CTBT contretemps

The entry-into-force deadline is here, but the Comprehensive Test Ban Treaty clearly will not make it.

ON September 24, 1996, the Comprehensive Test Ban Treaty (CTBT), opened for signatures after it was approved by the United Nations General Assembly (UNGA). This year, that date, will mark the passage of the three-year deadline set by the Treaty's provisi ons to enable the CTBT to come into force. The Treaty can come into effect only if 44 specified countries ratify it and submit the instruments of ratification to the U.N. Secretary-General.

Article XIV of the Treaty lays down the requirements for its entry into force (EIF). The list of 44 states - Annex 2 of the Treaty - comprises the states that formally participated in the 1996 session of the Conference on Disarmament (C.D.).

The EIF clause, that mandates upon the 44 states to ratify the treaty, was a device evolved as a result of backroom manoeuvres to ensure that the (then) threshold states such as India, Pakistan, Israel and North Korea were forced to become party to the T reaty. (Para 2 of Article XIV is poorly worded resulting in ambiguity with regard to the actual deadline though the Preparatory Commission of the CTBT Organisation (CTBTO-PrepCom) or the signatories to the Treaty do not seem to be overly concerned about it. It speaks of "three years after the date of the anniversary of its opening for signature". The ambiguity is essentially in the use of the word "anniversary" as it lends to the interpretation that the deadline is September 24, 2000. The accepted inter pretation, however, seems to be September 24, 1999, although it is not clear how a court of law will view it.)

Paragraphs 2-3 of Article XIV, which allow annual conferences to enable the entry into force, was the result of the suggestion by the Canadian negotiators as they felt that a strict EIF provision would make it difficult to bring the Treaty into force pro mptly. It requires that a majority of the states that have deposited their instruments of ratification request a special conference "to consider and decide by consensus what measures consistent with international law may be undertaken to accelerate the r atification process in order to facilitate the early entry into force."

As of September 15, 1999, exactly 152 countries had signed the Treaty and 44 countries ratified it. Of these 44 states, only 21 are from the specified list of 44. Of the seven countries which have exploded nuclear devices, only France and the United King dom have ratified the Treaty. Israel and North Korea are the key threshold states that have not signed the ratification.

The U.N. Secretary-General has convened a Special EIF Facilitation Conference during October 6-8, 1999, after the Vienna-based ambassadors of a majority of the ratifying states made a request on May 11 as required under Article XIV.

The Nuclear Non-Proliferation Treaty (NPT) Preparatory Committee meeting held in May in New York had provided the forum for an informal discussion among the ratifiers on the convening of the EIF Conference. The U.K. has been in the forefront of getting t he EIF conference convened. The informal exercise of arriving at a proper agenda, procedures of the meeting and the measures to be proposed has been on since May 18 with Britain's Ambassador to Austria, John Freeman, serving as the "Consultative Chair".

The EIF clause stipulates that only ratifiers can vote at the conference. Signatories can attend only as "observers". It appears that even non-signatories and non-governmental organisations have been granted an "observer" status. Accordingly, India - a n on-signatory - too has been invited. According to sources in the Ministry of External Affairs (MEA), India is not likely to attend the meeting. The reasoning could be that since it cannot participate in the discussions, there is no point in attending the meeting.

External Affairs Minister Jaswant Singh clearly stated the Indian position on CTBT in the post-Pokhran-II phase (see Foreign Affairs Journal, September-October 1998): "After the tests, India stated that it will henceforth observe a voluntary morat orium and refrain from conducting underground nuclear test explosions. It has also indicated a willingness to move toward a de jure formalisation of this declaration. The basic obligation of the CTBT is thus met: to undertake no more nuclear tests . Since India already subscribes to the substance of the test ban treaty, all that remains is its actual signature." (emphasis added).

Pakistan, having declared a moratorium on nuclear tests, has adopted a somewhat similar position. In his UNGA address last year, Prime Minister Nawaz Sharif said that Pakistan was ready to adhere to the CTBT "in an atmosphere free from coercion and press ure". He reiterated this in his National Defence College address on May 20. Some recent pronouncements have linked the signing of the CTBT to the lifting of sanctions, giving meaning to the phrase "atmosphere free from coercion and pressure". However, pe rhaps to save the embarrassment of being confronted with the question of signing the Treaty, having given some assurances at the last UNGA, Sharif has decided not to attend the session this year.

TOPPING the list of states whose ratification is essential for the Treaty making headway is the United States. The U.S., which holds the largest nuclear arsenal, has conducted 1,030 nuclear tests and has put in place the gold plated multi-billion dollar Stockpile Stewardship Programme (SSP) with the objective of being in readiness to resume nuclear testing if it becomes necessary for reasons of national security and "supreme national interests of the country". Ratification by other countries, particular ly by China and Russia, would be predicated upon the U.S. ratifying it first. The issue of U.S. ratification has, however, been politically stalemated since President Bill Clinton transmitted it to the Senate on September 22, 1997 for its "advice and con sent". The Senate Foreign Relations Committee, chaired by Republican Senator Jesse Helms, has not held a single hearing on the Treaty. He is holding the CTBT hostage in order to get his political pound of flesh. Senate rules give the Foreign Relations Co mmittee jurisdiction over treaties. While in principle it is possible that the Senate could give its consent after a single hearing, it is most unlikely to take up the Treaty for consideration as the topic is not listed for hearings.

With the deadline nearing, there is much evidence of pressure being mounted on Helms. On June 28, five Republican Senators wrote to Helms urging him to hold hearings. Armed with findings of a poll - which shows that 80 per cent of Republicans and 86 per cent of the Democrats, on the one hand, and 82 per cent of the general public, on the other, want the CTBT approved - Clinton and a group of nine bipartisan Senators issued a joint statement on July 20 calling for prompt action on the Treaty. On the same day, all the 45 Democratic Senators wrote to Helms calling for Senate hearings.

In a letter dated August 2 and addressed to Senator Trent Lott, the Senate majority leader (whose unstinted support Helms seems to enjoy), nine eminent scientists, including Dr. Hans Bethe, who headed an important division of the Manhattan Project, Dr. F reeman Dyson, Dr. Herbert York, founding director of the weapons facility, Lawrence Livermore National Laboratory, nuclear weapons specialist Dr. Richard Garwin, and some important former intelligence and military officials, called for prompt ratificatio n. They pointed out that in the context of reports of Chinese nuclear espionage in the U.S., ratification of the CTBT was an essential and key step towards protecting the U.S. against weaponisation of stolen nuclear secrets.

On August 9, Clinton, in his address on the occasion of the 50th Anniversary of the Chairman of the Joint Chiefs of Staff, stated that the current Chair, General Shulton, and four former Chairs had issued a statement endorsing the CTBT and urged Helms to hold hearings during this fall season. The most dramatic, however, is the statement on September 8 by Democratic Senator Byron Dorgan. Stating that the October conference should not proceed without the U.S. providing a leadership role, he has threatened to obstruct all Senate proceedings unless the CTBT is taken up for debate. Senator Helms appears unmoved.

The underlying issues are complex. While in U.S. domestic terms they are political, in global terms they have to do with issues of nuclear disarmament in general. The reasons for the other two Nuclear Weapon States (NWSs), Russia and China, having not ra tified the Treaty stem from these considerations. The ratification in the U.S. has got linked to the 1972 Anti-Ballistic Missile (ABM) Treaty, the proposed defence postures of the U.S., the Strategic Arms Reduction Treaty (START-II), the alleged Chinese nuclear espionage and the nuclear tests by India and Pakistan. India's opposition to the Treaty at the C.D. was primarily on the grounds that the Treaty, as adopted, had failed to address broader nuclear disarmament issues.

Ironically, after Pokhran-II, the BJP government's position on CTBT, aided by the arguments of the hawkish defence analysts and strategists, is being dictated by what one may call the "railway compartment mentality". Arguments related to disarmament have been thrown to the winds and the present government is all for signing the Treaty for some imagined quid pro quo from the U.S. administration, such as the transfer of dual-use technologies. Indeed, it would have gone ahead and signed the Treaty b ut for the fact that the government itself fell and the hold-out states now includes the U.S. as well.

The crux of the problem in the U.S. imbroglio is the proposed revision of the ABM Treaty which the U.S. is negotiating with Russia. Helms' contention is that the ABM Protocols and the Kyoto Protocol to the U.N. Convention on Climate Change have not been sent to the Foreign Relations Committee as required and, unless that is done, he will not take up the CTBT which is very low in his priority. A key issue in the proposed ABM Protocols pertains to the demarcation of Theatre Missile Defence (TMD) and ABM, the development and deployment of the latter being prohibited under the ABM Treaty. The objective of the revised protocols is to enable the development and deployment of the proposed National Missile Defence (NMD) system for which Clinton has sought a $1 0.5-billion funding between now and 2005.

On the one hand, Russia perceives the NMD to be violative of the ABM Treaty and will not move on START-II, which is awaiting ratification by the Duma, until ABM Treaty Protocols are renegotiated to its satisfaction and NMD is not pursued. Indeed, ratific ation has perhaps become even more remote in the light of the recent developments in Yugoslavia. On the other hand, the U.S. administration wants the immediate deployment of a robust NMD (which could include space-based weapons) for national security aga inst the perceived emerging ballistic missile threats from North Korea, China and India, and views the proposed revision of the ABM Treaty to be restrictive. In fact, the hawkish Helms wants the ABM Treaty, which according to him is defunct after the col lapse of the Soviet Union, scrapped so that the NMD can be established. "The Clinton administration wants to negotiate permission from Russia over whether the U.S. can protect itself from ballistic missile attack by North Korea. This is unacceptable," sa ys Helms. Fearing that the new protocols will not get two-thirds majority in the Senate, and without the benefit of START-II ratification by Russia, the Clinton administration is unlikely to send it to the Senate.

ALTHOUGH unrelated to the CTBT or other arms control issues, the Clinton Administration does not want the Kyoto Protocol, which puts binding obligations on the U.S., accepted until there is stronger commitment from developing countries for greenhouse gas reduction. Clinton feels that it is premature to send the Kyoto Protocol to the Senate. But Clinton had, according to Helms, given a legally binding commitment to send the two treaties to the Senate. When this did not happen, Helms set June 1 as the dea dline for a debate on the CTBT. June 1 has passed and Helms is steadfast in his refusal to consider the CTBT as the situation remains unchanged. Helms has also used the Indian nuclear tests as arguments for opposing the CTBT saying that "the Indian tests , from a non-proliferation standpoint, have demonstrated that CTBT is scarcely more than a sham."

North Korea's August 1998 launch of the Taepo Dong-I missile, and reports of increased deployment of Chinese M-11 missiles opposite Taiwan, have had their ramifications in the U.S. debate on TMD in East Asia (proposed to be deployed in conjunction with J apan and Taiwan) and the NMD itself. This has increased the already tense Sino-U.S. relations after the Cox Report on nuclear espionage and the attack on the Chinese Embassy in Belgrade. Beijing has argued that the development of an East Asian TMD would be inconsistent with U.S. commitments on the ABM Treaty. Chinese officials have warned that U.S. missile defences could force China to increase its offensive forces, or, due to the technology involved, lead to an arms race in space.

In his March 26 address at the C.D., Chinese President Jiang Zemin, even as he announced that the CTBT would soon be submitted to the National People's Congress for ratification, said: "Disarmament should not become a tool for stronger nations to exert c ontrol over weaker ones, still less should it be an instrument for a handful of countries to optimise their armament to seek unilateral security superiority. To reduce the armament of others while keeping ones own intact, to reduce the obsolete while dev eloping the state-of-the-art, or even to sacrifice the security of others for one's own security and to require other countries to scrupulously abide by treaties while giving oneself the freedom of action by placing domestic laws above international law, all these are acts of double standards. They are a mockery of international disarmament efforts and run counter to the fundamental purposes and objectives of disarmament."

IN the light of all this, the likely scenario after September 24 is that the October EIF conference is unlikely to have these key countries as voting participants. With the U.S. absent, the conference is unlikely to take any significant decisions. Also, as MEA sources point out, since the UNGA will be held at the same time, nothing significant is likely to happen at the EIF meeting. So the question is: what would or what can the Conference do in terms of "measures to accelerate ratification"? Indeed, it would be interesting to speculate what kind of measures the remaining ratifiers will envisage to accelerate the process in the U.S.

What the EIF conference definitely cannot achieve is to waive the requirement of the 44 ratifying states to bring the Treaty into force. It also cannot make amendments to the Treaty. Indeed, during the C.D. negotiations, it was ensured that such a "waive r conference" is not permitted. However, John Holum, the U.S. Under Secretary of State for Arms Control and Politico-Military Affairs, at a special briefing on April 7, 1998, after the U.K. and France ratified the Treaty, said: "They could adopt on their own a test ban treaty that would have all the same provisions but a different EIF provision. That's a theoretical possibility. Or they could decide on provisional application. I think any of those kinds of options would be very difficult to pursue becau se the EIF provisions were the product of very intense negotiations and... certainly, the two who have ratified last week have strong views on that question."

In all likelihood, the October conference will open with the opening remarks of all the ratifiying states and conclude with a pious declaration with regard to the importance of the CTBT with a resolution calling upon the rest of the 44 states to ratify t he Treaty at the earliest. The conference may also adopt a resolution to step up diplomatic efforts for the conclusion of the Treaty and a decision to convene another special EIF conference in 2000, if the CTBT is not in force by then. It is becoming inc reasingly clear that, unless nuclear disarmament is addressed in its entirety, the CTBT could remain a non-starter.