Great powers and legal subjects in the making of counter-proliferation law

It seems the nuclear club just got bigger. Certainly, India’s had nuclear weapons for years and has stood deliberately outside the NPT system. However, the Bush administration’s effort to accommodate its civilian power program in exchange for it being quarantined from military research and subject to IAEA safeguards is an interesting step towards containment and tacit acknowledgement of nuclear power status.

In part, the US is probably interested in seeing India (the world’s largest democracy, after all) become a counter-balance to China. What I’m interested in, though, is what the non-proliferation tells us about the structure of power in current international legal relations and law-making.

Gerry Simpson’s argument in his excellent Great Powers and Outlaw States is that the great powers adopt an approach to international law based on whether they think their power is waning or still growing. Those that are aware their era may be passing will favour a rules based system that attempts to cement their current position in place. This was the United Kingdom’s aim in negotiations over the UN Charter. The Security Council was a deal between a declining great power (the UK) and two still-rising great powers (Russia and the US). France and China were added essentially as afterthoughts: China in particular as a regional balance against Japan.

Thus, it is scarcely surprising in an era when the US feels its power to be in the ascendant it’s academics, politicians and policy-makers often seem impatient with current international law and want to push the envelope (far more so than their diplomats and generals). Meanwhile European powers cling to UN procedure as the touchstone of legitimacy. It was ever thus.

Simpson also puts the point that great powers politics usually results in several tiers of international rules. Roughly speaking, the great powers claim certain privileges or exemptions not available to others, the mass of law-abiding or “civilized” States live within the constraints and protections of the law, while demonized “outlaw” States are denied the protection of the law but are also subjected to an intensely discriminatory regulatory law (sanctions).

How does this play out in counter-proliferation? While there has been much talk of the US “hegemony” or a “unipolar” world, I do not think the US is claiming any special privileges as a sole super-power. Despite the rhetoric of the “war on terror” the US has not been prepared to claim unique rights only it may exercise, or declared a unilateral policy of great-power intervention (à la the Brezhnev Doctrine). Iraq looks increasingly exceptional: the final chapter of a previous era of intervention, not the herald of a new dawn of global regime change. It is an exception that proves no particular rule.

The US is acting, in fact, far more like a great power in a phase of consolidation rather than expansion. Like a consolidating great power it is interested in creating new, and discriminatory, legal structures that favour its position.

It does not openly disclaim that it is a subject of the law, but it is far more interested in being the first-among-equals within the club of law-makers. Legislators can make laws that apply equally to all, but will never realistically apply to them. “The law in its majesty forbids both rich man and poor man from sleeping under a bridge.”

It wants a system that preserves WMD among a club of “responsible” weapon holders and that prohibits others from obtaining them. Logically, this now dictates either sanctioning India, or brining it further into the fold. India, for its part, may finally have stepped closer to the seat at the law-making table it’s been after.

Next: the law-making club and the unequal international law of non-proliferation.