[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.


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