Wayne Sandholtz and Christopher A. Whytock, The Politics of International Law, in (March 15, 2018). RESEARCH HANDBOOK ON THE POLITICS OF INTERNATIONAL LAW (2017).
In this chapter, we develop a new framework for analyzing the politics of international law. Research based on the traditional paradigms of international relations — realism, institutionalism, liberalism and constructivism — tends to generalize about the relationship between politics and international law. In contrast, our premise is that there are diverse sites of interaction between law and politics, and that the nature, causes and effects of these interactions, and the relative influences of law and politics on outcomes, vary across these different sites. This diversity lends itself more to comparative analysis than to general theorizing.
We therefore argue for a comparative approach to the politics of international law. Our dimensions of comparative analysis are twofold: stages of governance and governance systems. The stages of governance include rulemaking, interpretation, decisionmaking, implementation, and rule change. Governance systems are demarcated by their subject matter (e.g. international peace and security, intellectual property, or trade), their scope (e.g. global, regional, or national), or both. Our central claim is that interactions between law and politics vary in important ways both (1) across different stages of governance within particular governance systems and (2) across different governance systems.
Our approach has broader implications for understanding international law. First, it transcends the traditional — and in our view misleading — categorical distinction between the role of law in domestic and international politics. Second, it allows for a more nuanced and contingent understanding of the relationship between law and politics than debates about the primacy of politics (or law) typically produce. Third, our approach favors mid-range theorizing focused on the foundations of the relationship between law and politics in specific contexts.
This chapter is the introduction to the Research Handbook on the Politics of International Law, published by Edward Elgar. The other chapters apply the introductory chapter’s analytical framework in contexts including financial and environmental regulation, international trade, intellectual property, human rights, Internet governance, and cyber conflict.