[Congressional Record Volume 143, Number 63 (Wednesday, May 14, 1997)]
[Senate]
[Pages S4466-S4471]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
The Flank Document and an Adapted CFE Treaty
In short, I agree with a number of the cautions presented by various
witnesses with regard to the impact of the flank agreement on both
Russia and a number of the States of the former Soviet Union, as well
as its implications for bordering Western States. Thus, I am supportive
of most of the conditions in the Committee resolution.
But I also believe that, on balance, this flank agreement is a useful
contribution to the larger effort to adapt the original CFE agreement
to the changed circumstances we now confront in Europe. I believe that
the Flank Agreement must be viewed in that context as well.
The original CFE agreement has been a useful instrument for winding
down the military confrontation in Europe that was a principal feature
of the cold war. The United States is now presented with an opportunity
to adapt that treaty to the new security situation in Europe in a way
that could, in my judgment, facilitate both NATO enlargement and
improved NATO-Russian cooperation. Because the former Soviet Army, and
indeed some elements of the current Russian Armed Forces, always
disliked CFE and considered it inequitable, some have argued that
amending or adapting it now would be a concession to Russia or a price
the United States should not have to pay. In my view, it is in the
interest of the United States, NATO, and, for that matter, Russia to
update the CFE Treaty as the only way to ensure its continued viability
and its stabilizing influence in the Europe of the next century.
In light of the dramatic developments that have occurred in Europe
since the treaty was negotiated, the CFE Treaty should not be exempted
from the kind of change that is occurring in so many other European
political, economic and security institutions. Thus, it is wholly
appropriate to eliminate the bloc-to-bloc character of the original
treaty in favor of national equipment ceilings and to reduce the amount
of military equipment that will be permitted throughout the treaty
area.
In short, I tend to analyze the benefits and costs associated with
the CFE Flank Agreement not only on their own merits, but also in terms
of their contributions to overhauling the entire treaty; that is one of
the contexts in which I believe we must review the CFE Flank Agreement.
I am supportive of the general direction of NATO's recent proposals
for adapting the CFE Treaty. As a general matter, it would emphasize
the need for reciprocity in the adjustments that are made and encourage
transparency.
However, I would raise some concerns relating to three aspects of the
NATO proposals for an adapted CFE regime and suggest that we need to
bear them in mind as we consent to ratification of the CFE Flank
Agreement.
First, NATO has proposed limits on the ground equipment that could be
deployed in the center zone of Europe, defined as Belarus, the Czech
Republic, Hungary, Poland, Slovakia, Ukraine--other than the Odessa
region--and the Kaliningrad region of Russia. This could be viewed as
singling out potential new members of NATO for special restrictions,
thus saddling them de facto with second-class citizenship within NATO.
It is one thing for NATO to make a unilateral statement, as it has
recently done, that it has, at present, no intention or need to station
permanently substantial combat forces on the territory of new member
states. It is quite another for it to accept legal limitations on its
ability to station equipment on the territory of these states as part
of an adapted CFE Treaty. While NATO would not be precluded from
stationing forces on the territory of these states, such deployment
would be constrained by the individual national ceilings which apply to
the equipment of both stationed and indigenous forces.
It is certainly useful to have such a limitation with respect to the
Kaliningrad region of Russia. With that exception, however, all of
Russian territory lies outside the central zone. While Russian forces,
permitted by a pliant Belarus to be stationed on its territory, would
presumably be subject to the national ceiling applicable to Belarus,
such a deployment could be viewed by Poland, for example, as an attempt
to intimidate it. This consideration needs to be taken into account by
NATO negotiators as they elaborate the terms of the NATO proposal for
adapting the CFE Treaty. It is possible that provisions covering
cooperative military exercises and temporary deployments in emergency
situations, as well as ensuring adequate headroom in the national
ceilings of the Central European States, may resolve this concern.
Secondly, this special central zone could be viewed as isolating
Ukraine. If Russia chose to build up forces in the old Moscow Military
District abutting Ukraine, then Ukraine could find itself unable to
respond because it is subject to the special provisions of the central
zone. It may be that in the negotiation of the revisions in the CFE
Treaty, some arrangement can be found to allay Ukrainian concerns by
some special limitation on Russia with respect to all or a portion of
the Moscow Military District.
Finally, in negotiating changes to the CFE Treaty, NATO negotiators
must keep in mind the possibility of further enlargement of NATO at
some
[[Page S4467]]
future date to include states beyond three or four central European
nations. It must ensure that whatever revised CFE limitations it
negotiates will permit NATO, should it so decide, to extend security
guarantees to these countries that will be credible and on which NATO
can make good, even under the provisions of a revised CFE Treaty.
In sum, the CFE Flank Agreement, if ratified, provides the first
building block to a revised CFE Treaty. NATO's proposals for an adapted
CFE Treaty are based on the assumption that the flank agreement will be
ratified. That being the case, it is appropriate that the Senate, in
consenting to the CFE Flank Document, not only judge it on its own
terms but also in terms of the contribution it can make to a revised
CFE Treaty.
Mr. KYL. Mr. President, Article II of the Constitution gave the
President and the Senate equal treaty making powers, stating that the
President ``shall have the power, by and with the Advice and Consent of
the Senate, to make Treaties, provided two thirds of the Senators
present concur.'' Substantive changes to treaties also require the
advice and consent of the Senate. John Jay made one of the most
persuasive arguments about this point, noting that, ``of course,
treaties could be amended, but let us not forget that treaties are made
not by only 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 to alter . . .
them.''
Condition 9 of the resolution of ratification for the CFE Flank
Agreement protects the Senate's constitutional role by requiring that
any agreement to multilateralize the 1972 ABM Treaty be submitted to
the Senate for advice and consent, since any such agreement would
substantively alter the rights and obligations of the United States and
others under the treaty. This condition is not the first expression of
the Senate's view on this issue, and would merely be the latest
addition to a clear legislative history.
Section 232 of the Defense Authorization Act for fiscal year 1995
clearly states that any agreement that substantively modifies the ABM
treaty must be submitted to the Senate for advice and consent.
The conference report accompanying the fiscal year 1997 Defense
Authorization Act built on the language in the 1995 Authorization Act
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.''
The conversion of the ABM Treaty from a bilateral to a multilateral
agreement represents a substantive modification of the treaty. First of
all, multilateralization changes the agreement by altering the
definition of territory, which is at the heart of the treaty. Article I
of the 1972 ABM Treaty states, ``Each Party undertakes not to deploy
ABM systems for a defense of the territory of its country.''
Under the terms of the memorandum of understanding on Succession to
the ABM Treaty, territory would now be defined as the ``combined
national territories of the U.S.S.R. Successor States that have become
Parties to the Treaty.'' The term periphery would also be changed to
mean the combined periphery of all the former Soviet states party to
the treaty. Thus, instead of the treaty applying to the territory of a
single nation, in the case of the former Soviet Union, it would apply
to a number of nations.
Multilateralization would also be a substantive change since it would
create a system of unequal rights under the treaty, wherein the New
Independent States of the former Soviet Union would be treated as
second class citizens. The ABM Treaty that the Senate agreed to 25
years ago created identical rights and obligations for each party.
Under the memorandum of Uunderstanding on succession, however, only two
of the potential parties to the treaty--the United States and Russia--
would be permitted to field an ABM system. Other nations, while
responsible for regulating ABM activities on their territory, would not
be allowed to deploy such a system. For example, Ukraine could locate
new early warning radars on the periphery of its territory, oriented
outward, but would not be permitted to protect its capital with an ABM
system.
The multilateralization of the ABM Treaty also undermines U.S.
efforts to promote the independence of the former Soviet republics. The
memorandum of understanding on succession states that the term capital
of the U.S.S.R. will continue to mean the city of Moscow. This
designation, in addition to granting the New Independent States
inferior rights under the treaty, and defining territory and periphery
as the combined total of the former Soviet states sends the wrong
message. It tells the New Independent States that they remain linked to
Russia, without equal rights.
Finally, multilateralization represents a substantive change to the
agreement since it would diminish U.S. rights and influence under the
treaty. New parties will surely be given a seat at the Standing
Consultative Commission [SCC], which interprets, amends, and
administers the ABM treaty. Under the 1972 ABM Treaty, the United
States could take actions through bilateral agreements with the Soviet
Union. By expanding the number of nations in the treaty, it will now be
necessary to reach multilateral consensus to interpret or amend the
treaty. One country, such as Belarus, could effectively block United
States actions or demand concessions, even if Russia and the other
parties to the treaty agreed with the United States. Negotiating
changes or common interpretations of treaty obligations with Russia is
a difficult task. Adding up to 11 new parties to the treaty will make
this process much more difficult.
In addition to the reasons I have cited as to why multilateralization
would substantively modify the ABM Treaty, and the legislative history
compelling the administration to submit the agreement to the Senate for
advice and consent, the way the Senate has considered succession
agreements for the various arms control treaties concluded between the
United States and the Soviet Union further supports the case for Senate
consideration of any ABM successorship document.
Since the breakup of the Soviet Union, the only arms control treaty
which was not re-submitted to the Senate for advice and consent due to
changes in countries covered, was the INF Treaty. This treaty carried a
negative obligation, namely not to possess intermediate-range nuclear
missiles. Since no treaty terms were altered and U.S. rights and
obligations remained unchanged, advice and consent was not necessary.
The resolution of ratification for the START I Treaty was accompanied
by a separate protocol multilateralizing the treaty, which was
submitted to the Senate for advice and consent.
This same protocol determined successorship questions for the Nuclear
Nonproliferation Treaty [NPT].
Finally, the Senate specifically considered the question of
multilateralization of the Conventional Armed Forces in Europe [CFE]
treaty under condition #5 of its resolution of ratification.
As I have discussed today, the addition of parties to the ABM Treaty
clearly represents a substantive modification of the treaty. The
Defense Authorization Acts passed by the Senate in 1995 and 1997, and
the history of how this body has considered succession agreements to
previous arms control accords with the Soviet Union strongly support
the submission of any ABM multilateralization agreement to the Senate.
Voting to require the administration to submit the ABM
multilateralization agreement for advice and consent, simply protects
the Senate's constitutional role in treaty making. Reasonable people
may differ over the merits of the ABM Treaty or the addition of one or
more countries to the agreement, but I believe all my colleagues can
agree that before this new treaty is implemented, the Senate needs to
fulfill its constitutional duty by considering whether to give its
advice and consent to this new agreement.
Mr. SHELBY. Mr. President, I rise in support of condition 9 of the
resolution of ratification of the CFE Flank Agreement.
Condition 9 simply confirms the Senate's role in treatymaking, as
established in the U.S. Constitution and reaffirmed in existing law.
Specifically, condition 9 restates the requirement, enacted as
section 232 of
[[Page S4468]]
the National Defense Authorization Act for fiscal year 1995, Public Law
103-337, that:
The United States shall not be bound by any international
agreement entered into by the President that would
substantially modify the ABM Treaty unless the agreement is
entered pursuant to the treaty making power of the President
under the Constitution.
Thus, this body is already on record supporting the preservation of
the Senate's constitutional prerogatives in this area.
In other words, the President may not unilaterally negotiate
substantive changes to the ABM Treaty without the advice and consent of
the Senate.
Frankly, I am surprised some of my colleagues, who in the past have
been strong supporters of this body's constitutional prerogatives with
respect to treaties in general, and the ABM Treaty in particular, are
arguing to strike condition 9.
Not only do the Constitution and U.S. law require Senate advice and
consent, but submission to the Senate is also consistent with recent
practice on the multilateralization of arms agreements with the Soviet
Union to include successor states.
Both the multilateralization of START I and the multilateralization
of the CFE Treaty were considered by the Senate when it acted on the
Lisbon protocol and the CFE Treaty itself.
Mr. President, some of my colleagues argue that the
multilateralization of the ABM Treaty is not a substantive change.
Consider the following:
The proposed changes would alter the basic rights and obligations of
the parties--the central issue in any contract or treaty.
Second, the proposed changes would modify the geographic scope and
coverage of the Treaty, and would do so by taking the extraordinary
step of defining Russia's national territory to include the combined
territory of other independent states of the former Soviet Union.
Third, the role and function of the Standing Consultative Commission
[SCC], in particular the ability of the United States to negotiate
amendments to the treaty to protect our national interests, would be
dramatically changed by the accession of new parties to the treaty with
effective veto power over treaty amendments.
Lastly, some of my colleagues have cited a Congressional Research
Service legal analysis that seems to suggest that the Senate has no
role in the process.
In response, I would like to point out that:
The CRS analysis concludes that an apportionment of the rights and
obligations of the U.S.S.R. under the ABM Treaty to its successor
states would not, in itself, seem to require Senate participation.
The CRS analysis goes on to say, however, ``arguably, a
multilateralization agreement could include matters that would alter
the substance of the ABM Treaty and require Senate advice and
consent.''
The administration's proposal clearly falls into the latter category.
It does much more than merely apportion the rights and obligations of
the U.S.S.R.
It apportions some rights to some successor parties--but denies them
to others, in effect creating two classes of parties. This asymmetry
and lack of reciprocity represents a clear departure from both the
legal and strategic assumptions embodied in the initial treaty.
It specifically permits Russia to establish ABM facilities on the
territory of other independent states. This is not an apportionment;
this creates a new right under the treaty.
The administration proposal admits to the treaty states which neither
have nor intend to have offensive or defensive strategic weapons, while
giving them virtual veto rights over the strategic posture of other
parties.
This brings me to the most important point: The administration's
proposal affects the rights of the United States to provide for our own
defense as we see fit.
It was to protect those rights that the Senate was given its advice
and consent role in the first place. The Senate must not abdicate its
role, now.
I urge my colleagues to support this provision.
Mr. DODD. Mr. President, today I rise to recognize the past success
of the CFE Treaty and to stress that, in order to continue that
success, this body must now offer its advice and consent for the CFE
Treaty's Flank Document.
Since the CFE Treaty entered into force in 1992 it has made Europe a
safer place; not just because it has resulted in the removal or
destruction of over 53,000 items of major military equipment; not just
because it has enabled international inspectors to undertake nearly
3,000 on-site international inspections; but, above all, because it has
fostered a sense of trust between NATO and Russia.
Now, as we move to build on that sense of trust and deal with Russia
as a new democratic state rather than an old arch-enemy, it is only
fair and proper that we address Russia's concerns with respect to some
of the arcane provisions of this treaty. The CFE Treaty, as written,
establishes zones on an old cold war map, a map drawn before the
breakup of the former Soviet Union. The pending revised Flank Document
updates alters some of the provisions of this treaty to reflect the
fact that we're now dealing with a new map.
Clearly the Flank Document does not address all the issues that we
must face in adapting the CFE Treaty to the new situation in Europe,
but it is a fine first step.
The conditions in the resolution of ratification are, for the most
part, thoughtful and necessary. I also support the amendment, offered
by Senators Kerry and Sarbanes, clarifying condition 5 as it relates to
Armenia.
Without this amendment, section F of condition No. 5 would have
required the President to submit a special report to Congress regarding
whether or not Armenia has been in compliance with the CFE Treaty, and,
if not, what actions the President has taken to implement sanctions.
Why should we single out Armenia? Without the amendment, the language
assumed that Armenia and only Armenia violated the CFE Treaty and
should suffer sanctions.
This amendment was added in the interest of fairness and simply asks
the President to examine compliance of all States Parties located in
the Caucasus region rather than singling out Armenia for special
treatment.
While the amendment ameliorates one problem with the resolution of
ratification, I have another misgiving about another condition that was
adopted by the Committee on Foreign Relations during consideration of
the treaty last week. Condition No. 9 would require the President to
certify that he will submit to the Senate, for its advice and consent,
the agreement to multilateralize the 1971 Anti-Ballistic Missile
Treaty.
I am of the same mind as my distinguished colleague, Senator Biden,
on this issue. While the Senate does not prohibit itself from attaching
unrelated conditions to resolutions of ratification, the Senate should
exercise some self-restraint in such important matters. The Founding
Fathers clearly distinguished the question of treaty ratification by
requiring a supermajority in such cases. This is not every day
legislation we're dealing with here. We're debating whether or not to
ratify a treaty, and this attached, unrelated condition really has no
place in today's debate.
In short, condition No. 9 links ratification of the Flank Document
with the unrelated, but controversial 1972 Anti-Ballistic Missile
Treaty debate. There are merits to both sides of that issue and that
debate will surely have its time. This is the wrong way to move that
debate forward.
Let us be certain of one thing: The Senate, with condition 9,
interferes with what has long been a function of the executive branch.
In the breakups of the U.S.S.R., Yugoslavia, Czechoslovakia, and
Ethiopia, when the new States took on the treaty rights and obligations
of their predecessors, no request for Senate advice and consent was
sought. I ask my colleagues: Why are we treating the ABM Treaty
differently?
In spite of my objection to condition 9, this treaty and its
resolution of ratification are too important to be bogged down today
over a debate on the ABM Treaty. I believe that the appropriate course
of action is to ratify the pending Flank Document this is a reasonable
initial adjustment to the CFE
[[Page S4469]]
Treaty. In doing so, we will also show Russia that we are willing to
work with Russian officials in facing legitimate concerns, and, most
importantly, we will maintain the viability of this valuable 30-nation
agreement.
Mr. HELMS. Mr. President, I yield the remainder of my time to the
distinguished Senator from Oregon [Mr. Smith].
The PRESIDING OFFICER. The Senator from Oregon is recognized.
Mr. SMITH of Oregon. Mr. President, I rise in appreciation for the
leadership of the chairman, the Senator from North Carolina, on this
issue and as member of his committee I rise in support of the
ratification of the CFE Flank Agreement.
The CFE Treaty has been remarkably successful in reducing the cold
war arsenals of conventional weapons in Europe. To date well over
50,000 tanks, artillery pieces and aircraft have been destroyed or
removed from Europe. This treaty serves as an important mechanism to
continue balanced force reductions in Europe, to build confidence among
European States, and to provide assurances that NATO expansion will in
no way threaten Russia.
In addition to the Europe-wide national ceilings on specific
categories of military equipment, the CFE Treaty established a system
of four zones inside the map of Europe with separate subceilings. The
three central zones are nested and overlapping, the fourth zone is the
flank zone. The flank zones include Russia's northern and southern
military districts that, during the cold war, were areas of heightened
tension with NATO. NATO has corresponding limits on its Northern and
Southern Flanks.
The CFE flank zones limit the amount of equipment a country is
permitted to deploy in certain areas of its own territory. The outbreak
of armed ethnic conflicts in and around the Caucasus in 1993 and 1994,
most notably the large scale offensive launched by the Russian
Government in Chechnya, led to Russian claims for the need to deploy
equipment in excess of treaty limits in that zone.
Under the CFE Treaty, mechanisms exist that would allow parties the
flexibility to make temporary adjustments in the size or location of
their military equipment holdings with proper notification. However, in
1994 the Government of Russia signaled its intention to violate the
treaty if such restrictions were not permanently relaxed.
In early 1995, Clinton administration officials adamantly insisted
that Russia must meet its obligations under the CFE Treaty on schedule.
By May of that same year, those rigid statements demanding compliance
soon collapsed into a frenzied effort to renegotiate the treaty on
terms that would be acceptable to Russia.
Aside from the embarrassing spectacle of Western concessions in the
face of Russian arms control violations, the NATO alliance was further
undermined by a United States-Russian side deal that failed to gain the
support of our allies. A key element of the final compromise on this
treaty is a confidential side statement which U.S. negotiators provided
to the Russian delegation in order to win their approval of the Flank
Document. An interim United States-Russian proposal--known as the
Perry-Grachev understanding--led to yet another embarrassing retreat,
this time from our own NATO allies. Finally, after 11th hour
negotiations, the agreement before us today was accepted by all 30
parties to the CFE Treaty.
In order to understand the process through which this treaty was
approved, I strongly recommend that any interested Senator review that
short document, which is available in the Office of Senate Security on
the fourth floor of the Capitol. After reading that document, the
purpose of the numerous restrictions contained in the resolution of
ratification--particularly paragraphs 3 and 6--should be abundantly
clear.
The committee resolution reverses the affects of this side agreement
by prohibiting United States participation in any negotiations which
would allow Russia to violate the sovereignty of its neighbors. As
further assurance, the resolution requires the President to certify,
prior to deposit of the instrument of ratification, that he will
vigorously reject any other side agreements sought by the Russians or
any other country.
I believe that the proper approach for the United States would have
been to insist on Russian compliance 18 months ago. However, the 30
parties to the treaty were willing to reach a compromise consisting of
the document before the Senate today. In all likelihood, if this treaty
is rejected, it will be renegotiated on less favorable terms. With that
in mind, and because of the 14 conditions included in the committee's
resolution of ratification, I am willing to recommend support for this
treaty.
The treaty is an acceptable first step in resolving the difficult
challenge of adapting a cold war era treaty to post-cold-war realities.
It is one part in a series of efforts underway to redesign the security
architecture of Europe, and as such it is an important step toward the
larger goal of NATO enlargement.
The CFE Treaty and the Vienna-based organization that oversees its
implementation are important pieces of the geopolitical landscape of
Europe and the former Soviet Union. With the end of the cold war,
decisions made in the context of the CFE Treaty affect U.S. security on
the margins. But for countries such as the Baltic States, Ukraine,
Georgia, and Azerbaijan, such decisions can affect the very sovereignty
of these newly independent countries.
Russia--still the largest military power in Europe--has used its
armed forces in recent years in both Georgia and Azerbaijan. Russia
uses its military presence in Ukraine and Moldova to influence the
sovereign governments of those states. Russian Government officials
have made open threats of military invasion against the Baltics.
Finally, less than a year ago, a bloody war in Chechnya was brought to
an end. That war was characterized by wide scale Russian atrocities,
the intentional targeting of civilians, and casualties possibly in
excess of 100,000 people--mostly innocent men, women, and children. It
is against this back drop that the countries on Russia's periphery
watch any revisions to the security guarantees contained in the CFE
Treaty.
Mr. President, I understand my time is up.
On this basis, this treaty has been negotiated. Again, with the
leadership of the chairman, I urge support from the Senate and thank
you for this time.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. HELMS. Mr. President, I want to pay my respects to the
distinguished Senator from Oregon [Mr. Smith]. He is the chairman of
the Europe subcommittee, and he has devoted an enormous amount of time
and effort to bringing this treaty forward. So he thanks me, but I
thank him. I am glad he is in the Senate. I am glad he is a member of
the Foreign Relations Committee.
I have been asked to advise Senators that the coming vote, after the
able Senator from West Virginia, Senator Byrd, completes his
presentation, the ensuing vote will be the last vote of the day.
I yield the floor and yield back such time as I may have.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. Mr. President, how much time remains before the vote?
The PRESIDING OFFICER. There is 3\1/2\ minutes for Senator Biden. You
have 30 minutes.
Mr. BYRD. I thank the Chair.
Mr. President, I want to commend the managers of the agreement for
the expeditious manner in which they have moved this agreement through
the committee and to the floor in time for the deadline of May 15 in
order that it not be subject to further action by the review conference
in Vienna. As I understand it, the agreement was not submitted to the
Senate by the Secretary of State until April 3, 1997. So I commend the
committee. But I also wish to express my concern over the rushed manner
in which the Senate has been forced to deal with this important treaty.
All of us in this Chamber know that treaties are not considered by the
House of Representatives, but they still have the effect and status of
being the law of the land of our Nation. They have as much or even more
importance, in some respects, and certainly as far as the Senate is
concerned, than any bill that is passed by both Houses and has been
subjected to the scrutiny of a conference committee.
[[Page S4470]]
In the case of treaties, the Senate considers them and, assuming that
the President exchanges the instruments of ratification, they become
the law of the land according to article 6 of the United States
Constitution. Therefore, the Senate has a special responsibility, in
the case of treaties, to exercise due caution and great care in dealing
with treaties, since there is no review or check by the other body.
Additionally, the Senate provides the only forum for the debate of the
provisions of treaties, and for informing the American people about
their content. Because of those realities, I am very concerned about
the increasing tendency in this body, as has been evidenced by the
Chemical Weapons Treaty that we recently passed, and now by this
treaty, to enter into time agreements that inadequately protect the
rights of all Senators to debate and amend treaties, but which also
fail to defend the rights of the American people to know what is in the
treaties. I think it is a bad trend. I think it should be curtailed,
because it does not allow Members to thoroughly study and debate these
complicate and important matters.
This committee report bears the date of May 9, 1997, when it was
ordered to be printed. That was last Friday. As I understand it, it was
made available to my staff on Monday of this week, and, so, I have had
between Monday and now to consider the contents of the committee
report. The committee report is where we naturally turn to understand
the content of the treaty or content of the bill or resolution, as it
were. Also, the courts turn to the phraseology of a committee report to
better understand the intent of the legislature when it passes on a
bill or resolution, or approves the resolution of ratification of a
treaty. So it is important that Members have an adequate opportunity to
study a committee report.
It is important that they have adequate opportunity to study the
hearings. It is likewise important that they have an adequate
opportunity to fully debate a treaty. Let me say, again, that according
to article 6 of the United States Constitution--the Constitution, this
Constitution--and the laws that are made in pursuance of this
Constitution and the treaties that are made under the authority of the
United States shall be the supreme law of the land--the supreme law of
the land.
Now, that is a very heavy burden to place upon the U.S. Senate, as it
is given the sole responsibility with respect to the Congress. As far
as the Congress is concerned, the Senate has the sole responsibility, a
very heavy responsibility, to study treaties, to conduct hearings
thereon, to mark up the treaties, to approve of conditions or
reservations, amendments, whatever, to those treaties. There is no
other body that scrutinizes the treaty. The Senate of the United
States--and that is one of the reasons why the Senate is the unique
body that it is--unique body, the premier upper body in the world
today, more so than the House of Lords in our mother country. And so it
places upon us as Senators a responsibility that is very, very heavy,
and we have a duty to know what is in a treaty before we vote on it. We
get these requests, and here we are backed up against a date of the
15th.
We had the same problem, in a way, I think, with respect to the
chemical weapons treaty. We are handed a unanimous consent request, and
it is a bit intimidating for one Senator to be faced with the prospect
that he will be holding up the business of the Senate if he holds up
the unanimous consent request. But that is our responsibility; that is
our duty.
So, I am increasingly concerned by the trend, as I have said, that we
are finding ourselves being subjected to. It did not just begin
yesterday or the day before, and I am not attempting to place any blame
for that. I am simply calling attention to the fact that we have the
responsibility as Senators under the Constitution, to which we swear an
oath to uphold to support and defend, we have a duty to know what is in
this treaty.
I am not on the committee, but I am a Senator, and I have as heavy a
duty as does the Senator from North Carolina or the Senator from
Delaware. That is the way I see it. I have as heavy a duty to know what
I am voting on, because this is the law of the land. It is not an
ordinary bill or resolution which can be vetoed by the President and
which, if signed into law by the President, can be repealed next week
or the following week or the next month. It is not that easy to negate
the effects of a treaty if we find we made a mistake.
Well, so much for that. Here we are debating the treaty. We have one,
two, three, four Senators on the floor debating an important treaty,
and we are confined within a 2\1/2\-hour time limit, I believe. Four
Senators. The law of the land. We should be debating the treaty without
a time limit, at least in the beginning.
I have been majority leader of the Senate twice during the years when
President Carter was President. I did not serve under Mr. Carter, I
served with him. Senators don't serve under Presidents, we serve with
Presidents. But I was majority leader during those 4 years. I was
majority leader in the 100th Congress. I was minority leader in all of
the Congresses in between 1981 and 1986.
We had some important treaties: INF Treaty, we had the Panama Canal
Treaties, and we did not bring treaties like this to the floor and ask
they be debated, no amendments thereon, and in a time limitation of 2
hours. And there was a request to cut that to 1 hour. We did not do
that.
When I came here, we debated treaties, and we took our time. At some
point, it is all right to try to get a time limitation after things
have been aired; it is all right to try to bring it to closure. But I
am somewhat disturbed and concerned by this trend that we find
ourselves being subjected to.
As to the substance of the treaty, I want to note that condition No.
8 dealing with treaty interpretation provides sound guidance on the
meaning of ``condition,'' which was authored by the distinguished
Senator from Delaware, Mr. Biden, now the ranking Democrat on the
Foreign Relations Committee, myself and former Senator Sam Nunn, the
former chairman of the Senate Armed Services Committee, and agreed to
on the Treaty on Intermediate Nuclear Forces in Europe of 1988. That is
the INF Treaty.
In that instance, I was under great pressure from my friends on the
Republican side of the aisle and great pressure from my friends on the
Democratic side of the aisle to bring up the treaty. As majority
leader, I thought it was my duty to wait until we had resolved some
critical problems that were estimated to be critical problems by the
Armed Services Committee and the Intelligence Committee before I
brought it up. We spent considerable time on the treaty.
Condition (8) states that ``nothing in [the so-called Biden-Byrd]
condition shall be construed as authorizing the President to obtain
legislative approval for modifications or amendments to treaties
through a majority approval of both Houses.''
Why was it necessary--I would like to ask this question of either the
manager or the ranking manager of the resolution--why was it necessary
for us to include condition (8), which certainly is a condition that I
strongly support? Why was it necessary for us to include condition (8)?
(Ms. COLLINS assumed the chair.)
Mr. BIDEN. Madam President, would the Senator like me to respond?
Mr. BYRD. Yes, I yield, Madam President.
Mr. BIDEN. The Senator makes a valid observation. The truth is, it
was not necessary, but I would like to give the explanation why it was
included, and the majority can speak even more clearly to it.
The concern on the part of the majority was that the Clinton
administration would use the Biden-Byrd language to justify sending a
modification of a treaty for a two-House approval by majority vote
rather than to the Senate for a supermajority vote when, in fact, it
was a modification that constituted an amendment to the treaty.
You never intended it for that purpose; I never intended it for that
purpose. The concern was, I think it is fair to say on the part of the
majority, that the Clinton administration might have attempted to read
it to allow them to avoid submission to the Senate for a supermajority
vote under the Constitution and just go to each House for a majority
vote.
Mr. BYRD. Does the manager wish to add anything?
Mr. HELMS. No, except to say Senator Biden has said it correctly.
[[Page S4471]]
Mr. BYRD. I am pleased that we have not done that. In other words, as
I understand the distinguished ranking manager, the administration
originally wanted the approval of disagreements through normal
legislative action by both bodies of the Congress which would, of
course, require only majority approval in both bodies. Was that the
concern?
Mr. BIDEN. Yes, it is. If I may say, Madam President, to the
distinguished leader, that in a November 25, 1996, memorandum for Alan
J. Kreczko, Special Assistant to the President and Legal Adviser to the
National Security Council, from Christopher Schroeder, Acting Assistant
Attorney General, there is this phrase on page 14 of that memorandum.
It says:
Because the Senate took the view that such ``common
understandings'' of a treaty had the same binding effect as
express provisions of the treaty for the purposes of U.S.
law, the Biden condition logically supports the proposition
that the President may be authorized to accept changes in
treaty obligations either by further Senate advice and
consent or by statutory enactment.
The next paragraph:
In light of these judicial and historical precedents, we
conclude the Congress may authorize the President, through an
executive agreement, substantially to modify the United
States' international obligations under an arms control (or
other political-military) treaty.
So the purpose, again, was to make it clear what you and I, as we
understood at the time that condition was added--I might add, I get
credit for it being called the Biden-Byrd condition, of which I am very
proud, but the truth of the matter is, after having suggested such a
condition early in the ratification process, I spent the next 7 months
in the hospital during the remainder of the whole ratification process,
and it was the distinguished leader, the Senator from West Virginia--it
really should be the Byrd-Biden condition. Nonetheless, that is the
reason. You and I never thought a majority vote in both Houses as a
simple piece of legislation would be sufficient to approve an amendment
to a treaty, and that was the concern expressed by the majority that it
be memorialized, if you will, in condition (8).
Mr. BYRD. I thank the very able ranking manager, and I compliment him
again and compliment the manager. I am glad that condition has been
made clear.
Secondly, I would like to ask the managers of the agreement their
reasoning behind their view of the collective impact of conditions (1),
(2) and (3). Let me preface what I have just said by reading excerpts
from these conditions.