State Letter Reveals Plan for U.S. Legal Commitment to Unratified Nuclear Treaty

Senator opposed to back-door ratification of test ban accord

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The Obama administration will seek a formal political agreement at the United Nations that would legally bind the United States to a nuclear test ban treaty rejected by the Senate 17 years ago.

The plan was outlined in a letter from the State Department to Senate Foreign Relations Committee Chairman Sen. Bob Corker (R., Tenn.), who is challenging the administration’s effort to lock in American adherence to the signed but unratified Comprehensive Test Ban Treaty, or CTBT.

The treaty bans nuclear testing and was signed by then-President Bill Clinton in 1996. The Senate voted against ratifying the treaty in 1999. The Obama administration, as part of its anti-nuclear arms control agenda, has sought ways to codify the test ban treaty despite the constitutional requirement for Senate ratification.

Julia Frifield, assistant secretary of state for legislative affairs, stated in an Aug. 10 letter to Corker that the administration would not seek a legally binding U.N. Security Council resolution on testing.

But Frifield said the administration is working on a U.N. resolution that would affirm the current U.S. moratorium on nuclear tests, and which would mention a legal commitment not to test made in a joint statement by the five declared nuclear powers.

Frifield said the administration wants a new "political statement" that would commit the United States, China, Russia, France, and Britain to legally ban nuclear testing.

The statement will say that any nuclear test would "defeat the object and purpose" of the treaty, she noted.

"This statement would make clear our and the other P5 members’ views that CTBT signatories have an international legal obligation not to test unless they make it clear they no longer intend to become a party to the CTBT," she wrote, adding that the planned Security Council resolution would mention the political statement but not impose "that view as a legal matter, or any other legal prohibition on nuclear testing."

The assistant secretary insisted the political statement and resolution would not "tie the hands of future administrations" that will retain authority over testing.

"We fully respect the Senate’s constitutional role in treaty ratification, and emphasize that our proposal is absolutely no substitute for entry into force of the CTBT, which would result in a durable, legally binding test ban and which would bring into full force the treaty’s vital verification mechanisms," she stated.

Corker said the administration increasingly has used international organizations to impact U.S. law and policy without Congress’ approval.

"Regardless of how one feels about the policy, it would set a damaging precedent for the president to attempt to implement a treaty rejected by the Senate using the backdoor process of a U.N. Security Council Resolution," Corker (R-Tenn.) told the Washington Free Beacon.

Corker is chairman of the Foreign Relations Committee, which has jurisdiction on treaty ratification. He strongly opposed the State Department plan in a letter last month sent to President Obama, criticizing "efforts by your administration to circumvent the U.S. Congress and the Senate’s constitutional role in promoting ratification" of the CTBT at the United Nations.

"The Senate could not have been more straightforward in its opposition to U.S. ratification of the CTBT with 51 members of the Senate voting against ratification in 1999," Corker stated in the Aug. 12 letter.

The treaty was voted down over concerns that its provisions could not be adequately verified and that states could conduct undetectable underground nuclear tests. A total of 44 specific countries must ratify the treaty before entry into force. States that have signed but not ratified are China, Egypt, Iran, Israel, and the United States. India, Pakistan and North Korea are nuclear states that have not signed the treaty.

Anti-nuclear groups have been promoting measures to codify the test ban despite the Senate’s rejections.

"The U.S. Constitution clearly provides the Senate—not the United Nations—the right to the provision of advice and consent for the ratification of any treaty, including the ability to identify when a treaty or the application of the provisions contained in a treaty is not in the U.S. interest," Corker said.

Corker stated that any political statement invoking the "object and purpose" language "could trigger a limitation on the ability of future administrations to conduct nuclear weapons tests."

Additionally, obligations under "object and purpose" restrictions in signed but unratified treaties have been recognized by several U.S. administrations as "customary international law that present a binding restriction on the United States," Corker stated.

"By signing on to language declaring avoidance of nuclear weapons testing to be essential to the ‘object and purpose’ of the CTBT, the State Department is in effect submitting the United States to the restrictions of a treaty that has not entered into force," he said. "Regardless of one’s view about the necessity of nuclear testing, seeking to limit a future administration through a customary international law mechanism, when your administration has only four months left in office, is inappropriate."

The committee will hold a hearing Wednesday on the controversy. Witnesses scheduled to appear include Stephen Rademaker, a former State Department arms control official, and Michael Krepon, an anti-nuclear activist with the Stimson Center.

Mark Schneider, a former Pentagon nuclear weapons policymaker, said a test ban is bad idea due to Russian and Chinese cheating.

"The administration claims that it is not subverting the Constitution but rather merely reaffirming the existing testing moratorium," Schneider said. "One slight problem: There is substantial evidence that Russia and China are violating their announced moratorium on nuclear testing."

Additionally, differences in the definition of nuclear testing could facilitate circumvention of the current moratorium, he said.

"If the moratorium allows testing at very low yields for Russia and China, are we going to test at the same very low yields?" he asked. "Or is this more ideological ‘arms control’ in which arms control violations by our adversaries are to be ignored? That is my reading of what they are actually doing."

Retired Vice Adm. Robert R. Monroe, former director of the Defense Nuclear Agency, warned that a lack of nuclear testing could result in a failure of nuclear weapons in a future conflict.

Monroe stated in a commentary published in the Hill Tuesday that nuclear weapons are extremely complex weapons designed decades ago but not tested for 24 years.

A small fault in the physics package of warhead design that is common to two warhead types could prevent nuclear weapons from detonating.

"We discovered many dozens of unanticipated faults like this during our half-century of nuclear weapons testing," Monroe stated. "But in 1992 we stopped testing and relied on computer simulations instead. The problem is that this type of fault hadn’t occurred to our physicists; and you know what they say about computers, garbage in, garbage out."