3.1.2. International relations

The theoretical divergence between the studies of international relations and international law that began early in the 20th century became a schism with the collapse of international order in the second World War, which exposed notions of an international “rule of law” as idealistic. While international lawyers retreated to the United Nations, international relations theorists developed what became the first dominant paradigm of post-war international relations theory to succeed the former “idealism” that they had inherited from their legal colleagues; that of realism.[1]

The realist (or neo-realist, though the distinction is not presently relevant) believes that rules of international law do not have any significant influence on state behaviour. Rather, a state’s behaviour is determined by a range of political and sociological factors; predominantly concern for its own internal and external security, and to a lesser extent its economic welfare.[2] The four assumptions central to the position of the realist, according to one author, may be paraphrased as follows:

Leaving aside critical approaches such as Marxist or neo-Marxist and postmodern or poststructuralist theories,[4] the second main group of post-war theories of international relations are generally described as liberal (or, again, neo-liberal, though the distinction will not be pursued here). In general, liberal theories temper the cynicism of realism in which states are the only relevant actors, with an awareness of the influence of domestic and international civil society on international relations, including its influence on the growing body of new international law that has burgeoned in the post-war period.[5]

Beyond its acknowledgment of the relationship between state and society, liberalism in international relations theory is nothing if not heterogeneous, with insights being drawn from a range of other fields including economics and game theory. Different strains of liberal theories have different foci: for example, institutionalism stresses the role that international rules and institutions can play in constraining state behaviour,[6] institutions being defined as “persistent and connected sets of rules (formal and informal) that prescribe behavioral roles, constrain activity, and shape expectations.”[7]

One of the most pertinent insights of many liberal scholars, that is sometimes referred to as pluralism,[8] is that the arena of international relations involves the interrelation of various competing and yet interdependent bodies, of which states are only a subset. In contrast to the approach of realism, and even mainstream liberal institutionalism,[9] this approach admits of actors other than states as the primary subjects of interest. It acknowledges that international law and the bodies that make it do significantly influence the behaviour of states (and vice versa), but that so too do trade unions, terrorists and transnational corporations alike. Like states, these other institutions also powerfully represent social interests in the international sphere; in fact, in the new era of globalisation and international terrorism this has become almost a truism.

3.1.2.1. Regime theory

But further than this, the institutions that shape international relations need not even be formal organisations, so much as practices applied by international actors to a specific activity or group of activities.[10] As defined by regime theory (which falls within the neo-liberal institutionalist camp), regimes are “sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations.”[11] Participants in regimes may include either state or non-state actors (in which case they may be respectively described as international or transnational regimes),[12] or a mixture of both.

Recall, from the Introduction to Chapter 2, WGIG’s definition of Internet governance (repeated in the Tunis Agenda):

Internet governance is the development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.[13]

WGIG is here, implicitly but unmistakably, identifying Internet governance as a regime. And that is exactly what it is: a regime in which both state and non-state actors (those identified in Chapter 2) participate in governance.[14] But to say this, which is hardly even controversial, does not necessarily mean that the actors in the Internet governance regime, still less the non-state actors, make international law. On that particular question, we must turn back to the study of international law.

Notes

[1]

Muldoon Jr, James P, The Architecture of Global Governance: An Introduction to the Study of International Organizations (2004), 66–80.

[2]

See Morgenthau, Hans J, Politics Among Nations: The Struggle for Power and Peace (1978), 4-15.

[3]

Mastanduno, Michael, An Institutionalist View: International Institutions and State Strategies (1999), 21–22, and cf Slaughter, Annie-Marie, International Law in a World of Liberal States (1995) , 5.

[4]

But see Muldoon Jr, James P, The Architecture of Global Governance: An Introduction to the Study of International Organizations (2004), 84–87 and 92–94, and Ferguson, Yale H & Mansbach, Richard W, Between Celebration and Despair: Constructive Suggestions for Future International Theory (1991) .

[5]

See Muldoon Jr, James P, The Architecture of Global Governance: An Introduction to the Study of International Organizations (2004), 80–92 for a survey of liberal theories which include functionalism, rational choice theory, and regime theory which is referred to below, and more generally see Slaughter, Annie-Marie, International Law in a World of Liberal States (1995) , 5–6.

[6]

See Arend, Anthony C, Legal Rules and International Society (1999), 4–5.

[7]

Keohane, Robert O, Neoliberal Institutionalism: A Perspective on World Politics (1989), 3

[8]

Dahl, Robert, Pluralist Democracy in the United States (1967), 24

[9]

Cutler, A C, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (2003), 2

[10]

See Arend, Anthony C, Legal Rules and International Society (1999), 120.

[11]

Krasner, Stephen D, Structural Causes and Regime Consequences: Regimes as Intervening Variables (1982), 1

[12]

Young, Oran R, Governance in World Affairs (1999), 10

[13]

WGIG, Report of the Working Group on Internet Governance (2005), 4, emphasis added.

[14]

Franda, Marcus F, Governing the Internet: The Emergence of an International Regime (2001), 5. More narrowly, Mueller has identified the issue area inhabited by ICANN as a regime: Mueller, Milton, Ruling the Root: Internet Governance and the Taming of Cyberspace (2002) , 212.