Understanding Non-State Actors in the Contemporary World Order Formation Transcending the International or Mainstreaming the Transnational

Mainstream theories of international law and international relations have developed a rather ambivalent attitude towards non-state actors. While non-state actors have been broadly acknowledged as empirical entities, they are conceptually and theoretically excluded from our field of study. While we cannot longer deny that non-state activism is relevant in the process of law and decision-making, a separate constitutive role for NSAs in international law making is still largely denied. Exceptional attention for NSA in international law is confined to such sub-disciplines as human rights, humanitarian action and environmental affairs .

The argument that agreements between states and non-state armed groups, the practices of humanitarian NGOs, arbitral awards in cases between states and non-state actors or legal opinions of non-state actors have no status in international law is no longer valid. 

I will argue that in analyzing the constitutive role of non-state actors in the international law making process, we must critically explore approaches to international law that explicitly recognize a constitutive role for non-state actors in international law. I will particularly question the concepts of transnational law, transnational legal process and participants (as developed in the policy oriented approach). In doing so I will refer to parallel developments in the field of international relations and question the value of as IR-IL approach to international law for the recognition of the constitutive relevance of non-state actors.