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الطاقة النووية بين السلم والحرب - مجلة السياسة الدولية (من أرشيف المجلة) - نزار عثمان - 09-09-2006
الحد من التسلح النووي
Agreement Between the USA and the USSR on the
Prevention of Nuclear War, 24 UST 1478
Signed at Washington June 22, 1973
Entered into force June 22, 1973
The United States of America and the Union of Soviet Socialist Republics, hereinafter
referred to as the Parties,
Guided by the objectives of strengthening world peace and international security,
Conscious that nuclear war would have devastating consequences for mankind,
Proceeding from the desire to bring about conditions in which the danger of an
outbreak of nuclear war anywhere in the world would be reduced and ultimately
eliminated,
Proceeding from their obligations under the Charter of the United Nations regarding
the maintenance of peace, refraining from the threat or use of force, and the avoidance
of war, and in conformity with the agreements to which either Party has subscribed,
Proceeding from the Basic Principles of Relations between the United States of
America and the Union of Soviet Socialist Republics signed in Moscow on May 29,
1972,
Reaffirming that the development of relations between the United States of America
and the Union of Soviet Socialist Republics is not directed against other countries and
their interests,
Have agreed as follows:
Article I
The United States and the Soviet Union agree that an objective of their policies is to
remove the danger of nuclear war and of the use of nuclear weapons.
Accordingly, the Parties agree that they will act in such a manner as to prevent the
development of situations capable of causing a dangerous exacerbation of their
relations, as to avoid military confrontations, and as to exclude the outbreak of
nuclear war between them and between either of the Parties and other countries.
Article II
The Parties agree, in accordance with Article I and to realize the objective stated in
that Article, to proceed from the premise that each Party will refrain from the threat or
use of force against the other Party, against the allies of the other Party and against
other countries, in circumstances which may endanger international peace and
security. The Parties agree that they will be guided by these considerations in the
formulation of their foreign policies and in their actions in the field of international
relations.
Article III
The Parties undertake to develop their relations with each other and with other
countries in a way consistent with the purposes of this Agreement.
Article IV
If at any time relations between the Parties or between either Party and other countries
appear to involve the risk of a nuclear conflict, or if relations between countries not
parties to this Agreement appear to involve the risk of nuclear war between the United
States of America and the Union of Soviet Socialist Republics or between either Party
and other countries, the United States and the Soviet Union, acting in accordance with
the provisions of this Agreement, shall immediately enter into urgent consultations
with each other and make every effort to avert this risk.
Article V
Each Party shall be free to inform the Security Council of the United Nations, the
Secretary General of the United Nations and the Governments of allied or other
countries of the progress and outcome of consultations initiated in accordance with
Article IV of this Agreement.
Article VI
Nothing in this Agreement shall affect or impair:
(a) the inherent right of individual or collective self-defense as envisaged by Article
51 of the Charter of the United Nations,*
(b) the provisions of the Charter of the United Nations, including those relating to the
maintenance or restoration of international peace and security, and
© the obligations undertaken by either Party towards its allies or other countries in
treaties, agreements, and other appropriate documents.
Article VII
This Agreement shall be of unlimited duration.
Article VIII
This Agreement shall enter into force upon signature.
DONE at Washington on June 22, 1973, in two copies, each in the English and
Russian languages, both texts being equally authentic.
FOR THE UNITED STATES OF AMERICA:
RICHARD NIXON
President of the United States of America
FOR THE UNION OF SOVIET SOCIALIST REPUBLICS:
L.I. BREZHNEV
General Secretary of the Central Committee, CPSU
*TS 993; 59 Stat. 1044.
الطاقة النووية بين السلم والحرب - مجلة السياسة الدولية (من أرشيف المجلة) - نزار عثمان - 09-09-2006
Interim Agreement Between the USA and the USSR on Certain Measures with
Respect to the Limitation of Strategic Offensive Arms
May 26, 1972 (with Protocol)
The United States of America and the Union of Soviet Socialist Republics, hereinafter referred to as the
Parties,
Convinced that the Treaty on the Limitation of Anti-Ballistic Missile Systems I and this Interim
Agreement on Certain Measures with Respect to the Limitation of Strategic Offensive Arms will
contribute to the creation of more favorable conditions for active negotiations on limiting strategic arms
as well as to the relaxation of international tension and the strengthening of trust between States,
Taking into account the relationship between strategic offensive and defensive arms,
Mindful of their obligations under Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons,
Have agreed as follows:
Article I
The Parties undertake not to start construction of additional fixed land-based intercontinental ballistic
missile (ICBM) launchers after July 1, 1972.
Article II
The Parties undertake not to convert land-based launchers for light ICBM's, or for ICBM's of older types
deployed prior to 1964, into land-based launchers for heavy ICBM's of types deployed after that time.
Article III
The Parties undertake to limit submarine-launched ballistic missile (SLBM) launchers and modern
ballistic missile submarines to the numbers operational and under construction on the date of signature
of this Interim Agreement, and in addition to launchers and submarines constructed under procedures
established by the Parties as replacements for an equal number of ICBM launchers of older types
deployed prior to 1964 or for launchers on older submarines.
Article IV
Subject to the provisions of this Interim Agreement, modernization and replacement of strategic
offensive ballistic missiles and launchers covered by this Interim Agreement may be undertaken.
Article V
1. For the purpose of providing assurance of compliance with the provisions of this Interim Agreement,
each Party shall use national technical means of verification at its disposal in a manner consistent with
generally recognized principles of international law.
2. Each Party undertakes not to interfere with the national technical means of verification of the other
Party operating in accordance with paragraph I of this Article.
3. Each Party undertakes not to use deliberate concealment measures which impede verification by
national technical means of compliance with the provisions of this Interim Agreement. This obligation
shall not require changes in current construction, assembly, conversion, or overhaul practices.
Article VI
To promote the objectives and implementation of the provisions of this Interim Agreement, the Parties
shall use the Standing Consultative Commission established under Article XIII of the Treaty on the
Limitation of Anti-Ballistic Missile Systems in accordance with the provisions of that Article.
Article VII
The Parties undertake to continue active negotiations for limitations on strategic offensive arms. The
obligations provided for in this Interim Agreement shall not prejudice the scope or terms of the limitations
on strategic offensive arms which may be worked out in the course of further negotiations.
Article VIII
1. This Interim Agreement shall enter into foree3 Upon exchange of written notices of acceptance by
each Party, which exchange shall take place simultaneously with the exchange of instruments of
ratification of the Treaty on the Limitation of Anti-Ballistic Missile Systems.
2. This Interim Agreement shall remain in force for a period of five years unless replaced earlier by an
agreement on more complete measures limiting strategic offensive arms. It is the objective of the Parties
to conduct active follow-on negotiations with the aim of concluding such an agreement as soon as
possible.
3. Each Party shall, in exercising its national sovereignty, have the right to withdraw from this Interim
Agreement if it decides that extraordinary events related to the subject matter of this Interim Agreement
have jeopardized its supreme interests. It shall give notice of its decision to the other Party six months
prior to withdrawal from this Interim Agreement. Such notice shall include a statement of the
extraordinary events the notifying Party regards as having jeopardized its supreme interests.
Done at Moscow on May 26, 1972, in two copies, each in the English and Russian languages, both texts
being equally authentic.
FOR THE UNITED STATES OF AMERICA:
President of the United States of America
FOR THE UNION OF SOVIET SOCIALIST REPUBLICS:
General Secretary of the Central Committee of the CPSU
Protocol
To the Interim Agreement Between the United States of America and the Union of Soviet Socialist
Republics on Certain Measures with Respect to the Limitation of Strategic Offensive Arms
The United States of America and the Union of Soviet Socialist Republics, hereinafter referred to as the
Parties,
Having agreed on certain limitations relating to submarine-launched ballistic missile launchers and
modern ballistic missile submarines, and to replacement procedures, in the Interim Agreement,
Have agreed as follows:
The Parties understand that, under Article III of the Interim Agreement, for the period during which that
Agreement remains in force:
The US may have no more than 710 ballistic missile launchers on sub-marines (SLBM's) and no more
than 44 modern ballistic missile submarines. The Soviet Union may have no more than 950 ballistic
missile launchers on submarines and no more than 62 modern ballistic missile submarines.
Additional ballistic missile launchers on submarines up to the above-mentioned levels, in the U.S. - over
656 ballistic missile launchers on nuclear-powered submarines, and in the U.S.S.R. - over 740 ballistic
missile launchers on nuclear-powered submarines, operational and under construction, may become
operational as replacements for equal numbers of ballistic missile launchers of older types deployed
prior to 1964 or of ballistic missile launchers on older submarines.
The deployment of modern SLBM's on any submarine, regardless of type, will be counted against the
total level of SLBM's permitted for the U.S. and the
U.S.S.R.
This Protocol shall be considered an integral part of the Interim Agreement.
Done at Moscow this 26th day of May, 1972.
FOR THE UNITED STATES OF AMERICA:
President of the United States of America
FOR THE UNION OF SOVIET SOCIALIST REPUBLICS:
General Secretary of the Central Committee of the CPSU
الطاقة النووية بين السلم والحرب - مجلة السياسة الدولية (من أرشيف المجلة) - نزار عثمان - 09-09-2006
LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS
Advisory Opinion of 8 July 1996
The Court handed down its Advisory Opinion on the request made by the General
Assembly of the United Nations on the question concerning the Legality of the Threat
or Use of Nuclear Weapons. The final paragraph of the Opinion reads as follows:
"For these reasons,
THE COURT
(1) By thirteen votes to one,
Decides to comply with the request for an advisory opinion;
IN FAVOUR: President Bedjaoui; Vice-President Schwebel;
Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh,
Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins;
AGAINST: Judge Oda.
(2) Replies in the following manner to the question put by the
General Assembly:
A. Unanimously,
There is in neither customary nor conventional international law any
specific authorization of the threat or use of nuclear weapons;
B. By eleven votes to three,
There is in neither customary nor conventional international law any
comprehensive and universal prohibition of the threat or use of nuclear
weapons as such;
IN FAVOUR: President Bedjaoui; Vice-President Schwebel;
Judges Oda, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,
Vereshchetin, Ferrari Bravo, Higgins;
AGAINST: Judges Shahabuddeen, Weeramantry, Koroma.
C. Unanimously,
A threat or use of force by means of nuclear weapons that is contrary
to Article 2, paragraph 4, of the United Nations Charter and that fails
to meet all the requirements of Article 51, is unlawful;
D. Unanimously,
A threat or use of nuclear weapons should also be compatible with the
requirements of the international law applicable in armed conflict
particularly those of the principles and rules of international
humanitarian law, as well as with specific obligations under treaties
and other undertakings which expressly deal with nuclear weapons;
E. By seven votes to seven, by the President's casting vote,
It follows from the above-mentioned requirements that the threat or use
of nuclear weapons would generally be contrary to the rules of
international law applicable in armed conflict, and in particular the
principles and rules of humanitarian law;
However, in view of the current state of international law, and of the
elements of fact at its disposal, the Court cannot conclude definitively
whether the threat or use of nuclear weapons would be lawful or
unlawful in an extreme circumstance of self-defence, in which the very
survival of a State would be at stake;
IN FAVOUR: President Bedjaoui; Judges Ranjeva, Herczegh, Shi,
Fleischhauer, Vereshchetin, Ferrari Bravo;
AGAINST: Vice-President Schwebel; Judges Oda, Guillaume,
Shahabuddeen, Weeramantry, Koroma, Higgins.
F. Unanimously,
There exists an obligation to pursue in good faith and bring to a
conclusion negotiations leading to nuclear disarmament in all its
aspects under strict and effective international control".
*
The Court was composed as follows: President Bedjaoui, Vice-President Schwebel;
Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi,
Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins; Registrar Valencia-
Ospina.
President Bedjaoui, Judges Herczegh, Shi, Vereshchetin and Ferrari Bravo appended
declarations to the Advisory Opinion of the Court; Judges Guillaume, Ranjeva and
Fleischhauer appended separate opinions; Vice-President Schwebel, Judges Oda
Shahabuddeen, Weeramantry, Koroma and Higgins appended dissenting opinions.
_________
Summary of the Advisory Opinion
Submission of the request and subsequent procedure (paras. 1-9)
The Court begins by recalling that by a letter dated 19 December 1994, filed in the
Registry on 6 January 1995, the Secretary-General of the United Nations officially
communicated to the Registrar the decision taken by the General Assembly to submit
a question to the Court for an advisory opinion. The final paragraph of Resolution
49/75 K, adopted by the General Assembly on 15 December 1994, which sets forth
the question, provides that the General Assembly
"Decides, pursuant to Article 96, paragraph 1, of the Charter of the
United Nations, to request the International Court of Justice urgently to
render its advisory opinion on the following question: 'Is the threat or
use of nuclear weapons in any circumstance permitted under
international law?'."
The Court then recapitulates the various stages of the proceedings.
Jurisdiction of the Court paras. 10-18)
The Court first considers whether it has the jurisdiction to give a reply to the request
of the General Assembly for an Advisory Opinion and whether, should the answer be
in the affirmative, there is any reason it should decline to exercise any such
jurisdiction.
The Court observes that it draws its competence in respect of advisory opinions from
Article 65, paragraph 1, of its Statute, while Article 96, paragraph 1 of the Charter
provides that:
"The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal
question."
Some States which oppose the giving of an opinion by the Court argued that the
General Assembly and Security Council may ask for an advisory opinion on any legal
question only within the scope of their activities. In the view of the Court, it matters
little whether this interpretation of Article 96, paragraph 1, is or is not correct; in the
present case, the General Assembly has competence in any event to seise the Court.
Referring to Articles 10, 11 and 13 of the Charter, the Court finds that, indeed, the
question put to the Court has a relevance to many aspects of the activities and
concerns of the General Assembly including those relating to the threat or use of force
in international relations, the disarmament process, and the progressive development
of international law.
"Legal Question" (para. 13)
The Court observes that it has already had occasion to indicate that questions
"framed in terms of law and rais[ing] problems of international law . . . are by their
very nature susceptible of a reply based on law . . . [and] appear . . . to be questions of
a legal character" (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 18,
para. 15).
It finds that the question put to the Court by the General Assembly is indeed a legal
one, since the Court is asked to rule on the compatibility of the threat or use of nuclear
weapons with the relevant principles and rules of international law. To do this, the
Court must identify the existing principles and rules, interpret them and apply them to
the threat or use of nuclear weapons, thus offering a reply to the question posed based
on law.
The fact that this question also has political aspects, as, in the nature of things, is the
case with so many questions which arise in international life, does not suffice to
deprive it of its character as a "legal question" and to "deprive the Court of a
competence expressly conferred on it by its Statute". Nor are the political nature of
the motives which may be said to have inspired the request or the political
implications that the opinion given might have of relevance in the establishment of
the Court's jurisdiction to give such an opinion.
Discretion of the Court to give an advisory opinion (paras. 14-19)
Article 65, paragraph 1, of the Statute provides: "The Court may give an advisory
opinion . . ." (Emphasis added.) This is more than an enabling provision. As the Court
has repeatedly emphasized, the Statute leaves a discretion as to whether or not it will
give an advisory opinion that has been requested of it, once it has established its
competence to do so. In this context, the Court has previously noted as follows:
"The Court's Opinion is given not to the States, but to the organ which
is entitled to request it; the reply of the Court, itself an 'organ of the
United Nations', represents its participation in the activities of the
Organization, and, in principle, should not be refused." (Interpretation
of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,
Advisory Opinion, I.C.J. Reports 1950, p. 71; . . .)"
In the history of the present Court there has been no refusal, based on the
discretionary power of the Court, to act upon a request for advisory opinion; in the
case concerning the Legality of the Use by a State of Nuclear Weapons in Armed
Conflict the refusal to give the World Health Organization the advisory opinion
requested by it was justified by the Court's lack of jurisdiction in that case.
Several reasons were adduced in these proceedings in order to persuade the Court that
in the exercise of its discretionary power it should decline to render the opinion
requested by the General Assembly. Some States, in contending that the question put
to the Court is vague and abstract, appeared to mean by this that there exists no
specific dispute on the subject-matter of the question. In order to respond to this
argument, it is necessary to distinguish between requirements governing contentious
procedure and those applicable to advisory opinions. The purpose of the advisory
function is not to settle - at least directly - disputes between States, but to offer legal
advice to the organs and institutions requesting the opinion. The fact that the question
put to the Court does not relate to a specific dispute should consequently not lead the
Court to decline to give the opinion requested. Other arguments concerned the fear
that the abstract nature of the question might lead the Court to make hypothetical or
speculative declarations outside the scope of its judicial function; the fact that the
General Assembly has not explained to the Court for what precise purposes it seeks
the advisory opinion; that a reply from the Court in this case might adversely affect
disarmament negotiations and would, therefore, be contrary to the interest of the
United Nations; and that in answering the question posed, the Court would be going
beyond its judicial role and would be taking upon itself a law-making capacity.
The Court does not accept those arguments and concludes that it has the authority to
deliver an opinion on the question posed by the General Assembly, and that there
exist no "compelling reasons" which would lead the Court to exercise its discretion
not to do so. It points out, however, that it is an entirely different question whether,
under the constraints placed upon it as a judicial organ, it will be able to give a
complete answer to the question asked of it. But that is a different matter from a
refusal to answer at all.
Formulation of the question posed (paras. 20 and 22)
The Court finds it unnecessary to pronounce on the possible divergences between the
English and French texts of the question put. Its real objective is clear: to determine
the legality or illegality of the threat or use of nuclear weapons. And the argument
concerning the legal conclusions to be drawn from the use of the word "permitted",
and the questions of burden of proof to which it was said to give rise, are found by the
Court to be without particular significance for the disposition of the issues before it.
The Applicable Law (paras. 23-34)
In seeking to answer the question put to it by the General Assembly, the Court must
decide, after consideration of the great corpus of international law norms available to
it, what might be the relevant applicable law.
The Court considers that the question whether a particular loss of life, through the use
of a certain weapon in warfare, is to be considered an arbitrary deprivation of life
contrary to Article 6 of the International Covenant on Civil and Political Rights, as
argued by some of the proponents of the illegality of the use of nuclear weapons, can
only be decided by reference to the law applicable in armed conflict and not deduced
from the terms of the Covenant itself. The Court also points out that the prohibition of
genocide would be pertinent in this case if the recourse to nuclear weapons did indeed
entail the element of intent, towards a group as such, required by Article II of the
Convention on the Prevention and Punishment of the Crime of Genocide. In the view
of the Court, it would only be possible to arrive at such a conclusion after having
taken due account of the circumstances specific to each case. And the Court further
finds that while the existing international law relating to the protection and
safeguarding of the environment does not specifically prohibit the use of nuclear
weapons, it indicates important environmental factors that are properly to be taken
into account in the context of the implementation of the principles and rules of the law
applicable in armed conflict.
In the light of the foregoing the Court concludes that the most directly relevant
applicable law governing the question of which it was seised, is that relating to the use
of force enshrined in the United Nations Charter and the law applicable in armed
conflict which regulates the conduct of hostilities, together with any specific treaties
on nuclear weapons that the Court might determine to be relevant.
Unique characteristics of nuclear weapons (paras. 35 and 36)
The Court notes that in order correctly to apply to the present case the Charter law on
the use of force and the law applicable in armed conflict, in particular humanitarian
law, it is imperative for it to take account of the unique characteristics of nuclear
weapons, and in particular their destructive capacity, their capacity to cause untold
human suffering, and their ability to cause damage to generations to come.
Provisions of the Charter relating to the threat or use of force (paras. 37-50)
The Court then addresses the question of the legality or illegality of recourse to
nuclear weapons in the light of the provisions of the Charter relating to the threat or
use of force.
In Article 2, paragraph 4, of the Charter the use of force against the territorial integrity
or political independence of another State or in any other manner inconsistent with the
purposes of the United Nations is prohibited.
This prohibition of the use of force is to be considered in the light of other relevant
provisions of the Charter. In Article 51, the Charter recognizes the inherent right of
individual or collective self-defence if an armed attack occurs. A further lawful use of
force is envisaged in Article 42, whereby the Security Council may take military
enforcement measures in conformity with Chapter VII of the Charter.
These provisions do not refer to specific weapons. They apply to any use of force,
regardless of the weapons employed. The Charter neither expressly prohibits, nor
permits, the use of any specific weapon, including nuclear weapons.
The entitlement to resort to self-defence under Article 51 is subject to the conditions
of necessity and proportionality. As the Court stated in the case concerning Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America) (I.C.J. Reports 1986, p. 94, para. 176): "there is a specific rule whereby selfdefence
would warrant only measures which are proportional to the armed attack and
necessary to respond to it, a rule well established in customary international law".
The proportionality principle may thus not in itself exclude the use of nuclear
weapons in self-defence in all circumstances. But at the same time, a use of force that
is proportionate under the law of self-defence, must, in order to be lawful, also meet
the requirements of the law applicable in armed conflict which comprise in particular
the principles and rules of humanitarian law. And the Court notes that the very nature
of all nuclear weapons and the profound risks associated therewith are further
considerations to be borne in mind by States believing they can exercise a nuclear
response in self-defence in accordance with the requirements of proportionality.
In order to lessen or eliminate the risk of unlawful attack, States sometimes signal that
they possess certain weapons to use in self-defence against any State violating their
territorial integrity or political independence. Whether a signaled intention to use
force if certain events occur is or is not a "threat" within Article 2, paragraph 4, of the
Charter depends upon various factors. The notions of "threat" and "use" of force
under Article 2, paragraph 4, of the Charter stand together in the sense that if the use
of force itself in a given case is illegal - for whatever reason - the threat to use such
force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a
State to use force must be a use of force that is in conformity with the Charter. For the
rest, no State - whether or not it defended the policy of deterrence - suggested to the
Court that it would be lawful to threaten to use force if the use of force contemplated
would be illegal.
Rules on the lawfulness or unlawfulness of nuclear weapons as such (paras. 49-
73)
Having dealt with the Charter provisions relating to the threat or use of force, the
Court turns to the law applicable in situations of armed conflict. It first addresses the
question whether there are specific rules in international law regulating the legality or
illegality of recourse to nuclear weapons per se; it then examines the question put to it
in the light of the law applicable in armed conflict proper, i.e. the principles and rules
of humanitarian law applicable in armed conflict, and the law of neutrality.
The Court notes by way of introduction that international customary and treaty law
does not contain any specific prescription authorizing the threat or use of nuclear
weapons or any other weapon in general or in certain circumstances, in particular
those of the exercise of legitimate self-defence. Nor, however, is there any principle
or rule of international law which would make the legality of the threat or use of
nuclear weapons or of any other weapons dependent on a specific authorization. State
practice shows that the illegality of the use of certain weapons as such does not result
from an absence of authorization but, on the contrary, is formulated in terms of
prohibition.
It does not seem to the Court that the use of nuclear weapons can be regarded as
specifically prohibited on the basis of certain provisions of the Second Hague
Declaration of 1899, the Regulations annexed to the Hague Convention IV of 1907 or
the 1925 Geneva Protocol. The pattern until now has been for weapons of mass
destruction to be declared illegal by specific instruments. But the Court does not find
any specific prohibition of recourse to nuclear weapons in treaties expressly
prohibiting the use of certain weapons of mass destruction; and observes that,
although, in the last two decades, a great many negotiations have been conducted
regarding nuclear weapons, they have not resulted in a treaty of general prohibition of
the same kind as for bacteriological and chemical weapons.
The Court notes that the treaties dealing exclusively with acquisition, manufacture,
possession, deployment and testing of nuclear weapons, without specifically
addressing their threat or use, certainly point to an increasing concern in the
international community with these weapons; It concludes from this that these treaties
could therefore be seen as foreshadowing a future general prohibition of the use of
such weapons, but that they do not constitute such a prohibition by themselves. As to
the treaties of Tlatelolco and Rarotonga and their Protocols, and also the declarations
made in connection with the indefinite extension of the Treaty on the Non-
Proliferation of Nuclear Weapons, it emerges from these instruments that:
(a) a number of States have undertaken not to use nuclear weapons in
specific zones (Latin America; the South Pacific) or against certain
other States (non-nuclear-weapon States which are parties to the Treaty
on the Non-Proliferation of Nuclear Weapons);
(b) nevertheless, even within this framework, the nuclear-weapon
States have reserved the right to use nuclear weapons in certain
circumstances; and
© these reservations met with no objection from the parties to the
Tlatelolco or Rarotonga Treaties or from the Security Council.
The Court then turns to an examination of customary international law to determine
whether a prohibition of the threat or use of nuclear weapons as such flows from that
source of law.
It notes that the Members of the international community are profoundly divided on
the matter of whether non-recourse to nuclear weapons over the past fifty years
constitutes the expression of an opinio juris. Under these circumstances the Court
does not consider itself able to find that there is such an opinio juris. It points out that
the adoption each year by the General Assembly, by a large majority, of resolutions
recalling the content of resolution 1653 (XVI), and requesting the member States to
conclude a convention prohibiting the use of nuclear weapons in any circumstance,
reveals the desire of a very large section of the international community to take, by a
specific and express prohibition of the use of nuclear weapons, a significant step
forward along the road to complete nuclear disarmament. The emergence, as lex lata,
of a customary rule specifically prohibiting the use of nuclear weapons as such is
hampered by the continuing tensions between the nascent opinio juris on the one
hand, and the still strong adherence to the doctrine of deterrence(in which the right to
use those weapons in the exercise of the right to self-defence against an armed attack
threatening the vital security interests of the State is reserved) on the other.
International humanitarian law (paras. 74-87)
Not having found a conventional rule of general scope, nor a customary rule
specifically proscribing the threat or use of nuclear weapons per se, the Court then
deals with the question whether recourse to nuclear weapons must be considered as
illegal in the light of the principles and rules of international humanitarian law
applicable in armed conflict and of the law of neutrality.
After sketching the historical development of the body of rules which originally were
called "laws and customs of war" and later came to be termed "international
humanitarian law", the Court observes that the cardinal principles contained in the
texts constituting the fabric of humanitarian law are the following. The first is aimed
at the protection of the civilian population and civilian objects and establishes the
distinction between combatants and non-combatants; States must never make civilians
the object of attack and must consequently never use weapons that are incapable of
distinguishing between civilian and military targets. According to the second
principle, it is prohibited to cause unnecessary suffering to combatants: it is
accordingly prohibited to use weapons causing them such harm or uselessly
aggravating their suffering. In application of that second principle, States do not have
unlimited freedom of choice of means in the weapons they use.
The Court also refers to the Martens Clause, which was first included in the Hague
Convention II with Respect to the Laws and Customs of War on Land of 1899 and
which has proved to be an effective means of addressing the rapid evolution of
military technology. A modern version of that clause is to be found in Article 1,
paragraph 2, of Additional Protocol I of 1977, which reads as follows:
"In cases not covered by this Protocol or by other international
agreements, civilians and combatants remain under the protection and
authority of the principles of international law derived from established
custom, from the principles of humanity and from the dictates of public
conscience."
The extensive codification of humanitarian law and the extent of the accession to the
resultant treaties, as well as the fact that the denunciation clauses that existed in the
codification instruments have never been used, have provided the international
community with a corpus of treaty rules the great majority of which had already
become customary and which reflected the most universally recognized humanitarian
principles. These rules indicate the normal conduct and behaviour expected of States.
Turning to the applicability of the principles and rules of humanitarian law to a
possible threat or use of nuclear weapons, the Court notes that nuclear weapons were
invented after most of the principles and rules of humanitarian law applicable in
armed conflict had already come into existence; the Conferences of 1949 and 1974-
1977 left these weapons aside, and there is a qualitative as well as quantitative
difference between nuclear weapons and all conventional arms. However, in the
Court's view, it cannot be concluded from this that the established principles and rules
of humanitarian law applicable in armed conflict did not apply to nuclear weapons.
Such a conclusion would be incompatible with the intrinsically humanitarian
character of the legal principles in question which permeates the entire law of armed
conflict and applies to all forms of warfare and to all kinds of weapons, those of the
past, those of the present and those of the future. In this respect it seems significant
that the thesis that the rules of humanitarian law do not apply to the new weaponry,
because of the newness of the latter, has not been advocated in the present
proceedings.
The principle of neutrality (paras. 88 and 89)
The Court finds that as in the case of the principles of humanitarian law applicable in
armed conflict, international law leaves no doubt that the principle of neutrality,
whatever its content, which is of a fundamental character similar to that of the
humanitarian principles and rules, is applicable (subject to the relevant provisions of
the United Nations Charter), to all international armed conflict, whatever type of
weapons might be used.
Conclusions to be drawn from the applicability of international humanitarian
law and the principle of neutrality (paras. 90-97)
The Court observes that, although the applicability of the principles and rules of
humanitarian law and of the principle of neutrality to nuclear weapons is hardly
disputed, the conclusions to be drawn from this applicability are, on the other hand,
controversial.
According to one point of view, the fact that recourse to nuclear weapons is subject to
and regulated by the law of armed conflict, does not necessarily mean that such
recourse is as such prohibited. Another view holds that recourse to nuclear weapons,
in view of the necessarily indiscriminate consequences of their use, could never be
compatible with the principles and rules of humanitarian law and is therefore
prohibited. A similar view has been expressed with respect to the effects of the
principle of neutrality. Like the principles and rules of humanitarian law, that
principle has therefore been considered by some to rule out the use of a weapon the
effects of which simply cannot be contained within the territories of the contending
States.
The Court observes that, in view of the unique characteristics of nuclear weapons, to
which the Court has referred above, the use of such weapons in fact seems scarcely
reconcilable with respect for the requirements of the law applicable in armed conflict.
It considers nevertheless, that it does not have sufficient elements to enable it to
conclude with certainty that the use of nuclear weapons would necessarily be at
variance with the principles and rules of law applicable in armed conflict in any
circumstance. Furthermore, the Court cannot lose sight of the fundamental right of
every State to survival, and thus its right to resort to self-defence, in accordance with
Article 51 of the Charter, when its survival is at stake. Nor can it ignore the practice
referred to as "policy of deterrence", to which an appreciable section of the
international community adhered for many years.
Accordingly, in view of the present state of international law viewed as a whole, as
examined by the Court, and of the elements of fact at its disposal, the Court is led to
observe that it cannot reach a definitive conclusion as to the legality or illegality of
the use of nuclear weapons by a State in an extreme circumstance of self-defence, in
which its very survival would be at stake.
Obligation to negotiate nuclear disarmament (paras. 98-103)
Given the eminently difficult issues that arise in applying the law on the use of force
and above all the law applicable in armed conflict to nuclear weapons, the Court
considers that it needs to examine one further aspect of the question before it, seen in
a broader context.
In the long run, international law, and with it the stability of the international order
which it is intended to govern, are bound to suffer from the continuing difference of
views with regard to the legal status of weapons as deadly as nuclear weapons. It is
consequently important to put an end to this state of affairs: the long-promised
complete nuclear disarmament appears to be the most appropriate means of achieving
that result.
In these circumstances, the Court appreciates the full importance of the recognition by
Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of an
obligation to negotiate in good faith a nuclear disarmament. The legal import of that
obligation goes beyond that of a mere obligation of conduct; the obligation involved
here is an obligation to achieve a precise result - nuclear disarmament in all its
aspects - by adopting a particular course of conduct, namely, the pursuit of
negotiations on the matter in good faith. This twofold obligation to pursue and to
conclude negotiations formally concerns the 182 States parties to the Treaty on the
Non-Proliferation of Nuclear Weapons, or, in other words, the vast majority of the
international community. Indeed, any realistic search for general and complete
disarmament, especially nuclear disarmament, necessitates the co-operation of all
States.
*
The Court finally emphasizes that its reply to the question put to it by the
General Assembly rests on the totality of the legal grounds set forth by the Court
above (paragraphs 20 to 103), each of which is to be read in the light of the others.
Some of these grounds are not such as to form the object of formal conclusions in the
final paragraph of the Opinion; they nevertheless retain, in the view of the Court, all
their importance.
__________
Declaration of President Bedjaoui
After having pointed out that paragraph E of the operative part was adopted by seven
votes to seven, with his own casting vote, President Bedjaoui began by stressing that
the Court had been extremely meticulous and had shown an acute sense of its
responsibilities when proceeding to consider all the aspects of the complex question
put to it by the General Assembly. He indicated that the Court had, however, had to
find that in the current state of international law, the question was one to which it was
unfortunately not in a position to give a clear answer. In his view, the Advisory
Opinion thus rendered does at least have the merit of pointing to the imperfections of
international law and inviting the States to correct them.
President Bedjaoui indicated that the fact that the Court was unable to go any further
should not "in any way be interpreted as leaving the way open to the recognition of
the lawfulness of the threat or use of nuclear weapons". According to him, the Court
does no more than place on record the existence of a legal uncertainty. After having
observed that the voting of the Members of the Court on paragraph E of the operative
part is not the reflection of any geographical dividing line, he gives the reasons that
led him to approve the pronouncement of the Court.
To that end, he began by emphasizing the particularly exacting nature of international
law and the way in which it is designed to be applied in all circumstances. More
specifically, he concluded that
"the very nature of this blind weapon therefore has a destabilizing
effect on humanitarian law which regulates discernment in the type of
weapon used. Nuclear weapons, the ultimate evil, destabilize
humanitarian law which is the law of the lesser evil. The existence of
nuclear weapons is therefore a challenge to the very existence of
humanitarian law, not to mention their long-term effects of damage to
the human environment, in respect to which the right to life can be
exercised".
President Bedjaoui considered that "self-defence - if exercised under extreme
circumstances in which the very survival of a State is in question - cannot engender a
situation in which a State would exonerate itself from compliance with the
"intransgressible" norms of international humanitarian law". According to him it
would be very rash to accord, without any hesitation, a higher priority to the survival
of a State than to the survival of humanity itself.
As the ultimate objective of any action in the field of nuclear weapons is nuclear
disarmament, President Bedjaoui concludes by stressing the importance of the
obligation to negotiate in good faith for nuclear disarmament - which the Court has
moreover recognized. He considers for his part that it is possible to go beyond the
conclusions of the Court in this regard and to assert "that there in fact exists a twofold
general obligation, opposable erga omnes, to negotiate in good faith and to achieve a
specified result"; in other words, given the at least formally unanimous support for
that object, that obligation has now - in his view - assumed customary force.
__________
Declaration of Judge Herczegh
Judge Herczegh, in his declaration, takes the view that the Advisory Opinion could
have included a more accurate summary of the present state of international law with
regard to the question of the threat and use of nuclear weapons "in any circumstance".
He voted in favour of the Advisory Opinion and, more particularly, in favour of
paragraph 105, sub-paragraph E, as he did not wish to disassociate himself from the
large number of conclusions that were expressed and integrated into the Advisory
Opinion, and which he fully endorses.
__________
Declaration Judge Shi
Judge Shi has voted in favour of the operative paragraphs of the Advisory Opinion of
the Court. However, he has reservations with regard to the role which the Court
assigns to the policy of deterrence in determining the existence of a customary rule on
the use of nuclear weapons.
In his view, "nuclear deterrence" is an instrument of policy to which certain nuclearweapon
States, supported by those States accepting nuclear umbrella protection,
adhere in their relations with other States. This practice is within the realm of
international politics and has no legal value from the standpoint of the formation of a
customary rule prohibiting the use of the weapons as such.
It would be hardly compatible with the Court's judicial function if the Court, in
determining a rule of existing law governing the use of the weapons, were to have
regard to the "policy of deterrence".
Also, leaving aside the nature of the policy of deterrence, States adhering to the policy
of deterrence, though important and powerful members of the international
community and playing an important role on the stage of international politics, by no
means constitute a large proportion of the membership of the international
community.
Besides, the structure of the community of states is built on the principle of sovereign
equality. The Court cannot view these nuclear-weapon States and their allies in terms
of material power, rather should have regard of them from the standpoint of
international law. Any undue emphasis on the practice of these materially powerful
States, constituting a fraction of membership of the community of States, would not
only be contrary to the principle of sovereign equality of States, but also make it more
difficult to give an accurate and proper view of the existence of a customary rule on
the use of nuclear weapons.
__________
Declaration of Judge Vereshchetin
In his declaration Judge Vereshchetin explains the reasons which have led him to vote
in favour of paragraph 2E of the dispositif, which carries the implication of the
indecisiveness of the Court. In his view, in advisory procedure, where the Court is
requested not to resolve an actual dispute, but to state the law as it finds it, the Court
may not try to fill any lacuna or improve the law which is imperfect. The Court
cannot be blamed for indecisiveness or evasiveness where the law, upon which it is
called to pronounce, is itself inconclusive.
Judge Vereshchetin is of the view that the Opinion adequately reflects the current
legal situation and shows the most appropriate means to putting an end to the
existence of any "grey areas" in the legal status of nuclear weapons.
__________
Declaration of Judge Ferrari Bravo
Judge Ferrari Bravo regrets that the Court should have arbitrarily divided into two
categories the long line of General Assembly resolutions that deal with nuclear
weapons. Those resolutions are fundamental. This is the case of resolution 1 (I) of
24 January 1946, which clearly points to the existence of a truly solemn undertaking
to eliminate all forms of nuclear weapons, whose presence in military arsenals was
declared unlawful. The Cold War, which intervened shortly afterwards, prevented the
development of this concept of illegality, while giving rise to the concept of nuclear
deterrence which has no legal value. The theory of deterrence, while it has occasioned
a practice of the nuclear-weapon States and their allies, has not been able to create a
legal practice serving as a basis for the incipient creation of an international custom. It
has, moreover, helped to widen the gap between Article 2, paragraph 4 of the Charter
and Article 51.
The Court should have proceeded to a constructive analysis of the role of the
General Assembly resolutions. These have, from the outset, contributed to the
formation of a rule prohibiting nuclear weapons. The theory of deterrence has arrested
the development of that rule and, while it has prevented the implementation of the
prohibition of nuclear weapons, it is nonetheless still the case that that "bare"
prohibition has remained unchanged and continues to produce its effects, at least with
regard to the burden of proof, by making it more difficult for the nuclear powers to
vindicate their policies within the framework of the theory of deterrence.
__________
Separate opinion of Judge Guillaume
After having pondered upon the admissibility of the request for advisory opinion,
Judge Guillaume begins by expressing his agreement with the Court with regard to
the fact that nuclear weapons, like all weapons, can only be used in the exercise of the
right of self-defence recognized by Article 51 of the Charter. On the other hand, he
says he has had doubts about the applicability of traditional humanitarian law to the
use - and above all the threat of use - of nuclear weapons. He goes on to say, however,
that he has no choice in the matter but to defer to the consensus that has emerged
before the Court between the States.
Moving on to an analysis of the law applicable to armed conflict, he notes that that
law essentially implies comparisons in which humanitarian considerations have to be
weighed against military requirements. Thus the collateral damage caused to the
civilian population must not be "excessive" as compared to the "military advantage"
offered. The harm caused to combatants must not be "greater than that unavoidable to
achieve legitimate military objectives". On that account, nuclear weapons of mass
destruction can only be used lawfully in extreme cases.
In an attempt to define those cases, Judge Guillaume stresses that neither the Charter
of the United Nations, nor any conventional or customary rule can detract from the
natural right of self-defence recognized by Article 51 of the Charter. He deduces from
this that international law cannot deprive a State of the right to resort to nuclear
weaponry if that resort constitutes the ultimate means by which it can ensure its
survival.
He regrets that the Court has not explicitly recognized this, but stresses that it has
done so implicitly. It has certainly concluded that it could not, in those extreme
circumstances, make a definitive finding either of legality of illegality in relation to
nuclear weapons. In other words, it has taken the view that, in such circumstances, the
law provides no guidance to States. However if the law is silent on that matter, the
States, in the exercise of their sovereignty, remain free to act as they think fit.
Consequently, it follows implicitly but necessarily from paragraph 2 E of the Court's
Advisory Opinion that the States may resort to "the threat or use of nuclear weapons
in an extreme circumstance of self-defence, in which the very survival of a State
would be at stake". When recognizing such a right the Court, by so doing, has
recognized the legality of policies of deterrence.
__________
Separate opinion of Judge Ranjeva
In his separate opinion, Judge Ranjeva has made a point of emphasizing that, for the
first time, the Court has unambiguously stated that the use or threat of use of nuclear
weapons is contrary to the rules of international law applicable inter alia to armed
conflict and, more particularly, to the principles and rules of humanitarian law. That
indirect response to the question of the General Assembly is, in his view, justified by
the very nature of the law of armed conflict, applicable without regard to the status of
victim or of aggressor, and that explains why the Court has not gone so far as to
uphold the exception of extreme self-defence when the very survival of the State is at
stake, as a condition for the suspension of illegality. In his view, the State practice
shows that a point of no return has been reached: the principle of the legality of the
use or threat of use of nuclear weapons has not been asserted; it is on the basis of a
justification of an exception to that principle, accepted as being legal, that the nuclearweapon
States attempt to give the reasons for their policies, and the increasingly
closer-knit legal régimes of nuclear weapons have come about in the context of the
consolidation and implementation of the final obligation to produce a specific result,
i.e., generalized nuclear disarmament. These "givens" thus represent the advent of a
consistent and uniform practice: an emergent opinio juris.
Judge Ranjeva considers, however, that the equal treatment that the Advisory Opinion
has given to the principles of legality and illegality cannot be justified. The
General Assembly gave a very clear definition of the object of its question: does
international law authorize the use or threat of use of nuclear weapons in any
circumstance? By dealing at the same time and, above all, on the same level with both
legality and illegality, the Court has been led to adopt a liberal acceptation of the
concept of a "legal question" in an advisory proceeding, as henceforth any question
whose object is to ask the Court to look into matters that some people do not seek to
understand, will be seen as admissible.
In conclusion, Judge Ranjeva, while being aware of the criticisms that specialists in
law and judicial matters will be bound to level at the Advisory Opinion, ultimately
considers that it does declare the law as it is, while laying down boundaries the
exceeding of which is a matter for the competence of States. He nonetheless hopes
that no Court will ever have to reach a decision along the lines of the second subparagraph
of paragraph E.
__________
Separate opinion of Judge Fleischhauer
Judge Fleischhauer's separate opinion highlights that international law is still
grappling with and has not yet overcome the dichotomy that is created by the very
existence of nuclear weapons between the law applicable in armed conflict, and in
particular the rules and principles of humanitarian law on the one side, and the
inherent right of self-defence on the other. The known qualities of nuclear weapons let
their use appear scarcely reconcilable with humanitarian law, while the right to selfdefence
would be severely curtailed if for a State, victim of an attack with nuclear,
chemical or bacteriological weapons or otherwise constituting a deadly menace for its
very existence, nuclear weapons were totally ruled out as an ultimate legal option.
The separate opinion endorses the Court's finding that international law applicable in
armed conflict, and particularly the rules and principles of humanitarian law, apply to
nuclear weapons. It goes on to agree with the Court's Conclusion that the threat or use
of nuclear weapons would generally be contrary to the rules applicable in armed
conflict, and in particular the principles and rules of humanitarian law. The separate
opinion then welcomes that the Court did not stop there, but that the Court admitted
that there can be qualifications to that finding. Had the Court not done so, then it
would have given prevalence to one set of the principles involved over the other. The
principles involved are, however, all legal principles of equal rank.
The separate opinion continues that the Court could and should have gone further and
that it could and should have stated, that in order to reconcile the conflicting
principles, their smallest common denominator would apply. That means that recourse
to nuclear weapons could remain a justified legal option in an extreme case of
individual or collective self-defence as the last resort of a State victim of an attack
with nuclear, bacteriological or chemical weapons or otherwise threatening its very
existence. The separate opinion sees a confirmation of this view in the legally relevant
State practice relating to matters of self-defence.
For a recourse to nuclear weapons to be considered justified, however, not only would
the situation have to be extreme, but all the conditions on which the lawfulness of the
exercise of the right of self-defence depends in international law, including the
requirement of proportionality, would have to be met. Therefore the margin for
considering that a particular threat or use of nuclear weapons could be legal, is
extremely narrow.
Finally, the separate opinion endorses the existence of a general obligation of States to
pursue in good faith, and bring to a conclusion, negotiations leading to nuclear
disarmament in all its aspects under strict and effective international control.
__________
Dissenting opinion of Vice-President Schwebel
Vice-President Schwebel, while agreeing with much of the body of the Court's
Opinion, dissented because of his "profound" disagreement with its principal
operative conclusion: "The Court cannot conclude definitively whether the threat or
use of nuclear weapons would be lawful or unlawful an extreme circumstance of selfdefence,
in which the very survival of a State would be at stake." The Court thereby
concluded "on the supreme issue of the threat or use of force of our age that it has no
opinion . . . that international law and hence the Court have nothing to say. After
many months of agonizing appraisal of the law, the Court discovers that there is none.
When it comes to the supreme interests of State, the Court discards the legal progress
of the Twentieth Century, puts aside the provisions of the United Nations Charter of
which it is 'the principal judicial organ', and proclaims, in terms redolent of
Realpolitik, its ambivalence about the most important provisions of modern
international law. If this was to be its ultimate holding, the Court would have done
better to have drawn on its undoubted discretion not to render an Opinion at all."
The Court's inconclusiveness was in accordance neither with its Statute, nor its
precedent, nor with events which demonstrate the legality of the threat or use of
nuclear weapons in extraordinary circumstances. E.g., the threat which Iraq took as a
nuclear threat that may have deterred it from using chemical and biological weapons
against coalition forces in the Gulf War was "not only eminently lawful but intensely
desirable".
While the principles of international humanitarian law govern the use of nuclear
weapons, and while "it is extraordinarily difficult to reconcile the use . . . of nuclear
weapons with the application of those principles", it does not follow that the use of
nuclear weapons necessarily and invariably will contravene those principles. But it
cannot be accepted that the use of nuclear weapons on a scale which would - or could
- result in the deaths of "many millions in indiscriminate inferno and by far-reaching
fallout . . . and render uninhabitable much or all of the earth, could be lawful." The
Court's conclusion that the threat or use of nuclear weapons "generally" would be
contrary to the rules of international law applicable in armed conflict "is not
unreasonable."
The case as a whole presents an unparalleled tension between State practice and legal
principle. State practice demonstrates that nuclear weapons have been manufactured
and deployed for some 50 years; that in that deployment inheres a threat of possible
use ("deterrence"); and that the international community, far from outlawing the threat
or use of nuclear weapons in all circumstances, has recognized in effect or in terms
that in certain circumstances nuclear weapons may be used or their use threatened.
This State practice is not that of a lone and secondary persistent objector, but a
practice of the permanent Members of the Security Council, supported by a large and
weighty number of other States, who together represent the bulk of the world's power
and much of its population.
The Nuclear Non-Proliferation Treaty and the negative and positive security
assurances of the nuclear Powers unanimously accepted by the Security Council
indicate the acceptance by the international community of the threat or use of nuclear
weapons in certain circumstances. Other nuclear treaties equally infer that nuclear
weapons are not comprehensively prohibited either by treaty or customary
international law.
General Assembly resolutions to the contrary are not law-making or declaratory of
existing international law. When faced with continuing and significant opposition, the
repetition of General Assembly resolutions is a mark of ineffectuality in law
formation as it is in practical effect.
__________
Dissenting opinion of Judge Oda
Judge Oda voted against part one of the Court's Advisory Opinion because of his view
that, for the reasons of judicial propriety and judicial economy, the Court should have
exercised its discretionary power to refrain from rendering an Opinion in response to
the Request.
In the view of Judge Oda, the question in the Request is not adequately drafted and
there was a lack of meaningful consensus of the General Assembly with regard to the
1994 Request. After examining the developments of the relevant General Assembly
resolutions on a convention on the prohibition of the use of nuclear weapons up to
1994, he notes that the General Assembly is far from having reached an agreement on
the preparation of a Convention rendering the use of nuclear weapons illegal. In the
light of that history, the Request was prepared and drafted - not in order to ascertain
the status of existing international law on the subject but to try to promote the total
elimination of nuclear weapons - that is to say, with highly political motives.
He notes that the perpetuation of the NPT régime recognizes two groups of States -
the five nuclear-weapon States and the non-nuclear-weapon States. As the five
nuclear-weapon States have repeatedly given assurances to the non-nuclear-weapon
States of their intention not to use nuclear weapons against them, there is almost no
probability of any use of nuclear weapons given the current doctrine of nuclear
deterrence.
Judge Oda maintains that an advisory opinion should only be given in the event of a
real need. In the present instance there is no need and no rational justification for the
General Assembly's request that the Court give an advisory opinion on the existing
international law relating to the use of nuclear weapons. He also emphasizes that from
the standpoint of judicial economy the right to request an advisory opinion should not
be abused.
In concluding his Opinion, Judge Oda stresses his earnest hope that nuclear weapons
will be eliminated from the world but states that the decision on this matter is a
function of political negotiations among States in Geneva (the Conference on
Disarmament) or New York (United Nations) but not one which concerns this judicial
institution in The Hague.
He voted against sub-paragraph E as the equivocations contained therein serve, in his
view, to confirm his point that it would have been prudent for the Court to decline
from the outset to give any opinion at all in the present case.
__________
Dissenting opinion of Judge Shahabuddeen
In Judge Shahabuddeen's dissenting opinion, the essence of the General Assembly's
question was whether, in the special case of nuclear weapons, it was possible to
reconcile the imperative need of a State to defend itself with the no less imperative
need to ensure that, in doing so, it did not imperil the survival of the human species. If
a reconciliation was not possible, which side should give way? The question was,
admittedly, a difficult one; but the responsibility of the Court to answer it was clear.
He was not persuaded that there was any deficiency in the law or the facts which
prevented the Court from returning a definitive answer to the real point of the General
Assembly's question. In his respectful view, the Court should and could have given a
definitive answer - one way or another.
__________
Dissenting opinion of Judge Weeramantry
Judge Weeramantry's Opinion is based on the proposition that the use or threat of use
of nuclear weapons is illegal in any circumstances whatsoever. It violates the
fundamental principles of international law, and represents the very negation of the
humanitarian concerns which underlie the structure of humanitarian law. It offends
conventional law and, in particular, the Geneva Gas Protocol of 1925, and
Article 23(a) of the Hague Regulations of 1907. It contradicts the fundamental
principle of the dignity and worth of the human person on which all law depends. It
endangers the human environment in a manner which threatens the entirety of life on
the planet.
He regretted that the Court had not so held, directly and categorically.
However, there were some portions of the Court's Opinion which were of value, in
that it expressly held that nuclear weapons were subject to limitations flowing from
the United Nations Charter, the general principles of international law, the principles
of international humanitarian law, and by a variety of treaty obligations. It was the
first international judicial determination to this effect and further clarifications were
possible in the future.
Judge Weeramantry's Opinion explained that from the time of Henri Dunant,
humanitarian law took its origin and inspiration from a realistic perception of the
brutalities of war, and the need to restrain them in accordance with the dictates of the
conscience of humanity. The brutalities of the nuclear weapon multiplied a thousandfold
all the brutalities of war as known in the pre-nuclear era. It was doubly clear
therefore that the principles of humanitarian law governed this situation.
His Opinion examined in some detail the brutalities of nuclear war, showing
numerous ways in which the nuclear weapon was unique, even among weapons of
mass destruction in injuring human health, damaging the environment, and destroying
all the values of civilization.
The nuclear weapon caused death and destruction; induced cancers, leukaemia,
keloids and related afflictions; caused gastro intestinal, cardiovascular and related
afflictions; continued, for decades after its use, to induce the health-related problems
mentioned above; damaged the environmental rights of future generations; caused
congenital deformities, mental retardation and genetic damage; carried the potential to
cause a nuclear winter; contaminated and destroyed the food chain; imperilled the
eco-system; produced lethal levels of heat and blast; produced radiation and
radioactive fall-out; produced a disruptive electromagnetic pulse; produced social
disintegration; imperilled all civilization; threatened human survival; wreaked cultural
devastation; spanned a time range of thousands of years; threatened all life on the
planet; irreversibly damaged the rights of future generations; exterminated civilian
populations; damaged neighbouring States; produced psychological stress and fear
syndromes - as no other weapons do.
While it was true that there was no treaty or rule of law which expressly outlawed
nuclear weapons by name, there was an abundance of principles of international law,
and particularly international humanitarian law, which left no doubt regarding the
illegality of nuclear weapons, when one had regard to their known effects.
Among these principles were the prohibition against causing unnecessary suffering,
the principle of proportionality, the principle of discrimination between combatants
and civilians, the principle against causing damage to neutral states, the prohibition
against causing serious and lasting damage to the environment, the prohibition against
genocide, and the basic principles of human rights law.
In addition, there were specific treaty provisions contained in the Geneva Gas
Protocol (1925), and the Hague Regulations (1907) which were clearly applicable to
nuclear weapons as they prohibited the use of poisons. Radiation directly fell within
this description, and the prohibition against the use of poisons was indeed one of the
oldest rules of the laws of war.
Judge Weeramantry's Opinion also draws attention to the multicultural and ancient
origins of the laws of war, referring to the recognition of its basic rules in Hindu,
Buddhist, Chinese, Judaic, Islamic, African, and modern European cultural traditions.
As such, the humanitarian rules of warfare were not to be regarded as a new
sentiment, invented in the nineteenth century, and so slenderly rooted in universal
tradition that they may be lightly overridden.
The Opinion also points out that there cannot be two sets of the laws of war applicable
simultaneously to the same conflict - one to conventional weapons, and the other to
nuclear weapons.
Judge Weeramantry's analysis includes philosophical perspectives showing that no
credible legal system could contain a rule within itself which rendered legitimate an
act which could destroy the entire civilization of which that legal system formed a
part. Modern juristic discussions showed that a rule of this nature, which may find a
place in the rules of a suicide club, could not be part of any reasonable legal system -
and international law was pre-eminently such a system.
The Opinion concludes with a reference to the appeal in the Russell-Einstein
Manifesto to "remember your humanity and forget the rest", without which the risk
arises of universal death. In this context, the Opinion points out that international law
is equipped with the necessary array of principles with which to respond, and that
international law could contribute significantly towards rolling back the shadow of the
mushroom cloud, and heralding the sunshine of the nuclear-free age.
The question should therefore have been answered by the Court - convincingly,
clearly, and categorically.
__________
Dissenting opinion of Judge Koroma
In his Dissenting Opinion, Judge Koroma stated that he fundamentally disagreed with
the Court's finding that:
"in view of the current state of international law, and of the elements of
fact at its disposal, the Court cannot conclude definitively whether the
threat or use of nuclear weapons would be lawful or unlawful in an
extreme circumstance of self-defence, in which the very survival of a
State would be at stake".
Such a finding, he maintained, could not be sustained on the basis of existing
international law, nor in the face of the weight and abundance of evidence and
material presented to the Court. In his view, on the basis of the existing law,
particularly humanitarian law and the material available to the Court, the use of
nuclear weapons in any circumstance would at the very least result in the violation of
the principles and rules of that law and is therefore unlawful.
Judge Koroma also pointed out that although the views of states are divided on the
question of the effects of the use of nuclear weapons, or as to whether the matter
should have been brought before the Court, he took the view that once the Court had
found that the General Assembly was competent to pose the question, and that no
compelling reason existed against rendering an opinion, the Court should have
performed its judicial function and decide the case on the basis of existing
international law. He expressed his regret that the Court, even after holding that:
"the threat or use of nuclear weapons would generally be contrary to
the rules of international law applicable in armed conflict, and in
particular the principles and rules of humanitarian law".
A finding with which he concurred, save for the word "generally" - the Court had
flinched from answering the actual question put to it that the threat or use of nuclear
weapons in any circumstance would be unlawful under international law.
He maintained that the Court's answer to the question had turned on the "survival of
the state", whereas the question posed to the Court was about the lawfulness of the
use of nuclear weapons. He therefore found the Court's judgment not only untenable
in law, but even potentially destabilizing of the existing international legal order, as it
not only
الطاقة النووية بين السلم والحرب - مجلة السياسة الدولية (من أرشيف المجلة) - نزار عثمان - 09-09-2006
Treaty Between the United States of America and the
Union of Soviet Socialist Republics on the Limitation of
Strategic Offensive Arms, Together with Agreed Statements and Common
Understandings Regarding the Treaty*
Signed at Vienna June 18, 1979
The United States of America and the Union of Soviet Socialist Republics, hereinafter
referred to as the Parties,
Conscious that nuclear war would have devastating consequences for all mankind,
Proceeding from the Basic Principles of Relations Between the United States of
America and the Union of Soviet Socialist Republics of May 29, 1972,
Attaching particular significance to the limitation of strategic arms and determined to
continue their efforts begun with the Treaty on the Limitation of Anti-Ballistic Missile
Systems and the Interim Agreement on Certain Measures with Respect to the
Limitation of Strategic Offensive Arms, of May 26, 1972,
Convinced that the additional measures limiting strategic offensive arms provided for
in this Treaty will contribute to the improvement of relations between the Parties, help
to reduce the risk of outbreak of nuclear war and strengthen international peace and
security,
Mindful of their obligations under Article VI of the Treaty on the Non-Proliferation of
Nuclear Weapons,
Guided by the principle of equality and equal security,
Recognizing that the strengthening of strategic stability meets the interests of the
Parties and the interests of international security,
Reaffirming their desire to take measures for the further limitation and for the further
reduction of strategic arms, having in mind the goal of achieving general and
complete disarmament,
Declaring their intention to undertake in the near future negotiations further to limit
and further to reduce strategic offensive arms,
Have agreed as follows:
Article I
Each Party undertakes, in accordance with the provisions of this Treaty, to limit
strategic offensive arms quantitatively and qualitatively, to exercise restraint in the
development of new types of strategic offensive arms, and to adopt other measures
provided for in this Treaty.
Article II
For the purposes of this Treaty:
1. Intercontinental ballistic missile (ICBM) launchers are land-based launchers of
ballistic missiles capable of a range in excess of the shortest distance between the
northeastern border of the continental part of the territory of the United States of
America and the northwestern border of the continental part of the territory of the
Union of Soviet Socialist Republics, that is, a range in excess of 5,500 kilometers.
* The text of the SALT II Treaty and Protocol, as signed in Vienna, is accompanied
by a set of Agreed Statements and Common Understandings, also signed by President
Carter and General Secretary Brezhnev, which is prefaced as follows:
In connection with the Treaty Between the United States of America and the Union of
Soviet Socialist Republics on the Limitation of Strategic Offensive Arms, the Parties
have agreed on the following Agreed Statements and Common Understandings
undertaken on behalf of the Government of the United States and the Government of
the Union of Soviet Socialist Republics:
As an aid to the reader, the texts of the Agreed Statements and Common
Understandings are beneath the articles of the Treaty or Protocol to which they
pertain.
First Agreed Statement. The term "intercontinental ballistic missile launchers," as
defined in paragraph 1 of Article II of the Treaty, includes all launchers which have
been developed and tested for launching ICBMs. If a launcher has been developed
and tested for launching an ICBM, all launchers of that type shall be considered to
have been developed and tested for launching ICBMs.
First Common Understanding. If a launcher contains or launches an ICBM, that
launcher shall be considered to have been developed and tested for launching ICBMs.
Second Common Understanding. If a launcher has been developed and tested for
launching an ICBM, all launchers of that type, except for ICBM test and training
launchers, shall be included in the aggregate numbers of strategic offensive arms
provided for in Article III of the Treaty, pursuant to the provisions of Article VI of the
Treaty.
Third Common Understanding. The one hundred and seventy-seven former Atlas
and Titan I ICBM launchers of the United States of America, which are no longer
operational and are partially dismantled, shall not be considered as subject to the
limitations provided for in the Treaty.
Second Agreed Statement. After the date on which the Protocol ceases to be in
force, mobile ICBM launchers shall be subject to the relevant limitations provided for
in the Treaty which are applicable to ICBM launchers, unless the Parties agree that
mobile ICBM launchers shall not be deployed after that date.
2. Submarine-launched ballistic missile (SLBM) launchers are launchers of ballistic
missiles installed on any nuclear-powered submarine or launchers of modern ballistic
missiles installed on any submarine, regardless of its type.
Agreed Statement. Modern submarine-launched ballistic missiles are: for the United
States of America, missiles installed in all nuclear-powered submarines; for the Union
of Soviet Socialist Republics, missiles of the type installed in nuclear-powered
submarines made operational since 1965; and for both Parties, submarine-launched
ballistic missiles first flight-tested since 1965 and installed in any submarine,
regardless of its type.
3. Heavy bombers are considered to be:
(a) currently, for the United States of America, bombers of the B-52 and B-1 types,
and for the Union of Soviet Socialist Republics, bombers of the Tupolev-95 and
Myasishchev types;
(b) in the future, types of bombers which can carry out the mission of a heavy bomber
in a manner similar or superior to that of bombers listed in subparagraph (a) above;
© types of bombers equipped for cruise missiles capable of a range in excess of 600
kilometers; and
(d) types of bombers equipped for ASBMs.
First Agreed Statement. The term "bombers," as used in paragraph 3 of Article II
and other provisions of the Treaty, means airplanes of types initially constructed to be
equipped for bombs or missiles.
Second Agreed Statement. The Parties shall notify each other on a case-by-case
basis in the Standing Consultative Commission of inclusion of types of bombers as
heavy bombers pursuant to the provisions of paragraph 3 of Article II of the Treaty; in
this connection the Parties shall hold consultations, as appropriate, consistent with the
provisions of paragraph 2 of Article XVII of the Treaty.
Third Agreed Statement. The criteria the Parties shall use to make case-by-case
determinations of which types of bombers in the future can carry out the mission of a
heavy bomber in a manner similar or superior to that of current heavy bombers, as
referred to in subparagraph 3(b) of Article II of the Treaty, shall be agreed upon in the
Standing Consultative Commission.
Fourth Agreed Statement. Having agreed that every bomber of a type included in
paragraph 3 of Article II of the Treaty is to be considered a heavy bomber, the Parties
further agree that:
(a) airplanes which otherwise would be bombers of a heavy bomber type shall not be
considered to be bombers of a heavy bomber type if they have functionally related
observable differences which indicate that they cannot perform the mission of a heavy
bomber;
(b) airplanes which otherwise would be bombers of a type equipped for cruise
missiles capable of a range in excess of 600 kilometers shall not be considered to be
bombers of a type equipped for cruise missiles capable of a range in excess of 600
kilometers if they have functionally related observable differences which indicate that
they cannot perform the mission of a bomber equipped for cruise missiles capable of a
range in excess of 600 kilometers, except that heavy bombers of current types, as
designated in subparagraph 3(a) of Article II of the Treaty, which otherwise would be
of a type equipped for cruise missiles capable of a range in excess of 600 kilometers
shall not be considered to be heavy bombers of a type equipped for cruise missiles
capable of a range in excess of 600 kilometers if they are distinguishable on the basis
of externally observable differences from heavy bombers of a type equipped for cruise
missiles capable of a range in excess of 600 kilometers; and
© airplanes which otherwise would be bombers of a type equipped for ASBMs shall
not be considered to be bombers of a type equipped for ASBMs if they have
functionally related observable differences which indicate that they cannot perform
the mission of a bomber equipped for ASBMs, except that heavy bombers of current
types, as designated in subparagraph 3(a) of Article II of the Treaty, which otherwise
would be of a type equipped for ASBMs shall not be considered to be heavy bombers
of a type equipped for ASBMs if they are distinguishable on the basis of externally
observable differences from heavy bombers of a type equipped for ASBMs.
First Common Understanding. Functionally related observable differences are
differences in the observable features of airplanes which indicate whether or not these
airplanes can perform the mission of a heavy bomber, or whether or not they can
perform the mission of a bomber equipped for cruise missiles capable of a range in
excess of 600 kilometers or whether or not they can perform the mission of a bomber
equipped for ASBMs. Functionally related observable differences shall be verifiable
by national technical means. To this end, the Parties may take, as appropriate,
cooperative measures contributing to the effectiveness of verification by national
technical means.
Fifth Agreed Statement. Tupolev-142 airplanes in their current configuration, that is,
in the configuration for anti-submarine warfare, are considered to be airplanes of a
type different from types of heavy bombers referred to in subparagraph 3(a) of Article
II of the Treaty and not subject to the Fourth Agreed Statement to paragraph 3 of
Article II of the Treaty. This Agreed Statement does not preclude improvement of
Tupolev-142 airplanes as an anti-submarine system, and does not prejudice or set a
precedent for designation in the future of types of airplanes as heavy bombers
pursuant to subparagraph 3(b) of Article II of the Treaty or for application of the
Fourth Agreed Statement to paragraph 3 of Article II of the Treaty to such airplanes.
Second Common Understanding. Not later than six months after entry into force of
the Treaty the Union of Soviet Socialist Republics will give its thirty-one
Myasishchev airplanes used as tankers in existence as of the date of signature of the
Treaty functionally related observable differences which indicate that they cannot
perform the mission of a heavy bomber.
Third Common Understanding. The designations by the United States of America
and by the Union of Soviet Socialist Republics for heavy bombers referred to in
subparagraph 3(a) of Article II of the Treaty correspond in the following manner:
Heavy bombers of the types designated by the United States of America as the B-52
and the B-1 are known to the Union of Soviet Socialist Republics by the same
designations;
Heavy bombers of the type designated by the Union of Soviet Socialist Republics as
the Tupolev-95 are known to the United States of America as heavy bombers of the
Bear type; and
Heavy bombers of the type designated by the Union of Soviet Socialist Republics as
the Myasishchev are known to the United States of America as heavy bombers of the
Bison type.
4. Air-to-surface ballistic missiles (ASBMs) are any such missiles capable of a range
in excess of 600 kilometers and installed in an aircraft or on its external mountings.
5. Launchers of ICBMs and SLBMs equipped with multiple independently targetable
reentry vehicles (MIRVs) are launchers of the types developed and tested for
launching ICBMs or SLBMs equipped with MIRVs.
First Agreed Statement. If a launcher has been developed and tested for launching
an ICBM or an SLBM equipped with MIRVs, all launchers of that type shall be
considered to have been developed and tested for launching ICBMs or SLBMs
equipped with MIRVs.
First Common Understanding. If a launcher contains or launches an ICBM or an
SLBM equipped with MIRVs, that launcher shall be considered to have been
developed and tested for launching ICBMs or SLBMs equipped with MIRVs.
Second Common Understanding. If a launcher has been developed and tested for
launching an ICBM or an SLBM equipped with MIRVs, all launchers of that type,
except for ICBM and SLBM test and training launchers, shall be included in the
corresponding aggregate numbers provided for in Article V of the Treaty, pursuant to
the provisions of Article VI of the Treaty.
Second Agreed Statement. ICBMs and SLBMs equipped with MIRVs are ICBMs
and SLBMs of the types which have been flight-tested with two or more
independently targetable reentry vehicles, regardless of whether or not they have also
been flight-tested with a single reentry vehicle or with multiple reentry vehicles which
are not independently targetable. As of the date of signature of the Treaty, such
ICBMs and SLBMs are: for the United States of America, Minuteman III ICBMs,
Poseidon C-3 SLBMs, and Trident C-4 SLBMs; and for the Union of Soviet Socialist
Republics, RS-16, RS-18, RS-20 ICBMs and RSM-50 SLBMs.
Each Party will notify the other Party in the Standing Consultative Commission on a
case-by-case basis of the designation of the one new type of light ICBM, if equipped
with MIRVs, permitted pursuant to paragraph 9 of Article IV of the Treaty when first
flight-tested; of designations of additional types of SLBMs equipped with MIRVs
when first installed on a submarine; and of designations of types of ASBMs equipped
with MIRVs when first flight-tested.
Third Common Understanding. The designations by the United States of America
and by the Union of Soviet Socialist Republics for ICBMs and SLBMs equipped with
MIRVs correspond in the following manner:
-- Missiles of the type designated by the United States of America as the Minuteman
III and known to the Union of Soviet Socialist Republics by the same designation, a
light ICBM that has been flight-tested with multiple independently targetable reentry
vehicles;
-- Missiles of the types designated by the United States of America as the Poseidon C-
3 and known to the Union of Soviet Socialist Republics by the same designation, an
SLBM that was first flight-tested in 1968 and that has been flight-tested with multiple
independently targetable reentry vehicles;
-- Missiles of the type designated by the United States of America as the Trident C-4
and known to the Union of Soviet Socialist Republics by the same designation, an
SLBM that was first flight-tested in 1977 and that has been flight-tested with multiple
independently targetable reentry vehicles;
-- Missiles of the type designated by the Union of Soviet Socialist Republics as the
RS-16 and known to the United States of America as the SS-17, a light ICBM that has
been flight-tested with a single reentry vehicle and with multiple independently
targetable reentry vehicles;
-- Missiles of the type designated by the Union of Soviet Socialist Republics as the
RS-18 and known to the United States of America as the SS-19, the heaviest in terms
of launch-weight and throw-weight of light ICBMs, which has been flight-tested with
a single reentry vehicle and with multiple independently targetable reentry vehicles;
-- Missiles of the type designated by the Union of Soviet Socialist Republics as the
RS-20 and known to the United States of America as the SS-18, the heaviest in terms
of launch-weight and throw-weight of heavy ICBMs, which has been flight-tested
with a single reentry vehicle and with multiple independently targetable reentry
vehicles;
-- Missiles of the type designated by the Union of Soviet Socialist Republics as the
RSM-50 and known to the United States of America as the SS-N-18, an SLBM that
has been flight-tested with a single reentry vehicle and with multiple independently
targetable reentry vehicles.
Third Agreed Statement. Reentry vehicles are independently targetable:
(a) if, after separation from the booster, maneuvering and targeting of the reentry
vehicles to separate aim points along trajectories which are unrelated to each other are
accomplished by means of devices which are installed in a self-contained dispensing
mechanism or on the reentry vehicles, and which are based on the use of electronic or
other computers in combination with devices using jet engines, including rocket
engines, or aerodynamic systems;
(b) if maneuvering and targeting of the reentry vehicles to separate aim points along
trajectories which are unrelated to each other are accomplished by means of other
devices which may be developed in the future.
Fourth Common Understanding. For the purposes of this Treaty, all ICBM
launchers in the Derazhnya and Pervomaysk areas in the Union of Soviet Socialist
Republics are included in the aggregate numbers provided for in Article V of the
Treaty.
Fifth Common Understanding. If ICBM or SLBM launchers are converted,
constructed or undergo significant changes to their principal observable structural
design features after entry into force of the Treaty, any such launchers which are
launchers of missiles equipped with MIRVs shall be distinguishable from launchers of
missiles not equipped with MIRVs, and any such launchers which are launchers of
missiles not equipped with MIRVs shall be distinguishable from launchers of missiles
equipped with MIRVs, on the basis of externally observable design features of the
launchers. Submarines with launchers of SLBMs equipped with MIRVs shall be
distinguishable from submarines with launchers of SLBMs not equipped with MIRVs
on the basis of externally observable design features of the submarines.
This Common Understanding does not require changes to launcher conversion or
construction programs, or to programs including significant changes to the principal
observable structural design features of launchers, underway as of the date of
signature of the Treaty.
6. ASBMs equipped with MIRVs are ASBMs of the types which have been flighttested
with MIRVs.
First Agreed Statement. ASBMs of the types which have been flight-tested with
MIRVs are all ASBMs of the types which have been flight-tested with two or more
independently targetable reentry vehicles, regardless of whether or not they have also
been flight-tested with a single reentry vehicle or with multiple reentry vehicles which
are not independently targetable.
Second Agreed Statement. Reentry vehicles are independently targetable:
(a) if, after separation from the booster, maneuvering and targeting of the reentry
vehicles to separate aim points along trajectories which are unrelated to each other are
accomplished by means of devices which are installed in a self-contained dispensing
mechanism or on the reentry vehicles, and which are based on the use of electronic or
other computers in combination with devices using jet engines, including rocket
engines, or aerodynamic systems;
(b) if maneuvering and targeting of the reentry vehicles to separate aim points along
trajectories which are unrelated to each other are accomplished by means of other
devices which may be developed in the future.
7. Heavy ICBMs are ICBMs which have a launch-weight greater or a throw-weight
greater than that of the heaviest, in terms of either launch-weight or throw-weight,
respectively, of the light ICBMs deployed by either Party as of the date of signature of
this Treaty.
First Agreed Statement. The launch-weight of an ICBM is the weight of the fully
loaded missile itself at the time of launch.
Second Agreed Statement. The throw-weight of an ICBM is the sum of the weight
of:
(a) its reentry vehicle or reentry vehicles;
(b) any self-contained dispensing mechanisms or other appropriate devices for
targeting one reentry vehicle, or for releasing or for dispensing and targeting two or
more reentry vehicles; and
© its penetration aids, including devices for their release.
Common Understanding. The term "other appropriate devices," as used in the
definition of the throw-weight of an ICBM in the Second Agreed Statement to
paragraph 7 of Article II of the Treaty, means any devices for dispensing and
targeting two or more reentry vehicles; and any devices for releasing two or more
reentry vehicles or for targeting one reentry vehicle, which cannot provide their
reentry vehicles or reentry vehicle with additional velocity of more than 1,000 meters
per second.
8. Cruise missiles are unmanned, self-propelled, guided, weapon-delivery vehicles
which sustain flight through the use of aerodynamic lift over most of their flight path
and which are flight-tested from or deployed on aircraft, that is, air-launched cruise
missiles, or such vehicles which are referred to as cruise missiles in subparagraph 1(b)
of Article IX.
First Agreed Statement. If a cruise missile is capable of a range in excess of 600
kilometers, all cruise missiles of that type shall be considered to be cruise missiles
capable of a range in excess of 600 kilometers.
First Common Understanding. If a cruise missile has been flight-tested to a range in
excess of 600 kilometers, it shall be considered to be a cruise missile capable of a
range in excess of 600 kilometers.
Second Common Understanding. Cruise missiles not capable of a range in excess of
600 kilometers shall not be considered to be of a type capable of a range in excess of
600 kilometers if they are distinguishable on the basis of externally observable design
features from cruise missiles of types capable of a range in excess of 600 kilometers.
Second Agreed Statement. The range of which a cruise missile is capable is the
maximum distance which can be covered by the missile in its standard design mode
flying until fuel exhaustion, determined by projecting its flight path onto the Earths
sphere from the point of launch to the point of impact.
Third Agreed Statement. If an unmanned, self-propelled, guided vehicle which
sustains flight through the use of aerodynamic lift over most of its flight path has been
flight-tested or deployed for weapon delivery, all vehicles of that type shall be
considered to be weapon-delivery vehicles.
Third Common Understanding. Unmanned, self-propelled, guided vehicles which
sustain flight through the use of aerodynamic lift over most of their flight path and are
not weapon-delivery vehicles, that is, unarmed, pilotless, guided vehicles, shall not be
considered to be cruise missiles if such vehicles are distinguishable from cruise
missiles on the basis of externally observable design features.
Fourth Common Understanding. Neither Party shall convert unarmed, pilotless,
guided vehicles into cruise missiles capable of a range in excess of 600 kilometers,
nor shall either Party convert cruise missiles capable of a range in excess of 600
kilometers into unarmed, pilotless, guided vehicles.
Fifth Common Understanding. Neither Party has plans during the term of the Treaty
to flight-test from or deploy on aircraft unarmed, pilotless, guided vehicles which are
capable of a range in excess of 600 kilometers. In the future, should a Party have such
plans, that Party will provide notification thereof to the other Party well in advance of
such flight-testing or deployment. This Common Understanding does not apply to
target drones.
Article III
1. Upon entry into force of this Treaty, each Party undertakes to limit ICBM
launchers, SLBM launchers, heavy bombers, and ASBMs to an aggregate number not
to exceed 2,400.
2. Each Party undertakes to limit, from January 1, 1981, strategic offensive arms
referred to in paragraph 1 of this Article to an aggregate number not to exceed 2,250,
and to initiate reductions of those arms which as of that date would be in excess of
this aggregate number.
3. Within the aggregate numbers provided for in paragraphs 1 and 2 of this Article
and subject to the provisions of this Treaty, each Party has the right to determine the
composition of these aggregates.
4. For each bomber of a type equipped for ASBMs, the aggregate numbers provided
for in paragraphs 1 and 2 of this Article shall include the maximum number of such
missiles for which a bomber of that type is equipped for one operational mission.
5. A heavy bomber equipped only for ASBMs shall not itself be included in the
aggregate numbers provided for in paragraphs 1 and 2 of this Article.
6. Reductions of the numbers of strategic offensive arms required to comply with the
provisions of paragraphs 1 and 2 of this Article shall be carried out as provided for in
Article XI.
Article IV
1. Each Party undertakes not to start construction of additional fixed ICBM launchers.
2. Each Party undertakes not to relocate fixed ICBM launchers.
3. Each Party undertakes not to convert launchers of light ICBMs, or of ICBMs of
older types deployed prior to 1964, into launchers of heavy ICBMs of types deployed
after that time.
4. Each Party undertakes in the process of modernization and replacement of ICBM
silo launchers not to increase the original internal volume of an ICBM silo launcher
by more than thirty-two percent. Within this limit each Party has the right to
determine whether such an increase will be made through an increase in the original
diameter or in the original depth of an ICBM silo launcher, or in both of these
dimensions.
Agreed Statement. The word "original" in paragraph 4 of Article IV of the Treaty
refers to the internal dimensions of an ICBM silo launcher, including its internal
volume, as of May 26, 1972, or as of the date on which such launcher becomes
operational, whichever is later.
Common Understanding. The obligations provided for in paragraph 4 of Article IV
of the Treaty and in the Agreed Statement thereto mean that the original diameter or
the original depth of an ICBM silo launcher may not be increased by an amount
greater than that which would result in an increase in the original internal volume of
the ICBM silo launcher by thirty-two percent solely through an increase in one of
these dimensions.
5. Each Party undertakes:
(a) not to supply ICBM launcher deployment areas with intercontinental ballistic
missiles in excess of a number consistent with normal deployment, maintenance,
training, and replacement requirements;
(b) not to provide storage facilities for or to store ICBMs in excess of normal
deployment requirements at launch sites of ICBM launchers;
© not to develop, test, or deploy systems for rapid reload of ICBM launchers.
Agreed Statement. The term "normal deployment requirements," as used in
paragraph 5 of Article IV of the Treaty, means the deployment of one missile at each
ICBM launcher.
6. Subject to the provisions of this Treaty, each Party undertakes not to have under
construction at any time strategic offensive arms referred to in paragraph 1 of Article
III in excess of numbers consistent with a normal construction schedule.
Common Understanding. A normal construction schedule, in paragraph 6 of Article
IV of the Treaty, is understood to be one consistent with the past or present
construction practices of each Party.
7. Each Party undertakes not to develop, test, or deploy ICBMs which have a launchweight
greater or a throw-weight greater than that of the heaviest, in terms of either
launch-weight or throw-weight, respectively, of the heavy ICBMs deployed by either
Party as of the date of signature of this Treaty.
First Agreed Statement. The launch-weight of an ICBM is the weight of the fully
loaded missile itself at the time of launch.
Second Agreed Statement. The throw-weight of an ICBM is the sum of the weight
of:
(a) its reentry vehicle or reentry vehicles;
(b) any self-contained dispensing mechanisms or other appropriate devices for
targeting one reentry vehicle, or for releasing or for dispensing and targeting two or
more reentry vehicles; and
© its penetration aids, including devices for their release.
Common Understanding. The term "other appropriate devices," as used in the
definition of the throw-weight of an ICBM in the Second Agreed Statement to
paragraph 7 of Article IV of the Treaty, means any devices for dispensing and
targeting two or more reentry vehicles; and any devices for releasing two or more
reentry vehicles or for targeting one reentry vehicle, which cannot provide their
reentry vehicles or reentry vehicle with additional velocity or more than 1,000 meters
per second.
8. Each Party undertakes not to convert land-based launchers of ballistic missiles
which are not ICBMs into launchers for launching ICBMs, and not to test them for
this purpose.
Common Understanding. During the term of the Treaty, the Union of Soviet
Socialist Republics will not produce, test, or deploy ICBMs of the type designated by
the Union of Soviet Socialist Republics as the RS-14 and known to the United States
of America as the SS-16, a light ICBM first flight-tested after 1970 and flight-tested
only with a single reentry vehicle; this Common Understanding also means that the
Union of Soviet Socialist Republics will not produce the third stage of that missile,
the reentry vehicle of that missile, or the appropriate device for targeting the reentry
vehicle of that missile.
9. Each Party undertakes not to flight-test or deploy new types of ICBMs, that is,
types of ICBMs not flight-tested as of May 1, 1979, except that each Party may flighttest
and deploy one new type of light ICBM.
First Agreed Statement. The term "new types of ICBMs," as used in paragraph 9 of
Article IV of the Treaty, refers to any ICBM which is different from those ICBMs
flight-tested as of May 1, 1979 in any one or more of the following respects:
(a) the number of stages, the length, the largest diameter, the launch-weight, or the
throw-weight, of the missile;
(b) the type of propellant (that is, liquid or solid) of any of its stages.
First Common Understanding. As used in the First Agreed Statement to paragraph
9 of Article IV of the Treaty, the term "different," referring to the length, the diameter,
the launch-weight, and the throw-weight of the missile, means a difference in excess
of five percent.
Second Agreed Statement. Every ICBM of the one new type of light ICBM
permitted to each Party pursuant to paragraph 9 of Article IV of the Treaty shall have
the same number of stages and the same type of propellant (that is, liquid or solid) of
each stage as the first ICBM of the one new type of light ICBM launched by that
Party. In addition, after the twenty-fifth launch of an ICBM of that type, or after the
last launch before deployment begins of ICBMs of that type, whichever occurs earlier,
ICBMs of the one new type of light ICBM permitted to that Party shall not be
different in any one or more of the following respects: the length, the largest diameter,
the launch-weight, or the throw-weight, of the missile.
A Party which launches ICBMs of the one new type of light ICBM permitted pursuant
to paragraph 9 of Article IV of the Treaty shall promptly notify the other Party of the
date of the first launch and of the date of either the twenty-fifth or the last launch
before deployment begins of ICBMs of that type, whichever occurs earlier.
Second Common Understanding. As used in the Second Agreed Statement to
paragraph 9 of Article IV of the Treaty, the term "different," referring to the length,
the diameter, the launch-weight, and the throw-weight, of the missile, means a
difference in excess of five percent from the value established for each of the above
parameters as of the twenty-fifth launch or as of the last launch before deployment
begins, whichever occurs earlier. The values demonstrated in each of the above
parameters during the last twelve of the twenty-five launches or during the last twelve
launches before deployment begins, whichever twelve launches occur earlier, shall
not vary by more than ten percent from any other of the corresponding values
demonstrated during those twelve launches.
Third Common Understanding. The limitations with respect to launch-weight and
throw-weight, provided for in the First Agreed Statement and the First Common
Understanding to paragraph 9 of Article IV of the Treaty, do not preclude the flighttesting
or the deployment of ICBMs with fewer reentry vehicles, or fewer penetration
aids, or both, than the maximum number of reentry vehicles and the maximum
number of penetration aids with which ICBMs of that type have been flight-tested as
of May 1, 1979, even if this results in a decrease in launch-weight or in throw-weight
in excess of five percent.
In addition to the aforementioned cases, those limitations do not preclude a decrease
in launch-weight or in throw-weight in excess of five percent, in the case of the flighttesting
or the deployment of ICBMs with a lesser quantity of propellant, including the
propellant of a self-contained dispensing mechanism or other appropriate device, than
the maximum quantity of propellant, including the propellant of a self-contained
dispensing mechanism or other appropriate device, with which ICBMs of that type
have been flight-tested as of May 1, 1979, provided that such an ICBM is at the same
time flight-tested or deployed with fewer reentry vehicles, or fewer penetration aids,
or both, than the maximum number of reentry vehicles and the maximum number of
penetration aids with which ICBMs of that type have been flight-tested as of May 1,
1979, and the decrease in launch-weight and throw-weight in such cases results only
from the reduction in the number of reentry vehicles, or penetration aids, or both, and
the reduction in the quantity of propellant.
Fourth Common Understanding. The limitations with respect to launch-weight and
throw-weight, provided for in the Second Agreed Statement and the Second Common
Understanding to paragraph 9 of Article IV of the Treaty, do not preclude the flighttesting
or the deployment of ICBMs of the one new type of light ICBM permitted to
each Party pursuant to paragraph 9 of Article IV of the Treaty with fewer reentry
vehicles, or fewer penetration aids, or both, than the maximum number of reentry
vehicles and the maximum number of penetration aids with which ICBMs of that type
have been flight-tested, even if this results in a decrease in launch-weight or in throwweight
in excess of five percent.
In addition to the aforementioned cases, those limitations do not preclude a decrease
in launch-weight or in throw-weight in excess of five percent, in the case of the flighttesting
or the deployment of ICBMs of that type with a lesser quantity of propellant,
including the propellant of a self-contained dispensing mechanism or other
appropriate device, than the maximum quantity of propellant, including the propellant
of a self-contained dispensing mechanism or other appropriate device, with which
ICBMs of that type have been flight-tested, provided that such an ICBM is at the
same time flight-tested or deployed with fewer reentry vehicles, or fewer penetration
aids, or both, than the maximum number of reentry vehicles and the maximum
number of penetration aids with which ICBMs of that type have been flight-tested,
and the decrease in launch-weight and throw-weight in such cases results only from
the reduction in the number of reentry vehicles, or penetration aids, or both, and the
reduction in the quantity of propellant.
10. Each Party undertakes not to flight-test or deploy ICBMs of a type flight-tested as
of May 1, 1979 with a number of reentry vehicles greater than the maximum number
of reentry vehicles with which an ICBM of that type has been flight-tested as of that
date.
First Agreed Statement. The following types of ICBMs and SLBMs equipped with
MIRVs have been flight-tested with the maximum number of reentry vehicles set
forth below:
For the United States of America
• ICBMs of the Minuteman III type -- Seven reentry vehicles;
• SLBMs of the Poseidon C-3 type -- Fourteen reentry vehicles;
• SLBMs of the Trident C-4 type -- Seven reentry vehicles.
For the Union of Soviet Socialist Republics
• ICBMs of the RS-16 type -- Four reentry vehicles;
• ICBMs of the RS-18 type -- Six reentry vehicles;
• ICBMs of the RS-20 type -- Ten reentry vehicles;
• SLBMs of the RSM-50 type -- Seven reentry vehicles.
Common Understanding. Minuteman III ICBMs of the United States of America
have been deployed with no more than three reentry vehicles. During the term of the
Treaty, the United States of America has no plans to and will not flight-test or deploy
missiles of this type with more than three reentry vehicles.
Second Agreed Statement. During the flight-testing of any ICBM, SLBM, or ASBM
after May 1, 1979, the number of procedures for releasing or for dispensing may not
exceed the maximum number of reentry vehicles established for missiles of
corresponding types as provided for in paragraphs 10, 11, 12, and 13 of Article IV of
the Treaty. In this Agreed Statement "procedures for releasing or for dispensing" are
understood to mean maneuvers of a missile associated with targeting and releasing or
dispensing its reentry vehicles to aim points, whether or not a reentry vehicle is
actually released or dispensed. Procedures for releasing anti-missile defense
penetration aids will not be considered to be procedures for releasing or for
dispensing a reentry vehicle so long as the procedures for releasing anti-missile
defense penetration aids differ from those for releasing or for dispensing reentry
vehicles.
Third Agreed Statement. Each Party undertakes:
(a) not to flight-test or deploy ICBMs equipped with multiple reentry vehicles, of a
type flight-tested as of May 1, 1979, with reentry vehicles the weight of any of which
is less than the weight of the lightest of those reentry vehicles with which an ICBM of
that type has been flight-tested as of that date;
(b) not to flight-test or deploy ICBMs equipped with a single reentry vehicle and
without an appropriate device for targeting a reentry vehicle, of a type flight-tested as
of May 1, 1979, with a reentry vehicle the weight of which is less than the weight of
the lightest reentry vehicle on an ICBM of a type equipped with MIRVs and flighttested
by that Party as of May 1, 1979; and
© not to flight-test or deploy ICBMs equipped with a single reentry vehicle and with
an appropriate device for targeting a reentry vehicle, of a type flight-tested as of May
1, 1979, with a reentry vehicle the weight of which is less than fifty percent of the
throw-weight of that ICBM.
11. Each Party undertakes not to flight-test or deploy ICBMs of the one new type
permitted pursuant to paragraph 9 of this Article with a number of reentry vehicles
greater than the maximum number of reentry vehicles with which an ICBM of either
Party has been flight-tested as of May 1, 1979, that is, ten.
First Agreed Statement. Each Party undertakes not to flight-test or deploy the one
new type of light ICBM permitted to each Party pursuant to paragraph 9 of Article IV
of the Treaty with a number of reentry vehicles greater than the maximum number of
reentry vehicles with which an ICBM of that type has been flight-tested as of the
twenty-fifth launch or the last launch before deployment begins of ICBMs of that
type, whichever occurs earlier.
Second Agreed Statement. During the flight-testing of any ICBM, SLBM, or ASBM
after May 1, 1979 the number of procedures for releasing or for dispensing may not
exceed the maximum number of reentry vehicles established for missiles of
corresponding types as provided for in paragraphs 10, 11, 12, and 13 of Article IV of
the Treaty. In this Agreed Statement "procedures for releasing or for dispensing" are
understood to mean maneuvers of a missile associated with targeting and releasing or
dispensing its reentry vehicles to aim points, whether or not a reentry vehicle is
actually released or dispensed. Procedures for releasing anti-missile defense
penetration aids will not be considered to be procedures for releasing or for
dispensing a reentry vehicle so long as the procedures for releasing anti-missile
defense penetration aids differ from those for releasing or for dispensing reentry
vehicles.
12. Each Party undertakes not to flight-test or deploy SLBMs with a number of
reentry vehicles greater than the maximum number of reentry vehicles with which an
SLBM of either Party has been flight-tested as of May 1, 1979, that is, fourteen.
First Agreed Statement. The following types of ICBMs and SLBMs equipped with
MIRVs have been flight-tested with the maximum number of reentry vehicles set
forth below:
For the United States of America
• ICBMs of the Minuteman III type -- Seven reentry vehicles;
• SLBMs of the Poseidon C-3 type -- Fourteen reentry vehicles;
• SLBMs of the Trident C-4 type -- Seven reentry vehicles.
For the Union of Soviet Socialist Republics
• ICBMs of the RS-16 type -- Four reentry vehicles;
• ICBMs of the RS-18 type -- Six reentry vehicles;
• ICBMs of the RS-20 type -- Ten reentry vehicles;
• SLBMs of the RSM-50 type -- Seven reentry vehicles.
Second Agreed Statement. During the flight-testing of any ICBM, SLBM, or ASBM
after May 1, 1979 the number of procedures for releasing or for dispensing may not
exceed the maximum number of reentry vehicles established for missiles of
corresponding types as provided for in paragraphs 10, 11, 12, and 13 of Article IV of
the Treaty. In this Agreed Statement "procedures for releasing or dispensing" are
understood to mean maneuvers of a missile associated with targeting and releasing or
dispensing its reentry vehicles to aim points, whether or not a reentry vehicle is
actually released or dispensed. Procedures for releasing anti-missile defense
penetration aids will not be considered to be procedures for releasing or for
dispensing a reentry vehicle so long as the procedures for releasing anti-missile
defense penetration aids differ from those for releasing or for dispensing reentry
vehicles.
13. Each Party undertakes not to flight-test or deploy ASBMs with a number of
reentry vehicles greater than the maximum number of reentry vehicles with which an
ICBM of either Party has been flight-tested as of May 1, 1979, that is, ten.
Agreed Statement. During the flight-testing of any ICBM, SLBM, or ASBM after
May 1, 1979 the number of procedures for releasing or for dispensing may not exceed
the maximum number of reentry vehicles established for missiles of corresponding
types as provided for in paragraphs 10, 11, 12, and 13 of Article IV of the Treaty. In
this Agreed Statement "procedures for releasing or for dispensing" are understood to
mean maneuvers of a missile associated with targeting and releasing or dispensing its
reentry vehicles to aim points, whether or not a reentry vehicle is actually released or
dispensed. Procedures for releasing anti-missile defense penetration aids will not be
considered to be procedures for releasing or for dispensing a reentry vehicle so long
as the procedures for releasing anti-missile defense penetration aids differ from those
for releasing or for dispensing reentry vehicles.
14. Each Party undertakes not to deploy at any one time on heavy bombers equipped
for cruise missiles capable of a range in excess of 600 kilometers a number of such
cruise missiles which exceeds the product of 28 and the number of such heavy
bombers.
First Agreed Statement. For the purposes of the limitation provided for in paragraph
14 of Article IV of the Treaty, there shall be considered to be deployed on each heavy
bomber of a type equipped for cruise missiles capable of a range in excess of 600
kilometers the maximum number of such missiles for which any bomber of that type
is equipped for one operational mission.
Second Agreed Statement. During the term of the Treaty no bomber of the B-52 or
B-1 types of the United States of America and no bomber of the Tupolev-95 or
Myasishchev types of the Union of Soviet Socialist Republics will be equipped for
more than twenty cruise missiles capable of a range in excess of 600 kilometers.
Article V
1. Within the aggregate numbers provided for in paragraphs 1 and 2 of Article III,
each Party undertakes to limit launchers of ICBMs and SLBMs equipped with
MIRVs, ASBMs equipped with MIRVs, and heavy bombers equipped for cruise
missiles capable of a range in excess of 600 kilometers to an aggregate number not to
exceed 1,320,455.
2. Within the aggregate number provided for in paragraph 1 of this Article, each Party
undertakes to limit launchers of ICBMs and SLBMs equipped with MIRVs, and
ASBMs equipped with MIRVs to an aggregate number not to exceed 1,200.
3. Within the aggregate number provided for in paragraph 2 of this Article, each Party
undertakes to limit launchers of ICBMs equipped with MIRVs to an aggregate
number not to exceed 820.
4. For each bomber of a type equipped for ASBMs equipped with MIRVs, the
aggregate numbers provided for in paragraphs 1 and 2 of this Article shall include the
maximum number of ASBMs for which a bomber of that type is equipped for one
operational mission.
Agreed Statement. If a bomber is equipped for ASBMs equipped with MIRVs, all
bombers of that type shall be considered to be equipped for ASBMs equipped with
MIRVs.
5. Within the aggregate numbers provided for in paragraphs 1, 2, and 3 of this Article
and subject to the provisions of this Treaty, each Party has the right to determine the
composition of these aggregates.
Article VI
1. The limitations provided for in this Treaty shall apply to those arms which are:
(a) operational;
(b) in the final stage of construction;
© in reserve, in storage, or mothballed;
(d) undergoing overhaul, repair, modernization, or conversion.
2. Those arms in the final stage of construction are:
(a) SLBM launchers on submarines which have begun sea trials;
(b) ASBMs after a bomber of a type equipped for such missiles has been brought out
of the shop, plant, or other facility where its final assembly or conversion for the
purpose of equipping it for such missiles has been performed;
© other strategic offensive arms which are finally assembled in a shop, plant, or
other facility after they have been brought out of the shop, plant, or other facility
where their final assembly has been performed.
3. ICBM and SLBM launchers of a type not subject to the limitation provided for in
Article V, which undergo conversion into launchers of a type subject to that
limitation, shall become subject to that limitation as follows:
(a) fixed ICBM launchers when work on their conversion reaches the stage which first
definitely indicates that they are being so converted;
(b) SLBM launchers on a submarine when that submarine first goes to sea after their
conversion has been performed.
Agreed Statement. The procedures referred to in paragraph 7 of Article VI of the
Treaty shall include procedures determining the manner in which mobile ICBM
launchers of a type not subject to the limitation provided for in Article V of the
Treaty, which undergo conversion into launchers of a type subject to that limitation,
shall become subject to that limitation, unless the Parties agree that mobile ICBM
launchers shall not be deployed after the date on which the Protocol ceases to be in
force.
4. ASBMs on a bomber which undergoes conversion from a bomber of a type
equipped for ASBMs which are not subject to the limitation provided for in Article V
into a bomber of a type equipped for ASBMs which are subject to that limitation shall
become subject to that limitation when the bomber is brought out of the shop, plant,
or other facility where such conversion has been performed.
5. A heavy bomber of a type not subject to the limitation provided for in paragraph 1
of Article V shall become subject to that limitation when it is brought out of the shop,
plant, or other facility where it has been converted into a heavy bomber of a type
equipped for cruise missiles capable of a range in excess of 600 kilometers. A bomber
of a type not subject to the limitation provided for in paragraph 1 or 2 of Article III
shall become subject to that limitation and to the limitation provided for in paragraph
1 of Article V when it is brought out of the shop, plant, or other facility where it has
been converted into a bomber of a type equipped for cruise missiles capable of a
range in excess of 600 kilometers.
6. The arms subject to the limitations provided for in this Treaty shall continue to be
subject to these limitations until they are dismantled, are destroyed, or otherwise cease
to be subject to these limitations under procedures to be agreed upon.
Agreed Statement. The procedures for removal of strategic offensive arms from the
aggregate numbers provided for in the Treaty, which are referred to in paragraph 6 of
Article VI of the Treaty, and which are to be agreed upon in the Standing Consultative
Commission, shall include:
(a) procedures for removal from the aggregate numbers, provided for in Article V of
the Treaty, of ICBM and SLBM launchers which are being converted from launchers
of a type subject to the limitation provided for in Article V of the Treaty, into
launchers of a type not subject to that limitation;
(b) procedures for removal from the aggregate numbers, provided for in Articles III
and V of the Treaty, of bombers which are being converted from bombers of a type
subject to the limitations provided for in Article III of the Treaty or in Articles III and
V of the Treaty into airplanes or bombers of a type not so subject.
Common Understanding. The procedures referred to in subparagraph (b) of the
Agreed Statement to paragraph 6 of Article VI of the Treaty for removal of bombers
from the aggregate numbers provided for in Articles III and V of the Treaty shall be
based upon the existence of functionally related observable differences which indicate
whether or not they can perform the mission of a heavy bomber, or whether or not
they can perform the mission of a bomber equipped for cruise missiles capable of a
range in excess of 600 kilometers.
7. In accordance with the provisions of Article XVII, the Parties will agree in the
Standing Consultative Commission upon procedures to implement the provisions of
this Article.
Article VII
1. The limitations provided for in Article III shall not apply to ICBM and SLBM test
and training launchers or to space vehicle launchers for exploration and use of outer
space. ICBM and SLBM test and training launchers are ICBM and SLBM launchers
used only for testing or training.
Common Understanding. The term "testing," as used in Article VII of the Treaty,
includes research and development.
2. The Parties agree that:
(a) there shall be no significant increase in the number of ICBM or SLBM test and
training launchers or in the number of such launchers of heavy ICBMs;
(b) construction or conversion of ICBM launchers at test ranges shall be undertaken
onlyfor purposes of testing and training;
© there shall be no conversion of ICBM test and training launchers or of space
vehicle launchers into ICBM launchers subject to the limitations provided for in
Article III.
First Agreed Statement. The term "significant increase," as used in subparagraph
2(a) of Article VII of the Treaty, means an increase of fifteen percent or more. Any
new ICBM test and training launchers which replace ICBM test and training
launchers at test ranges will be located only at test ranges.
Second Agreed Statement. Current test ranges where ICBMs are tested are located:
for the United States of America, near Santa Maria, California, and at Cape
Canaveral, Florida; and for the Union of Soviet Socialist Republics, in the areas of
Tyura-Tam and Plesetskaya. In the future, each Party shall provide notification in the
Standing Consultative Commission of the location of any other test range used by that
Party to test ICBMs.
First Common Understanding. At test ranges where ICBMs are tested, other arms,
including those not limited by the Treaty, may also be tested.
Second Common Understanding. Of the eighteen launchers of fractional orbital
missiles at the test range where ICBMs are tested in the area of Tyura-Tam, twelve
launchers shall be dismantled or destroyed and six launchers may be converted to
launchers for testing missiles undergoing modernization.
Dismantling or destruction of the twelve launchers shall begin upon entry into force
of the Treaty and shall be completed within eight months, under procedures for
dismantling or destruction of these launchers to be agreed upon in the Standing
Consultative Commission. These twelve launchers shall not be replaced.
Conversion of the six launchers may be carried out after entry into force of the Treaty.
After entry into force of the Treaty, fractional orbital missiles shall be removed and
shall be destroyed pursuant to the provisions of subparagraph 1© of Article IX and of
Article XI of the Treaty and shall not be replaced by other missiles, except in the case
of conversion of these six launchers for testing missiles undergoing modernization.
After removal of the fractional orbital missiles, and prior to such conversion, any
activities associated with these launchers shall be limited to normal maintenance
requirements for launchers in which missiles are not deployed. These six launchers
shall be subject to the provisions of Article VII of the Treaty and, if converted, to the
provisions of the Fifth Common Understanding to paragraph 5 of Article II of the
Treaty.
Article VIII
1. Each Party undertakes not to flight-test cruise missiles capable of a range in excess
of 600 kilometers or ASBMs from aircraft other than bombers or to convert such
aircraft into aircraft equipped for such missiles.
Agreed Statement. For purposes of testing only, each Party has the right, through
initial construction or, as an exception to the provisions of paragraph 1 of Article VIII
of the Treaty, by conversion, to equip for cruise missiles capable of a range in excess
of 600 kilometers or for ASBMs no more than sixteen airplanes, including airplanes
which are prototypes of bombers equipped for such missiles. Each Party also has the
right, as an exception to the provisions of paragraph 1 of Article VIII of the Treaty, to
flight-test from such airplanes cruise missiles capable of a range in excess of 600
kilometers and, after the date on which the Protocol ceases to be in force, to flight-test
ASBMs from such airplanes as well, unless the Parties agree that they will not flighttest
ASBMs after that date. The limitations provided for in Article III of the Treaty
shall not apply to such airplanes. The aforementioned airplanes may include only:
(a) airplanes other than bombers which, as an exception to the provisions of paragraph
1 of Article VIII of the Treaty, have been converted into airplanes equipped for cruise
missiles capable of a range in excess of 600 kilometers or for ASBMs;
(b) airplanes considered to be heavy bombers pursuant to subparagraph 3© or 3(d) of
Article II of the Treaty; and
© airplanes other than heavy bombers which, prior to March 7, 1979, were used for
testing cruise missiles capable of a range in excess of 600 kilometers.
The airplanes referred to in subparagraphs (a) and (b) of this Agreed Statement shall
be distinguishable on the basis of functionally related observable differences from
airplanes which otherwise would be of the same type but cannot perform the mission
of a bomber equipped for cruise missiles capable of a range in excess of 600
kilometers or for ASBMs.
The airplanes referred to in subparagraph © of this Agreed Statement shall not be
used for testing cruise missiles capable of a range in excess of 600 kilometers after the
expiration of a six-month period from the date of entry into force of the Treaty, unless
by the expiration of that period they are distinguishable on the basis of functionally
related observable differences from airplanes which otherwise would be of the same
type but cannot perform the mission of a bomber equipped for cruise missiles capable
of a range in excess of 600 kilometers.
First Common Understanding. The term "testing," as used in the Agreed Statement
to paragraph 1 of Article VIII of the Treaty, includes research and development.
Second Common Understanding. The Parties shall notify each other in the Standing
Consultative Commission of the number of airplanes, according to type, used for
testing pursuant to the Agreed Statement to paragraph 1 of Article VIII of the Treaty.
Such notification shall be provided at the first regular session of the Standing
Consultative Commission held after an airplane has been used for such testing.
Third Common Understanding. None of the sixteen airplanes referred to in the
Agreed Statement to paragraph 1 of Article VIII of the Treaty may be replaced,
except in the event of the involuntary destruction of any such airplane or in the case of
the dismantling or destruction of any such airplane. The procedures for such
replacement and for removal of any such airplane from that number, in case of its
conversion, shall be agreed upon in the Standing Consultative Commission.
2. Each Party undertakes not to convert aircraft other than bombers into aircraft which
can carry out the mission of a heavy bomber as referred to in subparagraph 3(b) of
Article II.
Article IX
1. Each Party undertakes not to develop, test, or deploy:
(a) ballistic missiles capable of a range in excess of 600 kilometers for installation on
waterborne vehicles other than submarines, or launchers of such missiles;
Common Understanding to subparagraph (a). The obligations provided for in
subparagraph 1(a) of Article IX of the Treaty do not affect current practices for
transporting ballistic missiles.
(b) fixed ballistic or cruise missile launchers for emplacement on the ocean floor, on
the seabed, or on the beds of internal waters and inland waters, or in the subsoil
thereof, or mobile launchers of such missiles, which move only in contact with the
ocean floor, the seabed, or the beds of internal waters and inland waters, or missiles
for such launchers;
Agreed Statement to subparagraph (b). The obligations provided for in
subparagraph 1(b) of Article IX of the Treaty shall apply to all areas of the ocean
floor and the seabed, including the seabed zone referred to in Articles I and II of the
1971 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other
Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil
Thereof.
© systems for placing into Earth orbit nuclear weapons or any other kind of weapons
of mass destruction, including fractional orbital missiles;
Common Understanding to subparagraph ©. The provisions of subparagraph 1©
of Article IX of the Treaty do not require the dismantling or destruction of any
existing launchers of either Party.
(d) mobile launchers of heavy ICBMs;
(e) SLBMs which have a launch-weight greater or a throw-weight greater than that of
the heaviest, in terms of either launch-weight or throw-weight, respectively, of the
light ICBMs deployed by either Party as of the date of signature of this Treaty, or
launchers of such SLBMs; or
(f) ASBMs which have a launch-weight greater or a throw-weight greater than that of
the heaviest, in terms of either launch-weight or throw-weight, respectively, of the
light ICBMs deployed by either Party as of the date of signature of this Treaty.
First Agreed Statement to subparagraphs (e) and (f). The launch-weight of an
SLBM or of an ASBM is the weight of the fully loaded missile itself at the time of
launch.
Second Agreed Statement to subparagraphs (e) and (f). The throw-weight of an
SLBM or of an ASBM is the sum of the weight of:
(a) its reentry vehicle or reentry vehicles;
(b) any self-contained dispensing mechanisms or other appropriate devices for
targeting one reentry vehicle, or for releasing or for dispensing and targeting two or
more reentry vehicles; and
© its penetration aids, including devices for their release.
Common Understanding to subparagraphs (e) and (f). The term "other appropriate
devices," as used in the definition of the throw-weight of an SLBM or of an ASBM in
the Second Agreed Statement to subparagraphs 1(e) and (f) of Article IX of the
Treaty, means any devices for dispensing and targeting two or more reentry vehicles;
and any devices for releasing two or more reentry vehicles or for targeting one reentry
vehicle, which cannot provide their reentry vehicles or reentry vehicle with additional
velocity of more than 1,000 meters per second.
2. Each Party undertakes not to flight-test from aircraft cruise missiles capable of a
range in excess of 600 kilometers which are equipped with multiple independently
targetable warheads and not to deploy such cruise missiles on aircraft.
Agreed Statement. Warheads of a cruise missile are independently targetable if
maneuvering or targeting of the warheads to separate aim points along ballistic
trajectories or any other flight paths, which are unrelated to each other, is
accomplished during a flight of a cruise missile.
Article X Subject to the provisions of this Treaty, modernization and replacement of
strategic offensive arms may be carried out.
Article XI
1. Strategic offensive arms which would be in excess of the aggregate numbers
provided for in this Treaty as well as strategic offensive arms prohibited by this
Treaty shall be dismantled or destroyed under procedures to be agreed upon in the
Standing Consultative Commission.
2. Dismantling or destruction of strategic offensive arms which would be in excess of
the aggregate number provided for in paragraph 1 of Article III shall begin on the date
of the entry into force of this Treaty and shall be completed within the following
periods from that da
الطاقة النووية بين السلم والحرب - مجلة السياسة الدولية (من أرشيف المجلة) - نزار عثمان - 09-09-2006
المناطق الخالية:
AFRICAN NUCLEAR WEAPON-FREE ZONE TREATY
(PELINDABA TREATY)
The Parties to this Treaty
Guided by the declaration on the Denuclearization of Africa, adopted by the Assembly of Heads
of State and Government of the Organization of African Unity (hereinafter referred to as OAU)
at its first ordinary session, held at Cairo from 17 to 21 July 1964 (AHG/Res. 11(1)), in which
they solemnly declared their readiness to undertake, through an international agreement to be
concluded under United Nations auspices, not to manufacture or acquire control of nuclear
weapons,
Guided also, by the resolutions of the fifty-fourth and fifty-sixth ordinary sessions of the Council
of Ministers of OAU, held at Abuja from 27 May to 1 June 1991 and at Dakar from 22 to 28
June 1992 respectively, (CM/Res. 1342 LIV) and CM/Res. 195 (LVI)), which affirmed that the
evolution of the international situation was conducive to the implementation of the Cairo
Declaration, as well as the relevant provisions of the 1986 OAU Declaration on Security,
Disarmament and Development,
Recalling United Nations General Assemble resolution 3472 B (XXX) of 11 December 1975, in
which it considered nuclear-weapon-free zones one of the most effective means for preventing
the proliferation, both horizontal and vertical, of nuclear weapons,
Convinced of the need to take all steps in achieving the ultimate goal of a world entirely free of
nuclear weapons, as well as of the obligations of all States to contribute to this end,
Convinced also that the African nuclear-weapon-free zone will constitute an important step
towards strengthening the non-proliferation regime, promoting cooperation in the peaceful uses
of nuclear energy, promoting general and complete disarmament and enhancing regional and
international peace and security.
Aware that regional disarmament measures contribute to global disarmament efforts,
Believing that the African nuclear-weapon-free zone will protect African States against possible
nuclear attacks on their territories,
Noting with satisfaction existing NWFZs and recognizing that the establishment of other
NWFZs, especially in the Middle East, would enhance the security of Sates Parties to the
African NWFZ,
Reaffirming the importance of the Treaty on the Non-Proliferation of Nuclear Weapons
(hereinafter referred to as the NPT) and the need for the implementation of all its provisions,
Desirous of taking advantage of article IV of the NPT, which recognizes the inalienable right of
all States Parties to develop research on, production and use of nuclear energy for peaceful
purposes without discrimination and to facilitate the fullest possible exchange of equipment,
materials and scientific and technological information for such purposes,
Determined to promote regional cooperation for the development and practical application of
nuclear energy for peaceful purposes in the interest of sustainable social and economic
development of the Africa continent,
Determined to keep Africa free of environmental pollution by radioactive wastes and other
radioactive matter,
Welcoming the cooperation of all States and governmental and non-governmental organizations
for the attainment of these objectives,
Have decided by this Treaty to establish the African NWFZ and hereby agree as follows:
Article 1
Definition/Usage of terms
For the purpose of this Treaty and its Protocols:
a. African nuclear-weapon-free zone" means 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;
b. "Territory" means the land territory, internal waters, territorial seas and archipelagic
waters and the airspace above them as well as the sea bed and subsoil beneath;
c. "Nuclear explosive device" means 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;
d. "Stationing" means implantation, emplacement, transport on land or inland waters,
stockpiling, storage, installation and deployment;
e. "Nuclear installation" means 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.
f. "Nuclear material" means any source material or special fissionable material as defined
in Article XX of the Statute of the International Atomic Energy Agency (IAEA) and as
amended from time to time by the IAEA.
Article 2
Application of the Treaty
1. Except where otherwise specified, this Treaty and its Protocols shall apply to the
territory within the African nuclear-weapon-free zone, as illustrated in the map in Annex
I.
2. Nothing in this Treaty shall prejudice or in any way affect the rights, or the exercise of
the rights, of any state under international law with regards to freedom of the seas.
Article 3
Renunciation of nuclear explosive devices
Each Party undertakes:
a. Not to conduct research on, develop, manufacture, stockpile or otherwise acquire,
possess or have control over any nuclear explosive device by any means anywhere;
b. Not to seek or receive any assistance in the research on, development, manufacture,
stockpiling or acquisition, or possession of any nuclear explosive device;
c. Not to take nay action to assist or encourage the research on, development, manufacture,
stockpiling or acquisition, or possession of any nuclear explosive device.
Article 4
Prevention of stationing of nuclear explosive devices
1. Each Party undertakes to prohibit, in its territory, the stationing of any nuclear
explosive device.
2. Without prejudice to the purposes and objectives of the treaty, each party in the exercise
of its sovereign rights 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.
Article 5
Prohibition of testing of nuclear explosive devices
Each Party undertakes:
a. Not to test any nuclear explosive device;
b. To prohibit in its territory the testing of any nuclear explosive device;
c. Not to assist or encourage 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
Each Party undertakes:
a. To declare any capability for the manufacture of nuclear explosive devices;
b. To dismantle and destroy any nuclear device that it has manufactured prior to the
coming into force of this Treaty;
c. To destroy facilities for the manufacture of nuclear explosive devices or, where possible,
to convert them to peaceful uses;
d. To permit the International Atomic Energy Agency (hereinafter referred to as IAEA)
and the Commission established in 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.
Article 7
Prohibition of dumping of radioactive wastes
Each Party undertakes:
a. To effectively implement or to use as guidelines the measures contained in 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;
b. Not to take any action to assist or encourage the dumping of radioactive wastes and
other radioactive matter anywhere within the African nuclear-weapon-free zone.
Article 8
Peaceful nuclear activities
1. Nothing in this Treaty shall be interpreted as to prevent the use of nuclear sciences and
technology for peaceful purposes.
2. As part of their efforts to strengthen their security, stability and development, the Parties
undertake to promote individually and collectively the use of nuclear science and
technology for economic and social development. To this end they undertake to establish
and strengthen mechanisms for cooperation at the bilateral, subregional and regional
levels.
3. Parties are encouraged to make use of the programme of assistance available in IAEA
and, in this connection, to strengthen cooperation under the African Regional
Cooperation Agreement for Research, Training and Development Related to Nuclear
Science and Technology (hereinafter referred to as AFRA).
Article 9
Verification of Peaceful Uses
Each Party undertakes:
a. To conduct all activities for the peaceful use of nuclear energy under strict nonproliferation
measures to provide assurance of exclusively peaceful uses;
b. To conclude a comprehensive safeguards agreement with IAEA for the purpose of
verifying compliance with the undertakings in subparagraph (a) of this article;
c. Not to provide source or special fissionable material, or equipment or material especially
designed or prepared for the processing, use or production of special fissionable material
for peaceful purposes to any non-nuclear-weapon State unless subject to a
comprehensive safeguards agreement concluded with IAEA.
Article 10
Physical protection of nuclear materials and facilities
Each Party undertakes 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. To that end each Party, inter alia, undertakes to apply measures of physical
protection equivalent to those provided for in the Convention on Physical Protection of Nuclear
Material and in recommendations and guidelines developed by IAEA for that purpose.
Article 11
Prohibition of armed attack on nuclear installations
Each Party undertakes not to take, or assist, or encourage any action aimed at an armed attack
by conventional or other means against nuclear installations in the African nuclear- weaponfree
zone.
Article 12
Mechanism for compliance
1. For the purpose of ensuring compliance with their undertakings under this Treaty, the
Parties agree to establish the African Commission on Nuclear Energy (hereinafter
referred to as the Commission) as set out in Annex III.
2. The Commission shall be responsible inter alia for:
a. Collating the reports and the exchange of information as provided for in article
13;
b. arranging consultations as provided for in Annex IV, as well as convening
conferences of Parties on the concurrence of simple majority of State Parties on
any matter arising from the implementation of the Treaty;
c. Reviewing the application to peaceful nuclear activities of safeguards by IAEA as
elaborated in Annex II;
d. Bringing into effect the complaints procedure elaborated in Annex IV;
e. Encouraging regional and sub-regional programmes for cooperation in the
peaceful uses of nuclear science and technology;
f. Promoting international cooperation with extra-zonal States for the peaceful uses
of nuclear science and technology.
3. The Commission shall meet in ordinary session once a year, and may meet in
extraordinary session as may be required by the complaints and settlement of disputes
procedure in Annex IV.
Article 13
Report and exchanges of information
1. Each Party shall submit an annual report to the Commission on its nuclear activities as
well as other matters relating to the Treaty, in accordance with the format for reporting
to be developed by the Commission.
2. Each Party shall promptly report to the Commission any significant event affecting the
implementation of the Treaty.
3. The Commission shall request the IAEA to provide it with an annual report on the
activities of AFRA.
Article 14
Conference of Parties
1. A Conference of all Parties to the Treaty shall be convened by the Depositary as soon as
possible after the entry into force of the Treaty to, inter alia, elect members of the
Commission and determine its headquarters. Further conferences of State Parties shall
be held as necessary and at least every two years, and convened in accordance with
paragraph 2 (b) of article 12.
2. The Conference of all Parties to the Treaty shall adopt the Commission's budget and a
scale of assessment to be paid by the State Parties.
Article 15
Interpretation of the Treaty
Any dispute arising out of the interpretation of the Treaty shall be settled by negotiation, by
recourse to the Commission or another procedure agreed to by the Parties, which may include
recourse to an arbitral panel or to the International Court of Justice.
Article 16
Reservations
This Treaty shall not be subject to reservations.
Article 17
Duration
This Treaty shall be of unlimited duration and shall remain in force indefinitely.
Article 18
Signature, ratification and entry into force
1. This Treaty shall be open for signature by any State in the African nuclear-weapon-free
zone. It shall be subject to ratification.
2. It shall enter into force on the date of deposit of the twenty-eighth instrument of
ratification.
3. For a signatory that ratifies this Treaty after the date of the deposit of the twenty-eighth
instrument of ratification, it shall enter into force for that signatory on the date of
deposit of its instrument of ratification.
Article 19
Amendments
1. Any amendments to the Treaty proposed by a Party shall be submitted to the
Commission, which shall circulate it to all Parties.
2. Decision on the adoption of such an amendment shall be taken by a two-thirds majority
of the Parties either through written communication to the Commission or through a
conference of Parties convened upon the concurrence of a simple majority.
3. An amendment so adopted shall enter into force for all parties after receipt by the
Depositary of the instrument of ratification by the majority of Parties.
Article 20
Withdrawal
1. Each Party shall, in exercising its national sovereignty, have the right to withdraw from
this Treaty if it decides that extraordinary events, related to the subject matter of this
Treaty, have jeopardized its supreme interests.
2. Withdrawal shall be effected by a Party giving notice, which includes a statement of the
extraordinary events it regards as having jeopardized its supreme interest, twelve
months in advance to the Depositary. The Depositary shall circulate such notice to all
other parties.
Article 21
Depositary functions
1. This Treaty, of which the Arabic, English, French and Portuguese texts are equally
authentic, shall be deposited with the Secretary-General of OAU, who is hereby
designated as Depositary of the Treaty.
2. The Depositary shall:
a. Receive instruments of ratification;
b. Register this Treaty and its Protocols pursuant to Article 102 of the Charter of
the United Nations;
c. Transmit certified copies of the Treaty and its Protocols to all States in the
African nuclear-weapon-free zone and to all States eligible to become party to the
Protocols to the Treaty, and shall notify them of signatures and ratification of the
Treaty and its Protocols.
Article 22
Status of the annexes
The annexes form an integral part of the Treaty. Any reference to this Treaty includes the
annexes.
In witness whereof the undersigned, being duly authorized by their Governments, have signed
this Treaty.
Annex II
Safeguards of the International Atomic Energy Agency
1. The safeguards referred to in subparagraph (b) of the article 9 shall in respect of each
Party be applied by the International Atomic Energy Agency as set forth in an
agreement negotiated and concluded with the Agency 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.
2. The Agreement referred to in paragraph 1 above shall be, or shall be equivalent in its
scope and effect to, the agreement required in connection with the Treaty on the Non-
Proliferation of Nuclear Weapons (INFCIRC/153 corrected). A party that has already
entered into a safeguards agreement with the IAEA is deemed to have already complied
with the requirement. Each Party shall take all appropriate steps to ensure that the
Agreement referred to in paragraph 1 is in force for it not later than eighteen months
after the date of entry into force for that Party of this Treaty.
3. For the purpose of this Treaty, the safeguards referred to in paragraph 1 above shall
have as their purpose the verification of the non-diversion of nuclear material from
peaceful nuclear activities to nuclear explosive devices or for purposes unknown.
4. Each Party shall include in its annual report to the Commission, in conformity with art.
13, for its information and review, a copy of the overall conclusions of the most recent
report by the International Atomic Energy Agency on its inspection activities in the
territory of the Party concerned, and advise the Commission promptly of any change in
those conclusions. The information furnished by a Party shall not be, totally or partially,
disclosed or transmitted to third parties, by the addressees of the reports, except when
that Party gives its express consent.
Annex III
African Commission on Nuclear Energy
1. The Commission established in article 12 shall be composed of twelve Members elected
by Parties to the Treaty for a three-year period, bearing in mind the need for equitable
geographical distribution as well as to include Members with advanced nuclear
programmes. Each Member shall have one representative nominated with particular
regard for his/her expertise in the subject of the Treaty.
2. The Commission shall have a Bureau consisting of the Chairman, the Vice-Chairman
and the Executive Secretary. It shall elect its Chairman and Vice-Chairman. The
Secretary- General of the Organization of African Unity, at the request of Parties to the
Treaty and in consultation with the Chairman, shall designate the Executive Secretary of
the Commission. For the first meeting a quorum shall be constituted by representatives
of two thirds of the Members of the Commission. For that meeting decisions of the
Commission shall be taken as far as possible by consensus or otherwise by a two-thirds
majority of the Members of the Commission. The Commission shall adopt its rules of
procedure at that meeting.
3. The Commission shall develop a format for reporting by States as required under
articles 12 and 13.
4. (a) The budget of the Commission, including the costs of inspections pursuant to annex
IV to this Treaty, shall be borne by the Parties to the Treaty in accordance with a scale of
assessment to be determined by the Parties;
(b) The Commission may also accept additional funds from other sources provided such
donations are consistent with the purposes and objectives of the Treaty.
Annex IV
Complaints procedure and settlement of disputes
1. A Party which considers that there are grounds for a complaint that another Party or a
Party to Protocol II is in breach of its obligations under this Treaty shall bring the
subject matter of the complaint to the attention of the Party complained of and shall
allow the latter thirty days to provide it with an explanation and to resolve the matter.
This may include technical visits agreed upon between the Parties.
2. If the matter is not so resolved, the complaint Party may bring this complaint to the
Commission.
3. The Commission, taking account of efforts made under paragraph 1 above, shall afford
the Party complained of forty-five days to provide it with an explanation of the matter.
4. If, after considering any explanation given to it by the representatives of the Party
complained of the Commission considers that there is sufficient substance in the
complaint to warrant an inspection in the territory of that Party or territory of a party to
Protocol III, the Commission may request the International Atomic Energy Agency to
conduct such inspection as soon as possible. The Commission may also designate its
representatives to accompany the Agency's inspectorate team.
a. The request shall indicate the tasks and objectives of such inspection, as well as
any confidentiality requirements;
b. If the Party complained of so requests, the inspection team shall be accompanied
by representatives of that party provided that the inspectors shall not be thereby
delayed or otherwise impeded in the exercise of their functions;
c. Each Party shall give the inspection team full and free access to all information
and places within each territory that may be deemed relevant by the inspectors to
the implementation of the inspection;
d. The Party complained of shall take all appropriate steps to facilitate the work of
the inspection team, and shall accord them the same privileges and immunities as
those set forth in the relevant provisions of the Agreement on the Privileges and
Immunities of the International Atomic Energy Agency.
e. The International Atomic Energy Agency shall report its findings in writing as
quickly as possible to the Commission, outlining its activities, setting out relevant
facts and information as ascertained by it, with supporting evidence and
documentation as appropriate, and stating its conclusions. The Commission shall
report fully to all States Parties to the Treaty giving its decision as to whether the
Party complained of is in breach of its obligations under this Treaty;
f. If the Commission considers that the Party complained of is in breach of its
obligations under this Treaty, or that the above provisions have not been
complied with, States Parties to the Treaty shall meet in extraordinary session to
discuss the matter;
g. The States Parties convened in extraordinary session may as necessary, make
recommendations to the Party held to be in breach of its obligations and to the
Organization of African Unity. The Organization of African Unity may, if
necessary, refer the matter to the United Nations Security Council;
h. The costs involved in the procedure outlined above shall be borne by the
Commission. In the case of abuse, the Commission shall decide whether the
requesting State Party should bear any of the financial implications.
5. The Commission may also establish its own inspection mechanism.
Protocol I
The Parties to this Protocol
Convinced of the need to take all steps in achieving the ultimate goal of a world entirely free of
nuclear weapons as well as the obligations of all States to contribute to this end,
Convinced also that the African Nuclear-Weapon-Free Zone Treaty, negotiated and signed in
accordance with the Declaration on the Denuclearization of Africa (AHG/Res. II(1) of 1964,
resolutions CM/Res. 1342(LIV) of 1991 and CM/Res. 1395(LVI) Rev. 1 of 1992 of the Council of
Ministers of the Organization of African Unity and United Nations General Assembly
Resolution 48/86 of 16 December 1993, constitutes an important measure towards ensuring the
non-proliferation of nuclear weapons, promoting cooperation in the peaceful uses of nuclear
energy, promoting general and complete disarmament, and enhancing regional and
international peace and security,
Desirous of contributing in all appropriate manners to the effectiveness of the Treaty,
Have agreed as follows:
Article 1
Each Protocol Party undertakes not to use or threaten to use a nuclear explosive device against:
a. Any Party to the Treaty; or
b. Any territory within the African nuclear-weapon-free zone for which a State that has
become a Party to Protocol III is internationally responsible as defined in annex I.
Article 2
Each Protocol Party undertakes not to contribute to any act that constitutes a violation of the
Treaty or of this Protocol.
Article 3
Each Protocol Party undertakes, by written notification to the Depositary, to indicate its
acceptance or otherwise of any alteration to its obligation under this Protocol that may be
brought about by the entry into force of an amendment to the Treaty pursuant to article 19 of
the Treaty.
Article 4
This Protocol shall be open for signature by China, France, the Russian Federation, the United
Kingdom of Great Britain and Northern Ireland and the United States of America.
Article 5
This Protocol shall be subject to ratification.
Article 6
This Protocol is of a permanent nature and shall remain in force indefinitely, provided that each
Party shall, in exercising its national sovereignty, have the right to withdraw from this Protocol
if it decides that extraordinary events related to the subject-matter of this Protocol, have
jeopardized its supreme interests. It shall give notice of such withdrawal to the Depositary
twelve months in advance. Such notice shall include a statement of the extraordinary events it
regards as having jeopardized its supreme interests.
Article 7
This Protocol shall enter into force for each State on the date of its deposit with the Depositary
of its instrument of ratification or the date of entry into force of the Treaty, whichever is later.
In witness whereof the undersigned, being duly authorized by their Governments, have signed
this Protocol.
Protocol II
The Parties to this Protocol
Convinced of the need to take all steps in achieving the ultimate goal of a world entirely free of
nuclear weapons as well as the obligations of all States to contribute to this end,
Convinced also that the African Nuclear-Weapon-Free Zone Treaty, negotiated and signed in
accordance with the Declaration on the Denuclearization of Africa (AHG/Res. 11(1) of 1964,
resolutions CM/Res. 1342(LIV) of 1991 and CM/Res. 1395(LVI)/Rev. 1 of 1992 of the Council of
Ministers of the Organization of African Unity and United Nations General Assembly resolution
48/86 of 16 December 1993, constitutes an important measure towards ensuring the nonproliferation
of nuclear weapons, promoting cooperation in the peaceful uses of nuclear energy,
promoting general and complete disarmament, and enhancing regional and international peace
and security,
Desirous of contributing in all appropriate manners to the effectiveness of the Treaty,
Bearing in mind the objective of concluding a treaty banning all nuclear test,
Have agreed as follows
Article 1
Each Protocol Party undertakes not to test or assist or encourage the testing of any nuclear
explosive device anywhere within the African nuclear-weapon-free zone.
Article 2
Each Protocol Party undertakes not to contribute to any act that constitutes a violation of the
Treaty or of this Protocol.
Article 3
Each Protocol Party undertakes, by written notification to the Depositary, to indicate its
acceptance or otherwise of any alteration to its obligation under this Protocol that may be
brought about by the entry into force of an amendment to the Treaty pursuant to article 20 of
the Treaty.
Article 4
This Protocol shall be open for signature by China, France, the Russian Federation, the United
Kingdom of Great Britain and Northern Ireland and the United States of America.
Article 5
This Protocol shall be subject to ratification.
Article 6
This Protocol is of a permanent nature and shall remain in force indefinitely, provided that each
Party shall, in exercising its national sovereignty, have the right to withdraw from this Protocol
if it decides that extraordinary events, related to the subject-matter of this Protocol have
jeopardized its supreme interests. It shall give notice of such withdrawal to the Depositary
twelve months in advance. Such notice shall include a statement of the extraordinary events it
regards as having jeopardized its supreme interests.
Article 7
This Protocol shall enter into force for each State on the date of its deposit with the Depositary
of its instrument of ratification or the date of entry into force of the Treaty, whichever is later.
In witness whereof the undersigned, being duly authorized by their Governments, have signed
this Protocol.
Protocol III
The Parties to this Protocol
Convinced of the need to take all steps in achieving the ultimate goal of a world entirely free of
nuclear weapons as well as the obligations of all States to contribute to this end,
Convinced also that the African Nuclear-Weapon-Free Zone Treaty, negotiated and signed in
accordance with the Declaration on the Denuclearization of Africa (AHG/Res. 11(1)) of 1964,
resolutions CM/Res. 1342(LIV) of 1991 and CM/Res. 1395(LVI)/Rev.1 of 1992 of the Council of
Ministers of the Organization of African Unity and United Nations General Assembly resolution
48/86 of 16 December 1993, constitutes an important measure towards ensuring the nonproliferation
of nuclear weapons, promoting cooperation in the peaceful uses of nuclear energy,
promoting general and complete disarmament, and enhancing regional and international peace
and security,
Desirous of contributing in all appropriate manners to the effectiveness of the Treaty,
Have agreed as follows:
Article 1
Each Protocol Party 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 contained in articles 3, 4, 5, 6, 7, 8, 9 and 10 of the Treaty and to ensure the
application of safeguards specified in annex II of the Treaty.
Article 2
Each Protocol Party undertakes not contribute to any act that constitutes a violation of the
Treaty or of this Protocol.
Article 3
Each Protocol Party undertakes, by written notification to the Depositary, to indicate its
acceptance or otherwise of any alterations to its obligation under this Protocol that may be
brought about by the entry into force of an amendment to the Treaty pursuant to article 20 of
the Treaty.
Article 4
This Protocol shall be open for signature by France and Spain.
Article 5
This Protocol shall be subject to ratification.
Article 6
This Protocol is of a permanent nature and shall remain in force indefinitely provided that each
Party shall, in exercising its national sovereignty have the right to withdraw from this Protocol
if it decides that extraordinary events, related to the subject-matter of this Protocol, have
jeopardized its supreme interests. It shall give notice of such withdrawal to the Depositary
twelve months in advance. Such notice shall include a statement of the extraordinary events it
regards as having jeopardized its supreme interests.
Article 7
This Protocol shall enter into force for each State on the date of its deposit with the Depositary
of its instrument of ratification or the date of entry into force of the treaty, whichever is later.
In witness whereof the undersigned, being duly authorized by their Governments have signed
this Protocol.
الطاقة النووية بين السلم والحرب - مجلة السياسة الدولية (من أرشيف المجلة) - نزار عثمان - 09-09-2006
AGREEMENT GOVERNING THE ACTIVITIES OF STATES ON THE MOON AND OTHER CELESTIAL BODIES (MOON AGREEMENT)
Opened for signature: 18 December 1979.
Entered into force: 11 July 1984.
Number of Parties: 10 States – (including) Austra-lia, Austria, Chile, Kazakhstan, Mexico, Morocco, Netherlands, Pakistan, Philippines and Uruguay.
Number of Signatories: 5 States – France, Guate-mala, India, Peru, and Romania.
Depositary: UN Secretary-General.
The Moon Agreement was signed in December 1979 following an initiative by the Soviet Union. On 5 December 1979, the UN General Assembly adopted the Agreement in resolution 34/68.
Treaty Obligations: The Moon Agreement supple-ments the Outer Space Treaty and confirmed the de-militarization of the Moon and other celestial bodies as provided for in that treaty. The Agreement also prohibits the use or threat of use of force, or any other hostile action or threat of hostile action on the Moon, which is reserved exclusively for peaceful activities. It prohibits the use of the Moon in order to commit any hostile act or to engage in any such threat in relation to the Earth, the Moon, spacecraft, the personnel of spacecraft, or man-made space ob-jects. States Parties shall not place in orbit around or other trajectory to or around the Moon objects carry-ing nuclear weapons or any other kinds of weapons of mass destruction or place or use such weapons on or in the Moon.
The agreement forbids the establishment of military bases, installations and fortifications on the Moon and, the testing of any type of weapons, and the con-duct of military maneuvers on the Moon. But the use of military personnel for scientific research or for any other peaceful purposes is not prohibited. The use of any equipment or facility necessary for peaceful ex-ploration and use of the Moon is not prohibited.
States Parties are committed to inform the UN Secre-tary-General as well as the public and the interna-tional scientific community, to the greatest extent feasible and practicable, of their activities concerned with the exploration and use of the Moon. Informa-tion on the time, purposes, locations, orbital parame-ters, and duration is to be given in respect of each mission to the Moon as soon as possible after launch-
ing, while information on the results of each mission, including scientific results, shall be furnished upon completion of the mission. In the case of a mission lasting more than 60 days, information on conduct of the mission, including any scientific results, is to be given periodically, at 30-day intervals. For missions lasting more than six months, only significant addi-tions to such information need be reported thereafter.
As reflected in the provisions of this Agreement the Moon and its natural resources are the common heri-tage of mankind. The Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means. Neither the surface nor the subsurface of the Moon, nor any part thereof or its natural resources, can become the property of any State, international intergovernmental or non-governmental organization, national organiza-tion or non-governmental entity, or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the Moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the Moon or any areas thereof.
Verification and Compliance: Verification: Each State Party may assure itself that the activities of other States Parties in the exploration and use of the Moon are compatible with the provisions of this Agreement. To this end, all space vehicles, equip-ment, facilities, stations, and installations on the Moon shall be open to other States Parties. Such States Parties shall give reasonable advance notice of a projected visit, so that appropriate consultations may be held and maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited. Any State Party may act on its own behalf or with the full or partial assistance of any other State Party or through appropriate international procedures within the framework of the United Nations and in accordance with the UN Charter.
Compliance: A State Party which has reason to be-lieve that another State Party is not fulfilling its obli-gations under this Agreement or that another State Party is interfering with the rights which the former State Party has under this Agreement may request
consultations with that State Party. A State Party re-ceiving such a request shall enter into such consulta-tions without delay. Any other State Party that re-quests to do so shall be entitled to take part in the consultations. Each State Party participating in such consultations shall seek a mutually acceptable resolu-tion of any controversy and shall bear in mind the rights and interests of all States Parties. The UN Sec-retary-General shall be informed of the results of the consultations and shall transmit the information re-ceived to all States Parties concerned.
الطاقة النووية بين السلم والحرب - مجلة السياسة الدولية (من أرشيف المجلة) - نزار عثمان - 09-09-2006
Annex to the Treaty on the Southeast Asia Nuclear-Weapon-Free Zone (Treaty
of Bangkok)
Procedure for a Fact-Finding Mission
1. The State Party requesting a fact-finding mission as provided in Article 13,
hereinafter referred to as the "requesting State", shall submit the request to the
Executive Committee specifying the following:
(a) the doubts or concerns and the reasons for such doubts or concerns;
(b) the location in which the situation which gives rise to doubts has allegedly
occurred;
© the relevant provisions of the Treaty about which doubts of compliance have
arisen; and
(d) any other relevant information.
2. Upon receipt of a request for a fact-finding mission, the Executive Committee
shall:
(a) immediately inform the State Party to which the fact-finding mission is requested
to be sent, hereinafter referred to as the "receiving State", about the receipt of the
request; and
(b) not later than 3 weeks after receiving the request, decide if the request complies
with the provisions of Paragraph 1 and whether or not it is frivolous, abusive or
clearly beyond the scope of the Treaty. Neither the requesting nor receiving State
Party shall participate in such decisions.
3. In case the Executive Committee decides that the request does not comply with the
provisions of Paragraph 1, or that it is frivolous, abusive or clearly beyond the scope
of the Treaty, it shall take no further action on the request and inform the requesting
State and the receiving State accordingly.
4. In the event that the Executive Committee decide that the request complies with the
provisions of Paragraph 1, and that it is not frivolous, abusive or clearly beyond the
scope of the Treaty, it shall immediately forward the request for a fact-finding mission
to the receiving State, indicating, inter alia, the proposed date for sending the mission.
The proposed date shall not be later that 3 weeks from the time the receiving State
receives the request for a fact-finding mission. The Executive Committee shall also
immediately set up a fact-finding mission consisting of 3 inspectors from the IAEA
who are neither nationals of the requesting nor receiving State.
5. The receiving State shall comply with the request for a fact-finding mission
referred to in Paragraph 4. It shall cooperate with the Executive Committee in order to
facilitate the effective functioning of the fact-finding mission, inter alia, by promptly
providing unimpeded access of the fact-finding mission to the location in question.
The receiving State shall accord to the members of the fact-finding mission such
privileges and immunities as are necessary for them to exercise their functions
effectively, including inviolability of all papers and documents and immunity from
arrest, detention and legal process for acts done and words spoken for the purpose of
the mission.
6. The receiving State shall have the right to take measures to protect sensitive
installations and to prevent disclosures of confidential information and data not
related to this Treaty.
7. The fact-finding mission, in the discharge of its functions, shall:
(a) respect the laws and regulations of the receiving State;
(b) refrain from activities inconsistent with the objectives and purposes of this
Treaty;
© submit preliminary or interim reports to the Executive Committee; and
(d) complete its task without undue delay and shall submit its final report to the
Executive Committee within a reasonable time upon completion of its work.
8. The Executive Committee shall :
(a) consider the reports submitted by the fact-finding mission and reach a decision on
whether or not there is a breach of the Treaty;
(b) immediately communicate its decision to the requesting State and the receiving
State, and
© present a full report on its decision to the Commission.
9. In the event that the receiving State refuses to comply with the request for a factfinding
mission in accordance with Paragraph 4, the requesting State through the
Executive Committee shall have the right to request for a meeting of the Commission.
The Executive Committee shall immediately request the Commission to convene a
meeting in accordance with Paragraph 3 (e) of Article 9.
الطاقة النووية بين السلم والحرب - مجلة السياسة الدولية (من أرشيف المجلة) - نزار عثمان - 09-09-2006
Protocol to the Treaty on the Southeast Asia Nuclear Weapon-Free
Zone (Treaty of Bangkok)
The States Parties to this Protocol,
DESIRING to contribute to efforts towards achieving general and complete disarmament of nuclear
weapons, and thereby ensuring international peace and security, including in Southeast Asia;
NOTING the Treaty on the Southeast Asia Nuclear Weapon-Free Zone;
HAVE AGREED as follows:
Article 1
Each State Party undertakes to respect the Treaty on the Southeast Asia Nuclear Weapon-Free Zone,
hereinafter referred to as the "Treaty", and not to contribute to any act which constitutes a violation of
the Treaty or its Protocol by States Parties to them.
Article 2
Each State Party undertakes not to use or threaten to use nuclear weapons against any State Party to
the Treaty. It further undertakes not to use or threaten to use nuclear weapons within the Southeast Asia
Nuclear Weapon-Free Zone.
Article 3
This Protocol shall be open for signature by the People's Republic of China, France, the Russian
Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America.
Article 4
Each State Party undertakes, by written notification to the Depositary State, to indicate its acceptance or
otherwise of any alteration to its obligation under the Protocol that may be brought about by the entry
into force of an amendment to the Treaty pursuant to Article 19 thereof.
Article 5
This Protocol is of a permanent nature and shall remain in force indefinitely, provided that each State
Party shall, in exercising its national sovereignty, have the right to withdraw from this Protocol if it
decides that extraordinary events, related to the subject-matter of this Protocol, have jeopardized its
supreme national interests. It shall give notice of such withdrawal to the Depositary State twelve months
in advance. Such notice shall include a statement of the extraordinary events it regards as having
jeopardized its supreme national interests.
Article 6
This Protocol shall be subject to ratification.
Article 7
This Protocol shall enter into force for each State Party on the date of its deposit of its instrument of
ratification with the Depositary State. The Depositary State shall inform the other States Parties to the
Treaty and to this Protocol on the deposit of instruments of ratification.
IN WITNESS WHEREOF the undersigned, being duly authorized by their Governments, have signed
this Protocol.
DONE at Bangkok this fifteenth day of December, one thousand nine hundred and ninety-five, in one
original in the English language.
الطاقة النووية بين السلم والحرب - مجلة السياسة الدولية (من أرشيف المجلة) - نزار عثمان - 09-09-2006
SOUTH PACIFIC NUCLEAR-FREE ZONE TREATY (TREATY OF RAROTONGA)
Opened for Signature: 6 August 1985.
Entered into Force: 11 December 1986.
Number of Parties: 13 full members ─ Australia, Cook Islands, Fiji, Kiribati, Nauru, New Zealand, Niue, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu. The five nuclear-weapon States, China, France, the Russian Federation, the United Kingdom, and the United States ratified the Treaty’s relevant Protocols.
Duration: Treaty is of a permanent nature and shall remain in force indefinitely.
Organs: Consultative Committee, Director.
Treaty Text
Background and Developments: The States in the Asia-Pacific region became concerned with nuclear weapon issues following the nuclear detonations over Hiroshima and Nagasaki, when the region became a testing ground for such weapons. From 1946-1958, the United States conducted some 66 atmospheric and underwater tests in the Marshall Islands in the northern Pacific region, which lies outside the South Pacific Nuclear-Free Zone (SPNFZ). The United Kingdom conducted atmospheric tests between 1952-1957 on Australian territory at Maralinga, Emu Field, and Monte Bello Island. Both the United Kingdom and the United States conducted atmospheric nuclear tests on Christmas Island until the signing of the Partial Test Ban Treaty (PTBT) in 1963, which banned further atmospheric nuclear detonations. That same year, France established a nuclear test site in its French Polynesian atolls and carried out some 190 nuclear detonations (including more than 40 above ground) between 2 July 1966 and early 1996 at the Mururoa and Fangataufa sites.
The South Pacific States, besides being concerned with nuclear testing in their region and its vicinity, were also worried about the dumping of nuclear wastes at sea, fearing radioactive contamination of the marine environment. The South Pacific Forum (SPF) took up the issue in 1975 in response to a pro-posal by New Zealand calling for the setting up of a nuclear-weapon-free zone (NWFZ) in the region. This proposal was endorsed by the UN General As-sembly that same year. In 1979, in response to reports
of nuclear dumping in the region, the SPF strongly condemned the use of the Pacific as a dumping ground for nuclear wastes. Japan also opposed nu-clear dumping in the Pacific.
In 1983, Australia revived the concept of a SPNFZ at a SPF meeting held in Canberra. The following year, meeting in Tuvalu, the Forum endorsed a set of prin-ciples proposed by Australia as a basis for establish-ing a zone and appointed a Working Group to draft a treaty text. These principles aimed at preventing the region from becoming an arena for superpower ri-valry, preserving peace and security, and protecting natural resources as well as the well-being and liveli-hood of the South Pacific peoples.
The Working Group used the Tlatelolco, Antarctic, and the Seabed treaties, the PTBT and the Non-Proliferation Treaty (NPT) to guide its work. The Treaty of Rarotonga was signed in Rarotonga (Cook Islands) on 6 August 1985, and entered into force on 11 December 1986 with the deposit of the eighth instrument of ratification. The Treaty has 13 signato-ries, and 12 ratifications: Australia, Cook Islands, Fiji, Kiribati, Nauru, New Zealand, Niue, Papua New Guinea, Solomon Islands, Tonga, Tuvalu, Vanuatu, and Western Samoa (Tonga has yet to ratify). Three dependent territories not located within the zone (Marshall Islands Republic, Federated States of Mi-cronesia, and Palau) are not parties to the Treaty al-though eligible to be Parties. If they decide to join the SPNFZ Treaty, the SPNFZ area would be enlarged to incorporate the territory of each new party. The SPNFZ contributes to limiting the threat posed by nuclear weapons and serves to strengthen the NPT regime and nuclear nonproliferation.
Seven Dialogue Partners: The SPNFZ partners are Canada, China, the EU, Japan, South Korea, the United Kingdom, and the United States. (France was one of the dialogue partners, but its dialogue partner status was suspended in 1995 in protest of its nuclear tests in Mururoa but restored in 1996.)
Obligations: States Parties are obliged not to manu-facture or otherwise acquire, possess, or have control over any nuclear explosive device anywhere inside or outside the Treaty zone; not to seek or receive any assistance in this; not to take any action to assist or encourage the manufacture or acquisition of any nu-clear explosive device by any State; and not to pro-
vide sources or special fissionable materials or equipment to any non-nuclear weapon State (NNWS), or any nuclear weapon State (NWS) unless it is subject to safeguards agreements with the (International Atomic Energy Agency) IAEA. States Parties are also obligated to prevent in the territory of States Parties the stationing of any nuclear explosive device; to prevent the testing of any nuclear explo-sive device; not to dump radioactive wastes and other radioactive matter at sea, anywhere within the SPNFZ, and to prevent the dumping of radioactive wastes and other radioactive matter by anyone in the territorial sea of the States Parties.
Treaty Zone: Under Annex I, the Treaty Zone cov-ers an extensive part of the South Pacific.
Verification and Compliance: Verification: Verifi-cation is achieved by providing reports and exchang-ing information, and by the application of IAEA safeguards. Visits by foreign ships and aircraft to ports and airfields, transit of airspace by foreign air-craft, and navigation by foreign ships carrying nu-clear weapons are left to the discretion of States Par-ties. Compliance: Treaty compliance is verified through the enforcement of IAEA safeguards agree-ments.
Protocol I calls on each Party with respect to the territories situated within the SPNFZ for which it is internationally responsible, to apply the prohibitions of the Treaty. On 25 March, 1996, France, the United Kingdom and the United States signed the Protocol, thereby expanding the Treaty’s scope of application to the American Samoa and Jarvis Island, as well as to the dependent territories of France and the United Kingdom. France ratified Protocol I on 20 Septem-ber, 1996, and the United Kingdom on 19 September, 1997. The United States has not yet ratified Proto-col I.
Protocol II calls on the NWS not to use or threaten to use nuclear explosive devices against any Party to the Treaty or against each other’s territories located within the zone. China signed this protocol in 1987, the USSR in 1986. The USSR stated that in case of action taken by a Party or Parties violating their commitments concerning the status of the zone, it would consider itself free of its non-use commit-ments. The same would apply in case of aggression committed by one or several Parties to the Treaty supported by a NWS, or together with it, involving the use by such a State of the territory, airspace, terri-torial sea, or archipelago waters of the Parties for visits by nuclear weapon-carrying ships and aircraft or for transit of nuclear weapons. However, the USSR eventually ratified the Protocol without refer-ence to the above statement.
The remaining three NWS signed the Protocol on 25 March 1996 (after France ceased nuclear weapon testing in the zone). China ratified Protocol II on 21 October 1988, France on 20 September 1996, the United Kingdom on 19 September 1997, and the USSR on 21 April 1988. The United States has yet to ratify Protocol II.
Protocol III calls on the NWS not to test nuclear explosive devices within the zone established by the Treaty. China signed this protocol in 1987, the USSR in 1986, whereas the remaining three NWS signed it on 25 March 1996 (after France ceased nuclear weapon testing in the zone). China ratified Protocol II on 21 October 1988, France on 20 September 1996, the United Kingdom on 19 September 1997, the USSR on 21 April 1988. US ratification of Protocol III is still pending.
In its statement of reservation and interpretation, the French government made it clear that it did not con-sider its inherent right to self-defense to be restricted by the signed documents, that assurances provided for in Protocol II were the same as those given by France to the NNWS parties to the NPT, and that it would not be bound by its undertaking under Proto-col II in the case of an invasion or any other attack carried out or sustained by a party to the Treaty in association or alliance with a NWS, or if material breach of the nonproliferation obligations under the Treaty were committed.
The US government signed the protocols without reservation, but its spokesman said that “certain dec-larations and understandings” would be proposed to the Senate for incorporation in the resolution of rati-fication. The United States stated that its practices and procedures in the South Pacific were not incon-sistent with the Treaty and its protocols. However, it has yet to ratify the protocols. The United States said it would not accept any limitation on the right of pas-sage of its nuclear vessels and aircraft in the region.
The Treaty of Rarotonga is considered an improve-ment upon the Tlatelolco Treaty in preventing the dumping of nuclear wastes and banning nuclear ex-plosions even for peaceful purposes.
الطاقة النووية بين السلم والحرب - مجلة السياسة الدولية (من أرشيف المجلة) - نزار عثمان - 09-09-2006
SOUTHEAST ASIA NUCLEAR-WEAPON-FREE ZONE TREATY (TREATY OF BANGKOK)
Opened for Signature: 15 December 1995.
Entered into Force: 28 March 1997.
Number of Parties: Ten full members ─ Brunei Da-russalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam.
None of the nuclear weapon states (NWS) has yet signed the protocols, largely due to U.S. and French objections regarding the unequivocal nature of secu-rity assurances and over the definitions of territory (including exclusive economic zones).
Duration: The treaty is of a permanent nature and shall remain in force indefinitely.
Organs: Commission for the Southeast Asia Nuclear Weapon-Free Zone, Executive Committee.
Treaty Text
Background: The notion of a Southeast Asia Nu-clear-Weapon-Free Zone (SEANWFZ) dates back to 27 November 1971, when the original five members of the Association of Southeast Asian Nations (ASEAN) in Kuala Lumpur signed a Declaration on a [ASEAN] Zone of Peace, Freedom, and Neutrality (ZOPFAN). The first major component of the ZOP-FAN pursued by ASEAN was the establishment of a SEANWFZ. However, due to the unfavorable politi-cal environment in the region, the formal proposal for the establishment of such a zone was tabled in the mid-1980s. After a decade of negotiating and drafting efforts by the ASEAN Working Group on a ZOP-FAN, the SEANWFZ Treaty was signed by the heads of states/governments of all 10 regional states in Bangkok on 15 December 1995.
Obligations: States Parties are obliged not to de-velop, manufacture or otherwise acquire, possess or have control over nuclear weapons; station nuclear weapons; or test or use nuclear weapons anywhere inside or outside the treaty zone; not to seek or re-ceive any assistance in this; not to take any action to assist or encourage the manufacture or acquisition of any nuclear explosive device by any state; not to pro-vide source or special fissionable materials or equip-ment to any non-nuclear weapon state (NNWS), or any NWS unless subject to safeguards agreements with the International Atomic Energy Agency
(IAEA); to prevent in the territory of States Parties the stationing of any nuclear explosive device; to prevent the testing of any nuclear explosive device; not to dump radioactive wastes and other radioactive matter at sea anywhere within the zone, and to pre-vent the dumping of radioactive wastes and other radioactive matter by anyone in the territorial sea of the States Parties.
Treaty Zone: The treaty zone covers the territories, continental shelves, and exclusive economic zones (EEZ) of the States Parties within the zone.
Verification and Compliance: Verification: Verifi-cation is to be achieved through reports by members and the exchange of information, and through the application of IAEA safeguards. States Parties have discretion over visits by foreign ships and aircraft to ports and airfields, transit of airspace by foreign air-craft, and navigation by foreign ships carrying nu-clear weapons. Compliance: The treaty provides for a Commission for the Southeast Asia Nuclear-weapons-free Zone to oversee the implementation of this treaty and ensure compliance with its provisions. The treaty also gives each State Party the right to ask another State Party for clarification or a fact-finding mission to resolve an ambiguous situation or one which may give rise to doubts about compliance. If there is a breach by a State Party, that State Party shall, within a reasonable time, take all steps neces-sary to bring itself into full compliance with this treaty. If this fails, the commission shall decide on any measure it deems appropriate to cope with the situation, including the submission of the matter to the IAEA and, where the situation might endanger international peace and security, the Security Council and the General Assembly of the United Nations.
The protocol is open for signature by China, France, Russia, the United Kingdom, and the United States. These NWS would undertake to respect the treaty and not to contribute to any act, which constitutes a violation of the treaty or its protocol by States Par-ties. They would also undertake not to use or threaten to use nuclear weapons against any State Party to the treaty and not to use or threaten to use nuclear weap-ons within the SEANWFZ.
The SEANWFZ Treaty includes two elements that go beyond other existing Nuclear-Weapon-Free Zone (NWFZ) agreements: 1) the zone of application also
includes the continental shelves and EEZ of the con-tracting parties; and 2) the negative security assur-ance implies a commitment by the NWS not to use nuclear weapons against any contracting State or protocol Party within the zone of application. In other aspects, the SEANWFZ contains all the standard ob-ligations, prohibitions, and verification and control measures found in previous zonal treaties.
Thus far, the NWS have not signed the Protocol to the SEANWFZ Treaty because they object to the inclusion of continental shelves and EEZ; to the re-striction not to use nuclear weapons within the zone; or from within the zone against targets outside the zone, and to the restriction on the passage of nuclear-powered ships through the zone vis-à-vis the issue of the high seas as embodied in the UN Convention on the Law of the Sea (UNCLOS). The NWS also raised the issue that the continental shelves and EEZ are not clearly defined in the South China Sea, which creates uncertainty over the scope of the treaty, as well as the treaty's protocol obligations. The United States also expressed concerns with the nature of the legally binding negative security assurances to be expected of the parties to the protocol, the alleged ambiguity of the treaty's language concerning the permissibility of port calls by ships, which may carry nuclear weap-ons, and the procedural rights of the parties to the protocol to be represented before the various execu-tive bodies set up by the treaty to ensure its imple-mentation.
Secretariat: The Bangkok Treaty does not have any designated Secretariat, given the informal style of ASEAN, but the Commission at the level of Foreign Ministers and the working group of Senior Officials will work to promote the full implementation of the zone.
Developments:
2005: On 29 July, the 12th Meeting of the ASEAN Regional Forum (ARF) was held in Vientiane, Lao PDR. According to the Chairman’s Statement, the ministers reaffirmed their support for the concept of internationally recognized NWFZs and emphasized the contribution of such zones to enhancing global and regional peace and security. They further reaf-firmed the importance of continued consultation on the Protocol of the Bangkok Treaty between the Nu-clear Weapon States and the parties to the treaty.
2004: On 29-30 June, the 37th ASEAN Ministerial Meeting, held in Jakarta, adopted a Joint Commu-niqué reaffirming the importance of further strength-ening the cooperation in support of the Bangkok Treaty. The Ministers welcomed China’s readiness to sign the protocol and called on the NWS to show
maximum flexibility and work together with ASEAN on outstanding issues.
2002: At the 35th ASEAN Ministerial Meeting on 29-30 July, ASEAN Ministers welcomed the ongoing consultations between ASEAN and the NWS and urged the NWS to sign the protocol of the treaty as soon as possible.
At the Ninth Meeting of the ASEAN Regional Forum (ARF) on 31 July, the ministers noted the ongoing consultations between ASEAN and the NWS regard-ing the latter’s signing the protocol.
2001: At the Eighth Meeting of ARF on 25 July, ASEAN Foreign Ministers welcomed progress re-garding treaty implementation as a contribution to global efforts to curb the proliferation of nuclear weapons, and noted with satisfaction the continued progress made in consultation between the States Parties to the treaty and the NWS regarding the lat-ter’s accession to the protocol to the treaty. In this regard, they welcomed the progress made at the re-cent direct dialogue between the States Parties and the NWS held in Hanoi on 19 May. The ministers welcomed the participation for the first time of the Philippines as a full member of the SEANWFZ Commission, having recently deposited its instrument of ratification. They also welcomed the P-5 Joint Statement concerning security assurances for Mongo-lia and support for the Nuclear-Weapon-Free Status of Mongolia.
Having resolved the differences with China regarding the implication of the treaty on the question of sover-eignty in the South China Sea, the parties are under-taking further consultations with the remaining four NWS in order to address their concerns as a package, including the question of the formulation of negative security assurances. ASEAN hopes the remaining NWS, namely the United States, the United King-dom, France, and Russia, will keep their commitment to nuclear disarmament by supporting the treaty, and ASEAN’s contribution towards nuclear disarmament and nonproliferation, through signing the protocol that guarantees NNWS in legally binding form against the use or threat of use of nuclear weapons in this zone.
Recognizing that the IAEA has an important role to play in assisting parties to fulfill their obligations under the treaty, a dialogue between the treaty parties and the IAEA was established. A number of issues being discussed in detailed consultations include the question of IAEA support in implementing the provi-sions with respect to safeguards and handling of nu-clear wastes, as well as possible assistance in terms of technical cooperation programs for the treaty par-
ties. In addition, all treaty parties have been encour-aged to conclude a full-scope safeguards agreement with the IAEA in accordance with Article 5 of the treaty.
2000: At the Seventh Meeting of the ARF in Bang-kok on 27 July, the ASEAN Foreign Ministers wel-comed progress toward the implementation of the treaty, which contributed to the nonproliferation of nuclear weapons. They welcomed in particular the operation of the Commission for SEANWFZ and the Executive Committee for SEANWFZ, and the dia-logue between the States Parties to the treaty and the IAEA, as provided for by the treaty. The ministers also expressed support for the continued consulta-tions between the States Parties to the treaty and the NWS regarding the latter’s accession to the protocol to the treaty.
1999: From 23-24 July, the ASEAN Foreign Minis-ters convened the Commission of the SEANWFZ Treaty for the first time. The commission ordered the preparation of the draft rules of procedure and initia-tion of all necessary actions in compliance with the treaty, including consultations with the NWS, the IAEA and other related bodies. The States Parties committed to vigorously pursue consultations with the NWS so that they could eventually accede to the treaty’s protocol.
The commission meeting was held in conjunction with the ARF meeting in Singapore. Reportedly, at this meeting, China agreed to sign the protocol, as did India. (Since India does not fall within the definition of a NWS as stipulated in the Non-Proliferation Treaty (NPT), if the contracting parties accept an Indian signature to the protocol, they might be in technical violation of both the NPT and the Bangkok Treaties.) At the ASEAN+1 Informal Summit on 28 November, China stated that it would support ASEAN in its efforts to establish ZOPFAN and a SEANWFZ. At the inaugural meeting, the commis-sion directed its executive committee to initiate all necessary actions to ensure compliance with the treaty.
The executive committee met for the first time in Bangkok on 12 October and decided to launch a dia-logue with the IAEA and to establish a Working Group to undertake discussions with the IAEA.
1998: At the 31st ASEAN Ministerial Meeting on 25 July, the ASEAN foreign ministers noted the report of the ASEAN senior officials on the progress made so far by the ASEAN Working Group on a ZOPFAN and SEANWFZ regarding its consultations with NWS in the context of enabling the latter to sign the protocol to the treaty. The foreign ministers reiterated
that the signing of the protocol by the NWS would constitute a manifestation of their support for nuclear disarmament and nuclear-weapon-free zones. They expressed the view that the recent nuclear tests by India and Pakistan were not conducive to the full realization of the treaty.
1997: On 27 March, the treaty entered into force upon the deposit of the instrument of ratification of the eighth ratifying state, Cambodia, and was regis-tered with the UN on 26th June. On 25 July, the par-ticipants to the 30th ASEAN Ministerial Meeting re-called that the commission to be established by the treaty would oversee the implementation of the treaty and ensure compliance with its provisions. Nonethe-less, pending the establishment of the commission, they accepted the recommendation of the ASEAN senior officials to extend the mandate of the ASEAN Senior Officials Meeting (SOM) Working Group on a ZOPFAN and SEANWFZ, to pursue consultations with NWS pertaining to the protocol to the treaty. The foreign ministers called upon NWS to demon-strate their support for nuclear-weapon-free zones by acceding to the protocol of the treaty.
In June, the United States maintained its opposition to signing the protocol to the treaty on the grounds that it contained an automatic provision of NSA to the benefit of the non-SEANWFZ countries in the ocean area of the zone and the inclusion of EEZ in the treaty's scope of application.
No specific target date has been identified for the implementation of the SEANWFZ, although the ASEAN Vision 2020 adopted in December envi-sioned that all of the NWS would have adhered to the protocol, and that the region could be free of all nu-clear weapons and other weapons of mass destruction by the year 2020.
Inventory of International Nonproliferation Organizations and Regimes
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SEANWFZ-3