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29 AUG 2016


Today is International Day Against Nuclear Testing. Next month(Sept) will be the 20thanniversary of the signing of the Comprehensive Test Ban Treaty (CTBT), marked both by events in the UN and by a major international conference in Astana, Kazakhstan, in which country the majority of Soviet tests took place up to 1990.

Because the provisions for the Entry Into Force of the CTBT specify that the CTBT can only enter into force if 44 (named) governments including those of the US, India, Pakistan, and China ratify it, even 20 years after its initial signing in 1996, it has yet to officially enter into force. This is in spite of the fact that the powerful network of monitoring stations that the CTBT sets up for the verification of the norm against nuclear testing is in full or almost full operation. It has proved its worth by picking up even the smallest of the tests of the DPRK. (Its also proven very useful for providing data for Tsunami warning and geophysical research). The US, though one of its original signers, has failed to ratify the CTBT because of Congressional opposition, largely from the Republican party. China, as well as a number of other important countries, say they will ratify the CTBT as soon as the US does so.

The US itself is riven by a debate driven as much by Republican bloody-mindedness and hatred of anything that even looks like the CTBT as by anything that Obama has or has not done. Obama has talked about possibly getting the UNSC (United Nations Security Council) to adopt an essentially hortatory resolution, merely urging signature and ratification of the CTBT., as well as a companion P5 statement. According to Krepon (ACW) the resolution may not go much beyond urging the maintenance of existing national moratoria on testing. The Obama administration has already urged both India and Pakistan to sign and ratify it.

This proposed UNSC resolution has already provoked a furious reaction from GOP Senate hardliners such as Senator Corker, who accuse the administration of exceeding its powers and 'going around the back' of the US Senate. Corker also seems to believe that the 1999 US failure to ratify constitutes some kind of 'unsigning' of the CTBT, though it is nothing of the sort. As a signatory, the US continues to be bound by the CTBT's provisions, and to benefit from the CTBT monitoring network. According to Corker:
“Your administration seeks to ignore the judgement made by a co-equal branch of Government regarding the Treaty. Following the defeat of the CTBT the Executive branch came into line with the senate's view through a 2007 statement of Administration policy that 'it would be imprudent to tie the hands of a future administration that may have to conduct a test'”
Corker later on notes, disturbingly:
“...a political statement invoking the 'object and purpose' language could trigger a limitation on the ability of future administrations to conduct nuclear weapons tests.”
Actually Corker has it right here. The 'aim and object' of the CTBT is indeed, to prevent nuclear testing – by anyone.

Krepon notes concering the CTBT that:

“...Motherhood and apple pie, no? Who wouldn’t want to oppose the resumption of nuclear testing by China, Russia, India, and Pakistan? Who wouldn’t want more leverage against the one outlier that still tests, North Korea? What’s not to like about supporting international monitoring to help deter covert, very low-yield nuclear testing, with the added bonus of providing early warning to littoral states of oncoming tsunamis?”

Indeed so! Far from accusing Obama of going around the Senate's back, Corker (and other Senators) should really be getting on with the task of ensuring that the US promptly ratifies and fully supports the CTBT, of which it is one of the major beneficiaries. That they even contemplate a possibility of testing is itself worrying in the extreme. The GOP seems to want to hold onto the possibility that the US may wish to actually resume nuclear testing, a development that would have catastrophic global consequences. Any US test would be sure to be followed by Chinese and Russian nuclear tests and of course the complete breakdown of the painfully erected anti-testing regime that the CTBT represents. Pressure does exist for a possible resumption of testing, notably from some in the national labs.

A number of people within the US strategic establishment have tried to argue that the proposed UNSC resolution would actually be negative for CTBT ratification prospects. It is hard to see how a resolution of the UN Security Council that strengthens the norm against nuclear testing can possibly be of anything but benefit, but their arguments essentially go that such a resolution might annoy the Chinese, (who say their ratification will come at the same time as that of the US), and make them less likely to ratify.

That being urged to ratify might make the Chinese LESS likely to do so seems on the face of it, odd. Much depends on exactly how it is done. It is certainly possible that even a mildly worded resolution might perhaps be vetoed by them (so a UNSC resolution may not actually come to anything). That would be unfortunate. (and if the resolution DOES annoy them it WILL be vetoed). Much here depends on the skill and tact of those who negotiate the resolution, which clearly will have to, somehow, have China on board. This particular squaring of the diplomatic circle will be tricky but not impossible, especially for something as mild as seems to be contemplated.

I have now argued for over a decade that there are possibilities other than waiting forever for US, Chinese, Indian, and Pakistani ratification.

However, if the CTBT is truly to enter into force, article XIV will have to be circumvented in some way.

A number of possibilities exist, and they are not mutually exclusive.

--A group of 'Friends of the CTBT' could 'deem' that, whatever the provisions for EIF, the CTBT has entered into force. Normally that would mean that they would deem it to have entered into force FOR THEM. However I would wish to argue that FOR THEM alone is insufficient and that they would have to do the seemingly 'outrageous' and deem it to have entered into force, period. Otherwise the exercise would be pointless. If the CTBT is to be deemed 'normative' in customary law this may be sufficient for it to enter into force not for a select group who 'allow' it, but for all whether they 'allow' it or not.

A slight variant of this would be for all those who have ratified to date to deem the CTBT to be in force, either for them alone, or for all whether or not they are part of the majority of the planet who have now both signed and ratified.

--A UNSC resolution could deem the CTBT to have entered into force. Clearly it would be helpful if it were unanimous. Certainly it would at least have to survive the possibility of veto.

--An UNGA resolution could be adopted to the same effect. This has the merit of being veto-proof.

All these possibilities are awkward but by no means impossible. All would be sure to be contested. All would likely give rise to litigation at the ICJ. All of them should be tried and all could (and should) be tried at once.

At 20 years since its first signing it is long past time for the CTBT to enter into force, and the dangers of a possible resumption of testing, long thought to be unthinkable, may be shifting to become all too real.

John Hallam
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