African Nuclear-Weapon-Free Zone in Force: What Next for Diego Garcia?

A little-noticed recent development in multilateral treaty law may have potentially explosive consequences for U.S. and British foreign relations: on July 15, 2009, the so-called “Treaty of Pelindaba” for an African Nuclear-Weapon-Free Zone (ANWFZ, opened for signature at Cairo on April 11, 1996)[1] finally entered into force, following the deposit of the 28th instrument of ratification by Burundi.[1] The treaty is the last of five regional agreements in force banning nuclear weapons in their area of application: the other four are the 1959 Antarctic Treaty, the 1967 Treaty of Tlatelolco (for Latin America and the Caribbean), the 1985 Treaty of Rarotonga (for the South Pacific), the 1995 Treaty of Bangkok (for Southeast Asia), and the 2006 Treaty of Semipalatinsk (for Central Asia).[3]

The Pelindaba Treaty – named for the former South African nuclear weapons facility near Pretoria – requires each party “to prohibit in its territory the stationing of any nuclear explosive devices”, while allowing parties to authorize visits or transits by foreign nuclear-armed ships or aircraft (article 4). Furthermore, two of the supplementary protocols to the treaty that are open to “extra-zonal” (non-African) nuclear powers only (ratified by China, France, and the United Kingdom – and now in force, too)[4] require parties not to “contribute to any act which constitutes a violation of this treaty or protocol” (article 2). The U.S. Government co-signed the protocols under the Clinton Administration in 1996, but after a heated political debate did not submit them to the Senate for ratification.[5]

One of the reasons why the Pelindaba Treaty creates a serious dilemma for the United States is its geographical application to the islands surrounding the African continent. According to the map appended to it as Annex I, the treaty explicitly covers the “Chagos Archipelago – Diego Garcia”, albeit with a footnote (inserted at the request of the United Kingdom) stating that the territory “appears without prejudice to the question of sovereignty”[6] – a reference to the long-standing diplomatic dispute between the UK and Mauritius over the archipelago.[7] The tortuous negotiations leading to this disclaimer footnote are fully documented by the chairman of the drafting committee, former Nigerian Foreign Minister Adeniji.[8]

Diego Garcia, a coral atoll in the British Indian Ocean Territory (BIOT, last-born of British colonies, established by order-in-council in 1965),[9] happens to be the site of one of the most valuable (and most secretive) U.S. military bases overseas, strategically situated at the center of the Indian Ocean, close to the Middle East and to its vital oil supply routes.[10] Following a series of UK-U.S. bilateral agreements since 1966,[11] the island was developed from an “austere communications facility” into a naval support facility, a satellite tracking station, and a bomber forward operating location, under a $2.5 billion construction program.[12] The Diego Garcia airfield – with the world’s longest slipform-paved runway built on crushed coral (12,000 feet, also designated as an emergency landing site for the U.S. space shuttle) – played a central role in all offensive combat missions against Iraq and Afghanistan from 1991 to 2006,[13] and was used as a staging area for twenty B-52 bombers prominently deployed as “calculated-ambiguous” tactical nuclear deterrent against any chemical or biological weapons use by Iraq against U.S. forces.[14] The Diego Garcia internal lagoon – a gigantic natural harbor, 48 square miles wide and dredged to a depth of 40 feet as turning basin for aircraft carriers and nuclear submarines – is currently being upgraded under a $200 million, 5-year construction program to accommodate the U.S. Navy’s new SSGN (nuclear-powered, guided-missile) attack submarines and a 23,000-ton submarine tender.[15] The Diego Garcia base has also been confirmed by the U.S. Central Intelligence Agency as destination/transit point for several “extraordinary rendition flights” delivering suspected terrorists.[16] (While the BIOT is subject to British colonial legislation, neither the UK Human Rights Act, nor Britain’s ratifications of the Geneva Conventions or the UN Convention against Torture are applicable to the territory).[17]

While it is clear from the drafting history of the Pelindaba Treaty that all participating African countries agreed to include the Chagos Archipelago in the treaty zone regardless of the sovereignty dispute,[18] the UK Foreign and Commonwealth Office (FCO) interprets the footnote under the Pelindaba treaty map liberally as meaning that the United Kingdom did not accept any legal obligations in respect of that territory by its adherence to protocols I and II of the treaty. In a diplomatic note upon signature of the protocols in 1996 , the FCO stated that it had no doubt as to its sovereignty over the British Indian Ocean Territory and did “not accept the inclusion of that Territory within the African nuclear-weapon-free zone” without the consent of the UK Government.[19]

That unilateral interpretation of the footnote was supported by the United States and France only.[20] Russia refused to sign the protocols because of the ambiguous status of Diego Garcia.[21] The United States noted that “the United Kingdom was not eligible to become a party either to the Treaty or to Protocol III. Thus, neither the Treaty nor Protocol III applied 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 United States armed forces operations in Diego Garcia and elsewhere in the British Indian Ocean territories”.[22] As explained by a representative of the U.S. Arms Control and Disarmament Agency, the Diego Garcia footnote was adequate to “protect U.S. interests because any resolution of the [sovereignty] issue will occur outside the framework of the treaty”.[23]

Reassuring as that assertion was intended to sound, it may have been somewhat overly confident. Mauritius ratified the Pelindaba Treaty as early as April 24, 1996, and is now legally bound by its provisions like the UK, though not by the FCO’s idiosyncratic interpretation of the disclaimer footnote. The United Kingdom in turn may run into internal contradictions of its own with the footnote, given that the 1959 Antarctic Treaty also contains a disclaimer for sovereignty issues,[24] which nobody so far at least seems to have interpreted as excluding the British Antarctic Territory from the geographical scope of that treaty.[25] Be that as it may, a recent editorial in the Mauritius Times now calls on the government to broaden its ongoing bilateral negotiations with the FCO on the Chagos Archipelago (which will resume in London in October, 2009)[26] so as to include the U.S. authorities, with a view to making Diego Garcia “nuclear-weapon-free” in order to enable Mauritius to meet its treaty obligations.[27] The article specifically refers to President Obama’s Prague initiative for a world free of nuclear weapons.

The Pelindaba Treaty is unique among multilateral disarmament agreements in that it requires the establishment of a regional organization, the African Commission on Nuclear Energy (AFCONE, article 12 and Annex III), to implement the agreement and to promote cooperation for the peaceful uses of nuclear science and technology among its member states, and with outside states. Annex IV provides that, in the event of a complaint by any one Party that another Party or a Party to Protocol II is in breach of its obligations under the treaty, the Commission may request the International Atomic Energy Agency (IAEA) to conduct a “special inspection”. On the basis of the IAEA report, the Commission will report to the member states, who in an extraordinary session may then address recommendations on compliance to the Party held in breach and to the OAU [African Union], which in turn may refer the matter to the UN Security Council.[28]

The entry into force of the Pelindaba Treaty should indeed mark the beginning of a momentous new process in Africa.[29] It will also give a boost to preparations for the forthcoming review conference on the Nuclear Non-Proliferation Treaty in 2010. Hopefully, then, the ominous Diego Garcia footnote will not stand in the way of these developments. For even though there was a time when the U.S. base at Diego Garcia was considered “politically invulnerable”[30] – that time is over.

About the Author

Peter H. Sand, an ASIL member, is lecturer in international environmental law at the University of Munich, Germany, and a former legal adviser for the UN Environment Programme and the World Bank. He is co-editor of International Environmental Agreements: Politics, Law and Economics. His latest book, United States and Britain in Diego Garcia: The Future of a Controversial Base, was just published by Palgrave Macmillan, New York.

Endnotes