Academic journal article Denver Journal of International Law and Policy

The Future of Human Rights in the Age of Globalization

Academic journal article Denver Journal of International Law and Policy

The Future of Human Rights in the Age of Globalization

Article excerpt

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. …

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