Nuclear Arms Control by a Pen and a Phone: Effectuating the Comprehensive Test Ban Treaty Without Ratification

This Article examines three crucial national security problems concerning the testing and proliferation of nuclear weapons, and offers three novel solutions. The three urgent problems are: (1) the fact that the Comprehensive Nuclear Test Ban Treaty (CTBT), the most important multilateral nuclear arms control agreement of the past forty years, may never enter into force; (2) the fact that without CTBT, the global non-proliferation regime is in trouble, too, as the fragile consensus underpinning the world’s efforts to restrict the spread of nuclear weapons threatens to unravel; and (3) the fact that the United States is peculiarly disabled, due to persistent internal political discord, from exercising the leadership necessary to address these difficulties. In that dissonant environment, President Barack Obama has heralded his willingness to proceed with his progressive agenda “with a pen and a phone”—if Congress is irreconcilably deadlocked, he will use his pen to sign executive orders and other agency actions and his telephone to convene meetings of concerned stakeholders. The president has already proceeded with those tactics in numerous areas of domestic policy. Thus, this Article proposes cognate strategies in the international realm to rescue the CTBT and the global non-proliferation order. The three innovative options presented here are: (1) the adoption of a legally binding resolution by the United Nations Security Council to declare nuclear weapons testing a “threat to the peace”; (2) the creation of a new norm of “customary international law” prohibiting such testing; and (3) the adoption by relevant states of legally binding “unilateral undertakings” to refrain from testing. Each of these options would promote U.S. national security and global stability by legally entrenching the current voluntary moratoria against nuclear * Professor of Law, Georgetown University Law Center. The author is particularly indebted to Thomas Graham, Jr., who developed and articulated many of the key concepts underlying this article. See Thomas Graham, Jr., A New Pathway to Prohibiting Nuclear Testing, WMD JUNCTION (June 3, 2014), http://wmdjunction.com/140603_prohibiting_nuclear_testing.htm. The author also gratefully acknowledges the assistance and comments from: James E. Baker, Pierce S. Corden, James D. Fry, Duncan B. Hollis, David S. Jonas, Daniel H. Joyner, Daryl G. Kimball, Michael Krepon, Jonathan Medalia, Philip G. Schrag, David P. Stewart, and Mallory A. Stewart. © 2014,