By Baker Spring
January 4, 2013
On November 27, a State Department advisory board, the International Security Advisory Board (ISAB), recommended that the Obama
Set aside the fact that such unilateral arms control measures would weaken the U.S. nuclear deterrent and thereby pose grave national security risks. While this concern is extremely important, the legal issues are fundamental to the conduct of national security policy under the Constitution and the rule of law.
The central legal issue in this instance is the proper form of any international arms control agreement, whether it be a treaty agreement or non-treaty agreement. The Constitution gives the President and the Senate together the treaty-making power under Article II, Section 2, Clause 2 of the Constitution, where the Founding Fathers established a special procedure for their approval. The President may ratify a treaty only with the advice and consent of the Senate, which requires a super majority vote of two-thirds. Non-treaty agreements are not subject to this procedure. Accordingly, the ISAB’s recommendation to pursue arms control with Russia through a reciprocal unilateral arrangement in effect urges the executive branch to bypass the Senate and the Constitution in the pursuit of arms control.
This is accurate, but only tells a third of the story regarding the legal problems with the unilateral approach to arms control. The steps recommended by the ISAB are also inconsistent with statutory law, particularly as it pertains to arms control and internal State Department guidelines about when treaties are required.
Regarding statutory law, the relevant provision is found in Title 22 of the U.S. Code and focuses specifically on arms control. Indeed, it is a provision under the Arms Control and Disarmament Act. Section 2573 of Title 22 states the following:
No action shall be taken pursuant to this chapter or any other Act that would obligate the United States to reduce or limit the Armed Forces or armaments of the United States in a militarily significant manner, except pursuant to the treaty-making power of the President set forth in Article II, Section 2, Clause 2 of the Constitution or unless authorized by the enactment of further affirmative legislation by the Congress of the United States.
Note the sweeping nature of the language in the law. It does not say that any international agreement on arms control shall be drafted as a treaty document, but it does say that no action in the area of arms control may be pursued other than by treaty—except where Congress has specifically authorized such an action. Clearly, this language specifically envisions unilateral actions taken outside the context of any international agreement.