The Senate Foreign Relations Committee convened a hearing yesterday to discuss the Obama Administration’s pursuit of a United Nations Security Council resolution that would reaffirm the commitments of signatories to the Comprehensive Nuclear-Test-Ban Treaty.
Yesterday, the Senate Foreign Relations Committee held the first hearing in over 16 years on the Comprehensive Nuclear-Test-Ban Treaty (CTBT). However, Chairman Bob Corker (R-TN) emphasized throughout the hearing that he did not want to discuss the merits or demerits of the treaty itself. Rather, he stressed that he convened the hearing to examine whether the Obama Administration’s intent to seek reaffirmation of the signatories’ commitment to the CTBT would circumvent the Senate’s constitutional role in reviewing treaties.
Corker noted that he sent a letter to the president outlining his concerns in August, which he summarized as follows:
Today, our policy relative to testing is that we don’t test. That’s fine with me. … What I’m concerned about is that the administration is taking steps that possibly — again, we haven’t seen the language — could take that policy and turn it into something that is binding through customary international law down the road, which makes it difficult for a future administration who may want to have a different policy for whatever reasons.
In a letter the committee received the day of the hearing, Secretary of State John Kerry sought to clarify the administration’s intent, saying:
We are not proposing and will not support the adoption of a UN Security Council Resolution imposing a legally binding prohibition on nuclear testing. Rather, we are pursuing a political statement of the Nuclear Nonproliferation Treaty’s nuclear-weapon states [the U.S., Russia, U.K., France, and China], all of whom are CTBT signatories, affirming their view that a nuclear test would defeat the object and purpose of the CTBT.
As a matter of international law, treaty signatories are obliged to refrain from acts which would defeat the object and purpose of a treaty, unless they make their intention clear not to become a party to the treaty. … This is a well-established principle of treaty law and is consistent with the constitutional role of the Senate in U.S. treaty practice.
The [Security Council] Resolution we propose would take note of this political statement … [and] seeks to reinforce the existing moratoria on nuclear testing and strengthen the CTBT’s verification regime.
Nevertheless, Corker and other Republicans on the committee appeared skeptical of the administration’s stated intentions, viewing the move as a potential executive overreach. In particular, Corker cited the invocation of “object and purpose” obligations — set by Article 18 of the Vienna Convention on the Law of Treaties, which the Senate has not ratified — as a potential cause for concern.
Testifying before the committee were Stephen Rademaker, an Assistant Secretary of State under President George W. Bush, and Michael Krepon, co-founder of the Stimson Center. Rademaker focused his testimony on making the case that invocation of “object and purpose” requirements would likely infringe on the Senate’s constitutional prerogatives. In contrast, Krepon argued that such language would not subject the U.S. to new legal obligations and that reaffirmation of international support for the treaty is important given that the treaty has “been in limbo for twenty years.”
In particular, he asserted that funding support for the International Monitoring System — the set of 321 monitoring stations worldwide which are critical to the verification regime of the treaty — could be in jeopardy over the long term absent such a reaffirmation. “The longer the treaty is in limbo, the more people will walk away from this monitoring network that we need to detect low-yield, covert testing,” he said.
[Update: After the hearing, Sen. Marco Rubio (R-FL) and 32 other Republican senators sent a letter to the president threatening to withhold funding from the organization which operates the monitoring network if the Security Council Resolution “accepts the imposition of international obligations that the Senate has explicitly rejected.” The letter also asserts that the U.S. has “no need” for the network because the U.S. has its own means of detecting nuclear tests.]
Some senators weigh in on treaty, praise Stockpile Stewardship Program
Despite Corker’s intended focus on the separation of powers between the Executive and Legislative Branches on the subject of treaties, several Democratic members of the committee argued that the substance of the CTBT was relevant to the discussion and expressed support for actions which would strengthen international norms against testing. In his opening statement, the ranking member of the committee, Sen. Ben Cardin (D-MD), asserted that making it harder for other countries to test is in the U.S.’s national security interest:
We don’t need nuclear tests to ensure our weapons are effective or secure. Year after year our national laboratory directors have certified the Stockpile Stewardship Program provides us with 100 percent confidence that the United States’ nuclear weapons are reliable without nuclear testing. …
It’s the countries that are trying to develop a stronger capacity in nuclear weapons that could benefit by active nuclear testing. It’s those countries that we don’t want to test. … If we are capable of putting more pressure on those countries not to test, it’s in our national security interest.
Sen. Tom Udall (D-NM), whose state contains two nuclear weapons labs (Los Alamos National Laboratory and Sandia National Laboratory), stated that he believes the U.S. should ratify the treaty and noted his disappointment about the lack of serious consideration of the treaty in recent years. He also underscored his support for the Stockpile Stewardship Program.
“I’m proud that the science-based program behind the life extension program at New Mexico’s national security labs has made a moratorium on testing possible,” he said, later adding, “This work has also increased our understanding of physics and other sciences while giving our top scientists and engineers the ability to apply these efforts to other national security interests.”
In addition, Udall asked about the strength of the U.S.’ stockpile stewardship program relative to other countries. Krepon responded, “Nobody is in our league, nobody. Now, the Russian labs took a huge hit when the Soviet Union dissolved. China’s labs, I’m guessing, are better than the Russian labs.”
CTBT stalled since 1999 vote against ratification
In 1992, President George H.W. Bush and Congress agreed to implement a moratorium on nuclear testing, and the U.S. conducted its 1,030th and final nuclear test on Sept. 23, 1992. After a series of extensions to this moratorium, in 1995 President Bill Clinton announced his administration’s intention to negotiate a “zero yield” test ban treaty and create the Stockpile Stewardship Program so that the U.S. could remain confident in the safety, security, and reliability of the nuclear weapons stockpile without nuclear testing. Clinton signed the CTBT on Sept. 24, 1996 and submitted it to the Senate a year later. On Oct. 13, 1999, the Senate declined to consent to ratification of the treaty by a vote of 51 to 48, far short of the 67 votes needed.
In 2001, the administration of President George W. Bush indicated that the U.S. would maintain the moratorium on nuclear testing but would not seek reconsideration of the CTBT by the Senate. President Bush did not formally withdraw the U.S. from the treaty, although Rademaker argued that a 2008 letter from then-Secretary of State Condoleezza Rice to then-Senator Jon Kyl (R-AZ), excerpted in his written testimony, could be interpreted as a formal repudiation of the treaty.
Just under three months after his inauguration, President Obama gave a major speech outlining his views on nuclear weapons policy, in which he announced that he would seek ratification of the CTBT. However, Deputy National Security Advisor Ben Rhodes explained in a June 2016 speech that the administration prioritized ratification of the New START Treaty over the CTBT and ultimately decided not to pursue CTBT ratification due to Republicans gaining Senate seats in the 2010 mid-term election.
The U.S. Senate is not the only barrier to implementing the treaty. Although to date 164 of the 183 signatories have ratified the treaty, 44 specific countries must ratify it for it to enter into force. Eight of these countries have yet to do so: The U.S., China, Israel, Iran, and Egypt have signed but not ratified the treaty, and India, Pakistan, and North Korea have neither signed nor ratified the treaty.
Despite his support for the treaty, at the hearing Cardin offered a frank assessment of the treaty’s prospects for reaching this threshold. “I think we all will agree that it is unlikely it will enter into force,” he said, citing North Korea, Pakistan, India, and Iran as likely holdouts.
For an extensive history of policy developments pertaining to the CTBT, see the Congressional Research Service report “Comprehensive Nuclear-Test-Ban Treaty: Background and Current Developments” (last updated on Sept. 1, 2016).