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MAD: US and USSR idea that as long as each country knew its demise was assured, neither would start nuclear war.
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Part of essence of MAD is that to be able to defend yourself is threatening, since both parties are equally exposed; once one party can defend itself, it’s destruction is no longer insured, and that party can attack
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Eliminating the ability of a country to defend itself from nuclear attack seen as necessary to preserve MAD
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Once the idea of anti-ballistic missile system seemed possible, both US and USSR moved to outlaw them
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1972 ABM treaty passed
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Art I: Each party undertakes not to deploy ABM systems for defense
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Art II: ABM system is a system to counter strategic ballistic missiles
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Art III: Each country could protect its national capital with ABM
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Art V: Each party undertakes not to develop, test, or deploy ABM systems or components which are sea-based, air-based, space-based, or mobile land-based
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This system stays in place for over 10 years
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Treaty was signed by Pres Nixon, ratified by 2/3 of Senate
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When Reagan comes into office, he wants to rethink the Cold War
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Reagan devised Strategic Defense Initiative (“Star Wars”): US would construct platforms in space with laser-guided systems that would attack missiles from above
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Reagan had to confront treaty of US saying US couldn’t devise such a system
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Pres clearly can’t abrogate any treaty at any time: when you abrogate a treaty, you are in violation of the treaty
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For political reasons, Reagan didn’t want to abrogate the treaty
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Instead, he took the position that the treaty was still in force, but Reagan admin would interpret the treaty differently than it had been interpreted
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Issue: what discretion does executive have to change its interpretation of a treaty?
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New interpretation: the treaty only banned technologies that we understood ABM to be at that time; and SDI is something new, therefore not banned by the treaty
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Teleological interpretation of treaty (looking at general purpose of treaty): any ABM system is disruptive to MAD policy and is therefore prohibited
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How should we interpret a treaty?
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From perspective of int’l law: Vienna Convention on Treaties
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ICJ would use this method
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But no way US & USSR would not give the case to the ICJ
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Vienna Art 31: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose
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From perspective of domestic actor
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President: do we employ SDI or not?
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US has to be able to defend its actions as being consistent, since Reagan didn’t want to abrogate the treaty
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US courts generally don’t follow int’l law perspective
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Issue: can a subsequent administration change the interpretation that was adopted at the time of original ratification of the treaty?
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President submits treaties to Senate for “advice and consent”
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When ABM Treaty brought to Senate in 1972, Nixon admin told the Senate that it meant we would not develop any system that would destabilize MAD
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This was continued into the Carter admin
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Similar to situation in Carter-Goldwater case
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If the advice and consent of the Senate is based on an interpretation of the president, should a subsequent admin be able to change that interp (as a matter of domestic law)?
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Does it matter what the Senate thought when it ratifies a treaty of US?
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Treaties have a statute-like role, and so analogy can be made to looking at legislative history and intent
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But treaties aren’t unilateral acts; they have another party to them (in this case, the USSR)
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The partisan debating between the Pres and Senate shows a disregard for the USSR’s interpretation
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Atik: agrees with Soafer interpretation, that you should look to shared interpretation and not the Senate’s interpretation, because the Senate is acting unilaterally************ (see p. 297 for Sofaer)
Ratification and Intent -
Is the Senate’s understanding relevant to the international obligations contained in a treaty?
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Is the Senate the appropriate “brake” on changing Executive interpretation?
INF Treaty, p. 298
(Book- Treaty on missiles a year later, number of senators sought assurances that the treaty would not be subject to the same type of reinterpretation as the ABM treaty. When they didn’t get assurances, Foreign relations committee revised Senate Resolution 167, called the Biden Condition- to reaffirm the long-standing practice and the long standing principle that the shared understanding of the Executve and Senate, as reflected int eh Executives formal representations, is fully bindins.
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Biden Condition: the Senate understanding at time of ratification should be frozen
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Problem: assumes Pres will give a truthful interpretation of treaty to Senate
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If changing interpretation, Pres needs to go to Congress to get another 2/3 vote
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Atik: no Pres will ever agree to this inability to change an interpretation based on changing policy considerations
See notes p. 300-302
Vienna Convention on Treaties- Interpretation
Art. 31- General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Art. 32- supplementary means of interpretation
- Note limits on recourse to travaux preparatoires
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable
Opening and Closing the courthouse door to international law claims (p.302)
Book: States have a number of reasons for accepting or rejecting international legal claims in their domestic court systems. We will now look at some specific statutes and doctrines that explicitly either open or close US courts to international law claims.
- look at which political and institutional forces tend to support or oppose use of international law norms in US courts.
Problem: Marcos elected pres of Philippines in 1965- orders a new constitution that eliminates term limits and gives him sole authority to rule Philippines. Martial law imposed so not much political dissent. Lots of arrests and torture for opposition. In 1986 “Peoples power” movement deposes Marcos. He flies to Hawaii and takes lots of gold and jewels with him. When he arrives many lawsuits are filed against him in US courts for human rights violations. One for false imprisonment, kidnapping, wrongful death. Also class action suits for torture and arbitrary detention.
Then Republic of Philippines filed actions in state and federal courts in CA and federal courts in NY, NJ and TX to recover 1.55 billion that marcus allegedly stole form national treasury. Issue: should US courts hear these suits.
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