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

Shirley V. Scott¹

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Abstract

This article responds to a paper by Philip Alston published in a recent issue of this Journal. Alston gently chided international lawyers for not having paid greater attention to the possible impacts on international law of globalization. The timeliness of the wake-up call would be hard to dispute, but Alston's discussion of globalization serves to highlight the difficulty international lawyers face in assessing contemporary political developments given the inadequacy of dominant frameworks within which to understand how international law relates to the political and economic context in which it operates. International lawyers will need to be able to enunciate just what part international law has played in the globalization process as it has taken place to date before they can play a meaningful role in policy debates regarding the future of globalization.

Think of a regime of international law with which you have been concerned over the past few months. Is it premised on the existence of a world of sovereign states? If so, Alston believes you may be dealing with an anachronism. The world has moved on and now belongs to the multinational corporations. As Susan Strange has expressed it: `state authority has leaked away, upwards, sideways, and downwards. In some matters, it seems even to have gone nowhere, just evaporated.'² So, dealing as you may be with an anachronism, what, asks Alston, are you are going to do about it?

Alston does give us some guidance as to the specific issues he believes we need to consider. The first is that of the implications for international law of the changing internal role of the state as a part of the process of globalization. The second and greater focus of his paper is the changed international agenda. Alston points to significant new limitations on the aspirations of the United Nations. Work on a code of conduct for transnational corporations has been abandoned, a dramatic expansion has occurred in both the budget and the effective mandate of the Office of the UN High Commissioner for Refugees in an effort to stem refugee flows and expedite repatriation. The UN units coordinating the fight against drugs, crime and terrorism have been upgraded and strengthened in a new Office for Drug Control and Crime Prevention, corruption has become a major concern of both the World Bank and the IMF and hundreds of millions of dollars are being poured into the new Organization for the Prohibition of Chemical Weapons. Other changes on the international agenda have included the transfer of questions of social policy away from international organizations and back to the state, continuing budgetary pressures combined with an increase in the extent to which programmes and individual initiatives favoured by the West are funded and others are not, and consolidation of the power of the financial institutions and the WTO which are indifferent to much of the broader policy `debates'.³. Alston points to a shift of the international agenda away from equity concerns to those issues of importance only to the North but which states of the North cannot deal with adequately amongst themselves, such as drugs, corruption, weapons of mass destruction, and terrorism.

Alston has given international lawyers a wake-up call, gently chastising them for having paid inadequate attention to the globalization phenomenon. What I find most significant is the questions he is asking and what he does not regard as of much importance. As we have seen, the key question asked by Alston, is: What is the impact on international law of globalization (and in particular the changing internal role of the state and the new international agenda)? Secondly Alston asks `who sets the new international agenda', what are the values inherent in it, and how comfortable are we with them? Alston does not place much emphasis on conceptualizing globalization. But to me any discussion of the significance for international law of globalization begs the question as to what the globalization process entails.

I would like to situate Alston's approach within some of the more general literature on globalization before responding briefly to the questions he poses.

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1 Lecturer, University of New South Wales, School of Political Science, Sydney, New South Wales, 2052, Australia.

2 Strange, `The Defective State', 24 Daedalus (1995), at 56.

3 Alston, `The Myopia of the Handmaidens: International Lawyers and Globalization', 8 EJIL (1997) 435, at 438.

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