Nuclear Test-ban Treaty: Why Are Tests Still Legal 20 Years Later?

Nuclear Test-ban Treaty: Why Are Tests Still Legal 20 Years Later?

August 29 marked International Day against Nuclear Tests. Declared by the United Nations General Assembly on December 2 2009, the day also marks the permanent closure of the Semipalatinsk test site by Kazakhstan in 1991. This coincided with the date the Soviet Union conducted its first nuclear test there in 1949.

Since the mid-twentieth century, more than 2 000 nuclear tests have been conducted in North Africa, North America, Central Asia and the South Pacific. During the Cold War, the United States conducted 1 032 nuclear tests; and the then Soviet Union 715.

Testing is the last barrier to the development of an effective nuclear weapon or the improvement of existing nuclear weapon designs.

These tests have, according to UN secretary general Ban Ki-moon, left a global legacy of poisoned groundwater, cancer, leukaemia and radioactive fallout.

The International Physicians for the Prevention of Nuclear War has estimated that roughly 2.4-million people could eventually die from cancer as a result of these tests.

September 2016 marks the 20th anniversary of the opening for signature of the Comprehensive Nuclear-Test-Ban Treaty (CTBT), which bans all nuclear explosions in all environments.

Unfortunately, the treaty has not yet entered into force despite it having been adopted by the UN General Assembly on September 10 1996.

Why have we failed to bring the test-ban treaty into force? Why does the testing of nuclear weapons remain legal under international law and why does the possession of nuclear weapons continue to be perceived as a security necessity by some states?

Although 183 states have signed and 164 have ratified the test-ban treaty, its entry into force will take place only 180 days after 44 states designated as “nuclear-capable states” (listed in Annex 2 of the treaty) have all ratified whether all other UN members are party to it.

To date, of the 44 specified countries, eight have not yet ratified: China, the Democratic People’s Republic of Korea (North Korea), Egypt, India, Iran, Israel, Pakistan and the US.

There seems to be little or no political will on the part of these states to agree to a ban on aboveground, underground and underwater explosions for military or peaceful purposes. This forces analysts to ask some hard questions.

Are there, perhaps, different interpretations as to the real purpose of the test-ban treaty? Is it a disarmament measure or a non-proliferation treaty?

Non-nuclear weapon states view the test-ban treaty as an important step towards total nuclear disarmament. Its preamble explicitly recognises “that an end to all such nuclear explosions will constitute a meaningful step in the realisation of a systematic process to achieve nuclear disarmament”.

It should also be noted that the drafting and approval of the test-ban treaty by UN member states was one of the conditions upon which the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) extended indefinitely in 1995.

Subsequent NPT Review Conferences concluded that the signature, ratification and entry into force of the test-ban treaty are “the first practical step[s] for the systematic and progressive efforts to implement article VI of the NPT”, with its aim of nuclear disarmament.

In theory, then, the acceptance of the test-ban treaty should have prevented the development of new weapon designs.

Nuclear-armed states, however, continue to have extensive nuclear modernisation programmes. As the Stockholm International Peace Research Institute recently pointed out: “Washington plans to spend $348-billion before 2024 on maintaining and updating its nuclear forces … and its nuclear weapon modernisation programme may cost up to $1-trillion over the next 30 years.”

The United Kingdom has also recently agreed to renew its Trident submarine-launched ballistic missile and nuclear weapons programme.

The nuclear-armed states seem to perceive the test-ban treaty not as a disarmament measure, but primarily as contributing to preventing proliferation. Understood in this way, it is simply another means to ensure that no other state develops a nuclear weapons programme.

These states, and those countries under the so-called nuclear umbrella (their non-nuclear weapons armed allies who have guarantees of military protection, if need be, with nuclear weapons) believe that the time for a legal prohibition is not now, given the current global security environment.

They cite the threat posed by North Korea’s nuclear programme as well as the tensions in eastern Europe – with Russia reiterating its right to deploy nuclear weapons anywhere on its territory, including Crimea.

Further evidence of this is the no-show of the nuclear-armed states at the UN General Assembly-convened Open-ended Working Group to identify legal measures, provisions and norms that would provide concrete and effective means for attaining a world without nuclear weapons.

At the conclusion of the working group meeting, more than 100 states, including all African states, expressed support for the General Assembly to convene a conference in 2017 to negotiate a legally binding instrument to prohibit nuclear weapons as an interim step toward nuclear disarmament.

The irreversible and verifiable destruction of existing nuclear weapons would be the subject of future negotiations.

The negotiation is by no means certain to happen. However, the proposed treaty would also provide for reparations for survivors of nuclear weapon testing and use, and include a prohibition on all forms of nuclear weapons testing. This also pertains to non-explosive testing through computer simulations, which contribute to continued nuclear weapons modernisation.

At present, the test-ban treaty is just another nail in the coffin of nuclear weapon development by those who don’t already have programmes and who have committed themselves through the non-proliferation treaty to remain non-nuclear weapons states.

It is true that Pakistan, India, the US, Russia, the UK, France and China are adhering to an unofficial moratorium on nuclear testing, which has been in place since 1992.

However, the lack of entry into force of the test-ban treaty has done little to instil confidence that the nuclear-armed states are serious about the goal of global nuclear disarmament.

In addition, although North Korea is the only country that continues to test, the resumption of nuclear testing by all other nuclear-armed states is still legal.

According to Shervin Taheran, a programme associate at the Arms Control Association: “The longer the CTBT’s entry into force is delayed, the higher the odds that one or more states will try to conduct a nuclear test explosion, openly or in secret, which would trigger a new round of nuclear testing.”

Or, as stated by Lassina Zerbo, the executive secretary of the test-ban treaty: “The taboo against nuclear testing cannot be taken for granted and a more active approach to CTBT entry into force is needed.”

The 20th anniversary of the test-ban treaty should serve as a wake-up call to urgently bring it into full legal standing. In the meantime, it may be appropriate for the UN as a whole, but more particularly, the Security Council, to declare that any nuclear test would defeat “the object and purpose” of the test-ban treaty. They need to reaffirm the global norm against nuclear testing pending the formal entry into force of the treaty.

The ratification of the remaining Annex 2 States would not only prevent additional negative health and environmental effects, including the contamination of land and water by radioactive materials and toxic chemicals, but it would also signal that the nuclear-armed states are serious about their commitment to attain the goal of a world without nuclear weapons.

© Noël Stott, senior research fellow with the transnational threats and international crime division of the Institute for Security Studies in Pretoria

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