Wait…Signing the CTBT May Actually Mean Something?

Today, an article by the Associated Press noted that there is little indication that the Obama Administration will be able to raise the votes required to ratify the Comprehensive Test Ban Treaty (Treaty) in the Senate. The article goes on to note the problems that this may cause in persuading the rest of the world to rein in their nuclear weapons programs.

Although passage of the CTBT would be the most effective way of enforcing a nuclear test ban, it is worth noting that the Obama Administration may still have alternatives to pursuing a comprehensive test ban binding under international law that would not require passage of the Comprehensive Test Ban Treaty by the Senate.

A last resort that the Obama Administration should consider in case of a failure to ratify the Treaty (and probably already has) is reassuring the international community that it intends to be bound by the terms of the Treaty, despite the Treaty being un-ratified by the Senate. The Administration could rely on the Vienna Convention on the Law of Treaties, which the U.S. has not ratified, but has signed and recognizes as legally binding customary international law. Article 18 of this Treaty (Obligation not to Defeat the Object and Purpose of a Treaty Prior to Its Entry into Force) says the following:

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or

(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

As a signatory to the Vienna Convention, the U.S. currently has an obligation to refrain from acts which would undermine the Treaty. It would be fair to say testing a nuclear weapon would probably undermine the object and purpose of the Comprehensive Test Ban Treaty.

The problem many would have with this argument is that all the Obama Administration would have to do to withdraw from the obligation is make their intention clear that they no longer want to become a part of the Treaty; therefore no other nation would reasonably rely on Obama’s commitment. Two points could be made in response. The first is for at least the next few years President Obama will remain in office and it is a fairly safe assumption a lot would have to happen for the Administration to end the informal testing moratorium. The second point is the U.S. could withdraw from the Treaty without a great deal of effort. Article IX of the Treaty says the following on withdraw.

2. Each State Party shall, in exercising its national
sovereignty, have the right to withdraw from this Treaty if it
decides that extraordinary events related to the subject
matter of this Treaty have jeopardized its supreme interests.

3. Withdrawal shall be effected by giving notice six
months in advance to all other States Parties, the Executive
Council, the Depositary and the United Nations Security
Council. Notice of withdrawal shall include a statement of
the extraordinary event or events which a State Party
regards as jeopardizing its supreme interests.

Although some would dispute the ability of the President to unilaterally withdraw from treaties, there has been a strong historical practice in favor of the President’s ability to do so.

Based on the previous argument, the U.S. is likely bound to the object and purpose of the Treaty so long as they don’t provide a formal intention to not be bound. This obligation would probably not apply to secondary obligations such as funding or inspection procedures established in the Treaty.

If the U.S. were to adopt this approach, over time, the Obama Administration may even be able to engage in diplomatic efforts to have nuclear tests ban enforceable internationally as a violation of customary international law which could result in inspections, sanctions, or other punishment by the UN Security Council or the ICJ even without the ratification of the Treaty. The International Committee of the Red Cross defines “customary international law as follows:

To prove that a certain rule is customary one has to show that it is reflected in state practice and that there exists a conviction in the international community that such practice is required as a matter of law. In this context, "practice" relates to official state practice and therefore includes formal statements by states. A contrary practice by some states is possible because if this contrary practice is condemned by other states or denied by the government itself the original rule is actually confirmed.

Relying on the aforementioned rule, if Obama was to declare the U.S. to be bound based on their signature of the CTBT, formally state the U.S. obligation to be bound, convince a few of the nations who have not ratified to either ratify the treaty or take an approach similar to the one proposed here, and along with most of the other declared nuclear powers formally declared nuclear tests are a violation of international law, there would probably be sufficient grounds for having the Security Council or even the International Court of Justice condemn and punish nuclear tests.

The reason this argument is worth making is not to represent this option as an equivalent to the ratification of the Comprehensive Test Ban Treaty; ratifying the Treaty is the best method of ensuring international adherence to its terms. This argument is worth making to highlight that by being bound to the object and purpose of the Treaty, we are currently, and for the next few years will continue to be, potentially subject to the negative consequences of the Treaty suggested by the opposition of the Treaty. Why not make an effort to reap some of the Treaty’s benefits?