DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

2018-19
“Public International Law”
“Final draft on”
FUTURE OF HUMAN RIGHTS IN THE AGE OF GLOBALIZATION: A RESEARCH
SUMMARY

Submitted as a part of Project Work undertaken for the fulfilment of the B.A. LL.B. (Hons.) 5-Year Integrated
Course of RMLNLU-Lucknow

Submitted to: Submitted by:

Dr. Manwendra Kumar Tiwari Saharsh Chitransh
Assistant Professor (Law) Enrollment No- 170101112

Dr. Ram Manohar Lohiya National Law University B.A. LL.B. (Hons.) IV Semester
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DECLARATION

I, Saharsh Chitransh, hereby declare that this project work entitled as, “Future of Human
Rights in the Age of Globalization: A Research Summary” is an original work. This work is
submitted as a part of project work undertaken for the partial fulfilment of the B.A. L.L.B.
(Hons.) 5-year integrated course of Dr. Ram Manohar Lohiya National Law University,
Lucknow, under the guidance of Dr. Manwendra Kumar Tiwari. And this piece of work
has not been submitted anywhere else for any of the purposes such as, for research paper
publication, for seeking diploma or degree requirement or any of the faculty members.

Saharsh Chitransh
Enrollment No. – 170101112
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ACKNOWLEDGEMENT

I would like to take this opportunity to thank Dr. Manwendra Kumar Tiwari for his
invaluable support, guidance and advice. I would also like to thank my friends who have
always been there to support me and the library staffs for working long hours to facilitate me
with required materials going a long way in quenching my thirst for education. Last but not
the least, my parents, who made me able to be here and complete my work.
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THE FUTURE OF HUMAN RIGHTS IN THE AGE OF GLOBALISATION

Dr. Cherif Bassouni in this meticulously written article has shed light on an issue so trivial
and yet quite unheard of in most of the civilized legal systems in the world today. Dr.
Bassouni through his astounding research has asserted on the torpid attitude of States to fulfill
their citizen’s need to dwell in an environment that duly recognizes the essence of individual
human rights. He gives manifold reasons for the same; most important being the large scale
world poverty crisis which was exacerbated after the 2008 Economic Crisis shook the world
market to its core. He very rightly points out the inefficiency of the countries to take stringent
measures in order to protect human rights of the individuals since the already worsened
socio-economic stature of a large majority of countries has crumbled their governability and
raises serious questions over the legitimacy of the states.
Dr. Bassouni has scrupulously given us an outlay of, first how the emergence of Human
Rights took place in the aftermath of World War II, second how it gradually developed over
the years by encompassing various International Legal Regimes throughout the years and
lastly how the steadily augmenting process of Globalisation has affected the current status of
Human Rights across the world. He couples all of these three major arguments with a critique
as to how the future of human rights would look like in the continuously expanding era of
Globalisation.

1). EMERGENCE OF HUMAN RIGHTS THROUGHOUT THE YEARS

The belief that everyone, by virtue of her or his humanity, is entitled to certain human rights
is fairly new. Its roots, however, lie in earlier tradition and documents of many cultures; it
took the catalyst of World War II to propel human rights onto the global stage and into the
global conscience.1

Throughout much of history, people acquired rights and responsibilities through their
membership in a group – a family, indigenous nation, religion, class, community, or state.
Most societies have had traditions similar to the "golden rule" of "Do unto others as you
would have them do unto you." The Hindu Vedas, the Babylonian Code of Hammurabi, the
Bible, the Quran (Koran), and the Analects of Confucius are five of the oldest written sources
which address questions of people’s duties, rights, and responsibilities. In addition, the Inca
and Aztec codes of conduct and justice and an Iroquois Constitution were Native American
sources that existed well before the 18th century. In fact, all societies, whether in oral or
written tradition, have had systems of propriety and justice as well as ways of tending to the
health and welfare of their members. Dr. Bassouini very clearly points out that from the era in
which the bloodshed of World War II ended to the present scenario where almost everything
now comes under the aegis of Globalisation, there has been a drastic paradigm shift in the
enforcement of Human Rights. He further goes on to ascertain that at various stages of
History a process of Historic thought was accumulated and transmitted through various
civilizations which in turn led to the basic outlay of post World War II Human Rights

1
Nancy Flowers, A short history of Human Rights, HUMAN RIGHTS LIBRARY UNIVERSITY OF MINNESOTA
(March 29, 2019, 10:04 AM), http://hrlibrary.umn.edu/edumat/hreduseries/hereandnow/Part-1/short-
history.htm
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articulation. Thereafter, the core principles of International Law were utilized to substantiate
the importance of human rights and the dire need for its actualization.

Dr. Bassouini then goes on to talk about the three complementary legal regimes that
encompasses human rights.

The contemporary world order includes a number of legal regimes whose value-oriented goal
is the protection of certain human rights principles and specific rights. They include: (a)
International Human Rights Law (IHRL) and its various implementation mechanisms at the
international and national levels, which are, notwithstanding their ever-more expanding
subjects, forever in the nature of enunciations of individual and collective rights; (b)
International Humanitarian Law (IHL) and its sub-regimes curtailing the use of force in some
but not all types of conflicts and criminalizing some of the prohibited conduct; (c)
International Criminal Law (ICL), which criminalizes only some human rights violations; and
(d) ICJ, which involves international and national mechanisms designed to enforce violations
of some IHL and ICL norms, reflecting the same human and social values contained in
IHRL.2 But the very multiplicity of these regimes with their gaps and overlaps reveals the
cynical approach of the international community to the enforceability of these principles,
norms and standards. These gaps and overlaps have become one of the legal escape hatches
from accountability; the results include: reducing deterrence, prevention, control, and
punishment of perpetrators of the most egregious violations of internationally protected
human rights. A number of global factors contribute to this outcome, the least of which is not
the exceptionalism of certain states and MNCs.

2). THE INTERNATIONAL HUMAN RIGHTS LAW REGIME

The international human rights regime (or regimes, as we will see shortly) is founded on the
principles of dignity, the equal worth of and equal rights for “all members of the human
family”, without distinction of any kind, such as “race, colour, sex, language or religion”, as
well as the idea that human rights are inalienable, universal, interdependent and indivisible in
nature.3 From a conceptual perspective, and even more so from an empirical point of view,
these norms and rules seem to blend together. Various articles of the UDHR established a
wide range of concrete rights held by individuals, which necessarily creates obligations for
states. The International Covenant on Civil and Political Rights (ICCPR), for example,
stipulates that the States Parties to the covenant commit “to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized” in the
covenant and therefore, they are obliged to take the necessary steps to “adopt such laws or
other measures as may be necessary to give effect to [them].” 4 They also prohibit certain types
of conduct (such as torture, forced disappearance or arbitrary or extrajudicial executions, for example)
and establish different prescriptions for action (such as guaranteeing the existence of effective legal
remedies or access to healthcare). In addition to defining the regime’s norms, international human
rights instruments establish a series of rules. As has already been mentioned, these norms and rules
seem to merge or overlap one another. To take this into account, for the sake of conceptual simplicity
and greater clarity, we will use the concept of norms in broader terms to refer to both rights and
obligations and prohibitions and prescriptions of certain actions (thus including the rules within a

2
MICHELINE R. ISHAY, THE HISTORY OF HUMAN RIGHTS: FROM ANCIENT TIMES TO THE
GLOBALIZATION ERA (2-14) (2004).
3
Universal Declaration of Human Rights, 1948.
4
International Covenant on Civil and Political Rights, High Commissioner For Human Rights, Resolution 2200
A (XXI), Art.2, December 16, 1966.
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broader notion of international norms). The declarative and prescriptive stages of IHRL brought
about a large number of multilateral instruments, which in turn had an impact on the contents
and terminology of national constitutions, criminal legislation, procedural norms, and
evidentiary standards. 5 Thus, the center of gravity of human rights has, as it should, moved
from internationalization to nationalization, much as this writer believes that the future of
international criminal justice and ICL and IHL as a whole are destined to follow this path.
The future of IHRL, ICL, and IHL is their absorption into national legal systems whose
enforcement mechanisms are likely to have a far more effective impact on compliance than
any assisting or prospective international set of mechanisms.

3). THE INTERNATIONAL CRIMINAL LAW REGIME

The international criminal proceedings following World War II are credited with launching
the modern regime of international criminal law (ICL). Antecedents, however, trace back for
centuries and across the globe. In particular ICL draws on four main strands of international
law history: nineteenth-century prohibitions against piracy, the subsequent regulations of
slavery and the slave trade, the once theological and later secular theory of just war, and
international humanitarian law (IHL) or the ‘‘law of war.’’ On this foundation, the
international community gradually built the norms, rules, instruments, and institutions that
now make up the modern ICL machinery. This chapter interweaves the history of substantive
norms with that of evolving principles of domestic and international jurisdiction, as these
narratives are virtually inseparable in ICL. 6 International Criminal Law sanctions
international and transnational crimes committed by different individuals and groups for
different purposes. Dr. Bassouni divides these groups into three broad categories. First, Non-
state actors who fulfill their ideological purposes using violent means. Second, the organized
crime groups that generate profits from the use of violence and Third, Parties in conflict with
state norms and are purely non-international in character. The "value-oriented goals" of
these multiple sub-regimes of ICL according to Bassouini include not only human rights
considerations but the preservation of international peace and security and the security and
public interests of states. The balancing of these interests necessarily affects the goals and
methods pursued by states, individually and collectively. That which at one time can tip the
scales in favor of human rights, can also tip them in the direction when considerations of
security are deemed to affect those pertaining to human rights.

4). THE INTERNATIONAL HUMANITARIAN LAW REGIME

Modern international criminal law also borrows heavily from International Human Rights
Law (IHL). IHL, also called ‘‘the law of war’’ or the ‘‘law of armed conflict,’’ describes
those international rules governing armed conflict. As long as groups of people, and later
states, have waged war, there have been rules in place governing acceptable behavior in
armed conflict. Although the history of the law of war is often told from the perspective of
international conferences held in The Hague and Geneva, as described in more detail later, all
human cultures manifest efforts to regulate this seemingly inherent aspect of our shared
humanity. Recorded history confirms that the ancient Israelites, Greeks, and Romans, for
example, distinguished between combatants and civilians and made only the former the

5
CHERIF M. BASSIOUNI, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW (583-671) (2002).
6
Beth Van Schaack, A concise history of International Criminal Law, SANTA CLARA UNIVERSITY LAW
DIGITAL COMMONS (March 29, 10:30 AM),
https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1629&context=facpubs
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lawful object of attack.7 Many of these ancient principles and rules are now contained in a
web of bilateral and multilateral treaties, making IHL the most codified area of ICL. A rich
body of customary international law supports this vast treaty regime to this day. IHRL and
ICL also coincide in that ICL criminalizes some of the conduct prohibited by IHRL, but in
different contexts. An example of the overlap between the two regimes is in connection with
combatants in conflicts of an international and non-international character who engage in
collateral activities proscribed by ICL as "organized crime" activities, "terrorism," or drug
trafficking. It has not yet been established by the ICJ or by experts how to address the
overlay between ICL and IHRL. More importantly, conflicts can shift from primarily internal
to international and during this shift multiple legal regimes are applicable. This concoction
according to Bassouini will occasionally bring about IHL's supremacy over ICL and vice-
versa.

INTERNATIONAL CRIMINAL JUSTICE

Dr. Bassouini feels that though the regime of International Criminal Justice has flourished
since the establishment of institutions like International Criminal Tribunal for the former
Yugoslavia, International Criminal Court (ICC), International Criminal Tribunal for Rwana,
etc., the core values of the international criminal justice have yet not become an integral part
of the goals sought to be achieved by a mass scale Globalisation. The current stage of
globalization has emphasized economic and financial interests over humanistic and
humanitarian values and principles. Fiscal and financial interests, whether in the public or
private sectors, continue to prevail over humanitarian values. Current economic and financial
crises in the world subordinate the interests of states to the ill being of their interest in human
rights. Moreover, concerns for internal security and stability have prevailed as states' interests
over the interests of humanitarian and values.

GLOBALISATION AND THE FUTURE OF HUMAN RIGHTS

1). Globalization is not a new phenomenon; it has been ongoing during the all years that it
took for the human species to evolve into the organized societies of our times. During this
historic process, human characteristics and human needs shaped social organizations leading
to the coalescence of social values and to their transformation into human values that
transcend purely utilitarian considerations. In time, these social and human values have been
embodied in principles, norms and standards of individual and collective behavior that were
adopted by states and the international community as it evolved. These principles, norms and
standards had value-oriented goals that included considerations pertaining to the common
good, which included, inter alia, collective security, the promotion and protection of human
rights and international criminal justice (ICJ). These value-oriented goals also reflected the
commonly shared values of the international community and were deemed to some extent to
supersede the power and wealth interests of states and individuals. This historical process in
question was at times slow and sluggish, while at others it was rapid and even exponential in
its growth – as has been the case in the expansionist era of globalization that developed since
the 1960s. Concomitantly, however, this historical process also revealed how uneven the
applications of these principles, norms and standards have been enforced, particularly with
respect to states that enjoy positions of power and wealth that places them in a category of
exceptions.
7
Ron Slye, A concise history of International Criminal Law, SANTA CLARA UNIVERSITY LAW DIGITAL
COMMONS (March 29, 10:50 AM),
https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1629&context=facpubs
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2). The social, economic, political, and legal challenges that have emerged over the last few
years, including the inability of states and international organizations to carry out their
institutional functions, have tested a number of assumptions about the future of human rights
and ICJ in light of the present phase of globalization. These challenges have also tested the
ability of the emerging global system to effectively respond to a number of collective
challenges, which impact our global community.

3). The present state of globalization is led and dominated by science and technology, which
have, by now, shrunk the spatial process and temporal boundaries of our world. Other factors
include: means of communication, human mobility, a worldwide economy, a worldwide
financial system, worldwide market expansions, and other factors which have increased
human interdependence and interconnectedness with paradoxical positive and negative
effects and outcomes. Science and technology, however, enhances the power and wealth of
those states that have these resources and capabilities – leading the powerful and wealthy to
enhance their positions, all too often to the detriment of others.

4). The present expansionist rate of globalization, its depth and breadth, as well as its effects
and outcomes, reveals, as it always has, that those states which excel in scientific and
technological capabilities develop greater power and wealth than others. This, in turn, brings
about the domination and exploitation of those societies that have not reached the same levels
of scientific and technological development. But, the positions of power and wealth that
certain societies attain are not constant, as is evidenced in the rise and fall of empires
throughout history. More significant, however, is the direct correlation between scientific and
technological advances and the positions of power and wealth enjoyed by certain states, so
frequently at the expense of others. What has ensued from these power-disparities are wars
and human depredations of all types by those with power over those without it. But, after
many tragedies, human societies have also sought to curb these harmful effects and outcomes
by establishing limitations on the rule of force and implementing stricter boundaries for the
protection of human rights. In turn, the human rights thrust of post-WWII brought about ICJ.
But these gains cannot be taken for granted and are not necessarily durable in light of new
global factors and their challenging effects and outcomes.

5). International law practices concerning the protection of human rights and the enforcement
of ICJ have, admittedly, never been consistent. Some state- actors have benefitted from
exceptionalism and other forms of evasion of the international law prohibitions, irrespective
of the effects and outcomes of the violative conduct. International practice has always
evidenced disparities. States that enjoy greater power and wealth than others fall into a
category of exceptionalism wherein their conduct, no matter how harmful it is to others and
to the common environment, evades international responsibility.
Exceptionalism is, in fact, about what few powerful states can do and get away with.
Globalization has enhanced this behavior among major world powers and certain MNCs,
putting them beyond the reach of international law.

6).Failed and failing states, whose numbers have consistently risen in the last two decades,
are likely to continue increasing – particularly when the world population in 2050 reaches 9.3
billion with an estimated 1.4 billion below the hunger level.
Such affected local populations are likely to descend into chaos – with the strongest among
them preying upon the weakest, thus further affecting the human rights of many. Moreover,
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these failed and failing states often generate groups of people who, in addition to preying
upon their own co-nationals, will export violence to other states, thereby also depriving other
individuals of their human rights.

7). Globalized factors and their effects and outcomes are also increasing states’ governability
challenges. In some cases governability has risen to a crisis level, particularly where there are
internal conflicts and/or high levels of poverty. But, even in developed states, governability
on the basis of the historic “social contract” carried out under the auspices of governmental
democracy is showing significant flaws, particularly as to governmental effectiveness. These
factors impact human rights in so many ways, among which are the inequality gaps between
members of these societies, poverty and access to health services.
This phenomenon is also replicated at the international level with respect to the economic
disparities between states. Governmental choices as to the allocation of resources will
continue to affect the human rights of the weak, much as the allocation of resources to
populations affected by environmental harm and by poverty will result in a political choice,
by those in power, as to those who will receive and those who will not receive survival
necessities.

8). On balance, all of the aforementioned global factors directly and indirectly impact human
rights with respect to life, health, well-being, human dignity, and justice. The ability of
existing international human rights mechanisms to prevent or mitigate these harmful
consequences is limited. No international studies exist that assess this situation, and maybe
that is more than coincidental as international organizations consist of states that are unlikely
to make human rights monitoring more effective, or enhance ICJ. A countervailing force,
however, exists in international civil society and certain concerned states.
Without them, the negative consequences, in part described above, could be significantly
worse.

9).All this leads to the following conclusions, which, along with other topics listed in the
Conference program, have been discussed. They are: there are no international institutions
with the capacity and effectiveness to exercise control over the negative effects and outcomes
of globalized factors on the planet, states and individuals; – as the cumulative impact of
global factors on individuals and societies becomes more pervasive and less controllable, new
challenges arise, making it increasingly more difficult for states and international institutions
to effectively address their negative consequences – particularly as to the environment,
population growth, food production, poverty, famine, and the increase in failed and failing
states with resulting violence and disruption of the world order;

– International and national processes are increasingly unable to cope with the emerging
needs and demands of an ever more dependent international community of peoples of the
world, and national boundaries notwithstanding, are bound and impacted by global factors;
– The cumulative effects and outcomes of global factors will increasingly change
international and national priorities in the years to come. As these priorities change, they are
likely to displace other priorities whose value-oriented goals are the enforcement of human
rights and the pursuit of ICJ;
– In a curious, not to say perverse, way – our globalized world is becoming more
interdependent and interconnected at the same time that it is becoming less committed to the
identification and enforcement of the common good;
– In the next few decades all of this may lead to a reconfiguration of the international
community, which could resemble what existed in the middle- ages in Europe and in other
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parts of the world: the rich and powerful (whether they are organized as states or groupings of
states) will be in the fortresses on top of the hills which are surrounded by walls and moats to
keep them safe on the inside, while on the outside will be those living in a sea of poverty and
chaos;
– The presently perceived countervailing force is international civil society and some
concerned states. What they may be capable of achieving in the face of the changing
landscape the foreseeable world order is difficult to assess. But, that is what remains to
counteract and mitigate the cascade of negative effects and outcomes of the impact of
unbridled globalization on our planet.

CONCLUSION AND THE WAY AHEAD

And with this Dr. Bassouini finally concluded by saying that we have reached the time when
the economic disparities between highly developed, developing, and developed nations are
continuously increasing. He says that many will fall below the poverty level and the so-called
middle class will struggle even more to preserve its economic privileges. States in the near
future will increasingly be unable to provide the economic and social services they
historically offered or promised. Their part of the "social contract" or the promise to ensure
the protection of fundamental human rights will be increasingly unfulfilled, and the states'
legitimacy will be severely questioned because of this. The so called “globalized system” will
not replace state's social and economic responsibilities. Individual human rights will shift
from social and political rights reflecting the ideas of liberal democracy to basic needs rights
deriving from economic necessities. Distribution of wealth, resources and allocation of public
services will become a priority over what will seem as the luxury of individual social and
political rights in the exercise of democratic freedoms.

The signs of a new historical phase for human rights have already started to emerge. It will
include a drastic shift from the protection of individual human rights against the states to the
dominance of state interests over those of individuals as was the case before WWII. This
paradigm shift will emphasize individual responsibilities and the primacy of collective
security interests within and between states over the post WWII approach, which emphasized
the predominance of certain fundamental individual human rights over state interests. But the
decline of human rights in the context of relations between the state and the individual will be
counterbalanced by the strengthening of collective rights against the states and the
international community.

In the end Dr. Bassouini paraphrases Mark Twain and goes on to say “news about the
complete demise of human rights is premature. But news about its transformation is
reasonably certain.” He feels however, considering the semantics of the problems that the
global society faces today, that the prospects of amelioration of Human Rights on a global
scale are not very positive.
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BIBLIOGRAPHY AND REFERENCES

Books Referred
1. CHERIF M. BASSIOUNI, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW
(2002).

2. JANET DINE, ANDREW FAGAN, HUMAN RIGHTS AND CAPITALISM:

PERSPECTIVE ON GLOBALISATION.

3. WOLFGANG BANADEK, KOEN DE FEYTER, FABRIZIO MARRELLA, ECONOMIC

GLOBALISATION AND HUMAN RIGHTS: EIUC STUDIES ON HUMAN RIGHTS AND
DEMOCRATIZATION (EUROPEAN INTER-UNIVERSITY CENTRE FOR HUMAN
RIGHTS AND DEMOCRATISATION)

4. SHAW MALCOLM, INTERNATIONAL LAW (2008)

5). BROWNLIE IAN, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (2005)

Websites Referred
1).https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1629&context=facpubs
2). http://hrlibrary.umn.edu/edumat/hreduseries/hereandnow/Part-1/short-history.htm
3).https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/denilp40&id=
50&men_tab=srchresults
4). https://intersentia.com
5). https://www.jstor.org/stable/10.5325/j.ctt7v3j7