    [Senate Treaty Document 112-3]
    [From the U.S. Government Publishing Office]

    112th Congress
    1st Session                     SENATE                     Treaty Doc.
    112-3
    _______________________________________________________________________

                       PROTOCOLS I AND II TO THE AFRICAN
                        NUCLEAR-WEAPON-FREE ZONE TREATY

                                   __________

                                    MESSAGE

                                      from

                         THE PRESIDENT OF THE UNITED STATES

                                  transmitting

      PROTOCOLS I AND II TO THE AFRICAN NUCLEAR-WEAPON-FREE ZONE TREATY,
      SIGNED ON BEHALF OF THE UNITED STATES AT CAIRO, EGYPT, ON APRIL 11,
             1996, INCLUDING A THIRD PROTOCOL RELATED TO THE TREATY

      May 2, 2011.--Treaty was read the first time, and together with the
    accompanying papers, referred to the Committee on Foreign Relations and
                ordered to be printed for the use of the Senate

                               LETTER OF TRANSMITTAL

                                   ----------

                                          The White House, May 2, 2011.

    To the Senate of the United States:
        With a view to receiving the advice and consent of the
    Senate to ratification, I transmit herewith Protocols I and II
    to the African Nuclear-Weapon-Free Zone Treaty (``the
    Treaty''), signed on behalf of the United States at Cairo,
    Egypt, on April 11, 1996. I also transmit for the information
    of the Senate the Treaty to which these Protocols relate, a
    third Protocol to the Treaty, and the Department of State's
    Overview of the Protocols, which includes a detailed article-
    by-article analysis of both the Protocols and the Treaty.
        I am convinced that it is in the best interest of the
    United States to ratify Protocols I and II to the Treaty. This
    step will strengthen our relations with our African friends and
    allies, enhance U.S. security by furthering our global
    nonproliferation and arms control objectives, demonstrate our
    commitment to the decisions taken at the 1995 Review and
    Extension Conference of the Parties to the Treaty on the Non-
    Proliferation of Nuclear Weapons, and contribute significantly
    to the realization of the African Nuclear-Weapon-Free Zone in
    all its aspects. As the Department of State's Overview of the
    Protocols explains, entry into force of Protocols I and II for
    the United States would require no changes in U.S. law, policy,
    or practice.
        I recommend that the Senate give early and favorable
    consideration to Protocols I and II to the African Nuclear-
    Weapon-Free Zone Treaty, and give its advice and consent to
    their ratification, subject to the statements contained in the
    Department of State's Overview of the Protocols.
                                                          Barack Obama.

                              LETTER OF SUBMITTAL

                                  ----------

                                           Department of State,
                                           Washington, August 16, 2010.
    The President,
    The White House.
        The President: I have the honor to submit to you, with a
    view to their transmittal to the Senate for advice and consent
    to ratification, subject to certain statements, Protocols I and
    II to the African Nuclear-Weapon-Free Zone Treaty (``the
    Treaty''), also known as the Treaty of Pelindaba, which were
    signed on behalf of the United States at Cairo, Egypt, on April
    11, 1996. Also enclosed is an Overview of the Protocols, which
    includes a detailed article-by-article analysis of both the
    Protocols and the Treaty to which the Protocols relate.
        These Protocols are consistent with U.S. military practices
    and require no changes in U.S. military operations, strategy,
    or policy. Ratification of Protocols I and II by the United
    States would fully support U.S. nonproliferation policy and
    goals and demonstrate the seriousness of the U.S. commitment to
    the global nuclear nonproliferation regime.
        The Departments of Defense and Energy join in recommending
    that Protocols I and II of the Treaty be submitted to the
    Senate at an early date for its advice and consent to
    ratification, subject to the recommended statements set forth
    in the attached Overview of the Protocols.
        Respectfully submitted,
                                                Hillary Rodham Clinton.
        Enclosure: As stated.
           The African Nuclear-Weapon-Free Zone Treaty and Protocols

                                    overview

    Introduction
        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 full-scope 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 end of the Cold War, the dissolution of the Soviet
    Union, dramatic reductions in the number of nuclear weapons and
    their delivery systems, and the indefinite extension in 1995 of
    the Treaty on the Non-Proliferation of Nuclear Weapons (NPT)
    have created an environment in which adherence to the Protocols
    of the African Nuclear-Weapon-Free Zone Treaty has become
    advantageous to the United States. Meanwhile, the ratification
    of Protocols I and II by China, France, and the United Kingdom,
    and U.S. support for the Comprehensive Nuclear-Test-Ban Treaty,
    have removed any hesitation to agree to the Treaty's
    prohibition on testing within the zone. Concerns about the
    weapons of mass destruction programs in Libya have been
    alleviated in the wake of its renunciation of its weapons of
    mass destruction programs. Finally, the cooperation of nuclear-
    weapon States in nuclear-weapon-free zones is important to many
    Parties to the NPT. Thus, many former concerns regarding the
    Treaty Protocols have been resolved, and the benefits of
    ratifying these Protocols have been enhanced.

                          ARTICLE-BY-ARTICLE ANALYSIS

    Protocol I

        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).
        In connection with this obligation, I recommend that the
    United States include the following statement in its instrument
    of ratification:

              With respect to Article 1 of Protocol I, the United
            States of America will not use or threaten to use
            nuclear weapons against any Party to the Treaty that is
            a non-nuclear weapons State Party to the Nuclear Non-
            Proliferation Treaty (NPT) and in compliance with its
            nuclear non-proliferation obligations.

        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.

    Protocol II

        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.

    Protocol III

        As previously noted, the United States is not one of the
    states identified as eligible to sign this Protocol because it
    is not internationally responsible for any territory within the
    African zone.
        Under Article 1, each Party to Protocol III undertakes ``to
    apply, in respect of the territories for which it is de jure or
    de facto internationally responsible situated within the
    African nuclear-weapon-free zone,'' the provisions of many
    Articles of the Treaty itself. Protocol III entered into force
    for France (which had deposited its instrument of ratification)
    on July 15, 2009, when the Treaty entered into force.
        Entry into force of Protocols I and II for the United
    States subject to the recommended statements discussed herein
    would require no changes in U.S. law, policy, or practice. To
    make clear that no changes are necessary to bring the United
    States into compliance with its obligations under the
    Protocols, and that the Treaty Parties need take no action with
    respect to the United States in order to comply with their
    Treaty obligations, I recommend that the United States include
    the following statement in its instrument of ratification:

              The United States of America declares that its
            policies and practices are already consistent with the
            African Nuclear-Weapon-Free Zone Treaty and Protocols,
            and that its ratification of the Protocols in no way
            affects the United States position with regard to other
            nuclear-weapon-free zone treaties.

                                   THE TREATY

        The terms of the Treaty are relevant to the obligations of
    the United States in that, as previously noted, under Protocols
    I and II, the United States would undertake not to contribute
    to any act that constitutes a violation of the Treaty.

    Article 1: Definition/Usage of Terms

        Article 1 defines certain terms used in the Treaty and its
    Protocols.
        Article 1(a) defines ``African Nuclear-Weapon-Free Zone''
    to mean ``the territory of the continent of Africa, islands
    States members of OAU and all islands considered by the
    Organization of African Unity in its resolutions to be part of
    Africa.'' The first part of this definition covers continental
    Africa, and the second covers such states as Madagascar and
    Mauritius. The third part includes islands for which non-
    African states are de jure or de facto responsible. The
    reference to OAU resolutions includes OAU resolution AHG/Res
    99(XVII) of 1980, which gave formal OAU support to Mauritius'
    claim to the island of Diego Garcia, currently under United
    Kingdom sovereign control and home to significant naval and air
    installations of the United States and the United Kingdom.
    Diego Garcia is in the Chagos Archipelago. During the
    negotiation of the Treaty, Mauritian representatives insisted
    that their claim be given recognition in the definition of the
    zone. The map at Annex I of the Treaty shows the Chagos
    Archipelago surrounded by a broken line and refers the reader
    to a footnote, which states that the depiction of the Chagos
    Archipelago/Diego Garcia ``appears without prejudice to the
    question of sovereignty'' of the island. As described further
    in connection with Annex I, the activities of the U.S. Armed
    Forces on Diego Garcia would not be impeded by U.S.
    ratification of the Protocols to the Treaty.
        Article 1(b) defines ``territory'' as ``the land territory,
    internal waters, territorial seas and archipelagic waters and
    the airspace above them as well as the sea bed and subsoil
    beneath.''
        Article 1(c) defines ``nuclear explosive device'' (used in
    Articles 2-6) to mean ``any nuclear weapon or other explosive
    device capable of releasing nuclear energy, irrespective of the
    purpose for which it could be used. The term includes such a
    weapon or device in unassembled and partly assembled forms, but
    does not include the means of transport or delivery of such a
    weapon or device if separable from and not an indivisible part
    of it.'' This definition includes so-called ``peaceful nuclear
    devices.''
        Article 1(d) defines ``stationing'' as ``implantation,
    emplacement, transport on land or inland waters, stockpiling,
    storage, installation and deployment.'' As discussed below, the
    prohibition on ``stationing'' in Article 4(1) does not alter
    the sovereign right of Treaty Parties to allow ``visits by
    foreign ships and aircraft to its ports and airfields, transit
    of its airspace by foreign aircraft, and navigation by foreign
    ships in its territorial sea or archipelagic waters in a manner
    not covered by the rights of innocent passage, archipelagic sea
    lane passage or transit passage of straits.'' ``Stationing''
    does not include transit through territorial waters or
    airspace, or port visits, by vessels carrying nuclear explosive
    devices, not covered by the rights of innocent passage,
    archipelagic sea lane passage, or transit passage of straits.
        Article 1(e) defines ``nuclear installation'' to mean ``a
    nuclear-power reactor, a nuclear research reactor, a critical
    facility, a conversion plant, a fabrication plant, a
    reprocessing plant, an isotope separation plant, a separate
    storage installation and any other installation or location in
    or at which fresh or irradiated nuclear material or significant
    quantities of radioactive materials are present.'' This term is
    used in Article 11, ``Prohibition of Armed Attack on Nuclear
    Installations.''
        Article 1(f) defines ``nuclear material'' as source
    material or special fissionable material, as defined by the
    Statute of the International Atomic Energy Agency (IAEA) and as
    may be amended by the IAEA.

    Article 2: Application of the Treaty

        Article 2(1) provides that, except where otherwise
    specified, the Treaty and its Protocols apply to ``territory''
    (defined in Article 1(b) above) within the African Nuclear-
    Weapon-Free Zone, as illustrated in the map in Annex I.
    Significant exceptions are specified in Article 3(a)
    (``Renunciation of Nuclear Explosive Devices'') and Article
    5(c) (``Prohibition of Testing of Nuclear Explosive Devices''),
    whose prohibitions apply ``anywhere.'' Similarly, exceptions
    are specified in Article 7(b) (``Prohibition of Dumping of
    Radioactive Wastes'') and Article 1 of Protocol II (nuclear
    testing), whose prohibitions apply ``anywhere within the
    African nuclear-weapon-free zone.'' Although Diego Garcia is
    within the geographic area defined in Article 2(1), the
    ``territory'' of Diego Garcia is not under the sovereign
    control of a Party to the Treaty and is not part of the
    ``territory'' of the Zone as defined in the Treaty. Rather, it
    is under the sovereign control of a State (the United Kingdom)
    that is not eligible to become a Party to the Treaty or to
    Protocol III of the Treaty, and neither the Treaty nor its
    Protocols applies to U.S. operations there (see further
    discussion in connection with Annex I).
        Article 2(2) states that nothing in the Treaty prejudices
    or in any way affects the rights, or the exercise of the
    rights, of any State under international law with regard to
    freedom of the seas. Article 4(2), discussed below, complements
    Article 2(2) in that it recognizes the right of a State Party
    to decide for itself whether to permit transit or visits by
    foreign vessels and aircraft within its territory.

    Article 3: Renunciation of Nuclear Explosive Devices

        Under Article 3(a), each Party undertakes not to conduct
    research on, develop, manufacture, stockpile, or otherwise
    acquire, possess, or have control over any nuclear explosive
    device ``by any means anywhere.'' These obligations constitute
    the core commitments made by Parties to the Treaty. They are
    not limited to the territory of a Party or even to the African
    nuclear-weapon-free zone; rather, they are global commitments
    undertaken by each State Party upon ratification of the Treaty.
        Under Article 3(b), each Party undertakes not to seek or
    receive any assistance in the research on, development,
    manufacture, stockpiling or acquisition, or possession of any
    nuclear explosive device. Article 3(c) requires Treaty Parties
    not to take any action to assist or encourage the research on,
    development, manufacture, stockpiling or acquisition, or
    possession of any nuclear explosive device. A new element in
    the Treaty is that ``research'' and ``development'' of nuclear
    explosive devices are specifically identified as Treaty
    violations.

    Article 4: Prevention of Stationing of Nuclear Explosive Devices

        Article 4(1) proscribes the stationing of any nuclear
    explosive device in the territory of any Party. As noted
    earlier, ``stationing'' is defined in Article 1(d) of the
    Treaty as implantation, emplacement, transport on land or
    inland waters, stockpiling, storage, installation, and
    deployment. The term ``inland waters'' does not have an
    accepted meaning in international law. To ensure that U.S.
    rights are not adversely affected, I recommend that the United
    States include the following statements in its instrument of
    ratification:

              The United States of America understands the term
            ``inland waters'' as used in the African Nuclear-
            Weapon-Free Zone Treaty to exclude waters used in
            connection with maritime navigation.
              The United States of America understands the term
            ``stationing'' as used in the African Nuclear-Weapon-
            Free Zone Treaty not to include the temporary off-load
            or transshipment of nuclear weapons.

        Article 4(2) states that each Party remains free to decide
    for itself whether to allow visits by foreign ships and
    aircraft to its ports and airfields, transit of its airspace by
    foreign aircraft, and navigation by foreign ships in its
    territorial sea or archipelagic waters in a manner not covered
    by the rights of innocent passage, archipelagic sea lane
    passage, or transit passage of straits. Thus, in addition to
    reinforcing the statement in Article 2(2) that the Treaty does
    not prejudice rights regarding freedom of the seas, this
    statement confirms that any State Party could choose to accept
    a visit from U.S. vessels or aircraft on which the presence of
    nuclear explosive devices had been neither confirmed nor
    denied. There would be no basis in the Treaty or Protocols for
    another State Party to object to such a visit.
        Ratification of Protocols I and II by the United States
    will not affect existing rights under international law
    permitting nuclear-powered vessels and vessels carrying nuclear
    weapons to transit the zone and permitting aircraft carrying
    nuclear weapons to overfly the zone. However, because the
    Treaty does not expressly state this point, I recommend that
    the United States include the following statement in its
    instrument of ratification:

              The United States of America understands that nothing
            in the ANWFZ Treaty and its Protocols affects rights
            under international law of a State adhering to the
            Protocols regarding the exercise of the freedom of the
            seas, including passage through or over waters subject
            to the sovereignty of a State, as reflected in the 1982
            United Nations Convention on the Law of the Sea.

    Article 5: Prohibition of Testing of Nuclear Explosive Devices

        Article 5(a) prohibits the testing of any nuclear explosive
    device by a Party. Article 5(b) requires each Treaty Party to
    prohibit any testing of any nuclear explosive device within its
    territory. Article 5(c) prohibits Treaty Parties from assisting
    or encouraging the testing of any nuclear explosive device by
    any State anywhere.

    Article 6: Declaration, Dismantling, Destruction or Conversion of
            Nuclear Explosive Devices and the Facilities for their
            Manufacture

        Article 6(a) requires each Treaty Party to declare any
    capability for the manufacture of nuclear explosive devices.
    Article 6(b) requires each Treaty Party to dismantle and
    destroy any nuclear explosive device that it manufactured prior
    to the entry into force of the Treaty. Article 6(c) requires
    Treaty Parties to destroy facilities for the manufacture of
    nuclear explosive devices or, where possible, to convert them
    to peaceful uses. Article 6(d) obligates Treaty Parties to
    permit the IAEA and the Commission established by Article 12 to
    verify the processes of dismantling and destruction of the
    nuclear explosive devices, as well as the destruction or
    conversion of the facilities for their production.
        The Treaty of Tlatelolco and the Treaty of Rarotonga do not
    have provisions corresponding to Article 6. This article was
    drafted in the wake of revelations by South Africa in March
    1993 that it had developed and dismantled six nuclear explosive
    devices. The drafting group took the view that the Treaty must
    have a mechanism to verify that South Africa's nuclear program
    had been effectively terminated, given that the African
    nuclear-weapon-free zone would be the first nuclear-weapon-free
    zone to integrate a state that formerly possessed nuclear
    weapons. (South Africa participated fully in the drafting
    group.) Article 6 recognizes and reinforces the role of the
    IAEA to verify the denuclearization of Treaty Parties affected
    by this article and grants the Parties to the Treaty the
    authority to confirm denuclearization independently under the
    aegis of the African Commission on Nuclear Energy (created by a
    subsequent article).

    Article 7: Prohibition of Dumping of Radioactive Wastes

        Article 7(a) requires each Treaty Party to either implement
    the Bamako Convention on the Ban of the Import into Africa and
    Control of Transboundary Movement and Management of Hazardous
    Wastes within Africa ``in so far as it is relevant to
    radioactive waste,'' or to use the measures contained in that
    Convention as guidelines for their activities regarding such
    wastes. The Bamako Convention obligates its Parties to take
    appropriate measures within the areas under their jurisdiction
    to prohibit the importation into Africa of all hazardous wastes
    by non-Contracting Parties and regulates the trans-boundary
    movement of such wastes in Africa. Article 7(b) further
    obligates Treaty Parties not to assist or encourage the dumping
    of radioactive waste ``and other radioactive matter'' anywhere
    within the zone. To ensure clarity and consistency with
    existing international legal obligations of the United States
    (e.g., under the 1972 Convention on the Prevention of Marine
    Pollution by Dumping of Wastes and Other Matter), I recommend
    that the United States include the following statement in its
    instrument of ratification:

              The United States of America understands the term
            ``dumping'' as used in the ANWFZ Treaty with respect to
            the maritime domain to be identical to that term as
            defined in the 1982 United Nations Convention on the
            Law of the Sea.

    Article 8: Peaceful Nuclear Activities

        Article 8 declares that nothing in the Treaty may be
    interpreted as preventing the use of nuclear science and
    technology for peaceful purposes. Treaty Parties undertake to
    promote the peaceful use of nuclear energy and to establish and
    strengthen mechanisms for cooperation. They are encouraged to
    make use of the IAEA's program of assistance and to strengthen
    cooperation under the African Regional Cooperation Agreement
    for Research, Training and Development Related to Nuclear
    Science and Technology.

    Article 9: Verification of Peaceful Uses

        Each Treaty Party undertakes to conduct all of its nuclear
    activities ``under strict non-proliferation measures to provide
    assurance of exclusively peaceful uses'' and to conclude a
    comprehensive safeguards agreement with the IAEA to this end.
    The Treaty Parties further undertake not to provide source or
    special fissionable material, or equipment or material relevant
    to the processing, use or production of special fissionable
    material to any non-nuclear-weapon state unless such items are
    subject to a comprehensive IAEA safeguards agreement. The
    requirement of full-scope safeguards for nuclear trade is more
    stringent than that in the NPT and reinforces a long-held
    policy of the United States, adopted by the Nuclear Suppliers
    Group, of requiring full-scope safeguards as a condition of
    nuclear supply. Article 9 would not prohibit the export of such
    items for peaceful uses in any of the five nuclear weapon
    states in the absence of such an agreement.

    Article 10: Physical Protection of Nuclear Materials and Facilities

        Each Treaty Party is obligated to ``maintain the highest
    standards of security and effective physical protection of
    nuclear materials, facilities and equipment to prevent theft or
    unauthorized use and handling.'' Each Treaty Party must apply
    measures of physical protection equivalent to those in the
    Convention on Physical Protection of Nuclear Material and
    included in the recommendations and guidelines developed by the
    IAEA for physical protection. The threat of theft or sabotage
    of nuclear materials poses a global proliferation risk and a
    potential danger to public health and safety. The most
    effective means of preventing the illicit trafficking of
    nuclear materials is at the source. Thus, the physical
    protection of nuclear materials has been recognized as a key
    element of international strategies to prevent the unauthorized
    use of nuclear materials.

    Article 11: Prohibition of Armed Attack on Nuclear Installations

        Treaty Parties undertake not to take any action, or assist
    or encourage any action, aimed at an armed attack ``by
    conventional or other means'' against nuclear installations in
    the zone. The drafting group explained that its chief concern
    was attacks against nuclear reactors or other significant
    nuclear facilities that could spread radiation across borders.
    As noted earlier, the definition of ``nuclear installations''
    is sufficiently broad to include nearly any facility or site
    which contains ``significant quantities'' of radioactive
    materials. The Treaty does not further define ``significant
    quantities,'' but the term is defined and used in IAEA
    practice. This prohibition applies only to Treaty Parties.
    There is no corresponding obligation under any of the
    Protocols.

    Article 12: Mechanism for Compliance

        Article 12 creates the African Commission on Nuclear Energy
    (AFCONE, also referred to as the Commission) as specified in
    Annex III. The Commission is responsible for: collating and
    distributing reports related to the purposes of the Treaty;
    convening meetings of the Treaty Parties; reviewing the
    application of safeguards; bringing into effect the complaints
    procedure (Annex IV); and encouraging international, regional,
    and sub-regional cooperation in the peaceful uses of nuclear
    energy.

    Article 13: Report and Exchanges of Information

        Each Treaty Party must submit an annual report to the
    Commission on its nuclear activities and other matters relating
    to the Treaty, as well as report promptly any ``significant
    event'' affecting the implementation of the Treaty. The
    Commission shall also request the IAEA to provide it with an
    annual report on the activities of the African Regional
    Cooperation Agreement for Research, Training and Development
    Related to Nuclear Science and Technology (AFRA).

    Article 14: Conference of Parties

        The Depositary shall convene a conference of all Treaty
    Parties as soon as possible after the entry into force of the
    Treaty to elect members of the Commission and determine the
    location of its headquarters. Subsequent conferences are to be
    held at least every two years.

    Article 15: Interpretation of the Treaty

        Disputes arising from interpretation of the Treaty shall be
    settled by negotiation, by recourse to the Commission, or
    through another procedure agreed to by the Treaty Parties,
    which may include an arbitral panel or referral to the
    International Court of Justice.

    Article 16: Reservations

        No Treaty Party may take a reservation to the Treaty (or to
    the Annexes, which according to Article 22 form an integral
    part of the Treaty).

    Article 17: Duration

        The Treaty is of unlimited duration and shall remain in
    force indefinitely once its entry-into-force provisions are
    fulfilled.

    Article 18: Signature, Ratification and Entry Into Force

        Any State within the African zone is eligible to sign the
    Treaty. This article provides that the treaty enters into force
    upon the date of deposit of the 28th instrument of
    ratification, which occurred on July 15, 2009. For a signatory
    that now ratifies the Treaty, the Treaty will enter into force
    for that State on the date of deposit of its instrument of
    ratification.

    Article 19: Amendments

        An amendment to the Treaty must first be submitted to the
    Commission for circulation to all Treaty Parties. The amendment
    will be adopted by the assent of a two-thirds majority of the
    Treaty Parties, effected either by written communication to the
    Commission or through the proceedings of a conference convened
    for that purpose. The conference itself can be convened through
    the concurrence of a simple majority of Treaty Parties.
        An amendment so adopted will enter into force for all
    Parties after a majority of Treaty Parties have formally
    deposited their instruments of ratification to the amendment.
    In other words, Treaty Parties that have not assented to or
    ratified the amendment in question would nevertheless be
    legally bound by it. This Article does not apply to non-parties
    to the Treaty. As previously noted, the Protocols specify that
    any amendment to the Treaty that affects the obligations of
    Protocol Parties would not be binding upon those Protocol
    Parties unless and until they formally give their assent to the
    amendment.

    Article 20: Withdrawal

        A Treaty Party can withdraw from the Treaty ``if it decides
    that extraordinary events, related to the subject-matter of
    this Treaty, have jeopardized its supreme interests.''
    Withdrawal is effected by giving notice to the Depositary
    twelve months in advance of withdrawal, along with a statement
    detailing the ``extraordinary events'' that require such
    withdrawal. Treaty obligations are still in effect during this
    twelve-month period.

    Article 21: Depositary Functions

        The Depositary of the Treaty is the Secretary-General of
    the OAU (now the African Union), who is empowered to receive
    instruments of ratification, register the Treaty and its
    Protocols with the United Nations, and transmit certified
    copies of the Treaty and Protocols to all States eligible to
    become Parties to the Treaty or Protocols, keeping them
    informed of signatures and ratifications to both.

    Article 22: Status of the Annexes

        As previously noted, the Annexes form an integral part of
    the Treaty, and any reference to the Treaty includes the
    Annexes.

    Annex I: Map of an African Nuclear-Weapon-Free Zone

        Annex I is the authoritative map of the zone, as recognized
    in Article 2. All the land territory, internal waters,
    territorial seas and archipelagic waters and the airspace above
    them, as well as the sea bed and subsoil beneath of the zone
    depicted on the map are included in the zone, including the
    island territories of France and Spain. It is worth noting that
    Article 2 of the Treaty states that the Treaty and its
    Protocols shall, except where otherwise stated, apply to
    territory within the zone. Hence, as a general matter, the
    obligations of the Parties to the Treaty or its Protocols do
    not extend to the high seas or to any State's exclusive
    economic zone within the zone.
        As previously discussed, the Chagos Archipelago and Diego
    Garcia appear on the map with the declaration that they
    ``[appear] without prejudice to the question of sovereignty.''
    The United Kingdom ratified Protocols I and II with the
    following declaration:

              The Government of the United Kingdom have no doubt as
            to their sovereignty over the British Indian Ocean
            Territory and do not accept the inclusion of that
            Territory within the African nuclear-weapon-free zone
            without their consent. The Government of the United
            Kingdom do not accept any legal obligation in respect
            of that Territory by their adherence to Protocols I and
            II.

        The United Kingdom is not eligible to become a Party to
    either the Treaty or Protocol III (which applies certain Treaty
    provisions to territories within the zone over which France and
    Spain exercise de jure or de facto international
    responsibility). In light of British sovereignty and the
    British declaration, Diego Garcia is not part of the
    ``territory'' of the Zone as defined in the Treaty. Thus, as
    long as the United Kingdom maintains the current situation,
    neither the Treaty nor Protocol III will apply to U.S.
    operations on Diego Garcia.
        To avoid any misunderstanding on this point, I recommend
    that the United States include the following statement in its
    instrument of ratification:

              The United States of America notes that Diego Garcia,
            part of the chain of archipelagic islands in the Indian
            Ocean known as the British Indian Ocean Territories and
            under the sovereign authority of the United Kingdom of
            Great Britain and Northern Ireland, appears on the map
            of the zone of the Treaty, as set forth in Annex I,
            ``without prejudice to the question of sovereignty.''
            The United States notes further that the United Kingdom
            of Great Britain and Northern Ireland is not eligible
            to become a Party either to the Treaty or to Protocol
            III. Thus, neither the Treaty nor Protocol III applies
            to the activities of the United Kingdom, the United
            States, or any other State not Party to the Treaty on
            the island of Diego Garcia or elsewhere in the British
            Indian Ocean Territories. Accordingly, no change is
            required in U.S. Armed Forces operations in Diego
            Garcia and elsewhere in the British Indian Ocean
            Territories.

    Annex II: Safeguards of the International Atomic Energy Agency

        This Annex obligates Treaty Parties to conclude a
    comprehensive safeguards agreement with the IAEA ``on all
    source or special fissionable material in all nuclear
    activities within the territory of the Party, under its
    jurisdiction or carried out under its control anywhere.'' This
    agreement shall be equivalent in scope and effect to the
    standard full-scope agreement (INFCIRC/153 corrected),
    currently required for all non-nuclear-weapon-state Parties to
    the NPT, and must be in force for each Treaty Party not later
    than eighteen months after the entry into force of the Treaty
    for that Party. Each Treaty Party must also include in its
    annual report to the African Commission on Nuclear Energy a
    copy of the overall conclusions of the most recent report by
    the IAEA on its inspection activities within the territory of
    the Treaty Party. Of the 29 States Parties to the Treaty, 22
    States have already met this requirement by bringing into force
    comprehensive safeguards agreements with the IAEA pursuant to
    NPT Article III. The entry into force of the Treaty in 2009
    should give further impetus to the remaining 17 African States
    to conclude such agreements.

    Annex III: African Commission on Nuclear Energy

        Annex III specifies the composition and terms of membership
    in the financing of the Commission created under Article 12.

    Annex IV: Complaints Procedure and Settlement of Disputes

        Annex IV specifies in detail the procedure whereby a Treaty
    Party may bring a complaint against another Treaty Party or a
    Party to Protocol III (Spain or France) for breach of its
    respective obligations. The complainant must bring the
    substance of its complaint to the attention of the Party that
    is the subject of the complaint and give that Party 30 days to
    provide an explanation and resolve the matter. If the matter is
    not resolved, the complainant may bring the complaint before
    the Commission, which will afford the other Party 45 days to
    provide an explanation.
        The Commission may then decide to request an inspection by
    the IAEA of the territory of the Party complained of, to be
    conducted as soon as possible. The Commission may also
    designate representatives to accompany the Agency's inspection
    team. The Party complained of must give the inspection team
    ``full and free access to all information and places'' within
    its territory that the inspectors deem relevant to their
    inspection. That Party is allowed to have its representatives
    accompany the inspection team provided that the inspectors are
    not delayed or otherwise impeded. The IAEA shall report its
    findings to the Commission as quickly as possible; the
    Commission will then inform all Treaty Parties of its decision
    as to whether the inspected Party is in breach of its
    obligations.
        If the Commission decides that the inspected Party is in
    breach of its obligations or that it failed to comply with the
    inspection procedures, the Treaty Parties shall meet in
    extraordinary session to discuss the matter and may make
    recommendations to the Party in breach and to the OAU. The OAU
    may refer the matter to the United Nations Security Council.
        Costs involved in carrying out the complaint procedures
    will be borne by the Commission. In the case of abuse (e.g.,
    making complaints without merit), the Commission shall decide
    whether the complaining Party should bear any costs.
        Finally, Annex IV empowers the Commission to establish its
    own inspection mechanisms.