CYIL vol. 10 (2019)

RAINER HOFMANN – CORNELIA KIRCHBACH CYIL 10 ȍ2019Ȏ It was the USSR 24 that initially held that the provision was unnecessary, because the right of withdrawal was an expression of the national sovereignty . However, this concept was not accepted by the US and Great Britain. Finally, an agreement was reached in this respect and included the wording in the text of the Treaty. The final text of the withdrawal provision is, as Ch. Ahlstrom 25 states, an expression of compromise, because this clause is based on national sovereignty rather than on extraordinary events as an expression of the right to terminate the Treaty. An example of extraordinary events can be the conduct of nuclear tests by a non-contracting party 26 . However, this is not the only example, there can be other examples 27 such as new technological developments in the field of arms, the entry into force of an amendment with which the terminating party does not agree, or the outbreak of hostilities between parties other than the terminating state. The 1963 Treaty itself contains neither definition of extraordinary circumstances, nor do any subsequent agreements contain it. Thus, the assessment of what constitutes an exceptional event depends solely on the state invoking it 28 . This can be done on the basis of the wording of Article IV (2) of the Treaty, “if it decides”. However, these circumstances should be related to the object and purpose of the treaty and jeopardize the state’s highest interests . It is based on three reasons for withdrawal from this Treaty. It may be the case of the failure of some party to comply with its obligations under the Treaty. Another case is the performance of a nuclear test by a non-contracting state. As well as, detonation a nuclear explosion by a state which cannot be identified, and such an attempt if done by a party, would violate the Treaty, or if it was not done by a party, it could jeopardize the national security of the terminating state 29 . A similar arrangement is contained in Article X (1) of the Treaty on the Non-Proliferation of Nuclear Weapons of 1968. In addition, the Non-Proliferation Treaty of 1968 contains a requirement to inform the UN Security Council about the withdrawal. The reason for the announcement to the Security Council is that, as the USA 30 pointed out, withdrawal could affect international peace and security of other states and should, as a result, be discussed by that authority. Later multilateral arms control and disarmament treaties include the requirement to inform the UN Security council about the withdrawal, but it is not included in the 1963 Treaty. The notice of withdrawal must be made in advance . Some arms reduction and disarmament treaties state a three-month deadline (the 1963 Partial Test Ban Treaty or the 1968 Non- Proliferation Treaty), and other treaties state six months (the 1972 ABM Treaty), and some state a longer time. Upon the expiration of this period, the notification enters into force and the State ceases to be a party to the multilateral treaty, a bilateral treaty would cease to exist. Most of the arms and disarmament treaties concluded after 1963 contain the requirement of extraordinary events threatening the highest interests of the states. On the contrary, the 24 GOLDBLAT, J. Arms Control. London: Prio SIPRI, Sage Publications, 2002, p. 19. 25 AHLSTROM, Ch. Withdrawal from Arms Control Treaties. Stockholm: SIPRI Yearbook, 2004, p. 767. 26 Ibid. 27 STEIN, E., Impact of NewWeapons Technology on International Law. Recueil des Cours . Leiden: Sijthoff, 1971, II, p. 369. 28 AHLSTROM, Ch. Withdrawal from Arms Control Treaties. Stockholm: SIPRI Yearbook, 2004, p. 770. 29 NIELSEN, J., SIMPSON, J. The NPT Withdrawal Clause and its Negotiating History. www.mcis.soton.ac.uk. 30 FIRMAGE, E., B. TheTreaty on the Non-Proliferation of NuclearWeapons. The American Journal of International Law, 1969, vol. 63, p. 739.

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