The 1972 U.S.-Soviet ABM Treaty: Cornerstone of Stability or Relic of the Cold War?

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FRAMING THE ISSUE

Background and Modern Relevance of the 1972 ABM Treaty Debate

With Cold War tensions running high in May of 1972, the United States and the Union of Soviet Socialist Republics signed a treaty limiting the development and deployment of anti-ballistic missile (ABM) systems. (1) The ABM Treaty covered defensive systems designed to "shield" their respective nations from nuclear missile attack. In simple terms, the ABM Treaty allowed the United States and the Soviet Union to deploy missile shields only within a 150 kilometer radius of their respective capital cities--Washington, D.C. and Moscow. (2) The thinking on both sides of the negotiation table in 1972 was that an effective missile shield for either the United States or the Soviet Union would remove the deterrent factor for the side possessing the shield, and allow that side to launch a nuclear "first strike" without fear of an effective response. (3) This treaty remained in effect throughout the remainder of the Cold War, and served as one of the major stumbling blocks for President Ronald Reagan's Strategic Defense Initiative (SDI) (commonly known as Star Wars) in the 1980s. (4) Although the Reagan Administration attempted to "reinterpret" the ABM Treaty, the conventional wisdom of the day was that the SDI program was a violation of the letter and spirit of the ABM Treaty. (5) Ultimately, however, the ABM Treaty survived the assaults of the Reagan Administration when, for various reasons, the Administration abandoned its goal of developing the SDI.

Nearly ten years after the fall of the Soviet Union, in the waning months of the Clinton Administration, the debate over a national missile defense system for the United States resurfaced as a prominent part of America's political landscape. (6) President Clinton's position on the missile defense system essentially abdicated to his successor the decision concerning implementation. (7)

Almost immediately upon George Walker Bush's Inauguration as the forty-third President of the United States on January 20, 2001, his administration signaled a paradigm shift in United States policy concerning national missile defense. (8) In no uncertain terms, and only fourteen days after his inauguration, President George W. Bush's Secretary of Defense Donald H. Rumsfeld announced that "[t]he United States intends to develop and deploy a missile defense designed to defend our people and forces against a limited ballistic missile attack, and is prepared to assist friends and allies threatened by missile attack to deploy such defenses." (9) In the same breath, Secretary Rumsfeld noted "that the [G.W.] Bush Administration was determined to proceed with an antimissile defense of United States territory even if it could not overcome the objections from the Russians, the Chinese and the Europeans." (10) Additionally, President Bush quickly ordered the Pentagon to devise a plan to implement a national missile defense shield, taking into account "diplomatic, technological and financial difficulties." (11)

Thus, in the early months of the latter Bush Administration, national missile defense has been a priority on a scale not seen since the Reagan years. Six months after George W. Bush's inauguration, the Bush Administration has repeatedly declared its intention to go forward with a missile defense shield, with or without cooperation from Russia and the international community. (12) Despite this unequivocal stance, the new administration has waffled on the question of the legal "binding/nonbinding" nature of the ABM Treaty. (13) This question cuts to the heart of the question addressed in this Note, for if the treaty has lost its legitimate "force of law" there is no need for the United States to abrogate or withdraw from anything. (14) As the new administration proceeds with the implementation of a national missile defense, it will be forced to deal decisively with the ABM Treaty. (15)

This administration's position on national missile defense has received a lukewarm reception from the larger international community, Russia and some traditional U.S. allies. (16) French president Jacques Chirac stated publicly in January 2001 that an American missile defense "cannot fail to relaunch the arms race in the world." (17) German defense minister Rudolf Scharping also publicly questioned the plan, and while visiting Moscow, urged that the ABM Treaty be preserved. (18) For its part, Russia, until recently, vehemently opposed the idea of abandoning the ABM Treaty. (19) The head of President Vladimir Putin's security counsel, Sergei Ivanov, originally stated that the demise of the ABM Treaty would "result in the annihilation of the whole structure of strategic stability and create the prerequisites for a new arms race." (20) Moscow has since softened its stance somewhat, following a short meeting between Presidents Bush and Putin at the G-8 talks in Genoa, Italy, in July 2001. (21) Following this meeting, President Bush announced that the two presidents had agreed to hold talks concerning the possible linkage of the abrogation of the ABM treaty and bilateral reductions of nuclear stockpiles. (22)

Despite this announcement, after parting company the two presidents swiftly reiterated that there had been no major breakthroughs on the issue of national missile defense at the G-8 meeting. (23) Consistent with this, the United States has signaled its determination to move forward. President Bush's plan for a national missile defense gained momentum domestically after endorsements by such political luminaries as Joseph Lieberman, John McCain, and Henry Kissinger. (24) As for the specter of another arms race with Russia, Secretary Rumsfeld summed up the U.S. position by noting that "It]he idea of an arms race between the United States and Russia ought not to be front and center in our thinking.... [i]t is something that is a leftover, a relic in our thinking." (25) In this vein, the G.W. Bush Administration has attempted to reframe U.S.-Russian relations by repeatedly and publicly stating that the two nations are no longer enemies. (26) Despite these assurances, the legal status of the ABM Treaty is a time-sensitive issue. As for when the U.S.'s development of a national missile defense system would actually clash with the ABM Treaty, a White House national security staff member stated in July 2001 that the shield's development would conflict with the treaty "in a matter of months, not years." (27)

Parameters of the Discussion

This Note first defines the legal parameters within which George W. Bush and future presidents should consider the implementation of a national missile defense system. In framing the issue properly, the applicable international law governing treaties between sovereigns, (28) as well as the U.S. Constitution's distribution of the power to make treaties on behalf of the nation, (29) must be examined. Of equal importance is the historical context of the ABM Treaty itself, (30) the legislative history of the Senate's ratification of the treaty, (31) and the history of the United States' response to the fall of the Soviet Union in the winter of 1991. (32)

Overview of the Arguments

An analysis of the ABM Treaty debate within these parameters delivers one conclusion: the current Bush and future administrations are not legally bound by the text of the ABM Treaty. Two distinct lines of reasoning converge at this result. First, the ABM Treaty became invalid upon the dissolution of the Soviet Union as a matter of U.S. constitutional law. (33) Related to this premise is the "clean slate" doctrine of treaty succession law, which requires both parties to certain treaties to reaffirm those treaties after the demise of one of the original parties. (34) If the United States did not reaffirm the ABM Treaty pursuant to its own constitutional scheme, in essence the treaty has not been reaffirmed as a matter of U.S. constitutional law. The clean slate doctrine, when viewed in conjunction with the U.S. constitutional scheme for treaty ratification, is analogous to a contract law scenario, in which one of the original parties to a contract dies, and thus is unable to perform.

Second, even if the clean slate rationale is rejected in this instance, the "changed circumstances" doctrine allows the United States to revisit the ABM Treaty. The states which emerged from the Soviet Union in 1991 bear little resemblance to the powerful empire facing President Nixon in May 1972. This difference, in conjunction with the changing international nuclear threat dynamic and the rise of so-called "rogue states," makes the imposition of the original 1972 treaty terms on the United States unreasonable, (35) pursuant to the changed circumstances doctrine outlined in the Vienna Convention on the Law of Treaties. (36)

The theory that the United States is not bound by the ABM Treaty has a basis in constitutional and international law. This, however, is not the end of the debate. Many argue that there are diplomatic and public policy reasons why the United States should abide by a treaty which it is not legally bound to recognize as legitimate. (37) This Note will address these arguments, as well as offer policy reasons in favor of the United States' rejection of the ABM Treaty. (38)

OVERVIEW OF INTERNATIONAL TREATY LAW AND U.S. CONSTITUTIONAL LAW GOVERNING TREATY RATIFICATION

Applicable International Treaty Law

Treaties are agreements between two sovereigns. (39) In entering into a formal treaty agreement, each party must be a "sovereign," or "international person" able to properly enter into such agreements on their own behalf. (40) Once two sovereigns have entered into such an agreement, there is no more powerful source of international law. (41) Express treaties between two sovereigns solve, at least with respect to the parties, many of the problems created by the nebulous nature of customary international law. (42) In regards to something as sensitive as a ballistic missile agreement, the United States and the Soviet Union were seeking the clarity of a formalized treaty. (43)

The Power to Make Treaties on Behalf of the United States Pursuant to the U.S. Constitution

A second parameter shaping the ABM Treaty debate is the way in which the U.S. Constitution allocates power to "make treaties" on behalf of the United States. In keeping with the prevailing notion of separation of powers, the Framers of the Constitution divided the power to enter into treaties on behalf of the United States between the president and the Senate. (44) This constitutional power-sharing scheme seeks to be both efficient by allowing the president to act unilaterally in the arena of foreign affairs, and cautious by demanding the "Advice and Consent" of the Senate. (45) Some commentators have argued that, since the 1930s, "congressional executive agreements" have usurped the treaty-making power delegated to the Senate by the U.S. Constitution. (46) Other prominent commentators have noted that congressional-executive agreements are, in effect, an improper intrusion into the Senate's "Advice and Consent" role as set forth in the Treaty Clause. (47) The issue of whether congressional-executive agreements are constitutionally sound is beyond the scope of this Note, especially in light of the fact that the ABM Treaty was originally advised for ratification by the constitutionally required two-thirds of the Senate. (48)

When considering the ABM Treaty debate, an important distinction is that a treaty does not become "law," in the sense that it is binding on the United States, until it has been both signed by the president and ratified by two-thirds of the Senate. (49) Thus, when studying the present viability of the ABM Treaty, the events and circumstances which led the President to enter into the treaty, as well as the legislative history behind the Senate's vote to ratify the treaty, must be examined. (50)

The ABM Treaty Revisited

Circumstances Surrounding President Nixon's Decision to Enter into the ABM Treaty

In 1972, the world was in the grips of the Cold War; "mutually assured destruction" was the order of the day. (51) The United States was still involved in the Vietnam conflict, and the foreign affairs stance of the United States centered around arresting the spread of communism, and with it the threat of Soviet dominance. (52) The Soviet Union, for its part, had committed its entire infrastructure to achieving military and nuclear superiority over the United States. (53) Thus, the stage upon which President Nixon and the U.S. Senate were operating in 1972 was one fraught with tension and fear of the Soviet nuclear threat.

Legislative History of the Senate Ratification of the ABM Treaty

When the ABM Treaty came before the Senate for ratification, there was considerable discussion about what types of anti-ballistic missile systems the agreement covered. (54) The Senators expressed concern over the types of systems which would be covered, as well as directly addressing the issue of future space-based laser programs (55)--an issue that would resurface with President Reagan's SDI program. (56) For purposes of analysis of the modern-day ABM Treaty debate, the principal aspect is that …