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The African NWFZ, The African Commission on Nuclear Energy, and the Protection of the Environment

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Nuclear Non-Proliferation in International Law - Volume IV

Abstract

This chapter offers an extended overview of the African Nuclear-Weapon-Free Zone, which was created in 1999 when the Treaty of Pelindaba came into force. The author traces the history of the ANWFZ, examines the salient features of the Pelindaba Treaty, and surveys its institutional arm, the African Commission on Nuclear Energy, including its involvement in the dispute settlement procedure. The author also examines the link between the dumping of nuclear and hazardous wastes in Africa and the broader issue of environmental protection in the context of the Pelindaba Treaty and in the relevant African multilateral treaties, namely the Bamako Convention (concluded in 1991) and the Revised African Convention on the Conservation of Nature (2003).

Attorney at Law, Athens, Greece; Member of the ILA Committee on Nuclear Weapons, Non-Proliferation and Contemporary International Law.

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Notes

  1. 1.

    In July 2002, the OAU ceased operating and it was succeeded by the African Union (AU). See Magliveras and Naldi 2002, 415. Currently, there are 55 AU Member States.

  2. 2.

    For the OAU origins and evolution, see Magliveras and Naldi 2004.

  3. 3.

    OAU Doc. AHG/Res. 11 (I), 21 July 1964; UNGA, Official Records, Twentieth Session, Annexes, Agenda item 105, Document A/5975. For the texts of OAU/AU legal instruments, see www.au.int.

  4. 4.

    African Nuclear-Weapon-Free-Zone Treaty (11 April 1996), entered into force 15 July 2009, [1996] 35 ILM 702.

  5. 5.

    Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (30 January 1991), entered into force 22 April 1998, 2101 UNTS 177, [1991] 30 ILM 773. For analysis, Naldi 2000.

  6. 6.

    Revised African Convention on the Conservation of Nature and Natural Resources (11 July 2003), entered into force 7 March 2017; Assembly, Decision on the revised 1968 African Convention (Algiers Convention) on the Conservation of Nature and Natural Resources, AU Doc. Assembly/AU/Dec. 9 (II), 12 July 2003. Currently, it has received 16 ratifications.

  7. 7.

    UNGA Resolution 1652(XVI), Consideration of Africa as a Denuclearized Zone, 24 November 1961.

  8. 8.

    See UNGA Resolutions 1629(XVI), 27 October 1961, 1649(XVI), 8 November 1961, 1653(XVI), 24 November 1961, 1664(XVI), 4 December 1961, and 1665(XVI), 4 December 1961.

  9. 9.

    479 UNTS 39, [1963] 2 ILM 766.

  10. 10.

    OAU Doc. CIAS/PLEN.2/REV.2 D, 25 May 1963.

  11. 11.

    See further, OAU Council of Ministers, Resolution on the Use of Nuclear Science for Peace and Development in Africa, OAU Doc. CM/Res. 1042 (XLIV), 26 July 1986.

  12. 12.

    In the Vienna Declaration and Programme of Action 1993, Part I, para 11, [1993] 32 ILM 1661, the international community recognized ‘that the illicit dumping of toxic and dangerous substances and wastes potentially constitutes a serious threat to the human rights to life and health of everyone’ (emphasis added).

  13. 13.

    See OAU Council of Ministers, Resolution on Dumping of Nuclear and Industrial Waste in Africa, OAU Doc. CM/Res. 1153 (XLVIII), 23 May 1988, reproduced in [1989] 28 ILM 567. See further UNGA Resolution 43/75, Part Q, Prohibition of the dumping of radioactive wastes for hostile purposes, and Part T, Dumping of radioactive wastes, 7 December 1988.

  14. 14.

    Supra note 4.

  15. 15.

    See OAU Council of Ministers, Resolution on Denuclearization, OAU Doc. CM/Res. 28 (II), 29 February 1964.

  16. 16.

    Generally, von Wielligh and von Wielligh-Steyn 2015; Purkitt and Burgess 2005.

  17. 17.

    See Council of Ministers, Resolution on the Denuclearization of Africa, OAU Doc. CM/Res. 718 (XXXIII) Rev. 1, 20 July 1979.

  18. 18.

    It is interesting how the OAU referred to Israel by name while the UN referred to it as ‘a certain State commonly known for its collaboration with South Africa’, see UNGA Resolution 46/34 A, Nuclear capability of South Africa, 6 December 1991.

  19. 19.

    For more information, see https://www.globalsecurity.org/wmd/world/rsa/pelindaba.htm.

  20. 20.

    Supra note 15.

  21. 21.

    See Council of Ministers, Resolution on the Implementation of the Resolution on the Denuclearization of Africa, OAU Doc. CM/Res.1342 (LIV), 1 June 1991.

  22. 22.

    See Council of Ministers, Resolution on the Implementation of the Resolution on the Denuclearization of Africa, CM/Res.1395 (LVI), 28 June 1992.

  23. 23.

    See Council of Ministers, Resolution on the Situation in the Middle East, OAU Doc. CM/Res.1491 (LIX), 4 February 1994; Resolution on the Middle East, OAU Doc. CM/Res. 1568 (LXI), 27 January 1995; Resolution on the Situation in the Middle East, OAU Doc. CM/Res. 1625 (LXIII), 28 February 1996.

  24. 24.

    For the negotiating and drafting history, Adeniji 2002 and, from the perspective of the RSA, van Wyk 2012.

  25. 25.

    See Council of Ministers, Resolution on the Implementation of the Treaty Declaring Africa a Nuclear-Weapon-Free Zone, OAU Doc. CM/Res. 1592 (LXII), 23 June 1995; UN Doc. A/50/647, Annex I.

  26. 26.

    The Session lasted from 26 to 28 June 1995; the adoption of the Treaty was not recorded in an Assembly decision and the first time noted was in the Yaoundé Declaration (Africa: Preparing for the 21st Century) adopted in July 1996, see OAU Doc. AHG/Decl. 3 (XXXII), para 26.

  27. 27.

    See UNGA, Final Text of a Treaty on an African Nuclear-Weapon-Free Zone : Note by the Secretary-General, UN Doc. A/50/426, 13 September 1995.

  28. 28.

    See, inter alia, UNGA Resolution 46/34 B, Implementation of the Declaration on the Denuclearization of Africa, 6 December 1991; Resolution 48/86, Establishment of an African nuclear-weapon-free zone, 16 December 1993; Resolution 49/138, Establishment of an African nuclear-weapon-free zone, 19 December 1994.

  29. 29.

    The same words were used in the Statement by the President of the Security Council, UN Doc. S/PRST/1996/17, 12 April 1996.

  30. 30.

    See UNGA, Resolution 50/78, Final text of the African Nuclear-Weapon-Free Zone Treaty (the Pelindaba Treaty) , 12 December 1995. The draft resolution was introduced by the RSA on behalf of the UN Group of African states, UN Doc. A/C.1/50/L.23, 6 November 1995.

  31. 31.

    It is true that, while most OAU/AU treaties require ratification by only 15 states to enter into force, the Pelindaba Treaty required 28 ratifications.

  32. 32.

    On the contrary, the Bangkok Treaty on the Southeast Asia NWFZ came into force within 15 months of signing and the Rarotonga Treaty on the South Pacific NFZ within 16 months.

  33. 33.

    South Sudan is the only AU Member State, which has taken no action; for the signing/ratification table as of 15 June 2017, see https://au.int/sites/default/files/treaties/7777-sl-the_african_nuclear-weapon-free_zone_treaty_the_treaty_of_pelindaba_3.pdf.

  34. 34.

    In May 2011, the Obama administration submitted it and Protocol I to the Senate for Senate advice and consent to ratification, https://www.gpo.gov/fdsys/pkg/CDOC-112tdoc3/pdf/CDOC-112tdoc3.pdf, but until now it is still pending, https://www.state.gov/s/l/treaty/pending/. See also US Department of State n.d.

  35. 35.

    See UNGA, Resolution 51/53, African Nuclear-Weapon-Free Zone Treaty (Treaty of Pelindaba), 10 December 1996. Although not named, these territories are understood to be the Canary Islands and the coastal cities of Ceuta and Melilla in Morocco, which Spain has asserted that they form part of European Union territory. For the Spanish position, see UNGA, Official Records, Sixtieth session, First Committee, 20th meeting, UN Doc. A/C.1/60/PV.20, 26 October 2005, pp. 3–5.

  36. 36.

    See Article 18 in conjunction with Article 2(1) Pelindaba Treaty. Annexes form an integral part of the Treaty, Article 22.

  37. 37.

    Ibid., Article 16.

  38. 38.

    Adopted 22 May 1969, entered into force 27 January 1980, 1155 UNTS 331.

  39. 39.

    At the time, African states re-affirmed the goal of general and comprehensive disarmament under strict and effective international control in the Algiers Declaration, OAU Doc. AHG/Decl. 1 (XXXV), 14 July 1999. See further, OAU/AU 50th Anniversary Solemn Declaration, AU Doc. Assembly/AU/Decl. 3 (XXI), 25 May 2013, point E(iv).

  40. 40.

    The Regional Cooperative Agreement for Research, Development and Training Related to Nuclear Science and Technology for Asia and the Pacific (RCA) was first established in 1972. Since then, it has continuously been extended, the last expired on 11 June 2017. From that date, the new 2017 RCA has been in force: it was adopted on 18 May 2016 and, unlike the previous instruments, it shall be of unlimited duration, see Article XIII(2) RCA 2017, INFCIRC/919, 24 April 2017, https://www.iaea.org/sites/default/files/publications/documents/infcircs/2017/infcirc919.pdf.

  41. 41.

    The Regional Cooperation Agreement for the Promotion of Nuclear Science and Technology in Latin America and the Caribbean (ARCAL) was established in 1984; the last Extension Agreement, INFCIRC/582/Add.4, 7 September 2015, which came into force on 5 September 2015, ensures that ARCAL will run until 4 September 2020, https://www.iaea.org/sites/default/files/infcirc582a4.pdf.

  42. 42.

    See IAEA INFCIRC/377/Add.1, June 1990. For the text see https://www.iaea.org/sites/default/files/infcirc377.pdf.

  43. 43.

    See http://www.iaea.org/Publications/Documents/Conventions/afra_status.pdf.

  44. 44.

    See IAEA INFCIRC/377/Add.20, 15 April 2015, https://www.iaea.org/sites/default/files/infcirc377a20.pdf.

  45. 45.

    Signed in Pretoria 18 July 2013, not yet into force, O.J. L 204/3, 31 July 2013. See Kilb 2016, 158.

  46. 46.

    Considering that the IAEA Director General 2017, 8 et seq., has predicted that Africa will be one of the only two regions where nuclear power generating capacity will increase while it will significantly decline in North America and in Europe, such agreements should be expected.

  47. 47.

    Signed 1 July 1968, entered into force 5 March 1970, 729 UNTS 161. Pursuant to Article III NPT, these contracting parties are required to conclude Comprehensive Safeguards Agreements (CSA) with the IAEA; see Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons 2015.

  48. 48.

    See Drobysz 2016, 252.

  49. 49.

    Convention on Physical Protection of Nuclear Material, signed 3 March 1980, entered into force on 8 February 1987, 1456 UNTS 125.

  50. 50.

    See INFCIRC/274/Rev.1?Mod/1, 9 May 2016. The amendment entered into force on 8 April 2016. For the status of ratifications as of 6 December 2016, https://www.iaea.org/Publications/Documents/Conventions/cppnm_status.pdf.

  51. 51.

    INFCIRC/225/REVISION 5, IAEA Nuclear Security Series No. 13, Vienna, January 2011. The Recommendations were first published in 1972 and were revised in 1977, 1989, 1993 and 1998.

  52. 52.

    See IAEA, Nuclear Security Plan 2014–2017, Report by the Director General, GOV/2013/42-GC(57)/19, 2 August 2013, referring to the Nuclear Security Fundamentals, which concerned the establishment of internationally accepted nuclear security guidance to be made available to those states willing to use it as a means for strengthening their nuclear security, https://www.iaea.org/About/Policy/GC/GC57/GC57Documents/English/gc57-19_en.pdf. Reference should also be made to the International Physical Protection Advisory Service (IPPAS), which was created by the IAEA to assist states in strengthening domestic nuclear security regimes. IPPAS provides peer advice on implementing international instruments, including the IAEA guidance on the protection of nuclear and other radioactive material and facilities.

  53. 53.

    Such reactors operate in Algeria, Democratic Republic of the Congo, Egypt, Ghana, Libya, Morocco, Nigeria, and South Africa, IAEA 2011.

  54. 54.

    Algeria, Burkina Faso, Cameroon, Ethiopia, Kenya, Libya, Mali, Mauritius, Senegal, South Africa, Togo and Tunisia. It was left to the members themselves to nominate their nationals representatives, who are called Commissioners and have to possess the necessary qualifications and expertise.

  55. 55.

    See First Conference of State Parties to the African‐Nuclear Weapons‐Free Zone Treaty, 4 November 2010, Conclusions, http://www.peaceau.org/uploads/conclusions-1st-conference-of-states-parties-treaty-of-pelindaba-en.pdf.

  56. 56.

    In May 2011, AFCONE decided to follow the AU scale of assessment for the years 2011–2013, which had been adopted by AU Executive Council on 25 July 2010, see AU Doc. EX.CL/Dec. 582 (XVII).

  57. 57.

    See Assembly, Decision on the Report of the Peace and Security Council on its Activities and the State of Peace and Security in Africa, AU Doc. Assembly/AU/Dec. 369 (XVII), 1 July 2011, para 31.

  58. 58.

    Algeria, Cameroon, Ethiopia, Kenya, Libya, Mali, Mauritius, Senegal, South Africa, Togo, Tunisia and Zimbabwe. It cannot go unnoticed that, with the exception of Burkina Faso and Zimbabwe, the other members are the same with those elected in 2010. Note that, according to Annex III(1), equitable geographical distribution and the inclusion of states with advanced nuclear programmes are the two conditions for selecting the 12 members.

  59. 59.

    So far, only the Third Ordinary Session (11–15 November 2013) has taken place in the RSA.

  60. 60.

    AU Directorate of Information and Communication, Press Release Nº XX/2015, 4 November 2015, http://www.peaceau.org/uploads/pr-au-south-africa-sign-afcone-host-agreement.pdf.

  61. 61.

    See Sixth Ordinary Session of the African Commission on Nuclear Energy, Addis Ababa, Ethiopia, Welcoming Remarks by Mr. El Ghassim Wane, Director of the Peace and Security Department, 2 December 2015, http://www.peaceau.org/uploads/welcoming-remarks-afcone-6.pdf.

  62. 62.

    Presumably the reference to ‘panel’ excludes settlement by a single arbitrator, while the recourse to the ICJ is an example of the so-called promissory clause. The wording of Article 15 would suggest that disputes arising between contracting parties and the AFCONE are not covered.

  63. 63.

    Annex IV envisages that AFCONE may also establish its own inspection mechanism but presumably this can only be attempted when it has acquired the necessary know-how, skills, and personnel, and has secured uninterrupted funding.

  64. 64.

    A combined reading of Articles 34 and 35 UN Charter would suggest that States do not need to show the existence of a dispute before informing the Security Council, it is sufficient that the situation referred to might lead to friction or give rise to a dispute.

  65. 65.

    Currently, the Bamako Convention has only 27 Contracting Parties and is still being ratified (Angola was last to do so in October 2017).

  66. 66.

    The original Convention was signed 15 September 1968, entered into force 16 June 1969, 1001 UNTS 4. It has not been very popular as it has only attracted 32 ratifications. It is of some interest to note that while the Revised Convention had already been opened for signature, several AU Member States continued to sign or ratify the original Convention (Guinea was the last to ratify it in May 2012).

  67. 67.

    See the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, signed 22 March 1989, entered into force 5 May 1992, 1673 UNTS 57, [1989] 28 ILM 657 (Basel Convention). All African States are Contracting Parties. Note that Article 11(1) allows Contracting Parties to conclude regional agreements with other Contracting Parties or non-Parties provided that they do not derogate from the Convention. The Bamako Convention should be considered such a regional agreement. Generally, Tladi 2000, 211–212.

  68. 68.

    On the African multilateral instruments protecting the environment and specifically the Bamako Convention, see Viljoen 2012, 268–272.

  69. 69.

    Banning importation also includes banning the transit of hazardous wastes, see the Bamako Convention’s Preamble. See further Article 4(1) Basel Convention. There are various reasons why Africa became a major dumping ground for hazardous (including radioactive) wastes, Eze 1997, 209–210, and Cheyne 1994.

  70. 70.

    This is one way of preventing the disposal of wastes, the other way is for the countries of origin not to authorise their shipment to Africa, see Council Directive 2006/117/Euratom of 20 November 2006 on the supervision and control of shipments of radioactive waste and spent fuel, OJ L 337, 5.12.2006, p. 21, and Commission Recommendation 2008/956/Euratom of 4 December 2008 on criteria for the export of radioactive waste and spent fuel to third countries, OJ L 338, 17.12.2008, p. 69. See further the Commission Report on the implementation by Member States of Directive 2006/117/Euratom, COM (2013) 240 final.

  71. 71.

    See further supra note 10 and Article 4(3) Basel Convention.

  72. 72.

    See Protocol on the Statute of the African Court of Justice and Human Rights, signed 1 July 2008, not yet in force. The ACJHR emanates from merging two separate judicial organs: the African Court of Justice, which is the judicial organ envisaged in the Constitutive Act of the African Union (not yet in operation), and the African Court on Human and Peoples’ Rights, which is the continental human rights court operating in the context of the African Charter on Human and Peoples’ Rights. Generally, see Naldi and Magliveras 2012.

  73. 73.

    See Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, signed 27 June 2014, not yet in force (2014 Statute). For an overview of the ACJHR after the 2014 Statute, Magliveras and Naldi 2018.

  74. 74.

    See Article 28L of the 2014 Statute, and Naldi and Magliveras 2015, 326.

  75. 75.

    See Kanamugire 2017.

  76. 76.

    See Foy 2015.

  77. 77.

    Suffice to mention that, 15 years after its inauguration, not all AU organs are in operation, including its judicial body, see supra note 70.

  78. 78.

    The question of transferring treaties promptly and correctly into domestic legal systems is a matter of concern in the continent, see e.g. Organisation for the Prohibition of Chemical Weapons 2017.

  79. 79.

    There are currently eights RECs in operation. While they are principally involved in economic integration, most of them have expanded their mandate in the areas of peace, security and stability, human rights protection, and cooperation in scientific and technical fields. Generally, see NEPAD Planning and Coordinating Agency 2015.

  80. 80.

    It was set up as an advisory organ of the AU. Its Statute was adopted in February 2009, by virtue of an Assembly Decision, see AU Doc. Assembly/AU/Dec. 209 (XII). Article 4 of the Statute lays down its objectives, which include to propose model regulations, to conduct studies on legal matters, and to assist in the revision of existing treaties.

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Magliveras, K.D. (2019). The African NWFZ, The African Commission on Nuclear Energy, and the Protection of the Environment. In: Black-Branch, J., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume IV. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-267-5_9

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