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Duke Law > Duke Law Scholarship Repository > Journals > DJCIL > Vol. 28 > No. 1 (2017)

 

David A. Koplow

Abstract

The Comprehensive Nuclear Test Ban Treaty (CTBT) is widely heralded as the most important international legal instrument for arresting the nuclear arms race and impeding further nuclear proliferation. Concluded in 1996, the treaty has been signed by 183 countries and ratified by 166. But it has not yet entered into force, because of its unique requirement that it not become operational for any state until it has been ratified by all forty-four countries designated in its Annex 2. Thirty-six of those Annex 2 states have ratified, but there is little prospect that all of the other eight (including the United States, China, India, Pakistan, and North Korea) will do so in the foreseeable future. In the meantime, certain parts of the CTBT are being provisionally applied, but other critical aspects are in abeyance, and the world's unrequited demand for a fully effective legal prohibition on nuclear weapons testing has jeopardized the global nuclear security architecture.

This Article proposes a novel work-around, to achieve early implementation of the CTBT. Interested states should negotiate a second treaty, styled as an Implementing Agreement, through which they could promptly effectuate the CTBT among themselves, even if some Annex 2 states remained outside the regime. This approach would free the CTBT from the tyranny of a "veto power" currently held by each of the Annex 2 states, and would allow the treaty to grow organically, building toward eventual universal acceptance by entering into force now for a sizeable coalition of the willing—as other important treaties have traditionally done.

The legal mechanism for creating such an Implementing Agreement is unusual and cumbersome, but it follows an important international law precedent. The 1982 Law of the Sea Convention achieved widespread acceptance, but it, too, required substantial modification before its entry into force. There, the participating states successfully fashioned a 1994 Implementing Agreement to revise important elements. That document provides a useful template for the CTBT to emulate.

This Article offers a draft of a CTBT Implementing Agreement, explaining how its waiver provisions would operate and how it would provide interested states a variety of alternative mechanisms for establishing a prompt, durable, and legally binding test ban regime.

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