In May 2010, the President submitted to the Senate Protocols 1, 2 and 3 to the South Pacific Nuclear Free Zone Treaty and Protocols I and II to the African Nuclear-Weapon-Free Zone (NWFZ) Treaty.  The United States signed these treaties in 1996.  They were not submitted to the Senate until 2010.  The United States is presently party only to certain protocols of one NWFZ treaty, the Tlateloco Treaty.  The Administration wrapped these treaties in a package with problems that will doubtlessly, and needlessly, keep them high on the State Department’s Treaty Priority List and low on the Senate’s executive calendar.  It is useful to consider the practical questions that stem from the treaties and language the Administration stated it wished to have associated with them.  It is useful to do so because the Administration will likely seek ratification of these treaties this year.

On May 3, 2010, former Secretary Clinton stated at the NPT Review Conference:

[T]oday, I am announcing we will submit protocols to the United States Senate to ratify our participation in the nuclear-weapon-free zones that have been established in Africa and the South Pacific.  Upon ratification, parties to those agreements will have a legally binding assurance that the United States will not use or threaten to use nuclear weapons against them, and will fully respect the nuclear-weapons-free status of the zones.  And we are prepared to consult with the parties to the nuclear-weapons-free zones in Central and Southeast Asia, in an effort to reach agreement that would allow us to sign those protocols as well.

But the White House statement on the submission of the treaties also said:

Regional nuclear weapon free zone agreements reinforce both the commitment of nations not to pursue nuclear weapons and the nearly 65-year record of their non-use.  The protocols to the treaties, once ratified, will extend the policy of the United States not to use or threaten use of nuclear weapons against regional zone parties that are members of the Nuclear Non-Proliferation Treaty and in good standing with their non-proliferation obligations.

The White House statement was incorrect.  Nothing in the treaties extends the policy of the United States not to use or threaten use of nuclear weapons against regional zone parties that are members of the Nuclear Non-Proliferation Treaty and in good standing with their non-proliferation obligations.  Rather, language the President recommended for the U.S. instrument of ratification (which is not the same thing as the Senate’s resolution of advice and consent) would.  Treaty packages sometimes request declarations or understandings about treaty terms or provisions reflecting a U.S. interpretation or view for inclusion in the Senate’s resolution of ratification.  These packages did not.  They only commented on the instruments of ratification.

This is perhaps because the language sought in instruments of ratification reflects the Administration’s revised negative security assurance, which was contained in its 2010 Nuclear Posture Review (NPR), which is only “binding” as a matter of policy.  The Nuclear Weapon State protocols done to bring the Nuclear Weapon State Parties to the NPT into these regional nuclear-weapon-free zone treaties do include a negative security assurance, such as was included in the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (the Treaty of Tlatelolco, protocols to which the United States is a party), which states:

The Governments represented by the undersigned Plenipotentiaries also undertake not to use or threaten to use nuclear weapons against the Contracting Parties of the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean.

On both of the treaties submitted to the Senate in 2010, the Administration seeks language in the U.S. instrument of ratification stipulating, with respect to the relevant part of each, that:

The United States of America will not use or threaten to use nuclear weapons against any Party to the Treaty that is a non-nuclear weapons State Party to the Nuclear Nonproliferation Treaty (NPT) and in compliance with its nuclear nonproliferation obligations.

In other words, they seek to make their revised negative security assurance a view of the United States communicated to other treaty parties, and outside the plain terms of the treaties themselves–perhaps without caring what the Senate might think about it.

No previous NSA mentions noncompliance with NPT obligations and nothing in the treaties the White House  submitted in 2010 does either.  None of the three previous iterations of the U.S. negative security assurance mention compliance with NPT obligations.

Neither the 2010 NPR nor the recommended language in the treaty packages clarifies what noncompliance constitutes and with which obligations (non-weapon states have several obligations short of acquiring nuclear weapons) nor when the United States would determine a state was in or out of compliance with which of them.  It is thus hard to determine how such a policy promotes compliance or with which obligations under the NPT.  Which breaches and of which obligations contained in the NPT would make a state subject to nuclear threat from the United States?  Only really serious ones?  What are those?

If such policy is a good tool for non-proliferation, why has the Administration not explicitly stated that Iran is now subject to the threat nuclear use from the United States?   What of North Korea?  Also, would formal means of assessing compliance with NPT obligations and reporting them to Congress in the annual Verification and Compliance Report become attenuated by the fear that every finding of NPT noncompliance would constitute a basis for application of the new declaratory policy?  If so, would verification officials be more or less likely to make compliance judgments?

The NPR appeared to want to make clear who is and who is not under the nuclear gun but it didn’t.  As a practical matter, no Administration should want to publicly commit to threatening states who may yet be without nuclear weapons but also be in noncompliance with NPT obligations more clearly than we have previously–at least until now.  Would such a threat deter progress in an undeclared weapons program?  Why wouldn’t it simply be better to say, as we always do, that “all options are on the table”?

Ambiguity has useful policy benefits that are attenuated by qualifying and/or narrowing declaratory policy.  Specifying that noncompliance means that states are subject to nuclear threats achieves no clear nonproliferation or deterrence objective–if your are going to break out of the NPT, it’s rather likely you understand, at a minimum, the United Stats will not like it.  That is perhaps why the Administration has yet to spell out more fully the implication of its new declaratory policy in respect of the noncompliant cases of Iran and North Korea.

To avoid these needless diplomatic perils, the Senate could simply reaffirm its declaration contained in its advice and consent to the Tlatelolco protocols, which would be applicable to NWFZ protocols before them today:

…as regards the undertaking [in the treaty] not to use or threaten to use nuclear weapons against the Contracting Parties, the United States Government would have to consider that an armed attack by a Contracting Party in which it was assisted by a nuclear-weapon state, would be incompatible with the Contracting Party’s corresponding obligations under [the treaty].

The State Department’s Legal Adviser has publicly stated that this language “effectively reserved [our] right to use nuclear weapons against one of the Contracting Parties in the event of  an armed attack by a Contracting Party, in which it was assisted by a nuclear-weapon State” (Letter dated 20 June 1995 from the Acting Legal Adviser to the Department of State, together with Written Statement of the Government of the United States of America to the International Court of Justice).

The previous negative security assurance was a clear and plain matter that did not attempt to blur nonproliferation, arms control and deterrence.  Readers of this blog are also all very familiar with the 1978, 1995 and 2002 iterations of the U.S. negative security assurance.  Jeffrey discussed the NSA extensively in 2010, along with the debate about “the sole purpose” and etc.

I am unaware, however, of any place other than these treaties where this Administration tried to make its declaratory policy last in perpetuity.

If the Administration were to make clearer to the Senate why it seeks this language in the instruments of ratification for these treaties, it would make progress.  It wold make even more progress if it dropped its recommendation to include its NPR language in communications to the parties to these agreements.  It’s highly unlikely that such countries don’t know what this Administration thinks, anyway.  Let’s leave U.S. negative security assurances where they have been–in the jurisdiction of the Administrations elected by the people of the United States, rather than in this Administration’s 2010 NPR.  That might be a deal that gets two-thirds of the Senators present to concur therein.

Those who agree with the revised NSA will doubtlessly dislike what I have said here.  But I consider it a matter of policy that ought to be left out of the U.S. interpretation of these treaties, should the Senate decide to ratify them or U.S. views (and Administrations) change in the future.  For those still taking exception to these statements, consider how you would feel if the 2001 NPR were made a lasting U.S. interpretation long after 2008.