Statement by the Republic of South Africa on the Issue of Withdrawal from the Treaty on the Non-Proliferation of Nuclear Weapons in the Subsidiary Body established in Main Committee III, United Nations, New York, 20 May 2005

Chairperson,

My I congratulate you on your appointment as Chair of this Subsidiary Body. South Africa wishes to use this opportunity to share some views on the issue of withdrawal from the Treaty on the Non-Proliferation of Nuclear Weapons, in particular with reference to the working papers submitted on this issue.

Chairperson,

The question of withdrawal is a sensitive issue and care should be taken that proposals to interpret Article X of the NPT do not create an ambiguity regarding the legal amendment of the Treaty. Such legal uncertainty is always undesirable, especially on this sensitive subject and it must then be carefully considered whether such proposals would not actually undermine the NPT regime and create even greater uncertainties and or loopholes.

With reference to the Working Paper submitted by Luxembourg on behalf of the European Union, as contained in document NPT/CONF.2005/WP.32, my delegation has some preliminary views to share on this contribution by the EU. South Africa views the first part (Parts I and II) of this Working Paper as dealing with procedural aspects of withdrawal and in our view does not constitute an amendment of the NPT. However, Parts III and IV are more substantive, and if endorsed could be regarded as constituting an amendment to the Treaty.

Article X of the NPT clearly provides that a State may withdraw in the exercise of its sovereign authority in certain defined circumstances. Thus the proposal attempts to discourage withdrawal, and if there is a withdrawal, to penalise it. However, if this had been the intention of the drafters of the Treaty, then it can be argued that it would have been expressly provided for in the NPT. Although the withdrawal of States from the Treaty is a cause of concern, this issue should be separated from additional proposals to penalise such withdrawal. To give legal effect to such penalties, the procedures provided for in Article VIII of the Treaty must be followed.

Chairperson,

With reference to Part III: Implementing Article X, paragraph 4(a) of the Working Paper, my delegation is of the view that this paragraph contains some ambiguities and possible contradictions. It will be difficult to determine who "interested parties" are that the Depository States must consult with. It is also not clear what "ways and means" will be found to deal with a statement of intent to withdraw. The sentence has an unusually threatening tone and is, in our view, inconsistent with Article X which allows withdrawal from the NPT. Thus, if withdrawal is permitted by the Treaty then withdrawing States cannot be unduly punished, unless specific provisions on consequences of withdrawal from the NPT are built into the Treaty through the amendment process.

With reference to paragraph 4(b) my delegation is of the view that this paragraph has the potential of being ultra vires in two respects. In terms of Article 39 of the UN Charter it is the Security Council itself that must make a determination of a threat to international peace and security. It is not for the NPT Review Conference to pre-empt the determination of the Security Council in this regard. Furthermore, the fact that the withdrawal must be related to the subject matter of the Treaty is encompassed in Article X. However, this appears to my delegation to be more in the nature of a judicial determination by the International Court of Justice, rather than a determination by the Security Council.

Regarding paragraph 4(c), it is not clear what "include the matter of" an IAEA inspection means. Does it mean that the Security Council must take an IAEA inspection report into account or that it will request the IAEA to undertake further inspections?

Chairperson,

We must also take into account the Vienna Convention on the Law of Treaties, which governs all international treaties. Care should be taken not to agree to modalities not already provided for in the Treaty as this could also have implications for other Treaties, thereby creating a precedent to act outside the Vienna Convention.

It should therefore be recalled that Article 54 of the Vienna Convention provides for: "The termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting States".

As a general principle of customary international law, a State remains liable for breaches of international obligations undertaken prior to its withdrawal from a treaty. This is consistent with paragraph 5(a) of Part IV of the Working Paper. However, my delegation views the rest of the paragraphs of Part IV to come the closest to amending the NPT. In our view these paragraphs do not have any authority in customary or conventional international law and my delegation has not been able to identify any sources providing authority for such clauses as proposed in the Working Paper.

Chairperson,

In conclusion, it should be noted that unless all State Parties clearly demonstrate an intention to be legally bound by these new provisions, which would normally be done through a process of signature and ratification / accession process, then the proposals contained in the Working Paper, which have no basis in international law, would not be enforceable. We recognise that any proposals to amend a treaty will have to be discussed and adopted in the relevant multilateral forum.

I thank you.


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2003 Department of Foreign Affairs, Republic of South Africa