Sims, N.A.

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 The University of Bradford Institutional Repository  This work is made available online in accordance with publisher policies. Please refer to the repository record for this item and our Policy Document available from the repository home page for further information.       Author(s): Sims, N.A. Title: Article XV: Duration and Withdrawal       Project:  Bradford Project on Strengthening the Biological and Toxin Weapons       Convention (BTWC) Publication year: 1999 BTWC Evaluation Papers: No. 4 Series Editor(s): Dando, M.R. and Whitby, S. Publisher: University of Bradford (http://www.brad.ac.uk)  Publisher’s repository:  http://bradscholars.ac.uk:8080/dspace  Copyright statement: © 1999 University of Bradford. This work is licensed under a Creative Commons Licence (http://creativecommons.org/licenses/by-nc-nd/2.0/uk/).  1ARTICLE XV   DURATION AND WITHDRAWALby Nicholas A Sims†Introduction1.   The Ad Hoc Group (AHG) is considering measures to strengthen the Biological andToxin Weapons Convention (BTWC) through a legally binding instrument.  The pace of theAHG negotiations has quickened during the past year and there is now a clear political will tosee the negotiation of the Protocol completed as soon as possible before the Fifth ReviewConference in 2001.    It is now evident that several Articles in the draft Protocol are nowlargely agreed and will not develop significantly from their current form although a certainamount of restructuring may be agreed at a later stage.2.   In Evaluation Paper No 1 it was concluded1 that "the majority of the Articles in the draftProtocol have now reached the stage when they have had multiple readings and are unlikelyto change significantly during the coming months as the negotiations enter the end-game.   Itis therefore timely to commence the production of a series of Evaluation Papers which willconsider Article by Article the current state of each Article of the Protocol."   This EvaluationPaper continues this series by considering Article XV Duration and Withdrawal  on whichthe AHG has made good progress with the current rolling text containing only three pairs ofsquare brackets.Article XV3.    In July 1999, the text2 for Article XV was unchanged from the earlier version and was asfollows:ARTICLE XVDURATION AND WITHDRAWAL1. This Protocol shall remain in force so long as the Biological and Toxin WeaponsConvention of 1972 is in force.2. Each State Party to this Protocol shall, in exercising its national sovereignty, theright to withdraw from this Protocol if it decides that extraordinary events, related tothe subject matter of this Protocol, have jeopardized its supreme interests. It shallgive notice of such withdrawal to [the Depositary/ies] all other States Parties to theProtocol, the Executive Council and the United Nations Security Council [6] monthsin advance. Such notice shall include a statement of the extraordinary events itregards as having jeopardized its supreme interests.                                                † Nicholas A. Sims is a Senior Lecturer in International Relations in the Department of International Relations atthe London School of Economics and Political Science, University of London, Houghton Street, London  WC2A2AE, UK.1Graham S. Pearson, The Strengthened BTWC Protocol:  An Overall Evaluation, Evaluation Paper No. 1,University of Bradford, July 1999. Available on http://www.brad.ac.uk /acad/sbtwc2United Nations, Procedural Report of the Ad Hoc Group of the States Parties to the Convention on theProhibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weaponsand on their Destruction, BWC/AD HOC GROUP/46 (Part I), 30 July 1999, Geneva.23. The withdrawal of a State Party from this Protocol shall not in any way affect itsobligations under other international legal instruments to which it is a party,[particularly the Biological and Toxin Weapons Convention of 1972, the GenevaProtocol of 1925 and the Chemical Weapons Convention of 1993].4. Any State Party that withdraws from the Biological and Toxin Weapons Conventionof 1972 shall be deemed to have withdrawn from this Protocol, irrespective ofwhether it has complied with the procedure set forth in paragraph 2 of this Article.The Protocol shall cease to be in force for such a State on the same day as theBiological and Toxin Weapons Convention of 1972 ceases to be in force for it.4.   The strikethrough version of Article XV provided3 by the FOC on Legal Issues for furtherconsideration has a number of proposed amendments as follows:ARTICLE XVDURATION AND WITHDRAWAL1. This Protocol shall remain in force so long as the Biological and Toxin WeaponsConvention of 1972   Convention is in force.2. Each State Party to this Protocol shall, in exercising its national sovereignty, havethe right to withdraw from this Protocol if it decides that extraordinary events,related to the subject matter of this Protocol, have jeopardized its supreme nationalinterests. It shall give notice of such withdrawal to [the Depositary/ies] all otherStates Parties to the Protocol, the Executive Council and the United Nations SecurityCouncil [  6  ] months in advance. Such notice shall include a statement of theextraordinary events it regards as having jeopardized its supreme national interests.3. The withdrawal of a State Party from this Protocol shall not in any way affect itsobligations under other international legal instruments to which it is a party.[particularly the Biological and Toxin Weapons Convention of 1972, the GenevaProtocol of 1925 and the Chemical Weapons Convention of 1993].4. Any State Party that withdraws from the Biological and Toxin Weapons Conventionof 1972 Convention shall be deemed to have withdrawn from this Protocol,irrespective of whether it has complied with the procedure set forth in paragraph 2 ofthis Article. The Protocol shall cease to be in force for such a State on the same dayas the Biological and Toxin Weapons Convention of 1972 Convention ceases to be inforce for it.Evaluation                                                3United Nations, Proposals for further consideration by the Friend of the Chair on Legal Issues, BWC/ADHOC GROUP/FOC/22, 28 July 1999 in Annex IV of Procedural Report of the Ad Hoc Group of the StatesParties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological(Biological) and Toxin Weapons and on their Destruction, BWC/AD HOC GROUP/46 (Part II), 4 August 1999,Geneva.35.     It is useful in evaluating the Protocol Article XV language to consider this against abackground of the language on duration and withdrawal in the  BTWC as well as that in morerecent conventions and treaties such as that in the Chemical Weapons Convention (CWC)and in the Comprehensive Nuclear-Test-Ban Treaty (CTBT).6.   Article XIII of the BTWC4 which opened for signature in 1972 addresses duration andwithdrawal:ARTICLE XIII1.  This Convention shall be of unlimited duration.2. Each State Party to this Convention shall in exercising its national sovereigntyhave the right to withdraw from the Convention if it decides that extraordinary events,related to the subject-matter of the Convention, have jeopardized the supremeinterests of its country. It shall give notice of such withdrawal to all other StatesParties to the Convention and to the United Nations Security Council three months inadvance. Such notice shall include a statement of the extraordinary events it regardsas having jeopardized its supreme interests.7.   The CWC language5 in Article XVI is as follows:ARTICLE XVI DURATION AND WITHDRAWAL1. This Convention shall be of unlimited duration.2. Each State Party shall, in exercising its national sovereignty, have the right towithdraw from this Convention if it decides that extraordinary events, related to thesubject matter of this Convention, have jeopardized the supreme interests of itscountry. It shall give notice of such withdrawal 90 days in advance to all other StatesParties, the Executive Council, the Depositary and the United Nations SecurityCouncil. Such notice shall include a statement of the extraordinary events it regardsas having jeopardized its supreme interests.3. The withdrawal of a State Party from this Convention shall not in any wayaffect the duty of States to continue fulfilling the obligations assumed under anyrelevant rules of international law, particularly the Geneva Protocol of 1925.whilst the CTBT language6  in Article IX is closely similar:                                                4United Nations, Convention on the Prohibition of the Development, Production and Stockpiling ofBacteriological (Biological) and Toxin Weapons and on Their Destruction, General Assembly Resolution 2826(XXVI), 16 December 1971.5Organization for the Prohibition of Chemical Weapons, Convention on the Prohibition of the Development,Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Available on the web athttp://www.opcw.nl6Comprehensive Nuclear-Test-Ban Treaty.   Available at http://www.ctbto.org/ctbto/pdf/cbten.pdf4ARTICLE IXDURATION AND WITHDRAWAL1. This Treaty shall be of unlimited duration.2. Each State Party shall, in exercising its national sovereignty, have the right towithdraw from this Treaty if it decides that extraordinary events, related to thesubject matter of this Treaty, have jeopardized its supreme interests.3.       Withdrawal  shall be effected by giving notice six months in advance to allother States Parties, the Executive Council, the Depositary and the United NationsSecurity Council. Notice of withdrawal shall include a statement of the extraordinaryevent or events which a State Party regards as jeopardizing its supreme interests.8.  The first paragraph of the Protocol Article XV renders the duration of the Protocolcoterminous with that of the Convention, which itself has unlimited  duration (Article XIII.1of the BTWC).9.   The second paragraph is the withdrawal clause.   Leaving aside for a moment thequestion of the length of notice, which is currently within square brackets, this clause hassimilar language to that of Article XIII.2 of the BTWC,  of Article XVI.2 of the CWC andArticle IX.2 & 3 of the CTBT.   It recognizes the right of withdrawal as belonging to eachState Party in the exercise of its national sovereignty, but proceeds to set three conditions.   Itdoes this by limiting the permissible occasions for withdrawal to extraordinary events,related to the subject matter of this Protocol  which have jeopardized its supreme nationalinterests of its country.  [The bold shows the proposed FOC/22 change7 in the strikethroughtext]  This is understood as an attempt to preclude the potentially destructive effect on a treatyof the international legal doctrine of Fundamental Change of Circumstances, if leftunconstrained, by introducing three tests:  of extra-ordinariness, treaty relevance andmagnitude (jeopardized its supreme national interests).   These three tests in combinationnarrow the range of events which can properly be invoked by a State Party as justifyingwithdrawal.10.  The length of notice to be given is proposed, within square brackets, as 6 months.   Thisis the same notice as in Article IX.3 of the CTBT.  It is double the 90 days specified inArticle XVI.2 of the CWC and the 3 months laid down in Article XIII.2 of the BTWC.   That3 months provision was identical to and followed the precedents of the 1968 Nuclear Non-Proliferation Treaty (Article X. 1) and the 1971 Sea Bed Treaty (Article VIII).  WalterKrutzsch and Ralf Trapp have written8 of the 90 days requirement in the CWC that:                                                7United Nations, Proposals for further consideration by the Friend of the Chair on Legal Issues, BWC/ADHOC GROUP/FOC/22, 28 July 1999 in Annex IV of Procedural Report of the Ad Hoc Group of the StatesParties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological(Biological) and Toxin Weapons and on their Destruction, BWC/AD HOC GROUP/46 (Part II), 4 August 1999,Geneva.8Walter Krutzsch & Ralf Trapp, A Commentary on the Chemical Weapons Convention, Dordrecht, MartinusNijhoff, 1994, p.248.5The time span should enable States Parties either to try to convince the State Party inquestion not to insist on its decision (for instance by providing additional assistanceagainst use or threat of use of chemical weapons) or to prepare individually orcollectively for measures adequate to cope with an adverse situation resulting fromsuch a withdrawal.11.   In the case of the CWC, and of the BTWC, the withdrawal clause has not been put to thetest, but in one other treaty it has been.   The Democratic People's Republic of Korea invokedArticle X.1 of the NPT in March 1994 and suspended, but did not cancel, the implementationof its withdrawal one day before the three months' notice would have expired.   At the 1995Review and Extension Conference, and subsequently, it was regarded by the States Parties tothe NPT as having a unique status of indeterminacy somewhere between a Party and a Non-Party to that treaty.   From this one case, it is difficult to draw definite conclusions aboutlength of notice:  about whether, for instance, the States Parties to the NPT would have beenable to organise a more effective collective response in 1994 if the DPRK had been requiredto give 6 months' notice rather than 3, or whether the balance of incentives for the DPRK tosuspend, or proceed to, implementation of withdrawal would have been different.   Otherthings being equal, however, a 6 months' notice requirement renders the Protocol marginallystronger and is therefore to be recommended.12.  The other element in Article XV.2 of the Protocol in square brackets relates to whetherthe notice of such withdrawal should be given to [the Depositary/ies]  as well as to all otherStates Parties to the Protocol, the Executive Council and the United Nations Security Council.    It is interesting to note that there is no such requirement to notify the Depositaries inArticle XIII.2 of the BTWC or in Article X.1 of the NPT (which also had the UK, the SovietUnion and the US as its three Depositaries).   Whilst both the CWC and the CTBT have therequirement to notify the Depositary, it can be argued that such notification is only necessaryif the Depositary is the Secretary-General of the United Nations, as is the case with the CWCand the CTBT, but is not necessary if the Depositaries are other States Parties.   In EvaluationPaper No. X on Article XXII Depositary/ies 9 we have argued that the Depositary of theProtocol should be the Secretary-General of the United Nations; consequently, the Protocoltext should read the Depositary .13.  The third paragraph, once the unnecessary square brackets are removed, protectsinternational obligations under the three most closely related treaties, including the BTWCitself, in the event of withdrawal from the Protocol by a State which remains a Party to theBTWC.    However, in the strikethrough text10 prepared by the FOC for further consideration,it is proposed to limit this paragraph to stating that The withdrawal of a State Party from thisProtocol shall not in any way affect its obligations under other international legalinstruments to which it is a party'  without  naming the three most closely related treaties.   Itmay be thought that their naming in Article XI Relationship of the Protocol to the BTWC andOther International Agreements  renders their naming here unnecessary.   However, the twoArticles address distinctly different situations.  Article XI is concerned with those States forwhich the Protocol is in force, Article XV is concerned with those States for which the                                                9Graham S. Pearson & Nicholas A. Sims, Article XXII:  Depositary/ies,  Evaluation Paper No. 7, University ofBradford, September 1999. Available on http://www.brad.ac.uk /acad/sbtwc10United Nations, Proposals for further consideration by the Friend of the Chair on Legal Issues, BWC/ADHOC GROUP/FOC/22, 28 July 1999 in Annex IV of Procedural Report of the Ad Hoc Group of the StatesParties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological(Biological) and Toxin Weapons and on their Destruction, BWC/AD HOC GROUP/46 (Part II), 4 August 1999,Geneva.6Protocol has ceased to be in force.  Protection of international legal obligations under the1925 Geneva Protocol and the 1993 Chemical Weapons Convention is at least as important toemphasise in the latter situation as in the former.  So too is the continuing validity of state'sobligations under the BTWC itself.   Accordingly we recommend that the three treatiesremain in the text of Article XV.   A slight rearrangement of the wording would bring thereference to the BTWC into conformity with the streamlined reference to the Conventionproposed elsewhere in the strikethrough text and ensure consistency within the strikethroughtext proposed for Article XV, thus:3.   The withdrawal of a State Party from this Protocol shall not in any way affect  itsobligations under the Convention or other international legal instruments to which itis a party, particularly the Biological and Toxin Weapons Convention of 1972, theGeneva Protocol of 1925 and the Chemical Weapons Convention of 1993.14.  The fourth paragraph provides for automatic withdrawal from the Protocol if a Statewithdraws from the BTWC.  This is a logical corollary to the conditions for signature inArticle XVII and for accession in Article XIX, which limit participation in the Protocol toStates Parties to the BTWC.15.   The other proposals made in the strikethrough text proposed by the FOC to streamlinethe reference to the Convention and to insert national  in two places in paragraph 2 of theArticle are endorsed.Strike-through text for Article XV16.  Our view is that Article XV should have the remaining square brackets removed andadditional text added as shown in a strike-through text version of Article XV below so as toproduce clean text:ARTICLE XVDURATION AND WITHDRAWAL1. This Protocol shall remain in force so long as the Biological and Toxin WeaponsConvention of 1972   Convention is in force.2. Each State Party to this Protocol shall, in exercising its national sovereignty, havethe right to withdraw from this Protocol if it decides that extraordinary events,related to the subject matter of this Protocol, have jeopardized its supreme nationalinterests. It shall give notice of such withdrawal to [  the Depositary /ies] , all otherStates Parties to the Protocol, the Executive Council and the United Nations SecurityCouncil [  6  ] months in advance. Such notice shall include a statement of theextraordinary events it regards as having jeopardized its supreme national interests.3.   The withdrawal of a State Party from this Protocol shall not in any way affect  itsobligations under the Convention or other international legal instruments to which itis a party, particularly the Biological and Toxin Weapons Convention of 1972, theGeneva Protocol of 1925 and the Chemical Weapons Convention of 1993.4. Any State Party that withdraws from the Biological and Toxin Weapons Conventionof 1972 Convention shall be deemed to have withdrawn from this Protocol,7irrespective of whether it has complied with the procedure set forth in paragraph 2 ofthis Article. The Protocol shall cease to be in force for such a State on the same dayas the Biological and Toxin Weapons Convention of 1972 Convention ceases to be inforce for it.

Article XV: Duration and Withdrawal

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