Mr. SHELBY. Mr. President, I rise in support of condition 9 of the resolution of ratification of the CFE Flank Agreement.
Condition 9 simply confirms the Senate's role in treatymaking, as established in the U.S. Constitution and reaffirmed in existing law.
Specifically, condition 9 restates the requirement, enacted as section 232 of the National Defense Authorization Act for fiscal year 1995, Public Law 103-337, that:
The United States shall not be bound by any international agreement entered into by the President that would substantially modify the ABM Treaty unless the agreement is entered pursuant to the treaty making power of the President under the Constitution.
Thus, this body is already on record supporting the preservation of the Senate's constitutional prerogatives in this area.
In other words, the President may not unilaterally negotiate substantive changes to the ABM Treaty without the advice and consent of the Senate.
Frankly, I am surprised some of my colleagues, who in the past have been strong supporters of this body's constitutional prerogatives with respect to treaties in general, and the ABM Treaty in particular, are arguing to strike condition 9.
Not only do the Constitution and U.S. law require Senate advice and consent, but submission to the Senate is also consistent with recent practice on the multilateralization of arms agreements with the Soviet Union to include successor states.
Both the multilateralization of START I and the multilateralization of the CFE Treaty were considered by the Senate when it acted on the Lisbon protocol and the CFE Treaty itself.
Mr. President, some of my colleagues argue that the multilateralization of the ABM Treaty is not a substantive change.
Consider the following:
The proposed changes would alter the basic rights and obligations of the parties--the central issue in any contract or treaty.
Second, the proposed changes would modify the geographic scope and coverage of the Treaty, and would do so by taking the extraordinary step of defining Russia's national territory to include the combined territory of other independent states of the former Soviet Union.
Third, the role and function of the Standing Consultative Commission [SCC], in particular the ability of the United States to negotiate amendments to the treaty to protect our national interests, would be dramatically changed by the accession of new parties to the treaty with effective veto power over treaty amendments.
Lastly, some of my colleagues have cited a Congressional Research Service legal analysis that seems to suggest that the Senate has no role in the process.
In response, I would like to point out that:
The CRS analysis concludes that an apportionment of the rights and obligations of the U.S.S.R. under the ABM Treaty to its successor states would not, in itself, seem to require Senate participation.
The CRS analysis goes on to say, however, `arguably, a multilateralization agreement could include matters that would alter the substance of the ABM Treaty and require Senate advice and consent.'
The administration's proposal clearly falls into the latter category.
It does much more than merely apportion the rights and obligations of the U.S.S.R.
It apportions some rights to some successor parties--but denies them to others, in effect creating two classes of parties. This asymmetry and lack of reciprocity represents a clear departure from both the legal and strategic assumptions embodied in the initial treaty.
It specifically permits Russia to establish ABM facilities on the territory of other independent states. This is not an apportionment; this creates a new right under the treaty.
The administration proposal admits to the treaty states which neither have nor intend to have offensive or defensive strategic weapons, while giving them virtual veto rights over the strategic posture of other parties.
This brings me to the most important point: The administration's proposal affects the rights of the United States to provide for our own defense as we see fit.
It was to protect those rights that the Senate was given its advice and consent role in the first place. The Senate must not abdicate its role, now.
I urge my colleagues to support this provision.