THE Reagan administration has just published a multivolume reanalysis of the 1972 Antiballistic Missile Treaty (ABM) with the Soviet Union. The reanalysis supports the so-called ``broad interpretation'' adopted by the administration to permit testing of ``star wars'' systems despite the apparent impermissibility of such tests under prior interpretations of the treaty. This sort of exercise in reanalysis seems to miss the major legal point of what treaties are and what they do. Treaties are not words given by an objective third party to be interpreted by anyone in an attempt to arrive at objective truth; treaties are only contracts, and mean only what the parties intended them to mean. The administration seems to be approaching a legal question as if it were one of theology. The issue has importance far beyond the terms of the ABM Treaty and nuclear defense policy. Fresh Soviet offers to negotiate limits to intermediate- and short-range nuclear missile capabilities in Europe raise the possibility that whatever arms agreement is negotiated might be reinterpreted by some future administration, either here or in the USSR or, indeed, by some NATO ally, to mean something other than what it seems.
If the 1972 ABM Treaty is subject to fundamental reinterpretation by the Reagan administration, then no treaty can be relied on; the legal rules are simply word-games for lawyers to play with no impact in the real world. Real international lawyers take a different view.
In the US, a treaty is law of the land. Article VI of our Constitution says so. But, under Article II, Sec. 2 of the Constitution, an international agreement is not a ``treaty'' unless ratified by the president ``with the advice and consent'' of two-thirds of the senators present. It has long been believed that meaningful consent cannot be given unless the Senate has been definitively told the meaning of the document submitted to it for ``advice and consent.'' So, Sen. Sam Nunn of Georgia was entirely correct in checking into the interpretation given to the US Senate when the ABM was submitted to it, and concluding that the treaty to which the Senate gave advice and consent meant what it had been told, not something derived later from a reinterpretation of its words.
The new reanalysis cannot change that position.
At the next level, the treaty does not mean what any one party would like it to mean, even if in internal documents, like classified briefings given to the Senate, there is a clear national interpretation set out. Treaties mean what their parties intend, just as contracts mean what the parties to them intend, not what one party secretly tells his or her business associates. So, if the Soviet interpretation of the ABM Treaty is not binding on the US, neither is the US interpretation binding on the USSR. In fact, in Article XIII of the ABM Treaty, there is a standing consultative committee created to try to resolve disputes between the two parties whenever questions of interpretation arise; questions that the committee cannot resolve are for the parties to discuss outside the treaty and could give grounds for denunciation or countermeasures. But unilateral interpretations are clearly not binding on the other party in any case.
There is another complication. Treaties involving the defense of Europe are of supreme interest to our NATO allies. If nuclear weapons are stationed in the territory of any foreign country, the permission of that country is needed as a matter of law and politics. All the US nuclear weapons stationed in Europe are there with the permission of the countries in which they are located. Now, the assurances those countries' governments have been given regarding the meaning of the various arms control agreements negotiated between the US and the USSR cannot change the meaning of the arms control agreements, but can be vital to the permission given by those governments to the US to station the weapons in their territory. Even if the US and the USSR agree to change their interpretation of an arms control treaty, that agreement cannot bind our allies, and secret briefings and assurances given to our allies, while not treaties under the United States Constitution, are binding on the US in a different sense. Bad faith in interpreting those collateral agreements can be even more serious politically than a violation of an arms control treaty itself.
Then there is even a fourth level. In a democratic nation such as ours, the system collapses if the president fails to overfulfill his constitutional obligations to ``from time to time give to the Congress information of the state of the union'' and ``take care that the laws be faithfully executed.'' Nothing in the Constitution makes the ``State of the Union'' address a formal yearly ritual; it is a constitutional necessity.
And that which is told the Congress either becomes public knowledge or a cause for electoral defeat of our representatives when their failures to be candid with us, who put them in office, becomes politically significant.
The links between law and politics are particularly complex when treaties are involved. It is hoped that the Reagan administration conducts arms control negotiations with the USSR with more seriousness than the word-games approach tried with the ABM Treaty - and with a sense of law rather than theology.
Alfred P. Rubin is professor of international law at the Fletcher School of Law & Diplomacy.