International Human Rights

• Author: Louis Henkin
• Pages: 1386-1389

Page 1386

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

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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...