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– John D. and Catherine T. MacArthur Foundation
January 19, 2011
Misinterpreting the NPT
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Reviewed by Norman A. Wulf

Interpreting the Nuclear Non-Proliferation Treaty

By Daniel H. Joyner

Oxford University Press, 2011, 224 pp.

Throughout his new book, Daniel H. Joyner makes clear that he has a thesis that he seeks to prove. Authors who examine well-covered territory, such as interpreting the nuclear Nonproliferation Treaty (NPT), and develop a unique thesis run the risk of writing an advocate’s brief that selectively chooses from relevant facts. Regrettably, that is the case with this book, Interpreting the Nuclear Non-Proliferation Treaty.

Joyner, a professor at the University of Alabama School of Law and the author of International Law and the Proliferation of Weapons of Mass Destruction, argues that the NPT has three equal purposes and that the negotiation of the NPT resulted in the creation of a quid pro quo contract. He reviews the diplomatic history of the NPT, correctly noting that original drafts of the treaty developed by nuclear-weapon states dealt only with nonproliferation. When non-nuclear-weapon states were brought into the negotiation, access to peaceful use (Article IV) and commitments on disarmament (Article VI) were added. Stressing that the NPT would not have been concluded without these two articles, Joyner views their addition as the quid pro quo for non-nuclear-weapon states’ adherence. According to this argument, equal weight should be accorded to what the nuclear-weapon states acquired—nonproliferation and continued possession of nuclear weapons—and to what the non-nuclear-weapon states acquired—peaceful uses and a commitment to work toward nuclear disarmament—under the resulting contract. He concludes that

[t]he diplomatic history of the NPT when taken as whole, therefore, establishes clearly that the NPT is not fundamentally about regulating nuclear weapons proliferation…. It is, in fact, fundamentally about regulating nuclear energy in its full dual-use nature…. [T]aken as a whole, this diplomatic history makes clear that the NPT is underpinned by three inherently linked, presumptively equal principled pillars—peaceful use of nuclear energy, non-proliferation of nuclear weapons and disarmament of nuclear weapons stockpiles.

Joyner is correct to label nonproliferation, peaceful use, and disarmament as the “three pillars” of the NPT. The nuclear-weapon states, particularly the United States, have for several decades argued that international meetings devote equal time to each. There is now widespread but not universal agreement that there are three pillars that should be treated equally, and the use of terminology such as “fundamental bargain” is common.

Whether one or all of the three pillars are the primary purpose of the NPT normally would not be of much significance, given that arrangements at review conferences ultimately have given the three equal treatment. Joyner, however, relies on his finding that there were three primary purposes of the NPT to sustain charges of illegality or unlawful policies by the nuclear-weapon states: “[A]s concluded particularly in the context of the peaceful use pillar of the NPT…the nuclear disarmament policies—or more accurately the lack thereof—maintained by the [nuclear-weapon states] in reliance on these erroneous legal interpretations…were illegally prejudicial to the legitimate legal interests of the [non-nuclear-­weapon states] under the NPT’s quid pro quo grand bargain.”

This review examines whether Joyner’s conclusions about the primary purpose of the NPT, its contractual nature, and the meaning of specific articles are justified.

Before doing so, it is necessary to point out that the book examines the nuclear policies of the nuclear-weapon states for his “target decade” of 1998–2008. It is unclear why Joyner chose this 10-year period, although it seems designed to cover all of the administration of President George W. Bush. This reviewer had primary responsibility for U.S. NPT policy from 1998 through 2002 and, like Joyner, had serious disagreements with the NPT policies of the Bush administration. Those differences were discussed in a prior review in this publication.[1] These disagreements, however, were characterized as policy preferences, not legal interpretations.

The NPT’s Primary Purpose

The basic rule for treaty interpretation, as Joyner states, is that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of [the treaty’s] object and purpose.”[2] The starting point of interpretation is the treaty text that one is seeking to interpret. For example, it is reasonable to assume that the title of the treaty may provide the best evidence of its primary purpose. Joyner’s analysis dismisses the title: “Incidentally, this early exclusive focus on non-proliferation in the agreed super-power drafts explains the title of the NPT as it was preserved in the final version of the text. Somewhat inexplicably, the title was never updated to reflect the broader object and purpose of the treaty, as it took shape in the later stages of the negotiation.”

“Incidentally” and “Somewhat inexplicably” are all that are offered to rebut the emphasis the treaty’s title places on nonproliferation. Rather than seeking to dismiss an inconvenient fact, proper interpretation would require giving the title appropriate weight. There is no rule of treaty interpretation that allows for disregarding language in a treaty, even that which does not support an author’s thesis.

The wording of Articles I and II, in contrast with that of Articles IV and VI, supports the conclusion that nonproliferation is the treaty’s primary purpose. Article I requires nuclear-weapon states not “to transfer to any recipient whatsoever” and not “in any way to assist” any non-nuclear-weapon state “to manufacture or otherwise acquire” a nuclear weapon or nuclear explosive device. Article II is equally clear in stating that non-nuclear-weapon states cannot “receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly or indirectly,” “manufacture or otherwise acquire” such devices, or “receive any assistance in the[ir] manufacture.” Although Article III is much more detailed, it is equally clear that non-nuclear-weapon states must have safeguards agreements.

Contrast this clear directive language with that used in Articles IV and VI. Article IV begins with what is a common feature for many multilateral instruments: a statement that whatever obligations are undertaken or whatever rights are surrendered elsewhere in the treaty text do not affect other rights or obligations. (“Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties…to develop” peaceful uses of nuclear energy.) This savings clause is followed by a paragraph declaring that “all parties undertake to facilitate, and have the right to participate in, the fullest possible” international cooperation. “Facilitate” is far weaker than “shall” while “fullest possible” is very ambiguous as to what is “possible.” Article VI calls on all parties “to pursue negotiations in good faith on effective measures relating to the cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a Treaty on general and complete disarmament under strict and effective international control.” “Pursue negotiations,” “effective measures,” and “at an early date” are all qualifications, unlike language such as “shall conclude agreements by” a date certain or language spelling out precisely what are effective measures. In short, Articles IV and VI are significantly qualified and contain substantial ­ambiguity unlike Articles I and II.

Perhaps most indicative of the primacy of nonproliferation is the requirement in Article IV that peaceful uses be “in conformity with” Articles I and II of the treaty. The context in which the treaty was concluded reinforces this conclusion. France conducted a nuclear test in 1960, and China conducted one in 1964. Near the end of the 1960s, concern increased that India might be developing a nuclear weapon, a well-placed concern given its nuclear test in 1974. The Cold War was in full force. U.S. and Soviet nuclear weapons were deployed in Eastern and Western Europe; NATO was divided over how to provide all members with a role in the nuclear defense of Europe; and Soviet placement of nuclear weapons in Cuba in 1962 resulted in the countries of Latin America and the Caribbean elaborating a nuclear-weapon-free-zone treaty. There was global concern about the nuclear arms race spreading to other regions of the world and a common understanding that the more countries that had nuclear weapons, the more likely it was that the weapons would be used. This is the environment that existed when the NPT was being created; the fundamental concern was nuclear war as a result of nuclear proliferation.

Anecdotal evidence also suggests Joyner is misinformed on this point. This reviewer had to insist during preparations for the 2000 NPT Review Conference, against opposition by the Nonaligned Movement (NAM), that equal time be accorded to peaceful uses; the NAM’s priority was disarmament.

Even though the primary purpose of the NPT is nonproliferation, a careful balancing among nonproliferation, peaceful use, and disarmament is a political imperative. It is not, however, a legal imperative. Thus, if this balance is not achieved, there is no basis for a charge of illegality in the treaty text itself, in its negotiating history, or in subsequent state practice.

No Quid Pro Quo

Joyner implies but does not clearly state that this was a quid pro quo negotiation because the nuclear-weapon states obtained nonproliferation while the non-nuclear-weapon states obtained Articles IV and VI. This implication is clearly erroneous; it suggests that non-nuclear-weapon states had nothing to gain and were uninterested in nonproliferation. The context in which the NPT was concluded, discussed above, suggests otherwise, as does the negotiating record and subsequent practices of states-parties.[3]

The NPT then and now confers security benefits on nuclear-weapon states and non-nuclear-weapon states alike. Countries could be assured of the intentions of neighbors by the legally binding pledge not to acquire nuclear weapons. For neighbors with nuclear programs, the International Atomic Energy Agency (IAEA) would be there to ensure it was for peaceful purposes.

From personal experience, officials in capitals of most non-nuclear-weapon states understand and place high value on the security aspects of the NPT while diplomats in Geneva and New York tend to stress disarmament and peaceful uses. For example, in the run-up to the 1995 NPT Review and Extension Conference, the United States undertook a major diplomatic initiative to persuade countries to support a decision to make the NPT permanent. The competing proposal from Indonesia called for rolling 25-year extensions. The best non-nuclear-weapon-state argument for permanence based on security concerns came from an official in West Africa who said his country was not presently concerned about its neighbors’ nuclear ambitions, but he did not know if that would be the case in 25 years. Nonproliferation was not a favor to the nuclear-weapon states; it benefited all parties. Disarmament and peaceful use were icing on the cake, not, as Joyner asserts, the other two-thirds of the cake.

No quid pro quo contract was created by the negotiating process. The contextual analysis establishes that the primary object and purpose of the NPT is, as its title makes clear, nonproliferation of nuclear weapons. Nuclear-weapon states could not smugly retain their nuclear weapons, but were obligated to make good-faith efforts toward disarmament.

Because Joyner’s charges of illegal nuclear-weapon states’ policies rely in part on the three pillars being equal and on the existence of a contract, this review could simply dismiss the remainder of his analysis. However, there are additional points that merit comment.

Other Misconceptions

Joyner is concerned about conditioning supply of nuclear materials and technology on such actions as acceding to an IAEA additional protocol, complying with safeguards agreements, and agreeing to forgo technology for reprocessing spent fuel and enriching uranium. NPT Article IV calls on all parties “to facilitate the fullest possible exchange” of nuclear equipment and technology. Joyner believes this creates an absolute obligation, but the practice of states-parties over four decades clearly is to the contrary. Among the factors that can be taken into account in interpreting the text of a treaty is “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.”[4]

The U.S. Atomic Energy Act predates the NPT and imposes numerous conditions that must be met before nuclear supply can occur. Those conditions continued following U.S. accession to the NPT. Indeed, all nuclear supplier states have varying conditions that recipients must meet. Eight years after the NPT entered into force, the United States followed Canada’s and Australia’s example by adding full-scope safeguards as an additional condition of supply. The Nuclear Suppliers Group (NSG) adopted a similar rule in 1992.[5] The practice of nuclear supplier states and the 1992 NSG rule change were known by the NPT parties when they made the treaty permanent in 1995.

Most of Joyner’s complaints about conditions of supply are aimed solely at nuclear-weapon states. Yet, since 1978 the NSG has had more non-nuclear-weapon states than nuclear-weapon states, with today’s numbers at 41 and five, respectively. A charge that nuclear-weapon states’ policies are somehow illegal while ignoring those of a significant number of non-nuclear-weapon states seems ill-advised at best.

The practice of states-parties—­non-nuclear-weapon states and nuclear-weapon states alike—has been to make the supplying of nuclear materials and equipment[6] contingent on conditions such as accession to an additional protocol or compliance with safeguards agreements, and those conditions are not a violation of Article IV. The recent decision by the NSG to elaborate the conditions that must be considered before supply of technology for enrichment and reprocessing of spent fuel shows that such conditions are an ongoing state practice.[7]

Another area worthy of comment is Joyner’s assertion that a violation of a safeguards agreement does not constitute a violation of the NPT. The NPT establishes the obligation of non-nuclear-weapon states to have a safeguards agreement with the IAEA for the purpose of verifying that the state is fulfilling its NPT obligations. If a party violates its safeguards agreement so the agency cannot determine if that party is fulfilling its NPT obligations, it is reasonable to assert that is a violation of the NPT.[8] Perhaps the clearest example is where a non-nuclear-weapon state-party to the NPT has been found to have source or special nuclear material that is not being safeguarded despite explicit language in Article III that safeguards “shall be applied” to such material. Other provisions of Article III suggesting a similar conclusion are the requirements that non-nuclear-weapon states “accept” safeguards and “follow” safeguards procedures.

Joyner’s analysis of Article VI begins with a vigorous attempt to distinguish between arms control and disarmament. He argues that if actions “do not intend nor are designed by policy to achieve complete elimination of those weapons,” they constitute arms control, not disarmament, and there is no compliance. One problem with this analysis is that it places priority on statements of what countries intend to achieve, not the actions taken. The effect of a country’s actions can be measured, but the country’s intent cannot. Arms control actions have long been viewed as a means to achieve the disarmament condition. Thus, if an arms control agreement results in a reduction of the number of nuclear weapons, that is movement toward nuclear disarmament. Even if one uses reliance on words as the test, most U.S. presidents have addressed their fealty to nuclear disarmament as an “ultimate objective” or “goal.” An example is President Bill Clinton’s statement on the 30th anniversary of the NPT’s entry into force when he said, “The United States is committed to the ultimate elimination of all nuclear weapons.”[9] With complete elimination as the stated objective, U.S. arms control actions would clearly meet Joyner’s test for compliance.

Even more troubling is Joyner’s assertion that NPT review conferences can be forums where the parties can make agreements that can aid in interpretation. He is correct that under the Vienna Convention on the Law of Treaties, “any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions” is to be taken into account.[10] The question, however, is whether final documents of NPT review conferences rise to this standard.

Joyner asserts that the 13 “practical steps” adopted at the 2000 NPT Review Conference can be viewed as a subsequent agreement among the parties and therefore have “become part of the ‘yardstick’ for determining state compliance with the obligation of Article VI.” NPT Article VIII specifies that the purpose of review conferences is to “review the operation of this Treaty with a view to assuring that the purposes of the Preamble and provisions of the Treaty are being realized.” The only exception to this generalized purpose was the 1995 NPT Review and Extension Conference that was required by the treaty to determine its future duration.

Questions concerning the status of final documents have arisen since the 2000 and 2010 review conferences, with some asserting, as does Joyner, that they have legal consequences. Others assert that although final documents are solemn political commitments that parties in good faith must seek to fulfill, they do not have the force of law. If for no other reason than constitutional requirements for treaty making, the required answer for the United States and many other countries is that final documents are political commitments. Were they to be lawmaking or law-shaping exercises as Joyner asserts, the effect would be to discourage future consensus as governments seek to avoid this purported legal effect.

Although Joyner’s attention is focused on the 13 practical steps, the 2000 final document contains more than 180 other paragraphs; under his interpretation, all would have legal consequences. Furthermore, even with respect to the 13 practical steps, many were crafted with sufficiently ambiguous words to cover multiple points of view, not with the precision in a lawmaking exercise that allows states to understand what legal obligation they are undertaking.[11] The most prominent example from the 13 practical steps of how successful the 2000 negotiations were in producing language that was sufficiently ambiguous to achieve consensus was “the necessity of establishing in the Conference on Disarmament an appropriate body with a mandate to deal with nuclear disarmament.” For the United States, an “appropriate body” meant an ad hoc group and “a mandate to deal with” meant a non-negotiating mandate, but others had different definitions in mind. With full disclosure of their differences, the parties sought a formulation ambiguous enough to cover all viewpoints. This is not legal drafting nor were the negotiations imbued with that sense of seriousness that is present when seeking to elaborate legal agreements. Even though unsatisfying, final documents must be viewed as solemn political commitments, not documents imbued with legal effect.

Conclusion

No one searching for a dispassionate legal interpretation of the NPT will come away from this book satisfied. Its too-clear agenda and focus on a selected 10-year period ensure that. The author seems to have become so absorbed in the political dynamics of the three pillars, the “grand bargain,” and the harmful Bush policies that he gives undue legal weight to his policy preferences. That mistake is particularly troubling because the document he analyzed is one of the world’s most widely accepted instruments.

On the other hand, readers seeking policy arguments that are at variance with the traditional view will find a wealth of material in this book. Indeed, this reviewer has sympathy for some of Joyner’s policy preferences while markedly disagreeing that those policies are dictated by legal interpretation of the NPT. ACT

 

Norman A. Wulf worked on nuclear nonproliferation issues for more than 20 years at the Arms Control and Disarmament Agency and the Department of State, the last three of which (1999-2002) were as the president’s special representative for nuclear nonproliferation. In that capacity, he led the U.S. delegation to the 2000 Nuclear Nonproliferation Treaty Review Conference. Previously, he led the U.S. team that negotiated the International Atomic Energy Agency’s Model Additional Protocol.


 

ENDNOTES

1. Norman A. Wulf, “The Wisdom of Sharing the Peaceful Atom,” Arms Control Today, July/August 2007.

2. “Vienna Convention on the Law of Treaties,” Treaty Series: Treaties and International Agreements Registered or Filed or Recorded With the Secretariat of the United Nations, Vol. 1155 (May 23, 1969), art. 31, para. 1.

3. 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, “Final Document,” NPT/CONF.2000/28 (Parts I and II), 2000, pp. 1–2 (paras. 1, 5, and 12); 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, “Final Document,” NPT/CONF.2010/50 (Vol. I), 2010, p. 2 (para. 1).

4. “Vienna Convention on the Law of Treaties,” art. 31, para. 3(b).

5. The future viability of this “full-scope safeguards” condition of supply is now in doubt because of the ill-advised U.S. decision to waive that requirement for India, a waiver that the rest of the NSG supported.

6. There are less-sensitive nuclear materials and equipment that are supplied to non-nuclear-weapon states through the IAEA technical assistance program. The United States, as the largest contributor to that program, imposes no conditions on those contributions.

7. See Daryl G. Kimball, “New Nuclear Supplers Rules a Net Plus,” Arms Control Today, July/August 2011.

8. See John Carlson, “Defining Non-compliance: NPT Safeguards Agreements,” Arms Control Today, May 2009; UN Security Council, “Statement by the President of the Security Council,” S/PRST/1994/13, March 31, 1994.

9. Office of the Press Secretary, The White House, “Statement by the President,” March 6, 2000.

10. “Vienna Convention on the Law of Treaties,” art. 31, para. 3(a).

11. Norman A. Wulf, “Observations From the 2000 NPT Review Conference,” Arms Control Today, November 2000.