The process of amendments to the Treaty of Tlatelolco
and its full enforcement

Dr. Antonio Stempel Paris
Former Secretary General of OPANAL (1986-1993)

It is a well-known fact that the Treaty of Tlatelolco was the result of a broad consensus, reached by all the countries of Latin America and the Caribbean, at a time when the States of the region faced the dramatic reality that they had become another pawn in the strategic plans and rivalry of the nuclear powers.

However, the process of drafting the Treaty was arduous and highly complex: several years were to pass from the joint declaration issued by the presidents of Bolivia, Brazil, Chile, Ecuador and Mexico on 29 April 1963, to the opening for signature of the Treaty on 14 February 1967. The topic was discussed by the United Nations General Assembly, at the Preliminary Meeting on the denuclearization of Latin America (REUPREDAL) in November 1964, and at the Second, Third and Fourth Sessions of the Preparatory Commission for the denuclearization of our region (1965, 1966 and 1967).

Similarly, from the time the Treaty opened for signature to its entry into force in April 1969, many steps had to be taken to complete the number of signatures, ratifications and waiver declarations required, in accordance with Article 28 of the Treaty.

At that time the Parties to the Treaty were Barbados, Bolivia, the Dominican Republic, Ecuador, El Salvador, Honduras, Mexico, Nicaragua, Paraguay, Peru and Uruguay.

By 1977, on the tenth anniversary of the Treaty, another eleven Latin American and Caribbean States had become Parties to it, these being: Bahamas, Colombia, Costa Rica, Grenada, Guatemala, Haiti, Jamaica, Panama, Suriname, Trinidad and Tobago, and Venezuela.

By the twentieth anniversary, in 1987, only Antigua and Barbuda had been added to the list, on reaching its independence in 1983.

As for the rest of the States of the region, the outlook was plagued with difficulties and differing positions:

Argentina had signed the Treaty on 27 September 1967 and had played an active role in the process of drafting it, but had yet to ratify it.

Brazil and Chile had also signed it in 1967 and ratified it, the former on 29 January 1968 and the latter on 9 October 1974, but neither had exercised the waiver set forth in paragraph 2 of Article 28 of the Treaty, although both had played a significant role in negotiating the Treaty and its drafting.

With respect to Cuba, its government's position of abstaining from signing the Treaty of Tlatelolco was well-known: "aside from motivations stemming from its own specific situation and its foreign-policy principles, Cuba has refrained from signing it on the understanding that the noble aim of the Treaty of Tlatelolco... will remain a mere illusion until it covers the denuclearization of the only nuclear power in the hemisphere. Cuba does not contest it. It abstains." ¹

For their part, Belize and Guyana came under the provisions of paragraph 2 of Article 25 of the Treaty, which stated: "The General Conference shall not take any decision regarding the admission of a political entity part or all of whose territory is the subject, prior to the date on which this Treaty is opened for signature, of a dispute or claim between an extra-continental country and one or more Latin American States, so long as the dispute has not been settled by peaceful means."

Lastly, there were other States in the region that were not linked to the Treaty and had recently reached their independence. These were Dominica, Saint Lucia, St. Kitts and Nevis, and Saint Vincent and the Grenadines.

Moreover, with regard to the Treaty's Additional Protocols, France had not ratified Additional Protocol I.

Belize and Guyana

It is important to point out that both Guyana and Belize (once it had reached its independence) had stated their willingness to sign the Treaty, to which end the General Conference of OPANAL appointed a Good Offices Committee in order to reach a satisfactory solution to the problem both for Guyana and for Venezuela.

The Committee attempted for several years to devise formulas to facilitate the accession of Guyana (and Belize, eventually) to the Treaty, but without amending it, until the Charter of the OAS was modified, particularly Article 8 (analogous to paragraph 2 of Article 25 of the Treaty of Tlatelolco), thereby paving the way for an initiative to amend said paragraph of the Treaty.

In effect, through Resolution 244 (XI) of 27 April 1989, it was agreed: "To welcome the Declaration drafted by the Delegation of Venezuela to propose amendments to the Treaty of Tlatelolco with a view to achieving the incorporation of all the States of the region into the Treaty".

This opened a path that for a long time had been viewed with apprehension and reservations by various foreign ministries in the region and which in fact prevented the true integration of the Nuclear Weapon-Free Zone provided for in Article 4 of the Treaty.

Thus, through Resolution 267 (E-V) of the General Conference, dated 3 July 1990, the term "and the Caribbean" was added to the legal title of the "Treaty for the Prohibition of Nuclear Weapons in Latin America", in response to a very legitimate aspiration of the States of that part of the Continent.

Subsequently, on 10 May 1991, through Resolution 268 (XII), paragraph 2 of Article 25 of the Treaty was replaced with the following text:

"The condition of State Party to the Treaty of Tlatelolco shall be restricted to Independent States which are situated within the Zone of application of the Treaty in accordance with Article 4 of same, and with paragraph 1 of the present Article, and which were members of the United Nations as of December 10, 1985, as well as to the non-autonomous territories mentioned in document OAS/CER.P, AG/Doc. 1939/85 of November 5, 1985, once they attain their independence".

This removed the legal obstacles that prevented both Belize and Guyana from becoming Parties to the Treaty of Tlatelolco.

Argentina, Brazil and Chile

The status of these three countries regarding the Treaty of Tlatelolco was rather more complex, and their full accession was plagued with difficulties, although they all reiterated their full commitment to the aims and purposes of the Treaty.

The minutes and documents of the various General Conferences of OPANAL reflect the hindrances that prevented the three States from becoming part of the Tlatelolco system. Moreover, two of them had the most advanced levels of nuclear development in Latin America, and international public opinion, particularly in Latin America itself, did not always trust the "good intentions" of the dictatorships that prevailed in both.

Let us study the positions set forth by the representatives of Argentina, Brazil and Chile at various sessions of the General Conferences of OPANAL.

The representative of the Argentine Republic stated at the Eleventh Regular Session of the General Conference (April 1989): "My Government wishes to reiterate again the Argentine Republic's firm, unwavering commitment to the aims and purposes of the Treaty of Tlatelolco, and to point out its strict compliance with the obligations it has assumed as a signatory party, in accordance with Article 18 of the Vienna Convention on Treaty Law." He went on to add: "If the Treaty has led to generalized accession to its aims and purposes on the part of the countries of Latin America and the Caribbean, we must ask what are the problems that are preventing some States from becoming full Parties to it".

"It is clear", the representative went on to say," that the States of the region are not pursuing a hidden agenda with regard to nuclear proliferation. From Argentina's point of view, the reasons are due to factors that go beyond the purview of the Treaty".

"Allow me, Mr. Chairman, to emphasize this point, since it has a bearing on the enormous sacrifices my country has made over the past forty years to attain a certain level of technological development in the nuclear field, which we consider essential to our economic and social future."

"Major efforts have been invested in that development and it is logical that we should want to protect its significant economic value. The pioneers who drafted the Treaty did not adequately address the problems stemming from the need to preserve industrial secrets, perhaps because a clear awareness of them did not exist at the time. The Treaty's control system fails to make provision for this delicate issue on establishing such a generous distribution of information in Articles 14, 15 and 16. Over and beyond any possible regulations on the matter, these provisions are inadequate for protecting industrial secrets, even as regards the activities of conventional industry."

"Furthermore," continued the representative of Argentina," our need to boost our technological capacity has led us to reject the restrictive and discriminatory policies of the Non Proliferation Treaty. This tendency to apply restrictions on the development of the peaceful uses of nuclear energy, which are not limited to those provided for in the NPT, is what has prevented significant progress from being made in bilateral talks with the IAEA. The Safeguards Agreement seeks to modify the contents of the Treaty of Tlatelolco by illegitimately imposing additional obligations that go beyond the scope of the Treaty."²

Previously, during the Tenth Regular Session of the General Conference (April 1987), the Head of the Brazilian Delegation had stated: "The Treaty of Tlatelolco was conceived and drafted at a time in which it was understandably impossible to evaluate the impact of the scientific and technological developments that were to take place during the following two decades on the development processes of the States in the region. Consequently, today some of its provisions lack a deeper analysis of the need to provide suitable protection to the legitimate interests of our countries."

"The issue of industrial secrets is an example of this. The inspections referred to in Article 16 could lead to the risk of failing to ensure the confidentiality that is essential in certain industrial processes, to the unjustified detriment of the States affected."

"By the same token, such inspections would not be restricted, as they normally would be, to specifically nuclear industrial and technological activities, but could presumably be extended to countless other sectors. This is particularly significant if we consider that almost eighty percent of the components and inputs needed for nuclear activities are provided by non nuclear industrial sectors."

The representative of Argentina went on to stress that: "I would like to reiterate our understanding on the current status and future prospects of Tlatelolco. To strengthen the Treaty system, firstly it is essential to ensure full compliance with the general rule, regarding the Treaty's entry into force, laid down in paragraph 1 of Article 28, particularly what it states with regard to militarily nuclear powers, and secondly to guarantee strict compliance on the part of those powers with the obligations undertaken in the Additional Protocols."³

As for Chile, its representative pointed out at the same Eleventh Regular Session of the General Conference that:" We firmly believe that as long as a State that is within the geographical zone covered by the Treaty does not become a Party to it, the instrument will fail to accomplish its aim, this being the denuclearization of Latin America and the Caribbean. We regret once again that Cuba has not become a Party to the Treaty, due to a bilateral conflict..."

He added that:" the best guarantee against the possibility of foreign nuclear aggression is the signing and ratification of the Treaty and its Protocols; we therefore wish to state our concern that France has not yet ratified Additional Protocol I, which is an issue of particular importance given that it is a nuclear power that has been carrying out nuclear explosions for some time in the Southeast Pacific while ignoring the repeated protests and objections of the international community."

"In regard to safeguards, the Delegation of Chile recognizes and acknowledges the efforts made by the Secretary General before the IAEA. Nevertheless, we have seen that the creation of a Safeguards System in keeping with the aims and spirit of the Treaty is not being considered. This leaves us once again with the problem of seeking to apply the Safeguards System of the NPT... while failing to take into account the States that lie within the geographical zone of the Treaty of Tlatelolco but that are not Parties to the Non Proliferation Treaty, as is the case with Chile."⁴

It is important to point out that six joint declarations on nuclear policy had been signed by the Heads of State of Argentina and Brazil since 1985, and a rapid examination of such declarations shows a number of significant coinciding points of view on nuclear matters, among them:

1. Reaffirmation of the exclusively peaceful nature of their nuclear programs.

2. Strengthening of mutual trust. Mutual transparency in nuclear matters. Joint projects, regular visits, contact of all kinds at the political and technical levels, exchanges of information, etc.

3. Application of programs stemming from the peaceful use of nuclear energy, for the benefit of the peoples of both countries.

4. Possibility of extending cooperation in nuclear matters to other countries in Latin America.

5. Coordination of a common foreign policy in the nuclear field.

6. Preservation of peace and security in the region.

As Julio César Carasales⁵, the distinguished Argentinian scholar rightly notes: "The enterprise to which Argentina and Brazil committed themselves in the nuclear field is absolutely unique. It pursues economic aims -- industrial complementarity, pooling efforts rather than duplicating them and therefore reducing costs, etc. -- but its originality lies in the will to develop mutual trust and reciprocal assurance of good faith in a field as delicate as the utilization of nuclear energy. The possibility of either of these two countries developing a nuclear weapon gives rise to concern not only to the parties themselves, but to the entire world, despite their repeated official denials of that possibility."

There can be no doubt, however, that the most important nuclear-policy agreement between Argentina and Brazil came into being on 28 November 1990, when the presidents of both countries signed a joint declaration in Foz de Iguazú in which they pledged to⁶:

1. Adopt a Common Accounting and Control System (SCCC) to be applied to all nuclear activities in both countries.

2. Accomplish the following activities, as an initial stage, within a period of forty-five days following the signing of the Declaration:

a) exchange reciprocal lists describing all their nuclear installations;

b) exchange statements listing the initial inventories of the nuclear materials in each country;

c) conduct the first reciprocal inspections of centralized registering systems, and

d) submit to the International Atomic Energy Agency (IAEA) the Register and Reports System that forms part of the Common Accounting and Control System, in order to make it consistent with the registers and reports that both countries must present to that Agency in accordance with existing safeguards agreements.

3. Enter into negotiations with the IAEA to establish a Joint Safeguards Agreement based on the Common Accounting and Control System.

4. Following the conclusion of the Safeguards Agreement with the IAEA, take the steps needed to facilitate the full entry into force of the Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty of Tlatelolco) in both countries, including arrangements to update and improve the text thereof.

As can be deduced, the Declaration of Foz de Iguazú paved the way for Argentina and Brazil's full accession to the Treaty of Tlatelolco and also provided the possibility of reaching a satisfactory solution to Chile's misgivings, especially with regard to the Safeguards Agreement with the IAEA.

At the same time as important headway was being made towards the full integration of the zone set forth in Article 4 of the Treaty, OPANAL and some of the States Parties in particular redoubled their efforts to achieve the full accession to the Treaty of States that were not Parties to it, or that had yet to ratify Additional Protocol I, as in the case of France.

In that respect, special emphasis was placed on: 1. bringing about a favorable change in Cuba's position regarding the Treaty; 2. securing France's ratification of Additional Protocol I; 3. satisfactorily contributing to Argentina, Brazil and Chile's accession to the Treaty, and 4. promoting the prompt incorporation of the new Caribbean States into the Tlatelolco system.

As we pointed out previously, the question of Belize and Guyana was resolved by amending paragraph 2 of Article 25 of the Treaty through Resolution 268 (XII) of 10 May 1991.

In relation to Cuba, in a note to the President of Mexico, President Castro informed OPANAL of his government's decision to take part in the Agency's activities as an Observer.

"The Government of Cuba -- he stated -- wishes to declare formally on this occasion that its Declaration stems from the Cuban attitude of respect for the letter and spirit of that juridical instrument (the Treaty of Tlatelolco), whereby Latin America, following its pacifist tradition, not only seeks to banish the threat of nuclear war, but is also engaged in the struggle to consolidate a peaceful world based on the sovereign equality of States, mutual respect and good neighborliness."

Subsequently, in the measure that Argentina, Brazil and Chile's accession to the Treaty became increasingly likely, the Government of Cuba repeatedly stated in different forums its will to make Cuba a Party to the Treaty "once the other countries of Latin America have done so."⁷

In the case of France, the Head of the French Delegation made the following statement at the First Commission of the United Nations General Assembly in 1991: "France took note with satisfaction of the decision taken by certain countries of Latin America, particularly Argentina, Brazil and Chile, to adopt measures to expedite the full entry into force of the Treaty for the Prohibition of Nuclear Weapons in Latin America. France has always indicated in this regard that it would not act in anticipation of the decisions of the States of the region regarding the Treaty's entry into force, but would not seek to delay them either. In view of these developments, I hereby wish to announce that France is viewing the possibility of ratifying Additional Protocol I of the Treaty of Tlatelolco in a favorable light."

As for the process of Argentina, Brazil and Chile's accession to the Treaty, in accordance with the Declaration of Foz de Iguazú, wide-ranging negotiations were conducted between representatives of Argentina, Brazil and the IAEA. These led to the conclusion of a Safeguards Agreement between the IAEA, the Brazilian-Argentinian Accounting and Control Agency (ABACC) and the governments of the two countries.

The Safeguards Agreement satisfactorily met Argentina and Brazil's repeated demands concerning the characteristics of such Agreements, incorporated valuable innovations regarding the application of safeguards and cooperation with the IAEA to ensure that nuclear materials were not being used to develop nuclear weapons or other nuclear devices, and also safeguarded the IAEA's right to verify the above through independent evaluations and observations. It also made special reference to technological secrets and to the IAEA's duty to preserve them on fulfilling its Agreement obligations. Similarly, reference was made to trade and manufacturing secrets for the same purpose.

Subsequently, in 1995, Chile negotiated and concluded a Safeguards Agreement with the IAEA that met its requirements in that regard.

A long process of talks was initiated in 1992 between representatives of Argentina, Brazil and Chile, the Council of OPANAL and the IAEA to "update and improve" the text of the Treaty, as stated in the Declaration of Foz de Iguazú, with particular emphasis on Articles 14, 15 and 16.

These delicate, complex negotiations, in which the legitimate aspirations of those three countries had to be reconciled with the Treaty's control requirements and the strict criteria of the International Atomic Energy Agency, were satisfactorily concluded in mid-1992. Thus, on 26 August of that year, Articles 14, 15, 16, 19 and 20 of the Treaty were amended through Resolution 290 (E-VII) of the General Conference, following a proposal by Argentina, Brazil, Chile and Mexico.

Said Articles were amended to read as follows:

Article 14

1. The Contracting Parties shall submit to the Agency and to the International Atomic Energy Agency, for their information, semi-annual reports stating that no activity prohibited under this Treaty has occurred in their respective territories.
2. The Contracting Parties to the Treaty shall simultaneously transmit to the Agency a copy of the Reports submitted to the International Atomic Energy Agency which relate to matters subject to this Treaty that are relevant to the work of the Agency.
3. The information furnished by the Contracting Parties shall not be, totally or partially, disclosed or transmitted to third Parties by the addressees of the Reports, except when the Contracting Parties give their express consent.

Article 15

1. At the request of any of the Contracting Parties and with the authorization of the Council, the Secretary General may request any of the Contracting Parties to provide the Agency with complementary or supplementary information regarding any extraordinary event or circumstance which affects compliance with this Treaty, explaining his reasons. The Contracting Parties undertake to cooperate promptly and fully with the Secretary General.
2. The Secretary General shall inform the Council and the Contracting Parties forthwith of such requests and of the respective replies.

Article 16

1. The International Atomic Energy Agency has the power of carrying out special inspections in accordance with Article 12 and with the agreements referred to in Article 13 of this Treaty.
2. At the request of any of the Contracting Parties and in accordance with the procedures established in Article 15 of this Treaty, the Council may submit for the consideration of the International Atomic Energy Agency a request that the necessary mechanisms be put into operation to carry out a special inspection.
3. The Secretary General shall request the Director General of the International Atomic Energy Agency to transmit to him in a timely manner the information forwarded to the board of Governors of the IAEA relating to the conclusion of the special inspection. The Secretary General shall make this information available to the Council promptly.
4. The Council, through the Secretary General, shall transmit this information to all the contracting Parties.

Article 19

The Agency may conclude such agreements with the International Atomic Energy Agency as are authorized by the General Conference and as it considers likely to facilitate the efficient operation of the Control System established by this Treaty.


As of Article 20, the remaining Articles were renumbered:

Article 20

1. The Agency may enter into relations with any international organization or body, especially any which may be established in the future to supervise disarmament or measures for the control of armaments in any part of the world.
2. The Contracting Parties may, if they see fit, request the advice of the Inter-American Nuclear Energy Commission on all technical matters connected with the application of this Treaty which the Commission is competent to deal under its Statute.

These amendments to the Treaty were designed to improve and update its text, strengthen the role played by the International Atomic Energy Agency in carrying out the special inspections provided for in the Treaty, and preserve industrial and technological secrets, in keeping with the justified demands of the countries of the region with greater levels of nuclear development.

The adoption of these amendments paved the way for the full incorporation of new States into the Tlatelolco System.

Thus, on 24 August 1992, France, the only country that had not yet done so, proceeded to ratify Additional Protocol I.

Argentina ratified the Treaty and on 18 January 1992 declared the waiver laid down in paragraph 2 of Article 28; Chile also fulfilled the latter requirement on the same date, thereby making both States full Parties to the Treaty of Tlatelolco.

Brazil became a full Party to the Treaty on 30 May of that year, on complying with the aforementioned waiver requirement.

Saint Vincent and the Grenadines became a full Party to the Treaty on 11 May 1992, and was followed by Dominica on 25 August 1993.

Belize signed the Treaty on 14 February 1992 and became a full Party to it on 9 November 1994, and Guyana signed and ratified it on 16 January 1995, declaring the waiver on 6 May 1996.

Saint Lucia signed the Treaty on 25 August 1992 and became a Party to it on 2 June 1995.

Saint Kitts and Nevis signed it on 18 February 1994 and ratified it on 18 April 1995, but has not granted the waiver.

For its part, Cuba signed the Treaty on 25 March 1995, and we expect that it will honor its pledge to become a full Party to the Treaty of Tlatelolco in the near future, "once the other countries of Latin America have done so".

We must therefore reach the conclusion that the amendments to the Treaty of Tlatelolco, which were previously viewed with mistrust and even with apprehension, proved to be of benefit to the enforcement, strengthening and updating of the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean.

As a result, the subregion of the Caribbean is now far more integrated into the Treaty, Guyana and Belize have become Parties to it, and Argentina, Brazil and Chile have become fully incorporated into the Tlatelolco System.

Furthermore, we must emphasize the significance of the Latin American and Caribbean Nuclear-Weapon-Free Zone in acting as a model and example for other regions of the world, as evidenced by the establishment of the South Pacific Nuclear-Weapon-Free Zone through the Treaty of Rarotonga in 1985, the Treaty of Bangkok, covering South-East Asia (1995), and the Treaty of Pelindaba for the African continent, which came into being in 1996.

In conclusion, on commemorating the Thirtieth Anniversary of the Opening for Signature of the Treaty of Tlatelolco, we must make a deeply-felt acknowledgment to all those who brought the laborious process of adopting the amendments to the Treaty to a successful conclusion. It is impossible to mention them all and it would be unfair to omit or forget to include all those involved, but there can be no doubt that thanks to their noble and unstinting efforts, the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean is unquestionably more effective than ever today.

REFERENCES:

(1) Foreign Affairs Minister Raúl Roa, speaking at a meeting of the United Nations Security Council in Panama in March 1973.
(2) Mr. Roberto García Moritán, representative of the Argentine delegation.
(3) His Excellency Mr. Bernardo Pericás, Head of the Brazilian Delegation.
(4) Mr. Guillermo Anguita, representing the Chilean Nuclear Energy Commission.
(5) "Conceptions et politiques de la République argentine en matière de sécurité". UNIDIR, U.N. New York, 1992.
(6) The Secretary-General of OPANAL and the Director General* of the IAEA attended the signing of the Declaration of Foz de Iguazú as special guests of both governments.
(7) In 1992, at its Fourth Congress, the Cuban Communist Party stated: "The Congress endorses... (Fidel Castro's) declaration that Cuba, for the benefit of Latin American unity, is willing to assume the obligations of the Treaty of Tlatelolco on the day that Latin America unanimously does so".