Download Lesson 1: Globalization Overview: Dimensions of Globalization

Lesson 1: Globalization
Overview: Dimensions of Globalization
(Source: smart library on Globalization. Center on Law and Globalization)
V. The Development of Human Rights Language
Anthropologist Sally Engle Merry describes the evolution of the language of international
human rights law. Rather than view the development of human rights law as a recent
phenomenon, Merry provides a brief outline of the development of international human
rights law over the past three-hundred-fifty years.
From this perspective, recent international human rights law is a development and
expansion previous international law and practice. (Merry, Sally Engle. 2006.
"Anthropology and International Law." Annual Review of Anthropology 35:99–116)
RELATIONS BETWEEN SOVEREIGN STATES
The treaty of Westphalia (1648), following the Thirty Years War, is the foundation for
international law.
International law during this period was founded on the notion of state sovereignty. So,
international law consisted, for the most part, of treaties and agreements among European
states.
However, formal treaties were not the only basis for international legal norms. As
transnational relations became more established, less formal international norms such as
conventions (general principles of law recognized by states) became more important.
Conventions became more firmly and broadly assumed. Even nations that were not part
of formal treaties began to accept international legal conventions.
Custom and treaties became “co-equal sources” of international law.
Why would states that are not parties to a formal treaty comply with international legal
customs? There are several informal bases for conformity:

The expectation of reciprocity among states,

The desire for membership in the international community,

The wish to appear “civilized,”

Pressure from other countries for trade agreements.
Even though these bases for conformity are less formal than other types of transnational
law, they may be just as effective.
COLONIALISM
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The period of European colonization was an important phase in the further development
of international law. The nature of transnational law was influenced by exposure to local
situations foreign to the “civilized” world.
International was law applied not just to relationships among European states, but was
also applied to indigenous peoples. For example, the Spanish applied international law to
native Americans by arguing that Europeans had the “right” to defend themselves against
the Indians.
The application and adaptation of colonial law within the local contexts of indigenous
peoples created a new level of legal pluralism. For instance, the British carved out law
governing family and marriage from other civil law in order to keep family law within
the context of indigenous religions. This lessened the likelihood of resistance from
indigenous peoples against the imposition of British law. It also added a new level of
legal complexity.
In short, international law was both expanded and made more complex during the colonial
period.
FROM STATES TO INDIVIDUALS
The Nuremberg trials, following World War II, were a watershed event in the
development of international law. For the first time, it was acknowledged that individuals,
and not just states, had rights in international law. Since then, there has been a growing
body of documents and institutions concerned with human rights in international law.
However, the notion of individual rights was still built on the structure of treaties among
sovereign states. States had to ratify the conventions, and only states that ratified them
were bound by them. Even so, the international norms governing human rights have been
broadly ratified.
COLD WAR: DEVELOPMENT ALONG TWO TRACKS
International human rights law has not developed seamlessly. Indeed, the definition of
exactly which human rights individuals had was highly debated during the Cold War.
Although the Universal Declaration of Human Rights (1948) included both civil/political
rights and social/economic rights, it was politically impossible during the Cold War to
produce a convention with both sets of rights. So, there was a “two track” development
of human rights law during the Cold War:

Western human rights law focused on political and civil rights (such as the right
to free speech and religion),

Socialist and Communist countries focused on economic and social rights (for
instance, food, housing and the right to work).
FROM INDIVIDUALS TO COMMUNITIES
The perspective on human rights advocated by communist and socialist countries did not
disappear with the fall of communism and the current process of globalization. The
language of human rights that developed within the context of communism has taken on
a different face within recent developments of international law.
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Rather than being manifest as the difference between Western democracy versus
Communism, recent differences in the definitions of human rights tend to move along a
developing nation versus advanced economies split. Developing countries tend to assert
economic and social rights while advanced economies continue to emphasize political
and civil rights along with a more recent emphasis on individual property rights that cross
state boundaries.
However, this split in emphases in international human rights law has become less
pronounced in recent decades. This is evident in the development of international human
rights with a more collective focus (for example, the recent development of the rights of
indigenous peoples). Several features of this development are important within an
international human rights context.

The language of international human rights shifted from an either/or political
discourse to a more unified language of global justice,

The focus changed from states to individuals then to communities. Movements
supporting the rights of indigenous peoples were not primarily efforts for
independence or statehood, but sought to protect distinct cultural communities.
This struggle was largely carried out in legal arguments to protect rights rather
than using other forms of political action (e.g., violence).

There began a change in focus from economic development (located largely in
property rights) to poverty alleviation. Poverty came to be a political issue.
Poverty was no longer conceived as the unfortunate byproduct of economic
globalization, but as a problem of global justice that demanded change.

Pressure for change began to originate from the poor and discontented rather than
from states adhering to contrary Cold War ideologies,

The combination of human rights focused on individuals, communities and
economic relations has added layers of law on top of those created during the
colonial period.
BOTTOM LINE
Recent developments in international human rights law have redefined and expanded the
scope of earlier international law. International human rights law has also developed a
dominant language of global justice that cuts across cleavages dominant during the Cold
War. But, for all these developments, international human rights law has not become
simpler. Rather, says Merry, international human rights law has become more complex.
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