CAN AUSTRALIA JOIN THE NUCLEAR BAN TREATY WITHOUT UNDERMINING ANZUS?

• Date: 01 August 2020
• Author: Hood, Anna

Contents I Introduction II Australia's Involvement in Activities Related to Nuclear Weapons A Australia's Reliance on Extended Nuclear Deterrence B The Nuclear Activities Supported by Pine Gap III The Incompatibility of Australia's Nuclear Weapons-Related Activities with the TPNW A Would Australia Be in Breach of Art 1(1)(e)? 1 Is Australia 'Encouraging' Prohibited Activity by Relying on Extended Nuclear Deterrence? 2 Is Australia 'Assisting' Prohibited Activity through the Activities at Pine Gap? (a) The Scope of 'Assist' under the TPNW (b) The Assisting State's Contribution to the Prohibited Activity (c) The Subjective Aspect of Assist' B Conclusion IV Is Joining the TPNW Compatible with ANZUS? A Traditional Understandings of Art II That Suggest It Does Not Require Australia to Continue to Support Nuclear Activities B Has Art II Evolved to Require Australia to Continue Supporting US Nuclear Activities? 1 Are There Any Subsequent Agreements to ANZUS That Require Australia to Remain under the US Nuclear Umbrella and/or Ensure Pine Gap Continues to Support US Nuclear Activities? (a) Are There Any Subsequent Agreements about Australia's Position under the US Nuclear Umbrella? (b) Are There Any Subsequent Agreements about the Support US Nuclear Activities through Pine Gap? 2 Is There Any Subsequent Practice around ANZUS That Requires Australia to Remain under the US Nuclear Umbrella and/or Ensure Pine Gap Continues to Support US Nuclear Activities? (a) Subsequent Practice and the US-New Zealand ANZUS Dispute (b) Is There Any Subsequent Practice Relating to US Extended Nuclear Deterrence? (c) Is There Any Subsequent Practice Regarding Pine Gap? C Escaping the Conflict V Concluding Reflection I INTRODUCTION

In 2017, the Treaty on the Prohibition of Nuclear Weapons ('TPNW') was adopted and opened for signature. (1) It contains the most comprehensive limitations on nuclear weapons in history and has been lauded as 'a landmark global agreement'. (2) Australia was not among the negotiating states, having chosen to boycott the talks on the grounds that it saw 'no value in ban treaty negotiations that are disconnected from the current security environment'. (3) While the governing Liberal-National coalition has steadfastly refused to contemplate Australia joining the TPNW, there has been a concerted push by civil society to educate and mobilise the public in favour of Australia's accession to the TPNW. Employing the humanitarian rhetoric that characterised the campaign to ban nuclear weapons, (4) TPNW proponents remain hopeful that Australia will become a party to the treaty sooner rather than later. (5)

Proponents of the treaty have widely attributed its successful conclusion to the humanitarian campaign that was conducted between 2010 and 2017. In particular, they have suggested that the use of humanitarianism allowed security concerns that have traditionally dominated nuclear weapons discussions to be circumvented. (6) There is much to celebrate about the use of humanitarianism and the role it played in the adoption of the TPNW. However, there is a need for caution with respect to the idea that humanitarian concerns can trump security interests in the nuclear realm given the complex international legal frameworks that govern security alliances. In the three years since the TPNW was opened for signature, it has become apparent that a number of pre existing security treaties may make it difficult for some states to sign and ratify the TPNW. (7) We focus in this article on the question of whether one particular security treaty--the Security Treaty between Australia, New Zealand and the United States of America ('ANZUS')(8)--precludes Australia from joining the TPNW. (9)

Whether Australia can join the TPNW and continue to fulfil its obligations under ANZUS was an issue in the lead-up to the 2019 federal election. At its National Conference in December 2018, the Australian Labor Party ('ALP') adopted a resolution committing Australia to sign and ratify the TPNW if it won the election. (10) The announcement led to some back and forth in the media about whether Australia could j oin the TPNW and maintain its security alliance with the United States ('US'). Former Foreign Minister Gareth Evans asserted that joining the TPNW would amount to Australia 'tearing up our US alliance commitment'. (11) This was followed by refutations of Evans' statement by pro TPNW campaigners. (12) The competing claims about the relationship between the TPNW and ANZUS remain unresolved and to date very little legal analysis has been done to try to resolve the differences of opinion. (13) Assertions that there are no conflicts between the TPNW and Australia's security alliance may too readily discount some of the complexities in this area. In this article, we take a closer look at whether it is possible for Australia to join the TPNW without violating ANZUS.

The reasons that questions about the compatibility of the TPNW and ANZUS exist are that Australia relies on US extended nuclear deterrence as a key security policy and hosts the US-Australia Joint Defence Facility Pine Gap ('Pine Gap') which plays a role in supporting US nuclear activities. (14) For Australia to join the TPNW, it is highly likely that it will have to give up both its position under the US nuclear umbrella and its involvement with nuclearaffiliated activities at Pine Gap. (15) Whether it is permissible for Australia to unilaterally do either of these things under ANZUS is uncertain.

As pro-TPNW advocates have noted, there is nothing in ANZUS that states that the treaty is a nuclear agreement or that Australia is otherwise obliged to engage in nuclear-related activities. (16) However, there is potential for art II of ANZUS, which requires States Parties to take steps to ensure they can resist armed attack, to be interpreted as requiring Australia to continue its support of, and commitment to, US nuclear activities. The purpose of this piece is to determine whether art II of ANZUS requires Australia to maintain its reliance on extended nuclear deterrence or continue to support US nuclear activities through Pine Gap, and thus whether any problems will arise if or when Australia joins the TPNW. (17) By examining this topic we hope to provide some clarity around the debate over the TPNW and ANZUS in Australia.

The article will proceed in five Parts. Following this introduction, Part II will provide a brief overview of the ways that Australia is involved in nuclear activities. Part III will then explain, drawing on the principles of treaty interpretation set out in arts 31 and 32 of the Vienna Convention on the Law of Treaties ('VCLT'), (18) why Australia will need to give these activities up if it joins the TPNW. Part IV will turn to examine whether Australia giving up its nuclear activities will create any problems with its obligations under ANZUS. It will be argued that, although there is potential for some issues to arise under ANZUS, there are a number of ways for them to be addressed. Finally, Part V will conclude by offering some reflections on what the Australian case study reveals about the complexities between humanitarianism and security issues in the nuclear context.

II AUSTRALIA'S INVOLVEMENT IN ACTIVITIES RELATED TO NUCLEAR WEAPONS

Before proceeding with the analysis of whether Australia would be able to join the TPNW and maintain its security alliance with the US under ANZUS, it is necessary to understand how Australia, as a non-nuclear weapon state, is nevertheless implicated in US nuclear weapons activity. This Part provides a brief overview of Australia's policy of extended nuclear deterrence and some of the activities at Pine Gap as background to the rest of the article.

A Australia's Reliance on Extended Nuclear Deterrence

Extended nuclear deterrence is essentially a nuclear protection agreement under which a state with nuclear weapons will use, or threaten to use, those weapons in defence of a non-nuclear ally. The specific details of such an agreement might vary, but at its core, the idea behind extended nuclear deterrence is that potential enemy attacks on the non-nuclear state will be deterred by the credible threat that the nuclear weapon state will use those weapons to protect its ally. (19) Australia has relied on US nuclear protection as a key component of its international security policy for decades. (20) Since the early 1990s, it has also consistently and openly interpreted ANZUS as having a nuclear security component which allows the US to use, or threaten to use, nuclear weapons in defence of Australia. (21) As discussed in detail below in Part IV, while the US has not publicly acknowledged that ANZUS places Australia under the US nuclear umbrella, it has acquiesced to Australia's repeated assertions on this point. (22) We have written elsewhere in more detail about Australia's reliance on extended nuclear deterrence and what it means for Australia's nuclear disarmament obligations. (23) For the purposes of this article, the policy of extended nuclear deterrence is one of two main ways that Australia is indirectly involved with nuclear-related activities that we are examining in the context of the TPNW and ANZUS. The second way that Australia might potentially be complicit in nuclear weapons use is through the mass surveillance and intelligence activities that take place at the joint defence facility known as Pine Gap. (24)

B The Nuclear Activities Supported by Pine Gap

Largely shrouded in secrecy, what we know about the Australia-US joint defence facilities comes from reports from former personnel, (25) leaked documents, (26) and painstaking investigations undertaken by a group of academics led by Desmond Ball, Bill Robinson and Richard Tanter. (27) Tanter in particular has published a number of articles on the facilities' involvement with nuclear weapons. (28) Of the various joint defence facilities stationed in Australia, Pine Gap...