Human Rights as International Constitutional Rights

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?

Keywords: human rights, international bill of rights, international constitutionalism, international constitutional law, bills of rights