September 26, 1996

THE HONORABLE JOHN D. HOLUM, DIRECTOR
U.S. ARMS CONTROL AND DISARMAMENT AGENCY
REMARKS TO THE ARMS CONTROL AND DISARMAMENT
COMMITTEE OF THE AMERICAN BAR ASSOCIATION
WASHINGTON, D.C.

The crux of my message today is legal, and so I'm grateful for this sophisticated audience of international lawyers, and the chance to discuss the full implications of events earlier this week in New York.

Two days ago, at the United Nations, President Clinton signed the Comprehensive Test Ban Treaty -- a major break with the nuclear past, and an immense practical step toward a safer future. It is a landmark achievement for President Clinton, who took a personal and active interest in the effort, and for Secretary Christopher, Secretary O'Leary, National Security Advisor Lake, and many others who played decisive roles.

ACDA, as you know, had the lead in the negotiations and in the backstopping in Washington. That means I'm realizing these days what Casey Stengel said when he defined managing as "getting paid for home runs someone else hits." For this above all is an achievement of a remarkable team of negotiators, policy analysts and advisors, technical experts, secretaries and clerks -- and, of course, lawyers, most of whom you know very well, including Tom Graham, Tom's successor as ACDA's General Counsel Mary Lib Hoinkes, and Marshall Brown and Peter Mason, who carried the legal ball in Geneva.

For my own part, aside from relevant internal management and the interagency effort to craft negotiable positions, early on I saw one contribution I could make on the scene in Geneva. It began when the negotiations opened in January 1994, and I went there and made a speech on the test ban to a plenary session of the Conference on Disarmament. I threatened to keep coming back about every six months and making more speeches until the Treaty was completed. And I made good on that threat.

The only problem turned out to be that India apparently really liked those speeches -- and so was prepared to keep the negotiations going for many more years to come.

As you know, that obstacle was surmounted. And so we have completed an effort that has been building since the fallout fears of the 1950s, the verification jockeying of the 1960s, the "missile gap" perceptions of the 1970s, the further MIRVing of the 1980s, and now the strategic reductions of the 1990s.

Ever since the Trinity test made glass of the desert sand near Alamagordo, New Mexico in 1945, testing has proved a hard habit to break. Partial measures -- the Limited Test Ban Treaty of 1963, the Threshold Test Ban Treaty of 1974 and the Peaceful Nuclear Explosions Treaty of 1976 -- curbed its most frightening environmental harms, but hardly broke its military momentum. Indeed, most of the world's nuclear tests have occurred in the years since 1963, when the LTBT drove them underground. And with continued testing, nuclear arms capabilities have proliferated horizontally to more countries, and vertically, to fearsome heights of power, portability, and efficiency.

Still, for all the Treaty's historic importance, its practical effect is widely underestimated. Indeed, the entry into force provision probably has received more attention than all the rest of the Treaty combined. For that provision, as you know, establishes as indispensable for entry into force a group of countries that have in common Conference on Disarmament membership and either nuclear power or research reactors -- a total of 44 nations. Among them is India. India says it won't sign. That, it is said, makes the Treaty a nullity.

Today I want to discuss with you just one issue, which is why that proposition is wrong -- why the CTBT, as it stands, in fact means that more than half a century of nuclear testing is over, at least as surely as anything ever can be in international affairs.

I'll address that based upon both the Treaty's political effect and its legal effect now, as well as what we intend to do to bring it formally into force.

The Political Effect of the CTBT

The CTBT's political effect has already been considerable. All five declared nuclear weapon states have already stopped testing, in anticipation of the Treaty and under the spotlight of the negotiations. Most recently that has included China. Remember that it also includes a French government under President Chirac that hardly anyone thought would agree to this step.

The restraining effect was powerfully reinforced when virtually all of the now-61 members of the Conference on Disarmament agreed on the text that Chairman Jaap Ramaker of the negotiating committee drew out of nearly three years of painstaking negotiation. For the first time in history, all five of the declared nuclear weapon states accepted not only the principle of a test ban, but every clause of a completed text. At the last minute in Geneva, India was joined only by Iran in blocking consensus -- but then Iran voted for the Treaty in New York, so 60 out of 61 CD members came to be in favor.

Next, through an initiative by Australia, an overwhelming margin of UN members -- 158 to 3 -- voted in New York to approve the Treaty and open it for signature. On that vote India was joined only by its client state Bhutan and by Libya.

Now we are in the midst of the next step -- countries signing and ratifying the Treaty. Thus far 80 countries have done so, including all five of the nuclear weapon states, who signed in succession on Tuesday. Israel also has signed.

The world is acting with unanimity and resolve, in part because we are not so much making new promises as fulfilling existing ones. In particular, in last May's review and extension conference for the Nuclear Non-Proliferation Treaty, there was no dissent to the decision either to make the NPT permanent or to conclude a CTBT no later than this year. And last December the UN General Assembly resolved, by consensus, for an even faster test ban timetable.

What has happened is this: There was considerable sympathy in Geneva and New York for the lofty disarmament mandates in which India wrapped its positions. But there was no sympathy whatsoever for any more nuclear tests by anyone, anywhere, for any purpose. There was certainly no sympathy for the idea that one state should present itself as the world's agent to threaten its own nuclear tests as leverage for further disarmament by others. Instead, the countries of the world were determined to validate the work of the Conference on Disarmament, and claim a forty year dream that could no longer be deferred.

In so doing, no matter what else happens, they have erected a mighty political barrier against nuclear testing. They have declared unmistakably that henceforth the world community will view it as out of bounds for any state. In all likelihood that, alone, will be enough to preclude further nuclear explosions.

The Legal Effect of Signing the CTBT

But there's a strong argument that the CTBT is considerably more than a high political barrier against testing -- that the Treaty signings well underway this week erect a legal barrier as well.

As you know, under customary international law as codified in Article 18 of the Vienna Convention on the Law of Treaties, a signatory is obliged, pending ratification, to refrain from any action that would defeat its object and purpose. Broadly speaking, the CTBT's object and purpose is to halt nuclear explosive testing. But we also need to ask, "Why?" If the sole aim of the Treaty is to prevent the spread of nuclear weapons to more countries, for example, then arguably its object and purpose would not be defeated if countries that already have such weapons conduct further tests.

Fortunately, we are not left guessing, for the CTBT text itself speaks to this issue. The Preamble declares, in pertinent part:

It is fair to assume that the parties, being "convinced" of these effects, intend them. The nuclear explosive testing to be stopped by the Treaty is conducted both to develop nuclear weapons and to improve them. Accordingly, as indicated by its Preamble, the CTBT's object and purpose is to arrest both horizontal and vertical proliferation -- not only the spread of nuclear weapons to the "have nots," but also their qualitative improvement by the "haves."

The text of the CTBT has always reflected this dual purpose. The United States expectation has been affirmed many times, at the highest possible level. Most recently, after he signed the Treaty Tuesday, President Clinton told the UN General Assembly:

Having identified the Treaty's objects and purposes, the next step is to determine whether they would be defeated by testing. Over the years the United States has developed two basic principles for applying the Vienna Convention rule. First, a signatory must take no action that would render its eventual full compliance impossible. Second, it must take no action that would render impossible, at entry into force, re-establishment of the status quo ante for that signatory as of when it signed. In these ways, the rule prevents a signatory from taking advantage of the situation to effectively deprive other parties of the benefits of their bargain.

By these standards, for example, a country probably could continue to produce chemical weapons after signing the Chemical Weapons Convention, because those made in the interval could still be destroyed, re-establishing the status quo.

Nuclear explosive testing, however, is done to produce something that is not so destructible: knowledge -- or specifically, experimental data about whether and how nuclear weapons work. And such knowledge, once gained, cannot be rescinded. Once a country conducts a nuclear test, it cannot unlearn the resulting information. Indeed, even if the test data is not used today in weapons design, it remains available tomorrow for analysis and exploitation. A nuclear explosion is a bell that cannot be un-rung.

Yet denial of such experimental data is the heart of the CTBT bargain. For all countries, the CTBT aims to pull the plug on the primary escalator up the nuclear weapons learning curve. So for any country to conduct a nuclear explosive test would be to deprive other countries of the benefit of their bargain -- denial of the technological fruits of that activity to the testing country.

It might be argued, of course, that a test could be conducted for a purpose entirely unrelated to those stated in the Treaty -- for example, to make sure an existing weapon won't explode accidentally. But the Treaty negotiators concluded, in part at our insistence, that even nuclear explosions confirmed as entirely peaceful are precluded, because they can't be distinguished from tests with weapons value. Some of you may have heard me refer to so-called "peaceful nuclear explosions" as the atomic equivalent of a friendly punch in the nose. Whether or not it accepted the characterization, the CD agreed with the conclusion and outlawed PNEs.

In short, because a test cannot be undone, and the resultant data will not disappear, it is reasonable to conclude that any further testing would defeat the CTBT's object and purpose, and thus is precluded by any signatory state -- that if a country signs the CTBT, it is legally bound not to test, whether or not it has ratified, and whether or not the Treaty is in force.

The U.S. is Protected Pending Entry Into Force

Does this mean the U.S. has signed on to a bad security bargain, because we cannot test while others, who haven't signed, can press ahead?

First, it is important, of course, that all the declared nuclear weapon states, having signed, are bound to the same extent we are.

Moreover, note that the obligation not to frustrate the object and purpose of the Treaty does not usurp the Senate's constitutional role of advice and consent to ratification. So if we decide based on international developments that restraint is no longer in our interest, we simply have to provide an authoritative national signal that we no longer intend to ratify the Treaty, and we will no longer be constrained. This is considerably simpler than invoking the "supreme national interest" clause after ratification to withdraw from the CTBT according to its terms.

Meanwhile, we can do a great deal to assess whether other countries are holding to the bargain. Even before entry into force, we have excellent and improving capabilities to monitor compliance.

This baseline confidence derives from our National Technical Means for detecting nuclear explosions -- seismic techniques we've been working on for more than 35 years, our satellite nuclear burst detection system, and other assets. Over the years, our seismologists and other scientists have made great strides in event detection, location, and identification -- giving us truly sensitive seismic arrays and other forensic techniques of extraordinary utility. Recent strides in computer modeling and data integration are further improving our capabilities. Such efforts have been spurred by the President's call last year to heighten confidence even at very low yields. So even pending the Treaty's entry into force, our national abilities to monitor nuclear testing will stand us in good stead.

We Will Not Rest Until the Treaty Enters Into Force

Does all this mean our diplomatic job is done? Obviously not. Formal entry into force remains indispensable. For only this will bring into being the CTBT's full apparatus for verifying compliance, including the International Monitoring System with four different kinds of sensors, and its International Data Center, where data from these sensors will be compiled, analyzed, integrated and shared. And the Treaty's provision for on-site inspections is an important means of detecting and deterring cheaters -- especially in light of recent and emerging advances in detecting the slightest traces of radioactivity that linger for weeks in the vicinity of even a small and well-hidden nuclear explosion.

This is no time to break strike in the hard climb toward entry into force. For we know that a state violating a treaty commitment is even more of a pariah than one violating a powerful international norm ... that evidence of any violation is all the more credible when every nation has a stake and a voice in its discovery ... that any would-be testing state is less likely to proceed if it has made a conscious decision not to, instead of chafing against an international opinion it does not share.

It is deeply in our interest for the CTBT to be a binding legal commitment on every country -- and for every country to participate in its enforcement. So we are determined to bring it into force.

Conclusion

More than 30 years ago, John F. Kennedy said of a CTBT, "The conclusion of such a treaty, so near and yet so far, would check the spiraling arms race in one of its most dangerous areas. And it would place the nuclear powers in a position to deal more effectively with...the further spread of nuclear arms." President Kennedy was right on all counts. And his vision is now being realized -- a truth to celebrate and savor.

Nuclear weapons have been exploded twice in war -- and more than 2,000 times in contemplation of war, at more than 20 locations around the globe. And all the while, the world's store of knowledge about how they work has continued to mushroom.

Now, after five decades of testing and four decades of calls to end it, the world has said, "enough." At long last we have erected a powerful barrier to further testing.

Let us do our utmost to buttress it, bring it into force -- and then enforce it for all nations, for all time.

For as we do, we will ensure that nuclear explosions were known to our century alone -- and as the President said at the UN, enter "a century in which the roles and risks of nuclear weapons can be further reduced, and ultimately eliminated."

With the era of nuclear testing at an end, we are a giant step closer to that ultimate goal.