|Preamble section 3:|
|Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,|
Today, human rights are entrenched in the constitutions of almost all of the world's 180 states (Henkin, Constitutionalism and Rights, 383). One can approach this phenomenon from two perspectives. First, the adoption of liberal-style constitutions (or at least constitutions with a significant liberal component) can be seen as a horizontal trend among states, a consequence of the influence and pressure exerted by powerful countries in the liberal constitutional tradition, such as that existing in the United States. For those states achieving independence upon decolonization and adopting constitutions in the liberal model, the primary influence may also have been the constitutional and political orders of their former colonial powers. Henkin refers to this process as the "universalization" of human rights, a component of the spread of constitutionalism.
A second perspective stresses the links between the spread of such types of constitutions and the achievements of the human rights movement in constructing an international system of norms, institutions, and processes. One could describe these links and their related influence and pressure as vertical rather than horizontal in character, since they derive from international law and international institutions "above" the state rather than from other states. Henkin refers to this process as the "internationalization" of human rights: the elevation of human rights as a matter of international law, politics, and relations.
Both horizontal and vertical influences and pressures have been simultaneously at work during the post Cold War processes of constitutional reform. They have been intertwined in a complex way, for the very states exerting a "horizontal" influence have simultaneously been the creators and members of the international system exerting pressure from above. International human rights have thus figured ever more pervasively in the discourse of international relations and have exerted demands on states that in many respects are best met through constitutions assuring the conduct required by the requisite treaties to the citizens of the state.
These constitutions have both "borrowed" from other states and revealed, through their governmental structure and declarations of rights, the influence on them of the Universal Declaration of Human Rights and the two basic covenants (Steiner and Alston, 988). The end result, as prefigured in the third recital of the Preamble, has been the gradual disappearance of any asserted right to rebellion against tyranny and oppression, and the increasing acceptance of the concept of constitutionalism and its constituent elements of democracy, human rights, and the rule of law.
Constitutionalism and Rights: The Influence of the United States Constitution Abroad eds. Louis Henkin and Albert J. Rosenthal (1990) at 383 ff.
International Human Rights in Context: Law, Politics, Morals eds. Henry J. Steiner and Philip Alston at 988.
Peter Danchin, Columbia University