The proposed WMD-free zone in the Middle East – Part One: law of the sea issuesPosted: July 6, 2012
This is the first of a series of posts on the proposed zone free of weapons of mass destruction (WMD) in the Middle East. Each post will focus on specific international law issues arising from the establishment of such zone. The present one deals with the international law of the sea.
Article VII of the Treaty on the Non-proliferation of Nuclear Weapons recognizes the right ‘of any group of States to conclude regional treaties in order to assure the total absence of nuclear weapons in their respective territories’. UN General Assembly Resolution 3472 (XXX) B of 11 December 1975 defines a nuclear weapon-free zone (NWFZ) as ‘any zone, recognized as such by the General Assembly of the United Nations, which any group of States in the free exercise of their sovereignty, has established by virtue of a treaty or convention whereby: (a) the statute of total absence of nuclear weapons to which the zone shall be subject, including the procedure for the delimitation of the zone, is defined; (b) an international system of verification and control is established to guarantee compliance with the obligations deriving from that statute’. The two fundamental prohibitions for the states parties to a NWFZ treaty are the prohibition to possess nuclear explosive devices anywhere and the prohibition to station or allow the stationing of those devices (whoever owns them) within the zone. Five NWFZs have been established so far: in Latin America and the Caribbean (Treaty of Tlatelolco, 1967), in the South Pacific Ocean (Rarotonga Treaty, 1985), in South-East Asia (Bangkok Treaty, 1995), in Africa (Pelindaba Treaty, 1996) and in Central Asia (Semipalatinsk Treaty, 2006). All these treaties have now entered into force. Mongolia has also unilaterally declared itself nuclear weapon-free and Antarctica is denuclearized as a consequence of the 1959 Washington Treaty that demilitarized the continent and reserved it for exclusively peaceful purposes.
A NWFZ in the Middle East was first proposed by the Shah of Persia in 1974 with the endorsement of the Egyptian government. In 1990, Egypt proposed to broaden the scope of the zone and to turn it into a WMD-free zone so to target not only Israel’s nuclear programme but also the chemical and bacteriological weapons possessed by other Middle Eastern states. Since the 1980s, the UN General Assembly has annually adopted a resolution by consensus supporting the initiative. The WMD-free zone was also mentioned, among others, in Security Council Resolutions 687 (1991) on Iraq. Negotiations have however stalled for a long time but have gained momentum when, at the 1995 Review Conference of the NPT, the so-called Middle East Resolution was adopted as part of the package deal for the Arab States to agree to the indefinite extension of the NPT. The resolution, which was reaffirmed at the 2000 NPT Review Conference, endorsed the peace process in the Middle East, called the remaining countries not party to the NPT to accede as soon as possible and accept full scope IAEA safeguards, and called all Middle East states and NPT parties, in particular the nuclear weapon states, to make every effort to establish a WMD-free zone in the region. The subsequent 2010 NPT Review Conference finally called for a conference, to be held in 2012, in view of the establishment of such a zone. In October 2011, the UN Secretary-General announced that Finland had been chosen to host the conference with Jaakko Laajava, Under-Secretary of State in Finland’s Ministry of Foreign Affairs, acting as the ‘facilitator’. It is still unclear whether it will be possible to hold the conference before the end of the year. In any case, the conference’s purpose is not to adopt a treaty, but to be a further step in the negotiation process that should hopefully lead to the drafting of the treaty.
There is now agreement that the WMD-free zone in the Middle East will cover all members of the Arab League in addition to Israel and Iran. It will then also include peripheral states such as Djbouti, Comoros, Somalia and Sudan, which are members of the Arab League but not, strictly speaking, Middle Eastern countries. It should not be forgotten that the African countries are already denuclearized as a consequence of the Pelindaba Treaty and that there are also negotiations for the establishment of a WMD-free zone in the Persian Gulf.
A thorny issue is whether the WMD-free zone in the Middle East should include only the land territories of the above states or marine areas as well. Indeed, the Middle East includes several important waterways. The Persian Gulf and the Suez Canal are two of the main water highways of the world. Also, several international straits will be partly or entirely included, e.g. the Straits of Gibraltar, Tiran, Hormuz, Bab al-Mandeb. If marine areas will be included as in the other NWFZs, then, the navigational rights of foreign vessels and aircraft with nuclear weapons on board will have to be preserved by special clauses (the transport of chemical and bacteriological weapons is prohibited as a consequence of the bans on such weapons imposed by the 1993 Chemical Weapons and 1972 Bacteriological Weapons Conventions). Article 2 (2) of the Bangkok Treaty, for instance, provides that ‘[n]othing in this Treaty shall prejudice the rights or the exercise of these rights by any State under the provisions of the United Nations Convention on the Law of the Sea of 1982, in particular with regard to freedom of the high seas, rights of innocent passage, archipelagic sea lanes passage or transit passage of ships and aircraft, and consistent with the Charter of the United Nations’ (see also Articles 2 (2) of the Rarotonga Treaty and of the Pelindaba Treaty). This provision constitutes an exception to the obligation of the states parties to a NWFZ treaty not to allow the possession of or control over any nuclear explosive device on their territory by anyone. Of course, the regional states might decide to prohibit the maritime transport of nuclear weapons altogether, but this would be inconsistent with the law of the sea: both warships and vessels carrying nuclear materials enjoy the right of innocent, transit and archipelagic sea lanes passage (see Articles 19, 22, 23, 38 and 53 of the 1982 Montego Bay Convention on the Law of the Sea), and Article 88 of the Montego Bay Convention, interpreted in connection with Article 301, only forbids those military activities at sea which involve the threat or use of force.
Assuming that marine areas will eventually be included in the WMD-free zone, the problem also arises whether the zone should only cover the territorial waters of the zonal states or also extend to their exclusive economic zones (EEZs) and continental shelves as in the South-East Asia NWFZ (Iran, Oman and UAE have for instance proclaimed EEZs). Under the law of the sea, the coastal states enjoy only certain exploitation and exploration ‘sovereign rights’ over their EEZs and continental shelves, and freedom of navigation is preserved (Articles 56 and 77 of the Montego Bay Convention). Nuclear vessels could only be required to comply with procedural obligations, such as a duty to inform and consult with the coastal authorities, in a manner that does not affect the freedom of navigation. Having said that, practice in relation to the MOX (plutonium-uranium mixed oxide) shipments from Europe to Japan suggests the possible future emergence of a more restrictive regime according to which the coastal states may prohibit vessels carrying hazardous substances to enter their exclusive economic zone (see my article here).
If a clause preserving the navigational rights of third states under the law of the sea will need to be included in the treaty establishing the WMD-free zone in the Middle East, what should be avoided is the inclusion of a provision like Article 7 of the Bangkok Treaty preserving the right of each denuclearised state 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 through its territorial sea or archipelagic waters and overflight of foreign aircraft above those waters in a manner not governed by the rights of innocent passage, archipelagic sea lanes passage or transit passage’. Under such clause, which also appears in Article 5 (2) of the Rarotonga Treaty and Article 4 (2) of the Pelindaba Treaty, not only do the NWFZ treaties not prejudice the rights of entry into the ports and internal waters, of innocent passage in the territorial sea, of archipelagic sea lanes passage and of transit through the straits used for international navigation, but they do not even require the parties to prevent other forms of presence that go beyond the navigational rights recognised by the law of the sea. This provision is unnecessary and represents a serious loophole in the denuclearisation regime.
One of the Middle Eastern states to be included in the WMD-free zone, Iran, borders the Caspian Sea. According to the prevalent view, the Caspian is not actually a ‘sea’ but rather an international lake not governed by the law of the sea. No agreement among the littoral states has been reached on the delimitation of its waters yet. Its inclusion in the Middle East WMD-free zone might therefore raise issues that have already arisen in connection with the Central Asian NWFZ (see my comments here). The Semipalatinsk Treaty contains a clause providing that ‘[n]othing in this Treaty shall prejudice or in any way affect the rights of any Central Asian States in any dispute concerning the ownership of or sovereignty over lands or waters that may or may not be included within this zone’. The inclusion of a similar clause might be necessary in the Middle East WMD-free zone treaty as well.