Statement by South Africa on Article I and II of the Treaty (Main Committee I), New York, 2-27 May 2005

Chairperson,

My delegation should like to share some information on a development that could have serious implications for the implementation of State Parties' obligation under the Non- Proliferation Treaty that requires further consideration. Negotiations have recently been concluded at the International Maritime Organisation (IMO) on amendments to the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) and its Protocol on Fixed Platforms.

During the general statements in this Main Committee yesterday, some delegations, inter alia, alluded to the importance of the SUA Convention, which I will not repeat here. The SUA Convention and its Protocol are indeed two of the twelve UN Counter-Terrorism Conventions to which States have to accede to, pursuant to United Nations Security Council resolution 1373.

Chairperson,

A Diplomatic Conference to adopt amendments to the 1988 SUA Convention and Protocol will be held in October 2005. That Conference will consider the adoption of two Protocols incorporating substantial amendments. The proposed amendments to the treaties in the revised draft Protocols include a substantial broadening of the range of offences included in Article 3 of the SUA Convention and the introduction of provisions for the boarding of vessels suspected of, inter alia, transporting material, equipment or technology intended to be used in a nuclear weapons programme, similar to those of the Proliferation Security Initiative.

Chairperson,

The amendments to this Convention agreed to by the IMO Legal Committee would incorporate non-proliferation implications into this maritime safety convention with potential negative implications for the NPT. Despite strong opposition from various States to key provisions of the amended Convention, the Legal Committee adopted a text for submission to the Diplomatic Conference.

A number of these amendments are of serious concern. The most controversial issue centres around a so-called "savings clause" and the related definitions of direct and dual-use nuclear material, equipment and technology, whose transportation for nuclear weapons purposes (with the exception of the weapons programmes in the five nuclear-weapon States) would constitute an offence under the Convention. The text of the so-called "savings clause" that was accepted by the IMO Legal Committee, despite the concerns raised, essentially specifies that "It shall not be an offence within the meaning of this convention to transport an item or material (direct and dual-use) ¼¼ if the item or material is intended for the delivery system of a nuclear weapon or other nuclear explosive device of a state party to the NPT, the holding of such weapon or device is not contrary to that state party's obligations under the NPT."

Chairperson,

The amended provisions are in direct conflict with South Africa's policy on nuclear non-proliferation and disarmament, as well as legislation that outlaws the transfer of such items for any weaponisation purposes, consistent with our obligations under Article II and III of the NPT. If these SUA provisions are not brought into line with the NPT, South Africa will not be able to become party to this instrument - unless we reverse our policy and legislation that have made South Africa's process of nuclear disarmament and nuclear non-proliferation an irreversible one.

The savings clause in the amended SUA convention, in our view, is contrary to the provisions of Articles I and II of the NPT, which compels both nuclear-weapon States and non-nuclear-weapon States not to transfer "to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly". In addition, this amendment to the SUA seeks to reinterpret States Parties' obligations under the NPT, and has the effect of further entrenching the unequal legal regime for nuclear-weapon States under the NPT, contrary to their obligation to disarm. It is also our view that, if adopted at the Diplomatic Conference in October, some of the current provisions may impact on the right of NPT States to the peaceful application of nuclear energy, as well as the legitimate commercial activities of non-nuclear-weapon States. South Africa is concerned that the amendments to the SUA Convention are contrary to the letter and spirit of the NPT and that it may have undesirable and/or unintended consequences for the non-proliferation and disarmament regime.

One of the amended SUA Convention articles already provides protection for the rights, obligations and responsibilities of States Parties to the NPT. This raises questions about the insistence by some States for a savings clause that explicitly excludes as an offence the transportation of material, equipment and technology for weapons programmes in nuclear-weapon States.

Chairperson,

South Africa has requested that text consistent with the recently adopted Nuclear Terrorism Convention should be used. Negotiations on the latter Convention had been deadlocked for over six years on the issue of a savings clause and, as a minimum, the following agreed text should also be included in the SUA Convention:
"This Convention does not address, nor can it be interpreted as addressing, in any way, the issue of the legality of the use or threat of use of nuclear weapons by States."

My delegation would be glad to hear the views of other delegations on this matter. In view of these concerns about attempts to reinterpret the Treaty and to adopt measures contrary to the provisions of the NPT in other international bodies not responsible for nuclear disarmament and nuclear non-proliferation matters, South Africa proposes that the following text be included in the report of Main Committee I with the recommendation that it be included in the outcome document of this Conference:
"State Parties reaffirm their commitment to the non-proliferation of nuclear weapons and to their obligations under Articles I and II of the Treaty and undertake not to transfer to any recipient, or to receive the transfer from any transferor whatsoever, nuclear weapons or other nuclear explosive devices or their parts, control over such weapons, parts or explosive devices directly, or indirectly, and not to in any way to assist or encourage or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons, their parts or other nuclear explosive devices, or control over such weapons, parts or explosive devices."

I thank you.


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