As a result of the Treaty, the Soviet Union will have to reduce its TLE inventory by almost 23,500. The former members of the Warsaw Pact must reduce about 33,500 pieces of equipment (23,500 Soviet TLE and 10,000 from East European forces). The Soviet Union has also pledged to destroy 14,500 pieces of TLE east of the Urals. According to their own account, they have already destroyed or exported 10,900 TLE from the ATTU and converted 8,900 MTLB APCs to "look-alikes."
All Soviet troops have been withdrawn from Czechoslovakia and Hungary, and are presently being withdrawn from Germany and Poland. In August 1991, only 260,000 Soviet troops remained in Germany, with an agreed deadline for a complete withdrawal by the end of 1994. Thus, although the Soviet Union retains the single largest military force on the European continent, the withdrawal of Soviet forces from Eastern Europe and the dissolution of the Warsaw Pact have removed the threat of a surprise, large-scale offensive against Western Europe. It is quite possible that Soviet offensive capabilities will be weakened further by the formation of independent military forces in some of the republics.
Table 5 identifies the current Soviet force levels in each republic (Department of Defense, September 1991):
TABLE 5.---CFE TREATY-LIMITED EQUIPMENT BY REPUBLIC AND BALTIC STATES IN THE ATLANTIC-TO-THE URALS (ATTU) ZONE---SOVIET DATA AS OF 19 NOVEMBER 19901
Republic Tanks ACV's Artillery Combat Attack aircraft helicopters Armenia.............258 641 357 0 7 Azerbaijan..........391 1,285 463 124 24 Belorussia..........263 2,776 1,396 650 82 Georgia.............850 1,054 363 245 48 Moldova.............155 392 248 0 0 Russia..............408 6,772 4,052 2,750 570 Ukraine.............475 7,153 3,392 1,431 285 Baltic States.......777 2,375 519 382 33 Estonia.............184 201 29 153 10 Latvia..............138 100 82 183 23 Lithuania...........455 2,074 408 46 0 Totals2..........16,577 22,448 10,790 5,582 1,049 Percent of TLE outside Russia... 67 70 62 51 46
1 These totals are computed from the revised Soviet CFE data declaration provided on 17 February 1991, including equipment in Soviet coastal defense and naval infantry units. They do not include armored combat vehicles (ACV's) held by military units that were subordinate to the KGB November 1990 but recently were resubordinated to the Ministry of Defense. Most of these units are based in non-Russian republics in the Zone.
2 The Soviets have been relocating units and equipment since November 1990. Most units returning from the Groups of Forces in Eastern Europe are relocating to non-Russian republics in the ATTU Zone. The Soviet declaration included 5,081 tanks, 9,167 armored combat vehicles, 4,228 artillery pieces, 1,029 combat aircraft, and 432 attack helicopters in Eastern Europe.
The Treaty limits States Parties to TLE levels equal to or less than their national entitlements. Paragraph 8 of article VIII of the Treaty allows reduction obligations to be adjusted through transfers of TLE among members of the same Group of States Parties. Thus, the United States can legally transfer its less modern equipment to other NATO nations, who, in turn, will destroy their even older equipment. These TLE transfers will, in effect, modernize and strengthen NATO. In some cases, equipment will be cascaded to nations with unfilled entitlements, who thus will not have to destroy an equal amount of other equipment. The former WTO apparently have no plans to cascade TLE.
As of October 1991, the NATO cascading plans called for the transfer of 2,578 tanks, 1,114 ACV'S, and 180 pieces of artillery from Central Europe to the outer regions of Zone 4.2, and to the flahks of NATO. By the time the transfers are completed (and this must occur by the end of the first year of the reduction period, i.e., 16 months after entry into force, if destruction of this equipment is to be avoided), these numbers are expected to increase somewhat.
States can exempt equipment from the Treaty's numerical limits by declaring it for export outside the ATTU. However, certain conditions, specified in article III and in the Protocol on Information Exchange, must be met before such equipment may be exempted: such equipment can only be held without the ATTU "temporarily"; there are restrictions on where and how it is held; and there are notification requirements. In addition, an exemption is only allowed to the extent the export holdings are "consistent with a State Party's normal practices." Moreover, if an unusually high number of exports are reported for two consecutive annual information exchanges, an explanation before the JCG may be required.
Both Bulgaria and Czechoslovakia markedly increased their plans to export TLE between their November 19, 1990, data declaration at Treaty signature and the revisions to that data permitted by the Treaty 90 days after signature. Czechoslovakia intends to export some 300 T72 tanks to Syria, and some 5,560 items of equipment in all. Bulgaria intends to export some 1,326 items. Other participants, including the United States, have raised concerns with the two countries about the size of these export plans--particularly given the need for these to be "consistent with normal practices." These exports would significantly lower reduction obligations, particularly for Czechoslovakia. Within NATO, only Belgium has indicated it will export TLE--some 38 aircraft.
The committee asked the Congressional Budget Office and the administration for estimates of the savings they expected to accrue from the Treaty. In its March 1991 report, the Congressional Budget Office estimated annual savings of $6 billion for a reduction to a force level of 225,000 troops, and $14 billion for a reduction to a force level of 100,000 troops. If extrapolated, these CBO estimates give an estimated saving of about $10 billion a year for the administration's desired force of 150,000 troops.
The Defense Department largely agreed with the CBO estimates. DOD told the committee:
The CBO cost savings for an 80,000 troop strength reduction ($6 billion, $5 billion for operating and support) appears reasonable. DOD estimates annual recurring savings in operating and support costs for a reduction of this magnitude in Europe to be $3.8 billion in 1992 dollars of budget authority. Closure of facilities in Europe would reduce operating and support costs by another $l billion.Regarding a reduction down to 100,000 troops in Europe, DOD said "A further reduction of 125,000 military end strength in Europe would reduce the annual recurring operating and support costs of our forces in Europe by another $6 billion."
In his July presentation to the Committee, Secretary Cheney said "Defense spending will decline in real terms for the period from 1985 to 1995 by approximately one-third * * * the lowest levels of defense spending in more than 50 years.
This projection could result in a defense budget of about $235 billion in 1995. Of these savings, about $10-15 billion per year will be the result of cutbacks in Europe.
The committee received testimony in open session from Mr. Richard Kerr, acting Director of Central Intelligence and Deputy Director of the CIA, and from Mr. Douglas MacEachin, Chief of the Arms Control Intelligence Staff. All the other intelligence agencies-including the Defense Intelligence Agency, the National Security Agency, and the intelligence agencies of the four military services-testified in closed session.
In all cases, they indicated that the treaty was effectively verifiable. They based this judgment on the increased transparency provided by detailed information exchanges, on the right to intrusive inspection, and on the enhanced capabilities of National Technical Means (NTM) when NTM and onsite inspection are used in tandem.
According to Secretary of State Baker, "the Treaty will . . .codify predictability and openness. * * * This will virtually eliminate the possibility of militarily significant clandestine build-ups." Secretary of Defense Cheney underscored this position by stating that CFE "puts in place a regime that will help to guarantee sufficient warning of a changed Soviet threat in [the] time * * * needed to respond as required."
General Powell, Chairman of the Joint Chiefs of Staff, described the efficacy of the verification regime this way:
* * * the intrusive verification provisions to include on-site inspections, challenge inspections, and observation of destruction provide the unprecedented opportunity for us and our allies to monitor eastern Europe and the western half of the Soviet Union. We have never had this degree of transparency before.Major General Robert Parker, Director of the On-Site Inspection Agency, offered that "it is more than just observing, I actually count." Although a precise count is not possible, Acting Director of Central Intelligence Kerr, stated the Intelligence Community's belief that:
The combination of national technical means and on-site inspection will make cheating risky to undertake on any scale that would pose a serious military threat to the West. We have high confidence that we would detect and properly identify any large-scale scheme to exceed treaty limits.In closed hearings and in written documents, the executive branch explained in some detail the reasons for its judgment that the CFE Treaty was effectively verifiable. Various circumvention situations and scenarios were quantified in terms of military significance, minitorability, and timely warning. The committee staff has prepared a classified report summarizing this testimony, which is available to all Senators in S. 407.
Verification of the CFE Treaty will entail a three-step process that includes data notification, monitoring, and the verification of compliance. In step one, the CFE nations must notify the other CFE nations of their holdings subject to the Treaty including the five categories of TLE (tanks, armored carrier vecicles, artillery, combat aircraft and attack helicopters). The States Parties are not responsible for the accuracy of the data notifications provided by the other States Parties.
In step two, the States Parties will monitor the accuracy of the data declarations provided by the other States Parties through a combination of onsite inspection and national technical means. Monitoring is solely an intelligence collection and analysis function.
In step three, the States Parties individually and/or collectively will verify that the data notifications were accurate and in compliance with the terms of the Treaty. Unlike "monitoring," "verification" is a policy process that investigates reported discrepancies and uncertainties in order to render a judgment as to the compliance of a party suspected of a violation. This often involves deciding whether to charge another State Party with a violation. As a part of that policy judgment, decision-makers must determine whether the evidence to support such a charge will require a damaging disclosure of sensitive intelligence sources and methods.
An assessment of the likelihood of detecting a violation is usually expressed by a term or percentage (such as "high confidence" or 90 percent confidence of a violation). No treaty is 100 percent verifiable. There will always be a risk that certain non-compliant activities may go unnoticed. Thus, in determining whether the Treaty is effectively veriable, the Executive Branch and the Senate must assess the likelihood that "militarily significant" violations could go undetected.
The Bush administration's conclusion that the Treaty is effectively verifiable was based on a specific definition of military significance and the capability of the Intelligence Community and the On-Site Inspection Agency to detect such a violation in time for NATO to mount an effective response.
2. Choosing the Right Verification Standard
During the Committee's consideration of the Intermediate Nuclear Forces (INF) Treaty in 1988, Ambassador Paul Nitze defined "effective verification" as follows:
* * * if the other side moves beyond the limits of the Treaty in any militarily significant way, we would be able to detect such violation in time to respond effectively and thereby deny the other side the benefit of the violation.The committee asked Secretary Baker for the record whether Ambassador Nitze's definition of "effective verification" was acceptable as a standard for assessing the verifiability of the CFE Treaty. Secretary Baker responded in the affirmative, but added:
Violations do not necessarily have to be militarily significant to be a matter of concern. Their political significance, for example, would also be taken into account.* * * what we have to consider is the ability to detect violations, or patterns of violations, [even] if they are not necessarily militarily significant. * * * A regime affording such capabilities will also have the effect of deterring cheating by raising the costs of avoiding detection to the would-be violator.3. Military Signiricance
The CFE treaty allows NATO to hold 78,800 pieces of TLE, and authorizes the Soviet Union, Poland, Czechoslovakia, Hungary, Romania and Bulgaria (the group of six) to hold the same amount. Of this total, the Soviets can hold no more than 52,975.
Because any future war in Europe is likely to require the generation of many divisions (perhaps 50 to 100 or more), the threshold for a militarily significant violation cannot be measured in terms of individual pieces of TLE. Rather, it should be measured in terms of many divisions containing thousands of TLE items. In other words, the military significance of a given amount of clandestine TLE depends upon its configuration for military use. Clearly, many tanks situated in many small groups throughout the ATTU are of much less military significance than the same number of tanks concentrated and organized into division sets. Similarly, if troops are training as a unit and equipped with complete sets of TLE, then the possession of illegal TLE and associated equipment would have greater military significance.
For example, a large violation would involve on the order of 20,000 pieces of illegal TLE---the amount needed to equip some 25 divisions. This amount of TLE is about one---fourth the size of NATO's entire TLE entitlement of 78,800 TLE items. This large amount of equipment could be accumulated in the following ways:
Under CFE, onsite inspections and Ikational Technical Means (NTM) would quickly discover a massive illegal buildup of this nature in the ATTU. Although such a build up East of the Urals would probably be equally detectable, the Western reaction could be more problematic. Nevertheless, General Powell, Chairman of the JCS, told the committee that "NATO retains the advantage even in the most dire cheating scenario one could come up with."
Similarly, General Galvin, Supreme Allied Commander, Europe, argued that it would take months before Soviet forces could be mobilized and trained using TLE stocks located east of the Urals, let alone prepare for an attack against Western Europe.
CFE verification rests on a complex web of monitoring measures. Each party is obligated to provide detailed data on its force structure and equipment holdings, including their locations, all of which are to be updated annually. Each party will then use its available National Technical Means (NTM)---from highly sophisticated satellites and sensors to other simpler means---to determine the accuracy of this data.
States Parties will then have the right to conduct a large number of On-Site inspections (OSI) for the purpose of monitoring any declared military sites at which one or more "Objects of Verification" (OOV) is present. In accordance with the treaty, one OOV will be reported for each military unit holding TLE items, and for each destruction, conversion, storage, repair, and training site, in the ATTU. The number of declared site inspections each nation is obligated to accept is derived (as a percentage) from the number of its declared 0OVs. Nondeclared sites are also subject to inspection, albeit on the basis of a "challenge," and with a right of refusal. Even here, though, the challenged state is required to provide a reasonable assurance that the area specified in the "challenge inspection" request does not contain any TLE items.
Finally, the Treaty establishes a Joint Consultative Group (JCG) to address compliance issues. This body is comprised of all Treaty signatories. But is has no enforcement powers, and must work by consensus.
In 1983, the State Department defined NTM as: "Assets under national control for monitoring compliance with the provisions of arms control agreements. National technical means include photographic reconnaissance satellites, aircraft-based systems (i.e., radars and optical systems) as well as sea- and ground-based systems such as radars and antennas for collection telemetry." Thus, the Treaty's verification regime relies upon more than on-site inspections. Signals intelligence (SIGINT), communications intelligence (COMINT), electronics intelligence (ELINT), radar intelligence, (RADINT), laster intelligence (LASINT), infrared intelligence, and other intelligence gathering methods will be employed as well.
Further, "National Intelligence Means" (NIM) go even further than NTM alone. NIM encompasses both NTM and human intelligence (HUMINT); HUMINT has become increasingly important as a means of verification in the aftermath of the Soviet coup and the opening of Soviet society.
All components of NIM work to complement each other. For example, both the United States and the Soviet Union are capable of using their NTM data to direct their on-site inspection teams to suspicious areas. OSI and NTM acting together should result in monitoring abilities that are greater than the sum of their individual parts. HUMINT makes this combination even more capable.
During the fall of 1990, it became difficult for the United States to track individual Soviet TLE items as they departed the ATTU for destinations east of the Urals. Because large quantities of equipment were moved-either from disbanded units, or from covered storage-it was not an easy task to determine the actual departure dates of some of these TLE. Had the United States been able to supplement its NTM assets with timely HUMINT, however, and with data declarations from the Soviets and onsite inspections, the uncertainties would certainly have been mitigated.
Nevertheless, it is worth repeating that the effectiveness of NTM is often reduced by a conflict between the necessity for verification and the possibility of compromising sensitive intelligence sources and methods in pursuing a compliance question. Were the United States to request its allies to undertake a particular inspection as part of their quota, for example, or to press the matters of noncompliance after a refusal, the allies would demand to know the intelligence basis for the U.S. position.
Similar pressures could arise during discussions in the JCG if the United States were to press a finding of noncompliance. As a practical matter, NATO allies may also seek greater access to U.S. NTM as a quid pro quo for information they share from the inspections they as well as the United States will conduct over the unlimited life of the treaty.
Allied NTM does !iot approach the sophistication of our systems. The present resolution of the French Spot satellite, for example, is not good enough for definitive measurements. To keep from compromising our intelligence capabilities, however, it is not always possible to share intelligence products obtained from NTM. To attenuate this problem, it may be possible to reduce the quality of such products (e.g., U.S. satellite photography) to a degree that it would reveal the necessary intelligence but protect our technical secrets.
Finally in order to enhance the effectiveness of NTM, article XV of the C!Fk Treaty states that States Parties shall not impede NTM by employing concealment measures (unless, of course, they are part of normal military operational practices).
Onsite inspections should prove useful in discovering noncompliance, raising the cost of such noncompliance, and thus deterring cheating in the first place. Under CFE, the object of each declared site inspection might be an army brigade or air force wing, an independent battalion or squadron, a designated permanent storage site (DPSS), a military storage site not related to a TLF-holding unit, an independent repair or maintenance unit, or a military training establishment, military airfield, or notified reduction site. These kinds of inspections should be more than sufficient to accomplish the purposes of OSI insofar as compliance at declared sites is concerned.
Although TLE at land-based naval air fields, strategic rocket forces, coastal defense units, naval infantry units and internal security units are not considered OOV's and are not subject to declared site inspections, such sites are subject to challenge inspections. Of course, challenge inspections at nondeclared facilities can be refused. Any refusal to permit such an inspection must, however, be accompanied by an explanation containing a reasonable assurance that TLE are not present at that site.
In addition, the parties may inspect without quota or right of refusal the destruction, recategorization, reclassification, or conversion of TLE. At these reduction-site OSI'S, the inspection teams are also allowed to record TLE serial and factory marking numbers.
In large part, the verification regime aims to evaluate the accuracy of the information that is exchanged on the holdings of each party. in accordance with article XIII and the Protocol on Information Exchange, information shall be exchanged in written form through diplomatic channels or through the CSCE/CFE communications system administered by The Netherlands. Receipt of such information shall not imply validation or acceptance of the information.
The unit designations, locations, holdings of equipment subject to the Treaty and subordination shall be given for brigades, regiments, and wings, independent battalions and squadrons, storage sites, and other sites (maintenance, repair, training, and military airfields). The command level of land forces down to brigade, regiment, and independent battalion level will also be provided. The same applies to air and air defense aviation forces down to the wing, air regiment, and independent squadron level.
The data exchange shall also include the unit designation, location, and holdings of equipment subject to the Treaty at designated permanent storage sites, paramilitary battalions, decommissioning sites, etc. This data will be exchanged annually, as of 1 January, but submitted on December 15 of the previous year. Other required notifications include annual reports on the numbers and types of TLE that have entered into service. A notification shall also be given anytime the TLE levels in an OOV change by more than 10 percent, which must be reported within five days. Permanent changes must be notified 42 days in advance.
The stated purposes of the onsite inspection regime include verifying the information provided by other Parties' OSI may also be used to monitor the reductions at TLE reduction sites, and the certification of recategorized multipurpose attack helicopters and reclassified combat-capable trainer aircraft.
The OSI inspection team shall be limited to 9 persons, and can be divided into 3 subteams. The inspectors are allowed to carry maps and charts, passive night vision devices, video or still cameras, binoculars, dictaphones, tape measures, magnetic compasses, flashlights, and lap-top computers. If both sides agree, the inspection team may bring their own land vehicles. However, the escort team may deny the use of other equipment, and equipment capable of performing functions inconsistent with the inspection requirements. Also, the escort team has the right to observe the equipment, but may not interfere with its use.
The inspected party pays for most expenses while the OSI team is on its national territory. The inspection teams shall provide the escort team a signed, standard written report prior to leaving the inspection site. Also, the escort team shall have the right to include in the report its written comments and shall countersign the report.
The following rules are used to calculate the numbers of "passive" OSIs (those OSIs that a party must accept) for each of the CFE States Parties:
An "active" inspection is one that a nation conducts of another nation. While one would expect the number of active OSI's carried out by one alliance to be equal to the number of passive OSIs accepted by the other, the CFE Treaty provides that any State Party may carry out up to five inspections annually against other parties from the same Group of Parties. NATO members have agreed not to inspect other NATO states, but to the extent members of the Group of 6 inspect one another, this will reduce the number of inspections available for NATO members.
Thus, if the Soviet quota for passive OSIs in the baseline period were 182, the five former WTO nations could reduce from 182 to 157 the number of OSI opportunities available to NATO.
The two alliances have already apportioned the quotas of active "baseline" OSI's among their members, but the allocation of followon inspections remains to be decided. Alliance members negotiated the apportionment of their OSI quotas in NATO's Verification Coordination Committee (VCC); the apportionment was based in part on the number of OOV's that each Alliance member had reported in the data exchange. The United States will conduct about 20 percent of NATO's active OSI's during the Baseline Period-more than its fair share relative to the number of U.S. OOV's-and will actually participate in even more inspections through representation on the teams of other NATO nations.
In the committee's judgment, the number of onsite inspections should be more than sufficient to effectively verify the Treaty. For example, the Soviets have about 900 OOV'S. The number of onsite inspections (OSI's) of Soviet forces during the base-line period is 20 percent of Soviet OOV'S, or 180. After the reduction and validation periods, OSI will be approximately 135 per year if the Soviets retain 900 OOV'S. Because of the large number of inspections, the United States and its Allies should be able to make an informed judgment with regard to the compliance or noncompliance of the U.S.S.R.
In the opinion of some experts, a militarily significant violation would occur if the U.S.S.R. were to exceed the CFE limits by roughly 20 percent of the declared number of TLE. Based on a linear statistical analysis, those same experts opined that a 20 percent anomaly at declared sites could be detected based on the results of about 7 OSI'S, with a confidence level of roughly 75 percent. Similarly, it would take roughly 11 OSI's to detect a violation of this magnitude with 90 percent confidence. The actual number of OSI's needed to detect a militarily significant violation to this level of confidence could be either greater or less than these numbers.
Because the CFE Treaty permits about 15 percent of the declared sites to be inspected each year, statistical analysis states a 15 percent chance (without assistance from NTM) that a violation might be discovered with random OSI's over 1 year. Armies are not static, however; they are almost always engaged in some kind of activity. Therefore, small deviations in numbers should be expected.
If the number of TLE observed during an OSI were less than the declared value, for example, additional TLE might be engaged in military training exercises, at a repair depot, or awaiting replacement. An excess of TLE at the site, on the other hand, might be explained by stating that TLE from another OOV were present for the purpose of joint exercises. With some risk; it might also be possible to keep a small fraction of the TLE hidden. Since the TLE are not static, it is difficult to dismiss entirely these types of possible anomalies.
If a Party to the Treaty decided to cheat in small ways, as a statistical matter, it would take a substantial number of inspections to determine the cheating. Very small violations might never be detected with certainty. Even one observation of a massive excess at an OOV might, however, be sufficient to produce a finding of probable noncompliance with a nation's data declaration. Mitigating circumstances aside, such compliance questions would surely be taken to the JCG.
The high likelihood that a large violation would be detected through NTM is probably sufficient to deter a potential violator. The NTM information could be used to target OSI's to the OOV with excess TLE, greatly increasing the probability of detection of possible violations. Also, human intelligence, including defectors, would pose further risks of discovery. Aerial overflights from the CFE-1A or Open Skies regimes would also increase the probability of detection. Aerial inspection might, for example, prove particularly valuable in the event a nation attempted to conceal excess TLE at undeclared sites in the ATTU in the hope that it would go undetected, or in order to investigate anomalous situations that had come to light through these or other means.
In another case, a nation might try to hide TLE in discrete locations, such as caves scattered about the nation. These types of violations would be difficult to spot with NTM, but human intelligence, including defectors, would still pose a risk of detection. As in the case of large violations at undeclared sites, the discovery of a few small groups of TLE would be a serious compliance issue if it were brought before the JCG. Challenge OSI'S, guided by NTM or human intelligence, could be used to detect these types of violations. The military significance of this kind of noncompliance may not be large so long as the TLE were not gathered into unit sets, but -- as suggested by Secretary Baker -- the political ramifications might still be very serious.
1. Equipment East of the Urals
Although the previous examples highlighted scenarios of dubious military significance, any large amounts of TLE that were gathered together in unit sets with troops, and then exercised as fully operational units, could be considered militarily significant. The presence of large quantities of TLE beyond the Urals is, therefore, a continuing concern, since it could be reintroduced into the ATTU. In this regard, there are two sources of the TLE east of the Urals: the TLE removed from the ATTU before November 19, 1990, and the TLE normally in the far eastern military districts.
According to the Soviet unilateral political declaration of June 14, 1991, the TLE removed from the ATTU to east of the Urals prior to November 19, 1990:
* * * will not be used to create a strategic reserve or operational groupings, and will not be stored in a way permitting their rapid return to the area of application of the Treaty, that is, such armaments and equipment withdrawn beyond the Urals will not be stored in sets for military formations.The administration has testified that it is confident of its ability to effectively monitor the status of this military equipment with NTM and other means. It is particularly confident of its ability to provide warning sufficient for NATO to respond to possible militarily significant violations through the reintroduction of such equipment into the ATTU.
Regarding armaments already present east of the Urals, the Soviets are not constrained from using this equipment in any way that they deem appropriate since this equipment is not controlled by the CFE Treaty. The massing of large forces in an area outside of the ATTU is not a violation of the CFE Treaty. However, if these forces become "an obvious threat to the balance of forces" in the ATTU, article XIX (3) would permit withdrawal from the Treaty.
The CFE Treaty does not preclude ongoing force modernization and does not provide for monitoring production of new TLE within the ATTU zone. However, the Treaty calls for notification of any new type of TLE, or new model or version of an existing type of TLE, to be notified within 60 days of its introduction into the ATTU. Although storage areas for newly produced equipment not at declared sites will not be subject to declared site inspections, challenge inspections of suspect sites are seen as an important deterrent to cheating in this area.
The Treaty also requires annual reports on newly produced equipment awaiting export, and large increases in this category in two successive data exchanges must be explained. Czechoslovakia has declared that about 5,000 of its TLE are awaiting export, and, due to the magnitude, this issue is being discussed with the Czechoslovakian government. The data submitted by the U.S.S.R. earlier this year does not indicate any TLE awaiting export, and thus, Soviet equipment exports do not constitute a CFE compliance issue at this time.
The United States initially favored establishing perimeter portal monitors for production sites similar to those in the INF Treaty. NATO allies voiced opposition, however, inasmuch as they felt these measures would reveal highly sensitive information and put their own national industries at a disadvantage with respect to the United States and the U.S.S.R. in the international export market. Production of TLE in numbers large enough to be of concern could presumably be monitored by NIM, given the need to have adequate storage and ongoing maintenance if these units are to have any military utility, and also given the notification requirements.
The JCG is comprised of 22 representatives, one designated by each State Party. The JCG will meet for regular sessions twice per year in Vienna. Additional sessions can be convened at the request of any Party. The proceedings shall be confidential unless otherwise decided. The decisions of the JCG will be by consensus (i.e., no objections). This allows for abstentions. Within the framework of the JCG, the Parties to the Treaty shall address a variety of issues, such as questions relating to compliance and circumvention, and disputes over Treaty implementation.
With its long list of possible agenda items, it is possible that the JCG might become over-burdened, reducing its effectiveness. Consensus voting has the potential to make the JCG ineffective, but the record of the 22 during the CFE negotiation, which required unanimous votes from all Parties, was quite positive. The mechanisms of the JCG were, for example, severely tested following the Soviets' refusal to count TLE in naval and coastal defense forces, and again in the summer of 1991 in the aftermath of the Soviet coup and the regained independence of the Baltic States. These situations were resolved through a combination of multilateral JCG and bilateral U.S.-Soviet negotiations. The JCG operated effectively in these cases despite the requirement for consensus voting.
The CFE Treaty contains language on aerial inspections in articles XIV and XVIII. Article XIV puts in place the basic framework for the right to conduct aerial inspections as part of Treaty monitoring, including the right to conduct and the obligation to accept a number of aerial inspections. Article XVIII states that the States Parties shall seek to conclude the negotiations on aerial inspections in time for the Helsinki CSCE meeting in March 1992.
However, for the time being, the Open Skies Treaty negotiations clearly have precedence over the development of CFE aerial inspection provisions. The reasons why this has occiirr2d are: (1) many CFE States Parties are particularly interested in being able Co overfly areas beyond the Urals; (2) under Open Skies, all of the United States and Canada would also be available for aerial inspections; and (3) it would be possible to incorporate other monitoring regimes, such as that proposed for the Chemical Weapons Convention, into the Open Skies regime. The CFE aerial inspection regime will be designed specifically to supplement the current CFE verification regime. By contrast, Open Skies is not intended as a verification regime, but rather will be a means to increase transparency and build confidence. It could, of course, provide a useful addition to other monitoring and verification means, particularly for participants with capabilities less advanced than our own.
The costs of CFE implementation will be considerably less than the direct savings made by reducing to 100,000-150,000 troops in the ATTU, which are estimated by the Congressional Budget Office (CBO) and the administration to be about $10-14 billion per year.
In March 1991, the CBO estimated the following costs of monitoring the CFE Treaty, including the costs of aerial inspections:
Total cost over different periods First 44 months: Millions Total..................................................$205 to $610 Annual average..........................................$55 to $165 First 5 years: Total..................................................$240 to $710 Annual average..........................................$50 to $140 First 10 years: Total................................................$365 to $1,085 Annual average..........................................$35 to $110
The OSIA estimates of $16-21 million per year are based on 75 OSI's per year.
Since the number of U.S. OSIS- will be about 25 percent fewer than this, the
estimate is probably too high. When OSIA estimates are added to the $20 million
inspection costs for the Army, and the $3.6 million for the Air Force, a total
of about $42 million per year results.
In sum, it is not unreasonable to expect CFE verification to cost about $50 million per year, depending on the unfunded requirements. That estimate is close to the lower bound estimates of $55 million by the CBO for the first 44 months, but substantially different from the upper bound estimate of $165 million. However, as noted above, the CBO estimates included the costs of an aerial inspection regime, which is not yet in place.
In order to compare these estimates to past experiences, the GAO-calculated costs of INF Treaty implementation the (as of September 1991) may be useful. The INF Treaty required extensive destruction of U.S. equipment. It also required expensive perimeter portal monitoring. These two categories amounted to about 35 percent of the INF expenses; neither is applicable to CFE. If destruction and perimeter portal monitoring costs are eliminate from the INF budget, the cost totaled $85 million per year-$35 million more than the projected cost for CFE without aerial inspections.
The Treaty on Conventional Armed Forces in Europe was originally designed to reduce the military confrontation between members of the North Atlantic Treaty Organization and of the Soviet-led Warsaw Pact to lower and less threatening levels. Inasmuch as the revolutions in Eastern Europe, the dissolution of the Warsaw Pact, and the disintegration of the former Soviet Union, have reduced significantly the risk of widespread armed conflict in Europe, some observers have raised questions about the necessity of the CFE Treaty.
The committee believes that the CFE Treaty remains an important means of ensuring that the threat of war will remain low. It can provide a foundation on which the signatories can build their military forces down to even lower levels than those prescribed in the Treaty. Furthermore, the Treaty is sufficiently flexible to accommodate changes in the governing structures and forces in the former Soviet Union. In addition, U.S. participation in the Treaty ensures a continuing U.S. role in European security arrangements with reduced risks to U.S. interests and at a much lower cost to the U.S. taxpayer. Finally, the Treaty establishes a security regime, based on arms reductions and transparency that can provide a stabilizing influence on a changing Europe.
The key value of the Treaty is the limits imposed on military equipment, and the fact that substantial quantities of the former Soviet Union's military equipment will have to be destroyed to comply with the Treaty. The limits are structured in such a way that, after implementation, no one European country-including a new union built around the Russian Republic-could conceive of initiating hostilities in Europe without anticipating severe consequences. Although the Warsaw Pact has vanished both as a threat and as an organization, the fact that such limits are enshrined in an international agreement provides greater confidence that they will be honored in the future. The committee concurs with Secretary Baker's testimony that "unilateral action * * * can be unilaterally reversed, and that is why we worked so hard to get a multilateral, legally binding, and effectively verifiable agreement."
The limits were broadly framed as ceilings on the equipment of two "groups [NATO and the Warsaw Pact] of state parties." But the allocation of deployment rights within the two groups and the Treaty's zonal limitations allow the Treaty to transcend the fact that one of the groups has, in a formal sense, disappeared.
A less obvious but perhaps even more important value of the Treaty is the extensive inspection rights that are available under the Treaty's terms. The ability to inspect military installations and forces of other signatories, combined with the regular data exchanges required by the Treaty, will provide the United States an important tool for monitoring military activities in Europe and for detecting in a timely manner the emergence of new military threats.
Finally, the Treaty's requirement that the signatories remain in continuous contact with one another, in particular through the Joint Consultative Group, could over the longer term encourage the development of a system of cooperative security in Europe to replace the lingering suspicions and potential antagonisms left over from the Cold War period.
Overall, the Committee believes that the CFE Treaty provides additional confidence and new tools for reassurance at a time when many other factors in European politics are changing. The Treaty provides a reliable framework for U.S. defense planning now and potentially many years into the future, just as it provides some of the essential ingredients of a new and stable European security system. In short, because of the minimal impact on U.S. forces, the United States is better off with the Treaty than without it.
Prior to the August revolution in the former Soviet Union, the committee examined the implications for the CFE Treaty of the creation of new independent states in that country. Following the August coup, the committee posed a series of questions to Secretary Baker, Secretary Cheney, Chairman of the Joint Chiefs of Staff Powell, and the Director of Central Intelligence regarding the military, political, and legal implications of the disintegration of the former Soviet Union.
As a result of this extensive inquiry, the specific effect on the Treaty of the creation of new states in the former Soviet Union has become largely apparent. With this understanding achieved, the committee has attached one condition and one declaration to its resolution of ratification designed to address the likely emergence of new states in the area of application of the Treaty that existed on November 19, 1991.
1. New States That Join the Treaty Regime
The accession of newly independent republics to the Treaty would require relatively few changes to the Treaty text, and those would be minor in nature. The name of the new state would be added in a handful of places throughout the text, such as in the Preamble, In article II (independent states emerging from the Soviet Union would come in as part of the Group of Six, but language would be added to indicate thev were not signatories to the Warsaw Treaty), and in article IV. Equipment lists for the Group of Six would have to be updated in the Protocol on Existing Types if the new states held any type of armament subject to the Treaty which was not currently on the list; this would not be likely. In the JCG Protocol, the new state would have to be added to the scale of distribution of expenses.
Each new state would have to provide notification of its maximum levels of holdings to other signatories, pursuant to Article VII. Unless the new state decided to hold no TLE, such new notifications would require decreases in previously notified maximum levels of one or more of the group of six-presumably those of the Soviet Union. All such changes, provision for which is made in the Treaty, would have to be notified to other signatories.
New states would also have to provide data on their holdings as required by the Information Exchange Protocol, and to make various other notifications, such as those required by article VIII (Reduction), the Protocol or Reclassification of Aircraft, the Reduction Protocol, and the Inspection Protocol (notification of active quotas, lists of inspectors and transport crew members, languages to be used by inspection teams, and standing diplomatic clearance numbers).
In the committee's view, the complication arising from the formation of new states in the former Soviet Union does not pertain to the Treaty text per se. Rather, the real problem will occur when the new state is forced to negotiate an agreement with the former Soviet Union to apportion its treaty-limited equipment. The negotiation of such an agreement could easily become the forum for debates over sovereignty.
In a letter to Senator Biden, General Powell, Chairman of the Joint Chiefs of Staff, stated his view that despite this potential sovereignty problem, "I would prefer to see all newly emergent states on the European territory of the U.S.S.R. remain accountable under the CFE Treaty."
The committee is also concerned about the possibility that republic governments could defy any new Union's commitment to the CFE Treaty. Such a situation raises a serious question of accountability. Senator Biden specifically asked Secretary Baker whom the United States would hold accountable. His answer follows:
We would hold the new Union government responsible for fulfilling Treaty obligations throughout the territory of its constituent republics. As they would not be Treaty signatories, there would be no legal basis for holding individual republics accountable in cases of noncompliance. Of course that would not prevent the United States-under certain circumstances-from pressing the representatives of recalcitrant republics, as well as union officials, to take steps to ensure that compliance problems are resolved.
The committee agrees with General Powell that new states formed in the territory of the former Soviet Union should be encouraged to accede to the Treaty or accept the Treaty's obligations. For that reason, the committee attached a declaration to the resolution of ratification urging the President "to seek the accession to the Treaty by any new states that may in the future be formed in the land area that constituted the "area of application" on the date of Treaty signature."
The committee does not intend this declaration to apply to Lithuania, Latvia, or Estonia in light of the fact that they are already independent states and have chosen not to join the Treaty regime.
But this declaration is intended to apply to Ukraine, Belorussia, Moldova, Armenia, Georgia, and Azerbaijan. The committee believes the administration should work closely with our NATO allies to develop a common position regarding accession by Soviet republics. In particular, republic governments should be made aware that their attitude towards the CFE Treaty will be taken into account as part of Western consideration of technical and financial assistance and market access.
However, the committee is optimistic that these states will see the benefits of joining the treaty regime. General Powell told Senator Biden that as far as Ukraine and Belorussia are concerned, "Because this Treaty is seen by European states as the cornerstone of a new European security system, I believe that there would be powerful political, military and economic incentives for both of these republics to participate in CFE."
The committee believes this statement could just as easily apply to other republics as well.
2. New States That Stay Outside the Treaty
If there is no new Union formed, secretary Baker has told the committee that "the Russian republic presumably would assume the international obligations of the former U.S.S.R." Therefore, any decision by the Russian republic to reject the CFE Treaty would destroy the viability of the Treaty.
Immediately after the August revolution, Secretary Baker was asked to discuss the implications for the Treaty of a decision by an independent Ukraine or Belorussia not join the Treaty. He responded that "it almost certainly would be necessary for [Belorussia and Ukraine], to participate in CFE." General Powell made a similar point. He wrote Senator Biden that "With regard to the Ukraine and Belorussia, my assessment is that if either or both of these large republics retain significant amounts of equipment in Treaty-limited categories, their participation in the CFE Treaty would be necessary."
The committee asked the administration to lay out what changes would need to be made in the Treaty if, despite the current administration's view, a future administration sought to retain the Treaty without the participation of Ukraine or Belorussia. According to the administration:
With regard to the nonparticipation of these smaller republics, the administration has taken the position that because of their limited amounts of equipment, participation by these republics is not required. But, as in the case of the Baltic States, according to Secretary Baker:
We would need to ensure, however, that all equipment in categories subject to the Treaty and under the control of the new Union remains subject to Treaty provisions and associated agreements-whether located on the territories of its member republics or on the territories of newly independent states which choose not to joint the union.In short, if these republics became independent and chose not to accede to the Treaty, the administration would seek to secure a similar commitment from the new Union as was secured in the case of the October 18, 1991, agreement on the Baltics if significant amounts of TLE were located there and belonged to the Union.
According to the administration, nonparticipation of Moldova, in and of itself, would require no changes to the text, since it comprises only part of one military district (Odessa). If Ukraine also left, however, references to the Odessa MD in article V would have to be deleted from the text-along with the references in paragraph one of article IV to the special storage rules applying to Odessa.
Georgia, Armenia, and Azerbaijan together comprise the Transcaucasus Military District. Theretore, the administration has told the committee that:
Understanding the impact on the Treaty regime of the emergence of new independent states from the Soviet Union is complicated by the fact that republic boundaries and military district boundaries in most cases are not identical.
The military districts-as defined pieces of territory-were used along with independent countries as elements in the zonal scheme. Even if those pieces of territory are no longer part of the Union, they can continue to be elements in the zonal sublimit system. That applies as well if a new state includes more than one military district and has territory in more than one subzone. The military districts were set as of Treaty signature. (see table 1.) At that time, the U.S.S.R. submitted to the Treaty depositary a map of its military districts. The purpose of this submission was to assure that Treaty obligations could not be unilaterally altered by district redrawing.
TABLE 1.-BREAKDOWN OF REPUBLICS AND MILITARY DISTRICTS
Republic Military District
Russia............Occupies all of Leningrad, Moscow, North Caucasus and
Baltic MDs, all but one small portion of Volga-
Ural MD (the southernmost tip of this MD is
occupied by Kazakhstan).
Ukraine...........Occupies all of Carpathian and Kiev, about two-thirds
of Odessa MD.
Byelorussia.......Occupies all of Byelorussian MD.
Moldova...........Occupies that portion of Odessa MD riot in the Ukraine
(less than one-third).
Georgia...........Occupies just under one-half of the Transcaucas MD.
Armenia...........Occupies approx. one-quarter of the Transcaucus MD.
Azerbaijan........Occupies the remainder, about one-third, of the
Transcaucas MD.
Kazakhstan........Occupies the southern tip of the Volga-Ural MD
(remainder of this MD is occupied by Russia.)
Military districts by subzone Republic
Zone 4.3:
Baltic............................Russia.
Byelorussian......................Byelorussia,
Carpathian........................Ukraine.
Kiev..............................Ukraine.
Zone 4.2:
Moscow............................Russia.
Volga-Ural........................Russia, Kazakhsten.
Flanks:
Leningrad.........................Russia.
Odessa............................Ukraine, Moldova.
North Caucasus....................Russia.
Transcaucasus.....................Georgia, Armenia, Azerbaijan.
International Law of State Secession4
The Soviet coup and its aftermath represent, to date, a succession of governments, rather than a state succession. Under international law, when a state ceases to exist, its capacities (including competence to ratify treaties), rights and duties terminate; however, such capacities, rights and duties are not affected by a a mere change in the regime of a state or in the form of government or its ideology. In the administration's view, since events in the Soviet Union do not, at present, constitute a state succession event, the new government and its Supreme Soviet, with the Council of republics, retains the capacity to ratify treaties for the Soviet government.
In the administration's view, then, ratification of the Treaty by the USSR would be binding on its republics until they became independent states-which could happen either when the U.S.S.R. recognized their independence (as in the case of the Baltic States) or when the republic in question met the requirements for statehood under international law.
However, it is not clear whether such seceding states would be obligated under international law to abide by CFE after they became independent and did not indicate their intention to be bound. Some precedents support the view that a seceding state is entitled to a "clean slate" as a matter of law, while other precedents indicate that treaty obligations remain binding on such a state.
The Vienna Convention on Succession of States (to which neither the United States nor the Soviet Union is a signatory or a party) takes the position that (in cases other than former colonies) where a part of a state breaks away to form a new state, treaty relations continue and the new state does not have the option to pick and choose which treaties it will adhere to. On the other hand, the Third Restatement on Foreign Relations Law takes the position that, in such a situation, a new state has the right to a "clean slate"-that is, to decide which of treaty obligations of its "parent" state it will accept and which it will not. The administration has taken the view that the Baltic States are entitled to a "clean slate," but in that case the United States had never accepted the forcible incorporation of the Baltic States in the Soviet Union in the first place.
In view of the two competing legal theories of state succession, the committee believes the best policy is to ensure the participation of the largest republics in the former Soviet Union-Russia, Belorussia, and Ukraine-in the Treaty. Since the committee believes such participation is necessary, the administration should take affirmative steps to ensure the participation of, for example, Ukraine, rather than relying on assumptions about international law.
Given the uncertainty in the former Soviet Union, the committee engaged in an extensive dialogue with the administration about the wisdom of ratifying the CFE Treaty. Secretary of State Baker, Secretary of Defense Cheney, and Chairman of the Joint Chiefs Colin Powell have strongly recommended that CFE ratification proceed. Secretary Baker and General Powell both wrote Senator Biden that "we are convinced that the Treaty can safely be ratified as written and any required changes dealt with after entry into force."
The committee agrees that the uncertainty in the former Soviet Union need not delay Senate consent and U.S. ratification of the CFE Treaty. But the committee has attached a binding condition to the resolution of ratification that will establish an orderly and constitutional procedure for U.S action in the likely event of the creation of new independent states with large armies in the former Soviet Union.
The committee condition would come into effect if a new state is formed in the "area of application" that existed on the date of Treaty signature and such state declines to accept the obligations of the Treaty. In that event, the President would be required to consult with the Senate regarding the effect on the Treaty of such a development. In the committee's view, such consultation should involve, at a minimum, a meaningful exchange of views between the administration and the Committee on Foreign Relations as to the right course for the United States to follow.
Second, if the new state that declines to accept the obligations of the Treaty is determined to have holdings or potential holdings of equipment in Treaty-limited categories of such military significance as to constitute a changed circumstance affecting the Treaty's object and purpose, further action would be required. In this case, if the President makes such a determination: the President can choose to withdraw from the Treaty as permitted by article XIX or he can call an extraordinary conference as envisaged by article XXI.
In this regard, the committee notes that its condition also states that the President can "undertake other appropriate diplomatic action." The committee accepted this language at the suggestion of the administration, but the committee cannot envision in the case of a decision by an independent Ukraine not to accept the obligations of the Treaty any other course of diplomatic action other than withdrawing from the Treaty or, calling for an extraordinary conference. Indeed, even before the August revolution, Secretary Baker told Senator Biden that if a Soviet republic were to secede "the first thing that would happen is that there would be a conference called under article XXI of the treaty to deal with the issue."
Third, the committee condition makes clear that if the President makes the determination described above, agreed changes to the states parties' obligations under the Treaty resulting from the extraordinary conference, or other diplomatic action, shall be submitted for the consent of the Senate, unless such changes are a minor matter of an administrative or technical nature.
The question of what would constitute a changed circumstance was examined in detail by the committee. The committee intends this provision to apply in the following cases: (1) If an independent Ukraine does not accept the obligations of the Treaty; (2) If an independent Belorussia does not accept the obligations of the Treaty; or (3) If Armenia, Georgia, and Azerbaijan all become independent and all choose not to accept the obligations of the Treaty.
The committee was most concerned about the possibility of an independent Ukraine not accepting the obligations of the Treaty. Ukraine currently holds some 6,500 battle tanks, 1,000 more than are located in that part of the Russian Republic that is in the ATTU. Clearly, the nonparticipation of Ukraine would be a changed circumstance. The Bush administration apparently has decided that Ukrainian participation is necessary, and therefore in all likelihood the administration would seek to withdraw from the Treaty if Ukraine ultimately refused to accept the obligations of the Treaty. However, if a future administration were to adopt a different view, the Committee condition ensures that the changes in the obligations of the parties that would be required to accommodate Ukrainian nonparticipation would be submitted to the Senate for advice and consent.
The committee condition is not intended to imply that large republics will choose to stay outside the Treaty regime. On the contrary, the committee agrees with the Director of Central Intelligence, Robert Gates, who wrote Senator Biden on November 15, 1991, that "On balance, we believe that the major republics -- e.g., the Ukraine, Belorussia, and Russia will conclude that from a diplomatic and security standpoint, they would be better off participating in the treaty regime than refining to take part."5
The DCI's judgment that the major republics will choose to participate in the Treaty is, in part, what gives the committee confidence that it can recommend advice and consent to the Treaty despite the strong possibility that one of the Treaty's main parties will soon disintegrate.
In the aftermath of the failed Soviet coup attempt this August, Latvia, Lithuania, and Estonia regained their independence from the Soviet Union. While this longstanding goal of U.S. policy was applauded in Washington and throughout the West, Baltic independence did pose potential problems for CFE implementation. The territory of the Baltic countries had been included as part of the Soviet Union in the Treaty (Zone 4.3), and the TLE located there was subject to limitation and inspection.
Prior to Baltic independence and the establishment of diplomatic relations between the United States and Latvia, Lithuania, and Estonia, committee members had raised concerns about the treaty's prospective effect on U.S. policy toward the Baltic states. Under the treaty, the Baltic Military District is considered Soviet territory, and some members were concerned that the treaty could be interpreted as tacitly accepting the Soviet Union's incorporation of the Baltic States in 1940. While these concerns have been nullified by the subsequent independence of the Baltic countries, the debate that occurred on this issue prior to Baltic independence serves to clarify several points.
Responding to members concerns to July, Secretary of State Baker assured the committee that "the negotiation of this treaty, just like the negotiation of other agreements in the past with the center in the Soviet Union does not represent any change in our longstanding policy of nonrecognition of the forcible incorporation of the Baltics." Secretary Baker agreed with Senator Dodd that nothing in the Treaty should be deemed to confer either recognition or acceptance of Soviet efforts to exercise sovereignty or maintain control over the Baltic republics of Estonia, Latvia, and Lithuania.
With regard to the stationing of Soviet forces on Baltic territory, Secretary Baker emphasized that "the CFE Treaty does not 'permit' the U.S.S.R. to station forces in the Baltic States." He also explained that including Soviet forces located in the Baltic States served the interests of these countries because "if Soviet forces in the Baltic Military District were excluded from the Treaty coverage, the Soviets would have an incentive to maximize their forces located there."
In response to concerns raised by Senators Pressler and Helms that equipment stationed in the Baltic Military District could be used to quell independence movements in the Baltic States, Secretary Baker acknowledged that the Treaty "was not intended to deal with what they would consider and we would not, internal security matters within the Soviet Union." In a further response for the record, Secretary Baker added, however, that the treaty does have the effect of affecting Soviet use of equipment for internal security purposes. It would do so by imposing constraints on the Soviet internal security apparatus that not otherwise exist. Baker cited two examples: "The most destabilizing categories of equipment-tanks, artillery, combat aircraft, specialized attack helicopters-fall under CFE numerical limits even if held by internal security forces. Armored infantry fighting vehicles (AIFV) in excess of 1,000 also count." Second, "all equipment in Treaty-limited categories held by internal security organizations must be notified as part of the regular information exchange; reassignments of certain categories orequipment from the armed forces to other organizations (like internal security) must also be notified when they occur."
Regarding inspections on the territory of Lithuania, Latvia, and Estonia, Secretary Baker responded that there are no provisions in the Inspection Protocol "for representatives of non-States Parties to participate in inspections. The governments of the Baltic States are not CFE signatories." The administration's main concern about including Baltic representatives in escort teams was that it would establish a reciprocity problem. Baker stated that "* * * we would not permit the Soviets a droit de regard over the composition of our escort teams and do not expect to exercise control over their decisions in this regard."
2. Baltic Independence and the Treaty
So far, Lithuania, Latvia, the Estonia have chosen not to seek accession to the CFE Treaty. Joining the treaty regime might have been advantageous because the Treaty specifically prohibits the stationing of treaty-limited equipment on the territory of another state party without a specific agreement. This provision could have given the Baltic States additional leverage in seeking to achieve the complete withdrawal of Soviet forces from their territory. If they had joined, the Baltic States could also stage inspections on Soviet territory near their border. Moreover, inclusion in the regime would have locked the Baltic States into a new European security system.
These advantages notwithstanding, the newly sovereign Baltic States have chosen to stay outside the Treaty. While the committee believes that the advantages of joining the treaty regime probably outweigh the disadvantages, the decision is for the Baltic States alone to make. Given the limited military potential of these states, the committee does not believe their absence will have an appreciable impact on the military balance in Europe.
However, the committee remains concerned about the status of Soviet treaty-limited equipment located on the territory of Lithuania, Latvia, and Estonia.- The best unclassified estimate is that there are some 650 tanks, 2,300 armored combat vehicles, 500 artillery ece"' 350 combat aircraft, and 40 attack helicopters owned by the tnion army located in the three Baltic States. Clearly, this equipment should be counted against the holdings of the former Soviet Union.
To address this situation, the CFE Joint Consultative Group negotiated an agreement which all signatories, including the Soviet Union, regard as legally binding. According to the agreement, the Soviet Union "shall treat all its conventional armaments and equipment defined in article 11 of the Treaty present, on or after November 19, 1990, on the territories of Estonia, Latvia, and Lithuania as subject to all provisions of the Treaty and associated documents." In particular, this agreement makes clear that Soviet equipment located in the Baltic nations "shall count toward the Soviet reduction liability."
The commitments of the Soviet Union and the other states parties are contained in the "Statement of the Chairman of the Joint Consultative Group" of October 18, 1991 (See Annex). According to that statement, tlt states parties also recognized that the territory of Lithuania, Latria, and Estonia will no longer be considered as part of the area of application of the Treaty. In so doing, the 22 also underscored Baltic independence from the Soviet Union.
By its terms, this statement will be transmitted to the Depositary and deposited together with the instruments of ratification.
In response to questions from Senator Biden in October, Secretary Baker statd that this legally binding agreement "will ensure that Soviet equipment located on Baltic territory will count against the aggregate cilings and subceilings established pursuant to the Treaty for the group of Six and be subject to the sufficiency rule."
Latvia, Lithiania, and Estonia, for their part, have agreed in principle to allow CFE inspections on their territory to permit verification of compliance. According to Secretary Baker, "Preliminary discussions between Baltic leaders and U.S. representatives indicated a willingness to allow inspections of any Soviet TLE remaining on their terriory after the Treaty enters into force."
The committee notes that this side agreement is an important document affecting the obligations of the state party with the largest quantity of treaty-limited equipment-the former Soviet Union. Yet, the Bush administration's transmittal letter described the agreement as for the information of the Senate."
The commttee believes that this agreement is a significant addition to the Treaty regime, and that this agreement sets an important precedent for addressing the creation of new states in the former Soviet Union. For these reasons, the committee attached to its resolution ratification a binding condition regarding the legal status of this agreement.
According to the committee condition, the United States shall regard actions inconsistent with this agreement as equivalent under international law to violations of the Treaty itself. In so doing, the committee intends to make clear that this side agreement has the same force and effect as the Treaty. Hence, any attempt by the Soviet Union to exclude equipment located in the Baltic States from the Treaty should entail consequences as severe as actual violations of the Treaty.
The committee, believes there is no sound constitutional argument for not seeking Senate approval of "side" agreements reached prior to final Sonate consent to ratification, insofar as such agreements effect tie obligations of parties to a Treaty before the Senate. More generally, the committee strongly believes that the increasingly conmon executive branch practice of setting aside certain issues for "side" agreements threatens to undermine the Senate's coequal role in the treaty-making process. Therefore, the committee intends as a matter of practice to continue to condition the Senate's consent to treaties on the understanding that so-called "side" agreements have the same force and effect as the Treaty to which such agreements are related.
Shortly after Treaty signature, it became apparent that the Soviet Union had failed to declare a total of about 5,500 battle tanks, artillery, and armored combat vehicles located in the Atlantic to the Urafs zone, subordinated to their Naval Infantry, Coastal Defense, and Strategic Rocket Forces, and their Civil Defense Organization.
There was particular concern over the 3,738 pieces of equipment assigned to Naval Infantry and Coastal Defense. Despite the fact that this equipment was clearly not exempted under the Treaty's main counting rule in Article III, Soviet negotiators claimed it was excluded. This position was firmly rejected by the United States and the other 20 signatories as being without foundation either in the Treaty text of the negotiating record. All agreed that the Treaty should not be ratified and implemented until the dispute was satisfactorily resolved. Resolution was complicated, however, by internal difficulties within the U.S.S.R.-in particular by unhappiness on the part of members of the Soviet General Staff.
In bilateral U.S.-U.S.S.R. contacts over the next 6 months, it became clear that the issue would only be resolved on the basis of a practical solution that did not require either side to abandon its position of principle with respect to the coverage of Article III. Breakthroughs toward such a solution were achieved on the basis of high-level communications between Presidents Bush and Gorbachev, and meetings, including a number between Secretary of State Baker and Foreign Minister Bessmertnykh. A visit to Washington by Chief of the General Staff Moiseyev in May 1991 paved the way for final Soviet agreement by Baker and Bessmertnykh on June 1.
On June 14, 1991, at an extraordinary conference of the 22 signatories in Vienna, the Soviet Union made legally binding commitments to, inter alia, cap its holdings of naval infantry, coastal defense and SRF at their November 1990 levels; to decrease Soviet holdings in the zone by an additional 3,738 pieces of equipment; and to keep its total holdings in Treaty-limited categories in the zone within Treaty ceilings. The Soviets also pledged that henceforth, unless otherwise specified in their statement, in the Treaty or its associated documents, all equipment in Treaty-limited cagegories-regardless of organizational subordination-would count against ceilings.
1. Equipment Involved in the Article III Dispute
The various categories of TLE in the ATTU that were involved in the Article III dispute are as follows:
Tanks ACV Artillery Total Coastal Defense..........813 972 846 2,631 Naval Infantry...........120 753 234 1,107 Strat Rocket F.............0 1,701 0 1,701 Civil Defense..............0 18 0 18 Total....................933 3,462 1,080 5,457
Pursuant to the June 14 Statement, the Soviet Union is obligated to destroy or convert 2,985 TLE. Half of this equipment is to be reduced in the zone according to CFE modalities. The remainder can be withdrawn from the zone, but an equal amount must be destroyed or converted beyond the Urals. An additional 753 APC's of the MT-LB type are to be specially modified into "look-alike" vehicles (which do not count under the Treaty) in accordance with CFE procedures. The Soviet Union agreed to limit its equipment in Treaty categories assigned to the Strategic Rocket Forces to 1,701 APC'S; these would not count against Treaty ceilings in accordance with exemption (F) of article III-as equipment performing internal security functions.
The Soviets agreed to calculate naval infantry and coastal defense equipment against its permitted CFE limits. In return, the participants agreed that TLE held by coastal defense and naval infantry units would not be subject to mandatory declared-site inspections, but would come under the challenge inspection regime.
When this dispute first arose, Senators Biden, Pell, and Helms strongly rejected the Soviet interpretation of article III. By its very terms, that article makes clear that all equipment in treaty-limited categories is covered by the Treaty unless it is specifically excluded under article III. Since article III contains no exclusion for equipment assigned to naval units, the Soviet position flatly contradicted the treaty text.
For this reason, Senators Biden, Pell, and Helms proposed that the administration send the Treaty to the Senate in advance of the June 14 compromise. In turn, the Foreign Relations Committee would attach a binding condition to the resolution of ratification requiring Soviet agreement to the proper interpretation of article III. It is the committees view that such an approach would not have risked undermining the Treaty. On the contrary, if the United States and other parties had ratified the Treaty subject to such a condition, the Soviet Union would most likely have accepted the situation as a fait accompli. Instead, the Soviet side was never required to formally repudiate its interpretation of article III, even though they agreed to act as if their interpretation did not apply. However, as a result of the administration's approach, the June 14 agreement does not precisely track the Treaty. In response to a question from Senator Biden, Secretary Baker acknowledged that one provision of the June 14 agreement "diverges explicitly from the Treaty." According to the Secretary, "the Soviets will be permitted to withdraw 1,492 pieces of equipment rather than destroy or convert them in the zone." In exchange, the Soviet side did agree to destroy or covert an equal number of TLE East of the Urals.
Because of the importance of this issue, the committee asked the adminsitration to provide a summary of its account of the negotiating history of this provision. The summary makes clear that the United States had always insisted that article III did not exclude naval equipment. That summary will be available to Senators during the floor debate on the Treaty in S. 407. Thereafter, the summary will be kept in the committee's files.
In light of the fact that the Soviet side, has agreed to act under the correct interpretation of article III, the committee is satisfied with the resolution of this issue. Nevertheless, the committee believes that the June 14 legally binding agreement is an important document affecting the obligations of the state party with the largest quantity of treaty-limited equipment-the former Soviet Union. For these reasons, the committee attached to its resolution of ratification a binding condition regarding the legal status of this agreement.
According to the committee condition, the United States shall regard actions inconsistent with this agreement as equivalent under international law to violations of the Treaty itself. In so doing, the committee intends to make clear that this side agreement has the same force and effect as the Treaty. Hence, any attempt by the Soviet Union to exclude equipment because of its subordination to naval units should entail consequences as severe as actual violations of the Treaty.
The committee believes there is no sound constitutional argument for not seeking Senate approval of "side" agreements reached prior to final Senate consent to ratification, insofar as such agreements affect the obligations of parties to a treaty before the Senate. More generally, the Committee strongly believes that the increasingly common executive branch practice of setting aside contentious issues for "side" agreements threatens to undermine the Senate's coequal role in the treaty-making process. Therefore, the committee intends as a matter of practice to continue to condition the Senate's consent to treaties on the understanding that so-called "side" agreements have the same force and effect as the Treaty to which such agreements are related.
Between approximately January 1989 and the signature of the CFE Treaty on November 19, 1990, the Soviets moved, by their own count, some 57,000 pieces of equipment out of the CFE area of application, most of which would have been subject to destruction under the Treaty.
These pre-Treaty withdrawals were not illegal but other CFE signatories found such a large withdrawal and buildup of armaments just outside the area of application to be inconsistent with the goals of the Treaty and potentially destabilizing.
The issue was complicated by the fact that the movements were, in part, pursuant to Gorbachev's widely hailed December 1988 U.N. announcement of unilateral withdrawals as well as agreements with East European governments. The Soviets also justified them as due to force restructuring, inadequate storage West of the Urals to accommodate the East European Pullout, economic problems and insufficient new weapons production, and too few destruction facilities within the Treaty zone to meet Treaty-stipulated destruction timeliness.
In testimony before the committee, Acting CIA Director Richard Kerr compared the Soviet withdrawal to the "Oklahoma land rush."
Beginning in the summer of 1990, the United States led diplomatic efforts to secure from the Soviets assurances with regard to the use and ultimate disposition of the withdrawn equipment. On June 14, 1991, in a politically binding statement to the CFE Joint Consultative Group, the Soviets promised, inter alia:
Into storage To units Total Tanks................8,400 8,000 16,400 ACVs.................4,700 11,200 15,900 Arty................23,400 1,600 25,000 Total...............36,500 20,800 57,300
The decreases in Soviet TLE that occurred before November 19, 1990, were larger than the United States had anticipated. On October 3, 1990, Foreign Minister Edward Shevardnadze indicated to the press in New York that the Soviets expected to have some 76,000 ground TLE (tanks, ACV'S, and artillery) in the ATTU region by the end of 1990. Their declaration of holdings as of Treaty signature, plus the TLE they agreed to count pursuant to their June 14 legally binding statement, total 68,000 TLE, or about 8,000 fewer than the Shevardnadze statement. The table below shows the differences between figures the Soviets had earlier provided on their holdings as of mid-1988 and the Soviet holdings declared as of Treaty signature:
Tanks ACV's Arty Total
1. 7/88 TLE levels.............41,580 57,800 42,400 141,780
2. CFE Declaration
(amended 2/91)
+Art.III TLE...........21,658 31,615 15,018 68,291
Difference..............19,922 26,185 27,382 73,489
General Powell and the four Joint Chiefs of Staff discussed the military significance
of the equipment in storage East of the Urals in a lengthy dialogue with Senator
Biden. According to their testimony, there are several reasons why this equipment
should not prove to be a military problem for NATO:
Committee Condition
Given the political military significance of this equipment East of the Urals, committee members were concerned about the status of this "political" commitment. The following exchange highlights the Executive-Senate dialog on the issue:
Senator BIDEN. Could Soviet actions in violation of this solemn political pledge constitute a circumvention of the Treaty as proscribed by article XIX and could it thereby warrant U.S. withdrawal from the Treaty?Despite this exchange, the administration demurred from specifying what level of Soviet action inconsistent with its political statement would be sufficient grounds to invoke the withdrawal clause under article XIX.
Secretary BAKER. We attach a great deal of importance to this political statement and we expect when we take a political statement, that it will be complied with * * *. We would have the right under our national security withdrawal rights. If it was a substantial violation of a major political commitment, we could pull out.
In light of the fact that all administration witnesses agreed that the Soviet equipment East of the Urals posed the most likely threat of a serious violation of the treaty, the committee felt it important to highlight the Soviet political commitment on this issue. In so doing, the committee condition makes clear that "militarily significant" actions inconsistent with this political commitment could have grave consequences for the future of the Treaty.
The committee condition states that "the United States shall regard militarily significant actions inconsistent with" the Soviet political commitment of June 14, 1991, as potentially warranting an appropriate response under article XIX. In addition, the Committee condition makes clear that if such action does occur the President must report to the Senate concerning the appropriate U.S. response. The committee believes that there is no sound constitutional basis for refusing to consult with the Senate about any planned or potential response the administration is contemplating. Further, the committee believes that the President would be well-advised to consult closely with the Senate about any U.S. response in order that the United States speak with one voice on an issue of this major political and military significance.
Because of the importance of this issue, the committee asked the administration to prepare a classified account of the U.S. version of the negotiating history over equipment East of the Urals. That negotiating history will be available to all Senators in S. 407 during the consideration of the Treaty by the full Senate. Thereafter, it will be retained in the committees files.
The administration told the committee in July that some of the equipment the Soviets claimed had been withdrawn from the ATTU by November 19, 1990, had, in fact, not been removed by that date. Evidence of destruction in the ATTU and information available on holdings now located east of the Urals indicates that nearly all the TLE in question is now no longer present in the ATTU, but the baseline OSIs could, of course, prove otherwise.
In July, Senator Biden asked Ambassador Ronald Lehman, Director of ACDA, about the amount of TLE withdrawn from the ATTU after November 19, and about the general conditions of the Soviet departure from the ATTU. Ambassador Lehman testified that "it would appear that what the Soviets have given us is their projection of what they expected to have in the zone at the time * * * we are continuing to pursue this issue in the JCG." A week earlier, Richard Kerr, the Acting Director of Central Intelligence, stated: "At this time, our best judgement is that the Soviet 19 November figures reflected what they intended to have in the zone when the Treaty entered into force -- if not before."
Senator Biden then followed up with further questions on the actual amount of unreported TLE that was still in the ATTU on November 19, and "about the efficiency and the capability of the Soviets to either, (A) move; (B) know whether it was moved; and (C) know where it was in transit."
Ambassador Woolsey responded as follows:
* * * we believed based on information that had been provided to us by the intelligence community that there were problems, * * * concrete data problems with a somewhat smaller level of equipment * * * there were approximately 1,000 aircraft, much of it in storage at air field, looking to us as if it were older aircraft, that the Soviets did not try to hide, but did not declare. And we raised this issue in the Joint Consultative Group and after discussions there, they increased their notified holdings by between 100 and 200 aircraft. There were still 800 or so aircraft that they did not notify. Now some of that aircraft appeared to have been in the process of being destroyed at the beginning of the period (and) * * * much of it has been destroyed since. * * * There were also * * * on the order of 800 pieces-of ground-based equipment, which we have * * * [with] reasonably good confidence [determined] were not declared properly and we continue to raise that issue in the Joint Consultative Group * * *.Ambassador Woolsey also mentioned possible further undeclared ground equipment "in the very low thousands." This "several thousand" TLE did not actually arrive at destinations east of the Urals until after November 19, 1990, but it cannot be proven to have been in the ATTU on that date.
By observing the date of arrival, one can estimate how many of these late-arriving TLE may have still been in the ATTU on November 19, 1990, and that number is about 3,000.
Also, some destruction of older tanks and aircraft in the ATTU appears to have been underway on November 19, but not completed until after that date. The Soviets have agreed that about 800 to 1,000 aircraft were in the ATTU on November 19, but they assert that these aircraft were older and did not meet the definition of "aircraft" in the Treaty. It now appears that some 1,500 additional older tanks and aircraft have been or are being destroyed.
As part of their June 14, 1990, unilateral political commitment, the Soviets declared that they would destroy "an additional 6,000 battle tanks, 1,500 armored combat vehicles and 7,000 pieces of artillery from among the conventional armaments and equipment in the Treaty-limited categories beyond the Urals." Thus, the Soviets will have, at least, agreed to make amends. The unilateral destruction of 14,500 TLE, plus the reduction of 3,738 TLE pursuant to the Article III dispute (in addition to the reduction obligations under the Treaty already accepted by the Soviets), is clearly welcome.
Other observers have suggested that there may have been as. many as 18,000 more pieces of equipment in the zone on November 1990 than the Soviets declared. Based on open and closed testimony by the intelligence agencies, it seems fair to conclude that we will never be able to confirm whether 18,000 extra TLE were in the ATTU on November 19, 1990.
In light of the importance of this issue to committee members, a summary of available classified information will be available to all Senators in S. 407 during the consideration of the Treaty by the full Senate. Thereafter, the summary will be retained in the committee's files.
Committee Condition
Senators Biden and Helms both expressed concern over the data discrepancy issue. In response to questions from Senator Biden, representatives from the intelligence community confirmed that "we have found some undeclared equipment in the zone." Intelligence community representatives confirmed that this number is about 800. Furthermore, the intelligence community stated that it "cannot negate the possibility" that additional equipment was moved out of the zone after the date of treaty signature. The committee condition makes clear that a discrepancy does exist between U.S. estimates and Soviet declarations. The condition goes on to require that the United States (I shall continue to seek clarification of those holdings of Treaty-limited equipment as of November 19, 1990."
Perhaps most important, the committee condition states that the United tates "shall seek to obtain additional reductions of equipment in Treaty-limited categories in the event the President determines that actual holdings of Treaty-limited equipment by any state party exceeded its declaration concerning its holdings of such equipment as of November 19, 1990."
In other words, the committee strongly believes that if the Soviet Union did fail to declare equipment, such equipment should be treated as if it were covered by the agreement. Although most administration officials believe that the treat'y calls for calculating destruction requirements on the basis of each state's declaration, the committee believes that if Soviet declarations are lower than actual holdings, the United States should seek to obtain additional reductions. The Soviet Union should not be permitted to benefit from incorrect data declarations.
Since the Reagan administration's attempt to develop a new theory of treaty-making during the dispute over the proper interpretation of the ABM Treaty, the committee has been focused on protecting the Senate's coequal role in the treaty-making process.
At the beginning of the committee's consideration of the CFE Treaty, Senators Biden and Helms posed a simple series of questions to Secretary Baker. These questions were designed to confirm the obvious point that one administration cannot change the interpretation of a treaty that a previous administration took during the ratification process, unless the Senate approves such a change. Because the administration's answers demonstrated a calculated unwillingness on the part of administration lawyers to aff'irm this basic proposition, the committee felt compelled to attach a declaration reaffirming fundamental principles.
The declaration affirms that the principles of treaty interpretation, derived as a necessary implication from the Constitution, set forth in Condition (1) of the Senate's resolution of ratification of the INF Treaty (May 27, 1988) apply to all treaties.6
As the declaration itself states, these principles apply to all treaties regardless of whether the Senate chooses to say so in its consideration of any particular treaty.
2. Treaties Versus Executive Agreements
As part of its resolution of ratification, the committee also declared its intention to consider agreements between the United States and other countries involving militarily significant obligations on U.S. armed forces only as treaties. Some in the executive branch continue to believe that it is constitutionally acceptable to undertake militarily significant accords by Executive agreements supported by simple majority vote in both Houses of Congress.
In attaching this declaration, the committee intends to make clear that it will consider militarily significant agreements only as treaties. The prominent case in point is the recently signed bilateral agreement on chemical weapons. That agreement imposes a permanent ban on the production of chemical weapons. As such, it is a militarily significant agreement that should be a treaty, and the committee intends to consider it as such if it is forwarded to the Senate. This declaration thus serves to put the administration on notice that it should proceed henceforth to any agreement on chemical weapons as a treaty.
Since there is a strong predisposition to approve a well-crafted weapons accord, the administration's persistence in arguing for an executive agreement will only serve to create an unnecessary Executive-Senate controversy that could be deleterious to the arms control process.
The Conventional Forces in Europe (CFE) Treaty is the most far reaching multilateral arms control agreement in history. If fully implemented, the Treaty's overall ceilings and regional subceilings on treaty-limited equipment (TLE) items will reduce dramatically the quantity of conventional armaments in the Atlantic-to-the-Urals (ATTU) area. Further, under article VII the residual armament levels of each signatory state will be capped. This will result in a rough military balance between and among the states of Europe, and between NATO and the former Soviet Union.
Implementation will require a high degree of openness and transparency that, when complemented by the onsite inspection regime, should enable signatories to adjust their future defense requirements, while accommodating the political changes occurring across Europe. Hence, the Treaty should have a very positive, enduring effect on military security and stability in Europe-and perhaps establish precedents for arms reductions and stabilizing measures in other regions of the world.
If the Treaty's many potential achievements are to be fully realized, however, the states parties will need to exercise mutual self-restraint. The requirements for restraint, in part, arise because certain treaty provisions are ambiguous. As Chairman Biden pointed out at the onset of the hearings, because of the subject matter and the multilateral negotiating process, the treaty text is a "nitpicker's paradise."
Specific areas of concern discussed in this section are weapons definitions, the onsite inspection regime, force structure transparency measures, and procedures for resolving differences of Treaty interpretation. The committee did not find these treaty ambiguities to be of sufficient magnitude to warrant explicit understandings attached to the resolution of ratification. Instead, the committee believes most of these ambiguities can probably be resolved within the existing framework of the CFE Treaty, either through the Joint Consultative Group (JCG) or in some other subministerial forum.
However, if the JCG proves unable to resolve national differences of opinion, the political authorities of the signatory states will need to act. While many potentially contentious issues are not of such importance that they would normally be brought to political levels for resolution, a failure to resolve such issues may, over time, diminish the commitment of signatory states to observe even the more fundamental terms of the Treaty. The committee believes the best solution is to resolve ambilqjities in the JCG where that is possible, and to strengthen the process by which other issues can be resolved below the ministerial level.
The major Treaty obligations are based on broad definitions of treaty-limited equipment (TLE): battle tanks, armored combat vehicles, artillery, attack helicopters, and combat aircraft. Each is accompanied by a listing of existing TLE types. As new types are fielded, however, potential differences of interpretation of the definitions may need to be adjudicated on a case-by-case basis. Self-serving treaty interpretations could erode the foundation on which the rest of the Treaty was constructed. The following examples illustrate the nature of the definitional challenge:
The term "artillery" refers to large calibre weapon systems capable of engaging ground targets by delivering primarily indirect fire. The definition specifies that future large calibre direct fire systems that have a secondary effective indirect fire capability shall also be counted against the artillery ceiling.
Most large caliber weapons are capable of delivering indirect fire, and the terms "primarily" and "effectively" are qualifiers intended to distinguish artillery systems from other large caliber gun systems. However, the use of such general terms may require judgment calls about the role played by each piece of equipment. For example, the Soviet Union declared the 2S9 to be an artillery system although it is used primarily in a direct fire mode, and could fit under the HACV definition.
The clause about future large caliber gun systems is also vague, as it would seem to encompass any weapon over 100mm. The administration's article-by-article analysis explains that the rule was written around the Soviet T-10 antitank gun, but the rule is too cumbersome for the protection of one system and could be a source of trouble in the future.
2. Combat Aircraft and Attack Helicopters
The definition of combat aircraft is broad. Several existing types of combat aircraft are missing from the Protocol on Existing Types despite the apparent coverage under the general definition. The Soviet Blackjack bomber, for example, was not declared because it is a strategic system. Such systems were not explicitly exempted, however, which could lead to contentious interpretations of the combat aircraft definition in the future.
The treatment of land-based naval aircraft in a separate political agreement also contradicts the plain reading of the Treaty text. Although all of the signatories were in agreement with respect to what was and was not included under the CFE aircraft limits, definitional problems may arise in the future as new types of combat aircraft are fielded.
The definition of attack helicopters is less troubled by implicit exemptions or ambiguous language because the definition permits signatories to recategorize "multipurpose" attack helicopters (those that are not "specialized attack helicopters") into nonaccountable "combat support" helicopters. However, future problems may arise over the proper categorization of new types of helicopters. The resolution of such problems will depend on the effectiveness of the Joint Consultative Group (JCG).
The committee believes that the United States should seek to clarify in the JCG how they will address the question of future TLE. While a specific amendment does not appear necessary at this time, an effort should be made in the JCG to achieve a commitment to accept criteria for resolving the exclusion or inclusion of future TLE under the existing Treaty limits.
As the letter from the Chairman and Vice Chairman of the Intelligence Committee points out, (See Appendix), the definitions in Article II regarding armored combat vehicles exclude certain other tracked vehicles, which could lead to compliance issues.
The intended purpose of this article is to allow a State to exceed modestly the CFE ceilings on TLE for the purpose of modernization and replacement. The limitation on decommissioned TLE is ambiguous, however, and the only distinction provided by article IX (or by the Protocol on Information Exchange, section IX.l.B) between decommissioned and treaty-limited weapons systems is the requirement to segregate treaty-limited and decommissioned weapons into "separately distinguishable" groups and the requirement to notify such holdings.
Also, there appears to be no demilitarization required for decommissioning---just a declaration, and an unannounced movement of TLE to and from a holding site. Finally, although the sites at which decommissioned armaments may be held are to be identified as "declared sites", such sites do not necessarily have to be Objects of Verification (OOV's). These shortcomings could lead to concerns about the accountability of decommissioned equipment. They also create a potential for future misunderstandings. At a minimum, the signatories should clarify the Treaty limitations on decommissioning.
The real treaty interpretation issues are not flaws in the wording of the definitions per se. Rather, the definitional ambiguities discussed show that the Treaty will endure only if its definitions can be applied as new types of weapons are developed and fielded, and as the area of application undergoes adjustment. The committee believes the effectiveness of the Joint Consultative Group -- which has immediate responsibility for preserving the continuity of the Treaty -- will be the critical factor insofar as definitional arbitration is concerned.
Special attention needs to be paid to some minor weaknesses in the formulation of the CFE verification regime. The Treaty provides for a large number of onsite inspections. But the number of permitted inspections is keyed to the number of reportable "Objects of Verification" (OOV's). In turn, the number of OOVs is dependent on the number of TLFholding regiments, brigades, wings, etc., in each signatory's conventional military force structure. While no formal action appears necessary or desirable, the committee does believe this formulation of the verification regime leaves the determination of inspection rights and obligations open to possible national manipulation.
Because the inspection rights and obligations can be manipulated, problems have already arisen. The number of OOVs reported by the Soviet Union, for example, was far less than the other parties had expected. This uncertainty may have occurred had inspection quotas been based on the number of reported TLE (or on the maximum national holdings of TLE) rather than on the number of reported regiments, etc. It should be noted, however, that despite such manipulation, all equipment is still subject to inspections albeit in larger groups of TLE.
Further, NATO has elected, in part, to determine the active inspection quotas of its members based on the number of OOV's each reports. This type of accounting could place the United States at a disadvantage despite the large quantity of TLE the U.S. holds in the ATTU. For example, the stored U.S. TLE will be counted as only one OOV per storage site. The U.S. active inspection quota could, therefore, decline sharply as the United States draws down its active forces. This problem could be corrected if the U.S. active inspection quota were based on national holdings of TLE.
The verification process is further complicated by the number and types of Treaty obligations. The following discussion reflects particular concerns of certain committee members.
The Treaty prescribes that the inspecting party is entitled to inspect only one OOV for each of its active inspection otas, While present at the declared site on which that OOV is towe inspected, the party may also inspect any "common areas," as defined in the Treaty. The initial specification of the boundaries of each OOV at the site, and the determination of what constitutes a common area is, however, left to the inspected party. It is too soon to tell how the signatories to the treaty will make such determinations. It is possible, however, that they will limit the ability of the inspecting party to gain a complete picture of activities at any site.
This aspect of the verification regime could impede NATO's efforts to monitor Soviet compliance due to the large size of many Soviet military installations. In the time it may take an inspecting team to travel across a large installation, for example, the Soviets could gain more than enough time to adjust the quantity of TLE located in an OOV selected for inspection. Further, by dividing up what might appropriately be common areas among the many 0OVs, they also will be able to limit the ability of inspectors to gain a full appreciation for the nature and scope of activities at that site. In retrospect, the committee believes the inspection rights at declared sites might have been improved by equating none inspection" to an area of a specified size (as was done for challenge inspection rights).
The combination of the passive inspection quotas may constrain the ability of NATO's members to verify the compliance of former Warsaw Pact states, including the Soviet Union. The passive inspection quota of the U.S.S.R. is fixed, but each former member of the Warsaw Pact is permitted to conduct up to five inspections against their former ally. This could diminish substantially the number of inspections that NATO will be permitted to conduct against the Soviet Union.
For this and other reasons, the committee believes that NATO should establish, inter alia, a more or less permanent formula for the allocation of the active quota of Alliance inspections. The current formula could be disadvantageous to the United States in the future. Also, because the formula is open to negotiation, it is an invitation to intraaliance squabbling. The committee strongly urges that this problem be resolved immediately.
The offensive capability of Soviet conventional forces has reflected historically the U.S.S.R.'s impressive force generation potential. Pre-CFE estimates usually placed the strength of the Soviet Army upon mobilization at over 200 divisions. One of the major objectives of the CFE Treaty, therefore, was to constrain the capability of the Soviet Union to mobilize such a large force.
Reductions in TLE, coupled with intrusive verification, are meant to guarantee that Soviet force generation capabilities remain limited. Yet, under certain circumstances, the CFE Treaty does not preclude a state from legally increasing the size of its conventional forces on short notice. The following examples demonstrate that the Soviet Union can increase its force size without necessarily violating a treaty provision.
The limits on TLE holdings do not take effect until 40 months after the Treaty enters into force. This permits any signatory state to increase its TLE holdings in the ATTU during the reduction period as long as: the increase is reported regularly; the State continues to meet its TLE reduction liability; and the TLE ceilings are met by the end of the 40-month reduction period. Any TLE increase during the reduction period could, however, be interpreted as an attempt to circumvent the treaty, or as preparation for aggression, Although legal, a big increase in TLE might be threatening, and could jeopardize the adherence of other parties to the treaty. In testimony before the committee, administration witnesses acknowledged this possibility. They argued that the absence of interim ceilings was intended to ensure that NATO could transfer equipment between member states. In addition, Ambassador Woolsey pointed out that the Administration believed the interim ceilings might not be independently verifiable without devoting considerable resources to this task.
To the extent that verification concerns drove this decision, the committee believes that this is an example of putting the verification cart before the arms control horse. Moreover, interim ceilings would not have placed an undue burden on NATO cascading. Having failed to set interim ceilings in the treaty proper, the committee believes it would be wise to supplement the treaty with a political commitment to refrain from any substantial TLE buildup in the ATTU, however temporary. Such a commitment could be undertaken at any meeting of ministers, to include the meeting scheduled to occur in Helsinki at the opening of the CSCE Review Conference (which is scheduled for early 1992).
TLE items that are not in active units can be stockpiled in the ATM for use by reserve units or by units which would come in from outside the region. U.S. POMCFUS is a case in point. Under the treaty, however, non-TLE units, with all of their other equipment intact, can be stationed near TLE storage sites. By definition, only units or sites that hold TLE are considered to be 0OVs. Thus, units not holding TLE are not subject to onsite inspection except under challenge inspection procedures, which can be refused. These pnits are not prohibited from drawing stored equipment for training or maintenance under article X (9). AB a resuftmthis situation can lead to concerns about the breakout potential of nonactive units.
The Treaty exempts from TLE limitation all armored personnel carriers, HACVs, and multipurpose attack helicopters that are held by organizations that perform peacetime "internal security functions." These units are not subject to declared site inspections -- even though they may hold other accountable types of TLE (e.g., battle tanks, artillery, AIFV's over a certain limit, and specialized attack helicopters, and combat aircraft), and are potentially usable as a mobilization base.
The exemption of such units from the CFE declared site regime was necessary to protect police and border security units from arms control constraints which would be inappropriate given the purposes of such units. However, the lack of any ceilings on APCS, HACVs and multipurpose attack helicopters that the Soviet Union (or any other party) may legally place in such units is troubling. The limits on inspection (only through challenge inspections) is equally troubling. Taken together, these exceptions may create an incentive to hide TLE or force structure from accountability by placing it in internal security formations.
The Committee notes the possibility that the break-up of the KGB will result in the transfer of Treaty limited equipment to the Ministry of Defense. This equipment should be reported as holdings in the next data declaration, unless the Soviet Union can show that such equipment is held by organizations designed and structured to perform in peacetime internal security functions.
More generally, the Committee agrees with the concerns expressed in the Intelligence Committee's letter regarding the compliance issues that could arise as a result of not having defined any of the terms in Article III's exemptions.
One possibility not envisioned by the Treaty is the need for NATO members to station forces on the territory of the Group of Six or in new states formed in the original area of application in a peacekeeping role. Such a deployment would be subject to the Treaty ceilings for the sub-zone to which forces are deployed as well as the ceilings for the whole region. If sub-zone boundaries would need to be crossed, NATO members could move forces into a state that had requested such forces without abrogating the Treaty only if there were room within the ceilings, or if compensatory forces were removed from the sub-zone.
Of course, if U.S. or NATO forces were participating in a United Nation-authorized peacekeeping force, those forces could temporarily exceed the Treaty ceilings, since the obligations under the United Nations Charter (Article 103) supercede any other international agreenment.
* * * * * * *
Obviously, in an era when the United States and U.S.S.R. have agreed to eliminate
their theater nuclear arsenals without so much as a single definition or onsite
inspection, any concern about treaty-compliant implementation of a conventional
arms agreement may appear out of step with the times. However, the CFE Treaty's
lack of precision in certain respects is a concern because the use of self-serving
interpretations to hinder verification that could gradually erode respect for
its more fundamental rights and obligations.
The CFE Treaty is the most ambitious arms control treaty ever attempted, and it has great potential for success. Followon agreements may nevertheless be both possible and desirable. For example, it may be desirable to limit systems that were left out of CFE such as engineering vehicles, air defense equipment, and short-range surface-to-surface missiles. Operational constraints on threatening deployments, and/or force structures modifications could also be considered in a future negotiation.
In general, the committee believes that limits on armament levels substantially lower than those agreed to in the Treaty would be desirable. Although lower TLE ceilings did not appear to be in NATO's interest when the Alliance was faced by a Soviet-dominated Warsaw Pact, the liberation of Eastern Europe and the breakup of the Soviet Union have now overtaken any remaining reason to reject deeper TLE reductions and lower limits. The Conference on Security and Cooperation in Europe may, however, replace CFE as the venue for future arms control negotiations in Europe. This could make it difficult to negotiate a legally binding reduction agreement. Whatever venue is chosen, however, the committee believes that further reductions in European-based conventional arms should be an objective of U.S. policy.
NOTES:
4 This section draws largely upon
a legal analysis prepared for the conunittee by the administration. [Return]
5 A justirtration of this DCI judgment is available to all Senators in S-407. [Return]
6 For a comprehensive discussion of the committee's views on this subject, see The INF Treaty, Report of the Committee on Foreign Mations, April 14, 1988 (Exec. Rept. 100-15, 100th Con gress, Second Session), pp 87-108. [Return]