Existing theories of international law are largely state-centric. While international cooperation can benefit all, states are often tempted to violate their promises in order to manage economic and political crises. States must accordingly balance enforcement against flexibility: legal institutions must provide enough enforcement that states comply most of the time yet also provide enough flexibility that states can violate during crises. Such a balance is possible when laws are crafted and enforced by unitary actors that will tolerate occasional violations by others in order to preserve their own right to occasionally violate.
However, the changing doctrine of sovereign immunity has dramatically transformed the actual practice of international law. Non-state actors and domestic courts play an increasingly important role in challenging state legal violations, generating a divergence between the theory and practice of contemporary international law. This divergence is apparent in many issue areas, including terrorism, human rights, sovereign debt, and foreign investment. This divergence suggests that political scientists and legal scholars must reconsider the limits of state-centric theories and examine the role of non-state actors and domestic courts.
Christopher A. Whytock
Political scientists—primarily in the discipline’s international relations subfield—have long studied international law. After considering how political scientists and legal scholars define international law, this article identifies five stages of political science research on international law, including the current interdisciplinary international law and international relations (IL/IR) stage, and it reviews three trends in political science research that constitute an emerging sixth stage of interdisciplinary scholarship: a law and world politics (L/WP) stage. First, moving beyond the “IL” in IL/IR scholarship, international relations scholars are increasingly studying domestic law and domestic courts—not only their foundational role in supporting international law and international courts but also their direct role in core areas of international relations, including international conflict and foreign policy. Second, moving beyond the “IR” in IL/IR scholarship, political scientists are adapting their research on international law to the broader world politics trend in political science by studying types of law—including extraterritoriality, conflict of laws, private international law, and the law of transnational commercial arbitration—that govern the transnational activity of private actors and can either support or hinder private global governance. Third, moving beyond the domestic-international divide, political scientists are increasingly rejecting “international law exceptionalism,” and beginning to take advantage of theoretical convergence across the domestic, comparative, and international politics subfields to develop a better general understanding law and politics.
Mikael Rask Madsen and Mikkel Jarle Christensen
Over the past several decades scholars have intensively debated what factors drive globalization. Answers have ranged from the emergence of the information society and the global economy to value-conflicts embedded in different civilizations. A different yet closely related question is who is driving globalization? That is, however, much less studied, even if it is arguably key to making global governance intelligible. A whole list of actors seem to offer possible answers to the question of who the globalizers are: Are they global institutions such as the World Trade Organization (WTO) or the International Criminal Court (ICC); communities of experts providing technocratic solutions; transnational networks of activists seeking to alter global and national politics by pursuing, for example, environmental or human rights agendas; or are they powerful individuals forming transnational elites taking the fate of the global society in their hands at a safe distance from ordinary politics in places such as Brussels, New York, or Davos?