International Lawyers: Handmaidens, Chefs, or Birth Attendants? A Response to Philip Alston

1 What is Globalization?

Alston does not place great stress on the need to define globalization but we can elucidate some of his assumptions about the process from the questions he chooses to ask. By asking what is the impact of globalization on international law, Alston is suggesting either that international law and globalization are distinct phenomena (compare: what is the effect of heat on water?) or at least that international law is not a major causal factor within the process (it would be unusual to ask what is the impact of driving on the engine of a car - you could, but it would be unusual).

Alston is not alone in this regard. You could read much of the political literature on the demise of the state in the new globalized world order without being aware that there was any such thing as international law. And, at the risk of slight exaggeration, you could read much of the economics literature on globalization without knowing there were any such things as either international politics⁴ or international law. Economic liberals hail globalization as an economic inevitability.

So, to return to Alston, if the process of globalization is not primarily or largely one of law, what is it? By indicating, for example, that he does not regard it as `neutral' Alston appears to regard it as political. So here we have the traditional conceptual distinction between international politics and international law that has been so endemic both in the realist literature on International Relations - which has largely excluded discussion of international law - and in the positivist tradition of international law scholarship.⁵

Of course, it may well be that international law has not been a significant aspect of the political process of globalization but I would suggest that we do need to have some explicit theoretical conceptualization of the relationship of international law to globalization as it has taken place to date before we can enter into any meaningful discussion about the impact of globalization on international law.

So the first point I wish to make is that Alston's wake-up call - as with much of the political literature on globalization - highlights the inadequacy of existing theoretical understanding of the politics of international law.

4 Gill makes the point that in the discourse of neoliberal globalization economics is regarded as `beyond or above politics'. Gill, `Globalization, Democratization, and the Politics of Indifference', in J. H. Mittelman, Globalization: Critical Reflections (1996), at 211.

5 See discussion in Scott, `International Law as Ideology: Theorizing the Relationship between International Law and International Politics', 5 EJIL (1994) 313.

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