Is India a non-nuclear weapon state under the Rarotonga Treaty?

Australia is presently in discussions with India to begin exporting uranium for India’s civil nuclear programme. Australia, however, is a party to the 1986 Treaty of Rarotonga establishing a nuclear weapon-free zone (NWFZ) in the South Pacific Ocean, Article 4 of which provides that ‘[e]ach Party undertakes: 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 the safeguards required by Article III.l of the NPT, or any nuclear-weapon State unless subject to applicable safeguards agreements with the International Atomic Energy Agency (IAEA)’. Is India, which has not ratified the Treaty on the Non-proliferation of Nuclear Weapons (NPT) and possesses nuclear weapons, a non-nuclear weapon state (NNWS) or a nuclear weapon state (NWS) under Article 4 of the Rarotonga Treaty? If the former is the correct qualification, then Australia may be in breach of the treaty if it exports uranium to India, as India has only accepted limited IAEA safeguards (INFCIRC/66/Rev.2) on certain civilian plants, but not full-scope safeguards (i.e. applicable to all materials and facilities) under the INFCIRC/153(Corrected) model (I will leave the discussion of whether less comprehensive safeguards also meet the requirements of Article III of the NPT for another time).

Article IX(3) of the NPT defines a NWS as a state ‘which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967’. Under the NPT, therefore, India is not, and cannot be unless the treaty is amended, a NWS, as it has not manufactured or exploded a nuclear device before 1 January 1967. Unlike the NPT, however, the Rarotonga Treaty does not contain a definition of either NNWS or NWS. To solve the problem, one needs to apply the criteria for the interpretation of treaties provided in Article 31 of the 1969 Vienna Convention on the Law of Treaties (VCLT). If the expression ‘NNWS’ in Article 4 of the Rarotonga Treaty is interpreted according to its ordinary meaning, it should be concluded that India is not a NNWS, as the ordinary meaning of this expression arguably is ‘state that does not possess or control nuclear weapons’, and not ‘state that has not manufactured or exploded a nuclear device before 1 January 1967’. Article 31(3)(c) of the VCLT, however, also provides that treaties should be interpreted taking into account ‘any relevant rules of international law applicable in the relations between the parties’. I would argue that the NPT can be seen as part of the rules ‘applicable in the relations between the parties’ and that, therefore, the definition of NWS (and, consequently, NNWS) contained therein may be extended, in the absence of alternative definitions, to the Rarotonga Treaty. This conclusion is reinforced by the following considerations: 1) Article 4 of the Rarotonga Treaty and Article III(2) of the NPT employ essentially the same language; 2) the Rarotonga Treaty refers in many instances to the NPT: the Preamble, for instance, reaffirms its importance and Article 4 itself requires the states parties ‘to support the continued effectiveness of the international non-proliferation system based on the NPT and the IAEA safeguards system’; and 3) NWFZs are usually seen as regional means to support the global nuclear non-proliferation regimes, not as alternatives to it (see Article VII of the NPT). An additional argument in favour of interpreting ‘NNWS’ in the Rarotonga Treaty consistently with the NPT could be that the definition of NWS contained in the NPT has become customary, and as such – again, lacking alternative definitions in the treaty in question – it also applies to the Rarotonga Treaty.

Could Article 4 of the Rarotonga Treaty be interpreted as referring only to NNWS ‘parties to the NPT’? The United States has made this argument in relation to Article III(2) of the NPT in order to justify its export of nuclear technologies and materials to India under the Global Partnership between the two countries. There is nothing in the letter of either provision, however, that supports this interpretation. What is more, this interpretation is in contrast with the object and purpose of the NPT: assuming that the NPT is based on the renunciation by the NNWS to certain uses of nuclear energy (the military ones) in return for assistance by the NWS in the peaceful uses of this type of energy, an interpretation of Article III that allows a state (India) to benefit from that assistance without also accepting to renounce to the military uses of nuclear energy seems in contradiction with the ‘grand bargain’ on which the NPT is founded. The same considerations can be extended to Article 4 of the Rarotonga Treaty, which, as already noted, expressly requires the states parties ‘to support the continued effectiveness of the international non-proliferation system based on the NPT and the IAEA safeguards system’.

As always, I would welcome your thoughts.

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12 Comments on “Is India a non-nuclear weapon state under the Rarotonga Treaty?”

  1. Don Bacon says:

    Is India a non-nuclear weapon state under the Rarotonga Treaty?

    No, the treaty only applies to territory in the NFZ.

    this Treaty and its Protocols shall apply to territory within the South Pacific Nuclear Free Zone

  2. Esherll says:

    This is a very interesting fact about the manmade treaties or accounts that states or the proponents change according to their wishes and needs. This is exactly happened with NPT and NWFZs treaties that states modify the clauses in a manner they want. India and Australia are starting a venture of nuclear cooperation by transferring the nuclear fissile material uranium yellow cakes. This is absolutely against all the arms control and disarmament accords. Although Australia is a member of NWFZs treaty but it is not at all abiding the provisions. States have nurtured this nuclear proliferation due to their own vested national interests. This is what very much reflected in India Australia nuclear cooperation. Interestingly, India is enjoying these leverages of being the Non NPT member.

  3. Dan Joyner says:

    Marco,
    I’m really glad you posted on this topic. It’s a very interesting question, and one that I’ve wanted to write about for a long time but have never gotten around to it. Don Rothwell at the ANU has talked a lot about it to Australian media, arguing that Australia’s sale of uranium to India would be a breach of the Treaty of Raratonga. See here: http://www.smh.com.au/environment/treaty-may-put-at-risk-indias-hopes-for-uranium-20111128-1o3bu.html

    I personally think that this is incorrect. I think that the bottom line is that nothing in the letter of the Treaty of Raratonga makes Australian sale of uranium to India illegal. In your post you referred to the US/India nuclear tech deal and how the US has argued that this supply arrangement is not a breach of the NPT. I have long held that, in terms of the letter of the NPT, this is likely a correct argument, although I also think that the US/India deal in particular is terribly undermining of the spirit of the NPT. Honestly, I’m less concerned about the simple sale of uranium from Australia to India for use in India’s peaceful nuclear program.

    Getting to the legal analysis, as an initial comment I have to say that I think the Treaty of Raratonga could have been better drafted. You’re absolutely right that there are allusions to the NPT in the preamble and in the substantive provisions, and it’s clear to me that the drafters intended for the meanings of terms in the NPT to simply migrate over into this NWFZ treaty. However, there is not a provision in the Treaty of Raratonga explicitly bringing in the meanings of terms from the NPT. I think this was a mistake. Because we are still talking about a separate, stand-alone treaty here, and the drafters should, I think, have been more careful to make sure it could be interpreted within its own four corners.

    Looking at the text of the Treaty of Raratonga as it stands, I think there are several points that support my conclusion that Australian sale of uranium to India is not prohibited.

    First, as Don Bacon mentions above, the Treaty of Raratonga in Article 2 is explicitly geographically limited to the South Pacific Nuclear Free Zone, which does not include India. Now, it’s true we are talking primarily about Australia’s legal obligations, and Australia is a party to the treaty and within the zone. But if we’re considering the meaning of terms in the treaty, and the treaty only applies to the territory within the SPNFZ, then on that basis alone, I think the terms of the treaty can only be understood to apply to states located within the territory of the SPNFZ. And since India is outside of that territory, the terms of the treaty, including descriptors of NWS and NNWS, do not apply to India.

    Second, even if the terms of the treaty were to apply to India as a recipient of nuclear technologies under Article 4, we are left with the problem that you discuss, which is whether India can be considered either a nuclear weapon state or a non-nuclear weapon state under the terms of the Treaty of Raratonga. So let’s go through the options briefly.

    If we should essentially import the meaning of these terms from the NPT, then India isn’t covered by either one. As you point out, India can’t be a NPT NWS by definition in the NPT. And since India never signed the NPT, it also can’t be a NPT NNWS. So under both possibilities here, India is not covered.

    Now, what if we don’t automatically import the meaning of terms from the NPT, and we just look at the terms in their plain meaning. India is not a non-nuclear weapon state under any ordinary meaning of that term. India has nuclear weapons. Is India a nuclear weapon state under the ordinary meaning of that term? I would say yes. Again, they have nuclear weapons. So, what does the treaty say about exports of nuclear material to a nuclear weapon state? It says, in effect, this:

    “Each Party undertakes not to provide source or special fissionable material for peaceful purposes to any nuclear-weapon State unless subject to applicable safeguards agreements with the International Atomic Energy Agency (IAEA). Any such provision shall be in accordance with strict non-proliferation measures to provide assurance of exclusively peaceful non-explosive use.”

    So if India is a nuclear weapon state according to the terms of the Treaty of Raratonga, in order for Australia to export uranium to India legally, India must have in place an “applicable safeguards agreement[] with the IAEA,” and the provision of these materials by Australia must be “in accordance with strict non-proliferation measures to provide assurance of exclusively peaceful non-explosive use.” As we all know, India does have a safeguards agreement in place with the IAEA. It’s not a full-scope safeguards agreement, but it is an agreement that has so far satisfied the IAEA that no diversion of fissile material from the civilian side to the military side of India’s program has taken place. I don’t see why this safeguards system should be judged not to meet the applicable standard in the Treaty on Raratonga for supplies of fissile materials to nuclear weapon states. If it doesn’t, then the treaty provision would be moot, because no nuclear weapon state in the world has a full scope safeguards agreement in place with the IAEA.

    So again, the way I look at this question, there is no reading of the Treaty of Raratonga under which the sale of uranium from Australia to India is in breach of the letter of the treaty. Is it undermining of the spirit of the Treaty of Raratonga? I think it is. As well as undermining of the spirit of the NPT, just like the US/India deal. But again, I’m less concerned about this case than I am about the US case, because the US case involves a much broader and more diverse array of potential nuclear tech transfers.

  4. Marco Roscini says:

    All
    Thank you for your interesting comments, this is a great and useful discussion. You make very good points, which I will try to respond here.
    Dan and Don, you are absolutely right that the Rarotonga Treaty does not apply to states outside the SPNWFZ (it could not: see Article 34 VCLT), but the problem here is not one of applying treaties to third states, but of interpreting an ambiguous provision: in Article 4, an expression is used (NNWS) whose meaning is unclear. This has nothing to do with an extension of the rights and duties under the Rarotonga Treaty to India: it concerns the correct interpretation of the rights and duties of the states parties, including Australia.
    Dan, you have very good arguments in favour of interpreting NNWS in the Rarotonga Treaty according to its ordinary meaning and not in the same sense as the NPT. If the ordinary meaning interpretive criterion supports your conclusion, however, we should not forget that this is only one of the criteria contained in Article 31 VCTL for the interpretation of treaties. I would suggest that the others support the opposite conclusion. Article 31(1) states: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. Now, an interpretation of ‘NNWS’ in Article 4 of the Rarotonga Treaty according to the context (i.e. the whole text of the treaty, including preamble and annexes) suggests that it is intended according to the NPT definition, as the NPT is mentioned in several other parts of the treaty and in Article 4 itself. I suspect that the travaux préparatoires would confirm this. Furthermore, the object and purpose of Article 4 is to support the global non-proliferation regime and therefore, like that of the NPT, is to prevent horizontal proliferation: the full-scope safeguards have the purpose of making sure that the state to which the materials are transferred does not use them to become a nuclear weapon state. Now, if NNWS is interpreted as ‘state that does not possess nuclear weapons’, it seems to me that Article 4 would basically say that the transfer of fissile material to a state that does not possess nuclear weapons without full-scope safeguards is prohibited until that state has become a NWS (as in the case of India). This is an interpretation that not only is in contrast with the object and purpose of the provision (ie, to make sure that no other state apart from the P5 becomes a NWS), but is also ‘manifestly absurd and unreasonable’ and, as such, excluded by Article 32 VCLT. It would simply encourage states to get nuclear weapons so to circumvent prohibitions like that contained in Article 4.
    Last but not least, as I tried to argue in my post and as Dan suggests too, interpreting NNWS according to its ordinary meaning is inconsistent with the spirit of both the Rarotonga and the NPT treaties.
    Having said that, I entirely agree with Dan when he says that the Rarotonga Treaty (and other NWFZ treaties) could have been better drafted.
    A last point. I personally think that India is covered by the definition of NNWS in the NPT: it is a legal fiction, but that is the way it is unless the treaty is amended. We are talking about treaty regimes here: for the NPT states parties, India is a NNWS, as it has not exploded nuclear devices before 1 January 1967. The NPT states parties are bound by that definition when applying the treaty provisions in virtue of their ratification of the treaty. India, however, is outside that treaty regime (unless we make the case that the definition reflects customary international law): in this non-NPT legal framework (and in the relation between India and other non-NPT states), India is a NWS. So India is (legally speaking) a NWS or a NNWS depending on which perspective we take. If you want, it is another fragmentation issue.

    • Dan Joyner says:

      This is a very useful discussion we’re having, and again I’m glad that Marco has initiated it. I wanted to just add that I think we have to be careful to not think of the NPT as some kind of universal organizer of all states into NWS and NNWS categories. The NPT is a treaty, whose terms apply only to its parties. So I would have to disagree that “India is covered by the definition of NNWS in the NPT” because India is not a party to the NPT. Similarly, even if the NPT meanings of the terms nuclear weapon state and non-nuclear weapon state are to be imported into the Treaty of Raratonga, India cannot be deemed a non-nuclear weapon state under that definition, because it is not a party to the NPT. The only NNWS under the NPT’s terms are parties to the NPT that do not qualify as NWS parties to the NPT. I would note also that the NPT text knows how to distinguish between NNWS parties to the NPT on the one hand, and states generally on the other. For example, in Article I we find the following obligation: “Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever . . .” India could certainly be said to be in the “any recipient whatsoever” category, but it is not, in my opinion, in the NPT NNWS category. So as I said above, in my view under either interpretation of the Treaty of Raratonga’s terms (i.e. either importing NPT term meanings or not) there is no prohibition in the treaty on Australia exporting uranium to India.

      • Marco Roscini says:

        Hi Dan
        thanks for continuing this interesting discussion. What I meant was that India is a NNWS only for the NPT states parties, as it is them who are bound by the NPT definition. As the definition does not bind third states, for India and other non-NPT states parties India is a nuclear weapon state. I guess it may be a situation similar to that of treaties providing for freedom of navigation in certain international waterways, like international straits or artificial canals: the fact that the littoral states are bound to allow the transit by ships of any nations, including those of states not parties, does not mean that the relevant treaty is binding on those states. No obligation is imposed on India because of Art. III.2 NPT or Article 4 of the Rarotonga Treaty, only on the states parties to those treaties.
        I also find it interesting that, while Article 1 of the NPT imposes an obligation on NNWS ‘parties to the treaty’ (and it could have not been otherwise), Article III.2 refers only to NNWS without adding ‘parties to the treaty’.

  5. Butterzopf says:

    In support of Marco’s points above, I’d simply like to add that the object and purpose of the Roratonga Treaty should not be framed narrowly as one of non-proliferation. It’s (also) about nuclear disarmament. The states parties expressed their conviction that

    “all countries have an obligation to make EVERY effort to achieve the goal of ELIMINATING nuclear weapons, the terror which they hold for humankind and the threat which they pose to life on earth” [preamble, emphasis added.]

  6. Butterzopf says:

    For a detailed discussion, see Rothwell (2011) which concludes ‘Australia is obligated under the Treaty of Rarotonga to not provide India with nuclear materials
    until such time as India has concluded a FULLSCOPE safeguards agreement as per Article III.1 of the NPT’.

    http://www.icanw.org/wp-content/uploads/2013/05/ICANWLegal-OpinionFINAL-1.pdf