Academic journal article Washington and Lee Law Review

Challenges to the Future of Civil and Political Rights

Academic journal article Washington and Lee Law Review

Challenges to the Future of Civil and Political Rights

Article excerpt

I. Introduction

The Universal Declaration of Human Rights (Universal Declaration)1 and the American Declaration of the Rights and Duties of Man2 first articulated in 1948 the list of internationally recognized human rights and fundamental freedoms. Since that time, only a few new claims have emerged to add to the list of basic rights, although subsequent treaty and soft law texts have further defined and refined the stated rights.3 On the other hand, none of the rights contained in the declarations seems to have been "de-certified" and denied continuing normative value. As this century nears its end, it may be asked whether the relative stability of the human rights catalogue will remain with the existing guarantees deemed adequate to meet coming challenges to human dignity and development, or whether, instead, new rights and obligations will be claimed and recognized. A response to this question and any attempt to predict the future of civil and political rights require evaluating present and foreseeable threats to human dignity and well-being.

Law in general is responsive to emerging values, conflicts, fears, and social problems. The initial articulation of international human rights norms fifty years ago responded to the "barbarous acts" referred to in the Universal Declaration of Human Rights.4 The Universal Declaration sees human rights instrumentally, as "the foundation" and the means to achieve "freedom,justice and peace."5 Neither the barbarous acts nor the need for freedom, justice, and peace has disappeared. In this regard, the demand for civil and political rights, as part of the indivisible human rights canon, remains a fundamental objective.

The task of drafting the canon of human rights is largely complete, and international supervisory institutions are functioning more or less as intended, however limited that intent may have been.6 Although improvement of procedures and institutions is necessary, what currently demands attention is perhaps best expressed in a series of conjunctive phrases - human rights and democracy, human rights and technology, human rights and the environment, and human rights and trade. These phrases reflect the need to consider civil and political rights in the context of emerging social problems and values and the need to integrate human rights into all areas of human activity in the light of globalization, the increased interdependence of states, growth of transboundary civil society, and deregulation. In some instances, new rights may need to be articulated. In others, existing rights may be adequate to resolve the perceived problems if adapted to the new contexts. In fact, it may be in regard to obligations, not rights, that reformulation may be most needed in the future.

II. The Debate over New Rights

Not every social problem must result in the expression of a new human right. Even the existing catalogue is not always met with consensus; states and scholars occasionally challenge the concept and the content of rights from freedom of the press to the right to development.' There are legitimate fears that expanding the list will not only create further dissension, but will undermine the very concept of fundamental and inalienable rights by devaluing or trivializing core norms, taking time and energy away from the essential task of implementing and enforcing those rights that are nonderogable and universally accepted.'

The concern is legitimate and must be taken seriously; at the same time, the list can never be considered closed. It is impossible to predict future threats to human dignity, the foundation of all human rights, although it may be possible to identify current issues and developments that may require reformulated or expanded rights. Some scholars attempt to establish criteria that a claim must meet before it is included as a human right. Ramcharan speaks of qualitative characteristics such as appurtenance to the human person or group; universality; essentiality to human life, security, survival, dignity, liberty, or equality; essentiality for international order; essentiality in the conscience of mankind; and essentiality for the protection of vulnerable groups. …

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