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24Oct/11Off

Misinterpreting the NPT

Note:

Dr. Ford delivered the following remarks on September 30, 2011, at an event on “Decoding the NPT: A Discussion,” organized by the Carnegie Endowment for International Peace.  The subject of this discussion was the book Interpreting the Nuclear Non-Proliferation Treaty by Professor Daniel H. Joyner of the University of Alabama.

Good morning, and welcome.  It’s a pleasure to be here at Carnegie.  In Interpreting the Nuclear Non-Proliferation Treaty (Oxford University Press, 2011), Dan Joyner offers the best legal case yet made for the views he holds, and though I think he gets the key issues wrong, he deserves credit for offering a “state of the art” defense.

I.          The “Three Pillars”

Let me start by noting that although Dan’s book treats the so-called “three pillars” of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as if they had been chiseled into stone atop Mt. Sinai, there is some irony here.  As I understand it, the “three pillars” concept actually dates only from the 1980s.  Rather than expressing the original understanding of the Treaty, this phrasing was invented by U.S. diplomats as a way to help nudge the political and diplomatic discourse in NPT review fora back toward nonproliferation and away from what they felt to be an inappropriately monomaniacal focus upon disarmament.  The phrasing was, in other words, as much a rhetorical device as a legal position – and it was one, moreover, taken in an effort to deemphasize disarmament as a focus for diplomatic preoccupation.

In any event, I think this book is on weak ground when it tries to identify a rigidly coequal reciprocal balancing of legally-equivalent obligations in the form of the “three pillars.”  As one can see even in his account, the Irish Resolution of 1961 – the instrument with the strongest claim to the NPT’s conceptual paternity – leads clearly and directly only to the nonproliferation provisions in Articles I and II of the NPT.  The same point could be made about the U.N. General Assembly resolution that set the negotiating mandate for the Eighteen-Nation Disarmament Committee (ENDC) set up to draft the NPT.  Its mandate was to negotiate a treaty to prevent nuclear weapons proliferation, and the resolution made clear that disarmament was something to be addressed later.  It did not mention peaceful use at all.

Clearly, if the book is to make a credible case for the absolute coequality of the “three pillars,” Dan has to look somewhere else.  He claims to find what he needs in the introduction of what finally became Articles IV and VI.  He thinks it of enormous importance that the NPT would not exist but for the inclusion of Articles IV and VI.  This might be so.  But this doesn’t remotely prove his bigger point.  The same could no doubt also be said about many provisions in any text negotiated under consensus rules in a multilateral forum.  It could be said, however, without justifying the conclusion that each “but for” provision is the conceptual lynchpin of the final structure.  (Nor, I should add, does such a counterfactual “but for” conclusion help us determine the actual meaning of the language in question.)

It may be that Dan hasn’t negotiated many international agreements, but I can assure him that while such texts do contain elements that are of cardinal importance, they also sometimes contain empty, feel-good palliatives which do not – and are not intended to – say anything serious or legally significant.  Sometimes, in fact, the parties agree upon language precisely because of its substantive hollowness.  Such verbiage is often crucial to reaching agreement because it allows a party in the negotiations who fails to get his way on an important point to nonetheless retreat with a modicum of dignity, because it lets him say that he still got something for his pains.

Both the important provisions and such feel-good palliatives may thus perhaps accurately be described as language “without which the final agreement would not exist,” but this mere fact does not determine their relative legal import.  To know that, you need to analyze what is actually said – and perhaps, if additional clarity is needed, to look to the negotiating record.  Otherwise, it is impossible to distinguish critical substantive elements from any mere admixtures of deliberately vacuous diplomatic puffery that may have been inserted in order to soften the blow of one party’s negotiating failure.

This may be true with any agreement, and such details clearly matter.  In the case of the NPT, when you actually look at these details – which tend to get missed in the book’s “holistic” approach to treaty interpretation, which sometimes seems designed to provide such excuses as might be needed not to worry overmuch about what the NPT’s text actually says or fails to say – it is clear that not all “pillars” are created equal.

I do not say that the NPT’s peaceful use and disarmament provisions are unimportant.  Nonetheless, I don’t believe that either the actual text of the Treaty or its negotiating history support this book’s conclusions about the rigid equivalence of legal obligations in the NPT.  It still seems quite clear that nonproliferation is the conceptual and legal core of the Treaty.  And you don’t need vague “holistic” approaches to see this, nor to make apologies for inconvenient phrasings or silences in the text.  It’s visible, for instance, from:

  • The clarity, specificity, mandatory phrasing, and lead placement of the Treaty’s nonproliferation provisions;
  • The survival of these nonproliferation provisions almost entirely unaltered from the Irish Resolution into the final text;
  • The exclusively nonproliferation-focused negotiating mandate of the ENDC;
  • The fact that the NPT’s peaceful use and disarmament-related operative clauses are notably unspecific about imposing concrete legal obligations, and are clearly written only to the extent that they stop conspicuously short of what many non-nuclear weapon states (NNWS) today claim them to mean; and
  • The fact that the negotiating history shows the drafters’ clear rejection of repeated attempts to insert language that would create obligations for the other “pillars” of a clarity and specificity equivalent to the Treaty’s nonproliferation language.

On page 17, Dan professes to find it “inexplicabl[e]” that the NPT was named the a nonproliferation treaty at all.  This was, he suggests, just some kind of clerical error – a failure to “update” the title “to reflect the broader object and purpose of the treaty.”  But it’s really not “inexplicable” in the slightest.  Indeed, this was not a failure at all, but rather a consequence of the drafters’ clear understanding of what they were about.  The NPT is a nonproliferation treaty before it is anything else.  This may be a politically unpopular and diplomatically problematic fact, but it is one with which – for better or worse – history has stuck us.

II.        Article IV and Peaceful Uses

I think the strongest part of the book is Dan’s argument about the relationship between Article IV of the NPT and the “Lotus Principle” that in international law states have the right to do whatever is not actually prohibited. There are two potential claims that one might make about peaceful use rights in the context of Article IV.

(a)   First, one might argue under Article IV(1) that every NPT NNWS has the right to engage in any sort of peaceful nuclear development it wants.

(b)  The second argument relates to Article IV(2), and concerns whether possessor states have an obligation to supply NNWS with any particular technology.

The strongest case that I think can be made with regard to the first claim boils down to the idea that if no part of the NPT clearly prohibits the development of uranium enrichment and plutonium reprocessing (a.k.a. ENR) technology, all NNWS have the right, pursuant to Lotus, to seek such a capability.  This seems to be the book’s claim.

The closest any government official has come to addressing this is my own speech to the 2005 NPT Review Conference (RevCon) – a source, however, that I couldn’t find cited anywhere in Professor Joyner’s book. There, I argued that “[t]he Treaty is silent” on “whether compliant states have the right to develop the full nuclear fuel cycle,” and “establishes no right to receive any particular nuclear technology from other States Party – and most especially, no right to receive technologies that pose a significant proliferation risk.”

And indeed there are a number of discussions out there of possible legal limits upon the peaceful use rights even for compliant NNWS, though Dan seems to have read none of them.  Albert Wohlstetter, Eldon Greenberg, Leonard Weiss, and others had been speaking to this for years, but perhaps the most extensive analyses is my own – first made available online by the Nonproliferation Policy Education Center (NPEC) a couple of years ago. In it, I do not argue that any lawyer must conclude that there is a “right” only to such nuclear technology as can adequately be safeguarded.  I contend merely that such a view is not precluded: it is “legally available.”

A question that the book does address directly is the claim that NNWS peaceful use rights are conditioned upon compliance with NPT nonproliferation provisions.  But I think he’s wrong to reject this.  Dan’s own argument is more tendentious than the one he criticizes, for he essentially reads the last ten words of Article IV(1) out of the Treaty.

The conditionality view of the “in conformity” provisions of Article IV(1) basically amounts to an argument about waiver.  As outlined in my 2005 RevCon speech, “by agreeing to the NPT, countries have agreed that their nuclear activities must be in ‘conformity with articles I and II.’”  This waiver argument, in fact, answers the Lotus point, as those ten words would seem to provide a restriction – voluntarily agreed-upon limitation upon NNWS’ otherwise unrestricted “right” to technology – that makes the “freedom principle” inapplicable.

In order for Article IV(1) to describe either any kind of right to engage in ENR, moreover, it has to be clear that this technology is covered to begin with.  Yet this is not obviously the case.  After all, as I noted in my NPEC study, when it comes to what technologies are covered, “Article IV(1) does not make its meaning clear, and it certainly does not refer explicitly to the ‘production’ of nuclear fuel – merely to that of ‘energy.’  … [T]his ambiguity might seem strange in a document the drafters of which clearly did know how to write clearly, in lawyers’ language, about obligation and prohibition.”

To the extent that one cares about negotiating history – which Dan should, for he claims to embrace a “holistic” approach that looks to the “diplomatic history … taken as a whole” – I might also point out that some countries’ efforts to make Article IV(1) more clearly technologically all-inclusive were rejected.  A Mexican proposal to set forth a right to use nuclear energy “in any manner,” for instance, was defeated.  There is also some evidence, such as in comments by Burma’s ENDC representative, that negotiators viewed fuel-making as so closely tied to potential bomb-making that “[a]n undertaking … not to manufacture nuclear weapons would in effect mean forgoing the production of fissionable material.”  It does not seem so unreasonable to suggest that Article IV(1) covers “researching” (studying), “producing” (generating), and “using” (consuming) nuclear-derived energy itself, but not necessarily producing fissile material.

Perhaps the biggest problem with this book’s reading of Article IV as a whole lies in his assumption that if he can defeat arguments about the compliance-conditionality of peaceful use rights, then he has shown that it is illegal for supplier states to impose any conditions upon material or technology transfers.  But in reality, this doesn’t necessarily follow at all.  It is one thing to have a right to do something on your own, and quite another for others to be compelled to assist.

Yet the book addresses the meaning of Article IV(2) hardly at all, and certainly not persuasively.  It is apparently simply axiomatic for him that nuclear possessor states are obliged to supply non-possessors want.  His certainty, however, is unsupported – and indeed out of line with his own concession on the same page that Article IV(2) only “arguably” mandates the supply of technology on demand.

And indeed, no such obligation to transfer any specific technology – much less potentially bomb-facilitating ENR technology – can be found in the text of Article IV(2).  Nor does the book acknowledge, let alone explain, the drafters’ rejection of efforts to insert real supply rights.   Certainly the NPT nuclear weapons states (NWS) – and the NNWS supplier states with them, making this a “bipartisan” NPT position – have been quite consistent in describing technology-sharing under Article IV(2) as being fundamentally discretionary.  (Indeed it would have to be, for example, in order to give weapons state suppliers the ability to remain true to their Article I obligations if it became clear that a NNWS was using foreign nuclear technology to develop nuclear weapons.)

I have seen nothing in this book to call into question the discretionary character of Article IV(2) sharing.  If Article IV(2) is indeed discretionary, however, this demolishes Dan’s contention that conditional supply is “illegal.”

III.       Article VI and Disarmament

Unhappily, the book’s discussion of disarmament is, to my eye, also deficient.  I am, of course, pleased that on page 97, Dan concedes that I was right in my 2007 Nonproliferation Review article that the ICJ’s interpretation of Article VI was deeply flawed.  Nevertheless, I disagree in most other respects with his analysis.

I’m not quite sure why the book spends so much time discussing the sequencing of disarmament-related steps described in the NPT’s Preamble, for my plain-language reading of Article VI relies principally, of course, upon the text of Article VI itself – the shallowness of which the book never really succeeds in explaining away.  All Article VI actually says is that the parties undertake to “pursue” disarmament negotiations “in good faith.”  Dan spends some time contending that such negotiations must be “meaningful,” but beyond trying to insert a bunch of pleasant-sounding adverbs to his expanded reading – rewriting the text into “proactively, diligently, sincerely, and consistently pursue meaningful negotiations” – he leaves Article VI no more full of actual legal content than he found it.

It was particularly disappointing that the book never discusses the negotiating history of Article VI.  Had it done so, the reader would know of the ways in which this history – along with the Preamble – reinforces the plain-language reading of Article VI.  Many efforts were indeed made to make Article VI say a great deal more than what it ended up saying – things that would have made the NPT impose disarmament obligations of the sort many NNWS nowadays claim to read into it.  Such amendments, however, were repeatedly rejected.  It is, I submit, no mere accident or coincidence that Article VI says as little as it does.  For disarmament advocates, this is a cause for regret or even bitterness.  But that’s a policy complaint, and one shouldn’t let wishful thinking confuse one’s legal analysis.

The closest Dan gets to a legal argument for filling out the thinness of Article VI with concrete disarmament content is to declare that the NWS are legally obliged to take every disarmament-related step subsequently called for by the parties at any NPT RevCon.  Specifically, he says the NWS’ compliance should be judged according to the degree of their fulfillment of the “13 Steps” described by the 2000 meeting.

To be sure, he is a bit vague about this, admitting that these measures are merely “part of the ‘yardstick’” for assessing NPT compliance, and seeming to accept the point that “at least partial compliance” is possible irrespective of whether or not one has followed the “13 steps.”  Nevertheless, Dan clearly means to follow today’s diplomatic conventional wisdom and invest the “steps” with legal import.

This is, to my eye, a weak argument.  It’s a shame to have to mention it here, for I dealt with this in my 2007 essay and in his book Dan fails to address the argument I made there.  He wants the “13 steps” to constitute a “subsequent agreement” on how to interpret NPT within the meaning of Article 31(3) of the Vienna Convention on the Law of Treaties, but he offers no evidence that the drafters of the “steps” – or indeed of any RevCon document – ever understood themselves to be preparing such a thing.   Certainly the “steps” themselves feature no language suggesting they are intended to have this kind of (or any) legal import, and indeed in many cases they are phrased in ways that would make compliance well-nigh unassessable anyway.

Frankly, my guess is that if any clear effort had been made to craft a Vienna Convention Article 31(3) statement about how to interpret the legal requirements of the NPT with respect to disarmament, you would have seen a very different Final Document emerge in 2000 – if, indeed, any consensus were possible on this topic at all.  (In fact, I’d reckon that if you wanted to preclude agreement on any draft NPT RevCon text in the future, a good tactic would be to spread the word that it will subsequently be treated as creating binding legal obligations.  That should paralyze things nicely.)

In any event, the book fails to sustain its conclusion on page 108 that NWS policies have been “illegally prejudicial to the legitimate legal interests of NNWS.”  This lack of legal persuasiveness doesn’t stop Dan from suggesting that this purported illegality is a “material breach” of the NPT that would allow NNWS to “suspend the operation of the treaty” as between them and the NWS.  He implies, in other words, that non-achievement of the “13 steps” – which even disarmament advocates today admit may need some “updating” in order to be relevant in today’s world – is enough to release NNWS from their nonproliferation obligations, giving everyone permission to acquire nuclear weaponry.  We should thank our stars that this book isn’t more persuasive.

IV.       Conclusion

I realize that I’ve not been too kind this morning to the legal arguments set forth in Dan’s book.  I don’t want too quickly to dismiss the effort, however.  He offers perhaps the best legal case that has yet been made for the propositions that: (a) the Nuclear Nonproliferation Treaty isn’t principally about nonproliferation; (b) restrictions on nuclear supply are illegal; (c) not moving more rapidly toward nuclear disarmament is also a violation of law; and (d) these two “violations” may give NPT non-weapons states permission to develop nuclear arms.

Dan gets credit for taking a swing at these points, for he does as good a job at it as I’ve seen to date.  (The Iranian and Non-Aligned Movement diplomats I’ve heard make similar claims at several NPT review process meetings don’t offer nearly as articulate a case.)  Nevertheless, I think Dan’s book falls short in every one of its main arguments.

In concluding, let me be so bold as to say that though I bear Dan no ill will, the weakness of this book is actually a good thing.  I have offered my conclusions as a lawyer today, but now speaking as a policy guy, I must add that I am glad that these four points are defended here so inadequately.  The world would be a darker place even than it is today – and one far more congenial to would-be proliferators – if Dan had actually hit the analytical targets at which he aims.

Anyway, I trust that he will accept my criticisms in the spirit of professional, rather than personal, disagreement in which I have offered them – the very spirit in which he has so extensively critiqued me in his book.  I also hope I have amused our patient audience and lived up to James Acton’s expectations by fulfilling my customary role as a professional NPT curmudgeon and making your morning a bit more entertaining.

Thank you.  I look forward to our discussions.

-- Christopher Ford

About Dr. Ford

Dr. Christopher Ford served until December 2016 as Chief Legislative counsel for the U.S. Senate Foreign Relations Committee, Chief Investigative Counsel for the Senate Banking Committee, Republican Chief Counsel for the Senate Appropriations Committee, Senior Fellow at Hudson Institute, U.S. Special Representative for Nuclear Nonproliferation, Principal Deputy Assistant Secretary of State, Minority Counsel and then General Counsel to the Senate Select Committee on Intelligence, and Staff Director of the Senate's Permanent Subcommittee on Investigations. A graduate of Harvard (summa cum laude), Oxford (as a Rhodes Scholar), and the Yale Law School, Dr. Ford was also ordained by Roshi Joan Halifax of the Upaya Zen Center as a lay chaplain in a lineage of Soto Zen Buddhism. He was a jujutsu student of the late Grandmaster Dong Jin Kim of the Jigo Tensin Ryu lineage, and is a member of Dai Nippon Butoku Kai with Sandan (3rd degree black belt) rank. Dr. Ford served from 1994 until 2011 as an intelligence officer in the U.S. Navy Reserve, and is a member of the International Institute for Strategic Studies, Chatham House, and the Council on Foreign Relations. Dr. Ford is the author of the books "China Looks at the West: Identity, Global Ambitions, and the Future of Sino-American Relations" (2015), "The Mind of Empire: China's History and Modern Foreign Relations" (2010), and "The Admirals' Advantage: U.S. Navy Operational Intelligence in World War II and the Cold War" (2005). He also co-edited "Rethinking the Law of Armed Conflict in an Age of Terrorism" (2012). For a list of his publications, see http://www.newparadigmsforum.com/NPFtestsite/?page_id=1628. The views he expresses here are entirely his own, and do not necessarily reflect those of anyone else in the U.S. Government.
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