The future of human rights in the age of globalization.

Author:Bassiouni, M. Cherif
 
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Professor Nanda is far too well known in academic circles for me to add anything new or different about his scholarship and contributions to legal education and to international law and human rights. What I can add, however, is my personal tribute to him as a person of integrity and moral character. We have been friends since 1965, and over the years, we have worked together on a number of academic projects, including the first two volumes on international criminal law ever published in the United States in 1973. Subsequently, we also co-edited another volume on specific crimes arising under international criminal law. During these years, we remained bound by an abiding friendship arising out of mutual respect and affection, and it is my privilege to contribute this manuscript to a volume of the Denver Journal of International Law and Policy, which he founded and which is dedicated to him. The thoughts that follow are in keeping with his concerns about human rights.

THE EMERGENCE OF HUMAN RIGHTS AS WE HAVE COME TO KNOW IT

The aftermath of World War II brought about a paradigm shift in positive international law with respect to the individual's relationship to the state. The latter ceased to be considered as an object of international law and became a subject thereof. This meant that the individual could not only be the recipient of certain rights but also their rightful claimant from states.

Experts have debated the moral, philosophical, ideological, and historic origins of human rights. (1) Legal historians have found the very concept to be part of legal systems going back five thousand years (2) while theologians have found the rights of human beings posited in almost every religion, particularly the Abrahamic faiths, Hinduism and Buddhism. (3) But it was the European Age of Enlightenment that established the philosophical foundations for the nineteenth century liberalism (4) that in turn developed the conceptual framework of the post WWII International Human Rights Law regime. (5)

Postmodernism denies the proposition that there is a master historical account that would help us understand how human rights have come to be and how they have evolved, while on a parallel track, contemporary multiculturalism places every group in a victim category. But, when everybody is a victim and there is no historical framework, how can there be a human rights system other than a chaotic environment where anything and everything goes and where ultimately power prevails? Paradoxically these postmodernism and multiculturalism postulates acknowledge human rights values as primary factors in historical and socio-political transitional phases such as post-colonialism. From post WWII to the era of globalization, no matter what method is used, various stages of history reveal a process of historic thought accretion whose transmission substantiates, within and among civilizations, a theory of historic evolution that leads to the conceptual framework of post WWII human rights articulations. Thereafter, the legal methods of international law were used for the actualization of human rights values and their transference to legally enforceable norms and standards. In turn, this post WWII actualization of human rights is being tested in the transitional phase of globalization by emerging systems, processes, structures, actors, resources, and changing dynamics in the interrelations of states, private sector entities, and individuals and groups. How and when the present transitional phase ends is difficult to identify, but when it does, human rights as we have known it since the end of WWII is likely to take on a new shape. This applies to all three complementary legal regimes, described below, whose "value-oriented goals" (6) encompass human rights.

If history teaches us anything, it is that certain fundamental values will survive no matter what historic exigencies may dictate. History does not evolve in cycles but in repetitions triggered by the occurrence of certain human experiences. It may simply be the case that when it comes to human affairs, history records variations on the same themes. How different societies under different circumstances adapt to new or newly perceived realities is like the flow of a river, which in some places runs deep and slow, and in others shallow and fast. At times the river of human history also runs stagnant and even likely runs dry until new confluents energize its flow. The course of the human river, however, keeps going on and maybe, just as it started out in its evolutionary course, it will proceed into its conclusionary one. (7)

What this transitional phase of globalization means to the general scheme of history is beyond prediction. But that it will affect human rights as we have understood them since WWII seems rather certain.

  1. THE THREE COMPLEMENTARY INTERNATIONAL LEGAL REGIMES ENCOMPASSING HUMAN RIGHTS

    Since WWII, three different international legal regimes have coexisted whose "value-oriented goals" include the protection of human rights. (8) They are: International Humanitarian Law ("IHL"), International Criminal Law ("ICL") and International Human Rights Law ("IHRL"). These regimes are, at once, complementary and distinct as to, inter alia, their respective spheres of application, subjects, contexts, and normative schemes. These differences, which characterize these regimes whose historical origins are also different, necessarily evidence overlap and gaps in the overall protective scheme of human rights. This would have been avoided had all three been part of an integrated legal regime, which is not the case. But what is significant is that all three international legal regimes recognize: (1) the individual as a subject of internationally established rights and obligations arising directly under international law, (2) these rights and obligations override national law, (3) that they are binding upon states, and (4) that they require (in different and varying ways) international and domestic enforcement measures, sanctions, and ultimately remedies for victims. (9)

    The recognition of the individual as a subject of international law protected by legal rights limits the powers of the state. It is the other side of the coin that provides for the individual's international criminal responsibility. (10) This was first embodied in the Charter of the International Military Tribunal ("IMT") (11) and the Statute of the International Military Tribunal for the Far East ("IMTFE"), (12) both of which relied on the customary international law of armed conflicts to carry out individual international criminal responsibility based on what was known as war crimes. (13) The Charter and Statute added to the core "war crimes" charge, those of "crimes against humanity" (14) and "crimes against peace," (15) both of which criminalized conduct that violated the right to life and to physical integrity. Shortly after the IMT and IMTFE concluded their proceedings, the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide. (16) Since then, aggression, genocide, crimes against humanity, and war crimes became the four core crimes of International Criminal Law ("ICL"). (17) ICL and International Humanitarian Law ("IHL") paved the way for the paradigm shift mentioned above that was indispensable for the establishment of the IHRL regime.

    What all three international legal regimes have in common is the protection of certain individual human rights from violations committed by states. Some of these rights extend to collective rights, but they too are posited in the nature of a relationship between a given collectivity and a given state.

    The International Human Rights Law Regime (IHRL)

    International Human Rights Law applies to states. The first, second, and third generations of human rights under IHRL are not absolute rights that can be claimed by the protected person or persons against other individuals or organizations whether they be IGOs, NGOs, or business legal entities (with some exceptions). (18) Conceptually, the new post WWII paradigm of the individual being the subject of internationally established rights and obligations is only in relationship to a state and even in that respect there are some limitations as to which state that may be. Individual rights are usually limited in their application to the state of nationality or the state of residence with some exceptions for certain human rights violations which are not limited to these two categories of states such as migrant and refugee rights, (19) racial discrimination, (20) and the right to be free from cruel, unusual, and degrading treatment or punishment under the International Covenant on Civil and Political Rights ("ICCPR") Article 15 (21) and the CAT. (22)

    The 1948 Universal Declaration of Human Rights (23) and the two 1966 Covenants on Civil and Political Rights ("ICCPR") (24) and Economic and Social Rights (25) formed the core of what scholars refer to as the "International Bill of Human Rights." (26) While the Universal Declaration (27) was at first deemed declaratory, it subsequently became part of customary international law. (28) The two covenants originated as binding positive international law, though prescriptive in nature. They prescribed that certain individual rights were protected from state infringement, but they did not provide for enforceable remedies even though, in time, many of these individual rights were recognized as constituting part of customary international law and thus presumably binding upon non-state parties.

    The declarative and prescriptive stages of IHRL were followed by two subsequent stages, the specialization stage of normative prescriptions and the proscriptive stage (described below under "ICL"). (29) The first was characterized by a number of international conventions whose subject matter and normative prescriptions addressed, with varying degrees of specificity, some of the rights that...

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