International society and the tolerability of anarchy

Bull's concept of international society is first developed as a retort to the extravagant claims of realism and revolutionism, with an instinctive aversion to the ‘doom-laden’ nature of both approaches prompting the search for a path between the two. Bull expresses clearly his desire to avoid to such extravagance:

The fatalism of realism and sedition of Kantianism stem from a belief in the ‘intolerability’ of the international environment which is logically undetermined by anarchy and which practically neglects the cooperation between states which, for Bull, is the leitmotiv of international politics. Accepting realism's premise of anarchy but rejecting that of its intolerability, the task for Bull quickly becomes one of explaining the tolerability of anarchy, of seeking to answer the question ‘how is order possible in conditions of anarchy?’

International society, of course, is Bull's answer. Restraining the actions of states within anarchy, the intersubjective structures of Bull's institutions ‘symbolise the existence of an international society that is more than the sum of its members’ and explain why international society presents a genuinely different logic to the realist's mechanical system.Footnote ² These intersubjective rules are the ‘dark matter’ of international politics, explaining cooperation between states as the realist could not. Indeed, it is the realists' inability to see this ‘matter’ which accounts for their presumption of the intolerability of anarchy. Bull's concept of international society thus achieves precisely what he set out to achieve; it ameliorates, but does not annul, the logic of international anarchy.

Two functions for the balance of power

Bull's explanation of the compatibility of order and anarchy is fleshed out by a functional account of the role played by the institutions of diplomacy, international law, war, the balance of power, and the great powers. He shares the view of his rationalist forebears, Grotius and Oppenheim, (as he interprets them) that the balance of power is ‘basic’ among these institutions, indispensable to their successful operation. As ‘a state of affairs such that no one power is in a position where it is preponderant and can lay down the law to others’, the balance sets the context in which international society's other institutions are able to fulfil their functional contribution to the maintenance of order.Footnote ³ The balance is the hard foundation of international society, without which the ‘softer’ elements are merely ‘castles in the air’.Footnote ⁴

The foundational nature of the general balance of power derives from its performance of two specific functions.Footnote ⁵ Firstly, the balance of power preserves the system of states through the prevention of universal empire.Footnote ⁶ A functioning balance of power is a precondition for international society first and foremost because its failure threatens the states which make up that society. Bull's primary concern in this respect is ‘the conscious maintenance of the balance of power to preserve the independence of the member communities’.Footnote ⁷

However, it is clearly Bull's view that a milder form of preponderance, short of empire, also has the potential to undermine international society. This pertains to the second function of the general balance of power, which derives from the fact that the institutions of international society ‘depend heavily on the possibility that if one state violates the rules, others can take reciprocal action’Footnote ⁸. For Bull, ‘a state which is in a position of preponderant power’ can violate the rules of these institutions ‘with impunity’.Footnote ⁹ The institutions of international society ‘depend for their effectiveness on the principle of reciprocity’.Footnote ¹⁰

The balance functions, therefore, not only to prevent universal empire but also to maintain the possibility of effective reciprocity, a possibility which sustains an environment in which the other institutions of international society can operate effectively.Footnote ¹¹ The collapse of this environment would mean that a dominant state ‘may have the option of disregarding the rights of other states, without fear that these states will reciprocate by disregarding their rights in turn.’Footnote ¹²

It is the operation of both these functions – the prevention of universal empire and maintenance of the possibility of effective reciprocity – that grants the balance its privileged place in the functional hierarchy of Bull's institutions. This is interesting because this second function places significantly higher demands on the balance of power than does the prevention of universal empire. Of course, reciprocity is compatible with high levels of power inequality – where necessary, states are seen to ‘gang up’ on a more powerful state; in line with Bull's wider approach, it is a social phenomenon, not a ‘one-on-one’ process. Nonetheless, maintaining the possibility of effective reciprocity is a far ‘bigger ask’ of the balance of power than the prevention of universal empire.

The incompatibility of the Great Powers with unipolarity

Providing the other half of Bull's approach to power is the institution of the Great Powers. The ‘managing organism’ of the ‘club’ of dominant powers encapsulates the normative implications – the ‘special rights and duties’, and specifically the ‘managerial responsibilities’ – which stem from holding a materially dominant position in international society.Footnote ¹³ The great powers:

Though there sometimes seems a tension between Bull's commitments to the great powers and the balance of power, as institutions they are not contradictory but complementary. The former exploits the managerial and ordering implications of hierarchy within a social approach, whilst the latter serves to limit the destructive effects of this hierarchy.Footnote ¹⁵

Any tension inherent in Bull's dual commitments to both the balance of power and the great powers is neutralised by his explicit views on unipolarity. Bull states directly that ‘there could not be simply one great power.’Footnote ¹⁶ Neither the Roman Empire nor Imperial China were, for Bull, great powers, precisely because the position each occupied within the international system was ‘unique’.Footnote ¹⁷ The existence of a single great power would not only contravene Bull's commitment to the importance of balance but, when understood in light of his social approach to institutions, can be viewed as essentially oxymoronic.Footnote ¹⁸ Bull's institutions are ‘aggregations of intersubjective rules’, with the interactions of the Great Powers a social process, in common with the formation of international law (especially customary international law), diplomatic practice, and war. Bull's conclusion that ‘if the US were indeed the single dominant power, it could no longer rightly be called a great power’ is essentially embedded in this wider approach.Footnote ¹⁹

A single great power, then, is ruled out as oxymoronic within a social approach to great powers. Concomitantly, the balance of power is viewed as functioning to prevent preponderance, thereby serving to avert universal empire and to safeguard reciprocity, preserving both the ‘states’ and the ‘society’ of the society of states.

The present context

We also know that Bull's balance of power lacks the systemic automaticity of the realist's concept. Rejecting the notion of an ‘inevitable tendency for a balance of power to arise in the international system’,Footnote ²⁰ Bull again remains consistent with his social approach to international relations by resisting the allure of the ‘beautiful automation’ of the realist's mechanical system of states.Footnote ²¹ For Bull, the primary historical form taken by the balance of power is as a social process of ‘contrived’ balance rather than a ‘fortuitous’ balance. Far from being a logical, quasi-Newtonian consequence of anarchy, the balance of power is conceived as ‘a recognized social practice, and shared value’, with states cooperating ‘in a common policy to maintain it’.Footnote ²² It is the institutionalisation of a shared interest, a set of practices maintained by states in the knowledge that adherence to them benefits all. As such, the balance of power is by no means guaranteed.

We can move forward, then, with the limited premise that, today, the international distribution of material capabilities places the US in a position of dominance which significantly impedes the potential for effective reciprocity. Representing a failure of Bull's second function for the balance of power, this withdraws a precondition for the successful functioning of the institutions of international society, and makes pertinent a Bullian consideration of the effects of such a failure.

The effects of preponderance on war qua an institution of international society

Bull viewed war as a social instrumentality harnessed to the purposes of international society. War is seen as an essentially functional and limited activity, the laws governing war being only the most visible manifestation of this fact. Most distinctively, Bull's contribution to the understanding of war was to highlight the inherently functional, harnessed and limited nature of war as an institution, aside from its governance through international law.

Many contemporary accounts of the effects of unipolarity on war have focused on the notion of pre-emptive war.Footnote ²³ Specifically, they have suggested a push toward a more ‘nuanced’ interpretation of ‘imminence’ than that previously read into Webster's formulation of the Caroline criteria.Footnote ²⁴ Instantiated most famously as US policy in the expanded doctrine of pre-emption laid out in the 2002 National Security Strategy, the belief that the US ‘must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries’ is seen to implicate the US in a largely unilateral project of ‘recasting’ one of the principle legal manifestations of the function of war in international society.Footnote ²⁵

Whilst this would interest Bull's, as a debate relating to the function of war, it does not in itself represent a challenge to war qua institution. With war conceived as an institution of international society, even a radically enhanced acceptance of the right to pre-emptive war merely adapts the institution of war. Indeed, arguments for the right to pre-emptive war often appeal to the need to strengthen war's ability to fulfil its ultimate function – the maintenance of international order – in today's changing world.Footnote ²⁶

As a development, then, the rise of pre-emptive war may be seen to adapt the function of war, but need not ‘weaken’ the institution as such. Of course, it is nothing new to suggest that the dominant power drives the evolution of the institutions of international society. The hegemon was, for Bull, always likely to be at the ‘cutting edge’ of this process of evolution, working to adapt international society's institutions to the requirements of maintaining order in an evolving international environment. There continues to be a strong literature in this field, in particular in relation to the dominant power's role in the development of international law.Footnote ²⁷ Here we are interested in something different: Bull's equally strong, but perhaps less developed, belief in the damage that a single preponderant power could inflict on international society and its institutions and, specifically, the role that these concerns could play in critical contemporary accounts of unipolarity.

In this task, let us turn to two significant developments widely seen to characterise the changing face of war. Firstly, the challenge over the right to identify threats to the peace, as witnessed most prominently in debates relating to Iraq since the early 1990s. Bull's view, we can recall, is that war the institution is ‘harnessed to international society's purposes’.Footnote ²⁸ The practical instantiation of this ‘harness’ is the Security Council's primary right to identify threats to the peace, as embodied in UN Charter Article 39.Footnote ²⁹ This is the most explicit manifestation of war as a social instrumentality, harnessed to the purposes of international society.

The propensity of the dominant power to challenge the UN's role as ‘identifier of threats’ has been a prominent feature of the debate over whether, and how, war may be changing in the contemporary context. Of course, the decision to invade Iraq in 2003 plays a prominent role in this discussion. It should be recalled that, though rhetorically prominent it was not the argument for the right to pre-emptive self-defence which formed the US's official legal justification of the 2003 invasion of Iraq. Legal justification was, instead, founded on the combined effect of UNSC Resolutions 1441, 678 and 687. In light of the failure to secure a second resolution, and alongside the non-legal notion of an ‘unreasonable veto’, this justification relied heavily on the implicit (and at times explicit) claim that it was the US stance, and not that of the UNSC, that was most harnessed to the will of the international community.

If we sympathise with this depiction, it would represent a dynamic which could legitimately be construed as a threat to war as an institution of international society. Unlike an evolving interpretation of self-defence, a challenge to the harness which keeps war a social instrumentality is a challenge to one of the key characteristics by virtue of which war is conceived to be a successfully functioning institution of international society. This suggestion is strengthened by the limited membership of the ‘Coalition of the Willing’, and the significant level of international opposition to its claim to represent the will of the international community. Both facts reinforce the argument that the action of the dominant power is, in this case, highly suggestive of a move to undermine the social nature of the ‘instrumentality’ which is so central to Bull's understanding of war.

The notion of war as a social instrumentality harnessed to the needs of international society is not the only aspect of the international society approach which suggests its pertinence and potential usefulness in framing our understanding of today's relationship between the dominant power and war. If we recall that, alongside the concept of war as harnessed and ‘functional’, the concept of ‘limits’ is central Bull's notion of war as a successfully functioning institution, we can turn to a second prominent aspect of the debate over the ‘changing face’ of war.

Bull's view of war as ‘limited’ can be broadly construed in two senses, roughly tracing the distinction between jus ad bellum and jus in bello. Firstly, a war is viewed as a discrete and determinate phenomenon. A war is fought for both a defined and specific purpose, and within a defined timeframe. Secondly, war is viewed as limited in the sense of being a restrained activity. This aspect of its limited nature manifests itself in a deep consensus that certain activities are simply inappropriate to the activity called war.

The discrete and determinate nature of war as a successfully functioning institution does not sit easily alongside the ascent of the concept of the ‘War on Terror’. It is clear that, in the most straightforward sense, a ‘War on Terror’ threatens to move away from the notion of war as a discrete and determinate phenomenon. Such a war is, instead, ill-defined in terms objective and enemy, and is, correspondingly, temporally ill-defined. This may sound trivial, but the ‘discreteness’ of individual wars was, for Bull, a key aspect of war's ability to play a functional role as an institution of international society.

Yet, there is a deeper sense in which the limited nature of war is challenged by the ascendance of the ‘War on Terror’ concept. This relates to our second interpretation of ‘limited’, construed as ‘restrained’. Here we turn to another central aspect of Bull's account of war; his strong belief that war should be seen as an activity conducted within international society, between members of that society.Footnote ³⁰ This is a crucial aspect of the Bullian approach to war. As a historian of the development of European international society, Bull viewed the unlimited religious war that preceded the development of that society (and which was, indeed, a central reason for its development) as a prime example of the danger of a war against an ‘outsider’. War, functioning as an institution of international society, cannot place international society itself in the role of participant, cast against an outside enemy. International society, instead, provides the environment or context in which a conflict is fought between members of that society.

A ‘war against terror and against evil’, against ‘evildoers’ may be seen to challenge this conception of war.Footnote ³¹ Such a war is suggestive, sometimes explicitly so in the rhetoric of the dominant state, of a conflict in which international society is a participant, facing an exterior enemy, rather than the setting for a conflict between its members. It is because the ‘limitations’ inherent to the activity called war derive from the ameliorative effects of war's norm-based international society setting, that this interpretation of the process of war is critical. The former interpretation is indicative of a conflict taking place within a realm outside of international society, not subject to the ameliorative effects of that society. It is a context, therefore, at least potentially inimical to the notion of war as a limited activity.

Of course, one does not need to look far for claims of the practical ways in which restraint may have ‘loosened’ in the contemporary practice of war.Footnote ³² (As made clear at the outset, it is not the role of this article to examine the veracity of such claims but to highlight the value of Bull to the general project of tracing the effects of unipolarity.) Principal amongst such claims is the suggestion of a US attempt to build an elasticity into the Geneva Conventions, a universally accepted recognition of the limited nature of war, with the creation of the category of ‘enemy combatants’. Ratner, typical of the conclusions of such work, claims that, today, whilst the US ‘has endorsed an expansive view of its rights under jus ad bellum’ it has insisted on ‘a very narrow view of its obligations under jus in bello.’Footnote ³³ Certainly, the argument that ‘the War on Terrorism is a war not envisaged when the Geneva Convention was signed in 1949’ could be interpreted as an attempt to fundamentally reconceive a significant legal manifestation of ‘restraint’ in jus in bello norms.Footnote ³⁴ In any case, the point made here is that, if we accept the veracity of such interpretations, it might be instructive to conceive of unipolarity as a context specifically inimical to the functioning of war qua an institution of international society.

There is one final reflection worth making here before moving on, relating to claims of the increased involvement of private security firms in arenas of war.Footnote ³⁵ Bull, as we have seen, gave central importance to the fact that those involved in war ‘are activated by the notion that they are engaged in an activity called “war”’ and are correspondingly aware that ‘certain kinds of behaviour are appropriate to it’.Footnote ³⁶ As has been witnessed in both Iraq and Afghanistan, private security contractors frequently engage in violent, armed interactions, yet a question remains over whether they can be said to be consciously involved in the ‘activity called war’. Of course, the behaviour of such private security contractors remains ‘limited’ by norms and values, though these may not be simply the ‘every day’ norms governing the use of violence in domestic society. Do such actors consider their behaviour limited by the same boundaries that limit the behaviour of those consciously engaged in the activity called war? More importantly, from an international society outlook, in what sense are their actions disjointed from the shared understandings which derive from the social history of ‘war’ as a practice? At the very least, such considerations complicate the role of that shared history in making ‘appropriate’ certain kinds of behaviour to the activity called war. They thereby affect a central aspect of Bull's conception of war as an institution of international society. This is something of an aside, and would require further investigation, but is nonetheless suggestive of the interesting research priorities which might follow from an international society approach to these issues.

For each of the phenomena discussed above, whether the ‘War on Terror’ or the increasing role of the private sector in arenas of war, this article does not seek to establish correlations with unipolarity. The aim is, rather, to highlight to those sympathetic to the novelty and significance of the unipolar moment, the potential value of an acknowledgement of the explicitly Bullian claim that preponderance has affected war as an institution of international society. Specifically, the discussion has examined the idea that single power dominance may be seen as impacting on war viewed as a limited and social instrumentality, harnessed to the purposes of international society. It has suggested that, for those who accept that the unipolar moment exists, and has novel implications for war, conceiving preponderance's impact on war as impacting on war qua an institution of international society, may help to frame our understanding of these implications. Taking onboard such a claim may not only provide an interesting framework for analysis, but may also equip such work with a positive heuristic which prompts interestingly different research priorities from conventional surveys of the impact of preponderance on war.

The effect of preponderance on law qua an institution of international society

Bull's approach to international law was not as distinctive as his approach to war and, perhaps for this reason, the value of recalling his work in this area is not as readily perceptible. In a very general sense, Bull's suggestion that the relationship between the effectiveness of international law and the proper functioning of the balance of power is ‘intimate’, does seem pertinent today.Footnote ³⁷ Unsurprisingly, one need not look far to find similar claims amongst contemporary work. Malone and Khong are typical, concluding their own study of the consequences of US dominance since the end of the Cold War with the view that the dominant power is increasingly ‘above’ international law, and can today quite simply ‘get away with a kind of unilateral behaviour’.Footnote ³⁸

The US has failed to ratify the Comprehensive Test Ban Treaty; the extension of the Non-Proliferation Treaty; the Chemical Weapons Convention; the Ottawa Convention on Landmines; the Biosafety Protocol; the Kyoto Protocol and the Rome Statute. More relevant though, would be the suggestion of a correlation between preponderance and the dominant power's approach to international law, perhaps showing the US position hardening since 1989. Statistically speaking, since the advent of unipolarity the US attitude to ratification has indeed been increasingly divergent from that of the majority of states. Between 1945 and 1989, the US signed 66 per cent of all treaties deposited at the UN signed by a majority of states, with that figure falling to 38 per cent since 1989.Footnote ³⁹ Four other treaties negotiated throughout the 1990s have been signed by more than half of all countries and are not included in these statistics. Of these, the US has rejected three outright (including the Kyoto Protocol).

Of course, statistical analyses such as these must be taken with a large pinch of salt. Only a qualitative approach could meaningfully draw out any ‘discernable trend’ toward unilateralism during the previous decade.Footnote ⁴⁰ In addition, there are numerous and significant examples of similar behaviour prior to the advent of unipolarity, not least in relation to the League of Nations.Footnote ⁴¹

Is there any more specific sense in which an international society approach to the relationship between preponderance and international law has a renewed relevance today? For Bull, the failure of the balance of power to maintain the potential for reciprocity would mean the emergence of a power able ‘lay down the law’ to others.Footnote ⁴² This perhaps resonates today in fears of a ‘bifurcated order: international law binding on others, but not the US’'.Footnote ⁴³ Two perceived dynamics seem to prompt such fears. Firstly, there is the perception that ambivalence toward international law, projected through the prism of single power dominance, has lead to unevenness in the development of international law which has significance for the nature of the international legal order. This may be manifest, for example, in the protracted development of international environment law, international criminal law, and law governing the use of force, in comparison to the more rapid development of a robust and detailed body of international trade law. The suggestion of Krisch and others is that, in the context of an unequal international distribution of power, all laws may be levelling, but some laws are more levelling than others; ‘in matters of trade, the equality of the rules is hardly a threat to the powerful’. A stabilising framework of trade law may be considered to protect the dominant power, whilst pacifying threats and regulating their nature.Footnote ⁴⁴ The consequent acceleration in the development of international law in line with the national interests of the dominant power, in comparison to the slower development of more ‘levelling’ spheres of international law, might indicate the pertinence of Bull's concern that there is a disharmony between preponderance and international law conceived as the institutionalisation of a shared interest.

A second aspect to claims of a ‘bifurcation’ of international law is to be the view that ‘the US appears more comfortable in the position of a legislator than as a subject of international law’.Footnote ⁴⁵ The US played an active role in the negotiation of, for example, the Comprehensive Test Ban Treaty; the extension of the Non-Proliferation Treaty; the Chemical Weapons Convention; the Ottawa Convention on Landmines; the Biosafety Protocol; the Kyoto Protocol and the Rome Statute despite in all cases failing to ratify the resultant treaty texts. This suggested dynamic is particularly close to Bull's notion of ‘laying down the law’ to others, though perhaps rather more literally than intended.

The suggestion of a pressure toward a ‘bifurcated’ international legal order, sits comfortably with the explicitly Bullian view that the dominance of a single power is inimical to the ability of international law to function in its role as the institutionalisation of a shared interest, and an institution of international society. This might suggest an ‘easy fit’ between the Bullian approach and contemporary concerns regarding the impact of preponderance of law. However, the conventional nature of Bull's approach to international law perhaps means that its rejuvenation does not promise the same theoretical value as the rejuvenation of his views regarding war. Moreover, there are significant notes of caution here, because Bull's belief in the importance of reciprocity to international law was stronger than has thus far been suggested. Bull suggested that preponderance places the dominant power ‘in a position to ignore international law […] with impunity’.Footnote ⁴⁶ If we accept our premise – that the balance of power has today failed in its role of maintaining the possibility of effective reciprocity – Bull's position is undermined by the extensive energy the US continues to invest in the articulation of legal arguments. The continuing, and even increasing, dominance of the discourse of international law under conditions of unipolarity suggests a subtlety to the relationship between preponderance and international law which is underplayed by the view that a single dominant power would be in a position to simply ‘ignore’ international law. In this sense, the sophistication of contemporary legal scholarship may have more to contribute to an international society approach than vice versa.Footnote ⁴⁷ That is not to say that it would not be productive to conceive international law as the institutionalisation of a shared interest, and to take on board a broader acknowledgement of international law's functional role within international society. It does suggest, however, that, whilst such an approach may help to frame our understanding of the relationship between international law and unipolarity, our conclusion should remain more modest than that claimed above in relation to war.

The immunity of diplomacy

Before moving on it is interesting to note one further significant disjoint between Bull's anticipations of the danger of preponderance and developments since 1989. This relates to his views on diplomacy. Bull has been proven misguided in his view that unipolarity would significantly threaten the institution of diplomacy. In The Anarchical Society, it was claimed that a preponderant power would find itself in a position to ‘disregard the rules and procedures of diplomatic intercourse’.Footnote ⁴⁸ The practice of diplomacy has indeed undergone significant changes in the previous two decades, not least as the result of techonological advances. However, there are not signs, analogous to those in relation to war and law, that the institution of diplomacy has been significantly challenged by the advent of unipolarity.Footnote ⁴⁹ Peculiarly among the institutions of international society, unipolarity cannot be said to have affected diplomacy as Bull predicted.

Indeed, it is unclear why Bull anticipated so strong a threat to diplomacy from the dominance of a single power. Diplomacy is a process in which the possibility of reciprocity is significantly insulated from large levels of power inequality and, correspondingly, from the balance of power's ability to fulfil its second function, the maintenance of the possibility for effective reciprocity. The mechanics of diplomacy mean that even a highly dominant power does not enjoy significant impunity when breaking the rules of diplomatic practice. Even the hostile and highly unequal US-Cuba relationship, for example, has been characterised by a reciprocal ‘tit-for-tat’ exchange.Footnote ⁵⁰ In this sense, it would be no surprise if diplomacy had proven more robust than war or international law in the contemporary context. Indeed, diplomacy, of all the institutions of international society, is that tied most closely to the essence of what it means to be in a society; necessarily reciprocal; somewhat insulated from large fluctuations in power; and emblematic of the idea of an institutionalised shared interest. Whilst a breakdown in the balance of power may have inhibited the functioning of law and war as institutions of international society, where reciprocity survives, as in the somewhat isolated realm of the diplomat, the institution of diplomacy may remain largely unscathed by preponderance.

Section conclusion

The discussions of this section have aimed to highlight the relevance of the concept of international society to a critical discussion of the novel effects of unipolarity. For those who accept unipolarity as a new phase, with new dynamics, the international society approach may help to frame our understanding of its effects on war and, though less distinctively, international law. In particular, the acknowledgement that unipolarity affects those characteristics by virtue of which war is a successfully functioning institution of international society may be a productive one. Bull appears most valuable where he is most distinctive, in relation to war, but his international society approach may also be worthy of rejuvenation in discussions regarding the relationship between preponderance and international law.

Preponderance and the rise of bilateralism

The outcomes of bilateral interactions are liable to more closely reflect the distribution of power than those of multilateral interactions and it would, in general, not be surprising that ‘where power is very asymmetric, dominant states may prefer bilateral bargaining’.Footnote ⁵¹ Though accentuated by certain characteristics exceptional to the US, an increase in bilateralism today would not be a phenomenon specific to the present phase of unipolarity.Footnote ⁵² As Great Britain's dominance grew in the 19th century so too did a preference for bilateral negotiations which better translated this preponderance into an outcome of equivalent asymmetry. Particularly affected was the Law of the Sea, where attempts to establish a multilateral treaty governing naval warfare ‘faced significant obstruction from the British.’Footnote ⁵³ However, Britain also stood against the Hague neutrality conventions of 1907, an agreement seen to have a similarly ‘levelling’ impact on British military dominance. Reluctance to enter such treaties related not only to their substantive content; ‘Britain also had a significant problem with multilateral negotiations as such.’Footnote ⁵⁴ Similarly, today, the dominance of a single power may be linked not only to increasing instances of bilateralism but also to an undermining of the principle of multilateralism more fundamentally.

Doremus' study into the US's negotiation of intellectual property rights (IPRs) serves to illuminate the phenomenon in the modern context.Footnote ⁵⁵ Examining the negotiations over IPRs for biotechnology, semiconductors, and software, the study highlights the link from preponderance to bilateralism. Analysing the US's choice of bargaining tactic ‘between multilateralism and bilateralism’ in a variety of cases reveals that multilateral agreements are often reserved for situations in which the US has a weaker bargaining position, and is pursuing a less urgent outcome.Footnote ⁵⁶ In contrast, where dominance is greater, and the importance of securing a successful agreement is most marked, bilateral interactions appear to be favoured over both multilateral and unilateral tactics. More than unilateralism, bilateralism is seen to translate preponderance effectively whilst keeping costs low by providing legitimacy, predictability, and recourse to non-military enforcement mechanisms.

This dynamic appears to manifest itself in numerous high profile examples of bilateralism. The demise of the FTAA, for example, has corresponded with ‘the advance of bilateral free trade agreements’ pushed for by the US and often hard to resist by weaker states.Footnote ⁵⁷ Brazil, in particular, has opposed this trend, keen to hold out for multilateral negotiations in which it can ‘leverage the power’ it accrued through leading the Group of 20 developing states at Cancun.Footnote ⁵⁸

Of course a ‘growing array’ of bilateral agreements need not operate independently of multilateral negotiations. The prospect of aggressively pursued bilateral negotiations could help to ‘sway opinions’ toward ensuring the success of multilateral talks.Footnote ⁵⁹ The fact that there exists the strong possibility of securing a favourable bilateral agreement in the event of failure, may mean that the US is free to push for harder concessions in a multilateral setting, and weaker states have correspondingly more reason to take what they can get while they can.

The case of the International Criminal Court seems to provide a stark example of the interactions between multilateral and bilateral negotiations. In response to the creation of the ICC, the US has negotiated around 100 Bilateral Immunity Agreements (BIAs) which prohibit party states from surrendering to the ICC current or former US government officials, military personnel, employees and nationals. The bilaterally negotiated negation by the single preponderant power of a treaty agreed multilaterally by a significant majority of the world's states is a prime example of the corrosive effect of that bilateralism could have on multilateralism.

The specific consequence of bilateralism for international society, however, may be best drawn out by the case of Bilateral Investment Treaties (BITs), the main form of international regulation of Foreign Direct Investment (FDI). BITs have grown in significance with the surge in FDI levels over the previous decade and today provide the main method of regulating the treatment of such investment by Less Developed Countries (LDCs). The agreements have been embraced by LDCs, yet many had actively opposed the customary international law which had previously governed FDI (commonly known as the Hull Law) on the grounds that it violated sovereignty. This is despite the fact that the Hull Law was far less extensive in scope and less stringent than the new BITs which have grown to replace it.Footnote ⁶⁰

The approach by LDCs thus appears paradoxical but, as Guzmán notes, the explanation lies in the fact that, although BITs harm LDCs collectively, individually they increase the attractiveness of a host country to investors.Footnote ⁶¹ The different negotiating environments in which either treaty is developed – multilateral and bilateral – seem to explain the willingness to sign restrictive BITs and the concomitant opposition to the customary Hull Law. In the former case, the bilateral bargaining environment appears governed by a competitive dynamic; in the latter the multilateral environment allows a dynamic which is at least potentially cooperative.

Yet the impact of bilateralism may be both more pervasive and subtle that this would suggest. This is because the dynamics of bilateralism, properly construed, can also permeate much of what is superficially multilateral. The ‘Coalition of the Willing’, though ostensibly a multilateral grouping, was assembled largely through a process of bilateral negotiations in which US economic and military preponderance was used to great effect. Rather than developing out of a multilateral meeting of concerned parties, the Coalition reflected bilateral dynamics, and acts as a prime example of the potentially, and deceptively, pervasive effects of bilateralism.Footnote ⁶²

The definition of multilateral diplomacy as simply ‘intercourse involving three or more parties’ may therefore miss ‘the qualitative dimension of the phenomenon that makes it distinct.’Footnote ⁶³ A plurality of parties may be a necessary but insufficient condition for multilateralism as properly conceived. As a discussion regarding BITs implies, what appears to distinguish multilateralism from bilateralism is the type of relationship between parties.

The above interpretation of bilateralism is clearly open to question. However, if we accept the implications drawn from the examples above, then by effecting a change in the kind of relationship that exists between states, the rise of bilateralism, itself closely linked with conditions of preponderance, may well have socio-structural implications which are specifically inimical to Bull's conception of international society and the institutions thereof. Specifically, this would derive from two potential features of bilateralism. Firstly, bilateral interactions would appear to be significantly insulated from the process of coalition and alliance formation that is symptomatic of multilateral interactions. (It is precisely by creating this isolated sphere of interaction that an outcome is more commonly reached which reflects the distribution of power between the negotiating parties.) Over time, by denying this possibility to ‘gang up’, an increase in the number and significance of bilateral interactions may affect the ongoing process of social intercourse which Bull saw as typical of interactions within an international society. Secondly, the above examples suggest that bilateral relations may privilege a competitive over a cooperative dynamic. If we accept this characterisation, bilateral relations would kick the legs from under the shared interests that provide the core of Bull's conception of international society and its institutions.

We should recall here our earlier discussion regarding war, because the potential ‘socio-structural’ consequences of preponderance would not be merely contemporaneous with the implications of preponderance discussed earlier in relation to war, but may augment them. As just one example, take the Coalition of the Willing; a set of bilateral dynamics manifested as a pseudo-multilateral body, it assumed the role of guardian of the collective will, and thereby went on to sanction war. The complexity and practical significance of such dynamics would be considerable, and in itself is suggestive of the value of further work in this area.