Disarmament Diplomacy

Opinion & Analysis

Beyond Article XIV: Strategies To Save The CTBT

By Rebecca Johnson

Introduction

The Third Conference on Facilitating the Entry into Force of the Comprehensive Nuclear-Test-Ban Treaty (CTBT), held in Vienna, September 3-5, 2003, managed to adopt a carefully-negotiated declaration, despite some last minute diplomatic scuffling between South Africa, Israel and Egypt over referencing the Nuclear Non-Proliferation Treaty (NPT).¹ The low key conference, ably chaired by Finland, tried hard to ignore the United States' boycott of the meeting,² and focussed much attention on emphasising the benefits of the CTBT and the importance of bringing its verification regime fully into effect, not only for international security, but also for a range of civilian purposes.³

The conference "broke with past practice"⁴ and adopted twelve specific, practical measures to promote entry into force, appended to its final declaration. These included organising regional seminars, demonstrating the benefits of the civil and scientific applications of the verification technologies, providing legal assistance on implementation measures to facilitate national ratification processes and so on. Though many states also supported appointing a Special Representative and establishing a trust fund to promote outreach and pursue further signatures and ratifications, these proposals are mentioned only as suggestions to be considered; though there was widespread support, the states participating in the conference were unable to come to agreement.

In keeping with diplomatic tradition, most statements alluded only obliquely to the political problems impeding the CTBT. Several mentioned India, Pakistan and the Democratic Peoples Republic of Korea (DPRK). A few, including Malaysia, on behalf of the non-aligned states (participating in a collective capacity for the first time at a CTBT conference), referred to US political developments, notably the US Nuclear Posture Review (NPR) and plans to develop new types of nuclear weapons.⁵ Russia also expressed "serious concern with the plans of developing new types of nuclear warheads, all the more that they are accompanied by a decision to cut the timeframe needed to get ready for conducting nuclear tests".⁶

Although criticism was publicly muted, there was much discussion in the corridors about how to thwart the Bush administration's apparent determination to kill the treaty and conduct further nuclear test explosions. Though not reflected in the conference documents, which were pre-cooked over months in Vienna, a growing number of states may now be prepared to consider taking higher profile political initiatives to embed the CTBT's prohibition against nuclear explosions as a more credible legal and international norm. Pointing out that the treaty "does not belong to those states that refuse to sign or ratify", Canada noted that "various aspects of the treaty are today being applied provisionally".⁷ This is true, but delegates also showed much interest in my presentation at a seminar organised on the first day by the Verification Research, Training and Information Centre (VERTIC), which argued that to deter those bent on destroying the CTBT, it may be necessary for test ban advocates to take further urgent steps to provide a more formal legal basis for provisional application.⁸ The case for considering provisional application is summarised below.

Vienna, 2003

Altogether, 101 states which had signed or ratified the CTBT participated in the conference, while an additional six states, several specialist agencies or intergovernmental organisations and 19 non-governmental organisations attended. A universal welcome was given to Algeria for swelling the throng of ratifiers this year, and to Afghanistan, which announced on the final day that it had signed and even deposited its instrument of accession. By the end of the conference, therefore, 169 states had signed, 105 of which have ratified. Of the 44 states with nuclear capabilities listed in Annex 2 of the treaty, whose ratification is required for entry into force under Article XIV, 41 have signed, of which 32 have ratified. The national decisions of 12 states stand between the treaty and its entry into force. Of these, two non-signatories (India and North Korea) and one signatory (the United States) deliberately boycotted the conference.

In a statement that generally followed the time-honoured diversionary tactic of talking about other worthy, longer term objectives when faced with a near-term commitment it has not itself fulfilled, China tantalised the conference with hints that it might actually ratify the CTBT some time soon, and not just wait for the United States, as many had hitherto assumed. Though still tying its policy to India's lead, Pakistan attended as an observer, which was consistent with its vote in favour of the CTBT at the United Nations in September 1996.

Most statements exhorted the remaining hold-outs to join the treaty, many extolled the progress in and benefits of the verification regime, and several itemised the steps they had taken to further the aims and objectives of CTBT entry into force. Concerns were raised about the unfinished on-site inspections (OSI) manual, which also served as code for criticising the Bush administration, which has sought to withhold its financial contributions from the OSI aspects of the verification regime.

All in all, despite the months of negotiations over the declaration and the hours of worthy statements, the Article XIV conference was barely visible on any significant political radar. Apart from some high-level ministerial statements and excellent exhibitions and information on verification provided by the Preparatory Commission for the CTBT Organisation (CTBTO) and some states and NGOs, the Vienna conference appeared keen not to do anything that might attract political attention or risk causing offence to CTB opponents.

For example, as illustrated by the conflict between Israel and South Africa over mentioning the NPT, the ratifying states failed to utilise one of the few diplomatic incentives available to them. Under the conference rules of procedure, signatories are invited to participate, but decision-making is a right conferred by the act of ratification, though the ratifiers should take into account the views of signatories. Yet, despite not yet having ratified the CTBT, Israel was accorded the power to prevent direct mention of the NPT in the final declaration, thereby thwarting the will of South Africa and other NPT parties that have already ratified the test ban, who wanted to emphasise the relationship between the CTBT and the nuclear disarmament commitments underscored by NPT parties in 1995 and 2000. It is well understood why Israel, which remains outside the NPT, wanted to avoid any specific endorsement of this treaty, but until it ratifies the CTBT it should not be given the same rights as ratifiers to block consensus. In the end, paragraph 3 used NPT language without naming the treaty, clumsily affirming the importance of the CTBT for "the practical steps for the systematic and progressive efforts towards nuclear disarmament and nuclear non-proliferation which were agreed to by the participating states at international forums dealing with nuclear disarmament and nuclear non-proliferation."

Rather than pander to Israel's minority opposition to the NPT, acceded to by all other signatories and ratifiers, the Article XIV Conference could have used the disagreement to exert leverage on Israel. It should have been made clear that though Israel's point of view as a signatory would be taken into account, the proposal of South Africa, as a ratifier, took precedence. The right to block consensus is an incentive and should have been more judiciously wielded at the Conference.

Urgent Action Required

The desire not to offend or alienate those states that have so far failed to adhere to important regime-building agreements is understandable in the world of consensus-based diplomacy, but it risks leaving the instruments of multilateralism vulnerable to abuse and exploitation by less scrupulous unilateralists pursuing narrowly-determined national interests at the expense of broader, collective international security goals.

The fact that 169 states have signed the CTBT and 105 states have ratified gives eloquent testimony to the treaty's importance for world security. Unfortunately, the hit and run tactics of a couple of key governments, notably the Bush Republicans and India's Bharatiya Janata Party (BJP), have badly injured the test ban. And the Bush administration appears determined to continue inflicting injury: in its repeated assertions of opposition to the CTBT, the Bush administration is trying to convince the world that the test ban is already comatose, and killing it would be merciful rather than murderous. It must be recalled that prior to withdrawing from the Anti-Ballistic Missile (ABM) Treaty, the Bush administration portrayed that treaty as a relic of the Cold War and strategised to minimise the political fallout of withdrawal. Its approach was largely successful: despite all the rhetoric, the opposition rolled over when faced with a fait accompli.

The same calculations are being employed with regard to the CTBT, despite the obvious differences. Where the ABM Treaty, a bilateral instrument of Cold War mutual-assured destruction (MAD) doctrine and nuclear deterrence, was difficult for most disarmament advocates to defend, the CTBT, long obstructed during the Cold War, is the post-Cold War product of multilateral, internationalist and collective security aspirations. The United States took the lead in its negotiations and should not be permitted to walk away from the responsibility entailed in such high level participation or play partisan, ideological football with international security.

The neoconservatives' repeated assertions and votes against the CTBT are designed to lower the credibility and salience of the test ban norm and convince CTB advocates that there is no point in trying to say or do anything on this issue, as Bush is not going to change his mind. Their strategy is working. References to the CTBT at the last two NPT PrepComs were little more than perfunctory. Ambassador Wolfgang Hoffmann, Executive Secretary of the CTBTO, was prevented from speaking at the 2003 NPT Preparatory Committee (PrepCom) because of American objections. Though many and bitter were the complaints in the corridors, few NPT parties objected openly, as they no longer regard the US as persuadable by reason, although opinion polls still show the majority of Americans to be against any resumption of nuclear testing. Attempts by NGOs to get the UK to use its 'special relationship' to advance the cause of the CTBT in America were stonewalled. Worse still, as the UK contemplates a follow-on to the aging Trident nuclear system, UK nuclear laboratories are being seduced into ever closer collaboration with the US laboratories which, as revealed in the planning minutes for the Omaha nuclear policy meeting, are considering whether the US should "adjust its policy on nuclear weapons testing".⁹

Just one further nuclear test, conducted for short-sighted reasons by political ideologists chained to outdated nuclear ambitions, could destroy this treaty, and, with it, years of efforts to curb the proliferation of nuclear weapons. It was hard enough getting the relevant states to the negotiating table. If the CTBT is killed, it will be almost impossible to resurrect it. If the CTBT is killed, international efforts to prevent the spread of nuclear weapons and achieve nuclear disarmament will undoubtedly perish too.

The following section suggests steps that should be taken urgently to augment the credibility of the CTBT and raise much higher political costs for any country that may be contemplating future nuclear explosions, whether the US, India, Pakistan or North Korea. One important mechanism capable of strengthening the CTBT and raising the political stakes for its opponents is provisional application.

Provisional Application

Provisional application is a rarely used but potentially useful device to bypass extraordinary, temporary or unanticipated political obstacles associated with entry into force. It enables a treaty that is supported by a significant number of ratifiers to be implemented as far as possible. Though not as far reaching as full entry into force, provisional application, as enshrined in Article 25 of the 1969 Vienna Convention on the Law of Treaties, can give greater authority to a treaty than if it is left in indefinite limbo with the entry into force requirements unfulfilled. Provisional application is not a substitute for entry into force, but can help to create more positive conditions and incentives to encourage or pressure more states to adopt and ratify the treaty, thereby facilitating full entry into force.

The negotiating record of the CTBT makes clear that the special conferences convened under Article XIV do not have the power to waive the stringent entry into force requirements or the list of states in annex 2. The conference was not wholly confined to 'handwringing' and uttering blandishments and declarations, however. As the practical measures atteched to this year's Final Declaration attest, it can appoint or call on states to offer practical and financial assistance, including help with model legislation, to enable and encourage further states to ratify. In particular, if states which have ratified the treaty so decide, they can use the conference as a springboard to initiate discussions and develop procedures for further measures, including provisional application.

Article 25 of the Vienna Convention states that "a treaty or part of a treaty is applied provisionally pending its entry into force if: the treaty itself so provides", which the CTBT did not, or if "the negotiating states have in some other manner so agreed". It is clear that while the treaty did not specifically mention provisional application, it also did not in any way rule it out. Moreover, it can be argued that the negotiating states already agreed, in effect, to substantial provisional application when they established the Preparatory Commission of the CTBTO. Legally, therefore, any group of ratifiers can collectively decide to call a conference to take provisional application of the treaty further, deeping its political institutionalisation.

Depending on how provisional application is entered into, it means that, pending entry into force, all or part of a treaty takes legal effect for those who wish to abide by the agreements. Though not binding on those who remain outside, a treaty that is provisionally applied by a large number of states has enhanced legal standing, increasing the political costs of violation.

Two Relevant Examples of Provisional Application

Two recent treaties illustrate how provisional application can be used as a temporary device to consolidate multilateral treaties.

In the case of the 1990 Treaty on Conventional Armed Forces in Europe (CFE), which was signed on November 19, 1990, there were concerns that the break-up of the Warsaw Pact caused complications for entry into force that might not be speedily resolved. In view of nervousness about this among some of the legislative bodies charged with approving the treaty's ratification in certain key parties, notably the United States, the relevant states adopted a Protocol on the Provisional Application of Certain Provisions of the CFE on July 17, 1992.

The mechanism of provisional application was primarily a confidence-building measure, designed to convince congressional and parliamentary members that the treaty had a firm, sustainable legal and security basis, pending resolution of the questions raised by the Warsaw Pact's dissolution. Provisional application relieved some of the political pressures on the CFE and prevented a hold-up in national ratifications. It was then possible for the provisional entry into force status to be ended on November 9, 1992, when the Treaty entered fully into force.

The Law of the Sea Convention (UNCLOS) offers a further example of provisional application undertaken to facilitate the largest possible adherence to a treaty.¹⁰ Opened for signature on December 10, 1982, the entry into force requirement for UNCLOS was 60 ratifications. When this had not been achieved after 10 years, and in view of persistent US opposition to certain parts of the Convention, its supporters took forward the provisional application of Part XI (dealing with the exploration and exploitation of seabed resources in the area considered to be the common heritage of mankind). Provisional application was agreed on July 28, 1994. It served to convince the corporations leaning on the US and other governments, that they would not succeed in overturning the constraints on seabed resource exploitation. Once they had given up, the necessary ratifications went ahead, and two years later, on July 28 1996, the agreements were able to enter into force.

Grounds for CTBT Provisional Application

The competing interests of some of the NPT nuclear-weapon states and the so-called 'threshold' or aspirant nuclear weaponeers clashed disastrously during the messy endgame of the CTBT negotiations in 1996, threatening to delay and potentially derail conclusion of the treaty. To avoid such a possibility, a composite formula for entry into force was shoe-horned into Article XIV. This listed 44 states with nuclear capabilities, requiring that every single one must sign and ratify before the treaty could enter into force.

Despite valiant attempts to soften the stringency of this list and make it more workable, it was positioned as an immovable condition. The special conference idea had started life as a proposal for a waiver conference, which would have enabled CTBT entry into force to be manoeuvred around the provision providing there was enough support. The waiver conference had been dropped due to early opposition by some delegations, so was no longer available in the endgame. The provision for a special conference that was explicitly declared not to be a waiver conference was added in by middle powers, notably Canada and Austria, as a kind of lifeboat, as many belatedly realised that Article XIV's list gave a privileged veto to 44 states, in effect permitting the treaty's opponents to wreck it.

India, which had by this time decided against the treaty, declared this provision coercive. Far from increasing pressure on India to join, the provision exacerbated Indian hostility to the test ban treaty and let its pro-nuclear politicians off the hook.

So far, 32 of the 44 states have ratified, including Britain, France and Russia. Among the 12 hold-outs, India, Pakistan and the DPRK have not yet even signed. After each conducted a series of nuclear explosions in May 1998, India and Pakistan declared moratoria on further testing and indicated that they would sign the treaty, though neither has done so. In a shameful display of partisan politicking taking precedence over international security considerations, the US Senate failed to ratify the accord in 1999. The Bush administration has subsequently made clear in numerous official and public statements that it does not support the CTBT and has no intention of undertaking any further ratification effort. China keeps promising to ratify in the near future, but has not yet done so. The others are: Colombia, the Democratic Republic of the Congo, Egypt, Indonesia, Iran, Israel, and Viet Nam.

Some states began to float the possibility of provisional application in 1999 and again in 2001. The general view at the time, with which I concurred, was that this was premature, and that renewed political resources must be devoted to achieving entry into force. At the time of the special conference in 2001, though the portents for the CTBT were pessimistic, the Bush administration was relatively new and the political environment was overshadowed by the September 11 terrorist attacks. It was hoped that, as occurred with regard to the cooperative threat reduction programmes in former Soviet states, the actual practice of government would convince Bush to forego his ideological opposition to the CTBT in view of its value as one of the core instruments of the non-proliferation regime. That has not happened.

It is a sad fact of realpolitik that the CTBT's fate now depends primarily on decisions taken by a small clique of long-time opponents in the United States. Since taking power in 2001, the Bush administration has voted or spoken against the CTBT in the UN First Committee on Disarmament and International Security, and during meetings of the NPT. Its attitude, epitomised by the 2002 NPR and National Security Strategy, is to keep all its options open. The neoconservative strategy of attrition on the CTBT's salience appears to be preparing the ground for US repudiation of its signature.

Recently, in response to the question "what are the warhead characteristics and advanced concepts we will need in the post-NPR environment", the nuclear weapons laboratories have been analysing requirements for "low yield weapons, earth penetrating weapons, enhanced radiation weapons, agent defeat weapons". Their considerations included the "testing strategy for weapons more likely to be used in small strikes".¹¹ In assessing the "contribution of nuclear forces to each of the four principal defense goals: assurance, dissuasion, deterrence and defeat", the nuclear laboratories are also analysing "qualitative differences in nuclear forces than may be needed", necessitating re-examination of US testing policy.¹²

These excerpts from the minutes of the labs' January 2003 Stockpile Stewardship Conference Planning Meeting indicate that the neoconservatives want nuclear weapons to become more usable and, despite continuing to mouth support for the moratorium on testing that it currently observes, the Bush administration is weighing the pros and cons of resuming nuclear testing.¹³ Although the results of the high level meeting on nuclear policy, held in Omaha on August 7-8, have not yet been published, many believe it is only a matter of time: the smart Washington money expects that if Bush is re-elected in November 2004, he will give the go-ahead to break the testing moratorium.¹⁴

With its future in indefinite limbo, few of even the CTBT's most ardent state supporters are willing to expend political capital on the treaty when faced with Bush's implacable hostility. Even the UK, one of the earliest ratifiers, is beginning to hedge its bets in the knowledge that the US would be prepared to make the Nevada test site available for British nuclear tests if the CTBT were killed off. France and Russia are less happy about the potential prospect of a resumption of testing: France has closed its test sites in the Pacific, while Russia, which has only Novaya Zemlya in the Arctic, dreads the additional expense it would be forced to lay out if it were to try to respond in kind to a resumption of US and Chinese testing and new developments. But while the Bush administration parades its contempt for the CTBT, little international pressure can be brought to bear on India, Pakistan or North Korea. Funding for the CTBTO and verification regime is also becoming more shaky.

Though re-election is becoming somewhat less certain because of America's growing economic problems and the military mess being made in Iraq, it would be foolish for the international community to gamble the CTBT's fate on an electoral upset. Steps must be taken now to increase the credibility of the CTBT and raise much higher political costs for any country that may be contemplating future nuclear explosions, whether the US, India, Pakistan or North Korea.

Procedure for Achieving Provisional Application

There are several ways in which this can be done. Most simply, a group of ratifiers could agree to convene a 2-3 day special conference in 2004, inviting all CTBT ratifiers (and signatories as observers) to negotiate and agree a protocol on provisional application.

Based on past precedents and the particular needs of the test ban treaty, the provisional application agreement could be worded along the following lines and endorsed through the Conference on Disarmament and UN General Assembly:

1. To promote the implementation of the Comprehensive Nuclear-Test-Ban Treaty, as opened for signature on September 24, 1996, hereinafter referred to as the Treaty, the States Parties hereby agree to the provisional application of certain provisions of the Treaty.

2. Without detriment to the provisions of Article XIV of the Treaty, the States Parties shall apply provisionally all other Articles, Protocols and Provisions of the Treaty.

3. The Treaty shall be applied provisionally [on DATE] by all States which have signed and ratified the Treaty, unless they notify the Depositary in writing that they do not consent to such provisional application.

4. The Treaty shall be applied provisionally by any State which has signed the Treaty, which consents to its provisional application by so notifying the Depositary in writing. Such provisional application shall become effective from the date of receipt of the notification by the Depositary.

5.Regardless of whether a signatory State has agreed to provisionally apply the Treaty, financial contributions for supporting Treaty implementation and verification shall remain as agreed in the Schedule [give details] unless a State notifies the Depositary in writing of its intention to alter its financial contribution.

6. Provisional application shall terminate upon the entry into force of the Comprehensive Nuclear-Test-Ban Treaty. In conformity with Article IX of the Treaty, any State may also withdraw its consent from provisional application by notifying the Depositary in writing, and must include a statement of the extraordinary event or events related to the subject matter of this Treaty which the State regards as jeopardising its supreme interests.

The approach above has two advantages: an automatic cooption of all ratifiers (with a provision for opting out if a national decision is taken to that effect) plus a mechanism for signatories to opt in by executive decision. In the first case, states which have already ratified are not required to take additional national steps to be included in provisional application. Unless specific conditions have already been attached to a country's ratification, the decision to provisionally apply the CTBT would not require normally require additional legislative or judicial action. Whether additional legislation or agreement would be needed if a government wished to opt out would, of course, depend on national law or specific implementation procedures. The opt-in option for signatories could be used in cases where national ratification had become bogged down in difficult legislative, judicial or bureaucratic processes.

Paragraph 2 is crucial: it means that the entire treaty, as concluded and signed, is applied, apart from the entry into force requirement listing the 44 states. Since it is without detriment to Article XIV, every effort would continue to be made to fulfil the requirements and enable full entry into force. Moreover, as also spelled out in paragraph 6, provisional application does not interfere with the withdrawal provisions in the treaty: withdrawal is possible if a state decides that extraordinary events related to the subject matter of the treaty have jeopardised its supreme interests. Though it would be hoped that states parties would not jettison the treaty in the event of a further nuclear test, it must be recognised that without the 'supreme interest' clause, some countries might find it politically impossible to support provisional application.

Though the rules of procedure for the Article XIV conference require consensus among the ratifiers, decision-making in the case of provisional application can be according to rules determined by the participating states. For example, to adopt amendments at an Amendment Conference, the CTBT requires "a positive vote of a majority of states parties with no state party casting a negative vote". On the other hand, Article 9 of the Vienna Convention takes as general practice for treaty decision-making the less stringent requirement of a positive vote of two-thirds of the states participating and voting.

Concerns and Considerations

In this final section, I consider some of the more commonly heard concerns regarding provisional application.

1. It represents a loss of confidence that entry into force can be achieved in a timely manner.

Yes, but in the case of the CTBT, that reality must be faced up to. The combination of a prohibitively-stringent entry into force provision and unpropitious, though politically contingent (and therefore transitory), circumstances and conditions in more than one of the required states, means that entry into force cannot be achieved in the near future. Under such unpromising circumstances, provisional application is the best way to restore confidence in the test ban and confer greater legal authority on the treaty regime than it has at present. Nothing in the treaty or its negotiating record prevents provisional application being pursued. Procedurally it need not be very complicated. Legally, those states which have ratified have the power to do whatever they collectively agree to do.

2. It will annoy the Americans, who will threaten to pull out of the moratorium or further reduce their financial contributions.

This was one of the most compelling arguments against pursuing provisional application in 2001, when there was still some hope that the Bush administration's overt rejection of the CTBT could be contained and even reversed. There is now mounting evidence, outlined in numerous briefings and leaked documents, that the Bush administration is keeping to the moratorium not from conviction, but to neutralise criticism while it prepares the ground to resume testing and kill off the CTBT. Only a concerted political effort involving many high-profile US allies can now save the treaty. Provisional application ups the political ante, it is true, but since playing safe and quiet with the Bush administration ensures only that they ride roughshod over their friends' views, provisional application is the best available mechanism for the international community - and particularly US allies - to demonstrate the importance of the CTBT and nuclear non-proliferation and disarmament.

It must be remembered that the test ban enjoys much greater support in the United States than a resumption of testing would have, and CTBT-advocates include highly placed political and military officers. But the administration is banking on no-one speaking up, and unless the issue is made more public, controversial and visible, they will be proved right. Initiating moves to provisionally apply the CTBT will undoubtedly attract expressions of hostility from Bush representatives, not least because it would attract attention and demonstrate that, unlike the ABM Treaty, the international community is not prepared to give up without a fight.

Maintaining US financial contributions is important, but they are already being shaved and threatened. However, there is also a quid pro quo for US experts and contractors which will make it harder for the US to pull out financially if the CTBT appears to be viable. Though concerted international efforts to support and consolidate the treaty may accelerate a crisis with the treaty's opponents, they are unlikely to provoke the US to do anything the Bush administration is not already planning to do. Silence, in this case, is more likely to be fatal.

Most importantly, by highlighting the importance of the CTBT to nuclear disarmament and non-proliferation and heightening concerns in Congress and among the US press and public, moves towards provisional application may help to derail plans to resume testing. In other words, whether or not it proves possible to get all the legal and diplomatic pieces in place to accomplish provisional application, it needs to be taken forward as a political initiative to publicise and strengthen the test ban norm and deter future tests.

3. Article 18 of the Vienna Convention obliges signatories "to refrain from acts which would defeat the object and purpose of a treaty". What would provisional application add to this legal position?

The Vienna Convention carries the assumption that signatories have consented to be bound by a treaty pending its entry into force "provided that such entry into force is not unduly delayed".¹⁵ The entry into force prospects of the CTBT seven years since being opened for signature are such that a case could be made that it has already been unduly delayed. Moreover, the US has not actually acceded to the Vienna Convention, and if it had, its repeated public and diplomatic statements or votes opposing the CTBT would already constitute acts intended to weaken and discredit the CTBT and therefore, in effect, to defeat its object and purpose.

4. Provisional application will indefinitely postpone entry into force.

History suggests otherwise: as the CFE and UNCLOS examples show, provisional application serves as a confidence-building mechanism that is likely to accelerate rather than hinder the achievement of full entry into force.

5. Provisional application will let India, Pakistan, North Korea etc off the hook.

In view of US opposition to the Treaty, they are off the hook now. Provisional application will not of course bring about their instant signatures, but in reviving the credibility of the test ban regime, it will bring the CTBT back into their calculations and increase the effectiveness of international and domestic pressure and arguments against future testing by any of these countries.

6. Since the US, India and Pakistan are states parties to the 1963 Partial Test Ban Treaty (PTBT), why not instigate another amendment conference for the purposes of adopting the CTBT (as negotiated by the Conference on Disarmament, minus Article XIV), thereby transforming the PTBT to a CTBT?

To be adopted, an amendment to the PTBT must have the support of a majority of its parties plus that treaty's three Original Parties, i.e. the United States, Russia and Britain. If the US were already on board, then the PTBT Amendment mechanism might well serve as a way of bypassing the current objections of a small number of countries to bring the CTBT into force. As long as the US is one of the opponents and hold-outs, the PTBT Amendment process would not be useful.

Conclusion

The Third Special Conference was not quite the non-event that many had predicted, but despite its laudable objectives and the inclusion of practical measures in its final declaration, this Article XIV conference served principally to highlight the fear many have that if President Bush achieves a second term the CTBT will be doomed. What is needed now is a high profile public and political campaign to demonstrate the importance and value of the test ban treaty and force a wider debate about nuclear policy into the US political arena before the 2004 elections Provisional application offers an effective tool to enable the ratifiers - now numbering over a hundred - to take the initiative to save their treaty.

Whilst it is clear that provisional application should never be prematurely or lightly entered into, the prospects for the CTBT are now so jeopardised that it needs to be considered as a matter of urgency. The role of provisional application is not to waive the entry into force requirements, but to give greater legal weight to a treaty if its entry into force becomes unreasonably obstructed or delayed due to political blackmail or transitory conditions, or for reasons that a significant number of potential parties are willing to move beyond, at least temporarily. The CTBT's current situation is so vulnerable that it now meets the criteria for consideration of such an initiative.

There is little to lose, since the Bush administration's intentions already profoundly threaten the CTBT, and real gains may potentially be made. Provisional application should be enacted as a confidence-building mechanism, to reinforce the legal standing of the CTBT, encourage further ratifications, and deter any state from conducting a nuclear explosion in the future. The target audience of such an initiative would be test ban supporters in the United States and the other countries currently holding up entry into force. CTBT signatories and supporters need to send these hold-outs a much stronger signal than the 2003 final declaration. At the very least, taking the treaty to a higher stage of provisional application would deliver an unequivocal message: that the international community will not tolerate any further nuclear testing.

Notes and References

1. The complete text of the Final Declaration and Measures to Promote the Entry into Force of the CTBT is appended at the end of this report.

2. For an account of the US boycott of the second Special Conference, see Rebecca Johnson, 'Boycotts and Blandishments: Making the CTBT Visible', Disarmament Diplomacy No. 61, October/November 2001, pp. 3-8.

3. See http://www.ctbto.org for press releases summarising the main statements and debates.

4. Statement by Aileen Carroll, MP, Parliamentary Secretary to the Minister of Foreign Affairs of Canada, Vienna, September 4, 2003.

5. Dato' Hussein Haniff, Permanent Representative of Malaysia to the CTBTO, on behalf of the Non-Aligned Movement states signatories and ratifiers to the CTBT, Vienna, September 3, 2003.

6. Grigory Berdennikov, Permanent Representative of the Russian Federation to the International Organisations in Vienna, September 3, 2003.

7. Aileen Carroll, Canada, op. cit.

8. I presented an extended version of these arguments in a paper entitled 'Time to consider provisional application', presented at the VERTIC seminar on Verifying the Comprehensive Nuclear Test Ban Treaty: Participation, Progress and Potential, Vienna, September 3, 2003.

9. Stockpile Stewardship Conference Planning Meeting Minutes, Pentagon, January 10, 2003.; see the website of the Los Alamos Study Group, http://www.lasg.org/StockpileStewardshipReview.htm.

10. I am grateful to Jozef Goldblat for drawing this to my attention and for his helpful comments on multilateral precedents in provisional application.

11. Stockpile Stewardship Conference Planning Meeting Minutes, Pentagon, January 10, 2003, op.cit.

12. Ibid.

13. See also Christine Kucia and Daryl Kimball, 'New Nuclear Policies, New Weapons, New Dangers', Arms Control Association (ACA) Issue Brief, April 28, 2003, http://www.armscontrol.org/pdf/newnuclearweapons.pdf.

14. For further analysis of the current US attitude toward the moratorium and possible future testing 'requirements', see Stephen Pullinger, 'US Policy - WMD, Good and Bad', in this issue of Disarmament Diplomacy.

15. See Masahiko Asada, 'CTBT: Legal Questions Arising from its Non-Entry-Into-Force', Journal of Conflict and Security (2002), vol 7 no. 1, pp. 85-122.

Rebecca Johnson is Executive Director of the Acronym Institute and Publisher of Disarmament Diplomacy.

Appendix: Treaty Status & Conference Documentation

For further documentation from the Article XIV conference, see:

• Disarmament Documentation: Conference on Facilitating Entry into Force of CTBT, Vienna, September 3-5
• Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization

I. Treaty Status

A. Signatories

The 169 States that have signed the Treaty are: Afghanistan, Albania, Algeria, Andorra, Angola, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belarus, Belgium, Belize, Benin, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Brunei Darussalam, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Cook Islands, Costa Rica, Cote d'Ivoire, Croatia, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Djibouti, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Estonia, Ethiopia, Fiji, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Holy See, Honduras, Hungary, Iceland, Indonesia, Iran, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kenya, Kiribati, Kuwait, Kyrgyzstan, Lao People's Democratic Republic, Latvia, Lesotho, Liberia, Libya, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Marshall Islands, Mauritania, Mexico, Micronesia, Monaco, Mongolia, Morocco, Mozambique, Myanmar, Namibia, Nauru, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Oman, Palau, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Republic of Korea, Republic of Moldova, Romania, Russian Federation, Saint Lucia, Samoa, San Marino, Sao Tome and Principe, Senegal, Serbia and Montenegro, Seychelles, Sierra Leone, Singapore, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sri Lanka, Suriname, Swaziland, Sweden, Switzerland, Tajikistan, Thailand, The former Yugoslav Republic of Macedonia, Togo, Tunisia, Turkey, Turkmenistan, Uganda, Ukraine, United Arab Emirates, United Kingdom, United States, Uruguay, Uzbekistan, Vanuatu, Venezuela, Viet Nam, Yemen, Zambia and Zimbabwe.

B. Ratifiers

The 105 States that have deposited their instruments of ratification of the CTBT are: Afghanistan, Albania, Algeria, Argentina, Australia, Austria, Azerbaijan, Bangladesh, Belarus, Belgium, Benin, Bolivia, Botswana, Brazil, Bulgaria, Burkina Faso, Cambodia, Canada, Chile, Costa Rica, Cote d'Ivoire, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, El Salvador, Estonia, Fiji, Finland, France, Gabon, Georgia, Germany, Greece, Grenada, Guyana, Holy See, Hungary, Iceland, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kenya, Kiribati, Kuwait, Lao People's Democratic Republic, Latvia, Lesotho, Lithuania, Luxembourg, Maldives, Mali, Malta, Mauritania, Mexico, Micronesia, Monaco, Mongolia, Morocco, Namibia, Nauru, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Oman, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Republic of Korea, Romania, Russian Federation, Saint Lucia, Samoa, San Marino, Senegal, Sierra Leone, Singapore, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Tajikistan, The former Yugoslav Republic of Macedonia, Turkey, Turkmenistan, Uganda, Ukraine, United Arab Emirates, United Kingdom, Uruguay, Uzbekistan and Venezuela.

C. Annex 2 States

The 32 Annex 2 countries that have ratified the Treaty are: Algeria, Argentina, Australia, Austria, Bangladesh, Belgium, Brazil, Bulgaria, Canada, Chile, Finland, France, Germany, Hungary, Italy, Japan, Mexico, Netherlands, Norway, Peru, Poland, Republic of Korea, Romania, Russian Federation, Slovakia, South Africa, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom.

The following 12 States whose ratification is required for entry into force, but who have not yet ratified, are: China, Colombia, Democratic People's Republic of Korea, Democratic Republic of the Congo, Egypt, India, Indonesia, Iran, Israel, Pakistan, United States and Viet Nam.

Of the Annex 2 States, the Democratic People's Republic of Korea, India and Pakistan have not signed the Treaty.

II. Final Declaration & Measures to Promote Entry into Force, September 5

'Final Declaration and Measures to Promote the Entry into Force of the Comprehensive Nuclear-Test-Ban Treaty', adopted on September 5; included as Annex I in the 'Report of the Conference', CTBT - Art.XIV/2003/5, issued on September 11, full text available at http://www.ctbto.org/reference/article_xix/2003/
afe2003_report_conference.pdf.

Final Declaration

1. We, the ratifiers, together with the states signatories, met in Vienna from 3 to 5 September 2003 to promote the entry into force of the Comprehensive Nuclear-Test-Ban Treaty at the earliest possible date. In accordance with the mandate given to us in Article XIV of the Treaty, we decided by consensus what measures consistent with international law may be undertaken to accelerate the ratification process in order to facilitate the early entry into force of the treaty.

2. We reaffirmed our strong determination to enhance international peace and security throughout the world and stressed the importance of a universal and internationally and effectively verifiable comprehensive nuclear-test-ban treaty as a major instrument in the field of nuclear disarmament and non-proliferation in all its aspects. We reiterated that the cessation of all nuclear weapon test explosions and all other nuclear explosions, by constraining the development and qualitative improvement of nuclear weapons and ending the development of advanced new types of nuclear weapons, constitutes an effective measure of nuclear disarmament and non-proliferation in all its aspects and thus a meaningful step in the realization of a systematic process to achieve nuclear disarmament. We therefore renewed our commitment to work for universal ratification of the Treaty and its early entry into force.

3. We noted with appreciation the overwhelming support for the Treaty that has been expressed by the United Nations General Assembly and other multilateral and regional organs and initiatives, which have called for signature and ratification of the Treaty as soon as possible and have urged all states to remain seized of the issue at the highest political level. We reaffirmed the importance of the Treaty and its entry into force for the practical steps for the systematic and progressive efforts towards nuclear disarmament and nuclear non-proliferation which were agreed to by the participating states at international forums dealing with nuclear disarmament and nuclear non-proliferation.

4. Since the Treaty was adopted by the United Nations General Assembly and opened for signature almost seven years ago, progress has been made in the ratification process. We welcomed this as evidence of the strong determination of states not to carry out any nuclear weapon test explosion or any other nuclear explosion, and to prohibit and prevent any such nuclear explosion at any place under their jurisdiction or control. As of today, 168 stares have signed and 104 states have deposited their instruments of ratification. Of the 44 states listed in Annex 2 to the Treaty whose ratification is required for its entry into force, 41 have signed, and of these, 32 have also ratified the Treaty. A list of these States is provided in the Appendix.

5. However, despite the progress made and the strong support for the Treaty by the international community, we noted with concern that it has not entered into force seven years after its opening for signature. In this connection, we stress the particular importance of prompt signature and ratification by those whose ratification is needed for its entry into force but who have not yet done so.

6. The prevention of the proliferation of weapons of mass destruction is one of the most important challenges facing the world. International developments have occurred since the 2001 Conference on facilitating the Entry into Force of the CTBT which make entry into force, within the broader framework of multilateral disarmament, arms control and non-proliferation efforts, as urgent today as when the Treaty was negotiated. We therefore reaffirm that the CTBT has an essential role to play in strengthening global peace and security.

7. We call upon all states that have not yet done so to sign and ratify the Treaty without delay, in particular those 12 whose ratification is needed for its entry into force.

8. We further call upon all states to continue a moratorium on nuclear weapon test explosions or any other nuclear explosions. Voluntary adherence to such a moratorium is of the highest importance, but does not have the same effect as entry into force of the Treaty, which offers the global community the prospect of a permanent and legally binding commitment to end nuclear weapon test explosions or any other nuclear explosions. We reaffirm our commitment to the Treaty's basic obligations and call on all states to refrain from acts which would defeat the object and purpose of the Treaty pending its entry into force.

9. We consider it essential to maintain momentum in building the verification regime, which shall be capable of meeting the verification requirements of the Treaty at its entry into force. The verification system will be unprecedented in its global reach after entry into force of the Treaty and will thereby ensure confidence that states are maintaining their Treaty commitments. In this context, we will continue to provide the support required to enable the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization to complete its tasks in the most efficient and cost-effective way.

10. We reaffirm our determination to continue to work towards an early entry into force of the Treaty and to this end adopt the following measures.

Measures to Promote the Entry into Force of the Comprehensive Nuclear-Test-Ban Treaty

Convinced of the importance of achieving universal adherence to the Treaty, we

(a) Will spare no efforts and use all avenues open to us in conformity with international law to encourage further signature and ratification of the Treaty, and urge all states to sustain the momentum generated by this Conference by continuing to remain seized of the issue at the highest political level;

(b) Support and encourage bilateral, regional and multilateral initiatives by interested countries and the Preparatory Commission of the Comprehensive Nuclear-Test-Ban Treaty Organization to promote the entry into force of the Treaty;

(c) Agree that ratifying states will select one of their number as a coordinator to promote cooperation, through informal consultations with all interested countries, aimed at promoting further signatures and ratifications;

(d) Will establish a contact list of countries among ratifiers which volunteer to assist the coordinator in various regions, as appropriate, in promoting activities enhancing the entry into force of the Treaty;

(e) Agree that ratifying states will consider appointing a Special Representative to assist the coordinating state in the performance of its function in promoting the entry into force of the Treaty;

(f) Recommend that ratifying states will consider establishing a trust fund, financed through voluntary contributions, to support an outreach programme for promoting the Treaty;

(g) Encourage the organization of regional seminars in conjunction with other regional meetings in order to increase the awareness of the important role that the Treaty plays;

(h) Call upon the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization to continue its international cooperation activities and organizing seminars for experts in the legal and technical fields;

(i) Call upon the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization to continue promoting understanding of the Treaty and demonstrating the benefits of the civil and scientific applications of the verification technologies, inter alia, in such areas as environment and earth science and technology;

(j) Recommend that the Provisional Technical Secretariat continue to provide states with legal assistance with respect to the ratification process and implementation measures and, in order to enhance these activities and their visibility, establish a contact point for a better exchange and dissemination of relevant information and documentation;

(k) Request the Provisional Technical Secretariat to act as a 'focal point' where information about activities undertaken by ratifiers and signatories is collected in order to assist in promoting the entry into force of the Treaty;

(l) Encourage cooperation with non-governmental organizations and other elements of civil society to raise awareness of and support for the Treaty and its objectives, as well as the need for its early entry into force.

III. NGO Statement

Joint NGO Statement, delivered by Dr. Klaus Renolder, International Physicians for the Prevention of Nuclear War (IPPNW), September 5; full text available at http://www.ctbto.org/reference/article_xiv/2003/statements/
0309_pm/0509_am/18_joint_ngo_e.pdf.

The CTBT is an integral part of our global efforts to achieve international security for all, free from the threat of weapons of mass destructions. All states should recognise that action on the CTBT is all the more important in light of rising hostilities across the globe.

The CTBT was brought about largely through the hard work and determination of NGOs and millions of ordinary people around the world. In all these years, the NGO community has never faltered in its advocacy for a test-ban treaty. People throughout the world understood that ending nuclear testing was essential for three powerful reasons: to halt the spiralling arms race; to obstruct the emergence of new nuclear powers; and to prevent further devastation of human health and the global environment, already contaminated from decades of atmospheric and underground explosions.

Since the middle of the 20th Century, more than 2,000 nuclear tests have been conducted throughout the world, with direct, serious, and long-term adverse health and environmental effects. It is estimated that atmospheric testing directly produced 430,000 fatal human cancers by the year 2000. Eventually, that total will be 2.4 million. If the horizontal and vertical proliferation of nuclear weapons leads to new rounds of testing, as we believe that ot will, deleterious impacts on public health and social well-being can only be expected.

It is crucial to the stability and future of the non-proliferation regime that the CTBT enters into force, as was unanimously confirmed by all NPT states parties at the 2000 Review Conference. Among the 13 practical steps for systematic and progressive disarmament identified in the Final Document of the Conference, the very first two are devoted to the CTBT and nuclear testing. ...

A ban on testing is an essential step towards nuclear disarmament because it helps to block dangerous nuclear competition and new nuclear threats from emerging. However, it must be recognised that technological advances in nuclear weapons research and development mean that a ban on nuclear test explosions by itself cannot prevent qualitative improvements of nuclear arsenals. Efforts to improve nuclear arsenals and to make nuclear weapons more usable in warfare will jeopardise the test-ban and non-proliferation regimes. We call on all states possessing nuclear weapons to halt all qualitative improvements in their nuclear armaments, as well as to reduce the time necessary to resume nuclear testing.

In this context, we are alarmed by recent disclosures of proposals by the present US administration for the research and development of a new generation of earth-penetrating nuclear warheads and new types of 'low-yield' warheads, as well as proposals to reduce the time necessary to resume underground testing.

We recognise that any new step in the field of security generally involves some risk, but the CTBT has been carefully designed so that its benefits greatly outweigh any possible risks. The CTBT establishes a far-reaching global monitoring, verification, and compliance system. A series of independent studies, most recently by the US National Academy of Sciences in 2002, have all concluded that the system is capable of detecting nuclear explosions in all environments with a high degree of confidence, thereby deterring potential treaty violators. We commend the Preparatory Commission...and the Provisional Technical Secretariat for their work in establishing the International Monitoring System and the International Data Centre, which are already proving their capabilities beyond expectations. We support efforts to promote the civil and scientific applications of CTBT verification technology as a means of recouping costs and expanding the range of CTBT stakeholders.

We oppose attempts by some states to delay full construction of the CTBT's verification system. Such behaviour harms efforts to increase the number of parties to the Treaty and prevents the system from demonstrating its full technical capabilities, thereby giving comfort to those who question the Treaty's verifiability. We deplore efforts by a small number of states to obstruct finalisation of the on-site inspection arrangements for the Treaty by not paying their dues, not participating in discussions on the on-site inspection manual, or by adopting unreasonable positions in those negotiations. We call on all signatories to provide the political, financial and technical support necessary for the earliest implementation pf all elements of the CTBT verification system.

We believe that global security would be enhanced if all states with nuclear test sites engaged in confidence-building processes, including transparency measures at those sites, during the interim period prior to their complete elimination. In this regard, we note with interest the Russian proposal for mutual confidence-building measures with the United States following the CTBT's entry-into-force. We applaud Ambassador Hoffman's visit to the Novaya Zemyla test site earlier this year and encourage the United States and Russia, as well as India, Pakistan, and China to pursue initiatives to increase transparency at their test sites to dispel concerns about ongoing activities at those sites, including subcritical tests.

Despite overwhelming international support for the CTBT, 12 key states have not yet signed and/or ratified. The Bush administration has declared that it is not even seeking Senate approval for ratification. Washington has also announced that it will not pay its share of, nor participate in, non-IMS activities...including preparations for on-site inspections. Although the US remains a signatory, it was the only country to oppose the retention of the CTBT on the agenda of the UN General Assembly in November 2001.

Most importantly, this conference must train its attention and its future efforts on the signatures and ratification by those states that are required by the stipulations of Article XIV... The longer these states wait to join the Treaty, the greater the chance that some nation may begin testing and set off a dangerous international action-reaction cycle of military and nuclear confrontation. ...

NGOs are ready to make greater contributions to the efforts for entry-into-force. In particular, they will be able to do so if the interaction between governments, parliaments, NGOS and the media is strengthened. Governments, for instance, should report to their parliaments on activities to implement the decisions of earlier Article XIV Conferences and their plans for future activities. The matter of entry-into-force should be discussed at regional intergovernmental meetings and parliamentary bodies linked to such organisations. The Provisional Technical Secretariat should be asked to assist the intersessional coordinator in compiling reports from states parties on their initiatives, and to make them available to all parties on a regular basis. NGOs, in the meanwhile, will increase their own efforts at monitoring and reporting these initiatives to the public and to the media. We will continue our advocacy efforts aimed at the CTBT hold-out states. Through a strengthened network of NGOs, governments, international bodies and the media, we can promote further initiatives, intensify public discussion, and exert broad pressure on the hold-out states.

No single government should be allowed to stand in the way of the historic opportunity to permanently end the scourge of nuclear testing - an indispensable step towards eliminating nuclear weapon threats and preventing nuclear war. ...

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© 2003 The Acronym Institute.