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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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