A Kinder, Gentler System or Capitulations? International Law, Structural Adjustment Policies, and the Standard of Liberal, Globalized Civilization

I. INTRODUCTION Structural adjustment policies (SAPs) used by the World Bank and International Monetary Fund (IMF) have been controversial for a number of years. Critical scrutiny of SAPS has increased in recent years as they have proliferated in Latin America and Africa as a common World Bank and IMF strategy to propel developing countries into the globalization era. Opposition to the use of SAPS has grown, and global civil society groups have even launched their own global crusade to "stand up" to SAPs.' Some randomly selected criticisms of SAPs indicate that opposition to them is passionate and widespread. Non-governmental participants at the 1995 International Women's Conference in Beijing signed a declaration stating that "we declare war against all IMF-dictated Structural Adjustment Programmes (SAPs). These programmes have traumatised whole continents, torn apart the social fabric of entire societies and are wreaking havoc on the lives of billions of people worldwide, especially women."z From Zimbabwe in 1998 came the following attack on SAPS: "For the last 8 years Zimbabwe has been implementing the World Bank and IMF Structural Adjustment policies or what they call in `polite and good language' reforms. They have been a disaster for the workers, peasants and young people in Zimbabwe."' An Ecuadoran civil society group argued in March 1999 that in Ecuador, "[a]fter 18 years of `stabilization and adjustment' policies, the results continue to be catastrophic for the poor, and the failure of structural adjustment couldn't be more evident."4 While proponents and opponents of SAPS debate their importance for the future of the developing world, the literature on SAPS has drawn my attention as an international lawyer back in time rather than forward into the future. The discourse on SAPS reminded me of the controversies that existed in the nineteenth and early twentieth centuries about the system of capitulations maintained by powerful European countries and the United States in non-Western regions, such as the Ottoman Empire, Japan, and Chinas At first, I brushed these comparisons aside, arguing that international society and international law have come too far for echoes of the capitulatory system to be heard in the dissonance caused by SAPS. But the essence of capitulations-powerful, capital-exporting countries imposing policies, rules, and institutions on weaker, non-European regions-continued to reappear as I thought more about SAPS and international law. Upon closer examination, I saw so many parallels that I began to see SAPS as the resurrection or reincarnation of political, economic, and legal thinking that created and maintained the system of capitulations in that earlier era. Such a reincarnation offers insights into the current condition and future direction of international law. In Parts II and III of this article, I describe the parallel features of the old capitulatory system and the system of SAPs now being used by the World Bank and IMF. Underneath these parallel features flow deeper political, economic, legal, and moral currents that appear in both the context of capitulations and SAPs. In Part IV, I argue that SAPs are the capitulations of the era of globalization. In making this argument, I am not condemning either the system of capitulations or the use of SAPS; rather, I want to focus on the underlying forces that make SAPS reminiscent of capitulations and why this resemblance is important for contemporary international law. Capitulations and SAPS are kindred in their fundamental message: to engage fully in international relations, your behavior has to conform to expectations, policies, and rules established by the prevailing powers. While the fundamental message appears to underscore the basic themes of realism as a theory of international relations, it also has consequences for international law. A very important consequence is that perceived changes in international law during the era of decolonization, such as the rejection of the "standard of civilization" as a driving force of international law, have been more apparent than real. …