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Give Missile Treaty a Single Meaning : Before Consenting, Senate Must Put Lid on Reinterpretation

March 13, 1988|RALPH EARLE II | Ralph Earle II, chief U.S. negotiator of the SALT II treaty (1978-80), is the national policy director of the nonpartisan Lawyers Alliance for Nuclear Arms Control.

As the treaty on intermediate-nuclear forces proceeds through the Senate with near unanimous approval, two questions have arisen: What is the purpose of this exercise? What is the Senate's role in advising the White House regarding treaty ratification? Surprisingly, answering these fundamental questions may impede ratification, which would otherwise appear to be a foregone conclusion.

Under the terms of the U.S. Constitution, all international treaties must be submitted to the Senate for advice-and-consent before its provisions become law.

In 1972 the first significant U.S.-Soviet arms-control treaty, the anti-ballistic missile treaty, was overwhelmingly approved by a Senate vote of 88 to 2. Thirteen years later, however, the Reagan Administration claimed to have defined a new meaning of the treaty that would permit testing of high-tech weapons in space, the heart of President Reagan's Strategic Defense Initiative, or "Star Wars," program.

Wait a minute, some responded, the Senate approved the ABM treaty believing that it banned such tests. Consequently, the current legal adviser to the State Department dismissed Nixon Administration testimony as erroneous and the ABM treaty ratification process as irrelevant. The truth, according to current Administration policy, can only be found in the treaty's negotiating record, which, it is claimed, supports the new interpretation and which can be used to alter the treaty's meaning without consulting the Senate.

If that reasoning is applied to the INF treaty, the current Senate ratification hearings may well be simply a waste of time. The entire process will itself be irrelevant if there is no restriction placed on a future Administration's "right" to overturn what is now being agreed upon.

There is a solution. Some senators are considering a condition on consent to ratification of the INF treaty that would forbid, without Senate approval, any future interpretation differing from the common understanding regarding the treaty reached by the White House and the

Senate. If the Reagan Administration does not support that idea, it may be necessary for the Senate to tie that condition to INF treaty ratification. This is true for several reasons.

It is incredible that one can argue years after ratification that a further review of the negotiating record by people not involved in that negotiation can take legal precedence over the contemporaneous testimony of those who did participate. It is bad policy--it is bad law.

Furthermore, as a former negotiator, I know that the proposed policy can only have a chilling effect on flexibility in future negotiations. If every proposal and counter-proposal made in the course of a negotiation lasting several years can later be scrutinized for meanings, even if unintended by the participants, our negotiators will be stultified and their efforts to achieve satisfactory agreements will be compromised.

Finally, when referring to the "negotiating record," one should be clear about the subject matter. Other than the plenary statements and the agreement itself, the record is merely a mass of unilateral memoranda prepared by one side. Accordingly, it is nonsensical to suggest that a memorandum of conversation prepared by negotiator "X" in 1990 and reviewed in 1995 by lawyer "Y" should have any greater, or even as great, import as Senate testimony on the same subject by negotiator "X" in 1990? A future Administration should not have the option of redefining a treaty's terms by dismissing the executive branch testimony as "not authoritative."

The Reagan Administration is in a quandary of its own making. It has negotiated a treaty that eliminates a Soviet missile threat and has justifiably received widespread support. It has sent witnesses to the Senate clarifying and supporting the treaty's terms. Therefore, one would hope that the Administration would accept the condition without opposition since it merely confirms longstanding constitutional principle.

But, by using this Administration's own arguments regarding the ABM Treaty, a future Administration may simply dismiss the INF ratification testimony as "non-authoritative. It is hard to imagine that the INF treaty's negotiators would agree to its arbitrarily being overturned in 10 or 15 years.

Failure to resolve this issue during the next few weeks will leave the future of the INF treaty in jeopardy. More important, it could undermine the development of future U.S. arms-control policy, our negotiating leverage with the Soviets and America's credibility with its allies.

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