Article X of the Nuclear Nonproliferation Treaty: Deterring and Responding to Withdrawal by Treaty Violators
Bureau of International Security and Nonproliferation
The great benefits that the NPT brings to the international community, however, would be dangerously eroded if countries violating the Treaty felt free withdraw from it, develop nuclear weapons, and enjoy the fruits of their violation with impunity. If violation entailed no cost, and withdrawal were perceived as ending international efforts to require corrective action, the Treaty's system of interrelated security and developmental benefits could collapse, undermining the Treaty's basic nonproliferation rules and making universal adherence pointless.
The specter of such a future has now been raised. After years of demonstrating contempt for its safeguards obligations and developing nuclear weapons, North Korea announced in January 2003 its intent to withdraw from the Treaty. Its statements and actions before and since that date -- not least in conducting a nuclear detonation in October 2006 -- demonstrate that North Korea's withdrawal is precisely the sort of conduct that the international community cannot permit if the NPT is to continue to serve its purposes. Meanwhile, as the Iranian regime has itself been caught in multiple and ongoing violations of its NPT obligations, its leaders have hinted that they too are considering withdrawal. The international community's so far rather ambivalent response needs to be remedied, because how we respond to these provocations will help determine whether the Treaty survives to bring its benefits to future generations.
For these reasons, NPT States Party should consider Article X with great care. The question of how best to deter and, if necessary, to respond to NPT withdrawal by Treaty violators is both important and urgent. Prompt and effective international action is imperative. States Party should place this issue high upon their agenda for the current NPT review cycle, build upon the excellent preparatory work done on Article X issues for the 2005 NPT Review Conference (RevCon), and work closely together in order to implement appropriate measures as quickly as possible.
Treaty Benefits and Treaty Good Faith
All States Party to the NPT enjoy enormous security benefits from the Treaty, most of all in the assurances it helps provide that a non-nuclear weapon state (NNWS) neighbor or rival will not develop nuclear weapons - and in the consequent assurances the NPT also helps provide to all humanity against the emergence of dangerous new nuclear arms races. This is the basic purpose of the Treaty. This purpose, however, is undermined if States Party do not comply with the NPT, and if such states feel free to withdraw from it without consequence.
Parties to the NPT enjoy certain benefits not available to those states that have chosen not to adhere to the Treaty. Among those benefits is participation in deliberations at Review Conferences and Preparatory Committee meetings, which discuss important aspects of the operation of the Treaty. The Treaty's benefits also include an assurance of access to nuclear cooperation and a broad range of technical support in the use of nuclear technology for peaceful purposes. A state Party that enjoys these benefits while clandestinely violating its NPT obligations, however, demonstrates its contempt for the Treaty and perpetrates a sort of fraud against all other States Party. A State Party that withdraws from the NPT after violating the Treaty should not be permitted to avoid corrective action by the international community to deprive it of the benefits derived while in violation of the Treaty.
Withdrawal does not absolve a state of any violation of the Treaty that was committed while still a party to the Treaty. Should a party withdraw from the Treaty before it remedies its violations, it should remain accountable for those violations. Pursuant to Article X, countries have a right to withdraw from the Treaty, but they do not have a right to profit from their violations, and other States Party should ensure that they do not.
Deterrence and Effective Response
Effective international action to ensure that violators will not benefit from their deceit would not merely have the effect of achieving a less dangerous and more just outcome in their particular cases. It would also strengthen the NPT, better preserve international peace and security, and reinforce norms that facilitate international nuclear cooperation, because it would make both violation and Treaty withdrawal during or after violation less attractive options for others in the future. The elements of response and deterrence are interlinked: strengthened deterrence will lessen the chance of circumstances developing in which it will be necessary to respond to a violator's withdrawal. At the same time, each instance of effective response will help deter others from following such a path in the future.
The Existing Framework
Should a party announce its intention to withdraw, the NPT and the nuclear nonproliferation regime already provide an opportunity (three-months' advance notice) for the international community to address the situation. It is clear, moreover, that the Treaty envisions that Parties will consider withdrawal only in the most serious of circumstances: those which jeopardize its supreme interests. Pursuant to the text of Article X.1,
By requiring three months notice before withdrawal is complete, Article X allows parties and the United Nations Security Council (UNSC) - and thereby implicitly nearly any interested party with influence it might bring to bear - time to seek to influence the withdrawing party or to prepare to deal with the consequences of a completed withdrawal. The requirement that the withdrawing party include a statement in its notice of withdrawal explaining the circumstances it believes jeopardize its supreme interests affords the international community an opportunity to review and evaluate the motivations and reasons of the withdrawing party. Although a decision to withdraw is solely a matter of national sovereignty, the international community should seek to exercise any avenues of redress that may be available to it if it is clear that such reasons are offered in bad faith, especially with the intent of continuing pre-existing NPT violations.
The NPT conveys no power to stop withdrawal from taking effect if the reasons given are in the judgment of the international community frivolous or improper, but neither would the Treaty prevent the international community from taking appropriate steps against a withdrawing party, especially a party that had demonstrated that its actions posed a threat to international peace and security. Given the destructive capabilities presented by nuclear weapons, the possession of which is regulated by the Treaty, NPT withdrawal would ordinarily raise issues within the competence of the Security Council. Withdrawal by a country that had already violated its NPT obligations should be of very great concern indeed.
Responding to Withdrawal
NPT Parties should undertake a wide range of actions to seek to dissuade a state from withdrawing while in violation of the Treaty, and to express opposition to such a step - before, during, and after the Article X notice period. Such measures, depending on the circumstances, could include:
1. UN Security Council: Because an NPT violator's intention to withdraw from the NPT will likely be coupled with the intention to acquire nuclear weapons, the Security Council must carefully consider the potential consequences of the intended withdrawal for international peace and security. Upon its receipt of a notification of withdrawal, the Security Council, therefore, should meet promptly to consider the "extraordinary events" cited by the party as jeopardizing its supreme interests and thereby giving rise to its intention to withdraw, as well as the likely consequences for peace and security of the withdrawal and the possibility that alternative measures short of withdrawal might address and resolve the circumstances cited by the party.
The Security Council has made clear that proliferation of nuclear weapons constitutes a threat to international peace and security. Accordingly, in a case of withdrawal from the NPT by a violator, the Council should consider the full range of options provided by the Charter, including under Chapter VII, as may be warranted by the circumstances of the case. Withdrawal by a party in breach of NPT commitments raises particular concerns because other Parties may have based their security calculations and decisions regarding nuclear cooperation on the withdrawing party's compliance with those commitments.
The Security Council could ask the International Atomic Energy Agency (IAEA) for all relevant information it may have about the country in question, including the status of safeguards compliance by the withdrawing state. The IAEA may be able to provide other information such as the state's capabilities in reprocessing and enrichment and any holdings of enriched uranium and plutonium, as well as its inspectors' assessments of activities known to be underway there.
The Security Council also may wish to undertake consultations with the withdrawing party and make clear the possible future steps the Council might take. Should the requirements of Article X.1 of the NPT be fulfilled and withdrawal completed, the Council should carefully consider whether the situation resulting from the withdrawal constitutes a threat to international peace and security. Upon making such a determination, the Council should consider all appropriate measures, including invoking its authority under Chapter VII of the United Nations Charter to impose specific conditions of transparency and accountability upon nuclear-related activity in the country in question, and/or regulate the scope of permissible nuclear-related dealings with that country.
2. IAEA Board of Governors: The International Atomic Energy Agency has no specific role in matters of Treaty withdrawal per se. It has specific statutory authorities and responsibilities in the event of a Party's noncompliance with nuclear safeguards, however, which might become important in instances in which a Party violates safeguards obligations prior to attempting Treaty withdrawal. The Agency also has some ability to shape safeguards obligations in such a way as to lessen the danger that withdrawal would immediately result in nuclear materials and technology being subject to no safeguards at all. Accordingly, the IAEA and its Board of Governors could consider the following:
3. Nuclear Supply: There should be no further nuclear supply to a country in violation of the NPT that has withdrawn or made a notification of withdrawal. Nor should such a withdrawing party be allowed to benefit from the use of nuclear materials and equipment that it imported while it was party to the Treaty. NPT Parties engage in nuclear cooperation based on a good-faith assumption of Treaty compliance and, in the case of a NNWS recipient, on its acceptance of comprehensive IAEA safeguards required in connection with the NPT. A withdrawing state that has violated the NPT should not continue to enjoy the benefits acquired while it was a party to the Treaty.
To this end, NPT nuclear supplier states should seek through appropriate means to halt the use of nuclear material and equipment previously supplied to the withdrawing state, and to secure the elimination of such items or their return to the original supplier. Nuclear suppliers should reserve these rights in their bilateral nuclear supply arrangements, and exercise them wherever appropriate.
Return of such items could also be directed by the Security Council in a Chapter VII resolution, if such an action were deemed necessary to respond to a threat to international peace and security. Finally, even in cases where there has been no supply, nuclear supply arrangements might be terminated, where possible, as an expression of disapproval.
(We note in this connection that, as indicated above, Article XII.A.7 of the IAEA Statute gives the IAEA the right to "withdraw any material or equipment made available by the Agency or a member" in furtherance of an Agency project if a recipient state does not comply with the relevant safeguards requirements and fails to take corrective action in a reasonable time. Article XII.C has a similar provision. The concept of removing materials and equipment from a State based on its failure to meet nonproliferation norms is not a new or novel concept, and thus it is reasonable to adapt the concept in cases of NPT withdrawal by a country that has failed to meet nonproliferation norms by violating the NPT.)
Finally, states may have their own resources to bring to bear against the efforts of withdrawing Parties to develop further nuclear capabilities, including with regard to information-gathering and various means of interdiction. In the event of a withdrawal by an NPT violator, States with such resources could focus their assets on the withdrawing state as a country of proliferation concern in an attempt to stop any clandestine transfers directed at the acquisition of a nuclear weapons capability or of the proliferation of such technology to others.
The right to withdraw from the NPT remains a sovereign right enshrined in the Treaty itself. But nothing in the NPT gives countries the right to benefit from their violation of the Treaty's provisions, or to shield themselves from the consequences of such acts. And Parties to the NPT, indeed all countries, have a sovereign right to consider the ramifications of such a withdrawal for their individual and collective security. States Party should make clear that they will ensure that all appropriate consequences will flow in the event of withdrawal from the Treaty by a violator. By doing this, they will also help deter such actions and further the goal of universal adherence.
It is of critical importance to the nuclear nonproliferation regime that NPT States Party work together to develop and implement prompt and effective measures to deter withdrawal by Treaty violators and to respond vigorously should it occur. Prompted by North Korea's announcement of withdrawal in 2003, much valuable work was done on this subject in connection with the 2005 Review Conference. This issue should be a top priority for the current NPT review cycle as well, and States Party should work diligently to ensure agreement upon effective steps. The review cycle has a valuable role to play in helping develop and encourage such measures, and in reaffirming the norms of the NPT and the broader nonproliferation regime they reinforce.