Academic

Gardbaum on Human Rights as International Constitutional Rights

By Lawrence Solum

Stephen Gardbaum (University of California, Los Angeles - School of Law) has posted Human Rights as International Constitutional Rights (European Journal of International Law, Vol. 19, No. 4, 2008) on SSRN.  Here is the abstract:

The Universal Declaration was, of course, the first of the three global international human rights instruments that have collectively come to be known as the International Bill of Rights. Very often, however, this latter term appears within quotation marks or is prefaced by the qualifying phrase, so-called, signaling that there are serious, although mostly unexplored, questions about the validity of the implied comparison with domestic bills of rights. In this article, I treat the occasion of the sixtieth anniversary of the Universal Declaration as an opportunity to take stock by exploring these questions and making the comparison explicit. 

I do so by considering the two parts of the term separately. First, regarding bill of rights, what are the similarities and differences between the UDHR, ICCPR and ICESCR on the one hand and domestic bills of rights on the other? In particular, to what extent or in what sense, if any, has international human rights law become constitutionalized and, thereby, similar and closer to most domestic bills of rights? Second, regarding international, do the major international human rights instruments simply duplicate domestic bills of rights or provide a generally inferior substitute for them where unavailable - as a certain strand of human rights skepticism suggests? Or do they perform any distinctive functions over and above domestic bills of rights that make a novel and unique contribution to the historical development of constitutionalism?

And from the paper:

The growth of the human rights system is a critical part of the case for those who argue that such fundamental changes have taken place in international law as to justify or require a shift in overall paradigm from a horizontal conception of sovereign equality to a more vertical, ?constitutionalist? conception. Perhaps the most general of these fundamental changes is that individuals have become subjects of contemporary international law in addition to states. That is, individuals and no longer only states have rights and duties under international law. Just as in 1963, the European Court of Justice cited this precise characteristic of EU law as the basis of its famous statement in Van Gend en Loos that EU law forms ?a new legal order of international law,?24 so too since 1963 can it be said that this characterization now applies to international law as a whole. Human rights law, which was essentially re-launched just a few years later with the opening of the two international covenants for signature, is of course the major source and manifestation of the rights side of the transformation, while the rapid development of individual liability under international criminal law in the last decade is arguably the major source and manifestation of the duties side. This transformation in the basic subjects of international law can be thought of as constitutional in nature because it represents a shift from the ?private law? model of international law as exclusively regulating horizontal relations among sovereign equals to the ?public law? model of also regulating vertical relations between states and individuals. In other words, a shift from contractual to constitutional functions.

And:

the human rights system does not generally bind governments against their will and so, in this regard, exists in some tension with the other factors driving the non-consensual, constitutionalist paradigm. With the exception of human rights norms that have customary international law or general principle status, the treaty basis of much modern human right law requires state consent, as of course the US failure to ratify several illustrates. Moreover, under a purely positivist reading of jus cogens as deriving exclusively from the Vienna Convention, such norms primarily function to restrict a state?s treaty-making power but do not directly impose the substantive duty on an unwilling state.

Illuminating!  Recommended.

Full post as published by Legal Theory Blog on September 08, 2008 (boomark / email).