Chicago Journal of International Law


Delegalization of arms control is now an accomplished fact. In this period of potential dramatic revision of the international order, it is not surprising that the US is seeking increased flexibility in pursuing several strategies, including the full use of military and technological advantages. The motivations behind this include US interests, as well as long run global interests. What may be surprising, however, is the potential risk to our democratic processes from delegalization of arms control-that is to say, the danger posed by reduced use of arms control treaties with built-in processes of transparency and democratic accountability. The potential risk is particularly apparent in those cases where arms control treaties function in effect as treaties of peace, alliance, or neutrality that arguably should be subject to the control of the constitutional treaty makers. Notwithstanding these concerns, this Article argues that on balance the constitutional text, structure, and history compel the conclusion that the democracy deficit risked by delegalization of arms control is adequately attenuated through continuing congressional participation in the arms control process and, in any event, outweighed by the need for a vigorous executive to exercise the role it assumed at the very beginning of this Republic when "regime change" in Europe was also the question of the day.