Constraining Global Corporate Power: A Short Introduction

• Author: Peter J. Spiro
• Position: Professor of Law, Temple UniversityBeasley School of Law

1101

Constraining Global Corporate

Power: A Short Introduction

Peter J. Spiro*

TABLE OF CONTENTS

I. PRIVATE LAWMAKING .................................................... 1104

II. MIXED PUBLIC-PRIVATE REGIMES ................................ 1109

III. FULL LEGALIZATION ...................................................... 1114

IV. CONCLUSION: CONTINUUM OR TRAJECTORY? ................ 1117

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

* Charles Weiner Professor of Law, Temple University—Beasley School of Law.

This Essay is based on panel remarks at a symposium on The Role of Non-State Actors

in International Law, Vanderbilt University Law School, February 8, 2013.

1102 vanderbilt journal of transnational law [vol. 46:1101

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

1. See Jean d’Aspremont, International Law-Making by Non-State Actors:

Changing the Model or Putting the Phenomenon into Perspective, in NON-STATE ACTOR

DYNAMICS IN INTERNATIONAL LAW 171, 180–85 (Math Noortmann & Cedric Ryngaert

eds., 2010) (highlighting that the rise of NGOs may be an “invention” of legal scholars

intent on expanding academic turf).

2. For prior elaborations on the subject, see, e.g., Peter J. Spiro,

Nongovernmental Organizations in International Relations (Theory), in

INTERDISCIPLINARY PERSPECTIVES ON INTERNATIONAL LAW AND INTERNATIONAL

RELATIONS: THE STATE OF THE ART 223, 223–43 (Jeffrey L. Dunoff & Mark A. Pollack

eds., 2012); Peter J. Spiro, The Democratic Accountability of Non-Governmental

Organizations: Accounting for NGOs, 3 CHI. J. INT’L L. 161, 161–62 (2002); Peter J.

Spiro, New Global Potentates: Nongovernmental Organizations in the “Unregulated”

Marketplace, 18 CARDOZO L. REV. 957, 960–69 (1996).

3. See NICOLAS GUILHOT, THE DEMOCRACY MAKERS: HUMAN RIGHTS AND

INTERNATIONAL ORDER 166–76 (2005) (noting that scholars contribute to the perception

of NGOs as “moral actors”). See generally “THE CONSCIENCE OF THE WORLD”: THE

INFLUENCE OF NON-GOVERNMENTAL ORGANISATIONS IN THE U.N. SYSTE M (Peter

Willetts ed., 1996) (vaunting the role of NGOs as advocates of environmental and

human rights causes within the UN).

4. See, e.g., CLIFFORD BOB, THE GLOBAL RIGHT WING AND THE CLASH OF

POLITICS 16–33 (2012) (analyzing the strategy employed by conservative NGOs to

influence international policy making).