Michael KreponSenator Corker and the CTBT

Senator Bob Corker, the Republican Chairman of the Foreign Relations Committee, has taken issue with the Obama Administration’s decision to co-sponsor a UN Security Council Resolution and a companion P-5 statement reaffirming national moratoria against nuclear testing. This non-legally binding initiative would also urge the Treaty’s entry into force, now delayed for two decades, as well as funding for the global monitoring and data-sharing system established by the CTBT Organization (“preparatory commission”) in Vienna.

Motherhood and apple pie, no? Who wouldn’t want to oppose the resumption of nuclear testing by China, Russia, India, and Pakistan? Who wouldn’t want more leverage against the one outlier that still tests, North Korea? What’s not to like about supporting international monitoring to help deter covert, very low-yield nuclear testing, with the added bonus of providing early warning to littoral states of oncoming tsunamis?

The answer: Diehard Republican opponents of the CTBT. There’s no reason to test and no place to test, but they still hate the Treaty. Regrettably, Senator Corker has chosen to deflect and reflect their ire, if not join their ranks, in a letter to President Obama dated August 12th. Corker’s letter doesn’t take on the CTBT directly; instead, he takes strong exception to the administration’s perceived end-around of the Senate’s prerogatives.

Senator Corker’s letter to President Obama begins with this broad-brush argument:

“I write to express my strong opposition to efforts by your administration to circumvent the U.S. Congress and the Senate’s constitutional role by promoting ratification of the Comprehensive Test Ban Treaty at the United Nations.”

It takes tortured legal counsel to argue that the Obama Administration is impinging on the prerogatives of the Senate by means of a non-legally binding UNSC Resolution. Presidents do not circumvent the U.S. Constitution by supporting treaties at the United Nations; they have done this many times in the past without usurping the Senate’s prerogatives for advice and consent. UN General Assembly resolutions on the CTBT are an annual occurrence. What’s new is that the resolution under consideration will have the imprimatur of the UN Security Council. But this endorsement will not be legally binding. It will not invoke Chapter Seven concerning nuclear explosive testing. And the exhortations of this UNSC resolution will apply to all laggards, not just the United States.

Senator Corker then asserts that the George W. Bush Administration’s decision not to pursue the Senate’s consent to the CTBT’s ratification has, in effect, constituted a U.S. “unsigning” of the Treaty. Moreover, this “unsigning” reflected a shared understanding between the legislative and executive branches:

“Following the defeat of the CTBT, the Executive Branch came into line with the Senate’s view through a 2007 Statement of Administration Policy that ‘[i]t would be imprudent to tie the hands of a future administration that may have to conduct a test’ and Secretary Condoleezza Rice stated that ‘the Administration does not support the Comprehensive Test Ban Treaty and does not intend to seek Senate advice and consent to its ratification.’ The planned U.N. effort would reverse course on that shared understanding between the Senate and Executive Branch.”

The Bush Administration had the power to withdraw from the Anti-Ballistic Missile Treaty, which it did by formally providing advance notice, as stipulated by the Treaty. In contrast, the CTBT remained on the Senate Calendar throughout the Bush Administration, and President Bush never announced that he was “unsigning” the CTBT. Instead, his administration found it was unwise to ratify this treaty. Clarifications of intent not to pursue ratification are hardly the same as binding future administrations from holding a different view.

Sometimes new administrations pursue the ratification of treaties negotiated by their predecessors, and sometimes they don’t. The Geneva Protocol banning the use of asphyxiating gases remained on the Senate Calendar for fifty years until the Senate responded to the strong urgings of Presidents Nixon and Ford to consent to its ratification. The fact that their predecessors did not seek the Senate’s consent did not constitute “unsigning” the Geneva Protocol, any more than the Bush Administration’s lack of interest in the CTBT constituted its “unsigning.” Concocting reasons for “unsigning” a treaty does not take away the Constitutional authority of another administration to pursue the Senate’s advice and consent.

Senator Corker’s letter then argues that,

“By signing onto 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.”

The clear object and purpose of the CTBT is to ban nuclear testing. Nothing in a non-binding UNSC Resolution would alter this central obligation. Instead, a UNSR Resolution would acknowledge and reaffirm it. With President Clinton’s signature, the United States agreed to respect the object and purpose of the CTBT pending its entry into force. For entry into force to occur, the Senate must still provide its consent to ratification. Other states must deposit their instruments of ratification, as well.

Senator Corker also argues that by seeking a UNSC resolution and an accompanying P-5 statement, the Obama Administration is, in effect, “seeking to limit a future administration through a customary international law mechanism.” My understanding of customary international law is that the passage of time is one factor contributing to customary practice, i.e., the longer the period of time a treaty’s basic object and purpose have been respected, the more standing treaty constraints have.

This foundational principle would apply whether or not the UNSC and the P-5 reaffirm the Treaty’s core obligation not to carry out nuclear test explosions. Customary international law against nuclear testing would, however, be given a boost by a UNSC resolution and accompanying P-5 statement. All the more reason, in my view, to support this initiative.

The Senate’s prerogatives clearly will not be impinged upon by a non-legally binding UNSC Resolution. It’s disappointing to see Senator Corker resort to strained legal arguments to make this case. He has the temperament and experience to help the Republican Party regain its balance on national security and foreign policy issues. If he joins ranks with radical rejectionists in the Senate, the international standing of the United States will be more diminished and riven by partisan divides.

Comments

  1. John Harvey (History)

    Michael. I think you may be missing one of Corkers main points. A UNSC res could declare that a test before entry into force is illegal because it violates the CTBT object and purpose which is to ban nuclear testing. But a test prior to EIF cannot defeat object and purpose because testing before entry into force does not preclude stopping testing after EIF. Recall the issue with SALT/START where testing a banned new type ICBM before EIF would defeat O&P–once tested you could not verify the ban. CTBT Is not a parallel case. Thus such a UNSC res arguably adds an obligation on the US not now extant. Reaction? John H.

    • Michael Krepon (History)

      John,
      Thanks for commenting.
      States usually do not sign a treaty to violate its object and purpose, before or after it’s entry into force. Thus the flurry of testing by France and China prior to signing.
      I’ll leave it to the lawyers to debate whether the Law of Treaties applies, even when not ratified by the US, which has still respected unratified-but-signed treaties. Including the George W. Bush administration re the CTBT.
      Hope you are on the mend–
      MK

  2. Toby Fenwick (History)

    I’m with Michael, John. A non-binding UNSCR would not add to the obligation on the US as a signatory to the unratified CTBT not to violate the O&P. Seen from London, this looks like pure election year politics from Corker, which is too bad.

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