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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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