This Article examines the role of international law, particularly human rights law, as it relates to the process of globalization and its effects on women. Initially, the Article sets the stage by describing the course of globalization and the dramatic impact it has had on the world economy. The Author next examines the multiple and contradictory consequences of globalization for women.
The Article approaches this analysis from two perspectives. First, from a "classic perspective," the Author contends that international law is the only legal system with the potential to regulate the principal agents of globalization--multinational corporations, banks and investment firms, and international organizations--and to insist that they respect women's human rights. Unfortunately, international law currently lacks the legal machinery to do so and the political will to create it.
From a "postmodern perspective," in contrast, the Author asserts that international law is not a system at all. Rather, it is better understood as a superstore, a warehouse of treaties, customs, institutions, and norms. From this perspective, international human rights law may be viewed as a source of norms that women can draw upon to support a virtually endless range of ad hoc strategies. Although a postmodern conception of international law looks with skepticism on the aspirations of the classic conception, it may in fact be more effective in realizing some of those aspirations in the context of globalization.
Once more the storm is howling, and half hid Under this cradle-hood and coverlid My child sleeps on. There is no obstacle But Gregory's wood and one bare hill Whereby the haystack- and roof-levelling wind, Bred on the Atlantic, can be stayed; And for an hour I have walked and prayed Because of the great gloom that is in my mind.(1) --William Butler Yeats, A Prayer for my Daughter I. INTRODUCTION
National laws play a significant role in promoting globalization(2)--that is, the increasingly free flow of capital throughout the world, especially since end of the Cold World.(3) There are few contexts in which international law plays a more important role--or a more visible one--than the international economic institutions that subsidize globalization (such as the International Monetary Fund (IMF) and the World Bank), the treaties that structure trade relations (such as North American Free Trade Agreement (NAFTA) and the World Trade Organization (WTO)), or the rapidly proliferating codes of conduct that attempt to bring labor standards into the process. Thus, globalization offers a particularly rich context in which to analyze and assess the role of international law at the millennium.
More specifically, the focus of this Article is the impact of globalization on women. Women are, of course, a large and diverse group, and the impact of globalization on women is complex and often contradictory. While a recent study by economists at the International Center for Research on Women concludes that "[w]omen have generally benefited from improvements in the world economy,"(4) the experts in another Symposium describe "the overall negative effects of globalization on women."(5) Everyone agrees, however, that "forces shaping global integration affect women differently."(6) For many women globalization has been a mixed blessing,(7) and for some it has been a disaster.(8)
This Article analyzes the role of international law, particularly human rights law, in this phenomenon from two different perspectives, comparing their views of women and the roles each assigns to the lawyers who seek to further women's interests. First, from the "classic perspective," international law is a coherent, albeit still evolving, system. In fact, it is the only legal system that exists on a scale capable of effectively promoting the human rights of women.(9) Only international law has the potential to regulate the principal agents of globalization (the multinational corporations (MNCs)),(10) the banks and investment firms,(11) and the international organizations (IOs)(12) (hereinafter referred to collectively as the Major Players) and to insist that they respect women's human rights. Unfortunately, international law currently lacks the legal machinery to do so and the political will to create it, so women and their lawyers must rely on national law, which is uneven at best, while simultaneously working to strengthen the international legal system.
From another perspective, however, international law is not a system at all.(13) From a "postmodern perspective,"(14) international law is best understood as a superstore, a warehouse of treaties, customs, international institutions and norms, as well as national laws intended to implement or to avoid them. From this perspective, international human rights law, particularly economic rights law, may best be understood as a source of norms, useful in a variety of "performative roles."(15) Women and their lawyers can draw upon economic rights law in a virtually endless range of such performative roles to influence, if not determine, the actions of the Major Players.(16)
This Article will be in four parts. Part II provides an overview of globalization and its multiple and contradictory consequences for women. Part III explains how classic international law has failed women in this context, while keeping their lawyers quite busy, by focusing first on the failure of economic rights law on the state level, and second on the failure of economic rights law to address the problem of non-state actors. Part IV shifts perspective to describe the possibilities of postmodern international law for women adversely affected by globalization--possibilities that may still keep their lawyers busy, but which are likely to assign them less important roles. Part V explains why, paradoxically, a postmodern conception of international law, which looks with considerable skepticism on the aspirations of the classic conception, may in fact be more effective in realizing some of those aspirations in this context.(17)
WOMEN AND GLOBALIZATION
"Globalization" refers to the free flow of capital and the removal of trade barriers between states, as well as to the accompanying cultural transformations and exchanges. The relationship between the globalization of capital and markets, on the one hand, and the globalization of culture, on the other, varies depending on the context.(18) For present purposes, two generalizations usually hold: (1) the former drives the latter,19 that is, the globalization of markets and capital fuels the globalization of culture including resistance to this globalization; and (2) both forms of globalization are in constant flux and are, therefore, unpredictable.(20)
The Free Flow of Capital and Free Trade
Globalization is the "constant revolutionizing of production" and the "endless disturbance of all social conditions."(21) It is "everlasting uncertainty."(22) Everything "fixed and frozen" is "swept away" and "all that is solid melts into air."(23) As these quotations from The Communist Manifesto, written 150 years ago, indicate, globalization is nothing new. In the 1320s, England, then a developing country, defaulted on loans to the Italian city state of Genoa.(24) For most of Western history,(25) capital has flowed freely.(26)
The end of the Cold War and developments in finance(27) and technology combined to qualitatively change the game during the past ten years.(28) The failure of Soviet communism became the triumph of free market democracy, as formerly closed markets opened and capital poured in at a previously unimaginable rate.(29) As a fund manager in Hong Kong observed, "[i]t's no longer the real economy driving the financial markets, but the financial markets driving the real economy."(30) In addition, the election of President Clinton in 1992 put a free market enthusiast in the White House.(31) The world has never seen anything like the flow of capital during the eight years of his presidency. As then Deputy U.S. Secretary of the Treasury Lawrence H. Summers noted:
When history books are written 200 years from now about the last two decades of the 20th century, I am convinced that the end of the cold war will be the second story. The first story will be about the appearance of emerging markets--about the fact that developing countries where more than three billion people live have moved toward the market and seen rapid growth in incomes.(32) Globalization has dramatically increased world income, but it has also increased the polarization between the "haves" and "have-nots." This is part of a longer term trend, beginning after World War II. As the United Nations Development Program (UNDP) summarizes:
During the past five decades, world income increased sevenfold (in real GDP) and income per person more than tripled (in per capita GDP) [b]ut this gain has been spread very unequally--nationally and internationally--and the inequality is increasing. Between 1960 and 1991, the share of world income for the richest 20% of the global population rose from 70% to 85%. Over the same period, all but the richest quintile saw their share of world income fall--and the meager share to the poorest 20% declined from 2.3% to 1.4%.(33) While the tide is still rising, it is not taking all boats with it. Many of those in the leakiest, smallest boats, not surprisingly, are being swamped. Moreover, gross national product (GNP) is not a reliable indicator of human welfare.(34) That is, even if boats are rising, their human cargo may be washed overboard. The risks are greater, furthermore, because globalization has increased both market volatility and market interdependence. In other words, markets are soaring to new highs and plunging to new lows, bouncing from one to the other faster--and less predictably--than ever before, and dragging others with them, sometimes with ruinous consequences.
As free trade has been extended to smaller...