage facilities would be built at Fort Greely, in central Alaska. The Fort Greely system, then, according to unnamed officials cited by a New York Times reporter, could be declared a working missile defense system as early as 2004. [3]

Under pressure to show some ‘success’ in its test program, the Pentagon conducted a simple one-decoy interception on 14 July 2001. “The early indication we have is that everything worked,” according to Ronald Kadish, head of the program. [4] Of course, time and conditions were known and pristine, not those which would be expected in an actual attack. And within days it was revealed that radar designed to assess the hit had failed.

Just what is US policy? On 10 July 2001 Paul Wolfowitz, Deputy Secretary of Defense, told the Senate Armed Services Committee that the planned construction would “bump up against” ABM Treaty prohibitions. “So we are on a collision course. No one is pretending that what we are doing is consistent with that treaty. We have either got to withdraw from it or replace it.” Donald Rumsfeld told the Frontier of Freedom Institute that

If you get to the point where we need to go beyond the treaty and we haven’t been able to negotiate something, obviously there’s a provision we can withdraw in six months, and that’s what you’d have to do. [5]

Treaty Abrogation

While the US Constitution spells out how treaties are to be ratified, it does not say how a treaty is to be terminated. There are several logical possibilities.

• The President proposes to the Senate that the withdrawal terms of a treaty be exercised, or a treaty be abrogated, and the Senate agrees.

• The President proposes to the Congress that the withdrawal terms of a treaty be exercised, or a treaty be abrogated, and the Congress agrees.

• The Congress proposes that the withdrawal terms of a treaty be exercised, or a treaty be abrogated, and the President agrees.

• The President alone declares that the withdrawal terms of a treaty are to be exercised, or the treaty abrogated.

• No formal action to withdraw or abrogate is taken, but terms of the treaty are ignored, on the argument that the treaty has lapsed because of changed circumstance.

• No formal action to withdraw or abrogate is taken, but terms of the treaty are ignored, on the argument that there has been a breach of the treaty by the other Party or Parties.


   

Since the President cannot ratify alone, but must have the ‘advice and consent’ of the Senate by two-thirds vote of that body, there is an argument from symmetry, and the solemnity of treaty obligations, that the President should not be free to withdraw or abrogate alone. [6] In practice, it matters whether the Senate, or the Congress, agrees with the President, or not, and by what margin. Is withdrawal or abrogation seen as a modest matter, or is there strong feeling against doing so?

Treaties are ratified by the President, subject to the advice and consent of the Senate. The Constitution, Article II. §2, states of the President that:

2. He shall have power by and with he advice and consent of the Senate to make treaties, provided two-thirds of the Senators present concur;

Treaties are one element of the “supreme law of the land,” but only one. The point of Article VI.§2 is to assert the supremacy of the Constitution, laws, and treaties of the United States, whatever the individual States may have enacted. The ‘Supremacy Clause’:

2. This Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The third reference to treaty in the Constitution accords the judiciary power to hear cases arising from treaty law. Article III.§2:

1. The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; . . .

Nothing in the Constitution spells out how renunciation of treaty commitments shall be effected. In the simple case, legally untidy, events outrun the treaty, and there is no disagreement between President and the Senate that commitments are null.

But what if President and Senate (or the Congress) disagree? In the unlikely case that a President wished the United States to remain bound by a treaty, but the Congress wished not, Congress could vote legislation instructing the President to exercise a right of withdrawal or announce (for example) that the commitment was void for cause; politics would govern whether the President vetoed the bill and then, in turn, whether Congress overrode the veto.

The grounds for holding that the President does not have absolute power to terminate a treaty obligation are set out by Judge MacKinnon, dissenting in part and concurring in part, in 617 F.2d 697 (D.C.Cir.), on an appeal from a District Court judgment in Goldwater v. Carter. Senator Goldwater had gone to court to block President Carter from ending the Mutual Defense Treaty with Taiwan. Judge MacKinnon wrote, in part, that

No prior President has ever claimed the absolute power to terminate such a treaty. The majority in effect holds that the President has the absolute power to terminate this treaty but their decision indicates it is not to be considered as a binding precedent that future Presidents could terminate treaties in similar circumstances . . . My interpretation is based on the admitted fact that the termination of treaties is not one of the enumerated powers of the Constitution. Rather it is an implied power vested in the government. As such, under the “Necessary and Proper” clause of Article I, Section 8, which the majority decision avoids like the plague, power is conferred upon “(t)he Congress “ to pass a law to terminate treaties. Since the Constitution makes treaties along with other laws the “Law of the Land”, Article II, Section 2, a treaty is to be terminated in the same manner as any other “law” by a formal act of Congress approved by the President. The language of the Constitution, its interpretation by the Framers, and historical precedent overwhelmingly support such a conclusion.

Although the record which has accumulated with time admits contested positions, there are high points which cannot be ignored:

• In 1798 the Congress declared that the United States was free of its obligations under 1778 treaties with France. The Supreme Court interpreted this as part of the Congress’ declaring war on the French Republic. [7] This was the first case of US abrogation of a treaty, and may have been the only case of abrogation by Congressional act. [8]

• In 1846 the President asked Congress to resolve that the Convention of August 6, 1827 with Britain regarding occupation of the Oregon Territory be abrogated. Congress by joint resolution authorized presidential abrogation. [9]

• President Pierce terminated a treaty with Denmark in 1854-55, having sought and obtained Senate agreement. The Senate Foreign Relations Committee insisted that this procedure, rather than action by the whole Congress, was correct, as the right to terminate lay with the President and Senate. [10]

• President Lincoln gave notice to Britain of U.S. withdrawal from the Rush-Bagot Agreement of 1817, though there had been no Congressional authorization to do so. Then Congress adopted a joint resolution, which was approved by the President, stating that the notice which had been given was “adopted and ratified as if the same had been authorized by Congress.” [11]

• In 1978-79 the issue of revocation was fully aired, politically and before the courts, when President Carter undertook to establish diplomatic relations with the People’s Republic of China and, in so doing, declare the 1954 Mutual Security Treaty with Taiwan to be no longer valid. [12]

We will consider the Taiwan case more fully below.

The ABM Treaty: Sections Which Are Most Pertinent to Abrogation

The text of the ABM Treaty [13] is concise and may seem to be straightforward, but it has not escaped argument about its meaning and effects. Debate has centered on these provisions in the first five articles, and in Agreed Statement D. Here we reproduce those sections, Article XV on withdrawal, and §1 ĥs 4 and 5 of the Agreed Statement of 1 November 1978, with a brief comment on each:

Article I

1. Each Party undertakes to limit anti-ballistic missile (ABM) systems and to adopt other measures in accordance with the provisions of this Treaty.

2. 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 a defense, and not to deploy ABM systems for defense of an individual region except as provided for in Article III of this Treaty.

Each Party agrees not to “deploy” an ABM system to defend its territory, with one exception: in two, later one, deployment area it may install 100 ABM missiles.

Article II

1. For the purpose of this Treaty an ABM system is a system to counter strategic ballistic missiles or their elements in flight trajectory, currently consisting of:

(a) ABM interceptor missiles, which are interceptor missiles constructed and deployed for an ABM role, or of a type tested in an ABM mode;

(b) ABM launchers, which are launchers constructed and deployed for launching ABM interceptor missiles; and

(c) ABM radars, which are radars constructed and deployed for an ABM role, or of a type tested in an ABM mode.

[§2 stipulates just which of these are to be counted.]

Because SDI would envisage ABM systems using novel technologies, the key phrase in Article II came to be “currently consisting of” . . . Did this confine the treaty to ABM systems using the technology of 1972, or is Article II.§1 merely helpfully illustrative? The treaty is of “unlimited duration” [Article XV] and Article II.§1 can be read to say that the prohibited ABM systems are any system which can “counter strategic ballistic missiles or their elements in flight trajectory.”

Article III

Each Party undertakes not to deploy ABM systems or their components except that:

[Limits each party to one deployment area of 150 km radius centered on the nation’s capital, and a second containing silo launchers, and stipulating what associated radars are permitted. In 1974 the parties agreed to limit to one such area, either around the capital or containing a missile field.]

Russia maintains its one permitted ABM system around Moscow. In the 1970s the United States began to build to protect an ICBM site, but soon gave it up. The United States could build one such site. Facilities on Kodiak Island and at Fort Greely are not such a site, since they do not protect ICBMs, and are more than 150 km apart.

Article IV

The limitations provided for in Article III shall not apply to ABM systems or their components used for development or testing, and located within current or additionally agreed test ranges. Each Party may have no more than a total of fifteen ABM launchers at test ranges.

The Kodiak Island/Fort Greely facility is advanced as a test facility. The procedure to establish a new test facility to which the other Party had not previously agreed is set out in an Agreed Statement of 1 November 1978, of which the relevant paragraphs are quoted below. [14]

Article V

1. Each Party undertakes not to develop, test, or deploy ABM systems or components which are sea-based, air-based, space-based, or mobile land-based.

2. Each Party undertakes not to develop, test or deploy ABM launchers for launching more than one ABM interceptor missile at a time from each launcher, not to modify deployed launchers to provide them with such a capacity, not to develop, test, or deploy automatic or semi-automatic or other similar systems for rapid reload of ABM launchers.

Both the phrase “develop, test, or deploy” and the list “sea-based, air-based, space-based, or mobile land-based” are central to the issue abrogation. Prior to development is “research.” One issue in the mid-1980s was whether the SDI program went beyond research (permitted) into development (prohibited). Some SDI technologies envisaged basing in space. In the incarnation of 2001, several prohibited basing modes are celebrated as possible technologies: aboard ship, as an anti-missile laser aboard an aircraft, or (in some versions) in space. Taking any of these to the ‘development’ phase would violate the treaty.

Article XV

1. This Treaty shall be of unlimited duration.

2. 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. It shall give notice of its decision to the other Party six months prior to withdrawal from the Treaty. Such notice shall include a statement of the extraordinary events the notifying Party regards as having jeopardized its supreme interests.

If GW Bush elects to withdraw, exercisting Article XV§1, he will be obliged to claim that “extraordinary events Š have jeopardized [the US’] supreme interests.” Are possible future Iranian missiles an ‘extraordinary event’? He shall in any case be obliged to deliver “a statement of the extraordinary events.” So he must consider that he can be held accountable for judgments and actions.

Agreed Statement D

In order to insure fulfillment of the obligation not to deploy ABM systems and their components except as provided in Article III of the 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 the Treaty.

Article XIII establishes the Standing Consultative Commission, and Article XIV governs amendment of the treaty. This seems to say something of the following: “If you are designing an ABM system which uses a high-energy laser, its use would fall within this Treaty, and if you would cross from ‘research’ into ‘development’ you are obliged to talk with us about the limitations on your new system and its components.”

Agreed Statement of 1 November 1978, Part I [excerpts]

4. Each Party may establish test ranges referred to in Article IV of the Treaty as "additionally agreed" and locate therein for testing ABM systems or their components as they are defined in Article II of the Treaty, provided that the establishment of such ranges is consistent with the objectives and provisions of the Treaty and, in particular, with the obligations of each Party provided for in Article I of the Treaty not to deploy ABM systems for a defense of the territory of its country and not to provide a base for such a defense.

5. In the event of establishment of an additional test range by either Party, the Party carrying out such action shall provide, within the framework of the Standing Consultative Commission, notification of the location of such a test range no later than thirty days after the beginning of any construction or assembly work, other than earthwork (excavation), associated with locating or constructing at that test range an ABM launcher or antenna (array), ABM radar antenna structures, or an antenna pedestal support which is not a part of an ABM radar building. After presentation of such notification and, if necessary, clarification in the Standing Consultative Commission of any aspects of this notification which are not clear to the Party being notified, the test range being newly established will be considered an "additionally agreed test range," referred to in Article IV of the Treaty.

This requires the United States to come to the Standing Consultative Commission and declare that it intends to open new test sites at Kodiak and Fort Greely. At that juncture Russia may challenge, contending that the site fails the tests set out in ¶ 4.

ABM Treaty Abrogation Issues: mid-1980s

Reagan’s ‘Star Wars’ proposal of 1983 and the ensuing debate about its legality under the ABM Treaty looms large in the background of any decision on abrogation today.

The paramount issue for the ABM Treaty in the mid-1980s was whether the many-faceted research program then underway was in violation of the treaty, or soon would be. If it were not, then it could simply continue; but if it were, abrogation would be on the table. The program included schemes for space-based components, lasers, and even a beam weapon powered by a nuclear detonation. The Administration of the time contended that the SDI program would be conducted “'consistent with our obligations [under] the ABM Treaty.” [15] But the ABM Treaty [Article V(1)] barred development, testing, and deployment of ABM systems which were not fixed land-based, and--as read by some--the Treaty [Agreed Statement D] also banned even systems “based on other physical principles” than the missile defense with which the treaty dealt in detail.

The Administration rejected this ‘restrictive’ reading of the Treaty, arguing instead for a ‘broad’ reading. In a statement before a subcommittee of the House Foreign Affairs Committee in 1985, Paul Nitze [16] focussed on the question of research, development, and testing:

The reexamination of the treaty’s text, the agreed statements and common understandings accompanying it, the negotiating record, and official statements made since 1972 shows that they have been variously interpreted as to what kinds of development and testing, as well as what kinds of research, are permitted, particularly with respect to future systems and components based on what are called in the treaty “other physical principles.” . . .

It is our view, based on our recent analysis of the treaty text and all of the accompanying records, that a broader interpretation of our authority than that which we have applied to restrict our SDI research program is fully justified.

The specific argument was then laid out by Abraham Sofaer. He argued that more than one “reasonable reading” of the treaty was possible; that the treaty was therefore ambiguous; that “once an agreement has been found ambiguous, one must seek guidance in the circumstances surrounding the drafting of the agreement”; and that the [secret] negotiating record supports the conclusion that Agreed Statement D did not embody a ban on development and testing of non-land-based systems or components based on future technology. [17] A critic would find Sofaer’s logic diligent but tortured, carefully ignoring the whole purpose of the ABM Treaty and the underlying commitment it served, as well as the memories and understandings of several who participated in the negotiations. [18] But his opinion was designed, after all, to enable SDI to be pursued while sidestepping the issue of treaty abrogation.

ABM Treaty Abrogation Issues: 2001

As our article-by-article review of selected ABM Treaty articles shows, there are several ways in which NMD could transgress the treaty. Note, however, that GW Bush has only hinted at what an NMD system might be, offering no clear description. By their own accounts they are testing as they go forward to deployment, but what they will finally build requires having viable systems in hand. These are the main problems which GW Bush might confront in the ABM Treaty:

• An initial ‘deployment area’ might not fit either definition of a permitted area in Article III.
• Any second ‘deployment area’ would violate the 1974 Protocol, limiting such areas to one.
• The Airborne Laser Program, already into ‘development’, appears on its face to be an air-based ABM system, violating Article 5§1.
• A new test range--e.g. Kodiak Island, or Fort Greely--must be ‘agreed’.
• Shipboard basing, widely discussed in the defence community, would violate Article 5§1.
• Space-basing would certainly violate Article5§1.
• Going beyond ‘research’ into development of sea-based or space-based systems would violate Article5.§1: that is, the trigger is reached long before deployment.

The facilities proposed on Kodiak Island and at Fort Greely raise trouble by two routes. If they actually represented the kernel of an NMD site--a ‘deployment area’--they would be clearly out of bounds. But even as test ranges they are problematic. The procedure established in 1978 to add new test ranges requires a notification to the Standing Consultative Commission and “clarification in the Standing Consultative Commission of any aspects of this notification which are not clear to the Party being notified.” If notification is not a nullity, then the Party notified can ask questions; and in particular can insist on a demonstration that the terms of ¶4 are met; that is, it may press whether

the establishment of such ranges is consistent with the objectives and provisions of the Treaty and, in particular, with the obligations of each Party provided for in Article I of the Treaty not to deploy ABM systems for a defense of the territory of its country and not to provide a base for such a defense. [19]     

Unless Russia agreed to the test range, ABM missiles and system components located on Kodiak or at Fort Greely would fail to enjoy the exemption of Article IV providing for ³ABM systems or their components used for development or testing, and located within current or additionally agreed test ranges.”

In the informed technical judgment of Lisbeth Gronlund and David Wright, there is a serious problem is contending that the planned Fort Greely site meets the terms for an ‘agreed’ test facility:

... careful analysis shows that some of the key facilities being planned--particularly the silos at Fort Greely--would have no utility in a testing program but rather appear designed specifically as a near-term deployment of a rudimentary missile defense system. As such, these facilities would violate the ABM Treaty, and Russia has stated that it would consider the Fort Greely site to be a violation. [20]

And it is exactly the problem with the timing of work on Kodiak or at Fort Greely, as in the earlier plans of the Clinton Administration for site work on Shemya, that led to discussion of October or November 2001 as the time at which GW Bush would declare intent to withdraw. As many point out, Fall 2001 is just six months before the 2002 construction season would begin.

Treaty Renegotiation

There is no problem if Parties decide that they wish to revise the terms of a treaty, and can ratify the new terms.

However, the US Senate has jealously asserted its right to be heard--to offer its ‘advice or consent’ in the form of two-thirds approval--as a precondition of the approval of changes in existing treaties.

The 1997 ABM Demarcation Agreement, mentioned above, between the United States and Russia, remains signed but not ratified because of Republican unwillingness to acknowledge the ABM Treaty. [21] Although there would be enormous pressure on members of the Senate to concur in any joint US-Russian agreed revision to the ABM Treaty, the threat of refusal to ratify would cut both ways: unilateralists--Republican--insisting that the US achieve freedom of action, others--largely Democrats--intent on conserving the original terms of the Treaty, or calling for less radical changes.

But if the GW Bush group sought to evade Congressional objections by reaching agreement with Russia, how long should it pursue agreement? For it would fear a Russian waiting game; in January 2003 the Republican forces in the Congress could be diminished, and in January 2005 the isolationists could lose the White House. But how would the alternative path, invoking the six-month withdrawal clause, fare before objection from a Senate suddenly, in mid-2001, in Democratic hands?


   

Can the President Act Unilaterally?

A constitutional impasse would ensue if the President insisted that he or she enjoyed a constitutional power to conduct foreign affairs, free from Congressional direction; though should a President make such a claim, it would appear to fail under the force of Article I.§8.18 which grants Congress the power to make all laws ‘necessary and proper’ to the execution of powers vested in the Government of the United States or in any “officer thereof.”

The more likely case is that the President wishes to withdraw, but Congress (or some members of Congress) believe that the Treaty obligation should remain in effect. An issue of this sort arose in 1978-79 when the United States and the People’s Republic of China established diplomatic relations, replacing the official relations which had existed since 1972. President Carter exercised the withdrawal provision of the 1954 Mutual Defense Treaty with the ‘Republic of China’ on Taiwan, which provided either party a right to withdraw with one year’s notice. Although an action in court against the President was ultimately dismissed, [22] the Court of Appeals observed that in case of dispute on withdrawal from a treaty

. . the Senate may wish to continue to determine the nature of its involvement on a case by case basis. 125 Cong. Rec. S16683-16692 (daily ed. Nov. 15, 1979).

The District Court concluded that the diversity of historical precedents left an inconclusive basis on which to decide the issue of whether the President’s power to terminate a treaty must always be “shared” in some way by the Senate or Congress. We agree. Yet we think it is not without significance that out of all the historical precedents brought to our attention, in no situation has a treaty been continued in force over the opposition of the President. [23]

It was the Court of Appeals view, which seemed to write Congress out of the issue of withdrawal or abrogation, to which Justice McKinnon, quoted above, took exception in dissent.

It is important to appreciate that the 1979 Taiwan issue was settled politically, by the crafting of the Taiwan Relations Act. It can be said of Taiwan that the President and Congress came to an adequately agreed position, though one which did not satisfy all participants. It was not settled in Court.

The essence of a unilateral presidential action, of course, is that the President takes an initiative, asserting by that act a right to make the determination and to do so unilaterally, and so forces opponents to contest both substance and procedure. What moves would be available to a Congress, or a Senate, which sought to deter unilateral presidential termination, or respond to a declaration of withdrawal after the declaration was issued? In the longer term, of course, a new President might reverse the position. But in the shorter term, what can Congress do?

Senators have already raised the question whether the Pentagon’s accelerated testing program at Fort Greely and on Kodiak Island can be lawfully undertaken, as Congress has apparently never appropriated monies for the required facilities. This move turns on the clear constitutional requirement that all funds disbursed by the US Government be lawfully appropriated, but there remains the possibility of Executive claim that categoric appropriations have been made, details left to the Executive. And unless Congress spoke with one voice on this subject, it is difficult to see by what means a Presidential initiative could be stopped.

Senators are free to voice their doubts about a program they see as unsound, and so use the hearing process and Senate resolutions to raise doubts about the political wisdom of withdrawal. The Chair of the Senate Foreign Relations Committee, Joseph Biden, has already said that his committee will look closely at NMD.

And of course if Senators could maintain a majority, they could punish a President by action on related or unrelated matters, refusing assent to legislation which he or she prized.

Conclusion

The President may well choose to act unilaterally, but the judgment in doing so will concern calculations of the partisan political situation likely to unfold in the next and successive election cycles, not real missile challenges to US national security.

But if he chooses to withdraw, there will be vigorous counterchallenges, both substantive and procedural. Ultimately the outcome will turn on the extent to which the public can be persuaded that the Cheney-Rumsfeld alarms are rational responses to national security threats. If there is sufficient agreement to that view, GW Bush et al. may be able to seize claim to the ground of ‘national security’, delegitimating Democratic party candidates. But if there is not, or if the color of Congress changes for other reasons, moving against GW Bush in January 2003, then return to the ABM Treaty plus restrained ongoing anti-missile research remains altogether possible.

Addendum 2001.12.20

GW Bush Withdrawal Declaration

On 13 December 2001 GW Bush announced publicly the United States’ intention to withdraw from the ABM Treaty. His announcement offered general reasons for the United States action, but no argument addressing the treaty’s requirements for withdrawal. Secretary of State Colin Powell had spoken with President Vladimir Putin in Moscow a few days earlier and conveyed the US intention. As noted above, Article XV stipulates that

Article XV

1. This Treaty shall be of unlimited duration.

2. 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. It shall give notice of its decision to the other Party six months prior to withdrawal from the Treaty. Such notice shall include a statement of the extraordinary events the notifying Party regards as having jeopardized its supreme interests.

The state electing to withdraw must have ‘decided’ that “extraordinary events ... have jeopardized its supreme interests.” No such case is asserted. We have not been told whether Secretary of State Powell delivered the required “statement of the extraordinary events” nor, indeed, whether any such statement has been delivered. Unless and until such a statement is delivered, notice of withdrawal would be defective. So it is reasonable to assume that there is such a document—and that it has not been released—except to the Russians.

The text of GW Bush’s Rose Garden remarks is reproduced as a document [below]. Although the case required by Article XV is not made out, claims were made which appear intended to pass as reasons for withdrawal. These are:

GW Bush’s Text [Excerpts] Assessment
Today, as the events of September the 11th made all too clear, the greatest threats to both our countries come not from each other, or other big powers in the world, but from terrorists who strike without warning, or rogue states who seek weapons of mass destruction. Do ‘terrorists’ and ‘rogue states’ pose a relevant threat to the United States? Only if they have or will acquire a missile capability for which NMD is an appropriate response.

Critics point to the US and Russian nuclear weapon stockpiles—exceeding 10,000 warheads and bombs each—and insist that is the ‘greatest threat’.
We know that the terrorists, and some of those who support them, seek the ability to deliver death and destruction to our doorstep via missile. And we must have the freedom and the flexibility to develop effective defenses against those attacks. Defending the American people is my highest priority as Commander in Chief, and I cannot and will not allow the United States to remain in a treaty that prevents us from developing effective defenses. Absent any evidence that al Qaida has any missile capability at all, or that some other hostile group or state can realistically achieve a missile capability able to reach the United States, this claim is vacuous.

It follows that asserting the United States ‘must have’ untrammeled freedom to develop NMD is unsound.

Moreover, the ABM Treaty leaves a great deal of room to carry on research and development of missile defenses. Under the treaty Parties are free to develop and test land-based ABM systems. It is not the ABM Treaty which has held back the NMD program, but failure of developers to bring forth a convincing system, one that can do what advocates claim it could do.

  

No extraordinary events have been identified in public justifications for ABM Treaty withdrawal offered by the GW Bush group. Justifications are vague, refer to unnamed ‘terrorists’ and their supporters, and speak of missile capabilities which are sought but make no claim these have actually been achieved, or give evidence of their being achievable. This statement falls far short of the requirements of Article XV.

Why Withdrawal is a Bad Move

The fundamental objections to withdrawal from the ABM Treaty remain persuasive. They are of two kinds. One set challenges the premises of ‘national missile defense’. The second argues that the ABM Treaty remains a key instrument of global stability, and part of an architecture of long-term security for the United States and all others.

The reasons why ‘national missile defense’ is a blind alley have been widely canvassed. The scheme has not been proven to work. It is believed to be easily spoofed, and open to being overwhelmed. It cannot be tested against a real enemy. There is no undeterred enemy with intercontinental ballistic missiles and no evidence that other states with missile programs are making much progress. If a ‘national missile defense’ were built, an enemy could find other and much easier ways to deliver nuclear weapons. If there were a threatening missile capabilty, it could be removed by using the overwhelming US military capability, demonstrated three times in the last 12 years. Conclusion: ‘national missile defense’ is a fool’s proposal.

But what of the argument that the ABM Treaty responds to times past and is not of value today? That argument too is wrong. The ABM Treaty is part of a fabric of negotiated restraint in the development and deployment of nuclear weapons, and chemical and biological weapons as well. Once there is precedent for withdrawal from inconvenient commitments, the fabric will be in danger of being breeched elsewhere.

The ABM Treaty also symbolizes that world of restraint and negotiated reduction. Although its origins lay in sustaining deterrence, over the longer term it contributes to the possibility of nuclear weapon abolition. There are two broad futures possible in the technology and politics of warfare. One relies on negotiated restraint and the political settlement of disputes, backed by a shared capacity for collective security. The second assumes self-help, for which nuclear weapons, long-strike missile capabilities, anti-missile systems, weapons in space (capable of striking targets on earth), and technological hair-triggers will be the expression of unilateralism.

Withdrawal from the ABM Treaty offers this second world. It is not accidental that Cheney-Rumsfeld are associated with a strong push for US military capabilities in space, or that among their champions are advocates of resumed nuclear weapon testing and deployment. It seems hardly possible that the GW Bush group sees Americaıs future in spawning calls for nuclear weapons and missiles on alert once again, but the unilateral posture signaled by ABM Treaty withdrawal seems to point mercilessly in that direction.

What Policy Now?

There remains the question of Congressional action, suggested by the historical cases introduced in this paper. But will Senators and Representatives see the issue as one on which GW Bush should be challenged, or will they judge that it is rhetorically impossible to stand against ‘missile defense’? In this regard it is instructive to read the editorial reaction of the Washington Post, which concluded that

The administration has shown a zeal for missile defense that continues to raise questions. But Mr. Bush was right to announce U.S. withdrawal from the treaty on Thursday.

Leave aside the uncertain grounds for considering Bush’s move ‘right’. Leave aside the Washington Postıs failure to distinguish between development and testing of fixed land-based systems, permitted by the treaty, and bringing forward systems which are not: “sea-based, air-based, space-based, or mobile land-based.” Consider just the newspaper’s effort to find a way through, working the distinction between development and testing—ok—and early deploymen—unjustified:

Still, there remains a risk that the administration’s withdrawal from the treaty—and its exaggerated emphasis on missile defenses—will do harm to U.S. interests. The Pentagon has appeared intent on developing and possibly deploying a system by the end of Mr. Bush’s term in 2004, and officials have suggested they would push ahead even if serious outstanding technological problems remain unresolved. Though the ABM Treaty is a bilateral pact between the United States and Russia, its nullification is likely to alarm China, which unlike Russia has reason to fear that its nuclear arsenal could be neutralized even by a limited U.S. defense system.

The development of missile defenses should be a U.S. defense priority for the medium and longer term. But now that it has freed itself to conduct a vigorous testing program, the Bush administration should balance its missile defense ambitions—which long ago hardened into an inflexible ideology for many Republicans—against the demands of maintaining global stability and cohesion during a lengthy struggle against terrorism. No terrorist organization or host state has a missile able to strike the United States, and future terrorist attacks on U.S. soil are far more likely by other means. Even as the treaty lapses, the administration should follow through on the proposed offensive agreement with Russia, codifying its terms in a way that will survive the current presidents. It should regularly inform not only Moscow but also Beijing about the progress of missile tests. And it should not rush to put a system in place before the technology has been fully proven—and before Congress and NATO allies have been fully informed and consulted. By dropping the ABM Treaty, the administration has opened the way not only for testing missile defenses but also for acting on them unilaterally. The first course is necessary; the second would be risky and irresponsible. [24]

As a backup position, this has some merit. The question when—and whether—to deploy can be subjected to the discipline of facts: are there threats? is ‘missile defense’ the soundest response? Testing should be transparent: to Congress, to Russia, to China, and to the public. Costs of projected programs should be realistically estimated. The Congress should spend wisely. There are other ways to achieve security from new missile threats, and this would be a good time to cultivate those means. In the end ‘national missile defense’ will still have cost a pretty penny, but the bad road to a world bristling with yet more weapons avoided.


NOTES
[Press the note number to return to the text.]

Note 1. The Constitution says: “Article VI: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; … ”

Note 2. The New York Times, 24 August 2001.

Note 3. James Dao, International Herald Tribune, 11 July 2001.

Note 4. Robert Burns, Associated Press, in San Jose Mercury News, 15 July 2001.

Note 5. Patrick E. Tyler, The New York Times, 14 July 2001.

Note 6. The question of Congress’ role was considered by the Court of Appeals in Goldwater v. Carter: “The court en banc has before it for review the judgment of the District Court that the notice of termination given by the President pursuant to the terms of the Mutual Defense Treaty with the Republic of China is ineffective absent either (1) a manifestation of the consent of the Senate to such termination by a two-thirds vote or (2) an approving majority vote therefor by both houses of Congress.”

Against this, the Court of Appeals, noting that the Senate had taken no “final or decisive action” with respect to the termination controversy, concluded that

“The constitutional issue we face, therefore, is solely and simply the one of whether the President in these precise circumstances is, on behalf of the United States, empowered to terminate the Treaty in accordance with its terms. It is our view that he is, and that the limitations which the District Court purported to place on his action in this regard have no foundation in the Constitution.”

And the Court of Appeals further stated:

“If we were to hold that under the Constitution a treaty could only be terminated by exactly the same process by which it was made, we would be locking the United States into all of its international obligations, even if the President and two-thirds of the Senate minus one firmly believed that the proper course for the United States was to terminate a treaty. Many of our treaties in force, such as mutual defense treaties, carry potentially dangerous obligations. These obligations are terminable under international law upon breach by the other party or change in circumstances that frustrates the purpose of the treaty. In many of these situations the President must take immediate action. The creation of a constitutionally obligatory role in all cases for a two-thirds consent by the Senate would give to one-third plus one of the Senate the power to deny the President the authority necessary to conduct our foreign policy in a rational and effective manner.”

Note 7. in Bas v. Tingy. 4 Dall. (4 U. S.) 37 (1800).

Note 8. Judge MacKinnon, citing Act of July 7, 1798, 1 Stat. 578 (1861) (Treaty of Alliance of 1778 with France).

Note 9. Judge MacKinnon:

“The next instance of treaty termination occurred in 1846, when President Polk specifically requested that Congress legislatively approve his authority to give notice under the terms of the Oregon Territory Treaty with Great Britain. [Note 17] By Joint Resolution of April 27, 1846, Congress then authorized the President to notify the British Government of the abrogation of the Convention of August 6, 1827. [Note 18]”

- - - -Footnotes- - - -

[Note 17] See Presidential message of Dec. 2, 1845; J. Richardson, A Compilation of the Messages and Papers of the President, 2235, 2242-2245 (1897).

[Note 18] “As the President himself had requested the resolution, the episode supports the theory that international conventions to which the United States is a party, even those terminable on notice, are terminable only by act of Congress.” S. Crandall, Treaties, Their Making and Enforcement 458-459 (2nd ed. 1916).

Note 10. S. Rept. No. 97, 34th Congress, 1st sess. (1856), 6-7.

Note 11. “History of Treaty Terminations by the United States,” Legal Advisor, Department of State, 15 December 1978, summarizing prior cases as part of the Administration’s claim that President Carter had the authority to withdraw from the Mutual Security Treaty with Taiwan. Reproduced in: United States Senate. Committee on Foreign Relations. Taiwan (Washington: Superintendent of Documents, 1979). Y 4.F 76/2:T 13, pp. 198-233, p. 205. [Note that the United States withdrew its notice of termination; Rush-Bagot remains in effect.] Some argue that the Rush-Bagot Agreement was just that, and not a treaty, and that this case is therefore not germane to the issue of treaty termination, but the subsequent Congressional action suggests otherwise.

Note 12. A political imbroglio was occasioned by the Carter Administration’s decision to move to full diplomatic relations with the People’s Republic of China, with which the United States had initiated only ‘official’ relations in 1972. The terms negotiated between Beijing and Washington would require that the United States give up its diplomatic recognition of the ‘Republic of China’ on Taiwan and the Mutual Security Treaty of 1954 into which Taibei and Washington had entered. The political solution finally found was to leave the treaty, while Congress enacted and the President signed the Taiwan Relations Act, defining future US relations with Taiwan.

The issue also occasioned the lawsuit Goldwater v. Carter, mentioned above, and consideration of legislation in the US Senate, though that legislation was never brought to a conclusion. 125 Cong. Rec. 13672, 13696, 13711, 15209, 15859 (1979).

Note 13. Available at http://www.state.gov/www/ global/arms/treaties/abmpage.html

Note 14. http://www.state.gov/www/global/arms/ treaties/abm/abm_agr.html

Note 15. Ronald Reagan’s words, March 1983, cited in “The ABM Treaty and the SDI Program.” US Department of State, Bureau of Public Affairs. Current Policy No. 755. .

Note 16. “The ABM TGreaty and the SDI Program,” above. Statements by Ambassador Paul H. Nitze, Special Adviser to the President and Secretary of State on Arms Control Matters, and Abraham D. Sofaer, Legal Adviser, Before the Subcommittee on Arms Control, International Security, and Science of the House Foreign Affairs Committee, Wasngton, D. C., October 22, 1985.

Note 17. Ibid.

Note 18. Sofaer himself grants: “I was well aware when I began my work on this issue that several officials associatd with the SALT I [strategic arms limitation talks] negotiations and others still in the government had advanced the view that the ABM Treaty is unambiguous in its treatment of such future systems. They argued that article V of the treaty forbids development, testing, or deployment of any future ABM systems and components other than those that are fixed land-based.” Ibid.

Note 19. Agreed Statement of 1 November 1978, Part I, ¶ 4.

Note 20. Lisbeth Gronlund and David Wright, “The Alaska Test Bed Fallacy: Missile Defense Deployment Goes Stealth,” in Arms Control Today, September 2001. http://www.armscontrol.org/ act/2001_09/gronlundwrightsept01.asp

Note 21. The principal agreement acknowledges the need for ratification, stating that “This Memorandum shall enter into force on the date when the Governments of all the signatory States have deposited instruments of ratification or approval of this Memorandum and shall remain in force so long as the Treaty remains in force.” Entry into force of the agreed statements is in turn tied to ratification of the Memorandum of Understanding. In addition to the ABM Demarcation Agreement itself, several other agreed texts and unilateral statements were issued in conjunction with the Standing Consultative Committee meeting of September 26, 1997. The formal titles are:

• Memorandum of Understanding Relating to the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems of May 26, 1972

• Standing Consultative Commission First Agreed Statement Relating to the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems of May 26, 1972 (and Common Understandings)

• Standing Consultative Commission Second Agreed Statement Relating to the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems of May 26, 1972 (and Common Understandings)

• Agreement on Confidence-Building Measures Related to Systems to Counter Ballistic Missiles Other Than Strategic Ballistic Missiles

• Standing Consultative Commission Joint Statement on the Annual Exchange of Information on the Status of Plans and Programs With Respect to Systems to Counter Ballistic Missiles Other Than Strategic Ballistic Missiles

• Unilateral Statements on Plans and Programs

• Regulations of the Standing Consultative Commission

Note 22. Carter’s action was contested by Senators in the courts: Goldwater et al. v. Carter et al., US Court of Appeals, District of Columbia, November 30, 1979, 617 F.2d 697, in 18 ILM (1979), pp. 1488-1503; on appeal the Supreme Court directed dismissal of the complaint: US Supreme Court, No. 79-856, December 13, 1979, in 19 ILM (1980), [pp. 239-245 and in 74 AJIL (1980), pp. 441-447.

Note 23. Goldwater et al. v. Carter et al., US Court of Appeals, District of Columbia, November 30, 1979, 617 F.2d 697, in 18 ILM (1979), pp. 1488-1503, p. 1499.

Note 24. Washington Post, editorial, 15 December 2001.


Document: GW Bush Remarks, 13 December 2001

The full text:

REMARKS BY THE PRESIDENT ON NATIONAL MISSILE DEFENSE

The Rose Garden

9:58 A.M. EST

THE PRESIDENT:

Good morning. I've just concluded a meeting of my National Security Council. We reviewed what I discussed with my friend, President Vladimir Putin, over the course of many meetings, many months. And that is the need for America to move beyond the 1972 Anti Ballistic Missile treaty.

Today, I have given formal notice to Russia, in accordance with the treaty, that the United States of America is withdrawing from this almost 30 year old treaty. I have concluded the ABM treaty hinders our government's ability to develop ways to protect our people from future terrorist or rogue state missile attacks.

The 1972 ABM treaty was signed by the United States and the Soviet Union at a much different time, in a vastly different world. One of the signatories, the Soviet Union, no longer exists. And neither does the hostility that once led both our countries to keep thousands of nuclear weapons on hair-trigger alert, pointed at each other. The grim theory was that neither side would launch a nuclear attack because it knew the other would respond, thereby destroying both.

Today, as the events of September the 11th made all too clear, the greatest threats to both our countries come not from each other, or other big powers in the world, but from terrorists who strike without warning, or rogue states who seek weapons of mass destruction.

We know that the terrorists, and some of those who support them, seek the ability to deliver death and destruction to our doorstep via missile. And we must have the freedom and the flexibility to develop effective defenses against those attacks. Defending the American people is my highest priority as Commander in Chief, and I cannot and will not allow the United States to remain in a treaty that prevents us from developing effective defenses.

At the same time, the United States and Russia have developed a new, much more hopeful and constructive relationship. We are moving to replace mutually assured destruction with mutual cooperation. Beginning in Ljubljana, and continuing in meetings in Genoa, Shanghai, Washington and Crawford, President Putin and I developed common ground for a new strategic relationship. Russia is in the midst of a transition to free markets and democracy. We are committed to forging strong economic ties between Russia and the United States, and new bonds between Russia and our partners in NATO. NATO has made clear its desire to identify and pursue opportunities for joint action at 20.

I look forward to visiting Moscow, to continue our discussions, as we seek a formal way to express a new strategic relationship that will last long beyond our individual administrations, providing a foundation for peace for the years to come.

We're already working closely together as the world rallies in the war against terrorism. I appreciate so much President Putinıs important advice and cooperation as we fight to dismantle the al Qaeda network in Afghanistan. I appreciate his commitment to reduce Russia's offensive nuclear weapons. I reiterate our pledge to reduce our own nuclear arsenal between 1,700 and 2,200 operationally deployed strategic nuclear weapons. President Putin and I have also agreed that my decision to withdraw from the treaty will not, in any way, undermine our new relationship or Russian security.

As President Putin said in Crawford, we are on the path to a fundamentally different relationship. The Cold War is long gone. Today we leave behind one of its last vestiges.

But this is not a day for looking back. This is a day for looking forward with hope, and anticipation of greater prosperity and peace for Russians, for Americans and for the entire world.

Thank you.

END 10:03 A.M. EST

The White House, 13 December 2001: http://www.whitehouse.gov/

[20 December 2001]

[This is version 3, incorporating addenda on GW Bush’s declaration of intent to withdraw; it is cited as «http://www.learnworld.org/TX.013= 2001.12.20.Abrogati.html». Version 1 «TX.013=2001.09.15.Abrogati.html» was posted on 15 September 2001, and version 2 «TX.013=2001.09.30.Abrogati.html» posted 30 September 2001, adding text on the ABM Treaty and the effects of September 11th. ]