Human Rights and International Constitutionalism

Abstract

As both a descriptive and normative enterprise, is currently one of the leading approaches to international law, especially in parts of Europe. Within this enterprise, the rapid development of international human rights law is often taken to be central, but exactly how or why this promotes constitutionalism at the international level remains unclear. In this article, I attempt to clarify and assess the role of human rights in discussions of international constitutionalism. I do so by focusing on the comparison between domestic law and international human rights law and asking the following two threshold questions. First, how different are these two legal systems and, in particular, is there anything constitutional about the latter, as international constitutionalists implicitly or explicitly claim? Second, why have both systems? Does international human rights law perform any distinctive functions over and above domestic bills of rights that extend the idea or practice of constitutionalism? On this first threshold question, I distinguish and evaluate three more specific claims as to what is about international human rights law: (1) that it has status within international law; (2) that, regardless of its precise legal status vis-a-vis other types of international law, the human rights system is a constitutionalized regime of international law like certain others, most paradigmatically the European Union; and (3) that international human rights law is a critical part of the case for rejecting the traditional horizontal conception of international law as a whole (the sovereign equality of states) in favor of a more vertical, or constitutionalist, conception. I consider the strengths and weaknesses of each of these three claims in turn. The second threshold question raises the issue of subsidiarity. What additional contribution, if any, does international human rights law make to the general development of constitutionalism? Apart from filling a number of important contingent gaps in domestic bills of rights, I suggest that it performs at least two unique functions. First, it creates a new, external stage in the historical and institutional development of constitutionalism. Second, international human rights law clarifies and enshrines the distinct normative basis for the protection of fundamental rights as rights of human beings rather than of citizens.