George Bunn
THE STATUS OF NORMS AGAINST NUCLEAR TESTING
by George Bunn
George Bunn, the first general counsel of the US Arms Control and Disarmament Agency, served on the US delegation that negotiated the Treaty on the Non-Proliferation of Nuclear Weapons and later became a US ambassador to the Geneva disarmament conference. He is now working on nuclear nonproliferation problems as a consulting professor at the Stanford University Center for International Security and Cooperation.
an the current global mora- floor for a vote because Senate For- probably does not reflect what the torium on nuclear weapon eign Relations Committee Chairman vote will be after Foreign Relations Ctesting survive the May Jesse Helms (R-NC) and Senate Committee hearings and floor de- 1998 tests by India and Pakistan and Majority Leader Trent Lott (R-MS) bate, as long as Helms and Lott pre- the refusal of US Senate leaders to oppose it. Lott has called it “an un- vent hearings and debate from permit consideration of the Compre- verifiable treaty overtaken by happening, the CTBT cannot be ap- hensive Test Ban Treaty (CTBT) by events”—the Indian and Pakistani proved by the Senate (but neither can the Senate? If nuclear testing re- tests.2 it be rejected). sumes by India or Pakistan—or by Republican presidents and presi- Ratification by the United States, Britain, China, France, Russia, or the dential candidates starting with among others, is necessary before United States—will it be condemned Ronald Reagan have opposed ban- the treaty will enter into force for any by most of the world as if an inter- ning all nuclear weapon tests. Given country. The treaty provides that 44 national norm against testing was al- the hostility of some conservative named countries, including the ready in effect? What will be the Republicans to the CTBT and to United States, must ratify it before likely consequences for nonprolif- President Clinton, many Republican it can become effective. Because the eration if tests resume? This article senators do not now support ratifi- United States was a leader in nego- seeks to show that there are norms cation. Indeed, Senator Lott inter- tiating the treaty, China, Russia, and operating against nuclear testing preted a 1998 Senate vote for paying some other necessary parties are even though the CTBT has not been the US portion of the costs of inter- apparently awaiting Senate action ratified, and that renewal of testing national preparations to implement before ratifying themselves. If the would have widespread conse- the CTBT as a “strong signal that treaty does not go into force for some quences. the Senate is prepared to reject the years, will anything keep China, In- The CTBT has now been pend- treaty.” The vote in favor was 49 to dia, Pakistan, Russia, the United ing in the US Senate for well over a 44, far less than the 67 votes needed States, or others from conducting 3 year.1 It cannot reach the Senate to approve the treaty. While this tests?
20 The Nonproliferation Review/Winter 1999 George Bunn
This article will set forth evidence definition of regimes as “sets of im- exists as to why the state engaged in suggesting that a worldwide norm plicit or explicit principles, norms, that practice. Such evidence includes against testing now exists even rules, and decision-making proce- statements from a state’s official though the CTBT has not gone into dures around which actors expecta- representatives, declarations of in- effect. It will first describe different tions converge in a given area of ternational conferences at which it kinds of international norms and international relations.”5 was represented, and resolutions of outline how lawyers and interna- Lawyers and foreign ministry ex- international organizations in which tional relations experts determine perts sometimes classify interna- it participated. These statements whether they exist. Then, using this tional norms for nation states into may involve either support or con- methodology, the article will argue treaty law, customary law, and “soft” demnation for a given form of con- that a politically binding norm now law. The first two are “legally bind- duct. applies to India and Pakistan, two of ing.” The third is “politically bind- If officials of a state have said the three de facto weapon states; and ing.” Treaty law is usually made by nothing while refraining from con- a legally binding one applies to the agreement between state govern- duct that most other states were con- third, Israel, as well as to the five ments. Treaties epitomize the idea demning, those other states would nuclear weapon states (Britain, that states can only be obligated to likely contend that the silent state China, France, Russia, and the norms by their consent. To make was bound by the practice, and criti- United States) that are parties to the treaties, states negotiate through cize or sanction that state if it sud- Treaty on the Non-Proliferation of their governments, meaning through denly did what had been widely Nuclear Weapons (NPT), and to all authorized government officials. condemned. A state’s long-contin- of the non-nuclear weapon states Private citizens sometimes influence ued practice may thus sometimes party to the NPT. Indeed, a no-test- this process, by influencing their bind it to a customary rule of law by ing norm of one kind or the other own or other governments, but the acquiescence, without the explicit appears to apply to all the countries focus here will be on state actions consent that a treaty requires. of the world. Whether this norm is that can lead to norms. strong enough to keep the current Since customary law grows over moratorium on testing alive only While treaties are “made” by time rather than being “made” by a time will tell. But, this article will agreement, customary international treaty, there is a time when it has not conclude, if testing resumes, the ad- law “grows” by practice, usually become widely enough accepted to verse consequences for international over a long period of time. It is de- be called “legally binding” for all or efforts to prevent the spread of fined as the law resulting from the most relevant states, yet it neverthe- nuclear weapons to additional coun- general and consistent practice of less seems to influence the conduct tries will be severe. states, where these practices are fol- of many. Customary international lowed out of a belief that they are norms often come in shades of gray an obligation, not just a matter of rather than black or white. When the CATEGORIES OF NORMS courtesy. Its most widely quoted gray is quite dark but not yet black, The norms that are relevant here description is from the Charter of the I will call the norm “politically bind- are international prescriptions for International Court of Justice. This ing,” as defined in the next para- state conduct. They are “principles, directs the Court to apply not just graph. standards or rules;” they can take treaty law but “international custom, “Politically binding” is a term several forms and they can have dif- …evidence of a general practice ac- usually used to describe multilateral fering degrees of authority. But they 6 cepted as law.” conference reports reflecting agreed are “prescriptions for action in situ- Whether a particular practice has decisions not in treaty form, bilat- ations of choice, carrying a sense of grown into legally binding custom- eral communiques to the same ef- obligation, a sense that they ought ary law for a state is ordinarily more fect, and a wide variety of similar to be followed.”4 This definition, by difficult to determine than whether agreements that are not “legally lawyers familiar with the work of that state has joined a treaty. One binding” because the parties did not international relations regime theo- must look not just at the practice of put them into the form intended for rists, is similar to those theorists’ a state, but at whatever evidence legal agreements and did not intend
The Nonproliferation Review/Winter 1999 21 George Bunn to be legally bound by them. One of propriate political response.”10 This result, many realists now recognize the classic examples of this sort of could include, for example, condem- that the regimes created by some commitment, now sometimes called nation of the offender by those who treaties can affect state behavior.11 “soft law,” is the general rules for believe in or benefit from the com- For example, using the “regime” state behavior in the 1975 Final Act mitment, unilateral economic sanc- definition quoted earlier, the NPT of the Helsinki Conference on Co- tions against the offender, or established “principles, norms, operation and Security in Europe.7 violation of the commitment by oth- rules and decision-making proce- This was a major East-West com- ers in a way that will harm only the dures around which actor expecta- promise negotiated during the Cold offender. The consequences of vio- tions” converged, at least for those War, and its agreed statements about lation can sometimes be similar to states that saw it in their security equal rights and self-determination those for violating a treaty. interest to prevent other states from of peoples were cited repeatedly by acquiring nuclear weapons. What dissidents in Eastern bloc countries. IDENTIFYING WHEN NORMS the NPT produced has even come to be called a “regime” by lawyers and Breaking a politically binding EXIST foreign ministries. Some NPT norms commitment may be easier than Recent theoretical work in the are legally binding treaty language breaking a legal one, but, as an ex- field of international relations has or accepted interpretations of that pert on UN practice put it: begun complementing the perspec- language. Some are politically bind- States entering into a non- tive on norms embodied in interna- ing agreed principles or goals for legal commitment generally tional law, especially with respect to view it as a political (or future negotiations, or definitions of how one determines whether a norm moral) obligation and in- materials and equipment that should tend to carry it out in good exists. This reflects a major change not be exported to states that do not faith. Other parties and in how international relations spe- other states concerned have accept international inspections of cialists view norms. The labels for reasons to expect such com- all their nuclear activities. All appear pliance and to rely on it.… categories of norms described so far [P]olitical texts which ex- are those typically used by interna- to have affected state conduct. press commitments and po- sitions of one kind or tional lawyers and foreign ministry The influence of norms has re- another are governed by the experts. International relations cently been given greater attention general principle of good scholars pay less attention to labels due to an interest in “social faith.8 and to when a norm becomes “bind- constructivist” theory in political Like customary international law, ing,” either politically or legally. science. Constructivism draws upon political commitments are not gen- They pay more attention to why but goes beyond regime theory. Un- erally submitted to the US Senate or states do what they do and hence like many international relations other parliaments for approval. focus on whether norms affect state scholars, constructivists do not look When questioned about them by the conduct. only at states’ behavior. They look, Senate Foreign Relations Commit- in addition, at states’ beliefs and After the experience of World tee, then Secretary of State Henry expectations, and the justifications War II, even treaty norms were Kissinger once testified that the states offer for their behavior. Some thought by some international rela- United States is not “morally or po- realists would probably argue that tions realists to have little effect on litically free to act as if they did not the 1998 nuclear tests by India and what states do. These realists argued exist. On the contrary, they are im- Pakistan showed that, even if some that states regularly followed their portant statements of diplomatic norm had existed against such tests, own security interests without much policy and engage the good faith of it made no difference because the regard to norms, whether codified in the United States as long as the cir- conduct of India and Pakistan had treaties or not. Later, many realists cumstances that gave rise to them not been affected. Constructivists, in came to see that, when treaties serve continue.”9 contrast, would review the histori- state interests, even powerful states cal evidence from many states on Violation of a politically binding tend to observe them, sometimes their beliefs and expectations as well commitment, according to the State going to considerable efforts to per- as their practices relating to the Department, could result in “an ap- suade others to do so as well. As a claimed norm.12 If a norm is con-
22 The Nonproliferation Review/Winter 1999 George Bunn structed or accepted by states to The next section draws on this his- them as de facto nuclear weapon serve particular purposes, then a tory to assess the current status of states. look at the process of construction the no-testing norm. As it was the initiator of the most may help us explain some aspects I trace the norm’s origins to a recent testing, India’s actions and of state behavior even if there have 1954 US hydrogen bomb test over statements deserve special scrutiny. been violations of the norm. Just as the Pacific. After fallout from this From 1954, when Nehru first called a violation of the law does not mean test caused radiation sickness to 23 for a ban on testing, to 1996, when that laws have no effect, so an occa- Japanese fishermen, killing one of the CTBT negotiations were con- sional norm violation does not dis- them, Prime Minister Jawaharlal cluding, India condemned nuclear prove the norm, especially if there Nehru of India called for a ban on weapon testing but refused to join are consequences to such norm vio- nuclear testing. This was followed the NPT. In 1956, India argued that lation. by almost 40 years of on-again, off- “international law and international The constructivist method of trac- again negotiations that produced morality” were violated by nuclear ing the evolution of beliefs and prac- agreement only on partial, non-com- tests. India was a leader in persuad- tices is similar to what international prehensive bans on testing, until ing the UN General Assembly to lawyers and foreign ministry diplo- 1996, when the CTBT was signed. adopt a 1962 resolution that mats do to determine whether a norm But agreement had been reached in “[c]ondemns all nuclear weapon exists. As one constructivist sees it, 1968 on the NPT, which prohibited tests,” a statement that India, Paki- lawyers search for all its non-nuclear weapon parties stan, and a large majority voted to evidence that states share a from manufacturing or acquiring approve. The United States, the So- belief that some principle is nuclear weapons. The NPT thus pro- viet Union, and some of their allies law. The methods for doing 14 so are much like the meth- hibited all these parties from testing, abstained. When China first tested ods used by constructivist since testing requires first manufac- in 1964, an Indian representative scholars in political science turing a device. The NPT hence es- used this resolution to argue that the to establish the existence of a norm. They look at behav- tablished a treaty ban on testing that Chinese tests were “ipso facto con- ior and ask whether states grew as more and more non-nuclear demned” and a “direct and callous act as if there is, in fact, a weapon states joined the NPT. The affront to all humanity.” India later norm. Additionally, they look at discourse and ask if NPT ban on testing now applies to criticized nuclear tests by China and states justify actions by 181 countries, including all the non- other NPT weapon states as viola- identifying and emphasiz- nuclear weapon states with some tions of this UN resolution and “in ing the importance of the norm. 13 nuclear capability except the three flagrant violation of the will of the de facto weapon states (India, Israel, international community.”15 In the rest of this article, I follow and Pakistan), none of which has When India itself set off a nuclear this same approach. To find out joined the NPT. whether a norm against testing ex- explosion in 1974, its justification ists, I will examine not just the be- The NPT also called for negotia- nonetheless acknowledged a norm havior of states with respect to tion of a CTBT, but did not itself against weapon testing. India in- testing, but the reasons given by prohibit testing by the five NPT sisted that the device it had exploded those that opposed it, and any agree- “nuclear weapon states,” a term it was for peaceful purposes and there- ments to treaties, declarations, or UN defined as a state “which has manu- fore not subject to condemnation resolutions attempting to prevent it. factured and exploded a nuclear under the UN resolution as a weapon or other nuclear explosive “nuclear weapon test.” Pakistan, of DEVELOPMENT OF THE NO- device prior to January 1, 1967.” course, disagreed. In 1978, Indian Britain, China, France, Russia (then Prime Minister Desai announced a TESTING NORM the Soviet Union), and the United “unilateral decision to abjure explo- A norm against nuclear weapon States had all tested before that date. sions even for peaceful purposes. tests has indeed developed over the Since India, Israel, and Pakistan had We now stand justified by the de- last 45 years. This section summa- not done so, they were not within the veloping conscience of the whole rizes the relevant diplomatic history. definition, which is why I refer to world on it….” That same year, both
The Nonproliferation Review/Winter 1999 23 George Bunn
India and Pakistan voted for a UN anywhere after the treaty was ap- would be permitted under the treaty or the testing of General Assembly resolution that proved. India and Pakistan have also new types of missiles which expressed “grave concern over the ceased testing for the time being. would not be permitted un- fact that nuclear weapon testing has There is thus a moratorium on tests der the Treaty. 22 continued unabated [by the five at the moment. As a result of their Perhaps with this rule of interna- NPT nuclear weapon states] against signing of the CTBT, the five NPT tional law in mind, President Clin- the wishes of the overwhelming ma- nuclear weapon states (and Israel, ton said on the day he signed the jority of Member States.”16 which also signed) are now barred CTBT: In 1995, as part of the package of from testing by an international law The signature of the world’s rule codified in the Vienna Conven- declared nuclear powers— measures that was the basis for ex- the United States, China, tending the NPT indefinitely, the tion on the Law of Treaties. This rule France, Russia and the NPT nuclear weapon states agreed precludes signatories to a treaty not United Kingdom—along yet ratified from taking steps that are with those of the vast ma- to “exercise utmost restraint in test- jority of its nations will im- ing” while completing negotiation of inconsistent with the “object and mediately create an a CTBT by the end of 1996. When purpose” of the treaty they have international norm against signed—unless they decide they no nuclear testing, even before the Chinese and then the French later 23 19 the treaty enters into force. tested, India and most other states longer wish to join that treaty. supported a General Assembly reso- Testing would seem wholly incon- The recognition of such a norm lution that, “[s]haring the alarm ex- sistent with the CTBT’s purpose to by President Clinton is of consider- pressed internationally, regionally end testing, and therefore testing by able importance in the United States, and nationally at recent nuclear any of the five nuclear weapon states where testing was initially ended by 20 tests,…[s]trongly deplores all cur- would violate this rule. a 1992 statute that prohibited US rent nuclear testing.”17 The United States has not joined testing after September 30, 1996. this Vienna Convention.21 But the The statute, however, added that if As the CTBT negotiations in another country tested after this Geneva moved toward a successful United States has previously agreed that the Convention reflects a “cus- date, “the prohibition on United conclusion in 1996, India became States nuclear testing is lifted.”24 critical of the draft treaty on various tomary” rule of international law governing executive branch action The tests by India and Pakistan thus grounds, even though it had long ended the statutory ban on US test- supported the concept of a treaty pursuant to unratified treaties. When President Jimmy Carter asked the ing—but they did not alter the be- banning all tests. In the end, it ob- lief that an international no-testing jected most strongly to a provision Senate to put off consideration of the SALT II treaty because the Senate norm resulted from signing the requiring it to join the CTBT before CTBT. the treaty could go into effect for any appeared unlikely to approve it, the state, and it refused to sign. Pakistan State Department issued a statement Such a norm may still be chal- followed suit.18 When India tested that said: lenged by US test ban opponents. The United States and the According to Senate Majority nuclear weapons in May of 1998, Soviet Union share the view again followed by Pakistan, neither that under international law Leader Lott, ratification of the had signed the CTBT or joined the a state should refrain from CTBT “will…prevent the United taking action that would States from conducting tests neces- NPT. However, as I will discuss in defeat the object and pur- the next section, their actions prior pose of a treaty it has signed sary to maintain the safety and reli- to 1998 are also relevant to ascer- subject to ratification. We ability of our own nuclear therefore expect that the deterrent.”25 President Clinton, of taining whether they violated a norm United States and the Soviet by testing. Union will refrain from acts course, does not agree that tests are that would defeat the object necessary for this purpose. But, if a Finally, for the five NPT nuclear and purpose of the SALT II conservative Republican such as weapon states, recent developments Treaty before it is ratified Majority Leader Lott became US have special relevance. All five and enters into force. Such acts would include, for ex- president in 2001, he might order a signed the CTBT, and all declared ample, testing of missiles resumption of US tests if the CTBT that there should be no further tests with more warheads than were not then in force. That would
24 The Nonproliferation Review/Winter 1999 George Bunn be a violation of the customary rule two had breached a no-testing norm countries participating and decision of international law codified in the even though they had not joined the by consensus, the conferees “noted Vienna Convention—unless the NPT or signed the CTBT. Those the complexities arising from the president withdrew US support for condemning the tests were NPT nuclear tests in South Asia, which the CTBT, a presidential preroga- members, most of which had both underlined the need to work even tive. signed the CTBT and voted with In- harder to achieve their [nuclear] dis- dia and Pakistan for the earlier Gen- armament objectives.” The non- The Vienna Convention’s rule eral Assembly resolutions aligned leaders then expressed against a signatory state taking ac- condemning and deploring nuclear “concern over the failure of the tion inconsistent with the purpose of weapon tests by the five NPT nuclear weapon states [not includ- an unratified treaty applies only so nuclear weapon states. Without this ing India or Pakistan in this cat- long as the signatory state intends prior opposition to testing, it is egory] to demonstrate a genuine to ratify the treaty.26 President doubtful that the condemnations of commitment with regard to com- Reagan, after refraining for several the Indian and Pakistani tests would plete nuclear disarmament.” By years from US action that would have been so widespread. They were then, India and Pakistan had both “undercut” the unratified SALT II made by more than three-quarters of said they would not test further, and Treaty negotiated by President the 61 members of the Conference the declaration also welcomed their Carter, decided that the United on Disarmament, by all of the Group statements.29 States no longer intended to become of Eight (G-8) major industrialized a party to the treaty, and that there The UN Security Council’s May countries, by the five NPT nuclear was therefore no need to observe any resolution condemning the Indian weapon states, by the Arab League, norm coming from it. That was con- and Pakistani tests is of particular by the ASEAN Regional Forum, by sistent with the customary rule codi- interest. Under the UN Charter, the the Organization of American fied in the Vienna Convention. Council has primary responsibility States, and, finally, by the UN Se- for dealing with threats to interna- 27 curity Council. 30 CURRENT STATUS OF THE tional peace and security. Before NORM Significantly, some developing condemning the tests, this resolution countries, particularly members of repeated the Council’s earlier con- If there is now a treaty norm the Organization of the Islamic Con- clusion that the proliferation of against testing for all non-nuclear ference, refused to join in the May weapons of mass destruction is a weapon NPT parties and a custom- condemnation by the Conference on threat to international peace and se- ary norm against testing for the five Disarmament because, some of them curity, implying that these tests con- NPT nuclear weapon states and Is- said, it did not also condemn the five stituted such a threat. In addition to rael because of their signatures to the NPT nuclear weapon states for fail- condemning the tests, the resolution CTBT, could a no-testing norm de- ing to negotiate toward nuclear dis- “[d]emands that India and Pakistan rived in part from other sources now armament as required by the NPT. refrain from further nuclear tests and be applicable to India and Pakistan? For Egypt and Iran, leaders of those in this context calls upon all states Is there now a norm against testing refusing to join the condemnation, not to carry out any nuclear weapon that would produce worldwide con- its failure to criticize Israel’s unde- test explosion or any other nuclear demnation and perhaps economic clared weapon capability was no explosion in accordance with the sanctions if the United States re- doubt also relevant.28 Several provisions of the [CTBT].”31 sumed testing—even if it announced months later, at a September meet- Since not “all states” have signed that it did not intend to ratify the ing of the more than 100 develop- CTBT? the CTBT, this suggests that a norm ing countries that are members of the exists against nuclear tests even for Immediately after India and Pa- Non-Aligned Movement (of which those that have not signed, includ- kistan tested, the UN Security Coun- India has long been a leader), the ing India and Pakistan. Can a no- cil, through its president, stated that conferees refused to accord India testing norm from a treaty that is in the two had breached a “de facto and Pakistan even “second tier” sta- force for a large number but not ev- moratorium” on testing, and most of tus as nuclear weapon states as a re- ery state (the NPT) and is broadened the rest of the world acted as if these sult of their tests. With both
The Nonproliferation Review/Winter 1999 25 George Bunn in its application by a treaty that has that the Council has the power to stan did vote for the 1962 and later been signed by many states but is enforce such a norm—if none of the General Assembly resolutions, and not yet in force for any (the CTBT) permanent members veto its doing it criticized India’s 1974 test as vio- be applicable to states that have not so. lating a norm. signed or ratified either treaty? As we have seen, before their own A September 1998 resolution by Could the norm be applicable to the tests in 1998, India and Pakistan con- the members of the International United States if a president after demned specific weapon tests by Atomic Energy Agency (IAEA) sug- Clinton changed the US position on others. They also supported the 1962 gests, however, that many countries the CTBT? UN General Assembly Resolution are not prepared to say that the no- Despite the sharp distinction be- “condemning” such tests and the testing norm had become a legal tween treaties and custom, treaties later resolutions expressing “grave obligation for India or Pakistan. can sometimes be sources of cus- concern” about them. India, indeed, While the IAEA resolution deplored tomary international law for non- argued before the 1962 resolution the Indian and Pakistani tests, a parties to those treaties.32 For that nuclear weapon tests were ille- preambular clause implied that the example, the American Law gal and, after the resolution, it ac- norm against testing was not yet le- Institute’s prestigious “Restate- cused states of violating it by gally binding for India and Pakistan: ment” of US views on “Foreign Re- testing—as if the resolution itself Noting that the States con- lations Law” accepts that even stated a legal norm applicable to cerned [India and Pakistan] have both imposed morato- countries that have not joined the every state. Before its 1996 opposi- ria on further testing and UN Charter are bound by custom- tion to the CTBT and its own 1998 have said that they are will- ary law to the Charter’s prohibition tests, India supported this norm even ing to enter into legal com- 35 mitments not to conduct against “the threat or use of force though it did not join the NPT. further tests and reiterating against the territorial integrity or This evidence suggests that, be- the need for such commit- ments to be expressed in le- political independence of any fore 1996, India unambiguously sat- 33 gal form by signing and state.” The Restatement experts isfied the requirement that its moving to ratify the Com- agree that, in addition to the Charter no-testing practice be “evidence of prehensive Nuclear Test Ban Treaty.38 provisions designed to protect inter- a general practice accepted as law,” national security, a multilateral the standard for customary law set By September 1998, when this treaty can be the source of norms for forth in the Charter of the Interna- resolution was adopted, both India non-parties if the treaty is “designed tional Court of Justice.36 The “gen- and Pakistan had stopped testing and for adherence by states generally, is eral” international practice against given some indication that they widely accepted, and is not rejected testing was that reflected in the reso- might sign the CTBT.39 Moreover, by a significant number of impor- lutions, the NPT, and the CTBT. The many states may have felt it unfair 34 tant states.” This was certainly the Indian practice included its own ab- to condemn India and Pakistan for case with both the NPT and the stention from weapons tests until violating a customary rule derived CTBT, except that India and Paki- 1998, and its condemnations of such in part from General Assembly reso- stan rejected both—and they cannot testing as illegal, immoral, and in lutions when their tests came less be called unimportant states. violation of the General Assembly than two years after the last of many In its resolution quoted above, the resolutions against testing. If this tests by the five NPT nuclear Security Council appears to have practice is taken as evidence that it weapon states, in defiance of the concluded that application of the no- “accepted as law” the norm against same resolutions. testing norm to India and Pakistan testing expressed in the General As- If the no-testing norm was not yet was of importance for maintenance sembly resolutions as well as in the “legally binding” upon India and of international peace and security. treaties, its change in practice re- Pakistan in May of 1998, is there Is this not an attempt to enforce a flected in its 1996 opposition to the nevertheless a “political” norm norm essential to international secu- CTBT and its 1998 tests came too against testing by either of them? Is 37 rity, as with the UN Charter norm late to absolve it. The case against there one against testing by any of just quoted? There seems little doubt Pakistan is not as strong, but Paki- the five NPT nuclear weapon states
26 The Nonproliferation Review/Winter 1999 George Bunn that relieves itself of its Vienna Con- completion had been promised for Bank and IMF loans. These sanc- vention obligation not to defeat the 1996.42 The growing norm then pro- tions were extended to Pakistan af- object and purpose of the CTBT by duced strong, widespread condem- ter its tests. Canada, Denmark, announcing that it no longer intends nations of Indian and Pakistani Japan, and Sweden took some simi- to become a party to the CTBT? As testing in 1998, after the CTBT had lar steps, but Britain, France, Rus- we have seen, there are a variety of been signed.43 The criticism of the sia, and other industrialized international declarations, commu- two countries became less severe in countries were not prepared to im- niques, and the like that are regarded September after earlier condemna- pose economic sanctions—though as “politically” but not “legally” tions, sanctions, and negotiations the G-8 foreign ministers adopted a binding. And violations of “politi- produced promises from India and strong condemnation of the tests in cal” undertakings are subject to Pakistan to abstain from testing and June of 1998.46 Steps to prevent fur- appropriate “political responses”— to cooperate in bringing the CTBT ther damage to the nonproliferation these can include condemnation, into force.44 If India or Pakistan were regime were urged on India and Pa- economic sanctions, and refusal to to resume testing now, however, the kistan in a joint statement by the five comply with related promises made worldwide condemnation could be NPT nuclear weapon parties, then by for the benefit of the violating party. at least as sharp and widespread as the G-8 and the UN Security Coun- Just as customary international it was in May and June of 1998. The cil in the resolution already quoted. law can be based upon the practices same would be true if any of the five Besides condemning the tests, all of of states rather than upon interna- NPT nuclear weapon states resumed these statements asked both coun- tional agreements, politically bind- testing. Most of the world clearly tries to: ing norms can also be so based. As feels that a norm against testing ex- • Join the NPT as non-nuclear early Indian criticisms of testing and ists for the five NPT nuclear weapon weapon states; the 1962 General Assembly resolu- states as well as for India and Paki- • Refrain from weaponizing their tion show, some sort of an emerg- stan. nuclear explosives and from de- ing norm often exists long before This norm has arisen from the ploying nuclear weapons or states conclude that a customary rule practices of states and from the be- nuclear-capable missiles; is “legally binding.”40 Such a no- liefs expressed in connection with • Desist from further weapons testing norm applicable to India and their votes for General Assembly tests and join the CTBT; Pakistan can be derived from their resolutions and their decisions to • Participate constructively in the long practice consistent with such a join the NPT and CTBT. Though ap- negotiation at the Conference on norm up to 1998, their condemna- parently not enough to satisfy IAEA Disarmament of a treaty to ban the tions of testing conducted by others members in September 1998 that a production of fissile material for going back as far as 1954 in India’s legal norm existed, this evidence nuclear weapons (the statements case and 1962 in Pakistan’s, and the seems enough to satisfy many inter- of the five NPT nuclear weapon opposition to testing and the agree- national lawyers and constructivist parties and the G-8 urged, in ad- ments not to test expressed by more international relations theorists that dition, a halt to the production of and more other states.41 a norm capable of affecting the con- such material immediately, pend- duct of states now exists.45 ing negotiation of such a treaty); The norm against testing grew in and strength and in numbers of adher- • Undertake written commitments ENFORCING THE NORM ents as more non-nuclear weapon to their stated policies against ex- states joined the NPT and the five Immediately after the Indian tests, port of equipment, materials, or NPT nuclear weapon states and Is- the United States announced eco- technology that could contribute rael signed the CTBT. The norm had nomic sanctions against India, in- to the acquisition by others of grown to such an extent that it pro- cluding denial of military and weapons of mass destruction or duced a General Assembly resolu- dual-purpose exports, prohibitions missiles capable of carrying tion criticizing 1995-96 tests by on US assistance even to US com- them.47 China and France, even before the panies doing business in India and Press reports of the negotiations CTBT had been signed but after its Pakistan, and opposition to World with India and Pakistan suggest pos-
The Nonproliferation Review/Winter 1999 27 George Bunn sible agreement on the third, fourth, yet signed the treaty. The United then ratified it to decide what steps and fifth steps, provided that further States is negotiating with all three can be taken to speed ratification by negotiations produce agreement on countries to secure treaty signing. signers that have not ratified. The a quid pro quo from United States But even if these negotiations are CTBT also authorizes annual con- and others to ease or remove sanc- successful, all 44 states, including ferences of this kind thereafter until tions. In their major addresses to the the United States, must also ratify. the treaty enters into force.53 One opening of the Fall 1998 General As- So far, only 27 states have done so, can anticipate that governments that sembly session, both countries an- including only two of the five NPT have ratified will do their best to nounced that they would sign the nuclear weapon states, Britain and persuade the United States to follow CTBT—if negotiations give them France.51 their lead, and the persuasion may 48 what they want. The United States The CTBT has been pending in have some effect. But, until there is has since revised many economic the US Senate for more than a year a US national debate on whether to sanctions and can offer to end oth- without action. Signatures by India ratify, a debate that convinces Sena- ers—which was not possible until and Pakistan could put added pres- tors of the wide public support for October 1998, when Congress gave sure on Senators Helms and Lott to the CTBT shown by polls, it will the president authority for one year let the CTBT come to the floor of probably not be possible to change 49 to do so. Assuming negotiations the Senate for a vote.52 But, so far, enough senators’ views to produce 54 are successful and India and Paki- public support has not been ex- a two-thirds vote. stan sign the CTBT, they will, be- pressed in a way that has moved the Can testing be prevented during cause of that signing, be subject to Republican leadership or demon- this period? If agreement is reached the same international law custom- strated that the 67 votes are there. If with India and Pakistan to sign the ary rule reflected in the Vienna Con- the treaty supporters in the Senate CTBT, there is a good chance that vention to which the five NPT were prepared to filibuster every their moratorium will continue. The nuclear weapon states are subject. other issue until the CTBT was norm against testing remains strong Later, they could eliminate that norm brought up for a vote, they would around the world, whether or not it for themselves by announcing that get the attention of the leadership. is seen as legally binding. The in- they do not intend to ratify the That was one tactic that supporters ternational criticism of, and national CTBT—just as China, Russia, and of the START II Treaty used to get sanctions against, India and Pakistan the United States could still do be- it to the floor. But so far the CTBT for testing will be remembered. cause they have not ratified. But has not seemed sufficiently impor- Given this worldwide opinion, per- worldwide condemnation and, in tant to senators relative to other busi- haps the Senate can at least be per- some cases, economic sanctions ness before the Senate. And bringing suaded not to reject the CTBT and would be likely because the under- the CTBT to the floor before 67 instead keep it pending until the day lying no-testing norm—the opposi- votes are likely to be there could be when there are enough votes to ap- tion to testing by the rest of the dangerous. Similar to when the prove it. Perhaps, if the next US world—would likely continue. League of Nations Charter was re- president does not support the jected by a Republican Senate in CTBT, he will at least not state that CONSEQUENCES IF NORM President Woodrow Wilson’s time, the United States does not intend to FAILS TO PREVENT Senate rejection of the CTBT could ratify it—as Reagan did with SALT TESTING set back indefinitely the effort to end II. If India and Pakistan agree to sign By its terms, the CTBT cannot testing. the CTBT, they would probably not come into force until it is ratified by China, Russia, India, Israel, North test again unless one of the five 44 specifically named states—all of Korea, and Pakistan—all among the nuclear weapon states resumes test- which have nuclear reactors and are 44 necessary parties to bring the ing, or unless entry into force is de- members of the Conference on Dis- CTBT into force—are unlikely to layed indefinitely. armament, where the CTBT was ratify before the United States does. The present governments of Brit- 50 negotiated. Of the 44, only India, The treaty authorizes a conference ain, China, France, and Russia are Pakistan, and North Korea have not in 1999 of the countries that have also unlikely to test for the time be-
28 The Nonproliferation Review/Winter 1999 George Bunn ing if no other state tests. China and gotiate in good faith to end the just in treaty texts, but also in widely France resumed testing in 1995, nuclear arms race, including ending supported UN resolutions and other soon after the NPT had been ex- testing). condemnations applied to the 1998 tended with promises from the NPT Islamic Middle Eastern states are tests by India and Pakistan, the 1995- nuclear weapon states to achieve a already angry at the United States 96 tests by China and France, and CTBT by the end of 1996 and to “ex- for failing to push Israel harder in the earlier tests by Russia, the United 55 ercise utmost restraint” until then. the Middle East peace process and Kingdom, and the United States. The widespread condemnation that for refusing to permit serious discus- Resumption of testing by any of China and France received for that sion at future NPT conferences of these countries would produce new testing, even from friends and allies, proposals for getting Israel to give condemnations and, perhaps, eco- and the limited sanctions—cuts in up its nuclear weapons.57 Would a nomic sanctions, such as those ap- financial assistance to China, denial group of these states threaten to plied by the United States to India of bidding opportunities for military withdraw from the NPT at the next and Pakistan after their tests. sales to France, and informal boy- NPT Review Conference in 2000 for International lawyers and foreign cotts of French products—will not these reasons if, in addition, the ministry experts will classify the no- 56 soon be forgotten. All of the five United States resumed testing? If testing norm as either “politically nuclear weapon states later joined in India resumed testing after the binding” or “legally binding.” In- the condemnations of the 1998 tests United States did, would Iran be- ternational relations theorists will by India and Pakistan. Worldwide come even more determined to se- be less concerned about these labels criticism and economic sanctions cure nuclear weapons, and withdraw and more interested in judging the could be expected if any of these from the NPT to do so?58 Would any strength of the norm by its effect on states resumed testing in 1999 or of four Northeast Asian states that state behavior. But however it is 2000. There is thus some basis for have the capability to produce judged, any future violation of this hope that the strongly felt norm nuclear weapons reconsider their norm will likely have serious con- against testing can help to prevent a membership in the NPT? North sequences. To most of the world, new round of tests even if the CTBT Korea may already be pursuing nuclear tests symbolize a nuclear does not go into effect soon. nuclear weapons. Could South Ko- arms race and the horrors of But compliance with the norm rea, Taiwan, or even Japan be far Hiroshima and Nagasaki. To non- cannot be taken as a certainty. If the behind North Korea after further In- nuclear weapon countries, they also United States resumes testing, China dian, Pakistani, and US testing?59 symbolize the discrimination and Russia will likely follow suit. While there would be other causes against them permitted by the NPT: India and Pakistan may also follow. at work besides US testing, the under this treaty, some parties can If testing resumes, the damage to the United States would be singularly have nuclear weapons and test, and NPT regime is likely to be severe. unpersuasive in attempting to pre- some cannot. The NPT provided a Testing by the five has been the vent others from testing if it resumed remedy to end this discrimination: single most contentious issue at all itself.60 the obligation upon the nuclear of the NPT Review Conferences, weapon parties to negotiate in good and the promise to end testing made CONCLUSION faith to halt the nuclear arms race at the 1995 NPT Extension Confer- and to achieve nuclear disarmament. This article demonstrates that a ence was crucial to its success. If the Ending testing was the agreed first strong international norm against United States resumes testing, some step to meet this obligation when the nuclear weapon testing exists even non-nuclear weapon NPT parties NPT was signed over 30 years ago. though the CTBT has not yet gone may feel they have been relieved of Resumption of testing by the five into effect. The article traced this their 1995 commitment to stay with NPT nuclear weapon states would norm’s rise by examining treaties, the NPT indefinitely because the probably be seen by most of the rest state practices, and the reasons states United States has, by testing, gone of the world as a violation of their gave in support of these practices. back on its 1995 NPT commitment NPT commitments and an abandon- The growth of this norm over more to achieve a CTBT by 1996 (and also ment by them of the NPT’s nonpro- than 30 years is thus reflected not on its 1968 NPT commitment to ne- liferation goals.
The Nonproliferation Review/Winter 1999 29 George Bunn
Gaining commitments from India 5 Stephen D. Krasner, “Structural Causes and rity, pp.114-15, 143-44; Ann Florini, “The Evo- Regime Consequences: Regimes as Intervening lution of International Norms,” International and Pakistan to end their testing has Variables,” in Krasner, ed., International Regimes Studies Quarterly 40 (September 1996), pp. 363- been difficult enough in a period (Ithaca, NY: Cornell University Press, 1983), p. 89; Anne-Marie Slaughter Burley, “International when the five NPT nuclear weapon 2. Law and International Relations Theory: A Dual 6 Charter of the International Court of Justice, Agenda,” American Journal of International Law states agreed to stop testing. If some Article 38.1.b. An excellent description of cus- 87 (April 1993), pp. 205-09, 222; Anne-Marie of the five resume testing, it will tomary law, how it is created, how it is influ- Slaughter, Andrew S. Tulumello, and Stephan likely be impossible to gain the in- enced by politics, and how one can determine Wood, “International Law and International Re- whether it exists appears in Louis Henkin, Inter- lations Theory: A New Generation of Interdisci- ternational cooperation necessary to national Law: Politics and Values (Dordrecht, plinary Scholarship,” American Journal of restrain India and Pakistan. Without Netherlands: Martinus Nijhoff, 1995), pp. 29-44. International Law 92 (July 1998), pp. 367, 373. 7 A Congressional Research Service study for the 13 Finnemore, National Interests and Interna- that international cooperation, it may Senate Foreign Relations Committee states that tional Society, p. 140. well be impossible to prevent the ac- politically binding agreements often “convey 14 The first quotation is from “Indian Proposal quisition of nuclear weapons by merely present intention to perform an act or a Introduced in the UN Disarmament Commis- commitment of a purely personal, political or sion,” July 12, 1956, Department of State, Docu- other counties, such as North Korea, moral value. The Helsinki [Final Act of 1975, a ments on Disarmament, l945-56 (Washington, which would likely be followed by negotiated agreement issued by a multilateral DC: Government Printing Office, 1960), p. 665. South Korea, Taiwan, and Japan. In conference] avoids the words of legal After 1960, Documents on Disarmament volumes commitment…Non-binding agreements may take were issued by the US Arms Control and Disar- order to minimize proliferation dan- many forms, including…declarations of intent, mament Agency. They will be cited hereafter as gers, the five NPT and three de facto joint communiques and joint statements (includ- Documents on Disarmament followed by the year ing final acts of conferences), and informal agree- covered by the volume. The second quotation is nuclear weapon states must recog- ments.” Treaties and other International from “Indian Draft Resolution: Suspension of nize the politically binding and, in Agreements: The Role of the United States Sen- Nuclear Weapon Tests,” November 1, 1957, some cases, legally binding norms ate, S. Print 103-53, 103rd Cong., 1st Sess. (No- Documents on Disarmament, 1945-56, pp. 906- vember 1993), p.34. For a discussion of the 07. See also Statement of Prime Minister Nehru against further testing by them, and binding nature (legal or political) of non-treaty of November 28, 1957, Documents on Disarma- work to strengthen broader nonpro- declarations by nuclear weapon states agreeing ment, 1945-46, pp. 917-18; Revised Indian Draft liferation norms. An important step not to use nuclear weapons against certain non- Resolution, October 14, 1958, Documents on nuclear weapon states, see George Bunn, “The Disarmament, 1945-46, pp. 1184-85; Letter of toward this goal would be for those Legal Status of U.S. Negative Security Assur- Indian Representative Jha to UN Secretary Gen- of them that have not yet signed or ances to Non-Nuclear Weapon States,” The Non- eral: “Nuclear Test Item for the Provisional proliferation Review 4 (Spring-Summer 1997), Agenda of the 16th General Assembly,” July 29, ratified the CTBT to do so. pp. 10-11. 1961, Documents on Disarmament, 1961, pp. 8 Oscar Schacter, “International Law in Theory 270-71, 539, note 1 (1962); UN General Assem- and Practice,” Recueil des Cours 178 (1982, v.5), bly Resolution 1762 (XCII), November 7, 1962, p. 130; see also Schacter, “The Twilight Exist- Documents on Disarmament, 1962, pp. 1029-30. ence of Nonbinding International Agreements,” 15 Statement by Indian Representative Dhar to 1 See Message of the President of the United American Journal of International Law 71 the First Committee of the General Assembly, States transmitting Comprehensive Nuclear Test- (1977), p. 296. December 14, 1967, Documents on Disarmament, Ban Treaty, Treaty Doc. 105-28 (Washington, 9 US Department of State Bulletin 73 (1975), p. 1967, pp.692, 695-96; Statement by Indian Rep- DC: GPO, 1997), US Senate, 105th Cong., 1st 613, quoted as representing the State resentative Husain to the First Committee of the Sess., September 23, 1997. Department’s view in the Congressional Research General Assembly, May 14, 1968, Documents on 2 See Letter of Chairman Helms to President Clin- Service study Treaties and other International Disarmament, 1968, pp. 325, 331. ton dated January 21, 1998; Letter of Majority Agreements: The Role of the United States Sen- 16 On May 21, 1974, after the test, Indian Minis- Leader Lott to the Editor, New York Times, June ate, p. 38. ter of External Relations Singh referred to it as a 12, 1998, p. A-22; Daryl G. Kimball, “Holding 10 US Department of State explanation of the “peaceful nuclear explosion experiment,” add- the CTBT Hostage in the Senate: The ‘Stealth’ consequences of violating political commitments ing “We have no intention of developing nuclear Strategy of Helms and Lott,” Arms Control To- in the first START Treaty. See Treaties and other weapons.” Documents on Disarmament, 1974, p. day 28 (June/July 1998), p. 3. International Agreements: The Role of the United 149. See also “Statement by Indian Atomic En- 3 “Editorial Introduction” to “CTBT Updated,” States Senate, p.34. ergy Commission,” May 18, 1974, Ibid., p.146, Disarmament Diplomacy 29 (Aug./Sept. 1998), 11 Krasner, ed., International Regimes, pp. 1,2, and “Statement by Indian Representative to the p.11 (emphasis added). Some experts argue that 16-20, 357, 359-360; Peter J. Katzenstein, “In- Geneva Committee of the Conference on Disar- a better measure of the number of opposing Sena- troduction” in Katzenstein, ed., The Culture of mament,” May 23, 1974, Ibid., pp. 170, 171. In- tors is 26, the number who opposed ratification National Security: Norms and Identities in World dian Prime Minister Ghandi stated that India’s of the Chemical Weapons Convention (even Politics, (New York: Columbia University Press, test was a “peaceful nuclear explosion” permit- though that was negotiated under the leadership 1996), pp. 19-20; Ronald L. Jepperson, Alexander ted by Article V of the NPT—although India was of Republican President George Bush). See Jo- Wendt, and Peter J. Katzenstein, “Norms, Iden- not a party to the NPT and had not complied with seph Cirincione, “Non-Proliferation Analysis: tity and Culture in National Security,” in ibid., the procedures required by Article V. See Tho- The Decline and Stall of U.S. Policy,” Disarma- pp. 33-34, 45-46. mas Graham Jr. and Douglas B. Shaw, “Nearing ment Diplomacy 30 (Oct. 1998), pp. 2, 4. 12 Martha Finnemore, National Interests and In- the Fork in the Road: Proliferation or Nuclear 4 See Abram Chayes and Antonia Chayes, The ternational Society (Ithaca, NY: Cornell Univer- Reversal,” Nonproliferation Review 6 (Fall 1998), New Sovereignty: Compliance with International sity Press, 1996), p. 3; Richard Price and Nina pp. 70, 72. Pakistani Prime Minister Bhutto con- Regulatory Agreement, (Cambridge, MA: Tannenwald, “Norms and Deterrence: The demned the 1974 Indian test as a “nuclear threat” Harvard University Press, 1995), pp. 112-13 (Ital- Nuclear and Chemcial Weapons Taboos,” in and a violation of international norms just as ics in the original). Katzenstein, ed., The Culture of National Secu- much as if it had been a military weapon test.
30 The Nonproliferation Review/Winter 1999 George Bunn
Ibid., pp. 146, 148. The Desai quotation in the 21 The United States signed the treaty and sub- Statement,” Disarmament Diplomacy 26 (May text above is from “Statement of July 31, 1978,” mitted it to the Senate in 1971. The Senate has 1998), p. 19. Documents on Disarmament, 1978, pp. 482-84. not acted upon it. See Covey T. Oliver, Edwin B. 29 “NAM Summit, Final Document 12th Non- The resolution is UN General Assembly Resolu- Firmage, Christopher Blakesley, Richard F. Scott, Aligned Movement Summit,” Disarmament Di- tion 33/60, December 14, 1978, Documents on and Sharon Williams, The International Legal plomacy 29 (August/September 1998), p. 36; Disarmament, 1978, pp. 746-47. Resolutions with System (Westbury, NY: Foundation Press, 1995), Donald H. McNeil, “Nonaligned Movement similar language were adopted with Indian and p. 991. Meets, Out of Spotlight,” New York Times, Sep- Pakistani support in other years. See, e.g., UN 22 See Marian Nash Leich, Digest of United States tember 7, 1998, p. A-4 (National ed.); Wade General Assembly Resolution (UNGA) 33/78, Practice in International Law, 1980 (Washing- Boese, “Indian, Pakistani Nuclear Tests Elicit December 12, 1977, Documents on Disarmament, ton, DC: Government Printing Office, 1986), p. Condemnation at CD,” p. 25. 1977, pp. 827-28; UNGA Res. 42/26 (1987), 398-99. A legal opinion on this subject by State 30 UN Charter, Arts. 24 and 39. Yearbook of the UN, 1987 (Dordrecht, Nether- Department Legal Adviser Roberts B. Owen ap- 31 UN Security Council Resolution 1172 (June lands: Martinus-Nijhof, 1988), p. 51; UNGA Res. pears just after this quotation, pp. 399-406. Later, 6, 1998), emphasis added. 43/63, Yearbook of the UN, 1988, p. 61; UNGA after Carter was succeeded by President Ronald 32 See, e.g., Military and Paramilitary Activities Res. 44/105 (1989), Yearbook of the UN, 1989, Reagan, Reagan ordered the elimination of two in and against Nicaragua (Nicaragua vs. United p. 52. In the 1990 resolution, the General As- submarines to keep within SALT II limits. Louis States), International Court of Justice (1986), p. sembly expressed its “conviction that, pending Henkin, Richard C. Pugh, Oscar Schachter, and 24, pp. 87 f.f. conclusion of a comprehensive nuclear test ban Hans Smit, International Law (St. Paul, MN: 33 Restatement of the Law Third: The Foreign treaty, the nuclear weapon states should suspend West Publishing, 1987), p. 413, note 1. This was Relations Law of the United States (St.Paul, MN: all nuclear test explosions through an agreed described by the Reagan Administration as not American Law Institute, 1987), Sect. 102, Com- moratorium or unilateral moritoria.” UNGA Res. “undercutting” SALT II. General Counsel ment h, p. 27. 46/28 (1990), Yearbook of the UN, 1990, p. 40. Richstein of the US Arms Control and Disarma- 34 Ibid., Comment i, p. 27. Examples are given India and Pakistan, and most of those voting (but ment Agency took the position that the commit- in Antonia Chayes and Abram Chayes, “Regime not the nuclear weapon states) supported this reso- ment not to “undercut” SALT II was a statement Architecture: Elements and Principles,” in Janne lution. This language was repeated for several of “national policy” and therefore “not legally Nolan, ed., Global Engagement: Cooperation years. UNGA Res. 47/46 (1992), Yearbook of the binding.” See Marian Nash Leich, Cumulative and Security in the 21st Century (Washington,DC: UN, 1992, p. 86; UNGA Res. 48/70 (1993), Year- Digest of United States Practice in International Brookings, 1994), p. 65. These include the NPT book of the UN, 1993, p. 117; UNGA Res. 49/69 Law, 1981-88, v.3 (Washington, DC: Govern- norm against additional states having nuclear (1994), Yearbook of the UN, 1994, p. 145. ment Printing Office, 1995), pp. 3525-26. He did weapons. Ibid., pp. 70-71. This is of course le- 17 The promises concerning testing made in con- not, however, disagree with earlier statements by gally binding on parties to the NPT. But the nection with the NPT’s extension appear in Prin- the State Department legal adviser that the Vienna Chayes chapter discusses the normative effect it ciples and Objectives for Nuclear Convention rule against taking action that vio- has had on non-NPT parties. Non-Proliferation and Disarmament, NPT/ lated the object and purpose of a signed treaty 35 See the text above at notes 14 –17. CONF. 1995/L.5 , par. 3. The resolution is UNGA had become customary international law appli- 36 Statute of the International Court of Justice, Res. 50/70, Yearbook of the UN, 1995, p. 60 (em- cable to the United States as well as to other states. Art. 38.1.b. phasis in the original). China, France, and the Still later, Reagan made the decision not even to 37 By early opposition to an emerging norm, a United Kingdom opposed, Russia supported, and hold open the possibility of joining SALT II and state can avoid application of the norm to itself. the United States and Pakistan abstained. Most not to be bound even “politically” by the treaty But opposition must be consistent and begin fairly others voted for the resolution. any longer. See G. Bunn, Arms Control by Com- early in the growth of the norm. See, e.g., Paul 18 See Rebecca Johnson, Acronym No. 10, pp. mittee (Stanford, CA: Stanford University Press, Szasz, “General Law-Making Processes” in 13-17, 21; Dinshaw Mistry, “Domestic-Interna- 1992), note 40, p. 306. Thus the Reagan admin- Schachter and Joyner, eds., United Nations Le- tional Linkages: India and the Comprehensive istration complied with the Vienna Convention gal Order, p. 41. Instead, as this article has shown, Test Ban Treaty,” The Nonproliferation Review without referring to it. US practice in arms con- India began arguing that testing was against in- 6 (Fall 1998), pp. 25, 27-31; cf. T.V Paul, “The trol seems to be consistent with the Convention. ternational law in 1956 and it led the effort to Systemic Bases of India’s Challenge to the Glo- 23 President Clinton, Address to the UN General condemn testing in a General Assembly resolu- bal Nuclear Order,” The Nonproliferation Review Assembly, September 24, 1996 (emphasis added). tion in 1962, before the NPT was negotiated and 6 (Fall 1998), pp. 1, 6. 24 Section 507 of the 1992 Energy and Water had established the first treaty norm against test- 19 Vienna Convention on the Law of Treaties, Development Appropriations Act, Public Law ing. Pakistan voted for the 1962 resolution con- adopted May 23, 1969, Art. 18(a). Article 18 (b) 102-377. demning testing and also for the later resolutions includes another exception: “provided that such 25 Letter to the Editor, New York Times, June 9, criticizing testing less severely. entry into force is not unduly delayed.” 1998, p. A-22. 38 IAEA Resolution GC(42)/26/RES/23 reported 20 The then director of the US Arms Control and 26 The Vienna Convention obliges a signatory to in Programme for Promoting Nuclear Non-Pro- Disarmament Agency, John Holum, stated this refrain from acts that would defeat the “object liferation, Newsbrief 43 (Third Quarter 1998), p. view in an address to a committee of the Ameri- and purpose” of the treaty it has signed until “it 37. The italics have not been added; the “bold” can Bar Association on September 26,1996. shall have made its intention clear not to become emphasis for “legal” has. A paragraph with al- Holum quoted a speech by President Clinton, on a party to the treaty….” Art. 18 (a). most identical statements appeared in the resolu- signing the CTBT, in which he said the signa- 27 See Programme for Promoting Nuclear Non- tion deploring the South Asian tests adopted by tures would “create an international norm against Proliferation, “Proliferation-Related Develop- the UN General Assembly in a vote of 118 to 9 testing, even before the treaty formally enters into ments: India and Pakistan,” Newsbrief 42 (Second (with 33 abstentions) in December of 1998. force.” He had earlier said: “The United States Quarter 1998), insert; “Indian and Pakistani Tests: UNGA Resolution 53/77G. will continue its nuclear testing moratorium pend- Special Feature,” Disarmament Diplomacy 26 39 This is reflected in the text of the resolution ing entry into force of the treaty.” See “ACA (May 1998), pp. 1-21; “India and Pakistan just quoted. At the end of 1998, US negotiations Candidates Forum,” Arms Control Today 26 Nuclear Tests: Continuing Developments & Re- about nuclear weapons with India and Pakistan (September 1996), p. 3. For a more detailed ex- action,” Disarmament Diplomacy 27 (June 1998), were continuing without agreement on terms position, see George Bunn and John B. pp. 16-27. pursuant to which they would sign the CTBT. Rhinelander, “U.S. Should Lead Effort to Enforce 28 See Wade Boese, “India, Pakistani Nuclear Pakistani Prime Minister Nawaz Sharif met with Legal Norm Against Testing,” Arms Control To- Tests Elicit Condemnation at CD,” Arms Con- President Clinton and agreement was announced day 26 (October 1996), p. 30. trol Today 28 (May 1998), p. 25; “47-State CD on paying Pakistan back for US fighter jet air-
The Nonproliferation Review/Winter 1999 31 George Bunn craft that had not been delivered as promised to Tone Down Crisis,” New York Times, May 30, 1995), p. 7; Newsbrief 31 (Third Quarter 1995), Pakistan. But no announcement was made about 1998 (National ed.), p. A-1; “Talbott –Singh pp. 4-6. Pakistan signing the CTBT. “U.S. to Pay Paki- Talks,” Washington Times, August 25, 1998; 57 The 1998 NPT Preparatory Committee meet- stan Back for Undelivered Jets,” New York Times, Nasir Malik, “No Giving up of N-Capability: ing to plan for the 2000 NPT review conference December 22, 1998 (National ed.), p. A-15. In a Pakistan May Sign CTBT if Curbs Are Lifted,” broke up without a substantive report on major lengthy speech to his Parliament, Indian Prime DAWN Daily News by E-Mail, August 26, 1998; issues because of disagreement on a few issues, Minister Atal Behari Vajpayee restated India’s
32 The Nonproliferation Review/Winter 1999