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Published online by Cambridge University Press: 20 January 2017
1 Treaty on the Non-proliferation of Nuclear Weapons, July 1, 1968, 21 UST 483, 729 UNTS 161 [hereinafter NPT].
2 See, e.g., Asada, Masahiko, The Treaty on the Non-proliferation of Nuclear Weapons and the Universalization of the Additional Protocol, 16 J. Conflict & Sec. L. 3, 3 (2011)CrossRefGoogle Scholar; Fact Sheet: Nuclear Non-proliferation Treaty, 2 U.S. Dep’t of State Dispatch 12 (1991).
3 For the purposes of the NPT, a nuclear-weapon state “is one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967.” NPT, supra note 1, Art. IX(3). This group is comprised of the permanent members of the United Nations Security Council: the United States, the United Kingdom, Russia (formerly the Soviet Union), France, and China. The nonnuclear-weapon states are therefore all other states.
4 See, e.g., Weiss, Leonard, Nuclear-Weapon States and the Grand Bargain, 33 Arms Control Today, Dec. 2003, at 21Google Scholar.
5 NPT, supra note 1, Arts. II—III.
6 Id., Arts. IV-V.
7 Id, Art. VI.
8 See, e.g., Kuppuswamy, Chamundeeswari, Is the Nuclear Non-proliferation Treaty Shaking at Its Foundations? Stock Taking After the 2005 NPT Review Conference, 11 J. Conflict & Sec. L. 141, 142 (2006)Google Scholar.
9 Daniel H. Joyner, International Law and The Proliferation of Weapons of Mass Destruction (2009).
10 Joyner himself notes this distinction in the book under review (p. 1 ).
11 For example, Interpreting the Nuclear Non-proliferation Treaty does not consider the Agreement for Cooperation Between the Government of the United States of America and the Government of India Concerning Peaceful Uses of Nuclear Energy (123 Agreement), Oct. 10,2008 [hereinafter Indo-US 123 Agreement], at http://responsiblenucleartrade.com/keydocuments/india_123_agreement_text.pdf. Given the groundbreaking nature of this treaty for civil nuclear cooperation between the United States and a de facto nuclear-weapon state operating outside of the NPT regime (in this instance, India)—devised and signed during Joyner’s target decade—and, in particular, the problems posed by the Indo-US 123 Agreement for the stability of the NPT and its associated regime, its omission from a book considering the NPT in general terms would be extremely concerning. In the case of the book under review, however, the Indo-US 123 Agreement simply does not affect Joyner’s core interpretive analysis of the NPT and so was wisely excluded from the discussion. The present reviewer is a project member and co-investigator of the 123 Agreement Project. See University of Reading, 123 Agreement, at http://www.reading.ac.uk/123agreement; see also 51 Indian J. Int’l L. (Special Issue) l (2011) (contents discussing India, the 123 Agreement, and nuclear energy).
12 White House Press Release, Remarks by President Barack Obama, Hradcany Square, Prague, Czech Republic (Apr. 5, 2009), at http://www.whitehouse.gov/the_press_office/Remarks-By-President-Barack-Obama-In-Prague-As-Delivered. In this speech President Obama, inter alia, reiterated the commitment of the United States to disarmament under the auspices of the NPT and stated that—together with other states— the United States would “strengthen the Nuclear Non-proliferation Treaty as a basis for cooperation.”
13 Joyner has previously made the same claim—that the NPT is rightly to be considered a contract treaty. Joyner, supra note 9, at 9 -11. On the general distinction between “law-making treaties” and “contract treaties,” see Malanczuk, Peter, Akehurst’s Modern Introduction to International Law 37–38 (7th rev. ed. 1997)Google Scholar, and Shaw, Malcolm N., International Law 94 (6th ed. 2008)CrossRefGoogle Scholar.
14 Malanczuk, supra note 13, at 38.
15 After all, as Joyner notes, VCLT Articles 31 and 32 apply equally to all treaties (p. 28).
16 This reviewer has written elsewhere about his concern at labeling the NPT a contract treaty. Green, James A., India‘s Status as a Nuclear Weapons Power Under Customary International Law, 24 Nat’l. L. Sch. India Rev. (forthcoming June 2012)Google Scholar.
17 Moore, Mike, Can the Nuclear Powers Continue to Have it Both Ways?, 4 Brown J. World Aff., Winter/Spring 1997, at 83 Google Scholar. Moore bluntly describes this debate thus: “Many of us . . . believe that systematic, phased, verified multilateral nuclear disarmament is the better way to go. Others—generally, those who fall into the ‘realist camp’—suggest that we’re nuts. Nuclear disarmament is pie-in-the sky nonsense, they say, and, if it should happen, dangerously de-stabilizing.” Id. at 85. While the present reviewer—like both Moore and Joyner—certainly does not subscribe to this realist viewpoint, at least not fully, it is a perspective that can not be ignored in the context of Joyner’s thesis.
18 See, e.g., Steinfeld, Adam, Nuclear Objections: The Persistent Objector and the Legality of the Use of Nuclear Weapons, 62 Brook. L. Rev. 1635, 1675-76, 1680, 1685 (1996)Google Scholar.
19 It is always worth remembering that the de jure NWS are also the five permanent members of the United Nations Security Council and so are used to “getting their own way” at the international level.
20 See, e.g., Mohamed I. Shaker, The Nuclear Non-Proliferation Treaty: Origin and Implementation 1959-1979 (1980); The Nuclear Non-Proliferation Treaty (Ian Bellany, Coit D. Blacker & Joseph Gallacher eds., 1985); Jr.Moxley, Charles J., Nuclear Weapons and International Law in the Post Cold War World (2000)Google Scholar; Nuclear Proliferation and International Order: Challenges to the Non-Proliferation Treaty (Olav Njolstad ed., 2011); Bosch, Miguel Marin, The Non-proliferation Treaty and its Future, in International Law, The International Court of Justice and Nuclear Weapons 375 (de Chazournes, Laurence Boisson & Sands, Philippe eds., 1999)Google Scholar.
21 See, e.g., Koplow, David A., Parsing Good Faith: Has the United States Violated Article VI of the Nuclear Non-proliferation Treaty?, 1993 Wls. L. Rev. 301.Google Scholar Indeed, the failure of the NWS to comply with their NPT obligations—particularly under NPT Article VI—was implicitly indicated by the International Court of Justice in 1996, though the Court stopped short of explicitly holding that a breach of Article VI had occurred. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, 263-65 (July 8).
22 It is worth noting that a similar interpretative approach to the NPT as that adopted by Joyner was taken by Zhang in 2006, but only with regard to interpreting the meaning of NPT Article IV and not the treaty in toto. See Xinjun, Zhang, The Riddle of “Inalie able Right” in Article TV of the Treaty on the Non-proliferation of Nuclear Weapons: Intentional Ambiguity, 5 Chinese J. Int’l L. 647 (2006)Google Scholar.
23 For an excellent summary, see Anthony Aust, Modern Treaty Law and Practice 230-55 (2007).
24 For example, Joyner notes: “[The NNWS] fear that the new tone of the Obama administration only puts sheep’s clothing on the original wolfish idea” (p. 124).
25 For example, Joyner comments: “I originally intended to entitle this volume A Holistic Interpretation of the Nuclear Non-proliferation Treaty. However my editor and other colleagues eventually convinced me that modern associations of the concept of’holism’ with New Age healing and philosophy would likely make this confusing to readers, who might expect a free scented candle with each purchase of the volume” (p. 21).