Academic journal article
By Spiro, Peter J.
Vanderbilt Journal of Transnational Law , Vol. 46, No. 4
TABLE OF CONTENTS I. PRIVATE LAWMAKING II. MIXED PUBLIC-PRIVATE REGIMES III. FULL LEGALIZATION IV. CONCLUSION: CONTINUUM OR TRAJECTORY?
The rise of non-state actors is among the most important facets of globalization. It is also among the most challenging, both with respect to theory and empirics. International law in its traditional articulation allowed little discrete space for non-state actors. Making more room for them risks destabilizing the theoretical project. On the empirical side, although the fact of increasing non-state actor power is now difficult to reject in the face of mounting anecdotal evidence, it is almost impossible systematically to document. Non-state power is sprawling, diverse, bottom-up, and nonisomorphic. Scholars have yet to develop the metrics by which to prove the rise of non-state power.
In the meantime, however, it seems appropriate to follow intuition and the institutional logics which point to the reality of that power. It seems particularly appropriate for researchers to follow the perception of power. Academics are better positioned than policymakers to undertake early mapping of developing phenomena. Free of operational responsibilities, academics can take greater intellectual risks because the stakes are so much lower. Out of the trenches and unburdened by vested material interests, academics can add broad perspectives and test new approaches. If non-state power turns out to be a chimera, little is lost beyond a few professorial person-hours. If it turns out that the global system is being transformed, then academics will have laid the groundwork for assimilating the place of non-state actors into the institutions of the new order. It may be true, as Jean d'Aspremont suggests, that by turning their sights on non-state actors scholars open up new channels to expand their intellectual turf. (1) But academics cannot manufacture and sustain an alternate reality. Either there is real change on the ground, which warrants attention over the long haul, or we are stuck in a Westphalian rut and all the talk about non-state power does not amount to much.
I count myself among those who believe that non-state power is on an inevitable upward trajectory in the wake of material changes in human interaction. (2) This is emphatically not to celebrate the shift as grounding some sort of utopian postnational system. There are aspects of non-state power that facilitate accountability and representation, but, as with any form of human association (including in the form of the nation-state), there will be pathologies. It is only by acknowledging and anticipating the migration of power that scholars can better address the dark sides of non-state power. To the extent that non-state power is no longer accountable to states, rejecting its existence will compound the difficulty. Institutions are always playing catch-up to material developments. The first phase in the response is the acknowledgement of power. Only then can instruments of constraint be devised and refined.
Non-state actors comprise a broad range of entities. Nongovernmental organizations (NGOs) tend to attract favorable treatment in the social science literature. NGOs have been strongly correlated to progressive causes, at least in the public's mind. (3) However, conservative NGOs are mobilizing in international institutions as they come to understand the need to advance their interests in international fora. 4 Religious organizations, often conservative in orientation, are among the most powerful non-state actors, a Also counted among global non-state actors are transnational criminal organizations)
Most powerful among non-state actors are multinational corporations. (7) Globalization has empowered multinational corporations vis-A-vis states insofar as it has facilitated the mobility of capital. As capital grows more mobile, firms exploit regulatory competition to lower production costs. States must balance the risk of capital flight against the desirability of higher regulatory standards. …