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AMENDMENT OFFERED BY MR. MCINTOSH

Committee on International Relations,
Washington, DC, June 16, 1997.

The President,
The White House,
Washington, DC.

Dear Mr. President: Last week the House of Representatives approved H.R. 1758, the `European Security Act of 1997.' I originally introduced this legislation on April 24th of this year with the cosponsorship of Dick Armey, Jerry Solomon, Porter Goss, Curt Weldon, and others to address a number of issues bearing on U.S. relations with Russia.

Pursuant to House Resolution 159, the European Security Act as passed by the House has been appended to H.R. 1757, the `Foreign Relations Authorization Act for Fiscal Year 1998 and 1999.' Inasmuch as the Senate companion measure to H.R. 1757 is scheduled for Senate floor action this week, it appears likely that the European Security Act will be addressed in a House-Senate conference committee in the very near future.

As we prepare for conference on the European Security Act, we find it necessary to ask for additional information relevant to one of the bill's provisions relating to multilateralization of the Anti-Ballistic Missile (ABM) Treaty.

Section 6(c)(1) of the European Security Act states that:

`It is the sense of the Congress that until the United States has taken the steps necessary to ensure that the ABM Treaty remains a bilateral treaty between the United States and the Russian Federation (such state being the only successor state of the Union of Soviet Socialist Republics that has deployed or realistically may deploy an anti-ballistic missile defense system), no ABM/TMD demarcation agreement will be considered for approval for entry into force with respect to the United States . . .'

I am aware that, subsequent to the introduction of the European Security Act, the Senate on May 14th approved Treaty Doc. No. 105-5, a resolution advising and consenting to ratification of the CFE Flank Agreement. Condition 9 of this resolution required the President to:

`. . . certify to Congress that he will submit for Senate advice and consent to ratification any international agreement . . . 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 . . .'

I am further aware that, on May 15th, you submitted to Congress the certification required by Condition 9 of Treaty Doc. No. 105-5.

In order to help the conferees on the European Security Act understand the degree to which section 6(c)(1) of that bill has been addressed (and perhaps rendered unnecessary) by Condition 9 of Treaty Doc. 105-5, I would appreciate receiving your prompt response to the following questions:

1. In the view of the Administration, what countries in addition to the United States are today parties to the ABM Treaty?

2. What countries sent representatives to the most recent meeting of the Standing Consultative Commission in Geneva?

3. To the extent that the list of countries identified in response to question no. 1 includes countries in addition to those identified in response to question no. 2, does the Administration believe that those additional countries have the legal right to send representatives to meetings of the Standing Consultative Commission and otherwise participate in the administration of the ABM Treaty?

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4. To the extent that the list of countries identified in response to question no. 1 includes countries in addition to those identified in response to question no. 2, why are those additional countries not currently participating in the Standing Consultative Commission? Are those additional countries aware that, in the view of the United States Government, they are parties to and are bound by the ABM Treaty? On what date were they informed of this fact by the United States Government?

5. To the extent that the list of countries identified in response to question no. 2 includes countries in addition to those identified in response to question no. 1, what is the legal justification for the participation of those additional countries in the Standing Consultative Commission?

6. Does the Administration currently intend to conclude with Russia, Ukraine, Kazakhstan, Belarus, or any other of the newly independent states an agreement or agreements regarding ABM Treaty succession?

7. In the event that the Senate fails to act on an agreement submitted to it by the Administration regarding ABM Treaty succession, what countries in addition to the United States will, in the view of the Administration, be parties to the ABM Treaty?

8. In the event that the Senate votes to reject an agreement submitted to it by the Administration regarding ABM Treaty succession, what countries in addition to the United States will, in the view of the Administration, be parties to the ABM Treaty?

9. Apart from the consequences that would flow from Senate approval of, rejection of, or inaction on an agreement submitted to it by the Administration regarding ABM Treaty succession, what other developments, if any, may lead to a change in the list of countries that are today parties to the ABM Treaty?

10. Apart from the consequences that would flow from the Senate approval of, rejection of, or inaction on an agreement submitted to it by the Administration regarding ABM Treaty succession, what other developments, if any, may lead to a change in the list of countries legally entitled to send representatives to meetings of the Standing Consultative Commission and otherwise participate in the administration of the ABM Treaty?

I appreciate your cooperation in this matter.

With warmest regards,

Sincerely,

Benjamin A. Gilman,
Chairman.

The White House,
Washington, November 21, 1997.

Hon. Benjamin A. Gilman,
Chairman, Committee on International Relations, House of Representatives, Washington, DC.

Dear Mr. Chairman: Thank you for your letter concerning the Anti-Ballistic Missile (ABM) Treaty succession arrangements. As you know, after discussion between our staffs, we deferred this formal response to your letter pending completion of the ABM-related agreements, including the Memorandum of Understanding (MOU) on ABM Treaty succession. These documents were signed on September 26, 1997, and mark, along with the START II documents that were signed the same day, a significant step forward. The MOU, as well as the agreements relating to the demarcation between theater and strategic ballistic missile defense systems, will be provided to the Senate for its advice and consent. Thus, the Congressional concerns that you raised related to approval of these agreements have been directly addressed.

You raised a number of questions on ABM Treaty succession generally. Let me make a few background points. The MOU on succession was the result of detailed negotiations spanning several years. When the USSR dissolved at the end of 1991, it became necessary to reach agreement as to which former Soviet states would collectively assume its rights and obligations under the Treaty (which clearly continued in force by its own terms). The United States took the view that, as a general principle, agreements between the United States and the USSR that were in force at the time of the dissolution of the Soviet Union would be presumed to continue in force as to the former Republics. It became clear, however, particularly in the area of arms control, that a case-by-case review of each agreement was necessary.

In dealing with matters of succession, a key U.S. objective has been to preserve the substance of the original treaty regime as closely as possible. This was true with respect to the elaboration of the MOU as well. Accordingly, the MOU works to preserve the original object and purpose of the Treaty. For example, it restricts the four successor states to only those rights held by the former Soviet Union by limiting them collectively to no more than 100 interceptors on 100 launchers at a single ABM deployment area and precluding the transfer of ABM systems and components to states that are not Party to the Treaty. Neither a simple recognition of Russia as the sole ABM successor (which would have ignored several former Soviet states with significant ABM interests) nor a simple recognition of all NIS states as full ABM successors would have preserved fully the original purpose and substance of the Treaty, as approved by the Senate in 1972.

Our willingness to work with key successor states, in addition to Russia, on strategic arms control issues has served, and will continue to serve, U.S. national security interests. Under the Lisbon Protocol to the START I Treaty, Belarus, Kazakhstan, Russia and Ukraine, the successor states on whose territory all strategic offensive arms of the former Soviet Union were based and all declared START-related facilities were located, assumed the rights and obligations of the former Soviet Union under the START I Treaty. The Protocol also obligated Belaraus, Kazakhstan, and Ukraine to adhere to the Treaty on the Nonproliferation of Nuclear Weapons. Both the Bush Administration and Clinton Administration engaged in major diplomatic initiatives to ensure implementation of the Lisbon Protocol, especially with respect to the removal of all nuclear warheads from Ukraine, Belarus, and Kazakhstan; the accession of these successor states to the Nonproliferation Treaty; and the entry into force of START I.

For certain key successor states to the former Soviet Union, ABM Treaty succession was, and remains, a priority issue. Ukraine, in particular, has made clear to us that it considers Ukraine's legal status under the ABM Treaty to be the same as under the INF Treaty (to which it is considered a Party) and that, in its view, its succession status with regard to both Treaties should be the same.

There are many complex factors in our strategic relationship with the former Soviet states. Had we been unwilling to engage with states in addition to Russia on key arms control agreements (START, INF and ABM), it is unlikely that we would have achieved the kind of comprehensive resolution of issues related to the disposition of strategic assets that has been achieved. A change in course at this time that would exclude key successor states from the ABM succession formula could place at risk continued progress on strategic arms and other nuclear matters.

Since the last review of the ABM Treaty in 1993 (required every five years by the terms of the Treaty, Belarus, Kazakhstan, Russia, and Ukraine--each of which have ABM Treaty-related assets on its territory--have been the only former Soviet republics that have participated in the ABM Treaty-related discussions held in the Standing Consultative Commission (SCC). While the other eight former Soviet republics have been informed of SCC sessions, none has participated, and three--Armenia, Azerbaijan, and Moldovia--have expressed their lack of interest in being considered as Parties to the Treaty. Indeed, it has become clear over the past four years of negotiations that, in addition to Russia, the former Soviet republics of Belarus, Kazakhstan, and Ukraine have substantial interest in the specific subject matter of the Treaty. For these reasons, prior to the signing of the MOU, the United States notified the other eight new independent states of our intentions to bring the succession issue to closure and to sign the MOU with Belarus, Kazakhstan, the Russian Federation, and Ukraine, recognizing that these four successor states along with the United States, constitute the Parties to the ABM Treaty.

Upon its entry into force, the MOU will confirm the four former Soviet states participating in the SCC as the successor states to the Soviet Union for purposes of the Treaty. This does not constitute a substantive modification of rights and obligations under the Treaty; rather, it is a recognition of the status of those former Soviet republics in light of dissolution of the USSR. As a practical matter, the recently signed SCC regulations make clear that the increased SCC participation will be structured in a way similar to, and having the same effect as, that which has been successful for the United States in working with Belarus, Kazakhstan, Russia and Ukraine in implementing the START and INF Treaties.

As to your question regarding the possibility that the Senate might fail to act upon or might reject the MOU on succession, we believe that the case for all the ABM-related agreements, including the MOU on succession, will prevail on its merits. We further believe that the package of agreements serves U.S. national security and foreign policy objectives. If, however, the Senate were to fail to act or to disagree and disapprove the agreements, succession arrangements will simply remain unsettled. The ABM Treaty itself would clearly remain in force.

We appreciate this opportunity to clarify the record in this area and look forward to future opportunities to communicate and consult with you on these matters.

Sincerely,
Bill Clinton.

Congress of the United States,
Washington, DC, March 3, 1998.

The President,
The White House, Washington, DC

Dear Mr. President: We appreciate your response of November 21, 1997, to Chairman Gulman's letter of June 16, 1997, regarding the proposed multilateralization of the Anti-Ballistic Missile (ABM) Treaty. We appreciate as well your making Administration lawyers available to meet with congressional staff on January 30, 1998, to elaborate on your November 21st response.

The most important legal question that arises in connection with multilateralization of the ABM Treaty is the first question posed in Chairman Gilman's letter: In the view of the Administration, what countries in addition to the United States are today parties to the ABM Treaty?

Your response to this question appears to be: Until an agreement on succession to the ABM Treaty comes into force, the identity of the other party or parties to the ABM Treaty is `unsettled.' Indeed, when asked on January 30th whether Russia, Ukraine, Uzbekistan, or any other country that emerged from the Soviet Union is today prohibited by the ABM Treaty from deploying an ABM system at more than one site, Administration lawyers stated repeatedly that it is `unclear' whether any of these countries is so bound.

The Administration's response is profoundly disturbing. If it is unclear as a matter of law whether Russia or any other country that emerged from the Soviet Union is today bound by the ABM Treaty, then it also should be unclear whether the United States is so bound. Yet the Administration has insisted for years that the United States remains fully bound by the ABM Treaty.

With regard to ballistic missile defense, for example, the Administration has argued consistently that the United States should not test or deploy certain systems that could provide our nation highly effective protection against ballistic missile attack because such systems would violate our nation's obligations under the ABM Treaty. It now appears, however, that the Administration views the United States, at least for the time being, as the only country that is clearly subject to those obligations.

It is obvious to us, however, that under basic principles of international law a treaty requires more than one state party in order to give rise to binding legal obligations. If the Administration is unable to identify any country in addition to the United States that is today clearly bound by the ABM Treaty, then there is no country that the United States can look to today to uphold the obligations previously imposed on the Soviet Union by the Treaty, and no country that today is entitled to complain if the United States fails to uphold the Treaty.

If, in fact, the Administration does not consider the United States to be the only country that is today clearly bound by the ABM Treaty, we would appreciate your identifying for us the other country (or countries) that is today party to--and bound by--the Treaty. In the absence of such clarification, we will have no choice but to conclude that the ABM Treaty has lapsed until such time as the Senate approves a succession agreement reviving the Treaty.

Thank you for your attention to this inquiry.

With best wishes,

Sincerely,

BENJAMIN A. GILMAN,
Chairman, Committee on International Relations.

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JESSE HELMS,
Chairman, Committee on Foreign Relations.

The White House,
Washington, May 21, 1998.

Hon. Benjamin Gilman,
Chairman, Committee on International Relations, House of Representatives, Washington, DC.

Dear Mr. Chairman: Thank you for your letter concerning the Anti-Ballistic Missile (ABM) Treaty succession arrangements. As I said in my letter of November 21, 1997, the Administration will provide to the Senate for its advice and consent the Memorandum of Understanding (MOU) on ABM Treaty succession, which was signed on September 26, 1997. Moreover, the MOU will settle ABM Treaty succession. Upon its entry into force, the MOU will confirm Belarus, Kazakhstan, Russia, and Ukraine as the successor states to the Soviet Union for purposes of the Treaty and make clear that only these four states, along with the United States, are the ABM Treaty Parties.

In your letter of March 3, you state that if the Administration is unable to identify any country in addition to the United States that is clearly bound by the Treaty, then you would have no choice but to conclude that the Treaty has lapsed until such time as the Senate approves a succession agreement reviving the Treaty.

Following the dissolution of the Soviet Union, ten of the twelve states of the former Soviet Union initially asserted a right in a Commonwealth of Independent States resolution, signed on October 9, 1992, in Bishkek, to assume obligations as successor states to the Soviet Union for purposes of the Treaty. Only four of these states have subsequently participated in the work of the Standing Consultative Commission (SCC), and none of the other six has reacted negatively when we informed each of them that, pursuant to the MOU, it will not be recognized as an ABM successor state. A principal advantage of the Senate's approving the MOU is that the MOU's entry into force will effectively dispose of any such claim by any of the other six states.

In contrast, Belarus, Kazakhstan and Ukraine each has ABM Treaty-related assets on its territory; each has participated in the work of the SCC; and each has affirmed its desire to succeed to the obligations of the former Soviet Union under the Treaty.

Thus, a strong case can be made that, even without the MOU, these three states are Parties to the Treaty.

Finally, the United States and Russia clearly are Parties to the Treaty. Each has reaffirmed its intention to be bound by the Treaty; each has actively participated in every phase of the implementation of the Treaty, including the work of the SCC; and each has on its territory extensive ABM Treaty-related facilities.

Thus, there is no question that the ABM Treaty has continued in force and will continue in force even if the MOU is not ratified. However, the entry into force of the MOU remains essential. As I pointed out in my letter of November 21, the United States has a clear interest both in confirming that these states (and only these states) are bound by the obligations of the Treaty, and in resolving definitively the issues about ABM Treaty succession that are dealt with in the MOU. Without the MOU, ambiguity will remain about the extent to which states other than Russia are Parties, and about the way in which ABM Treaty obligations apply to the successors to the Soviet Union. Equally important, maintaining the viability of the ABM Treaty is key to further reductions in strategic offensive forces under START II and START III.

I appreciate this further opportunity to clarify the record in this area.

Sincerely,
Bill Clinton.