NORTH KOREA'S WITHDRAWAL
FROM THE NUCLEAR NONPROLIFERATION TREATY
By Frederic L. Kirgis
January 2003
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Consequently, if North Korea has validly withdrawn from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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