Abstract
Immediately after the senate voted down the Comprehensive Test Ban Treaty (CTBT), President Clinton announced that “the United States will continue, under my presidency, the policy we have observed since 1992 of not conducting nuclear tests…. And I will continue to press the case that this treaty is in the interest of the American people…. When all is said and done, the United States will ratify the test ban treaty.”
A week later, Secretary of State Madeleine K. Albright informed foreign ministers that “the United States will continue to act in accordance with its obligations as a signatory under international law, and will seek reconsideration of the treaty at a later date when conditions are better suited for ratification.”
Senate Majority Leader Trent Lott reacted swiftly to the Clinton administration's statements. “If the Senate does not consent to ratification of a treaty … it has no status for the United States in international law.” “In fact,” he added, “the Senate vote serves to release the United States from any possible obligations as a signatory of the negotiated text of the treaty.”
Was the senator correct in his interpretation of international law? In a word, no.
The president said the United States would continue its unilateral moratorium on nuclear testing. But an extension of the moratorium is a presidential policy prerogative; it has nothing to do with international law. The more relevant question is: What, under customary international law, are the obligations of the United States regarding the ctbt?
As a signatory that has not ratified the treaty, the United States is not obligated to abide by each and every term of the agreement. But under customary international law (as reflected in Article 18 of the Vienna Convention on the Law of Treaties), the United States is obliged to refrain from acts that would defeat the “object and purpose” of the treaty “until it shall have made its intention clear not to become a party to the treaty.” In short, a signatory to the ctbt is obligated to refrain from conducting nuclear explosions until it makes clear its intention not to ratify the treaty.
Under the United States Constitution, treaties are negotiated and signed by the president. It is he who decides whether and when to seek the Senate's advice and consent to ratification.
And it is the president who formally ratifies an agreement after receiving the advice and consent from the Senate, or—alternatively—who conveys a decision not to ratify to the depositary of the treaty. (For the ctbt, that is the secretary-general of the United Nations).
The Senate's rejection of the ctbt does not— by itself—free the United States from the obligation not to defeat the “object and purpose” of the treaty. Only the president can do that by announcing his intention not to seek ratification.
In another assault on the treaty, Sen. John W. Warner, a Republican from Virginia and chairman of the Armed Services Committee, proposed the establishment of a bipartisan committee to rewrite the treaty to “meet the security interests of our nation.”
If such a commission attempted to redraft the ctbt to be responsive to criticisms voiced during the Senate ratification debate, it would only create a document that would require renegotiation among the 154 other signatories.
Most of them—if not all—would find the Senate rewrite unacceptable. And once that Pandora's Box was opened, many would presumably draft their own amendments that the United State would find unacceptable.
Senatorial concerns about the CTBT can, however, be addressed by adding “conditions” to a Senate resolution of consent to ratification. The “conditions” approach has been often used, most recently when the Senate adopted more than two dozen of them in connection with ratification of the Chemical Weapons Convention.
Ideally, “conditions” attached to the CTBT would obligate only the United States and would not represent any reservations or amendments to the treaty. (The latter are, in any case, prohibited by the CTBT text.)
In adopting conditions, the Senate generally seeks to influence the interpretation or implementation of certain treaty provisions and/or to provide for the Senate's continuing oversight of treaty operation.
The president has already informed the Senate of a number of CTBT “safeguards” that can be converted into conditions. These include: a continuing and well-funded Science Based Stockpile Stewardship program; the maintenance of modern nuclear laboratory facilities and programs; maintenance of the capability to resume nuclear testing; and continuing development of a broad range of intelligence gathering and analytical capabilities and operations.
President Clinton also declared that, if informed by the secretaries of Defense and Energy that “a high level of confidence in the safety or reliability of a nuclear weapons type [considered] to be critical to our deterrent could no longer be certified,” he would be prepared—in consultation with Congress—to withdraw from the CTBT under the treaty's “supreme national interests” clause. This, too, can be made into a senatorial condition.
Additional conditions that address other Senate concerns could be devised. For example, the president could be required to inform Congress annually on the status of the stockpile, on the state of the nation's intelligence capabilities regarding the monitoring of clandestine nuclear testing, and on the impact of the CTBT on U.S. security interests and on the nonprolif-eration regime.
Finally, the Senate could insist on a condition establishing a ten-year review of the implementation of the treaty and its impact on U.S. and international security. This would address one of the principal arguments against the treaty expressed during the Senate debate—that the reliability of the stockpile cannot be guaranteed beyond 10 years.
It is clear, because of the administration's continued commitment to the ctbt, that the United States will remain bound not to defeat the “object and purpose” of the treaty during the last year of the Clinton administration. But what might the next president do?
Vice President Gore, the probable Democratic candidate for president, declared after the Senate vote that he would “support the treaty wholeheartedly, and I will continue to work to see it ratified.”
Bill Bradley, Gore's chief Democratic rival, said, “It is a major job of the next president of the United States to bring this treaty back to the Senate and … move toward a vote in favor of the ctbt.”
In contrast, George W. Bush, the Republican front-runner, said through a spokesman during the ratification debate that he “supports the current U.S. moratorium on all nuclear testing but doesn't support the treaty.”
Bush's position will have to evolve, if he becomes president. A U.S. test moratorium cannot survive indefinitely without an eventual international legal ban on testing. Some nuclear weapon nation will resume testing.
A Republican president might declare that the United States was no longer seeking ratification. That would free the United States from the obligations imposed by customary international law, but it would assuredly provoke serious repercussions both here and abroad.
Alternatively, once in office a Republican chief executive might recognize that the ctbt actually enhances U.S. security and he might help to craft “conditions” acceptable to both Senate opponents and supporters so that the treaty could be ratified in 2001.
Stay tuned. Under customary international law as in baseball, “It ain't over ‘til it's over.”