Corporations and international lawmaking
Public international lawmaking is a multipartite process of communication wherein only States as authoritative decision-makers produce international law. However, commercial entities have long been active within the international legal order and employ international law to curtail the right of States to regulate at national levels. Evidence suggests that the international legal personality of corporations is undergoing further qualitative transformations. Corporations influence the State practice constitutive of custom and affirm, add detail to or challenge prevailing normative rules. The corporate role in filling lacunae where States are unable or unwilling to discharge their regulatory responsibility is apparent in the context of intergovernmental codes of conduct and private voluntary initiatives. Although the procedural law common to Conferences of the Parties indicates that a 'right of participation' is yet to emerge, ECOSOC-accredited non-State actors enjoy a legitimate expectation of admission. Furthermore, the modalities for their participation include the formal opportunity to make oral and written statements and to undertake informal activity. Corporations occupy an important role in subsequent treaty implementation as illustrated by the legal regime for climate change. Finally, corporations develop procedural law and substantive norms through selective resort to different enforcement models including national courts, diplomatic protection (including the WTO) and direct arbitral action (including NAFTA). The challenges of business engagement include identifying majority opinion, discerning commercial intent and managing confrontations with developing States or other non-State actors. Diversity and evolution characterise the practice of UN secretariats and a one-size-fits-all approach is not currently feasible or desirable. Acknowledging commercial contributions more accurately reflects the negotiating process inherent in lawmaking and the role of States in mediating contested policy questions. Corporate contributions through, in parallel with or collaboratively with States can be consistent with democratic theory by enriching intergovernmental deliberations. However, they can only ever augment the underlying basis of international law: State consent.