155 Submission from Booker to Hasluck

Canberra, [6] February 19691

Confidential

Cape Keraudren: Partial Test Ban Treaty and Non-Proliferation Treaty

This submission considers the applicability of international treaties to the project to develop a harbour at Cape Keraudren,2 near Port Hedland, with the use of nuclear explosives, and makes recommendations as to the handling of parliamentary questions on this aspect of the project.

  1. A separate submission is being made to you on other aspects of this project.
  2. External Affairs interests in regard to the Cape Keraudren project include:
    1. the relevance or otherwise to it of the treaty banning nuclear weapons tests in the atmosphere, in outer space and under water (the partial test ban treaty); and the treaty on the non-proliferation of nuclear weapons.
    2. the avoidance of a situation in which a nuclear explosion in Australia would become a matter of international controversy, for example, in the field of nuclear weapons testing.
    3. the avoidance of adverse international reactions on the score of safety, especially on the part of the neighbouring Asian countries.
  3. The present Australian position in regard to the project is that all that has been decided so far is that a feasibility study is to take place, and that a decision on the execution of the project itself must await completion of the study, an examination in the light of the results of the study and the applicability of the partial test ban treaty, and then a new decision by each government whether to proceed. (Thus the question of the applicability of the test ban treaty or the non-proliferation treaty is not raised at this stage although such matters may have to be considered in the future.)
  4. The partial test ban treaty obliges parties to prohibit, prevent and not to carry out nuclear weapon test explosion or any other explosion 'in the atmosphere, beyond its limits, including outer space, or underwater, including territorial waters or high seas; or in any other environment if such explosion causes radioactive debris to be present outside the territorial limits of the state under whose jurisdiction or control such explosion is conducted'
  5. Since they will presumably be conducted under the sea floor in territorial waters, nuclear explosions at Cape Keraudren might be deemed to breach the test ban treaty. Whether they would be regarded internationally as doing so would depend on legal and political opinion as to whether an explosion under the sea floor was prohibited and whether the devices to be used would disperse radioactive debris outside Australian territorial limits (that is, beyond the three mile limit of the territorial sea).
  6. If it were considered that the proposed explosions were forbidden, it would be necessary to seek an accommodation of some kind with the adherents to the test ban treaty before they could proceed. We do not know at this stage how the Americans, upon whom the main responsibility for getting such an accommodation would fall, would want to arrange this. Three possible ways suggest themselves:
    1. Abilateral 'understanding'with the U.S.S.R. This procedure would have the possible disadvantage that it might give offence to some non-aligned countries who are also parties to the treaty.
    2. An 'understanding' involving all parties to the test ban treaty. This would be cumbersome and would take a long time to organise. (There are 89 parties to the treaty.)
    3. A procedure negotiated in the context of implementing article V of the treaty for the non-proliferation of nuclear weapons.
  7. With regard to (c) in the foregoing paragraph, article V of the treaty for the nonproliferation of nuclear weapons obliges parties to take appropriate measures to ensure that, under appropriate international observations and through appropriate international procedures, potential benefits from any peaceful applications of nuclear explosions will be made available to non-nuclear weapon states party to the treaty. At the time of writing, the treaty has 37 signatories and nine ratifications. It requires 43 ratifications, including those of Britain, the U.S.A. and the U.S.S.R., to bring it into effect. Australia has not yet signed the treaty.
  8. The U.S.A. and the U.S.S.R. are co-sponsors of the treaty. Both have made it clear that an effective barrier to the proliferation of nuclear weapons is one of the main objectives of their foreign policy. The intention behind the inclusion of article V in the treaty was to offer non-nuclear countries some compensating advantages for giving up the option of acquiring nuclear weapons. The article does not say that non-parties to the treaty cannot get the benefits of peaceful nuclear explosions but the implication is that the benefits are intended for the signatories. In fact the Russians have said that non-parties will be ineligible. Although the Americans have not committed themselves on this point, they would be bound to take substantial note of the views of the Russians. The Americans would, no doubt, also want to keep in mind the likelihood of adverse reaction from countries that were party to the treaty if the first peaceful nuclear explosions were conducted for the benefit of a non-party. It was no doubt with these considerations in mind that the Americans included a reference to the non-proliferation treaty in their note accepting Australia's invitation to take part in the feasibility study.
  9. The Americans have agreed to Australia's request not to mention the non-proliferation treaty in their press statements. If direct questions were however asked by third countries, in the U.S. congress or by the press about the relationship of the project to the partial test ban treaty or the non-proliferation treaty, an answer would be given on these lines:
    1. First, the study in question is simply a technical feasibility study and it does not involve the limited test ban treaty or the non-proliferation treaty.
    2. Second, if pressed for elaboration, 'if the feasibility study should indicate that the project might be carried out a number of factors such as those you have referred to (i.e., the treaties) would naturally have to be considered'.
  10. The Americans suggested that this statement might give rise to questions whether Australia shared these views and whether they had been discussed with Australia. They sought an indication of our preferred answer to any such questions, and said they would like to say 'yes'. In answer, they were told that the Australian preference would be to say, 'Broadly, yes, but if questioned we would say that we cannot see that the N.P.T. affects the situation'.
  11. As of writing, the Americans have not so far been called upon to offer any comment on the lines indicated above.

Parliamentary questions

  1. It is likely that questions will be asked about the project when Parliament resumes. If these are about the technical, economic, safety or legal aspects of the project, presumably the Prime Minister, the Minister for National Development or the Attorney-General will answer them. If they are about the international treaty aspects of the project, they may however be addressed to you and it is recommended that you reply along the following lines:
    1. All that has been decided so far is that an economic and technical feasibility study of the project is to take place.
    2. The aim of the Australian Government would be to conduct the project in accordance with the international obligations of the parties concerned.
    3. It is difficult at this stage to speculate usefully about hypothetical possibilities.
  2. It is further recommended that, if you approve this suggested response, its terms be communicated to the Prime Minister, and to your representative in the Senate.

[NAA: A1838, TS919/10/5 part 19]