Dan Joyner on “What If Iran Withdraws from the Nuclear Non-Proliferation Treaty?”

My friend, Dan Joyner who is Professor of Law at the University of Alabama School of Law, one of the leading scholars on the Nuclear Non-Proliferation Treaty (NPT) (and who blogs at Arms Control Law) has recently published two “European Society of International Law (ESIL) Reflections (see here) considering whether Iran can  unilaterally withdraw from the NPT, what legal framework would govern such a withdrawal, and what the legal implications of such a withdrawal would be. In those pieces he considers the legal meaning and application of Article X(1) of the NPT, using the conflict between Iran and the West over Iran’s nuclear program as a case study and illustration. These pieces are well worth a read. Quite aside from the political interest in the Iran nuclear issue, the questions he discusses raise some interesting points of general international law, for example the extent to which certain treaty provisions are subject to autointerpretation and the power of the UN Security Council to impose treaty obligations.

Article X(1) is the withdrawal provision of the NPT, and provides that:

“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 the first piece, Dan, concludes that

“if Iran wishes to withdraw from the NPT because of the concerns it has expressed about its membership therein no longer being in its national interest, it can do so upon its own subjective determination of the criteria in Article X(1), and there should be no basis for other states, or for the U.N. Security Council, to determine that such withdrawal is ineffective on either substantive or procedural grounds.

And although objective justification of the determinations that Iran must make according to the terms of Article X(1) is not required, the case of the U.S. withdrawal from the ABM treaty in 2002, and its stated reasons for withdrawal in that case, which received acquiescence from Russia, would appear to demonstrate that the reasons Iran could state in its declaration of withdrawal under current circumstances, are at least as compelling and as related to the criteria stipulated in the relevant treaty withdrawal clause, as were those cited by the U.S. in 2002.”

In short, in Dan’s view Art. X of the NPT is similar to provisions like Art. XXI of the General Agreement on Tariffs and Trade (GATT) (the essential security clause) which provide for the state to make its own determination of when it’s security interests have been imperilled. Readers will know that there have been cases before international investment arbiral tribunals considering similar clauses in Bilateral Investment Treaties. Also the ICJ considered similar clauses in Friendship, Commerce and Navigation Treaties in the Nicaragua and Oil Platform cases. In general, arbitral tribunals and the ICJ in those cases, have considered those clauses in BITs and FCNs not to be self-judging. But it is important to note that those clauses are worded differently from Art. X of the NPT or Art. XXI of the GATT, and in fact the ICJ hinted at this in the Nicaragua case suggesting that a clause worded like Art. XXI of the GATT would be self judging. And Art. X of the NPT is like the GATT clause because of the “if it decides” phrase. In short, I agree with Dan that all that is required is a good faith determination. [In 2003, Sope Williams and I published a piece in 43 Virginia Journal of International Law on “International Adjudication on National Security Issues” looking at how international tribunals have dealt with national security clauses in treaties].

In his second piece, Dan states that:

” No IAEA safeguards obligations would survive the NPT withdrawal, and there would be no general international legal obligation on Iran to dismantle or return to the IAEA or to other states, nuclear materials and technologies Iran received from them by virtue of its prior NPT membership.”

He goes on to consider whether:

“If Iran were to withdraw from the NPT, could the U.N. Security Council order Iran to rejoin the NPT, and to re-accede to its CSA  [Comprehensive Safeguards Agreement] with the IAEA?  My considered opinion is that such an order would be ultra vires, or beyond the authority, of the Security Council.”

This second point, relating to the Security Council, might well be correct in its own terms but does not consider whether the UN SC could impose the same terms on Iran as the NPT and the Safeguards agreement. The council would not need to order Iran to rejoin those treaties, it could just say that Iran has the same obligations as is contained in those treaties. Now, would that be unlawful or ultra vires? When Lebanon was unable to sign the treaty which was to create the Special Tribunal for Lebanon, the SC simply adoped a resolution containing the same text, thus imposing the same treaty terms on Lebanon but this time as an SC resolution, rather than as a treaty obligation. This was upheld by the Special Tribunal for Lebanon. Could the SC not do the same for Iran?