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

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Mr. WARNER. Mr. President, I thank my friend and colleague, the senior Senator from North Carolina. May I join others in urging that the Senate give its advice and consent to this very important treaty, a treaty brought forward by the leadership of the chairman and the distinguished ranking member at a critical time in the ever-increasing debates regarding Europe, whether it be NATO expansion or other issues.

I was prepared today to go toe to toe with my good friend, the ranking member of this committee, the Senator from Delaware, on the question of condition 9. I have spent a good portion of my career in the Senate on the question of the ABM Treaty. I think it was a very wise addition to this particular resolution of ratification, a provision, condition 9, that addresses the issue of the multilateralization of the ABM Treaty.

I go back to the Fiscal Year 1995 Defense Authorization Act, section 232. It was my privilege to introduce that provision as an amendment to that bill. That provision provided:

The United States shall not be bound by any international agreement entered into by the President that would `substantively' modify the ABM Treaty unless this agreement is entered [into] pursuant to the treaty making power of the President under the Constitution.

That is section 232 of the Fiscal Year 1995 Defense Authorization Act. That is precisely, really a recitation, of what condition 9 requires--follow the law of the land. President Clinton signed section 232 into law, and yet, time and again, this President claims exemptions from the requirement to submit to the Senate agreements which clearly change the rights and obligations of the United States under the ABM Treaty.

For years, I have joined a number in this Chamber, primarily the Republicans, in insisting that the `demarcation' agreement, which the administration is currently completing in negotiations with the Russians, represents again another `substantive' change to the ABM Treaty that must be submitted to the Senate. I am pleased that the administration has at long last acknowledged that very fact and has agreed to bring that demarcation agreement before this body for the advice-and-consent responsibility entrusted to the Senate by the Constitution.

I, like the Senator from Delaware, was concerned about the use of the word `prerogative' in condition 9. I view the advice and consent role as an obligation of the U.S. Senate under the Constitution of the United States. It is an obligation that we must exercise in cases such as the demarcation and the multilateralization of the ABM Treaty.

I ask my colleagues to indulge me just for a minute. I go back to May 1972, a quarter of a century ago. As a much younger man, I was privileged to be a part of the delegation, headed by the President of the United States, that went to Moscow for the summit which culminated in the signing of SALT I, the ABM Treaty and other agreements. The particular matter for which I had primary responsibility was the Incidents at Sea Executive Agreement, which was also signed at that time.

I had been in the Pentagon as Secretary of the Navy during the course of the negotiation of the ABM Treaty. As such, I have spent a good deal of my career, beginning with the inception of that treaty to date, in trying to analyze it and defend it. I think it is a valuable part of our overall arms control relationship with the then-Soviet Union and today Russia. But there is a limit to which that treaty should be applied to other activities that this Nation must now undertake--activities that were not contemplated at the time the treaty was negotiated.

One of those activities--and I do not know of a more important one--is to protect the men and women of the Armed Forces when they are deployed abroad, and any number of civilians in their positions abroad, from the ever-growing threat of short-range ballistic missiles .

Hopefully, this year we will forge ahead and finally clarify--clarify--the misunderstandings about what the ABM Treaty was intended to do and what it was not intended to do on this issue. I have talked to so many of my colleagues who were in that delegation a quarter of a century ago who had a primary responsibility for the ABM Treaty. One after one they will tell you that they never envisioned at that time, from a technological standpoint, this new class of weapons, namely, the short-range ballistic missiles , and that that treaty was never intended to apply to those missiles .

As the Senator from Delaware said, there will be another day on which we can have that debate on the issue of that treaty's application to the current research and development now underway to develop and deploy those systems desperately needed in the Armed Forces of the United States to protect us from the short-range threat, an ever-growing threat, which is proliferating across the world.

The Foreign Relations Committee did precisely what it should have done: included in as condition 9 the protection of future debate on the ABM Treaty such that the U.S. Senate can make the decisions as to whether or not there are successions to the ABM Treaty by other nations.

The ABM Treaty was contemplated, negotiated, and signed as a bilateral treaty. It was approved by the Senate as a bilateral treaty. It strains credibility for the administration to now argue that the conversion of that treaty from a bilateral to a multilateral treaty is not a `significant' change to warrant Senate advice and consent.

At the time this treaty was negotiated, no one involved in the negotiations could ever have envisioned the dissolution of the Soviet Union in their lifetimes--much less within 20 years. Likewise, technical advances in the areas of both strategic offensive and defensive systems could not be adequately anticipated. That is why the treaty has provisions for amendment to adapt it to changing times circumstances, and technologies. I am personally of the view that this treaty should have been--and still needs to be--amended to allow the United States to protect its citizens, stationed abroad from short-range ballistic missile attacks which were not contemplated 25 years ago. But I also strongly believe that any amendment which alters U.S. rights and obligations--any substantive changes--must be submitted to the Senate for advice and consent.

We could argue for days about the international legal principles and requirements in this area. But one thing is clear--domestic law on this issue is unambiguous. Section 232 of the fiscal year 1995 Defense authorization bill, which I referred to earlier, clearly requires the President to submit for Senate advice and consent any international agreement which substantively modifies the ABM Treaty.

It is clear that multilateralization would constitute a substantive change to the ABM Treaty. For 25 years, this has been a bilateral treaty. If new parties are added, the geographic boundaries, which govern many aspects of the treaty, would be changed. Existing U.S. rights under the treaty to amend it by bilateral agreement would be lost. The draft memorandum of understanding on succession, the three new states parties will be given full voting rights in the Standing Consultative Commission [SCC], the body which supervises treaty implementation and negotiates amendments to the treaty. According to the guidelines of the SCC, changes to the ABM Treaty can only be made through a consensus of the parties. That means that any one of these three new states parties could block United States efforts to amend this treaty to allow for effective missile defenses to deal with current threats--even if the Russians agree to the changes.

The succession issue with the states of the former Soviet Union has been handled on a case-by-case basis. In the case of the CFE Treaty and the START I Treaty, the Senate specifically addressed the succession issue during consideration of the resolutions of ratification for those treaties. INF succession was handled without Senate involvement. It is clear that the matter of succession--far from being a legal absolute--is, at best, a murky legal issue.

The unique status of the ABM Treaty was highlighted in the 1994 legislation requiring Senate advice and consent of any international agreement that `substantively' modifies the ABM Treaty. This is not the case for the hundreds of other treaties we had in effect with the former Soviet Union.

Since the ABM Treaty reinterpretation debate of the late 1980's, the Democrats have insisted that any change to a treaty that differs from what was presented to the Senate at the time of ratification must be resubmitted to the Senate or the Congress for approval. Multilateralization of the ABM Treaty is not simply a reinterpretation of the treaty, it is a substantive change to the treaty text. By the Democrats own standards, such a change should clearly require Senate advice and consent.

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