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v16_2005d - 46 Howard A Wachtel 3 REVISITING GOLDWATER V...

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46 Howard A. Wachtel 7 3 Howard A. Wachtel is a J.D. candidate at the Duke University School of Law (howard. [email protected]). R EVISITING G OLDWATER V . C ARTER : T HE E XECUTIVE S R IGHT TO R ESCIND T REATIES IN L IGHT OF P RESIDENT B USH S 2002 T ERMINATION OF THE ABM T REATY Howard A. Wachtel This paper examines the constitutional power of the President to terminate treaty obligations. It centers on President Bush’s recent renunciation of the 1972 Anti-Ballistic Missile Treaty with the Soviet Union. It focuses on the balance of power between the legislative and executive branches in light of the Goldwater v. Carter and Kucinich v. Bush decisions. The paper is divided into six sections: (1) the international legal ramifications of unilateral executive treaty rescission; (2) the role of standing; (3) the impact of the political question doctrine; (4) arguments for and against permitting the President to terminate treaties; (5) a discussion of the process that should be used to terminate treaties, as between the President and Congress; and, finally, (6) an examination of alternative strategies that Congress may employ when the President chooses to rescind a treaty. The paper concludes that the decision to terminate a treaty should not be one-sided, and that joint action from both branches should be required whenever the United States wishes to relieve itself of treaty obligations.
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47 Revisiting Goldwater v. Carter: The Executive’s Right to Rescind Treaties in Light of President Bush’s 2002 Termination of the ABM Treaty I NTRODUCTION In 1972, the United States and the Soviet Union ratified the Anti-Bal- listic Missile Treaty (ABM Treaty). In so doing, each state promised not to deploy ABM systems in defense of its territory, 1 nor “develop, test, or deploy ABM systems or components which [were] sea-based, air-based, space-based, or mobile land-based” (ABM Treaty, arts. I, V). Finally, each state agreed not to position ABM systems on any other state’s national territory or transfer ABM technology to other states (ABM Treaty, art. IX). These promises were part of a commonly understood deterrence policy known as mutually assured destruction (MAD), based on the belief that it was in the interests of neither the United States nor the Soviet Union to launch a nuclear attack because the other side would then retaliate “mas- sively and unacceptably” (Parrington 1997). Likewise, if either side were permitted to develop an ABM defense capability, the result would be the same: the strategic landscape would be altered and each state would then have an incentive to procure a first-strike capability. The ABM Treaty was, in essence, an effort to preserve the fear of mutually assured destruction by creating an effective balance against the danger of a first-strike (Par- rington 1997).
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