Human rights and constitutional rights: harmony and dissonance.

• Author: Neuman, Gerald L.
• Position: Symposium on Treaties, Enforcement, and U.S. Sovereignty

INTRODUCTION I. DUAL POSITIVIZATION AND THE PRODUCTION OF DISSONANCE A. Three Aspects of Fundamental Rights 1. The consensual, suprapositive, and institutional aspects 2. Overlaps and divergence among the three aspects B. Potential Dissonance Between the International and Constitutional Regimes 1. Divergence within aspects 2. Conflicts across aspects II. METHODS FOR REDUCING DISSONANCE A. International Accommodations to National Constitutional Rights 1. Interpretation 2. Savings clauses 3. Reservations B. National Constitutional Accommodations to International Human Rights 1. Giving constitutional status to human rights treaties 2. Mandatory interpretive direction 3. Voluntary consideration CONCLUSION INTRODUCTION

Two leading systems exist today for protecting the fundamental rights of individuals: constitutional law and human rights law. Both systems assert an ultimate authority to evaluate whether governmental practices comply with fundamental rights, and each system sits potentially in judgment over the other.

For liberal states that actively enforce constitutional norms, the relationship between these two systems assumes increasing importance. Some U.S. observers--and judges--insist that constitutional law should maintain its distance from the international human rights regime. (1) Other observers subsume this relationship in a more generalized account of transnational legal communication. (2)

In this Article, I pursue a third alternative, focusing specifically on the institutional consequences of embodying the human rights ideology in two parallel regimes of positive law. In elaborating the content of fundamental rights, national courts of liberal states and international tribunals proceed from multiple interpretive influences. I propose a framework for categorizing these positive and normative factors, and examining their interaction across the national and international levels. This examination reveals sources of convergence, but also sources of dissonance between constitutional rights and human rights. The framework also assists in the evaluation of methods employed at either the national or the international level to reduce such dissonance.

Part I elaborates the framework. It first describes three aspects of fundamental rights, the consensual, suprapositive, and institutional aspects, and their possibly conflicting influences on interpretation of fundamental rights at either the constitutional level or the international level. It then shows how these three aspects may also interact across levels, and produce different kinds of divergences or conflicts between international human rights and national constitutional rights. Some of these divergences reflect the central purpose of the international human rights system--to prompt reform of national practices--but others may result from the dual positivization of fundamental rights. Part II examines methods employed by the international human rights regime and by various constitutional regimes to prevent or reduce dissonance between them. Ultimately, the benefits of accommodation between the systems will vary depending on the characteristics of the particular state and the particular human rights treaty. Some types of divergence appear unavoidable, or even desirable.

1. DUAL POSITIVIZATION AND THE PRODUCTION OF DISSONANCE

   In this Part, I will distinguish three important features shared by both national constitutional rights and internationally protected human rights: consent, suprapositivity, and institutional context. Their coexistence at the national constitutional level should be familiar to U.S. readers, but identifying them within each system makes it possible to keep track of their parallel operation and especially their interaction across the two levels.

   Before introducing these three aspects of rights, it would be useful to clarify some terminology. I will use the term "human rights" only in reference to internationally recognized human rights (including some rights enacted at the national level for the purpose of implementing international obligations), and will refer to individual rights protected by national constitutions as "constitutional rights." The same right, abstractly conceived, e.g., freedom of expression, may be both a human right and a constitutional right. For ease of reference, I will use the phrase "fundamental rights" as an umbrella term including both the constitutional rights and human rights.

   Given the context of this Symposium, the analysis will concentrate on human rights treaties rather than customary international law or international soft law. It bears emphasis that the international human rights regime is not a unified system, but a set of interrelated and overlapping global and regional regimes. (3)

   The U.S. constitutional system will appear frequently among the examples, but more generally, the analysis assumes a constitutional system that provides for authoritative judicial review, whether by a generalist supreme court or a specialized constitutional court (called a "constitutional court" in either case). For treaty regimes, the analysis assumes either an international court or independent expert treaty body authorized to engage in oversight and issue (possibly nonbinding) interpretations of the treaty (all called "tribunals"). (4)

   With this background, Part I.A will define the consensual, suprapositive, and institutional aspects of fundamental rights, and discuss the interaction and conflict among them in determining interpretation at either the national constitutional level or the international level. Part I.B will discuss the bi-level interaction of these aspects, and how it may produce dissonance between the international and constitutional regimes.

   1. Three Aspects of Fundamental Rights

      It is time to define the consensual, suprapositive, and institutional aspects of fundamental rights.

      1. The consensual, suprapositive, and institutional aspects.

         Fundamental rights protected by positive legal regimes commonly exhibit three features. First, their embodiment in positive law gives their enforcement a legitimating basis in political consent. Second, their normative power does not derive solely from their enactment as positive law. Third, as legal rules they operate in an institutional context. These aspects not only characterize fundamental rights, but also exert influence on their interpretation.

         The consensual aspect. Positive fundamental rights normally derive their positive force from some political act that expresses the consent of relevant political actors, or of peoples. National constitutions in the liberal tradition are understood as originating in direct or indirect exercises of popular sovereignty that provide one source of legitimation for the enforcement of the rights they contain. Particular rights provisions may be adopted as part of an entire constitution, and so partake of the same initial consent, or as later amendments. Constitutions may also derive legitimation over time from the satisfaction and ongoing consent of a people living within a constitutional practice.

         These consensual sources of constitutional rights may also provide guidance in the interpretation of the rights, under different interpretive methodologies. "Originalist" or "historical" interpretation may rely on documentary evidence of how rights were understood at the time when initial consent was given. "Evolutive" or "living constitution" methodologies may employ a broader range of historical and contemporary evidence to determine how rights are currently understood to reflect ongoing societal consent. "Textual" or "grammatical" interpretation emphasizes the expressed meaning of the written constitutional provision as the object to which consent was given. "Structural" or "systematic" interpretation may seek guidance in the constitution as a broader consensual context that sheds light on the meaning of particular provisions. These methodologies involve controversial choices concerning the point in time at which to identify the actual or constructive constitution-giver, but they all seek consent within some version of the particular national community.

         The source of consent for international human rights norms is even more complex. Treaties rest on the express consent of the states that are parties. These states may be viewed opaquely as juridical personalities having continuous existence in time (although their governments and even their constitutions may come and go), or in a disaggregated fashion as agents for their citizens. In either case, the enforcement of human rights treaties against individual state parties derives legitimacy from the consent of each state, and from the joint consent of all parties. States may also be viewed as members of the international community, and multilateral treaties with universal or near-universal adherence may be seen as expressing the consent (or perhaps only the consensus) of the international community. Regional human rights treaties, under appropriate circumstances, may be viewed as expressing the consent of a cohesive regional subcommunity.

         As with national constitutions, these sources of consent also provide guidance in the interpretation of human rights treaties. Textual or "ordinary meaning" methodology relies on the phrasing of the treaty provision, as the object to which consent was given by all the parties. (5) Reliance on the travaux preparatoires, like "originalism" in constitutional interpretation, uses documentary evidence from the past to reconstruct the common understanding of the parties at the time when they gave initial consent. (6) (Here the emphasis is on common understanding and justified expectations, not on the particular subjective understanding by each party of the consent that it was giving.) The Vienna Convention also authorizes reference to subsequent agreements among the parties and subsequent practice by them that demonstrate their common interpretation...