The Constitutionalization of International Law and the Challenge of Non-State Actors

Abstract

Abstract The article examines how international constitutionalism has come to grips with the phenomenon of informal law-making by non-State actors. The article identifies two opposing trends within the constitutionalist camp in relation to the question of actor informality. The first strand argues that all normative utterances should be presumed to give rise to law, irrespective of authorship (‘presumptive law thesis’). The presumptive law thesis is discussed and rejected on the ground that it rests on a model of participation in decision-making that dramatically departs from the existing one. The article continues by exploring the second strand of constitutionalism, which advocates in favour of retaining the distinction between direct and indirect participation in international decision-making (’the formal/informal participation model’). It is argued that, while this strand of constitutionalism is convincing at the descriptive level, it does not really add much to our existing knowledge. The last part of the article addresses the meta-question of the added value of analysing the phenomenon of actor informality through the lens of constitutionalism. It is argued that, despite its shortcomings, the constitutionalist project bravely attempts to frame the inherently political debate on global governance in legal terms, thereby attesting to the continuing relevance of international law as a regulatory mechanism in modern international relations.