African Nuclear-Weapon-Free Zone Treaty and Protocols
The African Nuclear-Weapon-Free Zone Treaty (‘‘the Treaty’’), also known as the Treaty of Pelindaba, was the product of a 32-year effort seeking a nuclear weapon-free Africa. In 1964, at its first Summit in Cairo, Egypt, the Organization of African Unity (OAU) formally stated its desire for a Treaty ensuring the denuclearization of Africa. The United States has supported the denuclearization of Africa since the first United Nations General Assembly resolution on this issue in 1965 and played an active role in the formulation of the final text of the Treaty and its Protocols.
The Treaty and Protocols were negotiated under the auspices of the OAU and the United Nations. The Treaty was adopted by the OAU at Pelindaba, South Africa, on June 2, 1995, at the site where the South African Government constructed its first nuclear device. It was opened for signature to the fifty-three states of Africa in Cairo, Egypt, on April 11, 1996. It entered into force on July 15, 2009, when Burundi became the 28th State to deposit its instrument of ratification. The Protocols entered into force at the same time for those Protocol signatories that had deposited their instruments of ratification. Shortly thereafter Tunisia followed suit to bring the total number of Parties to 29. The Treaty refers to certain functions (depositary, referring compliance issues to the UN Security Council) being performed by the OAU, but the OAU was superseded by the African Union in 2002. The analysis below retains the Treaty terminology.
The Treaty prohibits research, development, manufacture, stockpiling, acquisition, testing, possession, control, or stationing of nuclear explosive devices by Parties to the Treaty, as well as assistance to others in such activities, or seeking or receiving assistance in such activities. The Treaty also prohibits Parties from assisting or encouraging the dumping of radioactive wastes and other radioactive matter within the African zone, and requires each Party to implement or use as guidelines the provisions of the Bamako Convention with respect to the handling of radioactive waste. The Treaty prohibits any armed attack against nuclear installations in the zone by Treaty Parties. It requires Parties to maintain the highest standards of physical protection of nuclear material, facilities, and equipment. The Treaty requires all Parties to apply fullscope International Atomic Energy Agency (IAEA) safeguards to all of their peaceful nuclear activities. The Treaty creates the African Commission on Nuclear Energy to monitor compliance and promote the peaceful use of nuclear energy. The Treaty affirms the right of each Party to decide for itself whether to allow visits by foreign ships and aircraft to its ports and airfields, explicitly upholds the freedom of the seas, and does not affect rights to passage, guaranteed by international law, through territorial waters.
The Treaty has three Protocols. Under Protocol I, which is open for signature by the United States, China, France, Russia, and the United Kingdom, the Protocol Parties undertake not to use or threaten to use a nuclear explosive device against any Party to the Treaty or against territories within the zone of Parties to Protocol III. Protocol I Parties also undertake not to contribute to a violation of the Treaty or Protocol I. Under Protocol II, which is open for signature by the United States, China, France, Russia, and the United Kingdom, the Protocol Parties undertake not to test or assist or encourage the testing of any nuclear explosive device anywhere within the zone or to contribute to any violation of the Treaty or Protocol II. Under Protocol III, which is open for signature only by France and Spain, the Protocol Parties agree to apply certain of the Treaty’s substantive provisions ‘‘in respect of the territories for which [they are] internationally responsible’’ within the zone. The United States is not one of the states identified as eligible to sign this Protocol, as the United States is not internationally responsible for any territory within the African zone. Diego Garcia, where the United States maintains a significant military installation, is within the geographic area described in Article 2 and Annex I and is subject to a territorial claim by Mauritius, a Party to the Treaty. However, Diego Garcia is under the sovereign control of the United Kingdom of Great Britain and Northern Ireland as part of the British Indian Ocean Territories and is not part of the ‘‘territory’’ of the Zone as defined in the Treaty; therefore, neither the Treaty nor its Protocols applies to U.S. operations there. The activities of the U.S. Armed Forces on Diego Garcia would not be impeded by U.S. ratification of Protocols I and II to the Treaty.
The Treaty and Protocols meet all seven criteria that the United States has established for supporting any proposed nuclear-weapon- free zone. The criteria are as follows:
- the initiative for the creation of the zone should come from the States in the region concerned;
- all States whose participation is deemed important should participate;
- the zone arrangement should provide for adequate verification of compliance with its provisions;
- the establishment of the zone should not disturb existing security arrangements to the detriment of regional and international security or otherwise abridge the inherent right of individual or collective self-defense guaranteed in the Charter of the United Nations;
- the zone arrangement should effectively prohibit its Parties from developing or otherwise possessing any nuclear device for whatever purpose;—the establishment of the zone should not affect the existing rights of its Parties under international law to grant or deny other States transit privileges within their respective land territory, internal waters and airspace to nuclear powered and nuclear capable ships and aircraft of non-party nations, including port calls and overflights; and
- the zone arrangement should not seek to impose restrictions on the exercise of rights recognized under international law, particularly the high seas freedoms of navigation and overflight, the right of innocent passage of territorial and archipelagic seas, the right of transit passage of international straits, and the right of archipelagic sea lanes passage of archipelagic waters.
The United States signed the African Nuclear-Weapon-Free Zone Treaty on April 11, 1996. The document was transmitted to the Senate for advice and consent to ratification on May 2, 2011.
Under Article 1, each Protocol Party undertakes not to use or threaten to use a nuclear explosive device against (1) any Treaty Party or (2) any territory within the zone for which a Protocol III Party is internationally responsible (France is currently the only party to Protocol III; Spain is the only other country eligible to become a party).
Under Article 2, each Party undertakes not to contribute to any act that constitutes a violation of the Treaty or Protocol I. This provision does not require the United States to comply with all provisions of the Treaty; rather, it requires the United States not to contribute to a Treaty Party committing its own violation of the Treaty or a Protocol I Party committing its own violation of Protocol I.
Article 3 provides that each Party must indicate through written notification to the Depositary its acceptance or rejection of any alteration to its Protocol I obligations that may come about as a result of amendment of the Treaty. Thus, the United States will not be bound by any alteration to its obligations that it does not expressly accept.
Article 4 states that the Protocol is open to signature by the United States, the United Kingdom, the Russian Federation, the People’s Republic of China, and France. The United States signed Protocol I on April 11, 1996, at a ceremony in Cairo, Egypt, at which the Treaty itself was opened for signature. Article 5 provides that the Protocol is subject to ratification.
Article 6 provides that the Protocol will remain in force indefinitely. It further provides that a Protocol Party may withdraw from the Protocol ‘‘if it decides that extraordinary events, related to the subject-matter of this Protocol, have jeopardized its supreme interests.’’ In such an event, a Protocol Party must notify the Depositary and provide a statement explaining why its supreme interests have been jeopardized, twelve months in advance of its withdrawal from the Protocol.
Article 7 states that the Protocol will enter into force for each signatory upon either the date when it deposits its instrument of ratification with the Depositary or the date of entry into force of the Treaty itself, whichever occurs later. Accordingly, this Protocol entered into force for China, France, and the United Kingdom (the states that had deposited instruments of ratification) on July 15, 2009, when the Treaty entered into force.
Under Article 1, each Party to this Protocol is obligated ‘‘not to test or assist or encourage the testing of any nuclear explosive device anywhere within the African nuclear-weapon-free zone.’’ The zone, as defined in Article 1(a) of the Treaty, means the ‘‘territory’’ of the African continent, island States members of the OAU, and all islands considered by the OAU in its resolutions to be part of Africa. ‘‘Territory’’ is defined in Article 1(b) of the Treaty to mean the land territory, internal waters, territorial seas and archipelagic waters and the airspace above them as well as the sea bed and subsoil beneath. Thus, this prohibition not to test is not limited to the land territory of the Treaty Parties, but applies to all of these areas included in the zone.
Under Article 2, each Party to the Protocol undertakes not to contribute to any act that is a violation of the Treaty or Protocol II.
Article 3 regarding acceptance or rejection of amendments/alterations in the underlying Treaty obligations is identical to the corresponding provision in Protocol I.
Article 4 states that Protocol II is open for signature by the United States, the United Kingdom, the Russian Federation, the People’s Republic of China, and France. The United States signed Protocol II on April 11, 1996. Article 5 provides that the Protocol is subject to ratification.
Article 6 (duration and withdrawal) and Article 7 (entry into force) are identical to the corresponding provisions in Protocol I. As with Protocol I, Protocol II entered into force for China, France, and the United Kingdom (the states that had deposited instruments of ratification) on July 15, 2009, when the Treaty entered into force.