[Senate Hearing 114-724]
[From the U.S. Government Publishing Office]






                                                        S. Hrg. 114-724
 
                THE ADMINISTRATION'S PROPOSAL FOR A
                  U.N. RESOLUTION ON THE COMPREHENSIVE
                        NUCLEAR TEST-BAN TREATY

=======================================================================

                                HEARING



                               BEFORE THE



                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE



                    ONE HUNDRED FOURTEENTH CONGRESS



                             SECOND SESSION



                               __________

                           SEPTEMBER 7, 2016

                               __________



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                COMMITTEE ON FOREIGN RELATIONS         

                BOB CORKER, Tennessee, Chairman        
JAMES E. RISCH, Idaho                BENJAMIN L. CARDIN, Maryland
MARCO RUBIO, Florida                 BARBARA BOXER, California
RON JOHNSON, Wisconsin               ROBERT MENENDEZ, New Jersey
JEFF FLAKE, Arizona                  JEANNE SHAHEEN, New Hampshire
CORY GARDNER, Colorado               CHRISTOPHER A. COONS, Delaware
DAVID PERDUE, Georgia                TOM UDALL, New Mexico
JOHNNY ISAKSON, Georgia              CHRISTOPHER MURPHY, Connecticut
RAND PAUL, Kentucky                  TIM KAINE, Virginia
JOHN BARRASSO, Wyoming               EDWARD J. MARKEY, Massachusetts


                  Todd Womack, Staff Director        
            Jessica Lewis, Democratic Staff Director        
              Rob Strayer, Majority Chief Counsel        
            Margaret Taylor, Minority Chief Counsel        
                    John Dutton, Chief Clerk        


                              (ii)        

  


                            C O N T E N T S

                              ----------                              
                                                                   Page

Corker, Hon. Bob, U.S. Senator From Tennessee....................     1

Cardin, Hon. Benjamin L., U.S. Senator From Maryland.............     3

Rademaker, Hon. Stephen, Principal, The Podesta Group, 
  Washington, DC.................................................     6
    Prepared statement...........................................    10

Krepon, Michael, Co-Founder and Senior Associate, The Stimson 
  Center, Washington, DC.........................................    16
    Prepared statement...........................................    18



              Additional Material Submitted for the Record

Letter From Senator Bob Corker to President Barack Obama.........    43

Secretary of State John Kerry's Response to Senator Bob Corker's 
  Letter of August 12, 2016......................................    44

Letter to Senator Bob Corker From Julia Frifield, Assistant 
  Secretary of State for Legislative Affairs.....................    45

Letter From Secretary of State Condoleezza Rice to Senator Jon 
  Kyl, July 5, 2008..............................................    45

Secretary Rice's Response to Senator Kyl's Questions of July 17, 
  2006 on the CTBT...............................................    46

Statement for the Record Submitted by Senator Tom Udall..........    48

Michael Krepon's Response to Questions Submitted by Senator Tom 
  Udall..........................................................    48

``Quick Reactions to Obama's U.N. Gambit on Nuclear Testing, by 
  Jack Goldsmith, Lawfare Blog, August 5, 2016...................    51




                             (iii)        

  


                  THE ADMINISTRATION'S PROPOSAL FOR A



                  U.N. RESOLUTION ON THE COMPREHENSIVE



                        NUCLEAR TEST-BAN TREATY

                              ----------                              


                      WEDNESDAY, SEPTEMBER 7, 2016

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:00 a.m., in 
Room SD-419, Dirksen Senate Office Building, Hon. Bob Corker, 
chairman of the committee, presiding.
    Present: Senators Corker [presiding], Risch, Rubio, Flake, 
Isakson, Cardin, Menendez, Shaheen, Udall, Murphy, and Markey.

             OPENING STATEMENT OF HON. BOB CORKER, 
                  U.S. SENATOR FROM TENNESSEE

    The Chairman. Call the Foreign Relations Committee to 
order. And I want to thank everyone for being here.
    I want to thank our witnesses, which I know will be 
invaluable in helping us understand this topic.
    I want to thank Senator Cardin for agreeing to have this 
hearing, and for changing the time. We had a little blowup on 
the Senate floor yesterday, which changed our committee process 
to a degree. And I want to thank him so much for being so 
cooperative on all issues and working with us.
    I would like to, on the front end, talk about what this is 
not about today. This is, to me, not about the substance of any 
treaty. That is not what this is about. I actually have been a 
part of supporting arms-control treaties. I think I played a 
pivotal role, as a matter of fact, in the New START Treaty, 
when we were able to do things that enhanced our Nation's 
security by getting commitments towards modification of our 
nuclear program, modernization of our nuclear program, where we 
have warheads and guidance systems that are outdated. And we 
had the--through that process, we got the administration to 
commit to that modernization, which they have been on pace--not 
quite at the levels we would like for them to be over the 
course of time. There has been a little bit of a detour this 
year, unfortunately. But, it has moved along, to a degree. We 
had commitments on missile defense that were part of the RUDs 
that I helped craft. And, look, I am proud of what I did in 
that particular case. And this is not about being against arms 
control.
    This is about one thing, and that is, all of us run to 
serve in the United States Senate. We come here. We know what a 
privilege it is to weigh in on important issues. And this is 
really about one thing, regardless of who is in--President, 
regardless of who is chairman of the committee, regardless of 
who is serving. And that is to ensure that the Senate plays its 
appropriate role as it relates to international agreements. 
This agreement could be about apple pie, and I would be 
bringing this hearing together.
    So, I just want to, again, try to set the context. And I 
know that Senate Cardin and I have talked about this on a 
couple of occasions. This is not about trying to pass judgment 
on the Comprehensive Test-Ban Agreement. That is not what this 
is about. It is about trying to understand what it is the 
administration is doing. They are on the way out the door. We 
understand that administrations try to create legacies. And 
there is a concern--I think it is a legitimate concern--about 
going to the U.N. Security Council and bypassing the Senate, 
possibly--and that is what this is about; we have not seen the 
language yet--but, possibly causing something to, in essence, 
become binding.
    I know that today our policy, relative to testing, is that 
we do not test. And that is fine with me. That is a policy. It 
has been a policy that has been around for some time. What I am 
concerned about is that the administration is taking steps that 
possibly--again, we have not seen the language--could take that 
policy and turn it into something that is binding through 
customary international law, down the road, which makes it 
difficult for a future administration, who may want to have a 
different policy, for whatever reasons, from being able to move 
in that direction.
    I read a brief--I wrote a letter too--by the way, I did 
write a letter to the administration regarding this, and I want 
to thank them. Well, first of all, I called Samantha Power and 
asked her to tell me what it is they were up to. She wrote me a 
letter, which I appreciate greatly. Because of ambiguities that 
existed in that letter, I wrote a letter to the President, 
telling him I had significant concerns because some of the 
language certainly had ambiguities and could, in fact, be 
interpreted to be something that creates customary 
international law, which is--which could create some binding 
effects on future administrations. I just got back, today--I 
have not read it; it was just handed to me, it is still hot I 
just got back a response to that letter, which I--again, I 
appreciate. And we certainly will look at that. But, we went 
through--we went through and looked at what is happening here. 
This gentleman named David Koplow, who is a professor of 
Georgetown Law, who basically has written the playbook for the 
administration, or for anyone who wishes to cause something to 
be binding--binding on our country through going straight to 
the U.N. Security Council versus causing something to be 
brought to Congress and through the United States Senate to 
have a treaty ratified. And so, it looks to me like that--I do 
not if they even know this gentleman, I do not know this 
gentleman--it looks to me like, based on what is happening, 
that they are following, if you will, a game plan that has been 
laid out. Again, they may have laid it out themselves. So, I 
just have concerns. And I appreciate having two brilliant 
people here before us to help us with this.
    I want to reiterate, with my good friend Senator Markey 
coming in--Senator Markey, to me, this has nothing to do with 
the substance of the treaty itself. It has to do with the fact 
that you are a respected Senator from Massachusetts. You have a 
role to play here in determining things that bind us, as it 
relates to foreign policy. And I just want to make sure that we 
are not allowing an administration on the way out the door to 
do something that ends up binding us, through customary 
international law, down the road, in taking actions at the U.N. 
Security Council that I would deem to be inappropriate if that 
were the case.
    So, with that, thank you for your patience in letting me 
speak longer than I normally do, Senator Cardin, our great 
Ranking Member. And I think that we agree on this topic. And 
that is--and I will be very specific, because I do not want to 
speak for you--and that is that we want to make sure that we do 
everything we can together to preserve the prerogatives of this 
committee, preserve the prerogatives of the United States 
Senate in being able to carry out our responsibilities.
    This is my editorial comment that I will add on. I will 
just tell you. I have watched, through the years, and the 
responsibilities of the United States Senate have eroded--have 
eroded. And I--I am just here today, with this hearing and 
pushing back against the administration, to try to make sure 
that we do everything we can to ensure that that is not 
something that continues.
    So, with that, again, our distinguished Ranking Member and 
my friend, Senator Cardin.

             STATEMENT OF HON. BENJAMIN L. CARDIN, 
                   U.S. SENATOR FROM MARYLAND

    Senator Cardin. Well, Chairman Corker, thank you for 
calling this hearing. And I certainly concur in your 
observations as to the prerogatives of the United States 
Congress and the Senate.
    We do not have any proposed language that the 
administration is seeking in regards to United Nations actions, 
so we are going, right now, by what has been presented to us by 
the administration. And I have been told that it will--that 
what is being negotiated would not legally affect the actions 
of the United States in regards to the prerogatives of the 
United States Congress or the prerogatives of the United States 
Senate in the ratification of a treaty.
    You referenced a letter we got today, dated September 7th, 
from Secretary Kerry. I am--was reading it, not to--I did not 
observe every word that you said, but I was reading it as you 
were giving your opening statement. And I will read one 
sentence out of that letter, which says, ``We are not 
proposing, and will not support, the adoption of the U.N. 
Security Council resolution imposing a legally binding 
prohibition on nuclear testing.''
    So, I would ask that that letter from Secretary Kerry be 
made part of our record.
    The Chairman. And without objection.

    [The information referred to is located in the Additional 
Material Submitted for the Record section at the end of this 
transcript.]

    Senator Cardin. So, we do need to talk a little bit about 
the Comprehensive Test-Ban Treaty, because it is kind of 
unique. Of course, every treaty has some unique features to it. 
We will celebrate, this month, the 20th anniversary of the 
adoption by the United Nations General Assembly of the 
Comprehensive Test-Ban Treaty. It was ratified by 164 nations, 
if my staff information is correct. It has not yet entered into 
force. And I think we all will agree that it is unlikely that 
it will enter into force, not because the United States has not 
ratified the treaty, because it requires ratification by 
countries that have not signed it and show no interest in 
signing it, such as North Korea, and such as, unfortunately, 
Pakistan and India. So, there are several--and Iran would have 
to sign the treaty and ratify it. And we are not expecting to 
get cooperation there. So, it is unlikely that this treaty is 
going to go into effect anytime in the near future.
    But, since 1992, the United States policy has been to 
impose a moratorium on nuclear explosive testing. That was 
proposed by President George Herbert Walker Bush and supported 
by the United States Congress. That was done regardless of the 
ratification of the treaty. It was thought to be the right 
policy for America, and one in which I certainly believe is in 
our best interest. President Clinton then tried to enshrine 
that in the negotiations of the Comprehensive Test-Ban Treaty. 
None of us want to live in a world, as we did during the Cold 
War, where nuclear tests were a regular frightening occurrence, 
a reminder of the terrible destructive power of these weapons. 
I think the United States is safer, and the world is a better 
place, without nuclear testing.
    So, the real question, Mr. Chairman, is that the 
administration has indicated that there will be no legal impact 
in what they are talking about in the United Nations. Why are 
we doing this in the United Nations? And I think that is the 
question we all should be asking. And it seems to me that what 
we are attempting to do is to get more countries to follow the 
policy that we adopted in 1992, and not to do active nuclear 
testing. Why? Because it is in our national security interests 
and in the security interest of the global community.
    If nuclear tests could be verifiably ended worldwide, the 
United States would disproportionally benefit. We do not need 
nuclear tests to ensure our weapons are effective or secure. 
Year after year, our National Laboratory directories have 
certified the Stockpile Storage Program provides us with 100-
percent confidence that the United States nuclear weapons are 
reliable without testing.
    We do not need nuclear active testing to have our deterrent 
stockpile. It is the countries that are trying to develop a 
stronger capacity in nuclear weapons that could benefit by 
active nuclear testing. It is those countries that we do not 
want to test. It is in our national security interest that they 
do not test. Therefore, as I look at this, if we are capable of 
putting more pressure on those countries not to test, it is in 
our national security interests.
    The world we seek is the one President Reagan sought in his 
second inaugural address. And I quote President Reagan, ``We 
are not just discussing limits on a future increase of nuclear 
weapons, we seek instead to reduce their number. We seek the 
total elimination, one day, of nuclear weapons from the face of 
the Earth.''
    I certainly agree with President Reagan in that desire. And 
it seems to me the actions that the Obama administration is 
taking now might be furthering that objective by getting 
countries that could develop a greater capacity for nuclear to 
have the pressure of the P5, the world leaders, to say, ``We 
are not testing, and we believe you should not test, and that 
we will continue to pursue avenues to enforce that through our 
individual actions in our countries.''
    So, I look forward to hearing from our witnesses. And I 
certainly agree with the Chairman that this is an important 
subject for the Senate Foreign Relations Committee. We have the 
jurisdiction, in the Senate, on treaty ratification. A legal 
document needs to have the support of Congress.
    The Chairman. Well, thank you. I somewhat regret that we 
moved into the subject of the treaty as part of the discussion, 
because, to me, again, it is not even relevant to our 
discussion.
    I do want to say that there are ways that the 
administration can go to the U.N. Security Council and create 
something that, on its surface at the U.N. Security Council, is 
not legally binding. But, over time, especially because of 
certain things that we agree to with the Vienna Convention, 
which, again, we have never ratified, over time makes it 
something that is customary international law.
    So, we have some witnesses here today who will help us 
think that through. I hope that is not the case. I certainly 
agree with the comments that President Reagan made, again. And 
I--unfortunately, I hope this does not devolve into whether we 
should have a Test-Ban Treaty or not, but that we focus on the 
substance, not of the treaty, but of just the U.N. Security 
actions, itself, and how it might affect future 
administrations. That is, to me, the only thing that matters.
    I will say, the Test-Ban Treaty was voted down--was voted 
down. I will say that two of our internationalists, to use Mr. 
Krepon's words, Dick Lugar and John Warner, voted against it. 
And so, I just want to ensure--I am not saying as to how I 
would vote or not vote on a treaty. We have not had any debate. 
I just want to make sure that nothing is occurring that usurps 
the responsibilities that we have as United States Senators. 
Whether it is a good treaty, bad treaty, to me, is not the 
issue today. It is whether something can be done at the United 
Nations that usurps our role. It can. We know that can happen. 
Hopefully, there is a degree of pushback that will occur, as a 
part of this hearing, to ensure that that is not the case.
    Senator Cardin. Mr. Chairman, if I might just--short reply.
    The Test-Ban Treaty is not going to go into effect in the 
near future. That is, I think, a pretty safe statement to say. 
It is also, I believe, a safe statement to say that it is in 
our national security interest to preserve and expand the 
moratorium on nuclear testing. So, the question is, What 
actions can the United States take? And, in that context, we 
have this hearing on potential action in the United Nations.
    You and I both agree that that action should not compromise 
the prerogatives of the United States Congress or the United 
States Senate. And I agree with you completely on that, and 
that is why I think this hearing is very important. But, I also 
believe that we need to pursue policies that preserve and 
expand the moratorium that has been in effect since 1992 
unilaterally in the United States.
    It is interesting, under George W. Bush's administration, 
where he openly said he would not seek the ratification of the 
Test-Ban Treaty, he did not notify that he was withdrawing, and 
he maintained the moratorium. So, I think----
    The Chairman. Yes.
    Senator Cardin [continuing]. The issue you are raising is a 
very important issue on the legalities of what we are dealing 
with here, but the underlining strategy on how do we stop 
emerging nuclear powers from testing is an important issue that 
needs to be dealt with. And the Obama administration, I 
believe, is using its opportunities at the United Nations to 
advance that, not to advance the treaty.
    The Chairman. Well, I hope that is the case. And, because 
we have not seen the language----
    Senator Cardin. That is right.
    The Chairman [continuing]. There is no way for us to know 
that.
    And we have two people here today who can help us think 
through what that language might, and might not, do.
    With us, our first witness, is The Honorable Stephen 
Rademaker, of The Podesta Group. Mr. Rademaker is a former 
State Department Assistant Secretary for several bureaus, 
including arms control, international security, and 
nonproliferation. He has also served in the White House 
Counsel's Office and as a staffer here in the Senate. He has 
written and spoken extensively on the CTBT.
    Our second witness today is Mr. Michael Krepon, co-founder 
of The Stimson Center, an internationally recognized leading 
think tank focused on global security issues. Mr. Krepon has 
written extensively on the threat of nuclear weapons.
    And I want to thank you both for being here, for sharing 
your thoughts and viewpoints. Your full statements will be 
entered into the record, without objection. And, you know, 
generally speaking, if you could speak for about 5 minutes--you 
have been here before, you understand the process--we would 
appreciate it. And we look forward to our questions and 
answers.
    And truly, I think, for most of us, this is a deepening-of-
understanding hearing. And we thank you both for contributing 
to that.
    So, with that, Mr. Rademaker.

        STATEMENT OF HON. STEPHEN RADEMAKER, PRINCIPAL, 
              THE PODESTA GROUP, WASHINGTON, D.C.

    Mr. Rademaker. Thank you, Mr. Chairman and Ranking Member 
Cardin, members of the committee. It is a great honor to be 
invited to appear today, and I thank you for that.
    I want to note, at the outset, that I work at one of D.C.'s 
large public affairs firms. And, notwithstanding that, I am 
appearing here in a purely personal capacity. I am expressing 
only my own views, not the views of my firm or any of its 
clients.
    I want to strongly agree with what Chairman Corker said at 
the outset about the issues here. I think there are two issues. 
One is, Is the Comprehensive Test-Ban Treaty a good idea or a 
bad idea? And that was extensively debated in the past, and it 
will probably be extensively debated in the future. But, I 
think there is a second issue that is more timely, and I 
devoted my prepared statement to that second issue. The second 
issue is the process by which the Obama administration appears 
to be going about trying to advance the Comprehensive Test-Ban 
Treaty. And I hope everyone in this room would agree that the 
administration could have the most worthy objective in the 
world, but if it is violating the U.S. Constitution or 
trampling on the prerogatives of this committee to achieve that 
worthy objective, that is a problem.
    And so, I think, as the Chairman indicated, the question we 
should be asking is, Is what the administration is proposing to 
do here a problem from the point of view of the United States 
Constitution or the prerogatives of this committee, which, in 
essence, are--I think the relevant one is the prerogative of 
this committee and the United States Senate to approve the 
imposition of binding international legal obligations on the 
United States? You know, basic constitutional issue, Does the 
President have the authority to do that on his own, or does he 
have that authority only with the approval of the United States 
Senate? And, I think, traditionally, the answer at the Senate 
has been an emphatic, ``The Senate has to approve.'' No binding 
legal--international legal obligations without approval of the 
Senate. So, is the administration doing something here that 
would violate that principle?
    Mr. Chairman, you referred to one thing they could be doing 
that would clearly violate that principle, and that would be to 
go to the U.N. Security Council and ask for, basically, the 
Security Council to impose the Comprehensive Test-Ban Treaty on 
the world by vote of the U.N. Security Council. You know, that 
would turn the United States Senate and this committee into a 
complete afterthought. You would have no role whatsoever in 
approving or disapproving or even reviewing a decision like 
that.
    Is that within the authority of the Security Council? I 
think there are a lot of people who would argue that it is 
within the authority of the Security Council to do something 
like that. And law review articles are being written, scholars 
are actually addressing this issue right now and call--and, you 
know, some activist individuals and organizations are calling 
on the President to do precisely that.
    So, it is not a strawman. I mean, the President is actually 
under pressure from some of his constituency to do what I think 
all of us would agree would be a very dangerous thing, from the 
point of view of the prerogatives of the Senate.
    Now, as I understand it, the administration is now assuring 
everyone that, ``Relax. We are not going to do that. We are not 
going to ask the Security Council to impose a test ban by 
Security Council vote.'' I hope that is true. We need to wait 
and see what the resolution that passes the Security Council 
looks like.
    But, I would point out that it is important--it is most 
important not to see what the final resolution looks like. What 
would be most interesting would be to see what the initial U.S. 
proposal looked like, because that will reveal what the 
administration's intention was.
    And I point out in my testimony that there are two things 
you should look at on the question of whether they are seeking 
to, basically, turn the U.N. Security Council into a global 
legislature, a global superlegislature, to impose binding legal 
obligations on not just the United States, but all the 
countries of the world.
    The first indicator would be if the administration's 
proposal to the other members of the U.N. Security Council 
called for action by the Security Council under Chapter 7 of 
the U.N. Charter.
    And then, the second thing to look at would be whether one 
of the operative paragraphs begins with the word ``decides.'' 
Because if the initial U.S. proposal had those two features, 
they were, in fact, asking the U.N. Security Council to act as 
a superlegislature, maybe not to ban nuclear testing, but to 
adopt some binding measures with respect to the issue of 
nuclear testing.
    And I also point out in my testimony that, you know, it is 
unusual for the Security Council to jump into an issue and 
impose some radical new mandate on an--on a country or a group 
of countries or the world. Usually, they take a bunch of baby 
steps leading up to the radical step. So, the--you know, the 
interesting question is, Is this the first baby step toward the 
ultimate objective of getting the U.N. Security Council to 
impose--essentially, impose the Comprehensive Test-Ban Treaty 
on the world by Security Council action rather than by approval 
of individual countries of the world of the CTBT?
    So, I do not think this is a strawman, I think it is an 
issue that needs to be carefully considered.
    But, if that is not what the administration is doing, then 
what are they doing at the Security Council? My impression is 
that what they are planning to do is get a statement out of the 
Security Council that, basically, tells the world that any 
country that signed the Comprehensive Test-Ban Treaty is 
subject to an obligation under international law not to defeat 
the object and purpose of the Test-Ban Treaty, and that a 
nuclear test by any signatory would violate that obligation. 
And what you are being told by the administration is, ``Hey, 
that is customary international law. No big deal.'' And not 
just customary international law, but also reflected in 
something called the Vienna Convention on the Law of Treaties, 
which, again, we are told reflects customary international law.
    And what the administration is leaving out of that 
narrative is that--if you look at the history of the Vienna 
Convention on the Law of Treaties, what emerges is, there has 
been a huge food fight over the last 50 or 40 years between the 
Senate and the administration over that treaty. And it has been 
about the prerogatives of the Senate. And the Senate has 
traditionally considered that the Vienna Convention on the Law 
of Treaties basically does not take account of the 
constitutional role of the United States Senate.
    And so, this whole notion that, under Article 18 of the 
Vienna Convention, there is an obligation not--when the United 
States signs a treaty not to defeat the object and purpose of 
that treaty, that is a proposition that, to my knowledge, the 
Senate has never agreed to. Because the question would be that 
when the President signs a treaty does the United States 
immediately become subject to international legal obligations 
not to defeat the object and purpose of that treaty? Yes or no? 
Because if the answer is yes, you know, that is a diminution of 
the role and the authority of the Senate to approve or 
disapprove the imposition of legal obligations--international 
legal obligations on the United States. And so, one of the 
reasons this committee has never approved the Vienna Convention 
on the Law of Treaties is because of concern about that.
    Now, beyond that, there is the question of, you know, what 
that provision of the Vienna Convention says is--you sign the 
treaty, you are obligated not to defeat the object and purpose 
until the country has made its intention clear not to become a 
party to the agreement.
    So, then there is a second question of, basically, How do 
you get out from under that obligation? And, more specifically, 
when the United States Senate votes to reject a treaty, like it 
did in 1999, does that extinguish the claimed obligation not to 
defeat the object and purpose, or does the United States remain 
subject to that obligation even though the Senate has rejected 
the treaty?
    And, of course, the executive branch's view on this is, 
``Well, we decide. And, yes, maybe the Senate foolishly 
rejected a treaty, but we still intend to become subject to 
it.'' So, the President, having imposed this obligation not to 
defeat the object and purpose of a treaty on the United States 
by signing the treaty, even after the Senate rejects the 
treaty, the President can declare to the world, ``Hey, we are 
still bound, not I am going to, one day, change the Senate's 
mind, so we remain subject to that legal obligation.''
    That was actually the position of the Clinton 
administration after the Senate voted. They went around the 
world and told countries, ``Relax. The United States--we still 
have an obligation under the Vienna Convention not to defeat 
the object and purpose of the treaty, so, you know, we are 
still constrained legally. You should not worry about what the 
Senate has done.''
    There were a lot of Senators, in 1999 and thereafter, who 
thought that was a constitutional overreach, that--for the 
President to say that, basically, Senate action to reject a 
treaty is of no account, of no meaning internationally. That 
was their position. But, there was big debate about it. 
President Bush took office. His position was, he did not favor 
ratification of the Comprehensive Test-Ban Treaty.
    In 2008, Secretary of State Condoleezza Rice sent a letter, 
on behalf of the administration, to Senator John Kyl on this 
very issue, about the obligation of the United States not to 
defeat the object and purpose of the Comprehensive Test-Ban 
Treaty. And what she said was that, because President Bush was 
not committed to ratification of the Comprehensive Test-Ban 
Treaty, the obligation of the United States not to defeat the 
object and purpose of that treaty had terminated. And then she 
went on to say, ``We do not believe that such obligation would 
arise again unless the treaty was to be ratified by the United 
States.'' I've included a copy of that letter as part of my 
prepared statement.
    Okay? So, she assured the Senate, in 2008, that--you know, 
without really rejecting what the Clinton administration had 
said, but she said, with the advent of the Bush administration, 
we are not committed to this treaty, so we no longer have this 
obligation not to defeat the object and purpose.
    Now, Obama gets elected. He, of course, favors the treaty. 
Is this thing like a light switch? I mean, the international 
legal obligation of the United States gets flipped on and off, 
depending on the state of mind of the President of the United 
States? And the Senate can reject a treaty any number of times, 
and that is completely irrelevant to whether the United States 
has legal obligations not to defeat the object and purpose of a 
treaty? I mean, that is, actually, the premise of what the 
administration is doing, that--I think they are going to ask.
    My point to you is, this should be a controversial issue. I 
mean, the United States Senate should say, ``Wait a second. We 
do not agree, in the first place, that, just because you signed 
a piece of paper, Mr. President, the United States incurs 
international legal obligations. We have to approve that before 
that happens.'' But, even if you take that position, when we 
reject a treaty, certainly that obligation ends. And then, the 
idea that, you know, you can later agree that it has ended, but 
then a new President comes in and flips the switch again and we 
are subject to the international legal obligation, that should 
be controversial.
    But, then--to then take that to the U.N. Security Council 
and get them to agree that, on this--what is, in fact, a 
separation-of-powers issue--what is the relative authority of 
the Senate versus the President?--get the U.N. to weigh in on 
the President's side of the--of that argument--to me, is, you 
know, astonishing. And that is where we are.
    I have gone way over my 5 minutes.
    [Mr. Rademaker's prepared statement follows:]

  Prepared Statement of Stephen G. Rademaker, Principal, The Podesta 
                                 Group

    Chairman Corker, Ranking Member Cardin, and Members of the 
Committee, thank you for inviting me to testify on the Obama 
administration's plan to seek U.N. Security Council adoption of a 
resolution relating to the Comprehensive Nuclear Test-Ban Treaty 
(CTBT).
    As you consider the subject of today's hearing, I would suggest 
that there are two dimensions to the issue, each of which needs to be 
considered separately. The first is the wisdom of the administration's 
policy objective--seeking to promote and ultimately bring into force 
the CTBT. The second is the propriety of the administration's strategy 
for advancing this policy--specifically their decision to bring the 
CTBT before the U.N. Security Council (UNSC) for a vote rather than 
asking the Senate to reconsider its rejection of the treaty in 1999.
    While I suspect there are divergent views within this Committee on 
the first issue, I would expect much less disagreement about the 
importance of ensuring that the process followed by the administration 
to advance the CTBT respects the constitutional prerogatives of the 
Senate. Further, because the CTBT has been debated extensively in the 
past, I don't expect us to be able to offer you many truly novel 
insights into whether the Senate should give its advice and consent to 
its ratification.
    I therefore intend to devote most of my remarks to the second 
issue. I will make the case that there are important separation of 
powers issues at stake in what the administration is proposing to do, 
and the Senate should not look the other way, irrespective of how it 
feels about the administration's larger policy objective. I will turn 
only at the end of my remarks to some observations about the CTBT 
itself.
       i. the threat to the senate's constitutional prerogatives
    In discussing whether and how the administration's plan to seek a 
UNSC resolution on the CTBT threatens the constitutional prerogatives 
of the Senate, I am at the disadvantage of not knowing for sure what 
type of Security Council action the administration is seeking. And, of 
course, whatever language the administration initially proposes will 
likely be further modified as a result of the Council's deliberations. 
I therefore can only talk in general terms about some of the options 
for Council action, and how those options should be viewed by anyone 
concerned about protecting the prerogatives of the Senate.
A. Imposition of the CTBT by UNSC Fiat
    When it first emerged that the administration had decided to take 
the CTBT to the UNSC, there was a great deal of speculation that the 
administration intended to ask the Council to simply adopt a global 
prohibition on nuclear weapons testing. In other words, rather than 
seeking to ban nuclear testing the traditional way--through a tedious 
multilateral arms control negotiation like the one that gave us the 
CTBT--they might ask the UNSC to impose something akin to the CTBT 
overnight in an exercise of the Council's authority under Chapter VII 
of the U.N. Charter to ``decide what measures shall be taken . . . to 
maintain or restore international peace and security.''
    I have no doubt that the speed and simplicity of this approach 
would appeal to some who value progress on arms control above all else. 
But I submit that such a step would be highly corrosive not only to the 
Senate's constitutional authority to approve the imposition of new 
international legal obligations on the United States, but also to the 
legitimacy of the UNSC. While multilateral arms control processes can 
be excruciatingly cumbersome and slow, they do have the advantage of 
producing legal regimes that command universal, or near-universal, 
respect because they are the product of international consensus.
    The imposition of a new arms control regime by UNSC fiat would 
inevitably be viewed by some countries as an illegitimate power grab by 
the Council, particularly by the five permanent members of the Council. 
It therefore could diminish the Council's ability to act effectively in 
the future. And, of course, it would deny the Senate any role 
whatsoever in approving imposition the new arms control regime on the 
United States.
    This does not necessarily mean, however, that it would be beyond 
the power of the UNSC to seek to prohibit nuclear weapons testing under 
Chapter VII of the U.N. Charter. Undoubtedly there are many scholars of 
international law who would argue that the Council does indeed have the 
authority to take such action, and that such action would be binding on 
the United States because the United States is a party to the U.N. 
Charter.
    They would argue that the pesky problem of Senate advice and 
consent to the new international legal obligation is taken care of by 
the fact that, in 1945, the Senate gave its advice and consent to 
ratification of the U.N. Charter, which carried with it a grant of 
authority to the UNSC to take actions like imposing a ban on nuclear 
testing. They would further point to Congress's enactment of the United 
Nations Participation Act in 1945 as providing a statutory foundation 
for deeming the United States bound by the UNSC action.
    The problem with this line of reasoning is that it accepts that the 
UNSC is empowered under Chapter VII to act as a global super-
legislature, ordering about the nations of the world as it sees fit, so 
long as it can characterize its actions as intended ``to maintain or 
restore international peace and security.'' Once this principle has 
been accepted, there really is no outer limit to it. Certainly, the 
principle would not be limited to UNSC action in the area of arms 
control. There would be no legal reason why this same authority would 
not extend to UNSC action with respect to all kinds of other matters 
traditionally subject to multilateral and bilateral treaties among 
nations. Indeed, there is no reason why the authority would not also 
extend to all manner of domestic policy issues that today are 
considered the exclusive province of national governments. The 
implications of this, not only for the Senate, but for Congress as a 
whole, and indeed for American democracy as we know it, are obvious.
    To be sure, administration spokesmen quickly denied that they 
intended to seek a UNSC resolution that would essentially impose the 
CTBT on the world by Council mandate, bypassing not only the Senate, 
but also many other governments around the world. But this begs the 
question what they are trying to accomplish by means of a UNSC 
resolution, and in particular whether they are still trying to utilize 
the UNSC as a global super-legislature with respect to nuclear testing, 
just one that they are not today asking to ban such testing outright.
    I would suggest to the Committee that you be alert to two legal 
indicators of whether they are seeking to erect the UNSC as a super-
legislature on this issue. The first is whether, at outset of the 
operative portion of the resolution, the Council recites the magic 
words that it is ``Acting under Chapter VII of the Charter of the 
United Nations.'' The second is whether one or more of the operative 
paragraphs begins with the word ``Decides.'' The combination of these 
two features will be a clear indication that the Council is in fact 
seeking to act as a global super-legislature with respect to some 
aspect of nuclear testing.
    The fact that this particular resolution may not go further and 
seek to impose the CTBT today by UNSC fiat should be no cause for 
complacency. It is quite common for the Council to act incrementally in 
matters such as this, laying a foundation of baby steps in precursor 
UNSC resolutions before eventually taking the giant step that has been 
the true objective all along.
B. Imposition of an Obligation Not To Defeat the Object and Purpose of 
        the CTBT
    One thing the UNSC resolution could do short of seeking to impose a 
CTBT-like prohibition on nuclear testing would be to cement in place an 
understanding that any test of a nuclear weapon would violate what is 
claimed to be the obligation of signatories of the CTBT ``to refrain 
from acts which would defeat the object and purpose'' of the treaty. I 
have heard suggestions that as part of the administration's plan, there 
may be a Joint Statement of the P-5 members of the UNSC affirming that 
any nuclear weapons test by a CTBT signatory would violate this 
obligation, and that this Joint Statement may then be incorporated by 
reference, or otherwise approved by, the UNSC resolution.
    I believe any UNSC action along these lines would be a serious 
threat to the prerogatives of the Senate. This is a complicated area of 
international and U.S. constitutional law, so I beg your indulgence as 
I try to explain why the Committee should be concerned if this is the 
approach the administration takes. There is also a fair amount of 
history on this very issue with respect to the CTBT, which, once 
understood, makes this potential course of action at the UNSC 
particularly audacious.
            1. Article 18 of the Vienna Convention
    I want to emphasize at the outset that there is a serious question 
whether the Senate accepts, or should accept, the notion that the 
United States has an obligation under international law ``to refrain 
from acts which would defeat the object and purpose'' of any treaty 
that the President has signed but the Senate has not yet approved. To 
accept this notion would concede that the President has the 
constitutional authority to unilaterally impose international legal 
obligations on the United States without the Senate's approval, a 
proposition the Senate has vigorously rejected in the past.
    The principal authority for the claim that the President has this 
authority arises from Article 18 of the Vienna Convention on the Law of 
Treaties. That article states:


          A state is obliged to refrain from acts which would defeat 
        the object and purpose of an international agreement when (a) 
        it has signed the agreement . . . subject to ratification, 
        acceptance or approval, until it shall have made its intention 
        clear not to become a party to the agreement; or (b) it has 
        expressed its consent to be bound by the agreement, pending the 
        entry into force of the agreement and provided that such entry 
        into force is not unduly delayed.


    You will observe that virtually any time the Vienna Convention is 
mentioned, the reference is accompanied by a disclaimer that the 
Convention has not been ratified by the United States, but is generally 
considered to reflect customary international law. So there is a rather 
obvious question to be asked: if the Vienna Convention on the Law of 
Treaties reflects customary international law, why hasn't the United 
States ratified it?
    The simple answer is that some of the claimed principles of 
international law set forth set forth in the Convention have been 
judged by this Committee in the past to be inconsistent with the 
prerogatives of the Senate under Article II, Section 2, clause 2 of the 
Constitution to approve or disapprove the imposition by the President 
of international legal obligations on the United States. So the more 
correct statement with respect to the Vienna Convention would be that 
in the opinion of the Executive branch it generally reflects customary 
international law, but, in the opinion of the Senate, in important 
respects it does not.
    The Vienna Convention was concluded in 1969, and submitted to the 
Senate by the Nixon administration in 1971. In a 2001 study prepared 
for this Committee by the Congressional Research Service (CRS), 
entitled ``Treaties and Other International Agreements: The Role of the 
United States Senate'', CRS notes acidly with regard to the 
negotiations the produced the Vienna Convention that:


          As in the case of many treaties . . . the executive branch 
        conducted the negotiations without congressional observers or 
        consultations, although the subject matter was of clear concern 
        to the Senate.


    Following due consideration, a resolution of advice and consent was 
approved by this Committee in 1972, subject to an understanding and 
interpretation. The understanding was directed primarily at the issue 
of what we in the United States call executive agreements, but the 
concerns raised in the understanding apply equally to the legal 
obligations claimed to arise under Article 18 of the Convention. As 
summarized in the 2001 CRS study, the understanding:


           . . . would have made clear that the Vienna Convention does 
        not establish an international law rule which could hold the 
        United States bound to a treaty which a President had signed, 
        but which the Senate had not accepted.


    The Nixon administration disagreed with this understanding, and 
therefore the approval process for the Vienna Convention stalled. The 
Convention was subject to Committee hearings again in 1986, and again 
the same disagreements emerged regarding the compatibility of the 
Convention with the constitutional prerogatives of the Senate to 
approve the imposition of international legal obligations on the United 
States. Accordingly, the Vienna Convention has not been approved, and 
remains pending today before the Senate.\1\
---------------------------------------------------------------------------
    \1\  A second source of authority for the claim that the a treaty 
signatory is obliged not to defeat the object and purpose of a treaty 
prior to its entry into force appears in section 312(3) of the 
Restatement of the Law, Third, Foreign Relations Law of the United 
States, published by the American Law Institute in 1987. Interestingly, 
the Reporters' Notes on this section include the observation that "The 
principle that a signatory state may not take steps that would defeat 
the object and purpose of an international agreement, even prior to its 
entry into force . . . is less familiar to common law writers than to 
their civil law counterparts." The Reporters' Notes also point out that 
this principle did not appear in the Restatement of the Law, Second, 
Foreign Relations Law of the United States, published in 1965. It is 
hard to resist the conclusion that the addition of this principle to 
Restatement, Third reflects the influence of Article 18 of the Vienna 
Convention, which was concluded in 1969. All of this suggests that the 
notion that a treaty signatory is legally obliged to refrain from acts 
that would defeat the object and purpose of the treaty is a relatively 
new innovation in the understanding of American scholars of 
international law--one that arguably developed with little regard for 
the constitutional concerns of the Senate.
---------------------------------------------------------------------------
            2. The Rice Letter
    Even if one accepts the view of the Executive branch that the 
United States has an obligation under international law not to defeat 
the object and purpose of a treaty that has been signed by not approved 
by the Senate, there is the equally important question of when and how 
that obligation can be terminated.
    Article 18 of the Vienna Convention itself specifies two 
circumstances under which this obligation can be terminated. First, 
Article 18 says a signatory remains subject to this obligation ``until 
it shall have made its intention clear not to become a party to the 
agreement.'' Second, it says that once a country has ratified, it 
remains subject to this obligation until the treaty enters into force, 
``provided that such entry into force is not unduly delayed.'' \2\
---------------------------------------------------------------------------
    \2\ The United States has not ratified the CTBT, so the second 
circumstance specified in Article 18 for terminating the legal 
obligation arising under the Article is not directly relevant to the 
question at hand. It is worth noting, however, that entry into force of 
the CTBT has already been delayed for 20 years since the treaty was 
signed, and the treaty's complicated mechanism for achieving entry into 
force makes it unlikely that the treaty will enter into force at any 
point in the foreseeable future, irrespective of whether the United 
States decides to ratify the treaty.
---------------------------------------------------------------------------
    In the case of the CTBT, the question is whether the Senate vote in 
1999 to reject the treaty made America's ``intention clear not to 
become a party to the agreement.'' I would expect most Senators to 
agree that when the Senate votes to reject a treaty, that is a clear 
expression of intent not to be bound, and that if the United States 
initially had a binding legal obligation not to defeat the object and 
purpose of the treaty, that obligation is terminated once the Senate 
has spoken.
    That, however, was not the view of the Clinton administration 
following the Senate vote in 1999. To the contrary, shortly after the 
Senate vote, Secretary of State Albright sent a letter to a number key 
governments describing the Senate action as a ``disappointment'' and 
stating:


          Despite this setback, I want to assure you 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.


    The ``obligations as a signatory under international law'' referred 
to in Albright's letter consisted primarily of the obligation not to 
defeat the object and purpose of the treaty. Not surprisingly, a number 
of Senators objected to this effort to claim that the United States had 
continuing legal obligations under the CTBT notwithstanding the 
Senate's vote. Led by Senator Jon Kyl, they pressed the Bush 
administration to repudiate the Albright letter.
    On June 5, 2008, Secretary of State Rice responded to Senator Kyl 
by assuring him that:


           . . .the United States has no international legal 
        obligations resulting from the 1996 signature of the CTBT, and 
        we do not believe that such obligations would arise unless the 
        treaty was to be ratified by the United States. (Emphasis 
        added)


    I do not agree entirely with the legal analysis in the Rice letter. 
Read carefully, she does not say that the Albright letter--which 
essentially dismissed the significance under international law of the 
Senate vote on the CTBT--was wrong at the time it was written. Rather, 
she implies that circumstances subsequently changed, and therefore the 
Albright letter became wrong. The change in circumstances had to do 
with the attitude of the President toward the treaty. President Clinton 
favored approval of the treaty, and therefore the United States 
remained obligated not to defeat its object and purpose despite the 
Senate vote. But President Bush did not favor approval of the treaty, 
so that obligation terminated upon his coming to office, according to 
the reasoning of the letter. Because of its significance to this issue, 
I have attached a copy of Secretary Rice's letter to my testimony.
    Clearly implicit in what the Obama administration may now be 
planning to do at the U.N. is the notion that when President Obama came 
to office favoring the treaty, the switch flipped again, and the United 
States once again became bound not to defeat the object and purpose of 
the CTBT.
    This notion is hard to reconcile with Article 18 of the Vienna 
Convention, which does not appear to contemplate the obligation not to 
defeat the object and purpose of a treaty switching on and off, 
depending on the state of mind of the chief executive of a treaty 
signatory. And it is impossible to reconcile with the Rice letter, 
which states unequivocally that given the CTBT's history in the United 
States, ``we do not believe that such obligations would arise unless 
the treaty was to be ratified by the United States.''
    In view of the concerns that the Senate has consistently expressed 
regarding the Vienna Convention, the 1999 Senate vote on the CTBT, and 
the letter that Secretary Rice sent to Senator Kyl in 2008, I am 
surprised that the Obama administration would today take the view that 
the United States has an obligation under international law not to 
defeat the object and purpose of the treaty. And I find it astonishing 
that the administration would consider asking other governments and the 
UNSC to endorse its position on the issue, given the serious separation 
of powers concerns that position raises under the U.S. Constitution.
         ii. so why not ask the senate to reconsider the ctbt?
    Many have asked why, if the CTBT is so important to the Obama 
administration, the President has decided to bring the matter before 
the UNSC rather than before the U.S. Senate for reconsideration of its 
1999 decision to reject the treaty. One has to suspect that the 
administration fears that if it were to ask the Senate to reconsider 
the treaty today, the probable result would be the same as in 1999.
    I promised at the outset of my testimony not to belabor the tired 
arguments for and against the CTBT. But I do want draw the Committee's 
attention to one of the key obstacles to approval--one which, in my 
opinion, helps explain why the Obama administration has not tried 
harder over the last seven years to build support for the treaty in the 
Senate.
    This obstacle is clearly identified in the 2009 report of the 
Congressional Commission on the Strategic Posture of the United States. 
This Commission was appointed by the congressional leadership in 2008 
to forge bipartisan recommendations regarding the nuclear weapons 
strategy of the United States. The Chairman of the Commission was 
former Secretary of Defense William Perry, and the Vice-Chairman was 
former Secretary of Defense James Schlesinger. The Commission had a 
total of 12 members, equally divided among Democrats and Republicans, 
all experts in the field of defense and arms control.
    Among other things, the Commission carefully reviewed the CTBT. 
Unlike most other issues considered by the Commission, it was unable to 
forge a consensus on the CTBT. The members split evenly on whether the 
CTBT should be approved, with all the Democratic members favoring 
approval of the CTBT, and all the Republicans opposing it.
    The portion of the Commission's report dealing with the CTBT is 
only seven pages long, and provides an excellent synopsis of the state 
of the debate. It includes brief summaries of the case for approval of 
the CTBT made by the Commission members in favor of the treaty, and of 
the case against approval made by the Commission members opposed to the 
treaty.
    One of the key points made by the opponents was that:


           . . . the treaty remarkably does not define a nuclear test. 
        In practice this allows different interpretations of its 
        prohibitions and asymmetrical restrictions. The strict U.S. 
        interpretation precludes tests that produce a nuclear yield. 
        However, other countries with different interpretations could 
        conduct tests with hundreds of tons of nuclear yield--allowing 
        them to develop or advance nuclear capabilities with low-yield, 
        enhanced radiation, and electro-magnetic pulse. Apparently 
        Russia and possibly China are conducting low yield tests. This 
        is quite serious because Russian and Chinese doctrine 
        highlights tactical nuclear warfighting. (Emphasis added)


    Opponents of the treaty went on to point out that, according to a 
2002 report of the National Academy of Sciences, it is possible to 
conceal from detection underground nuclear tests with yields up to 
1000-2000 tons. This means that it is possible for countries like 
Russia and China to conduct low-yield tests based on their definition 
of what is prohibited by the treaty without fear of detection. Further, 
even if these countries agreed to our definition of what the treaty 
prohibits, we would be unable to verify whether they were respecting 
that agreed definition.
    Supporters of the CTBT on the Commission agreed that the lack of an 
agreed definition of precisely what activity the treaty prohibits is a 
problem, and they did not dispute the assertion that Russia and 
possibly also China are conducting low-yield nuclear tests that the 
United States considers to be prohibited under the treaty.
    Because of the shared concern about the lack of an agreed 
definition, the Commission unanimously recommended that:


          To prepare the way for Senate re-review of the CTBT, the 
        administration should . . . secure P-5 agreement on a clear and 
        precise definition of banned and permitted test activity.


    This was not a minor matter, even to the CTBT's supporters on the 
Commission. Former Senator John Glenn, a member of the Commission and 
supporter of the CTBT, made this clear when he testified before the 
Armed Services Committee on the Commission's report in 2009. Senator 
Glenn stated:


          I would favor CTBT, but I would only vote for it if it had 
        better definition. Right now the Russians do not have an 
        agreement with us as far as I know on exactly what it is we're 
        agreeing to. They, for instance, have said that as long as they 
        can test to smaller levels, as I understand it, they can test 
        to smaller levels as long as it's not detectable. Well to me 
        that's like saying it's OK to rob the bank so long as nobody 
        catches me. . . . A treaty is equal on both parties, and right 
        now the Russians do not see it that way as I understand it. So 
        I would want better definition of it and then I'd be for it . . 
        .


    To my knowledge, notwithstanding the unanimous recommendation of 
the Strategic Posture Commission in 1999, no agreement has been reached 
among the P-5 regarding the definition of prohibited activity under the 
CTBT. I do not know if it hasn't happened because the Obama 
administration hasn't tried to negotiate such an agreement, or because 
it has tried and failed. A third possibility is that it is impossible 
for the United States to even ask Russia and China to agree to a 
definition of what the treaty prohibits, because during the CTBT 
negotiation the P-5 affirmatively agreed to disagree about what they 
were prohibiting. Whatever the reason, one of the key Commission-
recommended steps to lay the groundwork for Senate reconsideration of 
the treaty has not been achieved.
    For these reasons, it should come as no surprise that the 
administration has decided to bring the CTBT before the UNSC rather 
than the Senate.
                    iii. customary international law
    I will conclude my testimony with two comments on another theory 
about what the administration may be hoping to accomplish by bringing 
the CTBT before the UNSC. Some have suggested that the UNSC could adopt 
a resolution fostering the notion that following signature of the CTBT 
there has emerged a new norm of customary international law which 
prohibits nuclear weapons testing.
    My first comment on the suggestion that a new norm has emerged is 
that it is counterfactual. There have been 14 acknowledged nuclear 
weapons test explosions since the CTBT was signed in 1996: five by 
India in 1998, five by Pakistan in 1998, and four by North Korea, in 
2006, 2009, 2013, and 2016.
    Beyond this, we cannot ignore that statement in the report of the 
Strategic Posture Commission that ``Apparently Russia and possibly 
China are conducting low yield tests.'' Because whatever additional 
information the U.S. Government has about these low yield tests 
presumably is classified, and because the tests apparently took place 
at a level below the threshold of detectability by existing 
verification mechanisms, we do not know how many such tests have taken 
place, nor when. But anyone who wishes to contend that a new norm of 
international law has emerged must explain how such a norm can exist in 
the face of so many exceptions to it.
    My second point is that the same definitional problem that bedevils 
the CTBT will also bedevil any claimed norm of customary international 
law against nuclear weapons testing. (This presumably would also be a 
problem for any UNSC resolution that sought to prohibit nuclear weapons 
testing.) Unless agreement can be reached on precisely what is a 
prohibited nuclear weapons test, different countries would be free to 
adopt different interpretations of the alleged norm.
    In practice, this would mean that, as is already the case today 
under the CTBT, acceptance of the notion that customary international 
law prohibits nuclear weapons testing would give rise to a situation in 
which some countries claimed the right to conduct low level nuclear 
weapons tests, but the United States considered itself prohibited to do 
so. And as under the CTBT, the shortcomings of existing verification 
technology would ensure that we had no real certainty about the degree 
to which other countries were taking advantage of their interpretation 
of what was prohibited to conduct low yield nuclear tests. This would 
hardly be an advantageous arrangement for our nation.
    This concludes my prepared testimony. I thank you for your 
attention and look forward to your questions.


    The Chairman. No, that is all right. Thank you. I think, 
again, this is a technical issue.
    I want to say, to some of the newcomers, especially on the 
Democratic side of the aisle, I am not here today to debate the 
benefits, or lack thereof, of the Test-Ban Treaty. I am here to 
protect your rights and our rights as it relates to our 
constitutional role here in the Senate. And I appreciate 
Senator Cardin agreeing that that is something we should 
protect.
    And I want to thank Mr. Krepon for being here, who I think, 
has a very different point of view, and then we will try to--we 
will try to thrash this out. But, thank you for being here. And 
if you would begin.

            STATEMENT OF MICHAEL KREPON, CO-FOUNDER

           AND SENIOR ASSOCIATE, THE STIMSON CENTER,

                         WASHINGTON, DC

    Mr. Krepon. Mr. Chairman, thank you. I appreciate the care 
and the depth with which you have gotten into really 
complicated, difficult subjects. I do appreciate that.
    And the Test-Ban Treaty is a complicated and difficult 
subject. It is one that the Senate really has not addressed 
since 1999. So, we have a lot to talk about. And I appreciate 
that this is the start of this conversation.
    The administration has assured you, and us, that this 
resolution will not be binding. It is a nonbinding resolution. 
The administration has assured us that this resolution will not 
invoke Chapter 7 of the U.N. Charter. It will not override 
national law and national prerogatives. The administration has 
assured us that nothing in this resolution will extend or 
change existing obligations on our country. We are all waiting 
to see the language that comes out of the current negotiations. 
And we will all be able to check the administration's 
assurances against actual text. I am asking for a little bit 
more patience, and we will get to the bottom of this.
    If it--if this resolution does not change anything, it just 
reaffirms things, why go to the bother, and why exercise you?
    The Chairman. Which is what gives one's antenna a rise, 
right?
    Mr. Krepon. I hear you.
    The Chairman. So----
    Mr. Krepon. I hear you.
    The Chairman [continuing]. I do not think they are doing 
this for the fun of it.
    Mr. Krepon. I do not, either. I think there are serious 
purposes behind it.
    The Chairman. Yes.
    Mr. Krepon. I happen to agree with those purposes.
    We have Presidents who go to the U.N. Security Council 
periodically to pursue U.N. Security Council resolutions whose 
purpose is to reduce nuclear dangers. President Bush--George W. 
Bush--has done this more than President Obama. And sometimes, 
in the past, these U.N. Security Council resolutions have had a 
bearing on treaties or protocols or conventions that the Senate 
has yet to act upon. So, what is happening here is not new. It 
is not a precedent, in my view. But, it does touch on a treaty 
that the Senate did not consent to ratify. So, that piece is 
new----
    The Chairman. Yes.
    Mr. Krepon [continuing]. And is worthy of consideration. 
Why do it?
    Number one. To reaffirm this treaty. This is a treaty that 
the George W. Bush administration had a low regard for and 
decided not to pursue ratification. It is a treaty that this 
administration, maybe future administrations, will seek the 
Senate's consent to ratify.
    It is not a light switch that turns on and off. There are 
lots of treaties that have lingered on the Senate's calendar 
for a lot longer than the Comprehensive Test-Ban Treaty. I can 
think of one that was on the Senate's calendar for 50 years. 
Some administrations had disregard for it, others pursued it. I 
am thinking of something called the Geneva Protocol. It was 
negotiated after World War I, and it dealt with prohibiting the 
use of asphyxiating gases. It lay on your calendar for decades 
before President Nixon and Ford decided to pursue it.
    So, there is nothing new. Executive branches sometimes 
pursue treaties, sometimes they leave them on your calendar. I 
do not think that is an offense to your prerogatives. You have 
prerogatives, too, whether or not you would agree or disagree 
with an administration that does seek the Senate's consent.
    I think an important reason to do this is that U.S. 
national and international security interests are served by the 
absence of testing. We have got the best conventional 
capability in the world. We have got the best stockpile 
stewardship program in the world. The longer these moratoria 
last, the better off we are, relative to others.
    Our allies do not want to see Russia resume testing. They 
do not want to see China resume testing. And we are looking for 
more leverage on North Korea, because that is the only country 
left that tests.
    So, reaffirmation of moratoria is important. Reaffirmation 
of a treaty that this administration believes in after its 
predecessor did not is very important to the international 
community. We are supporting our allies, and we are supporting 
monitoring of very low-yield covert testing.
    So, this treaty organization has an international 
monitoring system. It has stations in over 80 countries for 
complementary technologies, almost 300 stations. It is a 
parallel public network to our national technical means, which 
are, of course, secret. Having these two parallel networks, 
working together, is a great deterrent to covert low-yield 
testing. And this resolution seeks continued support, funding, 
for this parallel network that supplements our own. Because the 
longer the treaty is in limbo, the more people will walk away 
from this monitoring network that we need to detect low-yield 
covert testing.
    I think these are good reasons, sir, to pursue this 
resolution without causing offense to the Senate's 
prerogatives.
    Thank you.
    [Mr. Krepon's prepared statement follows:]

  Prepared Statement of Michael Krepon, co-founder, The Stimson Center

    Chairman Corker, Ranking Minority Member Cardin, members of this 
committee: Thank you for inviting me to testify.
    I know that you and other Senators hold strong feelings about 
protecting the Senate's prerogatives, especially regarding the Senate's 
advice and consent to treaty ratification.
    My understanding is that nothing in the administration's proposed 
United Nations Security Council resolution on the Comprehensive Test 
Ban Treaty impinges on Senate prerogatives.
    The Obama administration has stated that this will be a non-binding 
resolution.
    The administration has stated that this resolution will not invoke 
Chapter Seven of the U.N. Charter to mandate new obligations on the 
United States. Instead, this resolution will reaffirm existing 
obligations.
    The administration has stated that this resolution will not be a 
substitute to or an end-around for the Senate's advice and consent to 
treaty ratification.
    I don't expect you to take this on faith from the Obama 
administration or from me.
    A drafting process has been underway. When it is concluded, we will 
be able to check the words of the UNSC resolution against the Obama 
administration's assurances. I doubt that there will be any basis to 
conclude that the Senate's prerogatives have been circumvented.
    If this UNSC resolution is not legally binding, if it simply 
reaffirms, but adds no new obligations on the United States and 
everyone else, why take this step, along with a companion statement by 
the five Permanent Members of the Security Council?
    In my view, there are three very important reasons to support this 
initiative.
    First, a U.N. Security Council resolution will reaffirm and 
strengthen national moratoria on nuclear testing. This resolution 
provides an opportunity for the Permanent Five members of the Security 
Council to reaffirm a global ban on testing. It also provides an 
opportunity for India and Pakistan--two states that seek membership in 
the Nuclear Suppliers Group--to reaffirm their national moratoria on 
testing. And it will reaffirm North Korea's outlier status as the only 
state that has tested nuclear explosive devices in the Twenty-First 
Century. This resolution can facilitate new penalties if North Korea 
continues to test.
    It is in the U.S. national security interest that Russia not test 
again. And China. And Pakistan. And North Korea. And India. Support for 
this resolution can reaffirm and extend national moratoria. Opposition 
to this resolution and to the CTBT weakens national moratoria.
    Second, this resolution will reaffirm national commitments in 
support of the Comprehensive Test Ban Treaty's entry into force. 
Reaffirmation is necessary because the Treaty has been in limbo for 
twenty years. As a result of a generously funded stockpile stewardship 
program, and due to extreme diligence by the U.S. nuclear laboratories, 
the United States has no need to test nuclear weapons. We are in a 
better position than any other country to extend national moratoria on 
testing.
    The CTBT's entry into force would make America stronger because 
U.S. national and international security is strengthened by the absence 
of nuclear testing by others, and weakened by the resumption of testing 
by others.
    Reaffirmation of support for the CTBT's entry into force by means 
of a U.N. Security Council resolution is clearly in the interest of the 
United States and our allies. Our allies don't want a resumption of 
testing by anyone. Support for this resolution will strengthen alliance 
ties. Opposition to this resolution and the CTBT will weaken alliance 
ties.
    Third, a U.N. Security Council Resolution will recommit states to 
support the Test Ban Treaty Organization's international monitoring 
system that detects covert, low-yield testing. This monitoring system 
also provides a global early warning system for tsunamis. Detection and 
disaster relief are worth investing in.
    Concerns over covert, very low yield testing can be addressed by 
continued funding for the Test Ban Treaty Organization's global 
monitoring network. Withholding funds for treaty monitoring weakens 
deterrence of covert, very low yield testing which, in turn, damages 
U.S. national security.
    The Comprehensive Test Ban Treaty has 183 signatories and 164 
ratifications. The Treaty establishes a global norm against testing 
nuclear explosive devices. The negotiating record of the CTBT clarifies 
that is a zero yield treaty. The Organization created to prepare for 
the Treaty's entry into force has established an international 
monitoring network consisting on 282 certified stations employing four 
different and mutually reinforcing technologies, situated in 80 
countries, including all permanent members of the U.N. Security 
Council.
    The CTBT's biggest weakness is its entry-into-force provision, 
which requires the deposit of an instrument of ratification by North 
Korea, among others. Two other key states have yet to sign, let alone 
ratify the CTBT: India and Pakistan. The United States, China, Israel, 
Egypt and Iran have signed the Treaty, but have not deposited 
instruments of ratification. All of this must happen before entry into 
force.
    If the Senate sees fit to consent to the CTBT's ratification, China 
is likely to follow suit. If China ratifies, India can ratify. If India 
ratifies, Pakistan can ratify. This progression would make it easier 
for Israel's leadership, which has expressed an interest in 
ratification, to act on its stated intention. Then the international 
focus on ratification would fall heavily, and usefully, on Iran and 
Egypt.
    In other words, nuclear dangers can be reduced in East Asia, South 
Asia and the Middle East if the Senate sees fit to consent to the 
CTBT's ratification. If the Senate refuses to consent to ratification, 
nuclear dangers will be compounded in East Asia, South Asia, and the 
Middle East.
    Without U.S. ratification, the Treaty will remain in limbo. The 
CTBT's Organization (or ``Preparatory Commission''), its 
``Provisional'' Technical Secretariat, and its International Monitoring 
System created to prepare for entry into force are now functioning 
well, but limbo is not an equilibrium state.
    The longer the CTBT remains stuck in limbo, the more its essential 
monitoring system is likely to atrophy. Champions of the Treaty will 
continue to pay their dues and maintain their monitoring stations; 
others will, over time, short-change international institutions that 
provide essential global services.
    Why should we be bothered, when we have our own ``National 
Technical Means'' to monitor extremely low yield nuclear tests? Our NTM 
is better than the Treaty Organization's International Monitoring 
System. But our NTM, while exceptional, is not in almost 300 places 
around the world, like the Treaty Organization's International 
Monitoring System. And two monitoring systems are better than one. And 
because our system is secret, and our pronouncements based on secret 
data will be challenged by some.
    When the monitoring systems of the United States and the Treaty 
Organization work separately but in parallel, deterrence against 
extremely low-yield, covert testing is reinforced. And rebuttals to 
those who challenge data will be far more effective.
    Opposing this Treaty will not address concerns about monitoring 
very low-yield, covert testing. Indeed, opposing this Treaty makes it 
easier for other states to resume testing, without easing the 
significant challenges to resume testing nearby Las Vegas. What we once 
called the Nevada Test Site is now called the Nevada National Security 
Site.
    A 2012 National Academy of Sciences Report concluded that, 
``Substantial improvements in the U.S. and international ability to 
monitor underground nuclear-explosion testing have been made'' since 
its earlier Report in 2002. Moreover, the 2012 National Academies of 
Science Report goes on to say, ``Seismic technologies for nuclear 
monitoring have the potential to improve event detection, location, and 
identification substantially over the next years to decades.''
    The Congress can continue to improve detection capabilities by 
continuing to fund the Treaty Organization's International Monitoring 
System and U.S. NTM. The Treaty's entry into force would add another 
important mechanism--on-site inspections--to verify compliance. 
Opposing ratification means foreclosing on-site inspections. 
Transparency measures at test sites can also help, as might joint 
verification experiments at or near test sites.
    There is precedent for this step. The George H.W. Bush 
administrations pursued joint verification experiments with the Soviet 
Union to address verification and compliance issues related to the 1974 
Threshold Test Ban Treaty negotiated by President Nixon. Precise yields 
were hard to control and hard to measure, and some asserted that the 
Soviet Union tested above this threshold. Joint U.S. and Soviet teams 
carried out verification experiments close to test sites to better 
calibrate yields. These experiments strongly indicated that assertions 
of Soviet violations in this case were unfounded. The United States 
Senate then proceeded to provide its consent to ratification.
    We've come a long way since the dark days of the Cold War, when 
countries tested in the open air and in the atmosphere. There were a 
great many tests. The United States tested over 1,000 times, including 
over 200 atmospheric tests. The Soviet Union tested over 700 times, 
including more than 200 tests in the atmosphere.
    By the early 1960s, the human and environmental consequences of 
open air and atmospheric nuclear testing came to be clearly understood. 
We learned of terrible public health hazards, especially with regard to 
Strontium 90 levels in bones and in breast milk.
    After the chastening experience of the Cuban Missile crisis, the 
United States and the Soviet Union negotiated the Limited Test Ban 
Treaty which banned tests in the atmospheric and everywhere else except 
underground.
    This wasn't easy to do in 1963. Some prominent U.S. scientists, 
Members of Congress, and strategic thinkers were convinced that the 
Soviet Union would cheat and that the United States would be 
disadvantaged. One scenario postulated Soviet cheating by testing 
behind the Moon.
    The United States and the world benefitted greatly from the Limited 
Test Ban Treaty, but the superpower nuclear competition continued 
unabated after testing was driven underground. There was, on average, 
one nuclear test per week from 1955 to 1989.
    The goal of a Comprehensive Test Ban Treaty was a bridge too far 
for President Nixon, who instead negotiated the aforementioned 
Threshold Test Ban Treaty in 1974 limiting the yield of underground 
tests to 150 kilotons. (The atomic bombs that destroyed Hiroshima and 
Nagasaki had yields of about 15 kilotons.) The Nixon administration 
also negotiated a detailed Protocol to help verify compliance. 
Nonetheless, both superpowers acknowledged that a strict threshold of 
150 kilotons would be hard to adhere to and monitor. They anticipated 
that some would be quick to assert purposeful violations of tests above 
this threshold--as was, indeed, the case. President Ford nonetheless 
sent this Treaty to the Senate for its advice and consent in 1976.
    President Reagan decided to pursue negotiations with the Soviet 
Union on additional measures to monitor compliance with the Threshold 
Test Ban Treaty, and President George H.W. Bush negotiated new 
procedures to better assess the yield of underground nuclear tests. The 
Senate then consented to ratify the Threshold Test Ban Treaty, which 
entered into force in 1990.
    In 1995, the Nuclear Non-proliferation Treaty was indefinitely 
extended. Nuclear weapon states promised that, in return for the NPT's 
indefinite extension, they would pursue in good faith negotiations to 
complete a Comprehensive Test Ban Treaty. The following year, President 
Bill Clinton and the leaders of Russia, China, Great Britain and France 
made good on this promise.
    The fates of the NPT and the CTBT have always been intertwined. 
Continued testing facilitates horizontal and vertical nuclear 
proliferation. The absence of testing supports nuclear non-
proliferation and makes it difficult for states to pursue advanced 
nuclear weapon designs. It's hard to strengthen the NPT by opposing the 
CTBT.
    The negotiation of the Comprehensive Test Ban Treaty came as 
unwelcome news to those who were accustomed to and expected more 
advanced warhead designs.
    China had tested less than 50 times, and was reluctant to close 
this door. Great Britain and France were reluctant to, as well--even 
though their options to test nuclear weapons within their borders had 
reached a dead end.
    India and Pakistan hadn't conducted any hot tests--and were upset 
that nuclear weapon states negotiated the CTBT, especially after the 
Non-proliferation Treaty's indefinite extension.
    And some in the United States and Russia wanted to continue 
testing, believing that nuclear deterrence and war-fighting 
capabilities depended on it.
    The result of all of this ambivalence was the CTBT's entry-into-
force provision, which requires no less than 44 states to deposit their 
instruments of ratification before entry into force.
    While the CTBT remains in limbo, the norm against nuclear testing 
grows stronger every year that major powers and regional powers do not 
test. But this norm cannot be taken for granted.
    The Treaty's Organization in Vienna, its International Monitoring 
System, and its Technical Secretariat work just fine. But the global 
services they provide cannot be taken for granted, either.
    The U.N. Security Council resolution now under consideration does 
not take the CTBT or the Treaty Organization's International Monitoring 
System for granted. On the twentieth anniversary of the Treaty's 
signing, this resolution reaffirms the Treaty's central object and 
purpose of banning nuclear tests, strengthens national moratoria on 
testing, and supports monitoring to deter extremely low yield nuclear 
test explosions.
    The reasons for this resolution are straightforward: The world will 
be safer without renewed nuclear testing. Nuclear non-proliferation 
will be advanced in a world without testing, and set back by the 
resumption of testing.
    The American public and our allies do not want to resume nuclear 
testing. The U.S. stockpile stewardship program is a significant 
success story. Advances in monitoring extremely low yield, covert 
nuclear testing is a significant success story. This U.N. Security 
Council resolution builds on these successes. Reaffirming the global 
norm against nuclear testing serves U.S. national and international 
security interests. This resolution and the companion P-5 statement are 
worthy of your support.


    The Chairman. Thank you. And I appreciate that testimony.
    And again, I appreciate you heralding the merits of the 
treaty, itself. And I want to just say, again--I will probably 
say this 10 times throughout the process--I am not here to 
debate the merits.
    I would ask you--and I am only going to ask a couple of 
questions, and really defer to Ben, and then step back in 
later. You would agree, it seems to me, that if the 
administration took steps that changed policy--in other words, 
I am not debating the policy that we have right now, nor the 
Bush administration had. I mean, the policy has been that we 
have not tested. And it is perfectly appropriate for 
administrations to determine that policy. But, if that becomes 
something that is legally binding without going through the 
treaty process, especially in a case where a treaty has been 
turned down, that would be--you would agree--that would be 
inappropriate.
    Mr. Krepon. I do think that would offend the Senate's 
prerogatives.
    The Chairman. And I think what we are doing here, if I 
could, is--you know, we had a situation where the President, 
recently, was going to stipulate a no-first-strike policy. His 
advisors came to him and said that would be very inappropriate 
as it relates to our allies. You may agree or disagree with 
that. But, he decided not to do it in that manner.
    And I would like to ask unanimous consent to enter into a 
record a letter that I received from the State Department, by 
Julia Frifield, explaining what they were doing, and also my 
letter to the President that was written subsequently, if we 
could, just to lay a track record here.

    [The information referred to is located in the Additional 
Material Submitted for the Record section at the end of this 
transcript.]

    The Chairman. But, the purpose of this--to lay a record 
here--the purpose is just to ensure that that is not the case. 
Again, if that is the policy of this administration, it is the 
policy of this administration. Are there things--I would ask 
Mr. Rademaker, and I will move on--that, short of citing 
Chapter 7, as has been alluded to in the letter--are there 
things the administration could do, short of citing Chapter 7, 
that would move us along a path of making something legally 
binding over time?
    Mr. Rademaker. Yes, Mr. Chairman, I believe there are.
    When you refer to Chapter 7, essentially what you are 
saying is that when the Security Council invokes Chapter 7, 
that signifies that the Security Council is trying to act in a 
binding fashion, that it is trying to impose a legally binding 
obligation on all the nations of the world. And we have been 
assured, in this case, that the administration is not going to 
do that. And I assume that is true.
    But, as I was discussing at toward the end of my opening 
remarks, there are other things that a Security Council 
resolution could do without invoking Chapter 7, that would tend 
to impose binding legal obligations on the United States, that 
I would argue do not exist today. And I think, if members of 
the committee were to study the issue, they would also take the 
view that these binding legal obligations do not exist today. 
And I think you would actually quarrel with the notion that the 
Security Council is telling us that they do exist. And I am 
referring specifically to this obligation not to defeat the 
object and purpose of a treaty that the United States has 
signed.
    Again, as I said in my opening remarks, the notion that 
such an obligation exists really traces back to Article 18 of 
the Vienna Convention on the Law of Treaties. That is a 
Convention that was submitted to the Senate in 1972, I believe, 
by the Nixon administration--or not--submitted in 1971, it was 
voted on by the committee in 1972. The committee was prepared 
to approve it, subject to a reservation that, basically, made 
clear that the United States has no binding legal obligations 
under international law, under any treaty, until the Senate 
approves the imposition of that. And Article 18 is one of the 
provisions of the Vienna Convention that is inconsistent with 
that notion, because what Article 18 says is, the moment the 
President signs a treaty, the United States incurs, becomes 
subject to, a binding obligation under international law not to 
defeat the object and purpose of that treaty.
    So, my first point to you is, one of the reasons that, 
since 1972, this committee has refused to approve the Vienna 
Convention on the Law of Treaties is the very issue we are 
talking about here, whether, when the President, with the 
stroke of a pen, signs a treaty, he imposes a binding legal 
obligation on the United States. The Convention says yes. The 
executive branch says yes. Not surprisingly. Every President, 
Republican or Democrat, takes a maximalist view of his 
authority under the constitution. This committee, 
traditionally, has said no, ``No, you do not. No binding legal 
obligations without our approval. That is what the Constitution 
means.'' Okay?
    So, that is--as I understand it, they are going to ask the 
Security Council to affirm that the United States, and all the 
other signatories of the CTBT, have this obligation not to 
defeat the object and purpose of the treaty, which is a 
principle that, traditionally, this committee has rejected.
    Mr. Krepon. Mr. Chairman.
    The Chairman. Yes, sir.
    Mr. Krepon. If I may.
    What Steve is suggesting, the concept that he asks you to 
embrace, is a radical concept. It is radical. It is a concept 
that says you can sign a treaty on day one, and be free to 
violate it on day two. You are under no obligation to respect 
the treaty that you have just signed. That is what he is 
proposing here.
    No administration has ever adhered to this before this 
Vienna Convention that he is referring to was negotiated and 
finished negotiations, 36 years ago, nor in the 36 years 
afterwards. When you sign a treaty while you are awaiting its 
entry into force through the constitutional processes of advice 
and consent here and other processes elsewhere, you sign it 
with the intention of adhering to it. This is wild, if he is 
proposing that you sign something and then you are free of any 
obligation?
    The Chairman. Yes. But let me ask you this. If the Senate 
rejects the treaty, votes it down--and my guess is--I do not 
know this to be true, but my understanding is, if it were 
brought forth today, it might actually be defeated by a larger 
margin than it was the last time it came up. I think that that 
is what people like you tell me. You have not told me that, but 
others have told me that.
    So, if the Senate has rejected that, does that not have 
some bearing on the future of that particular treaty? And I 
might add, the administration, to my knowledge, has never even 
brought up trying to bring it back to the United States Senate 
in 7 and a half years, including the timeframe when the Senate 
was controlled by Democrats.
    Mr. Krepon. Mr. Chairman, I am a big fan of having very 
lengthy, indepth hearings on this treaty. A lot has happened 
since the Senate declined to provide its consent. We have a 
Stockpile Stewardship Program now. We did not then. We have 
this parallel monitoring network now. We did not then. Both our 
NTM capability----
    The Chairman. But, you are sort of moving off the subject, 
here. If you would get back to the fact--does it change the 
characteristic? I mean, I know you love the treaty, and we will 
have you in here if we ever debate that. But, the fact is, the 
Senate rejected the treaty. So, does that have any effect on--
--
    Mr. Krepon. Point well taken.
    The Chairman [continuing]. The things that you are saying?
    Mr. Krepon. Point well taken.
    I am going to ask you to think by analogy here. So, the 
Bush administration, George W. Bush administration, rejected 
the Rome--the International Criminal Court, something you are 
familiar with deeply. So, the administration notified the 
committee. The administration sent a formal letter to the 
depository of this Convention, the United Nations. A senior 
official in the administration sent a letter to the United 
Nations Secretary General clarifying our intention to pull 
away.
    The Chairman. Right.
    Mr. Krepon. And indicated that we would be under no 
obligation. And the depository then put the United States in 
brackets in that treaty as being a state that no longer felt in 
the least way obligated to respect the object and purpose of 
that Convention. It went off the Senate calendar.
    Now look at the CTBT. The administration, George W. Bush 
administration, clarified it was not a fan of this treaty and 
it was not going to seek its entry into force. The 
administration sent a letter to a Senator on this committee 
back then. And there were public statements along those same 
lines. The treaty remained on the Senate calendar. You did not 
send it back to the executive branch. It is on your calendar 
now. The administration did not formally notify the depository 
of our intent. It just said, ``We do not like this treaty. And, 
by the way, we are also not going to take actions that defeat 
its objects and purposes, even though we do not like it.''
    The Chairman. Yes. I think those are good points. I 
apologize to the committee members for taking so much time on 
this issue personally. And I am going to turn to our ranking 
member, Senator Cardin.
    I would just say that it would be good, I think, on an 
issue of this importance, if we actually had some consultation 
as this language was being drafted. And I know we have received 
some letters of assurance. And I would just say to my--to the 
ranking member, I do not know when would be appropriate, but it 
seems to me that there is a process here that--relative to 
transparency, relative to consultation--and potentially when a 
treaty has been sitting before the United States Senate for 
some duration, that automatically, it goes back, if it has not 
been ratified. But, I would love to talk to you about those 
things, and other committee members, down the road. And again, 
thank you for the indulgence of time.
    Senator Cardin. Well, first, Chairman Corker, thank you for 
your passion for the constitutional protections of the 
legislative branch of government, and particularly the United 
States Senate, because I share that. I have spent my entire 
adult life in the legislature, in the State government, as 
Speaker of the House, and now in the Senate. And I do not think 
there has been a year that has gone by, whether there was a 
Republican Governor or a Democratic Governor, or Republican 
President or a Democratic President, that I did not have 
problems with the prerogatives taken by the executive branch 
that I thought was disrespectful of the legislation branch. So, 
this is not a new subject.
    And I do think we all would be stronger if the Senate 
exercised its prerogatives more frequently. That does not mean 
we are going to reach conclusions, but I think having a healthy 
debate on treaties--I think your suggestion about bringing 
these--we have had a lot of treaties that have been around here 
for a long time that are--some are not terribly controversial, 
such as the disabilities treaty. And I hope the Law of the Sea 
is not terribly controversial.
    And I understand that we may not have the support for 
ratification, but I do not think we do the Senate a service by 
leaving them in limbo for all these periods of time. And, of 
course, we also have totally noncontroversial treaties that 
have passed this committee that we are having a hard time 
getting through on the floor of the Senate. So, I think 
exercising our prerogatives would be something that we should 
do, and figure out a way to get that done.
    I just want to respond to the point of executive actions. 
There are executive agreements, hundreds, entered into every 
year by every President since the beginning of the--of our 
Republic. And so, that is not an unusual issue. There is a huge 
difference, though, between an agreement signed by the 
President and one in which the Congress has joined, either 
through ratification or through passage of legislation. And 
that is, the next President can change it if it is not in law. 
If it is not ratified, the next President can do whatever he 
wants to do. If it is ratified, then he has to follow the 
protocols of the treaty. If it is in statute, he has to follow 
the statute. So, there is a huge difference.
    And, Mr. Krepon, as you pointed out, President George W. 
Bush could have, if he wanted to, disavowed our signature on 
the treaty, that we no longer be bound by it. And as you 
pointed out, we no longer would have been subject to the terms 
of the treaty, the object and purpose would no longer be 
effective against the United States. So, just by a single 
action, the President could have done that. He chose not to. 
And I think that is noteworthy, that he chose not to do that, 
keeping open the policies. Because, again, I would come back to 
the point that, for over, oh, now, close to three decades, it 
has been the policy of America that we believe that we should 
not test, and that other countries should not actively test, 
nuclear materials. That is our--been our policy. And it is been 
not terribly controversial, quite frankly, because of the 
capacity that we have and that active testing is not that 
critically--not that important to us in our capacity.
    So, I am not sure what the concern is right now, since 
whatever is done--and we have to wait to see the final action, 
I agree with the Chairman completely on that--if what Secretary 
Kerry has said now in writing, that there will be no legal 
impact, then what is the prerogatives taken away from the 
Senate if the United States can get the P5 to acknowledge that 
nuclear test bans are a good idea, the treaty should be still 
considered, considering that two of those P5s have not ratified 
the treaty? We are not alone. China has not ratified the 
treaty. What is the--what is the risk factor here for that, 
carrying out a policy of our country, leaving to the Congress, 
by passing laws, or the next administration, by simple action, 
the ability to negate any obligations we have? What is the risk 
factor here? To the Senate prerogatives, I am referring to.
    Mr. Krepon. We will see once the language is finalized, but 
I believe the risk factor will be zero. The risk factor of a 
resumption of nuclear testing--by Russia, by China, by 
Pakistan, by India, continued testing by North Korea--is high. 
So, I see no balance here. U.S. national security interests, 
international security interests, are served by a reaffirmation 
of this treaty's object and purpose, by a reaffirmation of 
moratoria, and by a vocalized sense of support for treaty 
monitoring that deters very low yield covert testing.
    Senator Cardin. The risk factor?
    Mr. Rademaker. So, it will not surprise you to hear that I 
disagree with much of what Mr. Krepon has just said.
    Senator Cardin. I know, I just wanted to give you a chance.
    Mr. Rademaker. Look, if the Security Council passes a 
resolution that amounts to what we here would call a Sense of 
Congress Resolution that just says nuclear testing moratoria 
are a good thing, it would be a bad thing if everybody tested a 
nuclear weapon--I do not see any threat to the prerogatives of 
the Senate. But, my understanding is, that is not where this 
resolution is going to stop. My understanding is, this 
resolution is going to go further, and it is going to try and 
do something that is legally significant, that goes beyond 
Sense of--what we would call Sense of Congress. And that is, 
they are going to try and embrace--get the U.N. Security 
Council to declare that all signatories of the Comprehensive 
Test-Ban Treaty have an obligation not to defeat the object and 
purpose of the treaty. Now, they may do that directly, or get 
the P5 to make a declaration about that, and then somehow the 
Security Council will approve that or incorporate it by 
reference. I do not know what.
    But, if that is what they do, they are doing more than just 
expressing an opinion. And----
    Senator Cardin. But, that----
    Mr. Rademaker [continuing]. And so, this notion that doing 
that does not change the legal obligations of the United 
States, that is a--that is an accurate characterization of the 
view of the executive branch. The traditional view of the 
executive branch is, the President signs a treaty, and the 
United States incurs an international legal obligation, the 
moment he does that, not to defeat the object and purpose of 
the treaty. The traditional view of the Senate has been, ``No, 
it does not.''
    Senator Cardin. But----
    Mr. Rademaker [continuing]. You know, Presidents can sign 
any kind of crazy treaty. Okay? And, you know, the 
Comprehensive Test-Ban Treaty, a lot of people like it, but, 
you know, we could elect a President who wants to deport every 
illegal alien in the country, and he could sign some treaty 
with some country about facilitating that. And then, are you 
going to credit him, when he comes to you and says, ``Well, I 
am just, you know, I have this international legal obligation 
not to defeat the object and purpose of this treaty that I have 
signed. And so, that is what I am doing here by deporting all 
these illegal aliens.'' You know, I think----
    Senator Cardin. I am just trying to----
    Mr. Rademaker [continuing]. You need to sort of think 
through whether--Mr. Krepon says it is a crazy idea to say 
that----
    Senator Cardin. Yes.
    Mr. Rademaker [continuing]. The United States does not have 
to abide by a treaty----
    Senator Cardin. All I am suggesting to you is, the 
President's already signed that, with the treaty protocols in 
Vienna, that we are subject to the object and purpose. He has 
already done that. So, if he does it again--although a 
President does it again--the point is that the next President 
can reverse that in one minute. That is the point. The Congress 
can take action in one minute. Nothing prevents us legally from 
doing that.
    So, I hear what you are saying. But, I think there is risk 
factors here. And you have to balance the risk factors. And I 
am all on board with the Chairman on the oversight of the 
United States Senate in this committee to preserve our 
prerogatives. He has my full support on that, because I have 
yet to meet an administration that does not try to grab as much 
as they possibly can and ignore us as much as possible. That 
seems to be what they learn in President 101 when they go to 
school.
    Mr. Rademaker. I submit that is what is happening with this 
resolution.
    The Chairman. And, if I could--I mean, we have some 
insights as to--it could have changed this morning--but we have 
some insights, based on leaks and discussions, that have 
created concerns.
    And, Mr. Krepon, for what it is worth, it does go beyond 
what you just said. And so, we have concerns. And maybe this 
hearing will cause the administration to take a different tact 
and not bring forth language. I mean, I hate to say it, but, 
you know, I got a copy of some language that is concerning to 
me, and maybe that is not the language that ends up being 
submitted, and maybe this hearing will be helpful in ensuring 
that Senate prerogatives are not dealt with inappropriately.
    Senator Risch.
    Senator Risch. Thank you, Mr. Chairman.
    I share Senator Cardin's view on the prerogative of the 
first branch of government. Unlike him, I served both in the 
executive--as a chief executive and in the legislative branch.
    But, you know, this whole discussion is absolutely 
astonishing to me. We are mixing the constitutional 
prerogatives of two co-equal branches of the federal 
government, the constitutional law of America, with the right 
or wrong of the treaty that we are dealing with here. Before we 
can even have this discussion, we need a set of rules.
    Mr. Krepon, if I understand you correctly, somehow the 
signature of the head of the second branch of government binds 
this sovereign country in a treaty with another nation. This is 
something absolutely foreign to me. I mean, if your analysis is 
correct, we were bound by the treaty that sat here for 50 years 
because the United States Senate did not reject it, that 
somehow the signature of the head of the second branch binds 
America even though the Constitution is crystal clear that it 
cannot be binding until it is ratified by the United States 
Senate.
    Now, your legal foundation for that is language in another 
treaty that was not ratified by the United States Senate. So, 
this unratified second treaty bolsters the first treaty; and 
you put all this together, and somehow we are bound. I mean, we 
have got to get a set of rules that we all acknowledge are 
binding as far as whose job it is to do what in this democracy 
that we have before we can even have this discussion.
    You know, it is incredibly frustrating when you have a 
discussion with a member of the foreign media. They come to 
you, and they stick a mic in your face, ``Are you going to back 
the President on this?'' And I say, ``No, I am not going to do 
that.'' He says, ``How can you do that? This man's leader of 
the free world.'' And we are saying, ``Wait a minute. You are 
talking about a man who heads the second branch of this great 
country of ours. And his job is to execute the laws and 
policies as enacted by the United States Congress and to 
oversee the spending that is done by the first branch of 
government.'' the first branch of government is another bastion 
of this country. It was the first, not the second or third, 
branch of government established by the founding fathers, and 
it was intended that this first branch would do the things that 
I have just outlined, not the second branch of government.
    Now, I agree with Senator Cardin that the CEOs always reach 
as far as they possibly can. But, you cannot overreach the 
Constitution by which you are bound by simply signing a treaty 
that is not ratified, and bolstering that treaty by saying, 
``Aha, I signed another treaty that was not ratified that says 
that we are bound, that the first treaty that I signed is 
binding us.''
    I mean, this is nonsense. This is absolute nonsense. And I 
think we--and forget that the--the right or wrong of the 
treaty. I think probably in--when the Senate debated this, 
there were hours--hundreds of hours of debate as to whether it 
was right or wrong. And we could have that same debate today. 
As you point out, things are different. But, that is got 
nothing to do with the legal binding nature of the President's 
signature on a treaty. And, for me to sit here and listen to 
you say that him simply signing it binds us, without the first 
branch of government--notwithstanding what the Constitution 
says--without the first branch of government ratifying that, 
that somehow we are bound by this is just--is absolutely 
astonishing to me.
    Mr. Krepon. Senator, it seems to me you have a gripe, a big 
gripe with customary international law.
    Senator Risch. Well, what customary international law binds 
me, as a United States Senator? I am not responsible to anyone 
except the people of America and the courts of America, not to 
some court convened in Europe because I violated customary 
international law. That is nonsense, absolute nonsense. For us, 
as Americans, who consider us members of a sovereign free 
nation on the face of this planet. No, I do not have a gripe 
with it, I absolutely reject it.
    Mr. Krepon. I know you do.
    The word ``bind,'' ``bound,'' that is your word, it is not 
my word.
    Here is my understanding of how customary international law 
works. And you can get much more authoritative testimony on 
this. But, when a country signs a treaty, it does not sign the 
treaty in order to violate it. It usually does not. There have 
been instances where this has occurred, but not many. Most 
countries, when they sign a treaty, it is their intention not 
to violate it, not to disregard it, not to defeat the object 
and the purpose of the treaty. So, the fundamental object and 
purpose of the Test-Ban Treaty is not to test.
    Now, whether you are bound or not, if you have a Congress, 
a Senate, a Senate Foreign Relations Committee, and a Senate as 
a whole, that does not like the obligations of that treaty, you 
can reject it. If you have a President, an executive, who does 
not like this treaty, the President can, through a series of 
procedures that have been developed over time, clarify, ``We 
are no longer going to follow the object and purpose.''
    So, the binds that you talk about are informal until a 
treaty is consented to ratification in this Senate and enters 
into force. If these----
    Senator Risch. But, that is nonsense, Mr. Krepon. There is 
no--there is absolutely no precedent for what you have just 
stated. You know, I had a professor like you in law school that 
could make an argument for anything if he believed the ends 
justified the means.
    My time's up. Thank you, Mr. Chairman.
    The Chairman. Senator Menendez.
    Senator Menendez. Well, thank you, Mr. Chairman.
    First, I want to applaud your vigorous assertion of the 
Senate's prerogatives and your understandable concern that we 
may be looking at a separation-of-powers issue here. I have a 
strong view, that I have asserted throughout my 24 years in 
Congress, that there is a reason the founders created a 
separation of powers. And I believe very strongly in the 
Congress, and certainly in the Senate, pursuing its separate 
co-equal branch of government status and the importance that 
the founders gave them. And I have done that whether it be in 
questioning of administration witnesses, in the sponsorship of 
legislation that administrations have not liked or have 
opposed, and in the votes that I have taken. So, I appreciate 
very much your concern.
    Having said that, I think, as important as safeguarding the 
vital role of the U.S. Congress, and especially the Senate, 
where international treaties are concerned, I think that the 
apprehension in this case may be misplaced. And, of course, we 
will have to see the language of the U.N. Security Council 
resolution. But, I believe that our national security is 
actually better served by the appropriate set of understandings 
that are being maybe put forward. And I will wait, in terms of 
judgment, to actually seeing the language.
    Since 1992, successive administrations representing a broad 
swath of public opinion from both parties have sought fit to 
continue to observe and support the ban on nuclear testing. 
And, while we are certainly not here to reconsider the Senate's 
decision with regard to the CTBT, I would suggest that many of 
the objections raised back in 1999 are less valid today. The 
advancement of America's science and technological abilities, 
the needful activities of a CTBT organization and the 
international monitoring system, and our enhanced national 
technical means suggest that we have less cause for concern 
today, from my perspective, than when the matter was first 
discussed in the Senate.
    Indeed, it is, in my opinion, in our national interest to 
support the continuation of what has been a hugely successful 
international moratorium on testing. Reaffirming our commitment 
to the objectives and purpose of the treaty in doing so ensures 
that conditions that undergird this observance continue to 
exist for the foreseeable future. A nonbinding resolution that 
does leave open the possibility of our country unsigning the 
CTBT in the future, in the unlikely event that resuming nuclear 
testing is necessary to our national security, I think is 
appropriate.
    And so, in the time left, let me just ask one or two 
questions in pursuit of that.
    And, Mr. Rademaker, it is good to see you. I enjoyed our 
time together when you were in the House of Representatives, on 
the House Foreign Affairs Committee.
    If the CTBT is so injurious to the U.S. national security, 
why did the Bush administration not unsign the treaty, as it 
did in the Rome statute of the International Criminal Court and 
the Anti-ballistic Missile Treaty?
    Mr. Rademaker. Thank you. First, it is nice to see you 
again, Senator Menendez.
    The--you know, the--I heard the argument that, ``The Bush 
administration unsigned the Rome statute; why did it not unsign 
the CTBT?'' I would commend to you the letter that I submitted 
as an attachment to my testimony, the letter from Condoleezza 
Rice, signed in 2008. She was being asked by Senator Kyl 
essentially the same question, Why have you not unsigned the 
CTBT? And if you read the letter--and I hope it is made part of 
the record--her answer is, basically, ``We do not need to 
unsign it, because we have done that through other means.'' And 
then she cites all of the public statements of the Bush 
administration, by Bush administration officials, including me, 
to the effect that, ``The United States does not intend to join 
this treaty, we have unsigned it.'' And she said, ``Having done 
that, we do not need to send another letter.''
    Mr. Krepon was wrong when he said that the U.N. has put in 
brackets the name of the United States on the Rome statute. 
That is not true. You can go look online. They put a footnote. 
They said, you know, ``The United States signed this treaty.'' 
And there is no eraser in the world of treaty signature. I 
mean, the United States----
    Senator Menendez. Well, the point is still the same. 
Whether you unsigned it or whether, through your statements, 
executive statements, declare that in essence you are not 
pursuing it, the result is that you are not bound in the way 
that a ratification of a treaty would bind you.
    Mr. Rademaker [continuing]. Well, again, I would commend to 
you the Rice letter, because I think what she says in that 
letter is, ``We have unsigned this.''
    Senator Menendez. All right. Mr. Krepon, do we have 
leadership role here that encourages other states to support 
the CTBO organization? How important is the continued viability 
of it, going forward? And does the IMS not provide a helpful, 
complementary layer to detect, and thus deter, nuclear testing 
that supplements our own national technical means?
    Mr. Krepon. Senator, if I could quickly offer a rejoinder 
to Steve on this point.
    Let us grant that the George W. Bush administration 
unsigned the CTBT by lesser means than the Rome statute or the 
ABM Treaty. If future--the Bush administration's unsigning, if 
we were going to call it that, does not bind a future 
administration. It can pursue this treaty. So, even if we were 
to grant this, it is irrelevant in the case of an 
administration that sees value in this treaty that remains on 
the Senate calendar.
    With respect to this International Monitoring System, it is 
crucial, because everybody has bought into it.
    With respect to our parallel and better system of national 
technical means, it is secret. We can reach a judgment based on 
secret data. Some people will agree with us, other people will 
take issue with us. But, everybody will have data from the 
International Monitoring System. And every country that is a 
party to this treaty can reach conclusions about compliance.
    And we are in a much stronger place, if there is cheating, 
if we go ahead and continue to fund this system and pursue 
entry into force of this system. The system is ready. It works. 
We know it works. It works well. But, it is in limbo. Limbo is 
not a sustainable state.
    Senator Menendez. Thank you, Mr. Chairman.
    The Chairman. Thank you.
    And before turning to Senator Rubio, I just want to say, 
one more time, I am not here to debate the merits of the 
treaty, itself. I am trying to protect everyone's rights here 
as it relates to being a U.S. Senator. And I appreciate Mr. 
Krepon's advocacy here. I have no reason to want to debate that 
today. I want him to just make sure that we have a process that 
is not being undermined. And we will not know that until we get 
the language, itself. And I think Mr. Krepon, himself, who 
advocates for this policy, would agree that anything that 
undermines that through going to the U.N. Security Council with 
inappropriate language that takes away our authority would not 
be something that would be good for the United States Senate or 
our country. So, that is all I am focusing on.
    Senator Menendez. Mr. Chairman, I understand that, but in 
pursuit of the full prerogatives we all have, some of us do 
want to debate it.
    The Chairman. I got that. And you have got the microphone, 
and you are a United States Senator, you can do whatever you 
wish, and I respect that and thank you for that.
    Senator Rubio.
    Senator Rubio. Thank you, Mr. Chairman.
    I want to return to the process. And it is important. I 
think this is a fascinating hearing and an important debate 
about the role the Senate plays as a check and balance on the 
executive, which I think is as important as it has ever been.
    I think the argument--just to summarize, the argument I 
have heard today from Mr. Krepon--and if I am wrong, you will 
point this out--is, there is no doubt, no one disputes that, 
under domestic law, the United States is in no way obligated, 
because it has not been ratified by the Senate. The secondary 
argument is: However, under customary international law, at the 
moment that President Clinton signed in to this agreement, the 
United States is under an obligation, under Article 18 of the 
Vienna Convention, to not do anything in contravention that 
goes against or defeats the purpose of anything that we have 
signed on to. That is the argument. And so, even if we are not 
domestically bound by this, the argument is that, under Article 
18 of the Vienna Convention, we are bound internationally to 
not do anything in contravention of the agreement. Therefore--
you do not want to use the word ``bound,'' but, in essence, 
bound by that provision.
    I find the flaw in it in two points. The first is that, by 
the signature of the President alone, that somehow enters us 
into this agreement. That may be true in North Korea, because 
they have a Supreme Leader. That is not true in our 
constitutional system of the United States. We do not have a 
Supreme Leader. In order to bind the United States or to enter 
us into anything requires not one step, but two steps. The 
first step is the signature of the chief executive, the 
President, and the second is the ratification, the affirmative 
ratification of the Congress, not simply a affirmative 
rejection and sending back for comments.
    So, my argument is, we have not entered into this 
agreement. Even if you wanted to adhere to Article 18, which, 
by the way, we also did not ratify our Vienna Convention, but 
the argument, I think, falls apart because the simple signature 
by our President, in our system, under our sovereign 
constitutional system, does not, in and of itself, enter us 
into anything until it is affirmatively ratified. Otherwise, 
what is the purpose of the Constitution? At that point, 
basically, the President can bind us under ``customary 
international law'' anytime he or she signs on to any document 
in the world, irrespective of whether Congress acts or does 
not. And if Congress chooses to approve it, well, that is a 
nice touch. Well, that is not my reading of our constitutional 
order, and I hope that is not where we have reached.
    The second argument is the role of the Security Council at 
the United Nations, and the impact that any resolution therein 
would have, again, on the United States, in addition to Article 
18 of the Vienna Convention. And there was a dispute or a 
debate out there about the--again, the legal binding associated 
with a U.N. resolution. And it is this argument between whether 
it is a decision of the Security Council, basically an 
affirmative decision--and there is a notion out there, and a 
strong argument by many, that a decision of the Security 
Council is binding, pursuant to Article 25 of the U.N. Charter 
versus a recommendation of the Security Council, which would 
lack binding force. And hence, I think some of the discomfort 
you see from this committee, because there is no engagement 
with the executive branch, that I understand--and perhaps you 
have had some deeper engagement--about the specific language 
that they are pursuing. And again, the difference between a 
decision and a recommendation is in the eye of the beholder.
    And so, where we find ourself here is that, at some point, 
in 15 years, in 10 years, there may be occasion where a future 
President decides the U.S. does need to test. But, the argument 
against us will be twofold. Number one, you are violating 
customary international law, under Vienna; and, number two, you 
are violating a U.N. resolution, 15 years ago, which was a 
decision of the U.N. Security Council. And hence, why the 
language is so important, especially given the track record of 
the U.N.
    All of this within the context of our constitutional 
system, where some of the arguments that have been made here 
today, basically, say, ``Your Constitution is nice. And when it 
comes to domestic issues, it is great. But, on international 
issues, there is international law, both customary and through 
the U.N. Security Council, that supersede your constitutional 
order.'' And that is an argument that I hope we never accept in 
this chamber, whether we are Republicans, Democrats, or 
Independents. Because, at that point, we truly have given over 
our sovereignty in a way that I think is dangerous for the 
national security of the United States.
    And I would welcome both of your comments.
    Mr. Krepon. Senator, the language of this resolution is 
crucial. As I told the Chairman, if this resolution imposed any 
new obligation on the United States, I think it would be an 
infringement.
    Senator Rubio. Well, what about reaffirming what you argue 
is an existing obligation?
    Mr. Krepon. If it reaffirms existing obligations, if it 
reaffirms the treaty text, the plain language of the treaty 
text, I am more than fine with it. I support it, because I 
support the treaty.
    Senator Rubio. But, would that not be another way to bind 
this country to a treaty that we have not ratified under our 
system of government? In essence, that is a backdoor way of 
ratifying a treaty that a President could not get through the 
constitutional order, and so he went around it and said, 
``Fine, I will not bind you under our Constitution, I will bind 
you under the U.N. Charter.''
    Mr. Krepon. I completely disagree with that, Senator.
    Senator Rubio. Well, then what is the point of making it?
    Mr. Krepon. Allow me. I disagree with you, because the 
Senate still has to provide its advice and consent. This treaty 
cannot be circumvented, except by a U.N. Security Council 
resolution that provides directive language. The U.N. Security 
Council decides, it imposes. Check out the language. Bring in a 
panel of lawyers.
    The Chairman. Does language that says ``calls upon'' do the 
same thing? Does it?
    Mr. Krepon. It does not, in my opinion. That is hortatory. 
Hortatory. You have passed so much legislation that has 
hortatory language. You know the difference between hortatory 
and directive.
    I would also want to suggest to Senator Rubio that the 
Congress has had a role in this whole process. It began, as 
Senator Cardin said, with legislation in 1992. One of your 
former colleagues, Senator Hatfield, was a big part of this. 
So, we have national legislation as well as a treaty. The 
question that is worth wrestling over--a President signs a 
treaty. The treaty does not enter into force the next day. 
Sometimes it takes decades. So, what obligations are we under, 
is the Congress under, in that period of time between when a 
President signs and when the treaty enters into force? Are we 
free to do exactly what the treaty says we should not do? Is 
that okay? If you think that is okay, then you are contravening 
centuries--centuries--of law.
    Senator Rubio. Well, we did that when we founded our 
country, too. I mean we basically rejected the old order.
    Mr. Rademaker. Could I comment on this? Because this is 
completely incorrect.
    First of all, Mr. Krepon is looking through one end of the 
telescope. He is saying, ``Do we have the right to completely 
violate a treaty the day after the President signs it?'' The 
other way of looking at it is, if the United States is doing 
something one day, and the President signs a treaty and says we 
cannot do that anymore, do we have an obligation to stop doing 
what we have been doing just because the President signed a 
piece of paper? That is another way looking at the same issue. 
And the view of the Senate on that has always been no. Until 
the Senate approves a treaty, it is not binding on the United 
States in any respect. That is the view of the Senate. Now, 
that is not the view of the executive branch.
    Mr. Krepon says: For centuries, this has been established, 
that, once the sovereign signs a treaty, it is binding. You 
know, that--again, that is not true. I am sorry to belabor the 
international law here. There is a thing called the 
``restatement of foreign relations law of the United States,'' 
which is basically a statement of the law--international law. 
In 1965, the second version of that came out. No mention 
whatsoever of this obligation. 1969, the Vienna Convention is 
signed. What CRS told this committee in a very important 
document that you ought to look at that was submitted to this 
committee in 2001, a study of the treaty-making process--and it 
is sort of the bible for your lawyers, by the way. If you look 
at it, they make the comment that, as in the case of many 
treaties, the executive branch conducted the Vienna Convention 
negotiations without congressional observers or consultations, 
although the subject matter was of clear concern to the Senate. 
They go to Vienna. They sign this thing that includes Article 
18, something not reflected in the restatement of foreign 
relations law of the United States from 1965.
    The next version of the restatement comes out in 1987. It 
includes, now, this notion adopted from the Vienna Convention, 
but it goes on to say, in the reporter's notes, that this 
principle is less familiar to common law writers than to their 
civil law counterparts. So, I mean, we are a common law 
jurisdiction, so it is basically saying----
    Senator Cardin. Mr. Chairman, I----
    Mr. Rademaker [continuing]. This is kind of a European 
law----
    Senator Cardin [continuing]. I am going to insist somewhat 
on regular order here. I would like to free-flow. I enjoy it. I 
enjoy members interacting. I do not always enjoy witnesses not 
allowing the other witness to finish. So, I would just urge us 
to have some semblance of order here and allow each person to 
be able to complete their thoughts.
    I also want to underscore that this, as the Chairman 
pointed out, is focused on the process and prerogatives of the 
Senate. This is not a new subject. My staff pointed out to me 
that, in 2001, under Senator Helms, who was Chairman of the 
committee, the blue book that was printed by the committee 
spelled out very clearly the lineage of how treaties are 
treated between signature and ratification, which is exactly as 
we are discussing today. This is not a new subject. This is not 
a new interpretation by an administration. This has been the 
practice. And the Senate has done nothing active to dispute the 
responsibilities we have been signature and ratification but 
the prerogatives that remain until ratification.
    So, this subject is one that I think is very worthy of a 
hearing, but it is clearly not a new subject, and one in which 
we have to function as a Nation through our chief executive. I 
do not look at Article 1 or 2. I look at it as working 
together. And we do try, on this issue--I know we are not 
talking about the substance of the issue, but, on this issue, 
it was a joint legislative-executive policy to prevent nuclear 
testing that was taken to the international stage; and now we 
are debating how the United States leadership should be 
maintained, which I would hope you would find the legislative 
and executive branches working together.
    The Chairman. Let me, if I could, I appreciate the 
interjection, and I respect very much the fact that we have 
allowed this to be a little freewheeling. And I think it is 
been very informative.
    So, what I think we will do is be a little more closely 
aligned to regular order, and then come back around for a 
second round, if people wish to do that. And I thank you for 
your input.
    With that, Senator Shaheen.
    Senator Shaheen. Thank you, Mr. Chairman.
    And, you know, I think, as I understand, here, part of what 
we are talking about is really speculation, because we really 
do not know what is being proposed, in terms of U.S. position 
with respect to a U.N. Security Council resolution, or the 
language. And so, while I think it is important for us to send 
a strong message to the White House that we all believe the 
Senate has a very important constitutional role, and we intend 
to play that role, we are really speculating, at this point, 
about what may or may not be in language for this resolution.
    So, I appreciate everybody's speculation about what that 
may be, but I think it is important to say we do not know, at 
this point.
    The Chairman. That is correct.
    Senator Shaheen. So, Mr. Krepon, let me just ask you. I 
think you have said this, but assume the administration secures 
a U.N. Security Council resolution and P-5 statement along the 
lines of reaffirming what is in the CTBT. And assume that a 
future President determines that the U.S. should conduct 
another nuclear test. Not something I think we should do, but 
assume that happens. What would he or she need to do to relieve 
the U.S. of its statutory--or signatory obligations?
    Mr. Krepon. Senator, we are talking about Senate 
prerogatives, as you should, but there are Senate prerogatives 
associated with the withdrawal of a U.S. commitment to a 
treaty. And I do not see a standard, here. And if you are 
concerned about Senate prerogatives, it might make sense to 
clarify standards.
    So, in answer to your question, I believe the proper 
standard is what the George W. Bush administration did with 
respect to this Rome statute on the International Criminal 
Court. The Bush administration very forthrightly came to you, 
came to the American public, went public to the international 
community, said, ``We are outta here,'' and conveyed a very 
formal letter to the U.N. Secretary General, the depository of 
the treaty. Now, that seems to me to be respectful of the 
Senate's prerogatives.
    Senator Shaheen. Okay. Thank you.
    Mr. Rademaker, do you agree with that? In 30 seconds or 
less.
    Mr. Rademaker. Yes, the Bush administration did that. I 
would argue, with respect to the Rome statute, the 
International Criminal Court----
    Senator Shaheen. No, no, that is not the underlying 
question. What would a future President--what should a future 
President do if they decide that they do not want to follow the 
U.S. signatory obligations of the previous President?
    Mr. Rademaker. Yes. In that--yes, the President can get out 
from under that obligation.
    Senator Shaheen. Okay.
    Mr. Rademaker. That is correct.
    Senator Shaheen. Thank you.
    Now, Mr. Chairman, with all due respect, I understand that 
you want to keep this on process, but I think it is very hard 
to talk about an issue like this and keep it totally on 
process.
    The Chairman. You are free to do whatever you wish.
    Senator Shaheen. Thank you. I intend to do that.
    The Chairman. Yes. I know you will. Thank you.
    Senator Shaheen. So, Mr. Krepon, you listed a number of 
countries that might like to test, some of which already are, 
at least one. So, can you tell us what countries you believe 
would benefit most right now from testing?
    Mr. Krepon. China tested 50 times, Senator. We tested about 
1,000 times. China was very reluctant to sign this treaty, and 
still has not ratified.
    Senator Shaheen. Right.
    Mr. Krepon. So, there are some things they could do.
    Russia does not have as good of a stockpile stewardship as 
we do. I am convinced of that. Now, we have tunnels and we have 
facilities above ground at the Nevada National Security site, 
where we do experiments that do not produce nuclear yield. I 
suspect other countries with nuclear weapons do, too. But, they 
may feel more constrained than we. So, they might benefit, too.
    Senator Shaheen. Okay. So, that is two countries who I 
think it is fair to say are not our allies when it comes to a 
nuclear arsenal. So, would you agree that strengthening the 
norm--this is essentially what Senator Menendez was asking--
strengthening the norm against nuclear testing makes it harder 
for other nuclear states to develop more sophisticated nuclear 
arsenals?
    Mr. Krepon. Absolutely.
    Senator Shaheen. Do you disagree with that, Mr. Rademaker?
    Mr. Rademaker. I have no objection to the current 
situation, where countries are observing a moratorium on 
nuclear testing. The concern I have expressed in the past is 
one where a moratorium would become legally binding on the 
United States, because we do not know what will happen 50 or 
100 years from now. And so----
    Senator Shaheen. Okay, but I am not suggesting completely 
binding.
    Mr. Rademaker [continuing]. I think ways to strengthen the 
notion of a moratorium are fine, as long as they are not 
legally binding on the United States.
    Senator Shaheen. So, you would agree, then, that it is 
probably in the interests of the United States and our allies 
to see norms that would discourage nuclear testing by other 
nations.
    Mr. Rademaker. Non-legally binding, you know, political 
pressures brought to bear on other countries not to test that, 
I have no problems with that.
    Senator Shaheen. Okay. And I just have--I know I am out of 
time, Mr. Chairman, but I just have one more question. Are our 
allies, those who rely on the U.N. nuclear umbrella, are they 
supportive of our efforts to strengthen the norms against 
testing?
    Mr. Krepon. Absolutely. They would be rattled by testing by 
China and Russia, and they are not real happy with the only 
outlier that still tests: North Korea.
    Senator Shaheen. And, Mr. Rademaker, do you agree with 
that?
    Mr. Rademaker. About the feelings of our allies? I think 
our allies are an important element of this equation. They 
depend--some of our allies depend very much for their security 
on the U.S. nuclear umbrella. And so, I think none of our 
allies today would be enthusiastic about an American nuclear 
test. I think if any--I can say there are a number of allies 
who would be deeply troubled if they became concerned about the 
reliability of the U.S. nuclear umbrella. The country of South 
Korea--did you know two-thirds of the South Korean people today 
think South Korea should deploy its own nuclear weapons because 
they live next to North Korea, which keeps setting them off, 
and they feel that they are in the target zone for North Korea? 
If we do not want South Korea, where two-thirds of the people 
favor this, to go down that road, the South Korean people need 
to be reassured that the American nuclear umbrella exists and 
we will protect them in a crisis. And that is sort of my 
concern about permanent prohibition, that it could put us in a 
place were we are not able to maintain that reliability.
    Senator Shaheen. Well, I appreciate that. I have not heard 
anybody on this panel argue that we should make this resolution 
at the U.N. legally binding. I have not heard anybody say that. 
I have not heard the White House say that. So, I appreciate 
that there may be conspiracy theories out there that suggest 
that that is going to happen, but I have not heard any good 
evidence to suggest that that is, in fact, the case.
    Thank you, Mr. Chairman.
    The Chairman. Okay. Thank you.
    Senator Udall.
    Senator Udall. Thank you, Mr. Chairman.
    And I think this has been a very interesting discussion. 
And I know, Mr. Chairman, you visited our National Laboratories 
in New Mexico, as some other Senators on this, and we do a lot 
of this work that Mr. Krepon talked about, in terms of 
stockpile stewardship and safety, reliability of our nuclear 
stockpile.
    So, I welcome this discussion on the Comprehensive Test-Ban 
Treaty. The treaty is important to reach international 
nonproliferation goals. I believe the United States should 
ratify it. And I am disappointed we have not been able to have 
a serious conversation, or even a hearing, about ratification. 
Every administration since President Clinton has observed the 
moratorium on testing. And I am proud that the science-based 
work behind the life-extension program at New Mexico's National 
Security Labs has made a moratorium on testing possible. And 
that is what I talked about with Chairman Corker. In the 
absence of testing, the Labs have carried out science-based 
efforts to maintain the weapons stockpile safely and securely. 
This work has also increased our understanding of physics and 
other sciences while giving our top scientists and engineers 
the ability to apply these efforts to other national security 
interests.
    And, Mr. Krepon, you raised this issue. I believe you said 
Russia is not as good as we are on their stockpile stewardship 
program. And I would ask you to rate that. I mean, you could do 
it on a 1-to-10, saying we are 10 or--how would you compare our 
ability in this period where we have not tested our stockpile 
stewardship programs?
    Mr. Krepon. Senator, I need to declare an interest. I 
previously was a consultant to Sandia's International Security 
Program, so I was involved with cooperative threat reduction 
work and their Cooperative Monitoring Center.
    Nobody is in our league. Nobody. Now, the Russian labs took 
a huge hit when the Soviet Union dissolved. China's labs, I am 
guessing, are better than the Russian labs.
    But, I also want to point out something that our labs have 
done in the past and might do in the future. We had this big 
wrangle over a treaty that set a threshold for underground 
testing. This was a treaty that was signed by President Nixon 
in '74. President Ford sent it to the Senate. There were still 
issues. We did not know that much about the geology of the test 
sites over in the Soviet Union. There were disputes that the 
yield--this threshold was being violated--assertions that it 
was being violated. And we really had trouble calibrating.
    And so, what the Labs did--President Reagan pursued this, 
and President George H. W. Bush made it happen. He sent the 
Labs to the Soviet test sites. And we invited their guys to 
come to our test sites. And we calibrated underground yields. 
And we gained satisfaction that we could do this. Indeed, we 
came to the conclusion, a reasonable conclusion, that 
assertions of violations were not right. And President George 
H. W. Bush persuaded the Senate to consent to ratify this 
treaty.
    I think this can come in handy again in the future if we 
ever get to that place, if we ever get to the point where, on 
balance, the Senate believes this treaty is in our national 
security interests. And we love where the detection has gone. 
It has just driven down yields, driven down detectable yields. 
But, maybe we need--we need a little bit more.
    Senator Udall. You still have not made the comparison among 
China, Russia, and United States, on stockpile stewardship.
    Mr. Krepon. I cannot say. I do not have a confident----
    Senator Udall. Yes. But, you would say that we are tops, 
China is probably second, and Russia is third, is your estimate 
at this point.
    Mr. Krepon. It is.
    Senator Udall. Yes. Yes. Okay.
    And I have additional questions, but Senator Markey's here. 
I will put them, in the record.
    Thank you.

    [The information referred to is located in the Additional 
Material Submitted for the Record section of this transcript.]

    The Chairman. Thank you. Thank you so much.
    Senator Markey.
    Senator Markey. Thank you very much, Mr. Chairman.
    Thank you for having this hearing. I think it is a very 
important subject, obviously, and it is one that we need in 
order to clarify what the law is on this issue.
    In August of 1986, my amendment passed on the House floor, 
calling for a moratorium on U.S. underground nuclear testing as 
long as the Soviet Union also abided by that. So, that passed 
by about a 100-vote margin on the floor of the House in August 
of 1986. We also passed a ban on anti-satellite weapons at the 
time. Those two amendments, as they passed the House, are the 
two amendments that largely drove Reagan to Reykjavik. Because, 
otherwise, it was inexplicable what he was doing there in the 
first week of October with no preparation beforehand. We were 
closing in on these assets. Okay? And by 1992, the United 
States basically just stopped underground nuclear testing. The 
Russians have, as well. So, that was the beginning of the end 
of underground nuclear testing.
    So, what we are talking about now is really, What do we do 
in order to make sure that North Korea and others do not 
escalate their underground nuclear testing? That is at the 
heart of this issue.
    Here is what Senator Kerry's letter to us this morning 
says. The administration says:


          The administration fully respects the Senate's 
        constitutional role in treaty ratification, and the 
        actions currently being considered at the United 
        Nations are consistent with that role. We remain 
        committed to securing the Senate's advice and consent 
        on the U.S. ratification of the CTBT, the entry into 
        force of which would result in a durable, legally 
        binding test ban and bring into full force the treaty's 
        vital verification mechanisms. The actions we are 
        pursuing with the Nuclear Non-Proliferation Treaty, 
        nuclear weapon states, and separately in the United 
        Nations Security Council, are in no way a substitute 
        for entry into force of the treaty.
          As you know, the President made CTBT ratification a 
        U.S. priority in his 2009 Prague speech. And I have 
        also been clear on this point. Although the policy of 
        the last administration was not to pursue U.S. 
        ratification of the CTBT, that has not been the current 
        administration's policy. ``We are not proposing, and 
        will not support, the adoption of a U.N. Security 
        Council resolution imposing a legally binding 
        prohibition on nuclear testing. Rather, we are pursuing 
        a political statement of the NPT's nuclear weapon 
        states, all of whom are CTBT signatories, affirming 
        their view that a nuclear test would defeat the object 
        and purpose of the CTBT. As a matter of international 
        law, treaty signatories are obliged to refrain from 
        acts which would defeat the object and purpose of a 
        treaty unless they make their intention clear not to 
        become a party to the treaty.
          A future administration could make clear that the 
        United States no longer intends to become a party to 
        the treaty, in which case the United States would no 
        longer have such an obligation. This is well-
        established principle of treaty law and is consistent 
        with the constitutional role of the Senate in U.S. 
        treaty practice. ``The resolution we propose would take 
        note of the political statement by the NPT's nuclear 
        weapon states. It would not impose that view as a legal 
        matter or place any other legal prohibition on nuclear 
        testing on U.N. member states. At the same time, such a 
        statement could encourage other countries that have not 
        yet signed or ratified the CTBT to take steps to do so. 
        The proposed resolution also seeks to reinforce the 
        existing moratoria on nuclear testing and strengthen 
        the CTBT's verification regime.


    Could you talk about that, Mr. Krepon, just so that we, 
again, zero in on the political, rather than legal, nature of 
what the President and John Kerry are talking about?
    Mr. Krepon. Senator, I appreciate your history on this 
subject.
    What we are hearing from some members of this committee is 
a radical new legal theory, which is that a state is absolutely 
free to violate a treaty that it has just signed before its 
entry into force, which would, by the way, nullify its entry 
into force. This is wild. And nothing that I can think of at 
the moment would so seriously undermine U.S. leadership in the 
world as to propound this theory.
    No administration has embraced this theory. When our 
Presidents negotiate and sign treaties, it is their intention 
not to violate them. We are unlike other countries in that 
respect. And we are proud of it.
    So, I hope that this committee will not go down the route 
of embracing a radical notion that, ``Oh, we just signed that 
treaty, but we are not obliged to adhere to it.''
    Senator Markey. So, you agree, this is just a political 
statement that they are making. Do you agree with that?
    Mr. Krepon. I do.
    Senator Markey. Okay. Well, that is very important, because 
that is the nub of this case right now.
    And, by the way, the argument that was made on the CTBT, 
that we could not verify, well, it was not true in 1974. We 
knew that India was testing, we were not sure when Pakistan did 
it. Today, we have a sophisticated system that picks up 
anything that North Korea does instantaneously. The question is 
whether we want to construct a regime that will tighten the 
noose around North Korea and other rogue nations that continue 
down a pathway that China and Russia and the United States and 
others do not, in fact, go down, which is additional testing of 
nuclear weapons.
    So, that is really what this whole debate is all about. It 
comes down to North Korea, to a very large extent. And, to the 
extent to which we want to ensure that we are using every 
possible mechanism at the U.N. that is still consistent with 
the prerogatives of the United States Senate, I think that we 
should pursue them. We have to let the world know--we have to 
let North Korea know that they are isolated and that they can 
expect the noose to continue to tighten. And if we can get 
China and Russia to go along with that as a political 
statement, I think it helps to make the world safer.
    I thank you, Mr. Chairman.
    The Chairman. Thank you.
    If I could, while you are still here, I would like to say 
that, while this is about the process--it is not about the 
substance--since the speech in Prague, this is the only hearing 
that has ever occurred on this topic. So, you talk about 
hortatory. I mean, Chairman Kerry, who just sent us this 
letter, never even had a hearing on this. Okay? So, I do want 
to say that this certainly has not been on the front burner. It 
has not been pushed by this administration. And there have been 
legitimate concerns about a going-out-the-door obligation. And 
I do not think we would have received this letter that we 
received today that states that they are not going to do 
anything that is binding.
    Now, I would like to follow up on your question, if I 
could.
    So, here is what I would like to make: I think where there 
is disagreement, Mr. Krepon has a point of view, Mr. Rademaker 
has a point of view, and we had two committee members who had a 
point of view relative to the object-and-purpose issue. I would 
just like to ask this question. And, you know, Senator Shaheen 
said it is based on rumor. Actually, I do not think so. I mean, 
I think there have been some legitimate concerns, and I think 
we are airing those. And hopefully what is going to happen is, 
when the administration works things out with its partners at 
the U.N. Security Council, it will not be something that goes a 
step further and takes away our obligation and steps on our own 
responsibilities.
    But, I would like to ask Mr. Rademaker this. Affirming 
this--the--let me find the language here that was just read--
the purpose and objective. Mr. Rademaker, would you agree with 
what Mr. Krepon just said, relative to its binding effect, and 
what Secretary Kerry affirmed in this letter? I mean, if we are 
in agreement there, and they end up coming down that path, then 
that would be wonderful. But, do you agree with that, that it 
is not in any way legally binding if the next administration 
decides to withdraw?
    Mr. Rademaker. I am confident that the next President could 
find a way to terminate the obligation not to defeat--or the--I 
guess I should say, the alleged obligation not to defeat the 
object and purpose of the treaty. But, the Security Council 
action, I think, is intended to make it more difficult for him 
to do so. I do not think it makes it legally impossible, but it 
makes it harder for the next President to do that.
    And I do just want to emphasize that I believe there is a 
difference of view between the two branches of government on 
this issue of whether the United States incurs a legal 
obligation the moment the President signs a piece of paper. It 
is not that anybody's suggesting the U.S. wants to immediately 
violate treaties that the President signs, but there are many 
times when the President signs a treaty that would require the 
United States to stop doing something that it has been doing 
for years. And the question is, Does the United States incur a 
legal obligation, by the stroke of the President's pen, to stop 
doing things that it has been free to do in the past? And I 
think to the Senate on that has always been that it does.
    And, of course, the case before us is even more complicated 
because it is not just a question of what is the initial 
obligation, there is also--even under the Vienna Convention, 
this obligation exists until the signatory has made clear its 
intention not to become a party. And so, for the CTBT, the 
question is, What is the meaning of the Senate action in 1999? 
And then, we have the Condoleezza Rice letter, where she said--
--
    The Chairman. Yes.
    Mr. Rademaker [continuing]. The view of the President is 
that we are not intending to be bound. And so, where does 
anyone come to the conclusion that, today, with both branches 
of government having spoken--now, you know, I realize we have a 
different President who has a different opinion, but does this 
change the legal obligation of the United States under the 
customary--what is alleged to be the customary international 
law reflected in the Vienna Convention? I think it is a pretty 
tenuous argument.
    The Chairman. Well, I think we--I mean, we kind of live in 
that world, and we have that same disagreement over the War 
Powers Act and numbers of things.
    Mr. Rademaker. Right.
    The Chairman. I understand it. But, I would like to get 
back, specifically, since you have so much knowledge on this. 
Affirming their view that the nuclear test would defeat the 
object and purpose of the CTBT--you have seen this letter--in 
that language that has been sent to us this morning, is it your 
belief that, if that is the path that is followed, the Senate 
prerogatives, as it relates to treaties and affirmations of 
international agreements, have or have not been infringed upon?
    Mr. Rademaker. I think that statement is irreconcilable 
with what Secretary Rice wrote in her letter to Senator Kyl. 
And I think it is irreconcilable with the position of the 
Senate that the United States has no such legal obligation.
    The Chairman. Mr. Krepon.
    Mr. Krepon. Mr. Chairman, we elect Presidents that have 
irreconcilable differences with their predecessors from time to 
time. But, that does not nullify a treaty that remains on the 
Senate calendar. You still have the prerogative to not consider 
this treaty, reject it----
    The Chairman. Not have hearings on it in 8 years.
    Mr. Krepon. Well, I--you have started. [Laughter.]
    The Chairman. Yes.
    Mr. Krepon. And that is a good thing.
    The Chairman. Yes.
    Senator Cardin. Mr. Chairman, I just really want to thank 
both of our witnesses. They are a great resource to the 
committee.
    And I think this hearing was long overdue, and I thank you 
for calling it.
    The Chairman. Thank you. And thanks for allowing us to have 
it on short notice, and for changing the time.
    The business--there will be questions that will follow, and 
I will keep the record open until the close of business Friday. 
If you could fairly promptly--especially with this potentially 
going to the U.N. Security Council fairly soon, if you could 
fairly promptly respond, we would appreciate it.
    Thank you for sharing your wisdom and knowledge with us.
    And, with that, the meeting is adjourned.
    [Whereupon, at 12:00 p.m., the hearing was adjourned.]



                              ----------                              


              Additional Material Submitted for the Record


        Letter From Senator Bob Corker to President Barack Obama


       U.S. Senate, Committee on Foreign Relations,
                         Washington, DC 20510-6225, August 12, 2016
President Barack Obama,
1600 Pennsylvania Avenue,
Washington DC 20500

Dear Mr. President, I write to express my strong opposition to efforts 
by your administration to circumvent the U.S. Congress and the Senate's 
constitutional role by promoting ratification of the Comprehensive Test 
Ban Treaty (CTBT) at the United Nations. The Senate could not have been 
more straightforward in its opposition to U.S. ratification of the CTBT 
with 51 members of the Senate voting against ratification in 1999. The 
U.S. Constitution clearly provides the Senate--not the United Nations--
the right to the provision of advice and consent for the ratification 
of any treaty, including the ability to identify when a treaty or the 
application of the provisions contained in a treaty is not in the U.S. 
interest.
    Your administration seeks to ignore the judgment made by a co-equal 
branch of government regarding the treaty. Following the defeat of the 
CTBT, the Executive Branch came into line with the Senate's view 
through a 2007 Statement of Administration Policy that ``[i]t would be 
imprudent to tie the hands of a future administration that may have to 
conduct a test'' and Secretary Condoleezza Rice stated that ``the 
Administration does not support the Comprehensive Test Ban Treaty and 
does not intend to seek Senate advice and consent to its 
ratification.'' The planned U.N. effort would reverse course on that 
shared understanding between the Senate and Executive Branch.
    A recent State Department letter explains that the administration 
will support ratification of the CTBT through a resolution in the U.N. 
Security Council and a ``political statement expressing the view that a 
nuclear test would defeat the object and purpose of the CTBT'' that 
will be referenced in the U.N. resolution. A political statement 
invoking the ``object and purpose'' language could trigger a limitation 
on the ability of future administrations to conduct nuclear weapons 
tests. ``Object and purpose'' obligations for countries that have 
signed and not ratified a treaty are specifically articulated in 
Article 18 of the Vienna Convention on the Law of Treaties, which the 
United States also has not ratified; but they have been recognized by 
successive U.S. administrations as customary international law that 
present a binding restriction on the United States.
    By signing onto language declaring avoidance of nuclear weapons 
testing to be essential to the ``object and purpose'' of the CTBT, the 
State Department is in effect submitting the United States to the 
restrictions of a treaty that has not entered into force. Regardless of 
one's view about the necessity of nuclear testing, seeking to limit a 
future administration through a customary international law mechanism, 
when your administration has only four months left in office, is 
inappropriate. The appropriate mechanism would be to have sought and 
fought for ratification of the treaty. Should your administration have 
a different view about the planned actions' effect on customary 
international law, I would appreciate knowing that.
    Support for the constitutional division of powers and the U.S. 
ability to make decisions about our own best interests in carrying out 
foreign policy demands a rethinking of any effort to pass a resolution 
and issue political statements in the United Nations that could impose 
international legal restrictions on the U. S. nuclear deterrent 
capability without first obtaining the advice and consent of the 
Senate.


    Sincerely,
                                 Hon. Bob Corker, Chairman,
                        U.S. Senate Committee on Foreign Relations.


cc:
Hon. John Kerry, Secretary, U.S. Department of State
Hon. Samantha Power, U.S. Permanent Representative to the United 
Nations


                               __________

                Secretary of State John Kerry's Response
           to Senator Bob Corker's Letter of August 12, 2016


                                  U.S. Department of State,
                                 Washington, DC, September 7, 2016.
Hon. Bob Corker, Chairman,
Committee on Foreign Relations,
U.S. Senate, Washington, DC 20510


    Dear Mr. Chairman, this letter addresses steps the administration 
is taking on the subject of the Comprehensive Test Ban Treaty (CTBT).
    The administration fully respects the Senate's constitutional role 
in treaty ratification and the actions currently being considered at 
the United Nations are consistent with that role. We remain committed 
to securing the Senate' s advice and consent to U.S. ratification of 
CTBT, the entry into force of which would result in a durable, legally 
binding test ban and bring into full force the treaty's vital 
verification mechanisms. The actions we are pursuing with the Nuclear 
Non-Proliferation Treaty (NPT) nuclear-weapon states and separately in 
the United Nations Security Council are in no way a substitute for 
entry into force of the treaty. As you know, the President made CTBT 
ratification a U.S. priority in his 2009 Prague speech and I have also 
been clear on this point. Although the policy of the last 
Administration was not to pursue U.S. ratification of the CTBT, that 
has not been the current Administration's policy.
    We are not proposing and will not support the adoption of a UN 
Security Council Resolution (UNSCR) imposing a legally binding 
prohibition on nuclear testing. Rather, we are pursuing a political 
statement of the NPT's nuclear-weapon states, all of whom are CTBT 
signatories, affirming their view that a nuclear test would defeat the 
object and purpose of the CTBT. As a matter of international law, 
treaty signatories are obliged to refrain from acts which would defeat 
the object and purpose of a treaty, unless they make their intention 
clear not to become a party to the treaty. A future Administration 
could make clear that the United States no longer intends to become a 
party to the treaty, in which case the United States would no longer 
have such obligations. This is a well-established principle of treaty 
law and is consistent with the constitutional role of the Senate in 
U.S. treaty practice.
    The Resolution we propose would take note of this political 
statement by the NPT's nuclear-weapon states; it would not impose that 
view as a legal matter, or place any other legal prohibition on nuclear 
testing on UN member states. At the same time, such a statement could 
encourage other countries that have not yet signed or ratified the CTBT 
to take steps to do so. The proposed Resolution also seeks to reinforce 
the existing moratoria on nuclear testing and strengthen the CTBT's 
verification regime.
    The UNSCR text is evolving as our consultations proceed, but I want 
to assure you that it will not cite Chapter VII of the U.N. Charter or 
impose Chapter VII obligations. It will be a non-binding resolution 
that advances our interests by affirming the existing nuclear testing 
moratoria, while highlighting support for the CTBT and its verification 
regime. These goals are widely shared, including among our closest 
treaty allies, all of whom ratified the CTBT years ago. I am committed 
to keeping you informed of the progress of the discussions on the 
Resolution.
    This Administration considers U.S. ratification of the CTBT to be 
strongly in our national security interest. We continue to welcome a 
full and substantive discussion on the Treaty's technical, military and 
political merits with Congress and with the American public. As it has 
been seventeen years since the Senate vote on the Treaty, we believe 
that ratification should not be rushed. We have no doubt that the 
nation would be best served by expanding the discussion on why the 
CTBT's global ban on nuclear explosive testing, which would expand on 
the Limited Test Ban Treaty that was approved by the Senate over 50 
years ago, is in the national security interest of the United States.
    I hope this information proves helpful and stand ready to discuss 
it at any time.


    Sincerely,
                                                John Kerry,
                                                Secretary of State.


                               __________

           Letter to Senator Bob Corker From Julia Frifield, 
          Assistant Secretary of State for Legislative Affairs


                         United States Department of State,
                                 Washington, DC, September 7, 2016.
Hon. Bob Corker, Chairman,
Committee on Foreign Relations,
U.S. Senate, Washington, DC 20510


Dear Mr. Chairman, per your phone conversation with Ambassador Power of 
August 4, the Administration wishes to make clear the following:
    The United States is not proposing and will not support the 
adoption of a UN Security Council Resolution (UNSCR) imposing a legally 
binding prohibition on nuclear testing. Rather, the resolution we 
envision would reaffirm the existing testing moratoria, which have 
become a de facto standard of responsible international behavior that 
only North Korea is ignoring. We seek a resolution that will also 
reinforce support for the Comprehensive Nuclear-Test-Ban Treaty (CTBT) 
Organization (CTBTO) and the Treaty's verification system, including by 
facilitating reporting on States' CTBTO financial contributions and 
efforts to build out the verification system.
    In parallel to the UNSCR, we have proposed that we, China, France, 
Russia, and the United Kingdom (the five nuclear weapons states under 
the Nuclear Nonproliferation Treaty (NPT)) issue a political statement 
expressing the view that a nuclear test would defeat the object and 
purpose of the CTBT. This statement would make clear our and the other 
P5 members' view that CTBT signatories have an international legal 
obligation not to test unless they make it clear they no longer intend 
to become a party to the CTBT. The UNSCR would take note of this 
political statement made by the P5, but it would not impose that view 
as a legal matter, or any other legal prohibition on nuclear testing, 
on UN member States.
    These actions would not tie the hands of future Administrations, 
which will retain full agency on all matters pertaining to testing. We 
fully respect the Senate's constitutional role in treaty ratification, 
and wish to emphasize that our proposal is absolutely no substitute for 
entry into force of the CTBT, which would result in a durable, legally 
binding test ban and which would bring into full force the treaty's 
vital verification mechanisms.


    Sincerely,
                                            Julia Frifield,
                        Assistant Secretary for Legislative Affairs


                               __________

            Letter from Secretary of State Condoleezza Rice 
                    to Senator Jon Kyl, July 5, 2008


                            The Secretary of State,
                                      Washington, DC, July 5, 2008.
Hon. Jon Kyl,
U.S. Senate, Washington, DC.


Dear Senator Kyl, I am responding on behalf of the Departments of 
State, Defense, Justice, and Energy to your letters of July 17, 2006, 
relating to the Comprehensive Nuclear-Test-Ban Treaty (``the CTBT''), 
as well as your prior letters on that subject.
    As you have noted, the Senate declined to grant its consent to 
ratification of the CTBT on October 13, 1999. Following the Senate's 
action, then-Secretary of State Madeleine Albright made certain 
statements to foreign policy leaders regarding the Clinton 
Administration's policy with respect to U.S. compliance with the CTBT. 
The Bush Administration has taken a fundamentally different approach to 
the CTBT. This Administration has stated that it does not intend to 
request another vote from the Senate seeking advice and consent to 
ratification of the treaty, and this Administration has clearly 
expressed to the United Nations and foreign governments that the United 
States does not intend to become a party to the treaty.
    At the August 2001 meeting of the Preparatory Commission for the 
CTBT, at which all signatories to the CTBT were represented, the U.S. 
representative said in an opening plenary statement that the United 
States ``has no plans to reconsider the CTBT for ratification.''
    Furthermore, in a speech before the First (Disarmament) Committee 
of the United Nations General Assembly on October 7, 2003, then-
Assistant Secretary of State for Arms Control Stephen G. Rademaker 
stated that ``the United States maintains its current moratorium on 
nuclear explosive testing. That having been said, the United States 
does not support the Comprehensive Nuclear-Test-Ban Treaty, and will 
not become a Party to it.'' The position taken at the Second Session of 
the Preparatory Committee for the 2005 NPT Review Conference, held in 
Geneva from April 28 to May 9, 2003, also reaffirmed this position; it 
was here that the U.S. Representative said, ``[t]he United States 
Administration does not support the CTBT and does not plan to proceed 
with ratification.'' In addition, the May 2, 2003, Information Paper 
from the United States concerning Article VI of the NPT (provided tot 
he Second Session of the Preparatory Committee for the 2005 NPT Review 
Conference) stated, ``the United States will not pursue ratification of 
the CTBT.''
    Most recently, in a statement delivered at the 2005 Review 
Conference of the Parties to the Treaty on the Non-Proliferation of 
Nuclear Weapons (NPT), held in New York, May 2-27, 2005, the 
U.S.Representative to the Conference on Disarmament in Geneva and 
Special Representative of the President for Nuclear Non-Proliferation, 
Ambassador Jackie Sanders, stated, ``the United States does not support 
the [CTBT], and will not become a party to it.''
    Responses to your specific questions are enclosed.
    I hope that this letter clarifies this Administration's position on 
the CTBT and resolves the issues that you raised in your letter.


    Sincerely,
                                           Condoleeza Rice,
                                                Secretary of State.


                               __________

              Secretary Rice's Response to Senator Kyl's 
                 Questions of July 17, 2006 on the CTBT


    Question 1.  Whether Secretary Albright's 1999 assurances regarding 
U.S. obligations under the Comprehensive Nuclear-Test-Ban Treaty are 
consistent with the current policy of the United States.

    Answer. No. As noted above, the assurances provided by former 
Secretary Albright to foreign governments regarding the CTBT are not 
consistent with the policy of this administration, and this has been 
repeatedly (and authoritatively) stated in international fora. 
Specifically, Secretary Albright expressed the hope and intention that 
the United States would become a party to the treaty in the future, but 
this administration has made clear that the United States does not 
intend to become a party to the CTBT.


    Question 2.  If the assurances are not consistent with U.S. policy, 
a description of the steps taken by the President to communicate to the 
foreign governments that received these assurances that they are no 
longer operative.

    Answer. The principal occasions on which the Bush administration 
has clearly communicated to all governments its position on the CTBT, 
namely, that the United States does not intend to become a party, are 
set forth in the enclosed letter from Secretary Rice to Senator Kyl. 
These were clear statements that the United States does not intend to 
become a party to the CTBT. These statements made clear that the United 
States does not support entry into force of the CTBT.


    Question 3.  If the assurances are not consistent with U.S. policy, 
whether the President has provided written notice of this fact to the 
foreign governments that received them.

    Answer. As noted above, the United States circulated a written 
Information Paper on May 2, 2003 to the Second Session of the 
Preparatory Committee for the 2005 NPT Review Conference, and the text 
of the U.S. statement at the U.N. General Assembly on October 7, 2003, 
is set forth in the Official Records of that meeting.


    Question 4.  Whether the President agrees with the 1999 statement 
by Secretary Albright in the assurances letter that the Comprehensive 
Nuclear-Test-Ban Treaty imposes on the United States continuing 
``obligations as signatory under international law,'' irrespective of 
the October 13, 1999 rejection of the treaty bythe Senate.

    Answer. No. As noted above, the Bush administration has made its 
position on the CTBT clear. We do not believe the treaty imposes any 
current obligation on the United States resulting from U.S. signature 
in 1996, and we do not consider the United States to have obligations 
under international law as a signatory to the treaty.


    Question 5.  If the President believes that the Comprehensive 
Nuclear-Test-Ban Treaty does not impose on the United States continuing 
obligations as a signatory under international law,


   whether the President believes that the statement that such 
        obligations existed was erroneous; and

   if not, a description of the steps taken by the President 
        to terminate the obligations that existed in 1999 when the 
        assurances letter was sent.

    Answer. Irrespective of the position stated in the 1999 letter, we 
do not believe that the treaty imposes any current obligation on the 
United States resulting from U.S. signature in 1996. The various 
communications by the Bush administration to representatives of foreign 
governments are described in the text above and in response to Question 
3.


    Question 6.  If the President believes that the Comprehensive 
Nuclear-Test-Ban Treaty does impose on the United States continuing 
obligations as a signatory under international law, a description of 
the nature and extent of such obligations.

    Answer. As stated in response to Question 4, the United States has 
not consented to be bound under international law to the CTBT and we do 
not believe the treaty imposes any current obligation oh the United 
States resulting from U.S. signature in 1996.


    Question 7.  Whether, as a matter of international law, the United 
States is, at present, a signatory to the Comprehensive Nuclear-Test-
Ban Treaty.

    Answer. There is a distinction under international law between 
whether a State is a ``signatory'' to a particular treaty and whether 
that State has any obligation by virtue of having signed that treaty. 
In this case, the United States signed the treaty during the prior 
administration. As noted above, however, we have since clearly 
expressed the U.S. intention not to become a party to the CTBT. As 
noted above, the United States does not have any obligations under 
international law as a signatory to the CTBT.


    Question 8.  Whether the official list of signatories of the 
Comprehensive Nuclear-Test-Ban Treaty maintained by the depository of 
the treaty accurately reflects whether the United States is still a 
signatory of the Treaty.

    Answer. As noted in the answer to Question 7, there is a 
distinction under international law between whether a State is a 
``signatory'' to a particular treaty and whether that State has any 
obligations by virtue of having signed that treaty. In its capacity as 
depositary, the United Nations treaty office has simply recorded the 
fact that the United States signed the CTBT on September 24, 1996. 
That, of course, is correct as a matter of historical record. This, 
however, has no effect on whether the United States has any current 
obligations resulting from that fact, and it has no effect on U.S. 
conduct or policy.


    Question 9.  Whether the President has a constitutional duty to 
ensure that U.S. international legal obligations conform with domestic 
legislation subsequently enacted that is inconsistent with such 
obligations, and whether any such duty extends to reconciling or 
changing internationally maintained records that purport to reflect the 
official status of the United States as the signatory of a treaty that 
has been rejected by the Senate and is no longer supported by the 
President.

    Answer. As noted above, the United States has no international 
legal obligations resulting from the 1996 signature of the CTBT, and we 
do not believe that such obligations would arise unless the treaty was 
to be ratified by the United States. We do not believe that either the 
Constitution or international law would require the United States to 
seek to change the records in the U.N. treaty office.


                               __________

        Statement for the Record Submitted by Senator Tom Udall

    I welcome this discussion on the Comprehensive Test Ban Treaty. The 
treaty is important to reach international nonproliferation goals. I 
believe the United States should ratify it. And I'm disappointed that 
we haven't been able to have a serious conversation . or even a hearing 
. about ratification.
    Every administration since President Clinton has observed the 
moratorium on testing. And I am proud that the science-based work 
behind the life extension program at New Mexico's national security 
labs . has made a moratorium on testing possible.
    In the absence of testing, the labs have carried out science-based 
efforts to maintain the weapons stockpile safely and securely. This 
work has also increased our understanding of physics and other 
sciences..while giving our top scientists and engineers the ability to 
apply these efforts to other national security interests.
    I have seen our top scientists at work at Los Alamos and Sandia 
labs. And I say to anyone who questions this program: I would be happy 
to host you in New Mexico, at Los Alamos and Sandia, Lawrence Livermore 
or Oak Ridge so that you can see for yourselves how the stockpile 
stewardship program has improved national security.
    And if any senator here wishes to resume detonating nuclear 
warheads for testing purposes, I would ask: Will your state volunteer 
for such testing? New Mexico has been a site for testing. Victims of 
the Trinity Test in Tularosa live with a legacy of illnesses. Families 
in Northern New Mexico lost fathers, brothers and uncles to nuclear 
bomb making. I am still fighting to help them--and other New Mexicans 
who were victims of nuclear testing. My guess is that you--and your 
constituents--would be strongly opposed to new testing in their 
backyards.
    That is one of many reasons I am such a strong supporter of the 
life extension projects that are currently being undertaken at the 
labs. These programs have proven that we can maintain our deterrent 
without the dangerous impacts of testing.
    And I would strongly urge my colleagues to see the connection 
between the two and support the life extension programs in the budget 
process.
    Regarding the question at hand. I believe that there is no legal 
reason or constitutional impediment for the President to support in the 
Security Council..a nonbinding resolution which calls on member states 
to abide by the CTBT and not conduct a nuclear test.


                               __________

 Michael Krepon's Response to Questions Submitted by Senator Tom Udall

Comprehensive Test Ban Treaty
    Question 1.  Would you agree that working to limit and ban the 
testing of nuclear weapons is a step towards maintaining international 
peace?

    Answer. Banning nuclear test explosions can help reduce the 
salience of nuclear weapons in international relations, and it can 
remove one important contributing factor to horizontal and vertical 
proliferation. In this sense, banning tests contributes to 
international peace. But there are other contributing factors to 
warfare that will not be affected by a ban on testing, as useful as 
this would be.
U.S. Senate implementing legislation
    Question 2.  In addition to the U.N. Charter, the U.S. Senate also 
passed implementing legislation, the United Nations Participation Act. 
The language is clear, it states that our representative ``shall, at 
all times, act in accordance with the instructions of the President'' 
and shall ``in accordance with such instructions, cast any and all 
votes under the Charter of the United Nations.'' Would you agree that 
this sounds like a pretty straightforward authorization for the 
President to negotiate a resolution such as the CTBT?

    Answer. Yes. Presidents have gone to U.N. Security Council to 
reduce nuclear dangers previously. President George W. Bush has done so 
more than President Obama. I see no grounds to claim that the Senate's 
prerogatives are being infringed upon by negotiating a non-binding 
resolution that imposes no new obligations on the United States.
Lawfare blog article
    Question 3.  In order to move this discussion along, I would like 
to ask unanimous consent that an article by Jack Goldsmith, a Harvard 
professor and cofounder of the Lawfare blog, be submitted for the 
record. In his piece, Mr. Goldsmith concludes ``Congress is complaining 
about the President circumventing its prerogatives . when in fact, the 
President is exercising authority that Congress gave him.'' Mr. Krepon, 
would you agree with this statement?

    Answer. Yes, I would agree.

      

                Quick Reactions to Obama's U.N. Gambit 
                 on Nuclear Testing, by Jack Goldsmith

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