Michael KreponSecuring Valuable Global Services

September 24th marks the fifteenth anniversary of the Comprehensive Test Ban Treaty’s celebratory signing ceremony at the United Nations. That’s fifteen years in which the treaty has remained in limbo, due to the worst entry-into-force provision ever negotiated. A much longer wait is in store, as long as entry into force depends on the United States, China, Egypt, Iran, Israel and Indonesia depositing their instruments of ratification, and India, Pakistan and North Korea deciding to sign and ratify the treaty.

The treaty’s tortured entry-into-force provision was the handiwork of China, Russia, and France, whose leaders felt obligated to sign, but remained reluctant to end nuclear testing permanently. They resolved this conundrum by giving other recalcitrant states vetoes over the treaty’s entry into force.

The fifteen year-long wait for the CTBT has been put to good use. A Preparatory Commission and a Provisional Technical Secretariat have worked diligently in Vienna setting up a global monitoring system and dispensing data that have undeniable value. This network, which is 80-85% complete, currently consists of ten laboratories and over 250 monitoring stations. I’m told by the CTBTO that seventeen of the remaining facilities have already been built and are in the process of calibration and certification. Twenty-seven more are under construction. Twenty-three stations and six laboratories remain to be built for a variety of political, administrative, technical or financial reasons.

The capabilities of the CTBTO’s global monitoring network were on display after North Korea tested a nuclear device in October, 2006. This test fizzled, producing a small fraction-of-a kiloton yield. Nonetheless, the test was immediately detected by seismic stations connected to the CTBTO’s grid in Bolivia, the United States, Canada, Australia, Mongolia, Kazakhstan, Finland, Ukraine, Germany and Norway. All told, thirteen primary and nine auxiliary seismic stations linked to the CTBTO immediately picked up this test.

The United States also possesses a world-class monitoring system, but even Washington can make good use of the CTBTO’s data. Parts of the world don’t take Washington’s word as gospel when it comes to nuclear weapon-related developments in other states. The CTBTO’s data can help remove potential error in judgment as well as veils of artifice and deceit, all helpful in deterring covert nuclear tests.

The Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization and its Provisional Technical Secretariat help produce global services in other areas, as well. In 2006, treaty members mandated the CTBTO to provide data directly to national tsunami warning centers. The prompt transmission of the CTBTO’s data can save lives and help mitigate disasters. The CTBTO also has the capacity to serve public safety by tracking radiation released after nuclear plant accidents and venting from underground tests by outlier states.

The treaty has generated valuable global services, but its monitoring system can atrophy as long as the treaty remains in limbo. While awaiting the entry into force of the CTBT, it makes good sense to ensure that these essential global services are permanent rather than provisional.

The most symbolic and effective way to do so is to remove the words “preparatory” and “provisional” from the letterheads of the Preparatory Commission and Provisional Technical Secretariat. This step could be accomplished by a UN Security Council resolution or a collective decision by treaty signatories.

In doing so, states would demonstrate renewed commitment to the CTBT while providing impetus to complete, maintain and upgrade the treaty’s monitoring network. Even countries that have yet to sign and ratify the CTBT could, at a minimum, demonstrate responsible nuclear stewardship by helping to provide facilities and data for the CTBTO. The Government of India, for example, has yet to contribute a single seismic, infrasound and radionuclide station to the treaty’s International Monitoring System. New Delhi does not even connect to the CTBTO’s tsunami warning system.

Other states that matter, including Pakistan, Brazil, Egypt, China, France, Israel, Iran, Great Britain, South Africa, Russia, and the United States, could do more to demonstrate their commitment to end (or, in the case of Pakistan and India, to suspend) nuclear tests. These states have yet to fulfill all of their pledges to the International Monitoring System’s network. Beijing, for example, does not share its monitoring data with the CTBTO, unlike Washington and Moscow.

It will take a very long time before all of the states named above consent to ratify this treaty. After fifteen years of waiting, the time has come to reaffirm the treaty’s objectives and purposes in more than a rhetorical way. Reaffirmation and recommitment can take many forms: by completing and upgrading monitoring stations, sharing data, making test sites more transparent, and by participating in joint monitoring experiments. Above all, the CTBT can be reaffirmed by making the treaty organization’s essential global services permanent rather than provisional.

Some treaty supporters will argue that these steps are insufficient and poor substitutes for the treaty’s entry into force. They are correct. But they are also unable to persuade enough Republican Senators in the United States to vote for the Treaty, or to convince states like Egypt, Iran, India, Pakistan and North Korea to come on board.

It took France and China 22 years to join the Nonproliferation Treaty. It is likely to take even longer for all of the holdouts to relinquish their vetoes over the CTBT’s formal entry into force. In the mean time, states that matter can reaffirm their commitment to end nuclear testing by making the treaty organization’s essential global services permanent rather than provisional.

Note to readers: On September 22nd, the Stimson Center and the Arms Control Association will co-host a meeting at Stimson to discuss this proposal. Joining Daryl Kimball of ACA and me will be David Koplow, who has recently returned to Georgetown Law from another stint in the Pentagon’s General Counsel’s office. I’ve asked David to address how, as a matter of international law, this proposal might be pursued.

Comments

  1. John Hallam (History)

    I have suggested in a few quarters (UN First Cttee etc), that perhaps one way around the CTBT’s incredibly silly EIF provisions might be to create a group of governments who would call themselves ‘Friends of the CTBT’, and who would issue a statement that, for them, the CTBT had entered into force.

    Another possibility might be an UNGA resolution. (and the two are not mutually exclusive).

    I believe that a combination of these and the excellent ideas above might be a way forward.

    John Hallam

  2. wrf (History)

    Well said. Let’s hope people can see the light. I think NGOs should really concentrate on grassroots outreach on this one. Policy makers are locked in a bitter fight (at least in the US) to make each other look bad and no susceptible to reason any longer. I will hope some people will do teach-ins in addition to writing articles.

    Only a T-party approach will work: but now it needs to be a CTBT-party.

    You say: “Other states that matter, including Pakistan, Brazil, Egypt, China, France, Israel, Iran, Great Britain, South Africa, Russia, and the United States, could do more to demonstrate their commitment to end (or, in the case of Pakistan and India, to suspend) nuclear tests.”

    That is true. But to gain insight into the mood at some of these other states see, for example, what Gregory Kulacki — a well known China expert — has to say about why China is not pushing Pakistan to step up to the FMCT:

    http://www.ucsusa.org/assets/documents/nwgs/UCS-Chinese-nuclear-modernization.pdf

    “Despite China’s official support for the FMCT, longstanding Chinese concerns about U.S. missile defense systems are a source of uncertainty and hesitation, reducing Chinese support for advancing FMCT negotiations at the UN Conference on Disarmament.”

    Probably similar concerns will make the Chinese hesitant about banning future testing? So work needs to be done on many fronts to make the CTBT-party a reality!

  3. Gregory (History)

    What is the evidence that China’s well-known insistence on certain provisions for entry into force was motivated by a reluctance to end nuclear testing? Isn’t it possible that China’s insistence on broader entry into force provisions were motivated by other concerns?

  4. Anon (History)

    I sincerely wish you luck with this. But I fear the perceived rank politicization of the IAEA and its record of double standards (as well as that of the UNSC — see blog posts below) in how hard it pursues various countries casts doubt on an easy worldwide adoption of the CTBT.

  5. Milton Hoenig (History)

    Removing the designations “provisional” and “preparatory” may sway a few senators,but it would tend to politicize organizations notable for their strictly scientific achievements.

  6. krepon (History)

    Milton:
    Agreed, there is risk involved. But regardless, Repubs will seek to reduce funding for CTBTO.
    MK

  7. Anon (History)

    As I understand it, there can be a “supreme national interest” exit clause to test even after ratifying the CTBT.

    So how much of a barrier to testing would the CTBT really be? Would nations have to make a case to CTBTO that they want to exit to test because of supreme national interest or can they just up and say that and test?

    • krepon (History)

      Treaties like the CTBT have opt out clauses due to supreme national interests. Signing treaties makes exiting them harder, and ratifying them makes it harder still, which is one reason for opposition in the Senate.

  8. Pierce S. Corden (History)

    A few comments on Michael Krepon’s discussion of CTBT issues.

    Regarding the entry-into-force provision, as I recall its development in the Geneva negotiations in 1996, the main issue was to find a formula that would capture the five nuclear-weapon states as defined by the Non-Proliferation Treaty, plus India and Pakistan. Although the U.S. could have agreed to entry into force with just the five NWS, plus an agreed additional number to make the international organization workable, other NWS were not prepared to accept entry into force without India and Pakistan. In any case, were the formula to have only specified these seven, plus Israel, five of the current nine remaining needed ratifications under the 44-state formula would still be outstanding. But U.S. ratification will almost certainly lead to Chinese ratification; Israel, Egypt and Iran will likely ratify more or less as a group, and India and Pakistan as another. North Korea may be the wild card, but international pressure if it is the lone holdout would be great. I don’t think that France, Russia or China sought to preclude a permanent end to testing.

    The work undertaken in Vienna by the Preparatory Commission’s Provisional Technical Secretariat has indeed been impressive, both for its contribution to global monitoring against nuclear tests, even prior to entry into force of the Treaty, and for its contributions to civil society in the area of tsunami warning, radionuclide monitoring, and seismological research. And it would be damaging to U.S. national security, as well as international security, were support for the ongoing preparations for entry into force of the CTBT, i.e., the mandate of the Commission and the PTS, to slacken.

    It is unclear to me how eliminating two words from the current titles of the Preparatory Commission for the CTBT Organization, and the Provisional Technical Secretariat, substantially affect the prospects for ongoing commitments, either funding and support of IMS stations and other Secretariat activities, or providing personnel to the PTS. While elimination of these words might produce a symbolic, optical “upgrading” of the work of the Commission and its Secretariat, and while this could undoubtedly be effected by a decision by the Commission (for a UNSC resolution to be mandatory on the Commission this would appear to require action under Chapter VII of the UN Charter, which could be a daunting challenge), the Commission would nevertheless cease to exist upon entry into force of the Treaty, and the Technical Secretariat would reemerge under the same name, but with an entirely different mandate.

    If the objective were more substantial changes now to the mandate of the Commission, and that of the Secretariat, whose functions are derivative from those of the Commission, such changes would require a considerable diplomatic effort to renegotiate the governing documents of the Commission and Secretariat. For the Secretariat, its current provisional monitoring activities could be expected to continue. Its other principal activity, preparing for carrying out on-site inspections, would also continue. It is not clear what else might be provided for. There is no possibility that states would agree to implement mandatory on-site inspections prior to entry into force of the Treaty. How the Commission’s mandate would change is also unclear. The Organization, to come into being upon entry into force, is tripartite: the Conference of States Parties, the Executive Council, and the Technical Secretariat. It is doubtful that the present Commission, of over 180 signatory states, would find reason to accept, now, the emergence of the structure provided for when the Treaty enters into force.

    When the CTBT enters into force, the Organization and its Technical Secretariat will have a permanence equal to that of the Treaty. But when they come into being, considerable changes to the current ways of governance and operation under the Commission are to be expected. Within the Technical Secretariat there may well be substantial modifications to its structure, to include its financial and personnel regulations and rules. It is doubtful that undertaking such changes, or partial changes if the Commission were somehow to seek an intermediate step toward the eventual structure, would generate much momentum toward permanence of the international organization, or entry into force of the Treaty.

    On the other hand, full funding for completion of the 337-facility International Monitoring System; agreement to undertake construction and provisional operation of all facilities, especially in states where such work has not even begun, such as Egypt, Saudi Arabia, and Pakistan; a robust program of work at the International Data Center to ensure the best possible analyses of data provided by the IMS; and mock on-site inspections could indeed provide very helpful momentum to the ongoing CTBT project. The decisions of the states making up the Commission to provide such funding and other support would enable the international community to continue to provide a strong and effective basis for the work of the Commission, pending entry into force of the Treaty. It is doubtful that a greater degree of permanence to the benefits that the Commission and Provisional Technical Secretariat are now providing to the international community can be otherwise ensured.

    In states whose ratifications are still required for entry into force of the Treaty, supporters should seek out all available paths to influence the relevant governing bodies, making the fundamental case that the Treaty is in the national interest of the state, as well as the global security interests of the international community. In the United States, this means working with all members of the U.S. Senate, on a non-partisan basis, to ensure that each member gives full consideration to the security benefits of the Treaty, and how these strongly outweigh potential risks. It also means working with both Houses of the Congress to ensure that full funding for the U.S. panoply of national technical means, and for the Commission’s work, is provided.

    • David Koplow (History)

      Changing the names of the CTBTO Preparatory Commission and the Provisional Technical Secretariat to eliminate the P-words would be a symbolic gesture, but sometimes symbols matter, and sometimes they can catalyze meaningful action. I see at least four legal routes through which this change could be accomplished.

      The simplest version would be for the participants (the signatory states and the organization itself) to just start using the new names, on an informal but routine basis. Perhaps the states could adopt a resolution (e.g., at an article XIV.2 Conference) authorizing the change in vocabulary, instructing the treaty bodies to start referring to themselves in the new way, and allocating funds for new stationery and signage. This version would not result in an “official” change in the nomenclature, and the original legal names might still have to be used for legal instruments such as leases and treaties. But even an unofficial change in the way all participants refer to the entities on a daily basis could be noteworthy.

      The second variation is to officially change the names of these units via a new legal instrument, or an amendment to the document that originally created them. Importantly, this does not mean changing the CTB Treaty itself – only the “Resolution establishing the preparatory commission for the CTBTO,” adopted by signatory states on November 19, 1996. This subsidiary instrument is an executive agreement, effective upon signature. It is legally binding even though it does not receive the advice and consent of 2/3 of the U.S. Senate. It does not contain its own internal “amendment” procedure, but it could be altered by a similar instrument, which could be drafted, negotiated and signed in the same way as the original. Alternatively, it could be superseded by diplomatic notes circulated by all the relevant states. Either way, the new executive agreement would replace the original, establishing the new names. (If some but not all CTBT signatories joined this amendment process, it would become quite messy.)

      A third, less customary, mechanism would be to go to the United Nations Security Council. Under article 103 of the UN Charter, in the event of a conflict between a state’s obligations under the Charter and its obligations under any other treaty, the Charter shall prevail. Under article 25, UN members undertake to accept and carry out decisions of the Security Council. Under article 39, the Security Council has the authority to make decisions with respect to threats to the peace, breaches of the peace and acts of aggression. Therefore, if the UNSC determined that this matter was appropriate for the exercise of its Chapter VII powers, it could override the CTBT documents and change the names of the temporary bodies, with immediate, universal legal effect.

      A final possibility of a different sort could follow the model established by the 1982 UN Law of the Sea Convention. There, when the treaty as negotiated was later determined to be defective (regarding its substantive content, not its entry-into-force provisions) the text was altered via a subsequent instrument, even before it came into force. That is, the original 1982 document had not attracted sufficient ratifications to enter into force, so even its own amendment procedures could not be followed. Instead, the negotiators crafted a new set of provisions (altering the original Part XI, the most controversial portion) and agreed upon an expedited mechanism allowing states to accept the substitute provisions instead of the original. This precedent could directly address the absurd EIF provisions of the CTBT, in addition to removing the P-words from the current bodies.

      I do not here opine about whether sufficient political support could be generated to effectuate these various options, but they are all legally available.

      David Koplow

  9. Daryl Kimball (History)

    I agree with Michael and David that even the symbolic gesture of informally dropping the “Provisional” from the title of “PTS of the CTBT” would be useful.

    For all practical purposes the PTS is no longer provisional. The CTBTO and the International Monitoring System and International Data Center are nearly complete and are now an essential part of today’s 21st century international security architecture that improves the ability of all states to detect and deter surreptitious nuclear test explosions and more.

    As Pierce Cordon writes, responsible states still must provide in full and without delay their assessed financial contributions to the CTBTO, fully assist with the completion of the IMS networks, and continuously and without interruption transmit data from the monitoring stations. There will be those in Congress who are always skeptical, but the value of the service is undeniable and in the United States’ and global interest.

    As for U.S. ratification, sure its a tough sell. What isn’t in Washington? But the case has not yet been made and the debate has not even begun. When it does, we may see a shift. As Hazel O’Leary and I wrote in a recent LATimes oped, the case for the CTBT is stronger than ever. See: http://www.latimes.com/news/opinion/commentary/la-oe-oleary-nukeban-20110914,0,6764146.story

    Of course the CTBT Article XIV entry into force formula is incredibly tough, but we cannot wish it away. For a like-minded group of states to simply declare that the treaty has entered into force for does not solve the problem that the United States and eight other key hold out states have not ratified. Unlike the Mine Ban Treaty, the CTBT only matters if the world’s major testing states abide by it.

    U.S. and Chinese ratification is key and when they do ratify, it will trigger a chain reaction elsewhere. Once they do, CTBT member states might then begin consideration of options for provisional entry into force to guard against the possibility that just one or two states try to thwart the will of the vast majority of the world’s nations to bring the CTBT into force.

    Michael and David and I will discuss these issues further at the Sept. 22 session at Stimson. Hope to see you there.

    Also, in a statement that will be published on Thursday on the ACA and Carnegie Endowment for Intl. Peace and delivered at Friday’s CTBT Article XIV Conference at the UN, a group of NGOs will address the value of the treaty and the logic of entry into force.

  10. krepon (History)

    Pierce:
    The purpose of my proposal is not to “seek more substantial changes” to the mandate of the Commission and the Technical Secretariat, but to make their undeniable contributions permanent ratrher than provisional.
    Hence the complications you raise (e.g., strengthening the mandate to carry out on-site inspections) would not arise until the Treaty enters into force, provisionally or formally.
    MK

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