|
|
What Does the ABM Treaty Really Say?
| Article
# : |
13451 |
|
|
Section : |
CURRENT ISSUES
|
| Issue
Date : |
9 / 1987 |
4,265 Words |
| Author
: |
Mortan A. Kaplan
|
There is a major dispute between the Reagan administration and the majority of the U.S. Senate over whether the ABM Treaty excludes the testing - other than in a fixed, land-based mode - and development of ABM systems, or components thereof, employing other physical principles. There is also a debate over whether the president has the right to interpret the treaty contrary to the terms explained to the Senate when it ratified the treaty. I shall show that the ABM Treaty does not forbid the testing and development of ABM systems or components based on other physical principles, and that in clear and convincing language - indeed, beyond a reasonable doubt - Agreed Statement D permits their testing and deployment.
I shall show that Agreed Statement D is so expertly crafted, precisely worded, and completely consistent and coherent that no interpretation other than the one I offer can reasonably be placed upon it. I shall also show why the president is not bound to adhere to the interpretation of the treaty at the time it was ratified.
A treaty is a particular type of contract. Unlike the system of private international law, where a particular municipal code may be singled out as governing, treaties are part of public international law between sovereign states. The rules of municipal interpretation of each party therefore are of relevance in the interpretation of a treaty.
A treaty usually has more than one authoritative language version. Although it is usually possible to find satisfactory legal expressions in different languages, languages rarely can be translated exactly. Where the language texts differ, a party cannot be held to what its language version does not require unless there is at least a preponderance of evidence to the contrary. Even this standard is likely too weak, for, in matters involving the concession of sovereign powers in the area of national security, anything less than clear and convincing evidence - indeed, likely beyond a reasonable doubt - is insufficient.
One party to a treaty cannot be held to a requirement that does not bind the other party. Hence, where the language versions differ, the text with fewer requirements, in the absence of clear and convincing evidence to the contrary, is the authoritative text.
Treaties are put together by teams from the parties to the agreement. Because there are differences of objectives and motives involved in the treaty process, each team will try to place in the text of a treaty those provisions that support its objectives. These teams also have responsibilities to their principals. Thus, even when they cannot get what they want, they have an incentive to put in clauses that provide a contrary appearance.
Treaties are negotiated both formally and informally. That is, there are both private conversations and formal discussions between the teams. Thus, they often have a preliminary idea of what would be rejected outright. They are not likely to propose points that would certainly be rejected in the formal sessions, for that would constitute a confession of failure that would embarrass them in the eyes of their principals. It would also weaken their subsequent claims concerning interpretation of the treaty.
Each team, therefore, has some elements
...
Read Full Article
|
|
