Oceans in the Nuclear Age: Nuclear Free Zones

In 1959, the Antarctic Treaty created the first nuclear weapon free zone (NWFZ) as part of a broader agreement to demilitarize Antarctica and the high seas that surround it. [1]Ten years later, and in the wake of the Cuban Missile Crisis, a reduction in the spread of nuclear weapons was a high priority worldwide. At the initiative of first Brazil , and then Mexico , negotiations started in1962-63 among Latin American countries that eventually resulted in the 1967 Treaty of Tlatelolco. [2] Currently there are half a dozen denuclearized zones (see chart below), all of which include at least the parties' territorial seas; some reach much further out into the oceans. Soon after the 1968 Treaty on the Nonproliferation of Nuclear Weapons (NPT) was opened for signatures, which had global application. The NPT was a bargain: The nuclear powers provided assurances to pursue disarmament and protect to the non-nuclear states if they were threatened with nuclear weapons, in exchange for the non-nuclear states' promises to not develop or possess nuclear weapons. Finally, there are also two treaties that apply to the seas entirely: both the 1971 Seabed Treaty and the UN Convention on the Law of the Sea apply broadly to all of the oceans, albeit in specific ways. [3]

The Regional Treaties

The Treaty of Tlatelolco created the first of the regional NWFZ's and is in some ways the least restrictive. It does not explicitly prohibit research on nuclear weapons, only the receipt of assistance in development and manufacture or possession of nuclear weapons. It also allows “explosions for peaceful purposes,” but the parties have interpreted this to not be effective so long as there is no technical distinction between nuclear devices for peaceful and warlike purposes. [4] The geographic boundaries of the Treaty are broad, however, and include a large area of the ocean around Central and South America .

The three later regional treaties, Pelindaba (Africa), Bangkok ( Southeast Asia ), and Raratonga (South Pacific) are fairly similar. [5] All three have: a) prohibitions on possession and manufacture of nuclear weapons and receiving aid in researching them; b) a complaint procedure for inspection; and c) prohibitions on the dumping of radioactive waste. Because of this last provision, the treaties are sometimes referred to as “nuclear-free-zones” to indicate that they extend beyond just weapons. [6]

Summary of Regional Nuclear Weapon Free Zones
	Geography	R&D Permitted	Anti-Dumping	Inspection	Notes
Treaty on the Non-Proliferation of Nuclear Weapons (NPT) 1968	Scattered	Yes, but without assistance, can't produce weapon.	No.	No.	Renewed 1995.
Africa (Pelindaba) 1995	African Continent + OAU islands	No.	Yes. Refers to Bamako Convention.	Yes. By IAEA after 75 day delay.	3 Protocols on not testing, threat of use, adherence for territories in Africa for various Western countries.
Southeast Asia (SEANWFZ) 1995	All SEA	No.	Yes. Not at sea or atmosphere; refers to IAEA standards for land	Yes. Request for "fact finding mission" by treaty committee within 3 weeks of request.	Protocol for UN Sec. Council countries to sign, to not encourage violations.
Tlatelolco 1967	Roughly, Mexico and all points south in the Americas , many Caribbean nations	Like NPT; can't assist, be assisted, or manufacture but no explicit ban on research.	Not addressed.	Has an undefined "control system" (need to research) and requires parties to have IAEA safeguards.	Allows explosions "for peaceful purposes."
South Pacific ( Rarotonga )	Complicated; roughly P. New Guinea and SE. Map in annex to treaty.	Like NPT; can't assist, be assisted, or manufacture but no explicit ban on research.	No dumping of radwaste in sea; precatory language supporting environmental treaty in progress.	After complaint and "reasonable opportunity" to explain, inspection by team at direction of Treaty committee.	3 Protocols on stationing, testing, threat of use open for signature by some nuclear powers.
Antarctic	The area south of 60° South Latitude including all ice shelves but not including "high seas"	No.	No disposal of radioactive waste.	All installations, equipment, ships loading or unloading are open for inspection at all times.	No nuclear explosions or military activity.
UNCLOS	Territorial Seas , EEZs, Continental shelves.	Not addressed.	No dumping by foreign party in territorial sea.	Not addressed.	Art. 88 "High seas … reserved for peaceful purposes."
Seabed Treaty	The seabed, defined as area outside parties 12 mile territorial sea.	Not addressed.	Not addressed.	Negotiations between parties, then via UN Security Council, or through parties' "own means."

There are, however, differences between the treaties. Pelindaba and Bangkok prohibit research on nuclear weaponry; Raratonga does not. They vary in how much of the ocean they claim to encompass: Pelindaba reaches out only to the territorial sea, Bangkok reaches out through the EEZ, [7] and Raratonga encompasses a large swath of the South Pacific that meets with the regions of the Treaties of Tlatelolco and Antarctica to the east and south, respectively. [8] All of the these treaties have at least one protocol (some have more) that are open for signature by one or more of the “P-5” nuclear powers [9] that provides assurances to not to contribute to a breach of the treaty by one of the contracting parties, an obligation often referred to as “negative assurances.” There are also “positive assurances” by nuclear states to come to the aid of the non-nuclear states if they are the object of nuclear threats, such as the UN Security Council declaration by the United States , the Soviet Union, and the UK near the time when the NPT was opened for signature. [10]

The Antarctic treaty is the most sweeping, as it prevents any military activity whatsoever south of 60° S, as well as the disposal (not just “dumping”) of nuclear waste. [11] The treaty appears to apply to the oceans in that area as well, although the treaty states that it shall not “in any way affect the rights, of any State… with regard to the high seas within that area.” [12]

Oceanwide treaties

Article 88 of the United Nations Convention on the Law of the Sea states that “[t]he high seas shall be reserved for peaceful purposes.” [13] It also sets forth documentation requirements for the carriage of nuclear material and that vessels in such carriage observe precautionary measures. [14] The 1971 Seabed Treaty, however, is more specific. It bars nuclear weapons or other weapons of mass destruction from the seafloor, and contains several provisions for inspection. [15] If a state has doubts about compliance of another state with the treaty, the treaty requires the doubting state to consult first with the state in question, and second with other parties to the treaty, and finally to refer the matter to the UN Security Council. [16] In addition, parties may also pursue verification via the framework of the United Nations or their own means. [17]

Emerging NWFZ's

The progress of a Middle Eastern Weapons of Mass Destruction Free Zone (MEWMDZ) is inextricably tied to the political stability of the region in general. Israel has insisted that any such treaty include other weapons of mass destruction. [18] Although the possibility of an actual agreement being reached might appear quite slim, there are some signs that Israel may be considering serious negotiations as it loses what is widely accepetd de facto as its nuclear edge in the region. [19]

There was a conference in Uzbekistan in 1997 to discuss an Central European NWFZ (CENWFZ) that would probably include the Black and Caspian Seas . [20] A draft was completed in 2002. [21] The idea of a South Asian NWFZ has been discussed, [22] but has not progressed recently. [23] Finally, a “limited nuclear free zone” has been discussed that would target the Korean peninsula and include parts of the territory of nine countries. [24]

Unilateral Bans on Nuclear Material

The regional NWFZ treaties all contain provisions that permit the contracting parties to allow foreign ships to visit without regard to the nuclear nature of their cargo. [25] However, some countries have also banned nuclear material and weapons from their territory entirely. The CENWFZ, for example, began when Mongolia declared itself a NWFZ in 1992. [26]

New Zealand has been particularly vehement in keeping nuclear material out of its waters in recent years. In 1985 New Zealand denied harbor to a U.S. warship that may have been carrying nuclear weapons, leading the U.S. to abrogate its obligations to New Zealand under the ANZUS Treaty, a trilateral security treaty to which Australia was also a party. [27] Two years later New Zealand codified this nuclear-free policy, prohibiting both nuclear powered ships and ships with nuclear weapons from its territory, including its territorial sea. [28]

Conclusion

Nuclear weapon free zones are a keystone of nuclear nonprloliferation. They provide a demarcation of areas of nonproliferation, and demonstrate that elimination of nuclear weapons from a large geographic area is practically feasible.

Notes

[1] The impetus came both because of heightened scientific activity in the International Geophysical Year in 1957-58 and as part of a U.S. effort to defuse tensions over an Antarctic territorial dispute between the UK and Chile and Argentina, since the U.S. had signed a common defense treaty with both Argentina and Chile. See Paul L. Stoller, Protecting the White Continent: Is the Antarctic Protocol Mere Words or Real Action? 12 Ariz. J. Int'l & Comp. Law 335, 340-41 (1995). The plan followed on to the first proposal of a NWFZ, the unsuccessful Rapacki Plan of 1958, which sought to establish a nuclear weapons ban in Central Europe . Jozef Goldblat, Nuclear-Weapon-Free Zones: A History and Assessment , 4(3) The Nonproliferation Review 18, 18.

[2] U.S. Department of State, Narrative on The Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (Treaty of Tlatelolco) , at http://www.state.gov/t/ac/trt/4796.htm.

[3] “Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil Thereof,” 23 U.S.T. 701, 955 U.N.T.S. 115, 10 I.L.M. 146 (1971) [hereinafter Seabed Treaty ]. This treaty is similar to, and may have been inspired in part by, the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,” 18 U.S.T. 2410, 610 U.N.T.S. 205 (1967). See Narrative of the U.S. State Department on the Seabed Treaty, at http://www.state.gov/t/ac/trt/5187.htm.

[4] This is in light of Article I: “The Contracting Parties… prohibit and prevent in their respective territories… The testing, use, manufacture, production or acquisition by any means whatsoever of any nuclear weapons” where Article V defines nuclear weapons as “any device which is capable of releasing nuclear energy in an uncontrolled manner.” Prof. Goldblat notes that Argentina and Brazil contested this interpretation until 1991, supra note 1 at 19.

[5] African Nuclear Weapon Free Zone Treaty, June 23, 1995, 35 I.L.M. 698; Treaty on the Southeast Asia Nuclear Weapon-Free Zone, 35 I.L.M. 635; South Pacific Nuclear Free Zone Treaty

[6] E.g., the full title of the Treaty of Raratonga is the “South Pacific Nuclear Free Zone Treaty.”

[7] That the SEANWFZ reached out to the EEZ one of the reasons the United States refused to sign the treaty. Issues on the Establishment and Implementation of the Treaty on the South-east Asia Nuclear Weapon-Free Zone (SEANWFZ) , Malaysian Institute for Nuclear Technology Research, at http://www.mint.gov.my/policy/fora_asean/issue_seanwfz.htm ; Rodney W. Jones and Mark G. McDonough, Tracking Nuclear Proliferation: A Guide in Maps and Charts (1998) , at 303.

[8] Goldbat notes that the countries have banned the presence of nuclear weapons only to the territorial sea, supra note 1 at 15. Presumably the larger area applies to dumping and testing.

[9] The U.S. , China , the U.K. , France , and Russia . See, e.g. , Capt. Mark E. Rosen, Nuclear Weapon Free Zones: Time for a Fresh Look , Duke J. Comp & Int'l L. 29, 34 (1997).

[10] U.S. State Department, Narrative on The Treaty On The Non-Proliferation Of Nuclear Weapons , at http://www.state.gov/www/global/arms/treaties/npt1.html . The three nations made formal declarations that they would seek immediate Security Council action in the event that any non-nuclear-weapon state party to the Treaty that was the object of nuclear aggression or threats.

[11] The Antarctic Treaty, opened for signature 1 December 1959, 402 U.N.T.S. 71. In 1991, an additional Protocol on Environmental Protection was opened for signature, but did not change the status of the total nuclear ban on the cold continent.

[12] The Antarctic Treaty, supra note 10, Article VI.

[13] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS Convention ].

[14] Id. , Article XXIII.

[15] The Seabed Treaty, Art. III.

[16] Id. , Art. III, ¶2-4.

[17] Id., Art. III, ¶ 5.

[18] See Rosen, supra note 10, at 41-42.

[19] Mohamed ElBaradei, head of the International Atomic Energy Agency, promoted the idea of a MEWMDZ while in Israel in July of 2004. Besides Iran , there is also evidence that Saudi Arabia , Egypt , Algeria and Syria are keeping their nuclear options open. If you push, I'll shove; Weapons of mass destruction , The Economist , Jul 10, 2004 at 53. Israel agreed to attend an IAEA-sponsored regional “discussion” of how other NWFZ's have worked, but not more substantial “strategic peace talks” Mr. ElBaradei was hoping for. Matthew Cook, IAEA to Host Middle East Nuclear Forum , Arms Control Today , Sep. 2004, at 37.

[20] Bonnie Jenkins & Theodore M. Hirsch, Arms Control and Disarmament , 32 Int'l Law . 427, 432 (1998).

[21] Scott Parrish, Central Asian States Achieve Breakthrough on Nuclear Weapon-Free Zone Treaty , Monterey Institute of International Studies , at http://cns.miis.edu/pubs/week/020930.htm.

[22] See , e.g., James Steinberg, U.S. Non-proliferation Strategy: “No Higher Priority,” U.S. Foreign Pol'y Agenda , Aug. 1997, at 9.

[23] Praful Bidwai , India Sharpens Its Nuclear Claws , Global Information Network , Jan 29, 2002. The new Congress government in India will likely change the situation.

[24] Rosen, supra note 10, at 43-44.

[25] See e.g, Treaty of Pelindaba, Art. 4 § 2; Tlatelolco did not contain an explicit provision but the U.S. interpreted the treaty as not affecting its transport privileges, see Proclamation by President Nixon on Ratification of Additional Protocol II to the Treaty for the Prohibition of Nuclear Weapons in Latin America , available at http://www.state.gov/t/ac/trt/4796.htm .

[26] Parrish, supra note 21.

[27] Gary Harrington, International Agreements: United States Suspension of Security Obligations Toward New Zealand , 28 Harv. Int'l L.J. 139 (1987).

[28] New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act, No. 86 (1997), available at http://www.legislation.govt.nz/ . The act does not apply to innocent or transit passage (§ 11); see also New Zealand Nuclear Free Zone Extension Bill, speech by Jeanette Fitzsimons MP of the NZ Green Party, at http://www.greens.org.nz/searchdocs/speech5334.html.

Summary of Regional Nuclear Weapon Free Zones