By Holning Lau[*]
David Law paints a heartening picture in his engaging article, Globalization and the Future of Constitutional Rights. Globalization, he argues, promotes the protection of human rights. “As capital and skilled labor become increasingly mobile, countries will face a growing incentive to compete for both by offering bundles of human and economic rights that are attractive to investors and elite workers.” Law predicts that this competition will resemble a “race to the top” of the rights terrain.
While I generally agree with Law’s descriptive argument, I caution against the optimism behind a “race to the top” metaphor. My optimism is qualified because I question the strength and sustainability of human rights protections derived primarily from economic interests, as opposed to normative principles concerning human dignity.
This Essay unfolds in three parts. In Part I, I draw from my experiences in Asia to support Law’s claim but also to put it in perspective by introducing the potential limitations of human rights protections derived from economic interests. Part II elaborates on the limited reach of rights reforms stimulated by states’ desire to enhance market competitiveness. This section extends Law’s metaphor to articulate three hypotheses. First, while some states are racing all the way to the top, most of the countries referenced by Law are not actually going the distance and are, instead, running a truncated race—racing to provide a level of rights protections that leaves significant room for improvement. Second, among the competitors in the race to the top, losers have diminished incentives to finish the race. Third, states that complete the race to the top are at risk of swiftly slipping down the hill they just climbed. Finally, Part III restores optimism, explaining that human rights advocates can take measures to overcome the scenarios just described.