Withdrawal from the Treaty on the Non-Proliferation of Nuclear Weapons May Be a Threat to Peace and Security
By George Bunn and John B. Rhinelander
Aug. 17, 2005

The Nuclear Nonproliferation Treaty (NPT) provides that a state-party intending to withdraw from the treaty must give the UN Security Council three months’ notice of its intention and provide the Security Council with its reasons for withdrawal. The intent of this provision, set out in Article X, is to give the Security Council an opportunity to deal with any withdrawal that might produce a threat to international peace and security. Proper interpretation of Article X of the NPT is crucial to inhibiting withdrawals from the NPT which can threaten the neighbors and rivals of the withdrawing party as well as constitute long-term threats to international peace and security in other parts of the world. Thus far the Security Council has failed to act with regard to the outstanding case of North Korea except, in 1993, to recommend that it not withdraw. The Council may at some point be confronted by the potential case of Iran. Tehran has been under investigation for more than two years largely because of its efforts to enrich uranium. In its negotiations with Europe over its uranium enrichment program, its negotiators have suggested that, if pressed too hard, they would follow in North Korea’s footsteps and withdraw from the NPT.

What does Article X of the NPT provide with respect to withdrawal from the treaty? It provides a conditional right to withdraw if (1) the withdrawing party “decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country” and (2) if it gives three months’ notice to all the other parties to the treaty “…and to the United Nations Security Council….”

Although the recently-concluded NPT Review Conference in New York City last month was unable to address the withdrawal issue generally, or the North Korea case or the Iranian threat to withdraw specifically, the Security Council should be prodded by its members to address the NPT withdrawal issue. At some point, the Security Council will probably be forced to consider what role it should play in cases where withdrawal from the NPT of a state threatens international peace and security. The sooner it does so, the more likely a statement announcing its policies and procedures for dealing with NPT withdrawals could be useful in inhibiting future withdrawals from the NPT.

A predicate for the articulation of such a policy statement is the 1992 Statement issued by the then national leaders of the members of the Security Council 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 authorizes the Council to take action against such threats. Given this precedent and the major emerging threats to the nuclear nonproliferation regime that the world faces today, the Security Council should take similar action to demonstrate that it will examine any NPT withdrawal, including that of North Korea or Iran, to see whether the withdrawal could produce a future threat to international peace and security and, if so, what would need to be done to prevent the withdrawing state from making nuclear weapons.

If confronted with this scenario, the Security Council should accept the proposal made earlier by Germany that the NPT withdrawal not be permitted when the NPT party withdrawing is in non-compliance with the NPT. It should also adopt another proposal that any party withdrawing from the NPT be prohibited from using fissile materials or their production facilities that it acquired while it was a member of the NPT. Finally, the Security Council should state that the NPT negotiating history shows that the right to withdrawal is not absolute; it can be conditional by the Council, and its exercise can be prohibited by the Council. If the Security Council finds that the withdrawal might foreshadow a threat to peace, it has the authority to take action, including the use of force, to require a delay in withdrawal, to prevent withdrawal, or to direct other action by the withdrawing party as a condition of withdrawal. 1  2 3 4

For example, the Security Council could command a withdrawing party such as North Korea or Iran to permit effective inspections of its nuclear activities to see that there had been no violations of the NPT constituting a threat to international peace before the withdrawal was to take effect. Furthermore, the Security Council should adopt a resolution stating that, as a matter of principle, an NPT party that withdraws from the treaty remains responsible for violations committed while it was a party to the treaty. Failure to articulate such NPT withdrawal policies in the face of threats to the non-proliferation regime may make it virtually impossible to inhibit further withdrawals.

George Bunn was the first General Counsel to the U.S. Arms Control and Disarmament Agency and served as the senior U.S. legal advisor during the drafting of the Nuclear Nonproliferation Treaty.  Mr. Bunn is a past director and board member of the Lawyers Alliance for World Security (LAWS), and currently serves as a consulting professor at the Stanford Institute for International Studies. 

John B. Rhinelander served as State Department deputy legal advisor and was the senior U.S. legal advisor for the SALT I negotiations.  Mr. Rhinelander is a past president of the Lawyers Alliance for World Security.  He currently is in private practice and serves as LAWS vice president.

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