Final NDAA Restricts CTBTO Funding

By Alicia Sanders-Zakre and Daryl G. Kimball

The final National Defense Authorization Act (NDAA) which President Donald Trump is expected to sign into law includes an amendment restricting the U.S. contribution for the Comprehensive Test Ban Treaty Organization (CTBTO), except for funds related to the International Monitoring System.

The amendment was originally penned into the House version of the bill. Although it was absent from the Senate version, it was ultimately incorporated into the conferenced version of the bill as section 1279E. The House passed this compromise NDAA on Nov. 14, and the Senate followed suit on Nov. 16. Trump is expected to sign the bill into law.

The legislation may not materially affect the total funding available for the IMS, but it sends an unhelpful signal that the Trump administration is only interested in obtaining the verification and monitoring benefits of the CTBT, and is not supportive of efforts to promote the treaty and its entry into force.

As noted in a previous Project for the CTBT post, the amendment also includes an assertion that UN Security Council Resolution 2310, passed in September 2016, does not “obligate the United States 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 Comprehensive Nuclear-Test-Ban Treaty.”

Although the political message of this language may be to assert the role of Congress in ratifying treaties, there would appear to be no tangible legal impact by UNSCR 2310 on the current U.S. obligations as a signatory to the CTBT. As a signatory to the CTBT (or any other treaty) a nation is bound, under Article XVIII of the Vienna Convention on Treaties not to take actions counter the object and purpose of the treaty.

In September 2016, the United States and the other four original nuclear weapons states issued a joint statement that said, in part: “We take this opportunity to reaffirm our own moratoria on nuclear weapons test explosions or any other nuclear explosions pending the CTBT’s entry into force…. We call on other states to do likewise, recognizing that a nuclear-weapon test explosion or any other nuclear explosion would defeat the object and purpose of the CTBT."

For more information, read the Arms Control Association Issue Brief on the original legislation, introduced by Sen. Tom Cotton (R-Ark.) and Rep. Joe Wilson (R-S.C.), which inspired the NDAA amendment.