[Christopher N.J. Roberts is Associate Professor of Law at the University of Minnesota Law School.]
This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.
The most important studies stimulate a host of unlikely conversations. In this regard, “Getting to Rights,” a path-breaking article that examines the effect of international rights texts on domestic constitutions and practices does not fall short. Its contribution to the literature on rights convergence is already part of an encounter that unfortunately is all too infrequent in academia: an engaging dialogue between quantitative and qualitative scholars. The import of this study, however, extends far beyond the literature on convergence. It has significant implications for the study of rights in areas ranging from anthropology to sociology and history.
Scholarly contributions aside, the authors also happen to be unwitting interlocutors in a conversation that one famous science-fiction writer initiated over seventy years ago. In the earliest days of WWII—long before the Universal Declaration of Human Rights (UDHR) or the United Nations (UN) were the faintest of ideas—H.G. Wells wrote a letter to editor of the Times offering a potential solution for the rapidly expanding crisis: a “Declaration of Rights.” Relying in part upon his ability to conjure the unimagined, he placed before his readers a high prophecy: such a declaration eventually, “… would furnish a criterion for our subsequent treaties and behaviour.” Although Elkins, Ginsburg, and Simmons never mention Wells in their article (nor is it likely that they considered him at all during the course of their work), they are the first scholars to test empirically the substance of his prediction and identify a mechanism through which it operates.
The authors’ data show that on the heels of a post-war surge in the volume of rights (216), a clear correlation emerged between the rights in the UDHR and those rights in domestic constitutions (221). They argue that the UDHR influenced the content of domestic constitutions in the post-WWII moment through a “powerful ‘template’ influence” (221). Second, they show that post-1966 constitutions from states that have ratified the International Covenant on Civil and Political Rights (ICCPR) are more likely to contain ICCPR rights than those state constitutions from states that have not ratified the ICCPR (228). And finally they argue that treaty ratification is responsible for both a direct influence on domestic respect for human rights as well as an indirect effect that operates through “constitutional incorporation” (204).
In this response, I reexamine a few slivers of the historical record—though now with the authors’ findings in hand. In certain cases the existing qualitative data confirms the authors’ findings and in other cases it calls for further investigation. I raise three points: First, similarities in rights texts may result not from a “template” effect, but from the fact that post-WWII rights texts were “reactions” to a common set of challenges and threats. Second, because nominally similar rights are often subject to different interpretations at the local level, in certain settings it is possible that questions of “translation” might provide greater analytic traction than assumptions of “convergence.” Finally, this response concludes with a brief example of how “human rights in history” is itself a very hazy phenomenon that presents unique challenges for quantitative scholarship.
Was the UDHR a “template” or just a similar “reaction” to shared threats?
In his public missive, H.G. Wells actually drew much more from history than his imagination. He noted how in times of tumult from the Magna Carta onwards rights formation had been a reactive phenomenon. The French Declaration of Rights and the US’s Declaration of Independence and its Constitution are of course prime examples of rights texts that emerged in response to external challenges. Indeed, rights texts—be they constitutions, treaties, charters, or declarations—represent a people’s response to shared problems and common threats. They are collective “solutions” written into law.
Using the history of rights formation as a guide, one would anticipate a surge in rights in the aftermath of a depression and in the chaos of two world wars. The author’s findings are entirely consistent with this expectation. But this expectation should not end at domestic shore. If rights formation is a reactive process, there is no reason to assume that the surge should be limited to domestic constitutions. Indeed, in the midst of common international threats, one should expect to see a surge in international rights texts that respond to the threats in kind. This is a hunch to be sure—but it is a hunch that the history seems to support.
In 1939, as the nations of the world acceded to War, Wells advised his readers that the moment was “peculiarly suitable for such a restatement” of the rights of man. He in fact concluded his letter in the Times with his own proposal for a bill of international human rights. Interestingly, his 1939 decalogue stood in the company of many others. During these years, there was an outpouring of international human rights proposals from a number of prominent individuals and groups. Hersch Lauterpacht of Cambridge, Gustavo Gutierrez of Cuba, Alejandro Alvarez of Chile, Rev. Wilfred Parsons of the Catholic Association for International Peace, and Robert Hutchins, President and then Chancellor of the University of Chicago, each gained considerable attention for their own international human rights declarations. Groups such as the Institut de Droit International, the American Jewish Congress, the American Association for the United Nations, the World Government Association, the editorial board of Free World, and the American Law Institute also drafted human rights declarations—all before the 1948 UDHR came into being. A few of them even predated Wells’ declaration. By 1946, the UN Secretariat had at least 12 different drafts of such international bills of human rights in its possession. The UDHR—which, for instance drew upon the ALI’s text—shared much in common with some of these early human rights documents. Others—for instance, Chancellor Hutchins’ “Declaration of Duties and Rights” which invoked “earth, water, air, [and] energy” as the four fundamental “elements of life”—were rather distinct.
While some variation amongst these human rights documents is inevitable, one actually finds significant similarities as well. This is not surprising. The drafters of the world’s first international human rights texts (including the UDHR) worked under the shadow of the same forces that had spread decades of want and fear across the globe. To the extent that rights texts are reactions to shared problems, one should expect to see similar solutions written into law. This applies every bit as much to domestic constitutions as well. Nations, of course, were thrown headlong into the very same turmoil.
In the present study, it is quite possible that the correlation between the rights within the UDHR and those within subsequent domestic constitutions flows not primarily from the UDHR as a “template,” but from prior, common sources. Indeed, all of these declarations, treaties and constitutions were part of the same rights explosion, which itself, surged into being in very much the same way others had over the centuries: as a reaction to common threats and challenges. This mechanism can perhaps explain the surge in similar rights that preceded the UDHR that the authors note on page 218.
It would be very interesting to see how the other early human rights texts correlate with domestic constitutions. Depending on how they score relative to the UDHR, they might actually help to rule out the competing explanation outlined above. On the other hand, since it cannot be argued, for instance, that Chancellor Hutchins’ declaration served as a template for subsequent domestic constitutions, if the authors ran their analysis and found that it correlated highly with domestic constitutions, such a finding would speak to the likelihood that there are indeed other forces at work beyond the UDHR acting as a template.
Do nominally similar rights possess identical local-level translations?
The clearest qualitative support for the authors’ template proposition would seem reside within the many domestic constitutions that explicitly name the UDHR as a source of rights (including Afghanistan, Cambodia, Argentina, Andorra, Romania, Portugal, Benin, Cameroon, Burundi, Somalia, Tanzania, Burkina Faso, Congo, Djibouti, Niger, Angola, Ethiopia, and Mozambique). It is interesting, however, to note that African states predominate this list. Moreover, a large portion of the African states that explicitly mention the UDHR in their constitutions also invoke the African Charter—a regional human rights text, that itself explicitly “draw[s] inspiration” from the UDHR. These facts instantly raise a series of questions about the precise nature of the causal mechanism(s) underlying the authors’ arguments about human rights convergence. What role, for example do cultural, ethnic, regional, linguistic, or ideological factors play? In subsequent studies it would be interesting to see exactly how specific regional rights texts figure into the causal stories surrounding both the UDHR and the ICCPR.
A broader issue looms. If it is true that convergence (at least some of the time) is more of a multi-phase process in which rights filter through a series of international and regional rights texts, institutional apparatuses, disparate cultural motifs, and unique historical struggles on their way to local level incorporation and implementation, what appears as an identical right in name could manifest within an entirely distinct interpretive guise at the local level. During the drafting of the Covenant in the early 1950s, for example, the United States, the USSR and, smaller, non-western states each bestowed entirely distinct interpretations upon socioeconomic rights. Decades later, even the more widely accepted category of civil and political rights within the ICCPR is not free from differing interpretations. The incredible number of Reservations, Understandings, and Declarations that states use to clarify their own positions provides a window into the disparate meanings and translations that states bestow upon nominally identical rights.
Depending upon the strength of the intervening variables and the nature of the process that may recondition the meanings of rights along their journey towards domestic law, relying upon a strict analytic notion of “convergence” may obfuscate the many practical and conceptual divergences that exist beneath nominal similarities in international and local level rights texts. In certain cases “convergence” as a motivating framework may cede explanatory power to questions of “translation” (see Goodale & Merry). Notwithstanding these conceptual issues, the authors’ use of Freedom House data enables them to focus on the actual practices on the ground and to bypass such issues of translation.
Human Rights in History
In Part IV of the paper, the authors argue that a state’s ratification of the ICCPR has an independent effect upon whether those rights within the treaty will eventually become part of that state’s domestic constitution (221). A key part of their analysis relies on an analysis of the similarity of pre-1966 and post-1966 constitutions and the ICCPR. The key year of 1966 represents the date the ICCPR was adopted and opened for signature, ratification and accession by the General Assembly. The difficulty with using this year for their pre/post analysis is that by 1966 virtually all of the rights within the text already had been drafted and publicly available for over a decade. A comparison of the 1954 draft text and the final 1966 text shows the two versions are remarkably similar, with only a few significant rights additions or deletions (the 1954 draft version is available at page 65 of UN Doc E/CN.4/705). It is likely that many states that were going to ratify the ICCPR or adopt similar provisions in their own constitutions had knowledge of what was in the text long before 1966. As is so often the case, the fuzziness of history challenges the exactitudes of quantitative methods. Nevertheless, the choice to use 1966 as the relevant year might actually bias downwards the authors’ findings and suggest an even stronger relationship than exhibited.
“Getting to Rights” will no doubt continue to engage human rights scholars from diverse methodological orientations in lively conversations and debate well into the future. This valuable contribution enables the production of new knowledge and simultaneously demands a rethinking of our existing understandings. In scholarship and in practice, getting to rights is inevitably an ongoing process. As world events transpire and unanticipated threats emerge, new treaties and constitutions will come into being and novel configurations of rights will emerge. Thanks to the unparalleled source of data within the CCP, this important line of inquiry will be able to keep pace.