Why do big players in international relations get to act like bullies in the playground? Why are important international institutions criticised as remote and imposing developed nation economic and governmental structures on the developing world?
Allott argues with breathtaking clarity that international law has adopted some of the ideology of nineteenth century liberalism, without any of its “constitutional principles”. That is, international law believes in:
a domestic sphere free from legal regulation (state sovereignty); and
a laissez-faire approach to the public sphere (international free trade).
However, this has been achieved without any implementation of substantive representative democracy or accountable and transparent government.
Executive governments run international agencies basically free from the constraints of domestic politics, legislation and judicial review. (Governments can sign treaties and vote on policy in the World Bank without media scrutiny, enabling legislation or administrative law challenge.)
International law thus risks becoming a fairly un- or anti-democratic preserve, the domain of unelected bureaucrats, where virtually unaccountable government appointees can re-make world law which they can then “helplessly” take back to national parliaments and say, “Well, we have to pass this into domestic law, the WTO/World Bank/IMF/International Telecommunications Union technical standards committee has told us to and we’ll lose the benefits of membership if we don’t.”
It risks being an unaccountable squeeze by the powerful over the powerless, without any democratic controls.
Allott puts it this way (in “State Responsibility and the unmaking of international law” 29 Harvard ILJ (1988) 1):
“International law is trapped in the pre-Revolutionary world of the eighteenth century, the world made by Vattel, the world before the American and French Revolutions, before Rousseau and Marx. The international law of the old regime is preventing the emergence of the new international society. As governments further extend their Faustian ambitions into international society and international society becomes the main arena for the human struggle to survive and progress, the highest professional duty now rests on international lawyers to exert eternal vigilance on behalf of the people, because lawyers have power over the law, the only thing which can have power over the government. The task of the contemporary international lawyer is to redeem governments in the name of justice, which is a sort of love, and in the name of humanity, whose interests transcend the interests of states and governments.”
Whether you think his point is overblown or not … oh, sod it, it’s plain inspiring. Just point me to the barricades and pass me a tricolore.