Indiana Journal of Global Legal Studies 10.2 (2003) 255-281
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Reconciling Human Rights and Sovereignty:
A Framework for Global Property Law
In the wake of the massive destruction and notorious human rights abuses of World War II, the nations of the world made a widely supported commitment to protecting human rights. Fundamental to this agreement was the understanding that nation-states, previously viewed as impervious to compulsion by extra-national standards of conduct, could not be trusted to protect the rights of individuals. Also fundamental was the agreement that human rights belong to all human beings, regardless of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.
In the past fifty years, progress has been made in varying degrees in establishing consensus on particular issues, monitoring human rights abuses, enforcing human rights, and developing a body of law to guide this task into the future. While the nations of the world have agreed on some important fundamental human rights, disagreement persists as to the full set of human needs and activities that should be protected as rights. One view holds that civil and political rights, typically understood as negative rights reserved by the individual against state interference, are the primary bulwark against oppression, and that these rights are sufficient for full realization of equality and prosperity. A contrasting view holds that the state's primary duty is to provide affirmatively for the collective welfare of its citizens. On this view, positive social, economic, and cultural rights are to be promoted before negative civil and political rights.
Parallel to the enhancement of human rights has been the diminution of states' rights, or sovereignty. From the Peace at Westphalia forward, a sovereign's control of its territory and its final authority to make law within its borders have been seen as the fundamental building blocks of international law. 1 [End Page 255] Recently, however, global forces, including markets, communications, and transportation, have, become more independent of the control of sovereign states, and a growing number of multilateral agreements with provisions for extra-national enforcement has, to some extent, deprived states of the "last word" on a number of issues previously within their domain. 2 While most nations desire the benefits of increasingly integrated "globalized" forces, there remains serious disagreement regarding the role of sovereign nations in a global order. One view, espoused by some "globalists," holds that sovereigns are becoming less relevant and less necessary to the extent that wealth (and thus welfare) is created and distributed by global forces. 3 Some globalists go so far as to argue that sovereignty impedes the true potential of globalization. 4 Some skeptics, however, argue that globalization is merely a cover for imperialism, 5 and that sovereigns are still necessary—perhaps increasingly so—to protect the welfare of their citizens, and represent their needs against those of disembodied and unaccountable "global" forces. 6 It seems that although sovereign nations retain great practical and ideological import, when the interests of global forces and sovereigns come into conflict, the latter are increasingly made to yield. 7
A third trend brought to center stage by globalization involves the stature and extent of property rights in the global era. Traditionally seen as the exclusive domain of the sovereign, in which states exercise territorial and legislative autonomy, property disputes have become globalized, and the locus of control, at least in certain areas, has steadily shifted from national to transnational arenas. The unsettled nature of property rights is central to understanding this trend, as well as the seemingly intractable disputes regarding the scope of human rights law and the power of the state. The inability to reconcile these disputes stems, at least in part, from a fundamental disagreement about the meaning of property, as well as who should have the final authority to decide how property is protected and ultimately distributed. Mirroring the divergence in human rights and [End Page 256] sovereignty, the global dispute over property comes down to the dispute between...