International Law-Making by Non-State Actors: Changing the Model or Putting the Phenomenon into Perspective?

Abstract

After an empirical appraisal of the extent to which non-state actors wield some law-making powers at the international level (II), this chapter will attempt to evaluate the degree to which the alleged inadequacy of the current legal system is directly affected by our respective perceptions of the role played by non-state actors in International Law. In doing so, this section will try to demonstrate that much of the controversy yielded by the law-making status of non-state actors stems from an attempt to bolster the scope, the expertise and the legitimacy of international legal scholarship (III). This chapter ends with a few remarks on the consequences of the absence of any law-making status of non-state actors on their overall place in the international legal system. On this occasion, it will be argued that non-state actors, instead of being seen as lawmakers, should be rather seen as law-consumers, i.e. entities which, instead of making the law, constitute great consumers of it (IV). The inquiry that is undertaken here cannot be seriously carried out without formulating an important preliminary caveat as to the relativity of any conclusion regarding the status of non-state actors in International Law. Indeed, it is acknowledged that the manner in which one construes the role of non-state actors is intrinsically relative, for it hinges on the each scholar’s respective understanding of law. This chapter accordingly starts with some introductory remarks about the necessity to clearly explain how we understand the international legal system before venturing into any examination of the status of the actors involved therein (I).

Keywords: Non-State Actors, Statehood, International Law, International Legal System, Law-Making, Theory of International Law, Soft Law, State-Centrism, International Legal Scholarship, Cosmopolitanism