By George Bunn and John B. Rhinelander
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. This provision was intended to give the Security Council an opportunity to deal with any withdrawal that might produce a threat to international peace and security.
More than two years ago, North Korea renewed its 1993 notice of withdrawal from the NPT, a notice that had been suspended a decade earlier during negotiations with the United States. That announcement left the Security Council with only a single day before North Korea would become the first country to withdraw from the NPT.
The Security Council did nothing. Indeed, it has continued to ignore North Korea’s action even as Pyongyang has repeatedly stated its intention to produce nuclear weapons, sending a dangerous message to other states considering withdrawal. The once-every-five-years NPT review conference that will meet in New York this month provides a valuable opportunity to address the North Korea case and prod the Security Council to address similar cases that may emerge.
North Korea’s Actions and Security Council Inaction
Article X of the NPT provides a “right” to withdraw from the treaty if the withdrawing party “decides that extraordinary events, related to the subject matter of this [t]reaty, have jeopardized the supreme interests of its country.” It also requires that a withdrawing state-party give three months’ notice.
In January 2003, North Korea cited this provision, announcing its intention to withdraw from the NPT after U.S. officials said that Pyongyang had admitted to efforts to enrich uranium for nuclear weapons. Soon thereafter, North Korea kicked out International Atomic Energy Agency (IAEA) inspectors who had been monitoring its nuclear reactors and associated fuel-cycle facilities in Yongbyon to ensure that plutonium was not diverted to weapons purposes. Pyongyang has since claimed on several occasions that it is making nuclear weapons from the plutonium, and U.S. officials continue to accuse North Korea of enriching uranium for additional nuclear weapons.
The episode was in many ways a repeat of a similar standoff a decade earlier. In March 1993, North Korea announced its intention to withdraw from the NPT after questions were raised about whether it was covertly reprocessing plutonium for nuclear weapons. The IAEA a month later referred the case to the Security Council. Later, as the United States was preparing for an attack on North Korea’s reactor and plutonium separation site, former President Jimmy Carter met with then-North Korean leader Kim Il Sung. Carter reported to then-President Bill Clinton that North Korea was prepared to negotiate with the United States.
Carter’s intervention led to U.S.-North Korean talks, to the pulling back by North Korea of its 1993 notice of withdrawal a day before it would have become effective, and to the eventual negotiation of the 1994 Agreed Framework between the two countries. That agreement froze Pyongyang’s plutonium-based nuclear program for nearly a decade, although U.S. officials claim it did not block parallel uranium-enrichment efforts for some of that period. In both cases, however, North Korea pushed its NPT rights beyond their limits. It took advantage of information and technology gained from other countries that may well have relied on its promises to use them for peaceful uses.
The NPT has usually been interpreted as permitting its non-nuclear-weapon members to produce plutonium and highly enriched uranium (HEU) so long as these materials are not later used to make nuclear weapons. Plutonium and enriched uranium can be used to power nuclear reactors but also to provide the explosive material for nuclear weapons. To assure that nuclear materials and facilities are not used to make nuclear weapons, the NPT and associated bilateral NPT safeguards agreements require disclosures of nuclear activities by states-parties and authorize inspections by the IAEA. Significant violations of such agreements are supposed to be referred to the IAEA Board of Governors and ultimately to the Security Council.
Yet, confronted by North Korea’s string of broken promises, the Security Council has dodged this difficult case. In particular, it has not decided whether Pyongyang should be permitted to withdraw from the NPT and have the ability to use its known plutonium-separation facility and a possible uranium-enrichment facility to make plutonium and HEU for nuclear weapons.
In 1993, after North Korea gave its notice of withdrawal from the NPT and after the IAEA had referred Pyongyang’s noncompliance to the Security Council, China refused to endorse steps, such as the use of force, to restrain North Korea from withdrawing. The other permanent members of the Security Council (France, Russia, the United Kingdom, and the United States) and a majority of the nonpermanent members appeared ready to adopt a resolution demanding that North Korea not make nuclear weapons or withdraw from the NPT. Because of China’s opposition, however, the resolution was limited to calling on, but not requiring, North Korea to permit IAEA inspections, a step North Korea refused to take.
In early 2003, North Korea again gave notice of withdrawal, this time taking the position that it was only resurrecting its prior notice so that only one day of notice was required. Again, China stood as an obstacle to Security Council action, insisting instead on negotiations with Pyongyang. Thus, Beijing blocked the Security Council from even requiring that North Korea continue complying with the NPT while North Korea’s grounds for withdrawal were being considered. Instead, beginning in April 2003, China played host to a series of negotiations, which in addition to North Korea and the United States also included North Korean neighbors China, Japan, Russia, and South Korea. The six-party talks have made little progress to date.
The Security Council Role
China has twice blocked an action or decision on North Korea or even a debate on how the treaty’s provisions on withdrawal should be interpreted in North Korea’s case. Still, at some point, the Security Council is likely to be forced to consider what role it should play in cases where the withdrawal from the NPT of a state threatens international peace and security.
After all, there is not only the outstanding case of North Korea but also the potential case of Iran. Tehran has been under investigation by the IAEA for more than two years largely because of its efforts to enrich uranium. In its negotiations with Europe over its uranium-enrichment program, the Iranians have sometimes suggested that, if pressed too hard, they would follow in North Korea’s footsteps and withdraw from the NPT. As reluctant as some Security Council permanent members seem to be to confront this issue, it is likely that NPT states-parties and the Security Council will sooner or later have to address the council’s power to enforce the NPT prohibition against acquisition of nuclear weapons by non-nuclear-weapon parties.
Under the UN Charter, the Security Council is empowered to take action against threats to international peace and security, and many countries would probably regard the acquisition of nuclear weapons by North Korea or Iran as such a threat. Likewise, it appears that significant violations of the NPT and its safeguards agreements should be reported to the Security Council, as some may be seen as threats to international peace and security. The IAEA’s statute directs it to report significant incidents of noncompliance to the Security Council, the “organ bearing the main responsibility for maintenance of international peace and security.”
The IAEA board did report North Korea’s noncompliance to the Security Council, although the council failed to command North Korea to take any specific action. In the case of Iran, the United States has repeatedly asked the IAEA board to make a report of Iran’s noncompliance but to no avail. Instead, the board has chosen to await the outcome of wider inspections by the IAEA, most of which Iran has accepted, as well as negotiations between three European nations and Iran aimed at addressing concerns about Tehran’s uranium-enrichment program.
Further, while Article X provides a “right” to withdraw from the treaty, this right is not free from conditions. In addition to providing three months’ notice of its intention to withdraw, the state-party must also provide the Security Council and the other countries with a statement of the “extraordinary events” it regards as having “jeopardized” its “supreme interests.”
A purpose of this requirement is to provide the Security Council with information it needs to review the withdrawal. Presumably the withdrawing party will make its best arguments for withdrawal in this notice. The NPT withdrawal clause thus gives the consent of the parties, including the withdrawing party, to council action to deal with withdrawal. If the withdrawal could produce a “threat to the peace,” the Security Council can take action to deal with it. The “right” to withdraw is thus qualified, and the Security Council may limit its exercise. Moreover, the expiration of the three-month NPT notice-of-withdrawal period does not end the power of the Security Council to take action pursuant to the UN Charter, its basic source of authority, to deal with threats to the peace such as North Korea’s actions.
In its announcement of withdrawal in early 1993, North Korea gave reasons for withdrawal that appeared inadequate to the United States and most other members of the Security Council. North Korea’s notice said that it faced a “grave situation” created by two events: a U.S.-South Korean military exercise in South Korea and an IAEA board decision calling for special inspections by IAEA inspectors at locations in North Korea that had not been inspected previously. The IAEA board had questioned whether North Korea had violated its safeguards agreement at sites where inspections had not been permitted by North Korea, but North Korea’s 1993 notice argued that this board request was made “on the basis of the intelligence information fabricated by the United States.”
North Korea’s one-day notice of withdrawal in 2003 was perhaps intended to avoid IAEA demands to inspect its efforts to produce nuclear weapons. In 2003, Pyongyang apparently did not feel compelled to provide any reasons for its withdrawal because it considered its action only an end to its 1993 withdrawal suspension.
Limits on the Right to Withdraw: Negotiating History
Much of the NPT withdrawal clause was modeled after a similar clause in the Limited Test Ban Treaty. That treaty resulted from 1963 U.S.-British-Soviet negotiations and prohibits nuclear-weapon testing everywhere but underground. The test ban’s withdrawal provision, however, was clearly intended to give the Soviet Union, the United Kingdom, and the United States, as well as others who were expected to join the treaty later, unconditional 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.” In that treaty, no notice to the Security Council of intended withdrawal and no reasons for withdrawal were required.
The NPT is different. In crafting the NPT withdrawal clause in 1967, U.S. and Soviet negotiators followed much of the test ban treaty’s language, but they added new language showing a clear change of meaning. In particular, the new language added the Security Council as a required recipient of the notice of and the reasons for withdrawal. It also added the requirement of “a statement of the extraordinary events [the withdrawing party] regards as having jeopardized its supreme interests.”
At the NPT negotiations in the 1960s, these two NPT additions to the test ban treaty language were questioned by Brazil, a participant in the formal negotiating conference. Brazil complained that the NPT additions would limit the right to withdrawal beyond the simple requirement of notice that appeared in the Limited Test Ban Treaty. In his response, the Soviet representative who had agreed with the U.S. delegation on the withdrawal language, agreed with Brazil that there would be new limitations in the NPT. He justified these by explaining that “observance of the nonproliferation treaty and its effectiveness are bound to be related to the powers of the Security Council, which according to [UN] Charter, Article 24, has the primary responsibility for the maintenance of international peace and security.” This explanation was accepted by the United States and, eventually, by most of the other members of the Geneva Disarmament Conference. The NPT language was not changed from the U.S.-Soviet draft.
This language was clearly intended to require notice of withdrawal to the Security Council for a purpose: to enable the Security Council to consider a party’s withdrawal immediately and to take action, including the use of force if necessary, to maintain international peace and security under the powers of Chapter VII of the UN Charter. The negotiating history shows that the right to withdrawal is not absolute; it can be conditioned by the Security Council, and its exercise can be prohibited by the Security Council. IAEA Director-General Mohamed ElBaradei has suggested that notice to the council of an NPT withdrawal “should prompt an automatic review” by the council.
What are the Security Council’s legal powers to act in such a case? If the council finds that the withdrawal might foreshadow a threat to the peace, it has 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. A withdrawal from the NPT that might produce a threat to the peace would clearly give the Security Council jurisdiction to prohibit or condition the withdrawal. It would even permit the council to order the use of force to prevent a state from carrying out actions that would have been in violation of the NPT if the state had not withdrawn from the treaty.
Assuming the Security Council permits withdrawal, what conditions could it impose? A high-level panel of former ministers and former presidents appointed by the UN secretary-general from 19 countries, including Brent Scowcroft, national security adviser to the first President Bush, concluded recently that a notice to the Security Council of withdrawal from the NPT “should prompt immediate verification of [the withdrawing NPT party’s] compliance with the [t]reaty, if necessary, mandated by the Security Council.” This would mean that it, for example, could command a withdrawing party such as North Korea 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.
Nuclear experts from 26 countries, including the United States, convened later by ElBaradei also agreed that the Security Council should consider taking action in the event of a notice of withdrawal. They said that the council, “as the international organ bearing the main responsibility for the maintenance of international peace and security, should be prepared to respond to such action [for example, withdrawing from the NPT to operate an enrichment or reprocessing facility without international inspection], insofar as withdrawal from the NPT could be seen as a threat to international peace and security.”
What else might be considered by the Security Council? At a meeting of NPT states-parties in 2004 to prepare for the 2005 NPT Review Conference, France argued that withdrawing NPT states-parties should remain responsible for violations of the NPT they had committed while members even if they withdrew. It said that the Security Council could prohibit a withdrawing NPT party from using nuclear materials, facilities, or technologies acquired from others while it was an NPT party. It added that these should be returned to the states that provided them.
It is not clear what North Korea might be required to give up under this proposal. North Korea received nuclear assistance from the Soviet Union starting in the 1950s before it joined the NPT. It was the Soviet Union that helped train North Korean scientists in nuclear technology, that provided an experimental reactor for training and research, and that pressed North Korea to join the NPT. The burned fuel rods from which North Korea has made plutonium came from an operating reactor in Yongbyon copied after one in the United Kingdom, the design for which had been made public. The natural uranium used to fuel this reactor probably came largely from North Korea’s own mines.
At the same 2004 NPT preparatory committee for the 2005 NPT Review Conference, Germany suggested that all “nuclear equipment, technology, and know-how” obtained because of membership in the NPT should remain forever restricted to peaceful uses under IAEA safeguards even if an NPT party withdrew from the treaty. If implemented by the Security Council, this proposal would have an effect on what North Korea could use for making weapons. Germany also called on the 2005 NPT Review Conference to produce an agreement “that the right of withdrawal cannot be exercised in cases where the state in question is…in noncompliance with the NPT,” as North Korea was when it withdrew.
These proposals by France and Germany would apply to the withdrawing party, but they might also provide a means for preventing the countries that supplied the withdrawing party with nuclear materials and technology from unintentionally violating the NPT’s strictures. Otherwise, those countries might also be considered to have violated the treaty if the recipient later leaves the treaty and develops nuclear weapons with the materials and technology. After all, nuclear exports that would “assist” a non-nuclear-weapon country to make nuclear weapons are prohibited by the NPT unless the nuclear facilities that result are to be under IAEA safeguards. A report by the Carnegie Endowment for International Peace suggests that the Security Council 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.
Proposals for the NPT Review Conference
A group of nuclear experts organized by Stanford and Princeton Universities concluded that countries such as North Korea that withdrew from the NPT should not be permitted to “use fissile materials or production facilities acquired while they were parties to the treaty to make nuclear weapons.” In their view, to make clear that this would not be permitted:
[T]he Security Council should state that the withdrawal of a country from the NPT in this fashion would constitute “a threat to the peace” under Chapter VII of the UN Charter and it should be prepared to authorize an escalating series of measures against any country that does so.…In this manner, the Council could make clear that all nuclear materials, facilities, and related equipment in a country’s possession at the time it leaves the NPT must remain under IAEA safeguards.
In 1992 the national leaders of the members of the Security Council 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 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, to see whether the withdrawal could produce a future threat to international peace. The NPT review conference could ask the Security Council to announce that it will examine any future NPT withdrawal cases to determine whether the withdrawal is for the purpose of making nuclear weapons. If it is judged to be so, the council could determine whether this would constitute a threat to international peace and security and what would need to be done to prevent the withdrawing state from making nuclear weapons.
Moreover, the 2005 NPT Review Conference should recommend to the Security Council that it accept Germany’s proposal that NPT withdrawal not be permitted when the NPT party withdrawing is in noncompliance with the NPT. It should also recommend adoption by the Security Council or its members of the Stanford-Princeton 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.
In addition, the NPT review conference should review North Korea’s withdrawal from the NPT and the future threats to international peace and security that such a withdrawal presents. The conference should be able to agree that withdrawals from the NPT can threaten at least the neighbors and rivals of the withdrawing party and could well constitute long-term threats to international peace and security in other parts of the world.
North Korea’s withdrawal is the first withdrawal from the NPT. If there are no serious consequences for North Korea, its withdrawal could open the door for withdrawals by other states. If there are no sanctions on withdrawal even when withdrawal threatens international peace and security, what is to deter other states from following in North Korea’s footsteps? The success of the NPT and, indirectly, efforts by the Europeans and the IAEA to head off a similar crisis with Iran depends upon it.
The conference should consider these various options and recommend to the Security Council that it adopt a resolution incorporating conclusions such as those we have suggested. A useful precedent is Resolution 1540, adopted last year to deal with the dangers of proliferation of weapons of mass destruction to terrorists and other nonstate actors, something with which the NPT and the Biological Weapons Convention and its chemical weapons counterpart did not address adequately. A new resolution or statement to announce Security Council policies and procedures for dealing with NPT withdrawals could be useful in inhibiting withdrawals from the NPT.
1. Ashton B. Carter and William J. Perry, Preventive Defense (Brookings Institution, 1999), pp. 128-133.
3. See “Multilateral Approaches to the Nuclear Fuel Cycle: Expert Group Report to the Director General of the IAEA,” IAEA Information Circular no. 640, February 22, 2005, para. 28.
4. See George Bunn, “A Brief History of the DPRK’s Nuclear Weapons-Related Efforts,” in Verifying the Agreed Framework, eds. Michael May et al. (Livermore, CA: Center for Global Security Research and Center for International Security and Cooperation, 2001), pp. 16-17.
5. UN Charter Articles 39, 41, and 42. In 1992 the members of the Security Council agreed that nuclear proliferation constituted a threat to international peace.
6. See Statute of the IAEA, as amended, arts. III.B.4 and XII.C.
7. NPT, art. X.1.
8. See UN Charter arts. 39, 41, and 42.
9. Mitchell Reiss, Bridled Ambition: Why Countries Constrain Their Nuclear Capabilities (Washington, DC: Woodrow Wilson Center Press, 1995), pp. 250-253.
10. See George Bunn, Arms Control by Committee (Stanford, CA: Stanford University Press, 1992), p. 38.
11. The withdrawal clause for the Anti-Ballistic Missile (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 bilateral consultative commission that would conduct its business in secret. The United States, in exercising this six-month withdrawal right, 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 6, no. 2, December 2001, pp. 234-236.
12. Eighteen-Nation Disarmament Conference, Provisional Verbatim 377, March 12, 1968, paras. 24-31; Mohammed Shaker, The Nuclear Nonproliferation Treaty (New York: Oceana Publications 1980), p. 895.
13. See UN Charter chap. VII.
14. Mohamed ElBaradei, “Saving Ourselves From Self Destruction,” The New York Times, February 12, 2004.
15. See UN Charter chap. VII, arts. 39, 41, and 42.
16. High-Level Panel on Threats, Challenges and Change, “A More Secure World: Our Shared Responsibility,” A/59/565, December 2, 2004, p. 43, para. 134.
17. See “Multilateral Approaches to the Nuclear Fuel Cycle,” para. 329.
18. See Claire Applegarth and Rhianna Tyson, “Major Proposals to Strengthen the Nuclear NPT: A Resource Guide,” April 2005, p. 31.
19. See Bunn, “A Brief History of DPRK’s Nuclear Weapons-Related Efforts,” pp. 15-16.
20. Preparatory Committee for the 2005 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, “Strengthening the NPT Against Withdrawal and Non-Compliance: Suggestions for the Establishment of Procedures and Mechanisms,” NPT/CONF.2005/PC.III/WP.15, April 29, 2004, available at http://www.reachingcriticalwill.org/legal/npt/prepcom04/papers/GermanyWP15.pdf.
21. See NPT arts. I, II, III, and IV.
22. George Perkovich et al., Universal Compliance: A Strategy for Nuclear Security (Washington, DC: Carnegie Endowment for International Peace, March 2005).
23. Center for International Security and Cooperation and Program on Science and Global Security, “Preventing Nuclear Proliferation and Nuclear Terrorism,” April 2005, chap. 2, pp. 5-6.
24. Richard Dean Burns, ed., Encyclopedia of Arms Control and Disarmament (New York: Scribners 1993), p. 460.
George Bunn, the first general counsel for the U.S. Arms Control and Disarmament Agency, helped negotiate the nuclear Nonproliferation Treaty, and later became U.S. ambassador to the Geneva Disarmament Conference. John B. Rhinelander is senior counsel at Pillsbury Winthrop Shaw Pittman. He served as deputy legal adviser at the Department of State and legal adviser to the ABM Treaty/SALT I delegation.