Withdrawal from the ABM Treaty: Legal Considerations

CRS Report for Congress
Withdrawal from the ABM Treaty:
Legal Considerations
David M. Ackerman
Legislative Attorney
American Law Division
On December 13, 2001, President Bush gave formal notice to Russia, Belarus,
Kazakhstan, and the Ukraine that the United States was withdrawing from the Anti-
Ballistic Missile Treaty because of the constraints it imposes on the testing of missile
defense systems; and six months later, on June 13, 2002, the treaty effectively
terminated. The ABM Treaty has been in force since 1972. Pertinent legal questions
that have been raised about U.S. withdrawal concern whether the treaty allows it; if so,
the procedure to be followed; and, finally, the constitutionality of the President doing
so unilaterally without the involvement of the Senate or Congress. This report briefly
discusses these issues, as well as the recent federal district court decision in Kucinich
v. Bush dismissing a suit by 32 members of the House challenging the constitutionality
of the President’s action. This report will be updated as events warrant.
Summary of the ABM Treaty
On August 3, 1972, the Senate gave its advice and consent to the Treaty between the
United States of America and the Union of Soviet Socialist Republics on the Limitation
of Anti-Ballistic Missile Systems.1 President Nixon ratified the treaty on September 3,
1972; and the treaty entered into force on October 3, 1972. In 1974 the parties agreed to
an amendatory protocol reducing the number of deployments of ABM systems from two
to one.2 As amended, the treaty bound each party
!“not to deploy ABM systems for a defense of the territory of its country
... [or] for defense of an individual region except as provided in Article
III” (Article I);
!“not to develop, test, or deploy ABM systems or components which are
sea-based, air-based, space-based, or mobile land-based” (Article V);

1 TIAS 7503; 23 UST 3435 (1972).
2 TIAS 8276; 27 UST 1645 (1976) (entry into force).
Congressional Research Service ˜ The Library of Congress

!“not to give missiles, launchers, or radars, other than ABM interceptor
missiles, ABM launchers, or ABM radars, capabilities to counter
strategic ballistic missiles or their elements in flight trajectory, and not
to test them in an ABM mode” (Article VI);
!“not to deploy in the future radars for early warning of strategic ballistic
missile attack except at locations along the periphery of its national
territory and oriented outward” (Article VI); and
!“not to transfer to other States, and not to deploy outside its national
territory, ABM systems or their components limited by this Treaty”
(Article IX).
Thus, the treaty did not bar the parties from developing, testing, and deploying a fixed
land-based ABM system.3 Nor did it bar the testing, development, and deployment of
non-ABM missiles, launchers, and radars useful in defense against aircraft or against
short-range battlefield or theater ballistic missiles. But it did bar the parties from giving
such non-ABM components and systems the “capabilities to counter strategic ballistic
missiles or their elements in flight trajectory”; and it did bar the testing of such
components and systems “in an ABM mode.” These were the provisions that imposed
the most serious constraints on the Administration’s proposed missile defense program.
Treaty Provisions Regarding Withdrawal
Article XV of the ABM Treaty stated that “[t]his treaty shall be of unlimited
duration.” But it also provided for withdrawal upon six months notice to the other party
under certain “extraordinary” circumstances, as follows:
Each Party shall, in exercising its national sovereignty, have the right to withdraw
from this Treaty if it decides that extraordinary events related to the subject matter of
this Treaty have jeopardized its supreme interests. It shall give notice of its decision
to the other Party six months prior to withdrawal from the Treaty. Such notice shall
include a statement of the extraordinary events the notifying Party regards as having
jeopardized its supreme interests.
Such withdrawal upon notice provisions are common in treaties, both multilateral and
bilateral. Except in modern arms control treaties, however, it is not common for
withdrawal to be conditioned upon “extraordinary events ... [that] have jeopardized ...
supreme interests.” In arms control agreements that language appears to be fairly standard
and usually (but not always) includes the requirement that the withdrawing party articulate4

the extraordinary events justifying withdrawal.
3 Article III, as amended, allowed each party to deploy one such system around either its capital
or an ICBM complex. The USSR chose to deploy its system around Moscow, while the U.S.
chose to defend an ABM complex in North Dakota. But the U.S. dismantled its system within
a few months of its deployment.
4 See, e.g., the Treaty on the Non-Proliferation of Nuclear Weapons, 21 UST 483 (1970) (Article
X); the Convention on the Prohibition of the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 26 UST 583 (1975)
(Article XIII); the Convention on the Prohibition of the Development, Production, Stockpiling
and Use of Chemical Weapons and on their Destruction (1997); the Treaty on Conventional

On December 13, 2001, President Bush exercised the right conferred by Article XV
and announced the intention of the U.S. to withdraw from the ABM Treaty. In diplomatic
notes sent to Russia, Belarus, Kazakhstan, and the Ukraine, the State Department
described the reasons for withdrawal as follows:
Since the Treaty entered into force in 1972, a number of state and non-state entities
have acquired or are actively seeking to acquire weapons of mass destruction. It is
clear, and has recently been demonstrated, that some of these entities are prepared to
employ these weapons against the United States. Moreover, a number of states are
developing ballistic missiles, including long-range ballistic missiles, as a means of
delivering weapons of mass destruction. These events pose a direct threat to the
territory and security of the United States and jeopardize its supreme interests. As a
result, the United States has concluded that it must develop, test, and deploy anti-
ballistic missile systems for the defense of its national territory, of its forces outside
the United States, and of its friends and allies.
Pursuant to Article XV, paragraph 2, the United States has decided that extraordinary
events related to the subject matter of the Treaty have jeopardized its supreme
interests. Therefore, in the exercise of the right to withdraw from the Treaty provided
in Article XV, paragraph 2, the United States hereby gives notice of its withdrawal
from the Treaty. In accordance with the terms of the Treaty, withdrawal will be
effective six months from the date of this notice.5
Constitutionality of Withdrawal by President Bush
(1) General. Although the Constitution is explicit regarding how the nation enters
into treaties, it is silent with respect to the termination of, or withdrawal from, treaties.
As a consequence, debate arises from time to time regarding whether the President can
unilaterally exercise the right of withdrawal without the participation of the Senate or the6
Congress. The Restatement of the Foreign Relations Law of the United States (Third)
concludes that the power to terminate or suspend a treaty belongs to the President.
Nonetheless, it has sometimes been contended that because the Senate is a joint
participant in the making of a treaty, it also ought to be involved in the termination of the
treaty. It has also been contended that Congress as a whole ought to play a role at times.
Given Congress’ constitutional authority to declare war, it is said, that is particularly the
case with respect to terminations that create a risk of war. Historically, withdrawal from
a treaty has occurred most commonly as a Presidential initiative. But both the Senate and

4 (...continued)
Armed Forces in Europe, TIAS ___ (1992) (Article XIX) and the Treaty Banning Nuclear
Weapons Tests in the Atmosphere, in Outer Space, and Under Water, 14 UST 1313 (1963)
(Article IV) (no requirement of an accompanying statement of reasons).
5 State Department, “Text of Diplomatic Notes Sent to Russia, Belarus, Kazakhstan, and the
Ukraine on December 13, 2001” (December 14, 2001), available at the State Department web
site: www.state.gov/r/pa/ps/2001
6 American Law Institute, Restatement of the Law Third: The Foreign Relations Law of the
United States, Vol. 1 (1987), § 339, at 226.

the Congress have at times initiated withdrawal or approved the President’s action after
the fact.7
(2) Goldwater v. Carter. Prior to the present circumstance, this debate erupted
when President Carter terminated the Mutual Defense Treaty with the Republic of China
(Taiwan) in 1978-79. On December 15, 1978, President Carter announced that on
January 1, 1979, the United States would officially recognize the People’s Republic of
China (PRC) as the sole government of China, that simultaneously the U.S. would
withdraw recognition from the Republic of China on Taiwan (ROC) as the legitimate
government of China, and that the U.S. would give notice of its intention to withdraw
from its Mutual Defense Treaty with the ROC in accordance with the terms of the treaty.
(The treaty provided that withdrawal could occur one year after notice was given, thus
making the effective date of U.S. withdrawal January 1, 1980.) The President’s action
precipitated the introduction in the Senate of several resolutions on the matter,8 hearings
by the Senate Foreign Relations Committee on the constitutional parameters governing
the termination of treaties,9 a favorable committee report of a resolution that detailed
fourteen circumstances in which unilateral termination by the President is constitutionally
permissible,10 and the approval by a vote of 59-35 on the Senate floor of a substitute11
stating that the Senate had to be involved in the termination of mutual defense treaties.
It also precipitated a suit by Senator Goldwater (R.-Ar.) and a number of other Senators
and Congressmen in federal district court claiming that the President has no unilateral
power under the Constitution to abrogate treaties and that termination of the Mutual
Defense Treaty required the approval of the Senate or the Congress.
The suit led to conflicting decisions by the trial and appellate courts and an eventual
non-decision by the Supreme Court.12 On October 17, 1979, the trial court agreed with
the plaintiffs’ contentions. It held that the case did not present a nonjusticiable political
question, that the plaintiff Members of Congress had standing, and that congressional
participation was necessary to terminate the Mutual Defense Treaty. The court rejected
arguments that the President can unilaterally terminate treaties on the basis of his
constitutional power over foreign affairs and his power to recognize (and withdraw

7 For a thorough examination of U.S. practice with respect to the termination of treaties, see CRS,
Treaties and Other International Agreements: The Role of the United States Senate (S. Comm.
Pr. 106-71 (January, 2001), at 198-209.
8 See S. Con. Res. 2, S. Res. 10, and S. Res. 15, 96th Cong., 1st Sess. (1979).
9 Hearings on Treaty Termination Before the Senate Committee on Foreign Relations, 96th Cong.,

1st Sess. (April 9-11, 1979). See also Termination of Treaties: The Constitutional Allocation ofth

Power, 95 Cong., 2d Sess. (Comm. Print 1978) for a useful compilation of historical precedents
and constitutional arguments.
10 S. Rept. 96-119, 96th Cong., 1st Sess. (May 7, 1979). One of the bases on which the President
could terminate a treaty without Congressional participation cited in S. Res. 15 was “in
conformity with the provisions of a treaty.”
11 125 CONG. REC. S 7015 (daily ed. June 6, 1979). The resolution never came to a final vote,
however. Additional amendments were proposed, and further action on the resolution was
postponed to the indefinite future.
12 Goldwater v. Carter, 481 F.Supp. 949 (D.D.C.), reversed, 617 F.2d 697 (D.C. Cir.), vacated,

444 U.S. 996 (1979).

recognition from) foreign governments. Instead, it held that the Mutual Defense Treaty
was part of the “law of the land,” that the President’s constitutional authority to “take care
that the Laws be faithfully executed” does not include the power to unilaterally repeal
such a law, and that the doctrine of separation of powers and its corollary concept of
checks and balances counsel against vesting such a power exclusively in the President:
Treaty termination is a shared power, which cannot be exercised by the President
acting alone .... [A]ny decision of the United States to terminate [the Mutual Defense
Treaty] must be made with the advice and consent of the Senate or the approval of
both houses of Congress.
The United States Court of Appeals for the District of Columbia promptly reversed
in an en banc decision. On December 5, 1979, the appellate court agreed with the trial
court that the plaintiffs had standing and that the issue was justiciable. But it reversed on
the merits. The majority rejected the arguments that the advice and consent role of the
Senate in the making of treaties necessarily implies a similar role in their termination and
that because a treaty is part of the law of the land, it requires at least a statute to terminate
it. It emphasized, instead, the President’s broad constitutional authority with respect to
foreign affairs and said that authority includes a number of accepted functions regarding
treaties “which have the effect of either terminating or continuing their vitality.” The
President, the court said, is responsible for determining whether a treaty has been
breached by another party, whether a treaty is no longer viable because of changed
circumstances, and even whether to ratify a treaty after the Senate has given its advice and
consent. “In contrast to the lawmaking power,” the court said, “the constitutional
initiative in the treaty-making field is in the President, not Congress.” To require Senate
or Congressional consent to the termination of a treaty, the appellate court stated, would
lock the U.S. into “all of its international obligations, even if the President and two-thirds
of the Senate minus one firmly believed that the proper course for the United States was
to terminate a treaty” and would deny the President the authority and flexibility
“necessary to conduct our foreign policy in a rational and effective manner.” “Finally,
and of central significance,” the court asserted, was the fact that the Mutual Defense
Treaty with the ROC contained a termination clause. That clause, it said, “is without
conditions” and spelled out no role for either the Senate or the Congress as a whole.
Consequently, it stated, the power to act under that clause “devolves upon the President.”
On December 13, 1979, the Supreme Court vacated the appellate court’s decision
and remanded the case with directions to dismiss the complaint. But it did so for a variety
of reasons, none of which garnered a majority. Four of the Justices – Chief Justice Burger
and Justices Rehnquist, Stewart, and Stevens – contended that the case should be
dismissed because it presented a nonjusticiable political question. Justice Powell
disagreed and said that the political question doctrine posed no constitutional barrier to
judicial review of a properly presented case. But he concurred that the case should be
dismissed. He stated that the case was not ripe for judicial review because a
constitutional impasse had not been reached, i.e., neither the House nor the Senate had
taken any action formally rejecting the President’s initiative. Justice Marshall concurred
in the result without opinion. Justices Blackmun and White said that because of the
difficult procedural and substantive issues raised by the case, it should be set for briefing
and oral argument. Only Justice Brennan addressed the merits of the case, stating that he
would affirm the judgment of the appellate court on the grounds that termination of the

treaty in this instance was an aspect of the “the President’s well-established authority to
recognize, and withdraw recognition from, foreign governments”:
The constitutional question raised here is prudently answered in narrow terms.
Abrogation of the defense treaty with Taiwan was a necessary incident to Executive
recognition of the Peking Government, because the defense treaty was predicated
upon the now-abandoned view that the Taiwan Government was the only legitimate
political authority in China. Our cases firmly establish that the Constitution commits
to the President alone the power to recognize, and withdraw recognition from, foreign
regimes. (Citations omitted.) That mandate being clear, our judicial inquiry into the13
treaty rupture can go no further.
(3) Kucinich v. Bush. On December 30, 2002, a federal district court dismissed
a suit brought by 32 Members of the House of Representatives challenging the
constitutionality of President Bush’s withdrawal from the ABM Treaty and raising the14
same arguments that had been made in the Goldwater case. The court dismissed the suit
on the grounds that the plaintiffs lacked standing under the standards set by the Supreme15
Court in Raines v. Byrd and that the treaty termination issue is a nonjusticiable political
question. On the standing question, the court found that the injury alleged – namely, the
divestiture of the Senate and Congress from any involvement in the decision to withdraw
– was to the institution of Congress and not to the individual members who brought the
suit. The court further noted that the plaintiffs had numerous political remedies available
to them, that neither the House nor the Congress as a whole had taken any action to
register their disapproval of the President’s action or claim a role in the termination of the
treaty, and that neither the House nor the Congress had authorized the plaintiffs to
institute suit on their behalf. On the political question issue, the court followed the
plurality’s reasoning in Goldwater. It noted that the Constitution is silent regarding the
procedure to be followed in terminating a treaty, that constitutional authority over foreign
affairs is largely relegated to the executive and legislative branches and not the judiciary,
that the termination of the ABM Treaty has already been accomplished, and that a judicial
ruling is particularly inappropriate where “Congress itself has not even asserted that it has
been deprived of a constitutional right.”
In sum, then, the ABM Treaty has been terminated by President Bush in accordance
with the terms of the treaty, and neither Congress nor the courts have acted to forestall or
overturn that action. Moreover, both Goldwater and Kucinich have raised substantial
barriers to the prospect that individual members of Congress can obtain judicial relief
when they object to a particular treaty termination by the President. Each of the courts in
Goldwater noted that the U.S. has terminated treaties by a variety of means over the
course of American history, and this history suggests that there may be a variety of ways
of terminating treaties that are constitutionally acceptable. Nonetheless, it remains the
case that there has not been a final judicial determination of the constitutional parameters
governing the termination of treaties.

13 Id. at 1007 (Brennan, J., dissenting).
14 Kucinich v. Bush, No. 02-1137, 2002 U.S.Dist.LEXIS 24691 (D.D.C., December 30, 2002).
15 521 U.S. 811 (1997).