Uranium sales to India may be in breach of a key international treaty established by the Hawke government in 1985, according to one of Australia’s most eminent international lawyers.

Anti-nuclear group International Campaign to Abolish Nuclear Weapons asked ANU Professor of International Law Donald Rothwell about the implications of Julia Gillard’s proposal to overturn the Labor Party’s long-standing prohibition on the sale of uranium to countries that are not signatories to the Nuclear Non-Proliferation Treaty.

According to Rothwell, sales of uranium to India while it did not have in place full Nuclear Non-Proliferation Treaty (NPT) safeguards — which it does not — would breach the South Pacific Nuclear Free Zone Treaty, signed by the Hawke government in Rarotonga in 1985 and that came into effect in 1986. Eleven Pacific Island states and Australia and New Zealand are signatories.

Under the Rarotonga Treaty, signatories are not permitted to sell uranium to “non-nuclear weapon states” unless subject to special safeguards required by Article III.1 of the NPT (which are established by the International Atomic Energy Agency). For the purposes of the NPT, India is a considered a “non-nuclear weapon state”, as it was not one of the five original nuclear powers in 1967. Rothwell’s advice is that India would similarly be considered a “non-nuclear weapon state” under the Rarotonga Treaty, and quotes comments from the Howard government, which imply as much.

Rothwell notes that the Howard government was asked specifically about whether uranium sales to India breached the Rarotonga Treaty. The issue was raised in Parliament shortly before the 2007 election, when Democrat senator Lyn Allison asked a series of questions about the issue. In responding on behalf of the government, then-deputy leader of the government Helen Coonan said that uranium sales to India would not breach the treaty. However, her answer was on the basis that “the uranium is covered by IAEA safeguards”.

Any sale of uranium by Australia to India, before it has in place all of the safeguards under Article III of the NPT, is therefore likely to place Australia in breach of the Rarotonga Treaty. Under the Treaty, other signatories can complain about Australia’s breach of the treaty and even take the dispute to the International Court of Justice.

In practice, however, the real sensitivity on the issue is within Labor itself. The Rarotonga Treaty was supported by Bob Hawke, who earlier this year cited it as an example of his willingness to pursue a foreign policy independent of the US, saying “South Pacific nuclear free zone, they hated the idea, hated it. But I went through it with them and indicated it wouldn’t stop the transit of their aircraft or their ships through the region, and they accepted the concept and particularly as I argued if they had a look at the Treaty of Tlatelolco which covered the Americas they would see similarities between it and so they accepted that.”

Julia Gillard, of course, has tried hard to cultivate an association with Hawke, who addressed Labor’s 2010 election campaign launch. A switch on uranium sales to India wouldn’t merely be a reversal of a long-standing Labor policy, but might wreck an important element of the Hawke Labor legacy.

This article originally referred to Professor “Nicholas” Rothwell and has been corrected. Apologies to Prof Rothwell.