The Right to Withdraw from the NPT: Article X is Not Unconditional

1 May 2005

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.