Jul 26 2012
A Legal Look Back in Time at the Arms Control and Disarmament Act of 1961 in Preparation for the Future of Nuclear Disarmament
Kevin Krauss
Global Law Externship
Widener Law
Blog 4
7-26-12
A Legal Look Back in Time at the Arms Control and Disarmament Act of 1961 in Preparation for the Future of Nuclear Disarmament
As a perpetual student and lover of history, naturally, law has always been an interest of mine even prior to law school. After all, what is law other than the codified norms learned from the lessons of the past? However, this summer I have gotten a chance to delve deeper than I ever thought into both of these fields. I am in a very fortunate and unique situation where the research paper that I am writing (and subsequently about to turn in) will be relied upon for the legal disarmament advocacy performed by the LCNP and GSI. My task: find a way (and the constitutional legal authority to implement that way) that the President could successfully progress nuclear disarmament, at a time when it is needed most, even when the Congress is at a political standstill. Sounds easy, right?
Treaties, under Article 2 §2 of the U.S. Constitution, must receive the advice and consent of two-thirds of the Senate. Understandably, in a congressional climate at the one we have now, this can prove arduous. The President is also authorized, per various U.S. Supreme Court precedents, to institute binding Executive Agreements between the U.S. and other nations without requiring the advice and consent of the Senate. However, due to the Arms Control and Disarmament Act §33 of 1961, the Congress has preemptively restricted the President from completing these types of agreements in the field of nuclear disarmament. The ACDA §33 has since been abolished, restructured and absorbed into the State Department in 1999, but the limitation still exists and the Senate has grown accustomed to inserting it into their treaty consent Resolutions. Obviously, this creates a tough situation for my proposed topic.
Delving deep into archived and micro-film-imaged Public Laws of 1961 has brought something very interesting to light:
The preemptive restraint of §33 actually conflicts with Customary International Law adhered to by the U.S. The Vienna Convention on the Law of Treaties, article 18, requires that after signing the treaty and prior to entry into force, the signatories have an obligation not to take any action that would defeat the object or purpose of the treaty. In order to submit a treaty to the Senate for consent, it must be signed by the parties first. Inappositely to this, the ACDA §33 requires that no binding obligation be made prior to authorization by the Senate. How could this be? Even in order to submit the treaty to the Senate for consent, there is inherently a binding obligation created. Technically, the US has been in conflict with its own laws since the ACDA was first enacted in 1961; yet, binding treaties and agreements have certainly taken place and have provided a significant legal arms control regime.
As an issue that does not seem to have had much discussion over the years, perhaps it has been simply looked past in the effective management of a government in cooperation with other governments? Nevertheless, in the portion of my paper where I have addressed this topic, I suggest that the §33 limitation continue to be applied in a relaxed fashion. After all, not only would a very strict adherence to §33 prove difficult for nonbinding reciprocal actions (of which are the types suggested as the thesis of my paper), but in theory it would prevent all future arms control treaties entirely and grind the nuclear disarmament effort to a halt!