Nuclear Disarmament Commentary Index

Published by The Lawyers’ Committee on Nuclear Policy, New York

September 1999 Volume 1, Number 4

By Lloyd Axworthy, Minister of Foreign Affairs of Canada

 

The nuclear age was ushered in with a bang on 16 July 1945. On that day the United States, aided by Canada and the United Kingdom, successfully detonated the world’s first nuclear device at Alamogordo Desert in New Mexico. Soon afterward, Canada renounced the option of developing nuclear weapons of its own, restricting its nuclear activities to the civilian sector; others did not. In the fifty-four years that have elapsed since that first test was carried out, an additional 2,050 known nuclear tests have been conducted worldwide - an average of one test every nine days for more than a half century! Together these test detonations generated the equivalent force of more than 35,000 Hiroshima-size bombs. These facts are alarming; more alarming still are the end results of nuclear testing.

Through the years nuclear tests have facilitated the development, production and deployment of massive nuclear arsenals that pose - and will continue to pose for the foreseeable future - a serious threat to mankind’s very existence.

When one ponders the history of nuclear testing and the fundamental role it has played in nuclear proliferation, it becomes abundantly clear why the Comprehensive Nuclear-Test-Ban Treaty (CTBT) is rightly considered a seminal achievement in nuclear disarmament and non-proliferation. The CTBT, negotiated by the Geneva-based Conference on Disarmament (CD) and adopted by the United Nations General Assembly on 10 September 1996, binds its signatories "not to carry out any nuclear test explosion or any other nuclear explosion, and to prohibit any such nuclear explosion at any place under its jurisdiction or control."

It also provides for an extensive and intrusive International Monitoring System (IMS) that will ensure compliance with the Treaty’s stringent requirements through an international network of 321 monitoring stations and 16 laboratories, including 15 stations and one laboratory in Canada. These monitoring stations will be able to detect all explosions greater than one kiloton in the atmosphere, underwater or underground, anywhere on earth. (While only partially operational, for example, the IMS was able to identify the 1998 Indian and Pakistani nuclear test explosions).

The CTBT is a vehicle that may eventually deliver us to a nuclear free world.

The enormous potential of the CTBT is clear. A ban on testing will help dampen enhancement of existing nuclear arsenals, while impeding states with nuclear aspirations from developing nuclear weapons technology of their own. As such, the CTBT is a vital complement to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which has served as the central instrument for global nuclear disarmament and non-proliferation policy for more than thirty years.

As Minister of Foreign Affairs, I had the privilege of signing the CTBT on behalf of Canada on 24 September 1996, when the Treaty was opened for signature. At that time, I remarked that the adoption of the CTBT marked a watershed in building a new world free from the scourge of nuclear weapons. Three years later I continue to believe that the CTBT can - and will - make an unambiguous contribution to global nuclear disarmament and non-proliferation. But much of the Treaty’s promise remains to be fulfilled. Although its very conclusion established a strong global norm against nuclear testing for all nations, the true worth of the CTBT will not be realized until it actually enters into force.

Strict Requirements for the Treaty’s Entry Into Force

Regrettably, the exacting and virtually unprecedented entry-into-force (EIF) provisions have yet to be met. Article XIV.1 of the CTBT stipulates that the Treaty cannot enter into force until it has been ratified by 44 designated countries possessing nuclear technology. To date, only 21 of these states have ratified the treaty. Canada is one of the Article XIV.1 nations, and I was proud to deposit its article of ratification with the United Nations last December.

It is unfortunate that more of the Article XIV nations have not ratified the CTBT, but it is not surprising. Indeed, Canada foresaw this possibility when the CTBT was being negotiated. Anticipating that one or more of the 44 countries required for EIF might not ratify the treaty posthaste, Canada proposed that a conference be convened if the CTBT had not entered into force three years after its opening for signature. The proposal was accepted by the international community and was incorporated into the CTBT as Article XIV.2. Under the Treaty, this process is to be repeated annually, unless otherwise decided by the preceding Conference.

September 24, 1999, marked the third anniversary of the Treaty’s opening for signature. In accordance with Article XIV.2, a conference will be held in Vienna from October 6-8. This conference will have a two-fold mandate: it will look back to examine the extent to which the requirements for entry into force have been met; and it will look forward to consider and decide by consensus what measures consistent with international law may be undertaken to accelerate the early entry into force of the Treaty.

The inaugural Article XIV Conference will need to address the wide variety of reasons why different states have yet to ratify the Treaty: legal or technical obstacles to complying with Treaty obligations, complex domestic pressures and the intricacies of diplomatic calculation for example. And the pattern of ratifications is far from uniform. Of the five NPT nuclear weapon states, for example, all have signed the CTBT but three have yet to ratify. Three states whose ratification is required for entry into force have yet to sign the Treaty at all.

Facilitating the Entry Into Force

Clearly, therefore, a single approach to accelerating the ratification process will not suffice. Canada is optimistic that participants at the Article XIV conference will address the myriad factors and varying circumstances in reaching consensus on a series of measures that will expedite ratification. Seeking to ensure the success of the conference, Canada has already raised a number of technical and political suggestions that we believe could usefully supplement national initiatives in accelerating the ratification process. For example, Canada has suggested the establishment of regional focal points to assist states in establishing the government bodies responsible for ensuring national compliance with the Treaty. These focal points could also render legal and technical assistance to signatories in drafting the complex domestic legislation and regulations that would enable ratification.

China, Russia and the United States should be vigorously encouraged to complete their articles of ratification.

Canada is pleased that the Provisional Technical Secretariat (PTS) - the body charged with establishing the CTBT’s verification regime - has, over its existence, helped to advance the ratification process, for example through technical assistance and workshops on implementation of the CTBT. We would encourage an even greater facilitation role for the PTS in the future.

National efforts are also of course important. In this respect, I have written to many of my counterparts in countries that have not signed and ratified the Treaty, urging them to do so. Canada has also provided practical support to those states that may face obstacles in making the necessary domestic arrangements for implementation. In October 1998, I signed on behalf of Canada a Bilateral Facilities Agreement with the CTBT Organization (CTBTO). This agreement, the first such bilateral facilities arrangement concluded by a CTBT signatory, authorizes the CTBTO Preparatory Committee to undertake work on Canadian soil to establish or upgrade Canada’s monitoring facilities. We have distributed our Agreement as a model for other states considering the creation of their own CTBT National Authorities. Active consideration is also being given to the creation of a special fund to provide technical assistance in this area to developing countries.

Inter-sessional Mechanisms

Unfortunately, the provision of legal and technical assistance alone will not be enough to ensure the prompt entry into force of the CTBT; far more difficult to overcome will be political resistance. While the Article XIV conference will need to decide on various forms of encouragement and assistance to the ratification process, Canada is under no illusion that the inaugural Article XIV Conference will manage to craft solutions to all the various problems that are delaying implementation of the Treaty. We are concerned that the Conference, which the treaty suggests be convened annually, will not by itself be sufficient to accelerate CTBT implementation. In Canada’s view, some form of inter-sessional mechanisms will be key to translating the intentions of Article XIV into reality.

Simple, cost-effective inter-sessional mechanisms have proven effective in other fora. Canada’s proposal for a CTBT counterpart mechanism is the establishment of a group to meet regularly between Article XIV Conferences to facilitate exchange of information between members, stimulate discussion of policy issues, provide for coordination of national activities and allow for planning of joint initiatives such as visits or seminars. Such a "Friends of the CTBT" group need not be expensive or logistically difficult, requiring for example no dedicated secretariat. Meetings could take place in Vienna among representatives of local diplomatic missions accredited to the Comprehensive Nuclear-Test-Ban Treaty Organization. The formation of such a Contact Group in Vienna would ensure the timely and effective dissemination of pertinent information provided by various members.

Another Canadian proposal borrowed from existing fora would be for the Chair of the CTBT Article XIV Conference to remain in office until the following Conference. This ongoing Chair could represent the CTBT community in contact with other countries and organizations, and promote joint activities in consultation with other member states and through the Vienna Contact Group in following up the conclusions of the Conference.

In addition to their practical coordinating and consultative roles, such inter-sessional mechanisms would demonstrate the determination and commitment of the ratified states to furthering the CTBT entry-into-force process.

Legal Options for Entry Into Force

In the three years since the Treaty’s signature a number of legal alternatives for EIF have also been discussed by various experts. One of the alternatives for example involves a possible "waiver" of the strict EIF requirements by those states among the 44 who wish to see the Treaty enter into force, at least as it applies to them, without waiting for complete fulfilment of the Article XIV.1 provisions. The notion of waiving EIF requirements in order to hasten a treaty’s implementation is not unprecedented. In the Treaty of Tlatelolco, for example, nations are afforded the option to waive - "wholly or in part" - the treaty’s stringent EIF requirements and allow it to enter into force for themselves. It is interesting to recall that the possibility of a waiver was raised (by Australia among others) when the CTBT was being hammered out in the Conference on Disarmament in 1996. The final CTBT did not provide for provisional application, but it did not preclude it either. Moreover, such provisional application is in accordance with Article 25 of the Vienna Convention on Treaties. Other legal options for partial application could be considered under Article 41 of the Vienna Convention.

Canada does not, however, consider it necessary to consider such measures at the upcoming initial Article XIV conference. Nor do we by any means favour opening up the Treaty in order to seek amendment of the entry-into-force provisions, if for no other reason than that it would be impossible to restrict potential amendments to that clause alone, putting at risk hard-won achievements in other parts of the Treaty. In our view, real progress toward implementation can be made without resorting to legal manoeuvres of this nature. We acknowledge that such alternatives might eventually prove necessary, but for now they should be held in reserve while less radical diplomatic and technical measures are pursued. We are confident that our current approach, that of patience and perseverence, will be rewarded.

A special appeal must also be made to India, Pakistan and North Korea, the three Article XIV states who still have not signed.

Maintaining Momentum

Canada will work unremittingly to ensure that the inaugural Article XIV Conference provides new impetus for the early entry into force of the Comprehensive Nuclear-Test-Ban Treaty; the continued viability and integrity of the CTBT are contingent upon maintaining momentum to this end. Accordingly, a major objective of the conference will be to encourage more countries to ratify the Treaty. Nations that have not adhered to the Treaty must be strongly urged to do so at the earliest possible date. While the ratification of all states is important, the Conference should emphasize the special significance that is attached to ratification by those 44 nations named as Article XIV states. In particular, the three NPT nuclear weapon states that have not ratified - China, Russia and the United States - should be vigorously encouraged to complete their articles of ratification. Two nuclear weapon states - the United Kingdom and France - have in fact already deposited their articles of ratification with the UN and are to be commended. A special appeal must also be made to India, Pakistan and North Korea, the three Article XIV states who still have not signed - let alone ratified - the CTBT.

Despite the complexities and difficulties I have mentioned, the message of the Conference should be a positive one. It has often been said that nothing worth having is easy to attain, but in turn some things are well worth the struggle. The CTBT is one of these -- a vehicle that may eventually deliver us to a nuclear free world. We must spare no effort to ensure its success. Our future, and that of our children, may depend on it.

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Publisher of Nuclear Disarmament Commentary:

The Lawyers’ Committee on Nuclear Policy

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Editor: William Epstein,

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