Some 178 states are parties to the Comprehensive Nuclear-Test-Ban Treaty (CTBT); another eight have signed but not yet ratified. Adopted on 10 September 1996 and signed two weeks later, its birth was protracted and painful. Its legal status remains in limbo. And its normative force may be at risk of being weakened by overenthusiastic champions.

In the early 1990s, I was a disarmament adviser to the New Zealand government advocating for the CTBT and continued that work as head of the Peace Research Centre in Canberra in 1995. The debate was highly charged. This article draws on extensive discussions with Australian, NZ and Indian diplomats then and subsequently and, after April 1998, also with senior colleagues in disarmament affairs in the UN system.

The world’s only mandated standing disarmament body is the Conference on Disarmament in Geneva. It is so dysfunctional that it often fails to agree even on an agenda. It operates by consensus, meaning that every member effectively has a veto over all substantive decisions. The Ottawa Treaty banning anti-personnel landmines and the Treaty on the Prohibition of Nuclear Weapons were made possible only by taking their negotiation and adoption out of the hands of the conference. That is where the negotiations on the CTBT came to a climax in 1996.

India, despite being an early champion of the CTBT concept, wouldn’t adopt the text as negotiated. It had two main objections, neither of which was addressed in the final draft. The first was that the treaty permitted subcritical tests that use nuclear materials, and possibly high explosives, but deliberately produce no yield, which the nuclear powers said were needed to maintain confidence in the bomb with no further testing. The second was that it wasn’t linked to a timetabled disarmament process, making non-proliferation serve the agenda of the nuclear powers, not the international community.

Crucially, however, India said it wouldn’t veto the treaty and would allow its adoption by those who wanted it. Then, negotiators made a fateful strategic error.

They inserted a uniquely destructive entry-into-force clause stipulating that all 44 states listed in Annex 2 (the nuclear-technology-holding countries at the time) had to sign and ratify. Of these, India, North Korea and Pakistan haven’t signed. China, Egypt, Iran, Israel and the US signed, but are yet to ratify.

The US would have been happy with the requirement for all five nuclear-weapon states plus a specified number of others to ratify. China was adamant that the three ‘threshold’ states of India, Israel and Pakistan must also be parties. Moscow wasn’t prepared to join without China’s acquiescence. The UK also insisted on the formula that was chosen and ultimately prevailed.

Thanks to this clause, India vetoed the treaty. India’s ambassador, Arunadhati Ghose, declared emphatically that India would ‘not now, not ever’ sign, as long as the entry-into-force formula existed. In India’s judgement it made the treaty illegal and illegitimate, on the principle that no sovereign state can be coerced to sign a treaty, and that no treaty’s entry into force can be made conditional on a dissenting state’s signature.

Not prepared to let three years of intensive negotiations be frustrated by one country, the world tried to corner India through a procedural trick. The vetoed CTBT draft was adopted by Belgium as a national text, taken out of the deadlocked disarmament conference by Australia and approved as an international treaty by the UN General Assembly by 158 votes to three.

This was done despite India presenting alternatives. It pointed to the Chemical Weapons Convention, signed in January 1993, and moved an amendment to the CTBT draft text’s entry-into-force formula to match the convention’s requirement for ratification by 65 states. The world heaped criticism on India despite New Delhi’s flexibility and willingness to compromise. China’s stubbornness deserves more blame for the CTBT still not being legally in force.

The world’s rigid position on the entry-into-force clause stalled the CTBT and inevitably hardened and securitised India’s approach to nuclear issues. Had similar treaties like the Nuclear Non-Proliferation Treaty attempted such a formula, they too would never have achieved legal status.

CTBT negotiators fatally misjudged India’s nuclear decision-making calculations. At the time, I wrote for the International Herald Tribune arguing that getting the CTBT operational was most urgent, and that India could join later. In a complementary article in The Australian, I wrote: ‘Faced with US-led UN coercion, an isolated, sullen and resentful India is more likely to respond with an open nuclear programme, including a … series of nuclear tests.’ That happened within two years.

My warnings were dismissed by Western diplomats, including in Canberra and Wellington, as showing an Indian bias. Yet they were widely echoed in the Indian strategic community, including by a former Indian Army chief and a former Indian prime minister, Inder Kumar Gujral. I believe that NATO made the same mistake of provoking and not deterring Russia with a similar wilful blindness to Moscow’s security concerns about NATO’s eastward expansion. I also fear a repeat of the pattern vis-à-vis China.

It’s surprising that despite the legal gap, the treaty functions well in practice. Its implementing secretariat is based in Vienna with an annual budget of US$126 million and a staff of around 300 people under the leadership of Australian scientist-diplomat Rob Floyd, whose candidacy I championed. Its verification regime is made up of an international monitoring system, and 90% of its 337 monitoring stations and laboratories are already up and running. An international data centre then collects, analyses and shares the information they produce.

The G7 leaders’ 19 May ‘Hiroshima vision on nuclear disarmament’ reaffirmed the global norm against nuclear testing, but emphasised that bringing the CTBT into force is an ‘urgent matter’. This is problematic owing to domestic politics in the holdout states—CTBT is a toxic four-letter word in India to this day—and rising geopolitical tensions. Frankly, there is zero prospect of the treaty coming into force in the foreseeable future.

In The power of legitimacy among nations, Thomas Franck explored why powerful nations obey powerless rules. He argued that even in the absence of treaties or binding obligations, the moral authority of certain norms exerts a powerful ‘compliance pull’. This is a compelling explanation for why the norm against further testing has held. India hasn’t signed the CTBT but has maintained a voluntary moratorium on nuclear test explosions since 1998. The only country to have carried out nuclear tests in this century so far is North Korea.

While the treaty could be amended to come into legal force, for instance by returning to a 65-state ratification requirement, that could risk weakening its normative power because many of the existing 178 parties might not re-sign.

Whatever comes of its legal status, leaders should be wary of voicing repeated reminders that the treaty isn’t in force, which could weaken compliance with the existing norm. The ritualistic chant should be abandoned and substituted with reinforcing language, like: ‘We remain committed to upholding the global norm against nuclear explosive testing that is underpinned by the Comprehensive Nuclear-Test-Ban Treaty’.