International Human Rights

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INTERNATIONAL HUMAN RIGHTS

The Constitution includes, notably and famously, guarantees for individual rights. Indeed, other elements of U.S. "constitutionalism"—popular sovereignty, the rule of law, limited government of enumerated powers, separation of powers, and federalism—might also be seen as designed to safeguard individual rights and liberties. Americans have enjoyed the protections of the Constitution for more than two hundred years, and their constitutional rights have flourished particularly since world war ii.

The second half of the twentieth century has seen the birth and growth of "international human rights" as a universal ideology with an agreed catalog of rights, an ideology that the United States has supported and joined. The international human rights movement has engendered an international law of human rights and international institutions to induce compliance with that law.

International human rights relate to the Constitution in different ways. In substantial measure international human rights were inspired by the Constitution and by American life under the Constitution. To the extent that the international law of human rights is provided for in treaties to which the United States is party, it is law for and in the United States. Like other customary international law, customary international law of human rights is law of the land in the United States. In several additional contexts, the international law of human rights is given effect in courts in the United States, supplementing safeguards for individual rights under the Constitution, treaties, and laws. Although U.S. constitutional rights and international human rights are intimately related, they differ in their theory and sources, in their scope and content, in the means of their implementation, and in their contribution to individual well-being.

The Constitution, established at the end of the eighteenth century, reflects the ideology articulated in the American declaration of independence and in early state constitutions, an ideology rooted in inherent, individual, natural rights. Natural rights of individuals were translated into the "sovereignty of the people," government with the consent of the governed, and rights retained by the individual even against government. The commitment to rights was reflected in several guarantees in the original Constitution, for example, the right to trial by jury and the privilege of habeas corpus. It was confirmed and elaborated by constitutional amendment in the bill of rights and in subsequent amendments, notably the thirteenth, fourteenth, fifteenth, nineteenth, and twenty-fifth. Thanks to judicial review, U.S. constitutional rights have been elaborated by the Supreme Court in a rich constitutional jurisprudence and implemented by acts of Congress. International human rights were born during World War II and confirmed at Nuremberg and in the united nations charter. International human rights have been developed in subsequent international instruments, notably in the Universal Declaration of Human Rights, and in covenants and conventions that derive from it.

Indisputably, the international human rights movement, and international human rights law, drew heavily on the Constitution as it had developed during 150 years. But the Constitution was not the only source of, or influence on, international human rights. And differences in their birth-dates, their political contexts, and their biographies have produced two related but different systems of law and institutions.

Constitutional rights and international human rights differ in their sources and in their theoretical foundations. The Constitution derives from English political and legal tradition back to magna carta, and from the English common law as modified by occasional acts of Parliament. The theory of the Constitution reflects the writings of john locke and of the European Enlightenment, restated in the bills of rights of early state constitutions and succinctly and eloquently articulated in the American Declaration of Independence.

The international human rights ideology is the product of the international political system during and after World War II. Its principal instruments—the Universal Declaration of Human Rights and the two International Covenants—were produced by international political bodies in the post-war world, were eclectic in their sources, were designed for universal application, and strove for universal acceptance. By then, "natural law" and "natural rights" had long been discredited ("anarchical fallacies," Jeremy Bentham characterized them), and had suffered the onslaughts of "positivism"; the liberal state had been threatened by varieties of socialism and everywhere was transmuting, in some measure, into the welfare state. In influential countries, republican elitist government was moving steadily toward representative parliamentary democracy based on popular sovereignty and universal suffrage. The Universal Declaration of Human Rights (unlike the American Declaration of Independence) contains no reference to "the Creator" and no hint of natural rights (which would have been unacceptable to the U.S.S.R. with its atheist, socialist, positivist ideology). Indeed, the Universal Declaration of Human Rights eschews theory. Instead, it links human rights to one fundamental value, "human dignity," and justifies human rights by their aim and purpose: recognition of human rights is declared to be "the foundation of freedom, justice and peace in the world."

The Constitution guarantees the rights explicitly articulated in the Constitution, in the Bill of Rights, and in later amendments. No rights are protected unless rooted in constitutional text (as interpreted). Although the ninth amendment declares that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," no rights have been recognized and held to be specifically protected by implication of the Ninth Amendment (or of the tenth amendment, as rights reserved to "the people"). But the U.S. Supreme Court has interpreted the different provisions broadly, giving some of them (notably the "liberty" and the " due process " required by the Fifth and Fourteenth Amendments) meaning probably not anticipated by their authors.

International human rights also claim their principal foundation in various texts, but some international human rights are based in customary international law. Though its normative character is still debated, the Universal Declaration of Human Rights is recognized as an authoritative catalog of human rights, much of which has become customary law. And other rights not explicitly mentioned in the text—such as freedom from genocide, extralegal killing, systematic racial discrimination, prolonged arbitrary detention—when practiced as state policy are protected by customary international law even if not set forth in any authoritative text to which the violating state has adhered.

For the rest, international human rights are protected against state violation if the state has undertaken to honor them in a binding covenant or convention. Unlike the Constitution, which protects rights only against state action (or, exceptionally, against private imposition of slavery), the international obligation "to respect and ensure" rights implies an obligation on the state to protect the enumerated rights against private action as well.

In sum, U.S. constitutional rights at the end of the twentieth century, though rooted in a few authoritative provisions in the Constitution, have to be distilled from hundreds of volumes of interpretation by the Supreme Court. In contrast, except for a few principles recognized as binding by customary law, the international law of human rights is rooted largely in international texts hammered out by governments. The texts are interpreted occasionally by the monitoring committees created by various treaties, but that jurisprudence is small and its authority disputed. Only the commission and court created by the European Convention on Human Rights (replaced in 1998 by a new, enlarged court), and, to an extent also, the parallel bodies established under the Inter American convention, have contributed significant interpretive jurisprudence.

The Constitution, it was said, protects not the rights of man but the rights of gentlemen. These were rights that the former colonists had enjoyed under British law, such as freedom from unreasonable search and seizure and the right to trial by jury, and protections for life, liberty, and property against deprivation without due process of law. The Bill of Rights also guaranteed rights its authors valued because they had been denied under British rule: hence the right to bear arms provided by the second amendment and the right not to have troops quartered in private homes in time of peace provided by the third amendment. But the Bill of Rights was not intended to be a complete declaration of rights, leaving many safeguards to be provided by state constitutions or by state or federal law. On the other hand, international human rights could not incorporate or rely on any existing body of law or on any domestic legal system (such as the English common law); the Universal Declaration, therefore, is a more explicit, more complete, catalog of rights.

International human rights include rights that in the United States were not explicitly guaranteed by the Constitution but which were later inferred by interpretation—for example, the freedom of association, the presumption of innocence, and the right to travel. Similar (or related) rights expressed in different terms in the Constitution or in international instruments may imply different protections: the Universal Declaration protects against torture and inhuman or degrading treatment or punishment; and explicitly, at least, the Constitution protects only against torture, and only if it is used to compel testimony or as cruel and unusual punishment for crime. International human rights include a right to a nationality: the Constitution has been held to protect only U.S. citizenship, and only against involuntary termination. In an ambiguous provision, the Universal Declaration recognizes a right to "seek and to enjoy asylum from persecution"—a provision that has no American constitutional parallel. Both the Constitution and the Universal Declaration guarantee religious liberty, but International Human Rights norms do not accord protection against an establishment of religion.

The Universal Declaration and the International Covenant on Civil and Political Rights provide for universal suffrage. The Constitution protects voting rights against invidious discrimination in voting on grounds of race, gender, or age; not until the 1960s was the Constitution interpreted to safeguard the right to vote and provide, in effect, for universal suffrage.

The Universal Declaration and the covenants depart radically from U.S. constitutional jurisprudence in that they guarantee what have come to be described as "economic and social rights"—welfare rights such as social security, the right to work and leisure, a right to education, and a right to an adequate standard of living. In the United States some welfare rights are provided by law but they are not required by the Constitution, and inequalities in welfare assistance have been held not to deny the guarantee of equal protection of the laws.

The Constitution has been held not to prohibit capital punishment, and "life" is protected only to the extent implied in "due process of law," procedural and substantive. International human rights instruments have imposed some limitations on capital punishment, and international conventions requiring complete abolition have continued to gain adherents. The Constitution guarantees the right to an abortion (subject to some limitations); international human rights laws tend to be silent on the subject though the American Convention on Human Rights requires parties to protect the right to life, "in general, from the moment of conception." The International Covenant on Civil and Political Rights requires states to prohibit war propaganda and hate speech in circumstances where such expression might enjoy constitutional protection in the United States.

The Constitution protects rights against violation but does not provide, or explicitly require, remedies for violations. The courts exercise judicial review and invalidate state or federal laws that violate constitutional rights, but that protects only against future violation and provides no remedy for the past. Congress is authorized, but not required, to legislate remedies for violations of rights. In fact, Congress has enacted civil rights laws to afford remedies for violation of rights, and in some cases the courts have created remedies on their own authority. In contrast, the International Covenant on Civil and Political Rights explicitly calls on participating states to adopt laws and take all necessary steps to give effect to the rights recognized in the covenant. "Each State Party … undertakes: To ensure that any person whose rights or freedoms … are violated shall have an effective remedy … [and] [t]o ensure that the competent authorities shall enforce such remedies.…"

Indirectly, the Constitution has provided support for international human rights, as applied both in the United States and abroad. The Constitution declares treaties to be the supreme law of the land. The United States has adhered to several human rights treaties, notably—as of 1999—the International Covenant on Civil and Political Rights, the Convention on Racial Discrimination, the Convention against Genocide, and the Convention against Torture. Ratifications by the United States have been subject to reservations, understandings, and declarations, but, subject to such qualification, international human rights obligations are law in the United States. The international customary law of human rights is also law in the United States.

The Constitution has contributed to international human rights by the powers it has conferred upon Congress, including, for example, power to impose sanctions against countries that are guilty of gross violations of human rights and the power to confer jurisdiction on U.S. courts to provide remedies, in some circumstances, for violations of human rights in foreign countries.

The U.S. constitutional system and international human rights continue to influence each other. U.S. constitutional jurisprudence is invoked by international bodies, in particular by the European and the Inter American human rights courts. U.S. courts are only beginning to look at the growing jurisprudence in the judgments of foreign constitutional courts or of international human rights courts. But the heavy emphasis on equality and nondiscrimination in international human rights instruments has doubtless influenced U.S. interpretations of constitutional norms of flexible outline and contributed to expanding the scope of equal protection of the laws, for example, to end segregation.

Neither U.S. constitutional jurisprudence nor international human rights promises radical change in the years ahead. The Constitution is not likely to be amended, or radically reinterpreted, in respects that are of acute international interest; for example, the right to an abortion. International human rights are likely to maintain their movement toward the abolition of capital punishment, but there is no sign of any move toward abolition in U.S. constitutional jurisprudence. The differences between U.S. constitutional jurisprudence and international human rights in respect of freedom of speech (including hate speech) seem likely to persist. Economic and social, welfare-state entitlements in the United States will not acquire constitutional character, though such benefits are likely to continue to be provided, subject to political forces and financial restraints.

The Constitution retains an older vision of human rights in the liberal state, rights of liberty and property; international human rights are contemporary and multi-cultural, marrying rights in the liberal state to those of the welfare state. Where the Constitution maintains a stronger commitment to freedom, including freedom of expression, international human rights are more sympathetic to competing claims of public interest—outlawing war propaganda and hate speech. Yet, ideally, the Constitution and international human rights support each other in pursuit of a clearer vision of human dignity.

Louis Henkin
(2000)

Bibliography

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——1978 The Rights of Man Today. Boulder, Colo.: Westview Press.

——1979 How Nations Behave: Law and Foreign Policy, 2nd ed. New York: Published for the Council on Foreign Relations by Columbia University Press.

——1990 Constitutionalism, Democracy, and Foreign Affairs. New York: Columbia University Press.

——1995 International Law: Politics and Values. Norwell, Mass.: Kluwer Academic Publishers.

——1996 The Age of Rights. New York: Columbia University Press.

——1996 Foreign Affairs and the Constitution, 2nd ed. New York: Oxford University Press.

Henkin, Louis and Hargrove, John Lawrence, eds. 1994 Human Rights: An Agenda for the Next Century. Washington, D.C.: American Society of International Law.

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