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Enforcing the Southeast Asian Nuclear Weapons-Free Zone Treaty

Written by Roland G. Simbulan

All ten members of the Association of Southeast Asian Nations (ASEAN) signed the Southeast Asian Nuclear Weapons-Free Zone Treaty (SEA-NWFZT) on 15 December1995 in Bangkok. The ‘Bangkok Treaty’, as it became known, entered into force on 28 March 1997.

The NWFZT is considered a model for regional de-nuclearization.  The treaty covers not just state territory but also Exclusive Economic Zones (EEZs) and Continental Shelves. It prohibits the dumping or discharge of radioactive material or nuclear waste. This is why, predictably, even today, all five Nuclear Weapons States (NWS), Russia, the US, China, the UK and France, refuse to sign its Protocols. But are the states of Southeast Asia, genuinely Nuclear Weapons-Free today?

Despite its twenty years existence four provisions and issues in the Bangkok Treaty explain why the NWS have refused to sign the Protocols to the treaty:

  1. Transit rights and port/airfield visits incorporated in compliance mediation.
  1. Sovereignty of states over EEZs and continental shelves.
  1. Negative Security Arrangements by NWS treaty protocols.
  1. The issues above pertain to the exclusion of the military forces of NWS in regard to nuclear weapons and nuclear propulsion in the territories and waters defined by the Bangkok Treaty.

In many ways the NWFZT was inspired by the Philippines’ prohibition of nuclear weapons under the 1987 Constitution, drafted and ratified after the 1986 People Power Revolution. At that time the only other country with a nuclear weapons-free provision in its Constitution was Palau. It was not a coincidence that on 12 December 1987, during an ASEAN meeting in Manila, that the ASEAN Declaration to establish the Southeast Asian NWFZ was first made. The first SEA-NWFZT Review Conference also took place in Manila in June 2007.

The 1987 constitutional ban on nuclear weapons had consequences for the sprawling US military bases in the Philippines, the largest naval and air force bases in the world at that time. On 16 September 1991 a Senate Resolution rejected the renewal of the treaty that would have extended the tenure of US military bases in the Philippines for at least another ten years. During the Philippine Senate’s ratification process, US officials insisted on their ‘neither confirm nor deny’ policy with regards to the deployment and transit of nuclear weapons on their bases in the Philippines. Thus, the Philippine government assumed that the US kept and transited nuclear weapons in the Philippines, in violation of the Constitution.

This raises a question. If you are banning something from your territory, do you negotiate the terms with the potential violators or drug lords, or do you ban it outright with the enforceable laws in your territory?  This is comparable to the standard customs requirement to declare that you are not importing contraband, and with an option to inspect.

Should ASEAN states be informed of movement, within the region, of nuclear-armed and even nuclear-propelled vessels or fleets, whether they belong to the US China, France, UK, Russia, whenever such vessels enter ASEAN territorial waters and their EEZs in compliance with the NWFZT?  Or would the NWS always invoke ‘freedom of navigation’ and preposterous unilateral claims such as the Chinese Nine Dash Line.

Can the ASEAN state parties require NWS, entering the nuclear weapons free zone, to certify that they are not carrying nuclear weapons?  If the possession of nuclear weapons is illegal in the ASEAN region, could the state and municipal laws of ASEAN be activated to ensure that the NWFZT is effectively enforced?  A visiting foreign traveler or tourist cannot declare that ‘I neither confirm nor deny’ that I am carrying narcotics or contraband material upon entering a foreign territory, including its territorial waters. Should a state be allowed to do this?

As expected, the strongest objections to the NWFZT’s Protocol under which the five NWS are asked to respect the treaty and not to violate it, have come from the US. The US Navy and US 7th Fleet is one of the most active users of the South China Sea, long treated by the US as part of its ‘American Lake’.  The global economic rise of China especially in the ASEAN region means that the US and China are jockeying for dominance of the South China Sea. However, long before China began its recent fantastic claims to sovereignty over the entire South China Sea, the US perceived the treaty as restricting, if not challenging, the unhampered operations in the region of the US Seventh Fleet.

The South China Sea is now a regional if not a global flashpoint as a result of China’s assertiveness in the area and the rebalancing of US military forces through its ‘Asian Pivot’.  Thus, can we blame the ASEAN countries for being concerned about the South China Sea when this is an active lake for the Russian, American, Chinese, British and French navies which have, according to the 2014 Federation of American Scientists, the largest nuclear arsenals in the world? Among NWS, only China has verbally committed to sign the Protocol but this has not happened yet; to this day no NWS has signed the Protocols of the Bangkok Treaty.

IN 1994, the Nuclear Free Philippines Coalition (NFPC), which I chair, recommended the following proposals to the ASEAN Commission for the SEA-NWFT through the Philippines’ Department of Foreign Affairs:

First, ASEAN should seek concrete steps and measures to enforce and effectively implement the spirit and letter of its NWFZ treaty and put more muscle into the SEA-NWFZT Commission, which ASEAN established precisely to put teeth to the treaty. The treaty was signed by ASEAN 20 years ago, yet we still have to see it enforced.

Second, being the only state with a nuclear weapons-free Constitution, the Philippines, following the spirit of the SEA-NWFZT which it inspired, should encourage the nine other ASEAN states to adopt nuclear weapons free policies including implementing rules and regulations in their Constitutions (like the Philippines), or through parliamentary legislation (as in New Zealand).  Why should a state enforcer be burdened with transit rights and port/airfield visits, with sovereignty issues and zones of applications, when NWS treat these as natural rights in their respective territories, but do not apply it to others?

Finally, to make an enforceable and effective NWFZT, we should consider a situation where ASEAN can tap the expertise of its very vibrant civil society organizations, especially non-state entities and non-government organizations in monitoring and implementing the SEA-NWFZT.

Only then will ASEAN’s nuclear weapons-free zone treaty make an impact on efforts to attain genuine regional peace and security, secure environmental security in the region and contribute to global nuclear disarmament.

The Philippines is the only ASEAN member country that has adopted a nuclear weapons-free policy in its national constitution. It is no small feat that its policy has now become not just a regional aspiration, but a reality as expressed in a formal treaty signed twenty years ago by the 10-member ASEAN. It is now imperative that ASEAN member states enforce the spirit and letter of the Southeast Asian NWFZT. This means putting more collective muscle through the Commission on the NWFZT, a mechanism that ASEAN established in 2014 in Manila. Currently this ‘Commission’ does not even have a secretariat of its own.

This collective endeavor will go a long way in easing the current tensions in the South China Sea, a sea that embraces almost the entirety of Southeast Asia. It may also get us closer to sustaining regional and global peace and economic prosperity.

Roland G. Simbulan is a Professor in Development Studies and Public Management at the University of the Philippines. He was the National Chairman of the Nuclear-Free Philippines Coalition (NFPC), which succeeded in lobbying for the freedom from nuclear weapons provision in the 1987 Philippine Constitution. This blog is drawn from the keynote lecture delivered to the General Assembly of the Ecumenical Bishops Council in Southern Luzon, Tagaytay City, 29 February 2016. Email: profroland@gmail.com. Image credit: CC by Prachatai/Flickr.

Published inAsiaAsia and PacificConflict & Security

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