Abstract
Almost 20 years ago, on 10 September 1996, the United Nations General Assembly adopted the Comprehensive Nuclear-Test-Ban Treaty (CTBT). This Treaty, which seeks to prohibit any nuclear test explosion in any environment, including underground, was part of a carefully balanced diplomatic deal struck in 1995 that made an indefinite extension of the Non-Proliferation Treaty (NPT) possible. As the time span for entry into force of the Treaty was envisaged to last only a few years, States signatories of the Treaty simultaneously established a Preparatory Commission, which is under international law considered a separate international organization from the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO) proper. Since 1997 the Commission has worked tirelessly to prepare for the Treaty’s entry into force, in particular by building up an elaborately designed universal verification regime. This verification regime is now largely complete and of proven effectiveness and robustness, despite the unforeseen fact that, close to 20 years after its opening for signature, the Treaty has yet to reach full legal standing. This chapter will elucidate in more detail the present legal status of the CTBT, the functioning of its verification regime as it exists to date, as well as the means for completing the verification regime as foreseen in the Treaty.
Sabine Bauer is a Special Assistant to the Executive Secretary of the Preparatory Commission for the Comprehensive Nuclear Test ban Treaty organization, with a background in international law and the laws of international organizations and 18 years of practical legal experience in international organizations, She is admitted to practice law at the New York State Bar.
Cormac O’Reilly is an External Relations Officer at the Provisional Technical Secretariat. He has worked for 14 years in multilateral affairs and disarmament issues, including in the Ministry of Foreign Affairs of Ireland, and is a barrister-at-law and member of the Inn of Court of Northern Ireland.
The views of the authors are personal and may not be attributed in any way to reflect the views of the Commission and its State signatories.
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Notes
- 1.
An analysis of why these eight States are yet to ratify is beyond the scope of this chapter. For a discussion of some of the possible domestic political and geopolitical reasons, see Dahlman et al. 2009, Chap. 11.
- 2.
CTBT/MSS/RES/1.
- 3.
See Johnson 2009.
- 4.
See generally Moxley 2000, Chap. 1.
- 5.
Address to the 52nd Session of the United Nations General Assembly, 22 September 1996.
- 6.
Ibid.
- 7.
Ibid.
- 8.
NPT/CONF.1995/32 (Part I), para 4(a).
- 9.
In the sense of nuclear-weapon States Parties to the NPT, in essence the five Permanent Members of the United Nations Security Council.
- 10.
The NPT, which entered into force in 1970, was originally conceived with a limited duration of 25 years. Its preamble recalls the determination of States Parties to the Partial Test-Ban Treaty of 1963 to ‘seek to achieve the discontinuance of all test explosions of nuclear weapons for all time and to continue negotiations to this end’.
- 11.
CTBT Article I.1.
- 12.
CTBT Article I.2.
- 13.
See Ramaker et al. 2003; Hansen 2006; Johnson 2009. Arguments for the desirability of allowing low-yield nuclear tests were posited, inter alia, on the basis of the potential use of so-called ‘Peaceful Nuclear Explosions’ for civil purposes such as mining or harbor-building; concerns among some NWS about the stewardship of nuclear weapons stockpiles in the absence of testing; and doubts about the credibility of a verification regime targeting a zero-yield threshold.
- 14.
As opposed to sub-critical, hydro-dynamic or computer simulation experiments, which are not referred to in the Treaty and which quickly became the basis of stockpile stewardship for Nuclear Weapons States. See, for example, http://www.state.gov/1997-2001NOPDFS/global/arms/factsheets/wmd/nuclear/ctbt/fs_991008_stockpile.html.
- 15.
For a description of many of these attempts from the vantage point of the Chair of negotiations in the CD, see Ramaker et al. 2003, pp. 235–244.
- 16.
For a discussion on latter-day threshold States, see Rublee 2010.
- 17.
Lenefsky 1999, p. 255.
- 18.
Krepon 2012, p. 28.
- 19.
See, for example, the comments of Weston 2012, p. 9: ‘It was my assumption, and I think the assumption of most other people in the CD at the time, that all the NWS would ratify… and that they would join with other ratifiers to encourage others…’.
- 20.
Resolution establishing the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization, CTBT/MSS/RES/1, 17 October 1996. For detailed information on the verification regime, see below, Sect. 6.3. The CTBT itself also refers in several places to ‘the Preparatory Commission’, assuming its existence as a matter of fact. See Article II, paras 10, 26(h) and 49.
- 21.
See below, Sect. 6.3.2, on how the legal obligations contained therein pertain to the build-up of the verification regime.
- 22.
A number of non-NWS Annex 2 States did ratify the Treaty over the following decade. Although the Russian Federation ratified the Treaty shortly after the Senate vote, on 30 June 2000, no NWS has done so since.
- 23.
Article XIV(2) provides that, if the Treaty has not entered into force 3 years after the date of the anniversary of its opening for signature, ‘the Depositary shall convene a Conference of the States that have already deposited their instruments of ratification upon the request of a majority of those States. That Conference shall… consider and decide 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.’
- 24.
Such as Venturini 2014, p. 147.
- 25.
Inter alia through the establishment in 2013 by the Commission’s Executive Secretary, Lassina Zerbo, of a Group of Eminent Persons (GEM) to support and complement efforts to promote the Treaty’s entry into force. See more on GEM below Sect. 6.3.
- 26.
For example, in 1992 the United States adopted legislation confirming a moratorium, while both India and Pakistan declared voluntary moratoria following tests conducted in 1998. The latter was reaffirmed by both parties in 2004 (see Ministry of External Affairs of India, Joint Statement, India-Pakistan Expert-Level Talks on Nuclear CBMs [Confidence-Building Measures], June 20, 2004.
- 27.
SC Res 1695 (2006); 1718 (2006); 1874 (2009); and 2094 (2013).
- 28.
See for example SC Res 2094 (2013), para 1.
- 29.
While the Treaty stipulates in Article IV(D) that on-site inspections can only be invoked once it has entered into force, the Preparatory Commission and its Provisional Technical Secretariat are obliged by resolution CTBT/MSS/RES/1 to prepare all aspects of the verification regime in advance. Where OSI is concerned, this has meant constant revision of the draft operational manual and the conducting of major simulation exercises (see above Sect. 6.3.4).
- 30.
Part I of the Protocol to the CTBT provides in F. 17 that ‘[t]he procedures and standard event screening criteria to be used by the International Data Centre in carrying out its agreed functions, in particular for the production of standard reporting products and for the performance of standard range of services for States Parties, shall be elaborated in the Operational Manual for the International Data Centre and shall be progressively developed. The procedures and criteria developed initially by the Preparatory Commission shall be approved by the Conference at its initial session.’
- 31.
The Commission’s Executive Secretary, Lassina Zerbo has asserted that the norm exists de facto (see, e.g. Address by the Executive Secretary to the 58th Regular Session of the General Conference of the IAEA, September 2014 at www.ctbto.org/fileadmin/user_upload/public_information/2014/14-09-24_IAEA_GC_Statement.pdf).
- 32.
Such as the Antarctic Treaty of 1959, the Partial Test Ban Treaty of 1963, the Outer Space Treaty of 1967, the Treaty of Tlatelolco of 1968, the Sea-Bed Treaty of 1971, the Moon Treaty of 1979, the Treaty of Rarotonga of 1985, the Treaty of Bangkok of 1995, the Treaty of Pelindaba of 1996, and the Treaty of Semipalatinsk of 2006.
- 33.
- 34.
Indeed, further potential anchors of a test-ban in specific areas of international law such as environmental law, health law, and humanitarian law continue to be explored. For the latter, see a range of papers and presentations delivered during the course of a series of conferences on the humanitarian impact of nuclear weapons, the most recent of which was held in Vienna, Austria, in December 2014: http://www.bmeia.gv.at/en/european-foreign-policy/disarmament/weapons-of-mass-destruction/nuclear-weapons-and-nuclear-terrorism/vienna-conference-on-the-humanitarian-impact-of-nuclear-weapons/.
- 35.
- 36.
- 37.
Article 25 provides that ‘[a] treaty or part of a treaty is applied provisionally pending its entry into force is (a) the treaty so provides, or (b) if the negotiating States have in some other manner so agreed.’ As the CTBT does not provide for provisional application, another mechanism for so agreeing—such as through a specially convened conference—would need to be pursued.
- 38.
Venturini 2014, p. 155.
- 39.
While the IAEA was created to promote the peaceful use of nuclear energy and to inhibit the latter’s diversion towards military means, it does not have a mandate or expertise in monitoring, detecting and inspecting for nuclear explosions. See Hansen 2006, pp. 29–32 on the range of political, legal and practical impediments to including the IMS in the IAEA.
- 40.
Both in terms of the proper forum and in the inclusion of all ‘negotiating States under Article 25.
- 41.
Potentially leading some States to invoke the ‘supreme interest’clause in Article X, allowing them to withdraw from the Treaty.
- 42.
From the strictly legal perspective, this could be achieved through a resolution of States Signatories.
- 43.
Official Record of the General Assembly (1998), 15th Special Session, Supplement No. 3 (A/S-15/3), para 60 (para 6 Section I).
- 44.
Pawlak 1991, pp. 129–130.
- 45.
Ibid.
- 46.
UN Department of Disarmament Affairs, The United Nations Disarmament Yearbook, Volume 29 (2004); Chapter V Related Issues and Approaches ‘Arms limitation and disarmament agreements, including verification of compliance’, p. 187.
- 47.
- 48.
R. Johnson, Option to facilitate the CTBT’s entry into force: embedding the CTBT in norms, law and practice, www.nonproliferation.eu/documents/kickoff2/johnson.pdf, p. 2.
- 49.
- 50.
- 51.
In keeping with Article 18 VCLT, as discussed in Sect. 6.2.3.
- 52.
General Assembly Resolution 50/245 of 10 September 1996 Asada 2002, pp. 104–105.
- 53.
Paragraph 14 of CTBT/MSS/RES/1 stipulates that “the Commission shall supervise and coordinate in fullfiling the requirements of the Treaty and its Protocol, the development of […] and pending their formal commissioning, […] the provisional operation as necessary of the International Monitoring System [emphasis added].
- 54.
Asada 2002, pp. 113, 121–122.
- 55.
CTBT/MSS/RES/1.
- 56.
United Nations Juridical Year Boo, 2012, Chapter VI, Legal Opinions of the Secretariats of Intergovernmental Organizations related to the United Nations; Legal Opinion on the status of the resolution establishing the Preparatory Commission for the Comprehensive Nuclear Test Ban Treaty Organization, pp. 507–523.
- 57.
Johnson 2009, p. 151.
- 58.
- 59.
Johnson 2009.
- 60.
Appendix to CTBT/MSS/RES/1.
- 61.
- 62.
Ibid.
- 63.
Ibid.
- 64.
2015 IMS Stations Overiew www.ctbto.org/tiles/pdf/CTBTO-Map-IMS-2015-01-23-All_Stations-Overview.pdf.
- 65.
- 66.
Science and Technology Conference 2013: www.ctbto.org/press-centre/highlights/2013/the-science-and-technology-conference-2013/.
- 67.
Science and Technology Conference 2015: www.ctbto.org/specials/snt2015.
- 68.
2014 Member States Payments of Assessed contributions, www.ctbto.org/fileadmin/user_upload/treasury/52_24_Dec_2014_Member_States__Payments.pdf.
- 69.
Further examples might be the mandatory consultation and clarification process and confidence building measures, as there is no Executive Council yet in place to authorize their implementation.
- 70.
- 71.
CTBT Article IV para 46.
- 72.
CTBT Article II para 26 h, Part II paras 13 and 36 of the Protocol of the Treaty.
- 73.
- 74.
2014 Largest Ever CTBT On-Site Inspection Exercise Concludes Successfully: www.ctbto.org/press-centre/press-releases/2014/largest-ever-ctbt-on-site-inspection-exercise-concludes-successfully/.
- 75.
Nikolai Sokov, Senior Fellow Presentation at a seminar on multilateral verification, VCDNP, December 5, 2013.
- 76.
See above n. 34, p. 5.
- 77.
See above n. 34, p. 12.
- 78.
2014 Statement of GEM Stockholm, www.ctbto.org/fileadmin/user_upload/public_information/2014/Statement_of_GEM_Stockholm_FINAL.pdf.
- 79.
2014 Interview with GEM Member Wolfgang Hoffmann, www.ctbto.org/press-centre/highlights/2014/interview-with-gem-member-wolfgang-hoffmann-on-his-recent-visit-to-pakistan-and-india.
- 80.
2014 Ministerial Statement, www.ctbto.org/fileadmin/user_upload/statements/2014_minsterial_meeting/2014_joint_ministerial_statement_final.pdf.
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Bauer, S., O’Reilly, C. (2016). The Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO): Current and Future Role in the Verification Regime of the Nuclear-Test-Ban Treaty. In: Black-Branch, J., Fleck, D. (eds) Nuclear Non-Proliferation in International Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-075-6_6
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