Is India a non-nuclear weapon state under the Rarotonga Treaty?Posted: January 29, 2014
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.