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.