Law, US Security and Nuclear Weapons:
The Comprehensive Test-Ban Treaty and Beyond
On July 20, 2012, a dynamic and informative teleconference was convened by the International Law Section of the American Bar Association (ABA). It featured Acting US Under Secretary for Arms Control and International Security Rose Gottemoeller, US Department of State, and AmbassadorThomas Graham, Jr., a retired senior US diplomat involved in the negotiation of every major international arms control and non-proliferation agreement for the past 30 years. The conversation was facilitated by Jonathan Granoff, President of the Global Security Institute (PUT IN LINK) and Chair of the Section of International Law’s Task Force on Nuclear Non-proliferation and was open to all ABA members.
The program furthered the policy initiated by the Section of International Law and adopted by the ABA in August 2010 urging the United States to ratify the Comprehensive Nuclear Test-Ban Treaty (CTBT). The ABA is a strong supporter of the rule of law, both in the United States and abroad.
Ms. Gottemoeller, the top diplomat of the United States in the area of nuclear arms control, led the recent successful negotiations and ratification of the START Treaty with Russia and has been instrumental in improving the status of the United States internationally regarding leadership in the non-proliferation of nuclear weapons and working to fulfill the vision of President Obama, so eloquently stated in his inspiring speech in Prague on (date and make hyper link) of obtaining “the peace and security of a nuclear weapons free world.”
In the conversation she thanked the ABA for its support of the Comprehensive Test Ban Treaty (CTBT) and efforts to have the US Senate ratify it. She outlined the following points:
As pointed out in the Administration’s 2010 Nuclear Posture Review Report (link) ratification of the CTBT is central to leading other nuclear weapons states toward a world of diminished reliance on nuclear weapons, reduced nuclear competition, and eventual nuclear disarmament, a theme also reflected in the last Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons. (link)
Ratifying the CTBT will not be an easy task. Ms. Gottemoeller’s office will work closely with the Senate, the public and key stakeholders to achieve this goal. When the Senate declined to ratify the Treaty in 1999, there were two major concerns: verifiability and stockpile reliability. On the first, at that time the International Monitoring System (IMS) of the Comprehensive Test Ban Treaty Organization (make hyperlink) was merely a plan on paper. Now the IMS is over 80% complete, with (put in number of monitoring stations) and consistently provides accurate data, monitoring seismographic activity worldwide that actually is quite useful in tracking earth quakes and tsunamis. Today, the IMS is roughly 85 percent complete and, when completed, there will be IMS facilities in 89 countries spanning the globe. It was readily able to follow and report the relevant data on the two nuclear tests in North Korea.
On reliability, in 1999 there was little experience in maintaining the nuclear stockpile through sophisticated science-based computational modeling. Today, however, the successful implementation of the Stockpile Stewardship Program is such that our nuclear experts say they know more about how these weapons work than we did when we actively tested them. So I think in both of these areas, we have a good story to tell.
There is a need to make the case to a Senate that has changed significantly since 1999. The Administration’s outreach on verification and reliability will seek to convince those Senators who had concerns when the Treaty was last addressed. Just as important, there is a need to engage with the large number of Senators who will deal with the CTBT for the first time. The Administration has commissioned a number of reports, including a classified NIE (check what this means and spell it out, I think it means National Intelligence Estimate) and a National Academy of Sciences’ report on the CTBT that should be completed in early fall. These documents will establish the verifiability of the CTBT and the US ability to maintain a safe, secure, and effective nuclear arsenal and will aid in educating the Senate in order to obtain ratification of the CTBT.
U.S. ratification will strengthen our efforts to achieve ratification by the remaining states (i.e., China, Egypt, India, Indonesia, Iran, Israel, North Korea, and Pakistan) necessary for the Treaty to enter force.
There is a pressing need to achieve greater controls over the materials needed to produce nuclear weapons. That includes negotiating a treaty preventing further creation of weapons grade fissile materials.
Entry into force of the CTBT is an essential step toward the peace and security of a world without nuclear weapons, a vision articulated by the President when he spoke in Prague in 2009.
See more speaches by Ambassador Gottemoeller Here
See more on the CTBT by the US Department of State Here
Ambassador Graham emphasized the relationship between the Nuclear Nonproliferation Treaty and the CTBT:
He quoted President John F. Kennedy who truly believed that there was a serious risk that nuclear weapons were destined to sweep all over the world. In March of 1963 in response to a reporter’s question at a news conference, he said, “Personally, I am haunted by the feeling that by 1970 . . . there may be 10 nuclear powers instead of 4 and by 1975, 15 or 20. . . . I would regard that as the greatest possible danger and hazard.” He spent much of his presidency pursuing the cause of nonproliferation.
He succeeded in laying the groundwork which became the Nuclear Nonproliferation Treaty (NPT) signed in 1968 and entered into force in 1970. The NPT is the principal reason- along with the parallel extended deterrence policies of the United States and the Soviet Union- that President Kennedy’s darkest fears have thus far not been realized.
But the success of the NPT was no accident. It was based on a carefully crafted central bargain which incorporated the “balanced obligations” concept. In exchange for a commitment from the non-nuclear weapon states (today more than 180 nations, most of the world) not to acquire nuclear weapons and to submit to international safeguards to verify compliance with this commitment, the NPT nuclear weapon states (now the U.S., the U.K., France, Russia and China) pledged unfettered access to peaceful nuclear technologies and undertook to engage in nuclear disarmament negotiations aimed at the ultimate elimination of their nuclear arsenals. It is this basic bargain that for the last four decades has formed the central underpinnings of the international nonproliferation regime.
The most important element of the NPT basic bargain was and is the test ban. It was understood at the time of the signing of the NPT that the elimination of the nuclear weapon arsenals of the nuclear weapon states was far in the future. But the NPT was a strategic bargain; it was not a gift from the non-nuclear weapon states. Thus, if they were going to give up the possession of this ultimate weapon, at least, they agreed, the nuclear weapon states could in the nearer future take the step of no longer conducting nuclear weapon tests. From the earliest of days the non-nuclear weapon states saw the test ban as the litmus test of nuclear weapon state compliance with this basic bargain of the treaty. Therefore without a comprehensive test ban treaty, the NPT is seen by many NPT non-nuclear weapon states, as not being a treaty of balanced obligations. A one-sided NPT will not survive forever.
The NPT is the central international agreement underlying international peace and security in today’s world. A principal quid for the quo of most nations of the world to never acquire nuclear weapons under this Treaty is the test ban. It is the only arms control agreement explicitly mentioned in the NPT – preambular paragraph 10 – and it is the most significant commitment made by the nuclear weapon states to bring the necessary political balance to the NPT. The 1995 Statement of Principles, which was the political price for the indefinite extension of the NPT in 1995, explicitly called for the negotiation of a comprehensive test ban treaty in one year, that is, by the end of 1996.
This deadline was met and the Comprehensive Test Ban Treaty (the CTBT) was signed in September 1996 with the United States as the first signatory. The Treaty provides by its terms that it will enter into force upon ratification by the 44 states that had nuclear facilities on their territory and were members of the Conference on Disarmament in 1996. With the recent most welcome action by Indonesia, thirty-six of those states have now ratified the CTBT. The most important hold-outs are the United States and China, with China waiting for the U.S. When the United States ratifies, Israel will likely soon follow suit with Egypt acting thereafter. India at one point reportedly privately promised ratification to the U.S. in 1998 but was let off the hook by the U.S. Senate’s vote in 1999 denying CTBT ratification. Perhaps India will return to this position should the U.S. ratify and if so it is likely that Pakistan would follow suit. Iran’s failure to ratify, one of two NPT non-nuclear weapon states that has not ratified – the other is Egypt
which does not now have an active nuclear program – raises questions whether Iran’s program is not in reality a military program. This leaves North Korea.
The NPT is currently under stress as a result of diverse problems; the North Korean nuclear weapon and missile programs; the Iranian uranium enrichment program; Pakistan’s A.Q. Kahn’s nuclear Wal-Mart; the Indian and Pakistani nuclear weapon programs and tests; the Israeli nuclear arsenal outside the treaty; the nuclear flirtations by Syria and others; and the concern that proliferation might cascade in the view of states living in troubled neighborhoods. The NPT doesn’t solve everything; it cannot constrain the potential misuse of nuclear fuel cycles for energy production, but without the NPT this issue cannot even be addressed.
It has been over 40 years since the entry into force of the NPT and it has been over 40 years since the promise of the NPT nuclear weapon states to deliver a comprehensive test ban and it still has not happened. Since the NPT over time may not survive without it, the bringing into force of the CTBT is a non-proliferation objective of the highest order.
However, some in questioning whether the CTBT should be approved have argued that it is not clear that all the NPT nuclear weapon states are committed to a zero-yield treaty prohibition and that therefore the scope of the treaty should be reaffirmed before action is taken on it. But this issue has no legal basis whatever.
The language or scope in the CTBT was fashioned by Australia, prohibiting “any nuclear weapon test explosion or any other nuclear explosion”, as a zero-yield limitation, and was tabled at the Geneva negotiations in March 1995. On August 9, the French government announced that it would support this text and confirmed that it meant zero. This was entered into the negotiating record in Geneva by French Ambassador Errera the next day. The day after this, August 11, 1995, President Clinton in Washington, DC committed the United States to a “true zero-yield ban”, confirming that the Australian text excluded low yield and hydronuclear testing. On September 14, my colleague here and before Ambassador Michael Weston, the U.K. Ambassador, placed on the record in Geneva the U.K. position that the CTBT should not “permit any nuclear weapon test explosion involving any release of nuclear energy, no matter how
small.” On April 21, 1996 President Yeltsin at a meeting with President Clinton, announced the Russian position that the treaty prohibited …”any size of test forever”, this position was formalized in the negotiating record by Russian Ambassador Berdennikov on May 14. Lastly, on the 28th of March 1996, Chinese Ambassador Sha Zukang declared in Geneva that there was a common understanding that the Australian scope formulation should be interpreted as meaning zero-yield.
Thus, scope is not a real treaty issue. The CTBT negotiating record unquestionably reflects that the treaty scope is a zero-yield prohibition. Whatever one or the other NPT nuclear weapon state may or may not do or have done after the signature of the treaty, once the CTBT enters into force all will be legally bound to a zero-yield, comprehensive nuclear test ban.
This Treaty simply must be brought into force as soon as possible. Strategic stability in the world, the viability of the NPT and peace and security in the international community depend upon it.
Rose Gottemoeller was sworn in as the Assistant Secretary of State for the Bureau of Arms Control, Verification and Compliance on April 6, 2009. She was the chief U.S. negotiator of the New Strategic Arms Reduction Treaty (New START) with the Russian Federation, which entered into force on February 5, 2011.
Prior to the Department of State, in 2000, she became a senior associate with the Carnegie Endowment for International Peace, where she also served as the Director of the Carnegie Moscow Center (January 2006 – December 2008).
In 1998-2000, Deputy Undersecretary of Energy for Defense Nuclear Nonproliferation and before that, Assistant Secretary of Energy for Nonproliferation and National Security, she was responsible for all nonproliferation cooperation with Russia and the Newly Independent States.
Prior to her work at the Department of Energy, Ms. Gottemoeller served for 3 years as Deputy Director of the International Institute for Strategic Studies in London. From 1993 to 1994, she served on the National Security Council staff as Director for Russia, Ukraine, and Eurasia Affairs, with responsibility for denuclearization in Ukraine, Kazakhstan, and Belarus. Previously, she was a social scientist at RAND and a Council on Foreign Relations International Affairs Fellow. She has taught on Soviet military policy and Russian security at Georgetown University.
Ms. Gottemoeller received a B.S. from Georgetown University, and a M.A. from George Washington University. She is fluent in Russian.
Ambassador Graham served as a senior U.S. diplomat involved in the negotiation of every major international arms control and non-proliferation agreement for the past 30 years, including The Strategic Arms Limitations Talks (SALT) Treaties, The Strategic Arms Reduction Talks (START) Treaties, The Anti-Ballistic Missile (ABM) Treaty, Intermediate Nuclear Force (INF) Treaty, Nuclear Non-Proliferation Treaty (NPT), Conventional Armed Forces in Europe (CFE) Treaty, and Comprehensive Test Ban Treaty (CTBT).
Ambassador Graham served as special counsel in the Energy Practice of the law firm of Morgan Lewis, resident in the Washington, D.C. office, where he participated in the International Energy and Department of Energy practice areas. From 1994 until 1997, he served as the Special Representative of the President for Arms Control, Non-Proliferation, and Disarmament, appointed by President Clinton. He served for 15 years as the General Counsel of the U.S. Arms Control and Disarmament Agency (ACDA).
Jonathan Granoff is the President of the Global Security Institute, a representative to United Nations of the World Summits of Nobel Peace Laureates, a former Adjunct Professor of International Law at Widener University School of Law, and Senior Advisor to the Committee on National Security American Bar Association International Law Section.