Discussion

1. Universalizing and Internationalizing Human Rights
2. Examples of the Universalization of Human Rights in Post-Apartheid South Africa
3. The United States and International Human Rights
4. Economic, Social and Cultural Rights
5. In Cooperation with the United Nations

Universalizing and Internationalizing Human Rights

According to Henkin, the significance of the Universal Declaration lies, inter alia, in its achievement of internationalizing and universalizing human rights.¹ The Declaration "universalized" human rights by promoting a constitutional ideology, accepted in a few countries, into a standard of constitutionalism for all countries. The concept of individual human rights has become accepted by all societies and governments and is reflected in national constitutions and law. A recent example of this phenomenon is the post-apartheid South African Constitution of 1996, which is discussed below.

The Universal Declaration "internationalized" human rights by transforming matters that had previously been subject to exclusive domestic jurisdiction--"sovereignty"--into matters of international concern, putting them permanently on the international political agenda, and providing the foundation for a sturdy edifice of international norms and institutions. International human rights have accordingly become a proper subject for diplomacy, international institutions, and international law.

Constitutionalism--Universalizing Human Rights

Constitutionalism can be defined by its common elements as constituted through many variations in different constitutions. It declares the sovereignty of the people and derives its authority from the will of the people. It prescribes a blueprint for representative government responsible and accountable to the people through universal suffrage at periodic elections. Governmental authority is to be exercised only in accordance with law established pursuant to constitutional processes and consistent with constitutional prescriptions and limitations. Government is for the people, but is limited by a bill of individual rights. It is in this last respect that the Universal Declaration has had the greatest influence--by being drawn upon, emulated or directly incorporated into national constitutions as a bill of rights limiting governmental power.

Many constitutional systems divide governmental authority by some separation of powers or other checks and balances. (Some systems divide authority "vertically" by forms of federalism.) Increasingly, constitutions provide for constitutional review by a court or other independent institution with authority to monitor compliance with constitutional prescriptions and to provide remedies against their violation. Constitutionalism implies also that the constitution cannot be suspended, circumvented or disregarded by political organs of government, and that it can be amended only by procedures appropriate to change of constitutional character and that give effect to the will of the people acting in a constitutional mode.

Even constitutions committed to constitutionalism have included special accommodations responding to particular historical, political, or demographic considerations. For example, some modern constitutions have provided special representation in parliament for women. Other constitutions have provided for other forms of "benign discrimination" ("affirmative action") in constitutional political arrangements for ethnic groups, at least temporarily. Some constitutions have given constitutional status to a particular subject, removing it from disposition by the ordinary political process.

See further Louis Henkin, "Constitutions and the Elements of Constitutionalism," Occasional Paper Series, November 1992, Center for the Study of Human Rights, Columbia University.

Internationalizing Human Rights

Strictly speaking, "international human rights," that is, human rights as a subject of international law and politics, are to be distinguished from individual rights in national societies under national legal systems, but the two are not unrelated in law or in politics. The international system accepts human rights as rights that, according to agreed upon moral principles, the individual should enjoy under the constitutional-legal system of his or her society. However, national protections for accepted human rights are often deficient. International human rights are thus intended to supplement, rather than to replace, the national protection of human rights, and to induce states to remedy those deficiencies. The international law of human rights is implemented largely by national law and institutions; it is satisfied when national laws and institutions are sufficient.

See further Louis Henkin, "The internationalization of human rights" in The Age of Rights at 13.

See also Louis Henkin, "Human Rights: Ideology and Aspiration, Reality and Prospect" in Samantha Powers and Graham Allison (eds.), Realizing Human Rights: Moving From Inspiration to Impact.

Endnotes

1. See Louis Henkin, "The internationalization of human rights" in The Age of Rights at 13 and Louis Henkin, "Human Rights: Ideology and Aspiration, Reality and Prospect" in Samantha Powers and Graham Allison (eds.), Realizing Human Rights: Moving From Inspiration to Impact.

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