[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.