The European Journal of International Law Vol. 19 no. 4 © EJIL 2008; all rights reserved
Human Rights as International Constitutional Rights
* Professor of Law, UCLA School of Law. A different version of this article was presented at an outstanding and comprehensive book workshop on international constitutionalism held on 6–7 December 2007 at Temple University School of Law and will appear in the resulting collection, J.L. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law & Global Government (forthcoming, 2009)
Email: gardbaum{at}law.ucla.edu.
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Abstract |
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The Universal Declaration was, of course, the first of the three global international human rights instruments which 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’, signalling 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 anniversary as an occasion to take stock by exploring these questions and making the comparison express. 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? Secondly, 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 scepticism suggests? Or do they perform any distinctive functions over and above domestic bills of rights that make a novel and unique contribution to the development of constitutionalism?