Delegalization of Arms Control-A Democracy Deficit in De Facto Treaties of Peace?

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I. INTRODUCTION AND SUMMARY

Delegalization of arms control is now an accomplished fact. In this period of potential dramatic revision of the international order, it is not surprising that the US is seeking increased flexibility in pursuing several strategies, including the full use of military and technological advantages. The motivations behind this include US interests, as well as long run global interests. What may be surprising, however, is the potential risk to our democratic processes from delegalization of arms control-that is to say, the danger posed by reduced use of arms control treaties with built-in processes of transparency and democratic accountability. The potential risk is particularly apparent in those cases where arms control treaties function in effect as treaties of peace, alliance, or neutrality that arguably should be subject to the control of the constitutional treaty makers. Notwithstanding these concerns, this Article argues that on balance the constitutional text, structure, and history compel the conclusion that the democracy deficit risked by delegalization of arms control is adequately attenuated through continuing congressional participation in the arms control process and, in any event, outweighed by the need for a vigorous executive to exercise the role it assumed at the very beginning of this Republic when "regime change" in Europe was also the question of the day.

II. THE FACT OF DELEGALIZATION OF ARMS CONTROL: BOTH MULTILATERAL AND BILATERAL

The premise for this symposium, the trend toward delegalization of arms control, now seems to be undeniable. Delegalization is often understood by political scientists to be a complex phenomenon composed of normative obligations, more or less precisely defined, with delegation of authority to neutral third parties for rule elaboration, interpretation, and enforcement. Normative obligations invoke a compliance pull, and in those cases where normative obligations are more precisely defined, claims of violated expectations can be framed as breaches of those obligations. Delegation of fact-finding or interpretive authority ensures transparency and publicity to multiply the compliance pull of these normative obligations.1 Yet even under this definition, delegalization remains an amorphous concept. With respect to arms control, delegalization of both multilateral and bilateral treaties may be implicated.

It seems clear that the US is less prepared to enter into multilateral arms control treaties and evidences reduced commitment to existing regimes. The Comprehensive Test Ban Treaty was rejected by the Republican-controlled Senate in 1999.2 The executive branch has walked away from negotiations to add a verification protocol to the Biological Weapons Convention.3 After a spirited domestic and international debate, the executive branch has also withdrawn the United States from the ABM Treaty,4 which the Clinton administration had not so long ago tried to transform into a multilateral obligation either through interpretation or explicit amendment.5

In turn, Russia announced that it would no longer consider itself bound by START II.6 Diminished commitment to the Treaty on the Non-Proliferation of Nuclear Weapons ("NPT") is manifested in the lifting of nuclear sanctions and acceptance of Pakistani and Indian acquisition of nuclear weapons capabilities.7 However, US policy on the NPT should perhaps be interpreted in light of the need to reforge an alliance with Pakistan as a frontline state in the war against terrorism, rather than as a move toward diminished commitment to nuclear nonproliferation.

The delegalization tendencies of the Bush administration seem to extend not only to multilateral agreements, but to bilateral agreements as well. One might have thought that the mutual gains in cooperative security with our new Russian ally obtained through obligatory, precise, and fully transparent arms control commitments-such as through a detailed new arms control agreement-would not pose the same kinds of concerns as reliance on multilateral institutions, which by definition are broader and more intrusive upon national prerogatives. …