Letter to the Editor: The Meaning of the NPT

I am happy for this chance to briefly engage with Norman Wulf in his review of my new book, Interpreting the Nuclear Non-Proliferation Treaty (“Misinterpreting the NPT,” September 2011). I am unsatisfied with the forum in which Arms Control Today has deigned to allow this response. No more than 800 words as a letter to the editor. I mean, Dan Horner chooses as a reviewer for my book a senior U.S. official who was head of U.S. nuclear Nonproliferation Treaty (NPT) diplomacy during a period about which I am critical of U.S. NPT diplomacy in the book. This wasn’t exactly a choice of an objective, dispassionate reviewer, was it? It was bound to produce a critical review, and so it has. And yet, I get 800 words to respond.

But to the task. Wulf is of course a perfectly valid choice of reviewer for a book on the NPT, especially on the pages of Arms Control Today. He has long and intimate experience with the NPT as a state official and, because of that experience, has important insight to bring to bear in analyzing the history surrounding NPT policy and legal disputes. Indeed, this is precisely why I interviewed him during the process of researching my book and why you will find a direct quote from this interview on page 39.

However, I would note that while he was a lawyer in government for many years, this alone does not make him an international legal expert or scholar. On questions of complex treaty interpretation law and theory, therefore, I don’t consider his critique to be a “peer review” of my book, as would be expected in an academic international legal journal such as the American Journal of International Law.

In his review, Wulf charges that my analysis in this book is agenda driven and that my personal policy preferences are given undue weight in my legal analysis. In so attempting to cast my arguments as biased and polemical, Wulf is clearly trying to discredit them. And he will not need to try hard with most U.S. officials, present and former. There is very much an orthodoxy on interpretation of the NPT among U.S. officials, and Wulf is one of the revered keepers of that orthodoxy. In challenging this sacred cow, my arguments are frequently cast as biased.

However, my thesis and supporting arguments in this book do not in fact derive from political or other bias, but rather from my objective analysis of the NPT as a treaty and my interpretation of the NPT in rigorous accordance with the rules on treaty interpretation found in the 1969 Vienna Convention on the Law of Treaties. It was through my objective examination of the treaty as a legal scholar, in this holistic fashion, that the thesis became clear, not the other way around.

Additionally, I think it is important to understand that what I have written in this book, while not the “traditional” view as Wulf puts it—meaning, of course, the traditional view among right-thinking Western government officials like himself—is in fact the legal view of NPT interpretation that has been maintained by officials of most developing non-nuclear-weapon states for decades and expressed by them in countless speeches at NPT meetings and in other international diplomatic forums. My book is simply the first instance of these legal arguments having been made in a comprehensive, rigorous fashion by an international legal scholar.

In terms of the actual substantive legal arguments that Wulf critiques, it is of course impossible to have a meaningful debate on such complex issues of international law in the space provided me here. Perhaps unsurprisingly, I would encourage readers to actually read my book to judge for themselves the rigor and persuasiveness of my analysis and arguments.

In the end, what I would suggest to readers is that what they are witnessing in Wulf’s review is the old guard of U.S. nuclear law officialdom coming out to cast as biased and radical a view on NPT legal interpretation that challenges their carefully cultivated, deeply held, and aggressively defended orthodoxy of NPT legal interpretation.

But the reader should note that, in most of the world’s capitals, the view of NPT interpretation held to be most radical and politically motivated is precisely that to which Wulf subscribes. In most of the world’s capitals, my legal interpretations and conclusions in this book are so familiar and so accepted as to be considered self-evident.

Daniel H. Joyner is a professor of law at the University of Alabama School of Law.