JURI 4640:
International Law I
The International Legal Process

Professor Bodansky
University of Georgia School of Law

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Class 7:
Why Do States Agree to Treaties and What Do Treaties Mean? The ABM Treaty Interpretation Controversy


No state has ever entered a treaty for any reason but self-interest. A statesman who has any other motive deserves to be hung.
– Reinhold Neibuhr, Moral Man and Immoral Society
A prudent prince cannot observe faith, nor should he, when such observance turns against him and the causes that made him promise have been eliminated.
– Machiavelli, The Prince
Treaties at best are but complied with so long as interest requires their fulfilment; consequently, they are virtually binding on the weaker party only, or, in plain truth, they are not binding at all.
– Washington Irving, History of New York

Assignment

Read the following: Then consider the questions at the end of the materials below.

The Reinterpretation Controversy

The Anti-Ballistic Missiles Treaty was adopted by the United States and the Soviet Union in 1972. Article V prohibits the development, testing, or deployment of "ABM systems or components" that are space-based. Under the traditional (or "strict") interpretation of the Treaty, this prohibition applies to all space-based ABM systems, including those using new technologies, such as the Reagan Administration's Strategic Defense Initiative (SDI) (also sometimes referred to as "Star War," due to its futuristic, space-based nature).

In connection with the SDI initiative, the Reagan Administration challenged the traditional interpretation of the Treaty in 1985. It based its argument on Agreed Statement D, which was adopted together with the ABM treaty and provides that "in the event ABM systems based on other physical principles ... are created in the future, specific limitations on such systems and their components would be subject to discussion." According to the traditional interpretation, this Agreed Statement merely applied to the provisions of the Treaty setting limits on fixed land-based ABM systems, and did not qualify the general prohibition in Article V on "ABM systems or components which are sea-based, air-based, space-based or mobile land-based." The Reagan Administration argued instead that Agreed Statement D applies more generally, and reflects the Party's intent to exempt ABM systems based on "other physical principles" (for example, lasers) from Article V's general ban on space-spaced ABM systems or components. (According to this view, the reference in Article V to "ABM systems or components" is intended to include only systems or components based on then-current technology. For an exposition of the Reagan Administration position, see the Statement by the State Department's Legal Adviser, Abraham Sofaer, to the Senate Foreign Relations Committee in 1985.) Initially, the Reagan Administration focused on the negotiating history of the Treaty to support its argument. As the issue heated up, however, extensive analyses were also done of the ratification record in the US Senate and the subsequent practice of the parties to the Treaty.

The ABM Treaty reinterpretation question quickly became a major political controversy between the Executive branch and Congress. A number of Senators opposed the reinterpretation on the grounds that it was contrary to what the Executive branch had told the Senate in 1972 during the Senate ratification process.

The following excerpts are from a Senate hearing in 1987 about a proposed resolutions rejecting the Reagan Administration's reinterpretation of the ABM Treaty:

Prepared Statement of Arthur W. Rovine, Former Assistant Legal Adviser For Treaty Affairs, U.S. Department of State, April 29, 1987, before the Committee on Foreign Relations, U.S. Senate

. . . . I speak to you as a former Assistant Legal Adviser for Treaty Affairs in the State Department, a post I held for 6 years. . . .

My first concern regarding the issues which form the subject of these hearings is that, in my judgment, too much is being made of the lawyers' debate as to the proper interpretation of the ABM Treaty. As a treaty lawyer or certainly a former treaty lawyer, I think it is fair to say that interpretations or reinterpretations of treaties long in force are normally inappropriate approaches for decisionmaking on questions of fundamental public policy, especially basic issues of strategic doctrine and arms control that have been with us for many years.

The decision whether or not to pursue the strategic defense initiative, it seems to me, is not a matter that should very much engage the energies of lawyers. It is not a lawyers' debate, or should not be, but is rather for those who are expert on arms control and strategic doctrine.

I think we have to decide on fundamental policy in this area, and then the proper treaty and statutory law follows suit. I think these policy considerations have to be debated openly and honestly and decisions then made reflected in the law in both treaty and statute. We make our treaties to follow policy decisions and not to precede them.

Both the executive branch presentations [by the Reagan Administration] and [a] proposed Senate Resolution ... address primarily the negotiating record and the ratification process. I think the emphasis is mistaken. . . .

Under Article 31 of the Vienna Convention on the Law of Treaties, . . . a treaty is to be interpreted in accordance with the ordinary meaning to be given its terms and context and in light of the treaty's object and purpose. Account is also to be taken, however, under that article and most importantly, of any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.

If, upon looking at sources of guidance and the treaty text and agreements concluded at the time, you have a result which is obscure or ambiguous or unreasonable, then pursuant to Article 32 of the Vienna Convention, recourse may be had to what are called "supplementary means of interpretation." These supplementary means of interpretation include the preparatory work of the treaty and the circumstances of its conclusion. These phrases include, in my judgment, the negotiating record and the ratification process.

I should say a word here about the phrase "negotiating record." That, in itself, is an ambiguous phrase. There are agreed negotiating records; that is, a record of negotiations agreed to by the two or more parties who have put together a treaty. There are also negotiating records that are not agreed, that are simply statements by one party of its view of the negotiations or documents that it has written or that it is pointing to as part of the negotiating record. The phrase is ambiguous, and that factor should be taken into account.

My point here is that you reach the negotiating record, whatever the phrase means, and you reach the ratification process of a treaty as a means of interpreting its meaning, once you have reviewed the subsequent practice along with the text and you have still found the meaning to be ambiguous or obscure.

Now, this may be a very different process from statutory interpretation, but that is how it is done with treaties according to the Vienna Convention. I think it makes more sense in accordance with the rules to examine practice at least along with that negotiating record. The practice to be examined would cover the period from the entry into force of the treaty to the date the question of the treaty's meaning was initially raised. In this case, I take it it would be October 1985.

I think treaty lawyers have long understood that how the parties apply a treaty in practice may be far more persuasive evidence of their intent as to the meaning of that treaty than words exchanged in the negotiation and ratification process. Actual behavior in actually applying a treaty over time may well be more persuasive than words even in the negotiations or ratification which only describe the treaty. . . .

Next, in reviewing this debate I have been struck by the fact that the role of the judiciary has been largely ignored. Clearly, the meaning of a treaty is ultimately what the Supreme Court of the United States determines the treaty to mean. The judiciary is the ultimate arbiter of what any law of this land means, despite the fact that the judiciary was not involved in the negotiation of the treaty and was not involved in the approval process. That is true with respect to any law. . . .

I cite the role of the judiciary here simply to indicate that this struggle between Executive and Senate as to the meaning of a treaty appears to be based upon the mistaken view that the judgments of the one or the other are ultimately authoritative. That is not true. In the end, it is the view of the Supreme Court that counts with respect to any law.

Finally, assuming that we do wish to focus on the supplementary means of interpretation such as the negotiating record and the ratification process, and assuming that there is no authoritative determination by the courts as to the meaning of a treaty, then we come to the Executive/Senate debate on treaty power which so unfortunately forms the core of the questions before us.

In this rather narrow context, I think it is necessary to examine the difficulties raised by the distinction between treaty as domestic law and treaty as a legal relationship between two countries. It is so that for purposes of the international law side of any treaty relationship, our treaty partners cannot be expected to examine very closely our internal processes, and we would certainly not feel bound to inquire too closely into theirs.

It is so that under international law the primary question is what the two Executives have agreed to, what is the meaning of the treaty or the agreement that they have concluded. At the same time, the executive branch and the judiciary may not, in my judgment, properly rely on a secret negotiating record that is substantially inconsistent with the fundamental and accepted meaning of a treaty. If the meaning of a treaty could be derived from secret negotiating records . . . then Senate advice and consent to ratification would not have any meaning . . . .

These problems, in my judgment, only bring us back to subsequent practice as a primary and perhaps the best means of interpretation. A consistent subsequent practice accepted by both parties and accepted by the Senate over the years until a question is finally raised will give us an interpretation of the treaty that overcomes the ambiguities, if there were any, in the negotiation process and in the ratification process. . . .

Statement of Leonard C. Meeker, Former Legal Adviser, Department of State

First, I want to state most strongly my disagreement with any proposition to the effect that the law and questions of treaty interpretation are to follow and be patterned upon policy decisions about SDI. That is just what the Reagan administration seems to have been doing the last 18 months. I think it is unacceptable and not compatible with a government of laws. . . .

Interpretation . . . must be in good faith and in accordance with the language and purpose of the treaty, and the function of interpretation is not to be stretched or distorted so as to turn the treaty upside down.

The Reagan administration now proposes that the ABM Treaty prohibiting ballistic missile defenses be interpreted so as to permit the development and testing of such defenses with the sole proviso that they be based on up-to-date Star Wars technology, this despite the plain language of the treaty, its negotiating history, the record of Senate consideration and the subsequent practice of the Soviet Union and the United States under the Treaty.

No President, no Senate would give approval to an instrument constituting such a delusion and sham. That was not what was negotiated in 1972. It was not the treaty to which the Senate gave advice and consent. To seek now, 15 years later, such a sham on the Congress and the American people is preposterous. The Constitution does not allow such manipulation.

Ultimately, the Reagan Administration never formally adopted its reinterpretation of the ABM Treaty. During the Bush I and Clinton Administrations, the reinterpretation controversy died down. But throughout the 1990s the US continued research on SDI, albeit at lower levels of funding than during the Reagan years.

The Issue of Theater-Based Anti-Ballistic Missiles

In the mid-1990s, a new issue arose regarding the ABM Treaty, namely, its applicability to theater ballistic missiles such as the Patriot missile used during the Persian Gulf war. Article II of the ABM Treaty defines an "ABM system" as a "system to counter strategic ballistic missiles or their elements in flight trajectory." The question was, where do we draw the line between strategic and theater ballistic missiles? This time, rather than make this determination unilaterally, the United States pursued consultations with Russia in the Standing Consultative Committee (SCC). (Under a Memorandum of Understanding, Russia was considered to be the successor to the Soviet Union.) On September 26, 1997, the parties to the ABM Treaty (which by then included the successor states to the USSR, including the Russian Federation, Belarus, Kazakhstan, and Ukraine), issued two agreed statements relating to theater ballistic missile defense (TMD) systems. Under the First Agreed Statement, land-based, sea-based and air-based components of lower-velocity TMD systems (defined as systems with interceptor missiles whose maximum demonstrated velocities do not exceed 3.0 kilometers/second) were deemed compliant with the ABM Treaty if, "during the test of such TMD components or systems, the ballistic target-missile during the flight-test does not exceed:

Under the Second Agreed Statement, higher-velocity TMD systems were defined as systems with interceptor missiles whose velocities exceed 3.0 kilometers/second. During tests of higher-velocity TMD systems:

In addition, higher-velocity TMD systems were required to comply with the provisions of Article VI(A) of the ABM treaty. In the Second Agreed Statement, the parties also agreed not to develop, test, or deploy space-based TMD interceptor missiles or space-based components based on other physical principles (OPP) such as lasers that are capable of substituting for space-based TMD interceptor missiles. The development, testing and deployment of air-based, sea-based and land-based TMD or other non-ABM systems based on other physical principles was not constrained or prohibited by either the Second or the First Agreed Statement.

US Withdrawal from the Treaty

The ABM Treaty reemerged recently as an issue, due to the second Bush Administration's desire to press ahead rapidly on missile defense. On December 18, 2001, President Bush gave formal notice that the United States would withdraw from the ABM Treaty, effective in June 2002.

U.S. quits ABM treaty

December 14, 2001

By Manuel Perez-Rivas
CNN Washington Bureau

WASHINGTON (CNN) --President Bush said Thursday the United States has notified Russia that it intends to pull out of the 1972 Anti-Ballistic Missile Treaty, starting a six- month timetable for withdrawal and opening the way for the creation of an anti-missile defense system.

"Today I am giving formal notice to Russia that the United States of America is withdrawing from this almost 30-year-old treaty," Bush said in the White House Rose Garden. "I have concluded the ABM treaty hinders our government's ability to develop ways to protect our people from future terrorist or rogue state missile attacks." The announcement came after months of talks in which U.S. officials hoped to persuade Russia to set the treaty aside and negotiate a new strategic agreement. But a breakthrough did not materialize, and Bush decided to go ahead with a unilateral withdrawal. Bush said he and Russian President Vladimir Putin "have also agreed that my decision to withdraw from the treaty will not in any way undermine our new relationship or Russian security."

The President of the United States has executive authority to negotiate or withdraw the United States from treaties without seeking congressional approval. The Senate has authority only to ratify treaties. In response to the White House announcement, Putin said both countries should move quickly to create a "new framework of our strategic relationship." But he called Bush's decision to abandon the treaty a "mistake."

Yet Putin, who went on national television in Russia to address the nation, said the U.S. move "presents no threat to the security of the Russian Federation." The ABM pact, negotiated with the former Soviet Union during the Cold War, specifically forbids testing and deployment of a ballistic missile defense system. Bush believes such a system is critical for U.S. defense in the 21st century, and for months he has advocated scrapping the ABM treaty, calling it a relic from a much different time, a theme he repeated on Thursday.

"The 1972 ABM treaty was signed by the United States and the Soviet Union at a much different time, in a vastly different world," he said. "One of the signatories, the Soviet Union, no longer exists and neither does the hostility that once led both our countries to keep thousands of nuclear weapons on hair-trigger alert, pointed at each other." Today, he said, both nations face different enemies. "Today, as the events of September 11 made all too clear, the greatest threats to both our countries come not from each other, or from other big powers in the world, but from terrorists who strike without warning or rogue states who seek weapons of mass destruction," Bush said.

Some question consequences

Arms control advocates have argued against abrogating the ABM treaty, saying amendments to allow the defense system tests should be negotiated with Moscow and the treaty left in place.

Congressional Democrats greeted the news with skepticism. Some called Bush's plan a misguided and poorly timed decision.

"We don't know what effect this will have yet. We do know that it poses some serious questions regarding our relationship with our allies, with Russia and with China, that we're going to have to consider very, very carefully," Senate Majority Leader Tom Daschle, D- South Dakota, said Thursday.

Daschle said he was concerned withdrawal from the ABM treaty could "rupture relations with key countries around the world," and raises serious questions about future arms races involving other countries.

Senate Foreign Relations Committee Chairman Joseph Biden, D-Delaware, admonished the White House on the Senate floor after Bush informed congressional leaders of his plans on Wednesday. Biden said the move would cause an arms buildup not just in Russia but also in Pakistan and India, increasing tensions in southern Asia.

Biden later called Bush's priorities "out of whack." He said America should be more worried about terrorists with weapons of mass destruction than countries with long-range ballistic missiles.

"September 11 indicated our country is vulnerable," Biden said. "The thing we remain the least vulnerable to is an ICBM attack from another nation."

Bush cites terrorism threat

The administration's position is just the opposite: The September 11 attacks demonstrate that if rogue nations which support terrorists develop long-range missiles, they would undoubtedly use them.

"We know that the terrorists and some of those who support them seek the ability to deliver death and destruction to our doorstep via missile," Bush said Thursday. "And we must have the freedom and the flexibility to develop effective defenses against those attacks."

Still, some Democrats questioned the urgency to pull out, saying the missile defense system could have been tested without breaching the ABM treaty. Daschle said pulling out was "a high price to pay for testing that was not required this early in the schedule for missile defenses."

But White House officials said missile defense testing would soon "bump" into the ABM treaty, and the president felt it was best to proceed with withdrawal.

"All along, the United States has been concerned with the fact that the timetable to develop a test to protect the country on missile defense was bumping into the ABM Treaty. The bump was about to take place," said White House spokesman Ari Fleischer.

Therefore, he said, "the president's judgment was that the most productive way to proceed to maintain good relations would be to proceed with clarity. And that clarity is to move beyond the treaty so that the United States will not be inhibited in any way of developing a robust testing system."

Defense Secretary Donald Rumsfeld said the treaty is outdated and "does not reflect the strategic realities of today."

"It did not and does not protect the American people from attack. It failed to recognize that the Soviet Union is gone and that Russia is, of course, not our enemy," he said. Rumsfeld said he plans to meet with the Russian defense minister next week in Brussels to continue discussions on what framework should replace the longstanding treaty. Rumsfeld and other administration officials noted that Russia and the U.S. have agreed to reduce offensive strategic nuclear weapons, and relations between the two countries are good. In Moscow on Thursday, Putin, for the first time publicly offered specifics in response to Bush's plan to reduce the U.S. nuclear arsenal. Putin said the reduction should be 1,500 to 2,200 warheads, a figure slightly lower than the one proposed by Bush, who set it at 1,700 to 2,200.

Administration seeks to quell concerns

"We still have exactly the same attitude and approach that the president and President Putin announced, and that is that we are looking forward, we're not looking back. That we do not consider them an enemy. And that the basis that we want to go forward is to find ways that we can deal with transparency and predictability with respect to the behavior of each country on offensive and defensive nuclear weapons," Rumsfeld said. "And we intend to do that."

Fleischer noted that Bush also consulted by telephone with the leaders of China, Britain, France, Germany and Japan. He added that leaders of other countries, including Spain, Italy, Hungary and Poland have expressed support for the move.

China's President Jiang Zemin, who has expressed perhaps the greatest concern over the U.S. withdrawal, told Bush he "looked forward to further high-level dialogue on the topic," Fleischer said.

The Chinese, who have a much smaller nuclear arsenal than Russia, are concerned that the U.S. national missile defense plan could be used to block their missiles, thereby upsetting the nuclear balance of power. Critics have said the move could push China to add more nuclear weapons to its stockpile, reigniting the arms race.

But Bush sought to assure Jiang when they met in Shanghai this fall that development of a national missile defense "is not a threat to China," Fleischer said. "China, which can launch many [missiles], could not be stopped."

Jiang, traveling Friday in Myanmar on an official visit, said the Chinese position remains: Beijing is opposed to the U.S. missile defense program and the U.S. withdrawal from the ABM treaty. Jiang said there's a need for multilateral efforts to ensure world peace, according to Chinese media.

Bush administration officials have made efforts to ease worries in other nations as well. During stops this week in Berlin, London and Paris, Powell tried to quell European concerns about the consequences of scrapping the treaty, U.S. officials said.

"I don't see the basis for an arms race in anything that we have done," Powell said Thursday. "I see a basis for increased strategic stability, and I look forward to working with my Russian colleagues, as does Secretary Rumsfeld, in pursuing that."

Bush said he looks forward to visiting Moscow next year to continue working with Putin to develop a new strategic relationship that will "last long beyond our individual administrations, providing a foundation for peace for years to come."

"The Cold War is long gone," he said. "Today we leave behind one of its last vestiges. But this is not a day for looking back. This is a day for looking forward with hope and anticipation of greater prosperity and peace for Russians, for Americans and for the entire world."

Questions

  1. Why did the United States and the Soviet Union negotiate and adopt the ABM Treaty in the first place? What did each side hope to gain? If each country opposed the development of ABM systems, why couldn't each side have decided on its own not to build such systems? In other words, why was joint rather than unilateral action required?

  2. Given the desire of the Reagan Administrations to proceed with the Strategic Defense Initiative, why did it attempt to reinterpret the ABM Treaty, rather than simply withdraw from the Treaty (the approach taken by the current administration) or engage in consultations with the Soviet Union (the approach pursued by the Clinton Administration regarding theater missile defenses)? What were the pros and cons of these alternatives as compared with the strategy of reinterpreting the Treaty?

  3. As Legal Adviser, what legal advice would you have given to the Secretary of State in 1982 about whether the Star Wars program violated the ABM Treaty? Why? In answering these questions, consider the following general issues:

    1. What are the rules for interpreting treaties (see articles 31-33 of the Vienna Convention)? How do these rules compare with the rules for interpreting contracts or statutes?
    2. Should one party be able to reinterpret a treaty unilaterally? What mechanisms should be used to resolve disputes between parties about treaty interpretation?
    3. Should the interpretation of treaties to which the US is a party be an exclusively Executive branch function or should Congress (and in particular the Senate) and/or the courts play a role?

  4. Assume that you concluded that Star Wars would violate the ABM Treaty and the Secretary of State replied, "Who the h--- cares about this treaty? Let's just do it." (This could be referred to as the Nike theory of international law.) How would you respond?

  5. If you had been working in the legal office of the Soviet Foreign Ministry, how do you think the Soviet Union should have responded to the proposed US reinterpretation of the ABM Treaty? What remedies, if any, did it have?

  6. Why did the Bush II Administration decide to withdraw from the ABM Treaty? What had changed since 1972 or 1985?

  7. Does the history of the ABM Treaty demonstrate that treaties are infinitely malleable and that they don't in fact constrain a state's freedom of action? Or are there limits to the possible interpretations of the ABM Treaty?