[Senate Executive Report 105-1]
[From the U.S. Government Publishing Office]



105th Congress                                              Exec. Rept.
                                 SENATE

 1st Session                                                      105-1
_______________________________________________________________________


 
               FLANK DOCUMENT AGREEMENT TO THE CFE TREATY

                                _______
                                

                  May 9, 1997.--Ordered to be printed

_______________________________________________________________________


   Mr. Helms, from the Committee on Foreign Relations, submitted the 
                               following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                   [To accompany Treaty Doc. #105-5]

    The Committee on Foreign Relations to which was referred 
the Document Agreed Among the States Parties to the Treaty on 
Conventional Armed Forces in Europe (CFE) of November 19, 1990, 
adopted at Vienna on May 31, 1996 (``The Flank Document'')--the 
Flank Document is Annex A of the Final Document of the First 
CFE Review Conference, having considered the same, reports 
favorably thereon with 14 conditions and recommends that the 
Senate give its advice and consent to ratification thereof 
subject to the 14 conditions as set forth in this report and 
the accompanying resolution of ratification.

                                CONTENTS

                                                                   Page
  I. Object and Purpose...............................................1
 II. Article by Article Analysis......................................3
III. Background and Treaty Implications..............................13
 IV. Committee Action................................................19
  V. Resolution of Ratification......................................28
 VI. Additional Views of Senator Biden...............................56
VII. Additional Views of Senator John F. Kerry.......................58

                         I. Object and Purpose

    The Treaty on Conventional Armed Forces in Europe (CFE) 
marked a watershed in European history, securing through a 
legally-binding document a conventional military balance 
between the North Atlantic Treaty Organization and Soviet-
dominated Warsaw Pact. However, as the committee noted in its 
report on the CFE Treaty, Executive Report 102-22, the 
immediate effect of the CFE Treaty was far less than some had 
originally anticipated. First, many aspects of the agreement 
were rapidly overtaken by the fall of the Berlin Wall and 
German reunification, the revolutions that swept through the 
Soviet satellite countries and corresponding withdrawal of 
Soviet troops from Central and Eastern Europe, and ultimately 
the disintegration of the Soviet Union.
    A second factor diminishing the immediate import of the CFE 
Treaty was the withdrawal by the Soviet Union, prior to the 
Treaty's signature, of tens of thousands of tanks, artillery 
pieces, and armored combat vehicles from the treaty's area of 
application. At that time the committee noted that one of the 
reasons for this withdrawal was an effort to avoid the 
destruction requirements of the treaty. The Soviet Union pulled 
roughly 75,000 pieces of military equipment to storage depots 
east of the Ural Mountains (the Soviets eventually admitted to 
moving 57,300 treaty-limited items). For this reason, the CFE 
Treaty did not accomplish the elimination, as the Bush 
Administration had predicted, of 100,000 pieces of military 
hardware. Rather, Soviet/Russian eliminations ultimately 
totaled roughly one-quarter of that amount.
    While the CFE Treaty undeniably was intended to address the 
massive Soviet military menace to Western Europe, the committee 
believes it important not to focus narrowly on how events and 
actions overtook or undermined some of the treaty's intended 
effects. Such a narrow focus obscures the importance of the 
treaty for the post-Cold War world.
    The CFE Treaty remains a valuable contributor to 
conventional military stability in Europe and, most 
importantly, the volatile Caucasus region. Indeed, the most 
valuable aspects of the CFE Treaty to the United States are no 
longer provisions establishing numerical limitations on 
Western, Central, and Eastern Europe, but rather those 
provisions which cap the Russian military presence in the flank 
region--particulary in the areas adjacent to Lithuania, 
Estonia, and Latvia (in the north) and Ukraine, Moldova, 
Georgia, and Azerbaijan (in the south)--and those which provide 
nearly all of Europe a window on the disposition of forces 
within the other States Parties to the treaty. It is for this 
reason, and due to Russia's record of efforts to undermine and 
intimidate these countries over the last five years, that any 
proposed modifications to the CFE Treaty, and the flank 
provisions in particular, deserve careful attention.
    The Flank Document to the CFE Treaty, agreed to in Vienna 
on May 31, 1996, by the 30 States Parties to the treaty, is a 
legally binding agreement designed to accommodate primarily 
Russian concerns with regard to the Treaty's flank limits. The 
Document is to be considered an Annex to the Final Document of 
the CFE Review Conference, which has yet to be finalized and 
will contain additional amendments to the CFE Treaty designed 
to bring the treaty into conformity with the changed 
circumstances of the post-Cold War era.
    The Flank Document contains three basic provisions: (1) The 
removal of territory from the original flank region to reduce 
its size, thus permitting the concentration in a smaller area 
of the military equipment permitted; (2) additional constraints 
on equipment in the areas removed from the flank region; and 
(3) additional inspections, information exchanges and 
notifications.
    With regard to removal of territory from the original flank 
zone, the Flank Document will exempt from the requirements of 
subparagraph 1(A) of Article V over one-third of the Russian 
territory in the North Caucasus Military District (including 
the Volgograd and Astrakhan oblasts, part of the Rostov oblast, 
and part of Krasnodar kray, including the Kushchevskaya repair 
facility), the entire Pskov oblast adjacent to Latvia and 
Estonia and Ukraine's Odessa oblast. The effect of this map 
realignment is that the flank limits on Russian and, to a 
lesser extent, Ukrainian tanks, artillery, and armored combat 
vehicles in the flank zone will be applied to a smaller 
geographic area. The areas removed from the flank zone as a 
result of the realignment will still be subject to other Treaty 
equipment limits.
    The Document also establishes constraints on Russian forces 
in the original flank zone (and on Russian armored combat 
vehicles in each area no longer in the flank zone), to be 
effective on May 31, 1999. Until that time, the Document 
requires Russian holdings in the original flank zone not to 
exceed the levels of Treaty-limited equipment declared by 
Russia in its January 1, 1996, information exchange. There are 
also constraints on Ukrainian holdings in the portion of the 
original flank zone on Ukrainian territory removed from the 
flank area.
    In addition to the Document, an Understanding On Details Of 
The Flank Agreement Of May 31, 1996 In Order To Facilitate Its 
Implementation was developed between the United States and the 
Russian Federation. This Understanding consists of three 
operative paragraphs and clarifies certain geographic and other 
details. The U.S. and Russian Delegations to the Joint 
Consultative Group in Vienna exchanged letters confirming a 
consistent interpretation of the relevant provisions as set out 
in the Understanding. These letters, as well as the 
Understanding, are deemed by the Committee to be significant 
and thus are treated by the resolution of ratification as 
legally-binding documents of the same force and effect as the 
treaty and the CFE Flank Document.

                    II. Article by Article Analysis

Section I

    Section I of the Document consists of three paragraphs. The 
first paragraph provides that each State Party shall, taking 
into account the map realignment and consequent reduction of 
the flank zone, and considering the flexibility noted in 
Section IV, subparagraphs 2 and 3 of the Document in regard to 
temporary deployments and reallocations, comply fully with the 
numerical limitations set forth in the Treaty, including the 
flank zone ceilings thereof, no later than May 31, 1999.
    Article V of the Treaty sets forth provisions related to 
the ``flank zone.'' The current flank zone region consists of 
Bulgaria, Greece, Iceland, Norway, Romania, that part of Turkey 
within the overall area of application (as that term is defined 
in the CFE Treaty), Russia's Leningrad and North Caucasus 
Military Districts, Ukraine's Odessa Military District, 
Moldova, Georgia, Armenia, and Azerbaijan. Subparagraph 1(A) of 
Article V of the Treaty requires each State Party to limit and 
as necessary reduce its battle tanks, armored combat vehicles, 
and pieces of artillery within that flank area so that 40 
months after entry into force of the Treaty and thereafter, for 
the group of States Parties to which it belongs, it shall not 
exceed the Treaty's limits for the flank zone.
    Confirmation that the equipment is the same as that covered 
by the Treaty and the associated agreement among the States 
Parties reflected in their Statements of June 14, 1991 at the 
Extraordinary Conference in Vienna is provided by paragraph (A) 
of the Understanding. The Understanding makes clear that the 
battle tanks, armored combat vehicles and pieces of artillery 
located with Naval Infantry units and Coastal Defense forces 
are to count towards the numerical limits in the Document.
    It should be noted that the Treaty only spells out flank 
limits for each of the two groups of States Parties, and then 
directs, in Article VII, that each group of States Parties 
agree upon the national allocations within the group's limits, 
and that each State Party make formal notification enumerating 
its own agreed limits, and any agreed changes thereto. Among 
the States Parties of the Eastern Group, the group limits were 
divided up at Budapest prior to Treaty signature and then 
notified as required. At that time the group limits were 
divided among the five East European States Parties and the 
former Soviet Union. In spring of 1992, the CFE successor 
states to the former Soviet Union met at Tashkent and divided 
the former Soviet Union's allocations and Treaty rights and 
obligations among themselves in the Agreement on the Principles 
and Procedures for Implementing the Treaty on Conventional 
Armed Forces in Europe, May 15, 1992 (hereinafter referred to 
as ``the Tashkent Agreement''). The equipment allocations in 
the Tashkent Agreement were subsequently reflected in the 
formal notifications of limits (both overall and in all Treaty 
zones, including the flank zone) made by the Russian 
Federation, Ukraine and the other successor states to the 
former Soviet Union in accordance with Article VII, paragraphs 
3 and 5 of the Treaty.
    The ``clarification'' referred to in paragraph 1 of Section 
I refers to the realignment of the flank zone, as described in 
Section III of the Document. Paragraph 1 makes clear that all 
States Parties must comply with all the limits in the Treaty, 
including the limits applicable to the flank region, by May 31, 
1999. In addition, and as noted earlier, paragraph 1 references 
the provisions of paragraphs 2 and 3 of Section IV of the 
Document, in which the States Parties recognize Russia's right 
to utilize, to the fullest extent possible under the terms of 
the Treaty, the temporary deployment provisions of the Treaty, 
and reallocation of the current quotas for battle tanks, 
armored combat vehicles and pieces of artillery established in 
the Tashkent Agreement, as Russia comes into compliance with 
flank limits.
    The first paragraph of Section I must be read in 
conjunction with the second paragraph of Section I of the 
Document. The second paragraph of Section I provides that 
paragraph 1 of this Section shall be understood as not giving 
any State Party that was in compliance with the numerical 
limitations set forth in the Treaty, as of January 1, 1996, 
including the flank limits, the right to exceed any of the 
numerical limitations as set forth in the Treaty. Therefore,a 
State Party that is already in compliance with the limits of the Treaty 
must remain in compliance with the Treaty limits.
    The underlying rationale for paragraph 1 of Section I of 
the Document was the desire expressed by many of the States 
Parties that Russia set forth, clearly and early on, its 
commitment to abide by the Treaty's numerical limits regarding 
its flank zone not later than May 31, 1999 (May 31, 1999 is the 
date Russia must be in compliance with numerical limits set 
forth for the original flank zone in Section II, paragraph 1 of 
the Document). The States Parties recognized that immediate 
compliance by Russia with the flank limits, even in the 
realigned flank, was not attainable. Russia's commitment to 
bring itself into compliance with the Treaty's flank limits in 
the realigned flank, by May 31, 1999, was important in response 
to the flexibility shown to Russia by the other States Parties 
in finding a solution to the Russian flank problem as reflected 
in the Document. By requiring compliance with the Treaty's 
flank limits by May 31, 1999, the States Parties have accepted 
the prospect of Russia's non-compliance with the flank limits 
in the realigned flank zone until that time. As a means to 
avoid singling out one State Party, it was also decided that 
all States Parties would make the commitment set forth in 
paragraph 1. Paragraph 2 of Section I was added to clarify that 
no State Party is relieved of its obligations under the Treaty, 
and those in compliance must remain so. In addition, the States 
Parties required that Russia commit itself not to exceed its 
current holdings of Treaty-limited equipment (current as of 
January 1, 1996) in the original flank zone in the period 
between the conclusion of the Document and May 31, 1999, at 
which time, and thereafter, it will have to comply with 
numerical limits set forth in paragraph 1, Section II of the 
Document.
    The third paragraph of Section I sets forth the States 
Parties' commitment to the implementation of the Document. More 
specifically, paragraph 3 provides that pursuant to the 
Decision of the Joint Consultative Group of November 17, 1995, 
the States Parties shall cooperate to the maximum extent 
possible to ensure the full implementation of the provisions of 
the Document. The Joint Consultative Group, established by the 
Treaty, consists of representatives from all 30 States Parties 
and is responsible for promoting the objectives and 
implementation of the Treaty. On November 17, 1995, the date on 
which the limits of the Treaty took effect, in an effort to 
address issues of non-compliance by certain States Parties, the 
States Parties in the Joint Consultative Group produced the 
following statement:

        The Representatives to the CFE Joint Consultative Group 
        reaffirm the crucial role of the Treaty on Conventional 
        Armed Forces in Europe in maintaining and fostering 
        stability and confidence. They reconfirm the 
        commitments of their Governments to the goals and 
        objectives of the Treaty and associated commitments and 
        obligations, and to achieve full compliance with its 
        provisions. They agree that its continued integrity and 
        future effectiveness must be ensured as part of their 
        common goal to develop new security structures in 
        Europe.

    Paragraph 3 of Section I of the Document relates the above 
reaffirmation made by the Joint Consultative Group to the 
implementation of the provisions of the Document.

Section II

    Section II of the Document sets forth the additional 
numerical limits placed on the Russian Federation in the 
original flank zone and in the portion removed from the 
original flank zone, and on the Ukrainian portion of the 
original flank zone on its territory removed from the flank 
area. It also sets forth the time frames in which these limits 
shall apply.
    It should be noted that the Document makes repeated 
reference to the area described in Article V, subparagraph 
1(A), of the Treaty, ``as understood by the Union of Soviet 
Socialist Republics at the time the Treaty was signed.'' This 
reference is to the map depicting the territory of the former 
Soviet Union within the CFE area of application, including the 
flank zone referred to in Article V, subparagraph 1(A) of the 
Treaty, that was provided by the former Soviet Union at Treaty 
signature. Section III, paragraph 1 of the Document sets forth 
the realignment of the map as it was understood by the former 
Soviet Union at the time the Treaty was signed. All references 
in the Document to the flank zone as understood by the former 
Soviet Union at the time the Treaty was signed are referred to 
as the ``original'' flank area.
    Paragraph 1 of Section II provides that on May 31, 1999, 
and thereafter, the Russian Federation must not have, in the 
original flank zone, more than: (A) 1,800 battle tanks; (B) 
3,700 armored combat vehicles, of which no more than 552 shall 
be located within the Astrakhan oblast; no more than 552 shall 
be located within the Volgograd oblast; no more than 310 shall 
be located within the eastern part of the Rostov and Pskov 
oblast described in Section III, paragraph 1, of the Document; 
and no more than 600 shall be located within the Pskov oblast; 
and (C) 2,400 pieces of artillery.
    Russian holdings in armored combat vehicles in the removed 
flank areas cannot exceed those levels for Astrakhan, 
Volgograd, Rostov and Pskov oblasts, as provided in 
subparagraph 1(B) of Section II of the Document. In addition, 
when the numerical limits in paragraph 1 of this Section are in 
effect, in the area remaining in the flank zone, the Russian 
Federation will be limited, consistent with the Tashkent 
Agreement and based on the August 1995 notifications of the 
Russian Federation of its maximum levels, to 1300 tanks, of 
which no more than 700 may be in active units; 1380 armored 
combat vehicles, of which no more than 580 may be in active 
units; and 1680 pieces of artillery, of which no more than 1280 
may be in active units. These numbers do not take account of 
any temporary deployments or any possible quota reallocations 
within Russia's group of States Parties. To the extent Russia 
utilizes its flank zone deployment levels, the numerical limits 
in paragraph 1 of this Section act as a further cap on the 
Treaty-limited equipment Russia may have within that part of 
the original flank zone that is outside the realigned flank 
zone. It should be noted that all Treaty-limited equipment not 
in designated permanent storage sites count as equipment in 
active units.
    Paragraph 2 of Section II provides that upon provisional 
application of the Document (i.e., as of May 31, 1996 through 
December 15, 1996), within the Odessa oblast, Ukraine must 
limit its battle tanks, armored combat vehicles, and pieces of 
artillery so that the aggregatenumbers do not exceed: (A) 400 
battle tanks, (B) 400 armored combat vehicles; and (C) 350 pieces of 
artillery.
    These constraints will continue to apply to Ukraine after 
the entry into force of the Document.
    Paragraph 3 of Section II provides that upon provisional 
application of the Document (i.e., as of May 31, 1996 through 
December 15, 1996) and from entry into force of the Document 
until May 31, 1999, the Russian Federation must limit its 
battle tanks, armored combat vehicles, and pieces of artillery 
within the original flank area to not more than: (A) 1,897 
battle tanks; (B) 4,397 armored combat vehicles; and (C) 2,422 
pieces of artillery.
    Paragraph 3 of this Section is provisionally applied. As 
such, these constraints take effect immediately as of May 31, 
1996 through December 15, 1996. After entry into force of the 
Document, these constraints will continue to apply to Russia 
until May 31, 1999. After May 31, 1999 the limitations 
applicable to the Russian Federation are those set forth in 
paragraph 1 of this Section.
    The numerical constraints in paragraph 3 of this Section 
reflect the reported holdings of Russia in the original flank 
zone as of January 1, 1996. Paragraph 3 thus makes clear that 
Russia, during the period prior to May 31, 1999, cannot 
increase its Treaty-limited equipment holdings in the original 
flank zone above its declared January 1, 1996, holdings.

Section III

    Section III of the Document describes the realignment, 
i.e., the reduction in size, of the flank zone, which shall 
become effective upon entry into force of the Document. The 
realignment described in Section III alters the area of the 
flank as that area was depicted in the map provided by the 
former Soviet Union at Treaty signature, and makes the flank 
zone smaller.
    Paragraph 1 of Section III describes the areas on the 
territory of the Russian Federation that will be removed from 
the original flank zone and will be included in a neighboring 
subzone of the Treaty. Specifically, for the purposes of the 
Document and the Treaty, paragraph 1 provides that the Pskov 
oblast, the Volgograd oblast, the Astrakhan oblast, that part 
of the Rostov oblast east of the line extending from 
Kushchevskaya to Volgodonsk to the Volgograd oblast border, 
including Volgodonsk, and Kushchevskaya and a narrow corridor 
in Krasnodar kray leading to Kushchevskaya, as constituted on 
January 1, 1996, of the Russian Federation shall be deemed to 
be located in the zone described in Article IV, paragraph 2 of 
the Treaty rather than subparagraph 1(A), Article V of the 
Treaty (the flank zone). Therefore, the effect of the 
realignment of these areas with respect to Russia is that 
Treaty-limited equipment located in these areas would no longer 
be subject to the limitations set forth in Article V, 
subparagraph 1(A) of the Treaty; rather, such equipment located 
in these realigned areas will be subject to Article IV, 
paragraph 2 of the Treaty.
    Similarly, paragraph 2 of Section III provides that for the 
purposes of the Document and the Treaty, the territory of the 
Odessa oblast, as constituted on January 1, 1996, of Ukraine 
shall be deemed to be located in the zone described in Article 
IV, paragraph 3, of the Treaty rather than described in 
subparagraph 1(A), Article V of the Treaty. Therefore, the 
effect of the realignment of the Odessa oblast with respect to 
Ukraine is that Treaty-limited equipment located in the Odessa 
oblast would no longer be subject to the limitations set forth 
in Article V, subparagraph 1(A) of the Treaty; rather, such 
equipment will be covered by paragraph 3, Article IV of the 
Treaty.
    The Understanding describes what is meant by the phrase 
``Kushchevskaya and a narrow corridor in Krasnodar kray'' as 
that phrase is used in paragraph 1 of Section III and 
subparagraph 3(A) of Section V of the Document. Paragraph (B) 
of the Understanding describes the phrase ``Kushchevskaya and a 
narrow corridor in Krasnodar kray'' as an area consisting of a 
2.5 kilometer radius circle centered on the repair facility at 
Kushchevskaya ``together with a five kilometer wide corridor 
connecting this area with the Rostov oblast along a straight 
line extending from Kushchevskaya to Volgodonsk.''

Section IV

    All of Section IV of the Document is provisionally applied. 
Therefore, all of the provisions in Section IV apply as of May 
31, 1996 through December 15, 1996.
    Paragraph 1 of Section IV provides that between May 31, 
1996 and May 31, 1999, the States Parties will examine the 
Treaty provisions on designated permanent storage sites so as 
to allow all battle tanks, armored combat vehicles, and pieces 
of artillery in designated permanent storage sites, including 
those subject to regional numerical limitations, to be located 
with active units.
    It should be noted that conventional armaments and 
equipment limited by the Treaty that are located in designated 
permanent storage sites are currently deemed not subject to 
limitations on conventional armaments and equipment limited by 
the Treaty in active units. They are covered by overall 
limitations on equipment limited by the Treaty and, in some 
geographical areas, by separate limitations on equipment in 
designated permanent storage sites.
    During the negotiation of the Document, the Russian 
Federation made clear its concern regarding the designated 
permanent storage sites provisions of the Treaty. The United 
States and many other States Parties in turn made clear to the 
Russian Federation that any agreement that would allow 
equipment assigned to designated permanent storage sites to be 
co-located permanently with active units would require the 
agreement of all States Parties. A State Party cannot 
unilaterally effect such a measure.
    Paragraph 2 of Section IV recognizes that the Russian 
Federation has the right to use to the maximum extent possible 
the temporary deployment of battle tanks, armored combat 
vehicles, and pieces of artillery both within and outside its 
territory. Such temporary deployments on the territory of other 
States Parties must be achieved by means of free negotiations 
with the States Parties involved, with the full respect for 
their sovereignty, and within the Group's temporary deployment 
allocations.
    Article V, subparagraph 1(b) of the Treaty provides for the 
temporary deployment of conventional armaments and equipment 
limited by the Treaty within the flank zone. It provides that 
notwithstanding the numerical limitations set forth in 
subparagraph 1(A) of Article V of the Treaty, a State Party may 
temporarily deploy on its own territory in the flank area or on 
the territory belonging to the members of the same group of 
States Parties within the flank area, additional Treaty-limited 
equipment in active units so long as the aggregate equipment 
levels for such deployment are not exceeded. This additional 
equipment for each group of States Parties cannot exceed 459 
tanks, 723 armored combat vehicles, and 420 pieces of 
artillery, of which no more than one third in any category may 
be located on the territory of any one State Party.
    Paragraph 3 of Section IV of the Document provides that the 
Russian Federation shall have the right to use, to the maximum 
extent possible, in accordance with existing agreements, 
reallocations of the current distribution of the maximum levels 
for battle tanks, armored combat vehicles, and artillery 
established by the Tashkent Agreement. Such reallocations shall 
be achieved through agreements voluntarily reached by the 
States Parties concerned. This is reflected in the text of this 
paragraph in which it is provided that such use of 
reallocations can only be achieved by means of free 
negotiations and with full respect for the sovereignty of the 
States Parties involved.
    The Section IV provisions do not confer a right on Russia 
to unilaterally utilize the maximum number of temporary 
deployments or to unilaterally change its, or others', quotas. 
Consequently, the failure of Russia to negotiate a right to 
temporary deploy equipment on the territory of a neighboring 
state, or to negotiate a reallocation of quotas established by 
the Tashkent Agreement, would not affect its obligation to 
comply with the Treaty's numerical limitations.
    Paragraph 4 of Section IV of the Document provides that the 
Russian Federation must count against the numerical limitations 
established in the Treaty and paragraph 1 of Section II of the 
Document any of the 456 armored combat vehicles listed as ``to 
be removed'' in its information exchange of January 1, 1996 
that are not so removed by May 31, 1999. The Russian Federation 
has in the past declared, in its data exchanges, armored combat 
vehicles in the flank region as ``to be removed'' but it has 
not counted such armored combat vehicles against either its 
aggregate or flank limits. Paragraph 4 makes clear that if such 
armored combat vehicles are not removed by May 31, 1999, they 
will count against the limits set forth in paragraph 1, Section 
II of the Document when those limits take effect. However, the 
armored combat vehicles that are listed as ``to be removed'' do 
count against the no-increase limits of paragraph 3 of Section 
II. It should be noted that there is no ``to be removed'' 
category in the Treaty, and that these armored combat vehicles 
count against any and all relevant Treaty limits as do any 
tanks and pieces of artillery so listed by the Russian 
Federation.
    On this issue, the Understanding makes clear exactly what 
equipment is encompassed in the phrase ``to be removed.'' 
Specifically, paragraph (C) of the Understanding provides that 
the armored combat vehicles referenced in paragraph 4 of 
Section IV of the Document are the 456 armored combat vehicles 
at seven units listed in the footnote on page 70 of Chart V of 
the annual information exchange provided by the Russian 
Federation as of January 1, 1996 with the words ``is being 
removed beyond the borders of the area of application.''

Section V

    All of Section V of the Document is provisionally applied. 
Therefore, all of the provisions in section V apply as of May 
31, 1996 through December 15, 1996.
    Section V of the Document provides for additional 
information to be provided by and inspections accepted by the 
Russian Federation and Ukraine. These are in addition to the 
Russian and Ukrainian commitments to provide information and 
accept inspections already provided for in the Treaty.
    Paragraph 1 of Section V provides that in addition to the 
annual information exchange provided pursuant to Section VII, 
subparagraph 1(C) of the Protocol on Notification and Exchange 
of Information to the Treaty (``the Protocol on Information 
Exchange''), the Russian Federation shall provide information 
equal to that reported in the annual information exchange on 
the original flank area upon provisional application of the 
Document and every six months after each annual information 
exchange. In the case of Kushchevskaya, the Russian Federation 
is required to provide such additional information every three 
months after each annual information exchange.
    Section VII of the Protocol on Information Exchange sets 
forth the timetable in accordance with which each State Party 
must provide Treaty-specified information to all other States 
Parties. In accordance with paragraph 1(C) of that Section, 
such information must be provided as follows:

        on the 15th day of December of the year in which the 
        Treaty comes into force (unless entry into force occurs 
        within 60 days of the 15th day of December), and on the 
        15th day of December of every year thereafter, with the 
        information effective as of the first day of January of 
        the following year.

    Paragraph 1 of Section V of the Document makes clear that, 
in addition to providing the information at the time specified 
in accordance with Section VII of the Protocol on Information 
Exchange, the Russian Federation must also provide similar 
information regarding the original flank area upon provisional 
application of the Document, and every six months after the 
information exchange required under paragraph 1(C) of Section 
VII of the Protocol on Information Exchange. Russia must, 
therefore, provide such information twice annually.
    With respect to Kushchevskaya, paragraph 1 of Section V of 
the Document requires that such information is to be provided 
every three months after the annual information exchange 
required by paragraph 1(C) of Section VII of the Protocol on 
Information Exchange. Russia must, therefore, provide such 
information on this area on a quarterly basis. The frequency of 
the information exchange on Kushchevskaya reflects the desire 
of some States Parties to have more information regarding the 
equipment at Kushchevskaya repair facility that will not be 
subject to an additional sub-limit.
    Paragraph 2 of Section V of the Document provides that upon 
provisional application of the Document, Ukraine shall provide 
``F21'' notifications for its holdings within the Odessa oblast 
on the basis of changes of five, rather than ten, percent or 
more of its holdings. Section VIII of the Protocol on 
Information Exchange provides for information to be exchanged 
among States Parties on changes in organizational structures or 
force levels. Paragraph 1(B) of that Section requires that each 
State Party shall notify all other States Parties of:

        any change of 10 percent or more in any one of the 
        categories of conventional armaments and equipment 
        limited by the Treaty assigned to any of its combat, 
        combat support or combat service support formations and 
        units down to the brigade/regiment, wing/air regiment, 
        independent or separately located battalion/squadron or 
        equivalent level. * * * Such notification shall be 
        given no later than five days after such change occurs, 
        indicating actual holdings after notified change.

    The reference to ``F21'' in paragraph 2 of Section V of the 
Document is to the designation of the format in which this 
information is to be exchanged among the States Parties. All 
Treaty specified information that is exchanged among States 
Parties pursuant to the Treaty is reported and exchanged in 
accordance with agreed, specified formats. Paragraph 2 requires 
that Ukraine provide information specified in paragraph 1(B) of 
Section VII of the Protocol on Information Exchange, as noted 
above, at a five percent, rather than ten percent, change in 
the level of assigned holdings. This requirement will provide 
more information and transparency to States Parties on the 
organizational structure and force levels of conventional 
armaments and equipment limited by the Treaty that is located 
within the Odessa oblast--one of the areas removed from the 
original flank zone by Section III of the Document. This 
obligation was of particular importance to certain Ukraine's 
neighbors.
    Paragraph 3 of Section V of the Document sets forth the 
commitment of the Russian Federation to accept inspections 
additional to those it is obligated to receive according to the 
Treaty. Paragraph 3 consists of two parts.
    Paragraph 3 provides that, subject to paragraphs 5 and 6 of 
Section V, the Russian Federation shall, commencing 
immediately, accept each year, in addition to its passive 
declared site inspection quota established pursuant to Section 
II, subparagraph 10(D), of the Protocol on Inspection of the 
Treaty, as many as 10 supplementary declared site inspections, 
conducted in accordance with the Protocol on Inspection, at 
objects of verification described in subparagraphs (A) and (B) 
of this paragraph. This makes clear that the Russian Federation 
must accept, each year, up to 10 inspections in addition to 
those they are required to accept pursuant to the Treaty. The 
number of these additional inspections the Russian Federation 
is actually obligated to accept in any given year is subject to 
qualifications set forth in paragraph 5 of this Section. Such 
inspections are also subject to the provisions of paragraph 6 
of this Section that govern cost and sequencing of these 
additional inspections.
    Subparagraph 3(A) of Section V specifies the locations 
(objects of verification) at which the additional inspections 
can occur. These objects of verification are in areas removed 
from the original flank zone, specifically, at objects of 
verification located within the Pskov oblast; the Volgograd 
oblast; the Astrakhan oblast; that part of the Rostov oblast 
east of the line extending from Kushchevskaya to Volgodonsk to 
the Volgograd oblast border, including Volgodonsk; and 
Kushchevskaya and a narrow corridor in Krasnodar kray leading 
to Kushchevskaya. The inspections provided for in this 
paragraph are designed to provide confirmation of provided 
information in these areas, and constitute an important part of 
the flank agreement.
    Subparagraph 3(B) of Section V of the Document describes 
other areas at which the above mentioned additional inspections 
may be carried out. This subparagraph provides that such 
inspections can occur at objects of verification containing 
conventional armaments and equipment limited by the Treaty 
designated by the Russian Federation in its annual information 
exchange of January 1, 1996 as ``to be removed'' until such 
time as a declared site inspection confirms that such equipment 
has in fact been removed. It should be highlighted that 
confirmation that all such equipment has been removed will be 
based on the results of a declared site inspection. 
Subparagraph 3(B) relates to paragraph 4 of Section IV of the 
Document. As noted in that paragraph, if the equipment ``to be 
removed'' is not removed prior to May 31, 1999, any equipment 
that has not yet been removed by that date shall count towards 
the numerical limits established in Section II, paragraph 1 of 
the Document, as well as remain subject to additional 
inspections.
    Paragraph 4 of Section V of the Document sets forth the 
requirement that Ukraine accept inspections in addition to 
those established in the Treaty. Subject to paragraphs 5 and 6 
of Section V, Ukraine must, upon provisional application of the 
Document, accept each year, in addition to its passive declared 
site inspection quota established pursuant to Section II, 
subparagraph 10(D), of the Protocol on Inspection, at least one 
supplementary declared site inspection, at objects of 
verification located within the Odessa oblast.
    Paragraph 5 of Section V of the Document sets a limit on 
the additional inspections the Russian Federation and Ukraine 
are obligated to accept in any given year pursuant to 
paragraphs 3 and 4 of this Section. Paragraph 5 provides that 
the number of supplementary declared site inspections conducted 
at objects of verification, pursuant to paragraphs 3 and 4, 
shall not exceed the number of declared site passive quota 
inspections established in accordance with Section II, 
subparagraph 10(D) of the Protocol on Inspection, conducted at 
those objects of verification in the course of the same year. 
This paragraph limits the additional inspections in a given 
year to, at most, a number equal to the number of declared site 
passive quota inspections that are conducted that same year at 
objects of verification in accordance with Section II, 
subparagraph 10(D) of the Protocol on Inspection.
    Paragraph 6 of Section V of the Document provides that all 
supplementary declared site inspections conducted pursuant to 
paragraphs 3 or 4 shall be carried out at the cost of the 
inspecting State Party, consistent with prevailing commercial 
rates and, at the discretion of the inspecting State Party, 
shall be conducted either as a sequential inspection or as a 
separate inspection.

Section VI

    Paragraph 1 of Section VI provides that the Document shall 
enter into force upon receipt by the Depositary of notification 
of confirmation of approval by all States Parties. Paragraph 1 
recognizes that the domestic requirements of each State Party 
to accept the legally binding Document, and thus to confirm its 
approval of the Document may vary. Each State Party, whenever 
it has completed whatever domestic requirements it must for the 
Document to enter into force for it, will notify the Depositary 
of its approval of the Document. The second sentence of 
paragraph 1 of Section VI provides that specified sections of 
the Document, namely Section II, paragraphs 2 and 3, Section 
IV, and Section V of the Document, shall be provisionally 
applied as of May 31, 1996, through December 15, 1996. If the 
Document does not enter into force by December 15, 1996, it 
shall be reviewed by the States Parties.
    The portions of the Document that are provisionally applied 
concern: the constraints on battle tanks, armored combat 
vehicles and pieces of artillery held by Ukraine within the 
Odessa oblast (Section II, paragraph 2); the no-increase 
provision until May 31, 1999, on battle tanks, armored combat 
vehicles and pieces of artillery held by the Russian Federation 
within the original flank region (Section II, paragraph 3); the 
examination of the Treaty provisions on designated permanent 
storage sites, as well as the rights of the Russian Federation 
with regard to utilization of provisions on temporary 
deployments and reallocation (Section IV); and the requirement 
that the Russian Federation and Ukraine provide additional 
information and accept additional inspections (Section V). 
These portions are provisionally applied primarily to 
immediately enhance transparency and reduce the possibility of 
adverse changes in the current situation in the flank area. 
Provisional application makes these additional obligations of 
these States Parties legally effective--that is, it requires 
these States Parties to comply with the provisions so applied--
even though the Document as a whole has not yet entered into 
force. Such provisional application also enables the United 
States and its Allies to take full advantage of the benefits 
offered by such provisional application.

                III. Background and Treaty Implications

    The CFE Treaty was signed in November 1990, and entered 
into force two years later. The product of almost two decades 
of negotiations between 22 nations of NATO and the Warsaw Pact, 
the CFE Treaty placed alliance-wide, regional (zonal), and 
national ceilings on specific major items of military equipment 
(battle tanks, artillery, armored combat vehicles, attack 
helicopters, and combat aircraft). The ceilings applied equally 
to two ``groups of States Parties'' within the treaty's area of 
application, a region designated from the ``Atlantic-to-the-
Urals'' (ATTU). The purpose of the treaty is to promote 
stability in Europe not only by reducing armaments, but also by 
reducing the possibility of surprise attack by preventing large 
regional concentrations of forces.
    The CFE Treaty also provides for (1) very detailed data 
exchanges on equipment, force structure, and training 
maneuvers; (2) specific procedures for the destruction or 
redistribution of excess equipment, and (3) verification of 
compliance through on-site inspections. Its implementation has 
resulted in an unprecedented reduction of conventional arms in 
Europe, with over 53,000 treaty-limited items of equipment 
(TLE) removed or destroyed, and is considered by most observers 
to have achieved most of its initial objectives. The CFE Treaty 
States Parties now face the challenge of sustaining the 
treaty's achievements while acknowledging a significantly 
altered geo-political reality.
    The CFE Treaty did not anticipate the dissolution of the 
Soviet Union and the Warsaw Pact, let alone the expansion of 
NATO membership to include countries in Central and Eastern 
Europe. Consequently, recent years have been occupied with 
efforts to adapt the treaty to the new security environment of 
its members. The first of these was the so-called ``Tashkent 
Agreement'', signed in May 1992, which allocated responsibility 
for the Soviet Union's TLEs among its successor states--
Azerbaijan, Armenia, Belarus, Kazakhstan, Moldova, Russia, 
Ukraine, and Georgia. It also established equipment ceilings 
for each nation and the implied responsibility for the 
destruction/transfer of equipment necessary to meet these 
national ceilings. The total equipment level under the Tashkent 
Agreement does not exceed that assigned the former Soviet Union 
under the CFE Treaty.
            The CFE Review Conference and the Flank Document
    In addition to the ATTU-wide national ceilings, the CFE 
Treaty established a system of four ``zones'' with separate 
sub-ceilings. The three central zones are nested and 
overlapping. The fourth zone is the flank zone. The flank zone 
includes Russia's Leningrad Military District in the north, and 
more importantly, Russia's North Caucasus Military District in 
the south. Thus the CFE flank zone limited the amount of 
equipment Russia was permitted to deploy in certain areas of 
its own territory. The outbreak of armed ethnic conflicts in 
and around the Caucasus, most notably in Chechnya, led to 
Russian claims for the need to deploy equipment in excess of 
treaty limits in that zone.
    Under the CFE Treaty all equipment reductions necessary to 
comply with overall, national, and zonal ceilings were to have 
been completed by November 17, 1995, forty months after the 
treaty entered into force. As this deadline approached, it 
became clear to the parties that Russia would not meet those 
requirements, particularly in the so-called ``flank zones''.
    Russia made this claim in the context of broader assertions 
that some CFE provisions reflected Cold War assumptions and did 
not fairly address its new national security concerns. It 
questioned the appropriateness of being limited in the 
stationing of its military forces within its own borders. It 
pointed out that no other CFE nation (with the exception of a 
small portion of Ukraine) is under such restrictions, and 
suggested this was an unacceptable infringement on its national 
sovereignty. Russia also maintained that its military 
activities in the Caucasus, and hence the need for additional 
stationed forces in the flank zone, respondedto a legitimate 
national security concern. Accompanying these assertions were also 
claims that national economic hardship was making restationing 
unaffordable in some cases, a claim which Ukraine also made.
    Though not all states parties viewed the Russian position 
sympathetically (Norway and Turkey, which border the Russian 
flank zone voiced significant reservations), a consensus was 
reached in November 1995 to examine ways to alleviate the 
Russian complaints. This effort, conducted within the CFE 
Treaty's Joint Consultative Group (JCG), resulted in the Flank 
Agreement. This agreement was signed by all states parties at 
the CFE Treaty Review Conference on May 31, 1996, and on August 
1, 1996 was submitted to Congress for legislation authorizing 
U.S. confirmation of approval. The Review Conference also 
stipulated that the agreement would be provisionally in force 
until December 15, 1996 while states parties completed their 
formal approval procedures. At the December 1996 OSCE summit in 
Lisbon, the deadline was extended on a one-time basis until May 
15, 1997.
    In its essentials, the Flank Agreement removes several 
Russian (and one Ukrainian) 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 to meet the new limit.

------------------------------------------------------------------------
                                                          Armored Combat
                                   Tanks      Artillery      Vehicles   
------------------------------------------------------------------------
Original Flank Limit..........        1,800        2,400           3,700
Permitted to 1999.............        1,897        2,422           4,397
New Flank Limit...............        1,300        1,680           1,380
------------------------------------------------------------------------

    To provide some counterbalance to these adjustments, 
reporting requirements were enhanced, inspection rights in the 
zone increased, and district ceilings were placed on armored 
combat vehicles to prevent their concentration.
    The Review Conference also noted that the Tashkent 
signatories (the ATTU former states of the Soviet Union) were 
about 2,800 TLEs short of their reduction requirements, and 
that five successor states were in excess of their national 
limits or flank zone limits. The relatively small amount of 
equipment involved and the treaty members ``being aware of the 
difficulties which have delayed the completion of reductions'', 
the Review Conference accepted renewed commitments to comply 
with treaty limits.
            Process of negotiating the CFE Flank Document
    The committee is alarmed by the process through which the 
CFE Flank Document was negotiated. In particular, contradictory 
public statements by Executive Branch officials, 
misrepresentations by other parties of the views of the United 
States government that were left uncorrected, and the failure 
by the Clinton Administration to build and maintain consensus 
among the NATO allies led to a confused and sloppy negotiating 
process.
    Through the forty-month period for implementation of CFE 
obligations, the Russian Federation maintained a course of 
action that satisfactorily met its obligations on the 
requirement to reduce overall holdings of Treaty-Limited 
Equipment as required by the CFE Treaty. However, as early as 
1994, the Russian government began to signal its unwillingness 
to comply similarly with the specific limitations on TLE 
holdings in the flank zones. The reasons cited by the Russian 
government for its unwillingness to meet the limits in the 
flank zones included the changed geopolitical landscape and 
strategic balance of post-Cold War Europe, and ongoing 
instability in the North Caucasus region of Russia 
(particularly Chechnya) and the South Caucasus States of 
Georgia and Azerbaijan.
    In the view of the committee, and in the view of the 
Administration at that time, Russia's justification for 
revisions in equipment limits in the flank zones were without 
serious merit. Furthermore, the Clinton Administration insisted 
that if Russia sought relief, the temporary deployment 
authorities allowed in the CFE Treaty would be more than 
sufficient to meet any legitimate needs, such as the deployment 
of additional tanks, attack helicopters, armored personnel 
vehicles and artillery to use along with bomber aircraft 
already being employed against the towns and cities of the 
lightly armed Chechen separatists in Russia's North Caucasus 
region. Otherwise, the United States and its NATO allies 
insisted, even if permanent revisions were to be made in the 
Russian obligations, such revisions would only occur at the May 
15, 1996, Review Conference, and only after Russia had met its 
obligations under the CFE Treaty's November 17, 1995, deadline.
    The geostrategic changes which have occurred in Europe 
since the end of the Cold War have indeed diminished the 
territory and combined forces under the control of the Russian 
Federation--the principal successor to the Union of Soviet 
Socialists Republic. At the same time, Russia remains by far 
the largest military power among the states of the former 
Warsaw Pact, and the external threat which confronts Russia is 
minimal. Outside of the Russian Federation, the largest holding 
of military equipment on the continent of Europe is not under 
the control of a single state. It is the combined forces of 
NATO. In the view of the committee, and the Administration, 
NATO does not pose a threat to Russia.
    In an answer to a question for the record from a Foreign 
Relations Committee hearing on April 18, 1997, Undersecretary 
of State-designate Thomas R. Pickering accurately described 
NATO-Russian relations: ``In 1991, NATO revised its strategic 
concept in recognition that the end of the East-West 
confrontation has eliminated the threat of massive military 
confrontation in Europe * * * NATO is now focused on new 
threats that are common to all of Europe, including Russia, 
such as the proliferation of weapons of mass destruction, 
regional instability, and conflicts stemming from lingering 
ethnic, and religious and territorial tensions.''
    The instability in the North and South Caucasus which has 
caused concern for Moscow is little justification for allowing 
increased levels of CFE-controlled Russian military equipment 
in the CFE flank zone. In fact, much of the instability in the 
region is a result of either heavy handed and belligerent 
domestic policies by Russia--in the case of the tragic war in 
Chechnya--or active efforts by the Russian government to 
destabilize and even overthrow the governments of sovereign 
states in Georgia and Azerbaijan. Leading figures incoups 
against both governments have found refuge in Moscow. Russian 
assistance to separatist movements in the regions of Abkhazia and 
Nagorno-Karabakh has been undertaken with the specific intention of 
placing pressure on the governments of Georgia and Azerbaijan, 
respectively. Recent reports regarding massive arms shipments from 
Russia to Armenia only further demonstrate the intentionally 
destabilizing role played by Russia in the region of the South 
Caucasus.
    In the face of the Russian government's stated intent to 
not meet the CFE flank limits, the United States Government, 
joined by several NATO allies, insisted that Russia meet all 
obligations under the CFE Treaty by the November 17, 1995, 
deadline required under the terms of the Treaty. On April 18, 
1995, the State Department spokeswoman stated that ``we and our 
NATO allies have advised Russia against taking unilateral steps 
which would avoid meeting CFE's equipment limits.'' On May 6, 
1995, the Director of the Arms Control and Disarmament Agency 
(ACDA), John Holum, further stated that ``(t)he Flank 
Agreements are integral to the treaty.'' Director Holum at that 
time indicated that Russia must meet its obligations before any 
consideration would be given to renegotiation of Russian 
obligations.
    On May 10, 1995, at the conclusion of a summit meeting 
between President Clinton and Russian President Boris Yeltsin 
in Moscow, President Yeltsin announced a reversal in the United 
States' position which to date had conditioned renegotiation of 
Russian obligations under the CFE Treaty upon initial Russian 
compliance. While anonymous Administration spokesmen insisted 
in a later press briefing that the United States had not 
changed its position, President Clinton did not contradict 
President Yeltsin's announcement. In an on-the-record speech at 
the Atlantic Council on July 13, 1995, Director Holum stated 
that in regard to the CFE ``* * * we do have a commitment on 
the table in the sense that we are talking to the Russians 
about trying to solve the specific problem of the flanks 
question by the 1996 review conference. But our ability to do 
that in a constructive way is going to be dependent on their 
being in compliance with the treaty limits by November.'' In 
fact, within days a U.S.-led effort was begun to renegotiate 
Russian flank limit obligations before the November 17, 1995, 
deadline.
    On September 19, 1995, Director Holum announced a NATO 
proposal to renegotiate Russian obligations under the CFE 
Treaty. According to Director Holum ``The Russians have been 
very clear they have concerns about sub-limits on what can be 
placed in the Caucasus. The NATO allies have agreed to a 
proposal that would seek to solve Russian concerns about flank 
limits.'' On September 22, 1995, NATO formally tabled a 
proposal which would renegotiate Russian obligations under the 
CFE Treaty flank zones. According to press reports, NATO 
officials admitted that none of Russia's neighbors had been 
consulted about the proposal. In any event, the proposal was 
rejected by the Russian government as insufficient.
    The September 22, 1995, NATO proposal would have exempted 
five military districts from the Russian territory that had 
been designated as the flank zone under the CFE Treaty, thus 
permitting current flank equipment ceilings to apply to a 
smaller area. Under the NATO proposal, Russia would not have 
been entitled to any less equipment in the flank zone, but 
would have had the ability to concentrate it on a smaller area.
    On October 23, 1995, Presidents Clinton and Yeltsin met in 
another summit meeting at the Hyde Park home of President 
Franklin Roosevelt. In a post-summit press conference, 
President Yeltsin claimed that the United States had again 
expressed a willingness to meet Russian concerns over the CFE 
Treaty flank zones. President Yeltsin stated ``Bill neglected 
to say we also came to terms on the flank limits that have been 
placed. And I want to say a big, big thank you to Bill for 
supporting us on this score.'' The implication of President 
Yeltsin's statement was that the United States was willing to 
move beyond the NATO proposal (which had already been rejected 
by the Russia) in order to meet Russian demands for additional 
concessions. Again, President Clinton did not contradict 
President Yeltsin. Again, Administration officials denied any 
agreement for concessions had been reached with the Russian 
government. Again, within days, a new proposal of concessions 
was offered to Russia--this time by the United States alone.
    The newest proposal, known as the Perry-Grachev 
understanding, was announced on October 28, 1995 at a 
Williamsburg, Virginia press conference by Secretary of Defense 
William Perry and Russian Minister of Defense Pavel Grachev. 
The proposal exempted a new set of seven military districts 
from the Russian territory that had been designated as the 
flank zone under the CFE Treaty. As under the NATO proposal, 
Russia would not have been entitled to any less equipment in 
the flank zone, but would have had the ability to concentrate 
it on a smaller area.
    The Perry-Grachev understanding drew an immediate and 
alarmed reaction from NATO allies Turkey and Norway, as well as 
Ukraine, the Baltic States, Georgia and Azerbaijan. Under the 
Perry-Grachev agreement the specific, exempted military 
districts would have allowed the Russian military to deploy 
increased amounts of treaty-controlled equipment directly to 
the borders of each of those countries. As a serious rift 
appeared among the members of NATO, U.S. support for the Perry-
Grachev agreement was withdrawn and the effort to find a 
solution to Russia's refusal to meet its CFE Treaty obligation 
by the November 15, 1995, deadline foundered.
    Despite the willingness of NATO to propose relief for 
Russia's CFE obligations before the November 17, 1995, 
deadline, Russian government officials continued to threaten 
not to meet their CFE obligations and even warned that Russia 
might withdraw from the treaty if their concerns went unmet. On 
Wednesday, November 15, 1995, two days before the deadline by 
which all thirty parties to the CFE Treaty were required to be 
in compliance, Russian Minister of Defense Pavel Grachev stated 
on behalf of the Russian government that ``We are not prepared 
to respect the current treaty on conventional arms reductions 
in Europe.''
    It was not until the May 1996 Review Conference that an 
agreement was finally reached between all thirty parties to the 
CFE Treaty to proceed with renegotiated obligations for 
Russia--and Ukraine--in the flank zones. As a final measure to 
achieve consensus among the parties to the agreement, the 
United States Government provided the Russian government with a 
confidential side statement. Undersecretary of State Lynn 
Davis, appearing before the Senate Foreign Relations Committee 
on April 29, 1997, partially characterized the text of that 
statement in her testimony. According to Undersecretary 
Davis:``the statement says that we are prepared, the United States is 
prepared, to facilitate or act as an intermediary for a successful 
outcome in discussions that could take place under the Flank Agreement 
and the CFE Treaty between Russia and the other Newly Independent 
States * * *'' With the assurances provided by this statement--only a 
portion of which was characterized by Undersecretary Davis' public 
testimony, the Russian government agreed to sign the revised flank 
agreement.
    The Flank Document was signed on May 31, 1996. The parties 
to the treaty agreed to seek by December 15, 1996, either 
governmental approval or ratification as the case may be 
according to each party's national or constitutional 
procedures. Notwithstanding the fact that the revisions 
contained in the agreement constituted a substantive change in 
the CFE Treaty, Assistant Secretary of State for Legislative 
Affairs Barbara Larkin transmitted the agreement to the Speaker 
of the House and the Majority Leader of the Senate on August 1, 
1996 and requested bicameral Congressional approval.
    As the December 15, 1997 deadline for implementation of the 
agreement approached, it became clear that most parties would 
not complete the approval process. On December 3, 1996 a 
further agreement was reached among the parties to the CFE 
Treaty at a heads of state summit of the members of the 
Organization of Security and Cooperation in Europe. The parties 
agreed to extend the deadline (and provisional implementation) 
of the Flank Document until May 15, 1997. On April 7, 1997, 
President Clinton transmitted the Flank Document to the Senate 
for advice and consent, over ten months after the agreement was 
signed and slightly more than one month before it was required 
to be approved.

                          IV. Committee Action

    The CFE Flank Document was adopted on May 31, 1996 in 
Vienna. The Flank Document, along with one Understanding, an 
exchange of letters signed by U.S. and Russian representatives, 
and a document extending provisional application of the Flank 
Document was submitted to the Senate on April 7, 1997 and 
referred on the same day to the Committee on Foreign Relations.
    The committee held a public hearing on the Flank Document 
and related matters on April 29, 1997, with both Administration 
and private-sector witnesses.

April 29, 1997 (open session)

    The Honorable Lynn E. Davis, Undersecretary of State for 
Arms Control and International Security Affairs;
    The Honorable Walter B. Slocombe, Undersecretary of Defense 
for Policy;
    Lieutenant General Richard B. Myers, Assistant to the 
Chairman of the Joint Chiefs of Staff;
    Dr. Sherman Garnett, Senior Associate at the Carnegie 
Endowment for International Peace;
    Mr. Paul Goble, Director of the Communication Department, 
Radio Free Europe/Radio Liberty Newsline.
    At a markup on May 8, 1997, the committee considered a 
resolution of ratification including 14 conditions. The 
resolution was agreed to by the committee by a roll-call vote 
of 17-0. Those members voting in the affirmative were Helms, 
Biden, Lugar, Dodd, Coverdell, Kerry, Hagel, Robb, Smith, 
Feingold, Thomas, Feinstein, Grams, Wellstone, Ashcroft, Frist, 
and Brownback.
    The conditions and the rationale for approving them are as 
follows:

Condition 1: Policy of the United States

    Condition (1) simply restates United States policy that no 
Russian troops should be deployed on another country's 
territory without the freely-given consent of that country. 
Unfortunately, Russia continues to station troops in several 
sovereign countries of the former Soviet Union--in several 
cases against the express wishes of the host country.

Condition 2: Violations of state sovereignty

    Condition (2) states the view of the Senate that Russian 
troops are deployed abroad against the will of some countries 
(namely, Moldova). It further states the Secretary of State 
should undertake priority discussions to secure the removal of 
Russian troops from any country that wishes them withdrawn. 
Further, it requires the Administration to issue a joint 
statement with the other fifteen members of the NATO alliance 
reaffirming the principles that this treaty modification does 
not give any country: (1) The right to station forces abroad 
against the will of the recipient country; or (2) the right to 
demand reallocation of military equipment quotas under the CFE 
Treaty and the Tashkent Agreement. This joint statement was 
issued, in fact, on May 8, 1997, in Vienna.

Condition 3: Facilitation of negotiations

    Condition (3) ensures that the United States will not be 
party to any efforts by Russia to intimidate or otherwise 
extract CFE Treaty concessions from its smaller neighbors. 
Indeed, this condition, along with much of the rest of the 
resolution, is specifically designed to require the United 
States to safeguard the sovereign rights of other countries 
(such as Ukraine, Moldova, Azerbaijan, and Georgia) in their 
dealings with the Russian Federation. The committee became 
alarmed, over the course of its consideration of the CFE Flank 
Document, with several aspects of the United States negotiating 
record. This condition will ensure that the United States will 
adhere to the highest principles in the conduct of negotiations 
undertaken pursuant to the treaty, the CFE Flank Document, and 
any side statements that have already been issued or which may 
be issued in the future.

Condition 4: Noncompliance

    Condition (4) clarifies what the Senate expects of the 
President with respect to acts of noncompliance of sufficient 
gravity to threaten the national security interests of the 
United States. This provision directs the President to seek 
inspections of the noncompliant party, to pursue multilateral 
sanctions if necessary, and, in the event that noncompliance 
persists, to consult with the Senate for the purpose of 
obtaining a resolution of support for continued U.S. adherence 
to the Treaty. This provision is virtually identical to the 
condition on noncompliance included in the resolution of 
ratification of the Chemical Weapons Convention.

Condition 5: Monitoring and verification of compliance

    Condition (5) requires the President to certify compliance 
with the treaty annually and to submit four reports on various 
compliance issues associated with the CFE Treaty. This 
condition, while designed to address the CFE Treaty, mirrors 
closely the monitoring provision included in the Chemical 
Weapons Convention's resolution of ratification.
    The report required under subparagraph D of Condition (5) 
deserves special attention. As the committee noted in Executive 
Report 102-22, between January 1990 and the signature of the 
CFE Treaty on November 19, 1990, the Soviet Union relocated 
more than 75,000 pieces of major military equipment from the 
treaty's area of application to storage sites east of the 
Urals. By their own admission, the Soviets removed 57,300 items 
(16,400 tanks, 15,900 armored combat vehicles, and 25,000 
pieces of artillery). In testimony before the committee on July 
17, 1991, then-Acting Director of Central Intelligence Richard 
Kerr compared the movements of equipment and materiel under the 
Soviet withdrawal to the ``Oklahoma land rush.''
    The United States initiated, during the summer of 1990, a 
series of diplomatic efforts to secure Soviet assurances 
regarding the use and disposition of the equipment and 
armaments withdrawn. Finally, on June 14, 1991, the Soviet 
Union promised in a politically-binding statement to the CFE 
Joint Consultative Group to destroy 14,500 pieces of equipment 
located east of the Urals between 1991 and 1995; not to use 
withdrawn equipment to create a strategic reserve or 
operational groupings; to provide information on the equipment; 
not to keep it in unit sets; and to use it as attrition 
reserves and spares.
    Despite these assurances, the committee is concerned that 
Russia may not have accomplished meaningful eliminations of 
this equipment. Moreover, some armaments originally withdrawn 
by the Soviet Union may have been reintroduced clandestinely 
into the area of application as part of a Russian effort to 
destablize neighboring countries. Accordingly, Condition (5) 
requires the Administration to report to the committee on the 
status of this equipment and armaments.
    Similarly, the reports required under subparagraphs E and F 
of Condition (5) are linked to questions regarding the status 
of excess Soviet materiel circulating within the Caucasus 
region in the hands of subnational and secessionist movement. 
In particular, recent allegations have surfaced that Russia may 
have poured more than $1 billion worth of Russian arms into 
Armenia from 1993 to 1996. The Chairman of the Russian State 
Duma Defense Committee, General Lev Rokhlin, as reported in 
Nezavisimaya Gazeta on April 3, 1997, has alleged that Russia 
has transferred to Armenia 84 T-72 tanks, 50 BMP-2 armored 
combat vehicles, 36 122 mm howitzers, and 18 152 D-1 howitzers. 
While the provision of such military assistance is troubling by 
its very nature, the committee is concerned with two particular 
aspects of this collaboration: (1) the extent to which the 
equipment transferred to Armenia was withdrawn from stockpiles 
located east of the Urals; and (2) the extent to which Armenia 
allowed transfers of such equipment to the secessionist 
movement in Azerbaijan for the purpose of further destabilizing 
President Aliyev's government. Armenia may thus have violated 
the CFE Treaty and/or United States law.
    The committee notes that Armenia has made counter-
allegations, although there have been no revelations in this 
regard on the order of those by General Rokhlin. If the 
President wishes to include in his report information on other 
arms transfers in the region, the committee will have no 
objection.

Condition 6: Application and effectiveness of Senate advice and consent

    Condition (6) requires the President to agree that the 
United States, in any effort to secure ratification or 
accession to the Flank Document by another country, will 
vigorously reject any effort by another State Party to have it 
make any promises inconsistent with the principles established 
by conditions (1), (2), or (3) or agree to substantively modify 
the Flank Agreement or the Treaty itself during the course of 
future negotiations. It further requires any future 
modifications or amendments to the Flank Document that are of a 
substantive nature to be submitted to the Senate for its advice 
and consent, and also stipulates that two documents submitted 
by the President to the Senate in the course of its 
consideration of the CFE Flank Document are treated as having 
the same force and effect as the Flank Document itself.

Condition 7: Modifications of the CFE Flank Zone

    Condition (7) provides that changes to the flank region 
which would alter the boundaries represented on the map 
submitted by the President during Senate consideration of the 
CFE Flank Document be treated as substantive modifications 
requiring Senate advice and consent unless they are of a minor 
administrative or technical nature. This provision is necessary 
since the Administration initially insisted that the CFE Flank 
Document need not be submitted for advice and consent since it 
did not alter the CFE Treaty, but rather only changed the 
original map submitted by the Administration.

Condition 8: Treaty interpretation

    Condition (8) reaffirms condition (1) in the resolution of 
ratification of the INF Treaty, which was approved by the 
Senate in 1988. That condition, popularly known as the ``Biden-
Byrd'' condition, sets forth important principles of treaty 
interpretation. The condition has been reaffirmed by the Senate 
during consideration of every major arms control treaty since 
1988, including the original CFE Treaty, the Open Skies Treaty, 
the START I and START II Treaties, and the Chemical Weapons 
Convention. These principles apply regardless of whether the 
Senate chooses to say so during consideration of any particular 
treaty.
    The text of the Biden-Byrd condition is as follows:

          (A) the United States shall interpret a treaty in 
        accordance with the common understanding of the Treaty 
        shared by the President and the Senate at the time the 
        Senate gave its advice and consent to ratification; (B) 
        Such common understanding is based on: (i) first, the 
        text of the Treaty and the provisions of this 
        resolution of ratification; and (ii) second, the 
        authoritative representations which were provided by 
        the President and his representatives to the Senate and 
        its Committees, in seeking Senate consent to the 
        ratification, insofar as such representations were 
        directed to the meaning and legal effect of the text of 
        the Treaty;(C) the United States shall not agree to or 
adopt an interpretation different from that common understanding except 
pursuant to Senate advice and consent to a subsequent treaty or 
protocol, or the enactment of a statute; and (D) if, subsequent to 
ratification of the Treaty, a question arises as to the interpretation 
of a provision of the Treaty on which no common understanding was 
reached in accordance with paragraph (2), that provision shall be 
interpreted in accordance with applicable United States law.

    The Committee fully explained the background to, and 
rationale for, the original condition in its report on the INF 
Treaty. See S. Exec. Rept. No. 15, 100th Cong., 2d Sess., at 
87-108 (1988) (hereafter INF Treaty Report). In brief, the 
condition was designed to set forth elemental principles of 
treaty interpretation under our constitutional system. 
Specifically, the condition provides that the interpretation of 
a treaty by the Executive, following ratification, will be 
governed by the ``shared understanding'' of the Executive and 
the Senate, as reflected in the Executive's formal 
representations to the Senate at the time the Senate gives its 
advice and consent. Although the Executive and the Senate are 
co-equal partners in the treaty-making process under our 
constitutional system, it is the Executive which implements and 
interprets treaties. The Biden-Byrd condition ensures that the 
Executive will do so within the boundaries of its original 
presentation to the Senate.
    Condition (8) also provides guidance on construction of the 
Biden-Byrd condition. Specifically, it states that ``nothing in 
[the Biden-Byrd] condition * * * shall be construed as 
authorizing the President to obtain legislative approval for 
modifications or amendments to treaties through majority 
approval of both Houses.''
    The Biden-Byrd condition addresses the issue of how a 
treaty shall be interpreted once it enters into force, and how 
new interpretations--outside the realm of the original shared 
understanding--shall be adopted. As the Committee stated in its 
report on the INF Treaty:

        The Committee notes that paragraph (C) of the Condition 
        is essentially a corollary of the principles in 
        paragraphs (A) and (B). The import of the [first two 
        paragraphs] is that the Executive must interpret a 
        treaty in accord with the original Executive-Senate 
        ``shared understanding'' of the treaty * * * the 
        Executive may not, acting alone, adopt an 
        interpretation outside the bounds of that ``shared 
        understanding.'' Paragraph (C) simply spells out the 
        circumstances under which the Executive would receive a 
        mandate to adopt an interpretation outside such bounds.

INF Treaty Report, at 99. It should be noted the Biden-Byrd 
condition says nothing about amendments or modifications to 
treaties. It cannot be used, therefore, as justification for 
submitting amendments or modifications to both Houses for 
approval.
    The terms ``modifications'' or ``amendments,'' as used in 
the provision, are essentially equivalent, insofar as they both 
apply to changes to the text, or changes to substantive 
obligations, of an existing treaty. The different terms are 
used, in international law, to distinguish between two 
variations of changes to multilateral agreements. One 
variation, an amendment, involves changes designed to apply to 
all parties to a multilateral treaty (although all parties to 
the existing treaty may not ultimately concur in the 
amendment). The other variation, a modification, is an 
arrangement between two or more parties to a multilateral 
treaty that affects only the relations among themselves, and 
does not affect the other parties to that multilateral 
agreement.

Condition 9: Senate prerogatives on multilateralization of the ABM 
        Treaty

    Condition (9) protects the Senate's constitutional 
prerogatives by requiring the President to agree that any 
agreement to multilateralize the 1972 Anti-Ballistic Missile 
Treaty would be submitted to the Senate for advice and consent 
since any such agreement would, by definition, substantively 
alter the rights and obligations of the United States and 
others under the ABM Treaty.
    This condition builds upon a clear and unambiguous 
legislative history. The Fiscal Year 1995 Defense Authorization 
Act requires that any agreement that ``substantively modifies'' 
the ABM Treaty must be submitted to the Senate for advice and 
consent to ratification. The conference report accompanying the 
fiscal year 1997 Defense Authorization Act states that any 
agreement to add signatories to the ABM Treaty would constitute 
a substantive change to the treaty requiring Senate advice and 
consent.
    The majority of the committee views multilateralization of 
the ABM Treaty as a substantive modification requiring Senate 
advice and consent for a variety of reasons. (This was the one 
condition with which questions were raised.) The committee 
noted with interest a June 6, 1996 study by the American Law 
Division of the Library of Congress. While the study concludes 
that ``an apportionment of the rights and obligations of the 
USSR under the ABM Treaty to its successor states would not, in 
itself, seem to require Senate participation,'' it does not 
contemplate just how those rights and obligations are to be 
apportioned. Indeed, the study does not seem even to take into 
account the actual Memorandum of Understanding relating to ABM 
Treaty successorship.
    Accordingly, the sentence preceding the June 6, 1996, 
study's conclusion is highly relevant, stating that ``a 
multilateralization agreement could include matters that would 
alter the substance of the ABM Treaty and require Senate advice 
and consent.'' Thorough analysis of how the addition of new 
States Parties to the ABM Treaty would alter its functioning 
reveals a number of problems which must be addressed by the 
Senate.
    First, new Parties to the ABM Treaty cannot be added 
without specially-negotiated, limited rights, but there is no 
way to do this within the existing provisions of the treaty. 
Yet such is necessary if the United States does not want to 
entitle each new successor to an ABM-system and ABM test-
ranges. Thus the multilateralization agreement must add or 
alter provisions in the current treaty to ensure that ABM 
capabilities on the territory of the Soviet Union are not 
multiplied.
    Second, multilateralization inevitably will change the 
amount of territory covered by the ABM Treaty. In so doing, it 
will also change the geographic scopeand coverage of the ABM 
Treaty. Since several fundamental limitations in the treaty (such as 
location of ABM radars) are defined in terms of ``national territory,'' 
any change to this definition changes the basic limitation in the 
treaty. For example, Russia continues to operate large-phased array 
radars which used to be ``on the periphery'' of the Soviet Union (as 
required by Article VI(b)) but which are now in Ukraine, Belarus, 
Latvia, and Kazakstan. A new agreement would conflict with AMB 
periphery requirements if Russia (or another country) were suddenly 
able to build a new string of radars along its borders. But if Russia 
is forbidden to do this, then the agreement must necessarily 
``grandfather'' Russia's continued owning and operating of radars in 
other countries. By providing Russia extraterritorial treaty-rights and 
a military presence in another country, this agreement would most 
certainly constitute a significant change to the treaty (and a major 
legal/political issue for countries which want Russian troops withdrawn 
from their territories).
    Further, if a country of the former Soviet Union opts not 
join the multilateralization agreement, the committee is 
concerned to know whether they would be free (in the future) to 
develop ABM systems. If so, this too significantly alters the 
geographic coverage of the treaty.
    Third, multilateralization of the ABM Treaty cannot be done 
without permanently, and significantly, altering United States 
rights under the treaty. New Parties doubtless will be given an 
official say at the Standing Consultative Commission (SCC), 
which interprets and administers the ABM Treaty. Under the 
bilateral ABM Treaty, the United States may take actions as 
approved through bilateral agreements. Yet with 
multilateralization, the United States presumably will no 
longer have this ability. Expanding the bilateral consensus 
arrangement into a multilateral consensus process means that, 
in the future, one country (such as Belarus) could effectively 
block U.S. actions or demand U.S. concessions even if Russia 
and the others agreed with the United States. A second 
alternative would be to alter the SCC to operate by means of a 
majority vote. Yet, if this occurs the United States could find 
itself overruled on matters where currently it cannot be.
    The history of succession agreements to the various 
treaties concluded between the United States and the Soviet 
Union further supports the case for Senate consideration of any 
ABM successorship document. The United States has engaged in a 
case-by-case review of treaty successorship issues. In the one 
case of the INF Treaty, where the treaty carried a negative 
obligation--namely to not possess any intermediate-range 
nuclear missiles--the treaty could be multilateralized without 
Senate advice and consent. No treaty terms were altered and the 
United States incurred no modification or new treaty rights or 
obligations. Thus advice and consent was not necessary.
    Multilateralization of the START Treaty under the Lisbon 
Protocol, on the other hand, required Senate advice and 
consent. In this case, multilateralization 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 the protocol, 
Belarus, Kazakhstan, and Ukraine agreed to a legally-binding 
commitment to join the NPT as non-nuclear weapons states.
    Finally, the Senate specifically considered the question of 
multilateralization of the treaty on Conventional Armed Forces 
in Europe (CFE) under Condition (5) of the resolution of 
ratification for the CFE Treaty.
    Moreover, the ABM Treaty specifically provides that any 
amendment to the treaty be considered under Senate advice and 
consent procedures. Article 14 of the Treaty states that 
``agreed amendments shall enter into force in accordance with 
the procedures governing the entry into force of this Treaty.'' 
In other words, An amendment is to be adopted through the 
ratification process.
    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 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 10: Accession to the CFE Treaty

    Condition (10) urges the President to support Lithuania, 
Estonia, Latvia, and Slovenia should they wish to join the CFE 
Treaty as States Parties.

Condition 11: Temporary deployments

    Condition (11) addresses a major ambiguity in the CFE 
Treaty. While the CFE Treaty allows for ``temporary 
deployments'' of military forces in the flank region, it does 
not define the term ``temporary.'' Accordingly, Russia has felt 
free to use this provision to justify the permanent stationing 
of forces outside of its own territory. This condition requires 
the President to serve notice to all States Parties that the 
United States will reject efforts to use the temporary 
deployments provision to justify such stationing, that the 
United States considers the term ``temporary'' to refer to a 
deployment not longer than several months, and that--in the 
future--the United States will work to secure agreement that 
countries must give a detailed advance notice of a deployment--
including its intended duration--before it occurs.

Condition 12: Military acts of intimidation

    Condition (12) states United States policy to treat with 
the utmost seriousness any effort by one CFE member to 
intimidate another using equipment limited by the treaty.

Condition 13: Supplementary inspections

    Condition (13) clarifies a drafting ambiguity in the CFE 
Flank Document andmakes clear that, in using its right to 
conduct supplementary inspections under the CFE Flank Document, the 
United States is not limited to visiting only those objects of 
verification previously inspected during the same calendar year.

Condition 14: Designated permanent storage sites

    The committee is concerned with paragraph 1 of Section IV 
of the CFE Flank Document. Understanding that this provision 
was inserted to accommodate the Russian Federation's request to 
eliminate the storage requirement for designated permanent 
storage sites (DPSS), the committee requires under condition 
(14) a report on the impact of such proposals that the United 
States might accept, including the extent to which more treaty-
limited equipment will be introduced into the active Russian 
inventory under such proposals, how Russia would use the 
equipment, and the contribution that such a treaty modification 
would make to the national security of the United States.


                 VI. ADDITIONAL VIEWS OF SENATOR BIDEN

    I strongly support prompt Senate action to advise and 
consent to ratification of the CFE Flank Document, which, as an 
amendment to the original CFE Treaty, is an essential building 
block in a new European security structure adapted to the post-
Cold War environment. Prompt action is necessary because the 
Flank Document must, by its terms, enter into force by May 15, 
1997. Otherwise, the Document is subject to further review by 
the States Parties. As yet, not all States Parties to the CFE 
Treaty have ratified the Flank Document, and many states are 
believed to be awaiting ratification by the United States. The 
Clinton Administration has therefore urged the Senate to act 
quickly. The Committee has acted on a bipartisan basis to meet 
this objective. The Flank Document was submitted to the Senate 
on April 7, 1997; the Committee reported it just over a month 
later, on May 8. I am grateful to the Chairman for the dispatch 
with which he has brought forward the Flank Document for 
consideration by the Committee and, ultimately, by the full 
Senate.
    The 17-0 vote in the Committee to report the Flank Document 
to the Senate demonstrates the strong bipartisan support that 
this amendment to the CFE Treaty enjoys. But that strong vote 
should not be interpreted as support for the resolution of 
ratification in its entirety. I must emphasize, as I did during 
the Committee mark-up, my objection to one condition in the 
resolution: Condition (9), which addresses the question of 
``multilateralization'' of the 1972 Anti-Ballistic Missile 
(ABM) Treaty. (``Multilateralization'' is the term of art for 
converting the treaty from a bilateral pact to a multilateral 
treaty.) Consequently, during Senate consideration of the Flank 
Document, I will oppose this condition as it now stands.
    Condition (9) would prevent the President from depositing 
the instrument of ratification on the Flank Document until he 
certifies that he will submit to the Senate, for its advice and 
consent, any agreement to multilateralize the ABM treaty. 
Specifically, such an agreement must be submitted to the Senate 
if it: (1) ``would add one or more countries as States Parties 
to the ABM Treaty or otherwise convert the ABM Treaty from a 
bilateral treaty to a multilateral treaty;'' or (2) would 
``change the geographic scope or coverage of the ABM Treaty, or 
otherwise modify the meaning of the term `national territory' 
as used in Article VI and Article IX of the ABM Treaty.''
    Quite obviously, the condition has no connection to the 
issue before us in this treaty: that is, limitations on 
conventional forces in Europe. Of course, there is no 
germaneness requirement under the Senate rules. But in 
undertaking the solemn duty to advise and consent to treaties--
a power assigned only to the Senate in our constitutional 
system--the Senate should, as a matter of practice, exercise 
some self-restraint; as a general rule, conditions on 
resolutions of ratification ought to bear some rational 
relationship to the treaty at issue. One strains to find such a 
relationship here.
    More important than relevance, there is no legal 
requirement that the Senate advise and consent to the ABM 
succession agreement. I yield to no one in my determination to 
protect the Senate's powers and prerogatives under the Treaty 
Clause of the Constitution. For instance, Iagreed with the 
Chairman--and stated my views forcefully to the Executive--that the 
treaty now before us, the CFE Flank Document, unquestionably required 
Senate advice and consent, because it effects a substantive change to 
the underlying CFE Treaty. So, too, does the so-called ``ABM 
Demarcation agreement,'' which will be submitted to the Senate once it 
is signed. But the succession agreement on the ABM Treaty effects no 
such substantive change. Rather, the succession agreement achieves a 
single objective: of codifying the status of the states, under the 
Treaty, which succeeded to the rights and obligations of the former 
Soviet Union, while ensuring that it remains consistent with the 
original object and purpose of the Treaty. Determining whether new 
states which emerge from a dissolved state inherit the obligations of 
the predecessor state is a function of the Executive. Any claim in this 
instance that a Senate ``prerogative'' is at issue is much overstated, 
for there is no prerogative to exercise here.
    As stated in the President's November 25, 1996, report to 
Congress, submitted in accordance with Section 406 of the FY 
1997 Department of State and Related Agencies Appropriations 
Act, the

        resolution of succession questions has long been 
        regarded as a function of the Executive Branch, and 
        many executive agreements have been concluded that 
        recognized the succession of new States to the treaty 
        rights and obligations of their predecessor. Such 
        agreements have not been treated as treaty amendments 
        or new treaties requiring Senate advice and consent, 
        but rather as the implementation of existing treaties, 
        which is recognized as [an] exclusively Presidential 
        function under the Constitution.

This principle has been applied, it bears emphasis, by both the 
Bush and Clinton Administrations in the case of the dissolution 
of the Soviet Union and Yugoslavia.
    At its heart, Condition (9) is not about Senate 
prerogative, but about whether or not the ABM Treaty should 
continue to remain in force. That is a subject of legitimate 
debate (although I should add that I strongly support the 
retention of the Treaty). But that debate can readily be 
conducted at another time, on other legislation; engaging in 
that debate now unnecessarily risks slowing ratification of 
this important treaty.
             VII. ADDITIONAL VIEWS OF SENATOR JOHN F. KERRY

    The political change in Europe has been more sweeping and 
profound in the past 7 or 8 years than at any time in the 
preceding 40. It is entirely understandable that the 
Conventional Forces in Europe Treaty must be adapted to take 
those changes into account. I strongly supported the effort to 
do so, and I strongly support the basic treaty alterations that 
were negotiated.
    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 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.
    This 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.
    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, Brigadier General Gary Rubus testified that, ``In 
the judgment of the Joint Chiefsof 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 committee, clearly, agrees with this judgment, as 
evidenced in an overwhelming vote for the resolution of 
ratification. I want to compliment those who struggled to 
overcome the barriers that were placed in the way of bringing 
this matter to a vote in the committee and taking it from there 
to the Senate.
    But I must say I am mystified and troubled by how easy it 
seems for some in the majority to take a treaty that self-
evidently is in our national interest and transform the process 
of advice and consent into an obstacle course. And, once again, 
it is only an immediately looming deadline that has resulted in 
the needed action. It shouldn't be that way, and it does not 
have to be that way.
    As I look at the conditions contained in the resolution of 
ratification, I find several of them--primarily those which the 
Senate appropriately and routinely attaches to treaties--
beneficial and desirable. I find several others to 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.
    Then I see condition No. 9. This condition, of course, 
pertains to the ABM Treaty--a treaty that is not currently 
before either the committee or the Senate. I am unable to 
discern a reasonable or defensible rationale to link the issue 
of multilateralization of the ABM Treaty to action on the CFE 
flank agreement. Indeed, in my judgment, there is no reasonable 
or defensible rationale to link these wholly separate issues.
    Let's be clear about what's going on here. Proposed 
condition No. 9 is hostage-taking, pure and simple. Some 
members of the majority, who have a fundamental aversion to 
arms control agreements and want the United States arrogantly 
to go it alone in the unavoidably interdependent world of the 
last decade of the 20th century, 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--both the substantive 
considerations and the considerations of the proper roles, 
prerogatives, and responsibilities of the Executive and 
Legislative Branches in addressing under the terms of the 
Constitution proposed adjustments or changes to that treaty. I 
believe this Committee should devote considerable time and 
energy to thoroughly exploring and acting on those issues, and 
I am very hopeful that, indeed, our Committee will spend 
considerable time and energy to do so at an appropriate time.
    But I want to register the strongest possible dissent from 
this tactic of hostage-taking. These issues are separate and 
ought to be treated separately. This flank agreement matters to 
our national security, and it is irresponsible to jeopardize 
its ratification because of disagreements with respect to 
another treaty. 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 dignity and seriousness than 
this, and not turn resolutions of treaty ratification into 
``Christmas trees'' by tacking on nongermane amendments.
    Further, purporting to resolve the complex and very 
important ABM issues by attaching a condition to a wholly 
unrelated treaty--and without this committee having carefully 
and thoroughly examined the issues involved through hearings 
and other means--is reckless and ill-advised.
    I understand politics, and 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. Consequently, since 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 May 15 which is less than one week away, I did 
not seek to delete this condition when the committee acted on 
the resolution of ratification. But I expect to have more to 
say about this issue when the resolution is considered on the 
Senate floor, and I know I will not be alone.
    Finally, I am concerned that one of the conditions in the 
resolution appears to single out Armenia for attention as a 
possible violator of the Treaty. Part of condition (5) requires 
a report from the President to the Congress concerning whether 
Armenia violated the Treaty ``in allowing the transfer of 
conventional armaments and equipment limited by the Treaty 
through Armenian territory to the secessionist movement in 
Azerbaijan.'' While there have been allegations of such arms 
transfers through Armenia in the long-running conflict between 
Armenia and Azerbaijan, there also have been allegations of 
arms transfers to Azerbaijan. I do not think it is desirable 
for the Senate to focus only on one of the two nations and its 
fulfillment of its Treaty obligations and not on the other.
    For the reasons I cited previously, I chose not to take 
action in committee that might have jeopardized movement of the 
flank agreement to the Senate floor. But I am hopeful that it 
will be possible to alter the conditions before final Senate 
action so both Armenia and Azerbaijan are addressed more 
equitably.

                                
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