May 12, 1997
Multilateralization as A Substantive Change to the ABM Treaty
On Monday, May 12, 1997, the Senate is likely to consider Treaty Doc. 105-5, the Flank Document Agreement to the Conventional Armed Forces in Europe (CFE) Treaty. The CFE-related conditions to the resolution of ratification are not controversial -- the Senate Foreign Relations Committee reported out the resolution of ratification on a unanimous 17-0 vote. However, the condition to the ratification resolution requiring the President to send to the Senate for advice and consent a multilateralized (i.e., to include at least four successor states to the Soviet Union) Anti-Ballistic Missile Treaty will be a topic of intense debate, because President Clinton insists such a changed agreement does not require Senate ratification.
Condition 9 of the Flank Document Agreement reiterates the position reflected in past legislation that protects the Senate's Constitutional prerogatives to provide advice and consent on a substantively changed ABM Treaty. The condition includes two findings and a certification requirement.
The first finding cites Section 232 of the FY 1995 Defense Authorization Act requiring that any agreement that "substantively modifies" the ABM Treaty must be submitted to the Senate for advice and consent. The second finding cites language from the conference report accompanying the FY 1997 Defense Authorization Act stating that any agreement to add signatories to the ABM Treaty would constitute a substantive change to the Treaty requiring Senate advice and consent. This conference report was adopted with strong bipartisan support.
Condition 9 also requires that prior to the deposit of the U.S. instrument of ratification, the President is to certify to Congress that he will submit to the Senate any international agreement that would add one or more countries as States Parties to the ABM Treaty, or otherwise convert the Treaty from a bilateral to a multilateral Treaty, or that would change the geographic scope or coverage of the ABM Treaty or otherwise modify the definition of national territory as used in the ABM Treaty.
Upon taking office, the Clinton Administration began negotiations with Russia to "clarify" the ABM Treaty to (among other things) resolve the "successorship" issue (i.e., which of the former Soviet states should become parties to the ABM Treaty), given the dissolution of the Soviet Union. The still unsigned successorship agreement names Russia, Belarus, Kazakhstan and Ukraine as parties to replace the Soviet Union in the Treaty, and provides a mechanism by which other states of the Former Soviet Union can accede to the Treaty.
In 1994, the Clinton Administration claimed that proposed "clarifications" and other modifications to the ABM Treaty would not necessarily require Senate advice and consent. Congress responded by passing legislation in the FY 1995 DoD Authorization Act (P.L. 103-337) stating:
"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 into pursuant to the treaty making power of the President under the Constitution."
On May 2, 1995, fifty Republican Senators (including former Senator and now current Secretary of Defense Bill Cohen), wrote a letter to President Clinton emphasizing the view that a substantively changed ABM Treaty requires Senate advice and consent. The letter read:
"We are writing in advance of your summit meeting in Moscow to reiterate our strenuous objections to any action which would politically strengthen the 1972 Anti-Ballistic Missile (ABM) Treaty, expand its scope, increase the number of signatories, or otherwise add impediments to the development and deployment of effective U.S. theater missile defenses. On four separate occasions -- January 17, February 6, March 8 and April 6 -- Senate Republicans have written to you on this critical issue, indicating our opposition to such efforts and underscoring our position that any such treaty changes would be subject to the advice and consent of the Senate."
One year later, language reflecting this view was contained in the conference report accompanying the FY 1997 DoD Authorization Act (P.L. 104-201), which stated 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."
Despite such urging, and the fact that current laws state clearly the requirement that the President send a multilateralized ABM Treaty to the Senate for ratification, the Administration continues to claim that adding successor states to the ABM would not require Senate ratification. On November 29, 1996, White House Special Assistant William C. Danvers sent a report to Congress advising the leadership of the President's intention to sign and implement the successorship agreement without the Senate's advice and consent.
There are a number of arguments to support the view that multilateralization of the ABM Treaty constitutes a substantive change to that Treaty.
Changed Rights and Obligations of the Parties
A multilateral ABM Treaty will change the basic rights and obligations of the parties. Originally, the ABM Treaty reflected a bilateral treaty marked by symmetrical and reciprocal rights, obligations and interests. Under the Memorandum of Understanding on Succession (MOUS), this balanced configuration will change, whereby some parties will be entitled to a deployed ABM system, while others will not.
For instance, the successorship agreement places the four successor states into two different categories, with Russia being allowed to deploy an ABM system and the other three not. So while the other successor states would be responsible for regulating ABM activities on their territories in accordance with other treaty provisions, they cannot deploy defenses as permitted by Article III of the Treaty. This clearly creates an asymmetrical level of rights and obligations for the states parties. For instance, Kazakhstan could locate new early warning radars only on the periphery of its territory and oriented outward (restrictions as outlined in the Treaty) but would not be permitted to protect its capital with an ABM system because Russia already has the one ABM system allowed under the 1974 ABM Treaty Protocol deployed around its capital, Moscow.
Multilateralization Changes the Geographic Scope and Coverage of the ABM Treaty
Since several critical limitations in the Treaty are defined in terms of the "national territory," any change to this definition changes the basic limitations in the Treaty. For instance, Article VI of the Treaty defines the Soviet Union in geographic terms and limits the placement of certain early warning radars to positions "along the periphery of its national territory and oriented outward."
But the MOUS defines territory as combined territories and the periphery as the combined periphery of all Former Soviet Union (FSU) parties. Instead of the Treaty applying to the territory of an individual nation, it applies, for the former Soviet Union, to a number of nations. The resulting effect: Russia could legally, for example, establish new early warning radars on the territory of another state, well beyond the periphery of Russia, while the United States is restricted to the periphery of its own territory. Moreover, both the territory and the periphery could change over time because the MOUS allows the admission to the Treaty of additional FSU states even after entry into force of the MOUS.
Changed Political and Strategic Circumstances
The fundamental political and strategic circumstances surrounding the ABM Treaty have changed since it was signed. The ABM Treaty entered into force in 1972, during the bi-polar Cold War era. Multilateralization will change the ABM Treaty from a bi-lateral to a multilateral agreement.
The fall of the Berlin Wall and the subsequent dissolution of the Soviet Union created dramatic changes in the military relationship between the United States and Russia. At the same time, technological advances have created a new -- and unanticipated in 1972 when the ABM Treaty was signed -- threat of proliferating ballistic missile, nuclear, chemical and biological weapons from developing countries.
An agreement to extend the Treaty by adding more states parties into a dramatically changed geopolitical environment, must have Senate review through its Constitutional role of advice and consent.
Standing Consultative Commission (SCC) Significantly Altered
Article XIII of the ABM Treaty establishes a Standing Consultative Commission (SCC) to oversee treaty implementation and to consider proposals for amendments to the Treaty. Adding more states will change the process for amending the Treaty and the basic operations of the SCC. According to the provisions of the SCC, changes to the ABM Treaty can be made only through consensus of the parties.
With multilateralization, rather than two treaty partners, the SCC would be comprised of at least five treaty partners. This would complicate reaching a unanimous decision to do such things as change the Treaty, as allowed under the Treaty's terms (Article XIV, Sec.1). The MOUS confers on these states full veto rights over matters related to the Treaty's substance and ABM systems, even though many of these countries have no stake in the outcome, because none of the successor states other than Russia possess either strategic offensive or defensive systems, whose limitations are the subject of the Strategic Arms Limitations Talks (SALT) I Treaty, in conjunction with defensive limitations outlined by the ABM Treaty.
It is unclear how the United States could negotiate changes to the Treaty or reject proposed changes to the Treaty without having to bargain with each of the other members. In such bargaining, the United States might be forced to make diplomatic concessions on other fronts. At the same time, the United States could find it difficult to fend off pressures from a unified front of four states' parties demands on any number of extraneous issues. This is a significant alteration of important rights of the United States under the ABM Treaty.
Other Issues
Lack of Strategic Criteria for Determining Successors
The current MOUS creates a situation in which some of the prospective ABM Treaty partners possess none of the things limited by the Treaty yet they would be conferred certain rights under the Treaty (i.e., inclusion in such implementing structures as the SCC); while others such as Azerbaijan, a former Soviet state with an early warning radar on its territory, are excluded.
A related concern is how the successorship agreement as currently written could undermine the object and purpose of the ABM Treaty. It is likely only 4 out of the 12 states that now occupy the territory formerly known as the Soviet Union will accede to the Treaty. The remaining eight other states would not be obligated to abide by the restrictions of the ABM Treaty and will be unconstrained from constructing ABM systems, components, or related facilities on their national territories, creating the possibility that multiple ABM sites could be legally deployed on the territory of the former Soviet Union. The only way the United States could deploy such multiple sites would be through a negotiated change to the Treaty, requiring consensus of all states parties.
The Congressional Research Service's (CRS) Legal Analysis
In June of 1996, the CRS published a legal analysis on multilateralization. Some supporting the Administration's view may try to cast this report as a categorical endorsement of the Administration's position on multilateralization. It is not.
The CRS analysis concludes by stating, "But an apportionment of the rights and obligations of the USSR under the ABM Treaty to its successor states would not, in itself, seem to require Senate participation." (CRS, "Legal Analysis of Whether the Multilateralization of the ABM Treaty Requires the Advice and Consent of the Senate," p. 6) "Seem to" is not an unambiguous endorsement of the Administration's position, and should not go unchallenged if presented as such.
In addition, in a recent conversation with Senate staff, the legal analyst who prepared the CRS document admitted that he had not examined the MOU on Succession in arriving at his determination, yet, the analysis also states that, "Arguably, a multilateralization agreement could include matters that would alter the substance of the ABM Treaty and require Senate advice and consent." [p. 6] Thus, the CRS analysis, in addition to failing to make an unambiguous finding, is incomplete.