Disarmament Diplomacy
Issue No. 15, May 1997
US Adoption of CFE Flank Document:
Statement by the President
The Senate unanimously approved the Flank Document on 14 May. See
last issue for details of the Document. The President's statements
were concerned with his interpretation with a number of conditions
attached to the adoption resolution, including a condition that the
President consult and seek the consent of the Senate for any
'multilateralization' of the US-Russia Anti-Ballistic Missile (ABM)
Treaty. Recently, Belarus, Kazakstan and Ukraine were involved in
discussions under the Treaty's Standing Consultative Committee
(SCC), and there are plans to admit these States as full parties to
the accord. The President makes clear his disapproval of this
condition, while nonetheless pledging to adhere by it.
Message to the Senate
'To the Senate of the United States,' Statement by the
President, The White House, 14 May 1997
Full text
"I am gratified that the Senate has given its advice and consent
to the ratification to the CFE Flank Document and I look forward to
the entry into force of this important agreement. It will reaffirm
the integrity of one of the CFE Treaty's core provisions and will
facilitate progress on CFE adaptation and, thus, NATO enlargement,
key elements for advancing United States and European security.
I must, however, make clear my view of several of the Conditions
attached to the resolution of advice and consent to ratification,
including Conditions 2, 3, 4, 6, 7, 9 and 11. These Conditions all
purport to direct the exercise of authorities entrusted exclusively
to the President under our Constitution, including for the conduct
of diplomacy and the implementation of treaties. The explicit
limitation on diplomatic activities in Condition 3 is a
particularly clear example of this point. As I wrote the Senate
following approval of the Chemical Weapons Convention, a condition
in a resolution of ratification cannot alter the allocation of
authority and responsibility under the Constitution. I will,
therefore, interpret the Conditions of concern in the resolution in
a manner consistent with the responsibilities entrusted to me as
President under the Constitution. Nevertheless, without prejudice
to my Constitutional authorities, I will implement the Conditions
in the resolution.
Condition (9), which requires my certification that any
agreement governing ABM Treaty succession will be submitted to the
Senate for advice and consent, is an issue of particular concern
not only because it addresses a matter reserved to the President
under our Constitution, but also because it is substantively
unrelated to the Senate's review of the CFE Flank Document. It is
clearly within the President's authorities to determine the
successor States to a treaty when the original Party dissolves, to
make the adjustments required to accomplish such succession, and to
enter into agreements for this purpose. Indeed, throughout our
history the executive branch has made a large number of
determinations concerning the succession of new States to the
treaty rights and obligations of their predecessors. The ABM
Succession MOU [Memorandum-of-Understanding] negotiated by the
United States effectuated no substantive change in the ABM Treaty
requiring Senate advice and consent. Nonetheless, in light of the
exceptional history of the ABM Treaty and in view of my commitment
to agree to seek Senate approval of the Demarcation Agreements
associated with the ABM Treaty, I have, without prejudice to the
legal principles involved, certified, consistent with Condition
(9), that I will submit any agreement concluded on ABM Treaty
succession to the Senate for advice and consent."
Message to the Congress
'To the Congress of the United States,' Statement by the
President, The White House, 14 May 1997
Full text
"In accordance with the resolution of advice and consent to
ratification on the Document Agreed Among the States Parties to the
Treaty on Conventional Armed Forces in Europe of November 19, 1990
('the CFE Flank Document'), adopted by the Senate of the United
States on May 14, 1997, I hereby certify that:
In connection with Condition (2), Violations of State
Sovereignty, the United States and the governments of Belgium,
Canada, Denmark, France, Germany, Greece, Iceland, Italy,
Luxembourg, the Netherlands, Norway, Portugal, Spain, Turkey and
the United Kingdom have issued a joint statement affirming
that:
(i) the CFE Flank Document does not give any State Party the
right to station (under Article IV, paragraph 5 of the Treaty) or
temporarily deploy (under Article V, paragraphs 1 (B) and (C) of
the Treaty) conventional arms and equipment limited by the Treaty
on the territory of other States Parties to the Treaty without the
freely expressed consent of the receiving State Party;
(ii) the CFE Flank Document does not alter or abridge the right
of any State Party under the Treaty to utilize fully its declared
maximum levels for conventional armaments and equipment limited by
the Treaty notified pursuant to Article VII of the Treaty; and
(iii) the CFE Flank Document does not alter in any way the
requirement for the freely expressed consent of all States Parties
concerned in the exercise of any reallocations envisioned under
Article IV, paragraph 3 of the CFE Flank Document.
In connection with Condition (6), Application and Effectiveness
of Senate Advice and Consent, in the course of diplomatic
negotiations to secure accession to, or ratification of, the CFE
Flank Document by any other State Party, the United States will
vigorously reject any effort by a State Party to:
(i) modify, amend, or alter a United States right or obligation
under the Treaty or the CFE Flank Document, unless such
modification, amendment, or alteration is solely an extension of
the period of provisional application of the CFE Flank Document or
a change of a minor administrative or technical nature;
(ii) secure the adoption of a new United States obligation
under, or in relation to, the CFE Treaty or the CFE Flank Document,
unless such obligation is solely of a minor administrative or
technical nature; or
(iii) secure the provision of assurances, or endorsement of a
course of action or a diplomatic position, inconsistent with the
principles and policies established under conditions (1), (2), and
(3) of the resolution of advice and consent to ratification of the
CFE Flank Document.
In connection with Condition (7), Modifications of the CFE Flank
Zone, any subsequent agreement to modify, revise, amend or alter
the boundaries of the CFE flank zone, as delineated by the map
entitled 'Revised CFE Flank Zone' submitted to the Senate on April
7, 1997, shall require the submission of such agreement to the
Senate for its advice and consent to ratification, if such changes
are not solely of a minor administrative or technical nature.
In connection with Condition (9), Senate Prerogatives on
Multilateralization of the ABM Treaty, I will submit to the Senate
for advice and consent to ratification any international
agreement
(i) that would add one or more countries as States Parties to
the ABM Treaty, or otherwise convert the ABM Treaty from a
bilateral treaty to a multilateral treaty; or
(ii) that would change the geographic scope or coverage of the
ABM Treaty, or otherwise modify the meaning of the term 'national
territory' as used in Article VI and Article IX of the ABM
Treaty.
In connection with Condition (11), Temporary Deployments, the
United States has informed all other States Parties to the Treaty
that the United States:
(A) will continue to interpret the term 'temporary deployment',
as used in the Treaty, to mean a deployment of severely limited
duration measured in days or weeks or, at most, several months, but
not years;
(B) will pursue measures designed to ensure that any State Party
seeking to utilize the temporary deployments provision of the
Treaty will be required to furnish the Joint Consultative Group
established by the Treaty with a statement of the purpose and
intended duration of the deployment, together with a description of
the object of verification and the location of origin and
destination of the relevant conventional armaments and equipment
limited by the Treaty; and
(C) will vigorously reject any effort by a State Party to use
the right of temporary deployment under the Treaty (i) to justify
military deployments on a permanent basis; or (ii) to justify
military deployments without the full and complete agreement of the
State Party upon whose territory the armed forces or military
equipment of another State Party are to be deployed."
Editor's note: on 21 May, the US and Azerbaijan issued a
joint statement on the CFE Flank Agreement, the full text of which
(released by the US State Department) follows. The statement was
signed by Azerbaijan Foreign Minister Araz Azimov and US Under
Secretary for Arms Control and International Security Affairs Dr.
Lynn E. Davis.
"The United States and Azerbaijan look forward to the
prospective entry into force on 15 May, 1997, of the Document
Agreed Among the States Parties to the Treaty on Conventional
Forces in Europe of 19 November, 1990, dated 31 May 1996 ('The CFE
Flank Agreement'). The United States and Azerbaijan affirm their
joint understanding that with respect to the region covered by the
Treaty on Conventional Forces in Europe of November 19, 1990, a
State's military forces should be deployed on the territory of
another State only with the freely expressed consent of the host
country.
They further affirm that with respect to the CFE flank
agreement, it is their common understanding that this
agreement:
- does not give any State Party the right to station (under
Article IV, paragraph 5 of the Treaty) or temporarily deploy (under
Article V, paragraphs 1 (b) and (c) of the Treaty) conventional
armaments and equipment limited by the Treaty on the territory of
other States Parties to the Treaty without the freely expressed
consent of the receiving State Party;
- does not alter or abridge the right of any State party under
the CFE Treaty to utilize fully the maximum levels for its holdings
of conventional armaments and equipment limited by the Treaty
notified pursuant to Article VII of the Treaty;
- does not alter in any way the requirement for the freely
expressed consent of all States Parties concerned in the exercise
of any reallocations envisioned under Article IV, paragraph 3 of
the CFE Flank Agreement.
The United States acknowledges the absence of foreign military
bases on the territory of the Azerbaijan Republic and supports the
position taken by Azerbaijan that the temporary presence of foreign
troops on its territory may be based only on a duly concluded
agreement with Azerbaijan according to its constitution and in
conformity with international law.
The United States and Azerbaijan reiterate their concern with
regard to conventional armaments and equipment of types limited by
the Treaty, which are unaccounted for and uncontrolled within the
Treaty. They recognize the obligation of all States Parties to work
in a cooperative manner within the Joint Consultative Group to
develop practical steps toward fulfilling the commitment of the
States Parties, as expressed in the Review Conference Final
Document, to resolve the issue of unaccounted-for-TLE as soon as
possible and achieve full implementation of all Treaty
provisions.
The United States supports the sovereign right of Azerbaijan, as
a free and independent State, to take the position under the CFE
Treaty contained in the statement of the Chairman of the First CFE
Review Conference on May 31, 1996, that temporary deployment and
reallocation of quotas referred to in Section IV, paragraphs 2 and
3 of the CFE Flank Agreement will not be used in the context of the
Azerbaijan Republic."
© 1998 The Acronym Institute.
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