II: The Semiotics of International Law: Interpretation of the ABMTreaty

In earlier articles I have advanced a post-structuralist, semiotic theory of legal interpretation and have shown that it explains how statutes, constitutions, and judicial opinions get their meanings.¹ In this paper, I would like to apply the theory to texts of international law, illustrating with the U.S.-Soviet Anti-Ballistic Missile Treaty.

By saying that my theory is post-structuralist I mean that it arises out of that subjectivist thinking that has always been present in twentieth century modernism but which, as we approach century’s end, is enjoying a resurgence under the name of post-structuralism or post-modernism in philosophy, in literature, in the arts, in architecture, in science, in the social sciences, and in law.² The theory rejects the legal positivism that continues to permeate the law like a grey fog from the nineteenth century. It also rejects the linguistic structuralism with which Saussure’s descendants stirred so much excitement in years recently past and which, unfortunately, for a period was nearly synonymous with semiotics.³ Structuralist semiotics, in my view, tend to be static, mechanical systems based, at bottom, on claims to universal structures of the human mind which either do not exist at all, or if they exist are so deep and so minimal that they have only feeble influence on the cultural superstructure. Structuralist legal semiotics becomes merely a neo-positivist exercise of analyzing law as an autonomous system of coded norms. It suffers the fatal irrelevance of ignoring historical and social context.⁴

What is needed, instead, is a pragmatic account of legal interpretation, which starts with the modernist notion that language and legal meaning are cultural artifacts produced in time and space through specific social institutions. To describe the mode of production of these artifacts is to describe what Wittgenstein⁵ called a “form of life” or “language game” and Stanley Fish⁶ refers to as the “institutional practices of the interpretive community”⁷ Ideally, the effort to describe such a complex phenomenon would involve the kind of “thick description” of cultural practices of which Clifford Geertz is tribal chief,⁸ but I think it can at least be outlined by the kind of diagrams that follow below as Figures 1 and 2 and which comprise what I call the semiotic web of legal interpretation.

In presenting my theory through diagrams, I hope it will not be mistaken for another structuralist model. As I explained recently in another paper,⁹ “I find myself in the same quandary as Mr. Palomar in Italo Calvino’s short stories”.¹⁰ Palomar had rejected attempts to tackle ‘the most entangled human problems, such as those involving society and the art of government’ by means of logical, structural models because the models were never congruent with the ‘shapeless and senseless reality of human society, with all its monstrosities and disasters.’ He decides that

what really counts is … the form that society is assuming slowly, silently, anonymously, in people’s habits, their way of thinking and acting, their scale of value. If this is how things stand, the model of models Mr. Palomar dreams of must serve to achieve transparent models, diaphanous, fine as cobwebs, or perhaps even to dissolve models, or indeed to dissolve itself. At this point the only thing Mr. Palomar can do is erase from his mind all models and models of models (1985:111).

But, of course, he finds he can’t do that and still have sustained thoughts about human problems, because sustained thoughts always begin to assume the shape of a model, and so he—no doubt an alter ego for Calvino himself in the delicious meditations of his later fiction—lives vacillating between mirages of rational models and the messy, vibrant life world. Models are difficult to escape, then, but if my explanation is a model at all it at least is not a mechanical one: it is not a drawing of the life world, which is impossible, but only a guide through it or a hint of what it is like, in the way a restaurant menu only hints at the meal to come, or a travel guide only hints at the road conditions and culture in the country across the border.

My approach is influenced principally by the post-structuralist semiotics of Umberto Eco¹¹ and through him the forerunner Charles Peirce,¹² though it occasionally converges with some parts of the hermeneutics of Heidegger and Gadamer, the literary theory of Stanley Fish, and the work of Derrida, Foucault, Lyotard, Volosinov, Bakhtin, and others. I start with Eco’s notion of the labyrinth or encyclopedia to describe the network of signs from which meaning is produced. I relabel it, however, with Sebeok’s metaphor of “the semiotic web”,¹³ and describe it as follows:

The metaphor of the semiotic web permits us to see that the reader is always embedded in a web of signs (or, as Eco prefers, a multi-level, net-like or rhizome-like labyrinth), which is the entire encyclopedia of signs in a culture. Situated at a node from which every point can be reached from every other point, the reader produces the meaning of a sign by travelling the connections of the web, linking a series of signs until losing interest in the process. At any one node, no reader has global vision of all of possible links because the web grows and contracts over the course of history, and because every reader has limited competence and limiting psychological, ideological, social and other circumstances which affect one’s capacity to travel the web.

The experience is the meaning to the individual reader, but if readers wish others to share their meanings, or if others wish them to share their meanings, they must attempt to bring one another to experience the visions from their own nodes in the web. In the end, production of the social meaning of texts is a matter of mutual per suasion, its study is the study of rhetoric, and the legal system is a particular system of rhetoric for cultural persuasion.¹⁴

Now then, the phenomenological experiences the reader has in the process of producing meaning from the web seem always to be these: one travels virtually simultaneously through portions of the web that consist of signs of texts, through portions containing signs of the sources of texts, which provide additional opportunities for meaning, and through portions consisting of signs given by other readers expressing their views of the text. At each step, there are multiple possible selections of signs. Looking at all these signs through lenses of one’s own values, and limited in vision by personal psychological, historical, cultural, and sociological circumstances, the reader selects a number of them to produce the meaning.

Figure 1 (redrawn slightly from my first presentation of it in 1987) attempts to sketch all this together. Figure 2 (also redrawn) takes two main sections of the web, the text and the source of the text, and magnifies them in order to reveal some of the routine pathways taken by Anglo-American lawyers and judges in actual practice, showing the multiple possible links that can be combined or ignored among the pathways in producing the legal meaning of any text.

With the aid of these diagrams, I would now like to examine an international legal text, the ABM Treaty.

The United States and the Soviet Union signed the Anti-Ballistic Missile Treaty in the spring of 1972 and the U.S. Senate ratified it a few months later. The Treaty limits both countries’ missile defense forces and restricts certain development and testing of such weapons. When President Reagan announced his “Star Wars” program in 1983 (he calls it the “Strategic Defense Initiative,” but I decline to consent to the Pentagon’s Orwellian newspeak for this frightening laser-beams-and-mirrors militarization of space) the question was immediately raised whether Star Wars violates the ABM Treaty.

At first, the Administration made clear that the President was talking about research and that research is not prohibited by the Treaty. This was an uncontroversial position. Moreover, everyone seemed to agree that even testing is permitted, if it is for a fixed, land-based system. It was thought, however, that mobile or space based systems like Star Wars could not be tested. And no system could actually be deployed. This is what the press commonly refers to as the narrow interpretation.

In 1985, the Administration announced a new, broad interpretation. It holds that the Treaty’s prohibitions on testing apply only to systems, which use the physical principles scientifically known in 1972. It is claimed that new-tech systems like Star Wars, based on other physics principles, may be developed and tested in space, though they may not be actually deployed. The Administration’s broad interpretation set off a furor among many citizens, in the U.S. Senate, in allied governments, and in the Soviet government. In American political discourse, the debate over the ABM Treaty nearly overshadowed debate over Star Wars itself. And the Treaty debate, rather than exploring the nefarious motives of Administration officials, the symbolic force of the Treaty, and the strategy of Reagan’s reckless adventurism—in other words, the politics, reality and danger of the event—instead quickly became a dry technical exchange between lawyers about the meaning of a document.

Thus, legal discourse moved in once again to assert its hegemony over political and human questions and claimed to resolve them on the basis of its own autonomous techniques. There will be those who welcome this as “the very essence of the rule of law.” But if one is convinced, as I am, that “the rule of law” as traditionally practiced is merely the continuation of politics by hypocritical means, one may yearn, when so much is at stake, for a more honest and relevant politics than legal discourse affords.

The ABM debate soon centered around exchanges between the State Department Legal Adviser, who was former federal judge Abraham D. Sofaer, and Senator Sam Nunn, Democrat of Georgia and Chair of the Senate Armed Services Committee, Sofaer issuing official studies supporting the Administration’s broad interpretation and Nunn expounding the narrow interpretation on four occasions on the Senate floor. Their statements collect the key documents and articulate the arguments sharply and fully.¹⁵

In a nutshell, Sofaer’s argument was this: The negotiation record reveals that the Soviets never agreed to the narrow interpretation in 1972 even though the U.S. negotiators had pushed for it. The Executive Branch had given the Senate mixed messages on the issue during ratification proceedings, but the matter was a minor part of the Treaty and unimportant to the Senate as a whole which never formed a clear intention about it one way or the other. While Executive Branch practice leaned to the narrow interpretation for fifteen years, the President’s review of the negotiating record has now determined that the broad Treaty was the only one actually agreed to, and the Congress owes him great deference on such foreign policy questions.

Senator Nunn countered that the Soviets did indeed agree to the narrow interpretation in 1972, that the Executive had explicitly represented it that way to the Senate, and had adhered to the view for fifteen years, so there was agreement on the issue all around. Moreover, he argued, the Senate has an equal role in approval of treaties. For an administration to argue that new interpretations can emerge from old negotiating records that had been withheld from the Senate would always give rise to the uncertainty that one treaty had been concluded between the parties and a different one approved by the Senate; this would unsettle treaties, denigrate the Senate’s role, and provoke a constitutional confrontation between the two branches.

That both men knew their real task was one of rhetorical persuasion can be gleaned from the fact that neither referred merely to the “narrow” and “broad” interpretations. Cleverly, Sofaer called them “restrictive” and “broad,” and Nunn the “traditional” view and “the reinterpretation.” I am interested at this point, however, in neither the rhetorical flavour nor substantive content of their remarks. I am interested in the form. Like nearly everyone else in the debate, Sofaer and Nunn assumed that the ABM Treaty possesses a legal meaning that is to be discovered. They assumed that the discovery is to be made by applying traditional techniques for exegesis of legal texts.¹⁶