As discussed in a previous post and underscored by North Korea’s recent behavior, CTBT entry into force is problematic. According to the treaty, the CTBT will enter into force 180 days after the 44 states listed under Annex 2 ratify it. Of these states, nine still have not ratified: the United States, China, Indonesia, Egypt, Israel, India, Pakistan, Iran, and North Korea. Is there a workaround for a situation in which just a few holdouts (or perhaps just one) remain?
A GSN article from earlier this month quoted Daryl Kimball and Jeffrey Lewis on the issue of issue of provisional entry into force. This basically means that even if the treaty didn’t come into force, the parties could, in Lewis’ words, “agree to act like it did.”
This would involve ratified states using the already established International Monitoring System (IMS) and International Data Center (IDC) to verify compliance with the agreement, as planned for by the CTBT. Is this a viable option?
Provisional entry into force has been discussed in CTBT negotiations since the mid-1990s but has failed to gain substantial momentum. Much of this has had to do with the major financial and technological contributions the US and China make to the IMS. Since the US and China have yet to ratify, a provisional entry into force among current members poses legal and technical risks to the use of the IMS. For example, if US-owned stations detected a nuclear test, would they necessarily deliver this information to the IDC so that the provisional members could act on it? And would the US and China have access to the data collected by the IMS due to their stakeholder status or be excluded via their non-ratified status? Moreover, there is a risk that the US and China would reconsider their contributions to the IMS if a provisional agreement was signed without them. Given these challenges, the discussion of provisional entry into force is unlikely to gain much traction until the US and China, at the very least, have ratified. Despite President Obama’s intentions and the ratification cascade suggested by Lewis in the GSN article, US and Chinese ratification, to say nothing of the six other holdouts besides North Korea and including Iran, is far from given.
Even if universal ratification outside of North Korea can be achieved, there are additional hurdles that a provisional entry into force agreement would have to overcome. First, while the individual facilities of the IMS are under the jurisdiction of member nations, the authority over use of the system and data collection as a whole technically falls under the CTBT Preparatory Committee (PrepCom) with control to be transferred to the CTBT Organization (CTBTO) upon entry into force. Since a provisional agreement falls outside the legal purview of the CTBT, it is uncertain if a provisional arrangement could legally grant members the authority to use the IMS/IDC to enforce the agreement. Information could still be obtained from the system and used as a basis for unilateral or collective action, but it may not be legally sufficient to automatically trigger action as under a full CTBT. Furthermore, since the IMS is already operational states can already choose to act, cooperatively or unilaterally, on information obtained from IMS stations to sanction a nation observed to be testing. Therefore, it is unclear whether or not a provisional arrangement would be functionally any different from the status quo. Finally, the On-Site Inspections (OSI), one of the main verification methods of the treaty, may not be available under a provisional arrangement. Currently the OSI are set to be administered by the CTBTO. Without a comparable oversight organization, a provisional arrangement may have to settle for an inspection regime handled by giving responsibilities to individual members, a proposition many states may not support.
Kimball’s and Lewis’ discussion, however, raises a significant question for the future of the CTBT. As recent events have plainly demonstrated, North Korea sees continued nuclear testing as in its best interests. So long as that is the case, North Korean ratification of the CTBT, and, consequently, the CTBT’s entry into force may very well be a pipe dream. Perhaps a legally and technically satisfying provisional arrangement can be devised, but the challenges are not trifling. Regardless North Korea has clearly placed the CTBT at a crossroads, and no discussion of ratification is complete without addressing the roadblock its testing represents to entry into force.