THE TENSION BETWEEN LAW AND FACT

The starting point of this book is that international human rights law is out of sync with the daily realities of our globalized world. This affirmation is not new and had already been raised more than a decade ago. In 1997 scholars noted for example that ‘it is no longer taken for granted that the realization of economic, social and cultural rights (ESC) depends significantly on action by the state, although, as a matter of international law, the state remains ultimately responsible for guaranteeing the realization of these rights'.

Scholars in political science and international relations have studied globalization from the standpoint of the changing role of the State in order to understand the effects of globalization on global governance. From a human rights perspective scholars have assessed the value and impact of globalization on development and the advancement of human rights. A common concern in both scholarly fields is the reconfiguration of power that is taking place. Keohane and Grant described it as follows:

According to Held the process of globalization can be understood as being ‘[…] to express the expanding scale on which power is reorganized and exercised […] it involves the reordering of power relations between and across the world such that key sites of power and those who are subject to them are often oceans apart'. This diffusion of power contributes to the feeling that there is a ‘growing significance of “remote” forces on our lives', which ‘complicate the presumed naturalness of nation-state communities’ and territory. The axiom that power entails responsibility is considered basic to any democratic order. Evans and Hancock assert that ‘people begin to question what national democracy means if their government is impotent in exercising any control over economic factors that affect their daily lives'. An illustration of the diffusion of power away from the State is the global economic crisis that swept across the world in 2008.