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Disarmament Diplomacy

Issue No. 91, Summer 2009

Unfinished Business: Lessons from the CTBT Negotiations

Rebecca Johnson

Anyone who participated in the Conference on Disarmament (CD) when it negotiated the Comprehensive Test Ban Treaty (CTBT) from January 1994 to September 1996 would agree that the work was hard and long, but few would have wanted to be anywhere else. The atmosphere was crackling with intelligence and passion, as diplomats, scientists and civil society activists argued for their preferences, exchanged information, challenged each other, and crafted treaty language in collectively intense efforts to find the best solutions, especially on the critical issues of scope, verification and entry into force. There were conflicts and high drama, quiet deals and angry confrontations, political successes and missed opportunities.

My book, "Unfinished Business", published by the United Nations Institute for Disarmament Research (UNIDIR) in May 2009, tells the story of how the CTBT was fought for and negotiated, analyzing the key decision points and highlighting the roles played by civil society actors as well as governments. Though it focuses on the test ban treaty as it was negotiated in the immediate post-cold-war period, the book contains lessons of contemporary relevance for diplomats and non-governmental organizations (NGOs) seeking to bring further disarmament treaties to fruition. Whether aiming to put a nuclear weapons convention onto governments' agendas, or pave the way to negotiate space security agreements, or finally get the deadlocked CD to carry out its mandate to negotiate a fissile materials treaty, this history of the CTBT negotiations contains useful insights and theoretical perspectives on how to foster positive-sum solutions that integrate different national and international needs and interests.

By comparison with what was expected or thought feasible when the test ban negotiations opened in 1994, some outcomes - the zero yield scope, for example - were more or better than anticipated, while others were worse. The resulting treaty has a robust verification regime and makes an invaluable contribution to nuclear disarmament as well as non-proliferation. Its Achilles heel - the weakness that continues to undermine the CTBT - is Article XIV on entry into force, which placed the bar so high that despite having some 181 signatories and 149 ratifications, it has not yet been possible to bring the test ban into full legal effect. Nevertheless, the CTBT Organization, based in Vienna, has been effectively established and is well on the way to meeting the monitoring and verification requirements in the treaty.

Unfinished Business focuses on the multilateral processes and actors that brought the CTBT to the United Nations on 24 September 1996, where it was signed by the leaders of the major nuclear-weapon states and more than half the world. The final chapter brings the CTBT up to date. The major remaining political challenge is to enable entry into force by convincing the remaining states to sign and ratify the treaty. There are also technical challenges, and the book briefly discusses the CTBTO's advances in setting up the International Monitoring System (IMS) and developing procedures for carrying out on-site inspections (OSI), most recently through exercises such as IFE08 (an Integrated Field Exercise, coordinated by the CTBTO at the former Soviet Semipalatinsk test site, in Kazakhstan in September 2008). These matters are not the focus of the present article, as they are addressed contemporaneously in this issue of Disarmament Diplomacy 91 by former US Ambassador Thomas Graham and nuclear weapons specialist Dr David Hafemeister in "Nuclear Testing and Proliferation - an Inextricable Connection".

In response to interest expressed by CD representatives, I will analyze here some of the lessons that can be drawn from the CTBT negotiations to improve our understanding of the dynamics of multilateral arms negotiations. As the CD stands again on the brink of negotiating a fissban, as noted by Canada's ambassador Paul Meyer in his article on the fissile material (cut-off) treaty [FM(C)T], also in this issue of Disarmament Diplomacy 91, I will focus particularly on the programme of work at hand.

What's in a name?

As early as 1954, India and Japan, as well as civil society campaigners, had put the concept of a comprehensive treaty banning all nuclear testing onto the political agenda. Unfinished Business briefly summarizes how efforts to achieve this total test ban failed and how US President Kennedy, Soviet General-Secretary Krushchev and UK Prime Minister Macmillan decided to agree a Partial Test Ban Treaty (PTBT) in 1963. France and China refused to sign and continued to test in the atmosphere for some years after, but despite these violations and years of political setbacks, many states and NGOs continued to hold up the demand for a truly comprehensive test ban as a necessary and achievable objective. Now a growing number of NGOs and governments are mobilizing around the objective of a comprehensive treaty to abolish nuclear weapons, generally referred to as a nuclear weapons convention (NWC), after the biological and chemical weapons conventions. Though opponents like to depict calls for a NWC as undermining the existing NPT-based agreements, such a criticism is as absurd as claims that calls for a CTBT undermined the PTBT. Nor are the nuclear-weapon states right to dismiss calls for a NWC as "premature". As with the CTBT in relation to the PTBT, the fact that a NWC is being advocated now is recognition that the full implementation of the NPT's preamble and Article VI will involve a more complex treaty that will require greater levels of monitoring and verification than can be assured under the NPT, and negotiations on the comprehensive treaty will be able to bring in non-states parties to the NPT on a non-discriminatory basis.

The fissban has been on the CD's programme of work for many years. As with the CTBT, there are fundamental differences of view about the aims and purposes of the designated treaty, particularly with regard to the balance between disarmament and non-proliferation objectives. Unlike the CTBT, these differences of view are even reflected in the title states are willing to use to describe the fissban they are willing to negotiate.

Some of the current nuclear "haves", notably the nuclear-weapon states, India and Israel, prioritize the objective of non-proliferation, and emphasize that only a ban on future production is to be addressed. They and their allies intentionally use the acronym FMCT to demonstrate that they are primarily - or solely - interested in negotiating a cut-off treaty. Others, particularly nonaligned states (and, according to its position statements, Pakistan), argue that the treaty should explicitly contribute to disarmament as well as non-proliferation, and for this, stocks need to be included. The preferred acronyms for this are FMT for 'Fissile Material Treaty' or (my preference) fissban. Such terms do not prejudge the scope in the way that FMCT appears to rule out past production, but are (unsurprisingly) used most often by those who want stocks to be addressed. It is important to recall that CD/1299 (the March 1995 Shannon report) provides for stocks to be considered as part of the negotiations although they are not mentioned in the narrower mandate contained within the report.

The CD as negotiating forum

Most diplomats would agree that if we were designing a negotiating forum for multilateral disarmament treaties now, it would look somewhat different from this Conference on Disarmament, which emerged in phases through the cold war, with its current mandate and rules formed through the crucible of the first UN Special Session on Disarmament in 1978.

At that time, the United States and Soviet Union insisted that the CD make all its decisions by consensus, including all procedural decisions which also have to be adopted every year. That might have been cold war realpolitik in the 1970s, but it has overburdened the CD in the 21st century. It is debilitating and counterproductive for governments to know that any decision they take can be blocked or renegotiated the following year. If everyone were keen and eager for disarmament negotiations, they wouldn't be so difficult to achieve. Negotiations are needed precisely because some states want to hold on to weapons or practices that the majority of governments and civil society deem inconsistent with our wider security and humanitarian exigencies and values. So handing every state a de facto veto on starting those negotiations is a recipe for paralysis.

The CD was developed at a time when national security was regarded as paramount, and every government got to determine its own definition of national security, whether this included developing tens of thousands of nuclear weapons, pursuing armed conflict for oil, minerals or territory, or even torturing and executing civilians with dissident views. In the past 30 years such notions of the sovereign right of governments to pursue their own determinations of national security have come under question, particularly if they undermine international peace, security and human rights or cause indiscriminate harm to civilians.

Like other international institutions, the CD needs to be restructured as a forum where processes of challenge and change can take place, and where governments are encouraged - and also persuaded - to reframe their understandings of national security to become consistent with - or at least responsive towards - international and human security imperatives.

This does not mean that the CD rules should enable treaty decisions to be imposed by riding roughshod over governments' concerns. This may be the spectre raised by objectors to CD reform, but it is not what anyone is suggesting. However, the present system, where the consensus rule is invoked to prevent the CD getting started is untenable. By denying all states the opportunity to participate in the process of reaching convergence, which is what negotiations should be about, the current system rides roughshod over the security needs and objectives of the vast majority of states and peoples. The CD has almost used up the international community's patience. Without reform this forum will not survive much longer.

The point here is not that national security and interests should be subsumed in favour of others' interests - few states would agree to that. The point is to create a process whereby actual security interests can be given priority over the special interests of the few that have vested military or economic interests in maintaining an insecure status quo. As practised in the CD, the consensus rule gives a carte blanche to a single reluctant government to impose its narrow determination of particular national interests on everyone else and block developments that could greatly enhance its country's actual security, as well as improving the security of others.

The argument for CD reform is based on modern understandings of how national interests are formed and shaped. Far from being fixed and necessarily competitive, as outdated realist theories would have us believe, perceptions of national security are the product of a number of changing factors. From global heating and climate change to weapons of mass destruction and terrorism, our 21st century security threats are transboundary and global. In today's world, the concept of national security has no meaning in a vacuum. It makes sense only in relation to international and regional security. Nor can governments be assumed to have a sacrosanct monopoly on defining and protecting their countries' security, as poor governance is itself a cause of great 'national' insecurity for many people.

As the CTBT experience demonstrated, through the process of negotiations, many governments come to change or recast their perceptions of their state's interests and security. The process of negotiations demonstrates the benefits of cooperative security and the interdependence of national, regional and international security. Negotiations should not be aimed at over-riding national security considerations but to facilitate governments to reshape their understanding of national security and to come to the understanding that however large or small, powerful or independent a country is, harmonizing with the security needs and interests of the wider international community will enhance rather than diminish its own security environment.

Negotiating for positive-sum solutions

In the past, it was assumed that security negotiations were a zero sum game, and that for at least some states it would be necessary to 'give up' or 'surrender' some national interests. Now that we understand security to be interdependent and interlinked, we recognize that one country cannot obtain security at the expense of others.

Unfinished Business considers the differences between integrative negotiations - the strategies and tactics for reaching positive sum convergence - and traditional, distributive negotiating approaches, which assume that if there are winners there must also be losers. Though the CTBT negotiations contained examples and elements of both distributive and integrative convergence, it became clear that better and more sustainable decisions arose through integrative convergence than through the concealing, obstructing and manipulative tactics traditionally employed by zero sum practitioners. On pages 54-55, for example, I list the range of tactics I observed delegations employing the CTBT, developing beyond the tactics identified by Dutch and Canadian academics, particularly with regard to tactics that can facilitate agreements.[1]

Learning lessons from the CTBT

Different kinds of lessons can be drawn from the CTBT negotiations. Below I focus on those that may be particularly useful for the CD in its efforts to make progress on a fissban.

Start without preconditions - states' objectives and dynamics can be shaped by factors that emerge through the process of negotiations, thereby facilitating progressive solutions that were previously ruled out

There are parallels between the CTBT and the fissban in the emphasis some states put on whether the primary objective should be non-proliferation or disarmament. States that seek to specify certain outcomes or delineate the parameters of negotiations before allowing negotiations to go ahead are nearly always masking their real policy preference, which is to have no negotiations at all. Once there is basic agreement to negotiate, the mandate should be broad enough to accommodate different perspectives on what the final treaty should encompass. It is a mistake to create too narrow a mandate or to try to prenegotiate agreements on controversial issues. The process of negotiations at its best can reveal or create new solutions to contested issues.

Unfinished Business details how this worked for the CTBT on the issue of scope, which was as deeply contested as the current argument over stocks in the fissban. A core interest shared by the P-5 nuclear-weapon states was to preserve their nuclear weapon programmes while curbing the options of others. As the negotiations convened in January 1994, all the state negotiators, including the nonaligned, believed that the P-5 would refuse to agree to a test ban treaty unless they could retain some nuclear testing options. However, though the P-5 shared the aim of keeping open some testing options under the rubric of "activities not prohibited", they couldn't agree on what these should be - a low threshold, exceptions for safety tests or the right to conduct "peaceful nuclear explosions". They conducted their scope negotiations in their own minilateral forum, away from the multilateral CD, but failed to reach agreement because their asymmetrical technological capabilities, political distrust and rivalries impeded their collective attempts to agree on even a maximum threshold for conducting low-yield hydronuclear experiments.

The non-nuclear negotiators did not subscribe to the P-5's objective of maintaining nuclear infrastructures and options, but their ability to mount a coherent opposition was diluted by the acceptance of nuclear deterrence (and therefore the ability to maintain and develop nuclear weapons) by an influential group of nuclear allies. Characterized in my book as "non-proliferation regime-builders", these states saw themselves as pragmatic, and devoted themselves especially to getting the technical parts of the treaty worked out. At times they assisted the nonaligned states to promote disarmament objectives, but often they saw their role as keeping the nuclear-weapon states on track by reining in the more challenging disarmament-related proposals. Another group - most but not all of whom were from the G-21 group of nonaligned states - took the role of "disarmament regime-builders", and pushed not only for a workable treaty but for one that would also lead towards disarmament. Their effectiveness was diminished by inadequate resources and lack of unity on some of the major substantive issues. This was primarily due to the presence of India and Pakistan in the G-21, but there were others who also complicated attempts to advance substantive joint proposals because they put regional or national agendas above the disarmament goals.

Despite starting off with ideas for a CTBT that would have been comprehensive in name but partial in application, the P-5 ended up with a zero-yield scope that reflected the hopes (if not expectations) of the structurally marginalized disarmament advocates more closely than their own perceived national interests. The turning point was the decision to go to zero, which was almost entirely determined by transnational civil society action pressing on governments outside Geneva.

International public reaction to the resumption of French nuclear testing provided a sudden policy-shaping jolt that pushed President Clinton off the fence. The swiftness and intensity of public outrage, expressed through boycotts and demonstrations in many countries, caused France to seek a popular compromise. Acres of newsprint, and thousands of letters reminded the United States that a total test ban was an important and popular objective. The protests also conveyed the warning that if testing were not properly banned, there could be a revival of the kind of anti-nuclear protest movements witnessed in the 1980s. The second important factor in shaping the zero yield decision was the provision of technically relevant solution-oriented information by governmental and non-governmental scientists (sometimes working together, as in the JASON group) and arms controllers in Washington.

This experience demonstrates the importance of leaving enough room in the negotiating mandate and structures to allow for the initially-envisaged zone of possible agreement to be redrawn in the negotiations, as political, strategic and civil society factors may influence governments to reassess key states' security needs and interests.

Employ rules of procedure constructively so that differences can be worked out through the process of negotiations

Rules are supposed to facilitate communication and convergence. If, on the contrary, they facilitate obstruction and deadlock, they need to be adapted. If they cannot be changed formally, because consensus would require the agreement of those who have a vested interest in hanging on to rules that can be abused and manipulated, then ways can be found to shift the logjam and get things moving with the creative application of alternative interpretations and approaches.

For example, after getting the CTBT negotiations off to a flying start in 1994 as part of a CD work programme that included ad hoc committees also on Prevention of an arms race in outer space (PAROS), Transparency in armaments (TIA) and Negative Security Assurances (NSA), the package became unravelled as the workload was stretching some delegations to breaking point. Most delegations in 1995 wanted to drop the other committees and focus full time on the CTBT negotiations, but for symbolic and political reasons, some states did not want to be seen to advocate this. As a consequence, the CD failed to agree an agenda at the beginning of 1995. That could have led to paralysis, but the commitment to negotiate the CTBT was by that time sufficiently high that the first CD President of 1995 got agreement to continue CTBT negotiations as if there was an agenda. This was quietly formalized much later in the year and the precedent was evoked in 1996 to enable the negotiations to carry on until the treaty was concluded. There are further examples of administrative and political solutions being successfully used to overcome procedural obstruction, but let's move on and look at the treaty itself.

Treaties are all different, so negotiations should be structured appropriately

The CTBT mandate contained instructions to establish two working groups, on verification and on legal and institutional issues. Hence, the Chair of the Nuclear Test Ban Committee had a core bureau comprising the Chairs of these two working groups. All three appointments rotated annually among the CD groups (the G21 group of nonaligned CD members, the Western group and others (WEOG) and the Eastern European group, which had diminished in size at the end of the cold war). All three chairs could choose Friends of the Chair for specific tasks, and there could be further subdivisions of labour if required.

That the Fissban mandate gives no such instructions is not necessarily a loss. Though a lot of technical and educational work was accomplished in the first year of the CTBT's verification working group, nothing much could get pinned down until the breakthrough decisions on the zero yield scope in the second year. As Ambassador Bernhard Brasack noted in his thoughtful parting statement, the fissban has three core issues which are interdependent: scope, definitions and verification. [2] To these I would add a fourth - legal and institutional - for issues such as entry into force and the usual treaty requirements dealing with reservations, amendments, withdrawal and so on. Many of these may be standard and able to be imported from other treaties, but as the CTBT experience taught us, some may be more political than might at first sight appear. This caution applies not only to entry into force, which nearly derailed the CTBT (and still might); but also issues such as withdrawal and procedures for review and amendments, particularly if the world moves closer towards nuclear disarmament, when it might be deemed unacceptable for international security to hold open options such as withdrawal from the treaty.

Like the CTBT, the fissban has three basic interest groups (which are not the same as the CD groupings): the NPT-recognized nuclear-weapon states (the P-5); the nuclear weapon possessors outside the NPT (the D-3 or, if North Korea is not addressed diplomatically, D-4); and NPT non-nuclear-weapon states. These groups are not, however, internally cohesive, but have both shared and conflicting perceptions of interests and objectives.

As noted above, the P-5 formed a minilateral negotiating forum in the CTBT that tried to reconcile their own differences and present common positions, largely unsuccessfully. They are likely to coordinate private, minilateral sidebar negotiations again, but this time they need to think far more carefully than before about how such minilateral talks interface with the multilateral negotiations.

One legitimate argument for P-5 minilaterals is that they can discuss certain technical issues that can't be fully shared with NNWS without violating the NPT. But such minilateral negotiations can also cause resentment and may undermine the multilateral principles and benefits of the negotiations. And where would this leave the D-3 (or 4)? Excluded from privileged P-5 talks that have a bearing on their fissile material production technologies or, alternatively, invited in, which could be politically unacceptable for most non-nuclear-weapon states, especially in regions of concern such as the Middle East?

It is sometimes assumed that because an arms control or disarmament measure will directly affect facilities and practices in countries that have the weapons these states have a more direct interest in what goes into the treaty. We need to look at this from a different angle. The nuclear haves undoubtedly have vested interests, but so do the other 180-plus nations that voluntarily renounced the right to make nuclear weapons and who, therefore, have an overwhelming - and equally direct - security interest in preventing further horizontal and vertical proliferation and moving everyone towards nuclear disarmament.

Diplomats and officials that had completed negotiations on the Chemical Weapons Convention (CWC) a few years before had a tendency to reproduce tactics used then on the basis that if they worked before they would work again. That is not necessarily so. In the CWC, the entry-into-force provision was ignored for much of the negotiations and fell into place in the endgame when the tough issues had been resolved. Most CD members (and, it has to be admitted, NGOs) expected the same thing to happen in the CTBT, and so neglected to address the divisions on this issue until the final year, when they ran out of time because the September 1996 target date identified in the US moratorium legislation had come to be seen by practically everyone as a deadline. Unlike in the CWC, some states sought to use the entry-into-force provision in the CTBT as a lever, to bring reluctant states or regional rivals into the treaty. India felt particularly targeted by these states, which included Pakistan and the United Kingdom.

The details of what went wrong are in the book. The key point to highlight here is that states cannot be coerced or guilt-tripped into joining a treaty. They need to be persuaded that it is in their security interests as well as being in the collective interests of the larger community. Issues where states have strong political motivations underlying their preferences, such as entry into force, should not be left to last. In particular, entry into force ought to be made sufficiently flexible to enable the treaty to take full legal effect even before every target state has signed and ratified. If a treaty enters into force sooner rather than later, then the processes of embedding the norms, rules and institutional benefits of the new regime are more likely to draw the hold-outs in - political persuasion, in other words, works better than legal coercion to bring governments into international agreements.

Structuring Fissban Negotiations

Since the Shannon mandate neither lights the CD's structural way nor ties its hands, how should the fissban negotiations be structured? There are no easy answers, but drawing from the CTBT and other multilateral arms control negotiations, the following suggestions may prove helpful.

Friends of the Chair and other delegating mechanisms

Under the authority of the overall Chair, it will be necessary to delegate some issues to working groups or other subsidiary bodies, convened by Friends of the Chair. It might also be useful to consider designating coordinators for some issues. In both cases there will need to be ways to report back regularly to the CD as a whole as part of an open and accountable process. In relation to this, two cautionary points need to be made.

First, decisions on these groups and chairs should not be made subject to consensus. That would be a recipe for disaster. Choose the Chair of the negotiations wisely each year, and give her or him your confidence, assistance and advice. Rotation of the Chair among the groups was no problem for the CTBT and is regarded as an important political principle to aid equitable representation. However, for the sake of coherence and continuity, the Chair of the negotiations should be appointed for each full year. It would also be desirable that when appointing Friends of the Chair and coordinators, the Chairs should take into account geographical and gender representation as well as skills and experience, but these should be guiding principles and not a rotational straitjacket. Any groups or delegations that feel they are being overlooked or unfairly treated can always raise such concerns in the CD context and a Chair that fails to share the tasks around would make her or his job much harder (and so, would probably not be a very effective Chair).

Second, as the negotiations progress, some issues will get resolved, and new challenges will come to the fore. So the structure should provide sufficient continuity to see negotiations through, but also some flexibility to allow for moving forward. Beware of instituting working groups or coordinators with the requirement that they continue throughout the negotiations. That kind of gesture politics will just create bureaucracy and may get in the way - remember the proverb that too many cooks spoil the broth.

Verification - allow for evolving technologies

The head treaty (the core treaty text without additional protocols or annexes), consistent with the scope and obligations decided upon, will need to identify the core principles and requirements of verification, including issues such as monitoring of declared sites, required declarations, routine and 'random' (what used to be called 'challenge') on-site inspections (OSI), inspection of undeclared sites, the rights, responsibilities and protections for the inspected party as well as for the inspectors) and so on.

The negotiations will also need to decide on the implementing organization (IO) - its structure and decision-making procedures and relationship with the IAEA or other international bodies, for example. It should not, however, try to get consensus on all the technical details, procedures and technologies to be used for verification. Hindsight shows that this was done to excess in the CWC and CTBT, and is neither necessary nor useful, as any verification regime needs to be able to respond to make the best use of technological innovations. As studies such as the International Panel on Fissile Materials (IPFM)[3] demonstrate beyond doubt, the fissban - whether a basic FMCT or more complex FMT - is verifiable, but the CD negotiations do not have to dot every i and cross every t of what this should entail. This would be unnecessarily time-consuming and probably self defeating. Technologies and skills are advancing all the time, and it would make for a more sustainable and effective treaty if such evolution were factored in from the beginning.

That does not mean that treaty negotiators can ignore verification. Far from it: it will be important to negotiate and agree on the verification principles, powers and protections as well as what kind of implementing organization will be best for this kind of treaty. Though negotiations should identify the basic verification elements, the detail is best left to the IO, which, after all, will be governed by states parties to the treaty.

The CTBT provides a number of examples of how highly contested questions during the negotiations have been resolved or overtaken as certain technologies have advanced more rapidly than predicted. For example, sampling technologies to detect radioactive noble gases emitted by nuclear explosions, such as argon and xenon, were nearly left out of the IMS, as some states argued that their short half life would render detection unlikely or unreliable. Noble gas detection turned out to be one of the crucial elements picked up by the CTBTO when North Korea conducted its first underground test.

In a further example, illustrated in Unfinished Business, China pushed hard for a dedicated network of satellites to be made part of the CTBT verification regime. This proposal was defeated on grounds of its high cost, though many shared China's concerns that information from nationally-controlled satellites would not necessarily be shared and that such "national technical means" (NTM) could give some states an advantage over others. The revolution in commercial satellite technology and programmes such as GoogleEarth, have given the average citizen at home monitoring capabilities that are better than NTM capabilities when the CTBT was being negotiated.

Of course, the basic verification principles and purposes cannot be determined without a sound understanding of the technologies of fissile material production and the techniques and technologies available for verification. Some kind of Group of Scientific Experts with the appropriate knowledge and expertise could meet in parallel to the diplomatic negotiations, with individually reporting conduits to their delegations and groups as well as periodic presentations to the Fissban Committee, allowing for questions and exchanges of views and information relating the technical understandings to the policy negotiations and decision-making.

Target dates and time-lines

Though reluctant states are wary about committing to timetables for nuclear disarmament, setting a target date for commencing negotiations or completing a specific treaty can concentrate attention and enable negotiating frameworks and plans to be developed. When US Senate legislation mandated the initial nine-month moratorium in October 1992, it set the September 1996 target date for completion of the CTBT. Later adopted as an international target date, this helped drive the negotiations forward and made it more difficult to derail or bog the talks negotiations down with petty delaying tactics. This does not always work. In 1995, the NPT Review Conference called for "early conclusion" of the fissban, and later UN resolutions sought to pin this down to within five years, yet more than a decade later, negotiations have not yet started. If the CD manages to convene the fissban working group and negotiate in 2010, then it might be helpful for UN resolutions to call for the treaty's conclusion by September 2013 or 2014. This would mean the treaty could be adopted and signed before the next NPT Review Conference. A year of intensive negotiations ought to be adequate for a treaty of this sort, and with other important and, arguably, more future-relevant measures on the CD horizon such as a space security treaty or prenegotiations on a framework for a nuclear weapon convention, it would be a mistake to tie the international community's main negotiating forum up for too long on this kind of interim measure.

As a consequence, the fissban may be losing some of its relevance, and the time may come when states decide that it will be more productive to negotiate this partial measure as part of more comprehensive negotiations aimed at the prohibition and total elimination of nuclear weapons (which would, at least, solve the tricky fissban disagreements over stocks, since these would be technically and politically easier to address in the context of verifying nuclear disarmament.

Conclusions from the book

Multilateralism does not require participation by all states, but it needs to be representative to be credible. If states have directly participated in the negotiations, they are more likely to have a sense of ownership regarding the outcome, making universal implementation more likely. Due to the differences among governments, multilateralism must have structures and mechanisms for addressing asymmetries in a fair and cost-effective manner. The institutionalization of differential obligations in the nuclear non-proliferation regime gives rise to special challenges in negotiating nuclear weapons treaties, but these are not insurmountable as long as the interests of all states in building peace and security in a world free of nuclear weapons is recognized.

In addition to the need to reform the CD, Unfinished Business highlights four key conclusions.

First, the power that matters in negotiations is issue-based rather than the attributive power that comes with dominant military, political or economic assets. Issue-based power reflects the ability to bargain, influence and control outcomes. It is the power to do, and should not be confused with traditional notions of power over. To understand how actors with less attributive power, such as middle powers or civil society, are able to influence some agreements, it is necessary to focus on what they do, rather than on what they are or what they have.

Many states enter negotiations assuming that those with the greatest levels of attributive power will dominate. Though attributive power may be a significant component in the construction of issue-based power, it is not decisive in negotiations. Negotiators that can employ issue-based power and cognitive strategies are more likely to prevail, particularly if they structure their objectives around cooperative, integrative agreements rather than competitive, distributive outcomes.

When negotiators are described as having "bargaining power" it means that they are successful in deploying their resources and capabilities either to change other actors' perceptions of what constitute acceptable gains or losses or to change the zone of possible agreements to integrate preferred options that had not previously been recognized as possibilities. Factors that may be relevant in determining a bargaining outcome include: ability to target information, recognize or develop effective strategies, and coordinate and utilize partnerships or alliances with other diplomats, governments or civil society; internal policy cohesion or division; the level of domestic political attention and support; geostrategic and political positioning; and communication and diplomatic capabilities, including the utilization of knowledge and expertise and the strategic importance of the weapon or practice under consideration.

Second, multilateral diplomacy will deliver better outcomes in the context of human security and disarmament if negotiators pursue integrative negotiating strategies that shift the balance from zero-sum competition among the dominant states towards constructing shared, regime-enhancing outcomes that benefit a much broader spectrum of stakeholders. This point was illustrated in the processes that brought about the zero yield scope and the strong, shared verification regime. Entry into force, by contrast, can be viewed as an exception that proves this rule. The 'all or nothing' approaches taken by several of the key states created a rigid, zero-sum context that drastically narrowed the perceived zone of potential agreement during the endgame. The managed convergence that resulted in the Article XIV Achilles heel has put the treaty's viability in question for more than a decade.

Third, countries with relatively low attributive power, such as those that are less equipped in military, economic, political or technological terms (which is accompanied by institutional marginalization in many international bodies with their roots in the cold war) can enhance their issue-based power - and use their abilities to accomplish regime-building, human-security objectives - by making alliances with other states and with civil society actors and organizations. As this CTBT history demonstrates, though actors with relatively less attributive power may not control outcomes as directly as some of the P-5, they can have considerable effect in shaping outcomes if they make strategic use of knowledge and alliances. The parts played by non-nuclear-weapon middle powers such as Australia, Canada, Mexico, the Netherlands and Sweden, as well as South Africa's pivotal role during the 1995 NPT Conference, derived more from their ideas and issue-based alliances than from their attributive power.

Fourth, following from the previous observations and illustrated throughout the book, it is clear that civil society, acting nationally and transnationally, can be of fundamental importance in fostering integrative convergence that reframes expectations and expands the zones of perceived and possible agreements. Such an understanding accords with post-cold-war analyses of the importance of transnational civil society in constructing political will and shaping interests through the strategic use of knowledge and public pressure.

Those seeking to bring an issue to the negotiating table or carry multilateral arms control or disarmament negotiations forward successfully need to pay attention to all of these components.

Unfinished Business

The CTBT was a major objective of the cold war, concluded in the first decade after its end. By any reasonable standard, this multilateral treaty is so widely supported that it should be judged a success. But it has not yet been able to enter into force, because only 35 of the 44 states required by the entry-into-force provision have signed and ratified. Because of the high barrier instituted in Article XIV, the CTBT has suffered in legal limbo for far too many years. The prolonged uncertainty over the treaty's future has already had a deleterious effect on the non-proliferation regime. With nuclear weapons still constituting one of the world's greatest security threats, the international community needs to be able to pocket the CTBT and move on to negotiate the next steps in nuclear disarmament.

The CTBT is a necessary, but not sufficient, component of non-proliferation and disarmament. It is a first step, not the last. To let the treaty fail now is not in the interests of anyone except a nuclear proliferator. These are the kinds of arguments that need to be made when the United States reconsiders ratification of the CTBT.

While US ratification of the CTBT before the next 2010 NPT Review Conference in May would be very helpful in promoting a positive outcome to strengthen the non-proliferation regime, it should not be rushed if the support has not been adequately marshalled. The worst outcome would be for another Senate vote to fail to reach the two-thirds majority required for ratifying the CTBT. If, despite the administration's best efforts, it is not possible to secure Senate approval before the 2010 Review Conference, then the Obama administration would need to go to that conference with a strong message of support and plan of action for the CTBT and nuclear disarmament. Together with initiatives on devaluing nuclear weapons, reducing their role in military and security doctrines, and making further and deeper cuts in the arsenals, such an approach could still have a positive impact on the NPT.

The restoration of US support for the CTBT, should help bring about some of the remaining ratifications. If China, which has expressed support for the treaty since 1996, were willing to move ahead with its ratification and not wait for the United States, this would give positive momentum to efforts to convince the US Senate to ratify the treaty. Chinese ratification would demonstrate its international status as a leader, not a follower. It would set a positive example to North Korea and nonaligned countries like Indonesia, Egypt and Iran, and help governments and civil society put greater political pressure on Washington and New Delhi - a win-win strategic move for Beijing. The fact that the Obama administration is committed to pursuing deeper cuts in the US and Russian arsenals (and that it displays less enthusiasm than George W. Bush about projects China considers threatening, such as ballistic missile defence) may go some way towards fostering a security context in which Chinese ratification can be finally achieved.

With the Obama administration committed to cooperative arms control and disarmament, India remains the hardest state to convince of the test ban treaty's merits. Yet India's own security interests are such that it needs to move beyond its anger over the CTBT endgame and hostility to NPT indefinite extension in 1995. Since conducting a series of nuclear tests and declaring itself a "nuclear-weapon state" in May 1998, India has sought to be recognized as a responsible nuclear-weapon possessor. An obvious way to demonstrate this claim would be to cement its current voluntary moratorium by signing and ratifying the CTBT.

Civil society has a role to play in persuading India to rethink the CTBT now and join. As a large and diverse democracy, India engaged in tumultuous debate about the CTBT during 1996. While majority opinion at that time seemed to favour rejection of the treaty and the subsequent testing of India's nuclear weapons in May 1998, the main arguments were based on national pride and opposition to what was portrayed as another discriminatory treaty that would compound India's exclusion from the nuclear club defined in the NPT regime. Now that the non-proliferation agenda is being transformed internationally into one that promotes the total abolition of nuclear weapons, Indian NGOs need to promote a new debate about nuclear policy in India, starting with the CTBT. For this, they must urgently re-engage India's diverse media and civil society leaders and link the CTBT to India's broader political and security goals, including its need for regional security and its national self-image as a progressive and ethical leader.

Like the United States, India should undertake a non-partisan review of the CTBT's provisions, role, development and benefits as a first step toward rethinking its policy. India's allies and trading partners need to exert more influence to persuade that powerful democracy to overcome the past and see the test ban treaty for what it is now - a non-discriminatory treaty that provides regional and global security benefits. As noted by Javier Solana, the European Union's High Representative for the Common Foreign and Security Policy (CFSP), "All States have to comply with the same obligations and all have access, in the same way, to the most extensive global verification regime ever built".[4] This, in essence, is what Prime Minister Jawaharlal Nehru had advocated so many years ago. It is not of itself disarmament, but it is an essential step on the way.


[1] See Johan Kaufmann, The Diplomacy of International Relations: Selected Writings, Kluwer Law International, 1998, especially pp. 11-30; Dean G. Pruitt, Negotiation Behaviour, Academic Press, 1981, especially pp. 153-5; and Fen Osler Hampson with Michael Hart, Multilateral Negotiations: Lessons from Arms Control, Trade and the Environment, The Johns Hopkins University Press, 1995.

[2] Farewell Statement by Bernhard Brasack, Permanent Representative of Germany to the Conference on Disarmament, 2 July 2009, www.reachingcriticalwill.org/political/cd/speeches09/2session/02July_Germany.pdf

[3] The International Panel on Fissile Materials is an internationally coordinated project based at the University of Princeton. For more information, including the draft FM(C)T developed by non-governmental experts, see the IPFM website at www.fissilematerials.org/ipfm

[4] Javier Solana, "The importance of CTBT universalization", CTBTO Spectrum, no. 9, 2007, p. 5.

Rebecca Johnson is Executive Director of the Acronym Institute for Disarmament Diplomacy. Her latest book, Unfinished Business: the Negotiation of the CTBT and the End of Nuclear Testing, was published by United Nations in May 2009. It is available from UNIDIR (382 pages, ISBN 978-92-9045-194-5, UN Sales No GV.E.09.0.4, price: $50). This article is based on the conclusions of Unfinished Business and the author's presentations at three launch events hosted by UNIDIR at the United Nations in New York and Geneva and by the CTBTO in Vienna. Among the many people who made the book possible, the author would particularly like to thank Patricia Lewis and Kerstin Vignard.

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