McCoy

THE SOUTHEAST ASIA NUCLEAR WEAPON-FREE ZONE TREATY

Ronald McCoy, IPPNW Co-President

Introduction
The international community has pursued the objective of nuclear non-proliferation and nuclear disarmament for decades. The idea of establishing nuclear weapon-free zones (NWFZ) is one way of promoting and strengthening non-proliferation and contributing to nuclear disarmament. All existing NWFZ treaties prohibit the development, manufacture, acquisition, possession, stationing, transporting, testing or use of nuclear weapons by each State Party anywhere within or outside the zone. Expanding such zones, therefore, is an effective method of eventually achieving a nuclear weapon-free world.
Article VII of the Nuclear Non-Proliferation Treaty (NPT) states that: 'Nothing in this Treaty affects the right of any group of states to conclude regional treaties in order to assure the total absence of nuclear weapons in their respective territories.'
As early as 1947, Finland declared itself nuclear-free. In 1961, at the United Nations, Sweden tabled the Unden Plan, calling for the establishment of nuclear-free zones. In the 1950s and 1960s, similar proposals were made for the Balkans, the Indian Ocean, the Mediterranean, Ireland, Antarctica and Latin America.
In 1975, the UN Special Session on Disarmament reached an agreement on the goal of 'general and complete disarmament.' One of the intermediate objectives of this goal was the establishment of nuclear weapon-free zones. It declared that 'on the basis of agreements or arrangements freely arrived at among states of the zone concerned, and the full compliance with those agreements or arrangements, thus ensuring that the zones are genuinely free from nuclear weapons, and respect for such zones by nuclear weapon states, constitutes an important disarmament measure ...... The process of establishing such zones in different parts of the world should be encouraged with the ultimate objective of achieving a world entirely free of nuclear weapons.'
The United Nations has identified nine major principles or elements of a NWFZ :

The initiative should come from the countries of the region.
The specific provisions of the NWFZ should be negotiated between the regional member states in the form of a multilateral treaty establishing the zone in perpetuity.
While adherence to the treaty should be voluntary, the NWFZ must nevertheless embrace all militarily significant states in the region.
Existing treaty relationships within the zone should not be disturbed.
There should be an effective verification system.
Peaceful nuclear development should be allowed.
The zone should have clearly defined and recognised boundaries.
In defining the territory of the zone, members must respect international law, including freedom of the high seas and straits used for international navigation and of international airspace.
The NWFZ should have the support of the nuclear weapon states.

The United Nations groups that proposed these criteria were divided on some major issues:

The term 'nuclear weapons' is not clearly defined.
It is not clear whether negative security guarantees by the nuclear powers is an essential or merely desirable condition.
The issue of existing security relationships between member states of NFWZ and outside powers is also unclear.

In established United Nations vocabulary, the NWFZ concept does not prohibit the temporary presence of nuclear vessels during transit or on port calls, and it does not necessarily preclude the acquisition of sensitive nuclear facilities and material, tantamount to having a nuclear weapon capability.

In establishing NWFZ, member states hope to neutralise or eliminate nuclearism in their region by agreeing to prohibit the ownership, production, acquisition, or use of nuclear weapons, and to use the zone as a confidence-building measure, and so promote regional security and contribute to nuclear disarmament.

However, the success of a NWFZ will depend mainly on the undertaking of the five nuclear weapon states to respect and guarantee the integrity of the zone. As nuclear weapons have become an integral part of the global strategies of the major powers, prohibition of nuclear weapons in any region win be perceived as having the potential to undermine the geopolitical interests of the nuclear weapon states.

We know from events in the past that when the nuclear powers perceive their interests to be in jeopardy, they have been less than scrupulous in the observance of international treaties or international law.

With the end of the Cold War which has brought changes in the global security environment, it could be argued that NWFZ could begin to play an important role in curbing nuclear proliferation, especially in regions of potential conflict, such as the Middle East, South Asia, Northeast Asia, and Central and Eastern Europe.

At present, there are seven regions in which nuclear weapons are prohibited- Antarctica, Outer Space, the Seabed, Latin America, the South Pacific, Africa and Southeast Asia. When the Treaty of Pelindaba and the Treaty of Bangkok were signed in late 1995, creating NWFZ in Africa and Southeast Asia respectively, the entire southern hemisphere became a zone free of nuclear weapons.

Southeast Asia Nuclear Weapon-free Zone Treaty (Bangkok Treaty)
Although a Southeast Asian Nuclear Weapon-free Zone (SEANWFZ) has been on the agenda of the Association of Southeast Asian Nations (ASEAN) since the late 1970s, as a component of ASEAN's Zone of Peace, Freedom and Neutrality (ZOPFAN), it was only achieved in December 1995 when the Treaty was signed in Bangkok by all ten countries within the zone - Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam. The Treaty entered into force in March 1997, when Cambodia became the seventh signatory nation to ratify the Treaty.
In its preamble, the Treaty expressed the desire of the region to contribute to general and complete disarmament of nuclear weapons, to regional peace and stability, to nuclear nonproliferation, and to the protection of the region from environmental pollution and the hazards posed by radioactive waste and other radioactive material.

Article 1: Article 1 defines the terms used in the Treaty.
Article 2: Article 2 stipulates that the Treaty and its Protocol shall apply to the territories, continental shelves, and Exclusive Economic Zones (EEZ) of the States Parties within the zone. It also reiterates that the Treaty shall not prejudice the rights of any State under the provisions of the United Nations Convention on the Law of the Sea of 1982, particularly with regard to "freedom of the high seas, rights of innocent passage, archipelagic sea lanes passage or transit passage of ships and aircraft, consistent with the Charter of the United Nations."
Article 3: Article 3 enunciates the basic undertakings of each State Party, anywhere inside or outside the zone:

not to develop, manufacture or otherwise acquire, possess or have control over nuclear weapons;
not to station or transport nuclear weapons by any means;
not to test or use nuclear weapons.

Each State Party also undertakes not to allow, in its territory, any other State to develop, manufacture or otherwise acquire, possess, have control over, station, test or use nuclear weapons.
Each State Party also undertakes:

not to dump at sea or on land or discharge into the atmosphere anywhere within the Zone any radioactive material or wastes;
not to allow, within its territory, any other State to dump at sea or discharge into the atmosphere any radioactive material or wastes.

Article 4: Article 4 states clearly that the Treaty shall not prejudice the right of the States Parties to use nuclear energy, in particular for their economic development and social progress. Each State Party therefore undertakes:

to use exclusively for peaceful purposes nuclear material and facilities which are within its territory and areas under its jurisdiction and control;
prior to embarking on its peaceful nuclear energy programme, to subject its programme to rigorous nuclear safety assessment, conforming to guidelines and standards recommended by the IAEA for the protection of health and minimisation of danger to life and property;
upon request, to make available to another State Party the assessment on nuclear safety, except information relating to personal data, information protected by intellectual property rights or by industrial or commercial confidentiality, and information relating to national security;
to support the continued effectiveness of the international non-proliferation system based on the NPT and the IAEA safeguards system;
to dispose radioactive wastes and other radioactive material in accordance with IAEA standards and procedures.

Each State Party undertakes not to provide sources or special fissionable material, or equipment or material especially designed or prepared for the reprocessing, use or production of special fissionable material to:

any non-nuclear weapon State, except under conditions subject to stipulated safeguards;
any nuclear weapon State except in conformity with applicable safeguards agreements with the IAEA.

Articles 5 and 6: These two articles relate to agreements with the IAEA for the application of full scope safeguards to peaceful nuclear activities and to acceding to the Convention of Early Notification of a Nuclear Accident.
Article 7: Article 7 gives each State Party the freedom to decide for itself 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 through its territorial sea archipelagic waters and overflight of foreign aircraft above those waters in a manner not governed by the rights of innocent passage or transit passage.
Articles 8 to 14: Articles 8 to 14 are related to the infrastructure necessary for the implementation of the Treaty and compliance with its provisions, such as a Commission, Executive Committee, a verification system, exchange of information, requests for clarification, and remedial measures if there is a breach of the Treaty,
Articles 15 and 16: Articles 15 and 16 deal with signature, ratification, accession, deposit, registration, and entry into force of the Treaty.
Article 17: Article 17 states that the Treaty shall not be subject to reservations.
Article 18: Article 18 relates to agreements and relations with other international organisations, such as the IAEA, which are likely to facilitate the efficient operation of the verification system of the Treaty.
Article 19: Article 19 provides for amendments to the Treaty.
Article 20: Article 20 provides for a review of the Treaty ten years after the Treaty enters into force.
Article 21 : Article 21 makes provisions for the settlement of disputes by peaceful means and referral to the International Court of Justice for arbitration when settlement is not achieved.
Article 22: The final article states that the Treaty shall remain in force indefinitely and that each State Party shall have the right to withdraw from the Treaty by giving notice twelve months in advance.

Impact o f the Treaty
Since the Treaty entered into force on 27 March 1997, when Cambodia as the seventh signatory state deposited its instrument of ratification with the Treaty Secretariat in Bangkok, a protocol of the Treaty has been open for signature by the five nuclear weapon states.
However, the nuclear weapon states have so far not acceded to the Treaty mainly because the provisions of the Treaty include areas designated as the continental shelf and exclusive economic zones'.
A meeting of senior officials of ASEAN and representatives of the nuclear powers was held in Kuala Lumpur on 10 June 1997 in order to discuss the problems related to the inclusion of exclusive economic zones (EEZ) as part of the SEANWFZ.
In an interview, published in the New Straits Times on 24 June 1997, Ambassador Thomas Graham, the Special Representative of the US President for Arms Control, expressed the view that the US criteria for NWFZ have not been met with respect to the Bangkok Treaty, particularly criteria related to "freedom of navigation and freedom of the seas" which may be interfered with by the provisions of the Treaty.
He explained that, as the provisions of the Treaty apply to the continental shelves and EEZ of the territories of the ten signatory states, the implication is that the negative security assurances of the nuclear powers (that is, the promise not to use or threaten to use nuclear weapons) would apply not only to the territories of the States Parties concerned but also to ocean areas. In other words, the United States, for example, would also be automatically giving negative security assurances to nuclear forces of any country that happen to be in the ocean area.
Mr Graham was also of the opinion that the national sovereignty of any country does not extend to its continental shelf and EEZ'. He pointed out that the other three nuclear weapon free zones in Latin America, the South Pacific and Africa do not present the same problem.
He also emphasised that the other four nuclear weapon states were generally in agreement with the views he expressed, apart from slight differences. All five nuclear powers were concerned about the concept of the continental shelf and EEZ. Britain, France, Russia and the US were particularly concerned about the effect of giving negative security assurances, whereas China, with its declared *no first use' policy, was not.
In October 1997, senior officials of ASEAN met in Kuala Lumpur and agreed on proposals for revising the protocols of the Treaty and to consult with the nuclear weapon states on modifying the language of the Treaty. These talks are ongoing.
Although the Philippines is the only ASEAN country that has not ratified the Treaty, possibly due to a territorial dispute with China over the Spratly Islands, most analysts agree that the SEANWFZ and the ASEAN Regional Forum (ARF) could serve as an effective multilateral mechanism through which regional agreements could be forged to resolve regional crises through peaceful conflict resolution.
The SEANWFZ is therefore viewed as an important component of ZOPFAN and a progressive regional disarmament measure that will help to promote peace and security and nuclear non-proliferation within the region and globally.

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