[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

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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.

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  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.