Appendix 2: Major sdi sensors and weapons. 62




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MASARYK UNIVERSITY

FACULTY OF LAW


Department of International and European Law





The ABM Treaty Interpretation Dispute


DIPLOMA THESIS


By Jana Honková


Thesis Supervizor: Prof. JUDr. Vladimír Týč, CSc.

UČO: 206587

Field of Study: Law

Year of matriculation: 2006


Brno, 2011


I do hereby solemnly declare that the diploma thesis “The ABM Treaty Interpretation Dispute“ is a result of my independent work. All sources of information and bibliographical references used in this thesis have been cited accordingly in the footnotes and in the references.

Brno, 30th October 2011


---------------------

Jana Honková


Table of Contents

1. International Treaty Interpretation 6

1.1.A single ‘rule’ or ‘rules’ of interpretation? 11

1.2.Ratification Hearings 30

1.3.Article II and Article V 33

1.4.Ratification Hearings 41

2. References 50

3.Primary Sources 51

3.1.Legal Acts, Reports and Speeches 51

3.2.Monographs 52

Appendix 1: Text of the ABM Treaty 56

Appendix 2: Major SDI sensors and weapons. 62


Introduction

The thesis deals with the dispute over the compliance of the President Reagan’s Strategic Defense Initiative with the Treaty between the United States and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems (further referred to as “ABM Treaty”). In 1985, the Reagan administration introduced the so-called broad interpretation of the Treaty under which research, development and testing of all exotic technologies would have been permitted (regardless their basing mode). Strong opposition followed from both the U.S. Congress and abroad. Sound legal arguments were enounced by both sides to the dispute, i.e., by the so-called traditionalists and the proponents of the Reagan administration’s reinterpretation. This thesis, while using historical, descriptive and analytical method, will strive to verify the following statement:

While being politically necessary and strategically desirable, the so-called broad interpretation of the ABM Treaty as proposed by the Reagan administration did not have a sufficient foundation in law.

In the first part the thesis elaborates briefly on the general concept of legal interpretation. A more detailed description of the internationally recognized (and since 1969 also codified) rules of interpretation follows.

Further, single provisions of the ABM Treaty are introduced, together with some of the Treaty related documents.

The third part of the thesis deals concisely with the political background and ruling mindset that framed the re-interpretation debate in the eighties. Understanding the arms control philosophy that governed the second half of the Cold War is particularly important if we try to grasp the real main rationale of the Strategic Defense Initiative and the motives that led President Reagan to its launch.

In its fourth and fifth part the thesis presents and further elaborates more in detail on the main legal arguments that were enounced by the proponents of either the broad interpretation or the so called narrow, traditional interpretation.

The concluding chapter eight summarizes the debate and comments on the conclusions made.

The Concept of Interpretation

Interpretation is an indispensable process for understanding the meaning of words, deeds and basically all products of human communication. In the following text, however, interpretation will be regarded as a legal tool whose purpose is to clarify the meaning of legal acts and rules.

Although debates over the exact definition and tasks legal interpretation should fulfill or at least be aimed at last since centuries (comments can be find already in the writings of Grotius and Gentili1), it is not too far-fetched to state that the only consensus reached so far has been that there is none. The debate remains open and might do so ad infinitum.

Generally speaking, interpretation can be defined as “an understanding or explanation of the meaning of an object”.2 Interpretation is also often associated with the processes of construction or exposition.3 Although it is generally accepted that in order to be legitimate interpretation has to occur according to a predetermined set of rules (methods)4. Interpretation is not and will never be a purely mechanical process.5 Furthermore, as Special Rapporteur of the International Law Commission on the law of treaties Humphrey Waldock aptly noted, the process of interpretation is not always only about discovering some preexisting intentions of the parties to a treaty; in most cases interpretation will include giving a meaning to the treaty text.6 Similar point, though from a different perspective (namely the linguistic one) makes Martti Koskenniemi in his book “From Apology to Utopia” when he writes that: “Interpretation rather creates meaning than discovers it.7 Since there is nothing like an ‘objective’, ‘real’, or ‘extraconceptual’ meaning existing by itself to the linguistic expressions, interpretation must be constructive. Consequently, because an objective meaning is absent interpretation can only produce subjective meaning as, for example, McDougal says.8 That remains true regardless the method used9 since no method can be wholly independent from subjective and objective constructions.10

Discussions on the subjectivity and objectivity in the realm of interpretation usually deal also with the distinction between law and politics or, more precisely said, with the problem of defining borders between the sphere of law and the politics’ sphere and the problem of defining the ‘right’ portion of political issues and aspects that should be taken into account during the interpretational process. Many lawyers argue that “politics does not govern all legal concepts and that the interpretive community of lawyers can (by tradition) arrive at coherent interpretations”.11 Yet, in the international public law treaties are concluded to pursue (sometimes purely) political goals and that is why political character is inherent to every, at least as regards international treaties, interpretation.

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