Survival of Rights Under the Nuclear Non-Proliferation Treaty: Withdrawal and the Continuing Right of International Atomic Energy Agency Safeguards
In developing its thesis, this Article will review the history and purpose of IAEA safeguards and their relation to the NPT, and then show that special inspections in the DPRK represent a transitional moment for the IAEA safeguards system.
This Article will then consider two different arguments in favor of a continuing right to inspections even against a state exercising its right to withdraw from the NPT to escape its safeguards obligations: the first identifies circumstances under which a state would not have the right to withdraw from the NPT; and the second asserts that the effects of withdrawal from the NPT do not include the extinction of the safeguards obligations, or at least certain critical safeguards duties established through NPT adherence.
The Article demonstrates that it is impossible to identify any meaningful and principled limitation to a NPT party's right to withdraw. It then argues that, although the IAEA's right to apply safeguards with respect to the nuclear activities of the withdrawing state terminates with withdrawal, a right to conduct any special inspection requested before withdrawal relating to suspect activities that occurred while the state was still a party to the NPT should survive withdrawal. This argument is framed in terms not only of general principles of treaty law articulated in the Vienna Convention of the Law of Treaties, which, for the most part, represents a codification of customary international law, but also in terms of the object and purpose of the NPT and safeguards agreements entered into by states to fulfill their NPT safeguards obligations.
Finally, this Article recommends that an interpretation to this effect be reflected in the final documents of the conference to be held by the parties to the NPT in 1995 for the review and extension of the Treaty.
Antonio F. Perez, Survival of Rights Under the Nuclear Non-Proliferation Treaty: Withdrawal and the Continuing Right of International Atomic Energy Agency Safeguards, 34 VA. J. INT’L L. 749 (1994).