IAEA Envoy Nomination Held Over CTBT

The nomination of a key U.S. arms control envoy has been held up by opposition from Sen. Jon Kyl (R-Ariz.), an outspoken critic of many arms control agreements.

Kyl, chairman of the Senate Republican Policy Committee, has put a “hold” on the nomination of career diplomat James B. Cunningham to serve as U.S. ambassador to the International Atomic Energy Agency (IAEA) in Vienna. The hold comes just as U.S. officials are pushing the IAEA to put pressure on Iran to curb its nuclear program

Other Senate Republicans, such as James Inhofe (Okla.), as well as Department of State Undersecretary for Arms Control and International Security John Bolton are reported to back Kyl’s opposition to the nomination. But Cunningham has the support of top officials in the Bush administration, as well as the Republican chairman of the Senate Foreign Relations Committee, Richard Lugar (Ind.).

At a nomination hearing in July, Lugar stressed the importance of having Cunningham in his new post. Cunningham most recently served as deputy permanent U.S. representative to the United Nations.

“If confirmed, Ambassador Cunningham would take his seat at the IAEA at a critical time for United States nonproliferation objectives, particularly in light of activities by North Korea and Iran,” Lugar said.

Yet, even a phone call from Secretary of State Colin Powell was not enough to convince Kyl to lift his hold before the August congressional recess, according to a Los Angeles Times report.

According to Congressional sources, Kyl has held up Cunningham’s nomination because he has not received a response to a 2003 letter to Powell regarding the administration’s interpretation of the legal status of the Comprehensive Test Ban Treaty (CTBT). The United States signed the CTBT in 1996, but the Senate rejected its ratification in 1999. Kyl was a leading Senate opponent of the pact, which cannot formally enter into force without U.S. ratification.

As a signatory to the CTBT, the United States is obligated under a customary understanding of international law not to take action contrary to the “object or purpose” of a treaty it has signed until and unless the president makes it clear that the United States does not intend to become a party. Following Senate rejection of the CTBT, then-Secretary of State Madeleine Albright sent an Oct. 18, 1999, letter to foreign leaders stating that the United States “will continue to act in accordance with its obligations as a signatory under international law, and will seek reconsideration of the treaty at a later date when conditions are better suited for ratification.”

The Bush administration opposes the CTBT but has refused to consider proposals that would alter its legal status. In 2001, Bolton asked State Department lawyers to prepare a legal assessment outlining the administration’s options. They concluded in a June 5, 2001, legal brief that, “once a treaty has been presented to the Senate…an affirmative vote to return the treaty to the executive is required to remove it from the Senate calendar.” The document further noted that the administration “has no plans to ask the Senate to do anything with the treaty.” (See ACT, September 2001.)

Later that year, senior Department of Defense officials forwarded recommendations on CTBT policy, which included repudiation of the United States’ signature. The recommendations were not formally considered.

In the meantime, the United States has been providing about 95 percent of its assessed share of expenses to the preparatory commission for the Comprehensive Test Ban Treaty Organization (CTBTO). Those funds are being used principally for setting up an international monitoring system to detect any nuclear tests. Both the Clinton and Bush administrations have judged such information to be essential for U.S. intelligence purposes. However, the Bush administration has refused to provide support for activities related to on-site inspections, which could be conducted if the treaty enters into force. If confirmed, Cunningham would also serve as the primary U.S. liaison to the CTBTO.