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The Myopia of the Handmaidens: International Lawyers and Globalization
Philip Alston1
Full text available: PDF format *
State sovereignty is not what it used to be. International lawyers, in particular, are acutely aware of the extent to which many of its characteristics have changed. But sovereignty is largely an abstraction and the developments that have made such an impact upon it are both multi-faceted and complex. For all its shortcomings, the term `globalization' is now the one most commonly used to describe some of them. But despite its ubiquity in other disciplines such as economics and political science, it is a term which, at least until very recently, has been accorded little prominence in the literature of international law. The thrust of the analysis that follows is that this relative neglect is highly problematic in two respects. It reflects a failure to address adequately the implications for international law of both the changing internal role of the state and the changing nature and structure of the global economy.
I. The Role of International Lawyers
International lawyers have, in many respects, served as the handmaidens of the changes wrought by globalization. Indeed, the characteristics of sovereignty have changed so much partly because of the role they have played in facilitating many of those changes and in seeking to reflect the new realities, both in their normative and institutional dimensions. Whether the focus is on exchange rates, monetary policy, arms control, chemical weapons, landmines, climate change, the ozone layer, endangered species, forest conservation, the rights of minorities, international trade or regional integration, the policy options open to states in any real sense have, especially in recent years, become increasingly constrained, both in practice and as a matter of international law. Developments in relation to sovereignty have been analysed at great length,2 leading some authors to redefine sovereignty itself primarily by reference to the consequences of these developments.3 Others have characterized the gradual but steady erosion of state sovereignty as a potential win-win situation,4 while others still have predicted or even announced the imminent disappearance of the state as we know it.5
Not surprisingly, however, international lawyers, as well as their international relations counterparts, tend to see changes in the role of the state from a largely vertical line of vision. In other words, they look down on the state from the external perspective of the `international community' (however it may be defined) or of an international organ or organization (be it the UN Security Council, the World Trade Organization or even non-governmental groups such as Amnesty International or Greenpeace). Some still tend to treat the state as though it were the oft-cited opaque billiard ball, or black box, possessed of a vast and immutable domaine reservé, although most observers are, of course, not unaware of the changes which are occurring within the state itself.6 But these changes seem often to be noted or analysed in an almost perfunctory manner in order to demonstrate a degree of analytical completeness, rather than because of any perceived need to ensure that all angles are taken fully into account if a properly balanced picture is to emerge. The result is that insufficient attention has been given to the implications for international law of the changing internal role of the state, as opposed to the implications of the changing international context for the state's external relations.
The brief analysis that follows reviews the approaches reflected in a cross-section of some of the recent international legal literature in relation to the process of globalization and its impact upon the role of the state.
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1 Professor of International Law, European University Institute,
Florence. Joseph Weiler made very helpful comments on an earlier
draft.
2 See, e.g., the sources listed by Biersteker and Weber, `The Social
Construction of State Sovereignty', in T.J. Biersteker and C. Weber (eds.),
State Sovereignty as Social Construct (1996), at 1, note 1.
3 A. Chayes and A.H. Chayes, The New Sovereignty (1995), at
27, defining sovereignty in terms of `the regimes that make up the substance of
international life'.
4 Sovereignty should not be thought of `as the object of some kind of
zero sum game, such that the moment X loses it Y necessarily has it. Let us
think of it rather more as of virginity, which can in at least some
circumstances be lost to the general satisfaction without anybody else gaining
it.' MacCormick, `Beyond the Sovereign State', 56 Modern Law Review
(1993) 1, at 16.
5 W. Wriston, The Twilight of Sovereignty (1992), J-M.
Guéhenno, The End of the Nation-State (1995).
6 On the billiard ball metaphor see Abi-Saab, `Preface', in M.
Bossuyt, L'interdiction de la discrimination dans le droit international des
droits de l'homme (1976), at viii; and, more generally, on the evolution of
notions of sovereignty see, G. Abi-Saab, Cours général de
droit international public, Académie de droit international, 207
Recueil des cours (1997).
© 1990-2004 European Journal of International Law
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