FLANK DOCUMENT AGREEMENT TO THE CFE TREATY (Senate - May 14, 1997)

[Page: S4467]

Mr. KYL. Mr. President, Article II of the Constitution gave the President and the Senate equal treaty making powers, stating that the President `shall have the power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.' Substantive changes to treaties also require the advice and consent of the Senate. John Jay made one of the most persuasive arguments about this point, noting that, `of course, treaties could be amended, but let us not forget that treaties are made not by only one of the contracting parties, but by both, and consequently that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter . . . them.'

Condition 9 of the resolution of ratification for the CFE Flank Agreement protects the Senate's constitutional role by requiring that any agreement to multilateralize the 1972 ABM Treaty be submitted to the Senate for advice and consent, since any such agreement would substantively alter the rights and obligations of the United States and others under the treaty. This condition is not the first expression of the Senate's view on this issue, and would merely be the latest addition to a clear legislative history.

Section 232 of the Defense Authorization Act for fiscal year 1995 clearly states that any agreement that substantively modifies the ABM treaty must be submitted to the Senate for advice and consent.

The conference report accompanying the fiscal year 1997 Defense Authorization Act built on the language in the 1995 Authorization Act stating that, `the accord on ABM Treaty succession, tentatively agreed to by the administration would constitute a substantive change to the ABM Treaty, which may only be entered into pursuant to the treaty making power of the President under the Constitution.'

The conversion of the ABM Treaty from a bilateral to a multilateral agreement represents a substantive modification of the treaty. First of all, multilateralization changes the agreement by altering the definition of territory, which is at the heart of the treaty. Article I of the 1972 ABM Treaty states, `Each Party undertakes not to deploy ABM systems for a defense of the territory of its country.'

Under the terms of the memorandum of understanding on Succession to the ABM Treaty, territory would now be defined as the `combined national territories of the U.S.S.R. Successor States that have become Parties to the Treaty.' The term periphery would also be changed to mean the combined periphery of all the former Soviet states party to the treaty. Thus, instead of the treaty applying to the territory of a single nation, in the case of the former Soviet Union, it would apply to a number of nations.

Multilateralization would also be a substantive change since it would create a system of unequal rights under the treaty, wherein the New Independent States of the former Soviet Union would be treated as second class citizens. The ABM Treaty that the Senate agreed to 25 years ago created identical rights and obligations for each party. Under the memorandum of Uunderstanding on succession, however, only two of the potential parties to the treaty--the United States and Russia--would be permitted to field an ABM system. Other nations, while responsible for regulating ABM activities on their territory, would not be allowed to deploy such a system. For example, Ukraine could locate new early warning radars on the periphery of its territory, oriented outward, but would not be permitted to protect its capital with an ABM system.

The multilateralization of the ABM Treaty also undermines U.S. efforts to promote the independence of the former Soviet republics. The memorandum of understanding on succession states that the term capital of the U.S.S.R. will continue to mean the city of Moscow. This designation, in addition to granting the New Independent States inferior rights under the treaty, and defining territory and periphery as the combined total of the former Soviet states sends the wrong message. It tells the New Independent States that they remain linked to Russia, without equal rights.

Finally, multilateralization represents a substantive change to the agreement since it would diminish U.S. rights and influence under the treaty. New parties will surely be given a seat at the Standing Consultative Commission [SCC], which interprets, amends, and administers the ABM treaty. Under the 1972 ABM Treaty, the United States could take actions through bilateral agreements with the Soviet Union. By expanding the number of nations in the treaty, it will now be necessary to reach multilateral consensus to interpret or amend the treaty. One country, such as Belarus, could effectively block United States actions or demand concessions, even if Russia and the other parties to the treaty agreed with the United States. Negotiating changes or common interpretations of treaty obligations with Russia is a difficult task. Adding up to 11 new parties to the treaty will make this process much more difficult.

In addition to the reasons I have cited as to why multilateralization would substantively modify the ABM Treaty, and the legislative history compelling the administration to submit the agreement to the Senate for advice and consent, the way the Senate has considered succession agreements for the various arms control treaties concluded between the United States and the Soviet Union further supports the case for Senate consideration of any ABM successorship document.

Since the breakup of the Soviet Union, the only arms control treaty which was not re-submitted to the Senate for advice and consent due to changes in countries covered, was the INF Treaty. This treaty carried a negative obligation, namely not to possess intermediate-range nuclear missiles . Since no treaty terms were altered and U.S. rights and obligations remained unchanged, advice and consent was not necessary.

The resolution of ratification for the START I Treaty was accompanied by a separate protocol multilateralizing the treaty, which was submitted to the Senate for advice and consent.

This same protocol determined successorship questions for the Nuclear Nonproliferation Treaty [NPT].

Finally, the Senate specifically considered the question of multilateralization of the Conventional Armed Forces in Europe [CFE] treaty under condition #5 of its resolution of ratification.

As I have discussed today, the addition of parties to the ABM Treaty clearly represents a substantive modification of the treaty. The Defense Authorization Acts passed by the Senate in 1995 and 1997, and the history of how this body has considered succession agreements to previous arms control accords with the Soviet Union strongly support the submission of any ABM multilateralization agreement to the Senate. Voting to require the administration to submit the ABM multilateralization agreement for advice and consent, simply protects the Senate's constitutional role in treaty making. Reasonable people may differ over the merits of the ABM Treaty or the addition of one or more countries to the agreement, but I believe all my colleagues can agree that before this new treaty is implemented, the Senate needs to fulfill its constitutional duty by considering whether to give its advice and consent to this new agreement.

[Page: S4468]