Nuclear Nonproliferation and the Need for Amending the NPT to Validate Nuclear Safeguards as an Ongoing Commitment Under International Law

The current regime for the nonproliferation of nuclear weapons is faltering. With the high likelihood that the Democratic People’s Republic of Korea (“DPRK” or “North Korea”) will conduct a seventh nuclear weapons test at any moment,¹Choe Sang-Hun, In a First, South Korea Declares Nuclear Weapons a Policy Option, N.Y. Times (Jan. 12, 2023), https://www.nytimes.com/2023/01/12/world/asia/south-korea-nuclear-weapons.html. the international community’s striking failure to constrain North Korea or deter the advancement of its nuclear weapons program will again come sharply back into focus. This, coupled with the concerns over Iran’s nuclear ambitions,²Press Release, U.S. Dep’t of State, Statement by France, Germany, the United Kingdom, and the United States on the IAEA’s Latest Report on Iran’s Nuclear Program (Feb. 3, 2023), https://www.state.gov/statement-by-france-germany-the-united-kingdom-and-the-united-states-on-the-iaeas-latest-report-on-irans-nuclear-program. the buildup of Chinese nuclear arms,³David Brunnstrom & Daphne Psaledakis, U.S. Calls Build-up of China’s Nuclear Arsenal ‘Concerning’, Reuters (July 2, 2021), https://www.reuters.com/world/china/us-says-chinas-nuclear-buildup-concerning-2021-07-01. and Russia’s invasion of Ukraine,⁴Antony J. Blinken, U.S. Sec’y of State, Remarks to the Nuclear Non-Proliferation Treaty Review Conference (Aug. 1, 2022), https://www.state.gov/secretary-antony-j-blinkens-remarks-to-the-nuclear-non-proliferation-treaty-review-conference. See also Sue Mi Terry, North Korea’s Nuclear Family: How the Kims Got the Bomb and Why They Won’t Give It Up, 100 Foreign Aff. 115, 117 (2021) (discussing the invasions of Iraq and Libya, where “tyrants . . . gave up their weapons of mass destruction programs only to be overthrown and killed.”). are all undermining the foundations of the Treaty on the Non-Proliferation of Nuclear Weapons (“NPT”). One of those foundations, the safeguards agreement, should be strengthened and clarified as an ongoing obligation for states even after withdrawing from the NPT.

The Current Framework of the NPT

First coming into force in 1970,⁵How to Save the Irreplaceable Nuclear Nonproliferation Treaty: An Interview with Adam Scheinman, U.S. Special Representative for Nuclear Nonproliferation, Arms Control Association (June 2022), [hereinafter “Scheinman Interview”] https://www.armscontrol.org/act/2022-06/features/save-irreplaceable-nuclear-nonproliferation-treaty-interview-adam-scheinman. the NPT has three basic obligations: (1) all parties will negotiate to pursue complete nuclear disarmament;⁶Treaty on the Non-Proliferation of Nuclear Weapons art. VI, July 1, 1968, 729 U.N.T.S. 161 [hereinafter NPT]. Arguably, the highwater mark of nuclear nonproliferation and disarmament was when all parties agreed to an indefinite extension of the NPT in 1995. See Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Decisions and Resolution Adopted by the Conference, NPT/CONF.1995/32 (Part I), Annex (May 11, 1995). Since then, the United States has withdrawn from several bilateral treaties with Russia that sought to regulate activities and classes of weapons that heighten nuclear risks. On February 21, 2023, Russian President Vladimir Putin announced the suspension of the New START treaty, the last remaining international agreement related to nuclear disarmament. Didier Lauras, Putin Hurts Arms Control but Nuclear Risk Remote: Experts, Int’l Bus. Times (Feb. 21, 2023), https://www.ibtimes.com/putin-hurts-arms-control-nuclear-risk-remote-experts-experts-3670144. (2) nuclear-weapon states (“NWS”) that are parties to the treaty will not transfer nuclear weapons or related technology to any other country; Non-nuclear weapon states (“NNWS”) that are parties to the treaty agree not to receive any such technology;⁷NPT, supra note 6, art. I-II. and (3) all parties will have the right to pursue peaceful nuclear technology, subject to safeguards overseen by the International Atomic Energy Association (“IAEA”).⁸Id. art. III.

Pursuant to Article III.1 of the NPT, NNWS must accept safeguard obligations by negotiating a Comprehensive Safeguards Agreement (“CSA”) with the IAEA. The CSA permits IAEA inspections to ensure that nuclear materials and technology are not being diverted away from peaceful uses.⁹IAEA Safeguards, IAEA 4 (2022), https://www.iaea.org/sites/default/files/18/09/sg-serving-nuclear-non-proliferation.pdf. In theory, the CSA broadly authorizes the IAEA to verify a state’s compliance with the NPT. Still, in practice, the agency must rely on the good-faith observance by each state to fully declare all nuclear materials.¹⁰Safeguards Statement for 2021, IAEA ¶7 https://www.iaea.org/sites/default/files/22/06/statement-sir-2021.pdf. Although the safeguards and inspections under the IAEA have become more rigorous,¹¹To address the monitoring deficiencies from CSAs, the IAEA encourages all states to sign onto the Additional Protocols, which 132 states have agreed to as of 2021. Id. at ¶¶ 1, 7. any NNWS that decides to withdraw from the NPT will carry no prospective legal obligations, allowing the departing member to convert their existing nuclear infrastructure, materials or technologies towards building a nuclear arms program.¹²See Scheinman Interview, supra note 5 (noting the lack of an obligation to return nuclear materials supplied for civilian purposes).

Hence, while it is true that these safeguard obligations are no panacea, they remain a vital cornerstone of the nonproliferation regime. The CSAs require states not only to declare any nuclear materials but also to establish and maintain a regulatory scheme that properly accounts for and controls said nuclear materials.¹³J. Herbach & S. Fanielle, Legal Frameworks for Nuclear Security and Safeguards: Developments and Synergies, in Nuclear Law Institute: A Collective View on a Decade of Capacity Building and Development in Nuclear Law 123, 133 (2022). Overall, the safeguards established by the IAEA work to promote trust within the international community. In addition to allaying concerns regarding the illicit transfer and trade of nuclear materials, the safeguard protocols allow the IAEA to function as an early warning trip-wire, informing the international community on which states are wavering in their commitments regarding nuclear nonproliferation.¹⁴Safeguards Statement for 2021, supra note 10, ¶¶19-20, 35-42.

Withdrawal from Nuclear Safeguard Obligations Under International Law

Because an IAEA report of noncompliance can bring an unwanted spotlight, states that wish to produce nuclear weapons will often attempt to “conceal and obscure the true extent” of their programs.¹⁵Iraq: A Chronology of UN Inspections, Arms Control Association (Oct. 2002), https://www.armscontrol.org/act/2002-10/features/iraq-chronology-un-inspections. The importance of the safeguards regime is highlighted most visibly in the context of the nuclear weapons program of the DPRK, where the initial IAEA inspections almost immediately revealed inconsistencies and potentially hidden nuclear sites.¹⁶Fact Sheet on DPRK Nuclear Safeguards, IAEA (June 20, 2018), https://www.iaea.org/newscenter/mediaadvisories/fact-sheet-dprk-nuclear-safeguards. However, the early detection of the nuclear weapons programs eventually led to North Korea’s withdrawal from the NPT.¹⁷Following the IAEA’s request for permission to inspect two additional facilities, North Korea declared its intention to withdraw from the NPT in 1993 and withdrew from the IAEA in 1994. The regime finally withdrew from the NPT in 2003 after continued efforts by the agency to clarify the scope of the North Korean nuclear program. See IAEA and DPRK: Chronology of Key Events, IAEA, https://www.iaea.org/newscenter/focus/dprk/chronology-of-key-events (last visited Feb. 5, 2023) [hereinafter DPRK Chronology].

The relative ease with which North Korea withdrew from the NPT to avoid international oversight is amplified by the recent concerns over Iran’s nuclear program. As political tensions continue to build over Iran’s apparent lack of transparency, it is worth revisiting the treaty provisions that authorize these nuclear inspections in the first place. The NPT and the IAEA Statute create complementary safeguard obligations for each member state.¹⁸NPT, supra note 6, art. III.; Statute of the International Atomic Energy Agency art. XII, Oct. 26, 1956, 276 U.N.T.S. 3 [hereinafter IAEA Statute]. However, both treaties allow for members to withdraw; the IAEA Statute provides for a continued obligation only to fulfill already incurred contractual and budgetary commitments,¹⁹IAEA Statute, supra note 18, art. XVIII D-E. while the NPT only requires a three-month notice and “a statement of the extraordinary events [the state] regards as having jeopardized its supreme interests.”²⁰NPT, supra note 6 art. X.

The Case for Amending Treaties Related to Nuclear Safeguards

Both the NPT and the IAEA Statute should be amended to establish an indefinite legal obligation to maintain a safeguards agreement with the IAEA. Understandably, the political climate is unfavorable for drastic legislative changes to either treaty.²¹Jen Kirby, The Treaties That Make the World Safer Are Struggling, Vox (Jan. 5, 2023, 7:00AM), https://www.vox.com/world/23510633/arms-control-bioweapons-convention-nukes-ukraine-putin. But the fact remains that outside of the DPRK, all states possessing nuclear weapons have some form of a safeguards agreement with the IAEA, even those without NPT obligations.²²See Safeguards Statement for 2021, supra note 10, ¶¶ 26-33 (India, Israel, Pakistan, China, France, Russian Federation, the United Kingdom, and the United States). While this practice may not rise to the level of customary international law, it does demonstrate that even nuclear-armed states understand the value of accounting for nuclear materials. Returning to the North Korean example, while it is not ideal that the regime has declared itself a nuclear weapon state, a far more nebulous concern remains on whether North Korea will export the technology and materials in the future, as it did previously in Syria.²³Terry, supra note 4, 116. The continued requirement to comply with a safeguards agreement would again inform the international community on the depth of threats they may face.

The continued legal effect of a multilateral treaty upon a withdrawing state is fairly rare but is not without precedent.²⁴Jill Barrett & Robert Beckman, Handbook on Good Treaty Practice 462-63 (2020). In fact, the Vienna Convention on the Law of Treaties (“VCLT”) provides explicitly for treaties that “presumptively prohibit exit.”²⁵Laurence R. Helfer, Treaty Exit and Intrabranch Conflict at the Interface of International and Domestic Law, in The Oxford Handbook of Comparative Foreign Relations Law 355, 364 (Curtis A. Bradley ed., 2019) (referring to VCLT art. 56). This is particularly true when treaty violations occur before the withdrawal.²⁶Barrett & Beckman, supra note 24, 462-463. See also Scheinman Interview, supra note 5 (“[A]s a principle of international law, states remain accountable for violations of the [NPT] that occurred when still a party to it.”).

Still, even if the legal effect of a treaty provision after withdrawal is unsettled, amending the treaty’s text would be beneficial for establishing international norms and justified expectations between states going forward.²⁷See Yuan-Bing Mock, The Legality of North Korea’s Nuclear Position: Lessons Regarding the State of Nuclear Disarmament in International Law, 50 N.Y.U. J. Int’l L. & Pol. 1093, 1100-06 (2018). The long-standing practice of states with nuclear arms to accept some IAEA oversight, coupled with the adoption of an amended treaty text, would be highly indicative of widespread agreement on the need and requirement for all states to implement safeguards of nuclear materials. Similar arguments have been raised regarding a complementary obligation under the NPT: the pursuit of good-faith negotiations towards nuclear disarmament.²⁸See Id. at 1100-09. True, a norm requiring countries to submit to safeguards without being a member of a treaty would be more intrusive than a duty to negotiate; however, the acceptance of safeguards is supported by the current practice of almost all states regardless of NPT obligations, including by North Korea from 2003 to 2007.²⁹DPRK Chronology, supra note 17. See also Safeguards Statement for 2021, supra note 10, ¶ 36.

Concluding remarks

The safeguard protocols under the auspices of the IAEA play a vital role in the nonproliferation regime. They reduce international tensions by providing an independent verification of the scope of each state’s nuclear program. They ensure that best practices are followed in the accounting and control of nuclear materials. While the safeguards and IAEA inspections by themselves will not effectively deter a state that is intent on developing nuclear weapons, they should still be considered an integral aspect of a country’s basic obligations as a responsible member of the international community. Accordingly, new treaty language should incorporate safeguards as an ongoing legal requirement, regardless of whether a defaulting NNWS seeks to withdraw from the underlying substantive treaty.

The views expressed in this post represent the views of the post’s author only.