Q:\wwwroot\NESL\lawrev\Vol36\36-4\36-4 10 turnerabmmacro.doc Printed On 1/7/2003: 807 National Missile Defense and the 1972 ABM Treaty Robert F. Turner∗ My mission on this panel is to discuss the legal implications of the 1972 ABM Treaty1 to the proposed U.S. national ballistic-missile defense pro-gram. This involves some rather complex issues of both International and Constitutional Law, which are addressed at much greater length in my 1999 book, The ABM Treaty and the Senate.2 The International Law of State Succession is both complex and unsettled. The view, however, with respect to non-dispositive treaties like the 1972 ABM Treaty is that such agreements would not continue in force upon the demise of one of the Parties — in this case, the Soviet Union — unless the United States and one or more of the emerging former Soviet Republics agreed to keep it in force. The process by which States agree to continue such an agreement is governed largely by their individual domestic laws — in our case by the U.S. Constitution.3 On this point there is so much confusion that a brief technical digression at this point may be useful. When the President was granted the new nation’s “Executive Power” by Article II, section 1, of the Constitution, a key component of this power was the general control of American foreign relations.4 As Thomas Jeffer-son put it in April of 1790, “[t]he transaction of business with foreign na-tions is executive altogether; it belongs, then, to the head of that depart-ment, except as to such portions of it as are specially submitted to the ∗ Professor, General Faculty, and Associate Director, Center for National Security Law, University of Virginia School of Law. B.A., 1968, Indiana Univer-sity; J.D., 1981, S.J.D., 1996, University of Virginia. President, 1986-87, U.S. Institute of Peace; Principal Deputy Assistant Secretary for Legislative and Inter-governmental Affairs, 1984-85, U.S. Department of State; Special Assistant to the Under Secretary of Defense for Policy, 1981-82; National Security Advisor to U.S. Senator Robert P. Griffin, 1974-79. 1. Limitation of Anti-Ballistic Missile Systems, July 3, 1974, U.S.-U.S.S.R, 27 U.S.T. 1645 [hereinafter ABM Treaty]. 2. ROBERT F. TURNER, THE ABM TREATY AND THE SENATE: ISSUES OF INTERNATIONAL AND CONSTITUTIONAL LAW (1999). 3. See U.S. CONST. ART. II § 2, cl. 2. 4. See U.S. CONST. ART. II § 1.Q:\wwwroot\NESL\lawrev\Vol36\36-4\36-4 10 turnerabmmacro.doc Printed On 1/7/2003: 808 NEW ENGLAND LAW REVIEW [Vol. 36:4 Senate. Exceptions are to be construed strictly . . . .”5 President Washing-ton endorsed this view, as did James Madison and Chief Justice John Jay. Madison had the previous year used identical reasoning to argue that the Senate’s “negative” over diplomatic appointments—being an exception to the President’s general grant of “executive Power”—did not extend to such matters as passing judgment on a presidential decision to dismiss an officer of the Government who had been appointed with the advice and consent of the Senate. This view was endorsed by both the House and Senate at the time. Three years later, Alexander Hamilton relied upon the “Executive Power” clause6 in defending Washington’s Neutrality Proclamation.7 He wrote: It deserves to be remarked, that as the participation of the Senate in the mak-ing of treaties [was an] exception out of the general ‘Executive Power’ vested in the President, [it was] to be construed strictly—and ought to be ex-tended no further than is essential to [its] execution.8 While intended to be “narrowly construed,” the checks or “negatives” given to the Senate and to Congress in this area were nevertheless impor-tant. The President may not make a treaty without the approval of two-thirds of the Senate,9 and it is firmly established in U.S. practice that when an existing treaty is altered in any substantive manner it must be resubmit-ted to the Senate before it can be ratified by the President. I do not under-stand this point to be in serious dispute. To mention but one early example I give in my book; following the War of 1812 a joint commission was established by the United States and Great Britain to determine the U.S.-Canada boundary as established by the 1783 treaty that ended the American Revolutionary War.10 But the commission-ers were simply unable to determine which wilderness body of water had been described as the “long lake” in the earlier agreement, so they did their best to survey a more precise boundary which both sides found ac-ceptable and which probably did not alter the boundary of either country by more than a tiny fraction of one percent.11 However, when the ar-rangement was presented to Secretary of State Henry Clay, he quite prop- 5. Thomas Jefferson, Opinion on the Powers of the Senate (April 24, 1790), in 5 THE WRITINGS OF THOMAS JEFFERSON 1788-1792 at 161 (Paul Leices-ter Ford. ed., 1895). 6. U.S. CONST. ART. II, § 1. 7. 15 PAPERS OF ALEXANDER HAMILTON, JUNE 1793 – JANUARY 1794 at 42 (Harold C. Syrett ed., 1969). 8. Id. 9. See U.S. CONST. ART. II, cl. 2. 10. See TURNER, supra note 2, at 162-63. 11. See id.Q:\wwwroot\NESL\lawrev\Vol36\36-4\36-4 10 turnerabmmacro.doc Printed On: 1/7/2003 2002] 1972 ABM TREATY 809 erly responded that the new boundary line was different from the one de-scribed in the text of the 1783 Treaty, and therefore it could not be imple-mented without first being submitted to the Senate for approval as a new treaty. In my view, it is beyond question that any effort to continue the 1972 ABM Treaty with Russia, or with other former Soviet Republics, would unavoidably involve several substantive changes in the original terms — changes, which, as a matter of clear constitutional law, would require re-submission to the Senate for approval before the Treaty could enter into force. Indeed, I sense that this was understood by all sides. On September 26, 1997, a new treaty — in the form of a “Memorandum of Understanding” (hereinafter MOU) — was signed in New York by the United States, Rus-sia, Belarus, Kazakhstan, and Ukraine, designed expressly to continue the terms of the 1972 ABM Treaty in force as a new treaty once ratified by the signing States in accordance with their constitutional processes.12 Let me mention just three examples of the changes in the Treaty that re-quire resubmission to the Senate: •