Draft TREATY banning all nuclear tests in any environment by anyone
(UNIVERSALLY-BINDING TEST BAN TREATY)

The Governments of France, the People's Republic of China, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America, hereinafter referred to as the "Original Parties," and which are hereby designated the "Depository Governments,"

Proclaiming as their principal aim an end to the nuclear armaments race and the elimination of development, improvement, testing and spread of nuclear weapons,

Seeking to achieve the discontinuance of all test explosions of nuclear weapons for all time in all environments by everyone, and desiring to prevent nuclear warfare and the consequent contamination of the global environment by radioactive substances,

Have agreed as follows:

Article I
1. Each of the Parties to this Treaty undertakes to prohibit, to prevent, and not to carry out any nuclear-weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control in the atmosphere or underground; beyond its limits, including outer space; or underwater, including territorial waters or high seas; or in any other environment.
2. Each of the Parties to this Treaty undertakes furthermore to refrain from causing, encouraging, or in any way
participating in, the carrying out of any nuclear-weapon test explosion, or any other nuclear explosion, anywhere in any environment.
3. Any nuclear-weapon test explosion, or any other nuclear explosion, by anyone including any nonparty to this Treaty, anywhere and in any environment, is prohibited.
4. Any causing, encouraging, or in any way participating in, by anyone including any nonparty to this Treaty, the carrying out of any nuclear-weapon test explosion, or any other nuclear explosion, by anyone including any nonparty to this Treaty, anywhere and in any environment, is prohibited.
5. Any activity by anyone, including any nonparty to this Treaty, which activity is reasonably certain to result in the carrying out of any nuclear-weapon test explosion, or any other nuclear explosion, anywhere and in any environment, herein referred to as a "threatened violation," is prohibited.

Article II
1. This Treaty shall be enforced solely by the Security Council of the United Nations pursuant to Chapter VII of the Charter of the United Nations.
2. No enforcement action shall be taken by the Security Council of the United Nations unless the International Atomic Energy Agency first certifies in writing to the President of the Security Council a violation or threatened violation of this Treaty.

Article III
1. Any Party may propose amendments to this Treaty. The text of any proposed amendment shall be submitted to the Depository Governments which shall circulate it to all Parties to this Treaty. Thereafter, if requested to do so by a majority of the Parties, the Depository Governments shall convene a conference by majority vote of all of the Depository Governments, to which they shall invite all the Parties, to consider such amendment.
2. Any amendment to this Treaty must be approved by two-thirds of the votes of all the Parties to this Treaty, including the votes of all of the Original Parties. The amendment shall enter into force upon the deposit of instruments of ratification by two-thirds of all the Parties, including the instruments of ratification of all of the Original Parties, and written approval by the Security Council of the United Nations given to each of the Depository Governments.

Article IV
1. This Treaty shall be open to all States for signature. Any State which does not sign this Treaty before its entry into force in accordance with paragraph 3 of this Article may accede to it at any time.
2. This Treaty shall be subject to ratification by signatory States. Instruments of ratification and instruments of
accession shall be deposited with the Depository Governments.
3. This Treaty shall enter into force after its ratification by two-thirds of the Members of the United Nations, including  all the Original Parties, and its written approval by the Security Council of the United Nations given to each of the Depository Governments.
4. The Depository Governments shall promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification or accession to this Treaty, the date of written approval by the Security Council of the United Nations, the date of its entry into force, and the date of receipt of any requests for conferences or other notices.
5. This Treaty shall be registered by the Depository Governments pursuant to Article 102 of the Charter of the United Nations.

Article V
This Treaty shall be of unlimited duration.
No Party shall have the right to withdraw from this Treaty.

Article VI

This Treaty, of which the Chinese, English, French and Russian texts are equally authentic, shall be deposited in the archives of the Depository Governments. Duly certified copies of this Treaty shall be transmitted by the Depository Governments to the Governments of the signatory and acceding States.

IN WITNESS WHEREOF the undersigned, duly authorized, have signed this Treaty.

DONE in five originals at the City of New York this day _____ of _____ , two thousand and _____ .

For the Government of France:

For the Government of the People's Republic of China:

For the Government of The Russian Federation:

For the Government of the United Kingdom of Great Britain and Northern Ireland:

For the Government of the United States of America:



COMMENTARY ON DRAFT
UNIVERSALLY-BINDING TEST BAN TREATY

(1) Treaty Bans All Nuclear Tests in All Environments By Everyone and Includes All Five Original Nuclear Powers

So stated by the title of the proposed Universally-Binding Test Ban Treaty (UBTBT).

The second preamble paragraph of the treaty proclaims the aim of the five nuclear parties to "end the nuclear armaments race" and eliminate "the development, improvement, testing and spread of nuclear weapons." Thus they aim to end the development, improvement and testing of their own nuclear weapons as well as end the spread of nuclear weapons to other states. The treaty prohibits testing by the five nuclear powers and thus inhibits improvement of their nuclear weapons and development of new weapons.

(2) Purpose Is to Legislate End of All Tests and Thus to Bind Any Nonparties

The third preamble paragraph, in "[s]eeking to achieve the discontinuance of all explosions of nuclear weapons for all time in all environments by everyone," provides the purpose of the treaty to legislate that end, and thus to bind any nonparties. The justification of binding nonparties is expressed in the desire "to prevent nuclear warfare and the consequent contamination of the global environment." The treaty should help deter further nuclear proliferation. The threat of nuclear warfare is increased with the spread of nuclear weapons. Even with proliferation, untested weapons are unlikely to be used aggressively.

(3) Treaty Specifically Prohibits Underground Tests and Peaceful Nuclear Explosions

Article 1, paragraph 1 of the treaty is the same as Article 1, paragraph 1 of the 1963 Partial Test Ban Treaty (PTBT), which is limited to the agreement not to test in the atmosphere, underwater or outer space, except that the proposed paragraph also obligates the parties not to test underground; i.e., it provides a voluntary comprehensive test ban. The addition of the term "or in any other environment" is intended to cover nuclear tests in any other environment, such as between the atmosphere and outer space, or testing in the atmosphere or underground in another country. As in the PTBT, the reference to "or any other nuclear explosion" precludes explosions allegedly for peaceful purposes.

Article 1, paragraph 2 of the treaty supplements paragraph 1 and corresponds to the same numbered paragraph in the PTBT except that it requires the parties to refrain from causing, encouraging, or in any way participating in, the carrying out of any nuclear explosion in any environment, thus including underground tests.

(4) Treaty Specifically Prohibits All Nuclear Explosions By Nonparties and Thus Is Legislative

Article 1, paragraph 3 is entirely new. It prohibits any nuclear explosion anywhere and in any environment by anyone, and specifically illegalizes any such explosion by a nonparty. That provision makes the treaty universally binding; that is, it is legislative. Binding nonparties is justified by the goal of preventing nuclear warfare and the consequent contamination of the globe by the radioactive fallout. The international community has the self evident and inherent right to legislate to prevent radioactive contamination of their own populations and territories from nuclear warfare by others. Thus, universally-binding treaties are limited to preventing contamination of the international community by radioactive fallout from nuclear warfare. The United Nations Charter also binds nonparties.

Article 1, paragraph 4 supplements Article 1, paragraph 3 in prohibiting anyone including nonparties from helping anyone else including nonparties conduct a nuclear explosion in any environment. Thus North Korea could not legally help Iran test a warhead in Iran or North Korea, even if neither is a party to the treaty.

(5) Threatened Violations Are Also Prohibited If There Is Clear and Convincing Evidence

Article 1, paragraph 5 prohibits "threatened violations." That means that the international community need not wait for an actual violation to act. Any activity which "is reasonably certain" to result in a nuclear explosion is also illegal. Thus action can be taken to prevent an anticipatory breach of the treaty. An activity is not "reasonably certain" to result in a nuclear explosion unless there is clear and convincing evidence of that as determined by the International Atomic Energy Agency.

Also, giving notice of withdrawal from the Nuclear Nonproliferation Treaty while enriching uranium or constructing a plutonium separation facility plus manufacturing or deploying a missile capable of carrying a nuclear warhead is a threatened violation of the treaty. It would be reasonably certain that such a nuclear tipped missile would have to be successfully tested to prove that it works, which would be an actual violation. The Security Council would not have to wait for the actual test to authorize enforcement action by a volunteering party.

(6) Only the Security Council Can Enforce the Treaty and Then Only If a Violation or Threatened Violation Is First Certified by the International Atomic Energy Agency

Article II, paragraph 1 makes it clear that only the Security Council can take action to enforce the treaty. Thus a
preemptive surgical strike against Iranian nuclear-weapon manufacturing facilities claiming violation of the treaty would be illegal in the absence of authorization by the Security Council.

Article II, paragraph 2 requires that the International Atomic Energy Agency first certify a violation or threatened
violation to the Security Council before the council could enforce the treaty. The purpose is to separate violation detection
from treaty enforcement in order to avoid possible abuse of the treaty by the Security Council.

The veto-free IAEA alone would determine what is a "nuclear explosion" under the treaty, what is a "threatened violation" and
what is "clear and convincing evidence" of a threatened violation. If there were any doubt, the agency could seek an advisory opinion from the International Court of Justice at The Hague.

All nuclear explosions are prohibited whatever the explosive power. Hydro-nuclear activities and sub-critical experiments are not covered by the Treaty. Testing down to one kiloton of chemical high explosive equivalent is clearly detectable. But lower yield underground explosions cannot necessarily be detected. First time nuclear test explosions, however, have been in the 10 to 70 kilotons range, with most centering around 20 kilotons. So any test by a first time proliferator like Iran or North Korea would be readily detected with presently deployed seismic detection facilities. Cavity "decoupling" an underground explosion of five to 25 kilotons in an attempt to avoid detection is not a credible scenario for a first time proliferator. Nor are sub-critical experiments or hydro-nuclear activities. Anyway, first time proliferators like Iran and North Korea will want clearly detectable explosions to back their claim that they are nuclear powers.

Also, a missile warhead must survive high acceleration so is most unlikely to be relied on without a detectable successful launch test. During the period of 1958-1962 the U.S. conducted about ten missile launched warhead tests, all detectable. (The 1963 PTBT banned all further atmospheric tests). Israel conducted two detected howitzer launched tests from South Africa in September 1979 according to a Russian arms control expert.

The IAEA could also provide for a system of prompt mandatory on-site inspections, especially of parties to the treaty, but also of nonparties. Refusal to permit an inspection would be evidence of a violation. The Agency could also use the world wide measures to detect tests provided for monitoring observance of the unenacted Comprehensive Test Ban Treaty. These measures taken by the IAEA should provide an effective deterrent to cheating by would-be nuclear weapon states, especially since the consequence of a violation could be the destruction of its nuclear weapons facilities.

The IAEA is required to give notice of a violation or threatened violation only to the President of the Security Council. This would permit the agency to conduct a violation investigation in secret and then secretly inform the President of the Security Council. That would avoid possible leaks from the Security Council members while the Security Council President conducts secret diplomacy in order to head off a violation of the treaty.

(7) Entry Into Force and Amendments Require Two-Thirds of the States Including All Five Original Nuclear Powers

Article III, paragraph 1, concerning proposed amendments of the treaty, is similar to Article II, paragraph 1 of the PTBT. However, a request to convene a conference to consider an amendment requires a majority rather than one-third of the PTBT parties because of the legislative nature of any amendment. Moreover, the paragraph makes it clear that a majority of the Depository Governments (three out of the five Original Parties) can convene a conference.

Article III, paragraph 2 is similar to Article II, paragraph 2 of the PTBT, except that an amendment binds nonparties as well as parties since it is legislative, so two-thirds of all the parties, including the five Original Parties (who thus each have a veto), must ratify the amendment.

Article IV concerning ratification of and accession to the treaty is similar to Article III of the PTBT, except that
two-thirds of the Members of the United Nations, including the five Original Parties (who thus each have a veto), must ratify the treaty before it enters into force since it is legislative in that it binds nonparties. The purpose of the nuclear power veto is to assure each that a precedent is not being set for another legislative international nuclear peacekeeping law without its consent (for example, a universally-binding nuclear nonacquisition treaty which would prohibit further production of nuclear weapons by the declared and undeclared nuclear states).

(8) A Party Cannot Withdraw From the Treaty Because It Is Legislative

Article V of the treaty is the same as Article IV of the PTBT in that each is of unlimited duration. But unlike the PTBT, the treaty is universally binding since no party can withdraw from the treaty because it is legislative. That is, a party would still be bound by the prohibitions of the treaty, so withdrawal is effectively meaningless.

(9) Treaty Terms Need Only Be Agreed to By Five Original Nuclear Powers and Treaty Can Enter Into Force Soon

The PTBT terms were agreed to only by the U.S., U.K. and Soviet Union. All other supporting states had to accept its terms to sign and ratify or accede to that treaty. Similarly, only the five original nuclear powers need agree to the terms of the UBTBT, which could be finalized soon since both Russia and China support it. Being comprehensive the treaty would substitute for the not-in-force Comprehensive Test Ban Treaty. The General Assembly and Security Council would be expected to approve it as is. There would be no further negotiation of its terms. But the treaty would still require signing and ratification by two-thirds of the states to enter into force and thus bind nonsignatories. That is not a problem since virtually all the parties to the CTBT would soon sign and ratify the UBTBT once the five permanent members of the Security Council did so.