CYIL vol. 10 (2019)

RAINER HOFMANN – CORNELIA KIRCHBACH CYIL 10 ȍ2019Ȏ withdrawal from the Treaty on 10 January 2003 has triggered various interpretations among the experts on the issue 34 . One interpretation was that the DPRK withdrew from the Treaty on 10 April 2003. The second interpretation was that North Korea remained a party to the Treaty. A clear answer to these considerations is given by Security Council Resolution 1874 35 of 2009. In paragraphs 5 and 6, the Security Council requires the DPRK to reconsider its decision to withdraw from the NPT and to re-engage as soon as possible with this Treaty. In this respect, Resolution 1874 is the first and only case when the Security Council condemned 36 the withdrawal of the State from the treaty. The possibility of withdrawing from treaties on arms restriction and disarmament poses a risk of a breach of stability and may pose a threat to international security, for example, by the states that tend to acquire nuclear material. More substantial restriction on withdrawal is contained only in the Treaty on the Prohibition of Nuclear Weapons, although this is only a temporary restriction. 3.2 Relation of Art. 60-62 of the Vienna Convention on the Law of Treaties to the special provisions on withdrawal in arms restrictions and disarmament treaties Most of the arms reduction and disarmament treaties contain special provisions on withdrawal in the sense of Article 54 (a) of the Vienna Convention on the Law of Treaties. This is a special provision (lex specialis), which should preferably be used in these cases. Therefore, we may ask the question of whether this special provision does not preclude the application of the general rules of the Vienna Convention on the Law of Treaties relating to the withdrawal contained in Articles 60-62, which are regarded as an expression of customary international law . Among others, the question arises, whether the general provisions in Articles 60-62 of the Vienna Convention do not contain different grounds for withdrawal, opposite to the reasons listed in individual arms reduction and disarmament treaties. Alternatively, whether Articles 60-62 do not regulate other consequences than withdrawal from the treaty, and thus may complement the special provisions. D. H. Joyner and M. Roscini noted, based on Article 31 of the Vienna Convention on the Law of Treaties, that the three withdrawal rules are equally applicable to the treaties containing withdrawal provisions as well as to treaties which do not contain provisions on cession 37 . R. Mullerson 38 stated in this regard that, in case of the expressly stated possibility of denunciation of the treaty, the references to the rebus sic stantibus provision (substantial change of circumstances in Article 62) are superfluous. However, the rebus sic stantibus has different content and context in terms of its application. The explicit provision containing 36 JOYNER, D., H., ROSCINI, M. Non-Proliferation Law as a Special Regime. Chapter 5 – Withdrawal from Non-proliferation Treaties. Cambridge University Press, Online publication date, October 2012, p. 2. (www. cambridge.org/core/books/non-proliferation-law-as-a-special-regime/withdrawal-from-nonproliferation- treaties/), (quoted 20 March 2019), p. 11. 37 JOYNER, D., H., ROSCINI, M. Non-Proliferation Law as a Special Regime. Chapter 5 – Withdrawal from Non-proliferation Treaties. Cambridge University Press, Online publication date, October 2012, p. 2. (www. cambridge.org/core/books/non-proliferation-law-as-a-special-regime/withdrawal-from-nonproliferation- treaties/), quoted 20 March 2019, p. 2. 38 MULLERSON, R. The ABM Treaty: Changed Circumstances, Extraordinary Events, Supreme Interests and International Law. International and Comparative Law Quarterly , 2001, Volume 50, p. 530. 34 ILA Report of the Seventy-first Conference, Berlin, 2004, p. 493. 35 S /RES/ 1874. Adopted by the Security Council at its 6141st meeting, on 12 June 2009.

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