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Two decades and waiting: why are nuclear tests still legal?
13 September 2016

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

Since the mid-twentieth century, over 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 (US) 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 10 September 1996.

Testing is the last barrier to the development of a nuclear weapon
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Why have we failed to bring the CTBT into force? Why does the testing of nuclear weapons remain legal under international law, and indeed, 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 CTBT, its entry into force will only take place 180 days after 44 states designated as ‘nuclear-capable states’ (listed in Annex 2 to the treaty) have all ratified whether or not 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 (DPRK), 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 CTBT? Is it a disarmament measure or a non-proliferation treaty?

Non-nuclear weapon states view the CTBT as an important step towards total nuclear disarmament. The treaty’s preamble explicitly recognises ‘that an end to all such nuclear explosions will constitute a meaningful step in the realization of a systematic process to achieve nuclear disarmament’.

There seems to be little political will on the part of states to agree to a nuclear testing ban
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It should also be noted that the drafting and approval by UN member states of the CTBT was one of the conditions upon which the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) was indefinitely extended in 1995. Subsequent NPT Review Conferences concluded that the signature, ratification and entry into force of the CTBT 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 CTBT 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 modernization program may cost up to $1 trillion over the next 30 years’. The United Kingdom (UK) has also recently agreed to renew its Trident submarine-launched ballistic missile and nuclear weapons programme.

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

Nuclear-armed states continue to have extensive nuclear modernisation programmes
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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 the DPRK’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 (OEWG) 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 OEWG, over 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 of a legally binding instrument to prohibit nuclear weapons 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.

The 20th anniversary of the CTBT should serve as a wake-up call
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At present then, the CTBT 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 NPT to remain non-nuclear weapons states. It is true that Pakistan, India, US, Russia, the UK, France and China are all adhering to an unofficial moratorium on nuclear testing, which has been in place since 1992. However, the lack of entry into force of the CTBT has done little to instil confidence that the nuclear-armed states are serious about the goal of global nuclear disarmament.

In addition, while the DPRK is the only country that presently 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 CTBTO: ‘… 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 CTBT should serve as a wake-up call to urgently bring the treaty 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 CTBT. They need to reaffirm the global norm against nuclear testing pending the formal entry into force of the CTBT.

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, Transnational Threats and International Crime Division, ISS Pretoria

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