Notes (Revised) to
“Model Treaty on the Northeast Asia Nuclear-Weapon-Free Zone" (Draft 4)
1. Preamble
There are several unique points in the Preamble of the Model Treaty. It recalls that Northeast Asia is the only region in the world where nuclear weapons have been used in the actuality of war, and that even today there are a great number of atomic-bomb survivors in Japan and on the Korean Peninsula who are living their lives in fear, anxiety and uncertainty. It also recalls the many hardships caused by the wars of aggression and the colonial rule of (1) Imperialistic Japan and acknowledges that the resulting pain is yet to be remedied.
2. (2) Article 1 & 3: A Six-Party Treaty with Three plus Three Structure
The Model Treaty is a six party treaty with a three plus three structure. That is, in the Model Treaty there are two categories of state parties; Intrazonal States (ROK, DPRK and Japan) and Neighboring Nuclear Weapon States (China, Russia and the U.S.). The NEA-NWFZ is composed of the territory of the former category of States. The two have different fundamental obligations, as stipulated in Article 3.
3. Article 1, (b)
In other nuclear-weapon-free zones treaties, the term "archipelagic waters" is generally included in addition to “territorial seas.” The term, however, has been deleted in this Treaty, as there are no archipelagic waters existent within the Northeast Asia Nuclear-Weapon-Free Zone.
4. Article 1, (c)
For the purpose of enumerating the names of States herein, they are enumerated in the descending order of larger population if there is no other inevitable or necessary reason to enumerate them otherwise.
5. Article 1, (c), (d), (e)
One of the features of this Model Treaty is that the “Contracting State Parties,” defined in (e), are classified into two categories, “Intrazonal States,” defined in (c), and “Neighboring Nuclear Weapon State,” defined in (d). In the Draft 3, we include three states, namely South and North Korea and Japan in the Intrazonal States. However, it is worth considering the inclusion of Mongolia as an Intrazonal State. It would be important to deliberate carefully, based upon information and analysis, about possible merits and demerits resulting from inclusion of Mongolia.
6. Article 1, (f)
The definition of "nuclear explosive device" is derived fundamentally from the Rarotonga Treaty.
7. Article 1, (g), (h)
The definitions of "radioactive material" and "radioactive waste" are both derived from the Bangkok Treaty.
8. Article 1, (i), (j)
The definitions of "nuclear material" and "nuclear installation" are both derived from the Pelindaba Treaty.
9. Article 2, Item 3
The portion of "freedom of the seas" is derived from the Pelindaba Treaty.
10. (3) Article 2, Item 4: Application to the U.S. Military Bases
There are major U.S. military bases in Japan and the ROK. Naturally they are not exempted from obligations imposed upon the Intrazonal States (Article 2, 4). This will result in a unique verification challenge, which is yet to be addressed in this Model Treaty.
11. Article 3, Item 1, (a)
The undertakings enumerated herein are the same as those set forth in the "Joint Declaration of South and North Korea on the Denuclearization of the Korean Peninsula" complemented by “research” and “development.”
12. Article 3, Item 1, (c)
This provision is not included in any other nuclear-weapon-free zone treaty. It has been included in this Treaty in consideration that the States Parties to the NPT agreed to a “diminishing role for nuclear weapons in security policies” in the final document adopted at the NPT Review Conference in 2000. This provision means that the Intrazonal States shall discard their dependence upon so-called “nuclear umbrella.” Prohibiting the dependence on nuclear deterrence of nuclear weapon states may lead to a further relaxation of tension in the region.
13. (4) Article 3, Item 1, (d)
This is a unique provision for Intrazonal States that stipulates that they exert efforts to disseminate education worldwide regarding the urgency of nuclear disarmament, including transmission to present and future generations of knowledge about the damage inflicted on humans and cities by the atomic bombs dropped in 1945.
14. Article 3, Item 2, (a)
In other nuclear-weapon-free zones treaties, this provision is generally included in their Protocols as a negative security assurance provision. Taking due account, however, of the profound depth of involvement of the three nuclear weapon states in this region in terms of security, it has been decided to include this provision in the actual body of the Treaty.
The inclusion of the security assurance provision in the body of the Treaty is deemed advantageous as it may increase the incentive to negotiate the Treaty by North Korea and Japan in that their feeling of security would be increased by the provision's inclusion. In contrast, its inclusion may be deemed disadvantageous from the perspective of the USA, thereby increasing its caution towards the Treaty.
15. Article 3, Item 2, (c)
This provision is an embodiment of the actual procedure currently taken by the government of Japan. It should be deemed possible that such procedure be applied to all other Intrazonal States. There is allegation claiming the existence of secret accords, not requiring prior consultations, between the USA and Japan, which the government of Japan has been officially denying in a repetitious manner.
It is to be noted that the waters having contact with the Northeast Asia Nuclear-Weapon-Free Zone, i.e. Yellow Sea (Huang Hai), East China Sea, Sea of Japan (Tong Hai), Pacific Ocean, are all accessible without inconvenience via open seas. For Korea Strait (Tsushima Straits West Waterway) both South Korea and Japan adopt the three-nautical-mile system for territorial waters, and for Tsushima Straits East Waterway, Tsugaru Straits, Osumi Straits as well as Souya Straits (La Perouse Straits), Japan adopts the three-nautical-mile system for territorial waters, therefore, there exist open seas in all of the aforementioned straits.
This provision may be removed from Article 3, Item 2 hereof, and then be put, as follows, under Article 3, Item 1 (e), in a more conservative manner, as generally seen in other nuclear-weapon-free zone treaties:
Article 3, 1(e)
Each Intrazonal State in the exercise of its sovereign rights 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 navigation by foreign ships in its territorial sea in a manner not covered by the rights of innocent passage or transit passage of straits.
To the contrary, stricter provisions may be adopted in place of the current provision of Article 3, Item 2, (c), including (i) to ban both portcall and transit, or (ii) to ban portcall and to obligate prior consultation for transit. In either case, such option would make some Neighboring Nuclear Weapon States much more reluctant to sign the treaty.
Naturally, any change of this item (c) must be accordingly reflected in Article 3 of the Protocol of the Treaty.
16. Article 4, Item 4
This provision is related to the significant problem of how a Northeast Asia NWFZ Treaty will solve inequality in terms of energy supply that is derived from the fact that the 1992 South and North Joint Declaration on Denuclearization of Korean Peninsula takes an advanced position for both states not to possess nuclear reprocessing and uranium enrichment facilities, while Japan is already deeply involved in energy activities using such facilities. A concrete agreement on this issue will need vast amount of deliberations and negotiations among concerned states, probably far beyond the reach of this Model Treaty. In this Model Treaty, the obligation for future cooperation to solve this problem is stipulated.
17. Article 7, Article 8 and Article 9
For the "Commission for the Northeast Asia Nuclear-Weapon-Free Zone" and "Executive Committee," the relevant provisions in the Bangkok Treaty have been used as reference.
18. Article 7, (b)
It is to be noted that, as one of the functions of the "Commission for the Northeast Asia Nuclear-Weapon-Free Zone," in its deliberations on the Treaty compliance, concerns with Northeast Asian regional peace and security and with global nuclear disarmament, as are described in the Preamble of the Treaty. In the Preamble, reference is made to concerns with regard to Chemical and Biological Weapons.
19. Article 7, (e)
Electing a Chairperson for the "Commission for the Northeast Asia Nuclear-Weapon- Free Zone" from among the Intrazonal States among the Contracting States Parties is deemed to indicate the principal role to be played by the Intrazonal States in the operation with regard to this Treaty.
20. Article 8, Item 2, (c) and Article 9, Item 2, (b)
The provision with regard to the "Annex for the Control System" has yet to be finished.
21. (5) (deletion) Article 9, Item 2, (b)
As the text in Preamble has once been an object for deliberation by the Commission in Article 7, (b), the "report and exchange of information" set forth under this Article shall also include the issues related to the text described in Preamble hereof.
22. Article 10, Item 3
As a requisite for the entry-into-force of this Treaty, the participation by three Intrazonal States is duly included in this Treaty. This is due to the fact that these Intrazonal States are the most responsible parties to this Treaty. It may be envisioned that the Treaty will enter into force without the participation of the United States because of a delay in its ratification. Even in such an event, a normative effect may be achieved by the very fact that the United States would have already inked the Treaty. It is deemed advantageous to have the Treaty enter into force in order that the international community may apply pressure on the United States to ratify the Treaty as promptly as possible.
23. Article 11, Article 12, Article 13, Article 14 and Article 15
For the "Prohibition of Reservation," "Amendments to the Treaty," "Meeting for Review," "Settlement of Disputes" and "Duration," the relevant provisions in the Bangkok Treaty have been used as reference. Any provision with regard to withdrawal has not been included in this draft of the Model Treaty, as we need more deliberation.
24. Protocol
The Bangkok Treaty has been used as reference, and is modified into a simplified form.
Pacific Campaign for Disarmament & Security