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The Conference on the Establishment of a Middle East Zone Free of Nuclear Weapons and Other Weapons of Mass Destruction: Too Little, Too Late?

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Nuclear Non-Proliferation in International Law - Volume VI

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Abstract

In November 2019, one of the international community’s longest unaccomplished projects was initiated by holding, under UN auspices and at the UN headquarters, the first session of the conference for establishing a Middle East zone free of nuclear weapons and other weapons of mass destruction. It is too early to predict whether the next sessions of the conference, which was convened pursuant to UNGA Decision 73/546 of 22 December 2018, will be successful and will secure the desired result. The purpose of this chapter is to give an overview of the most important previous attempts to establish such a zone in the ever turbulent Middle East; to analyse the relevant UN instruments leading up to the November 2019 conference; to offer a summary of what transpired during the first session of the conference and explain the various challenges and complications surrounding its evolution; and, finally, be pragmatic about the added value of a legally binding treaty creating such a zone in the Middle East, in view of the Treaty on the Prohibition of Nuclear Weapons and the other multilateral treaties on biological and chemical weapons.

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

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Notes

  1. 1.

    UNGA Decision 73/546, Convening a conference on the establishment of a Middle East zone free of nuclear weapons and other weapons of mass destruction (22 December 2018).

  2. 2.

    See Conference on the Establishment of a Middle East Zone Free of Nuclear Weapons and Other Weapons of Mass Destruction, List of Participants, UN Doc. A/CONF.236/INF/3, 22 November 2019, https://undocs.org/en/A/CONF.236/INF/3.

  3. 3.

    Treaty on the Non-Proliferation of Nuclear Weapons (1 July 1968), 729 UNTS 161.

  4. 4.

    See United Nations, Meetings Coverage, ‘Delegates Call for Long-Overdue Creation of Nuclear-Weapon-free Middle East, as Inaugural Conference Opens at Headquarters’, UN Doc. DC/3818, 18 November 2019.

  5. 5.

    See, inter alia, United Nations, Report of the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic on the alleged use of chemical weapons in the Ghouta area of Damascus on 21 August 2013, Note by the Secretary-General, UN Doc. A/67/997–S/2013/553, 16 September 2013. See further the various Reports that the Independent International Commission of Inquiry on the Syrian Arab Republic regularly submits to the UN Human Rights Council (HRC); for the last two Reports, see UN Doc. A/HRC/43/57, 28 January 2020 and UN Doc. A/HRC/44/61, 2 July 2020.

  6. 6.

    Supra note 5.

  7. 7.

    Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (14 February 1967), 634 UNTS 326.

  8. 8.

    South Pacific Nuclear Free Zone Treaty (6 August 1985), 1445 UNTS 177.

  9. 9.

    Treaty on the South-East Asia Nuclear Weapon Free Zone (15 December 1995), 1981 UNTS 129.

  10. 10.

    African Nuclear-Weapon-Free Zone Treaty (11 April 1996), 35 ILM (1996), 698.

  11. 11.

    Treaty on a Nuclear-Weapon-Free Zone in Central Asia (8 September 2006), http://www.iaea.org/newscenter/news/2009/canwfztreaty.html.

  12. 12.

    Treaty on the Prohibition of Nuclear Weapons (7 July 2017), 729 UNTS 161. There are presently 40 out of the required 50 Contracting Parties for the Treaty to come into force (another 42 States have signed it).

  13. 13.

    For developments during the last two decades of the 20th century, see Karen 1988; Shaker 1995; Feldman 1997.

  14. 14.

    Cited in Baklitsky 2013, 4.

  15. 15.

    UNGA Res. 3263(XXIX), ‘Establishment of a nuclear-weapon-free zone in the region of the Middle East’, 9 December 1974. It took cognizance, on the one hand, of a relevant LAS Council decision, which had been adopted during its 62nd Session (September 1974) recommending the creation of such a zone, and, on the other hand, a letter to the same effect which had been sent by the Emperor of Iran on 16 September 1974, UN Doc. A/9693/Add.3.

  16. 16.

    Note that the concept of NWFZs is enshrined in Article VII of the NPT, which stipulates that the NPT does not bar the right of a group of States to enter into regional treaties to ensure that there will be no nuclear weapons in their territory. Cf. the Declaration for the Conference of Nuclear-Weapon-Free Zones, adopted in 2005 in Mexico City by the first conference of the contracting States to the treaties establishing NWFZs and by Mongolia, CZLAN/CONF/5, https://media.nti.org/documents/declaration_conference_nwfz.pdf, recognizing the right of groups of States to conclude regional nuclear-weapon-free treaties by virtue of Article VII of the NPT. One wonders why the Declaration had to subject to Article VII the sovereign right of States to conclude alongside like-minded States any treaty they wish. Arguably, the ability of States to establish NWFZs should be separate and independent from Article VII: of course, if the States establishing such a zone are also NPT contracting parties, the former should follow the rules of the latter.

  17. 17.

    See e.g. UNGA, Final Document of the Tenth Special Session of the General Assembly, UN Doc. S-10/2, 30 June 1978, para 63(d), where the establishment of a MENWFZ was regarded as ‘greatly enhance[ing] international peace and security’.

  18. 18.

    See the Preamble and para 14 of SC Res. 687 (1991). See further the Preamble of SC Res. 1284 (1999), which created the United Nations Monitoring, Verification and Inspections Commission (UNMOVIC) in Iraq to replace the previous weapon inspection entity (UNSCOM): ‘recalling the goal of establishing in the Middle East a zone free from weapons of mass destruction and all missiles for their delivery’, and the Preamble of SC Res. 1803 (2008): ‘[a] solution to the Iranian nuclear issue would contribute to … realizing the objective of a Middle East free of weapons of mass destruction’.

  19. 19.

    UNGA, Report of the Secretary-General, Establishment of a Nuclear-Weapon-Free Zone in the Region of the Middle East, Study on Effective and Verifiable Measures which Would Facilitate the Establishment of a Nuclear Weapons Free Zone in the Middle East, UN Doc. A/45/435, 10 October 1990, https://unispal.un.org/UNISPAL.NSF/0/61ED0442418A2E9C052567D0005C1B48.

  20. 20.

    UNGA Res. 45/52, Establishment of a nuclear-weapon-free zone in the region of the Middle East, 4 December 1990, paras 8–10.

  21. 21.

    See UNGA Res. 43/65 of 7 December 1988.

  22. 22.

    See IAEA General Conference, Resolution GC(XXXV)Res/571 (1991), para 2. Generally, see Shaker 1995.

  23. 23.

    See IAEA Doc. GC(XXXVI)/1019, 16 September 1992, paras 11–12.

  24. 24.

    See IAEA Doc. GOV/2682-GC(XXXVII)/1072, para 3.

  25. 25.

    See Prawitz and Leonardat 1996.

  26. 26.

    1995 Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, New York, 17 April–12 May 1995, https://www.un.org/disarmament/wmd/nuclear/npt1995/, NPT/CONF.1995/32 (Part I), Annex, https://unoda-web.s3-accelerate.amazonaws.com/wp-content/uploads/assets/WMD/Nuclear/1995-NPT/pdf/Resolution_MiddleEast.pdf. Note that the 1995 NPT Review Conference had called for the establishment of a verifiable Middle East zone free of WMD (namely, nuclear, chemical and biological weapons) as well as of their delivery systems. Thus, it was not meant to be solely a NWFZ but a much-expanded Weapons of Mass Destruction-Free Zone (WMDFZ) in the Middle East, a proposal which had first been advocated by Egypt in 1990, see Conference on Disarmament, Doc. CD/989, 20 April 1990. Since then, the intention has been to pursue both projects in parallel.

  27. 27.

    See, e.g. UNGA Res. 54/57, 1 December 1999 and Res. 55/36, 20 November 2000, both titled ‘Risk of Nuclear Proliferation in the Middle East’.

  28. 28.

    See Blix 1995, 5.

  29. 29.

    The Conference documents are reproduced in 21:2 Journal of Palestine Studies (1992), 117–149. The last time the ACRS working group met was in September 1995. Generally, see Spiegel and Pervin 1995.

  30. 30.

    UNGA, 72nd Session, First Committee, General Debate on all disarmament and international security agenda items, Statement by Ambassador Alon Roth-Snir, New York, 3 October 2017, http://reachingcriticalwill.org/images/documents/Disarmament-fora/1com/1com17/statements/3Oct_Israel.pdf.

  31. 31.

    LAS, Written Statement presented to the 14th Ministerial Council Meeting of the Organization for Security and Cooperation in Europe, Brussels, 4–5 December 2006, MC.DEL/9/06, https://www.osce.org/mc/22809?download=true. For a more recent expression of opinion, see Al-Faisal and Al-Badi 2014.

  32. 32.

    UN Disarmament Commission, Substantive Session, New York, 17 April 2018, Agenda item 4, Recommendations for achieving the objective of nuclear disarmament and non-proliferation of nuclear weapons, Working paper submitted by the States members of the League of Arab States, UN Doc. A/CN.10/2018/WG.I/CRP.2, para 17; for the Substantive Session 2017, see UN Doc. A/CN.10/2017/WG.I/WP.1, para 17. The Disarmament Commission was established under UNGA Resolution 502 (VI) of 11 January 1952 but came under the purview of the UNSC.

  33. 33.

    See 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, Vol. I, New York 2010, NPT/CONF.2010/50 (Vol. I), Part I, Review of the operation of the Treaty, as provided for in its article VIII (3), taking into account the decisions and the resolution adopted by the 1995 Review and Extension Conference and the Final Document of the 2000 Review Conference, paras 97 et seq., https://documents-dds-ny.un.org/doc/UNDOC/GEN/N10/390/21/PDF/N1039021.pdf?OpenElement).

  34. 34.

    Supra note 26.

  35. 35.

    See Cirincione et al. 2005, 267.

  36. 36.

    The Conference had taken place in Luanda, Angola, from 4 to 7 September 1985, see Letter dated 5 November 1985 from the Permanent Representative of Angola to the United Nations addressed to the Secretary-General, Annex I, paras 145 and 150, https://www.un.org/unispal/document/auto-insert-178145/.

  37. 37.

    See 17th Summit of Heads of State and Government of the Non-Aligned Movement, Island of Margarita, Venezuela, 17–18 September 2016, Final Document, NAM2016/CoB/DOC.1. Corr.1, para 196.

  38. 38.

    See General Statement on behalf of the Group of Member States of the Non-Aligned Movement Parties to the Treaty on the Non-Proliferation of Nuclear Weapons by H.E. Mr. Jorge Valero, Ambassador, Permanent Representative of the Bolivarian Republic of Venezuela to the United Nations Office in Geneva at the Second Session of the Preparatory Committee for the 2020 Review Conference of the Treaty on the Non-Proliferation on Nuclear Weapons General Debate, Geneva, 23 April 2018, paras 20–25. Although NAM could be seen as a Cold War relic of no real significance in our epoch, it should not go unnoticed that, if they act in unison, the 120 participating states are capable of passing or blocking virtually any decision in global organisations and fora.

  39. 39.

    See 2010 NPT Review Conference Final Document, NPT/CONF.2010/50, Vol. I, Conclusions and recommendations for follow-on actions, New York, 2010, Part IV, pp. 29 et seq., https://documents-dds-ny.un.org/doc/UNDOC/GEN/N10/390/21/PDF/N1039021.pdf?OpenElement. Contracting Parties also expressed their concern because no progress had been made in implementing the 1995 Resolution, while ‘a majority of States parties believe [that the lack of progress] seriously undermines the [NPT] and represents a threat to regional and international peace and security’, ibid., para 116.

  40. 40.

    See Saghafi-Ameri 2013, 21.

  41. 41.

    See UNGA, Letters received from Member States confirming support for declaring the Middle East a region free from weapons of mass destruction, including nuclear, chemical and biological weapons—Note by the Secretary-General, UN Doc. A/68/781, 6 March 2014. Note that the expression of such support was first mentioned in the Final Document of the UNGA Tenth Special Session, supra note 17; it has been repeated until today, see e.g. UNGA Res. 73/28, infra note 51, para 5, and Res. 74/30, infra note 66, para 5.

  42. 42.

    See Preparatory Committee for the 2015 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Working paper submitted by Tunisia on behalf of the States members of the League of Arab States, NPT/CONF.2015/PC.II/WP.34, 19 April 2013, https://undocs.org/NPT/CONF.2015/PC.II/WP.34.

  43. 43.

    2015 NPT Review Conference, Draft Final Document, Vol. I, NPT/CONF.2015/R.3, 21 May 2015, para 169, http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/npt/revcon2015/documents/DraftFinalDocument.pdf. Note that the ‘region’ comprises the LAS Member States (including the State of Palestine), Iran, and Israel.

  44. 44.

    2015 NPT Review Conference, Final Document, Part I, Organization and work of the Conference, para 29, https://www.un.org/en/conf/npt/2015/.

  45. 45.

    See Rauf 2017, 205–206.

  46. 46.

    UNGA, Report of the Disarmament Commission, Annex I: Establishment of nuclear-weapon-free zones on the basis of arrangements freely arrived at among the States of the region concerned, UN Doc. A/54/42, 1999, p. 7, https://www.un.org/disarmament/institutions/disarmament-commission/.

  47. 47.

    Note that these principles should be regarded as applying mutatis mutandis to WMD-free zones as well.

  48. 48.

    See supra note 10 and UNGA Res. 50/78. The Treaty entered into force on 15 July 2009. Its Preamble (para 8) confirms the conviction that the establishment of a MENWFZ would enhance the security of States Parties to the African NWFZ. See also Magliveras 2019.

  49. 49.

    Securing our Common Future—An Agenda for Disarmament, Office for Disarmament Affairs, New York, 2018, 23.

  50. 50.

    Supra note 1.

  51. 51.

    The legal basis for the UNGA holding this conference emanates from its mandate and powers laid down in Articles 10, 11 and 13 of the UN Charter.

  52. 52.

    UN Doc. A/C.1/73/L.22/Rev.1. As it was submitted on behalf of the entire LAS membership, it was also considered to have been submitted by the State of Palestine in its capacity as LAS Member State. Palestine acceded to the NPT in 2015.

  53. 53.

    Israel, Federated States of Micronesia, United States of America.

  54. 54.

    All EU Member States abstained.

  55. 55.

    The recorded vote was 88 in favour to 4 against (Israel, Liberia, Micronesia, USA) with 75 abstentions, see UNGA, Resolutions and Decisions adopted by the General Assembly during its seventy-third session, Volume II, Decisions, 18 September–22 December 2018, UN Doc. A/73/49 (Vol. II) (2019).

  56. 56.

    Both adopted on 5 December 2018. There was a fourth resolution that might be considered of relevance: Resolution 73/85 of 5 December 2019, which dealt with the strengthening of security and cooperation in the Mediterranean region, another topic that has been discussed in consecutive UNGA sessions. However, as the Resolution does not specifically cover the Middle East (it also covers, for example, North Africa), it is not examined.

  57. 57.

    This agenda item had been included in the 73rd Session’s provisional agenda pursuant to UNGA Resolution 72/67 of 4 December 2017.

  58. 58.

    UN Doc. A/C.1/73/L.2.

  59. 59.

    Supra, accompanying text to note 50.

  60. 60.

    UN Doc. A/73/513, 19 November 2018.

  61. 61.

    UN Doc. A/520/Rev.18, 21 February 2017.

  62. 62.

    Permanent Mission of Switzerland to the United Nations 2017, 52.

  63. 63.

    But see Ministry of Foreign Affairs and Trade of New Zealand 2019, 12, which only refers to decisions.

  64. 64.

    E.g. UNGA Res. 48/26 of 3 December 1993 which established a working group to consider the question of increasing the Security Council’s membership and other such matters. Its deliberations have been carried on from one UNGA Regular Session to the next. In 2017, it was on the basis of an oral UNGA decision that they were continued during the 72nd Session, see Introductory remarks by Peter Thomson, President of the UN General Assembly, at GA Plenary for the consideration and adoption of the Oral decision on IGN71 on Security Council reform, 19 July 2017, and UN Press Release GA/11931, 19 July 2017, https://www.un.org/press/en/2017/ga11931.doc.htm.

  65. 65.

    However, there are some connecting points between the two legal orders; for example, Article X(1) of the NPT obliges contracting parties, which wish to withdraw, not only to give notice to the Security Council but also to specify to the Council which are the extraordinary events that jeopardize their supreme interests and justify withdrawal. Considering that, under Article IX(1), the NPT is open to signature by ‘all States’ and not only UN Member States (Palestine acceded in February 2015), the linkage to Security Council is of some interest.

  66. 66.

    Arguably, the use of the word ‘advancing’ and not e.g. ‘establishing’ or ‘creating’ already signified an unwillingness on the U.S. side for treaty negotiations to commence in earnest.

  67. 67.

    See Preparatory Committee for the 2020 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Establishing Regional Conditions Conducive to a Middle East Free of Weapons of Mass Destruction and Delivery Systems, Working paper submitted by the United States of America, NPT/CONF.2020/PC.II/WP.33, 19 April 2018, pp. 3 et seq.

  68. 68.

    See Ford 2019, 5.

  69. 69.

    See UNGA 73rd Session, Convening a conference on the establishment of a Middle East zone free of nuclear weapons and other weapons of mass destruction, Programme budget implications of draft decision A/C.1/73/L.22/Rev.1, Report of the Advisory Committee on Administrative and Budgetary Questions, UN Doc. A/73/640, 11 December 2018.

  70. 70.

    See European Union, Council Decision (CFSP) 2019/938 of 6 June 2019 in support of a process of confidence-building leading to the establishment of a zone free of nuclear weapons and all other weapons of mass destruction on the Middle East, OJ L 149, 7.6.2019, p. 63.

  71. 71.

    See UNGA Res. 74/75, The risk of nuclear proliferation in the Middle East, and UNGA Res. 74/30, Establishment of a nuclear-weapon-free zone in the region of the Middle East, both adopted on 12 December 2019.

  72. 72.

    See United Nations, Meetings Coverage, ‘Despite Opposing Views on Middle East Nuclear-Weapon-Free Zone, First Committee Delegates Say ‘We Are in the Same Boat’, Must Join Forces to Reach Safe Shores’, UN Doc. GA/DIS/3637, 30 October 2019, https://www.un.org/press/en/2019/gadis3637.doc.htm.

  73. 73.

    See Conference on the Establishment of a Middle East Zone Free of Nuclear Weapons and Other Weapons of Mass Destruction, Report of the First Session, UN Doc. A/CONF.236/6, 22 November 2019, paras 13 and 16.

  74. 74.

    See ibid., Annex.

  75. 75.

    See J. Marcus, ‘Why Saudi Arabia and Iran are bitter rivals’, BBC News, 16 September 2019, https://www.bbc.com/news/world-middle-east-42008809.

  76. 76.

    Aspects of this hostility are revealed in the disputes brought before the International Court of Justice: see Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), lodged in June 2018 and currently pending; Appeal Relating to the Jurisdiction of the ICAO Council under Article II, Section 2, of the 1944 International Air Services Transit Agreement (Bahrain, Egypt and United Arab Emirates v. Qatar), General List No. 174, Judgment of 14 July 2020, and Appeal Relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar), General List No. 173, Judgment of 14 July 2020.

  77. 77.

    See UNODA, Treaty on the Prohibition of Nuclear Weapons, Status of the Treaty,

    http://disarmament.un.org/treaties/t/tpnw.

  78. 78.

    Comprehensive Nuclear-Test-Ban Treaty, adopted 10 September 1996, opened for signature 24 September 1996, not yet in force, C.N.429.2002.TREATIES-3 of 6 May 2002. Egypt signed it on 14 October 1996.

  79. 79.

    Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, adopted 3 September 1992, opened for signature 13 January 1993, entered into force 29 April 1997, 1975 UNTS 45.

  80. 80.

    Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, opened for signature 10 April 1972, entered into force 26 March 1975, 1015 UNTS 163. Egypt signed it on 10 April 1972.

  81. 81.

    See Bahgat 2007.

  82. 82.

    See Remarks by Egypt, High-Level Plenary Meeting to Commemorate and Promote the International Day for the Total Elimination of Nuclear Weapons, Tuesday 26 September 2017, 3, http://statements.unmeetings.org/media2/16152032/egypt.pdf.

  83. 83.

    See supra notes 53 and 66 and accompanying text.

  84. 84.

    Israel signed the Chemical Weapons Convention on the day it was opened for signature but has not ratified it and has taken no action as regards the Biological Weapons Convention and the TPNW.

  85. 85.

    See Article 4(6) of the Peace Treaty, at: http://www.kinghussein.gov.jo/peacetreaty.html.

  86. 86.

    See Israel-Jordan Common Agenda, 14 September 1993, para 3(2), at: https://mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/israel-jordan%20common%20agenda.aspx.

  87. 87.

    Statute of the International Atomic Energy Agency, concluded 26 October 1956, entered into force 29 July 1957, 276 UNTS 3.

  88. 88.

    See Res. 487(1981), 19 June 1981, para 5. See further UNGA Res. 59/106, 16 December 2004, which has also asked Israel to accede to NPT so as to realize the latter’s goal of universal adherence in the Middle East.

  89. 89.

    International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, I.C.J. Reports 1996, pp. 226, 267.

  90. 90.

    See Letter of the President-designate Ambassador Gustavo Zlauvinen, 27 March 2020, https://www.un.org/sites/un2.un.org/files/letter-from-the-president-designate-20-136nve.pdf.

  91. 91.

    Cf. IAEA General Conference, 63rd Regular Session, Application of IAEA safeguards in the Middle East, Resolution adopted on 19 September 2019, GC(63)/RES/13, https://www.iaea.org/sites/default/files/gc/gc63-res13.pdf.

  92. 92.

    UN Institute for Disarmament Research 2020.

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Magliveras, K.D. (2021). The Conference on the Establishment of a Middle East Zone Free of Nuclear Weapons and Other Weapons of Mass Destruction: Too Little, Too Late?. In: Black-Branch, J.L., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume VI. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-463-1_4

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  • DOI: https://doi.org/10.1007/978-94-6265-463-1_4

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  • Publisher Name: T.M.C. Asser Press, The Hague

  • Print ISBN: 978-94-6265-462-4

  • Online ISBN: 978-94-6265-463-1

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