REGIONAL NON-PROLIFERATION ARRANGEMENTS:
RAROTONGA
Ms. Caroline Millar

Article VII of the NPT affirms the right of any group of states to conclude regional treaties in order to assure the absence of nuclear weapons in their territory. The countries of the South Pacific took this step at a meeting of the South Pacific Forum at Rarotonga in the Cook Islands in August 1985 when they adopted the South Pacific Nuclear Free Zone Treaty.

The story of Rarotonga is about small island states (and their somewhat larger island neighbor, Australia) in a vast ocean coming together to find ways of dealing with the nuclear age as it affected them. I hope that in relating the experience of the Pacific to you today, you will draw some comparisons with the issues facing your own region. The Pacific experience shows how states can come together to find culturally compatible solutions to the unique circumstances of their own region.

1. BACKGROUND: THE EVOLUTION OF THE SOUTH PACIFIC NUCLEAR FREE ZONE

The Asia-Pacific region has been involved in nuclear issues since the dawn of the nuclear age in 1945.

The relative isolation of the Pacific region and its sparse population have made it attractive for testing of nuclear weapons by the nuclear-weapon States. In the period immediately after the Second World War the United States tested nuclear weapons in the Marshall Islands in the Northern Pacific region. Some 66 tests were conducted there between 1946 and 1958, including the first thermonuclear device.

The United Kingdom conducted a series of nuclear tests in Australia between 1952 and 1957, on sites at Maralinga, Ernu Field and Monte Bello Island. It then moved its tests to Christmas Island, which was also used by the United States until the signing of the Partial Test-Ban Treaty in 1963.

Between them, the United States and the United Kingdom conducted some 120 nuclear tests in the Pacific region. The majority of these were in the atmosphere, although some were conducted under water. With the signing of the Partial Test-Ban Treaty in 1963, both countries ceased using their Pacific testing sites and conducted subsequent tests at the Nevada test site in the United States.

Whereas these issues were of concern to the island countries of the South Pacific, it was not until 1963 when France decided to establish its Centre d’experimentation du Pacifique at Mururoa Atoll in French Polynesia (after it had been forced to abandon its Sahara test site following Algerian independence) that they became politically active on nuclear testing. France exploded its first nuclear device there in 1966 and continued to test on a regular basis. France carried out over 40 tests in the atmosphere and over 130 underground tests at or around Mururoa and nearby Fangataufa atoll prior to January 1996.

Regional concern with nuclear issues, including the proliferation of nuclear weapons, increased during the 1960’s and 1970’s. The smaller Pacific States, particularly those with single commodity economies, were concerned with the issue of dumping of nuclear waste at sea, fearing that nuclear waste would contaminate vital marine resources. These concerns combined to create a general suspicion of matters nuclear and a strong wish to protect the region.

At the political level, the concern was among the very first issues addressed by the South Pacific Forum, which comprises heads of Government of all the independent and self-governing countries of the South Pacific.

A New Zealand proposal in 1975, which was commended by the South Pacific Forum, called for the establishment of a nuclear-weapon free zone in the South Pacific. Later that year the United Nations General Assembly endorsed the aim of establishing a nuclear-weapon free zone in the South Pacific.

In 1979, in response to reports that nuclear waste might be stored on uninhabited Pacific islands, the South Pacific Forum “strongly condemned any move to use the Pacific as a dumping ground for nuclear wastes”. This attitude, as well as firm opposition to Japanese proposals to dump nuclear waste in the Pacific Ocean, were reaffirmed at subsequent Forum meetings.

It was against this background of long-standing and deeply felt regional concerns about Nuclear issues that Australia revived the initiative for a South Pacific Nuclear Free Zone at the 14th meeting of the South Pacific Forum held at Canberra in August 1983. A meeting in August 1984 endorsed a set of principles proposed by Australia as a basis for a zone, and appointed a Working Group of officials to prepare the text of a treaty.

The set principles endorsed as the framework for the Working Group’s efforts reflected the broad and key concerns of the countries of the South Pacific, including the non-proliferation of nuclear weapons; the need to prevent the region from becoming a theater for superpower rivalry, the need to preserve, for all time, the peace and security the region enjoys; and the need to protect the natural resources on which the well-being and livelihood of the people of the South Pacific depend.

In addition to the agreed set of principles, the Working Group studied and drew on the provisions of existing international agreements which prohibit the proliferation of nuclear weapons and establish demilitarized and nuclear weapon free zones, notably the Nuclear Non-Proliferation Treaty (NPT), the Treaty of Tlatelolco which established the first nuclear weapons free zone in a populated region; the Antarctic Treaty; the Seabed Arms Control Treaty; and the Partial Test Ban Treaty.

The Working Group gave particular attention to Article VII of the NPT, which recognizes the right of any group of states to conclude regional treaties in order to assure the total absence of nuclear weapons in their respective territories. Most South Pacific Forum countries are parties to the NPT and it was considered that a SPNFZ Treaty would contribute to strengthening global security and the international non-proliferation regime of which the NPT is the cornerstone.

By June 1985, the Working Group had succeeded in preparing a draft treaty comprising a preamble, 16 articles and four annexes. It also prepared the first draft of three Protocols.

The draft South Pacific Nuclear Free Zone Treaty was adopted at the 15th meeting of the South Pacific Forum in Rarotonga in August 1985. The Treaty entered into Force on 11 December 1986 with the deposit of the eighth instrument of ratification.

The Treaty provides that:

· no South Pacific country which becomes a Party to the Treaty will develop, manufacture, acquire or receive from others any nuclear explosive device.

· there should be no testing of nuclear explosive devices in the South Pacific.

· there will be no stationing of nuclear explosive devises in the territories of participating states.

· nuclear activities in the region, including the export of nuclear material, will be conducted under strict safeguards to ensure exclusively peaceful, non-explosive use.

· South Pacific countries retain their unqualified sovereign rights to decide for themselves such questions as access to their ports and airfields of vessels or aircraft of other countries.

· international law with regard to freedom of the seas will be fully respected.

· performance of obligations by parties will be verifiable by international safeguards and through arrangements provided for in the Treaty to resolve any questions about compliance.

The Treaty has been ratified by twelve of the sixteen members of the South Pacific Forum. Tonga is the only forum member within the Zone that has not acceded to the Treaty. Three newer members of the Forum - the Federated States of Micronesia, the Marshall Islands and Palau - are also eligible to join the Treaty. This would require expanding the zone of application through Article 12. Membership by these states is also complicated by their Compacts of Free Association with the United States. The defense agreements allow the US to transit and overfly airspace of the former Trust Territories with nuclear weapons and to store nuclear weapons on these territories in times of national emergency or state of war.

Three Protocols open for signature by the Nuclear Weapon States were appended to the Treaty in August 1986 following consultation with these states. The first seeks undertakings from France, the United States and the United Kingdom to apply key provisions of the Treaty to their territories within the Zone. The other two seek undertakings from the five nuclear weapons states not to use or threaten to use nuclear weapons against parties to the Treaty, and not to test nuclear explosive devices anywhere within the Zone. China and Russia signed these Protocols within 3 years of the Treaty coming into force.

Although the United Kingdom and the United States did not have any in-principle objections to the treaty and applied its principles to their practices and activities within the Zone they did not sign the Treaty until recently. France’s objections were primarily its interest in continuing nuclear testing at its sites in Mururoa and Fangatuafa atolls. The end of French nuclear testing in January 1996 removed the last remaining obstacle to accession by the three Western nuclear powers. The signing of the two Protocols by the United States, United Kingdom and France on 25 March 1996 thus fulfilled a long-standing objective of the members of the South Pacific Forum. Accession by all five nuclear powers has finally brought an end to decades of nuclear testing in the South Pacific.

2. VERIFICATION UNDER THE TREATY OF RAROTONGA

In discussing the Treaty’s verification system, it is useful firstly to elaborate on some of the key aspects of the Treaty, namely, what the Treaty does and does not permit, and to demonstrate how particular regional interests and concerns underpinned decisions taken with regard to important provisions of the Treaty.

Renunciation of Nuclear Explosive Devices

The term ‘nuclear explosive device’ was used throughout the Treaty in order to include so-called ‘peaceful’ nuclear explosive devices as well as nuclear weapons, since technically and in non-proliferation terms it is impossible to distinguish between them. It would therefore be difficult to accurately verify compliance with the obligations of the Treaty if it only applied to nuclear weapons.

The term ‘nuclear explosive device’ does not cover delivery systems - that is, it does not include the means of transport or delivery of such a weapon or device which is separate from and not an indivisible part of it. The inclusion of delivery systems in the definition of nuclear explosive devices would have presented serious difficulties, including with respect to verification, because of the duel-use nature of delivery systems capable of being used for nuclear warheads.

As noted earlier, the drafters of the Treaty agreed that parties should undertake, consistent with the NPT, not to manufacture, acquire, possess or have control over any nuclear explosive device inside or outside the zone (Article 3). A provision against parties receiving assistance to manufacture nuclear explosive devices is also included.

Facilitation Clauses

Forum member countries recognized the need for the Treaty to include an undertaking that Parties would not facilitate activities which they regarded as contrary to the spirit of the treaty: the testing of nuclear explosive devices by any State, the dumping at sea in the Zone of radioactive wastes and other radioactive matter, and the manufacture of nuclear explosive devices by any State. The terms which appear in the Treaty - ‘not to take any action to assist or encourage’ - are understood to relate to any deliberate action, either positive or permissive, to facilitate such activity.

Part of the background to the facilitation clause regarding the manufacture of nuclear explosive devices was that Papua New Guinea, supported by others, wanted the Treaty to provide guarantees that uranium mined in Forum member countries would not be exported for use in nuclear weapons, There was some discussion about how an obligation not to assist a country to make a nuclear weapon (either through provision of uranium or other assistance) could be verified. As the only country in the zone area exporting nuclear material, Australia prepared a paper for the Treaty-drafting Working Group describing the stringent safeguards and other controls applying to nuclear material of Australian origin exported for exclusively peaceful, non-explosive uses. These conditions are in full conformity with IAEA safeguards. The Australian paper noted also our practice of publishing the results of our routine safeguards inspections.

Peaceful Nuclear Activities

Indeed, the Treaty’s drafters did not want to prohibit peaceful nuclear activities, and thus had to define the conditions to apply to the transfer of nuclear items. The Treaty therefore requires that such transfers take place under IAEA safeguards and in accordance with strict non-proliferation conditions to ensure exclusively peaceful non-explosive use. This provision also had the intention of strengthening the global non-proliferation regime. Transfers to non-nuclear-weapon States must be subject to safeguards modeled on those required of States members of the NPT - that is, fullscope safeguards as required under Article III of the NPT. Similarly transfers of nuclear items to any nuclear weapon State are not permitted unless subject to applicable safeguards agreements with the IAEA. The references to the IAEA safeguards are sufficiently general to take account of any future changes that might be made to strengthen the IAEA safeguards regime.

Prevention of Stationing of Nuclear Explosive Devices

There was ready agreement that all Forum members should undertake to prevent the stationing of any nuclear explosive device on their territories. It was also agreed that nothing in the draft treaty should in any way affect the sovereign right of each Forum member to decide for itself whether to allow visits by foreign ships and aircraft to its ports and airfields, or transit of its airspace by foreign aircraft and navigation of foreign ships in its territorial sea in a manner not covered by the right of innocent passage. This provision, and similarly the provision reserving freedom of the seas, is not only consistent with international principles of jurisdiction, but also avoids the need for verification of the nuclear status of visiting and transiting ships and overflying aircraft.

The definition of the term stationing is rigorous and covers the emplantation, emplacement, transport on land or on internal waters, stockpiling, storage, installation and deployment of nuclear explosive devices in the territories of the parties. This is more explicit than the corresponding provision in the Treaty of Tlatelolco.

Prevention of Testing of Nuclear Explosive Devices

All Forum members reaffirmed their Government’s firm opposition to the testing of nuclear explosive devices in the region and their support for a Comprehensive Test-Ban Treaty which would prohibit all nuclear testing by all States in all environments. Consequently all parties to the Treaty undertake to prevent nuclear testing in their territories. (It is assumed that the Parties will comply with their obligation not to acquire a nuclear explosive device - thus the Parties do not themselves undertake not to test or use nuclear weapons.) Nuclear weapons testing in the region can be detected by the seismic monitoring network in Australia and New Zealand.

Prevention of Dumping at Sea

There was a strong wish among Forum countries that the Terms of the treaty should give clear expression to national policies of opposition to the dumping of radioactive wastes and other radioactive matter in the Pacific Ocean. For this reason the Treaty imposes obligations on South Pacific countries to refrain from dumping such waste and not to permit dumping in their territorial seas. (It was acknowledged that they would not do so in any case but these provisions were seen as important for their exemplary and demonstrative effect). Provision was made to guard against any overlap of obligations between the draft treaty and the proposed relevant protocol to the Convention of the South Pacific Regional Environment Program (SPREP Convention).

Verification Mechanism

Although none of the island states in the zone had nuclear facilities, the drafters of the Treaty of Rarotonga still recognized the importance of an effective verification mechanism. To effectively enhance regional security, all Parties to the Treaty had to be confident that their neighbors abided by the Treaty provisions.

In devising an appropriate verification mechanism, the Working Group considered the particular security concerns of the countries of the South Pacific, as well as the verification capabilities of the region. The fact that some obligations would be more easily verifiable than others was also kept in mind.

It was agreed that the basis of the verification regime would be:

· the application of IAEA safeguards to verify the non-diversion of nuclear material from peaceful uses to the manufacture of nuclear explosive devices;

· and a system of possible special on-site inspections controlled by a Consultative Committee comprising representatives of all Parties to the Treaty.

The Treaty requires each Party to negotiate and conclude an agreement with the IAEA within eighteen months of becoming a Party to the Treaty. The agreement covers all source or ‘special fissionable material in all peaceful nuclear activities within the territory of the Party, under its jurisdiction or carried out under its control anywhere and must be equivalent in its scope and effect to NPT safeguards (as defined in document INFCIRC.153 of the IAEA).

Any Treaty Party can request to see a copy of the overall conclusions of the most recent report by the IAEA on its inspection activities of another Party to the Treaty. In the case of such a request, the report would be copied to the Secretary-General of the Forum, and circulated for the information of all Treaty Parties. The Party concerned is also required to advise the Secretary-General promptly of any subsequent findings of the IAEA Board of Governors in relation to those conclusions for the information of all Parties.

Through the complaints procedure, any Party which considers that another party may be in breach of its obligations under the Treaty can bring a complaint to the Secretary-General of the South Pacific Forum and request that the Consultative Committee be convened to consider it. Before doing so, however, the Party lodging the complaint must give the country under suspicion reasonable opportunity to provide an explanation and resolve the matter. The Treaty drafters anticipated that this system of informal consultations would be sufficient to resolve most cases of suspected violation. Challenge on-site inspections would, therefore, only be used in exceptional circumstances.

The role of the Committee in relation to the complaints procedure caused the drafters reluctantly to depart from the almost universal practice of South Pacific intergovernmental institutions - that of taking decisions by consensus. In view of the sensitive security aspect of the Treaty, especially the intrusive inspection system, it was decided that decisions could be taken, failing consensus, by a two-thirds majority.

After considering the evidence, the Consultative Committee may proceed with a challenge inspection. A special inspection team would be appointed by the Committee and comprise three suitably qualified inspectors. The only qualification is that no national of either Party involved in the dispute can serve on the inspection team. A representative of the party complained of may, however, accompany the inspection team.

Special inspectors are subject to the direction only of the Consultative Committee. The Party complained of must facilitate the inspection, and give the inspectors full and free access to information and places within their territory which might be relevant to the inspection. In carrying out their tasks, the inspectors must respect the laws in the country under investigation and take account of any obligations of confidentiality arising from the country’s bilateral and multilateral agreements.

If the Consultative Committee decides that a party is in breach of its obligations under the Treaty, Members of the South Pacific Forum are to meet promptly to consider further action. This provision recognizes the role of the South Pacific Forum as the supreme political body in the region. It leaves Forum members to decide how the meeting would be convened and other relevant modalities. There is no provision in the Treaty itself for engaging an external Organization such as the IAEA or the Security Council in disputes under the Treaty.

Complaints can only be generated by parties to the Treaty and not by the Secretary-General of the South Pacific Forum who is the depository of the Treaty. Indeed, the drafters were careful to avoid placing the Secretary-General in the situation of having to make contentious political judgements. Thus he/she has no discretion with regard to the convening of the Consultative Committee. Similarly, the appointment of the inspection team was deliberately left to the Consultative Committee rather than the Secretary-General.

Any Party is free to request a meeting of the Consultative Committee to consider any matter relating to the Treaty or to review its operation. This approach meant that it was not necessary to institutionalize a regular review of the Treaty.

In summary, then, the control regime operates only in cases of suspected violation or actual events relevant to the Treaty. To date, no complaint has ever been registered. Parties undertake to report to the Secretary-General as soon as possible any significant event within their jurisdiction affecting the implementation of the Treaty (Article 9). The only regular report required is an annual report of the Secretary-General to the Forum on the status of the Treaty and any matters relating to its operation.

III. CONCLUSION

The Treaty of Rarotonga originated from a mutual desire to protect the Pacific from superpower rivalry and nuclear dumping, and to preserve the peace and security that the region enjoys. The South Pacific Forum, already in existence, allowed states to come together to discuss the issues and finally negotiate a Treaty. The Treaty drafters were careful, however, to separate the functions of the Forum’s Secretary-General from the verification provisions of the Treaty.

The Treaty recognizes the NPT as the cornerstone of the international non-proliferation regime and builds upon the NPT in the regional context. In drafting the Treaty, the Working Group devised an agreement that met the regional aspirations of the islands states within the framework of existing pacific cultural and political practices. The drafters were also mindful of regional verification capabilities and developed provisions which did not over-burden small bureaucracies or place the Forum’s senior bureaucrat - the Secretary-General - in an invidious position which might require him to act in a way which was not the “pacific way”.

Safeguards agreements and IAEA inspections form the basis of the, to date untested, verification system (Article 9). The nuclear verification system under the Treaty of Rarotonga, and indeed all the provisions of the Treaty, are based on a long history of regional cooperation as well as shared security, economic and political concerns among states members of the South Pacific Forum. This basis not only facilitated the development of an effective verification regime, but in itself places an added obstacle in the way of possible violation of the Treaty.

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