International Negotiation 18 Post-Agreement Negotiations in the Comprehensive Nuclear-Test-Ban Treaty Regime

© Koninklijke Brill NV, Leiden, 2013 DOI: 10.1163/15718069-12341261

International Negotiation 18 (2013) 357-378 brill.com/iner

Post-Agreement Negotiations in the Comprehensive Nuclear-Test-Ban Treaty Regime

Mordechai (Moti) Melamud1

11 Pninit St., Lehavim 85338, Israel (E-mail: [email protected])

Received 17 July 2013; accepted 2 September 2013

AbstractWhen considering the concept of post-agreement negotiations (PAN), the CTBT presents a particularly interesting case, because of its elusive status caused by the unusually long time lag between the treaty’s adoption in 1996 and its still unattained entry into force. For almost two decades, negotiations on key elements have been ongoing in the Preparatory Commission (PrepCom) in preparation for entry-into-force as required by the treaty. This article explores the challenges of PAN in the framework of the Prep-Com and its place in the CTBT regime evolution. Using four factors in regime development – adjustment, maintenance, cybernetics and exogenous factors – the work of the PrepCom concerning verification is analyzed. Technical and political issues are described as examples from the PrepCom’s work since the opening of the CTBT for signature illustrating regime building through post agreement negotiations.

KeywordsComprehensive Nuclear Test Ban (CTBT); Preparatory Commission (PrepCom); regime evolution; post-agreement negotiation; entry into force

The Comprehensive Nuclear Test Ban Treaty (CTBT) is the latest global build-ing block of the nuclear non-proliferation regime.2 Its aim is to abolish nuclear test explosions, thus preventing both the further-development of new nuclear weapons by both those states which have them (vertical proliferation) and those that do not (horizontal proliferation). Despite the CTBT having been on the global agenda for more than three decades, almost since the beginning of the nuclear age, political conditions were not ripe for actual negotiations until the mid-1990s (Melamud et al. 2014). Formal negotiations took place from 1994 to 1996, at which time the treaty opened for signature; the CTBT has not yet entered into force due to a condition stipulating that a specific list of states must ratify before this can be achieved (Article XIV, ¶1). A Preparatory

1) Mordechai (Moti) Melamud is a retiree of the Provisional Technical Secretariat of the Comprehensive Test-Ban Treaty Organization (CTBTO). He is an associate member of the Steering Committee of the Processes of International Negotiations (PIN) group, Clingendael Institute, The Hague. 2) The author would like to thank Aviv Melamud, Peace Research Institute Frankfurt, for careful reading of the text and for many valuable comments.

mailto:[email protected]

358 M. Melamud / International Negotiation 18 (2013) 357-378

Commission (PrepCom) has nonetheless hard at work ever since 1997, preparing for entry into force (EIF). In considering the concept of post-agreement nego-tiations (PAN), the CTBT presents a particularly interesting case because of its elusive status caused by the unusual long period between the agreement adoption in 1996 and the delayed entry into force. While formal negotiations on the treaty were relatively brief (for a complex multilateral agreement dealing with a highly controversial topic), negotiations on key elements of the CTBT are ongoing for almost two decades since the treaty’s conclusion.

This article explores the challenges of post-agreement negotiations in the framework of the CTBT since its opening for signature. Using the four stages of regime development, as identified by Zartman (2003), the work of the Com-prehensive Test Ban Treaty Organization’s (CTBTO) Preparatory Commis-sion is analyzed as a process of post-agreement negotiation. Examples from the Preparatory Commission’s work since the opening of the CTBT for signature are described, illustrating regime building through post-agreement negotiations (Zartman & Melamud 2014).

Circumventing Consensus: Concluding Formal Negotiations

Once formal negotiations started in 1994, the participating states in the Confer-ence on Disarmament (CD) came with their own agendas and formulas, differ-ing in many details (Zartman & Lendorfer 2014). These differences manifested themselves in the rolling text of the treaty during the negotiations, which as late as 1996 still included many bracketed text elements referring to outstanding issues on which the delegations were divided.

Since the CD functions under a consensus rule, it was clear to the chairper-son that it would not be possible to reach an agreed text to be presented to the United Nations General Assembly (UNGA) by the end of 1996, the deadline set in Resolution 50/65 (9 January 1996) mandating the negotiations. The chair therefore prepared during 1996 a “chairman’s text” in parallel to the discussions on the rolling text. Given the limited ability to bridge the positions of delega-tions, this text represented, according to the chair, a “convergence at its peak” (Ramaker 2014). Yet this “peak” was not adequate to pass a consensus agree-ment in the CD. With a deadline set by the negotiation mandate to reach agree-ment by the end of 1996, Australia decided to introduce the latest “chairman’s text” to the UNGA in which majority, not consensus, is the rule so as to avoid the scramble for full agreement on the treaty’s text within the CD. This non- consensus “ chairman’s text” was approved by the General Assembly by a majority and became the CTBT on 10 September 1996.3

3) The resolution is UNGA document A/RES/50/245. The treaty’s full text can be found at http://www.ctbto.org/the-treaty/treaty-text/.

http://www.ctbto.org/the-treaty/treaty-text/

http://www.ctbto.org/the-treaty/treaty-text/

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This move circumvented both the political disagreements and the technical discrepancies. The “convergence” process used by the chair to create a non-con-sensual text by avoiding the bracketed text created technical loopholes as well as lacunas that had to be overcome in the process of implementation (Haak 2014). It is therefore not surprising that the existing text of the CTBT presents technical uncertainties as well as politically non-consensual provisions, which greatly affect the implementation of the treaty.

Regime Evolution: Establishing the Arena for Post-Agreement Negotiations

With the treaty text as approved by the UNGA, the CTBT regime moved from its pre-agreement stage to its post-agreement stage, creating ample opportunities for negotiations. The first order of business was the establishment of the verification regime as detailed in the treaty, which had to be prepared and set-up before EIF.

The CTBT takes for granted the existence of a verification regime based on an extended International Monitoring System that includes 321 sensor stations worldwide, elaborate communication system, procedures, an inspectorate body, and more. According to the treaty’s text, it is required that “At entry into force of this Treaty, the verification regime shall be capable of meeting the verification requirements of this Treaty” (Article IV, ¶1). But all these verification tools were nonexistent when the treaty was adopted by the UNGA and had to be created as soon as possible during the pre-EIF stage.

Post-agreement negotiations occur because the parties to the agreement still dispute the rights and obligations that the CTBT confers, while maintaining a common interest in maintaining the agreement (Jonsson & Tallberg 1998). In the case of the CTBT, these disputes surfaced as part of the preparation work to be done by the Preparatory Commission after adoption of the treaty but before EIF of the treaty. In order to not appear as if renegotiating the treaty, the term ‘negotiation’ is not used regarding the process in the Policy Making Organs (PMO) of the CTBTO. Although the text of reports of the PMO organs refer to different ‘views’ presented by delegations on many issues and shows lengthy discussions on many issues, it refrains from referring to the PMO discussions as ‘negotiation’ following statements by some delegations arguing that “we do not renegotiate the treaty.” The term ‘negotiation’ is used only when referring to contracting procedures between the Provisional Technical Secretariat (PTS) and other entities such as states signatories, other organizations, contractors, and con-sultants., The reports use the term ‘elaboration’ when referring to the PMO work, especially in the case of developing the different operations manuals. Nonetheless, watching the process in the PMO and drawing on the “Identity of Indiscernibles” principle, it is clear that the process is definitely a negotiation process.4 These

4) Leibnitz’s Law: Two things that share all their properties are not distinct but identical; in other words: “If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.”


negotiations exhibit the factors and characteristics of post-agreement negotia-tions as presented by Spector and Zartman (2003a).

CTBT as a Special PAN Case

According to literature, post-agreement negotiations usually take place during the implementation phase of a treaty, after its entry into force, and pertain to the terms and obligations of the state parties according to the agreement (Jonsson & Tallberg 1998; Spector & Zartman 2003a). Because of the CTBT’s special conditional EIF clause and considering the political and strategic environment – which make for a long pre-EIF period – the post-agreement negotiations for this treaty are unusual because they are conducted in an interim state: before EIF but already during a phase of implementation in preparation for EIF.

According to Article XIV (¶1) of the CTBT, EIF will occur after all 44 states named in Annex 2 to the treaty have ratified the treaty. Annex 2 lists all state members of the Conference on Disarmament, as of 18 June 1996, that formally participated in the work of the 1996 session of the Conference and were in pos-session of nuclear power reactors or nuclear research reactors at the time of the treaty’s negotiations according to the latest IAEA reports. As of today, eight states out of these 44 have not yet ratified: China, USA, Egypt, Israel, Iran, India, Paki-stan, and North Korea, where the last three have not yet signed the treaty. As a result of this condition EIF cannot happen until the last of these eight states ratify the treaty; changing this article requires an amendment of the treaty, which can be applied only after EIF according to Article VII.

This requirement actually awards veto power over EIF of the treaty to each of these states; this requirement is unique for an agreement. The Chemical Weapons Convention (CWC), for example, was opened for signature in January 1993. It provided that the convention will enter into force after ratification by any 65 states, but in no case earlier than two years after its opening for signature (CWC Convention 1992: Article XXI). After the 65th country ratified the CWC, it entered into force on 29 April 1997. A similar clause of two year minimum is also included the CTBT (Article XIV, ¶1), which was opened for signature in 1996.

Three particular characteristics of this unusual post-agreement phase are mean-ingful for understanding the CTBT’s dynamics since they pave the way for pos-sible difficulties in the post-agreement phase in the PrepCom. The first issue is the inconspicuous horizon for EIF, which means that there is no set limit for the period of the PAN. This creates problems, as will be shown below, resulting from the impossibility of putting into action, not even partial action, the verification system being built by the PrepCom for lack of the required legal infrastructure and will only be available to start operation after EIF. Second, because the treaty text is already concluded and despite the abundance of essential aspects related


to treaty implementation that require negotiation, no modification of the treaty text can be conducted; at present, these obstacles have to be circumvented by spe-cial agreements, as demonstrated by the example of station locations (discussed below).5 Third, as a result of the previous characteristics and although the treaty verification regime is being implemented, compliance (or non-compliance) can-not in fact be ascertained and scrutinized since the treaty is not yet in force.

In addition, as described above, there is the fact that the treaty was adopted by majority rule in the UNGA rather than by the CD as a result of infeasibility of reaching consensus in the CD. This has the effect of extending the negotia-tions in the PrepCom, especially on issues that were not in agreement during the pre-agreement phase because of diverse views of states and on such issues that were not negotiated to the last detail when it was brought up for vote in the UN. Another impediment, in the CTBT case, that may be brought up by any of three states (India, Pakistan, and North-Korea) is the renegotiations on some issues that were agreed by consensus during the PrepCom phase, when and if these three states sign the treaty because, not being signatories, they did not participate in the PrepCom negotiations.

A PrepCom phase is usual after treaty adoption in the UN system (Gargiulo 1998: 154); during this stage, the preparations for the meeting of the first Con-ference of States Parties occur. These preparations include mostly drafting docu-ments required for the implementation phase and establishing some infrastructure elements. For example, prior to the entry into force of the CWC in April 1997, a preparatory commission worked toward the establishment of the Organization for the Prohibition of Chemical Weapons (OPCW) and laid the groundwork for the Convention’s implementation. Documents from this time period, 1993–1997, are grouped together as the “Preparatory Commission Series.”6 Another major undertaking of this PrepCom was the training of 200 inspectors to be staff of the organization. To prepare for the entry into force of the CWC Convention and for the implementation of its verification regime, a Preparatory Commission (OPCW PrepCom) was established in 1993 immediately after its opening for signature. Its mission was to lay the groundwork for the establishment of the per-manent implementing body for the CWC, the OPCW. The OPCW PrepCom was housed in The Hague, which became the host city of the OPCW as well. In addition to preparing the Convention’s implementation guidance, another of the OPCW PrepCom’s most important tasks was training 200 inspectors to conduct

5) According to Article VII of the treaty, amendments and changes to the treaty and protocol can be applied only after entry into force.6) The Preparatory Commission Series documents can be found at http://www.opcw.org/documents-reports/preparatory-commission/.


inspections worldwide of both military and industrial sites in order to verify com-pliance with the convention.

For the CTBT, the PAN actually is built into the treaty. Unlike other cases where the establishment of a PrepCom is generally a practical issue dealt with after the treaty opens for signatures, it is taken for granted and referred to in the CTBT text. Some instruction to PrepCom actually appear in the treaty text (for example Article II, ¶10) and tasks are mentioned, which are the basis for the reso-lution establishing the PrepCom (for example Article II, ¶26(h)). PAN is implicit in these references to the PrepCom but, as explained elsewhere in this article, the treaty does not use the term ‘negotiation,’ but refers to development work and agreements to be reached; instructing a multinational political body to agree on some issues anticipates negotiations to be conducted.

Compared to the usual tasks of a PrepCom, which are mostly office work led by the PrepCom policy making organs and a preparatory secretariat and are cen-tered in the host city, the CTBT presented a unique situation for the PrepCom by presenting it with the complex work of establishing an International Monitor-ing System (IMS), consisting of 321 measuring stations around the globe; the unique International Data Center (IDC) in Vienna, including the global com-munication infrastructure to connect the IDC to the measuring stations; and the development of an on-site inspection regime (Melamud, in this volume). This required not only a sophisticated and elaborate decision making process by the PrepCom, but more work than usual by the secretariat as well.

Faced with the task of building the CTBT verification regime under the con-straints described above, the first step taken by the states signatories (134 at the time) was the establishment of the Preparatory Commission. The states signato-ries, convening in New York soon after the adoption of the treaty by the UNGA and its opening for signature, agreed on establishing a commission to prepare for EIF. They accepted the “Resolution establishing the Preparatory Commis-sion for the Comprehensive Nuclear Test-Ban Treaty Organization” (CTBTO n.d.: CTBT/MSS/RES/1) on 19 November 1996, which tasks the Commission to “undertake all necessary preparations to ensure the operationalization of the CTBT’s verification regime at entry into force.”

This resolution includes an Annex, “Text on the Establishment of a Prepa-ratory Commission for the Comprehensive Nuclear Test-Ban Treaty Orga-nization,” as well as an Appendix, “Indicative list of verification tasks of the Preparatory Commission.” This list, as its text says, is an “indicative list . . . illus-trative of the verification-related tasks the Preparatory Commission might need to undertake in implementing the relevant provisions of the Treaty and of the resolution establishing the Commission.” Any task on this list refers to a relevant provision in the treaty and is either a direct implementation of it or an expansion as required and expected based on the treaty text. Although it is already quite an extensive list and includes complex assignments, it was


found later that many tasks are even more intricate than expected and that more assignments were needed.

Establishing the CTBT Verification Regime: The Work of the PrepCom

“When the euphoria of regime formation subsides, the difficult work of imple-menting the negotiated agreement begins” (Spector 2003: 53). Shortly after the decisions taken in New York, the Preparatory Commission (PrepCom) con-vened in Vienna, which is the permanent location of the CTBTO according to the treaty. The policy making organs of the CTBTO had an intensive working year during that initial phase, meeting for four rigorous sessions between March 1997 and January 1998. This signaled entry into the post-agreement negotia-tion period. The Commission achieved in this time substantial progress in mov-ing from the functional description of the verification regime, as presented in the treaty, to a technical description. Furthermore, it distributed tasks for the PMO and the Provisional Technical Secretariat (PTS) that has been established in accordance with the resolution establishing the PrepCom. This initial analysis of tasks covered development of concepts and procedures as well as procurement of equipment and the construction of the stations that make up the worldwide International Monitoring System.

The list of tasks, according to the text on the establishment of the PrepCom, looked like a major undertaking that may take a few years to implement, but at the time optimism prevailed and it was assumed that EIF (political realization), along with the complete establishment of the verification regime (technical realization), would be achieved within a few years. The treaty (Article XIV, ¶1) provides that in no case would entry into force occur earlier than two years after its opening for signature. These two years were assumed to be enough time for the states signatories to establish a Preparatory Commission, establish the verification regime, develop detailed implementing procedures, and to provide signatory states with sufficient time to establish domestic legislation and ratify the treaty. But by September 1998, neither the political realization nor the technical realization were fulfilled.

In 1999, three years after the opening for signature of the treaty, it was estimated in one of the Commission’s reports that the overall task of the PrepCom, namely to deliver the verification systems, may be achieved within three years. The report of the tenth session of Working Group B indicated, “If we maintain the present pace of the build-up of the International Monitoring System and communication systems, we could arrive at completion within the next three years.”

However, soon after this statement was made, in September of the same year, the ratification of the CTBT was rejected by the U.S. Senate. Shortly after President Bush came into office in 2001, it became clear that there is no pros-pect for U.S. ratification in the near future. U.S. rejection of the CTBT, it was


understood, would delay ratifications by other Annex 2 states whose ratification is needed for EIF of the Treaty.7 The post agreement phase was thus extended indefinitely. The anticipation of a prompt conclusion of the verification regime did not materialize, while EIF is still pending. Meanwhile the signatory states continue the post-agreement negotiations in the PMO, working to build up the verification regime, and struggling with both planned and unforeseen challenges. These challenges comprise budgetary as well as technical issues. Budgetary issues relate to the U.S. move, resulting in a decrease in U.S. payments of dues, and to the decision of a zero real growth budget. It became apparent that regime buildup was more complicated than expected.

Post-Agreement Negotiations: The Process of CTBT Regime Formation

Four factors are defined in the process of regime formation by Zartman (2003: 26): system maintenance, adjustment, cybernetics, and exogenous factors. These fac-tors are simultaneously at work in the process.

The maintenance factor refers to the inertial tendency of a regime to persist its structure at any moment as constructed. This factor is hardly applicable to the CTBT regime, which has not reached yet its full routine state as it is still suspended between reaching the agreement and its entry into force.

The adjustment factor represents the endeavor by the parties to the regime of adjusting the basic formula and the implementation of the regime’s initial instruments, as provided by the CTBT in this case. This is therefore the stage in which the treaty provisions are realigned in order to fit realities and allow actual implementations.

The cybernetics factor relates to the recursive nature of the regime building (Zartman 2003: 29) tying domestic processes in state parties to international governance. Regime development at some stages returns to the domestic scene of participating states for a round of discussions and negotia-tions among national agencies, either governmental or non-governmental (NGO).

Exogenous effects include unforeseen challenges, natural or man-made, that require renegotiation of the regime procedures and implementation.

These factors can be discerned in the case of the CTBT post-agreement stage, which is still ongoing. The negotiations in the CTBT on different implementa-tion matters during this stage will be demonstrated below.

The Adjustment Factor

The initial and main activity of the PrepCom immediately after opening for sig-nature of the treaty was adjustment of the treaty instruments to allow for practical build-up of the verification regime and its operation. Indeed, the treaty’s text included a detailed description of the verification regime to be established, yet when faced with actual implementations, the parties realized that some amendments

7) China ceased its national ratification process as a result of the U.S. statement.


would be required. Since the verification regime was described within the text of the Treaty, which the PrepCom was not under liberty to amend, a solution had to be found when facing a problem. Additionally, the treaty provisions stated in many places that details of procedures shall be included in manuals to be devel-oped for the different regime elements at a later stage after opening of the treaty for signature.

A potent example is the selection of locations for the installation of stations of the International Monitoring System. These locations are detailed in a table in Annex 1 to the Protocol of the Treaty, including the type of station, the host state, and the geographical coordinates, as agreed during the negotiation on the CTBT in the CD. In the process of surveying the station locations (some of them exist-ing stations) during the phase of post-agreement implementation, it was found that coordinates needed to be changed for a variety of reasons, such as a seismic station coordinates that were set offshore, or the lack of infrastructure. This created a legal challenge which the PrepCom had to find a way out of – it had to proceed with implementation according to the Treaty and could not amend the Treaty’s guidelines despite technical contradictions in practical implementation.

The PrepCom reached a decision that, for practical reasons, station location changes up to 100 km from original locations (as specified in the treaty’s text) may be applied, while approval is deferred to the first Conference of States Parties after EIF. More complicated cases emerged when a change in location, greater than 100 km to the territory (and therefore responsibility) of another state signa-tory than is indicated in the treaty, was required (CTBTO n.d.: CTBT/PC-27/2/Annex II, ¶¶ 40–41). For such cases, the PrepCom adopted a recommendation for informal consultations for negotiating a possible procedure (CTBTO n.d.: CTBT/PC-34/2, ¶ 12). These challenges were solved in the same way, assuming approval by the first Conference of States Parties after EIF; but the unanswered question is whether such a move would be an amendment to the treaty.

The operationalization of the International Monitoring System and the International Data Center brought to the fore the problem of screening param-eters and their use by the International Data Center. These parameters were initially defined in Annex 2 of the Protocol to the CTBT, for the purpose of identifying those events considered to be consistent with natural phenomena or non-nuclear, man-made phenomena from the multitude of events detected by the International Monitoring System, thus locating events that potentially may be nuclear explosions (Protocol to the Treaty, Part I, ¶ 18). This procedure cre-ates shorter reports that are then distributed to all States Parties in accordance with treaty instructions. It should be noted that the CTBT empowers only States Parties to submit a request for clarification about a suspicious event or subsequently a request for an on-site inspection; these can be based either on the International Data Center reporting or on the party’s own national techni-cal means.


The screening scheme enables the distinction between (up to a certain limit) natural (earthquakes) and anthropogenic incidents (explosions). Seismic mea-surements cannot, however, discern conventional from nuclear explosions, neces-sitating their combination with radiological measurements to identify a nuclear test. Radiological measurements include radioactive particle analysis and noble gas measurements; for the first, the screening scheme was well established as soon as the post-agreement negotiations were under way. In contrast, noble gas mea-surements independently might hint at the nuclear explosion origin of a sample if profoundly interpreted. It is therefore very important for states to make sure that the International Data Center reports are accurate and objective, especially for those states that do not possess calculating power to perform such calculations themselves. However, the noble gas measurement technology was put under test operation in the field only during the implementation phase of the treaty. A screening scheme is required to identify the nuclear or conventional origin of a noble gas observation. Such a scheme still needs to be negotiated. Different groups of states will tend to have different preferences on how definite or com-plex the categorization scheme should be, based on their calculation power (Kal-inowski & Hebel 2014). A decision on the definite option would put the great number of states that fully rely on the analysis by the International Data Center at a disadvantage. Yet agreeing on the more refined scheme will necessarily mean more difficult negotiations on it. This is a clear example of how issues that are left for the post-negotiations phase are suddenly revealed as posing great difficulties for negotiations whether because they were essentiality not recognized or because their implementation was not fully understood during the formal negotiations.

One clear result of the short negotiation phase of the treaty is the fact that its text focuses mainly on principles and general provisions, while many practical details were left for the post-agreement phase. This is reflected in several (at least 26) places in the treaty text where it says “. . . shall be elaborated in the relevant Operational Manuals . . .” (or similar). The tasks of the PrepCom as defined in the Treaty (Article II, ¶ 44) and in the Resolution Establishing the Commission (CTBTO n.d.: CTBT/MSS/RES/1, ¶¶ 14(b) and 15) include the preparation of these Manuals before EIF.

Of the few Operational Manuals the PrepCom was tasked with to negotiate, the on-site inspection manual is the most complicated and longest negotiated mainly because of the intrusive characteristic of on-site inspections. A draft roll-ing text has been negotiated since the beginning of the post-agreement phase. This draft includes many cases of bracketed text, attesting to the differing views on this most intrusive element of the verification regime. This is still the situ-ation with a Model Text prepared by the task leader for manual development; it has been suggested that the relevancy of this Model Text be tested during a major on-site inspection exercise scheduled for 2014. Working Group B, the PrepCom’s policy organ which is tasked with negotiating this manual, promised


that this document will be ready by its 40th session and “. . . considers that the [Provisional Technical Secretariat] (PTS) should have flexibility to decide how to handle the limited number of brackets in the Model Text that may bear on the conduct of the exercise . . .” (CTBTO n.d.: CTBT/PC-39/WGB/1, ¶¶ 17,18). This situation, after more than a decade of negotiating the Manual, reflects the lack of agreement and the contradictory views on many aspects of such an opera-tion, which is one of the four elements of the verification regime of the treaty (Article IV, ¶ 1).

The Maintenance Factor

Once the verification regime began coming together, and monitoring stations were built and set-up in accordance with the Treaty’s guidelines and following some adjustments, as required by the realities of implementation, upkeep was needed. With stations up-and-running and transmitting information to the Inter-national Data Center, where the analyses were to be undertaken according to the verification scheme, system maintenance became necessary. The large inputs of data had to be absorbed and the required analyses produced from it.

Maintenance here means the actual hardware preservation and supervision and computing systems upkeep at the stations worldwide, as well as at the Interna-tional Data Center. This was required as a result of wear and obsolescence of both equipment and software. Regime maintenance came up with the need for budget growth, both for the upkeep of stations and data analysis (software and staff) and for accelerating the rate of stations build-up.

As a result, budget negotiations permeated all issues of adjustment and main-tenance. Issues of funding slowed down the implementation of the PrepCom’s tasks in preparation of the verification regime by slowing station construction and certification and by slow development of procedures, such as the on-site inspection techniques and inspectorate build-up. This was also accompanied by a limit set on the number of staff in the PTS that also caused a slowdown in activ-ity expansion, considered necessary as the tasks of the PTS developed in line with regime development progress.

The PrepCom’s budget took a blow with the decision by the Bush adminis-tration, in accordance with the administration’s general rejection of the CTBT, to reduce its payments of dues to the PrepCom and decrease the U.S. national laboratories’ CTBT related budget.8 This was a substantial budgetary blow to the PrepCom, since the U.S. had been the largest contributor to the Commis-sion’s budget.

Soon thereafter, a reduction of the growth of the PrepCom’s annual budget was demanded in 2002, with some states requesting measures to alleviate the

8) U.S. national laboratories were very active in CTBT technologies research and development; but dur-ing the eight years of the Bush administration, all CTBT activities were cut from their programs.


financial burden of signatories (CTBTO n.d.: CTBT/PC-16/1, ¶ 26); states expressed positions of adopting only a small growth in the 2003 budget, rep-resenting 0.3% real growth over the 2002 budget. Since no decision could be agreed on the matter, the Chairperson of the PrepCom stated his view that the Secretariat should do its utmost to keep the 2003 budget at 2002 budget levels. The budgetary pressure continued as the Commission reached a consensus on zero real growth of the annual budget. This, of course, presented difficulties for implementing the PrepCom’s tasks, and some states, objecting the practice of zero real growth, began bypassing it by contributing extra budgetary funds to specific under-budgeted activities of the PTS.

The Cybernetics Factor

The U.S. senate rejection of the ratification of the CTBT is an interesting exam-ple of the cybernetics factor. U.S. President Clinton signed the treaty after a long period, in which his administration (executive branch) was involved in inter-national negotiations in the CD for adoption of the CTBT. In order to ratify, the issue has to return to the domestic scene where the Senate has to approve it. At this stage, the issue becomes a domestic issue, pending approval by mem-bers of the Senate who represent their political party, state, and/or special inter-est groups. The final decision depends on the balance between the two parties (Democrat and Republican) and the influence the president has on members of the Senate. This called for intensive negotiations on the domestic scene between the administration and the Senate and the involvement of NGOs that exerted pressure for ratification (Kimball 2013). This domestic process created a nega-tive feedback to the development of the CTBT regime on the international level by causing further delay in the treaty’s entry into force, since the U.S. is an Annex 2 state whose ratification is required for entry into force. Being a major international power, this decision by the U.S. reflects on the indecision of the other states, named in Annex 2, whose ratification is required for entry into force. This situation on the U.S. domestic level, compounded with the other domestic issue mentioned above (Bush administration partial withdrawal from the PrepCom activities), had major consequences on the regime development progress by slowing it down and delaying the entry into force.

During the post-agreement stage, many issues debated in the PMO may be left open without a conclusion or decision at the end of a session; debates on different concepts and issues extended between and beyond sessions. In such cases delega-tions use the inter-sessional periods for discussions on the national level in their capitals where negotiations take place between different government agencies.

Examples of such two-level processes can be seen in the development of Concept of Operations (CONOPS) for the different elements of the CTBT verification regime, especially the on-site inspection CONOPS; this concept of operations


is necessary in order to describe the requirement from a complex system such as the CTBT on-site inspection, to be used later as the source for development of the operational manual.9 The development of the on-site inspection CONOPS started with the second session of Working Group B (WGB) and continued through the eighth session in parallel with the development of the Operational Manual for On-Site Inspection, which was tasked as part of the decision estab-lishing the Commission.10 In the eighth session report (CTBTO n.d.: CTBT/WGB-8/1), WGB stated that it “. . . agrees to focus on the development of the Operational Manual,” and the concept of operation, although only a draft at that time, was abandoned. As part of the negotiations during this period, national papers have been submitted by a few states, presenting different national views and concepts that were developed by domestic agencies on how an inspection should proceed and who is responsible for what part of it. Domestic agencies in this case encompassed different agencies on the national scene that will have to handle an on-site inspection on national territory in case it will be requested and approved in the future; these may include foreign ministry, tax authorities, defense ministry, homeland security, etc. These papers had to be consolidated first into the concept and then into the Operational Manual. The resulting text (termed ‘draft rolling text’) included a multitude of brackets resulting from con-trasting and mismatching views on the details of conducting an on-site inspection that were not resolved during the discontinued phase of the CONOPS develop-ment. Many of these brackets still exist in the on-site inspection Operational Manual draft.

Another example of the cybernetics factor is the negotiation on the mission and tasks of an on-site inspection operations center to operate in the Vienna head-quarters while an inspection is being conducted on the territory of a state party. Initially the debate centered on whether such a center should exist. Opponents of the concept presented their view that, according to treaty provisions, the Inspec-tion Team is supposed to do all the work in the field. Proponents of the center, although in agreement with that concept, used practical reasoning based on the list of tasks of the Technical Secretariat in general and the Director General spe-cifically, as detailed in the treaty, to show that an organized and defined effort at the headquarters was required. This debate is evident in the WGB reports through the development of the term used to describe this center. Views differed

9) The CONOPS is a “requirements” document describing the characteristics of a proposed system from the viewpoint of an individual who will use that system. It is used to communicate the quantitative and qualitative system characteristics to all stakeholders. CONOPS are widely used in the military, govern-mental services, and other fields. See also http://www.incose.org/sfbac/2007events/070612CONOPS_Brief.pdf.10) Working Group B is the PrepCom’s PMO in which all technical verification issues of treaty imple-mentation are discussed. Another PMO is Working Group A, which handles administrative and budget-ary matters. Suggestions by the working groups have to be approved by the PrepCom.

http://www.incose.org/sfbac/2007events/070612CONOPS_Brief.pdf

http://www.incose.org/sfbac/2007events/070612CONOPS_Brief.pdf


between a logistical support center to actual operational center that is in charge of planning and analyzing Inspection Team actions and collected data. Finally in late 1998, a report stated that the Working Group B “agreed that the name of the Operational Centre should be changed to Operations Support Centre to empha-size its central mission during OSI.” This term has been used since then and the mission of the OSI Operations Support Centre has been negotiated as part of the OSI Operations Manual. During these discussions, delegations presented national views and sometimes national papers to clarify and support their point of view. These presentations required development and negotiation between domestic national agencies until a consensus was achieved on the international level in the Commission.

Another typical cybernetics effect on post-agreement negotiations in many other regimes are the national-level PAN involving changes to national laws, regulations, and institutions to allow for implementation of new standards set by the treaty. This type of national level PAN was also expected by the CTBT (Treaty, Article III), which includes an outline of the requirements to be fulfilled by a State Party including the set-up of an official National Authority as a point of contact with the Commission and other state parties. In the special case of the CTBT, where the entry into force of the treaty is still pending, most states are still postpon-ing the implementation of most of these requirements (except for nominating a National Authority), avoiding putting-in too much effort where the scene is not yet sufficiently clear. Meanwhile, national-level efforts are dedicated to reaching agreements among the different relevant national agencies, whose work may be related to implementation of the treaty in the future and for discussions on tech-nical and legal issues that are discussed in the PMOs of the Commission. These issues may relate to future implementation of treaty provisions or to the current operation and management of the PrepCom in preparation for EIF. Results of these national level negotiations are fed into the international level through the national delegation and its interventions in the PMO meetings. This cybernetic process is bi-directional as national level study of the required preparations for EIF are being assisted by the PTS through regional or specific state conferences and courses covering relevant legal and technical requirements.

The Exogenous Factor

Certain events detracted from the routine work of the PMO and required rethink-ing about and negotiation on a realignment of processes to handle them. In some cases the PMO had to change mode from implementation negotiations to expan-sion negotiations, by which expansion of the initial understanding of the treaty formula was required (Spector 2003: 60). This was caused by major events that provoked rethinking of the verification system implementation itself, beyond a simple handling of a situation.


One such event was the tsunami that hit Indonesian shores on 26 December 2004 and triggered negotiations in Working Group B on a possible modifica-tion of handling of data collected by the CTBTO and its analysis and reporting so as to assist tsunami warning centers around the world.11 The two issues that were debated were the budgetary aspect (possible additional operation cost) and the change from the ‘pure’ arms control verification mode of work to a broader scope of responsibility. The debate that started in the PMO in March 2004 con-tinued until the modification was approved in a later session of the PrepCom in November 2006 and implemented in the monitoring system in cooperation with tsunami warning centers around the world. Thus the CTBT’s verification system is employed beyond its original mandate and purpose.

The debate about the provision of data for emergency response was another example of a similar debate conducted previously in the PrepCom about the pro-vision of data from the international data center for scientific studies (Dahlman et al. 2009: 218). The discussion regarding confidentiality issues had already started by 1998. According to treaty provisions, data are to be distributed only to states parties through their officially nominated national authorities. (Treaty, Article IV, ¶ 18 and Protocol, Part I, ¶ 20). A request by the International Seis-mological Centre in 2000 to access data directly from the International Data Center initiated a debate about the provision of data to other entities except national authorities, which was not anticipated in drafting the treaty text.

Objection voiced by some states was based on the fact that the verification sys-tem has been established and funded for arms control purposes and any deviation will mean that confidential data belonging to states parties may reach non-signa-tories in contradiction to treaty provisions. Support by other states was based on the treaty provision that “The provisions of this Treaty shall not be interpreted as restricting the international exchange of data for scientific purposes” (Article IV, ¶ 10). The possible cost of such distribution of data was also a factor in the debate, but was found to be marginal and acceptable. Political pressures and tech-nical explanations succeeded in minimizing the opposition, and as an exceptional case, the PMO agreed in 2003 to the request from the International Seismologi-cal Centre to receive, but not to redistribute, on a regular basis seismic data with some limitations (CTBTO n.d.: CTBT/PC-21/1/Annex II, ¶ 17). This approach was utilized only for seismic data and not for the other types, especially the radio-nuclide data, but opened a lengthy discussion in the PMO about procedures for distribution of data to international organizations (CTBTO n.d.: CTBT/PC-24/3/Annex II, ¶ 19(2)). This example also exhibits the regime maintenance factor in action through the opposition to change in the regime.

11) This modification of the CTBT can be found in a section titled “Data and Products for Emergency Response” in CTBT/PC-24/1, ¶ 5 and CTBT/PC-24/3/Annex II.


Other exogenous effects were the result of a major natural event such as the destruction of expensive IMS stations by a tsunami in 2011.12 This event required reconstruction and, therefore, logistics and funding that turned out to be unavail-able through the usual budgeting mechanisms. This activity was marked by the PTS as ‘unfunded’ and required ‘informal consultations’ (aka ‘negotiations’), led by the chairperson of the WGA during intersession period, in order to secure an appropriate funding mechanism (CTBTO n.d.: CTBT/PC-34/2, ¶¶ 11, 12 and 20).

The Fukushima Daiichi nuclear plant accident in Japan provided an inter-esting example of an exogenous effect on regime building. The plant suffered major damage from an earthquake and subsequent tsunami that hit Japan on March 11, 2011 and disabled the reactor systems, leading to releases of radiation (CTBTO 2012). As the radioactive cloud, emitted from the reactor, started to spread with air streams around the globe the CTBTO international data center went into action utilizing the radionuclide measurement stations that are part of the globally spread international monitoring system of the CTBTO. Forward atmospheric transport modeling (ATM) based on weather forecasts was used to predict the dispersion of radioactive particles based on up-to-the- minute stations measurements. Technical lessons were acknowledged and a decision was made to incorporate those into development efforts for the next generation of radio-nuclide measurement systems (CTBTO n.d.: CTBT/PC-39/WGB/1 ¶ 34) to be able to deal with similar events of high levels of radioactivity in the atmosphere that were not foreseen by the original formula for this regime. The other lesson was about overlapping functional areas with other regimes that need attention, as stated by the director of the CTBTO international data center, Lassina Zerbo: “Fukushima taught us how crucially important it is to share information with other international organizations and States Parties”.13

Exogenous effects are also observed through scientific developments that affect the development of the verification regime. As the years stretched and EIF did not occur while the verification regime build-up was taking longer than expected, technical innovations caught up with the defined technical requirements of the treaty. For example, digital cameras replaced film cameras and thus the defini-tions and provisions in the treaty referring to camera and photography for on-site inspections (Protocol to the treaty, Part 2, ¶ 61(e)) were no longer relevant and had to be renegotiated and redefined as part of the on-site inspection Operational Manual development.

On the International Monitoring System scene regarding the infrasound technology, which was almost an obsolete technology in 1996, research and

12) Hydroacoustic and infrasound stations on Juan Fernandez Island (Chile) were damaged as a result of Tsunami in February 2010.13) Referring to the World Health Organization, the International Atomic Agency and the UN Commit-tee on the Effects of Atomic Radiation to name a few relevant organizations.


development had to be conducted in order to achieve treaty requirements of detection. This had to be done with the help of states that possessed this exper-tise. State signatories expertise and specific scientific development related to the CTBT verification regime have also supported other developments such as noble gas stations for the International Monitoring System, portable noble gas detec-tion equipment for on-site inspection, etc.

Post-Agreement Negotiations: How to Implement without a Foreseen EIF

While the PMO were debating and negotiating issues relating to the regime for-mation factors, the PTS was performing the mundane tasks of procurement, con-tracting, building stations and exercising portions of the verification regime, as they were being established. A full-fledged operation of the system at any stage has been voted down because of the view, expressed by some states, that this would be illegal before EIF since not all the legal infrastructure is in place yet and cannot be before EIF.14

While stations of the International Monitoring System were being built and tested, the necessity arose for fully developed guidelines for the provisional opera-tion and maintenance of all stations (CTBTO 2002: CTBT/PC-17/1, ¶ 8). This would allow verification that the system operation, including all its aspects as well as the analysis of events in the International Data Center, could be conducted in accordance to treaty requirements by consensus in the PrepCom. The require-ment was based on the provision as defined in the text on the establishment of the PrepCom (¶14).

Work on such guidelines has continued for a few years but, as noted by some delegations, this provision does not provide for verification of compliance before EIF and has to take into account legal and constitutional requirements in dif-ferent countries (CTBTO n.d.: CTBT/PC-18/1/Annex II, ¶¶ 11,12,13). Del-egations expressed their reservations concerning technical, financial, legal and political aspects that affect the development of the guideline options. Different views were expressed in these discussions and a few National Papers on this topic were introduced. A major legal predicament was identified in the lack of legal framework for dealing with compliance based on the network data before EIF. Consequently, the first system-wide performance test was open for participa-tion of as many stations as possible but did not include the full existing network (CTBTO n.d.: CTBT/PC-22/1/Annex II, ¶ 16), which was acceptable as long as it was not a full-fledged system operation. Such full-fledged test, according to the opponents, may call for compliance judgments that are legally not yet allowed.

14) The mainly lacking infrastructure is the Executive Council before EIF, whose task is to judge non-compliance.


Conflict between Political and Technical Aspects during PAN

Arms control treaties that include a verification regime are based to a large extent on technical foundations and the development of such a treaty by a political body through multilateral negotiation is a complex procedure. Because the treaty language is agreed upon by consensus in a multilateral negotiation pro-cess, the description and definition of the structure, operations, and technology of the verification regime represent the least common denominator of the views of the participating states. Thus, the resulting text is vague and ambiguous in many parts and is not structured according to good technical design principles (Kyri-akopoulos 2014). These ambiguities are present in the text that is consequently the basis for the PAN during the post-agreement implementation phase and are a major cause for issues that require solutions through negotiation in the PrepCom (for example, see Kalinowski and Hebel 2014).

It must be recognized that, starting in the 1950s, the extent of work invested in developing the basic technical principles and methods of the monitoring system (which is a major part of the verification regime) for a CTBT made it possible for the CD to arrive at a CTBT text in the 1990s in relatively short time (Corden 2014; Dahlman et al. 2009: 78). This is relevant unless there is a political deci-sion to finalize a treaty without a monitoring system (such as the Biological and Toxin Weapons Convention, Seabed Treaty, Outer Space Treaty or the Antarc-tic Treaty). But in the case of the Fissile Materials Cutoff Treaty, its development is stalled partially because the techniques for verification have not yet ripened for implementation, in addition to political hurdles. Once a monitoring system is required as part of the treaty, assuming that the relevant science base has ripened and it is ready for implementation, an agreement on treaty principles can be reached and the pre-agreement negotiations are accelerated. But as a result, the PAN during the implementation phase may become lengthy in order to make up for the time saved during the pre-inspection phase by not negotiating the imple-mentation details. Such a situation may be unavoidable because of the conflict between the wish for a short negotiation period in the pre-agreement phase (‘get-ting to yes’) and the need to produce a well performing verification regime (‘get-ting it done’) during the post-agreement phase. Shortening of the pre-agreement phase will cause an intensification of PAN during the post-agreement phase where the implementation details will have to be hammered out. The typical inclination will be to choose a shorter pre-agreement phase in which mainly principles are negotiated, as demonstrated in the case of the CTBT.

Political issues, unrelated to technical aspects, are in the background of all debates in the CTBT PrepCom because each state or group of states has their approach (or formula) to every issue on the agenda, including technical issues. Even though the CTBT regime is primarily a technical verification regime, the political aspect was expected to be a background factor driving the states


signatories views and positions. Yet political issues surfaced on the PrepCom agenda, such as regional and coalitional matters that utilized the international platform provided by the Commission’s meetings.

The treaty defines six regional groups (Treaty, Annex 1) to be functional in composing the Executive Council after EIF and to nominate officers for the positions of chair and deputies of the PrepCom. Although this provision defines the international working environment, the traditional coalitional organiza-tions (NAM, EU, G77, etc.)15 started very early to manifest themselves in the negotiations, especially in the general debates. An example can be seen in the report of the 28th session of the PrepCom (June 2007, ¶8), where a NAM state-ment is attached to the report since no consensus could be reached on the issue presented by it.

A regional dysfunction is exemplified in the Middle East region. According to the Treaty, the MESA (Middle East and South Asia) geographical region includes Arab states, Iran and Israel, among others. Iran has been adamantly opposed to this arrangement from the days before the treaty was adopted by the UNGA; since then, Iran has been blocking any meeting of the MESA regional group with the Arab states in the MESA group going along with this approach (Hansen, 2006). As a result, MESA’s turn in filling any position in the Commission and its PMO is transferred to the next group in line; thus all member states of MESA group cannot be chosen for any function and, if this status is continued, none will be a member of the Executive Council after EIF. This is one of Israel’s pro-nounced reasons for withholding ratification of the Treaty, in demand of equal and sovereign status in the Commission and its PMO (Ayalon 2011). Since Israel is one of the 44 states whose ratification is required for EIF (Treaty, Annex 2), this situation is clearly contributing to the prolonged pre-EIF phase.

Conclusion

The post-signature, pre-EIF phase of the CTBT is a stage of post-agreement negotiations, central in the regime formation of the regime. The treaty itself is the framework agreement creating an outline for the buildup process of the verifica-tion regime in preparation for EIF. The lean treaty framework, negotiated under a deadline pressure and resulting in a non-consensus text, required at the post-agreement stage a recursive process of implementation, involving an initial broad framework basis with subsequent focus on adjustment negotiations.

The issues described in this article and other similar matters require negotia-tions in order to reach consensus in the policy making organs of the PrepCom

15) NAM is the Non Aligned Movement of nations; EU is the European Union; G77 is the Group of 77 (a coalition of developing nations).


during the post-agreement phase to facilitate completion of the verification regime and achieving routine functionality. This is an ongoing process in which the participants learn from experience as the verification system is built up while posing new challenges in realization of the treaty provisions in order to reach fulfillment of the treaty prime requirement – stopping nuclear explosions.

The examples provided above from the CTBT post agreement phase exhibit all the four factors that are simultaneously involved in regime evolution according to Zartman (2003): adjustment, maintenance, cybernetics and exogenous factors. The ensuing negotiation processes, as demonstrated above, include both conflict and cooperation that are shaping the CTBT regime based on the constraining prin-ciples as expressed in the Treaty, thus demonstrating the description of a regime as something “. . . more than simply ‘rules, norms, regulations and behaviors;’ it is the institutionalized effort to shape, monitor, and support these outputs” ( Zartman 2003: 19).

There is currently no prospect for EIF in the foreseeable future. This slows down negotiations and implementation because states do not have any pressure of an imposed deadline like they had during treaty negotiations in the CD. This leads to procrastination and iteration in discussions as inexperienced staff of del-egations are replaced every few years and as new issues surface resulting from the Secretariat’s work in the field. This is most visible in the slow development of the on-site inspection Operational Manual.

From the balance of examples above, it can be seen that the post-agreement negotiations in the CTBT regime development are concerned at this stage mainly with the adjustment factor, being affected by cybernetics processes and exogenous factors. Maintenance of the regime is still not a major factor as the regime is at its buildup stage.

This case study of the CTBT exhibits the characteristics presented in theory and examples (Spector & Zartman 2003). Based on the theory and analyses of different regimes, the CTBT is most probably a combination of two regime types – a regime that is following a jagged course from one negotiated encounter of parties to another (type 3) and a regime that grows and evolves along a steady state through recurrent negotiations (type 2) (Spector & Zartman 2003: 272). The jagged course is mainly exhibited by the delay in entry into force due to the special CTBT clause (Treaty, Article XIV) in addition to the technical challenges along the way to establishing the regime.

These recurrent negotiations, typical to a post-agreement phase, are not antici-pated to continue forever. But as long as the entry into force of the treaty is delayed and regime building is approaching a conclusion, a renewed political thinking is expected, probably leading to a new negotiation phase (beyond post-agreement negotiations) on a possible alternate form of the regime utilizing the vast verification system that has already been built. The still open question is, therefore, into which type of regime will the CTBT develop: will entry into force


never happen and the CTBT will move into a different form, like the Conference on Security and Cooperation in Europe (CSCE) that was transformed into the Organization on Security and Cooperation in Europe (OSCE) (Spector & Zart-man 2003)? Or will the CTBT enter into force and continue its normal life cycle by growing and evolving along a steady state through recurrent negotiations?

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