Defending the Senate’s Constitutional Prerogatives: Lott is Right, Clinton-Albright Wrong on the Status of the C.T.B.T.

(Washington, D.C.): Subsequent to the Senate’s crushing rejection of the Comprehensive
Test
Ban Treaty (CTBT) on 13 October, President Clinton, his senior subordinates and spokesmen
have taken the astonishing position that nothing has changed with respect to
U.S. obligations to
adhere to the Treaty. Yesterday, the Washington Times broke the story that
Secretary of State
Madeleine Albright had even gone so far as to write her counterparts in foreign capitals that “I
want to assure you that the United States will continue to act in accordance with its obligations as
a signatory under international law.” This statement is not only a misrepresentation of the actual
legal situation with respect to this fatally flawed treaty. It also bespeaks contempt for
the status
of the Senate as a co-equal partner with the executive in treaty-making.

Enter Senator Lott

Fortunately, Senate Majority Leader Trent Lott (R-MS) has responded
appropriately and
forcefully. In a statement cited in today’s Times, Sen. Lott declared:

“I am deeply disturbed by the Administration’s most recent interpretation of the status
of the Comprehensive Test Ban Treaty. If the Senate does not consent to
ratification of a treaty — and in this case we didn’t — it has no status for the
United States in international law. In fact, the Senate vote serves to release
the
United States from any possible obligations as a signatory of the negotiated text
of the treaty.”

Senator Lott put the Administration on notice, moreover, that its high-handedness in
connection with the Senate’s action on CTBT could have profound effects for its consideration of
the President’s security policy agenda more generally:

“If the Administration persists in maintaining that the United States is bound as a
matter of international law to a treaty that has been rejected by the Senate, then there
will be profound implications for the relationship between the President and the
Senate on foreign policy matters.”

Not the Only Offense

The latter warning is all the more justified in light of the fact that the Clinton
Administration’s
cavalier approach to the Senate’s constitutional prerogatives is not limited to the CTBT.
Indeed, the President is insisting on observing another accord — the 1972 Anti-Ballistic Missile
(ABM) Treaty — that under international law lapsed eight years ago when the other party, the
Soviet Union, became extinct. ¹ He has even begun
negotiations aimed at modifying this
obsolete accord, the practical effect of which is to give the Russians a veto over U.S. decisions to
deploy missile defenses.

Worse yet, Mr. Clinton refuses to submit to the Senate new agreements his Administration
negotiated two years ago with a view to breathing fresh life into the ABM Treaty, out of a
justifiable fear that the Senate would likely reject the broadening of the scope and the signatories
of the original treaty that they would entail. Clearly it is the case, however, that — in the absence
of such replacement treaties — the 1972 agreement can no longer be legally binding upon the
United States.

Similarly, the President refuses to seek the Senate’s advice and consent to the Kyoto
Protocol —
another fatally flawed treaty that he is allowing to bind the United States to obligatory reductions
in the emission of so-called “greenhouse gases” in clear defiance of the constitutionally
mandated procedure.² Here, too, the reason appears to be
that the Protocol would face certain
rejection by the Senate. Mr. Clinton presumably calculates that, as long as Senators are denied a
chance to vote it down, he remains free to issue executive orders compelling compliance on the
part of the Federal government and, inevitably, upon others, as well.

The Bottom Line

Senator Lott and other defenders of the Senate’s prerogatives like Foreign Relations
Committee
Chairman Jesse Helms (R-NC) and Senator Jon Kyl (R-AZ) are
absolutely right to reject the
Administration’s arrogant behavior on the Comprehensive Test Ban Treaty. In fact, one
of the
reasons they and forty-eight other Senators voted to defeat the CTBT last month was
precisely because they were concerned that delaying a vote — as the
Administration and many
others urged them to do — would have the effect of perpetuating American obligations
under
international law to take no steps that would undercut the object and purpose of the
Treaty.

Nothing but grief can come to the country if the President is effectively able to make any
deals
he wishes, no matter how inconsistent with U.S. security, economic or other vital interests, and
then insist that they be considered binding upon the Nation — even if he denies the Senate an
opportunity to vote upon them or, in the event a vote is allowed to be taken, the Senate rejects the
treaty in question.

¹ See the Center’s Press Release
entitled Message to Albright, Primakov: New Legal Analysis
Establishes That The A.B.M. Treaty Died with the U.S.S.R. ( href=”index.jsp?section=papers&code=99-P_11″>No. 99-P 11, 22 January 1999).

² See Eco-Disarmament: Clinton-Gore’s Global
Warming Crusade Threatens U.S. Military —
As Well As The Nation’s Economy (No. 97-D
135, 15 September 1997); Effects of Clinton’s
Global Warming Treaty on U.S. Security Gives New Meaning to the Term ‘Environmental
Impact’ (No. 97-C 149, 6 October 1997);
and The Senate Must Insist On An Early Vote On
The Kyoto Treaty (No. 97-C 193, 15
December 1997).