Central Asian Nuclear-Weapon-Free Zone: A Long Gestation (Part Two)

*To read Part One, please click here.

Western nuclear powers have expressed objections regarding several provisions of the Central Asian Nuclear-Weapon-Free Zone (CANWFZ) Treaty (US State Department, Treaties Data Base Home, CANWFZ Treaty, accessed April 5). The treaty, signed by Central Asia’s five countries, is currently in force; but the accompanying Protocol on security assurances, signed by the five nuclear powers, is not in force in the absence of ratification by the United States (see Part One).

Under the treaty’s article 3, “Each [Central Asian] party undertakes […] not to allow in its territory the production, acquisition, stationing, storage, or use of any nuclear weapon or other nuclear explosive device.” This clause, however, fails to disallow transportation or transit through Central Asia’s states. Russia could theoretically use this loophole to induce or cajole a country into allowing such transportation or transit.

The treaty’s article 12 might even provide a legal excuse for that. Under this clause, “This treaty does not affect the rights and obligations of the [Central Asian] parties under other international treaties, which they may have concluded prior to the date of the entry into force of this treaty.”

That clause is widely seen as a reference to the Collective Security Treaty (CST), the legal base of the Russia-led Collective Security Treaty Organization (CSTO). This reference is a Russian input into the CANWFZ Treaty, which is an accord among five Central Asian countries to which Russia is not a party. It aims to compromise the CANWFZ Treaty by asserting that the CST treaty takes precedence. The US has repeatedly objected to article 12 during the negotiation and ratification processes of the CANWFZ Treaty and the accompanying Protocol on security assurances.

Russia could potentially invoke the CST treaty’s clauses on military assistance to justify introducing (or transiting, transporting—see above) nuclear or dual-capable weapons in Central Asian countries. Kazakhstan, Kyrgyzstan and Tajikistan are CSTO members; Uzbekistan has, since 2012, suspended its membership; while Turkmenistan is a neutral state by its own choice, symbolically approved at the UN and other forums, but not covered by any guarantees.

In sum, the CANWFZ Treaty has added some new ambiguities to the pre-existing ones. Seen in this light, CANWFZ Treaty’s dispute-adjudication mechanism looks ineffective: “Disputes between the parties involving the interpretation or application of this treaty shall be settled through negotiations or by other means as may be deemed necessary by the parties.” This treaty’s depositary, responsible inter alia for handling signatories’ notifications about possible disagreements, is Kyrgyzstan; whereas the depositary of other nuclear-weapon-free-zone treaties is the UN Secretary General’s office. Unlike the nuclear-weapon-free zones in Southeast Asia, the South Pacific, Africa and Latin America (including the Caribbean), the CANWFZ Treaty does not provide for the establishment of a commission or similar body to oversee implementation and verify compliance with the treaty (Nti.org, accessed April 5).

The five declared nuclear powers signed a “Protocol on negative security assurances” on May 6, 2014, for the benefit of nuclear-weapon-free Central Asian states. This Protocol had long been expected to accompany the CANWFZ Treaty. But, given that both documents are defined as legally binding, the Western nuclear powers seemed reluctant to assume binding commitments as long as the CANWFZ Treaty’s ambiguities and loopholes remained open. The five nuclear powers signed the Protocol almost eight years after the treaty had been signed.

What finally catalyzed the Protocol’s signing was the collapse of the Budapest Memorandum on security assurances by the nuclear powers to Ukraine in February 2014. The assurances to Ukraine had also been negative ones for the most part; i.e., the nuclear powers (meaning, for all practical purposes, Russia) would refrain from taking certain hostile actions against Ukraine, in return for Ukraine becoming a “no-nuclear-weapon state.” In the wake of the Budapest Memorandum’s fiasco, the three Western nuclear powers apparently deemed necessary to offer their negative security assurances, alongside Russia’s and China’s, to the Central Asian nuclear-weapon-free states. However, they attached reservations reflecting differences over the interpretation of some treaty clauses.

This Protocol’s assurances, moreover, are far narrower, compared with those that Ukraine had received. Another difference is that France and China acceded to the Budapest Memorandum separately, and only after it had been finalized by Russia, the US and the United Kingdom with Ukraine. The Protocol accompanying the NWFZ Treaty, however, has been signed by the five nuclear powers together.

Under the Protocol, “Each party undertakes not to use or threaten to use a nuclear weapon or other nuclear explosive device against any party to the CANWFZ Treaty … Each party [to the Protocol] undertakes not to contribute to any act that constitutes a violation of the CANWFZ Treaty or of this Protocol, by parties to them.” The latter clause may be read in part as pledging not to instigate violations (Disarmament.un.org, accessed April 4).

Since then, France, the UK (with reservations) and China (apparently without reservations) have ratified the Protocol.

Russia has ratified it with reservations officially credited to President Vladimir Putin. Thus, Russia “shall not be bound by the Protocol if any party to the CANWFZ Treaty allows any form of transit of nuclear weapons or other nuclear explosive devices through its territory” (TASS, March 12, April 20, 2015). This implies that Russia may revoke the assurances not to use or threaten to use nuclear weapons, in the event that a Central Asian state allows a country other than Russia to conduct those types of transit. Meanwhile, Russia may interpret the CANWFZ Treaty as allowing Russia to conduct such transit in Central Asia (see above).

The US Senate is expected to take its time with the ratification and has reservations of its own. Thus, the Protocol is not yet in force.

At the Nuclear Security Summit, just held in Washington, Ukraine circulated a statement about the defunct Budapest Memorandum. It noted that Russia, a provider of security assurances to Ukraine under that document, had “violated it with impunity,” rendering such assurances meaningless (Nss.2016.org, April 2). Assurances, let alone those of the negative type, are no substitute for positive security guarantees.