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

[Page: S4473]

Mr. LOTT...I am glad I was able to come to the floor, Madam President, and listen to this exchange. I always enjoy learning from the exchanges involving the senior Senators, like the Senators from West Virginia and North Carolina and Delaware. I wish all Members had been here for the last hour and heard this debate.

I do want to take just a few minutes, as we get to the close of debate, to speak on the Chemical Forces in Europe flank agreement or resolution of ratification because I think it is very important. I wish we did have more time to talk about all of its ramifications, but I know the chairman and the ranking member have gone over the importance of this treaty earlier today.

Madam President, we have an important treaty before us today modifying the 1990 Conventional Armed Forces in Europe Agreement [CFE]. The Flank Document adjusts the CFE boundaries to reflect the collapse of the Soviet Empire, adds reporting requirements, and increases inspection provisions.

Negotiations to modify the CFE Treaty began in 1995, because Russia threatened to violate the flank limits in the original treaty. The precedent of modifying a treaty to accommodate violations by a major signatory concerned many of us. We have also been concerned about how Russia intends to use the Flank Agreement to pressure countries on its borders--former Republics of the Soviet Union. Our concerns were dramatically heightened by the classified side agreement the administration reached to further accommodate Russian demands. This side agreement is available for all Senators to review in room S-407 of the Capitol.

The concerns about the CFE Flank Agreement are shared by a number of states which have been subjected to Russian intimidation, pressure and subversion. States with Russian troops on their soil without their consent--Moldova, Ukraine, and Georgia--have rightly expressed concern that the Flank Agreement must not undermine their sovereign right to demand withdrawal of those Russian forces. A fourth country, Azerbaijan, has been subject to Russian-sponsored coups and assassination attempts. They have been reluctant to approve the Flank Agreement without adequate assurances.

The resolution of ratification before the Senate today addresses these concerns. The resolution includes a number of binding conditions which make clear to all CFE parties that no additional rights for Russian military deployments outside Russian borders are granted.

The resolution ensures that United States diplomacy will not be engaged on the side of Russia but on the side of the victims of Russian policies. In addition, the 16 members of NATO issued a statement last week affirming that no additional rights are granted to Russia by the Flank Agreement. This statement was a direct result of the concerns expressed by other CFE parties and by the Senate.

The resolution directly addresses the administration's side agreement in condition 3 which limits United States diplomatic activities to ensuring the rights of the smaller countries on Russia's borders. This resolution ensures the United States will not tacitly support Russian policies that have undermined the independence of Ukraine, Georgia, Moldova, and Azerbaijan. Finally, the resolution requires detailed compliance reports and lays out a road map for dealing with noncompliance in the future.

The resolution of ratification also addresses important issues of Senate prerogatives. It clarifies that the Byrd-Biden condition, added to the INF Treaty in 1988, does not allow the administration to avoid Senate advice and consent on treaty modifications or amendments. The resolution addresses the issue of multilateralizing the 1972 ABM Treaty in condition 9. The administration has raised objections to this provision as they have to many previous efforts to assert Senate prerogatives on this point. This should be an institutional position--not a partisan issue.

For more than 3 years, Congress has been on the record expressing serious misgivings about the administration plan to alter the ABM Treaty by adding new signatories. Section 232

of the 1994 defense authorization bill states the issue clearly: `The United States shall not be bound by any international agreement entered into by the President that would substantively modify the ABM Treaty unless the agreement is entered pursuant to the treaty making power of the President under the Constitution.'

Efforts to address the multi- lateralization issue since then have resulted in filibusters and veto threats. It should not surprise anyone that the Senate selected this resolution of ratification to address the issue--just as Senators Byrd and Biden selected the resolution of ratification for the INF Treaty to address an ABM Treaty issue 9 years ago.

Many of my colleagues are familiar with the issue of ABM multi- lateralization. Despite the often arcane legal arguments, the issue is not complicated. The Senate gave its advice and consent to the 1972 ABM Treaty as a bilateral agreement between the United States and the Soviet Union. The administration has proposed adding as many as four new signatories to the treaty and has negotiated limited treaty rights for those new signatories. The administration's proposal would define Russia's national territory to include these countries for purposes of the ABM Treaty. The administration's proposal would essentially define military equipment of these countries as belonging to Russia for purposes of the ABM Treaty. The administration's proposal would add new countries to the ABM Treaty but not grant them rights allowed the original signatories. This would mean that countries would have the power to block future U.S. amendments to the ABM Treaty--even though the new signatories would not have the same rights and obligations as the United States. The administration's proposed multilateralization would only address some of the military equipment covered under the original ABM Treaty--leaving a radar in Latvia, for example, outside the scope of the new treaty. Under the administration's proposal, the vast majority of states independent which succeeded the Soviet Union would be free to develop and deploy unlimited missile defenses--a dramatic change from the situation in 1972 when the deployment of missile defenses on these territories was strictly limited by the ABM Treaty.

In part and in total, these are clearly substantive modifications which require--under U.S. law--Senate advice and consent. Multilateralization would alter the object and purpose of the ABM Treaty as approved by the Senate in 1972. Multilateralization, therefore, must be subject to the advice and consent of the Senate.

The administration argues that it has the sole power to determine questions of succession. But that is not true. The Congressional Research Service opinion, quoted widely in this debate, recognizes that `International law regarding successor States and their treaty obligations * * * remains unsettled.' It also notes that `international law does not provide certain guidance on the question of whether the republics formed on the territory of the former U.S.S.R. have succeeded to the rights and obligations of the ABM Treaty' and that `a multi- lateralization agreement could include matters that would alter the substance of the ABM Treaty and require Senate advice and consent.' It is my understanding that this opinion was prepared a year ago by a lawyer who has not even seen the text of the proposed agreement.

The administration's position does not recognize the arms control precedents followed in the last decade. Arms control treaties are different from treaties on fisheries, taxes, or cultural affairs. START I was concluded with the Soviet Union but entered into force only after the Senate gave its advice and consent to the Lisbon Protocol apportioning the nuclear forces of the former Soviet Union among successor States. The Bush administration did not argue that Ukrainian SS-19 missiles were the property of Russia. Yet, the Clinton administration is essentially arguing that Ukrainian phased-array radars are Russian under the proposed ABM multilateralization agreement. The question of successor state obligations under the CFE Treaty was explicitly recognized by the Senate when we gave our advice and consent to that treaty. During our consideration, a condition was included in the resolution of ratification which specified procedures for the accession of new States Parties to the CFE Treaty. On the issue of ABM multilateralization, Congress has specifically legislated on our right to review the agreement. To my knowledge, that has not happened on any other succession issue. Clearly, ABM multilateralization is very different from routine succession questions which have been decided by the executive branch alone.

Madam President, I agree with the administration on one important point. This is a constitutional issue. The White House has taken one position until today, and now the Senate has definitively taken another. Last January, I asked President Clinton to agree to submit three treaties for our consideration. the President has agreed to submit the ABM Demarcation agreement and the CFE Flank Agreement, which is before the Senate today. After he refused to submit ABM multilateralization, I said publicly that I would continue to press for the Senate prerogatives--because the Constitution, the precedents and the law are on our side. We do not prejudge the outcome of our consideration of ABM multilateralization. All we require is that the administration submit the agreement to the Senate. Yes, that requires building a consensus that may not exist today but such a consensus is necessary for a truly bipartisan national security policy. That is the issue before the Senate today.

Late last week, the administration recognized the Senate's desire to review ABM multilateralization. They proposed replacing the certification in condition 9 with nonbinding `sense of the Senate' language. In exchange, Secretary Albright offered to send a letter assuring us that we could address multilateralization in an indirect way--as part of a reference in the ABM demarcation agreement. But this offer was logically inconsistent. It asked the Senate to simply express our view about a right to provide advice and consent to multilateralization--and then accept a letter that explicitly denied that right. Adding new parties to the ABM Treaty is a fundamentally different issue from the proposed demarcation limits on theater defense systems. The administration's offer would allow multilateralization regardless of Senate action on the demarcation agreement. Our position is simple: We want to review multilateralization through the `front door' on its own merits--not through the `back door' as a reference in a substantively different agreement.

When the administration agreed to submit the CFE Flank Agreement for our advice and consent, we were asked to act by the entry into force deadline of May 15. We will act today even though the treaty was not submitted to the Senate until April 7--3 months after my request. We will act today even though we have a very full agenda--including comp time/flex time, IDEA, partial birth abortion and the budget resolution. We will fulfill our constitutional duty, we will address our concerns about policy toward Russia, and we will address the important issue of Senate prerogatives.

I urge my colleagues to support the entire resolution of ratification reported by the Foreign Relations Committee--including condition 9 on ABM multilateralization.

Madam President, I want to thank many Senators who have worked very hard and for quite some time on this treaty and on the ABM condition.

I particularly would like to thank Chairman Helms, Senator Biden, Senator Gordon Smith, and their staffs for all the work they did to get this resolution before the Senate today. Also, I would like to thank Senators who helped in insisting on Senate prerogatives--Senator Warner and Senator McCain, Senator Smith, Senator Kyl, Senator Shelby, Senator Lugar, and Senator Hagel. A number of Senators on the committee and some not on the committee have been very much involved in this process. I commend them all.

Senators have had concerns about how and why this agreement was negotiated, and we had concerns about a side deal the administration made with the Russians concerning the allocation of equipment under the treaty.

The Senate has addressed these concerns decisively in this resolution of ratification. The resolution places strict limits on the administration's flank policy. It ensures that we will be on the side of the victims of Russian intimidation and that the United States will stand up for the independence of States on Russia's borders.

Most important, this resolution addresses a critical issue of Senate prerogative, our right to review the proposed modifications to the 1972 ABM Treaty. It was a decade ago that another ABM Treaty issue was brought in this body. That debate over interpretations of the ABM Treaty was finally resolved in the resolution of ratification for the INF Treaty in 1988.

Today, we are resolving the debate over multilateralization of the ABM Treaty in this resolution of ratification. For more than 3 years now Congress and the executive branch have discussed back and forth the appropriate Senate rule in reviewing the administration's plan to add new countries to the ABM Treaty.

Condition 9 requires the President to submit any multilateralization agreement to the Senate for our advice and consent. It does not force action here. It just says we should have that opportunity. We should be able to exercise that prerogative to review these changes. It ensures we will have a full opportunity to look at the merits of multilateralization in the future. I believe the Constitution and legal precedence are in our favor.

Today, the Senate will act on the Conventional Forces in the Europe [CFE] Flank Agreement in time to meet the May 15 deadline. In spite of the limited time we had to consider the agreement and the very full schedule that we have had on the floor, we are meeting that deadline.

I did have the opportunity to discuss this issue with our very distinguished Secretary of State yesterday, and we discussed the importance of this CFE Flank Agreement. Also, we talked about how we could properly and appropriately address our concerns about multilaterilization. I suspect that she probably had something to do with the decision to go forward with it in this form, and I thank her for that, and the members of the committee for allowing it to go forward in this form.