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Understanding the Comprehensive Test Ban Treaty

Mohammad Akram Sheikh

The governments, that have been in and out of power in Pakistan, have very often taken decisions affecting national destiny, without taking into confidence the Parliament. The Parliament has often been taken to be a body which is to be merely informed about what has already been decided and not a body which is to be asked as to what course of action should be adopted. The Parliament learnt about the nuclear explosion after the event. The Parliament learnt about imposition of emergency after it had been clamped. However, now there appears to be some change in the weather. A different breeze is blowing. The Parliament is being asked to debate on signing of CTBT, before the event which is a positive development quite apart from its motives.

Since signing of CTBT, or not signing it, would have a very significant impact on the country, it is extremely important that the legal nature of this Treaty is fully understood by the people and their representatives. It is for this purpose that I have chosen to lay before the readers the information contained in this Article so that they should be able to evaluate the matter knowledgeably.

 

LAW OF TREATIES

As agreements between individuals are called contracts, those between states are called treaties. A treaty between two states is called a bilateral treaty and the one between more than two states is called a multilateral treaty. Except for a few treaties that are meant only to provide authoritative statement on a particular field of law (e.g. law of the sea), all treaties are primarily aimed at creating rights and obligations for state parties.

Vienna Convention on the Law of Treaties (1969) lays down basic rules for the interpretation of treaties and is generally considered to be an authoritative statement of customary rules for this area of international law. An important rule of the law of treaties is that states do not become parties to treaties at the time of signing of the treaties by their executive branches. A state can become a party to a treaty only after it has ratified the treaty in strict accordance with the procedures laid down for this purpose in its constitutional framework. Technically, in case Pakistan becomes a party to the Comprehensive Nuclear-Test-Ban Treaty (the Treaty) then if Pakistan does so before the coming into force of the Treaty, it will be called ‘ratification’ whereas a subsequent joining will be said to be an ‘accession’ to the Treaty.


TREATIES AND THE U.N.

While a treaty can originate and come into operation completely outside the framework or the stage or without utilizing the good offices of the United Nations, it is increasingly becoming a rarity for this to happen. The United Nations Charter, which itself is a multilateral treaty, states as the UN’s first and foremost purpose ‘to maintain international peace and security’ (Article 1(1) of the UN Charter) and ‘to be a centre for harmonizing the actions of nations in the attainment of these ends.’ (Article 1(4) of the UN Charter).


CTBT

This Treaty has also emerged from the UN system and was adopted by the UN General Assembly on 10th September 1996 (UNGA Res. No. 50/245) in which Pakistan too voted in the affirmative. However, just by casting an affirmative vote for the adoption of a resolution for this Treaty does not mean that Pakistan has agreed to be a party to that Treaty. It only means that Pakistan has agreed that the UN should proceed with encouraging the emergence of an international test ban treaty and regime.

The Treaty was adopted by the UN General Assembly in six languages, i.e. Arabic, Chinese, French, Russian, Spanish, and English with each text being ‘equally authentic.’ (Article XVII of the Treaty).

The UNGA Resolution through which the draft of the Treaty was adopted envisages that ‘an end to all such nuclear explosions (achieved by the Treaty) will constitute a meaningful step in the realization of a systematic process to achieve nuclear disarmament.’ (Preamble to the Treaty).


ANALYSIS OF THE TEXT OF THE TREATY FROM THE STANDPOINT OF OUR NATIONAL INTEREST

The following brief analysis of the text of the Treaty does not aim to create any prejudice either in favour of or against the proposition that Pakistan should become a party to the Treaty. The aim is just to offer an objective and simple analysis of a treaty that is both extremely complex and perhaps deliberately confusing to enable an informed decision on this proposition, a decision that needs to be taken in view of our long-term goal and interest. The analysis proposes to point out the risks that Pakistan will be exposed to on a worst-case scenario basis, i.e. which term of the Treaty has the potential of being used in what manner against us in an antagonistic international environment of the kind being faced by Iraq for the last few years. One can argue that legal niceties are not really relevant when Western powers led by the US decide to move against a Third World state and therefore there is no point in going through the legal niceties of the Treaty Text. While there is no disputing this cynicism, we must not forget that all military actions, imposition of sanctions and now the conduct of extremely hostile and humiliating on-site inspections in Iraq by the IAEA team have all been done under a comprehensive blanket of legitimacy provided by a whole range of multilateral treaties including the UN Charter (to which Iraq is obviously a party) and the various Security Council Resolutions approving such actions. It is in this latter respect that we need to protect ourselves and it is with this aim that the following analysis is being offered.

In order to offer a brief and meaningful analysis of the Treaty, we need to divide the draft into three parts:

The objects of the Treaty (or the obligations of states party)

The structure and working of the organization responsible for ensuring state compliance

On-site inspection and verification powers of the organization


  1. THE TREATY OBLIGATIONS

In principle, in case Pakistan becomes a party to the Treaty, we will no longer be able

To carry out any ‘nuclear weapon test explosion’

To carry out any ‘other nuclear explosion’

To permit any such ‘nuclear explosion within (our) jurisdiction or control’ (Article 1(1).


Two Comments on the above obligations

  1. Strangely, instead of the words ‘nuclear test’, the focus here is EXCLUSIVELY on the words ‘nuclear explosion’ only, something that obviously makes the very title of the Treaty confusing and misleading. What is more, one can be forgiven for doubting the intention of the drafters of this Treaty when one discovers that the entire Treaty completely omits to even define the very term ‘nuclear explosion’ – an activity the banning of which is the SOLE aim of this 150-page long document! 

    Just like any other normal contract, the greater the confusion, the bigger will be the potential for the stronger party to wield more power by opting to choose whatever interpretation facilitates the achieving of its objective in time of crisis. The English draft of the Treaty being also an authoritative version, we appear to have been left with no option but to fall back on the ordinary meaning of the word ‘explosion’ as given in the standard Oxford Dictionary, i.e. ‘a sudden and violent release of energy’. Having made this point, let us now proceed to see what can be the possible implications for us in terms of the above obligations if we were to become a party to this Treaty. All kinds of nuclear weapon tests NOT involving an actual nuclear explosion will remain permissible, including cold testing etc.

  2. The second interesting thing in the Treaty is that nuclear explosions conducted outside the territorial jurisdiction of a signatory state have been impliedly but NOT EXPRESSLY or specifically been prohibited. This loophole appears to have been left deliberately so that developed states like the US, UK or France with global reach are able to conduct nuclear explosions in the South Pole or in the deep sea-beds in the open seas away from their territorial jurisdiction.

  1. THE STRUCTURE & WORKING OF SUPERVISING ORGANISATION

The name of the Organisation is to be Comprehensive Nuclear-Test-Ban Organisation (the Organisation) and all states party to the Treaty are to be members of the Organisation. Also, the seat of the Organisation will be at Vienna, Republic of Austria (Article II A3). Austria being one of the only two recognised neutral states in the world, this is obviously aimed at giving the whole Treaty regime an impression of impartiality.


THE STRUCTURE

The Organisation will have three organs, i.e. the Conference, the Executive Council, and the Technical Secretariat. Out of the three, it is ONLY the third organ that has any teeth and it is the workings and powers of this organ (backed up by an International Data Centre and International Monitoring System that we need to be cautious about).

  1. The Conference of the State Parties. All states party to the Treaty will be members of the Conference with each member represented by one person in addition to any advisors. Although the Treaty claims it to be ‘the principal organ of the Organisation’ with authority ‘to review the powers and functions of both the Executive Council and the Technical Secretariat’ (Article II B (24), in actual fact the Conference is not going to be any more than a talking shop, the normal frequency of its meetings being not more than ONCE every year ! (Article II B (14). The Conference’s role within the Organisation is less significant even when compared with the role of the General Assembly within the framework of the UN.

The Conference is to decide all ‘matters of substance’ ideally through a unanimous vote (something that would almost always be impossible to achieve), failing which, through a two-third majority of the members present and voting. (Article II B (22).

There is however one important function that the Conference will perform, i.e. appoint the Director-General of the Technical Secretariat, the most important person within the whole Treaty regime. (Article II B (26)(d). A positive thing is that the question of who should be appointed as the Director-General of the Technical Secretariat will be decided through a unanimous vote or at least through the approval of two-thirds of the members present and voting and certainly not through a simple majority vote. This is because:

a) the question of the appointment of the Director-General will in all probability be treated as a ‘matter of substance’, and

b) even if it is not so treated, then the question whether this matter is ‘of substance or not’ will itself be voted upon as a ‘matter of substance’. (Article II B (22).

There is, however, one important thing that needs to be borne in mind; at least for the first four years the appointment of the Director-General is not going to be a matter within the exclusive domain of the Conference, i. e. the Council is going to appoint the first Director-General only on the recommendation of the Preparatory Commission that is already functioning. As we will see below, already the person who has been chosen to head the Preparatory Commission is the British Ambassador to the UN and it is a German citizen who has been chosen to head the ‘Provisional’ Technical Secretariat that is already functioning.

2. The Executive Council. This is a 51-member ‘executive organ’ of the Organisation with its membership elected by the Conference and divided on geographical lines. The membership of the Council will circulate among state parties, with a maximum of seven members from the whole of Middle East and South Asia put together. (Article II (28)(d)). Out of the total number of Council seats, it appears that a certain percentage will be filled on the basis of different or somewhat undemocratic criteria. For instance, out of a total of seven seats from the Middle East and South Asia, at least two will be filled on the basis of comparative ‘nuclear capabilities’ of the states, their expertise in nuclear monitoring technology and also their contribution to the Organisation’s annual budget !! (Article II (29)(a)). It appears that states falling into this category will probably have a permanent seat on the Council as all the rest of the seats are said to be subject to rotation or election. This category and this rule appears to have been inducted to ensure that within a certain geographical allocation of Council seats, (e.g. out of a maximum allocation of ten states for North America and Western Europe) countries like the US, the UK and France do not fall prey to the rotation system and are able to enjoy a permanent seat in the Executive Council.


Unlike the Conference, the Council will meet for regular sessions. Each member will have one representative on the Council and will have one vote. All ‘matters of substance’ will have to be decided through an affirmative vote of at least 34 members. (Article II C (36)).

Among the Council’s main powers and functions, the most important are those of supervising the activities of the Technical Secretariat (Article II C (38)(b)) and of negotiating and concluding on behalf of the Organisation (with the prior approval of the Conference of course) agreements or arrangements with any state party or any international organisation (Article II C (38)(h). The latter power would appear to be quite significant when read with Para 8 of Article II A of the Treaty that specifically envisages the Organisation to have co-operative arrangements with the International Atomic Energy Agency (IAEA) or any other organisation or state to enhance the expertise and facilities available to the Organisation. It is interesting to observe here that it was the same IAEA that has been consistently displaying a clear departure from its specific aim in Iraq, i.e. to monitor and report on Iraq’s nuclear facilities, if any, by humiliatingly insisting on an on-site inspection of each and every room of the Presidential Palace !


Also, as it would be ordinary members who would be footing the huge bills thrown at them by the Technical Secretariat for setting up and operating international monitoring sites (host states will not be liable to bear the cost), it is obvious that the Organisation would not really be rolling in money and would in all probability end up with an inferior network of monitoring centres far poorer than the US’ huge and sophisticated information gathering network. A comprehensive information sharing arrangement between the Organisation and the US is therefore not a foregone conclusion, specially when such an arrangement has been envisaged by the Treaty itself (Article IV B (27). In fact, given the stated object of the Organisation, it would be illogical for it to avoid asking the US to share all the information that it gathers through its huge global monitoring network, both terrestrial and satellite. This would pave the way for the emergence of a test-ban regime that would although be quite impartial in appearance but would be totally information-dependent on the US. With a CTBT regime heavily information-dependent on the US, one would be foolish to expect the US officials to make available to the Organisation the same level of information about the nuclear facilities of, say, Israel and Pakistan.


iii. TECHNICAL SECRETARIAT (backed-up by an International Data Centre and an International Monitoring Centre)


In actual fact, it is this organ of the Organisation that the promoters of this Treaty must have had in their minds for achieving the objectives of this Treaty. The Treaty is strangely silent as to who will instruct the Secretariat on a daily basis. Although, as we have noted above, both the Conference and the Council have been stated to have supervisory powers over the Secretariat, Article 42 of the Treaty strangely omits to restrict the functions of the Secretariat exclusively to the matters ‘referred to it by the Conference or the Council’. Instead, the Article clearly extends the Secretariat’s power by adding another odd head of functions by stating that ‘the Technical Secretariat shall assist the state parties in the implementation of this Treaty’ and also that ‘the Secretariat shall carry out the verifications and other functions entrusted to it by this Treaty (!) (instead of restricting itself only to the words ‘entrusted to it by the Conference or by the Executive Council’). Please note the vagueness. This justifiably leads us directly to the conclusion that the only organ within the whole CTBT regime that is going to be directly responsible for ensuring state compliance through on-site inspection etc. is going to be totally independent in its working and in its selection of whatever modus operandi it finds suitable for achieving its objective.

THE POWERS & FUNCTIONS OF THE SECRETARIAT

Manuals

Subject to Executive Council’s approval, it will be the Secretariat’s responsibility to develop and maintain operational manuals for the working of various components of the verification regime. These manuals are not going to be part of the Treaty and they can be changed by the Secretariat with the Council’s approval. (Article II D (44).

Conduit of all communications

All communications from the State Parties (their national authorities) to the Organisation and vice versa with regard to the implementation of the Treaty will have to be channelled through the Director-General. (Article II D (45 d).

To draft program and budget

It will also be the Secretariat’s responsibility to prepare the whole draft of the Organisation’s program and also its annual budget and then submit it to the Executive Council for approval. (Article II D (45a).

THE OFFICE OF THE DIRECTOR-GENERAL

The Secretariat will be composed of all the required scientific, technical and other personnel and will be headed by a Director-General who will be its chief administrative officer. As noted above, the Director-General will be appointed for a term of four years by the Conference on the recommendation of the Executive Council.

The most important point to note is that whenever the Treaty comes into effect, at least for the first four years, the Conference will not be able to exercise total freedom in the appointment of the Technical Secretariat’s Director-General as he is going to be appointed on the recommendation of the Preparatory Commission (Article II D (49), a body that has been set up to promote speedy ratification of the Treaty and that at present comprises all those states that have signed – though not necessarily ratified – the Treaty.

Quite apart from the above, it is the Director-General who is going to be responsible to the Conference and the Executive Council for the appointment of the Secretariat’s staff and for the workings of the Secretariat. This shows that the Secretariat’s staff including technical experts are not going to be directly appointed by the Conference or the Executive Council. In fact, the paramount consideration in the employment of the staff has to be their ‘professional expertise and experience’. (Article II D (50).

How many experienced nuclear experts do we have in the Third World ? States like Ghana or Bhutan or Bolivia have never had any nuclear programs and even if the Director-General wanted to recruit staff and inspectors from such states, those states would not be having any such experts. On the other hand, even if states like Pakistan or Iran do have any nuclear experts to offer, it is obvious that the Director-General will be least interested in opening the Secretariat’s international nuclear monitoring regime and all sensitive information stored in the International Data Centre to nuclear scientists from these states. The obvious result of this will be that the Technical Secretariat is going to be clogged up exclusively with nuclear experts from the Western countries, obviously with due clearance from the relevant Western intelligence agencies.

As we will see at the end of this analysis, the nationality of the personnel already in control of the Preparatory Commission and its key organs already demonstrates who is going to be in control of the CTBT implementation and monitoring regime.


  1. THE VERIFICATION AND ON-SITE INSPECTION REGIME

It is Technical Secretariat that is going to directly supervise and operate the whole CTBT verification regime.

The whole CTBT verification regime can be described as follows. Each member state will have to inform the Organisation about the measures that it has taken in order to meet its Treaty obligations. Also, in order to ensure that it is meeting its Treaty obligations, each member state will set up a National Authority which will serve as ‘the national focal point for liaison’ with the Organisation and with other state parties. (Article III 4).

The Treaty’s state-compliance verification regime in fact consists of

  • An International Monitoring System (IMS)
  • An International Data System (IDS)
  • A system of On-Site Inspections of states on complaint of any state party

Each state party when joining the Treaty undertakes:
To establish the necessary facilities to participate in these verification measures
To provide data obtained from national stations that will be part of the IMS
To permit the conduct of on-site inspections (Article IV A (3)

One of the most dangerous aspects of the whole Treaty is that if ever Pakistan becomes a party to this Treaty, whatever information the Organisation obtains or gathers about our nuclear facilities through the whole range of CTBT verification regime (including on-site inspection) will be made freely available to all the state parties, e.g. India or Israel. (Article IV A 9). And even if Israel or India do not become parties to the Treaty, all it needs is a fax machine for a member state like Russia or even Bhutan to send all the sensitive data on our facilities to India or Israel.

It will also be the Secretariat’s responsibility to ensure that each member state has ‘equal, open, convenient, and timely access’ to all the data obtained, ‘both raw and processed’. The Secretariat will also have to co-ordinate requests from one member state (say Russia) to another (say Pakistan).


INTERNATIONAL DATA CENTRE (IDC)

The IDC is going to be the focal point within the Secretariat for data storage and data processing. It is through the IDC that the Secretariat will

Receive and initiate requests for data from the International Monitoring System

Receive all the data obtained through the implementation of the whole Treaty verification regime, including on-site inspection, etc.

Receive and process all other data obtained through co-operative arrangements that the Secretariat may have formalised with IAEA or USA etc.


INTERNATIONAL MONITORING SYSTEM (IMS)

The IMS will be the actual verification network of the Treaty regime and will work under the sole authority of the Technical Secretariat. The IMS will consist of facilities like seismological monitoring, radionuclide monitoring including certified laboratories, hydroacoustic monitoring, infrasound monitoring, and will obviously be supported by the International Data Centre. All the monitoring facilities that the IMS decides to set up in Pakistan will be owned and operated by Pakistan. (Article IV B (17). On the other hand, so far as the financing of the establishment of any facilities (including any auxiliary network seismic stations) that the Technical Secretariat may decide to set up in Pakistan and also all the expenses involved in the upgrading of those facilities and of operating and maintaining those facilities are concerned, it is the Organisation itself and not Pakistan that will be responsible for bearing all the cost involved. (Article IV B (19, 20).


THE VERIFICATION REGIME IN PRACTICE

When deciding whether or not to become a party to the Treaty, it would be easier to imagine our risks and exposure by working on the basis of a hypothetical worst-case scenario. What happens if, say, Bhutan (on the prompting of India, for example) suddenly develops a concern that Pakistan may have committed non-compliance of its basic obligations under the Treaty. If this happens, Bhutan will be able to exercise one of the two options:

Bhutan can seek clarification from Pakistan either directly or through the Organisation.

Bhutan can demand on-site inspection of Pakistan’s nuclear facilities (Bhutan will not need to exhaust the first option before opting for the second option).

Seeking Clarification through the Organisation or from Pakistan

If Bhutan channels its request through the Organisation then matters will proceed according to the following schedule:

Within a maximum of 24 hours of receiving Bhutan’s request, the Executive Council will forward that concern/request to Pakistan.

Pakistan will then be obliged to offer a proper clarification to the Executive Council within a maximum of 48 hours of receiving the request.

On receiving the clarification from Pakistan, the Executive Council will forward that clarification to Bhutan within 24 hours.

The interesting thing is that even after receiving Pakistan’s explanation or clarification, if Bhutan is still not satisfied, it will have the right to request the Executive Council to obtain further clarification ! And this cycle can continue virtually for ever.

On the other hand, in case Bhutan sends its request directly to Pakistan, then Pakistan will be obliged to offer a formal clarification to Bhutan within a maximum of 48 hours.

If after having adopted either of the above two modes of obtaining clarification from Pakistan, Bhutan still finds the explanation to be ‘unsatisfactory’, it will have the right to request a meeting of the Executive Council. The Executive Council, after considering the matter, may recommend any of the penalty measures provided in Article V. (An analysis of the three main penalty measures provided in Article V will be given below).


ON-SITE INSPECTIONS

Each state party will enjoy the right to request an on-site inspection of any territory or any other place within the jurisdiction or control of any other State Party. (Article IV D 34).

Again it would be easier to appreciate any probable risks that we would be exposed to under the on-site inspection powers of state parties if we work on the basis of a hypothetical scenario, e.g. without even becoming a party to the Treaty, India or Israel prompt another State Party, say Russia or Bhutan, to request an on-site inspection of any of the sensitive installations of Pakistan.

In this hypothetical scenario, this is how the Treaty envisages the sequence of events to take place:

Bhutan will first have to submit its request for on-site inspection to both the Executive Council and the DG of the Technical Secretariat.

The Executive Council will immediately start consideration of the Bhutanese request.

The DG of the Technical Secretariat, on the other hand, will acknowledge receipt of the request to Bhutan within two hours and will also proceed to inform Pakistan and all other State Parties about the request.

In case the DG finds that the request fulfils the criteria specified in Part II, paragraph 41 of the Protocol, he will instruct his officials to begin preparations for conducting on-site inspections without any delay.


l seek clarification from Pakistan with reference to Bhutan’s concern based on which Bhutan wanted to have on-site inspection of a particular site or facility in Pakistan to be conducted. Within 72 hours of receiving the request from the DG, Pakistan will be obliged to offer explanation on the questions raised. (Article IV D, 42,43).

On the other hand, while the Executive Council begins consideration of Bhutan’s request, before the Council takes any decision on it, the DG will ‘immediately transmit’ to the Council

Any additional information from the IMS

Any additional information that a state (say, Israel) may volunteer about Pakistan’s possible violation

Any other information that may be available in the Secretariat about Pakistan’s nuclear program or facilities, and

The clarification provided by Pakistan on the DG’s request.

Within 96 hours (four days) of receiving the on-site inspection request from Bhutan, the Executive Council will have to take the decision whether or not to proceed with on-site inspection of Pakistani sites. While the Executive Council is deliberating over the matter, both Pakistan and Bhutan would be able to participate in the debate though neither Pakistan nor Bhutan would be able to participate in the voting.

In the end, if the Executive Council decides not to proceed with on-site inspection, the matter will die then and there.

On the other hand, in case the Council decides (by a minimum of 30 affirmative votes of a total of 51 members) to proceed with the inspection, an inspection team designated by the DG will immediately make all the necessary arrangements and will enter Pakistan from a designated point of entry (Karachi or Islamabad airport ?) within two days. Pakistan will have to be informed about the team’s travel plans 24 hours before their scheduled arrival in Pakistan. The team will come to Pakistan armed with an ‘inspection mandate’ from the Director-General of the Technical Secretariat.

The Treaty envisages the whole process to be so fast that the maximum time period between the receipt of inspection request by the Executive Council and the arrival of the inspection team into Pakistan will not take more than a maximum of SIX DAYS. (Article IV D 53).

Within 25 days of the Executive Council’s approval of the on-site inspection, the inspection team will have to submit to the Council, through the DG, ‘a progress inspection report’. (Article IV D 47).

The inspection team will enjoy sweeping powers to conduct on-site inspection of any area within Pakistan. It appears that the designated area or facility will have to be specified in the ‘inspection mandate’.

Pakistan’s obligation with regard to the inspection team will be as follows. Pakistan will be obliged ‘to make every reasonable effort to demonstrate its compliance with the Treaty’ and for this purpose, ‘to enable the inspection team to fulfil its mandate’, ‘to provide access within the inspection area’, and ‘not to impede the ability of the inspection team to move within the inspection area’. Pakistan’s obligation to provide free access to the inspection area will not be restricted to mere physical access to the inspection team members, but will also include access for inspection equipment and for the conduct of inspection activities’. (Article IV D 57).

It appears that the inspection team will not enjoy any power to conduct any drilling during the inspection. To be able to do so, the team will first have to seek approval from the Executive Council. (IV D 48).

Observers. Bhutan may decide to send any person (that person can be a national of any state, India or Israel) as an observer with the inspection team. Even if that designated observer happens to be an Indian or Israeli scientist, Pakistan, ‘as a rule, will have to accept the proposed observer’, but if Pakistan decides to refuse him as an observer, this ‘fact will be recorded in the inspection report.’ (Article IV D 61).

Duration of stay. The given duration for which the team will be able to stay in Pakistan under one inspection mandate will be for 60 days. (Part II, para 4 of the Protocol). If the team desires to stay beyond the 60-day period, the Executive Council may allow it to do so for another 70 days, and so on. (Article IV D 49).

The inspection report will contain a description of the inspection team’s activities, their factual findings, and ‘an account of co-operation and access’ offered by Pakistani authorities.

Once the DG receives a copy of the inspection report, he will first forward a copy to Pakistani authorities for any comments on any inaccuracies, or the inclusion of something not relevant to the concerns raised by the requesting state. Pakistan will be obliged to respond with its comments or explanations within 48 hours.

Based on Pakistan’s comments, the DG will make any changes he deems appropriate to the inspection report and then promptly transmit the report to all state parties and to the Executive Council, along with Pakistan’s comments or explanations.

If the Executive Council, after considering the whole inspection report, realises that Pakistan has in fact failed to comply with her obligations under the Treaty, the Council can decide to take any appropriate punitive measures provided in Article V.

Abusive requests for on-site inspections. Even if the Executive Council at any stage concludes that Bhutan’s request for inspection was ‘frivolous or abusive’, it can require Bhutan to pay the cost of the preparations, suspend her right to make any more such requests for a certain period of time, etc. Such mild penalties, even if imposed, will obviously be no match for the damage done to Pakistan through the exposure of its nuclear facilities. (Article IV D 67).


PENALTIES FOR NON-COMPLIANCE – ARTICLE V

It is neither Executive Council nor the Technical Secretariat but only the Conference that can impose penalties on Pakistan for any non-compliance with Treaty obligations. There are three main penalties available to the Council if it decides to punish Pakistan for any breach of its obligation under the Treaty:

Restricting or suspending Pakistan’s enjoyment of its rights and privileges under the Treaty.

Recommending to State Parties collective measures against Pakistan which are in conformity with international law.

Bringing the issue to the attention of the United Nations. (If the matter is urgent, even the Executive Council can exercise this option).

While the first option is not really significant, the second and third options are quite important and deserve some probing into.

  1. State Parties’ Collective Measures against Pakistan. Since the adoption of the UN Charter in 1945 to which all the states of the world are now parties, the commitments that states have made both under the UN Charter and also through the continuous adoption of UN General Assembly Resolutions, have become a source and (most writers think) even the most authoritative statements of the developing rules of customary international law.

By becoming a party to the UN Charter, all the states of the world have agreed ‘to settle their disputes by peaceful means’ (Article 2(3) of the UN Charter) and also ‘to refrain from the threat or use of force against the territorial integrity and political independence of any state’ (Article 2(4) of the UN Charter). This clearly shows that under international law, use or threat of force is no longer permissible under international law and therefore the Council, being obliged to recommend collective action that is ‘in conformity with international law’, will not be able to recommend any regional or international action that could amount to use or threat of use of force.

However, collective actions like economic sanctions and trade embargoes have been frequently used and accepted by states as not falling within the scope of Articles 2(3) and 2(4) of the UN Charter. It is therefore safe to conclude that when recommending a collective action to be taken by state parties against Pakistan, the Council will not be able to recommend any action that could amount to threat or use of force but could certainly recommend the imposition of total or selective trade embargoes or economic sanctions. With the clout that the US enjoys, if the US wanted to seek international sanctions against Pakistan for any possible violation of the Treaty obligations, getting the Council to recommend such an action would be the easiest method for it to go about it.


  1. Bringing the Issue to the Attention of the UN.

This power is both unimportant and important at the same time. Unimportant in the sense that it gives no special power or status to the Council as virtually any UN member state may bring ‘any dispute or any situation which might lead to international friction’ to the attention of the Security Council or the General Assembly. (Article 35 of the UN Charter).

On the other hand, this option is significant in the sense that (working on the premise of a worst-case scenario), if the Council ever concludes that Pakistan has violated her obligations under the Treaty and refers the matter to the UN, we will be exposed to the whole range of penalties available under the UN Charter (as has been amply demonstrated in the case of Iraq). While a referral to the UN General Assembly should not really be that worrisome for us, it is a referral to the Security Council in an internationally antagonistic environment (of the kind being faced by Iraq for the last few years) that should really concern us as this will expose us to a wide range of powers available to the Security Council under Chapter VII of the UN Charter.

Just to briefly go over the powers enjoyed by the Security Council under the UN Charter, under Article 41 of the UN Charter, the Security Council may decide on a ‘complete or partial interruption of economic relations’ (as in the case Iraq) and of ‘rail, sea, air’ (as in the case of Libya), and also ‘the severance of diplomatic relation’. Moreover, should the above measures prove or are likely to prove inadequate, under Article 42, the Security Council may take such action ‘by air, sea, or land forces as may be necessary to maintain or restore peace’. It was under the umbrella of this very Article 42 that the US was able to provide legitimacy to its brutal use of force in Iraq. The interesting thing is that while the Security Council is attending to any dispute, the General Assembly may not even discuss it or even make any recommendations on that matter. (Article 12). It should thus become understandable why the General Assembly has been silent on the whole Iraq affair for the last few years.

Can we seek any amendment to the treaty before signing it ?

The amendment procedure provided in the Treaty is quite cumbersome, involving a specially convened Amendment Conference in which each state party will carry a veto power with respect to any proposed change. (Article VII 2, 5). This means that it will be fruitless for Pakistan to seek a suitable amendment of the Treaty to avoid exposing our nuclear facilities to the on-site inspection regime provided in the Treaty.

Can we ratify the Treaty with certain reservations ?

No, we cannot. Article XV of the Treaty is very clear that the whole Treaty is ‘not subject to any reservations’. However, the drafters of the Treaty appear to have left an implied possibility for a state to ratify the Treaty with certain reservations with regard only to anything in the Protocol or the Annexes, provided ‘those reservations are not incompatible with the object and purpose’ of the Treaty.

Would we be able to withdraw from the Treaty after ratification ?

Yes, Pakistan will be able to withdraw from the Treaty even after becoming a party to it. Pakistan can withdraw from the Treaty if Pakistan ‘decides that extraordinary events relating to the subject matter of this Treaty have jeopardised its supreme interests’. It is impossible not to conclude from the above expression that it has deliberately been left vague. However, withdrawal can not become effective before six months of submitting a withdrawal notice to the Executive Council etc. During those six months, we would continue to be a full party to the Treaty and therefore fully exposed to the on-site inspection regime.

When will this Treaty come into force ?

The earliest date on which this Treaty can come into force is on 23rd September 1998. (Article XIV (1)). Even after that date the Treaty cannot come into force until after 180 days of the deposit of the instrument of ratification by ALL the states listed in Annex 2 to the Treaty.


Ratification

Of the 44 states listed in Annex 2 (without the ratification of any one of which, the Treaty can not come into force), 41 have signed the Treaty, with only Pakistan, India and North Korea not signing it yet. On the other hand, even out of these 41 states, only NINE have ratified the Treaty, with Spain being the last one to do so (ratifying on 31st July 1998). On the other hand, of the total of 150 states, 17 have ratified the Treaty.


Israel

While Israel signed the Treaty the very next day of the date on which the Treaty was opened for signature (on 25th September 1996), it has not yet ratified the Treaty.


Permanent Security Council Members

On the other hand, while all the five permanent members of the UN Security Council have signed the Treaty, only UK and France have ratified the Treaty, whereas Russia and China are avoiding to ratify it. As for the US, although Bill Clinton was the first person to sign the Treaty, it is increasingly appearing unlikely that the US would ever become a party to the Treaty. Although the President has sent the Treaty to Congress for ratification, the Congress which was already quite antagonistic to opening up the US facilities to outside inspection (e.g. what if Cuba desires inspection of US’ nuclear facilities), is becoming more aggressive in the face of Bill Clinton’s loss of authority due to Lewinsky affair. The mood of the Congress can be guaged from the fact that the Foreign Relations Committee Chairman Jesse Helms has since 1996 (the year the President signed the Treaty) avoided to even schedule a single hearing on the Treaty. In fact, in the wake of the Indian nuclear tests, Helms summed up the Congress’s mood by saying that “India’s actions demonstrate that the CTBT, from a non-proliferation standpoint, is scarcely more than a sham.” In fact, there is almost no chance of the Treaty being even discussed in the Congress this year.


CONCLUSIONS


Positive Aspects of the Treaty

Contrary to the general impression, the Treaty does not prohibit any nuclear experiments or tests not involving nuclear explosions

The treaty cannot come into force even if Pakistan signs and ratifies the treaty UNLESS India signs and ratifies it too because India is one of the 44 states the ratification of which is essential for the Treaty to come into force.


Negative Aspects of the Treaty

Given the fact that the purported aim of the Treaty is only and only to ban nuclear explosions which can be easily monitored through dozens of seismic centres throughout the world and also from dozens of intelligence-gathering satellites orbiting the earth, it is impossible to see any justification for the ruthless on-site inspection regime being provided by the Treaty.


The Organisation responsible for running the CTBT regime and specially its Technical Secretariat will be in total control of Western powers and Jews. This is clear when one sees the nationality of the people already running the Preparatory Commission today. For instance, on the same day (i.e. 19th November 1996) when the Preparatory Commission was set up, a ‘Provisional’ Technical Secretariat was also set up – far before it was even clear (technically, even today it is not clear) whether the Treaty would ever come into effect or not !! The Treaty is far from coming into effect but armed with this year’s budget of some $ 58 million, the aim of the ‘Provisional’ Secretariat is said to be to make arrangements for a world-wide network of 320 monitoring networks !

As for the people controlling the Preparatory Commission, the following key personnel and their nationality should not leave how the Organisation is going to be run in future to anyone’s imagination. For instance,

It is UK’s Permanent Ambassador to the UN who is at present serving as the Commission’s Chairman.

The Commission Group A (concerned with financial and budgetary matters only) is headed by Ambassador Tibor Toth of Hungary.

The Commission’s Group B (concerned with verification rules) is headed by a Dr. Ola Dahlman of Sweden.

The Advisory Group (group of technical experts advising the Commission) is headed by an ‘expert’ Mr. Andre Gue of France.

As for the ‘Provisional’ Technical Secretariat, the Commission appointed a Mr. Wolfgang Hoffman of Germany as its Executive Secretary on 17th March 1997 and he has been working in that capacity ever since. Whenever the Treaty comes into effect, what would be a more logical thing than for the Preparatory Commission to recommend Mr. Hoffman’s name to the Conference and for the latter to appoint him as Director-General of the Technical Secretariat – something that the Conference will be obliged to do under the Treaty at least in its first appointment of the DG.


Possible Strategy

While this analysis was never aimed at arguing in favour or against the proposition that Pakistan should become a party to the Treaty, realising that it is the unreasonably aggressive on-site verification regime that is going to be the sticking point for the Pakistani decision-makers, the only way forward one can think of is as follows:


We can neither demand any amendment to the Treaty before ratifying it nor can we ratify the Treaty with reservations as to its on-site verification aspect. If the aim of the US is that Pakistan should abandon the option of conducting any nuclear explosions for the next decade or so and given our present economic predicament we decide to agree to that demand, why then should we not propose to the US Government a bilateral treaty incorporating that undertaking. Such a bilateral treaty could provide a set of penalties that would follow if Pakistan were ever to violate its treaty obligation but that treaty should EXCLUDE any provision for on-site inspection of any of Pakistan’s nuclear facilities.


The Treaty also includes a Protocol consisting of detailed rules pertaining to verification regime etc. While the Protocol is certainly not insignificant, it has not been made part of the above analysis and it is recommended that the Protocol should be referred to relevant Pakistani nuclear scientists for proper perusal and comments.