Obama Submits NWFZ Protocols to Senate

Alfred Nurja

President Barack Obama on May 3 transmitted to the Senate the protocols to the Pelindaba and Rarotonga nuclear-weapon-free-zone (NWFZ) treaties, the regional pacts that ban testing, acquisition, and development of nuclear weapons in Africa and the South Pacific.

Once ratified, the protocols “will extend the policy of the United States not to use or threaten use of nuclear weapons against regional zone parties” that are members of the nuclear Nonproliferation Treaty (NPT) and are “in good standing with their non-proliferation obligations,” a White House press release said.

In his transmittal letter, Obama said the protocols’ entry into force would require “no changes in U.S. law, policy or practice.”

However, the submittal drew criticism from Senate Minority Whip Jon Kyl (R-Ariz.). “I am deeply troubled that President Obama is attempting to codify by international agreement his flawed nuclear weapons declaratory policy, which would limit the instances in which the President would use nuclear weapons to defend the United States and its allies from attack,” Kyl said in a May 5 press release.

He was referring to the administration’s April 2010 “Nuclear Posture Review [NPR] Report,” which stated that the United States “will not use or threaten to use nuclear weapons against non-nuclear weapons states that are party to the NPT and in compliance with their nuclear non-proliferation obligations.”

The NPR report revised a previous policy under which the United States had said that it reserved the right to use nuclear weapons in response to an attack using biological and chemical weapons, even if the attack came from a non-nuclear-weapon state. Advances in U.S. military capabilities allow the United States to forgo the option of a nuclear response in such situations, the NPR found.

In a May 18 e-mail to Arms Control Today, Special Representative of the President for Nuclear Nonproliferation Susan Burk said ratification of the protocols “will not disturb existing security arrangements or impinge upon U.S. military operations, installations, or activities. The Department of Defense, including the Joint Staff, was fully engaged throughout our review process and agrees with these conclusions.”

NWFZ treaties provide for protocols to be signed by the countries that the NPT recognizes as nuclear-weapon states: China, France, Russia, the United Kingdom, and the United States. Under these instruments, the nuclear-weapon states assume legal obligations not to use nuclear weapons against members of the zone, conduct nuclear tests in the treaty’s zone of application, or take any other action that violates its terms. The United States is the only country out of the five that has yet to ratify the protocols to the two treaties.

Russia had delayed ratification of the protocols to the Pelindaba treaty as it sought clarification as to whether the treaty applied to the island of Diego Garcia, a British possession that Mauritius, a party to the treaty, claims. The United States, which operates a major military base in Diego Garcia, recognizes British sovereignty over the island.

“Diego Garcia is not part of the ‘territory’ of the zone as defined by the Treaty,” said an article-by-article overview of the treaty prepared by the U.S. Department of State. Russia ratified the Pelindaba treaty protocols in March 2011 with a reservation that its obligations would not apply to Diego Garcia.

Kyl’s statement also criticized Obama for seeking ratification of two treaties that do not “address the illegal nuclear weapons program of Iran and North Korea” and urged the Senate not to consider the protocols “until the President shows he is serious about stopping” those programs. “[B]eyond the implications of these two treaties, this latest action is more proof that the President’s nuclear policy priorities are deeply flawed,” Kyl said.

Asked to comment on that point, Burk said, “We agree that addressing the threats posed by the nuclear programs of Iran and North Korea [is a] fundamental nonproliferation priorit[y]. The comprehensive set of policies this Administration has adopted over the past two years with respect to Iran and North Korea, especially expanding pressure through strengthened multilateral sanctions, should leave no doubt as to the seriousness of our commitment.”

Burk added, “But our nonproliferation work does not stop there. Rather it requires that we build greater political support for efforts to strengthen the nonproliferation regime.”

Both treaties allow parties to decide for themselves whether to allow nuclear-armed ships and aircraft to visit or transit their territory. The treaties “explicitly uphold the freedom of the seas, and do not affect rights to passage, guaranteed by international law, through territorial waters,” the State Department overview said.

Under President Bill Clinton, the United States signed the protocols to the Pelindaba and Rarotonga treaties in 1996, but the protocols had never been submitted to the Senate. Secretary of State Hillary Rodham Clinton announced at the 2010 NPT Review Conference that the Obama administration would submit the protocols for Senate approval. The protocols are considered treaties and therefore would need a two-thirds Senate majority in support of ratification.

The Obama administration “looks forward to consulting with the Senate to decide the timing of consideration” of the protocols, Burk said in the e-mail.

The Rarotonga treaty, which covers Australia, New Zealand, and other, smaller South Pacific island-states, entered into force in December 1986. Under a separate protocol to this treaty, submitted along with the others to the Senate, the United States is to refrain from stationing or testing nuclear weapons in the U.S. territories of American Samoa and Jarvis Island.

The Pelindaba treaty, which encompasses all African Union states plus Morocco, entered into force in July 2009. (See ACT, September 2009.) Twenty-two signatories have yet to ratify the treaty with some African members of the Arab League, including Egypt, linking ratification with progress toward the establishment of a nuclear-weapon-free zone in the Middle East.