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I salute the Arms Control Association … for its keen vision of the goals ahead and for its many efforts to identify and to promote practical measures that are so vitally needed to achieve them. -

– Amb. Nobuyasu Abe
Former UN Undersecretary General for Disarmament Affairs
January 28, 2004
Issue Briefs

Congress Puts Bipartisan Arms Control Policies at Risk

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The House and Senate Armed Services Committee are currently considering defense authorization legislation that if passed into law would deal a major, if not mortal, blow to longstanding, bipartisan arms control efforts.

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Volume 9, Issue 5, July 17, 2017

The future of U.S. nuclear weapons and missile defense policy is at a crossroads. The Trump administration is conducting comprehensive reviews—scheduled to be completed by the end of the year—that could result in significant changes to U.S. policy to reducing nuclear weapons risks.

As the possessors of over 90 percent of the world's roughly 15,000 nuclear weapons, the United States and Russia have a special responsibility to avoid direct conflict and reduce nuclear risks. Yet, the U.S.-Russia relationship is under significant strain, due to to Moscow’s election interference, annexation of Crimea, continued destabilization of Ukraine, and support for the brutal Assad regime in Syria. These tensions have also put put immense pressure on the arms control relationship.

It is against this backdrop that the House and Senate Armed Services Committee versions of the Fiscal Year (FY) 2018 National Defense Authorization Act (NDAA) include provisions that if passed into law would deal a major, if not mortal, blow to longstanding, bipartisan arms control efforts.

The House approved its version of the NDAA July 14 by a vote of 344-81 and the Senate could take up its bill later this month. 

The problematic arms control provisions in the bills would undermine U.S. security by eroding stability between the world's two largest nuclear powers, increasing the risks of nuclear competition, and further alienating allies already unsettled by President Donald Trump’s commitment to their security. In fact, some are so radical that they have even drawn opposition from the White House and Defense Department.

The bills also fail to provide effective oversight of the rising costs of the government’s more than $1 trillion-plan to sustain and upgrade U.S. nuclear forces and propose investments in expanding U.S. missile defenses that make neither strategic, technical, or fiscal sense.

Sowing the Seeds of the INF Treaty’s Destruction

The United States has accused Russia of testing and deploying ground-launched cruise missiles (GLCMs) in violation of the 1987 Intermediate-Range Nuclear Forces (INF) Treaty. The treaty, which remains in force, required the United States and the then-Soviet Union to eliminate and permanently forswear all their nuclear and conventional ground-launched ballistic and cruise missiles with ranges of 500 to 5,500 kilometers.

Both the House and Senate versions of the NDAA authorize programs of record and provide funding for research and development on a new U.S. road-mobile GLCM with a range of between 500 and 5,500 kilometers. The House bill requires development of a conventional missile whereas the Senate bill would authorize a dual-capable (i.e., nuclear) missile.

The House bill also includes a provision stating that if the president determines that Russia remains in violation of the treaty 15 months after enactment of the legislation, the prohibitions set forth in the treaty will no longer be binding on the United States. A similar provision could be offered as an amendment to the Senate bill.

These provisions are drawn from legislation introduced in February by Sen. Tom Cotton (R-Ark.) in the Senate and Rep. Mike Rogers (R-Ala.) in the House to “provide for compliance enforcement regarding Russian violations” of the INF Treaty.

Development of a new treaty-prohibited GLCM is militarily unnecessary, would suck funding from other military programs for which there are already requirements, divide NATO, and give Russia an easy excuse to publicly repudiate the treaty and deploy large numbers of noncompliant missiles without any constraints.

The report accompanying the Senate bill notes that the Senate “does not intend for the United States to enter into violation of the INF Treaty.” (The treaty does not ban research and development of treaty-prohibited capabilities.) But this claim is belied by the report’s statement that development of a GLCM is needed to “close the capability gap opened” by Russia. Moreover, supporters of a new GLCM also argue it is needed to counter China, which is not a party to the treaty.

Before rushing to develop a new weapon that the Pentagon has yet to ask for and NATO is unlikely to support, the administration and Congress must at the very least address concerns about the suitability and cost-effectiveness of a new GLCM. Rep. Earl Blumenauer (D-Ore.) offered an amendment to the bill on the House floor that would have done just that, but it was defeated by a vote of 173-249.

Meanwhile, mandating that the United States in effect withdraw from the treaty if Russia does not return to compliance by the end of next year raises constitutional concerns. If Congress can say the United States is not bound by its obligations under the INF Treaty, what is to stop it from doing the same regarding other treaties?

The administration's statement of policy on the House NDAA objected to the House INF provision on requiring a new GLCM, stating "[t]his provision unhelpfully ties the Administration to a specific missile system, which would limit potential military response options.” The statement also noted that bill would “raise concerns among NATO allies and could deprive the Administration of the flexibility to make judgments about the timing and nature of invoking our legal remedies under the treaty.”

Instead of responding to Russia’s violation by taking steps that could leave the United States holding the bag for the INF treaty’s demise, Congress should emphasize the importance of preserving the treaty and encourage both sides to more energetically pursue a diplomatic resolution to the compliance controversy. Lawmakers should also encourage the Trump administration to pursue firm but measured steps to ensure Russia does not gain a military advantage by violating the treaty and reaffirm its commitment to the defense of those allies that would be the potential targets of Russia’s noncompliant missile.

Cutting Off Our Nose to Spite Our Face on New START

One of the few remaining bright spots in the U.S.-Russia relationship is 2010 New Strategic Arms Reduction Treaty (New START). Signed in 2010, the treaty requires each side to reduce its deployed strategic nuclear forces to no more than 1,550 warheads and 700 delivery systems by 2018. It also includes a comprehensive suite of monitoring and verification provisions that help ensure compliance with these limits.

The agreement, which is slated to expire Feb. 5, 2021, can be extended by up to five years if both Moscow and Washington agree.  The House bill includes a provision that would prohibit the use of funds to extend New START until Russia returns to compliance with the INF treaty. This is senseless and counterproductive. By “punishing” Russia’s INF violation in this way, the United States would simply free Russia to expand the number of strategic nuclear weapons pointed at the United States after New START expires in 2021.

If the treaty is allowed to lapse, there will be no limits on Russia’s strategic nuclear forces for the first time since the early-1970s. Moreover, the United States would have fewer tools with which to verify the size and composition of the Russian nuclear stockpile.

For these reasons and more, the U.S. military and U.S. allies continue to strongly support New START.

Undermining the Norm Against Nuclear Testing

A small but influential group of Republican lawmakers are seeking to cut U.S. funding for the Comprehensive Test Ban Treaty Organization (CTBTO) and undermine international support for the Comprehensive Test Ban Treaty (CTBT) and the global nuclear test moratorium.

Sen. Cotton and Rep. Joe Wilson (R-S.C.) introduced legislation on Feb.7 to “restrict” funding for the CTBTO and undermine the U.S. obligation – as a signatory to the 1996 Comprehensive Test Ban Treaty – not to conduct nuclear test explosions.

Rep. Wilson successfully offered the bill as an amendment to the House NDAA and Sen. Cotton could seek to do the same on the Senate bill.

With North Korea threatening to conduct a sixth nuclear test explosion, it is essential that the United States reinforce, not weaken, the global nuclear testing taboo

More information on the problematic provision in the House bill is detailed in a recent issue brief on CTBTO funding.

Nuclear Weapons Spending Run Amok

The Trump administration’s first Congressional budget request pushes full steam ahead with the Obama administration’s excessive, all-of-the-above approach to upgrading the U.S. nuclear arsenal. Both the House and Senate bills authorize the requested level of funding for these programs, and even increase funding for some programs beyond what the Trump administration requested.

As the projected costs for programs designed to replace and upgrade the nuclear arsenal continue to rise, Congress must demand greater transparency about long-term costs, strengthen oversight over high-risk programs, and consider options to delay, curtail, or cancel programs to save taxpayer dollars while meeting deterrence requirements.

A February 2017 Congressional Budget Office (CBO) report estimates that the United States will spend $400 billion (in then-year dollars) on nuclear weapons between fiscal years 2017 and 2026. The new projection is an increase of $52 billion, or 15 percent, over the CBO’s most recent previous estimate of the 10-year cost of nuclear forces, which was published in January 2015 and put the total cost at $348 billion.

In fact, the CBO’s latest projection suggest that the cost of nuclear forces could greatly exceed $1 trillion over the next 30 years.

What makes the growing cost to sustain the nuclear mission so worrisome for military planners is that costs are scheduled to peak during the mid-2020s and overlap with large increases in projected spending on conventional weapon system modernization programs. Numerous Pentagon officials and outside experts have warned about the affordability problem posed by the current approach and that it cannot be sustained without significant and sustained increases to defense spending or cuts to other military priorities.

Unfortunately, the House rejected two Democratic floor amendments that would have shed greater light on the multidecade costs of U.S. nuclear forces. One amendment would have required CBO to extend the timeframe of its biennial report on the cost of nuclear weapons from 10 years to 30 years. Another would have required extending the timeframe of a Congressionally mandated report submitted annually by Defense Department and National Nuclear Security Administration from 10 years to 25 years.

In addition, the House defeated by a vote of 169-254 an amendment offered by Rep. Blumenauer that would have restricted funding for the program to develop a new fleet of nuclear air-launched cruise missiles at the FY 2017 enacted level until the administration completes its Nuclear Posture Review and a detailed assessment of the need for the program.

Though the administration requested a major increase for the new missile and associated warhead refurbishment program in FY 2018, Defense Secretary James Mattis has repeatedly stated that he is still evaluating the need for the weapon.

The House Rules Committee also prevented debate on a floor amendment that would have required the Pentagon to release the value of the contract awarded to Northrop Grumman Corp. in October 2015. The department has refused to release the contract value citing classification concerns.

Tripling-Down on Missile Defense Despite Technical Flaws

Both the House and Senate bills authorize significant increases in funding for U.S. ballistic missile defense programs. The House bill authorizes an increase of $2.5 billion above the administration’s FY 2018 budget request of $7.9 billion for the Missile Defense Agency. The Senate bill authorizes a $630 million increase.

The bills also include provisions that would authorize a significant expansion of the ground-based midcourse (GMD) defense system in Alaska and California, which is designed to protect against limited long-range ballistic missile attacks from North Korea or Iran, and accelerate advanced technology programs to increase the capability of U.S. missile defenses. The GMD system has suffered from numerous reliability problems and has a success rate of just over 50 percent in controlled and scripted flight intercept tests.

In addition, the House bill includes a provision that would require the Pentagon to submit a plan for the development of a space-based missile defense interceptors and authorize $30 million for a space test bed to conduct research and development on such interceptors. The House bill would also require the Pentagon, pursuant to improving the defense of Hawaii, to conduct an intercept test of the Standard Missile-3 (SM-3) Block IIA missile against an intercontinental ballistic missile (ICBM) target. The interceptor, which is still under development, is designed to defend against medium- and intermediate-range ballistic missiles and the department has no public plans to test it versus an ICBM.

Rushing to deploy more unreliable GMD interceptors or building additional long-range interceptor sites is not a winning strategy to stay ahead of the North Korean ICBM threat. Quantity is not a substitute for quality.

Any consideration of building and deploying additional homeland interceptors or interceptor sites should wait until a new ground-based midcourse defense kill vehicle under development is successfully tested under operationally realistic conditions (including against ICBM targets and realistic countermeasures). The first test of the new kill vehicle under these conditions is not scheduled until 2020 and deployment is not scheduled until 2022.

In addition, future testing and deployment of new capabilities should not be schedule-driven, but based on the maturity of the technology and successful testing under operationally realistic conditions. Accelerating development programs risks saddling them with cost overruns, schedule delays, and test failures, as has been the case with previous missile-defense programs.

Despite numerous nonpartisan studies that have been conducted during both Republican and Democratic administrations which concluded that a spaced-based missile defense is unfeasible and unaffordable, a small faction of missile defense supporters continues to push the idea. Most recently, a 2012 report from the National Academy of Sciences declared that even a limited space system geared to longer-burning liquid fueled threats would cost about $200 billion to acquire and have a $300 billion 20-year life cycle cost (in FY 2010 dollars), which would be at least 10 times any other defense approach. 

While missile defense has a role to play as part of a comprehensive strategy to combat the North Korean missile threat, it’s neither as capable nor as significant as many seem to hope. More realism is needed about the limitations of defenses and the longstanding obstacles that have prevented them from working as intended.

The potential blowback of an expansion of U.S. missile defense capabilities from Russia and China must also be considered. Missile defense does not provide an escape route from the vulnerability of our allies, deployed forces, and citizens in the region to North Korea’s nuclear and conventional missiles.—KINGSTON REIF, director for disarmament policy

Amendment on CTBTO Funding Would Undermine Global Test Ban

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Sen. Tom Cotton (R-Ark.) and Rep. Joe Wilson (R-S.C.) introduced legislation on Feb.7 to “restrict” funding for the CTBTO. The bill will be offered as a floor amendment by Wilson to the House version of the National Defense Authorization Act, which is being considered this week.

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Volume 9, Issue 4, July 2017

Unfortunately, a small but influential group of Republican lawmakers are seeking to cut U.S. funding for the Comprehensive Test Ban Treaty Organization (CTBTO) and undermine international support for the Comprehensive Test Ban Treaty (CTBT) and the global nuclear test moratorium.

Sen. Tom Cotton (R-Ark.) and Rep. Joe Wilson (R-S.C.) introduced legislation on Feb.7 to “restrict” funding for the CTBTO.

The House approved the language as an amendment by Wilson to the National Defense Authorization Act; the Senate will consider a similar amendment from Sen. Cotton when it considers the NDAA later this week.*

The amendment purports not to restrict U.S. funding specifically for the CTBTO's International Monitoring System, but in practice any significant reduction in U.S. technical and financial support for the CTBTO would:

  • adversely impact the organization’s ability to operate and maintain existing nuclear test monitoring stations. This is due to the fact that a wide range of organization’s personnel and assets directly or indirectly support the IMS. This includes staff time and technical support for the International Data Centre in Vienna, which processes information provided by IMS operations; and
  • prompt other states to restrict their funding for the CTBTO or possibly withhold data from CTBTO monitoring stations that are based in their territory, thus undermining the capabilities of the system to detect and deter clandestine nuclear testing.

U.S. Secretary of State Rex Tillerson speaks with Italian Foreign Minister Angelino Alfano and European Union High Representative for Foreign Affairs Federica Mogherini during the April 2017 G7 foreign ministers meeting in Italy. [State Department photo/ Public Domain]The Wilson amendment would run counter to the policy position articulated by Secretary of State Rex Tillerson, who joined with his G7 foreign ministerial counterparts to extoll the value of the CTBTO in their April joint communique on nonproliferation and disarmament. They said in part:

We believe that all States should maintain all existing voluntary moratoria on nuclear weapon test explosions or any other nuclear explosion, and those States that have not instituted such moratoria should do so. The verification regime being established by the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization, in particular the International Monitoring System and International Data Centre, has proven its effectiveness by providing substantive and reliable data on the nuclear tests conducted by North Korea. We strongly encourage all interested States to complete the IMS as a matter of priority.

The proposed Wilson amendment also seeks to undermine the U.S. obligation—as a signatory to the 1996 Comprehensive Test Ban Treaty—not to conduct nuclear test explosions. The amendment calls on Congress to declare that the September 2016 UN Security Council Resolution 2310 does not “obligate…nor does it impose an obligation on the United States to refrain from actions that would run counter to the object and purpose” of the CTBT, which President Bill Clinton signed in 1996.

Contrary to what the Cotton-Wilson bill implies, Resolution 2310 (which was endorsed by 42 states, including Israel) does not impose any new obligations on the United States. Rather, it:

  • encourages states to “provide the support required” to the CTBTO and the IMS, and urges states to refrain from nuclear testing and urges those states that have not ratified to do so; and
  • also takes note of a September 15 joint statement by the five permanent Security Council members that formally “recognized” that a nuclear explosion would “defeat the object and purpose of the CTBT.” 

The G7 Foreign Minsters’ April 11 Joint Communique—endorsed by Tillerson—also “recalls" UN Security Council Resolution 2310 as an important contribution to the effort to ensure all states that have signed the CTBT do not go back on their promise not to conduct nuclear weapon test explosions. 

However, if Congress were to assert that the United States is not required to respect our obligations as a CTBT signatory not to conduct nuclear test explosions, it would signal to other states that that the United States may be seeking to back out of its commitment to a global and verifiable nuclear test ban and is considering the resumption of nuclear testing.

That’s not a smart move. With North Korea threatening to conduct a sixth nuclear test explosion, it is essential that the United States reinforce, not undermine, the global nuclear testing taboo

Backing off the United States' historically strong commitment to halting nuclear testing by any country at this time could trigger a dangerous chain reaction by other nuclear-armed states and would run afoul of key U.S. allies who strongly oppose nuclear testing and who support the CTBT. U.S. financial support to the CTBTO is critical to detect and deter nuclear weapons testing and it enhances national and international security—and should not be subjected to the restrictions proposed in the Wilson amendment.—DARYL G. KIMBALL, executive director

*This sentence was updated July 17, 2017 to reflect that the House amendment by Wilson was adopted by a voice vote.

Arms Sales to Saudi Arabia and Bahrain Should be Rejected

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Arms Sales to Saudi Arabia and Bahrain Should be Rejected

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Volume 9, Issue 3, May 2017

President Donald Trump is set to make his first foreign trip as president to the troubled Middle East region. He will meet with King Salman of Saudi Arabia, as well as the members of the Gulf Cooperation Council. The humanitarian crisis in Yemen and the Saudi-led coalition’s war there will certainly be key topics. So too will pending U.S. arms sales to Riyadh and Manama that the Obama administration put on hold but the Trump administration is now pushing through Congress.

Defense Secretary Jim Mattis meets with Saudi Arabia’s King Salman bin Abdulaziz al-Saud in Riyadh, Saudi Arabia, April 19, 2017. DoD photo by U.S. Air Force Tech. Sgt. Brigitte N. BrantleyThe potentially massive Saudi arms sale, involving precision-guided munitions (PGM) worth hundreds of millions of dollars, was suspended by Obama in December, in part due to independent reports that Saudi forces have repeatedly struck civilian areas, including locations the United States asked be off-limits.

The new Saudi arms deal has not yet been formally notified, but it has been sent to the chairs and ranking members of the Senate Foreign Relations Committee and House Foreign Affairs Committee for review. A multi-billion dollar sale of 19 F-16 fighter jets to Bahrain is in a similar pre-notification status and does not include human rights preconditions that the President Barack Obama administration had mandated. Reports suggest an even larger Saudi arms deal, ranging in value from $100-300 billion, may be in the works and discussed while Trump is in the region.

The Trump administration initiative ignores Saudi Arabia’s repeated failure to avoid civilian targets and would compound the growing humanitarian crisis in Yemen that is largely the consequence of the devastating conflict there.

Unfortunately, Secretary of State Rex Tillerson devalued promotion of human rights in an address to his State Department staff on May 3, suggesting that placing an emphasis on others upholding American values “creates obstacles to our ability to advance our national security interests, our economic interests.” Senator John McCain (R-Ariz.), among others, has delivered a passionate rebuttal of this argument.

In addition, there are strong national security and legal reasons why these proposed sales are unwise.

A Deteriorating Disaster in Yemen

The Yemeni rebel movement, the Houthi, seized the capital Sanaa in 2014. Since 2015, the United States has backed a Saudi-led coalition fighting nominally on behalf of exiled president Abed Rabbo Mansour Hadi, often providing refueling for war planes and other support. The coalition has retaken portions of Yemen, including Aden, which Hadi ostensibly uses as a base for his government. But many Yemenis still live in areas outside of Hadi’s control, including in the capital Sanaa. All sides in the conflict have been implicated for violations of international humanitarian law, including the Saudis who have ignored U.S. “no target” lists and bombed hospitals, civilian areas, and funerals in attacks that may amount to war crimes.

The war has also fueled a humanitarian disaster. After two years of fighting, the United Nations launched an appeal early this year on behalf of 18.8 million people who it found needed assistance in Yemen—more than two-thirds of the country’s population. At that time, it warned of a possible famine with 3.3 million people being acutely malnourished.

UN Secretary-General António Guterres painted a chilling picture April 25 of what he called “a tragedy of immense proportions,” noting that “On average, a child under the age of five dies of preventable causes in Yemen every ten minutes.” Now, Houthi leaders in Sanaa have declared a state of emergency after a cholera outbreak that has killed more than 100 people.

The flow of new weapons to states involved in the conflict will only worsen the humanitarian situation. Ignoring UN findings that a military solution is not possible and pleas to unblock access to ports to help address the “largest humanitarian crisis in the world,” the port city of Hodeida is identified as a next target for the Saudi-led coalition. Despite being crippled by earlier strikes and blocked from receiving new cranes for unloading supplies, a significant portion of humanitarian assistance enters the country through the port. An attack there would likely further cut supplies and significantly escalate human suffering.

News of the potential sale of precision-guided munitions as well as an attack on Hodeida have swirled in Congress since at least March, with many members wisely engaging to express concerns about addressing the humanitarian situation, Saudi behavior, and authority for U.S. military action.

Notionally, precision-guided munitions would better enable Saudi forces to avoid civilian casualties, but evidence suggests that munition accuracy is not the primary reason why Saudi forces are hitting civilian targets. During a March 9 Senate Foreign Relations Committee hearing on Yemen, Dafna Rand, a former deputy assistant secretary of state for democracy, human rights, and labor in the Obama administration, testified that despite hopes in 2015 that the Saudi-led coalition would use precision-guided munitions for better targeting, “what we’ve seen since is not an improvement in the targeting and the issue itself is the target selection.

At that same hearing, Sen. Chris Murphy (D-Conn.) criticized Saudi actions. Sen. Rand Paul (R-Ky.) described as “questionable” Saudi commitment to strictly targeting combatants and legitimate military targets.

The two senators led efforts that won the support of 27 senators in a vote against a $1.1 billion tank deal to Riyadh in September 2016. They also drafted legislation last year to suspend certain munitions sales until the U.S. president certifies that the Saudis show commitment to fighting terrorism and to protecting civilians in Yemen. Last month, they introduced similar legislation on air-to-ground munitions, now as S.J.Res 40, with co-sponsors Richard Durbin (D-Ill.) and Al Franken (D-Minn.), who were joined in May by Tammy Baldwin (D-Wisc.), Jeff Merkley (D-Ore.), and Todd Young (R-Ind.).

In a press release associated with the bill’s introduction, Murphy said, “The United States has no business supplying a military that targets civilians or enables terrorist groups to thrive, but that’s exactly what we’re doing right now in Yemen.”

“The Saudis are important partners in the Middle East, but they have continued to disregard our advice when it comes to target selection and civilian protection. We have an obligation to ensure U.S. military support is not being used to kill innocent civilians, and requiring Saudi Arabia to meet these basic conditions should be a no brainer,” Murphy added.

Young has also pressed the administration and the Saudis to resolve the humanitarian crisis in Yemen. On May 5, members of the Senate Foreign Relations Committee met with Saudi Minister of Foreign Affairs Adel Al Jubeir. Afterward, Young issued a statement urging “the Saudi government to renounce any intention to conduct a military operation against the port of Hodeidah, redouble efforts to achieve a diplomatic solution, and end any delays to the delivery of humanitarian aid caused by the Saudi-led coalition.”

Their efforts followed upon a March 23 letter Marco Rubio (R-Flor.), Todd Young (R-Ind.), Ben Cardin (D-Md.), Ed Markey (D-Mass.), Jeanne Shaheen (D-NH), Chris Murphy (D-Conn.), Cory Booker (D-NJ), Chris Coons (D-Del.), Cory Gardner (R-Colo.), and Jeff Flake (R-Ariz.) sent to Tillerson urging action to address humanitarian crises in four countries, including Yemen. Cardin and Young also introduced a resolution calling for such action.

This week Murphy and Young took the Senate floor May 17 to again highlight the urgency of addressing the crisis in Yemen.

In the House, Reps. Ted Lieu (D-Calif.) and John Conyers (D-Mich.) led 53 members in signing a March 13 letter to Secretary of State Rex Tillerson, urging him to use “diplomatic clout” to open the port of Hodeida. Lieu and Conyers were among a bipartisan group of 64 House members who had asked Obama to withdraw the tank deal last year.

The two representatives were also among a bipartisan group of 31 House members who sent an April 6 letter to Secretary of Defense James Mattis and Tillerson requesting an assessment of Saudi capabilities before any new precision-guided munition sale is approved. In the letter, they argued, “It is in our national security interest–as well as that of our Saudi partners–to ensure that the [Royal Saudi Air Force] has the ability to avoid civilian casualties before the United States sells them any additional air-to-ground munitions.”

At a more fundamental level, these members of Congress are challenging the authority for this administration to support the Saudi coalition and possibly engage more directly in the conflict. On April 10, a bipartisan group of 55 representatives, led by Mark Pocan (D-Wis.) and Justin Amash (D-Mich.), sent a letter to Trump and Attorney General Jeff Sessions asking for the legal justification for U.S. involvement in Yemen's war and urging the administration to receive congressional authorization before launching any direct hostilities against the Houthis.

On May 2, they led in sending a follow-up letter from a bipartisan group of 16 representatives to Mattis inviting him to brief Congress of the administration’s plans for Yemen. They wrote: “Should the administration remain unresponsive to our repeated inquiries into the nature of U.S. engagement in a potentially catastrophic Saudi attack on Hodeida, we will pursue legislation to explicitly prohibit U.S. involvement in any such an assault.”

Such a measure would follow up on a new Authorization of Military Use of Force proposed April 27 by Rep. Adam Schiff (D-Calif.) and nine other Democratic representatives that grants authority to combat the Islamic State, Al-Qaeda and the Afghanistan Taliban—by logic excluding the Houthi, who are not affiliated with these groups.

Upholding the Law, Security, and Rights

Members of Congress identified above are raising the right concerns. Looking just at arms sales, Congress may block agreement to a deal if both houses pass a resolution of disapproval in the first 30 days after being notified of a potential arms sale. Strong opposition is rare because notifications typically happen only after interagency approval and consultations with congressional leaders. In this case, however, opposition is clearly lined up and a messy fight is in the offing if (and when) the Trump administration decides to move forward.

Congress should first look to the law and recognize that the provision of arms is generally prohibited when a country engages in a “consistent pattern of gross violations” of recognized human rights. Until it is satisfied that Saudi behavior can and will improve, it should not authorize new sales to the country.

S.J.Res 40 underscores this point on air-to-ground munitions and deserves Congressional support. That bill, if approved, would impact not only the anticipated precision-guided missile sale but also a $1.3 billion deal that went through Congress in November 2015. For the first and only time, Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn.) and ranking member Ben Cardin (D-Md.) invoked a new authority that requires the State Department to notify Congress at least 30 days prior to the delivery of an arms shipment. Congress should continue to monitor possible delivery of munitions from that deal as it looks ahead to a new notification.

As the Hadi government appears to fracture and evidence mounts of it working alongside Al-Qaeda in the Arabian Peninsula (AQAP), congressional leaders must also ask themselves if supporting that regime and doubling-down on U.S. support for Saudi Arabia’s military campaign makes sense for U.S. security goals. It is difficult to see how it does.

Capturing Hodeida will not, as some claim, force the warring parties to the table to negotiate a political settlement. While Iran provides some support, the Houthi are their own masters and practice a form of Shia Islam nearly entirely indigenous to Yemen, but an attack on Hodeida would more likely drive the Houthi closer to Tehran. Furthermore, as long as the United States provides weaponry and assistance to Saudi war-fighting, the Saudis appear to have no incentive to offer a political solution.

In revising U.S. conventional arms transfer policy in January 2014, Obama included the goal of “Ensuring that arms transfers do not contribute to human rights violations or violations of international humanitarian law.” The United States is also a signatory to the landmark Arms Trade Treaty (ATT), which requires consideration of whether transferred arms would be used to commit or facilitate serious violations of international humanitarian or human rights law—measures consistent with U.S. law.

The Trump administration has not yet issued a new arms transfer policy or made a compelling case for abandoning the humanitarian principles of U.S. law and policy.

It would be counterproductive, in fact, to abandon these humanitarian concerns because doing so would only encourage other states to supply arms to groups and countries that support abuse and actions counter to U.S. goals. U.S. actions themselves, even if indirectly through the support of others, help to radicalize individuals against Washington when they are seen as targeting civilians.

Applying Same Standards to Bahrain and UAE

Garnering less attention in Congress thus far has been the pending notification to sell F-16s to Bahrain, a Saudi-coalition partner. In considering such a sale in 2016, the Obama administration attached an undisclosed set of preconditions to encourage the Bahraini government to improve its human rights record. Those conditions likely included the release of human-rights activist Nabeel Rajab and other measures to reverse suppression of nonviolent opposition after the forced closure of the al-Wefaq political party.

Those and many other steps have not been taken. Instead, on Friday the United Nations Committee Against Torture warned of continued ill-treatment of detainees and called on Bahraini authorities to release Rajab, who had been held in solitary confinement for more than nine months. Just as a deal to arm Saudi Arabia with offensive weapons would signal that the United States is unconcerned with how a country addresses human rights, so too would a new F-16 sale to the repressive Bahraini regime.

The national security goals are also unclear. F-16s appear to have little relevance in combating AQAP or the Islamic State. Nor do they further efforts that might resolve problematic Iranian activity.

Further complicating the situation, just last week, Congress was notified of a potential $2 billion sale of Patriot missiles to the United Arab Emirates, whose forces are expected to be in the vanguard of any offensive on Hodeida. Even though that sale would not be of “offensive” weapons, serious concerns about detainee abuse should also give Congress pause as to whether to reward Abu Dhabi.

While there are certainly many challenges in the Middle East, agreeing to arms deals with regimes in Riyadh and Manama that have a record of impunity when conducting airstrikes or suppressing their citizenry runs counter to long-standing U.S. principles and goals.

—JEFF ABRAMSON, nonresident senior fellow 

NOTE: This Issue Brief has been updated to reflect the fact that Houthi fighters seized the capital Sanaa in 2014, not 2015.

U.S. Support for the CTBTO Enhances U.S. and Global Security

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According to the FY2018 budget outline, the Trump administration will seek funding cuts in the U.S. contribution for the CTBTO, the intergovernmental organization responsible for the global nuclear test monitoring system designed to detect and deter clandestine nuclear explosions.

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Volume 9, Issue 2, May 2017

At a time when it is more important than ever to reinforce the global norm against nuclear test explosions and to maintain global capabilities to detect nuclear weapons testing by other countries, the Donald Trump administration is proposing severe budget cutbacks at the State Department, including U.S. contributions to key international organizations.
 
According to the Fiscal Year (FY) 2018 budget outline released by the Trump administration in February, his administration “seeks to reduce or end direct funding for international organizations whose missions do not substantially advance U.S. foreign policy interests, are duplicative, or are not well-managed.” No further detail or explanation was provided.
 
The Trump administration is expected to release its full budget request the week of May 22.
 
These funding cuts could include a reduction in the U.S. contribution for the intergovernmental organization responsible for the global nuclear test monitoring system designed to detect and deter clandestine nuclear explosions, the Comprehensive Test Ban Treaty Organization (CTBTO).
 
Such funding cuts would run counter to the value placed on this contribution by Secretary of State Rex Tillerson, who joined with his G7 foreign ministerial counterparts to extoll the value of the CTBTO in their April 11 joint communique on nonproliferation and disarmament. They said in part:

We believe that all States should maintain all existing voluntary moratoria on nuclear weapon test explosions or any other nuclear explosion, and those States that have not instituted such moratoria should do so.
 
The verification regime being established by the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization, in particular the International Monitoring System and International Data Centre, has proven its effectiveness by providing substantive and reliable data on the nuclear tests conducted by North Korea. We strongly encourage all interested States to complete the IMS as a matter of priority.

The statement also recalls UN Security Council Resolution 2310 (passed September 23, 2016) —which calls on all states to ratify the Comprehensive Test Ban Treaty (CTBT), refrain from nuclear testing, and provide support for the CTBTO. The resolution also notes the contribution of the CTBT to nuclear nonproliferation and disarmament.

Past U.S. Support and Results

U.S. Secretary of State John Kerry and other diplomats vote to adopt the resolution in support of the Comprehensive Test Ban Treaty during a UN Security Council meeting September 23. (Photo credit: Astrid Riecken/CTBTO) The final omnibus appropriations bill for FY 2017 fully funds the Obama administration’s final budget request of $32 million for the U.S. contribution to the CTBT International Monitoring System (IMS) and CTBTO. This is in line with the United States’ longstanding support for the CTBT, which was formally established in 1997.
 
The CTBTO was established with the support of the United States and the other 182 signatories of the CTBT to build, operate, and maintain a robust IMS and International Data Center to detect and deter nuclear weapon test explosions, which are banned by the treaty.
 
Today the IMS is more than 90% complete and is collecting and analyzing information on a continuous 24/7 basis for the purpose of detecting and deterring clandestine nuclear test explosions and to provide the technical basis for international responses to noncompliance.
 
The CTBTO provides additional nuclear test detection capabilities beyond U.S. national means of intelligence and is a neutral source of information that can mobilize international action against any state that violates the global norm against nuclear testing.
 
The total annual budget of the CTBTO was about  $128 million for 2016. The United States provides 22.47% of the CTBTO’s funding. Over the years, the United States has also made voluntary, in-kind contributions including for the operation and maintenance costs of all IMS facilities in the United States and support to the software development for the International Data Center, which analyzes the global monitoring data for nuclear testing activity. These in-kind contributions are valued at more than $5 million USD in 2015 and $9 million in 2016.
 
Although United States signed the CTBT in 1996 and has not conducted a nuclear test explosion in 25 years, the United States is one of eight remaining states that must ratify the treaty in order to allow for its formal entry into force.

The Illogic of the Treaty’s Critics

Unfortunately, a small but influential group of Republican lawmakers are seeking to cut U.S. funding for the CTBTO and undermine international support for the CTBT and the global nuclear test moratorium.
 
Sen. Tom Cotton (R-Ark.) and Rep. Joe Wilson (R-S.C.) introduced legislation on Feb.7 to “restrict” funding for the Comprehensive Test Ban Treaty Organization (CTBTO).
 
The Cotton and Wilson bill  purports not to restrict U.S. funding specifically for the IMS, but in practice any significant reduction in U.S. technical and financial support for the CTBTO would:

  • adversely impact the organization’s ability to operate and maintain existing nuclear test monitoring stations. This is due to the fact that a wide range of organization’s personnel and assets directly or indirectly support the IMS. This includes staff time and technical support for the International Data Centre in Vienna, which processes information provided by IMS operations; and
  • prompt other states to restrict their funding for the CTBTO or possibly withhold data from CTBTO monitoring stations that are based in their territory, thus undermining the capabilities of the system to detect and deter clandestine nuclear testing.

The bill also seeks to undermine the U.S. obligation—as a signatory to the CTBT—not to conduct nuclear test explosions. It calls on Congress to declare that the September 2016 UN Security Council resolution does not “obligate…nor does it impose an obligation on the United States to refrain from actions that would run counter to the object and purpose” of the CTBT, which President Bill Clinton signed in 1996.
 
Contrary to what the Cotton/Wilson bill implies, Resolution 2310 (which was endorsed by 42 states including Israel) does not impose any new obligations on the United States. Rather, UNSC 2310:

  • encourages states to “provide the support required” to the CTBTO and the IMS, and urges states to refrain from nuclear testing and urges those states that have not ratified to do so; and
  • also takes note of the September 15 joint statement by the five permanent Security Council members that formally “recognized” that a nuclear explosion would “defeat the object and purpose of the CTBT.” 

So long as the United States remains a signatory of the CTBT, it is legally obliged not to take actions that would defeat its object and purpose. In other words, like all other 183 signatories, it shall not conduct a nuclear test explosion.
 
However, if Congress were to adopt the Cotton-Wilson bill asserting that the United States is not required to respect our obligations as a CTBT signatory not to test, it would signal to other states that that the United States is seeking to back out of its commitment to a global and verifiable nuclear test ban and is considering the resumption of nuclear weapons testing.
 
That’s not a smart move. With North Korea threatening to conduct a sixth nuclear test explosion, it is essential that the United States reinforce, not undermine, the global nuclear testing taboo
 
Backing off our historically strong commitment to ending nuclear testing at this time could trigger a dangerous chain reaction by other nuclear-armed states and would run afoul of key U.S. allies who strongly oppose nuclear testing and who support the CTBT. Continuing to fund the U.S. contribution to detect and deter nuclear weapons testing enhances national and international security.

—DARYL G. KIMBALL, executive director

Recalibrating U.S. Policy Toward North Korea

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The new administration has a narrow window to shift U.S. policy toward North Korea in ways that halt its nuclear activities.

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Volume 9, Issue 1, February 2017

North Korea’s advancing nuclear and ballistic missile program is one of the most serious national security challenges that Donald Trump faces as president. The new administration has a narrow window of opportunity to recalibrate U.S. policy toward North Korea and seek a lasting arrangement that halts and then ultimately rolls back Pyongyang’s nuclear weapons program.

North Korean leader Kim Jong Un visits a coastal defense unit on Mahap Islet in this undated photo released by the official Korean Central News Agency on November 11, 2016. (Photo credit: KNS/AFP/Getty Images)Currently, North Korea is assessed to have the capability to deliver a warhead on a short- or medium-range ballistic missile, threatening allies and U.S. troops in the region. But if North Korea remains on its current trajectory, it could soon begin testing an intercontinental ballistic missile (ICBM) and deploy the system within the next decade, which would pose a direct threat to the continental United States and upset the security situation in East Asia.

A concerted diplomatic effort aimed first at freezing North Korea’s nuclear and missile testing, followed by negotiations designed to roll back Pyongyang’s nuclear weapons program, will be difficult and may not succeed. However, when compared to other policy options, it stands the best chance of halting North Korea’s program.

The Obama administration’s policy toward North Korea, known as ‘strategic patience,’ failed to halt Pyongyang’s illicit nuclear and missile activities. The strategic patience approach involved increasing sanctions pressure on North Korea and returning to negotiations only after Pyongyang took steps toward denuclearization, which it committed to in the Six Party Talks with the United States, China, South Korea, Russia and Japan in 2005.

The onerous preconditions in the Obama administration’s policy approach, coupled with the failure to provide sufficient incentives, prevented the resumption of negotiations with North Korea. Instead, over the past eight years, North Korea expanded its stockpile of weapons-usable nuclear material, conducted four nuclear tests, and accelerated its missile activities.

North Korea’s leadership is likely waiting for Washington to signal what its approach will be. They will not likely wait long. The Financial Times reported February 1 that the White House launched a review of its North Korea policy.

A new U.S. policy that first seeks to resume negotiations, followed by pressure if North Korea scuttles diplomatic efforts, is still no guarantee of success. But is the most promising approach.

North Korea’s Advancing Programs
North Korea is currently estimated to possess about 50 kilograms of separated plutonium, enough material for more than 10 warheads, and activities suggest that its stockpile will continue to expand.

Kim Jong-Un stated his intention to continue expanding the country’s nuclear arsenal. Most recently in his annual New Years address on Jan. 1, 2017, he said that North Korea "will continue to build up” its nuclear forces… as long as the United States and its vassal forces keep on nuclear threat and blackmail and as long as they do not stop their war games they stage at our doorstep disguising them as annual events.”

To that end, Pyongyang restarted its 5mw nuclear reactor at Yongbyong in August 2013, which has since operated intermittently. The reactor produced the plutonium that North Korea used for its nuclear program, but was shut down in 2007 as part of the Six Party Talks. Satellite imagery from 38 North, a site run by the U.S. Korea Institute at Johns Hopkins University's School of Advanced International Studies (SAIS) suggests that North Korea’s reprocessing facility, which separates plutonium for weapons from the reactor’s spent fuel, is also operating.

North Korea is also known to possess centrifuges, and may enrich uranium for weapons purposes. Based on estimates from North Korea’s known centrifuge facility, Pyongyang could have produced enough highly-enriched uranium for an estimated 6-8 warheads, bringing the total count to 16-18 as of late 2016. Independent experts assess that North Korea could have as many as 20-100 warheads by 2020.

It is highly likely that North Korea is also taking steps to refine its warhead design, both to increase the explosive yield and develop a miniaturized weapon that can be mounted on a ballistic missile.

After the February 2013 test, North Korea claimed it had tested a miniaturized device. Pyongyang announced after the January 2016 test that it exploded a hydrogen bomb. While it is extremely unlikely that Pyongyang did test a hydrogen bomb, North Korea may have tested a boosted fission device. Boosted fission increases the explosive yield of a warhead by using isotopes of hydrogen to increase the efficiency of the reaction. While the assertions that North Korea tested a miniaturized or boosted fission device cannot be ascertained with certainty, continued testing gives Pyongyang more information about the performance of its warheads.

North Korea’s missile testing activity also indicates that Pyongyang is taking steps to extend the range of its ballistic missiles and develop delivery options, including a submarine launched ballistic missile (SLBM).

In 2016, North Korea tested its Musudan missile eight times, the first tests of the missile since it was unveiled in 2010. The Musudan is a medium-range ballistic missile that experts assess could deliver a 650-kilogram payload over 1,200 kilometers. There is uncertainty about the range of the system, given there was only one successful test. However, a 1,200-kilometer range puts South Korea, Japan, and parts of China and Russia within range, but falls short of Guam. Although only one of the tests was a success, North Korea gained data relevant to the performance of the Mususdan and its longer-range systems.

North Korea is also taking steps to field SLBMs. John Schilling, an aerospace engineer, suggests that North Korea could initially field this capability in the second half of 2018. If North Korea can successfully field nuclear-tipped SLBMs, it would pose a regional threat, and could allow Pyongyang to evade the regional missile defense system set for deployment in South Korea. Given the nature of North Korea’s submarines and the estimated range of the SLBM, it is unlikely to pose an intercontinental threat.

Given North Korea’s continued production of fissile material and its ballistic missile activities, the threat posed by its nuclear program will continue to grow, unless checked.

“A New Approach” Toward North Korea
The new U.S. Secretary of State, Rex Tillerson, recognized the need for a new approach to North Korea during his confirmation process. In a response to written questions from the Senate Foreign Relations Committee, Tillerson said that “North Korea is one of the leading threats to regional and global security. If confirmed, I will work closely with my interagency colleagues to develop a new approach to proactively address the multitude of threats that North Korea poses to its neighbors and the international community.”

Tillerson, however, provided little insight into what his approach will be. He mentioned working with regional partners to increase pressure on North Korea and further isolate the country. He also talked about the need for China to enforce UN sanctions and mentioned the possibility of secondary sanctions if Beijing does not enhance its compliance.

Steps such as increasing sanctions on North Korea or putting in place secondary sanctions for failure to implement UN measures, do not alone constitute a strategy that will halt North Korea’s advancing nuclear weapons program and ultimately roll it back. Indeed, pursing certain types of sanctions could have the opposite effect ­‑ secondary sanctions on China could alienate Beijing.

First and foremost, the Trump administration’s new policy should focus on signaling to Pyongyang that Washington is ready and willing to engage in serious negotiations without preconditions.

To start, the new administration should deliver a message directly and carefully to North Korea’s leadership that recalls positive statements that Pyongyang has made about negotiations over its nuclear program, such as to Pyongyang’s statement from July 2016 calling for denuclearization of the entire Korean Peninsula: “The denuclearization being called for by the DPRK is the denuclearization of the whole Korean peninsula and this includes the dismantlement of nukes in South Korea and its vicinity.” This will also make clear that the United States remains committed to denuclearization as the end state in negotiations with Pyongyang.

The United States should also simultaneously reach out to states in the region to discuss the administration’s negotiating position and provide assurances that Washington remains committed to the security of its allies. Clear communication with China, given its close relationship with North Korea, will be particularly necessary. In the communication with President Xi, the United States should emphasize importance of China strictly enforcing existing sanctions, and the U.S. intent not to seek new sanctions as long as the North acts with restraint, including no nuclear and missile flight tests.

If North Korea is willing to negotiate, initial talks should focus on obtaining a moratorium to prevent additional nuclear and ballistic missile tests. The advantage of pursuing a testing freeze is that it would prevent North Korea from continuing to advance its capabilities, halting progress toward an ICBM and an SLBM capability.

The United States will need to be prepared to put something on the table in return for North Korea’s commitment to freeze nuclear and missile tests. After consultations with Seoul, Washington might consider scaling-back or delaying its annual joint military exercises with South Korea. The United States could also commit not to take actions viewed by North Korea as deliberately threatening, such as flying nuclear-capable bombers over the Korean peninsula.

The advantage of putting military exercises on the table is that they can easily be scaled back up if North Korea breaks the agreement and conducts a test. Monitoring for nuclear and missile tests also does not require inspectors on the ground.

Another option could be a U.S. commitment to delay the deployment of the Terminal High Altitude Area Defense (THAAD) missile defense system, so long as Pyongyang observes a strict test moratorium. Beijing has voiced a strong opposition to the system over concerns that the THAAD radar coverage will include parts of China. In addition to alienating China, deploying THAAD could provoke Pyongyang to continue developing missiles capabilities that would allow it to evade and/or over whelm U.S. missile defenses in the region.

If the initial moratorium holds, North Korea and the United States could discuss steps that would roll back Pyongyang’s nuclear activities, including a verifiable halt to fissile material production (including plutonium production and uranium enrichment) that would be monitored by international inspectors into North Korea’s nuclear sites. In return, the United States might extend to North Korea limited sanctions relief and negative security assurances against military attack under certain conditions.

To maintain leverage, the United States and its partners should strengthen implementation of UN Security Council-mandated sanctions that have not been fully enforced thus far. This would also preserve the option to try to increase economic and financial sanctions pressure if North Korea refuses to negotiate.

 

Flawed Alternatives
Other policy approaches pose very high risks and have a low chance of success. A campaign to impose crippling sanctions on the North is likely to fail, since it will be opposed by China. Any attempt to coerce Beijing will likely be met with a strong response, creating a rift that North Korea will exploit to continue to move forward with its weapons of mass destruction programs. Preemptive military strikes will face severe operational difficulties and almost certainly a strong, likely military, response from Pyongyang that could trigger a second Korean War. It would also be opposed by South Korea and Japan and draw China into what may be an escalating regional conflict.

Conclusion
The dangers posed by North Korea—ranging from the direct threat to the United States and a growing threat to South Korea and Japan, to the possibility that Pyongyang will transfer nuclear technology abroad to earn hard currency—cannot be ignored. Simply maintaining the current policy will not slow North Korea’s advances; and more robust missile defenses provide only a partial defense for the United States and its allies, at best.

In formulating a more effective approach, the new administration must jettison flawed assumptions that have underpinned a failed U.S. policy for the past eight years. A new policy that tries negotiations first, and then puts pressure on the North if its intransigence scuttles diplomacy, is still no guarantee of success, but is the most promising approach.

DARYL G. KIMBALL, executive director and KELSEY DAVENPORT, director of nonproliferation policy

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Dismantling the Iran Deal Would Be Dangerous and Unwise

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Trump should pursue continued implementation of the agreement and ensure that the IAEA has sufficient resources to keep Iran’s nuclear activities under close observation

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Volume 8, Issue 7, December 13, 2016

When President-elect Donald Trump takes office Jan. 20, he will inherit an array of foreign policy challenges. But unlike his predecessor, the list will not include the risk of a nuclear-armed Iran—unless Trump pursues a reckless plan to dismantle the nuclear deal or allows it to fall apart.

As a result of the historic agreement negotiated between the United States, its partners, and Iran in July 2015, Tehran’s nuclear activities are strictly limited and subject to intrusive monitoring for over a decade. The comprehensive set of restrictions in the deal known as the Joint Comprehensive Plan of Action (JCPOA) has increased the time it would take for Tehran to obtain enough enriched material for a bomb from 2-3 months in 2013 to over 12 months today. In return, Iran received relief from nuclear-related sanctions imposed by the United States, the European Union, and the United Nations.

Troubling Signs

Then-candidate Donald Trump spoke at a rally against the Iran nuclear deal in Washington, DC, Sept. 9, 2015. (Photo: Nicholas Kamm/AFP/Getty Images)Though Trump has not to date provided specifics on how he will approach the nuclear deal and relations with Iran, his rhetoric on the agreement during the campaign was dangerous and ill-informed.

In a March 21, 2016 speech to the American Israel Public Affairs Committee, Trump said his “number one priority is to dismantle the disastrous deal with Iran.” On the campaign trail, Trump frequently called the agreement the worst deal ever negotiated and said he would seek to renegotiate it.

Possible cabinet members and advisers who have strong views on the agreement could also influence Trump’s policy toward the nuclear deal. The presumptive National Security Advisor, former Director of the Defense Intelligence Agency Lt. Gen. Michael Flynn, and presumptive CIA Director, Congressman Mike Pompeo (R-Kan.), have both been critical of the Iran deal.

On the other hand, former General James Mattis, Trump’s pick for Secretary of Defense, described the deal as an “imperfect arms control agreement,” and said in a speech at the Center for Strategic and International Studies in April that “there is no going back” on the deal “absent a clear and present violation” by Iran. Mattis stressed that the United States would be alone if we did so and “unilateral economic sanctions from us would not have anywhere near the impact of an allied approach.”

The Deal At Risk

There are two plausible scenarios by which Trump could unravel the nuclear deal with Iran.

First, the new president could pull the United States out of the deal by unilaterally renouncing the agreement, ceasing U.S. implementation of its commitments under the deal. Iranian President Hassan Rouhani has said Iran's commitment to the deal will not waiver, despite any action by Trump to threaten the agreement. But it remains unclear if the deal can survive without the United States. 

A second scenario, which is perhaps more likely, is that Trump and the Republican-led Congress could slowly chip away at the agreement and create an escalatory dynamic that eventually provokes Iran into taking action that leads to the deal’s collapse. In this scenario, Washington would rigorously enforce the deal, leveraging legitimate ambiguities in the text against the spirit of the agreement, and prejudicially declare technical issues to be intentional violations.

Separately, Washington could impose sanctions apart from the deal under the label of human rights violations, ballistic missile activity, or support for terrorism. If such sanctions were imposed as a means of skirting U.S. commitments not to impose new nuclear sanctions under the deal, Iran would likely respond by challenging provisions of the agreement more aggressively or by taking steps in other areas that would heighten tensions between Tehran and Washington. This escalatory spiral could eventually cause the agreement to collapse.

Before putting the United States on one of these paths, President-elect Trump should evaluate the potential loss of nonproliferation benefits ensconced in the deal that contribute to U.S. security interests, and the likely obstacles to renegotiation.

Loss of Nonproliferation Benefits

When fully implemented, the nonproliferation benefits of the Iran deal are clear—the combination of limits and verification measures block Tehran’s pathways to nuclear weapons. If the deal is dismantled, and the United States no longer feels obligated to its implementation, it is safe to assume that Iran may no longer feel the need to adhere to its limits either.

The deal created a multilayered inspection regime that covers every step of Iran’s fuel cycle. When combined with national intelligence means, it provides the highest possible guarantee that any deviation from the limits would be quickly detected. 

If the deal falls apart, the losses in the enhanced monitoring and verification of Iran’s nuclear activities would be particularly significant. The international community would lose the following tools for verifying that Iran’s nuclear activities are peaceful:

  • Continuous surveillance of key sites. The deal put in place continuous surveillance at Iran’s uranium mines and mills (25 years) and centrifuge production areas (20 years). This additional transparency would be lost if the deal falls apart. 
  • Real-time monitoring of Iran’s enrichment activities. The agreement provides real time monitoring of Iran’s uranium enrichment levels for 15 years to ensure that Tehran is enriching uranium only to reactor-grade levels, or 3.67 percent uranium-235.
  • Provisional application of the additional protocol. Under the deal, Iran is applying the additional protocol to its safeguards agreement. This gives the International Atomic Energy Agency (IAEA) inspectors enhanced access to information and nuclear sites in Iran. Without the additional protocol, inspectors will have access to fewer sites and lose their ability to conduct shorter-notice inspections.
  • Oversight of Iran’s procurement of materials applicable to nuclear activities. The deal puts in place a procurement channel that provides approval or denial of Iranian requests to import materials or technologies relevant to nuclear development.
  • Time-bound access to military sites to investigate concerns. Under the deal, if IAEA inspectors have concerns about illicit Iranian behavior relevant to developing a nuclear weapon and Iran refuses to grant access, the Joint Commission—created by the deal to resolve compliance concerns—can direct Iran to comply with the request or be found in violation of its obligations.

Since the deal's adoption, the enhanced monitoring and verification system has already demonstrated its effectiveness. IAEA inspectors have unprecedented access to Iran's nuclear facilities and report quarterly on Iran's compliance. On two occasions Iran slightly exceeded the limit on its stockpile of heavy water, a material produced by Iran to moderate certain types of reactors. This did not pose a proliferation threat, but inspectors noted the breach nonetheless and the Joint Commission was able to quickly deal with the issue.

Since the nuclear deal was adopted, it has significantly rolled back and restrained Iran’s nuclear program. If the deal ends, Iran could:

  • Move over 13,000 centrifuges, including 1,008 advanced IR-2 centrifuge machines, from monitored storage and begin using them to enrich uranium. When combined with the 6,104 first generation IR-1 centrifuges Iran was allowed to keep under the deal (of which 5,060 are operating), Iran could operate nearly 20,000 centrifuges.
  • Build up its stockpile of enriched uranium. As a result of the deal Iran blended down or shipped out 98 percent of its uranium stockpile and now keeps less than 300 kilograms of uranium enriched to 3.67 percent. With a larger stockpile of enriched uranium, Iran could move more quickly to a significant quantity of weapons-grade uranium (25 kilograms of greater than 90 percent uranium-235).
  • Enrich to levels higher than 3.67 percent. Under the deal, Iran is limited to enriching uranium to 3.67 percent for 15 years. If the deal falls apart, Tehran could resume enrichment to 20 percent or possibly higher.
  • Resume enrichment at Fordow. Iran transformed Fordow, a facility built deep into a mountain near the city of Qom, from a uranium-enrichment site to an isotope production area for 15 years. Iran could resume enriching uranium at Fordow if the deal falls apart.
  • Resume development of advanced centrifuges. Iran’s research and development of more efficient centrifuges is limited to single-machine testing for eight and a half years.

Without the deal, Iran would no longer be subject to this enhanced monitoring and verification nor to strict limitations on its nuclear activities. Tehran could ramp up its uranium enrichment activities and move back to where it was in 2013 – capable of producing enough bomb-grade material for a nuclear weapon in 2-3 months or less. Tehran also agreed to permanently forgo certain types of experiments with explosives relevant to developing a nuclear weapon, an agreement that would likely be rescinded if the deal falls apart.

Without the deal, Iran would still be legally bound not to pursue nuclear weapons by its ratification of the nuclear Nonproliferation Treaty. While it is unlikely that Iran would move quickly to pursue nuclear weapons, Tehran could move to a position where it could have enough weapons-grade material for a bomb in a matter of weeks. This would raise tensions with the United States and increase the chances of conflict in the region.

The Futility of “Renegotiation”

If Trump walks away from the deal, or attempts to increase the pressure on Iran to negotiate better terms, it is extremely unlikely that he will have sufficient diplomatic support from our negotiating partners—China, France, Germany, Russia, and the United Kingdom—for new sanctions that could generate enough pressure to secure Iran’s agreement.

In addition to currently supporting the deal, these countries played a key role in enforcing sanctions that pressured Iran to negotiate over its nuclear program in the first place. Support for U.S. sanctions along with UN and EU restrictions created a web of sanctions that ratcheted up the pressure on Iran’s economic activities and incentivized Tehran to make a deal.

Federica Mogherini, EU foreign policy chief and head of the group of countries that negotiated with Iran, reminded the international community of the multilateral nature of the agreement and said that its implementation is her responsibility. In remarks to the press Nov. 13, Mogherini emphasized that the deal is a multilateral agreement and said that it is in the “European interest” to “guarantee that the agreement is implemented in full.”

Other leaders also voiced their support for the deal. French President Francois Hollande also told reporters reporters Nov. 16 that the agreement “gives us all security” and that the “absence of the accord would be very serious.”

The Responsible Path Forward

Rather than dismantle the deal or seek its renegotiation, the Trump administration should pursue continued implementation of the agreement and ensure that the IAEA has sufficient inspectors on the ground and the necessary resources to keep Iran’s nuclear activities under close observation.  

It should also look for opportunities to strengthen the deal in the years following the end of core nuclear limitations set by the JCPOA. This could include extending the limits on uranium enrichment activities, building out the innovative monitoring mechanisms, or negotiating separate restrictions on Iran’s ballistic missile programs. As the deal continues to prove successful, the administration could look to regionalize certain restrictions in it. Trump could sell this as a ‘renegotiation’ package, building on the understanding among all parties that the original nuclear deal remains in place and is fully implemented.

Trump does not have to face the challenge posed by a nuclear weapons program in Iran—unless he brings it on himself. The consequences of the deal falling apart due to Washington’s actions would be significant. Abandoning it could open the door to a nuclear-armed Iran sooner rather than later and increase the prospect of a costly war in the Middle East. By walking away from the international agreement, Trump would also be sending a dangerous message that United States cannot be trusted to honor its agreements and that the opinions of negotiating partners do not carry any weight in Washington. Under such circumstances, Iran would not be likely to enter into a new agreement with the United States.  

KELSEY DAVENPORT, director of nonproliferation policy

Note: An earlier version of this referred to General Mattis as "brigadier general." We apologize for the error. 

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Next Steps on U.S.-Russian INF Treaty Dispute

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Relations between Russia and the West have sunk to an historic low and tensions have worsened across a range of issues, some new and some old.

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Volume 8, Issue 6, October 25, 2016

Relations between Russia and the West have sunk to an historic low. Since President Vladimir Putin’s decision to annex Crimea and foment a low-level conflict in eastern Ukraine nearly three years ago, tensions between the United States and Russia have worsened across a range of issues, some new and some old.

Several key nuclear arms control and disarmament agreements that helped bring an end to the Cold War nuclear arms race continue to serve to constrain nuclear competition and maintain strategic stability.

These include the 2010 New Strategic Arms Reduction Treaty (New START), the 1992 Open Skies Treaty, the landmark 1987 Intermediate-Range Nuclear Forces (INF) Treaty, and the 1996 Comprehensive Test Ban Treaty.

General Secretary Mikhail Gorbachev and President Ronald Reagan signing the INF Treaty in Washington, DC, December 8, 1987 (Photo:Wikimedia)The INF Treaty was a major breakthrough that helped to halt and reverse the Cold War-era nuclear arms race and remove a significant threat to Europe. It marked the first time the superpowers had agreed to actually eliminate nuclear weapons and utilize extensive on-site inspections for verification. The treaty, which is of unlimited duration, required both sides to eliminate and permanently forswear all of their nuclear and conventional ground-launched ballistic and cruise missiles with ranges of 500 to 5,500 kilometers. The two sides eliminated 2,692 short, medium, and intermediate-range nuclear-armed missiles by 1991.

There are growing signs, however, that the INF Treaty is under serious and increasing stress. Failure to resolve the festering compliance dispute could threaten the treaty and impede further efforts to reduce bloated U.S. and Russia nuclear arsenals in the years ahead.

In July 2014, the U.S. State Department officially alleged that Russia is violating its INF Treaty obligations “not to possess, produce, or flight-test” a ground-launched cruise missile (GLCM) with a range of 500 to 5,500 kilometers or “to possess or produce launchers of such missiles.”

Russia denies that it is breaching the INF Treaty. The Russian Foreign Ministry said in December that the allegations are “groundless” and the United States has “not provided any proof” that Russia is “allegedly producing and deploying” banned missiles.

Moscow has instead raised its own concerns about Washington’s compliance with the agreement, charging that America is placing a missile defense launch system in Europe that can also be used to fire cruise missiles, using targets for missile defense tests with similar characteristics to treaty-prohibited intermediate-range missiles, and making armed drones that are equivalent to ground-launched cruise missiles.

To this point, bilateral political discussions at senior levels have not led to a resolution of the compliance dispute. Neither side had sought to use the dispute resolution mechanism allowed for by Article VIII of the treaty – the Special Verification Commission (SVC).

Until at least January of this year, senior Defense and State department officials said that Russia had not deployed the prohibited missile.

But according to an Oct. 19 The New York Times report, “American officials are now expressing concerns that Russia is producing more missiles than are needed to sustain a flight-test program, spurring fears that the Kremlin is moving to build a force that could ultimately be deployed.”

The report also revealed that the United States has called for a meeting of the SVC to discuss and seek to resolve the U.S. compliance concerns. The U.S. State Department has since confirmed that a meeting has been requested and Russia has indicated that it plans to attend.

Both sides could be facing a new and even more difficult situation if they do not effectively use the SVC to bolster the INF Treaty.

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Immediate Next Steps

Convening the SVC to resolve mutual compliance concerns has been a longstanding recommendation of the Arms Control Association, as well as expert colleagues involved with the 21-member U.S.-Russian-German Deep Cuts Commission, and others.

Russia’s alleged noncompliance with the treaty is a serious matter that deserves a strong and measured response. To date, the United States has imposed diplomatic costs on Russia and has taken some military measures as part of a larger response to concerns about Russian behavior, including the INF Treaty violation.

Washington has properly treated the violation more as a political problem rather than a military one. But that would likely change if Russia moved from testing to actual deployment of INF Treaty noncompliant missiles. 

Russian President Vladimir Putin and U.S. President Barack Obama at the 2015 Group of Twenty summit (Photo: Wikipedia)If it hasn't done so already, the Obama administration should craft a plan for how the compliance concerns of both sides could be addressed in the event Russia engaged and signaled its willingness to return to compliance. This could include consideration of additional confidence-building measure and information exchanges that take into account technological and political developments that have occurred since the treaty’s entry into force.

From a U.S. and European security perspective, the key goal is to prevent Russia from deploying (or conducting further tests of) INF Treaty-prohibited missiles or withdrawing from the agreement entirely.

Meanwhile, the United States should seek new ways to provide further details about the nature of the Russian violation. The inability to share more information has made it easier for Russia to deny a violation exists and harder for U.S. allies and other countries to put additional pressure on Russia.

Both sides should understand and explain why the INF Treaty and the existing bilateral and multilateral arms control architecture continues to serve U.S., Russian, and European security interests and head-off even more dangerous military competition.

Without continued U.S. support for arms control agreements and other types of cooperative nonproliferation engagement, Russian forces would be unconstrained. Not only would the United States have little leverage or basis to constrain Russian forces other than military and economic measures, it would not have verification measures in place to assess what Russia is doing. Overall, the implementation record of these treaties has been highly successful, which is why presidents from both parties have pursued them.

If Russia continues to remain in noncompliance with the INF Treaty and especially if Russia decides to deploy noncompliant missiles or threatens to pull out of the treaty, the United States should pursue firm but measured steps to reaffirm its commitment to the defense of those allies that would be the potential targets of these new missiles.

But it would not be militarily useful for the United States to deploy new offense missiles in Europe or seek to accelerate or expand U.S. ballistic missile defense capabilities in Europe, which would not increase the security of our allies and would only give the Russians a cynical excuse to withdraw from the treaty.

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Intermediate Steps on INF Treaty and Cruise Missiles

The current INF Treaty crisis comes at a time when the United States and Russia are building new nuclear and conventional cruise missile systems and a number of states are developing cruise missiles. In addition, the two sides are not currently engaged in talks on further strategic nuclear reductions beyond New START. Russian officials say that U.S. and Russian reductions must take into account the arsenals of the world’s other nuclear-armed states.

Today, only three countries possess nuclear-armed cruise missiles. The Pentagon is pursuing the production of roughly 1,000 new nuclear-capable air-launched cruise missiles to replace an aging legacy system. Russia is deploying the 2,000-kilometer range Kalibr land-attack cruise missile (LACM) on ships and submarines and the Kh-101 air-launched conventional and Kh-102 air-launched nuclear-armed cruise missile for delivery by bombers. France recently upgraded its nuclear air launched cruise missiles, the Air-Sol Moyenne Portée-Amélioré, and according to President François Hollande currently has 54 ASMP-A cruise missiles. 

In years past, the United States and Russia have both expressed support for “multilateralizing” the INF Treaty, but have devoted scant attention to such a project. In October 2007, President Vladimir Putin said that the INF Treaty should be made “global in scope.” Russia has argued for years that the INF Treaty disadvantages Russia vis-à-vis its neighbors, such as China, that lack the same constraints.

That same year, at the United Nations General Assembly, Russia and the United States issued a joint statement reaffirming their support for the INF Treaty and calling upon other governments to renounce and eliminate their ground-launched missiles with ranges banned by the accord. The statement declared U.S. and Russian intentions to “work with all interested countries” and “discuss the possibility of imparting a global character to this important regime.”

The time has arrived for more serious consideration of limits on nuclear-armed cruise missiles worldwide. Given that they are nuclear-capable and increasingly accurate and stealthy, these weapons pose a significant problem for global stability and security.

In the coming year, the Kremlin and the new U.S. presidential administration might explore several possible options, including:

  • As the governments of Sweden and Switzerland proposed in a May 2016 working paper, the United States and Russia could jointly engage with other states on a process to reduce risks associated with nuclear armed cruise missiles. This might include options to limit, prevent deployment of, and ultimately ban all nuclear-armed cruise missiles, regardless if they are launched from the sea, air or ground.
  • The United States and Russia could also address the challenges of horizontal cruise missile proliferation by reinforcing the relevant Missile Technology Control Regime’s restrictions and by endorsing the inclusion of land-attack cruise missiles and unmanned aerial vehicles / unmanned combat aerial vehicles in the Hague Code of Conduct against Ballistic Missile Proliferation.
  • Moscow and Washington should exercise restraint in Russian and U.S. nuclear force modernization programs, remaining within the New START limits and acting consistent with the intent of the treaty. The United States should forego development of a new, air-launched cruise missile, and Russia should reciprocate by phasing-out of its own new nuclear-armed air-launched cruise missiles.
  • The U.S. and Russian presidents should reaffirm that a nuclear war can never be won and must never be fought. The two sides should also agree to launch early discussions on a possible follow-on strategic arms reduction treaty, given that New START expires in 2021.

Given that each country deploys far more nuclear weapons than is necessary to deter attack, they should be able to envision reductions to a level of 500 deployed strategic delivery vehicles (including cruise missiles) and no more than 1,000 deployed strategic warheads. To take into account cruise missiles and sub-strategic nuclear bombs in the active arsenals of both sides, they should consider applying any new warhead ceiling to all types of nuclear weapons.

A new U.S.-Russian dialogue on strategic stability and risk reduction should also explore options for new transparency measures and reciprocal restraint measures in other related areas, including missile defenses, precision conventional strike, and sub-strategic nuclear weapons.

Reducing Risks In the “New Cold War”

As was the case during the Cold War, competition, confrontation, and selective cooperation is the new normal.

The U.S. and Russian governments continue to cooperate in some important areas of common concern, including implementation of the 2015 Iran nuclear deal and New START, and they continue to meet with the other permanent nuclear-armed members of the UN Security Council to share views on strategic stability and nuclear policy.

"Back from the Brink: Toward Restraint and Dialogue between Russia and the West," the June 2016 report of the Deep Cuts CommissionThe NATO-Russia Council and the Organization for Security and Cooperation in Europe (OSCE), which involves 57 participating states in the area from Vancouver to Vladivostok, serves as another mechanism to address specific security concerns.

However, since the conflict in Ukraine the number of Russian and NATO military-to-military incidents in the Baltic region and elsewhere has increased; military-to-military contacts have been sharply curtailed; and there are no active bilateral talks on nuclear arms reductions, missile defense, or conventional arms control and transparency in Europe. Earlier this month, Putin suspended implementation of an already troubled U.S.-Russian agreement on the disposition of excess weapons-grade plutonium.

In addition, U.S. and Russian diplomats have in recent weeks clashed over Syria policy at the UN Security Council. The United States and Western European powers say that Russia’s brutal aerial bombardment of civilian areas in the besieged city of Aleppo in support of Syrian strongman Bashar al-Assad constitutes a war crime. Making matters even worse, U.S. intelligence agencies have assessed that Russian government authorities have authorized cyber hacking of U.S. entities to undermine the credibility of the U.S. electoral process.

The United States and Russia need to re-engage and move back from the brink of even more serious conflict. The 2016 report of the Deep Cuts Commission “Toward Restraint and Dialogue Between Russia and the West,” outlines several additional practical steps to help address other issues:  

  • In order to reduce current security concerns in the Baltic area, NATO and Russia should initiate a dialogue on possible mutual restraint measures. A NATO-Russia dialogue should aim at increasing the security of all states in the Baltic area by encompassing reciprocal and verifiable commitments. A sub-regional arms control regime could consist of interlocking elements such as restraint commitments, limitations, confidence and security-building measures, and a sub-regional Incident Prevention and Response Mechanism.
  • In light of the increasing dangers of military incidents between Russia, the United States and other NATO member states, the United States and Russia should revive a dialogue on nuclear risk reduction measures, capable of addressing risks posed by different sorts of emergencies in near real-time. The United States and Russia could consider creating a Joint Military Incident Prevention and Communications Cell with a direct telephone link between the U.S. Joint Chiefs of Staff, the Russian General Staff, and NATO’s Supreme Headquarters Allied Powers Europe (SHAPE). Such a cell could be linked to or established in parallel with a new European Risk Reduction Center that would link the Russian General Staff and SHAPE.
  • The 34 signatories to the Open Skies Treaty should pay more attention to the continued operation and unimpeded implementation of Open Skies, which can help provide confidence that each side is taking actions in a manner consistent with their commitments and can help guard against surprise. The treaty allows for short-notice, unarmed, observation flights over the territories of other states-parties with the aim of promoting openness and transparency, building confidence, and facilitating verification of arms control and disarmament agreements. Each states-party has quotas covering the number of observation flights a state can actively conduct over the territory of another state and the number it must allow over its own territory. Members of the U.S. Congress should recognize the value of the Open Skies Treaty and upgrades to observation capabilities rather than put roadblocks in the way of its effective implementation.
  • OSCE participating states should consider measures to give effect to the principle of non-intervention in internal affairs. For this purpose, the OSCE could set up a commission that would carefully look into the issue from a legal point of view and explore possibilities for a new OSCE states-based mechanism. OSCE participating States could also pursue a long-term effort leading to a Helsinki-like conference with the aim of reinvigorating and strengthening Europe’s guiding security principles.

As former U.S. Secretary of Defense William Perry wrote in the introduction to the 2016 Deep Cuts Commission report:

“Today, dialogue and restraint are needed more than ever since the end of the Cold War. In order to prevent misperceptions, miscalculations, and the potential return of a costly arms race, both Washington and Moscow have to rediscover the instruments of diplomatic dialogue, military-to-military exchanges, and verifiable arms control.”

Such an effort can begin with a serious, problem-solving approach to the INF Treaty. –BY DARYL G. KIMBALL, with KINGSTON A. REIF and ALICIA SANDERS-ZAKRE

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UNSC Test Ban Initiative: Reinforcing The Existing Norm Against Nuclear Testing

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North Korea’s nuclear weapon test explosion September 9 underscores the need to reaffirm the existing global norm against nuclear testing and early entry into force of the Comprehensive Test Ban Treaty.

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Volume 8, Issue 5, September 9, 2016

Diplomats at the UN Security Council (UNSC) are engaged in consultations on a proposal from the United States for a council resolution designed to reinforce the existing global norm against nuclear weapons testing established by the 1996 Comprehensive Test Ban Treaty (CTBT). The resolution would be complemented by a separate political statement from the council's five permanent members (P5) further asserting their support for the object and purpose of the treaty.

North Korea is the only country to test nuclear weapons in the 21st century. All other nuclear powers have voluntarily enacted testing moratoria. The effort is all the more vital in the wake of North Korea’s fifth nuclear weapon test explosion September 9.

The Comprehensive Test Ban Treaty Organization (CTBTO) in Vienna reports that preliminary data from more than two dozen of the seismic stations that are part of their International Monitoring System confirm that the seismic event is in the 5.1 magnitude range, is at very shallow depth, and is in the immediate vicinity of North Korea's Pyunggye-ri test site.

Barring unforeseen diplomatic disputes, the UNSC resolution and the P5 statement will likely be approved later this month at UN headquarters in New York.

The Testing Taboo

As President Bill Clinton said when he became the first world leader to sign the treaty on Sept. 24, 1996: "The signature of the world’s declared nuclear powers … along with the vast majority of its other nations will immediately create an international norm against nuclear testing, even before the treaty enters into force.” 

Since then, 183 states have become CTBT signatories and a robust, international monitoring system has been established that can effectively detect and deter clandestine nuclear testing anywhere in the world. The CTBT has near universal support.

Only North Korea has conducted nuclear test explosions in this century.

However, the door to further nuclear testing by North Korea and possibly other countries remains ajar. There are still eight key states—including the United States—that must still ratify the treaty in order to trigger its formal entry into force.

Until then, it is clearly in the interests of the United States and the international community to strengthen the taboo against nuclear testing and the work of the CTBTO to maintain and operate the global monitoring system and international data center established to verify compliance with the treaty.

What the UNSC Resolution and P5 Statement Would and Would Not Do

According to the State Department, the initiative would not establish new binding legal limitations on nuclear testing. The proposed UNSC resolution and P5 statement are:

  • “… intended to reinforce global support for the CTBT and its verification system” and “stigmatize those that continue to test and to act in ways contrary to the de facto norm of international behavior;” and are
  • “… in no way a substitute for early entry into force of the treaty.”

The proposed P5 statement on the CTBT would reaffirm the support of the five major nuclear powers for the treaty and clarify that “a nuclear test explosion or any other nuclear explosion would violate the object and purpose of the CTBT.

Such a statement would give public expression to an existing obligation by the United States, as a signatory to the CTBT that seeks ratification and entry into force, not to take any action that would defeat the object or purpose of the treaty, which is to halt nuclear explosive tests.

The Misplaced Concerns of Some Senators

Unfortunately, some Republicans in the Senate have mistakenly chosen to interpret this common sense initiative as an effort to circumvent the U.S. Senate’s constitutional role by promoting ratification of the CTBT through the United Nations.

In reality, presidents do not circumvent the U.S. Constitution by seeking support for treaties at the United Nations; they have done this many times in the past without usurping the Senate’s prerogatives for advice and consent. The resolution would, as UN Security Council Resolution 1887 (2009), annual UN General Assembly resolutions, and national statements at the bi-annual Article XIV Conferences on Facilitating the Entry Into Force of the CTBT have already done before, exhort states to take the steps necessary to ratify the treaty so the treaty can enter into force.

Nevertheless, Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn.) convened a hearing of the Senate Foreign Relations Committee September 7 to examine the issue.

On September 8, Sen. Marco Rubio (R-Fla.) and 32 other senators threatened U.S. funding for the seismic monitoring stations that detected the North Korean test the next day. (Photo: U.S. Senate)

In a letter to President Obama dated August 12 and in the hearing, Corker expressed concern about the language in the proposed P5 statement “expressing the view that a nuclear test would violate the object and purpose of the CTBT.” He suggested that this “… could trigger a limitation on the ability of future administrations to conduct nuclear test explosions.” 

In a letter to the White House published September 8, a group of 33 Republican senators went much further, threatening that: “If you decide to pursue a Security Council Resolution that accepts the imposition of international obligations the Senate has explicitly rejected, we would make every effort to prevent the authorization or appropriation” of the

These arguments rest on two incorrect assertions:

  1. The George W. Bush administration’s decision not to pursue the Senate’s consent to the CTBT’s ratification has, in effect, constituted a permanent repudiation of the CTBT even though the United States did not formally notify the depository; and
     
  2. The Bush administration’s position on the CTBT reflected a shared understanding between the legislative and executive branches. Corker erroneously suggested in his August 12 letter that: “The planned U.N. effort would reverse course on that shared understanding between the Senate and Executive Branch.

These assertions are incorrect for several reasons:

  • Sometimes administrations pursue the ratification of treaties negotiated by their predecessors, and sometimes they don’t. For example, the Geneva Protocol banning the use of asphyxiating gases remained on the Senate Calendar for 50 years until the Senate responded to the strong urgings of Presidents Richard Nixon and Gerald Ford to consent to its ratification. The fact that their predecessors did not seek the Senate’s consent did not constitute formal repudiation of the Geneva Protocol, any more than the Bush administration’s lack of interest in the CTBT did.
     
  • Political statements of intent regarding treaties do not formally release the United States from its Vienna Convention on the Law of Treaties Article XVIII obligation “not to take actions that would defeat the object or purpose” of a treaty Washington has signed. When the Bush administration wanted to formally release the United States from the legal obligations established when President Clinton signed the Rome Statute on the International Criminal Court and the 1972 Anti-Ballistic Missile Treaty with Russia, they did so by formally notifying the depositories. This was not done vis-a-vis the CTBT.
     
  • Ever since the Oct. 13, 1999, vote on the CTBT in the Senate, the treaty remains before the Senate. The Senate has not voted to discharge the treaty and send it back to the executive branch. The executive branch does not have the right to unilaterally withdraw from the Senate a treaty that is still formally before the Senate. In other words, there has never been any shared understanding that the CTBT would not be reconsidered. As Sen. Pete Domenici (R-N.M.) said Oct. 13, 1999: “Treaties never die, even when defeated and returned to the Executive Calendar of the Senate.”
     
  • Even if political statements by the executive branch during the Bush years provided a sufficient legal basis for releasing the United States from its obligation as a signatory not to take actions that would defeat the object and purpose of the treaty, the Obama administration’s many statements of support for the CTBT and its intention to seek and obtain ratification recommitted the United States to its obligations as a treaty signatory.

There is no technical need or military requirement for the resumption of U.S. nuclear testing. If, however, a U.S. president did seek to resume nuclear explosive testing, he/she would need to formally notify the depository that the supreme national interests of the United States require such an action and that the United States no longer intends to seek ratification of the treaty. This would be the case even were there not a P5 political statement expressing the view of the leaders of the P5 about what action(s) would violate the object and purpose of the CTBT. 

Reality Check

In response to the questions about the administration’s UNSC initiative on the test ban, Secretary of State John Kerry sent a letter September 7 to the Senate Foreign Relations Committee. He stressed that the initiative on the test ban will not establish any new binding legal limitations on nuclear testing and “will not cite Chapter VII of the UN Charter or impose Chapter VII obligations.”

It will,” Kerry writes, “be a nonbinding resolution that advances our interests by affirming the existing nuclear testing moratoria, while highlighting support for the CTBT and its verification regime.

Kerry underscored that the proposed P5 statement will give public expression to an existing U.S. (and British, Chinese, French, and Russian) commitment not to test. The United States, as a signatory state that seeks to ratify the CTBT, is obligated under customary international law not to take any action that would “defeat the object or purpose of the treaty,” which is to halt “any nuclear weapon test explosion and any other nuclear test explosion.”

Overall, the resolution and the P5 statement would strengthen the barriers against testing in the years ahead, encourage action by CTBT holdout states to sign and ratify, and reinforce support for the treaty’s nearly complete International Monitoring System to detect and deter clandestine testing.

As ranking member of the committee Benjamin Cardin (D-Md.) explained in his opening statement at the September 7 hearing:

“We do not need nuclear active testing to have our deterrent stockpile. It’s the countries that are trying to develop a stronger capacity in nuclear weapons that could benefit by active nuclear testing. It’s those countries that we don’t want to test. It is in our national security interest that they don’t test. Therefore, as I look at this, if we are capable of putting more pressure on those countries not to test, it’s in our national security interest.”

Furthermore, North Korea’s nuclear test should underscore why it is irresponsible for some senators to threaten to cut off funding for the CTBTO’s international monitoring system out of misplaced and overwrought concerns that efforts to strengthen global support for the existing norm against nuclear testing would infringe upon their role in the treaty ratification process.

The New Senate Should Take Another Serious Look at the Treaty

Lost in the legal back-and-forth about executive and legislative branch authorities is the fact that the Senate has not taken a serious look at the CTBT for well over a decade.

Much of the skepticism that is expressed by some Republicans is based on outdated information and misconceptions about nuclear testing and the test ban treaty.

Much has changed since the Senate last examined the CTBT in 1999 and rejected the treaty after a brief and highly partisan debate that centered on questions about the then-unproven stockpile stewardship program and then-unfinished global test ban monitoring system.

A decade and a half later, those programs are fully functioning and have been proven effective. Today, the three U.S. nuclear weapons lab directors report that they are in a better position to maintain the arsenal than they were during the era of nuclear weapons test explosions. No ally or foe questions the lethal power of the U.S. arsenal. All U.S. allies want Washington to ratify the CTBT.

As former Secretary of State George Shultz has said, “Republican senators might have been right voting against [the CTBT] some years ago, but they would be right voting for it now.”

Bringing the CTBT back to the Senate for another vote requires a lengthy, intensive educational and outreach campaign by the executive branch to present the new information, answer detailed questions, and dispel misconceptions about the treaty. But the process of reconsideration should begin—and soon, with the new president and Senate.

Until such time as the U.S. ratifies and the CTBT enters into force, it is common sense U.S. policy to strengthen the barriers against nuclear testing by others.

—DARYL G. KIMBALL, Executive Director

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Proposed Arms Sale to Saudi Arabia Should be Withdrawn; Future Transfers Put on Hold

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If the U.S. is sincere in its desire to hold Saudi Arabia accountable, it can and should existing U.S. law and its signatory status on the Arms Trade Treaty to encourage better behavior.

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Volume 8, Issue 4, September 6, 2016

During the middle of the summer legislative recess, the Barack Obama administration notified the U.S. Congress Aug. 8 of the proposed sale of $1.15 billion in tanks and other equipment to Saudi Arabia, starting a 30-day clock for House and Senate review.

Within a week, news broke of yet more civilian deaths at the hands of the Saudi-led coalition operating in Yemen, including a strike on a hospital operated by Doctors Without Borders (MSF); that strike subsequently led the organization to withdraw its staff from multiple facilities in the country. Last week, airstrikes reportedly targeted an imam’s family, killing civilians, including children.

U.S. Army M1A2 Abrams with TUSK equipment (Photo: Wikipedia)In response to the hospital bombing, State Department spokeswoman Elizabeth Trudeau said “U.S. officials have regularly engaged with Saudi officials… as well as other coalition members on the importance of mitigating harm. As part of this, we’ve also encouraged them to do their utmost to avoid harm to entities protected by international law such as this hospital.”

If the administration is sincere in its desire to hold Saudi Arabia accountable and leverage such sales in ways that encourage it to change its behavior, President Barack Obama should withdraw this sale and suspend delivery on those agreed earlier, rather than continue to reward Riyadh for its actions. Such steps would reinforce the importance of human rights and international law in U.S. arms transfer decisions.

Congress on Alert

Last week, a bipartisan group of 64 House representatives asked the president to withdraw the Saudi arms sale notification, arguing in part that they had not been given sufficient time to exercise their review responsibilities. That is a wise request, as Congress, which resumes work on Sept. 6, will have a small window of time to consider and vote on legislation in both the House and Senate to block the sale before the 30-day period expires.

After the initial review period, the president can proceed with the arms transfers. Nonetheless, Congress can still act up until delivery, which often occurs years later. If the president fails to withdraw the sale, then Congress should pursue a blocking path.

The Arms Export Control Act was amended in 2014 to allow Congress to request notification at least 30 days before delivery. Such pre-delivery notifications, however, require a joint request of the chair and ranking members of the Senate Foreign Relations Committee (SFRC) or House Foreign Affairs Committee. SFRC Chairman Bob Corker (R-Tenn.) and ranking member Ben Cardin (D-Md.) used these provisions for the first time late last year over a separate arms transfer to Saudi Arabia. Once again, they should exercise their authority to receive pre-delivery notification for this deal.

A Better Path

The problems with the proposed arms sales, however, go far beyond the limited time for congressional review. Arming Saudi Arabia only encourages irresponsible behavior and the misuse of U.S.-supplied weapons, despite U.S. commitments to take into account such abuse in arms transfers.

The United States has long been a top weapons supplier to Saudi Arabia. The country is the leading developing world arms purchaser (according to a recent Congressional Research Service report), and has increased its arms imports by 275 percent from 2011 to 2015 relative to the previous five years (according to the Stockholm International Peace Research Institute-SIPRI). In addition to the August notification, the administration has recently proposed providing support services, Phalanx weapons systems (February 2016), and more than $1 billion in guided bombs and air-to-ground munitions (November 2015).

The Saudi-led coalition’s actions (as well as those of the Houthi) have resulted in thousands of civilian deaths and contributed to massive suffering and displacement. Last week, Zeid Ra’ad Al Hussein, UN high commissioner for human rights, called for independent investigations into abuses in Yemen. In March, he said: “It would appear to be the case that the distinction between legitimate military targets and civilian ones—which are protected under international law—is at best woefully inadequate … . And at worst, we are possibly looking at the commission of international crimes by members of the [Saudi-led] Coalition."

Internationally, Saudi actions have been widely condemned and are leading to growing censure of arms sales to Riyadh.

On Feb. 25, the European Parliament approved a nonbinding resolution finding that European supplies of weapons to Saudi Arabia violate EU arms transfer rules and seeking an embargo on such transfers. Most European countries have now taken steps to tighten arms transfers and licenses to Saudi Arabia, according to a report issued last month by the ATT Monitor.

In revising U.S. conventional arms transfer policy in January 2014, the president included the goal “Ensuring that arms transfers do not contribute to human rights violations or violations of international humanitarian law.”

The United States is also a signatory to the landmark Arms Trade Treaty (ATT), which requires consideration of whether transferred arms would be used to commit or facilitate serious violations of international humanitarian or human rights law. Although treaty members last month were unprepared to tackle transfers to Saudi Arabia, the United States should set a better example.

Withdrawing the recently proposed sale to Saudi Arabia and holding delivery on those in the works is an opportunity to signal to Riyadh that it must act responsibly and ensure that future U.S. arms transfers are not used to target civilians and violate human rights.

—JEFF ABRAMSON, non-resident senior fellow with the Arms Control Association, and program manager of Landmine and Cluster Munition Monitor for the International Campaign to Ban Landmines-Cluster Munition Coalition 

Time to Ban Cluster Munitions Transfers, Rethink Approach to Treaty

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How should the United States exercise responsibility in arms deals with Saudi Arabia and other states that fail to adequately guard against civilian casualties in conflict?

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Volume 8, Issue 3, July 13, 2016

The raging civil war in Syria, the conflict in eastern Ukraine, the ongoing fighting in Yemen have led to massive civilian casualties. The belligerents target civilian population centers and use certain types of weapons, including cluster munitions, that indiscriminately harm civilians. The situation has led many responsible policy makers to call for adjustments in U.S. policy that would reduce access to these weapons—which the United States has not used this decade—and to hold those who would use them accountable.

A man passes by the remains of an Uragan rocket lying in front of a burning house in Donetsk, Ukraine, on October 5. Uragan rockets can be used to deliver cluster munitions. (John Macdougall/AFP/Getty Images)In June, the U.S. House of Representatives narrowly voted down an amendment to the fiscal year 2017 defense appropriations act that would have barred the use of funds to authorize or transfer cluster munitions to Saudi Arabia. The congressional action came after Foreign Policy reported just before the Memorial Day holiday that the Obama administration had suspended such transfers, following evidence of civilian casualties from cluster munitions attacks in Yemen. These actions again drew cluster munitions into the U.S. public spotlight, highlighting both the stigma on these weapons and controversy over U.S. military support for Riyadh’s ongoing war in Yemen.

As the end of the Obama administration approaches, it is time for the United States to put in place a policy that would permanently cease transfers of cluster munitions, move fully toward ratifying the international treaty banning these weapons, and exercise greater responsibility for arms deals with Saudi Arabia and other states that fail to adequately guard against civilian casualties in conflict.

Weapons No Longer Used by the United States

Cluster munitions are bombs, rockets, and artillery shells that disperse explosive submunitions over wide areas. Many submunitions fail to detonate as designed, leaving explosive remnants that later injure or kill civilians. In the 20th century, the United States was a leading user, manufacturer, and provider of the weapons, directly using cluster munitions in at least a dozen countries and supplying them to some 30 more. In Laos alone Washington still spends millions of dollars a year—with much more needed—to assist in the cleanup of cluster munitions it dropped more than 40 years ago.

Despite official policy that cluster munitions have military utility, the reality is that Washington is no longer using the weapons. The United States last used them in significant numbers in Afghanistan (2001-2002) and Iraq (2003) and evidence shows that Washington employed as many as five Tomahawk cruise missiles armed with cluster munitions during a December 2009 strike in Yemen. Perhaps due to stigma or the use of other weapons (such as armed drones) no evidence exists of U.S. use of cluster munitions in this decade.

According to the Cluster Munition Monitor, the United States last budgeted funds for U.S. production of new cluster munitions in 2007, but has since sold them to India, Saudi Arabia, South Korea, Taiwan, and the United Arab Emirates. 

U.S. Cluster Munitions Policy Essentially Unchanged Under Obama

In a questionnaire for Arms Control Today in 2008, then presidential candidate Barack Obama recognized U.S. “forces have been moving away from using cluster munitions and anti-personnel landmines ourselves,” and said “these trends can be accelerated.” 

The Obama administration made significant progress on landmines in 2014 by setting U.S. policy to eventually accede to the Mine Ban Treaty and prohibiting U.S. antipersonnel landmines except on the Korean Peninsula. The Korea exception must be overcome, however, before the United States can fully comply with the ban on antipersonnel mines.

The administration has not however changed its general approach on cluster munitions. The United States continues to follow a 2008 policy that bars the transfer of cluster munitions that fail to operate as intended more than 1 percent of the time, resulting in unexploded ordnance. Until 2018 the policy only allows U.S. use of weapons not meeting that criteria if approved by a combatant commander. After 2018, the United States will no longer use, manufacture, or transfer cluster munitions that fail to meet the 1 percent or less unexploded ordnance standard.

The stigma against cluster munitions has grown considerably since the 2008 policy was announced by then-Secretary of Defense Robert Gates. In recent years, senior U.S. officials have criticized others for using cluster munitions in Syria, Ukraine, and elsewhere. Washington has voted in favor of UN General Assembly resolutions expressing outrage at the continued use of cluster munitions in Syria, most recently in December 2015. It has also supported UN Security Council resolutions and called on the OSCE to investigate and report cluster munitions use allegations. 

Today, the 2008 Convention on Cluster Munitions, which bans the weapons, has 100 states-parties and an additional 19 signatories. Twenty-one of NATO’s 28 members are states-parties to the treaty, including Canada, France, and the United Kingdom. So too are traditional U.S. military allies such as Australia and Japan. U.S.-led efforts to negotiate a new protocol on cluster munitions at the Convention on Conventional Weapons failed in 2011. This leaves the 2008 ban treaty as the sole international instrument dedicated to addressing the suffering caused by cluster munitions.

Yet Washington stubbornly continues to ignore the treaty. It abstained on a nonbinding UN General Assembly resolution on the convention in December. Unlike its allies and the majority of the world’s nations, it does not participate in any meetings associated with the Convention on Cluster Munitions.

Recent Use by Saudi-led Coalition Highlights Need for New Thinking

In March 2015, a Saudi-led coalition of countries began an air campaign against Houthi forces in Yemen, seeking to return former president Abd Rabbuh Mansour Hadi to power in Sanaa. Almost immediately after the coalition began its airstrikes, reports emerged about the use of American-made cluster munitions, including in civilian areas in contravention of U.S. imposed end-use conditions. Many of the cluster munitions used in Yemen were supplied in the 20th century. 

However, the more modern CBU-105 Sensor Fuzed Weapons manufactured by Textron, the only cluster munitions that meet U.S. export criteria, where also discovered and reported by Human Rights Watch field researchers. They have documented multiple examples of submunitions or “skeet” from a BLU-108 canister failing to disperse or detonate. The failure of these last cluster munitions and their misuse should lead policymakers to permanently end U.S. transfers of cluster munitions. 

More broadly, the Saudi-led coalition’s actions and as well as those of the Houthi have resulted in thousands of civilian deaths and contributed to massive suffering and displacement. Saudi actions, including use of cluster munitions, have been widely condemned and are leading to growing censure of arms sales to Riyadh. On Feb. 25, the European Parliament approved a nonbinding resolution finding that European supplies of weapons to Saudi Arabia violate EU arms transfer rules and seeking an embargo on such transfers due to Saudi behavior in the humanitarian crisis in Yemen. 

On March 18, Zeid Ra’ad Al Hussein, UN high commissioner for human rights, more widely addressed the conflict and said: “It would appear to be the case that the distinction between legitimate military targets and civilian ones—which are protected under international law—is at best woefully inadequate…. And at worst, we are possibly looking at the commission of international crimes by members of the [Saudi-led] Coalition.” Civil rights groups in late June called for Saudi Arabia to be removed from the UN Human Rights Council.

Deservedly, Washington’s arms sales to Riyadh are drawing more scrutiny. The United States has long been a top weapons supplier to Saudi Arabia, a country that is the leading developing world arms purchaser (according to a recent Congressional Research Service report), and one which increased its arms imports by 275 percent during 2011-2015 as compared to the previous five years (according to the Stockholm International Peace Research Institute-SIPRI). 

In April, Sens. Chris Murphy (D-Conn.) and Rand Paul (R-Ky.) proposed legislation that would require that U.S. sales of weapons to Saudi Arabia be subject to a certification process guaranteeing that the Saudis are targeting terrorists and not civilians in Yemen. 

In their review of a November 2015 notification of a potential $1.3 billion sale of advanced air-to-ground weapons to Riyadh, Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn.) and ranking member Ben Cardin (D-Md.) invoked a new authority that requires the State Department to notify Congress at least 30 days prior to the delivery of an arms shipment. Such pre-delivery notifications, which were written into the Arms Export Control Act in December 2014 with the Middle East in mind, have not been invoked previously. 

Peace activists demonstrated in front of Textron’s world headquarters in April for its role in supplying cluster bombs to Saudi Arabia. (Photo: RiFuture.org/@SteveAhlquist)In March 2015, the U.S. wing of the Cluster Munition Coalition requested that President Obama review the 2008 policy, including the exception allowing for cluster munitions that may result in less than one percent unexploded ordnance, and commit the United States to accede to the Convention on Cluster Munitions.

More recently, attention has been focused on the manufacturer itself, Textron, via public protests outside its facilities in Massachusetts and Rhode Island denouncing its production of cluster munitions after reports of civilian harm from the Saudi Arabia-led coalition’s use of these weapons. American banks and financial institutions have also been listed in the “Hall of Shame” by the global Stop Explosive Investments campaign and its June 2016 report detailing institutions that fund companies producing cluster munitions.

Given how out of step U.S. policy on cluster munitions now stands, with the U.S. allowing export of weapons it no longer uses and which its allies condemn, now is the time to end transfers and more seriously consider accession to the Convention on Cluster Munitions. At the same time, the president and Congress can take steps to be much more circumspect in their arms transfers to Saudi Arabia, refusing to allow new supplies until the country shows more responsibility in its military activities to protect civilians and live up to international humanitarian and human rights law.

—JEFF ABRAMSON, non-resident senior fellow with the Arms Control Association, and program manager of Landmine and Cluster Munition Monitor for the International Campaign to Ban Landmines-Cluster Munition Coalition

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