NORTH KOREA'S WITHDRAWAL FROM THE NUCLEAR NONPROLIFERATION TREATY
By Frederic L. Kirgis
On January 10, 2003, North Korea announced (a) that it was withdrawing from the Nuclear Nonproliferation Treaty (NPT), effective immediately, and (b) that its withdrawal from the NPT left it free from the binding force of its Safeguards Agreement with the International Atomic Energy Agency (IAEA).
North Korea became a party to the NPT in 1985 as a non-nuclear-weapon state. Article III of the NPT requires each non-nuclear-weapon state to accept safeguards in an agreement with the IAEA, in order to verify its compliance with its obligation under Article II to refrain from manufacturing or acquiring nuclear explosives. Article X, paragraph 1 of the NPT provides:
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.
In 1992, North Korea entered into its Safeguards Agreement with the IAEA under Article III of the NPT. The Safeguards Agreement provides for measurements and observations of North Korean nuclear material and facilities by IAEA inspectors. Article 26 of the Safeguards Agreement provides, "This Agreement shall remain in force as long as the Democratic People's Republic of Korea is party to the Treaty [the NPT]." Consequently, if North Korea has validly withdrawn from the NPT pursuant to its January 2003 announcement, the Safeguards Agreement would no longer be in force. (North Korea's withdrawal from the IAEA, which occurred in 1994, did not amount to a withdrawal from the NPT and did not terminate the Safeguards Agreement.)
North Korea's stated reasons for withdrawing from the NPT were that the United States was threatening its security by its hostile policy toward North Korea. According to North Korea, the United States had singled it out as a target of a pre-emptive nuclear attack and had threatened it with a blockade and military punishment. The question regarding North Korea's right to withdraw from the NPT under Article X, above, is not whether North Korea's allegations regarding the United States' intent or policies are true in any objective sense. Instead, Article X allows each party to make its own decision as to whether extraordinary events, related to the subject matter of the NPT, have jeopardized its supreme interests. Arguably, customary international law would impose a good faith requirement on the party deciding that extraordinary events have jeopardized its supreme interests, but the NPT does not establish any mechanism for making a determination as to whether a party has acted in good faith.
If, as appears to be the case, North Korea relied solely on Article X of the NPT for its right of withdrawal (as distinguished from relying on the general law of treaties, which permits termination of treaty obligations under certain circumstances), it has failed to comply with the three-month notice requirement. Noncompliance with the notice requirement does not necessarily mean that the withdrawal from the NPT is invalid. The requirement is couched in terms of a promise to give three months' notice, rather than as a condition that would have to be met in order to make the withdrawal effective. It could be argued that the withdrawal becomes effective only after the elapse of three months, regardless of North Korea's intent to withdraw immediately, but even that is not certain. If the withdrawal is effective immediately, as North Korea has asserted, any state that can show harm from the failure to give three months' notice would be entitled, in theory, to some form of reparation from North Korea.
Even if the withdrawal is proper under the strict terms of Article X and is effective immediately, the United Nations Security Council could decide that the withdrawal, considered in conjunction with North Korea's stated intent to resume missile testing, to begin reprocessing spent fuel rods and to reactivate its nuclear facilities, and its expulsion of IAEA inspectors, amount to a threat to the peace. The Security Council could make that determination on its own initiative, or on a referral from the IAEA Board of Governors based on North Korea's noncompliance with its obligations under the Safeguards Agreement. Acting under Chapter VII of the U.N. Charter, the Security Council could impose mandatory economic, diplomatic or even military sanctions on North Korea. Any proposed resolution to impose such sanctions, however, would be subject to a possible veto by any of the permanent Security Council members (China, France, Russia, the United Kingdom and the United States).About the Author:
Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee University School of Law. He has written a book and several articles on United Nations law, and is a member of the Board of Editors of the American Journal of International Law.
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