Treaty on a Nuclear-Weapon-Free Zone in Central Asia and Protocols

[Treaty text]
[Media Note: U.S. Signs CANWFZ Treaty]

Introduction

The Central Asian Nuclear-Weapon-Free Zone Treaty (“the Treaty” or “the CANWFZ Treaty”) was signed on September 8, 2006, and entered into force on March 21,2009. The Parties to the Treaty (the “Treaty Parties”) are the Republic of Kazakhstan, the Kyrgyz Republic, the Republic of Tajikistan, Turkmenistan, and the Republic of Uzbekistan. The United States is not eligible to become a Party to the Treaty.

The Treaty obligates the five Central Asian States not to conduct research on, develop, manufacture, stockpile, or otherwise acquire, possess or have control over any nuclear weapon or other nuclear explosive device by any means anywhere, not to seek or receive assistance in these activities, and not to assist or encourage such activities. The Treaty also obligates Parties not to carry out any nuclear weapon test explosion or any other nuclear explosion and further requires each Treaty Party to bring into force, if it has not already done so, both a safeguards agreement and an Additional Protocol to its safeguards agreement with the International Atomic Energy Agency (“IAEA”).

The Treaty meets each of the seven criteria that the United States has established for supporting any proposed nuclear-weapon-free zone. The criteria are as follows:

1. the initiative for the creation of the zone should come from the States in the region concerned;
2. all States whose participation is deemed important should participate;
3. the zone arrangement should provide for adequate verification of compliance with its provisions;
4. the establishment of the zone should not disturb existing security arrangements to the detriment of regional and international security or otherwise abridge the inherent right of individual or collective self-defense guaranteed in the Charter of the United Nations;
5. the zone arrangement should effectively prohibit its Parties from developing or otherwise possessing any nuclear explosive device for whatever purpose;
6. the establishment of the zone should not affect the existing rights of its Parties under international law to grant or deny other States transit privileges within their respective land territory, internal waters, and airspace to nuclear-powered and nuclear-capable ships and aircraft of non-Party nations, including port calls and overflights; and
7. the zone arrangement should not seek to impose restrictions on the exercise of rights recognized under international law, particularly the high seas freedoms of navigation and overflight, the right of innocent passage of territorial and archipelagic seas, the right of transit passage of international straits, and the right of archipelagic sea lanes passage of archipelagic waters.

Like other nuclear-weapon-free-zone treaties, the Treaty also has a Protocol, which is open for signature by the United States, China, France, Russia and the United Kingdom. All five States signed the Protocol in New York on May 6, 2014.

Each Protocol Party undertakes not to use or threaten to use a nuclear weapon or other nuclear explosive device against any Party to the Treaty (a so-called “negative security assurance”) and also not to contribute to any act that constitutes a violation of the Treaty or Protocol by the Parties to them.

Ratification of the Protocol will advance important U.S. nonproliferation objectives and make clear the security benefits available to states that comply fully with their obligations under the Treaty on the Non-Proliferation of Nuclear Weapons, done at Washington, London, and Moscow July 1, 1968 (“NPT”), and other international nonproliferation obligations. As described below, the Treaty advances the goals of the NPT, as well as efforts to strengthen the IAEA safeguards regime and universality of the Additional Protocol to the NPT, to promote the maintenance of effective standards of physical protection of nuclear material and facilities, and to prevent acts of nuclear terrorism. The Treaty and its Protocol will also enhance regional cooperation, security, and stability, and provide a vehicle for the extension of legally binding negative security assurances, consistent with the strengthened negative security assurance announced in the 2010 U.S. Nuclear Posture Review.

Article-by-Article Analysis

The Protocol

Article 1 of the Protocol provides that each Protocol Party undertakes not to use or threaten to use a nuclear weapon or other nuclear explosive device against any Party to the Treaty.

In order to clarify that the Article 1 commitment is consistent with U.S. policy on negative security assurances, the United States should include the following statement in its instrument of ratification:

With respect to Article 1 of the Protocol, the United States of America will not use or threaten to use nuclear weapons against any Party to the Treaty on a Nuclear-Weapon-Free Zone in Central Asia that is a non-nuclear weapon State Party to the Nuclear Non-Proliferation Treaty (NPT) and in compliance with its nuclear nonproliferation obligations.

Under Article 2 of the Protocol, each Protocol Party also undertakes not to contribute to any act that constitutes a violation of the Treaty or the Protocol by the Parties to them. This provision does not require the United States to comply with all provisions of the Treaty; rather, it requires the United States not to contribute to a Treaty Party committing violations of the Treaty or a Protocol Party committing violations of the Protocol.

Article 3 of the Protocol provides that each Protocol Party must indicate by written notification to the Depositary its acceptance or rejection of any alteration to its obligations under the Protocol that may be brought about by amendment of the Treaty. Thus, the United States will not be bound by any alteration to its obligations that it does not expressly accept.

Article 4 lists the States that may sign the Protocol. They are the French Republic, the People's Republic of China, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland, and the United States of America. As noted above, these States all signed the Protocol on May 6, 2014.

Article 5 makes clear that the Protocol is subject to ratification.

Article 6 covers the duration of and withdrawal from the Protocol. It establishes that the Protocol is of a permanent nature and shall remain in force indefinitely and provides that any Protocol Party may, by written notification to the Depositary, withdraw from the Protocol if it decides that extraordinary events, related to the subject matter of the Protocol, have jeopardized its supreme national interests. Such notification must include a statement of the extraordinary events the State regards as having jeopardized its supreme national interests. The article also provides that withdrawal shall take effect 12 months after the date of receipt of the notification by the Depositary.

Article 7 states that the Protocol shall enter into force for each Party on the date of its deposit with the Depositary of its instrument of ratification.

In order to make clear that the United States will not need to make any changes to existing law or policy before becoming a party to the Protocol, the United States should include the following statement in its instrument of ratification:

The United States of America declares that its policies and practices are already consistent with the Treaty on a Nuclear-Weapon-Free Zone in Central Asia and the Protocol thereto, and that its ratification of the Protocol in no way affects the United States position with regard to other nuclear-weapon-free zone treaties.

The Treaty

The terms of the Treaty arc relevant to the obligations of the United States in that, as previously noted, under the Protocol the United States would undertake not to contribute to any act by a Treaty Party that constitutes a violation of the Treaty.

Article 1: Definition and Usage of Terms

This Article defines terms used in the Treaty and its Protocol. The “Central Asian Nuclear-Weapon-Free Zone” consists of the Republic of Kazakhstan, the Kyrgyz Republic, the Republic of Tajikistan, Turkmenistan, and the Republic of Uzbekistan. “Nuclear weapon or other nuclear explosive device” is defined as “any weapon or other explosive device capable of releasing nuclear energy, irrespective of the military or civilian purpose for which the weapon or device could be used. The term includes such a weapon or device in unassembled or partly assembled forms, but does not include the means of transport or delivery of such a weapon or device if separable from it.” This term encompasses so-called “peaceful nuclear devices.”

Article 1(c) defines “stationing” as implantation, emplacement, stockpiling, storage, installation, and deployment. As discussed below, the prohibition on stationing in Article 3(d)(i) does not alter the sovereign right of each Treaty Party to allow “transit through its territory by air, land or water, including visits by foreign ships to its ports and landing of foreign aircraft at its airfields.” “Stationing” does not include transit through territorial waters or airspace, or port visits, by vessels carrying nuclear explosive devices.

“Nuclear material” is defined in Article 1(d) to mean any source material or special fissionable material as defined in Article XX of the Statute of the International Atomic Energy Agency (lAEA) and as may be amended by the IAEA.

Article 1(e) defines “radioactive waste” as “any radioactive material, i.e., any substance containing radionuclides that will be or has already been removed and is no longer utilized, at activities and activity concentrations of radionuclides greater than the exemption levels established in international standards issued by the IAEA.”

Article 1(f) defines “facility” as a reactor, critical facility, conversion plant, fabrication plant, reprocessing plant, isotope separation plant, or separate storage installation, or any location where nuclear material in amounts greater than one effective kilogram is customarily used.

Article 2: Application of the Treaty

Article 2(a) defines the scope of application of the Central Asian Nuclear-Weapon-Free Zone as the land territory, all waters and the air space above them, which belong to the countries listed in Article 1(a). Article 2(b) makes clear that nothing in the Treaty prejudices or in any way affects the rights of any Central Asian State in any dispute concerning ownership of or sovereignty over lands or waters that may or may not be included within the zone.

Article 3: Basic Obligations

Article 3 contains a series of nonproliferation obligations. Under Article 3(1)(a), the Treaty Parties undertake not to conduct research on, develop, manufacture, stockpile or otherwise acquire, possess or have control over any nuclear weapon or other nuclear explosive device “by any means anywhere.”

These obligations constitute the core commitments made by the Treaty Parties. They are not limited to the territory of a Treaty Party or to the Central Asian Nuclear-Weapon-Free Zone; they are global commitments undertaken by each Treaty Party.

Under Article 3(1)(b) and (c), the Treaty Parties undertake not to seek or receive any assistance in, or to take any action to assist or encourage, such activities.

Under Article 3(1)( d), each Treaty Party undertakes not to allow in its territory: (i) the production, acquisition, stationing, storage or use, of any nuclear weapon or other nuclear explosive device; (ii) the receipt, storage, stockpiling, installation, or other form of possession of or control over any such weapon or device; and (iii) any actions, by anyone, to assist or encourage the development, production, stockpiling, acquisition, or possession of or control over any nuclear weapon or other nuclear explosive device.

As noted above, Article 1(c) defines “stationing” as implantation, emplacement, stockpiling, storage, installation, and deployment. The United States should include the following statement in its instrument of ratification in order to ensure that no U.S. rights related thereto are adversely affected:

The United States of America understands the term “stationing” as used in the Treaty on a Nuclear- Weapon-Free Zone in Central Asia not to include the temporary off-load or transshipment of nuclear weapons.

Under Article 3(2), the Treaty Parties undertake not to allow the disposal of radioactive waste of other States in their respective territories.

Article 4: Foreign Ships, Aircraft, and Ground Transportation

This Article provides that each Treaty Party, in the exercise of its sovereign rights, is free to resolve issues related to transit through its territory by air, land, or water, including visits by foreign ships to its ports and landing of foreign aircraft at its airfields. This provision confirms that any Treaty Party could choose to accept a visit from U.S. vessels or aircraft on which the presence of nuclear explosive devices had been neither confirmed nor denied. There would be no basis in the Treaty or Protocols for another Treaty Party to object to such a visit. In order to emphasize this point, the United States should include the following statement on the relationship between Articles 3 and 4 in its instrument of ratification:

The United States understands that the prohibitions and obligations contained in Article 3 of the Treaty on a Nuclear-Weapon-Free Zone in Central Asia do not affect the right of each State Party to the Treaty to decide for itself whether to allow visits by foreign ships and aircraft to its ports and airfields as provided in Article 4 of the Treaty, nor does the Treaty affect other rights guaranteed by international law.

Article 5: Prohibition of Testing of Nuclear Weapons or Other Nuclear Explosive Devices

Under Article 5, each Treaty Party undertakes: (i) not to carry out any nuclear weapon test explosion or any other nuclear explosion; (ii) to prohibit and prevent any such nuclear explosion at any place under its jurisdiction or control; and (iii) to refrain from causing, encouraging, or in any way participating in the carrying out of any nuclear weapon test explosion or any other nuclear explosion.

Article 6: Environmental Security

Under Article 6, each Treaty Party undertakes to assist in any efforts towards environmental rehabilitation of territories contaminated as a result of past activities related to the development, production or storage of nuclear weapons or other nuclear explosive devices.

Article 7: Use of Nuclear Energy for Peaceful Purposes

This article states that no provision of the Treaty prejudices the right of the Treaty Parties to use nuclear energy for peaceful purposes.

Article 8: IAEA Safeguards

Under this article, each Treaty Party undertakes to use the nuclear material and facilities within its territory, under its jurisdiction, or under its control anywhere exclusively for peaceful purposes. Each Treaty Party also undertakes to conclude and bring into force, if it has not already done so, an agreement with the lAEA for the application of safeguards in accordance with the NPT and an Additional Protocol (AP) thereto. Each Treaty Party has brought into force its comprehensive safeguards agreement and Additional Protocol. In addition, the Treaty Parties undertake not to provide source or special fissionable material, or equipment or material specially designed for processing, use or production of special fissionable material, to any non-nuclear-weapon State, unless that State has concluded with the IAEA a comprehensive safeguards agreement and corresponding Additional Protocol. These requirements reinforce U.S. efforts to promote the Additional Protocol as an instrument for nuclear nonproliferation.

Article 9: Physical Protection of Nuclear Material and Equipment

Under this article, each Treaty Party undertakes to maintain effective standards of physical protection of nuclear material, facilities, and equipment to prevent its unauthorized use, handling, or theft. Accordingly, each Treaty Party is required to apply measures of physical protection to nuclear material in domestic use, transport, and storage, to nuclear material in international transport, and to nuclear facilities within its territory at least as effective as those called for by the Convention on Physical Protection of Nuclear Material of 1987 and by recommendations and guidelines developed by the IAEA. The threat of theft or sabotage of nuclear materials poses a global proliferation risk and a potential danger to public health and safety. The most effective means of preventing the illicit trafficking of nuclear materials is at the source. Thus, the physical protection of nuclear materials is a key element of international strategies to prevent the unauthorized use of nuclear materials.

Article 10: Consultative Meetings

Article 10 requires the Treaty Parties to hold annual meetings of their representatives on a rotating basis, as well as extraordinary meetings at the request of any Treaty Party, to review compliance with the Treaty or other matters related to its implementation.

Article 11: Settlement of Disputes

This article states that disputes between the Treaty Parties involving the interpretation or application of the Treaty shall be settled through negotiations or by other means as may be deemed necessary by the Treaty Parties.

Article 12: Other Agreements

Article 12 of the Treaty provides:

This Treaty does not affect the rights and obligations of the Parties under other international treaties which they may have concluded prior to the date of the entry into force of this Treaty. The Parties shall take all necessary measures for effective implementation of the purposes and objectives of this Treaty in accordance with the main principles contained therein.

Among the “other international treaties ... concluded prior to the date of the entry into force” of the CANWFZ Treaty is the Treaty on Collective Security, done at Tashkent on May 15, 1992 (the Treaty of Tashkent), a mutual defense treaty among Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Russia, Tajikistan, and Uzbekistan. (Of the CANWFZ Treaty Parties, only Turkmenistan is not also a Party to the Treaty of Tashkent.) Article 4 of the Treaty of Tashkent provides that “[i]n case one of the States Parties is subjected to an aggression by any state or a group of states, this shall be considered as an aggression against all the States Parties” of the Treaty of Tashkent. Article 4 further provides “[i]n case an act of aggression is directed against any of the States Parties, all other States Parties shall provide it necessary assistance, including military assistance, and shall also support it by all means available in exercise of the right of collective defense under Article 51 of the Charter of the United Nations.”

The second sentence of Article 12 of the Treaty provides that the Treaty Parties must “take all necessary measures for effective implementation of the purposes and objectives” of the Treaty “in accordance with the main principles contained therein” (which would include the principles that underlie Articles 3 and 5 of the Treaty).

Accordingly, Article 12 preserves the rights and obligations of the Treaty Parties that are also Parties to the Treaty of Tashkent to offer or provide military assistance in rebuffing aggression, but only to the extent that such actions are not incompatible with the Treaty Parties taking “all necessary measures to effectively implement the purposes and objectives” of the CANWFZ Treaty. Article 12 would, therefore, not preserve for a Treaty Party any pre-existing right to permit nuclear weapons on its territory as part of any military assistance under the Treaty of Tashkent. During the course of discussions in 2013, Russia and the Central Asian states shared their view that the Treaty of Tashkent does not provide a right to station nuclear weapons on the territory of a party to that Treaty. The Central Asian states further affirmed that they understood the P5 would address issues relating to Article 12 through national statements.

A statement should be included in the U.S. instrument of ratification of the Protocol to underscore this point. France and the United Kingdom made statements to this effect at signature. None of the Treaty of Tashkent Parties, including Russia, has expressed disagreement with these statements. The statement would read as follows:

The United States considers that Article 12 of the Treaty on a Nuclear-Weapon-Free Zone in Central Asia does not in any way authorize States Parties to that Treaty to take actions that are inconsistent with Article 3 or Article 5 of that Treaty.

This proposed statement emphasizes that Article 12 of the Treaty does not diminish the obligation of Treaty Parties to act consistently with Articles 3 and 5 of the Treaty, which together constitute the primary prohibitions in the Treaty, including the prohibition on stationing of nuclear weapons or other nuclear explosive devices.

The following statement should be included in the U.S. instrument of ratification of the Protocol, which makes clear the consequences that would follow from certain actions on the part of Treaty or Protocol Parties:

The United States declares that in the event of a material breach of this Protocol by another Party to this Protocol, the United States would have the right to suspend performance of all of its obligations under this Protocol. The United States further declares that it may immediately withdraw from this Protocol if any Party to the Treaty on a Nuclear-Weapon-Free Zone in Central Asia takes actions described as prohibited in Article 3 or Article 5 of that Treaty.

The first sentence of this proposed statement restates the right the United States has under customary international law, as reflected in the Vienna Convention on the Law of Treaties, to suspend performance in the case of a material breach of the Protocol by another Protocol Party. Invoicing this right would allow the United States to respond to the material breach by the defaulting State without putting itself in violation of the Protocol.

The second sentence of the proposed statement makes clear that, in addition, the United States may immediately withdraw from the Protocol if any of the Treaty Parties undertakes an action described as prohibited in Article 3 or Article 5 of the Treaty, which together constitute the primary prohibitions in the Treaty. Such withdrawal could take effect immediately, rather than 12 months after the date of receipt of the notification of the withdrawal by the Depositary, as provided for in Article 6(c) of the Protocol.

Article 13: Reservations

This article states that the Treaty shall not be subject to reservations. There is no prohibition on reservations to the Protocol.

Article 14: Signature and Ratification

Article 14 states that the Treaty will be open for signature at Semipalatinsk, the Republic of Kazakhstan, by all States of the Central Asian Nuclear-Weapon-Free Zone and that it will be subject to ratification.

Article 15: Entry into Force and Duration

Article 15 provides that the Treaty will enter into force 30 days after the date of the deposit of the fifth instrument of ratification and that it will be of unlimited duration. As noted above, the Treaty entered into force on March 21, 2009.

Article 16: Withdrawal from the Treaty

This article provides that any Treaty Party may, by written notification addressed to the Depositary, withdraw from the Treaty “if it decides that extraordinary events, related to the subject-matter of this Treaty, have jeopardized its supreme national interests.” Withdrawal would take effect 12 months after the date of receipt of the notification by the Depositary.

Article 17: Amendments

This article provides that any amendment to the Treaty proposed by a Treaty Party will be circulated by it to all Treaty Parties and submitted to the Consultative Meeting (see Article 10) at least 90 days before the Meeting; that decisions on the adoption of such an amendment will be taken by consensus of the Treaty Parties; and that an amendment so adopted will enter into force for all Treaty Parties after receipt by the Depositary of the instrument of ratification from all Treaty Parties.

Article 18: Depositary

Article 18 designates the Kyrgyz Republic as the Depositary of the Treaty and provides the functions of the Depositary, including receiving instruments of ratification for both the Treaty and the Protocol, registering the Treaty and Protocol pursuant to Article 102 of the Charter of the United Nations and transmitting certified copies of the Treaty and Protocol to all Treaty Parties and to all Parties to the Protocol and notifying them of signatures and ratifications of the Treaty and Protocol.