Book Review: Interpreting the Nuclear Non-Proliferation Treaty by Daniel H Joyner, published by Oxford University Press

By Gillian Higgins*

“On July 16, 1945, the United States set off the world’s first atomic explosion. Since that date in 1945, the United States of America has conducted 42 test explosions. Today, the United States’ stockpile of atomic weapons, which, of course, increases daily, exceeds by many times the explosive equivalent of the total of all bombs and all shells that came from every plane and every gun in every theatre of war in all of the years of World War II.  A single air group, whether afloat or land-based, can now deliver to any reachable target a destructive cargo exceeding in power all the bombs that fell on Britain in all of World War II.”

US President Dwight Eisenhower’s ‘Atoms for Peace’ Speech, December 8, 1953 before the General Assembly of the United Nations on Peaceful Uses of Atomic Energy

This week, Gillian Higgins takes a break from international criminal law and reviews a new book on the 1968 Nuclear Non-Proliferation Treaty (NPT) by Daniel Joyner. As a newcomer to the regulation of nuclear energy, the non-proliferation of nuclear weapons and the principle of disarmament, Higgins examines whether this latest publication should be reserved for the experts, or whether in fact, it constitutes essential reading for anyone interested in the law and politics of our nuclear age.

Joyner acknowledges immediately that he is keenly aware of the dangers of practising what can be called "law office science", when tackling the complex issue of nuclear energy. Notwithstanding his concerns, he provides an excellent introduction to nuclear energy and international law in his first chapter in which he also sets out the historical perspective of the creation of the International Atomic Energy Agency in 1958, and the Non-Proliferation Treaty. Joyner reminds us that in August 1945, the world had just found out "about the development by the United States of nuclear fission weapons, and their use on the cities of Hiroshima and Nagasaki, Japan." It was only months later, in 1946, that the United Nations General Assembly, passed its first ever resolution, which called for the establishment of a "Commission to Deal with the Problems Raised by the Discovery of Atomic Energy."

Joyner's main thesis is clear at the outset. He argues that a number of the legal interpretative positions on the NPT maintained particularly by nuclear-possessing governments are legally incorrect. In summarising the underpinning of the NPT, Joyner explains that there are three inherently linked, and presumptively equal, principled pillars - peaceful use of nuclear energy, non-proliferation of nuclear weapons, and disarmament of nuclear weapon stockpiles - a concept commonly misunderstood or misinterpreted by academics and governments alike.

In chapter 2, the author adopts a holistic interpretation of the NPT, pursuant to the 1969 Vienna Convention on the Law of Treaties (VCLT). Joyner concludes that the diplomatic history of the NPT and the preparatory work of the treaty confirm that the NPT is not “fundamentally addressed to the regulation of nuclear weapons proliferation, as it is often described to be.” The diplomatic history and preparatory work “establish, rather that the NPT is, in fact, fundamentally addressed to regulating nuclear energy in its full dual-use nature and range of applications.”

Joyner argues that pursuant to the policy and practice of nuclear weapon governments, led by the United States, the non-proliferation pillar of the NPT has for over a decade been disproportionately and incorrectly prioritized at the expense of the peaceful use and disarmament pillars of the Treaty. He reminds us that even as “superpower tensions remained high in the early 1960s, both the US and Soviet governments determined that a coordinated process of limitation of nuclear weapons and ultimately reversal of the nuclear arms race would be beneficial to their national interests.” Joyner refers to the terrorist attacks of September 11, 2001 and the Bush administration’s resulting ‘global war on terror’ as evidence of the very palpable increase in the degree of the shift of emphasis toward nuclear non-proliferation, and away from nuclear disarmament and nuclear peaceful use, reflected in US statements to NPT meetings.

As the book progresses, Joyner develops his argument that during the Bush era, many of the interpretations of the NPT by Nuclear Weapon States were legally incorrect and in turn, formed the basis for policies and actions which have prejudiced the legitimate legal interests of Non Nuclear Weapon States. Joyner draws upon the period between the end of 2008 and the summer of 2010 to demonstrate the significant developments in international law and politics regarding nuclear energy and nuclear weapons.  He explains that the first sign of a change in US policy on nuclear weapons came in dramatic fashion in a speech given by President Obama on 5 April 2009 in which he set out “clearly and with conviction America’s commitment to seek the peace and security of a world without nuclear weapons.” President Obama’s formally stated commitment to a policy of nuclear disarmament was the first time a US President had made such a commitment. Joyner opines that Obama “essentially changed US nuclear weapons policy to a disarmament posture, in contrast to its longstanding arms control posture”, and in doing so, wholeheartedly deserved the award of the Nobel Peace Prize in 2009.

Joyner’s historical and contextual assessment of the NPT powerfully challenges the validity of recent legal interpretations and provides a comprehensive analysis of one of the most controversial treaties since the end of World War II. An interesting read, particularly given the current spotlight on the nuclear ambitions of Iran and North Korea.

* Gillian Higgins is a barrister at 9 Bedford Row International and a founding member of the International Criminal Law Bureau. She practices international criminal law and is currently defending Mr Uhuru Kenyatta before the International Criminal Court.