Disarmament Diplomacy
Issue No. 79, April/May 2005
The Right to Withdraw from the NPT:
Article X is Not Unconditional
George Bunn and John Rhinelander
Each Party shall in exercising its national sovereignty
have the right to withdraw from the Treaty if it decides that
extraordinary events, related to the subject matter of this Treaty,
have jeopardized the supreme interests of its country. It shall
give notice of such withdrawal to all other Parties to the Treaty
and to the United Nations Security Council three months in advance.
Such notice shall include a statement of the extraordinary events
it regards as having jeopardized its supreme interests. [Article
X.1, the Treaty on the Non-Proliferation of Nuclear
Weapons]
Do the nations that belong to the Nuclear Nonproliferation
Treaty (NPT) have a right to withdraw from it at any time they wish
and for any reason? This is a key question when considering
international legal constraints on nuclear proliferation, and one
that will confront the States Parties when they meet in New York on
May 2. This article argues that the NPT and the United Nations
Charter provide limits on the right of withdrawal from the treaty
by authorising the UN Security Council to take action against NPT
withdrawals that could lead to threats to international peace and
security.
Except for the Security Council's orders requiring Iraq to end
its nuclear-weapon-making activities and submit to inspections by
International Atomic Energy Agency (IAEA) personnel after the 1991
Gulf War and again in 2002, none of the past decisions of the
Security Council that related to NPT enforcement resulted in an
order requiring an alleged offender to refrain from activities that
appeared to be intended for the manufacture of nuclear weapons.
Even after the IAEA Board of Governors had referred North Korea's
noncompliance to the Security Council, and North Korea had
subsequently given notice of its withdrawal from the NPT in 1993,
the Security Council was divided. China could not be persuaded to
agree with the other P-5 permanent members of the UN Security
Council (France, Russia, United Kingdom, and United States) that
the Council should take action to restrain North Korea. All that
could be agreed was that the Council should call upon North Korea
to permit IAEA inspections, which North Korea then refused to do.[1] Council action could have included
an order requiring North Korea to restore the status quo that
existed before it became non-compliant, to desist in its efforts to
hide what it was doing from the IAEA, to require removal of
distinctly weapons-related material or equipment, or to remain a
party to the NPT at least until the disputes over compliance were
resolved through further negotiation or further Council action.
However, it failed to order any of these actions.
After the failure of the Security Council to act effectively in
1993, the US Secretary of Defense concluded that the use of force
against North Korea was necessary to prevent it from acquiring
nuclear weapons. Before force was ordered, a US offer to negotiate
resulted in North Korea taking back (or, as it later argued,
suspending) its notice of withdrawal from the NPT on the 89th day
of the three-month NPT withdrawal period.[2] The subsequent negotiations resulted in the Agreed
Framework of 1994 between North Korea and the United States.[3] This restrained North Korea's
plutonium production for weapons, but US intelligence believes that
Pyongyang may instead have carried out hidden efforts to enrich
uranium. Following IAEA revelations and concerns raised during
2002, talks with the United States joined by North Korea's
neighbours (China, Japan, Russia and South Korea) seemed to produce
little beyond an apparent, but now contested, admission of uranium
enrichment activities.[4]
Under mounting pressure, North Korea announced its withdrawal
from the NPT in January 2003. Again, the withdrawal was put before
the Security Council, which did nothing, apparently because of
disagreements among the P-5, notably China and the United States.
In the absence of Council action, the NPT states parties found
themselves without any mechanism or authority to act, even though
the integrity of the NPT was put at stake. As a consequence, this
case raises fundamental questions about the role and legitimate
powers of the Security Council where withdrawal from a treaty such
as the NPT is deemed to threaten international peace and security,
as many believe is true of North Korea's withdrawal.
Grounds, Circumstances and Threats to International Peace
Generally, for bilateral treaties without any clause on
withdrawal, the right to withdraw may be inferred from the
circumstances.[5] On the other hand,
with multilateral treaties where suspension of its obligations by
one party may affect more than one other party, the right of
withdrawal depends upon what the agreement says in its entirety,
including the rights of the other parties.[6] In other words, if the treaty has a withdrawal
clause as the NPT does, any "right" of withdrawal depends on what
the treaty provides. The NPT permits withdrawal only if a party
"decides that extraordinary events, related to the subject matter
of this Treaty, have jeopardized the supreme interests of its
country". The NPT says that the withdrawing party must then give
three months notice of its intention to withdraw to all the other
NPT parties "and to the United Nations Security Council...,"
including a statement of the "extraordinary events" it regards as
having "jeopardized" its "supreme interests".[7]
North Korea's stated reasons for withdrawal were apparently
deemed inadequate by most if not all the permanent members of the
Council; since the discussions among the P-5 have not been made
public, we cannot know for certain the positions taken by China in
1993 and 2003. However, it appeared in 1993 that China wanted to
stimulate negotiations by the United States with North Korea and so
refused to give the United States the assurance that it would not
veto a Security Council resolution against North Korea if one was
presented.[8] By 2003, political
tensions had increased, and although negotiations were continuing
periodically, it appears that Kim Il Jong decided that they were
not producing enough value for North Korea to stay within the NPT.
So it withdrew.
If the P-5 and most of the other Security Council members are
able to agree, however, what should be the appropriate role for the
Council? We argue that in North Korea's case, the expiration of the
NPT's three-month notice-of-withdrawal period did not end the power
of the Security Council to take action, since the development of
nuclear weapons constitutes a threat to international peace, for
which the Council has special responsibility.
In its origins, the NPT withdrawal clause was modelled on a
provision in the 1963 Partial Test Ban Treaty (PTBT), which was
finally concluded following American-British-Soviet negotiations in
Moscow. The PTBT provision, however, was intended to give the three
original parties (and all others who were expected to join the
treaty) rights to withdraw from the treaty by simply giving notice
to the other parties of the "extraordinary events" the withdrawing
party regarded as having "jeopardized their supreme interests."[9]
The NPT is different. In 1967, the Soviet Union and the United
States followed some of the PTBT language in negotiating the
NPT withdrawal clause. But in addition to requiring a withdrawing
state to give three months notice to the Security Council of
withdrawal, Article X contained new language that showed a change
of meaning and intent. The important addition was language making
the Council a required recipient of the notice and statement of
withdrawal. No reference to the Security Council had appeared in
the PTBT. The NPT also added language saying that the withdrawing
party must include in the notice "a statement of the extraordinary
events it regards as having jeopardized its supreme interests." The
PTBT contained no such requirement.[10]
During the NPT negotiations, these two NPT additions to the PTBT
language were specifically questioned by Brazil, a participant in
the formal negotiating conference. Brazil argued that new language
would add limitations on withdrawal that were not in the PTBT. In
his response, the Soviet representative justified the additions by
explaining that "observance of the non-proliferation treaty and its
effectiveness are bound to be related to the powers of the Security
Council, which according to Article 24 of the United Nations
Charter, has the primary responsibility for the maintenance of
international peace and security."[11]
It is thus clear that the language agreed by the NPT parties was
intended to authorise the Council to consider a party's withdrawal
and take action, if necessary, to maintain international peace and
security. Since the Council has such authority under the UN
Charter, it could take action to restrain withdrawal in appropriate
circumstances, if given the three-month required notice and the
reasons for a proposed withdrawal from the NPT.[12] The three-month notice was supposed to give
Council members time to consult, to acquire further information
about the causes and consequences of the party's withdrawal, and to
negotiate the Council's response or resolution for action.
Mohammed Shaker, a leading Egyptian diplomat, international
lawyer and member of his country's delegation to the Geneva
Disarmament Conference during most of the 1960s, later wrote a
detailed history of the NPT negotiations. Considering what must
have been intended by adding the requirement that the Council be
given notice of the withdrawal and a statement of the reasons for
withdrawal, he concluded:
"There is no doubt that withdrawal from a treaty such as the
NPT would be of direct concern to the Security Council, which
should be given the opportunity to examine the grounds for
withdrawal and its possible impact on the viability of the NPT.
Since the decision to withdraw might most probably be based on
security considerations, as can be implied from the text of [the
NPT withdrawal clause] and its negotiating history, the Security
Council would be a suitable forum for meeting security
preoccupations of the withdrawing Party. Moreover, [there is] the
possibility that withdrawal might imply or indicate an imminent
acquisition of nuclear weapons [or, quoting the Charter] ...'a
situation which might lead to international friction' justifying an
investigation by the Security Council... The entire situation might
thereafter be characterized as a 'threat to the peace' [quoting the
Charter again] justifying the application of appropriate
sanctions...".[13]
Thus, the NPT withdrawal clause's requirement that the UN
Security Council be notified of any withdrawal was intended to
provide information to the Council of a withdrawal since it was
likely to be based on "security considerations" and might result in
a "threat to the peace" within the meaning of provisions of the UN
Charter giving the Council authority to act against such threats.
If the Council then found that the withdrawal might foreshadow such
a threat, it would have authority to take action to delay or
prevent withdrawal or to require other action by the withdrawing
party before it would have permission to withdraw. Whether or not a
withdrawal from the NPT might constitute a threat to the peace
would presumably be the test of whether the UN Security Council
took action to restrain the withdrawal.[14]
Addressing Withdrawal in the 2005 NPT Review Conference
What could this mean today, in light of North Korea's withdrawal
from the NPT, the first since the Treaty entered into force in
1970?
The 2003 Preparatory Committee meeting for the 2005 NPT review
conference mainly avoided the issue, perhaps in the hope that North
Korea would come back into compliance. By 2004 it was clear that
North Korea intended to continue its nuclear programme without IAEA
inspection, with the stated intention of developing nuclear
weapons. To do this, North Korea would have to use materials,
technology or equipment acquired while it was a non-nuclear-weapon
party to the NPT. Moreover, it can be argued that the relevant
materials, technology or equipment were made available to North
Korea only because it was in the NPT. Nuclear-related
exports that could possibly assist a non-nuclear-weapon NPT party
in making nuclear weapons are prohibited by the NPT unless the
nuclear facilities are under IAEA safeguards.[15]
On this basis, Germany proposed at the 2004 PrepCom that NPT
parties should agree now "that the right of withdrawal cannot be
exercised in cases where the state in question is or is alleged to
be... in non-compliance with the NPT." Moreover, Germany contended,
"a state withdrawing from the NPT is still accountable for breaches
or acts of non-compliance committed while still... a party to the
NPT... [and] will continue to be subject to decisions of the
relevant international institutions such as the IAEA and the
UNSC."[16]
France made a related argument: A nation that has announced that
it is withdrawing from the NPT should not be permitted to make use
of nuclear materials, facilities, equipment or technology acquired
while it was a party to the NPT.[17]
Thus, having been provided with nuclear materials, etc. on the
assumption that they would be under safeguards and used solely for
peaceful purposes because it was an NPT party, a withdrawing
party should be required to give them up because it no longer was
an NPT party subject to safeguards.
Another argument that has been advanced is that before
withdrawal can be accomplished, a withdrawing party should be
required to establish that it is in full compliance with the NPT,
presumably by means of full transparency and verified compliance
with IAEA inspections.[18]
The NPT preparatory meetings at which these ideas were put
forward broke up in disagreement over other issues, and there was
no consensus on taking any of these suggestions forward as
recommendations. At the 2005 NPT Review Conference, there may be
additional arguments related to the withdrawal besides those
describing its legal meaning such as we have made here. For
example, there could be an effort to get as many NPT parties as
possible to make unilateral statements voluntarily renouncing their
right to withdraw from the NPT, at least until the next review
conference.
What other possible remedies are realistic? Could the Review
Conference ask the UN Security Council to adopt a resolution to
warn any NPT parties considering withdrawal that they would face
continuing NPT obligations with respect to the nuclear materials,
technology and equipment acquired earlier because of their
membership in the NPT?
In 1992, the national leaders of the members of the Security
Council at the time issued a statement that the spread of nuclear
and other weapons of mass destruction constituted a "threat to
international peace and security" within the meaning of Chapter VII
of the UN Charter which authorises the Security Council to take
action against such threats.[19] In
light of this 1992 statement and the current and potential threats
exemplified by North Korea's withdrawal from the NPT, could the
Security Council announce that if any state were to evoke the NPT's
withdrawal provision, the Council would assess its reasons and
circumstances to determine whether Council action was needed to
preserve international peace and security?
Conclusion
Based upon the NPT's negotiating history, the addition of the UN
Security Council as a recipient of withdrawal notification
demonstrates the negotiators' intentions that the Council consider
and be empowered to restrain withdrawal or take other action as
deemed necessary. The PTBT withdrawal language was substantially
changed for the purposes of the NPT for good reason. The language
and history of Article X, combined with the provisions of the UN
Charter, effectively constituted a request by NPT parties that the
Security Council should police withdrawals to make sure that they
do not threaten international peace and security. Under the UN
Charter, the Council has clear authority to stop a withdrawal, to
impose sanctions on the withdrawing NPT party or to require such a
party to give up nuclear materials or equipment acquired while it
was still an NPT party. The important point is that the NPT
requires a withdrawing party to give notice and a statement of
reasons not only to treaty parties but also to the Security Council
for a purpose: so that the Council can decide whether to take
action to slow or prevent withdrawal if withdrawal could constitute
a possible threat to international peace and security.
Notes
[1] See George
Bunn, "A Brief History of the DPRK's Nuclear Weapons-Related
Efforts," in Michael May, et. al, Verifying the Agreed
Framework, (Livermore, CA: Livermore National Laboratory's
Center for Global Security Research and Stanford University's
Center for International Security and Cooperation, 2001), pp.
16-17.
[2] Ashton B.
Carter and William J. Perry, "Preventive Defense" (Washington:
Brookings Institution Press: 1999) , pp. 124-133.
[3] Bunn, 2001,
op. cit.
[4] US
intelligence sources are convinced that North Korea has pursued
uranium enrichment. Furthermore, although Pyongyang now denies any
enrichment programme, a senior North Korean official reportedly
confirmed to a US diplomat, in a private meeting during the Six
Power Talks, that North Korea had been enriching uranium.
[5] See, e.g.,
Restatement of the Law: Foreign Relations Law of the United
States, Third (American Law Institute,1987), v. 3, Sec. 332
(2).
[6] Ibid. at Sec.
333.
[7] NPT, Article
X.1.
[8] Thereafter, as
noted above, negotiations did take place, ultimately producing the
1994 US-North Korea Agreed Framework. After negotiations had begun,
North Korea took back its earlier withdrawal notice - on the last
day of the three-month notice period, and so remained an NPT State
Party, subject to the obligations and inspections required by the
Treaty.
[9] See G. Bunn,
Arms Control by Committee (Stanford, CA. Stanford U. Press,
1992), p. 38.
[10] The
withdrawal clause for the bilateral ABM Treaty of 1972 between the
Soviet Union and the United States followed the NPT pattern with a
fundamental exception. It made no reference to the Security Council
and instead established a consultative commission that would
conduct its business in secret. The United States, in exercising
this six-month withdrawal provision, acted lawfully under the terms
of the ABM Treaty and international law. See John B. Rhinelander,
"The ABM Treaty: Past, Present and Future" (Part II), Journal of
Conflict Resolution and Security Law, (2001), v. 6, no. 2, pp.
234-236.
[11]
Eighteen-Nation Disarmament Conference, Provisional Verbatim 377,
March 112, 1968, pars. 24-31. See also Mohammed Shaker, The
Nuclear Nonproliferation Treaty (New York: Oceana Publications
1980), p.895. Dr Shaker was President of the Third NPT Review
Conference in 1985.
[12] See UN
Charter Chapter VII.
[13] Shaker,
supra, p. 896.
[14] See UN
Charter Chapter VII, Articles 39, 41, 42.
[15] See NPT
Articles I, II, III and IV.
[16] Germany,
"Strengthening the NPT against withdrawal and non-compliance:
Suggestions for the establishment of procedures and mechanisms,"
Working Paper submitted by Germany, NPT/CONF.2005/PC.III/WP.15,
April 29, 2004, available in mid 2004 at
http://www.reachingcriticalwill.org/legal/npt/prepcom04/papers/GermanyWP15.pdf
[17] France,
"Strengthening the nuclear nonproliferation regime: Working paper
submitted by France, NPT/CONF.2005/PC.III/WP.22, May 4, 2004
available in mid 2004 at
http://www.reachingcriticalwill.org/legal/npt/prepcomo4/papers/Francewp22.pdf.
[18] See Rebecca
Johnson, "Is the NPT up to the challenge of proliferation?"
Disarmament Forum: "The 2005 NPT Review Conference" (UNIDIR
2004), v.4, p.9.
[19] Richard Dean
Burns, ed., Encyclopedia of Arms Control and Disarmament
(New York: Scribners' 1993), p. 460.
George Bunn is a former US Ambassador to the Geneva
Disarmament Conference who served on the US delegation during the
NPT negotiations.. A lawyer by profession, he also practiced law in
Washington, DC and taught law at the University of Wisconsin and
the US Naval Post Graduate School. For the last 20 years, he has
done research on arms control at Stanford University's Center for
International Security and Cooperation. John B. Rhinelander is
Senior Counsel at Pillsbury Winston Shaw Pittman in Washington DC.
A former Deputy Legal Adviser at the Department of State, John
Rhinelander was also Legal Adviser to the US delegation in the SALT
I negotiations.
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