Hon. Trent Lott,
Majority Leader, U.S. Senate,
Dear Mr. Leader: The President has asked me to reply to your letter concerning the Chemical Weapons Convention (CWC) and the role of the Senate under the Constitution in giving its advice and consent to treaties. Our staffs have held some discussions on this matter, but I want to address in more detail each of the three treaty issues you raise in the letter: the CFE flank agreement, ABM multilateralization and ABM/TMD demarcation.
On May 31, 1996, the United States, our NATO allies, Russia and the 13 other States Party to the CFE Treaty approved a document in Vienna culminating more than two years of intensive negotiations on the CFE flank issue. The centerpiece of this agreement was a realignment of the CFE map (depicting the territory of the former USSR in the CFE area), which has the effect of reducing the size of the flank zone. The CFE parties had deliberately not included this map as part of the Treaty when it was signed in 1990, and the Bush Administration did not submit the map to the Senate in 1991 as part of the formal documents for advice and consent. Accordingly, legal counsels in the Clinton Administration's national security agencies determined last year that a change to the map does not constitute a formal amendment to the Treaty.
At the same time, we determined that a realignment of the map did constitute a change in a `shared understanding' formed with the Senate at the time the Senate gave its advice and consent to the Treaty. That `shared understanding' established that the Treaty would be applied and interpreted on the basis of the original map. According to the 1988 `Biden Condition' on treaty interpretation (which was attached by the Senate to its resolution of ratification for the INF Treaty), Senate consent or congressional approval is required to change a shared understanding.
When the Administration submitted the CFE flank document for legislative approval last August, we were faced with a time-urgent situation: by its own terms, the document required all States parties to confirm their approval by December 15; yet very little time remained before the adjournment sine die of the 104th Congress. In this circumstance we chose to seek statutory approval by both houses, as is explicitly permitted under the Biden Condition.
We now face a complex situation. At the Lisbon OSCE Summit in December, the 30 States party to the CFE Treaty agreed to extend the deadline for confirmation of approval to May 15, 1997. In recent months, it has become evident that the flank agreement underpins the new negotiations in Vienna on `CFE adaptation,' which in turn underpins NATO's efforts to define the new security environment in Europe as NATO enlarges. In addition, both adaptation of the CFE Treaty and the admission of new states to NATO will be effected through agreements that will be submitted for the advice and consent of the Senate. The situation and timing is therefore different from when the Administration submitted the CFE flank agreement for legislative approval last August. Accordingly, the Administration is prepared, without prejudice to its legal position vis-a-vis the approval options we believe are available to us, to seek Senate advice and consent to the flank Document provided the Senate will act on this crucial matter before May 15.
As noted in the President's November 25, 1996 report to Congress submitted in accordance with Section 406 of the FY 1997 State Appropriations Act (the `Livingston Report'--hereafter referred to as `the Report'), executive agreements recognizing the succession of new States to the treaty rights and obligations of their predecessors have traditionally not been treated as treaty amendments or new treaties requiring Senate advice and consent.
Rather, they have been treated as the implementation of existing treaties, which is recognized as an exclusively Presidential function under the Constitution. The Report elaborates the specific reasons why this conclusion applies in the case of the June 24, 1996 Memorandum of Understanding (MOU) on ABM Succession reached ad ref between the United States, Russia, Ukraine, Belarus and Kasakstan in the Standing Consultative Commission (SCC). It also explains why the MOU does not constitute a substantive modification of the ABM Treaty.
In dealing with matters of succession, a key U.S. objective has been to reconstitute the original treaty arrangement as closely as possible. This was true with respect to the elaboration of the ad ref MOU as well and, accordingly, the MOU works to preserve the original object and purpose of the ABM Treaty. We hope that the breakthrough on ABM/TMD demarcation achieved at the Helsinki Summit will set the stage for a meeting at which all parties would sign this MOU. The Administration continues to believe that the agreement does not require the advice and consent of the Senate, or any other form of congressional approval, to enter it into force.
The White House,
Washington, April 24, 1997.