Diversity and Permeability in Transnational Governance

Abstract

Part of a larger book-length project on globalization and international law (forthcoming in 2008), this article challenges the claims made by those who argue that traditional nation-States are becoming increasingly irrelevant as international legal actors. This has become a major theme of discussion about plural governance in a decentralized world and the changing role of the nation-State system as the defining characteristic of a traditional global order. The article fully surveys the diverse set of actors in transnational governance. It concludes that while new, non-State actors have emerged in importance on the international legal scene over the past few decades - giving rise to the emergence of disciplined market-State institutions or liberal cosmopolitan transnational networks - the continued influence of nation-States on the levers of international law-making and transnational governance seems to be undoubted. The article's second focus of analysis is the permeability of governance mechanisms in the global legal order. Many aspects of the porosity of contemporary transnational governance are attributable to the manifest influences of globalizing trends. Among these are the re-emergence of private-ordering mechanisms and customs among international economic actors (a new lex mercatoria), as well as the extraterritorial application of domestic laws, and the availability of legal recourse from national to international regulatory and dispute-settlement mechanisms. Perhaps most significant of all is the structuring of a new global regulatory order, and the relevant considerations which are being marshaled in the fashioning of novel solutions to problems of transnational governance. The overall picture is that the processes of globalization interact and influence trends in transnational governance in surprising, and sometimes counter-intuitive, ways.