Low-hanging fruit: Ratify protocols for nuclear-weapon-free zones

By Adam M. Scheinman, June 28, 2018

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The 2018 Nuclear Posture Review helpfully affirms that the United States “remains willing to engage in a prudent arms control agenda.” Sadly, the arms control landscape looks decidedly bleak—littered with Russian treaty violations and the nuclear build-ups under way in various Asian countries.

But to paraphrase former Defense Secretary Donald Rumsfeld—who famously said that “the absence of evidence is not evidence of absence”—the absence of arms control partners is not evidence that opportunity is absent. In fact, Washington could now take arms control steps that are entirely within its own control—steps not dependent on the policies or actions of other nations. Specifically, the United States could ratify treaties that were signed in prior years but that now lie dormant in the Senate inbox.

I do not mean the Comprehensive Nuclear Test Ban Treaty, which the Trump administration indicates it will not support. Rather, I refer to lower-hanging fruit: US ratification of protocols to treaties through which nations in several regions have established nuclear-weapon-free zones. The odds that the Senate will take up the protocols are admittedly long, but there are nevertheless sound arguments in favor of doing so. In essence, ratifying the protocols would help the US meet its nuclear nonproliferation goals without exposing it to any added security risk.

Washington the laggard. To back up a step, five nuclear-weapon-free zones are in force around the world—in Latin America, Africa, the South Pacific, Central Asia, and Southeast Asia. The nations included in the zones account for nearly two-thirds of all UN member states. In each zone, a treaty requires that regional parties forego nuclear weapons and accept constraints on nuclear activities, in some cases exceeding the requirements of the Nuclear Non-Proliferation Treaty (NPT). Provisions include prohibitions against nuclear weapon tests; requirements that nuclear materials and facilities be secured; and, in certain treaties, requirements that member states accept the Additional Protocol, a measure that significantly enhanced the International Atomic Energy Agency’s ability to verify the peaceful use of nuclear material.

Nuclear-weapon-free zones are designed not just to keep nuclear weapons out of the hands of states within the region but also to prevent others from bringing these weapons in—whether for testing (the French used to conduct nuclear tests in the South Pacific) or basing (the Soviet Union once based nuclear weapons in Central Asia). The latter task is accomplished through protocols open only to the five nations recognized under the NPT as nuclear weapon states: the United States, Russia, the United Kingdom, France, and China. The protocols commit the five not to use or threaten to use nuclear weapons against the regional parties (so-called “negative security assurances”); not to station, test, or manufacture nuclear weapons in the zone; and not to help any regional state violate its zone treaty commitments.

The United States is well behind the other four nuclear powers when it comes to protocol ratification. The Senate ratified the protocol for the Latin American zone in the Reagan years. Russia, the United Kingdom, France, and China have done likewise—but have also ratified the protocols covering the South Pacific, Africa, and Central Asia. (None of the five has signed the protocol to the Southeast Asia zone treaty due to unresolved issues regarding the clarifying statements that would accompany protocol signature and ratification. Diplomatic efforts to break this impasse petered out in 2015.) President Obama, to demonstrate support for nonproliferation aims, submitted the zone protocols for Africa and the South Pacific to the Senate for consideration in 2011, but no action was taken—not a hearing, not a follow-up request for information, and certainly not a vote. Nor did the Senate take action when Obama submitted the protocol for the Central Asian treaty in 2015.

The Senate’s inaction was not totally unforeseen, particularly in light of an unexpectedly bruising campaign in 2010 to secure Senate ratification of New START, a US-Russia arms reduction agreement. Arms control cooperation between the branches hardly improved over the remainder of Obama’s presidency. Ultimately, ratification of the protocols found its way to the bottom of the State Department’s treaty priority list and was of little interest to a Congress more focused on Iran, proliferation sanctions, and compliance matters. The zone protocols stood no chance in that environment.

What’s really troubling is an increasingly pervasive sense of fatalism in Washington regarding arms control and treaty ratification. This fatalism stems from the executive branch’s reluctance to engage in political fights it may lose and from a lack of interest among key congressional committees. In fact, so few treaties dealing with US nuclear weapons have come before the Senate in the last 20 years (examples are limited to the Comprehensive Nuclear Test Ban Treaty in 1999, the Moscow Treaty in 2002, and New START in 2010)—and so few senators with a working knowledge of the technical and strategic details of arms control remain in office—that debate on arms control, to the extent it occurs, is limited, often superficial, and partisan. Where you stand is largely a function of where, in relation to the political aisle, you sit.

Correcting this institutional deficit constitutes one argument for ratification of the zone protocols. In earlier years, Congress organized itself to maintain support for arms control and to ensure that congressional concerns were taken on board before treaties came up for a vote. After all, the Senate’s constitutional role is to provide both advice and consent to ratification. The Senate Arms Control Observer Group, which disbanded years ago, as well as Senate luminaries such as Sam Nunn, Richard Lugar, John Kerry, and Charles Mathias, kept lines of communication open between the branches while shepherding nuclear treaties through the Senate for approval.

Periodically, calls emerge to regenerate the Senate Arms Control Observer Group, which seems like a worthy idea. Alternatively, a small, bipartisan group of senators interested in arms control and the regions covered by the zone treaties could, with the support of party leadership, use the zone protocols as a kind of physical therapy—exercising unused muscles before ratification atrophy sets in.

Staying normal. Of course, one should not seek protocol ratification for its own sake. Indeed, the first-order question is whether ratifying the protocols would contribute to US national security. On balance, I believe it would. Here’s why:

First, US ratification would enhance the norm surrounding non-use of nuclear weapons. No state has used a nuclear weapon against another state since the United States did so to end World War II—and, given the hugely destructive potential of nuclear weapons, every effort should be made to keep it that way. Indeed, the non-use norm is a primary rationale for maintaining a robust US nuclear deterrent. The norm explains long-standing US support for nuclear arms control and nonproliferation agreements—and is part of the fabric of US efforts to avoid nuclear wars, not fight them. Extending negative security assurances through protocol ratification can contribute to that aim.

Some critics question the necessity and wisdom of ratification. Former Senator John Kyl—no fan of arms control, but one of the few in the Senate to take notice of the protocols when they were submitted to the Senate—characterized ratification as an attempt to “codify by international agreement [President Obama’s] flawed nuclear weapons declaratory policy, which would limit the instances in which the President would use nuclear weapons to defend the United States from attack.” But which countries and circumstances legitimately provoke such a concern? No state in the various regional zone treaties is pursuing nuclear weapons or poses a military threat to the United States—in fact, some are close US allies (such as Australia and New Zealand) or major partners (such as Kazakhstan and South Africa). Further, no state capable of posing a threat to the United States (such as Syria, Iran, North Korea, Russia, or China) would be covered by US negative security assurances. Those assurances would apply only to the regional parties to the treaties—that is, nations in Africa, Central Asia, and the South Pacific—not to other nuclear-armed countries or to states outside the region.

Moreover, the Obama declaratory policy that Senator Kyl rejected in 2011 is repeated precisely in the 2018 Nuclear Posture Review. The review says “the United States will not use or threaten to use nuclear weapons against non-nuclear weapons states that are party to the NPT and in compliance with their nuclear nonproliferation obligations.” When the Obama administration submitted the protocols to the Senate, it recommended that the instrument of ratification repeat this statement of US policy verbatim. The Trump administration could ask for the same.

Some are understandably reluctant to make US nuclear assurances legally binding, especially given today’s uncertain global environment. Yet the risks seem manageable. After all, the threat that a nation in Africa, Central Asia, or the South Pacific will conduct a strategic-type attack against the United States or its allies is extraordinarily remote—and US conventional military forces are more than adequate to deter or respond overwhelmingly to such attacks in the future.

Second, a number of policy and legal concerns regarding the protocols have been clarified through recent diplomatic efforts, making US ratification more appealing. For instance, the treaty for the Central Asian zone contains ambiguous language that does not clearly prohibit Russia from basing nuclear weapons in the region under a separate mutual defense pact. Under such circumstances, the United States, the United Kingdom, and France refused to sign the protocol. But following several rounds of talks in 2013 and 2014, the Central Asian states and Russia conceded that, if Russia based nuclear weapons in the region, the zone treaty’s most basic commitments would be violated. With this understanding in hand, the United States, together with the United Kingdom and France, signed the protocol in 2014—while making clear that they would exercise their right to withdraw if faced with an imminent violation of the zone treaty. The United Kingdom and France went on to ratify the protocol on this basis; the United States did not.

US diplomacy has won other important clarifications in recent years. Most important is recognition among all concerned that regional zone treaties and protocols do not prohibit US vessels and aircraft that may carry nuclear weapons (or may not—US policy is not to confirm) from transiting through nuclear-weapon-free zones. In other words, no conflict exists between zone treaty protocols and US rights under international law regarding freedom of the seas and transit. A shared understanding on this point is critical given the role of the US Navy in securing sea lanes, assuring allies, and projecting US nuclear military power, and is a sine qua non for US support of the protocols. To emphasize the point, any US instrument of ratification would restate Washington’s rights under international law to exercise freedom of the seas—while making clear that regional states are free to decide for themselves whether to host visits of foreign vessels and aircraft.

This leads to a third argument for ratification: that US participation in the protocols would do no harm to US security relationships around the world. Washington would continue to mount military operations from Diego Garcia—which, though it appears on the map of the African zone treaty, is under the sovereign control of the United Kingdom. The United States would continue to conduct naval port calls or over-flights based on existing or anticipated arrangements and would continue to conduct military exercises with regional partners.

Looking at the substance, and setting aside partisan politics, it is hard to understand why the United States would not go forward with ratification. The major players in the executive branch—the State Department, the Defense Department, and the White House—have been around and around on this issue and have completed their homework. They have drafted and shared with the Senate the statements of policy and law that would be included in an instrument of ratification. The current administration could easily update and resubmit the Obama administration’s submission packages if it wished to do so.

The hard truth is that the protocols will go nowhere unless either the executive or legislative branch decides to make ratification a priority. Realistically, neither branch is likely to do so. That’s a shame—it is far better to judge arms control agreements on their merits rather than on one’s own predisposition for or against arms control. Policy makers should not blind themselves to the possibilities or the limitations of any arms control measure.

The zone protocols, if ratified, would neither secure the peace nor wreck US security. Instead, ratification would represent a modest step toward realizing US nonproliferation goals—and help re-establish bipartisan support for the “prudent arms control agenda” advocated in the 2018 Nuclear Posture Review.

The views expressed in this article are those of the author and are not an official policy or position of the National Defense University, the Defense Department, or the US government.


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