[Congressional Record Volume 143, Number 63 (Wednesday, May 14, 1997)]
[Senate]
[Pages S4451-S4461]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FLANK DOCUMENT AGREEMENT TO THE CFE TREATY
Mr. SANTORUM. Mr. President, in executive session I ask unanimous-
consent the Senate now proceed to the consideration of Executive
Calendar No. 2, the Treaty Doc. No. 105-5, the CFE Treaty.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The legislative clerk read as follows:
Treaty Document 105-5, Flank Document Agreement to the
Conventional Armed Forces in Europe Treaty.
The PRESIDING OFFICER. The Chair recognizes the distinguished senior
Senator from North Carolina.
Mr. HELMS. I thank the Chair very much. Mr. President, may I ask that
the unanimous-consent be stated as to time on this resolution of
ratification?
The PRESIDING OFFICER. There are 1\1/2\ hours equally divided between
the chairman of the Foreign Relations Committee and the ranking member.
Mr. HELMS. Senator Byrd has some time, too?
The PRESIDING OFFICER. And an additional 30 minutes for Senator Byrd.
Mr. HELMS. Very well. I do thank the Chair.
Mr. President, I yield myself such time as I may require.
The Senate Foreign Relations Committee this past Thursday reported a
treaty to amend the Conventional Armed Forces in Europe Treaty. The
vote was unanimous.
I have never hesitated to oppose, or seek to modify, treaties that
ignore the best interests of the American people. As long as I am a
Member of the U.S. Senate, I will be mindful of the advice and consent
responsibilities conferred upon the Senate and the Senators by the U.S.
Constitution. Therefore, I have never hesitated to oppose bad treaties
and bad resolutions of ratification without hesitation. But when a
treaty serves the Nation's interests, if it is verifiable, and if the
resolution of ratification ensures the integrity of these two points
for the life of the treaty, I unfailingly offer my support to it. That
is why I support the treaty before us today.
In that connection, let the record show that the pending treaty was
signed on May 31, 1996, and was not submitted by the President to the
Senate for our advice and consent April 7, 1997. With the bewildering
delay in the delivery of this treaty, the administration demanded
action by May 15, 1997, which is tomorrow.
So, after wasting an entire year, the administration demanded that
the Senate act on this treaty within 1 month's time. I believe it is
obvious that the Foreign Relations Committee has been more than helpful
in fulfilling its constitutional responsibilities to advise and
consent.
The treaty before us today is a modification of the treaty approved
by the Senate in 1991. Specifically, it will revise the obligations of
Ukraine and Russia in what is known as the flank zone of the former
Soviet Union. In recognition of the changes having occurred since the
collapse of the Soviet Union, the 30 parties to the CFE Treaty have
agreed to modify the obligations of Ukraine and Russia.
The 1991 CFE Treaty could not and did not anticipate the dissolution
of the Soviet Union and the Warsaw Pact, let alone the expansion of
NATO to include Central and Eastern Europe countries. Consequently,
recent years have been occupied with efforts to adapt the treaty to the
new security environment of its members.
Mr. President, in its essentials, the Flank Agreement removes several
administrative districts from the old flank zone, thus permitting
current flank equipment ceilings to apply to a smaller area. In
addition, Russia now has until May 1999 to reduce its forces sufficient
to meet the new limit.
To provide some counterbalance to these adjustments, reporting
requirements were enhanced and inspection rights in the zone increased.
Mr. President, with the protections, interpretations, and monitoring
requirements contained in the resolution of ratification, I recommend
approval of this treaty because it sets reasonable limits and provides
adequate guarantees to ensure implementation.
However, the simple act of approving this treaty does not diminish
the need for further steps by the U.S. Government to strengthen the
security of those countries located on Russia's borders. If this
agreement is not implemented properly, Russia will retain its existing
military means to intimidate its neighbors--a pattern of behavior with
stark precedents.
As the Clinton administration is so fond of saying, this treaty is
but a tool to implement the foreign policy of the United States. During
the past 4 years, the Clinton administration has remained silent while
Russia has encroached upon the territory and sovereignty of its
neighbors. It was the lack of a foreign policy--not a lack of tools--
that allowed this to happen.
I have confidence that the new Secretary of State will correct the
course of our policies toward Russia, and I gladly support this treaty
to aid the Honorable Madeleine Albright in that endeavor. The collapse
of the Soviet Union was one of the finest moments of the 20th century.
To allow even a partial restoration of the Soviet Union before the turn
of the century would be a failure of an even greater magnitude.
Mr. President, a final and related issue in the resolution of
ratification is one upholding the prerogatives of the Senate in matters
related to the ABM Treaty. During the past few years, the executive
branch has sought to erode the Senate's constitutional role of advice
and consent regarding treaties. In fact, the executive branch
originally refused to submit for advice and consent the treaty that is
before the Senate today. Through protracted negotiations, the Senate
successfully asserted its proper role to advise and consent to new,
international treaty obligations. Likewise, on revisions to the ABM
Treaty, it is only through a legally binding mandate that we can ensure
the proper, constitutional role of the U.S. Senate. I hope, Mr.
President, that we can proceed to do that without delay. Mr. President,
I ask for the yeas and nays on the resolution of ratification.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. HELMS. I believe the Senator from Delaware wishes to speak.
Mr. BIDEN. Thank you, Mr. Chairman.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Delaware.
Mr. BIDEN. Mr. President, let me begin by acknowledging what the
Senator and chairman of the committee said, and that is that this
treaty has been around a long time, and all of a sudden it came popping
up here. Some of us, like the Senator from North Carolina and the
majority leader and others, myself included, have felt it is a Senate
prerogative to determine whether or not this flank agreement should be
agreed to. It is an amendment to the treaty. The administration for a
long time concluded it was not a prerogative of the Senate, and it was
not necessary to submit this treaty.
Some have asked, why are we acting so expeditiously on this treaty?
Why is there this deadline? Two reasons: One, we waited a long time to
agree we had the responsibility to accede to this or it could not
occur, and, two, there is a real May 15 deadline by which all 30
nations must ratify this agreement. If, in fact, they do not, the
agreement will have to be reviewed by all of them.
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We are right now dealing with the enlargement of NATO, we are now
dealing with the NATO-Russia Charter, and if it looks as though the
United States is reneging on this flank agreement, it can just create a
lot of confusion.
Having said that, had I been chairman of the committee rather than
the ranking member and had it been a Republican President, I probably
would have spent more time chastising the administration than the
distinguished Senator from North Carolina. He just rolled up his
sleeves and said, ``OK, this is a necessary and important treaty,'' and
didn't spend a lot of time in recriminations about why it took so long
to get here. I thank him for that, and I thank him for the way in which
he moved this. I doubt there is any treaty or change in a treaty as
significant as this that has moved as rapidly through the Foreign
Relations Committee with as studied an approach as under the leadership
of my colleague from North Carolina.
Mr. President, nearly 6 years ago, as chairman of the Subcommittee on
European Affairs, I managed the ratification of the original CFE
agreement for the then Democratic chairman of the committee. The treaty
was, I believe then and I believe now, a monumental achievement,
capping some two decades of negotiations between NATO and Warsaw Pact
countries to establish a secure conventional military balance in
Europe. I would argue, it was sort of the prelude to the undoing of our
adversary at the time, the Soviet Union and the Warsaw Pact.
Mr. President, the treaty has succeeded as few other arms reduction
measures have. Since 1992, it has fundamentally altered the military
landscape from the Atlantic to the Urals, dramatically reducing the
number of pieces of equipment that could be used to wage war.
In the last 5 years, the CFE Treaty has resulted in the removal or
destruction of more than 53,000 pieces of heavy equipment, including
tanks, artillery, armored combat vehicles, attack helicopters, and
combat aircraft.
Since 1991, of course, the political face of Europe has changed
dramatically. These developments had an impact on the relevance and
potential durability of the CFE Treaty. Particularly effective were the
so-called flank limits. To the average citizen out there, a flank limit
is not much different than a flank steak or flank cut. The fact of the
matter is, it has real significance; it is very important.
The flank limits were included to prevent military equipment that was
removed from Central Europe from being concentrated elsewhere. We set
limits on how much equipment could be set on that inter-German border,
which we necessarily focused on for so many years. As that equipment
was removed or destroyed, what we did not want to have happen is to
have the Soviets take that equipment and move it into the flanks,
moving it on the Turkish border or moving it up by Norway and having a
predominance of force accumulated there.
After the collapse of the Soviet Union, Russia began to argue that
the treaty, particularly the so-called flank limits, did not adequately
reflect its security needs in the flank zone. We had placed limits on
what type of equipment and how much could be placed in these flanks.
Had I a map, I would reference it, but the fact of the matter is, we
put limits on this. After the collapse of the Soviet Union, Russia
began to argue that the treaty, particularly the flank limits, did not
adequately reflect its security needs in the flank zone.
Put another way, all those folks in the Caucasus and Transcaucasus
are now independent countries. When this was negotiated, they weren't
part of the deal. They weren't part of the deal, and it was some Soviet
general in Moscow deciding what could and could not be done in those
countries.
Now the Russians come back and say, ``Hey, wait, this isn't the deal
we signed on to.'' Russell Long--a great Senator who the Senator from
North Carolina remembers well, but not nearly as well as the Senator
from West Virginia sitting behind me--one of Russell Long's many
expressions used to be, ``I ain't for no deal I ain't in on.'' All of a
sudden, the Russians realized that they had signed on to a deal that,
in a strong way, they were no longer in on, as it related to what was
left of the Soviet Union.
Consequently, the NATO alliance agreed to negotiations on revising
these flank limits, and the result was the agreement before us now
known as the Flank Document that was signed by 30 states parties--a
fancy term for saying 30 countries--to the treaty in Vienna on May 31,
1996. Reiterating the point made by my friend from North Carolina, this
was signed a year ago, 1996. I believe that our negotiators, while
meeting some Russian concerns, did an excellent job of protecting the
interests of this country and the democracies on the northern and
southern flanks of the former Soviet Union.
The CFE Flank Document removes some areas from what we call the old
flank zone, but maintains constraints on equipment both in the new
flank zone and in the old one. There are also limits on armored combat
vehicles in each area that were removed from the old flank zone so as
to prevent any tremendous concentration of equipment in any one place.
We all are concerned about Russian troop deployments outside its
borders, Mr. President. We cannot allow Moscow to coerce its
independent neighbors into accepting the presence of foreign forces on
their soil or into giving up their own rights to military equipment,
which would now be folded into this total limit.
But I believe the Flank Document and the resolution of ratification
now before the Senate addresses these concerns and recognizes that
sovereign countries must have the right to refuse Russian demands.
Indeed, the chairman and I have found common ground on most of the
issues in this resolution.
There are a total of, if I am not mistaken, 14 conditions, Mr.
President. Two of these conditions of ratification, however, I think
are extraneous and give me some concern. Of the 14, there are only two
that I would flag for my colleagues, and I am not going to move to
strike either one of them. I am not going to move to do anything about
it. I just want to make the point of why I think they are unnecessary
or counterproductive.
The first is condition 5, which includes a provision calling for a
special report on possible noncompliance of the CFE Treaty by Armenia.
I regret that this provision was included in the resolution at the
insistence of the majority, but I am pleased that we have reached an
agreement through the efforts of Senator John Kerry and Senator
Sarbanes--and I am sure if they reached an agreement they must have run
it by the distinguished Senator from West Virginia or it would not have
been agreed to--to mitigate the one-sided nature of this original
agreement.
More troubling, though, is condition 9. I will not speak more about
condition 5 in the interest of time. Condition 9 also is insisted upon
by the majority, and I note from a brief discussion, while working out
yesterday out of the Senate environs with my distinguished friend from
Virginia, that he feels very strongly about, and I happen to disagree
with him on it.
Condition 9 requires the President to submit an agreement which will
multilateralize the 1972 Anti-Ballistic Missile Treaty to the Senate
for advice and consent. Put another way, there is a condition placed on
here, very skillfully, I might add, by my friends who have concerns
about the ABM Treaty that has nothing to do with this flank agreement.
I was of the view it should not be included as part of a condition to
this treaty. I did not have the votes. I must say to my friend from
North Carolina, it is not merely because I hope I am a gentleman that I
am not attempting to remove the condition, I do not have the votes to
remove the condition, so I am not going to attempt to do something that
I know will not prevail. But, I would like to point out, the condition
is titled ``Senate Prerogatives.'' The title is interesting but, I
think, inaccurate.
I take a back seat to no one when it comes to Senate prerogatives. As
a matter of fact, it was the Byrd-Biden amendment attached to the INF
Treaty. We have been jealous of the protection of our constitutional
obligations and responsibilities. With all due respect, and it sounds
self-serving, but I take a back seat to no one in the Senate in terms
of protecting the constitutional obligations and responsibilities of
the Senate. But in this case, I do not
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think we have a prerogative to exercise, notwithstanding condition 9 is
called ``Senate Prerogatives.''
The issue involves two powers: recognition of successor states and
the power to interpret and implement treaties, both of which are
executive functions.
Mr. President, it is undisputed that the President has the exclusive
power, under the powers of article 2 of the Constitution, to recognize
new states. I am not going to take a long time on this, so don't
everybody worry I am in for a long constitutional discussion; I am only
going to spend another 3 or 4 minutes, but I want to make the point for
the Record. Under article 2, section 2 of the Constitution, the
President and the Senate have a shared duty to ``make treaties.'' But
once the treaty is made, it is the law of the land, and the President,
under article 2, section 3, has the duty to take care that it is
faithfully executed.
In exercising this duty, it is for the President to determine whether
a treaty remains in force, a determination that, of necessity, must be
made whenever a state dissolves.
So what are we talking about here? We had an ABM Treaty and CFE
Treaty with the former Soviet Union. The Soviet Union dissolved. And
the question remains, all those constituent countries that are now
independent countries, is the President able to recognize Ukraine, for
example, and, as a consequence, recognize the Ukrainians' assertion
that they want to be part of the ABM Treaty? They were part of it when
they were part of the whole Soviet Union, but as the constituent parts
broke apart, the question was: As each individual country within that
whole signs on to the continued commitment to ABM, does that require
ratification by the United States Senate with each of them again? I
would argue, and I will argue at a later date--I am sure we will hear
more of this--that it does not require that. It is not a Senate
prerogative.
In the case before us, the ABM Treaty, the President has the power to
declare whether Russia and the other New Independent States inherit the
treaty obligations of the former Soviet Union, provided those states
indicate a desire to do so and provided that the succession agreement
effects no substantive change in the terms of the treaty.
Both the Bush and Clinton administrations exercised this power
following the breakup of the Soviet Union, Yugoslavia, Czechoslovakia,
and Ethiopia as it relates to other issues, not as it relates to ABM.
Moreover, it bears emphasis that the two arms control treaties, the CFE
Treaty and the INF Treaty, were multilateralized by the executive
action without the advice and consent of the Senate. By definition, we
are all here, we are not asking for multilateralization of the flank
agreement. It is somewhat curious that we say ABM requires the Senate
to have a treaty vote on every successor nation, but on CFE, which we
all like and we have no substantive disagreement on, we are not asking
for that.
So the point I am making is that this condition has nothing to do
with CFE and it is more about whether you like ABM or do not like ABM,
not about who has what constitutional responsibility, I respectfully
suggest.
I agree with my colleagues on the other side of the aisle and the
other side of the issue in one respect, that this is the subject of
legitimate debate. But the debate, which I am confident we can win on
the merits, can readily be conducted at another time on a more germane
subject than a treaty that it has nothing to do with. Nonetheless, the
majority insisted upon this extraneous condition, and I think I can
count votes.
I will never forget going to former Chairman Eastland as a young
member of the Judiciary Committee asking for his support. He sat behind
his desk, I say to the chairman of the committee, and said, ``Did you
count?'' I didn't understand what he said.
I said, ``I beg your pardon, Mr. Chairman?''
He took that cigar out--I was asking to be chairman of the
Subcommittee on Criminal Laws, because Senator McClellan had just
passed away and, for years, it had been his job. It was a contest
between me and another Senator.
I was looking at him, and he said, ``Did you count?'' I seriously did
not understand what he was saying. ``I beg your pardon?'' I said. I
tried to be humorous. I said, ``Mr. Chairman, I don't speak Southern
very well.'' He smiled and looked at me, and he took the cigar out of
his mouth, and said, ``Son, when you have counted, come back and talk
to me.''
Well, I learned to count. The reason I am not contesting this now, as
I said, I counted. I do not have the votes at this moment to remove
condition 9 and still get this treaty up and out of here in time. So I
will reserve that fight for another day.
Despite the inclusion of condition 9, I will strongly support the
flank agreement because of its integral role in protecting American
interests in maintaining security and stability in Europe. Indeed, the
Flank Document we will be voting on is an important bridge to the
broader revision of the CFE Treaty now under discussion as we talk
about the enlargement of NATO. Those talks will allow us to achieve
further reductions in military equipment in Europe and ensure that the
confidence-building measures embodied in the CFE Treaty remain in
place.
Mr. President, the CFE Treaty is just one component of the
architecture of arrangements, including NATO, the Partnership for
Peace, the Organization for Security and Cooperation in Europe, all of
which are designed to ensure that in the post-cold war era, the
European nations remain free and independent and are partners in a zone
of security and prosperity.
But by maintaining the integrity of the CFE Treaty, we maintain the
forum in which an enlarged NATO will make clear to Russia that our
objective is stability in Europe, not military intimidation.
Ratification of the flank agreement is a modest but important step
toward the new European security system.
I urge my Senate colleagues to do two things--thank the chairman of
the full committee for expediting this, and when we get very shortly to
a vote on it, to vote their advice and consent to ratification.
I thank again the chairman of the full committee.
I reserve the remainder of my time.
Mr. HELMS. I thank the Senator from Delaware.
How much time do I have?
The PRESIDING OFFICER. The Senator has 41 minutes 42 seconds.
Mr. HELMS. I yield 8 minutes to the distinguished Senator from
Virginia [Mr. Warner].
Mr. WARNER. Mr. President, I thank my friend and colleague, the
senior Senator from North Carolina. May I join others in urging that
the Senate give its advice and consent to this very important treaty, a
treaty brought forward by the leadership of the chairman and the
distinguished ranking member at a critical time in the ever-increasing
debates regarding Europe, whether it be NATO expansion or other issues.
I was prepared today to go toe to toe with my good friend, the
ranking member of this committee, the Senator from Delaware, on the
question of condition 9. I have spent a good portion of my career in
the Senate on the question of the ABM Treaty. I think it was a very
wise addition to this particular resolution of ratification, a
provision, condition 9, that addresses the issue of the
multilateralization of the ABM Treaty.
I go back to the Fiscal Year 1995 Defense Authorization Act, section
232. It was my privilege to introduce that provision as an amendment to
that bill. That provision provided:
The United States shall not be bound by any international
agreement entered into by the President that would
``substantively'' modify the ABM Treaty unless this agreement
is entered [into] pursuant to the treaty making power of the
President under the Constitution.
That is section 232 of the Fiscal Year 1995 Defense Authorization
Act. That is precisely, really a recitation, of what condition 9
requires--follow the law of the land. President Clinton signed section
232 into law, and yet, time and again, this President claims exemptions
from the requirement to submit to the Senate agreements which clearly
change the rights and obligations of the United States under the ABM
Treaty.
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For years, I have joined a number in this Chamber, primarily the
Republicans, in insisting that the ``demarcation'' agreement, which the
administration is currently completing in negotiations with the
Russians, represents again another ``substantive'' change to the ABM
Treaty that must be submitted to the Senate. I am pleased that the
administration has at long last acknowledged that very fact and has
agreed to bring that demarcation agreement before this body for the
advice-and-consent responsibility entrusted to the Senate by the
Constitution.
I, like the Senator from Delaware, was concerned about the use of the
word ``prerogative'' in condition 9. I view the advice and consent role
as an obligation of the U.S. Senate under the Constitution of the
United States. It is an obligation that we must exercise in cases such
as the demarcation and the multilateralization of the ABM Treaty.
I ask my colleagues to indulge me just for a minute. I go back to May
1972, a quarter of a century ago. As a much younger man, I was
privileged to be a part of the delegation, headed by the President of
the United States, that went to Moscow for the summit which culminated
in the signing of SALT I, the ABM Treaty and other agreements. The
particular matter for which I had primary responsibility was the
Incidents at Sea Executive Agreement, which was also signed at that
time.
I had been in the Pentagon as Secretary of the Navy during the course
of the negotiation of the ABM Treaty. As such, I have spent a good deal
of my career, beginning with the inception of that treaty to date, in
trying to analyze it and defend it. I think it is a valuable part of
our overall arms control relationship with the then-Soviet Union and
today Russia. But there is a limit to which that treaty should be
applied to other activities that this Nation must now undertake--
activities that were not contemplated at the time the treaty was
negotiated.
One of those activities--and I do not know of a more important one--
is to protect the men and women of the Armed Forces when they are
deployed abroad, and any number of civilians in their positions abroad,
from the ever-growing threat of short-range ballistic missiles.
Hopefully, this year we will forge ahead and finally clarify--
clarify--the misunderstandings about what the ABM Treaty was intended
to do and what it was not intended to do on this issue. I have talked
to so many of my colleagues who were in that delegation a quarter of a
century ago who had a primary responsibility for the ABM Treaty. One
after one they will tell you that they never envisioned at that time,
from a technological standpoint, this new class of weapons, namely, the
short-range ballistic missiles, and that that treaty was never intended
to apply to those missiles.
As the Senator from Delaware said, there will be another day on which
we can have that debate on the issue of that treaty's application to
the current research and development now underway to develop and deploy
those systems desperately needed in the Armed Forces of the United
States to protect us from the short-range threat, an ever-growing
threat, which is proliferating across the world.
The Foreign Relations Committee did precisely what it should have
done: included in as condition 9 the protection of future debate on the
ABM Treaty such that the U.S. Senate can make the decisions as to
whether or not there are successions to the ABM Treaty by other
nations.
The ABM Treaty was contemplated, negotiated, and signed as a
bilateral treaty. It was approved by the Senate as a bilateral treaty.
It strains credibility for the administration to now argue that the
conversion of that treaty from a bilateral to a multilateral treaty is
not a ``significant'' change to warrant Senate advice and consent.
At the time this treaty was negotiated, no one involved in the
negotiations could ever have envisioned the dissolution of the Soviet
Union in their lifetimes--much less within 20 years. Likewise,
technical advances in the areas of both strategic offensive and
defensive systems could not be adequately anticipated. That is why the
treaty has provisions for amendment to adapt it to changing times
circumstances, and technologies. I am personally of the view that this
treaty should have been--and still needs to be--amended to allow the
United States to protect its citizens, stationed abroad from short-
range ballistic missile attacks which were not contemplated 25 years
ago. But I also strongly believe that any amendment which alters U.S.
rights and obligations--any substantive changes--must be submitted to
the Senate for advice and consent.
We could argue for days about the international legal principles and
requirements in this area. But one thing is clear--domestic law on this
issue is unambiguous. Section 232 of the fiscal year 1995 Defense
authorization bill, which I referred to earlier, clearly requires the
President to submit for Senate advice and consent any international
agreement which substantively modifies the ABM Treaty.
It is clear that multilateralization would constitute a substantive
change to the ABM Treaty. For 25 years, this has been a bilateral
treaty. If new parties are added, the geographic boundaries, which
govern many aspects of the treaty, would be changed. Existing U.S.
rights under the treaty to amend it by bilateral agreement would be
lost. The draft memorandum of understanding on succession, the three
new states parties will be given full voting rights in the Standing
Consultative Commission [SCC], the body which supervises treaty
implementation and negotiates amendments to the treaty. According to
the guidelines of the SCC, changes to the ABM Treaty can only be made
through a consensus of the parties. That means that any one of these
three new states parties could block United States efforts to amend
this treaty to allow for effective missile defenses to deal with
current threats--even if the Russians agree to the changes.
The succession issue with the states of the former Soviet Union has
been handled on a case-by-case basis. In the case of the CFE Treaty and
the START I Treaty, the Senate specifically addressed the succession
issue during consideration of the resolutions of ratification for those
treaties. INF succession was handled without Senate involvement. It is
clear that the matter of succession--far from being a legal absolute--
is, at best, a murky legal issue.
The unique status of the ABM Treaty was highlighted in the 1994
legislation requiring Senate advice and consent of any international
agreement that ``substantively'' modifies the ABM Treaty. This is not
the case for the hundreds of other treaties we had in effect with the
former Soviet Union.
Since the ABM Treaty reinterpretation debate of the late 1980's, the
Democrats have insisted that any change to a treaty that differs from
what was presented to the Senate at the time of ratification must be
resubmitted to the Senate or the Congress for approval.
Multilateralization of the ABM Treaty is not simply a reinterpretation
of the treaty, it is a substantive change to the treaty text. By the
Democrats own standards, such a change should clearly require Senate
advice and consent.
Mr. HELMS addressed the Chair.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. HELMS. Mr. President, I appreciate very much the comments by the
distinguished ranking member of the Foreign Relations Committee. I must
say for the record that I also enjoy the privilege of working with him.
I think the committee has been more active in the last year or two than
it has been for some time. But in any case, I am grateful to Senator
Biden.
Mr. President, the history of the succession agreements to the
various treaties concluded between the United States and the Soviet
Union further supports the case for Senate consideration of ABM
multilateralization. In only one case was advice and consent not
required for multilateralization on an arms control treaty. Because the
INF Treaty carried the so-called negative obligation of not possessing
any intermediate-range nuclear missiles, that treaty could be
multilateralized without altering any treaty terms or imposing any new
treaty rights or obligations on the United States or new parties.
Multilateralization of the START I Treaty under the Lisbon Protocol,
on the other hand, required Senate advice
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and consent because this change had clear implications for the treaty's
text and object and purpose. The Lisbon Protocol determined the extent
to which countries other than Russia would be allowed to possess
strategic nuclear weapons. Similarly, ratification of the Lisbon
Protocol also effectively determined successorship questions to the
Treaty on Non-Proliferation of Nuclear Weapons, NPT. Under that
protocol, Belarus and other countries agreed to a legally binding
commitment to join the NPT as nonnuclear weapons states. Thus when the
Senate offered its advice and consent to the Lisbon Protocol, it
approved successorship to both the INF and the START treaties.
Finally, the Senate specifically considered the question of
multilateralization of the Treaty on Conventional Armed Forces in
Europe under condition 5 of the resolution of ratification for the CFE
Treaty.
Under article II, section 2, clause 2 of the Constitution, the Senate
holds a co-equal treaty-making power. John Jay made one of the most
cogent arguments in this respect, noting:
Of course, treaties could be amended, but let us not forget
that treaties are made not only by one of the contracting
parties, but by both, and consequently that as the consent of
both was essential to their formation at first, so must it
ever afterwards be in order to alter . . . them.
Now, my colleagues of the Senate may disagree on the wisdom of
continuing the national strategy embodied in the ABM Treaty. Where I
hope all of our colleagues could agree, however, is on the imperative
of upholding the constitutional responsibilities of the Senate, as
reposed in this body by the Founding Fathers.
Mr. Justice Frankfurter stated:
The accretion of dangerous power does not come in a day. It
does come, however, slowly, from the generative force of
unchecked disregard of the restrictions that fence in even
the most disinterested assertion of authority.
I know the administration has demonstrated nothing if not disregard
for the Senate's constitutional authority. The Senate's duty with
regard to the issue of ABM multilateralization is, I believe, Mr.
President, clear.
I yield the floor.
How much time does the distinguished Senator from Texas want?
Mrs. HUTCHISON. I do not know what the time limitations are. At least
10 minutes, in your range, or I could cut it back.
Mr. HELMS. If the Senator could do with 8 minutes, I think I could
cover everybody, and the distinguished President pro tempore.
Mr. THURMOND. I need about 10 minutes. I can ask for extra time.
Mr. HELMS. Why don't you proceed.
Mrs. HUTCHISON. I will be happy to yield to the distinguished
Senator.
Mr. HELMS. I say to Senator Thurmond, you have been yielded to by the
distinguished Senator from Texas.
Mrs. HUTCHISON. Would you like to go next, Mr. Chairman?
Mr. THURMOND. Whatever suits you.
Mrs. HUTCHISON. After him, if I could have 8 to 10 minutes.
Mr. HELMS. Yes.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. THURMOND. Mr. President, I rise in support of the CFE Flank
Document resolution of ratification. My support of the CFE Flank
Document is based largely upon the 14 conditions that the Foreign
Relations Committee attached to the resolution of ratification. I am
particularly pleased that the Foreign Relations Committee included
condition 9, which deals with the Senate's prerogatives on
multilateralization of the ABM Treaty. This has been an issue with
which the Armed Services Committee has been deeply involved for many
years.
I would strongly oppose any effort to dilute or eliminate condition 9
from the resolution of ratification. Condition 9 does not take a
position, as such, on the ABM Treaty or treaty succession. It simply
seeks to protect the Senate's prerogatives in case the treaty is
substantively changed. I find it difficult to believe that any Member
of this body would be opposed to this objective. In my view, it is a
solemn and fundamental obligation of a Senator to consistently guard
the rights and prerogatives of the Senate, regardless of which
political party may occupy the White House at any given time.
Mr. President, although international law is ambiguous on the
question of treaty succession, the U.S. Constitution and statutory law
is clear. As section 232 of the National Defense Authorization Act for
fiscal year 1995 states, ``the United States shall not be bound by any
international agreement entered into by the President that would
substantively modify the ABM Treaty unless the agreement is entered
pursuant to the treaty making power of the President under the
Constitution.'' This provision originated as an amendment sponsored by
Senator Warner of Virginia and Senator Wallop of Wyoming, two of the
Senate's foremost experts on the ABM Treaty.
Notwithstanding the administration's assertion that treaty succession
is an executive branch responsibility, or any argument that one might
derive from international law, the real issue is simple and clear. Only
one overarching question needs to be answered: Does multilateralization
of the ABM Treaty constitute a substantive change to the treaty? If so,
the President has no choice, under the law and the Constitution, other
than to submit such an agreement to the Senate for advice and consent.
Ironically, those who have asserted that the President does not need
to submit the multilateralization agreement to the Senate for advice
and consent have not even attempted to answer the one relevant
question: Is it a substantive change or not? Instead they have chosen
to base their views strictly on ambiguity-laden international law and a
simple assertion of executive prerogative.
If one carefully analyzes the issues associated with ABM Treaty
multilateralization, it is difficult to avoid the conclusion that the
ABM Treaty will indeed be modified in several substantive ways. The
conferees to the fiscal year 1997 Defense Authorization Act recognized
this in stating that ``the accord on ABM Treaty succession, tentatively
agreed to by the administration, would constitute a substantive change
to the ABM Treaty, which may only be entered into pursuant to the
treaty making power of the President under the Constitution.'' This
conference language, which was supported overwhelmingly on a bipartisan
basis, was the culmination of 2 years of effort by several key Senators
on the Armed Services Committee: I have been joined in this fight by
Senator Lott of Mississippi, Senator Warner of Virginia, Senator--now
Secretary of Defense--Cohen of Maine, and Senator Smith of New
Hampshire, as well as other stalwart supporters of the Senate's
prerogatives.
Why would multilateralization of the ABM Treaty constitute a
substantive change? First, because the basic strategic rationale for
the treaty would be altered. The ABM Treaty was intended to be part of
an overarching arms control regime for regulating United States-Soviet
competition in strategic offensive forces. But under a multilateral ABM
Treaty, some members will have neither strategic offensive nor
strategic defensive forces, and hence no direct stake in the treaty's
subject matter. Overall, the United States faces strategic and
political circumstances that are vastly different than those that
existed in 1972 when the ABM Treaty was signed. The Senate must
carefully consider how these bear on the issue of treaty succession.
Second, the ABM Treaty will change from a treaty between two equal
parties to one in which different parties have different rights and
obligations. Some states will be entitled to a deployed ABM system,
others will not. The United States will also face four states rather
than one at any future negotiation concerning the future of the treaty.
This clearly diminishes the weight of the American vote in the Standing
Consultative Commission and increases the complexity of seeking changes
or clarifications to the treaty.
Third, the actual mechanics of the ABM Treaty will be altered by
multilateralization since the treaty is largely defined in terms of
``national territory.'' Some items that are regulated by the treaty,
including large phased array radars, are currently located outside the
national territory of any of the states that plan to accede to the ABM
Treaty. Also, those former Soviet States that opt not to stay in the
treaty would be legally permitted to deploy an unlimited ABM system
even though their national territory
[[Page S4456]]
was formerly covered by the treaty's definition of Soviet ``national
territory.''
Mr. President, these are only a few of the ways in which a
multilateral ABM Treaty would constitute a substantive change from the
original treaty. The evidence is overwhelming. For the Senate to do
anything other than to insist on its right to provide advice and
consent to such an agreement would be an abandonment of its rights and
obligations. I urge my colleagues to stand together on this important
constitutional prerogative of the Senate. The executive branch must not
be permitted to circumvent the Senate on a matter of such fundamental
importance.
The PRESIDING OFFICER (Mr. Allard). The Senator from Texas is now
recognized for 8 minutes.
Mrs. HUTCHISON. Mr. President, I thank the distinguished chairman of
the committee and, of course, the distinguished senior Senator from
South Carolina.
Mr. President, there is no Senate responsibility I take more
seriously than the obligation we have to advise and consent on
treaties. We are discussing two treaties today that mark the past and
the future of arms control. It is interesting to me that they have
become linked in the manner before us today. I commend the
distinguished chairman of the Foreign Relations Committee for his
vision in this effort.
The Conventional Forces in Europe Treaty is a pillar of post-cold-war
security in Europe. That treaty, over a decade in negotiation and
finished by President Bush in 1990, solidified NATO's victory in the
cold war by dramatically reducing the size of the conventional forces
arrayed against each other.
That treaty also restricted the areas on the flanks of Europe where
the Soviet Union or its successors could place troops and equipment.
This particular provision was one of the most difficult to negotiate
because it was one of the most meaningful. By restricting the size of
forces on Europe's northern and southern flanks, we greatly reduced the
likelihood that the Soviet Union or its successors could conduct an
effective assault on western forces.
Because of the importance of this provision, it is with great
reluctance that I support the changes to the agreement before us today,
which will relax these flank restrictions.
It is true that over 50,000 pieces of equipment limited by the CFE
Treaty have been destroyed or removed since the treaty went into
effect. Nevertheless, with the changes in the agreement regarding the
flanks of Europe, we will all have to be watchful that we not slide
back too far from the high standard we set for ourselves and for Russia
in the original treaty.
Mr. President, I will also say that we will have to reevaluate our
actions when we learn the full details of the NATO-Russia agreement
just announced today. For example, I am hopeful that we did not place
unilateral restrictions on our own ability to deploy troops in the
potentially expanded area of NATO responsibility in exchange for Russia
support for NATO expansion. I light of the changes we are making to the
CFE Treaty--permitting Russia to deploy forces in areas that have been
off-limits until now--such a unilateral restriction on our own ability
to move troops around Europe would be shortsighted indeed.
Even with these reservations, though, I am willing to support the
treaty document before us today because of condition 9, which will
require the President to submit to the Senate for ratification any
substantive changes to the Anti-Ballistic Missile Treaty. My
support for an effective, global ballistic missile defense system
greatly outweighs the concerns I may have with changes to the CFE
Treaty.
Mr. President, if the CFE Treaty is a forward looking treaty that
reflects the new realities of post-cold-war Europe, the ABM Treaty is
an outdated document that harkens back to an era that is thankfully
behind us. The ABM Treaty was with the USSR. Now that the cold war is
over it is restricting the inexorable march of technology, a technology
that I am convinced will make ballistic missiles obsolete.
The Clinton administration wants to bring new countries into this
outmoded agreement. If the United States was limited in its ability to
deploy an effective missile defense when the treaty was with Russia
alone, how much more restricted will we find ourselves when there are
half-a-dozen or more new members in this treaty?
The document before us today does not prejudice the Senate's action
regarding the ABM Treaty. It only says that if the President wishes to
permit other countries to join this treaty, then the Senate must
fulfill its constitutional role to advise and consent on such a change
to the treaty. Colleagues will have the opportunity at that time to
debate the merits of bringing new countries into the treaty or simply
letting this treaty fade into the history it represents.
While I support the latter, we aren't deciding that matter today.
Today, we're simply asserting our prerogative to advise and consent on
treaties. No Member of this body should be comfortable that any
administration would want to make major modifications to a treaty
without Senate approval.
I urge my colleagues to support the resolution of ratification before
us today and assert their rights as a Member of the U.S. Senate. I
commend Senator Helms once again with the wisdom and leadership, a
staunch defender always, of senatorial prerogatives and U.S. national
security.
I commend all of those who are going to stand for the rights of the
Senate and therefore the people, to change any potential treaty that
this country has committed itself to, because we will keep our treaty
obligations and we must make sure that the people of our country are
informed and support any changes in those treaties.
I yield back the balance of my time.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. BIDEN. I yield 12 minutes to the distinguished Senator from
Massachusetts.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized
for 12 minutes.
Mr. KERRY. Mr. President, before the Senate this afternoon is the
task of taking the appropriate action, in fulfillment of the Senate's
vital constitutional advice and consent responsibility and power, to
adapt the Conventional Forces in Europe [CFE] Treaty to the constant
change that affects our world--change which has been more sweeping and
profound in Europe in the past 7 or 8 years than at any time in the
preceding 40.
In 1990, after years of grueling negotiations to control the
historically unprecedented conventional weaponry arrayed on opposite
sides of the Iron Curtain in Central Europe, the CFE was signed. It
entered into force in November of 1992. The long, difficult journey
that led to the CFE treaty included one failed effort--the Mutual and
Balanced Force Reduction Treaty episode--where negotiators eventually
had to throw up their hands and acknowledge defeat in their efforts.
But fortunately that failure was not permitted to become permanent.
With U.S. leadership, efforts recommenced, and the CFE is the result.
The CFE treaty is the first in the post-World War II period to
succeed in limiting and reducing conventional weaponry. While
understandably strategic weapons treaty negotiations captured greater
attention, since those negotiations addressed weapons of mass
destruction each of which can annihilate great numbers of people and
large cities, the CFE arguably addressed the greater threat to peace in
Europe, because I believe it always was more likely that any conflict
there would start as a conventional conflict. The CFE negotiating
effort was successful in large part because it approached the issue of
obtaining multilateral agreement to limitations of key offensive-
capable weapons systems on an alliance-to-alliance basis--addressing on
the one side the armaments possessed by not only the Soviet Union but
all the Warsaw Pact nations taken together, and on the other side the
armaments possessed by all the NATO nations taken together.
The CFE placed numerical limits on the numbers of five types of
weapons systems critical to effective offensive operations which each
alliance could possess in the Atlantic-to-the-Urals region of Europe
where the Warsaw Pact confronted NATO: tanks; artillery pieces; armored
combat vehicles; attack aircraft; and attack helicopters. It also
contained sublimits based on
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geographical regions--in realization of the fact that while a certain
number of the covered items might not be a threat to peace or indicate
diabolical intentions if spread evenly across the entire geography of
each alliance, that same number if massed in a subregion could be
threatening indeed and could indicate intentions to launch an attack or
engage in other destabilizing behavior.
The treaty has been a notable success. It has resulted in reductions
of over 50,000 items of heavy military equipment, verified by an
intrusive verification regime that has included nearly 3,000 on-site
inspections conducted to date under treaty auspices. It has worked and
worked well. It is not a prospective treaty about which we all must
guess or predict. It is a here-and-now, real-world treaty that has
resulted in tangible reduction in armaments and consequently in real
reduction in the threat of conflict. It is a treaty that we would do
well to preserve and protect.
Its underlying premise remains valid. If buildups of a critical mass
of the categories of treaty-limited equipment can be prevented, it will
be very difficult for any nation to launch an attack against another
with a significant prospect of success. And even if a nation seeks to
flaunt the treaty's terms, and engage in a buildup of these weapons
systems for the purpose either of conducting offensive military
operations or engaging in a form of extortion, the treaty's
verification procedures will reveal those efforts so that appropriate
diplomatic and military responses can be made, and its terms give the
other parties to the treaty the means to condemn violative activities
and to enlist the community of nations in efforts to prevent escalation
into conflict.
The implementation and ongoing administration of every treaty result
in cases of different interpretations and various disagreements, and
the CFE Treaty is no exception. But the mechanisms included in the
treaty for resolving such conflicts or disagreements have worked
reasonably well. And one can presume that the treaty would have
continued to make a significant contribution to the security of Europe
and, in turn, of the globe in a relatively smooth manner had the world
remained as it was when the treaty was negotiated and entered into
force. But, of course, the world has not stood still. The Soviet Union
imploded. The Warsaw Pact disintegrated. Some of the very nations and
armies that stared across the Iron Curtain at NATO's forces and their
key United States components have become great friends of the United
States and other NATO nations. Several of these appear to be on the
verge of becoming a part of NATO itself. That, of course, is a matter
of considerable controversy which should be and I trust will be debated
separately and thoroughly. But our focus today is or should be on the
CFE treaty.
In addition to the disappearance of the Soviet Union and the Warsaw
Pact, and the realignment of some of the former pact nations with the
North Atlantic Alliance, other components of the Eurasian security
picture have changed dramatically. No longer is Russia's biggest
concern the need to be ready for full-scale battle with NATO troops on
the German and Benelux plains. Today ethnic conflict in some provinces
and efforts of other provinces to obtain independence require much
greater Russian attention. The ferment in the Middle East, and
activities in Iran and Turkey south of the Russian Caucasus region also
are of greater concern to Russia.
Not surprisingly the alterations in Russia's view of its own security
picture resulted in alterations in what it believed to be the vital
disposition of its security forces. Other nations of the former Soviet
Union, including Ukraine, and of the now-defunct Warsaw Pact were faced
with unanticipated anomalies resulting from the new maps of Eurasia.
The changes occurred in and affected primarily one of four zones to
which the CFE Treaty applies, the so-called flank region which consists
of Norway, Iceland, Turkey, Greece, Romania, Bulgaria, Moldova,
Georgia, Azerbaijan, Armenia, and parts of Ukraine and Russia.
To address the desires by Russia, Ukraine, and others to reallocate
their forces, but to ensure that those reallocations protect the
accomplishments and security provided by the CFE, the parties to the
CFE Treaty negotiated the so-called flank agreement consisting of
amendments to the original CFE treaty. The parties agreed to the flank
agreement on May 31, 1996. It will enter into force if approved by all
CFE Treaty party states by May 15, 1997.
The agreement does not change numerical limits for either of the two
major sides of the post-World War II European alignment. Instead, it
adjusts the boundaries of the flank, providing Russia and Ukraine more
flexibility than they had before with respect to deployment of
equipment limited by the treaty.
The flank agreement is in NATO's security interest, and,
specifically, it is in the security interests of the United States.
Without the adjustments it provides, it is likely Russia and possibly
Ukraine would feel so impeded in their ability to meet their own
national security requirements that they either would leave the treaty
altogether or fail to comply with some of its provisions. The
implications of neither of these outcomes would be acceptable, and
would weaken or destroy the protections and added security offered by
the CFE Treaty.
The judgment that the flank agreement is in our national interest is
not just a judgment of our diplomatic community. It is fully endorsed
by our Armed Forces leadership. On April 29 of this year, Brig. Gen.
Gary Rubus testified:
In the judgment of the Joint Chiefs of Staff, the Flank
Agreement is militarily sound. It preserves the CFE treaty
and its contribution to U.S. and Allied military security.
The additional flexibility permitted Russia in the flank zone
does not allow a destabilizing new concentration of forces on
the flanks of Norway, Turkey and other States in that area.
Moreover, the agreement includes significant new safeguards,
including greater transparency and new constraints on flank
deployment:
The benefits of this agreement are apparent. The Foreign Relations
Committee last week approved the resolution of ratification by a
unanimous vote of 17-0. I am confident that a great majority of
Senators approve of the flank agreement. But I am very troubled by how
some in the majority seem determined to transform the constitutional
treaty advice and consent process into an obstacle course.
The Foreign Relations Committee last week approved the resolution of
ratification by unanimous vote. Mr. President, as the Foreign Relations
Committee last week approved this by unanimous vote of 17 to 0, it
doesn't mean that there were not some reservations. I just want to
speak to them.
I am confident that the great majority of our colleagues will support
the Flank Agreement. But I am troubled by the way in which some have
transformed the constitutional treaty advise and consent process into
something of an obstacle course that involves things that aren't
directly in the treaty.
The conditions for ratification which the majority required before it
would permit the Foreign Relations Committee and then the full Senate
to perform the advice and consent role, fall into four rough
categories. I find several of them--primarily those which the Senate
appropriately and routinely attaches to treaties--beneficial and
desirable. I find several others reflect a degree of fear and anxiety
on the part of some Members, the basis for which I cannot ascertain--
but which, all things told, appear unlikely to do fundamental damage to
what should be our objective here: To keep the CFE Treaty in operation
in order to continue to derive its benefits to security in Europe and a
reduction in the risk of conflict there.
The third category, Mr. President, consists of a condition whose
objective may have been desirable but which inadvertently or
inadvisedly singles out one nation for implicit criticism when the
kinds of actions it is implicitly criticized for taking may place it in
the company of other nations in its region, and when it would be more
appropriate to address these situations as a group so that all nations
are held accountable to the same treaty standards. I speak of paragraph
F of condition 5 which, in the form approved by the committee, singles
out Armenia and requires a report directed solely at its activities and
whether they comply with the terms of the treaty. I will address that
matter separately, and will
[[Page S4458]]
offer an amendment to establish what I believe is an important balance
and equity with respect to the entire Caucasus region.
Then, Mr. President, there is condition 9 which forms a special
category all its own. I understand why a Senator who has not been
deeply involved in the Senate's processing of the CFE Flank Agreement
may be puzzled by the fact that condition 9 pertains to the ABM Treaty.
In fact, I have been involved in the effort to move the Flank Agreement
to Senate approval, and I cannot discern a reasonable or defensible
rationale to link the issue of multilateralization of the ABM Treaty to
action on the CFE Flank Agreement except for the reason of taking
something that ought to happen that is important to our security and
linking it to something that is not necessarily yet thoroughly
considered by the Senate.
But even so, I do believe I understand what is going on here.
Proposed condition 9 is hostage-taking, pure and simple. I think there
are some who have a fundamental aversion to arms control agreements and
want the United States to simply go it alone in the interdependent
world of the last decade of the 20th century. Unfortunately they insist
that unless the President concedes to their position on the unrelated
issue of ABM multilateralization, they will refuse to let the United
States ratify the CFE flank agreement.
I readily agree that the issues surrounding the ABM Treaty are both
vital and very controversial. The Committee on Foreign Relations, with
the contribution of the Committee on Armed Services, should devote
considerable time and energy to thoroughly exploring those issues, and
then the Senate as a whole should carefully determine how to proceed
with respect to them.
But I want to register the strongest possible dissent from this
tactic of hostage-taking. In my judgment these issues are separate and
ought to be treated separately. Treaties are fundamentally different
than bills on which this Congress acts on a daily basis. We ought to
approach our advice and consent responsibility--a solemn constitutional
duty--with more abstract side bar process. We should not load up
resolutions of treaty ratification with essentially nongermane
amendments.
Further, purporting to resolve the complex and very important ABM
issues by attaching a condition to a wholly unrelated treaty--and
without thoroughly airing and deliberating on those issues at the
committee level via hearings and other means--is risky and ill-advised.
Because I understand the power of the majority, perhaps the most
significant feature of which is its considerable control over
determining whether and when the Senate will address important issues,
and because I believe it is of great importance that this flank
agreement be considered and acted on by the full Senate, and that the
Senate do so prior to the May 15 deadline which is imminent, I did not
seek because of my aversion to condition 9 to derail the Foreign
Relations Committee's action on the resolution of ratification last
week, but I expressed my concerns which were published as additional
views in the committee's report on the resolution.
Mr. President, as Senators, every one of us is sworn to uphold the
Constitution. In my judgment that requires maintaining the separation
of powers which plays so critical a part in maintaining the equilibrium
of our unique form of government which has permitted it to survive and
function successfully for over 200 years. Maintaining the separation
requires a careful allegiance to preserving and protecting not only the
constitutional obligations, responsibilities, and prerogatives of the
legislative branch, and the Senate in particular, but also of the
judicial and the executive branches.
We in this Chamber are most accustomed, understandably, to rising to
the defense of the responsibilities, role, and prerogatives of our own
branch and our own Chamber. I have joined many times in such efforts.
Indeed, the very fact that the CFE Flank Agreement is being considered
by the Senate is attributable to an effort to assert that the Senate
properly should act on that agreement under the treaty clause of the
Constitution because it substantively alters the original CFE Treaty.
Itis my view, and, I believe, the view of most Senators on both sides
of the aisle who have carefully examined the issue, that the ABM
Demarcation Agreement also makes a substantive change in a treaty to
the ratification of which the Senate previously gave its advice and
consent--thereby necessitating that U.S. ratification of the
Demarcation Agreement can occur only if the Senate gives its advice and
consent by means of the complete constitutional process.
But the ABM Succession Agreement is a different matter entirely. It
effects no substantive change in the ABM Treaty or any other treaty. It
does one and only one thing: It codifies the status with respect to the
treaty of the states which succeeded to the rights and obligations of
the former Soviet Union. It is a function of the executive branch, not
the legislative branch, to determine if new nations which descend from
a dissolved nation inherit the predecessor nation's obligations such as
those under a treaty. This is not a matter of defending a Senate right
or obligation or prerogative; the Senate has no right, obligation, or
prerogative to defend with respect to determination of succession.
This principle has been illustrated on many occasions by its
application. Recently, and of direct relevance, it has been applied in
a number of circumstances with regard to the dissolution of the Soviet
Union.
I believe I understand the objective here, Mr. President, and I do
not believe it is the defense of a nonexistent constitutional principle
or a nonexistent constitutional right or prerogative of the Senate.
This is a wolf in sheep's clothing--a maneuver by opponents of the ABM
Treaty to gain strategic advantage in their quest to demolish the ABM
Treaty. The objective is to give them one additional shot at killing
the Treaty.
I am prepared for the debate on the ABM Treaty. I look forward to
thoroughly assessing whether this treaty continues to serve our
Nation's security interests as I strongly believe it has well served
those interests since its ratification. I look forward to examining in
detail the probable reactions in Russia and elsewhere if we abandon the
treaty.
But let me return to an earlier point that ABM opponents have shown
they are willing to ignore. The Senate is not currently debating the
ABM Treaty. The matter that is before us today is the Conventional
Forces in Europe Treaty Flank Agreement. Condition 9 is an unwise,
unnecessary, destructive digression from what we should be doing here
today. It is yet another example of distressing political expediency
too often illustrated in this Chamber in recent years. Fortunately,
that expediency rarely has sunk to the level of sacrificing a vital
constitutional principle--such as the separation of powers--for the
sake of tactical gain. But, Mr. President, let there be no mistake: It
is sinking to that level today in condition 9.
When we do such things, Mr. President, there is a price to be paid.
Either we who serve here today will pay that price at a later time, or
those who follow in our footsteps will pay that price. We disserve the
Constitution we are sworn to uphold when we permit that to occur.
I must remark, Mr. President, on the peculiar and troubling silence
of the administration on this issue. The administration, by position
and motivation, is best situated to defend the constitutional
prerogatives and responsibilities of the executive branch. And yet, for
some unknown reason, perhaps a tactical calculus, or exhaustion, or
distraction--for some reason--the administration never even joined this
issue. I say to the administration: Despite the appearances given by
your silence and inaction on this issue, this truly does matter in the
long run. And this administration, and others to follow it, will regret
this day. Much more is being ceded here than the authority to decide
what nations properly hold the obligations of the ABM Treaty that
previously were held by the Soviet Union.
Mr. President, I strongly support the ratification of the Flank
Agreement. Before we vote on the resolution of ratification, I will
offer the amendment I referenced earlier to address the Caucasus
region, which I hope will be
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approved. Then, despite the reservations about condition 9 I have
enunciated, because of how important I believe the CFE Treaty is and
will continue to be to European security and stability and therefore to
world security and stability, I will vote to approve the resolution of
ratification and urge all other Senators to do so.
questions of treaty adherence in the caucasus
Mr. President, the Conventional Forces in Europe Treaty was
negotiated to limit the numbers and geographical distribution in Europe
of five key types of offensive-capable weapons systems. The treaty
contains sublimits for portions of the Atlantic-to-the-Urals region
covered by the treaty that apply to the five types of treaty-limited
equipment.
The treaty, when it was negotiated, was focused on the protracted
cold war and the confrontation at the Iron Curtain that ran through
Central Europe. Its design was to make it less likely that the cold war
would turn hot, by making it more difficult to amass sufficient
quantities of the weapons systems that would be needed for a successful
attack of one side on the other, or, at the very least, to amass such
weaponry without the other side being aware of the preparations for
such an attack. The weapons limitations and the transparency are the
treaty's keys.
But as the astonishing events of the late 1980's and early 1990's
unfolded, the entire structure of Europe changed in such a fashion as
to be virtually unrecognizable. For the most part, this was a very
welcome change. For the first time in 40 years, there was no tense
face-off of the world's greatest armies at the Warsaw Pact/NATO border.
But the disintegration of the Soviet Union, which was one of the most
prominent of the changes in the region, removed the authority and
control that had kept a lid on ethnic conflicts and territorial
disputes in several regions of what had been the Soviet Union. Ancient
tensions and hatreds soon began to bubble to the surface, and nowhere
moreso than in the Caucasus region.
The Russian province of Chechnya sought to secede from Russia. Ethnic
Armenians in the Nagorno-Karabakh region of Azerbaijan sought to gain
independence so they could align with Armenia. Abkhaz separatists in
Georgia have fought a long-running civil war with the central
government.
Wars and revolutions are fought with weapons, of course. All parties
to these conflicts have done all in their power to increase their
firepower. Not surprisingly, these actions, when they involve treaty-
limited equipment, have implications for the CFE Treaty even though
contending with such situations was not the primary purpose for which
the treaty was negotiated.
Responding to an allegation made publicly by a Russian Army general
who now serves in the Duma, the majority included in the text of the
resolution of ratification of the CFE flank agreement, as a part of
condition 5 titled ``Monitoring and Verification of Compliance,''
paragraph F, which is a requirement that the President submit a report
to the Congress regarding ``whether Armenia was in compliance with the
treaty in allowing the transfer of conventional armaments and equipment
limited by the treaty through Armenian territory to the secessionist
movement in Azerbaijan.''
Mr. President, wherever there are credible allegations or concerns
that the provisions of any arms control treaty have been violated,
those allegations or concerns should be explored thoroughly and the
truth determined. That, certainly, applies in this case. However, I
believe this portion of condition 5 is too limited in its scope, and
because of that limitation, leaves the impression that the Senate is
not as concerned about the effects on the treaty of arms transfer and
acquisition actions in other areas of the Caucasus region.
If we are to carefully examine alleged violations of treaty
provisions in one specific location in this conflicted region, we
should direct the same level of inquiry at all portions of the region.
We know that arms buildups in other Caucasus locations have violated
provisions of the CFE Treaty. Some of those violations, in fact, have
been openly acknowledged.
It is my belief that the Senate should address this matter directly,
and do so by expanding the scope of the report that will be required by
paragraph F of condition 5. Together with Senator Sarbanes, and with
the support of several other Senators, I have prepared an amendment to
do this. The amendment inserts a new subparagraph ii requiring that the
President's report address ``whether other States Parties located in
the Caucasus region are in compliance with the Treaty.'' The President
also must indicate what actions have been taken to implement sanctions
on any of these states found to be in violation.
I believe this change will make this provision of the resolution of
ratification more useful. Because the report the Congress will receive
will give a more complete picture of the level of compliance with or
violation of the CFE Treaty in the Caucasus region, the United States
can formulate a response that will be more complete and suitable.
Amendment No. 279
(Purpose: To require a compliance report on Armenia and other States
Parties in the Caucasus region)
Mr. KERRY. Mr. President, the amendment that I send to the desk is an
amendment that seeks very simply to create the equity and balance that
I sought with respect to the question of Armenia.
I believe that we have an agreement on this language. It will simply
reflect that we ought to hold all nations in the area to the same
standard.
In my judgment, it is self explanatory. I believe it has been
approved by both sides as a consequence of that.
Mr. President, I send the amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Massachusetts (Mr. Kerry), for himself,
Mr. Biden, Mr. Sarbanes, Mr. Abraham, and Mrs. Feinstein,
proposes an amendment numbered 279.
Mr. KERRY. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Strike subparagraph (F) of section 2(5) and insert the
following:
(F) Compliance report on armenia and other states parties
in the caucasus region.--Not later than August 1, 1997, the
President shall submit to the Committee on Foreign Relations
of the Senate and the Speaker of the House of Representatives
a full and complete classified and unclassified report
regarding--
(i) whether Armenia was in compliance with the Treaty in
allowing the transfer of conventional armaments and equipment
limited by the Treaty through Armenian territory to the
secessionist movement in Azerbaijan;
(ii) whether other States Parties located in the Caucasus
region are in compliance with the Treaty; and
(iii) if Armenia is found not to have been in compliance
under clause (i) or, if any other State Party is found not to
be in compliance under clause (ii), what actions the
President has taken to implement sanctions as required by
chapter 11 of part I of the Foreign Assistance Act of 1961
(22 U.S.C. 2295 et seq.; relating to assistance to the
independent states of the former Soviet Union) or other
provisions of law.
Mr. KERRY. Mr. President, I believe we have an agreement on this
particular amendment.
I thank the distinguished chairman of the Foreign Relations Committee
for working, as he always does, in order to find a common ground in
these matters.
The PRESIDING OFFICER. The question is on agreeing to the amendment
of the Senator from Massachusetts.
The amendment (No. 279) was agreed to.
Mr. KERRY. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. BYRD. Mr. President, I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. HELMS. Mr. President, I yield 6 minutes to the distinguished
Senator from New Hampshire, [Mr. Smith].
The PRESIDING OFFICER. The Senator from New Hampshire is recognized.
Mr. SMITH of New Hampshire. Mr. President, I thank the distinguished
chairman of the Foreign Relations Committee.
Mr. President, I rise in strong support of the resolution of
ratification reported by the Senate Foreign Relations
[[Page S4460]]
Committee. I want to specifically commend the distinguished chairman,
Senator Helms, for his outstanding leadership in moving this resolution
promptly and responsibly.
I also want to commend the Foreign Relations Committee for including
condition No. 9, which would require the administration to submit any
agreement that would multilateralize the ABM Treaty to the Senate for
advice and consent. This is an extremely important issue, Mr.
President, and this provision ensures that the Senate retains its
constitutional prerogatives to advise and consent on international
treaties.
By way of background, there is an existing statutory requirement,
with precedent, that any substantive change to an international treaty
must be submitted to the Senate for advice and consent, as prescribed
under the Constitution.
The Clinton administration has spent the better part of the past 4
years negotiating changes to the 1972 Anti-Ballistic Missile [ABM]
Treaty. Foremost among these changes are a demarcation agreement that
would restrict the performance of certain theater defense programs, and
a multilateralization agreement that would expand the ABM Treaty to
include the Republics of the former Soviet Union. It is this
multilateralization agreement that condition No. 9 would address.
Mr. President, condition No. 9 has become necessary because the
administration refuses to submit the multilateralization agreement to
the Senate for advice and consent. They have rightly conceded that both
a demarcation agreement and the CFE flank limits agreement are
substantive changes requiring approval of the Senate, but they
adamantly refuse to submit multilateralization for approval.
The administration asserts that the executive branch alone has the
authority to recognize nations and determine the successor states on
treaties whose participants no longer exist. They also argue that
multilateralization is merely a clarification, not a substantive change
to the ABM Treaty.
It is a very significant change that will fundamentally alter both
the nature of the treaty and the obligations of its parties. It is most
certainly a substantive change, and as such, it must be submitted to
the Senate for advice and consent.
Mr. President, let me elaborate on exactly why a multilateralization
agreement would represent a substantive change. The ABM Treaty was
signed by the United States and the Soviet Union. It was premised on
the policy of mutual assured destruction and it codified the bipolar
strategic reality of the cold war. All negotiations on compliance and
all discussions concerning amendments to the treaty were to be
bilateral in nature, with any decisions being approved by each side.
The negotiating ratio was 1 to 1, the United States versus the Soviet
Union.
However, one of these two parties has now ceased to exist. There is
no longer a Soviet Union. If the treaty is multilateralized, and
thereby expanded to include multiple parties on the former Soviet side,
it will dramatically change this negotiating ratio, both theoretically
and practically.
Instead of the 1-to-1 ratio that the treaty was premised on, it will
become at a minimum a 1-to-4 ratio, of the United States versus Russia,
Khazakstan, Ukraine, and Belarus, and perhaps even a 1-to-15 ratio of
the United States versus all 15 of the former Soviet Republics. We just
don't know and the administration isn't saying.
Under a multilaterlization agreement, each of these former Soviet
Republics would have an equal say in negotiations, even though they
clearly would have unequal rights and unequal equipment holdings. For
instance, only the United States and Russia would be permitted to field
an ABM system, but other nations would be free to deploy ABM radars and
other related components of a system. Further, while the ABM Treaty
prohibits defense of the territory of a nation, the term territory is
being redefined to mean the combined territories of all former Soviet
Republics who choose to join the treaty.
What does this mean? It means that instead of the treaty applying to
the territory of an individual nation, it applies to a number of
nations, unevenly and in a manner that is very detrimental to the
United States. For example, Russia could legally establish new early
warning radars on the territory of other States, well beyond the
periphery of Russia, while the United States is restricted to its own
borders. Compounding this inequity, the territory and borders of the
so-called former Soviet Union could change over time because the
multilateralization agreement allows the admission of additional
republics even after entry into force.
The bottom line, Mr. President, is multilateralization would by
definition and practice create a fundamental asymmetry in the ABM
Treaty. Rather than having two parties with equal offensive strategic
forces and defensive capabilities, this agreement would create a
tremendous imbalance. For us to negotiate any changes to the treaty,
such as an agreement to permit multiple sites or to change the
location, we would now need to convince all the participating Republics
of the former Soviet Union rather than just one.
In essence, each of those countries would be able to veto our
position at any time. And they would individually leverage the vote in
the Standing Consultative Commission for more foreign aid, or trade
recognition, or concessions on a variety of issues. Whenever we finally
met any single Republic's demands, another could instantly leverage
similar concessions. When would it end? Never. This scenario is very
troubling. It is troubling there are people in the Senate who would be
willing to accede to that kind of situation. At the very least, it will
cause huge complications in our process for negotiating changes to the
treaty.
There can be no question, an agreement to multilateralize the ABM
Treaty is a substantive change to the ABM Treaty, plain and simple. It
must be submitted for advice and consent. Condition 9 merely says that
before the CFE Flank Limits Agreement can take effect, the President
must certify that he will submit the ABM Treaty multilateralization
agreement to the Senate for advice and consent.
Nothing in this condition will require any renegotiation of any
provision of the CFE Flank Limits Agreement or, for that matter,
require any renegotiation of any provision of the ABM Treaty
multilateralization agreement. This condition will not affect any other
country or any other treaty or the cause of strategic stability in any
respect. That is a fact.
Contrary to the parochial appeals of the administration, it is not
going to kill NATO expansion. It will not kill START II. And it will
not kill the CFE Treaty. In fact, all the President has to do is send
us a letter this afternoon certifying he will submit the agreement to
the Senate for advice and consent and we will be done with it. Case
closed.
I am pleased the Senate has seen fit, thanks to the tremendous
leadership of Chairman Helms, to adopt this very important condition.
Senator Helms, as he does so many times and often on the floor of the
Senate and in private meetings on issues, stands sometimes alone. I am
proud to be standing with him on this very important issue, and I think
future generations will thank him for his leadership when we get to the
point where this treaty does take effect. People will be thanking him
for his leadership on the multilateralization issue.
I thank the Chair.
Mr. HELMS. I thank the Senator from New Hampshire. I assure him it is
an honor to serve in the Senate with him.
Mr. President, I yield 5 minutes to the distinguished Senator from
Nebraska.
The PRESIDING OFFICER. The Senator from Nebraska.
Mr. HAGEL. Mr. President, I am pleased to support this CFE Flank
Treaty today. It is good for the security of the United States and the
security of our NATO allies.
This treaty modifies the Conventional Forces in Europe Treaty. This
treaty was reached in 1990 before the breakup of the Soviet Union and
the Warsaw Pact. The modifications in CFE flank restrictions contained
in this treaty are reasonable, and we all should support them.
Under Chairman Helms' guidance, the Foreign Relations Committee added
a number of important conditions to this treaty. These conditions
[[Page S4461]]
clarify parts of the treaty that could be construed as granting special
rights to Russia to intimidate its neighbors, but most importantly are
the clarifications that nothing in the CFE Flank Treaty grants to
Russia any right to continue its current violations of the sovereignty
of several neighboring states.
I am pleased that these clarifications were fully bipartisan
conditions that received the support of our distinguished Foreign
Relations ranking member, Senator Biden.
There is, however, one remaining condition that caused some
controversy. This is condition 9, which requires the President to
submit to the Senate for ratification another treaty modification, the
ABM multilateralization treaty. This is not a question of support or
opposition to the ABM Treaty. This is purely a matter of the
prerogative of the Senate, of whether or not to adhere to the clear
intent of the Constitution of this country.
During negotiations over the Chemical Weapons Convention, Senator
Helms and Majority Leader Lott succeeded in convincing the President to
submit to the Senate two out of three pending treaty modifications that
the President had intended to implement as executive agreements. One of
those treaty modifications, the CFE Flank Treaty now before us today,
and another, the ABM Demarcation Treaty, is before the Foreign
Relations Committee where it will receive serious consideration.
Only one treaty modification has yet to be submitted to the Senate,
the ABM multilateralization treaty agreed to in Helsinki by Presidents
Clinton and Yeltsin. It is right to require that treaty to be submitted
as well.
Again, this issue is merely the constitutional obligation of each of
us in this body to give our advice and consent on the ratification of
treaties, not whether this treaty modification is good or bad.
I again congratulate Chairman Helms, Senator Biden, and the
distinguished majority leader. I am proud of the leadership they have
shown on this treaty and on the constitutional prerogatives of the
Senate.
Mr. President, I yield my time.
Mr. HELMS addressed the Chair.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. HELMS. I have a little housekeeping function. I ask what I am
about to do will not be charged to either side.
The PRESIDING OFFICER. Without objection, it is so ordered.