When President Reagan and General Secretary Gorbachev sat together in the White House on December 8, and placed their signatures on the INF treaty, millions of persons around the world applauded. Even as I joined in the applause, I had reservations, which were based on the past year’s political debate over the proper interpretation of the 1972 ABM treaty. Did the President and the General Secretary truly have a mutual understanding of the intricacies of the agreement they were signing? Will the Senate, which under the Constitution must ratify the treaty for it to have any binding effect upon our nation, fully understand the meaning of the agreement? When, as is inevitable, disagreements arise in the future over particular applications of the treaty, how will we determine the “proper” interpretation of this newest US–Soviet arms control agreement?
During the last year the Senate and the executive branch spent countless hours in a complicated political dispute over the proper interpretation of the ABM treaty. Two interpretative positions emerged, commonly referred to as the “broad” and the “narrow” interpretations of the treaty. (To put a complex matter too simply, the broad interpretation might be taken to allow the testing of certain kinds of new antimissile weapons in space. The narrow interpretation would impose more stringent limits on such testing.) Each side offered every possible shred of documentary evidence in support of its position. Unlike our judicial system, however, where clear rules govern the kinds of evidence that are and are not admissible, the political debate over the ABM treaty was governed by no rules whatsoever. As a result, each side made substantial use of the secret negotiating record compiled in the course of negotiating the ABM treaty over a period of many years.
The State Department’s legal adviser, Abraham Sofaer, the principal proponent of the broad interpretation of the ABM treaty, and Senator Sam Nunn, the principal proponent of the narrow interpretation, each believed that the confidential negotiating record lent support to his case. In fact, their resorting to the negotiating record as evidence of the treaty’s meaning resolved nothing; and it introduced a dangerous precedent for the upcoming debate over the INF treaty. To be blunt: I believe that unless there is agreement among my fellow senators that the negotiating record of the INF treaty is not a valid basis for determining its meaning as part of a debate on ratification, the INF agreement will not be ratified by the Senate. The feelings of hope that lifted our spirits on December 8 will give way to the enormous frustration and disappointment that followed the Senate’s refusal to ratify the SALT II agreement.
There are at least three good reasons for the Senate to refuse to consider the secret negotiating record during its ratification debate (and to refuse to consider the record later should disagreements arise about the meaning of some provision of the treaty). First, the negotiating record is so large and complex that meaningful review is not realistically possible. Clearly, there are some senators who will oppose ratification of the treaty. A serious review of the negotiating record—which likely consists of tens of thousands of pages of documents—would give rise to an endless debate over the meaning of particular documents. As one documentary dispute was resolved, opponents of the treaty would raise another one, and then another, ad infinitum.
Second, the negotiating record is not reliable evidence of the treaty’s meaning. This is precisely why such records, for the most part, are not considered valid evidence under international law. Virtually all of the record is unilateral: it consists of the US negotiators’ memoranda and statements regarding their own views of the negotiations. These views, to say the least, may not have been shared by the Soviet negotiators, who never saw most of the documents in question. General Secretary Gorbachev, of course, committed his nation to a treaty, not to the various US negotiators’ unilateral interpretations of various aspects of its negotiation.
Third, most of the negotiating record is highly confidential and strictly classified. We do not typically make arms control treaty negotiation records public because both we and the Soviets rightly fear that this would detract from the spirit of openness and trust among negotiators which is critical to the treaty process. By turning the negotiating record into a public issue—the subject of months of debate on the Senate floor about every negotiator’s confidential comment, view, or recollection—we would gravely prejudice the possibility of successfully negotiating other treaties with the Soviets on strategic arms reduction. Indeed, we would particularly jeopardize the current negotiations on strategic arms and weapons in space.
The Soviets must chuckle at our dilemma when we come to treaty interpretation. Like any other agreement, a treaty is effective only if the parties to it have a “meeting of the minds” with respect to its meaning and their mutual obligations under it. But while the commitment of the Soviets is effective when the Soviet general secretary writes his signature, President Reagan’s signature is only the beginning of the process of clarifying our country’s understanding and committing us to the treaty. For under our Constitution, of course, commitment to a treaty requires joint action of the executive and and the Senate. There is no US “understanding”—and hence no treaty between the US and the Soviets—unless and until the Senate, through ratification, joins the President in committing our nation to the agreement reached between the two heads of state. Sometimes, as with the SALT II agreement, that simply never happens.
What some people allege happened with the ABM treaty is that President Nixon and Soviet General Secretary Brezhnev agreed upon one understanding of the treaty, while the executive branch then presented a quite different understanding of the treaty to the Senate during the ratification proceedings. That alleged difference is at the root of the current dispute over the “broad” versus the “narrow” interpretation of the ABM treaty. The problem, of course, is that if the President adopts one interpretation of a proposed treaty and the Senate ratifies the treaty with a different interpretation in mind, there may be no joint action sufficient, for constitutional purposes, to bind the US to the treaty.
When Senator Nunn and Judge Sofaer began using the secret negotiating records to support their respective positions in the ABM debate, I had grave reservations. At a joint hearing before the Senate Judiciary Committee and the Senate Foreign Relations Committee, I questioned Senator Nunn about where such an approach would lead us. What happens, I asked, if understandings about the ABM treaty are upset because the secret negotiating records demonstrate that the executive branch at the time of ratification misled the Senate? What happens to our ability to negotiate treaties in the future if we place on the other nation—in this case the Soviet Union—the risk that a treaty subsequently will be upset because our executive branch did not deal honorably with the Senate? Is it tenable to place the Soviets in the position of having to keep track of our ratification proceedings to ensure that the executive branch and the Senate have a shared understanding of the treaty’s meaning? Senator Nunn’s response was short and to the point. If that occurred, he admitted, “it would be a first-class royal mess.” Indeed it would.
Senate consideration of the entire INF treaty negotiating record will put us on the road to an equally royal mess. The secret negotiating record underlying a treaty is disorganized. It is not compiled or maintained to be used as a guide to interpretation. Most of the negotiating record of a treaty consists of draft memoranda of conversations (“MEMCONS”) summarizing the US negotiators’ recollections of unrecorded discussions with the other nation’s negotiators. Meaningful review of the ABM record was virtually impossible for a senator; review of the INF record, which will be far larger, would be even more difficult.
The ABM treaty negotiating records, because of their highly classified nature, are maintained in a special office in the Senate, to which access is strictly limited. Only a few staff members are cleared to see the documents. The documents themselves are confusing, highly technical, and not in any organized form. Most of them are unilateral statements by our negotiators which never were shown to the Soviets. The record contains many internal conflicts and gaps that never are explained or reconciled. While we refer to it as a “record,” it is unlike a court record in that it has no particular order or coherence.
More important than the physical difficulty of reviewing a record so large and unorganized is the inherent unreliability of the record itself. The record—even if read thoroughly—can convey at best only our own negotiators’ unilateral version of the negotiations. The documents in the negotiating record are not based on transcripts or tape recordings of the negotiating sessions. They are not verbatim. In most cases they were written from memory several hours or days after the discussions they summarize. Such documents reflect not what a Soviet negotiator said or meant, but what a US negotiator later recollected the Soviet negotiator saying or meaning.
Precisely because such unilateral documents are so unreliable, the basic rules of international law, as set forth in the Restatement of the Law of Foreign Relations of the United States, make it clear that they may not be used for interpretative purposes: “Position papers of delegations, conference records kept by delegations for their own use…will usually be excluded.” In his treatise International Agreements, Lord McNair stated: “In particular, it [negotiating history] should only be admitted when it affords evidence of the common understanding of both or all parties.”
There is one noteworthy exception to the general rule that the negotiating record sheds no light on the shared understanding of the two sides. Some of the documents—a very small portion of the record—were shared with both sides. Typically, these are draft proposals which ultimately did not become part of the treaty—at least not precisely as written. These documents, unlike much of the record, provide reliable evidence of the parties’ thinking, at least at a certain stage of the negotiations. They are viewed as “admissible” evidence under international law, and I believe that these relatively few documents should be made available to the Senate as part of the ratification process. For example, a draft proposed by one side and provided to the other side is accurate, verbatim, and self-authenticating. Differences between it and treaty language ultimately agreed upon by the parties are extremely telling in resolving issues of interpretation. If, for example, at one point in the negotiations, language clearly supporting a particular interpretation was specifically proposed by one side but rejected by the other, such evidence would certainly count as proof of intentions. As has been noted, however, such documents are only an extremely small fraction of the treaty negotiating record.
There is no doubt that the INF record will be even more cumbersome than the ABM record. The origins of the new agreement date from the late 1970s, when the US and its NATO allies decided to deploy new missiles in Europe after the Soviets refused to limit or reduce their own deployments, particularly of the longer range, high-accuracy, multiple warhead SS20s. The treaty text itself is almost twenty times greater than the ABM treaty. The negotiating record probably will run to tens of thousands of pages, almost all of it nonverbatim restatements of various discussions, as recollected by our negotiators. Insisting upon a “thorough examination” of the record would be an ideal tactic for Senate opponents of the INF treaty, who could use the uncertainties inherent in such a record to create debilitating—and probably fatal—delay in the ratification process. To repeat, if we in the Senate do not agree among ourselves not to examine the negotiating record (except for those few documents which were reviewed by both the US and Soviet negotiators) then the much-heralded INF treaty probably is dead.
Review of the negotiating record also would prejudice the possibility of other arms control treaties. As a practical matter, the INF negotiations and the ongoing US–Soviet negotiations regarding strategic arms reduction and weapons in space substantially overlap. Revealing key aspects of those negotiations indirectly, before they are complete, is a sure-fire way to disrupt those collateral talks and reduce any possibility that they will lead to further agreements on arms control. One of the principal reasons why negotiating records traditionally have not been considered in the ratification process, and have not been resorted to subsequently for purposes of interpretation, is that the subjects of many treaties inevitably interconnect.
I doubt that I am revealing any secrets by noting that senators have been known, on occasion, to develop strategies for delay when they lack the votes to prevail on the merits of an issue. A minority of senators may prevail if, by successful delay and confusion of the issues, they effectively exhaust the rest of the Senate. What better tactic for delaying and possibly blocking a ratification vote on the INF treaty than to initiate a rolling debate on the meaning of first one confidential MEMCON, then another, then another? Senators simply cannot do the necessary reading and analysis to engage in a debate just in those terms. The ratification process eventually would collapse of its own weight.
The problem of which I am warning is not hypothetical. Senator Dole, the Republican leader, is sufficiently concerned about possible efforts to sidetrack the treaty that he has created an INF task force (on which I serve) to monitor and oversee the ratification process. Some of my fellow senators already have requested access to the entire INF treaty negotiating record. These requests, whatever their basis, play into the hands of a determined opponent of the INF treaty who is willing to abuse the ratification process. The Senate should refuse to let the INF treaty become an unintended victim of the political fallout from the dispute over the meaning of the ABM treaty. Ratification of the INF treaty should be on the basis of its text, and any future ambiguities should be resolved by the text of the ratification record and the practices of the parties under the treaty. To the extent that we do otherwise, we endanger not just the possibility of ratifying the INF treaty, but of reaching other treaty agreements in the future.
The administration and some senators departed from these sound principles of US and international law during the heated debate over the ABM treaty and its application to Star Wars testing. They now risk being trapped by the bad precedent they created, as opponents of the INF agreement search for ways to defeat the new treaty. Those administration officials and senators who opposed each other in the ABM debate but now stand together in their support of the INF agreement should acknowledge that their insistence on resorting to the negotiating record for purposes of interpreting the ABM treaty was a mistake that should not be repeated.
February 4, 1988