Rabkin on New Strategic Arms Reduction Treaty

Consent to the new Strategic Arms Reduction Treaty (START) as it stands will further erode the Senate's constitutional role in American foreign policy, warns Professor Jeremy Rabkin in an editorial written with Jack Goldsmith appearing in the Washington Post.

The treaty creates a Bilateral Consultative Commission with power to approve "additional measures as may be necessary to improve the viability and effectiveness of the treaty," thus resulting in a situation wherein the U.S. and Russian executive branches could implement those measures and amend treaty obligations without consent of the U.S. Senate or the Russian Duma.

To protect its constitutional prerogatives, says Rabkin, the Senate could condition its consent to the treaty on an interpretive understanding that the commission's amendment power extend only to technical treaty matters and not to limitations on missile defense, as well as conditioning consent on a requirement for notification of deliberations of the commission.

"Such provisions would preserve the commission's core authority while constraining it in ways that eliminate the most serious constitutional objections," Rabkin says. "They would also lay down a marker about the Senate's role in this context."

A nuclear treaty's risk to the Senate, The Washington Post, August 4, 2010. By Jack Goldsmith and Jeremy Rabkin.


"Could the commission constrain missile defense? It is empowered to 'resolve questions related to the applicability of provisions of the Treaty to a new kind of strategic offensive arm.' The treaty's preamble recognizes 'the interrelationship between strategic offensive arms and strategic defensive arms.' The commission might have jurisdiction over missile defense through this interrelationship. Russia has already warned that it might withdraw from the treaty if the United States develops missile defenses. Limits on missile defense systems thus might be 'necessary to improve the viability and effectiveness of the Treaty.'

"Supporters say the treaty allows the commission to make only changes that, in the words of one State Department official, 'do not affect substantive rights or obligations under the Treaty.' This assurance provides little comfort. New START does not explain what counts as a 'substantive right,' and the commission, which is given very broad power to interpret the treaty, will itself decide the issue.

"It is true that the amendment procedure contemplated in the new treaty is similar to one in the original START and that amendment procedures of this sort have been embedded in arms control agreements for decades. Also, the president has long exercised an independent authority to make new international agreements that implement treaties. Why should the Senate care about this issue now?

"One reason is that as treaty delegations of this sort have expanded, and as more authority for making international agreements is transferred to the executive branch and international organizations, the cumulative effect of these arrangements becomes increasingly hard to square with the Senate's constitutional role in the treaty-making process and, more generally, with separation of powers."

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