Nuclear arms control by a pen and a phone: effectuating the Comprehensive Test Ban Treaty without ratification.

Author:Koplow, David A.
  1. INTRODUCTION II. THE COMPREHENSIVE TEST BAN TREATY A. Structure of the CTBT B. Importance of the CTBT C. Evolution of the CTBT D. Current Status of the CTBT E. Interim Measures F. Political Prospects for the CTBT G. Bottom Line III. NUCLEAR NON-PROLIFERATION A. The NPT B. CTBT and NPT IV. U.S. POLITICAL GRIDLOCK V. U.N. SECURITY COUNCIL RESOLUTION A. What This Mechanism Would (and Would Not) Accomplish B. Bottom Line VI. CUSTOMARY INTERNATIONAL LAW A. Legal Effect B. Bottom Line VII. UNILATERAL UNDERTAKINGS A. French Nuclear Tests Case B. Legal Effect VIII. CONCLUSION I. INTRODUCTION

    This Article addresses three serious interlocking national security problems connected to the testing and proliferation of nuclear weapons and investigates three novel possible solutions that lie within the exclusive province of the U.S. executive branch. The three clamorous problems are:

    (1) The fact that the Comprehensive Test Ban Treaty (CTBT), (1) indisputably the most important multilateral nuclear arms control agreement of the past forty years, may never enter into force. This ambitious instrument--a crucial legal impediment against the nuclear arms race and the further proliferation of nuclear weapons capabilities-was signed with great international ceremony on September 24, 1996, and has now been ratified by 163 countries, notably not including the United States. (2) But because of its peculiarly stringent ratification requirements, it has not entered into force for anyone, and there is no prospect that it can be formally executed in the foreseeable future.

    (2) The fact that without CTBT, the global non-proliferation regime is faltering. Timely implementation of the CTBT has long been appreciated as the critical litmus test for preserving and extending the vital global consensus underlying the 1968 Nuclear Non-Proliferation Treaty (NPT). (3) Lacking this paramount validation, the "basic bargain" of the NPT threatens to unravel, with disastrous consequences for international stability and security.

    (3) The fact that sustained political turmoil in the United States-specifically, the disabling blockage of the U.S. Senate--has foreclosed the obvious, traditional routes for addressing problems one and two. Rabid partisanship has occluded reasoned legislative consideration of the merits of the CTBT and threatens to undermine U.S. leadership in promoting these most essential elements of international arms control order.

    Creative thinking is therefore urgently required, to identify alternative routes for timely pursuit of these indispensable national security goals. The three ideas explored here are:

    (1) The possibility that the United Nations Security Council, acting pursuant to Chapter VII of the U.N. Charter, (4) could adopt a legally-binding resolution authoritatively finding that nuclear weapons testing by any state would constitute a "threat to the peace," and ordering that it shall not be done.

    (2) The possibility that the United States and the other leading international actors could cooperate in the development and promulgation of a new norm of "customary international law," paralleling the testing prohibitions of the CTBT and binding all states, even in the absence of an operational treaty.

    (3) The possibility that the current "moratoria" against testing, declared individually by the most critical states, could be converted into legally binding, albeit unilateral, obligations, as the International Court of Justice (I.CJ.) determined had occurred forty years ago with a similar partial declaration by France. (5)

    Notably, the executive branch could pursue each of these three alternative pathways without the concurrence of the U.S. Senate. In January 2014, President Barack Obama famously declared that if Congressional intransigence threatens to paralyze imperative national initiatives, he will promote his progressive agenda "with a pen and a phone." (6) He explained that he would use his pen to sign executive orders and other enabling instruments and that he would wield the telephone to convene productive meetings and persuade others to join the enterprise. (7) Already, the White House "bully pulpit" has been employed to promote important, but otherwise-mired causes in domestic policy, including a federal minimum wage, environmental protection, and immigration reform. (8) This Article contemplates an international correlate of that strategy, promoting meaningful nuclear arms control in pursuit of a CTBT with a pen and a phone.

    Of course, the traditional avenues for accomplishment of nuclear arms control--obtaining the advice and consent of two-thirds of the Senate to the ratification of the CTBT--would be preferable. The wisdom of the constitutional scheme is readily apparent, and the proposed alternatives would be unable to incorporate all the important features that formal entry into force of the treaty would provide. But if an artificial political impediment has constipated the usual legislative processes, then possible fallback routes for circumvention must be considered, especially when, as here, the provocation concerns the existential dangers of nuclear weaponry.

    This Article addresses each of these points in turn. After this introduction, Part II discusses the CTBT in more detail, elaborating what the treaty would accomplish; why it is so important to the public order of the world community; what its current status is; and why the entry into force of the accord has become so bogged down in international and domestic U.S. politics. Part III turns to nuclear non-proliferation, explaining why this policy objective remains preeminent, and why there has always existed an indelible linkage between CTBT and the NPT, such that failure to effectuate the test ban treaty threatens the core of the global commitment against the spread of nuclear weapons.

    Part IV is devoted to parsing the sad story of contemporary U.S. political incompetence, whereby the federal executive and legislative branches have arrived at such persistent loggerheads that even the most vital aspects of national security policy have run unaddressed. President Obama's "pen and phone" approach to circumventing the congressional dead zone has proven at least partially successful in selected areas of domestic policy, despite dogged Republican resistance, and it deserves consideration for international application, too.

    Part V presents the first of the three surrogate pathways. The U.N. Security Council possesses an extraordinary capability to create binding international law. Exercising its Chapter VII powers, it could "decide" that no further nuclear weapons testing shall be done, and all U.N. members would be legally obligated to comply. Such a legislative resolution would immediately insinuate the heart of the CTBT into international law--but would likely not incorporate all aspects of the treaty regime.

    Part VI considers a second alternative: the transformation of state practice into binding customary international law. Most of the leading players have declared longstanding moratoria on nuclear testing--the United States, for example, last conducted a nuclear explosion on September 23, 1992. That pattern of self-restraint could be converted into legal obligation simply by altering the states' public characterizations of their actions, without signing on any new dotted lines. Part VII then pursues a similar train of analysis, grounded in a famous 1974 I.CJ decision that France's earlier declaration of an intention to halt atmospheric testing of nuclear weapons above the South Pacific had hardened into a unilateral legal obligation; (9) perhaps a similar sleight-of-hand can now be worked regarding all testing.

    Finally, Part VIII offers some concluding thoughts, beginning with the concession that the United States and the world would be better off pursuing the traditional avenues for creation of international legal obligations, rather than these half-baked alternatives. Both from the standpoint of democratic theory and in terms of the content of the resulting legal obligations, formal treaty ratification is the most satisfactory mechanism for instituting reliable, detailed commitments. But if the front door to crucial international law is blocked, consideration must be given to circumventing the political anomie via back door mechanisms for advancement of the CTBT and preservation of the NPT.


    The CTBT has long been the "holy grail" of disarmament--an objective of surpassing importance, pursued with ceaseless vigor by legions of zealots around the world for more than half a century despite overwhelming obstacles, and remaining forever tantalizingly out of reach. (10) This Part begins by describing the basic structure of the treaty and its importance as a measure of arms control and non-proliferation. It then addresses the evolution and current status of the treaty, as well as the partial interim test moratorium and verification measures that are already in place, and the grim political prospects for the CTBT's timely entry into force.

    1. Structure of the CTBT

      The basic obligations of the treaty are stated with deceptive simplicity: "Each State Party undertakes not to carry out any nuclear weapon test explosion or any other nuclear explosion, and to prohibit and prevent any such nuclear explosion at any place under its jurisdiction or control." (11)

      In support of that terse basic ban, the vast bulk of the treaty consists of two kinds of operational structures: those connected to verification of compliance and those specifying the mechanics of the new international organization that will implement the treaty. Regarding verification, the CTBT represents the state of the art in arms control, (12) incorporating elaborate provisions for both an international monitoring system (IMS) (13) and on-site inspection (OSI). (14) The IMS comprises four technologies to be installed on 337 diverse facilities dispersed around...

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