U.S. GOVERNMENT PRINTING OFFICE

99–118 WASHINGTON : 

" ! SENATE 

112TH CONGRESS

1st Session 

TREATY DOC. 

2011

112–3 

PROTOCOLS I AND II TO THE AFRICAN 

NUCLEAR-WEAPON-FREE ZONE TREATY 

MESSAGE 

FROM

THE PRESIDENT OF THE UNITED STATES 

TRANSMITTING

PROTOCOLS I AND II TO THE AFRICAN NUCLEAR-WEAPON-FREE 

ZONE TREATY, SIGNED ON BEHALF OF THE UNITED STATES AT 

CAIRO, EGYPT, ON APRIL 11, 1996, INCLUDING A THIRD PROTOCOL RELATED TO THE TREATY 

MAY 2, 2011.—Treaty was read the first time, and together with the 

accompanying papers, referred to the Committee on Foreign Relations 

and ordered to be printed for the use of the Senate 


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LETTER OF TRANSMITTAL 

THE WHITE HOUSE, May 2, 2011. 

To the Senate of the United States: 

With a view to receiving the advice and consent of the Senate to 

ratification, I transmit herewith Protocols I and II to the African 

Nuclear-Weapon-Free Zone Treaty (‘‘the Treaty’’), signed on behalf 

of the United States at Cairo, Egypt, on April 11, 1996. I also 

transmit for the information of the Senate the Treaty to which 

these Protocols relate, a third Protocol to the Treaty, and the Department of State’s Overview of the Protocols, which includes a detailed article-by-article analysis of both the Protocols and the Treaty. 

I am convinced that it is in the best interest of the United States 

to ratify Protocols I and II to the Treaty. This step will strengthen 

our relations with our African friends and allies, enhance U.S. security by furthering our global nonproliferation and arms control 

objectives, demonstrate our commitment to the decisions taken at 

the 1995 Review and Extension Conference of the Parties to the 

Treaty on the Non-Proliferation of Nuclear Weapons, and contribute significantly to the realization of the African Nuclear-Weapon-Free Zone in all its aspects. As the Department of State’s Overview of the Protocols explains, entry into force of Protocols I and 

II for the United States would require no changes in U.S. law, policy, or practice. 

I recommend that the Senate give early and favorable consideration to Protocols I and II to the African Nuclear-Weapon-Free 

Zone Treaty, and give its advice and consent to their ratification, 

subject to the statements contained in the Department of State’s 

Overview of the Protocols. 

BARACK OBAMA. 

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LETTER OF SUBMITTAL 

DEPARTMENT OF STATE, 

Washington, August 16, 2010. 

THE PRESIDENT, 

The White House. 

THE PRESIDENT: I have the honor to submit to you, with a view 

to their transmittal to the Senate for advice and consent to ratification, subject to certain statements, Protocols I and II to the African 

Nuclear-Weapon-Free Zone Treaty (‘‘the Treaty’’), also known as 

the Treaty of Pelindaba, which were signed on behalf of the United 

States at Cairo, Egypt, on April 11, 1996. Also enclosed is an Overview of the Protocols, which includes a detailed article-by-article 

analysis of both the Protocols and the Treaty to which the Protocols 

relate. 

These Protocols are consistent with U.S. military practices and 

require no changes in U.S. military operations, strategy, or policy. 

Ratification of Protocols I and II by the United States would fully 

support U.S. nonproliferation policy and goals and demonstrate the 

seriousness of the U.S. commitment to the global nuclear nonproliferation regime. 

The Departments of Defense and Energy join in recommending 

that Protocols I and II of the Treaty be submitted to the Senate at 

an early date for its advice and consent to ratification, subject to 

the recommended statements set forth in the attached Overview of 

the Protocols. 

Respectfully submitted, 

HILLARY RODHAM CLINTON. 

Enclosure: As stated. 

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THE AFRICAN NUCLEAR-WEAPON-FREE ZONE TREATY AND

PROTOCOLS

OVERVIEW

Introduction 

The African Nuclear-Weapon-Free Zone Treaty (‘‘the Treaty’’), 

also known as the Treaty of Pelindaba, was the product of a 32- 

year effort seeking a nuclear weapon-free Africa. In 1964, at its 

first Summit in Cairo, Egypt, the Organization of African Unity 

(OAU) formally stated its desire for a Treaty ensuring the 

denuclearization of Africa. The United States has supported the 

denuclearization of Africa since the first United Nations General 

Assembly resolution on this issue in 1965 and played an active role 

in the formulation of the final text of the Treaty and its Protocols. 

The Treaty and Protocols were negotiated under the auspices of 

the OAU and the United Nations. The Treaty was adopted by the 

OAU at Pelindaba, South Africa, on June 2, 1995, at the site where 

the South African Government constructed its first nuclear device. 

It was opened for signature to the fifty-three states of Africa in 

Cairo, Egypt, on April 11, 1996. It entered into force on July 15, 

2009, when Burundi became the 28th State to deposit its instrument of ratification. The Protocols entered into force at the same 

time for those Protocol signatories that had deposited their instruments of ratification. Shortly thereafter Tunisia followed suit to 

bring the total number of Parties to 29. The Treaty refers to certain functions (depositary, referring compliance issues to the UN 

Security Council) being performed by the OAU, but the OAU was 

superseded by the African Union in 2002. The analysis below retains the Treaty terminology. 

The Treaty prohibits research, development, manufacture, stockpiling, acquisition, testing, possession, control, or stationing of nuclear explosive devices by Parties to the Treaty, as well as assistance to others in such activities, or seeking or receiving assistance 

in such activities. The Treaty also prohibits Parties from assisting 

or encouraging the dumping of radioactive wastes and other radioactive matter within the African zone, and requires each Party to 

implement or use as guidelines the provisions of the Bamako Convention with respect to the handling of radioactive waste. The 

Treaty prohibits any armed attack against nuclear installations in 

the zone by Treaty Parties. It requires Parties to maintain the 

highest standards of physical protection of nuclear material, facilities, and equipment. The Treaty requires all Parties to apply fullscope International Atomic Energy Agency (IAEA) safeguards to all 

of their peaceful nuclear activities. The Treaty creates the African 

Commission on Nuclear Energy to monitor compliance and promote 

the peaceful use of nuclear energy. The Treaty affirms the right of 

each Party to decide for itself whether to allow visits by foreign 

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ships and aircraft to its ports and airfields, explicitly upholds the 

freedom of the seas, and does not affect rights to passage, guaranteed by international law, through territorial waters. 

The Treaty has three Protocols. Under Protocol I, which is open 

for signature by the United States, China, France, Russia, and the 

United Kingdom, the Protocol Parties undertake not to use or 

threaten to use a nuclear explosive device against any Party to the 

Treaty or against territories within the zone of Parties to Protocol 

III. Protocol I Parties also undertake not to contribute to a violation of the Treaty or Protocol I. Under Protocol II, which is open 

for signature by the United States, China, France, Russia, and the 

United Kingdom, the Protocol Parties undertake not to test or assist or encourage the testing of any nuclear explosive device anywhere within the zone or to contribute to any violation of the Treaty or Protocol II. Under Protocol III, which is open for signature 

only by France and Spain, the Protocol Parties agree to apply certain of the Treaty’s substantive provisions ‘‘in respect of the territories for which [they are] internationally responsible’’ within the 

zone. The United States is not one of the states identified as eligible to sign this Protocol, as the United States is not internationally 

responsible for any territory within the African zone. Diego Garcia, 

where the United States maintains a significant military installation, is within the geographic area described in Article 2 and Annex 

I and is subject to a territorial claim by Mauritius, a Party to the 

Treaty. However, Diego Garcia is under the sovereign control of the 

United Kingdom of Great Britain and Northern Ireland as part of 

the British Indian Ocean Territories and is not part of the ‘‘territory’’ of the Zone as defined in the Treaty; therefore, neither the 

Treaty nor its Protocols applies to U.S. operations there. The activities of the U.S. Armed Forces on Diego Garcia would not be impeded by U.S. ratification of Protocols I and II to the Treaty. 

The Treaty and Protocols meet all seven criteria that the United 

States has established for supporting any proposed nuclear-weapon-free zone. The criteria are as follows: 

• the initiative for the creation of the zone should come from 

the States in the region concerned; 

• all States whose participation is deemed important should 

participate; 

• the zone arrangement should provide for adequate 

verification of compliance with its provisions; 

• the establishment of the zone should not disturb existing 

security arrangements to the detriment of regional and international security or otherwise abridge the inherent right of individual or collective self-defense guaranteed in the Charter of 

the United Nations; 

• the zone arrangement should effectively prohibit its Parties from developing or otherwise possessing any nuclear device for whatever purpose;—the establishment of the zone 

should not affect the existing rights of its Parties under international law to grant or deny other States transit privileges 

within their respective land territory, internal waters and airspace to nuclear powered and nuclear capable ships and aircraft of non-party nations, including port calls and overflights; 

and 

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• the zone arrangement should not seek to impose restrictions on the exercise of rights recognized under international 

law, particularly the high seas freedoms of navigation and 

overflight, the right of innocent passage of territorial and 

archipelagic seas, the right of transit passage of international 

straits, and the right of archipelagic sea lanes passage of 

archipelagic waters. 

The end of the Cold War, the dissolution of the Soviet Union, 

dramatic reductions in the number of nuclear weapons and their 

delivery systems, and the indefinite extension in 1995 of the Treaty 

on the Non-Proliferation of Nuclear Weapons (NPT) have created 

an environment in which adherence to the Protocols of the African 

Nuclear-Weapon-Free Zone Treaty has become advantageous to the 

United States. Meanwhile, the ratification of Protocols I and II by 

China, France, and the United Kingdom, and U.S. support for the 

Comprehensive Nuclear-Test-Ban Treaty, have removed any hesitation to agree to the Treaty’s prohibition on testing within the 

zone. Concerns about the weapons of mass destruction programs in 

Libya have been alleviated in the wake of its renunciation of its 

weapons of mass destruction programs. Finally, the cooperation of 

nuclear-weapon States in nuclear-weapon-free zones is important 

to many Parties to the NPT. Thus, many former concerns regarding 

the Treaty Protocols have been resolved, and the benefits of ratifying these Protocols have been enhanced. 

ARTICLE-BY-ARTICLE ANALYSIS

Protocol I 

Under Article 1, each Protocol Party undertakes not to use or 

threaten to use a nuclear explosive device against (1) any Treaty 

Party or (2) any territory within the zone for which a Protocol III 

Party is internationally responsible (France is currently the only 

party to Protocol III; Spain is the only other country eligible to become a party). 

In connection with this obligation, I recommend that the United 

States include the following statement in its instrument of ratification: 

With respect to Article 1 of Protocol I, the United States 

of America will not use or threaten to use nuclear weapons 

against any Party to the Treaty that is a non-nuclear 

weapons State Party to the Nuclear Non-Proliferation 

Treaty (NPT) and in compliance with its nuclear non-proliferation obligations. 

Under Article 2, each Party undertakes not to contribute to any 

act that constitutes a violation of the Treaty or Protocol I. This provision does not require the United States to comply with all provisions of the Treaty; rather, it requires the United States not to contribute to a Treaty Party committing its own violation of the Treaty 

or a Protocol I Party committing its own violation of Protocol I. 

Article 3 provides that each Party must indicate through written 

notification to the Depositary its acceptance or rejection of any alteration to its Protocol I obligations that may come about as a result of amendment of the Treaty. Thus, the United States will not 

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be bound by any alteration to its obligations that it does not expressly accept. 

Article 4 states that the Protocol is open to signature by the 

United States, the United Kingdom, the Russian Federation, the 

People’s Republic of China, and France. The United States signed 

Protocol I on April 11, 1996, at a ceremony in Cairo, Egypt, at 

which the Treaty itself was opened for signature. Article 5 provides 

that the Protocol is subject to ratification. 

Article 6 provides that the Protocol will remain in force indefinitely. It further provides that a Protocol Party may withdraw from 

the Protocol ‘‘if it decides that extraordinary events, related to the 

subject-matter of this Protocol, have jeopardized its supreme interests.’’ In such an event, a Protocol Party must notify the Depositary 

and provide a statement explaining why its supreme interests have 

been jeopardized, twelve months in advance of its withdrawal from 

the Protocol. 

Article 7 states that the Protocol will enter into force for each 

signatory upon either the date when it deposits its instrument of 

ratification with the Depositary or the date of entry into force of 

the Treaty itself, whichever occurs later. Accordingly, this Protocol 

entered into force for China, France, and the United Kingdom (the 

states that had deposited instruments of ratification) on July 15, 

2009, when the Treaty entered into force. 

Protocol II 

Under Article 1, each Party to this Protocol is obligated ‘‘not to 

test or assist or encourage the testing of any nuclear explosive device anywhere within the African nuclear-weapon-free zone.’’ The 

zone, as defined in Article 1(a) of the Treaty, means the ‘‘territory’’ 

of the African continent, island States members of the OAU, and 

all islands considered by the OAU in its resolutions to be part of 

Africa. ‘‘Territory’’ is defined in Article 1(b) of the Treaty to mean 

the land territory, internal waters, territorial seas and archipelagic 

waters and the airspace above them as well as the sea bed and 

subsoil beneath. Thus, this prohibition not to test is not limited to 

the land territory of the Treaty Parties, but applies to all of these 

areas included in the zone. 

Under Article 2, each Party to the Protocol undertakes not to 

contribute to any act that is a violation of the Treaty or Protocol 

II. 

Article 3 regarding acceptance or rejection of amendments/alterations in the underlying Treaty obligations is identical to the corresponding provision in Protocol I. 

Article 4 states that Protocol II is open for signature by the 

United States, the United Kingdom, the Russian Federation, the 

People’s Republic of China, and France. The United States signed 

Protocol II on April 11, 1996. Article 5 provides that the Protocol 

is subject to ratification. 

Article 6 (duration and withdrawal) and Article 7 (entry into 

force) are identical to the corresponding provisions in Protocol I. As 

with Protocol I, Protocol II entered into force for China, France, 

and the United Kingdom (the states that had deposited instruments of ratification) on July 15, 2009, when the Treaty entered 

into force. 

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Protocol III 

As previously noted, the United States is not one of the states 

identified as eligible to sign this Protocol because it is not internationally responsible for any territory within the African zone. 

Under Article 1, each Party to Protocol III undertakes ‘‘to apply, 

in respect of the territories for which it is de jure or de facto internationally responsible situated within the African nuclear-weaponfree zone,’’ the provisions of many Articles of the Treaty itself. Protocol III entered into force for France (which had deposited its instrument of ratification) on July 15, 2009, when the Treaty entered 

into force. 

Entry into force of Protocols I and II for the United States subject to the recommended statements discussed herein would require 

no changes in U.S. law, policy, or practice. To make clear that no 

changes are necessary to bring the United States into compliance 

with its obligations under the Protocols, and that the Treaty Parties need take no action with respect to the United States in order 

to comply with their Treaty obligations, I recommend that the 

United States include the following statement in its instrument of 

ratification: 

The United States of America declares that its policies 

and practices are already consistent with the African Nuclear-Weapon-Free Zone Treaty and Protocols, and that its 

ratification of the Protocols in no way affects the United 

States position with regard to other nuclear-weapon-free 

zone treaties. 

THE TREATY

The terms of the Treaty are relevant to the obligations of the 

United States in that, as previously noted, under Protocols I and 

II, the United States would undertake not to contribute to any act 

that constitutes a violation of the Treaty. 

Article 1: Definition/Usage of Terms 

Article 1 defines certain terms used in the Treaty and its Protocols. 

Article 1(a) defines ‘‘African Nuclear-Weapon-Free Zone’’ to mean 

‘‘the territory of the continent of Africa, islands States members of 

OAU and all islands considered by the Organization of African 

Unity in its resolutions to be part of Africa.’’ The first part of this 

definition covers continental Africa, and the second covers such 

states as Madagascar and Mauritius. The third part includes islands for which non-African states are de jure or de facto responsible. The reference to OAU resolutions includes OAU resolution 

AHG/Res 99(XVII) of 1980, which gave formal OAU support to 

Mauritius’ claim to the island of Diego Garcia, currently under 

United Kingdom sovereign control and home to significant naval 

and air installations of the United States and the United Kingdom. 

Diego Garcia is in the Chagos Archipelago. During the negotiation 

of the Treaty, Mauritian representatives insisted that their claim 

be given recognition in the definition of the zone. The map at 

Annex I of the Treaty shows the Chagos Archipelago surrounded 

by a broken line and refers the reader to a footnote, which states 

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that the depiction of the Chagos Archipelago/Diego Garcia ‘‘appears 

without prejudice to the question of sovereignty’’ of the island. As 

described further in connection with Annex I, the activities of the 

U.S. Armed Forces on Diego Garcia would not be impeded by U.S. 

ratification of the Protocols to the Treaty. 

Article 1(b) defines ‘‘territory’’ as ‘‘the land territory, internal waters, territorial seas and archipelagic waters and the airspace 

above them as well as the sea bed and subsoil beneath.’’ 

Article 1(c) defines ‘‘nuclear explosive device’’ (used in Articles 2– 

6) to mean ‘‘any nuclear weapon or other explosive device capable 

of releasing nuclear energy, irrespective of the purpose for which 

it could be used. The term includes such a weapon or device in unassembled and partly assembled forms, but does not include the 

means of transport or delivery of such a weapon or device if separable from and not an indivisible part of it.’’ This definition includes so-called ‘‘peaceful nuclear devices.’’ 

Article 1(d) defines ‘‘stationing’’ as ‘‘implantation, emplacement, 

transport on land or inland waters, stockpiling, storage, installation and deployment.’’ As discussed below, the prohibition on ‘‘stationing’’ in Article 4(1) does not alter the sovereign right of Treaty 

Parties 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 in its territorial sea or archipelagic waters in a 

manner not covered by the rights of innocent passage, archipelagic 

sea lane passage or transit passage of straits.’’ ‘‘Stationing’’ does 

not include transit through territorial waters or airspace, or port 

visits, by vessels carrying nuclear explosive devices, not covered by 

the rights of innocent passage, archipelagic sea lane passage, or 

transit passage of straits. 

Article 1(e) defines ‘‘nuclear installation’’ to mean ‘‘a nuclearpower reactor, a nuclear research reactor, a critical facility, a conversion plant, a fabrication plant, a reprocessing plant, an isotope 

separation plant, a separate storage installation and any other installation or location in or at which fresh or irradiated nuclear material or significant quantities of radioactive materials are present.’’ 

This term is used in Article 11, ‘‘Prohibition of Armed Attack on 

Nuclear Installations.’’ 

Article 1(f) defines ‘‘nuclear material’’ as source material or special fissionable material, as defined by the Statute of the International Atomic Energy Agency (IAEA) and as may be amended by 

the IAEA. 

Article 2: Application of the Treaty 

Article 2(1) provides that, except where otherwise specified, the 

Treaty and its Protocols apply to ‘‘territory’’ (defined in Article 1(b) 

above) within the African Nuclear-Weapon-Free Zone, as illustrated in the map in Annex I. Significant exceptions are specified 

in Article 3(a) (‘‘Renunciation of Nuclear Explosive Devices’’) and 

Article 5(c) (‘‘Prohibition of Testing of Nuclear Explosive Devices’’), 

whose prohibitions apply ‘‘anywhere.’’ Similarly, exceptions are 

specified in Article 7(b) (‘‘Prohibition of Dumping of Radioactive 

Wastes’’) and Article 1 of Protocol II (nuclear testing), whose prohibitions apply ‘‘anywhere within the African nuclear-weapon-free 

zone.’’ Although Diego Garcia is within the geographic area defined 

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in Article 2(1), the ‘‘territory’’ of Diego Garcia is not under the sovereign control of a Party to the Treaty and is not part of the ‘‘territory’’ of the Zone as defined in the Treaty. Rather, it is under the 

sovereign control of a State (the United Kingdom) that is not eligible to become a Party to the Treaty or to Protocol III of the Treaty, 

and neither the Treaty nor its Protocols applies to U.S. operations 

there (see further discussion in connection with Annex I). 

Article 2(2) states that nothing in the Treaty prejudices or in any 

way affects the rights, or the exercise of the rights, of any State 

under international law with regard to freedom of the seas. Article 

4(2), discussed below, complements Article 2(2) in that it recognizes 

the right of a State Party to decide for itself whether to permit 

transit or visits by foreign vessels and aircraft within its territory. 

Article 3: Renunciation of Nuclear Explosive Devices 

Under Article 3(a), each Party undertakes not to conduct research on, develop, manufacture, stockpile, or otherwise acquire, 

possess, or have control over any nuclear explosive device ‘‘by any 

means anywhere.’’ These obligations constitute the core commitments made by Parties to the Treaty. They are not limited to the 

territory of a Party or even to the African nuclear-weapon-free 

zone; rather, they are global commitments undertaken by each 

State Party upon ratification of the Treaty. 

Under Article 3(b), each Party undertakes not to seek or receive 

any assistance in the research on, development, manufacture, 

stockpiling or acquisition, or possession of any nuclear explosive device. Article 3(c) requires Treaty Parties not to take any action to 

assist or encourage the research on, development, manufacture, 

stockpiling or acquisition, or possession of any nuclear explosive device. A new element in the Treaty is that ‘‘research’’ and ‘‘development’’ of nuclear explosive devices are specifically identified as 

Treaty violations. 

Article 4: Prevention of Stationing of Nuclear Explosive Devices 

Article 4(1) proscribes the stationing of any nuclear explosive device in the territory of any Party. As noted earlier, ‘‘stationing’’ is 

defined in Article 1(d) of the Treaty as implantation, emplacement, 

transport on land or inland waters, stockpiling, storage, installation, and deployment. The term ‘‘inland waters’’ does not have an 

accepted meaning in international law. To ensure that U.S. rights 

are not adversely affected, I recommend that the United States include the following statements in its instrument of ratification: 

The United States of America understands the term ‘‘inland waters’’ as used in the African Nuclear-Weapon-Free 

Zone Treaty to exclude waters used in connection with 

maritime navigation. 

The United States of America understands the term 

‘‘stationing’’ as used in the African Nuclear-Weapon-Free 

Zone Treaty not to include the temporary off-load or transshipment of nuclear weapons. 

Article 4(2) states that each Party remains free 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 

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navigation by foreign ships in its territorial sea or archipelagic waters in a manner not covered by the rights of innocent passage, 

archipelagic sea lane passage, or transit passage of straits. Thus, 

in addition to reinforcing the statement in Article 2(2) that the 

Treaty does not prejudice rights regarding freedom of the seas, this 

statement confirms that any State Party could choose to accept a 

visit from U.S. vessels or aircraft on which the presence of nuclear 

explosive devices had been neither confirmed nor denied. There 

would be no basis in the Treaty or Protocols for another State 

Party to object to such a visit. 

Ratification of Protocols I and II by the United States will not 

affect existing rights under international law permitting nuclearpowered vessels and vessels carrying nuclear weapons to transit 

the zone and permitting aircraft carrying nuclear weapons to 

overfly the zone. However, because the Treaty does not expressly 

state this point, I recommend that the United States include the 

following statement in its instrument of ratification: 

The United States of America understands that nothing 

in the ANWFZ Treaty and its Protocols affects rights 

under international law of a State adhering to the Protocols regarding the exercise of the freedom of the seas, including passage through or over waters subject to the sovereignty of a State, as reflected in the 1982 United Nations 

Convention on the Law of the Sea. 

Article 5: Prohibition of Testing of Nuclear Explosive Devices 

Article 5(a) prohibits the testing of any nuclear explosive device 

by a Party. Article 5(b) requires each Treaty Party to prohibit any 

testing of any nuclear explosive device within its territory. Article 

5(c) prohibits Treaty Parties from assisting or encouraging the testing of any nuclear explosive device by any State anywhere. 

Article 6: Declaration, Dismantling, Destruction or Conversion of 

Nuclear Explosive Devices and the Facilities for their Manufacture 

Article 6(a) requires each Treaty Party to declare any capability 

for the manufacture of nuclear explosive devices. Article 6(b) requires each Treaty Party to dismantle and destroy any nuclear explosive device that it manufactured prior to the entry into force of 

the Treaty. Article 6(c) requires Treaty Parties to destroy facilities 

for the manufacture of nuclear explosive devices or, where possible, 

to convert them to peaceful uses. Article 6(d) obligates Treaty Parties to permit the IAEA and the Commission established by Article 

12 to verify the processes of dismantling and destruction of the nuclear explosive devices, as well as the destruction or conversion of 

the facilities for their production. 

The Treaty of Tlatelolco and the Treaty of Rarotonga do not have 

provisions corresponding to Article 6. This article was drafted in 

the wake of revelations by South Africa in March 1993 that it had 

developed and dismantled six nuclear explosive devices. The drafting group took the view that the Treaty must have a mechanism 

to verify that South Africa’s nuclear program had been effectively 

terminated, given that the African nuclear-weapon-free zone would 

be the first nuclear-weapon-free zone to integrate a state that forWReier-Aviles on DSKGBLS3C1PROD with HEARING

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merly possessed nuclear weapons. (South Africa participated fully 

in the drafting group.) Article 6 recognizes and reinforces the role 

of the IAEA to verify the denuclearization of Treaty Parties affected by this article and grants the Parties to the Treaty the authority to confirm denuclearization independently under the aegis 

of the African Commission on Nuclear Energy (created by a subsequent article). 

Article 7: Prohibition of Dumping of Radioactive Wastes 

Article 7(a) requires each Treaty Party to either implement the 

Bamako Convention on the Ban of the Import into Africa and Control of Transboundary Movement and Management of Hazardous 

Wastes within Africa ‘‘in so far as it is relevant to radioactive 

waste,’’ or to use the measures contained in that Convention as 

guidelines for their activities regarding such wastes. The Bamako 

Convention obligates its Parties to take appropriate measures within the areas under their jurisdiction to prohibit the importation 

into Africa of all hazardous wastes by non-Contracting Parties and 

regulates the trans-boundary movement of such wastes in Africa. 

Article 7(b) further obligates Treaty Parties not to assist or encourage the dumping of radioactive waste ‘‘and other radioactive matter’’ anywhere within the zone. To ensure clarity and consistency 

with existing international legal obligations of the United States 

(e.g., under the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter), I recommend that 

the United States include the following statement in its instrument 

of ratification: 

The United States of America understands the term 

‘‘dumping’’ as used in the ANWFZ Treaty with respect to 

the maritime domain to be identical to that term as defined in the 1982 United Nations Convention on the Law 

of the Sea. 

Article 8: Peaceful Nuclear Activities 

Article 8 declares that nothing in the Treaty may be interpreted 

as preventing the use of nuclear science and technology for peaceful 

purposes. Treaty Parties undertake to promote the peaceful use of 

nuclear energy and to establish and strengthen mechanisms for cooperation. They are encouraged to make use of the IAEA’s program 

of assistance and to strengthen cooperation under the African Regional Cooperation Agreement for Research, Training and Development Related to Nuclear Science and Technology. 

Article 9: Verification of Peaceful Uses 

Each Treaty Party undertakes to conduct all of its nuclear activities ‘‘under strict non-proliferation measures to provide assurance 

of exclusively peaceful uses’’ and to conclude a comprehensive safeguards agreement with the IAEA to this end. The Treaty Parties 

further undertake not to provide source or special fissionable material, or equipment or material relevant to the processing, use or 

production of special fissionable material to any non-nuclear-weapon state unless such items are subject to a comprehensive IAEA 

safeguards agreement. The requirement of full-scope safeguards for 

nuclear trade is more stringent than that in the NPT and reinWReier-Aviles on DSKGBLS3C1PROD with HEARING

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forces a long-held policy of the United States, adopted by the Nuclear Suppliers Group, of requiring full-scope safeguards as a condition of nuclear supply. Article 9 would not prohibit the export of 

such items for peaceful uses in any of the five nuclear weapon 

states in the absence of such an agreement. 

Article 10: Physical Protection of Nuclear Materials and Facilities 

Each Treaty Party is obligated to ‘‘maintain the highest standards of security and effective physical protection of nuclear materials, facilities and equipment to prevent theft or unauthorized use 

and handling.’’ Each Treaty Party must apply measures of physical 

protection equivalent to those in the Convention on Physical Protection of Nuclear Material and included in the recommendations 

and guidelines developed by the IAEA for physical protection. The 

threat of theft or sabotage of nuclear materials poses a global proliferation risk and a potential danger to public health and safety. 

The most effective means of preventing the illicit trafficking of nuclear materials is at the source. Thus, the physical protection of nuclear materials has been recognized as a key element of international strategies to prevent the unauthorized use of nuclear materials. 

Article 11: Prohibition of Armed Attack on Nuclear Installations 

Treaty Parties undertake not to take any action, or assist or encourage any action, aimed at an armed attack ‘‘by conventional or 

other means’’ against nuclear installations in the zone. The drafting group explained that its chief concern was attacks against nuclear reactors or other significant nuclear facilities that could 

spread radiation across borders. As noted earlier, the definition of 

‘‘nuclear installations’’ is sufficiently broad to include nearly any facility or site which contains ‘‘significant quantities’’ of radioactive 

materials. The Treaty does not further define ‘‘significant quantities,’’ but the term is defined and used in IAEA practice. This prohibition applies only to Treaty Parties. There is no corresponding 

obligation under any of the Protocols. 

Article 12: Mechanism for Compliance 

Article 12 creates the African Commission on Nuclear Energy 

(AFCONE, also referred to as the Commission) as specified in 

Annex III. The Commission is responsible for: collating and distributing reports related to the purposes of the Treaty; convening 

meetings of the Treaty Parties; reviewing the application of safeguards; bringing into effect the complaints procedure (Annex IV); 

and encouraging international, regional, and sub-regional cooperation in the peaceful uses of nuclear energy. 

Article 13: Report and Exchanges of Information 

Each Treaty Party must submit an annual report to the Commission on its nuclear activities and other matters relating to the 

Treaty, as well as report promptly any ‘‘significant event’’ affecting 

the implementation of the Treaty. The Commission shall also request the IAEA to provide it with an annual report on the activities 

of the African Regional Cooperation Agreement for Research, 

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Training and Development Related to Nuclear Science and Technology (AFRA). 

Article 14: Conference of Parties 

The Depositary shall convene a conference of all Treaty Parties 

as soon as possible after the entry into force of the Treaty to elect 

members of the Commission and determine the location of its headquarters. Subsequent conferences are to be held at least every two 

years. 

Article 15: Interpretation of the Treaty 

Disputes arising from interpretation of the Treaty shall be settled by negotiation, by recourse to the Commission, or through another procedure agreed to by the Treaty Parties, which may include 

an arbitral panel or referral to the International Court of Justice. 

Article 16: Reservations 

No Treaty Party may take a reservation to the Treaty (or to the 

Annexes, which according to Article 22 form an integral part of the 

Treaty). 

Article 17: Duration 

The Treaty is of unlimited duration and shall remain in force indefinitely once its entry-into-force provisions are fulfilled. 

Article 18: Signature, Ratification and Entry Into Force 

Any State within the African zone is eligible to sign the Treaty. 

This article provides that the treaty enters into force upon the date 

of deposit of the 28th instrument of ratification, which occurred on 

July 15, 2009. For a signatory that now ratifies the Treaty, the 

Treaty will enter into force for that State on the date of deposit of 

its instrument of ratification. 

Article 19: Amendments 

An amendment to the Treaty must first be submitted to the 

Commission for circulation to all Treaty Parties. The amendment 

will be adopted by the assent of a two-thirds majority of the Treaty 

Parties, effected either by written communication to the Commission or through the proceedings of a conference convened for that 

purpose. The conference itself can be convened through the concurrence of a simple majority of Treaty Parties. 

An amendment so adopted will enter into force for all Parties 

after a majority of Treaty Parties have formally deposited their instruments of ratification to the amendment. In other words, Treaty 

Parties that have not assented to or ratified the amendment in 

question would nevertheless be legally bound by it. This Article 

does not apply to non-parties to the Treaty. As previously noted, 

the Protocols specify that any amendment to the Treaty that affects 

the obligations of Protocol Parties would not be binding upon those 

Protocol Parties unless and until they formally give their assent to 

the amendment. 

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Article 20: Withdrawal 

A Treaty Party can withdraw from the Treaty ‘‘if it decides that 

extraordinary events, related to the subject-matter of this Treaty, 

have jeopardized its supreme interests.’’ Withdrawal is effected by 

giving notice to the Depositary twelve months in advance of withdrawal, along with a statement detailing the ‘‘extraordinary 

events’’ that require such withdrawal. Treaty obligations are still 

in effect during this twelve-month period. 

Article 21: Depositary Functions 

The Depositary of the Treaty is the Secretary-General of the 

OAU (now the African Union), who is empowered to receive instruments of ratification, register the Treaty and its Protocols with the 

United Nations, and transmit certified copies of the Treaty and 

Protocols to all States eligible to become Parties to the Treaty or 

Protocols, keeping them informed of signatures and ratifications to 

both. 

Article 22: Status of the Annexes 

As previously noted, the Annexes form an integral part of the 

Treaty, and any reference to the Treaty includes the Annexes. 

Annex I: Map of an African Nuclear-Weapon-Free Zone 

Annex I is the authoritative map of the zone, as recognized in 

Article 2. All the land territory, internal waters, territorial seas 

and archipelagic waters and the airspace above them, as well as 

the sea bed and subsoil beneath of the zone depicted on the map 

are included in the zone, including the island territories of France 

and Spain. It is worth noting that Article 2 of the Treaty states 

that the Treaty and its Protocols shall, except where otherwise 

stated, apply to territory within the zone. Hence, as a general matter, the obligations of the Parties to the Treaty or its Protocols do 

not extend to the high seas or to any State’s exclusive economic 

zone within the zone. 

As previously discussed, the Chagos Archipelago and Diego Garcia appear on the map with the declaration that they ‘‘[appear] 

without prejudice to the question of sovereignty.’’ The United Kingdom ratified Protocols I and II with the following declaration: 

The Government of the United Kingdom have no doubt 

as to their sovereignty over the British Indian Ocean Territory and do not accept the inclusion of that Territory 

within the African nuclear-weapon-free zone without their 

consent. The Government of the United Kingdom do not 

accept any legal obligation in respect of that Territory by 

their adherence to Protocols I and II. 

The United Kingdom is not eligible to become a Party to either 

the Treaty or Protocol III (which applies certain Treaty provisions 

to territories within the zone over which France and Spain exercise 

de jure or de facto international responsibility). In light of British 

sovereignty and the British declaration, Diego Garcia is not part of 

the ‘‘territory’’ of the Zone as defined in the Treaty. Thus, as long 

as the United Kingdom maintains the current situation, neither 

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the Treaty nor Protocol III will apply to U.S. operations on Diego 

Garcia. 

To avoid any misunderstanding on this point, I recommend that 

the United States include the following statement in its instrument 

of ratification: 

The United States of America notes that Diego Garcia, 

part of the chain of archipelagic islands in the Indian 

Ocean known as the British Indian Ocean Territories and 

under the sovereign authority of the United Kingdom of 

Great Britain and Northern Ireland, appears on the map 

of the zone of the Treaty, as set forth in Annex I, ‘‘without 

prejudice to the question of sovereignty.’’ The United 

States notes further that the United Kingdom of Great 

Britain and Northern Ireland is not eligible to become a 

Party either to the Treaty or to Protocol III. Thus, neither 

the Treaty nor Protocol III applies to the activities of the 

United Kingdom, the United States, or any other State not 

Party to the Treaty on the island of Diego Garcia or elsewhere in the British Indian Ocean Territories. Accordingly, 

no change is required in U.S. Armed Forces operations in 

Diego Garcia and elsewhere in the British Indian Ocean 

Territories. 

Annex II: Safeguards of the International Atomic Energy Agency 

This Annex obligates Treaty Parties to conclude a comprehensive 

safeguards agreement with the IAEA ‘‘on all source or special fissionable material in all nuclear activities within the territory of the 

Party, under its jurisdiction or carried out under its control anywhere.’’ This agreement shall be equivalent in scope and effect to 

the standard full-scope agreement (INFCIRC/153 corrected), currently required for all non-nuclear-weapon-state Parties to the 

NPT, and must be in force for each Treaty Party not later than 

eighteen months after the entry into force of the Treaty for that 

Party. Each Treaty Party must also include in its annual report to 

the African Commission on Nuclear Energy a copy of the overall 

conclusions of the most recent report by the IAEA on its inspection 

activities within the territory of the Treaty Party. Of the 29 States 

Parties to the Treaty, 22 States have already met this requirement 

by bringing into force comprehensive safeguards agreements with 

the IAEA pursuant to NPT Article III. The entry into force of the 

Treaty in 2009 should give further impetus to the remaining 17 African States to conclude such agreements. 

Annex III: African Commission on Nuclear Energy 

Annex III specifies the composition and terms of membership in 

the financing of the Commission created under Article 12. 

Annex IV: Complaints Procedure and Settlement of Disputes 

Annex IV specifies in detail the procedure whereby a Treaty 

Party may bring a complaint against another Treaty Party or a 

Party to Protocol III (Spain or France) for breach of its respective 

obligations. The complainant must bring the substance of its complaint to the attention of the Party that is the subject of the complaint and give that Party 30 days to provide an explanation and 

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resolve the matter. If the matter is not resolved, the complainant 

may bring the complaint before the Commission, which will afford 

the other Party 45 days to provide an explanation. 

The Commission may then decide to request an inspection by the 

IAEA of the territory of the Party complained of, to be conducted 

as soon as possible. The Commission may also designate representatives to accompany the Agency’s inspection team. The Party complained of must give the inspection team ‘‘full and free access to all 

information and places’’ within its territory that the inspectors 

deem relevant to their inspection. That Party is allowed to have its 

representatives accompany the inspection team provided that the 

inspectors are not delayed or otherwise impeded. The IAEA shall 

report its findings to the Commission as quickly as possible; the 

Commission will then inform all Treaty Parties of its decision as 

to whether the inspected Party is in breach of its obligations. 

If the Commission decides that the inspected Party is in breach 

of its obligations or that it failed to comply with the inspection procedures, the Treaty Parties shall meet in extraordinary session to 

discuss the matter and may make recommendations to the Party 

in breach and to the OAU. The OAU may refer the matter to the 

United Nations Security Council. 

Costs involved in carrying out the complaint procedures will be 

borne by the Commission. In the case of abuse (e.g., making complaints without merit), the Commission shall decide whether the 

complaining Party should bear any costs. 

Finally, Annex IV empowers the Commission to establish its own 

inspection mechanisms. 

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