Sherlock Holmes Meets Rube Goldberg: Fixing the Entry-into-Force Provisions of the Comprehensive Nuclear Test Ban Treaty

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\u27s 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

Indisputable Violations: What Happens When the United States Unambiguously Breaches a Treaty

!e United States justi ably prides itself on its devotion to “the rule of law.” We take legal instruments seriously; when we assume a binding legal obligation at home, we mean it, and we expect all parties to the agreement to demonstrate comparable fealty. !is commitment to the law also extends to international agreements. Treaties are the coin of the international realm, and the United States leads the world both in making treaties and in publicly and pointedly holding others accountable when they fall short of full compliance. What happens, then, when the United States contravenes a binding international legal obligation in a manner so obvious and unarguable that it can o#er no defense to the charge of breach? It happens more often than one might think and to more important treaties than one would hope, including treaties for which the United States continues to depend upon fastidious performance by other countries. Here, I present three illustrative cases studies of blatant U.S. violations of binding international legal obligations: the 1993 Chemical Weapons Convention, the 1963 Vienna Convention on Consular Relations, and the obligation to pay annual dues under the Charter of the United Nations. I explain the causes of these breaches and examine their adverse consequences for the United States and for the international rule of law

The Fault Is Not in Our Stars: Avoiding an Arms Race in Outer Space

The world is on the precipice of a new arms race in outer space, as China, Russia, the United States, and others undertake dramatic new initiatives in anti-satellite weaponry. These accelerated competitive efforts at space control are highly destabilizing because developed societies have come to depend so heavily upon satellite services to support the entire civilian economy and the modern military apparatus; any significant threat or disruption in the availability of space assets would be massively, and possibly permanently, disruptive. International law regarding outer space developed with remarkable rapidity in the early years of the Space Age, but the process of formulating additional treaties and norms for space has broken down over the past several decades; no additional legal instruments have emerged that could cope with today’s rising threats. This Article therefore proposes three initiatives. Although none of them can suffice to solve the emerging problems, they could, perhaps, provide additional diplomacy, reinvigorating the prospects for rapprochement in space. Importantly, each of these three ideas has deep roots in other sectors of arms control, where they have served both to restore a measure of stability and to catalyze even more ambitious agreements in the longer term. The first proposal is for a declaratory regime of “no first use” of specified space weapons; this would do little to directly alter states’ capabilities for space warfare, but could serve as a “confidence-building measure,” to temper their most provocative rhetoric and practices. The second concept is a “limited test ban,” to interdict the most dangerous debris-creating developmental tests of new space weapons. Third is a suggestion for shared “space situational awareness,” which would create an international apparatus enabling all participants to enjoy the benefits of greater transparency, reducing the possibilities for secret malign or negligent behavior. In each instance, the Article describes the proposal and its variations, assesses its possible contributions to space security, and displays the key precedents from other arms-control successes. The Article concludes by calling for additional, further-reaching space diplomacy, in the hope that these relatively modest initial measures could provoke more robust subsequent negotiations

Bonehead Non-Proliferation

The Review and Extension Conference of the Non-Proliferation Treaty (NPT) will convene in 1995. The primary issue to be considered at the Extension Conference is whether the NPT, universally regarded as the most important bulwark against the spread of nuclear weaponry, should remain in force. In this article, David A. Koplow argues that the United States must negotiate a Comprehensive Test Ban Treaty (CTBT) in order to maintain the non-proliferation regime and promote its own long-run security interest

An Inference about Interference: A Surprising Application of Existing International Law to Inhibit Anti-Satellite Weapons

This article presents a thesis that most readers will find surprising, in an effort to develop a novel, simultaneous solution to three urgent, complex problems related to outer space. The three problems are: a) the technical fact that debris in outer space (the accumulated orbital junk produced by decades of space activities) has grown to present a serious hazard to safe and effective exploration and exploitation of space; b) the strategic fact that many countries (notably the United States, China and Russia, but others, too) continue to demonstrate a misguided interest in pursuing anti-satellite weapons, which can jeopardize the security of space; and c) the political fact that attempts to provide additional legal regulation of outer space (via new bilateral or multilateral international agreements) have failed, with little prospect for prompt conclusion of meaningful new accords. The proposed solution is to adapt existing international law in an unforeseen way. Specifically, numerous current and historical arms control treaties provide for verification of parties’ compliance via “national technical means” (NTM) of verification, which prominently include satellite-based sensory and communications systems. These treaties routinely provide protection for those essential space assets by requiring parties to undertake “not to interfere” with NTM. The argument developed here is that additional tests in space of debris-creating anti-satellite weapons would already be illegal, even without the conclusion of any dedicated new treaty against further weaponization of space, because in the current crowded conditions of space, a new cloud of orbital debris would, sooner or later, impermissibly interfere with NTM satellites. If sustained, this thesis can provide a new rationale for opposition to the development, testing, and use of anti-satellite weapons. It a legal reinforcement for the political instincts to avoid activities that further undercut the optimal usability of outer space, and it demonstrates how creative re-interpretation of existing legal provisions can promote the advancement of the rule of international law, even in circumstances where the articulation of new treaties is blocked

Book Review: New Chemical Weapons Convention: Implementation and Prospects

Review of The New Chemical Weapons Convention: Implementation and Prospects by Michael Bothe, Natalino Ronzitti, and Allan Rosas (1998). This book, a fine-grained, expert-level analysis of several of the most intricate legal and policy issues arising in connection with the 1993 Chemical Weapons Convention (CWC), also serves as a vivid symbol of the coming of age of arms control. For all their strategic significance and political innovation, earlier generations of arms control treaties--bilateral or multilateral, concerning nuclear, chemical, biological, or other weapons--could not plausibly have spawned this type of 600-page exegesis or inspired the painstaking, inch-by-inch explorations presented in its twenty-three chapters. Only with the modem wave of treaty craftsmanship--embodying attempts to incorporate into the document itself reams of detail, scores of implementation procedures, and page after page of minutiae that had traditionally been left to subsequent phases--has the arms control community been able to generate a treaty of sufficient scope and detail to justify this level of dissection. It remains to be seen, however, whether this refinement of treaty-making mechanisms is salutary or detrimental. Will it improve the arms control process by helping to anticipate, and perhaps thereby to avoid, otherwise-latent controversies over verification procedures, dispute-resolution mechanisms, and other operational specifics? Or do the monumental demands of such a process represent a level of hypertrophy that threatens the sustainability of the entire enterprise by so burdening the treaty negotiators that they can only rarely surmount all the challenges thrown their way and bring such an instrument to fruition

Deliberate Extinction: Whether to Destroy the Last Smallpox Virus

The target problem to be examined is smallpox. Specifically, what should we (the United States and the entire world) now do with the last known residual samples of the virus that causes this uniquely horrific disease? The illness itself has virtually disappeared from the catalogue of human afflictions: due to a stunningly imaginative, concerted, and resolute campaign of the World Health Organization (WHO) through the 1970s, no one has contracted this deadly impairment for twenty-five years. Yet the causative element, an insidious scourge known as the variola virus, still remains, housed for now in high-security freezers at the U.S. Centers for Disease Control and Prevention (CDC) in Atlanta, at the comparable Russian facility, denominated Vector, in Siberia, and perhaps at other, clandestine locations as well

Red-Teaming NLW: A Top Ten List of Criticisms About Non-Lethal Weapons

Critics of non-lethal weapons (NL W) have asserted numerous complaints about the concepts, the Department of Defense research and development efforts, and the pace of innovation in the field. These critiques challenge the cost of the programs, their consistency with international law, the adverse public reaction to some of the devices, and the dangers of proliferation, among other points. This article summarizes the various assessments, in form of a top ten list of criticisms, and evaluates their weight. The author concludes that some of these points of objection have merit, but overall, the NLW enterprise is worthy of continuation and even expansion, to meet more fully its ambitious goals

The Jurisprudence of Non-Proliferation: Taking International Law Seriously

This essay is about the power of the international law of nonproliferation- its mounting power in the world today and its properly augmented power in an enlightened future. The article focuses on three primary areas in which international law may play a greater role than is commonly appreciated in affecting the behavior of potential proliferators, their suppliers, and their resolute opponents. The three topics-areas in which the essay pleads for law to be taken even more seriously, and by a wider audience of governments and the international public-are: (a) treaties (especially the provisions of those treaties that commit the parties to pursue further incremental measures of disarmament); (b) customary international law (especially those aspects of behaviorbased jurisprudence which provide unwritten, but nevertheless binding, constraints upon the preparation for and conduct of state violence); and (c) disarmament institutions (especially those novel multilateral organizations that have recently sprung up to play a variety of fact-finding, confidence-building, and dispute-resolution functions). In all of this, the core notion is the suggestion that international law works, and that it would work even better if more people would notice it and come to understand how lawfulness advances their own self-interest

How Do We Get Rid of These Things? Dismantling Excess Weapons While Protecting the Environment

The startling successes of contemporary international arms control negotiations call to mind the old aphorism that one should be careful about what one wishes for, because the wish just might come true. Today, disarmament diplomacy has wrought unprecedented triumphs across a wide range of global bargaining issues, producing a series of watershed treaties that offer spectacular new advantages for the security of the United States and for the prospect of enduring world peace. At the same time, however, these unanticipated negotiation breakthroughs have themselves generated unforeseen implementation problems, spawning a host of novel difficulties for which the traditional tools and methods of arms control are ill-prepared or inappropriate. This Article examines one such difficulty: the potential legal and political conflict posed when a dramatic and crucial new arms control agreement, the 1993 Chemical Weapons Convention (CWC), confronts the equally fundamental and pressing dictates of national environmental protection policy. In short, the CWC will mandate the peaceful dismantling of massive national arsenals of now obsolete, but still exceptionally lethal chemical weapons (CW) agents, armaments, and facilities-and the destruction must be accomplished relatively promptly, reliably, and under the supervision of international inspectors. In the United States, however, long-standing environmental legislation, starting with the National Environmental Policy Act of 1969 (NEPA) and continuing through a sequence of resource-specific antipollution enactments, mandates punctilious adherence to procedural safeguards (such as the preparation of disclosive Environmental Impact Statements) and compliance with stringent national and local substantive standards on emissions, hazardous wastes, community participation, and safety