Law as discursive resource: the politics of the nuclear/non-nuclear distinction in the Non-Proliferation Treaty

Abstract

Realist approaches to international law conceptualize the law as epiphenomenal to state interest, whereas liberal institutionalist approaches theorize the ability of law to curb state power. Through the example of the Treaty on the Non-Proliferation of Nuclear Weapons, this article challenges these approaches by arguing that law’s power comes from its productive and constitutive effects. Despite perennial conflict, the Treaty on the Non-Proliferation of Nuclear Weapons endures because it has ordered nuclear politics by constituting a legal distinction between “nuclear weapon states” and “non-nuclear weapon states.” Instead of assuming that this distinction reflects self-evident material differences, this article shows how states actively construct nuclear status through international law. The dynamics of this construction reflect significant actions on the behalf of conventionally disempowered states and not merely great powers. An analysis of the meeting documents of the Eighteen Nation Disarmament Committee finds that the participants used the forum to perform a burgeoning “non-nuclear” identity. The politics of this distinction also generated the discourse of “nuclear apartheid,” which was subsequently used by states outside the Treaty on the Non-Proliferation of Nuclear Weapons regime to justify their pursuit of nuclear weapons. Taken together, the role of non-nuclear diplomacy and the discourse of nuclear apartheid demonstrate that the Treaty on the Non-Proliferation of Nuclear Weapons does not simply endure because the powerful have sanctioned it, but because it created a space for the disempowered to expand their influence from below. Though the article builds on existing sociological approaches to the law, it also moves beyond conflicts over legal and textual interpretation to demonstrate the diplomatic practices around the constitution of legal categories.

When is it legitimate to abandon the NPT? Withdrawal as a political tool to move nuclear disarmament forward

“…In the absence of an ultimate interpreter of law at the international level, Beetham (2013) argues that normative justifiability has even more weight, because "[a]t the heart of all international treaties lies the norm of international cooperation and common interests in the realisation of specific benefits which states could never achieve on their own" (p. 272). Pertinent to our investigation and related to the consensual nature of international institutions is the constitutive and productive nature of law (Hamidi, 2020). Law constitutes and sustains power relations of domination and subordination, which needs justification to be legitimate, which brings us to the second level of Beetham's structure.…”

Untitled

“…This provides the legal foundation for the international nuclear security regime (Treaty on the Non-Proliferation…, 1968). In today's conditions, the nuclear non-proliferation regime should be understood as a system of normative legal acts and treaties in the field of nuclear disarmament and nuclear non-proliferation, as well as various organizations and institutions whose activities are aimed at maintaining this international regime (Hamidi, 2020). In general, compliance with the international regime disarmament and non-proliferation is one of the key areas in the field of international security.…”

Justifying force: international law, foreign policy decision-making, and the use of force

“…These examples call attention to the productive power of law. Law not only permits behavior, it constructs categories that place a behavior outside the prohibition (Hamidi, 2019;Kinsella, 2005Kinsella, , 2011. The use of military force, for example, is permitted by justifying it within the concept of self-defense-a legal category that permits the use of military force that would otherwise be prohibited (Hurd, 2019: 73;Slaughter, 2013: 925).…”

“…The nuclear nonproliferation regime, similarly, constructs nuclear and nonnuclear weapons states, legal constructs that determine if the prohibition applies. For nuclear weapons states the law constructs a right for some that it simultaneously denies for others (Hamidi, 2019). Kinsella has noted a similar role for international humanitarian law, where the law constructs the category of civilian-who is owed protections-and combatant-who may be lawfully targeted (Kinsella, 2005(Kinsella, , 2011.…”