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

Mr. THURMOND. Mr. President, I rise in support of the CFE Flank Document resolution of ratification. My support of the CFE Flank Document is based largely upon the 14 conditions that the Foreign Relations Committee attached to the resolution of ratification. I am particularly pleased that the Foreign Relations Committee included condition 9, which deals with the Senate's prerogatives on multilateralization of the ABM Treaty. This has been an issue with which the Armed Services Committee has been deeply involved for many years.

I would strongly oppose any effort to dilute or eliminate condition 9 from the resolution of ratification. Condition 9 does not take a position, as such, on the ABM Treaty or treaty succession. It simply seeks to protect the Senate's prerogatives in case the treaty is substantively changed. I find it difficult to believe that any Member of this body would be opposed to this objective. In my view, it is a solemn and fundamental obligation of a Senator to consistently guard the rights and prerogatives of the Senate, regardless of which political party may occupy the White House at any given time.

Mr. President, although international law is ambiguous on the question of treaty succession, the U.S. Constitution and statutory law is clear. As section 232 of the National Defense Authorization Act for fiscal year 1995 states, `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.' This provision originated as an amendment sponsored by Senator Warner of Virginia and Senator Wallop of Wyoming, two of the Senate's foremost experts on the ABM Treaty.

Notwithstanding the administration's assertion that treaty succession is an executive branch responsibility, or any argument that one might derive from international law, the real issue is simple and clear. Only one overarching question needs to be answered: Does multilateralization of the ABM Treaty constitute a substantive change to the treaty? If so, the President has no choice, under the law and the Constitution, other than to submit such an agreement to the Senate for advice and consent.

Ironically, those who have asserted that the President does not need to submit the multilateralization agreement to the Senate for advice and consent have not even attempted to answer the one relevant question: Is it a substantive change or not? Instead they have chosen to base their views strictly on ambiguity-laden international law and a simple assertion of executive prerogative.

If one carefully analyzes the issues associated with ABM Treaty multilateralization, it is difficult to avoid the conclusion that the ABM Treaty will indeed be modified in several substantive ways. The conferees to the fiscal year 1997 Defense Authorization Act recognized this in 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.' This conference language, which was supported overwhelmingly on a bipartisan basis, was the culmination of 2 years of effort by several key Senators on the Armed Services Committee: I have been joined in this fight by Senator Lott of Mississippi, Senator Warner of Virginia, Senator--now Secretary of Defense--Cohen of Maine, and Senator Smith of New Hampshire, as well as other stalwart supporters of the Senate's prerogatives.

Why would multilateralization of the ABM Treaty constitute a substantive change? First, because the basic strategic rationale for the treaty would be altered. The ABM Treaty was intended to be part of an overarching arms control regime for regulating United States-Soviet competition in strategic offensive forces. But under a multilateral ABM Treaty, some members will have neither strategic offensive nor strategic defensive forces, and hence no direct stake in the treaty's subject matter. Overall, the United States faces strategic and political circumstances that are vastly different than those that existed in 1972 when the ABM Treaty was signed. The Senate must carefully consider how these bear on the issue of treaty succession.

Second, the ABM Treaty will change from a treaty between two equal parties to one in which different parties have different rights and obligations. Some states will be entitled to a deployed ABM system, others will not. The United States will also face four states rather than one at any future negotiation concerning the future of the treaty. This clearly diminishes the weight of the American vote in the Standing Consultative Commission and increases the complexity of seeking changes or clarifications to the treaty.

Third, the actual mechanics of the ABM Treaty will be altered by multilateralization since the treaty is largely defined in terms of `national territory.' Some items that are regulated by the treaty, including large phased array radars, are currently located outside the national territory of any of the states that plan to accede to the ABM Treaty. Also, those former Soviet States that opt not to stay in the treaty would be legally permitted to deploy an unlimited ABM system even though their national territory was formerly covered by the treaty's definition of Soviet `national territory.'

Mr. President, these are only a few of the ways in which a multilateral ABM Treaty would constitute a substantive change from the original treaty. The evidence is overwhelming. For the Senate to do anything other than to insist on its right to provide advice and consent to such an agreement would be an abandonment of its rights and obligations. I urge my colleagues to stand together on this important constitutional prerogative of the Senate. The executive branch must not be permitted to circumvent the Senate on a matter of such fundamental importance.

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