Amendment and Modification of Non-proliferation Treaties

The aim of the present chapter will be to examine whether nonproliferation law constitutes a 'special regime' from the perspective of the rules on amendment and modification, or whether the relevant general rules as enshrined in Articles 39-41 of the Vienna Convention on the Law of Treaties (VCLT) are applicable.

In order to answer this question one must start from the relevant amendment/modification provisions included in the VCLT. To this effect, section II will present the main points and areas of consideration during the VCLT travaux preparatoires, that is, what purpose were they intended to serve, what degree of freedom was permitted to the states to regulate amendment and modification in a different manner and what were some main areas of contention. Before characterizing non-proliferation law as a 'special regime' with respect to amendment and modification, then, one has to examine the more general provisions. The VCLT provisions are an essential point of departure in establishing whether the amendment and modification provisions of non-proliferation treaties are indeed different and 'special'. In order to do so the analysis will begin with an examination of the text of the relevant VCLT provisions, read in the light of the ILC discussions which led up to the Vienna Conferences on the Law of Treaties. This will facilitate the demonstration of the intention of the parties, the meaning and the function that Articles 39-41 were intended to have as well as certain problematic areas.

Based on the previous analysis, this chapter will continue by focusing on the amendment and modification provisions of non-proliferation treaties themselves. In this section, the analysis will focus on specific examples of non-proliferation treaties and the solutions adopted therein. What will be determined is whether non-proliferation treaties diverge significantly from the VCLT provisions and if so whether their provisions on amendment and modification are similar.

This analysis will then be followed by an examination of the contemporary issues and problems that both institutional and normative proliferation has brought to the forefront in the field of treaty amendment and modification. A regime should be considered as 'special' if the adopted solutions are not only different from those provided for by general international law but also from the approaches adopted by other regimes, or other 'branches' of international law. Consequently, building on the analysis of the two previous sections, the amendment and modification provisions of non-proliferation treaties will be examined to determine whether and in what manner they deviate from the solutions adopted in treaties relating to other 'branches' of international law, and if so what is the raison d’être of such deviation.