Abstract
This chapter discusses the role of international law in the promotion of equality and social justice within the general theme of human rights and the modernization of international law. The main argument developed in the first part of this paper is that the modernization of international law has been driven mainly by post World War liberal consensus that has facilitated the spread of a notion of human rights understood mainly as rights of the individual, and the development of normative structures and institutions that have accelerated the present process of economic globalization. This aspect of the modernization of international law, if on the one hand has helped to place the value of equal dignity of human beings above the traditional principle of State sovereignty, on the other hand has completely neglected the socio-cultural dimension of human rights and the negative impact that an individualist culture of human rights produces on the more vulnerable members of the society and on the opportunities for their social inclusion. In the end, it has contributed to the disempowerment of the State as provider of security and social inclusion. The second part of the paper examines the opportunities and possible strategies for a “modernization” of international law that may effectively respond to the need of improving equality and social inclusion in an increasingly fragmented world.
Emeritus Professor of International Law, European University Institute, Florence, and Professor of International Law, LUISS University, Rome.
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Notes
- 1.
- 2.
- 3.
- 4.
See in particular: UN General Assembly, Report of the Special Rapporteur on extreme poverty and human rights, UN Doc. A/69/297, 11 August 2014.
- 5.
Global Employment Trends 2014, ILO publication (2014).
- 6.
For a critique of the alleged neglect by the World Bank of human rights and social justice in the planning and implementation of its financial operations, see UN Doc. A/69/297, supra fn. 4.
- 7.
Art. 2, para. 1 of the UN Charter.
- 8.
Art. 1, para. 3 of the UN Charter.
- 9.
Judicial decisions giving effect in domestic law to human rights provisions of the Universal Declaration are extremely rare. See, for example: Pretura di Torre Annunziata, Balzani c. Giannetti, 26 April 1983, cited in Francioni (1997), p. 27; District Court of Appeal, Second District, Division 2, California, Sei Fujii v State, 24 April 1950, in which the Court gave direct effect to the Universal Declaration, as a derivative instrument of the UN Charter to invalidate a domestic statute tainted by racial discrimination. However, this part of the decision was reversed by the Supreme Court of California, which based the invalidation of the discriminatory statute only on the 14th amendment of the US Constitution (“… the Charter provisions relied on by plaintiff were not intended to supersede existing domestic legislation”, 38 Cal. 2d 718, 17 April 1952).
- 10.
Decision amending the OECD’s Code of Liberalisation of Capital Movements. See OECD (2017) OECD Code of Liberalization of Capital Movements, 2017.
- 11.
Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty, OJ L 178, 8.7.1988, pp. 5–18.
- 12.
At the time of this writing, 15 October 2017, only 22 States have ratified the Protocol.
- 13.
For a critique of the Strasbourg Court and of its treatment of individual applications invoking the public interest to the protection of the public good of the environment, see Francioni (2010). For a comprehensive treatment of the interaction between individual rights and collective interests in the Strasbourg jurisprudence, see Pavoni (2013).
- 14.
Reisman (2007), p. 576.
- 15.
Roosevelt (1944).
- 16.
UN Committee on Economic, Social and Cultural Rights, CESCR General Comment No 3: The Nature of the States Parties’ Obligations, UN Doc. E/1991/23, 14 December 1990.
- 17.
ILO, Social Protection Floors Recommendation, 2012 (No. 202), Geneva, 101st ILC Session (14 June 2012).
- 18.
For a comprehensive analysis of the practice on this subject, see Milanovic (2011).
- 19.
Supreme Court of the United States, Kiobel at al v. Royal Dutch Petroleum, 17 April 2013, 569 U.S. (2013).
- 20.
Many governments had filed amici curiae briefs for the purpose of advocating judicial restraint in Kiobel type cases. Among them the US, the UK, the Netherlands, Germany, all governments concerned mainly with avoiding the risk of judicial accountability for human rights violations implicating the foreign operations of their business corporations. An attitude that is not entirely consistent with the 2011 UN “Principles on Business and Human Rights”.
- 21.
UN General Assembly, UN Doc. A/RES/55/2, United Nations Millennium Declaration, 18 September 2000.
- 22.
UN General Assembly, UN Doc. A/RES/70/1, Transforming Our World: The 2030 Agenda for Sustainable Development, 25 September 2015. Goal 10 concerns “equality” in nations and among nations; Goal 4 concerns inclusion in education, and Goal 11 refer to inclusion in human settlement and urban planning.
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Francioni, F. (2018). Global Justice, Equality and Social Inclusion: What Kind of “Modernization” of International Law?. In: Pisillo Mazzeschi, R., De Sena, P. (eds) Global Justice, Human Rights and the Modernization of International Law. Springer, Cham. https://doi.org/10.1007/978-3-319-90227-2_10
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