Gerald Neuman

Stanford Law Review
Human Rights and Constitutional Rights: Harmony and Dissonance

Author(s): Gerald L. Neuman
Source: Stanford Law Review, Vol. 55, No. 5 (May, 2003), pp. 1863-1900
Published by: Stanford Law Review
Stable URL: http://www.jstor.org/stable/1229566
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HumanRights and ConstitutionalRights:
Harmonyand Dissonance
GeraldL. Neuman*
INTRODUCTION.................................................................................................... 1863
I. DUALPOSITIVIZATION ANDTHEPRODUCTION OFDISSONANCE ................... 1864
A. ThreeAspects of FundamentalRights.............................................. 1866
1. The consensual, suprapositive,and institutionalaspects ................ 1866
2. Overlapsand divergenceamong the three aspects........................... 1872
B. Potential Dissonance Between the Internationaland
ConstitutionalRegimes................................................................................... 1873
1. Divergence withinaspects ............................................................... 1874
2. Conflictsacross aspects.................................................................... 1879
II. METHODSFORREDUCINGDISSONANCE
........................................................ 1880
A. InternationalAccommodationsto National ConstitutionalRights... 1882
1. Interpretation.................................................................................... 1882
2. Savings clauses ................................................................................ 1886
3. Reservations. .................................................................................... 1888
B. National ConstitutionalAccommodationsto International
Human Rights................................................................................................. 1890
1. Giving constitutionalstatus to humanrights treaties ...................... 1890
2. Mandatoryinterpretivedirection .................................................... 1895
3. Voluntaryconsideration .................................................................. 1897
CONCLUSION
..........19.......... .............. ......... ................ 1900
INTRODUCTION
Two leading systems exist today for protecting the fundamental rights of
individuals: constitutional law and human rights law. Both systems assert an
ultimate authority to evaluate whether governmental practices comply with
fundamental rights, and each system sits potentially in judgment over the other.
* HerbertWechsler Professorof Federal

Jurisprudence,ColumbiaLaw School. I owe
thanksto many colleagues, includingPhilip Alston, Jose Alvarez, George Bermann,Grainne
de Buirca,Alejandro Garro,Louis Henkin, Harold Hongju Koh, Monica Pinto, Ruth Rubio
Marin, JudithResnik, Jeremy Waldron,JoaquinZuckerberg,and especially Neil Walker for
conversationsand criticisms that helped inform or correctthis Article. I am also gratefulto
the EuropeanUniversity Institutefor its hospitality in the fall of 2001, when the argument
took shape. Remainingerrorsare mine.
1863
1864 STANFORDLAWREVIEW [Vol. 55:1863
For liberalstatesthatactivelyenforceconstitutionalnorms,the relationship

between these two systems assumes increasing importance. Some U.S.
observers-and judges-insist that constitutionallaw should maintain its
distance from the internationalhuman rights regime.1 Other observers
subsumethis relationshipin a more generalizedaccountof transnationallegal
communication.2
In this Article, I pursue a third alternative,focusing specifically on the
institutionalconsequencesof embodyingthe human rights ideology in two
parallelregimes of positive law. In elaboratingthe content of fundamental
rights,nationalcourtsof liberalstatesand internationaltribunalsproceedfrom
multipleinterpretiveinfluences. I proposea frameworkfor categorizingthese
positive and normativefactors, and examining their interactionacross the
national and internationallevels. This examination reveals sources of
convergence,but also sourcesof dissonancebetween constitutionalrightsand
human rights. The frameworkalso assists in the evaluation of methods
employed at either the national or the internationallevel to reduce such
dissonance.
Part I elaborates the framework. It first describes three aspects of
fundamentalrights,the consensual,suprapositive,and institutionalaspects,and
theirpossibly conflictinginfluenceson interpretation of fundamentalrights at
either the constitutionallevel or the internationallevel. It then shows how
these threeaspectsmay also interactacrosslevels, andproducedifferentkinds
of divergencesor conflicts between internationalhumanrights and national
constitutionalrights. Some of these divergencesreflectthe centralpurposeof
the internationalhuman rights system-to prompt reform of national
practices-but others may result from the dual positivizationof fundamental
rights. PartII examinesmethodsemployedby the internationalhumanrights
regime and by variousconstitutionalregimesto preventor reducedissonance
betweenthem. Ultimately,the benefitsof accommodationbetweenthe systems
will vary depending on the characteristicsof the particularstate and the
particularhumanrightstreaty. Some types of divergenceappearunavoidable,
or even desirable.
I. DUAL POSITIVIZATION
AND THEPRODUCTIONOF DISSONANCE
In this Part, I will distinguishthree importantfeatures sharedby both

national constitutionalrights and internationallyprotected human rights:
consent, suprapositivity,and institutionalcontext. Their coexistence at the
nationalconstitutionallevel shouldbe familiarto U.S. readers,but identifying
1. See, e.g., Atkins v. Virginia, 536 U.S. 304, 324-25 (2002) (Rehnquist, C.J.,
dissenting);id. at 347-48 (Scalia, J., dissenting).
2. See generally Anne-Marie Slaughter, Judicial Globalization, 40 VA. J. INT'LL.
1103 (2000).
May 2003] HUMANRIGHTSAND CONSTITUTIONAL
RIGHTS 1865
them within each system makes it possible to keep track of their parallel
operation and especially their interaction across the two levels.
Before introducing these three aspects of rights, it would be useful to
clarify some terminology. I will use the term "human rights" only in reference
to internationally recognized human rights (including some rights enacted at the
national level for the purpose of implementing international obligations), and
will refer to individual rights protected by national constitutions as
"constitutional rights." The same right, abstractly conceived, e.g., freedom of
expression, may be both a human right and a constitutional right. For ease of
reference, I will use the phrase "fundamental rights" as an umbrella term
including both the constitutional rights and human rights.
Given the context of this Symposium, the analysis will concentrate on
human rights treaties rather than customary international law or international
soft law. It bears emphasis that the international human rights regime is not a
unified system, but a set of interrelated and overlapping global and regional
regimes.3
The U.S. constitutional system will appear frequently among the examples,
but more generally, the analysis assumes a constitutional system that provides
for authoritative judicial review, whether by a generalist supreme court or a
specialized constitutional court (called a "constitutional court" in either case).
For treaty regimes, the analysis assumes either an international court or
independent expert treaty body authorized to engage in oversight and issue
(possibly nonbinding) interpretationsof the treaty (all called "tribunals").4
With this background,Part I.A will define the consensual, suprapositive,and
institutionalaspects of fundamentalrights, and discuss the interactionand conflict
among them in determininginterpretationat either the national constitutionallevel
or the internationallevel. Part I.B will discuss the bi-level interaction of these
aspects, and how it may produce dissonance between the international and
constitutionalregimes.
3. The EuropeanUnion, however, is neithera treatyregime nor a nationalconstitutional

system as those terms are used in this Article-it is a supranationalsystem that may be on the
way towardadoptingits own constitution. Explainingrightsprotectionat the EuropeanUnion
level and drawing it into the discussion would unduly lengthen this Article. It should be
observed, however, that the EuropeanUnion may offer a different,postnationalmodel of
institutionalintertwinement. That model goes beyond the analysis presentedhere, which is
limited to the thinner institutionalrelationshipsthat currentlyprevail outside the European
Union. Substantialattention,in contrast,will be given to the regionalhumanrightssystemof the
Councilof Europe,which is geographicallybroaderandinstitutionallythinnerthanthe European
Union. Occasionalreferencesto the "EuropeanCourt"will be shorthandfor the EuropeanCourt
of HumanRights,not the EuropeanCourtof Justice.
4. Standardexampleswould includethe EuropeanCourtof HumanRights and the Inter-
AmericanCourtof HumanRights(as courts),and the U.N. treatybodies underthe Interational
Covenanton Civil and PoliticalRights (ICCPR)and the InternationalCovenanton Economic,
Social and CulturalRights(ICESCR).
A. Three Aspects of Fundamental Rights
It is time to definethe consensual,suprapositive,

and institutionalaspectsof
fundamental rights.
1. The consensual, suprapositive, and institutional aspects.
Fundamentalrightsprotectedby positive legal regimescommonlyexhibit

threefeatures. First,theirembodimentin positive law gives theirenforcement
a legitimatingbasis in political consent. Second, theirnormativepower does
not derive solely from their enactmentas positive law. Third,as legal rules
they operatein an institutionalcontext. These aspects not only characterize
fundamentalrights,butalso exertinfluenceon theirinterpretation.
The consensualaspect. Positive fundamentalrightsnormallyderivetheir
positive force from some political act that expresses the consent of relevant
politicalactors,or of peoples. Nationalconstitutionsin the liberaltraditionare
understoodas originatingin director indirectexercisesof popularsovereignty
that provideone source of legitimationfor the enforcementof the rightsthey
contain. Particularrights provisions may be adopted as part of an entire
constitution,and so partakeof the same initialconsent,or as lateramendments.
Constitutionsmay also derive legitimationover time from the satisfactionand
ongoingconsentof a people living withina constitutionalpractice.
These consensual sources of constitutionalrights may also provide
guidance in the interpretationof the rights, under different interpretive
methodologies. "Originalist"or "historical"interpretationmay rely on
documentaryevidence of how rightswere understoodat the time when initial
consent was given. "Evolutive"or "living constitution"methodologiesmay
employ a broaderrangeof historicaland contemporaryevidence to determine
how rights are currently understoodto reflect ongoing societal consent.
"Textual"or "grammatical" interpretationemphasizesthe expressedmeaning
of the writtenconstitutionalprovisionas the objectto whichconsentwas given.
"Structural"or "systematic" interpretationmay seek guidance in the
constitutionas a broaderconsensualcontextthatsheds light on the meaningof
particularprovisions. These methodologies involve controversialchoices
concerningthe point in time at which to identify the actual or constructive
constitution-giver,but they all seek consent within some version of the
particularnationalcommunity.
The source of consent for internationalhumanrightsnormsis even more
complex. Treatiesrest on the express consent of the states that are parties.
These states may be viewed opaquely as juridical personalities having
continuous existence in time (although their governmentsand even their
constitutionsmay come and go), or in a disaggregatedfashion as agents for
theircitizens. In eithercase, the enforcementof humanrightstreatiesagainst
individualstate partiesderives legitimacyfrom the consentof each state, and
RIGHTS 1867
from the joint consent of all parties. States may also be viewed as members of
the international community, and multilateral treaties with universal or near-
universal adherence may be seen as expressing the consent (or perhaps only the
consensus) of the international community. Regional human rights treaties,
under appropriatecircumstances, may be viewed as expressing the consent of a
cohesive regional subcommunity.
As with national constitutions, these sources of consent also provide
guidance in the interpretation of human rights treaties. Textual or "ordinary
meaning" methodology relies on the phrasing of the treaty provision, as the
object to which consent was given by all the parties.5 Reliance on the travaux
preparatoires, like "originalism" in constitutional interpretation, uses
documentary evidence from the past to reconstruct the common understanding
of the parties at the time when they gave initial consent.6 (Here the emphasis is
on common understanding and justified expectations, not on the particular
subjective understanding by each party of the consent that it was giving.) The
Vienna Convention also authorizes reference to subsequent agreements among
the parties and subsequent practice by them that demonstrate their common
interpretation of the treaty, as well as to other rules of international law
applicable between them.7 This methodology allows the ongoing consent of
the relevant group of states to legitimate and guide enforcement of more
specific interpretations than may have been expected at the outset. Human
rights tribunals have found other, more detailed human rights treaties and
international soft-law instruments useful in elaborating the meaning of broadly
phrased treaty norms.8 Reliance on these sources may result in treaty
interpretations that rest on the consent or consensus of the group of parties,
despite the lack of consent of particular parties. In the case of treaties with
universal or near-universal adherence, this may also be viewed as the consent
of the internationalcommunity.9
5. ViennaConventionon the Law of Treaties,May 23, 1969, art.31, para.1, 1155

U.N.T.S.331, 340 [hereinafter "VCLT"].
6. See id. art. 32. The Vienna Conventiondesignatesthe use of travauxas a
"supplementary means"of interpretation,
subordinate
to thoseincludedin article31.
7. See id. art.31, para.3.
8. See J.G. MERRILLS,THE DEVELOPMENTOF INTERNATIONAL LAW BY THEEUROPEAN
COURTOF HUMANRIGHTS218-26 (2d ed. 1993); F. Matscher,Methods of Interpretation
of
the Convention, in THE EUROPEANSYSTEMFORTHEPROTECTION
OF HUMANRIGHTS63, 74-
75 (R. St. J. Macdonald,
F. Matscher& H. Petzoldeds., 1993);A.A. Can9adoTrindade,
Co-
Existenceand Co-Ordinationof Mechanismsof International Protectionof HumanRights
(At Global and Regional Levels), 1987-II RECUEILDES COURS9, 101-03. The term "soft
law"refersto a varietyof nonbindinginternational
instruments,rangingfromtreatieswith
contenttoo vagueor weakto bindthepartiesto voluntaryresolutionsandcodesof conduct
to whichstateshavenot agreedto be bound.See C.M.Chinkin,TheChallengeof SoftLaw:
Developmentand Change in InternationalLaw, 38 INT'L& COMP.L.Q. 850, 851 (1989).
9. International
law also includesothercategoriesof bindingpositivelaw: customary
international
lawandgeneralprinciples.Thesenontreaty normscanbindindividualstatesin
theabsenceof anyexpressedconsent,or possibly(in the caseofjus cogensnorms)overthe
The suprapositive aspect. All constitutional norms and treaty norms claim
consensual bases, but fundamental rights norms have another aspect. Positive
fundamental rights embodied in a legal system are often conceived as
reflections of nonlegal principles that have normative force independent of their
embodiment in law, or even superior to the positive legal system (hence the
adjective "suprapositive"10). The alternative normative systems may include
natural law, religious traditions, universal morality, or the fundamental ethical
values of a particular culture. The legal rights are sometimes described as
positivizations or concretizations of preexisting suprapositive norms, or legal
provisions are explained as merely recognizing preexisting suprapositive rights.
The suprapositive force of the norms provides one source of legitimation for
the enforcement of the legal norms. Reference to the assumed content of the
suprapositive norms may provide one source of guidance in the interpretation
of the legal norms.11 That content may be regarded as inherent in their
ordinary meaning, or indicate the goal to be served by teleological or purposive
interpretation.
The suprapositive aspect of a fundamental right can be the subject of
especially broad-ranging and rich debate within particular societies and across
national borders. Some of these debates may be loosely linked, or not directly
connected at all, to the positive version of the right under discussion. In other
cases, constitutional discourse may play an important role in shaping the
fundamental values of the society, so that originally positive rights acquire
suprapositive resonance.
Not all fundamental rights have suprapositive character;some fundamental
rights may not correspond directly to any suprapositive principle accepted
within the relevant society. Instead, some fundamental rights may be highly
indirect means for serving more remote suprapositive values (any example is
risky, but consider the right to grand jury indictment in the United States), and
it is possible that some fundamental rights have no suprapositivejustification at
all.12 In international human rights law it is claimed that all international
objection of individual states. See RESTATEMENT (THIRD)OF THEFOREIGNRELATIONS LAW

OF THEUNITED STATES ? 102 & cmts. d, k (1987). Such norms rest on the consent of the
internationalcommunityand to a lesser extent on the consent of those states that contributed
affirmatively to the establishmentof the norm. They are not the subject of this Article,
however, and are mentionedonly in connectionwith treatynorms.
10. In referringto these principles as suprapositive,I do not mean to assert that they
apply of their own force within the legal system to trumppositive law, but ratherthat they
supply an externalstandardof normativeevaluation,which the legal system fully or partially
internalizesas a positive fundamentalright.
11. On the other hand, when the content of the suprapositive norm is disputed,
embodimentin positive law may be designed as a choice or compromiseamong conflicting
interpretationsof the suprapositive norm, and in societies where competing nonpositive
normative systems both recognize versions of a particularnorm, the positivization may be
designed to avoid the necessity for referenceto the competing systems.
12. For example, a national constitutionmight continue to guaranteea particularright
for historicalreasons that have no contemporaryresonanceeven within the nationalsociety.
RIGHTS 1869
human rights derive ultimately from the inherent dignity of the human person,
and thus at a minimum serve suprapositive ends indirectly.
The suprapositive aspect of international human rights distinguishes that
category of international treaty from international treaties generally, many of
which involve self-interested stipulation of the terms of technical cooperation
or bargaining for commercial advantage. Moreover, human rights law
predominantly consists of obligations on states to respect certain principles in
their treatment of their own nationals, rather than obligations conferring direct
benefit on other states.13 It would be erroneous to claim that other treaty norms
never have suprapositive aspects, or that suprapositive considerations wholly
dictate the content and interpretation of human rights treaties. But the
pervasiveness and prominence of the suprapositive aspect in human rights law
affects the international law and politics of the field, and justifies separate
analysis of the category.
The institutional aspect. Positive fundamental rights are also legal rules
that may be designed in a manner that facilitates compliance by the holders of
the corresponding duties and that facilitates effective oversight of compliance
by those organs that have oversight responsibilities. Institutional realities may
therefore influence both the drafting and the later interpretation of the legal
provisions that articulate these rights.
This institutional aspect of fundamental rights need not represent a third
source of legitimation for rights, but rather may reflect practical constraints on
drafting and interpreting rights that already derive legitimacy from
suprapositive or consensual bases (or both).14 The institutional aspect can be
justified by its contribution to making the protection of such rights effective.
In terms of drafting, some rights provisions, or features thereof, are best
understood in institutional terms. For example, bright-line age limits in human
rights treaties may act as proxies for more difficult individualized inquiries, in
order to create rules with which states are capable of complying.15 One of the
13. Predominantly,not exclusively: Most humanrights norms extend both to nationals

and nonnationalssubjectto the state's jurisdiction;a few humanrights norms
apply solely to
nonnationals;and states may enjoy indirect benefits from compliance with human rights
norms by other states.
14. A certain level of publicity, prospectivity, and clarity may be
necessary for the
rights regime to comportwith basic rule-of-law values as a legal regime. To that extent, the
institutional aspect can reflect a third source of legitimation distinct from the consensual
basis of the rules and their suprapositivecontent. But institutionalconsiderationsextend
considerablybeyond that function.
15. See, e.g., Convention on the Rights of the Child, G.A. Res. 44/25, U.N.
GAOR,
44th Sess., Supp. No. 49, art. 38, para.2, at 167, U.N. Doc. A/44/736
(1989), reprintedin 28
I.L.M. 1448, 1470 (1990) [hereinafterCRC] ("StatesPartiesshall take all feasible measures
to ensure thatpersons who have not attainedthe age of fifteen years do not take direct
partin
hostilities.");AmericanConventionon HumanRights, adoptedJuly 18, 1978, art. 4, para. 5,
1144 U.N.T.S. 123, 146 [hereinafter ACHR] ("Capitalpunishment shall not be
imposed
upon persons who, at the time the crime was committed,were under 18 years of age or over
70 years of age ....").
explanations for the division of the draft covenant on human rights into
separate Covenants on Civil and Political Rights and Economic, Social and
Cultural Rights was the belief that different standards of compliance and
different methods of oversight were appropriate to different kinds of rights.
Similar concerns, about the desirability of judicial enforcement of economic
and social rights at the national level, have induced some states not to specify
such rights in their constitutions, or to designate them as nonjusticiable state
goals.16
Institutional concerns also influence the interpretation of fundamental
rights.17 For example, broadly phrased norms governing police behavior are
sometimes interpreted in a manner that produces bright-line rules that police
can follow.18 Where constitutional rights are enforced by national courts, the
capabilities and limitations of judicial procedure influence the way that courts
elaborate the rights that they enforce. Thus, for example, U.S. law judges have
expressed insecurity about their ability to assess the logistical needs of the
armed forces or to evaluate strategies for assisting the mentally disabled, and
have modulated their application of equality rights accordingly.19 Formulaic
standards of review, like strict scrutiny and the rational basis test in U.S. law,
often result from efforts to institutionalize the protection of rights.20
Article 14 of the InternationalCovenant on Economic, Social and CulturalRights is a

pervasively institutionalprovision:
EachStatePartyto the presentCovenantwhich,at the timeof becominga Party,has not
been able to securein its metropolitanterritoryor otherterritoriesunderits jurisdiction
compulsory primaryeducation,freeof charge,undertakes, withintwo years,to workoutand
adopta detailedplan of actionfor the progressiveimplementation, withina reasonable
numberof years,to be fixed in the plan,of the principleof compulsoryeducationfree of
chargeforall.
InternationalCovenanton Economic, Social and CulturalRights, adoptedDec. 16, 1966, art.
14, G.A. Res. 2200(A), U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc. A/6316
(1966), 993 U.N.T.S. 3, 9, entered intoforce Jan. 3, 1976 [hereinafterICESCR].
16. Such institutionallydriven choices about rights should be distinguished from the
choices made by other states, where particular rights are regarded as substantively
undeservingof constitutionalrecognition.
17. See Richard H. Fallon, Jr., The Supreme Court, 1996 Term-Foreword:
Implementingthe Constitution,111 HARV.L. REV.56, 61-67 (1997).
18. See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318, 346-47 (2001) (accepting
need for readily administrable Fourth Amendment rules as justification for permitting
pointless arrest for misdemeanor); New York v. Belton, 453 U.S. 454, 458-60 (1981)
(emphasizing need for straightforwardrules to guide police officers concerning scope of
searchesincidentto arrest).
19. See, e.g., City of Cleburnev. CleburneLiving Ctr., 473 U.S. 432, 442-43 (1985)
(stressing that policies toward the mentally retarded raise technical issues ill-suited to
judicial resolution through heightened equal protection scrutiny);Rostker v. Goldberg, 453
U.S. 57, 65-66, 71 (1981) (stressing lack of judicial competenceand need for greatdeference
to congressionaljudgment in evaluatinggender discriminationchallenge to selective service
legislation).
20. Not all formulaic standards, however, are judicially derived. Some rights
provisions expressly embody such standards,such as the reasonableness criterion of the
Fourth Amendment, or the "necessary in a democratic society" standard that appears
RIGHTS 1871
Similarly, the interpretation of international human rights treaties is also

influenced by institutional concerns. One common maxim of treaty
interpretation is the principle of effectiveness, which indicates that ambiguous
treaty provisions should be interpretedin a manner that enables them to achieve
their effect.21 International tribunals performing treaty oversight engage in a
practice of interpretationinfluenced by their own internal constraints and by the
daunting realities of international enforcement. International tribunals are
heterogeneous bodies composed of members from differing legal systems; this
can be both a strength and a weakness. It enhances their external legitimacy,
the relevant expertise, and the diversity of influences on norm interpretation.
However, the range of perspectives and styles of legal reasoning among the
members may make it more difficult for them to agree, and may produce
compromise formulations that are conclusory, opaque, or equivocal.22
International bodies may be very restricted in their resources and in the
ancillary powers by which they can induce the cooperation of the parties in the
proceedings. Some lack the power to adopt binding decisions, and others lack
powers to ensure compliance with decisions that are binding.23
These limitations can affect not only the interpretation of the tribunal's
own procedural rules but also the interpretationof the human rights provisions
the tribunal oversees. For example, the limited resources and the insufficient
investigatory capacity of the European Court of Human Rights have surely
influenced its development of increasingly elaborate requirements of national
investigation and prosecution of homicide as positive duties implied from the
article 2 right to life.24 The margin of appreciation doctrine in European
repeatedlyin the EuropeanHumanRights Convention. These standardsmay then be subject

to furtherjudicial supplementation.
21. See MERRILLS,supra note 8, at 98; H. Lauterpacht,RestrictiveIntepretationand
the Principle of Effectivenessin the Interpretationof Treaties,26 BRIT.Y.B. INT'LL. 48, 67-
69 (1949).
22. Cf Henry J. Steiner, Individual Claims in a Worldof Massive Violations: What
Role for the Human Rights Committee?, in THE FUTUREOF UN HUMANRIGHTSTREATY
MONITORING 15, 39, 43 (Philip Alston & James Crawford eds., 2000) (noting that the
committee's reasoning often remains "covert, secreted within formal opinions that merely
state rather than argue towards conclusions," and that the effort to reach consensus "has
often purged the conclusions of controversialmatteron which membersdiffer"). But see id.
at 44-45 (rejectingthe view that differences in legal culturesnecessitate this style of opinion
writing).
23. See, e.g., MERRILLS, supra note 8, at 12 (noting the binding character of the
judgments of the European Court of Human Rights); Christina M. Cema, The Inter-
American Systemfor the Protection of Human Rights, 95 AM. SOC'YINT'LL. PROC.75, 77
(2001) (discussing limited compliance with judgments of the Inter-AmericanCourt of
HumanRights); Steiner,supra note 22, at 23-24 (noting the HumanRights Committee's lack
of power to give binding ordersto states).
24. See, e.g., Jordanv. United Kingdom, App. No. 24746/94 (Eur. Ct. H.R. May 4,
2001), http://www.echr.coe.int/Eng/Judgments.htm (finding proceduralviolation of article 2
resultingfrom respective deficiencies of police investigation,prosecutor'schargingdecision,
human rights law, which varies the intensity of the European Court's review of
national determinations, rests in part on institutional considerations regarding
the ability of national governments to evaluate local conditions.25
2. Overlaps and divergence among the three aspects.
Within a system of national constitutional rights, and within the

international human rights system, the relationship among these three aspects
of a fundamental right can be complex. As is well-known in national
constitutional theory, a particular claim of right may draw support from all
three aspects, or these aspects may point in different directions. The most
persuasive account of the suprapositive content of a right may contradict the
contours of the right as understood by those who gave consent to the instrument
(and perhaps as documented in the preparatorywork). Direct application of the
suprapositive account may be too complicated to produce an enforceable rule,
and the content of the right may need to be contracted or extended as a result of
this institutional consideration.
Some of these conflicting tendencies may be resolved by the voluntary
alignment of consent with other aspects. For example, the adopters of a
constitution or a treaty might agree prospectively to be bound by the
suprapositive content of a right, as it is understood from time to time. (Of
course, this could shift the source of disagreement from a contradiction
between the suprapositive and consensual understandings of the right to a
dispute among competing suprapositive accounts of the right.) Alternatively,
they might expressly consent in advance to any modifications of the content of
the right intended to ensure its effective enforceability. Constitutional doctrine
in the United States tends to tacitly assume such consent.
When the three aspects do exert inconsistent influences, choice or
compromise among them is necessary. In the face of textual ambiguity, neither
U.S. constitutional law nor international law provides a lexical ranking or an
algorithm for combining their effects.26 Any interpretive choice will be
vulnerable to criticism from some direction.
Although some decisions interpreting fundamental rights make clear the
separate influence of consensual, suprapositive, and institutional factors, others
and coroner's inquest); CLAREOVEY & ROBINC.A. WHITE,JACOBS& WHITE,EUROPEAN

CONVENTION ONHUMANRIGHTS48-51 (3d ed. 2002).
25. See OVEY& WHITE,supra note 24, at 210, 215.
26. See ANTHONYAUST, MODERNTREATYLAWANDPRACTICE187 (2000) (discussing
lack of hierarchy of methods within VCLT art. 31); Stephen M. Griffin, Pluralism in
Constitutional Interpretation, 72 TEX. L. REV. 1753, 1757 (1994) (discussing lack of
hierarchy of methods in U.S constitutional interpretation);see also PETERHABERLE,
EUROPAISCHE VERFASSUNGSLEHRE 249-50 (2001) (making a similar point more generally
regarding constitutional interpretation in Europe); DONALD P. KOMMERS, THE
CONSTITUTIONAL JURISPRUDENCE OF THE FEDERALREPUBLICOF GERMANY42-43 (2d ed.
1997) (discussing lack of hierarchyof methodsof constitutionalinterpretationin Germany).
RIGHTS 1873
do not. Arguments of each kind may be combined, and a conclusion stated.

Arguments from precedent often replace discussion of the reasons that
supported the earlier precedents. Some decisions assert conclusions with little
or no explicit argument.
More generally, legal discourses often tend to conflate these three aspects
of fundamental rights. For example, human rights advocates often argue as if
states by adhering to a treaty have necessarily agreed to the suprapositive
content of a right as the advocates understand it.27 There is currently
controversy in U.S. constitutional law over the fact that the Supreme Court
equates its institutionally based interpretation of constitutional rights with the
meaning of the rights themselves, and denies the authority of the federal
legislature to act on the basis of a broader interpretation.28 And in countries
with robust constitutional cultures, citizens tend to attribute suprapositive force
to the positive interpretations of constitutional rights, even though these
interpretationsmay be affected by consensual or institutional factors.
From one perspective this latter tendency merely demonstrates the
expressive function of constitutional interpretationas a process of articulating
the fundamental values of a national culture. But it may also undercut the
efficacy of moral critiques of positive norms. When, for example, the contours
of a constitutional right are defined through a consensual methodology by
reference to historical practices of the distant past, some citizens may find the
results of applying the right inconsistent and unjust by contemporary standards.
These citizens may argue that supplementary rights should be extended by
legislation to implement the normative principle underlying the right more
consistently.29 Other citizens may have difficulty perceiving the need for
supplementation, because they assume that what is constitutionally permissible
should be morally acceptable.
B. Potential Dissonance Between the International and Constitutional

Regimes
The international human rights regime and the national constitutional

regimes each maintains legal claims to obedience, and each asserts authority to
expound the fundamental rights of individuals. Their elaborations of those
27. Inpropercontext,thatis a legitimateformof advocacy.

28. See Bd. of Trs. of Univ. of Ala. v. Garrett,531 U.S. 356, 387-88 (2001) (Breyer,J.,
dissenting) (citing Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal
AntidiscriminationLegislation After Morrison and Kimel, 110 YALEL.J. 441 (2000));
Michael W. McConnell, Institutions and Interpretation:A Critique of City of Boeme v.
Flores, 111 HARV.L. REV.153, 189-92 (1997); Gerald L. Neuman, The Nationalizationof
Civil Liberties,Revisited, 99 COLUM. L. REV.1630, 1641-44 (1999).
29. To avoid distraction,perhapsI should emphasizethat I am not making a federalism
argumenthere. In the U.S. context, the desirable reform might be state ratherthan federal
legislation.
rights,however,may divergebecauseof theirseparatebases of legitimacyand

the potentiallycontraryinterpretiveinfluences exerted by the three aspects.
The result may be dissonance in the articulationof fundamentalvalues, or
unresolvableconflictbetweennormsthatdeny each other'svalidity.
The potentialfor divergencewithin each aspect, discussed in Part I.B.1,
resultsfromrivalclaimsof similarauthority.Divergencemay occurinstead,as
discussedin PartI.B.2, when differentaspectspredominatein the nationaland
internationalinterpretations
of the right.
1. Divergence within aspects.
The consensualandsuprapositiveaspectsof fundamentalrightseach create

potentialfor conflictingclaimsof legitimacyandauthoritybetweenthe national
constitutionalsystem and the internationalhuman rights system. For the
consensualaspect,the claimsmirrorthe traditionaldebatebetweendualismand
monism in internationallaw; for the suprapositiveaspect, possible conflicts
would arise fromcompetingnormativeaccountsof the right. The institutional
aspect does not usually involve an independentsource of legitimacy,but its
influenceon interpretation deriveslegitimacyfromthe otheraspects,and it too
providesoccasionfor divergenteffects at the nationalandinternational levels.
The consensual aspect. Internationallaw arises throughthe action of
states, and will not persist if too many states oppose it. Nonetheless, the
consensualbases of internationalhumanrightstreatynormsand constitutional
rights differ in importantrespects. First and perhapstoo obvious to mention,
treaty regimes derive no consent from nonparties. The EuropeanHuman
Rights Conventionis a rich source of humanrightsjurisprudence,but it can
assertno consensualclaimto obediencein Africaor the Americas.
Second, a state's understandingof its own consentis not determinativeof
its internationalobligations. Fromthe internationalperspective,so long as a
norm arises within the accepted frameworkfor norm creation within the
internationalcommunityand applies to the state under the criteria of the
internationalsystem,the stateis boundby the norm. International law is partof
what constitutes both statehood and the internationalcommunity,and the
presenceor absenceof the state's consentderives its significancefromwithin
the structureof internationallaw. States may be obligated by customary
internationallaw withouttheirexpressconsent,andthe conditionsunderwhich
states can prevent such obligationsfrom arising are defined by international
law. States become partiesto a treatyonly throughaffirmativeacts of their
governments or agents, but the apparent authority of an agent under
internationalstandardswill often suffice to bind a state in violation of its
RIGHTS 1875
domestic constitutional norms.30 Most importantly for the present context,

states that voluntarily undertake treaty obligations may later face demands that
they comply with unforeseen interpretationsof the treaty norms. Putting aside
the question of suprapositive and institutionally based interpretations of treaty
norms, consent-based interpretations of multilateral treaties may rest on the
perceived consensus of the internationalcommunity or the regional community,
without unanimous concurrence among the treaty partners.
The broader focus of international interpretationmay leave a state bound
by an obligation to which it did not intentionally consent, or indeed could not
constitutionally consent. From the national constitutional perspective, in
contrast, the state's participation in the activity of the international community
is authorized and channeled by the constitutional framework of the state and
rules that it establishes (expressly or by interpretation) for engaging in
international relations.31 The treatymaking organs are constitutionally
empowered agents of the people, not delegates of the internationalcommunity.
National constitutions vary greatly in their provisions regarding the
relationship between international law and domestic law. Some are more or
less dualist, treating international norms as part of a distinct legal system, and
requiring an act of "transformation" by national authorities to give an
international norm legal effect within the national legal system.32 Others are
more or less monist, treating international law and domestic law as a single
legal system, often giving some category of international norms legal
supremacy over domestic legislation.33 The key point here is that from the
national constitutional perspective, the degree of monism or dualism is subject
to specification in the constitution.34 Popular sovereignty legitimates the
choices that the constitution expresses, and assigns internationallaw its place in
the legal hierarchy. Even if a constitutional provision accords supremacy to
international law, that provision itself will be subject to amendment, if
necessary by resort to the constitution-giving power of the people. Similarly, in
30. TheViennaConvention
on theLawof Treatiesprovidesthatviolationsof a state's
internal law must be manifest before they can invalidate the state's formally expressed
consent to a treaty. See VCLT, supra note 5, art.46, 1155 U.N.T.S. at 343.
31. To say that the constitutionchannels the government'sengagementin international
relations does not prejudice the question of what restrictions it imposes. A constitution
might provide, or be construed as providing, that various substantive limitations do not
apply, or apply differentlyto such engagement.
32. See, e.g., HENRYG. SCHERMERS & DENISF. WAELBROECK, JUDICIALPROTECTION
IN THEEUROPEAN COMMUNITIES 117-20 (5th ed. 1992) (describingdualist featuresof several
Europeanconstitutions).
33. See id. at 120-22 (describingmonist featuresof otherEuropeanconstitutions).
34. I say "subjectto specification,"because constitutionsdo not always fully specify
the approach,leaving some issues to constitutionalinterpretationor legal tradition. Also,
althoughI say that this is true from the nationalconstitutionalperspective, it also happensto
be true from the internationalperspective, i.e., modern internationallaw leaves decisions
between monist and dualistinternalstructuresto each state.
their consensual aspect, constitutional provisions recognizing the inviolability

of internationalhuman rights represent voluntary national value choices.
In most constitutional systems, the procedure for ratification of treaties
differs from the procedure for amending the constitution. Some treaty
ratifications are accompanied by constitutional amendments, and in a few
national systems the constitution specifies that treaty ratifications by enhanced
parliamentary majorities may operate as constitutional amendments.35 But
ordinarily, the mere adherence to a treaty is not an act of delegated popular
sovereignty modifying constitutional principles.
Thus, the internationaltreaty regimes and national constitutional orders rest
on distinct and incommensurable sources of consensual legitimacy and
authority, which can cause interpretationsof fundamental rights to diverge or to
come into direct conflict. An analogous problem, as between the supranational
European Union and its member states has in recent years been the subject of
deep thought and debate.36 The solutions that have been offered there are not
necessarily suitable for the institutionally thinner human rights regimes. The
present inquiry must recognize the possibility of irreconcilable differences of
perspective.
To say that the differing consensual bases of constitutional rights and
internationalhuman rights can cause divergence does not mean that divergence
must occur. Different political processes may make voluntary choices in
consciously parallel ways, or may independently arrive at similar results for
similar reasons. And, as I will discuss in Part II, drafters of treaties and
constitutions may choose to adopt mechanisms for avoiding conflict. The
dissonance is potential, not inevitable.
The suprapositive aspect. A national constitutional right and a similarly
phrased international human right may rest on entirely different kinds of
normative foundations, or they may simply diverge in their conceptions of the
right. For example, particular national constitutional provisions may reflect a
specific religious tradition or a specific secular philosophy of freedom, or they
may bracket internal disagreement on foundational issues and express value
commitments grounded in national experience. The global human rights
regime has sought to bridge over widely varying value systems (including
Marxism) and still articulate common aspirations. Regional human rights
35. See BUNDES-VERFASSUNGSGESETZ [B-VG] [Constitution] art. 50(3) (Aus.);

GRONDWET [GRW.NED.][Constitution]art. 91(3) (Neth.). In the Netherlands,this procedure
departsfrom the usual procedurefor amending the constitution;in Austria, it subsumes the
usual procedurefor amending the constitution. See also infra text accompanyingnotes 85-
87 for a discussion on giving constitutionalstatusto humanrightstreatiesin Argentina.
36. See, e.g., NEIL MACCORMACK,QUESTIONING SOVEREIGNTY: LAW, STATE, AND
NATION IN THE EUROPEANCOMMONWEALTH 97-121 (1999); Neil Walker, The Idea of
ConstitutionalPluralism, 65 MOD.L. REV.317 (2002), J.H.H. Weiler & Ulrich Halter, The
Autonomyof the CommunityLegal Order-Through the Looking Glass, 37 HARV. INT'LL.J.
411 (1996).
RIGHTS 1877
systemsmay be able to rely upona greaterexistingcommonalityof values,and

perhaps(as in Europe)a strongerpoliticalwill to normativerapprochement.
Where suprapositive norms assist (expressly or implicitly) in the
interpretationof internationalhumanrights norms, they may differ from the
suprapositiveconceptions employed at the national level in a particular
constitutionalsystem. In some cases these divergencesimplicatethe central
purposeof the internationalprotectionregime,to challengelocal practicesthat
are antithetical to human rights. In other cases, however, they are
disagreementsamong friends,disputesover the best understandingof a norm
thatbothrespect. Heretherecan be no simplepresumptionaboutwhich side-
the national or the international-is correct. The argumentsof each are
potentiallypersuasivecritiquesof the position of the other. Conscientious
dialogue may bring about normative agreement. But given the range of
compatiblephilosophiesthatthe humanrightsregimeattemptsto embrace,the
two sides may rest on irreconcilable foundations, and their normative
disagreementmay ultimatelybe unresolvable. Thatmay persuadeone side to
drop its insistence on enforcing its own view, or it might lead to a legal
impasse.
The institutionalaspect. Institutionalfactorsprovideanotheropportunity
for divergenceor conflict between the internationalhumanrights system and
nationalconstitutionalrightssystems.
Even if national constitutionalcourts and internationalhuman rights
tribunalsresembledeach othermore closely thanthey do, conflictscould arise
from the desire of each to meet its own institutionalneeds.37 For example,in
Kudla v. Poland,38the EuropeanCourtapparentlytook into accountits own
overstrainedcaseloadin revisingits interpretation of article 13 so as to require
statesto provideeffectivenationalremediesfor claimsof unreasonabledelayin
judicial proceedings;39a dissentingjudge pointed out that this requirement
would createseriousdifficultiesfor nationalsystemswhen the claim concerned
delays in proceedingsbeforethe nationalconstitutionalcourt.40
But internationalhumanrightstribunalsdifferin otherways fromnational
courts. Their responsibilitiesgenerally extend to numerous and diverse
national legal systems,41and they stand outside those legal systems. They
37. I leave aside here competition for authoritythat is driven by mere ambitionrather
than institutionalneed.
38. 2000-XI Eur. Ct. H.R. 197.
39. Id. at 235-36.
40. Id. at 244-45 (Casadevall, J., dissenting). Judge Casadevall also argued
(mistakenly, in my view) that it was improper for the Court to treat its own increased
caseload as a reason for reinterpretinga conventionright. Id. at 243.
41. One might consider ad hoc internationalcriminaltribunalsfor a particularcountry
as a counterexample. Some nationalcourts do oversee plurallegal systems, but this
diversity
adds to the complexity of the internationaltribunals'tasks.
often have weak remedial powers, if any.42 Some lack the authority to issue
binding decisions. Some operate as courts, and can pronounce only on matters
brought before them, while others operate as commissions, able to initiate
inquiries and to issue legal interpretations on their own motion. These
institutional differences may result in divergent interpretationsof international
human rights and national constitutional rights. For example, the
Constitutional Court of South Africa in recent years has relied on some of these
institutional factors in declining to find an immediately enforceable "minimum
core" in the rights to adequate housing and to health care under the South
African constitution.43 The U.N. Committee on Economic, Social and Cultural
Rights had developed the concept of the "minimum core" in interpreting the
obligations to progressive realization of economic and social rights under the
ICESCR. The treaty had supplied a significant model for the constitutional
provisions, and the South African constitution provides that courts "must
consider international law" when they are interpretingthe Bill of Rights.44 The
constitutional court observed, however, that it lacked the Committee's expertise
and information sources for defining a minimum core of the right to housing.45
In a later case, the Court emphasized that "courts are not institutionally
equipped to make the wide-ranging factual and political inquiries necessary for
determining the minimum-core standards [for a right to health care], nor for
deciding how public revenues should most effectively be spent."46 Implicit in
this last statement is another institutional factor: Unlike the Committee, the
constitutional court does have the power to order the government to spend
money, and it would be responsible for diverting public resources from other
projects.
At the same time, it must be recognized that international human rights
tribunals are themselves an element of the institutional context within which
42. The American Convention on Human Rights confers an atypically broad range of
remedialchoices on the Inter-AmericanCourtof Human Rights, see ACHR, supra note 15,
art. 63, 1144 U.N.T.S. at 159, although the grant of formal powers does not necessarily
ensure compliance. See Cera, supra note 23, at 77 (noting limited compliance with
nonpecuniaryportionsof court's remedialorders).
43. See South Africa v. Grootboom, 2001 (1) SALR 46, 65-66 (CC); Minister of
Health v. Treatment Action Campaign, 2002 (5) SALR 721, 739-40 (CC). The
constitutionalcourt confirmedthat the rights are binding andjudicially enforceable,but held
that it could review only the reasonablenessof the government's steps toward progressive
realization of the rights. See Grootboom, 2001 (1) SALR at 68-69; TreatmentAction
Campaign, 2002 (5) SALR at 739-40. In both cases, the Court found the government's
actions unreasonableunder the circumstances. See Grootboom,2001 (1) SALR at 79-80;
TreatmentAction Campaign,2002 (5) SALR at 754.
44. S. AFR.CONST.? 39(1)(b). South Africa had signed but not ratifiedthe ICESCRat
the time of these decisions. The court interpretedits obligationto consider internationallaw
as applying both to internationallaw binding on South Africa and to internationallaw
generally. Grootboom,2001(1) SALR at 63.
45. Grootboom,2001(1) SALR at 65-66.
46. TreatmentAction Campaign,2002 (5) SALR at 740.
RIGHTS 1879
constitutional courts seek to achieve the effective implementation of

constitutionalrights. The converse is also true. Thus, dependingon the
circumstances,narrowingthe gap between the interpretationof a national
constitutionalright and the interpretationof the correspondinginternational
human right may serve ratherthan disserve institutionalgoals. Might this
justify modifyingnationalconstitutionalinterpretations?I will returnto this
questionin PartII.B.
2. Conflicts across aspects.
The relationshipbetween the internationalhuman rights regime and

nationalconstitutionalrightsregimesis furthercomplicatedby the potentialfor
conflictsacrossaspects. Justas, at eitherthe nationalor the internationallevel,
contraryinterpretiveinfluencesmay arise from the differentaspects, so may
they produce inconsistentinterpretationsof correspondingrights at the two
levels.
Conflictbetweenconsensualand suprapositiveaspectsmay occurin either
direction. One state's consent-basednational interpretationof a right may
weaken its force or limit its coverage in ways that are indefensibleunder
contemporarynormative understandingsof the right in the international
community. In these circumstances,internationalhumanrights law plays its
importantrole of critiquingpositive national law in the name of universal
values. As will be emphasizedlater,the demandsof internationalhumanrights
law can be met eitherby reformingthe nationalconstitutionalunderstanding of
the right or by providingsupplementarysubconstitutionalprotectionfor the
right, so long as the internationalcontentof the right is effectively protected.
In eithercase, however,the nationalconstitutionalunderstanding of the rightis
challenged, which may provoke resistance. The challengemay go furtherif the
consent-basednational interpretationnot only underprotectsthe right, but
allows it to be outweighedby a competingconstitutionalmandate. Then an
internationaldemandfor greaterprotectionof the rightmay call upon the state
to reduceits constitutionalprotectionof the othervalue.
The conflict and critiquemay, however, flow in the otherdirection. The
contoursof the internationalhumanrights norm as interpretedmay be based
primarilyon consensual factors, and they may exceed or fall short of the
suprapositivecontentof the right as recognizedin nationalconstitutionallaw.
Fallingshortbecomesespeciallyproblematicwhen the treatyrequiresthe right
in question to yield to other rights. Thus, from a U.S. perspective,some
internationalhuman rights treaties underprotectfreedom of expression and
overprotectequalityrightsin theirexplicit requirementsfor regulationof hate
speech. To many U.S. observers,FirstAmendmentlaw embodiesthe correct
normativeunderstandingof the right to free expression, and not merely a
positive constitutionalobstacleto U.S. adherenceto theseprovisions.
Conflictsmay also resultfrominstitutionallybasedinterpretations at either

the nationalor internationallevel. For example,suprapositiveinterpretations at
one level offer a critiqueof institutionallybased choices at the other level,
although the ultimate conclusion may sometimes be that differences in
institutionalcontext counsel againstacting on the critique. Consensuallimits
may prevent the adoption of a more effective institutionally based
interpretation,or at least may requirethatit be pursuedat the subconstitutional
ratherthan the constitutionallevel. Again, it shouldbe rememberedthat the
internationalhumanrights regime now forms part of the context of national
constitutionalregimes,which may makeit necessaryto reconsiderinstitutional
analysesconductedat the nationallevel in isolation.
II. METHODSFORREDUCINGDISSONANCE
Thus, interpretation of fundamentalrightsmay divergeat the international

andnationalconstitutionallevels, blurringthe moralauthoritythateach system
seeks to exerton conductandpublicopinion. The two systemsmay even come
into direct conflict, condemningeach other's commands. Some of these
conflicts reflect an urgentneed for reformat the nationallevel, which is the
raison d'etre of the internationalhumanrights regime. Others,however,are
producedby the dual positivizationof fundamentalrights. That suggests the
possibility of reducing the dissonance between the two systems without
sacrificingthe goals of either.
Both nationaland internationalsystemsemploy a varietyof legal methods
to reducethe dissonancebetweenconstitutionalrightsand internationalhuman
rights. Some of these methodsinvolve accommodationsby the international
human rights regime to national constitutional rights; others involve
accommodationsby a national legal system to internationalhuman rights.
Some are expressly embodied in governing instruments,and others are
producedby judicialinterpretation.
Before turning to those methods, it would be useful to describe an
alternativemodel, an unadoptedplan that would have established a very
different relationshipbetween the internationalhuman rights regime and
nationalconstitutions. Underthis model, a right would receive an extremely
thin internationaldefinition,which would operateeffectivelyas a compositeof
nationalconstitutionaldefinitions,acrossa broadrangeof acceptability.Hersh
Lauterpacht'swartimeproposalfor an internationalbill of rights includeda
scheme ratherlike this in its design.47 States would have been requiredto
enshrinethe internationallyprotectedcivil rights of part I of the bill in their
nationalconstitutions.48A constitutionalcourt would have providedjudicial
47. See H. LAUTERPACHT, AN INTERNATIONAL BILLOFTHERIGHTSOFMAN (1945).

48. See id. at 179. This requirement would have applied only to the civil
rights
contained in part I of his Bill of Rights, and not to the political, social, and economic rights
RIGHTS 1881
enforcement, including at a minimum declaratory remedies.49 A U.N. high

commission would have supervised compliance with the bill,50 but Lauterpacht
indicated that "[w]henever there is room for a legitimate difference of opinion
as to the meaning of the Bill of Rights, the High Commission would properly
give preference to the interpretationadopted by the legislature, the judiciary, or
the government of the State concerned."51
Thus, at least for civil rights, states would be obliged to constitutionalize
the international rights, and to enforce them domestically in accordance with
their own constitutional definitions. The meaning of the right would vary from
state to state, within a range of legitimate disagreement.
These institutional features of Lauterpacht's proposal were not
implemented in the eventual structure of the International Bill of Rights. The
U.N. General Assembly proclaimed the Universal Declaration of Human
Rights as a nonbinding resolution in 1948, and negotiation of its treaty
embodiment took two decades. Neither the International Covenant on Civil
and Political Rights nor the International Covenant on Economic, Social and
Cultural Rights calls for constitutionalization of the rights it guarantees. The
ICCPR obliges states to respect and to ensure the rights it recognizes, but
legislative implementation can suffice, so long as the state does provide
effective protection and remedies.52 Similarly, the regional human rights
systems have not adopted Lauterpacht's proposal for mandatory
constitutionalization.
Nor have human rights tribunals accepted Lauterpacht's approach to the
meaning of treaty rights. Existing tribunals apply the doctrine of "autonomous
interpretation." Human rights provisions receive their own international
definitions, rather than follow the local definitions in respective national
systems. The consequences of their application may vary from state to state
depending on local conditions, and tribunals may afford some deference to
local "appreciation" of those conditions. But the possible conflict between
international and national definitions has not been mooted by embracing
indeterminacy.
contained in part II. The precise effect of giving constitutionalstatus to these rights would
have varied from state to state in accordancewith the normal operationof its constitution.
See id. at 181.
49. Id. at 184, 193.
50. Id. at 196. Final authorityto enforce the InternationalBill of Rights would have
restedwith the SecurityCouncil. Id. at 205.
51. Id. at 203; see also id. at 200 (stating that the Commission could examine whether
a judicial decision exhibited "an interpretationof the law which, to all appearances,makes a
travestyof the Bill of Rights").
52. InternationalCovenanton Civil and Political Rights, adopted Dec. 19, 1966, art. 2,
S. EXEC.Doc. E, 95-2 (1978), 999 U.N.T.S. 171, 173-74 [hereinafterICCPR]. I emphasize
the ICCPR in the text, because Lauterpachthimself did not propose constitutionalizationof
economic, social, and culturalrights (or of political rights).
Part II.A discusses international efforts to accommodate national

constitutional rights. Recognizing the limited capacity of the international
system to adjust simultaneously to multiple constitutional systems, Part II.B
turns to national constitutional strategies for accommodating international
human rights.
A. International Accommodations to National Constitutional Rights
The internationalhuman rights system was created and has evolved against
a background that included national constitutional rights systems. The
international system employs several methods that accommodate the
interpretationof international human rights to national constitutional rights, or
at least decrease the conflict between them.
The first section discusses interpretive methods that draw upon national
constitutional rights in construing international rights themselves. The second
and third sections discuss two methods for adjusting treaty obligations to the
needs of particularconstitutional systems: savings clauses and reservations.
1. Interpretation.
Interpretation of particular human rights by international tribunals

sometimes takes into account the interpretation of corresponding rights in
national constitutions. This technique may be employed as a deliberate strategy
of conflict avoidance or it may produce dissonance-reducing effects as a
byproduct of other purposes.
Historical interpretation. The consent-based method of historical
interpretation (which resembles the U.S. method of "original understanding")
sometimes results in reference to national constitutional interpretations. Many
of the rights contained in human rights treaties have long enjoyed recognition
in the transatlanticconstitutional tradition, and existing national interpretations
of those rights at the time of drafting may provide valuable evidence of the
intended scope and content of the treaty rights.53 To the extent, however, that
human rights tribunals favor evolutive interpretation of their instruments,
historical interpretationis rarely determinative.
Borrowing. National constitutional interpretations may offer normatively
persuasive accounts of how particular human rights ought to be interpreted.
They may also provide empirically suggestive data concerning how rights can
53. Cf La Expresi6n "Leyes" en el Articulo 30 de la Convenci6n Americana Sobre

Derechos Humanos[The Word "Laws"in Article 30 of the AmericanConventionon Human
Rights], Advisory Opinion OC-6/86, May 9, 1986, Inter-Am.Ct. H.R. (Ser. A) No. 6, ?? 23-
25 (1986) (interpretingACHR article 30 in light of the longstandingprinciple of legality or
"reserva de ley"). For regional human rights treaties, under some circumstances even
national constitutionsfrom outside the region may illuminatethe intendedmeaning. See id.
? 25 (citing French Declaration of the Rights of Man and the Citizen).
RIGHTS 1883
be effectively implemented. Tribunals make such suprapositive and

institutional uses of constitutional case law voluntarily, on the basis of their
perceived substantive merits. When so employed, invocation of national
interpretations in international human rights law is a species of the
transnational "judicial dialogue" that also includes the borrowing of foreign
constitutional doctrine in national constitutional law, and some borrowing
among international tribunals. That dialogue is the subject of a large body of
recent literature.54 Regional tribunals may borrow interpretationsfrom inside
or outside the region, as illustrated by the occasional references to U.S. case
law in the European Court of Human Rights.55
Borrowing of doctrine does align the international interpretationwith the
approach of one national system. Because international tribunals confront
multiple national systems that may pursue multiple national interpretations,
choice of one approach may increase divergence from others. On the other
hand, the factors that made the borrowed approach persuasive to the
internationaltribunalmight prove persuasive to other national courts, especially
once the tribunal has lifted the approach above its original national context.
Thus, a multidirectional judicial dialogue (to be discussed further in Part II.B)
may eventually produce a broader convergence of international and national
constitutional interpretations.
Regional consensus. The technique of borrowing should be distinguished
from a different use that the European human rights system makes of multiple
national interpretations. A national constitutional interpretationof a right may
also be treated as a data point in charting evolution of the regional
understanding of the right. Both that phenomenon and its limits deserve fuller
description.56
54. See, e.g., Claire L'Heureux-Dube,The Importanceof Dialogue: Globalizationand

the InternationalImpactof the RehnquistCourt,34 TULSA L.J. 15 (1998); KarenKnop, Here
and There:InternationalLaw in Domestic Courts,32 N.Y.U. J. INT'LL. & POL.501 (2000);
Slaughter, supra note 2; Anne-Marie Slaughter, A Typology of Transjudicial
Communication,29 U. RICH.L. REV.99 (1994).
55. See, e.g., Siirek v. Turkey, 1999-IV Eur. Ct. H.R. 355, 394-95 (Bonnello, J.,
concurring)(citing U.S. case law on imminence requirementfor suppressionof subversive
advocacy); Grigoriades v. Greece, 1997-VII Eur. Ct. H.R. 2575, 2595-96 (Jambrek,J.,
concurring)(citing U.S. and Germanconstitutionalcases on freedom of speech); Murrayv.
United Kingdom, 1996-I Eur. Ct. H.R. 29, 64-65 (Walsh, J., dissenting) (citing U.S. cases on
self-incrimination);James v. United Kingdom, 98 Eur. Ct. H.R. (ser. A) 9, 30 (1986) (citing
Haw. Hous. Auth. v. Midkiff, 467 U.S. 229 (1984), in interpretingconcept of "public
interest"for expropriationpurposes).
56. In contrast,the Inter-AmericanCourt of Human Rights, the other regional human
rights court with the power of binding adjudication,has not attributedmuch interpretive
significance to a regional consensus of human rights practices. That is hardly surprising,
given the history of widespreadhuman rights violations in the region. Cf Dinah Shelton,
Judicial Review of State Action by InternationalCourts, 12 FORDHAM INT'LL.J. 361, 378-79
(1989) (discussing reasons for stricterreview in Inter-Americansystem). Instead,the court
has often drawn on European and global human rights jurisprudenceand U.N. soft law
instruments. See, e.g., Caso Baena Ricardo [Baena Ricardo Case], Case 72, Inter-Am.Ct.
The European Court of Human Rights has long engaged in evolutive

interpretation of the European Human Rights Convention as a "living
document," part of whose content derives from an emerging consensus on
human rights standards among the states parties to the convention. The
European Court delivers authoritative interpretationsof the convention, and its
judgments are binding on the respondent states. Nonetheless, in adjudicating
state compliance with the convention, the European Court often affords the
state a certain "margin of appreciation."57 The margin of appreciation doctrine
combines several strands, but it results in a degree of deference to the state's
evaluation of how a convention right applies to the state's particular
circumstances. A wider margin of appreciation may be appropriate, for
example, when the state is engaged in localized land use regulation, or is
choosing means for carrying out a positive obligation to protect a right, or is
responding to an emergency. The doctrine of the margin of appreciation does
not accord the state discretion to adopt its own interpretationof a convention
right in contradiction to the European Court's autonomous interpretation,but
rather to apply that interpretation to local circumstances within parameters
determined by the Court. The doctrine performs an institutional function by
allocating responsibility for the enforcement of convention rights in a manner
that limits the international tribunal's need to form an independent
understanding of local conditions. In part, the doctrine reserves the European
Court's closer scrutiny for occasions when the importance of the right or the
clarity of the standardjustifies it.
For present purposes the relevant strand of the margin of appreciation
doctrine is the practice of narrowing the margin of appreciation in particular
contexts where common European standards regarding the application of a
right have emerged. The amount of consensus necessary to demonstrate
"common" European standardsis uncertain and debated; no simple quantitative
test is applied, but the European Court does not await unanimity. Sometimes
the commonality is evidenced by transnational pronouncements or agreements
from the Council of Europe.58 Often it is sought in converging standards of
human rights protection in the individual states. Similar interpretations of
national constitutions would be especially good evidence of such convergence.
The common standards doctrine thus provides a method for aligning
interpretationof convention rights with constitutional rights, at least when the
latter converge. Conversely the doctrine of a wider margin in the absence of
H.R. (ser. C) ?? 106, 162-165 (2001); Caso TribunalConstitucional[ConstitutionalCourt

Case], Case 71, Inter-Am. Ct. H.R. (ser. C) T? 71-75 (2001); Caso Cantoral Benavides
[CantoralBenvavides Case], Case 69, Inter-Am.Ct. H.R. (ser. C) ?? 86, 95, 102 (2000).
57. See OVEY& WHITE,supra note 24, at 210-15; Paul Mahoney, MarvellousRichness
of Diversity or Invidious CulturalRelativism?,19 HUM.RTS.L.J. 1, 1 (1998).
58. See, e.g., Inze v. Austria, 126 Eur. Ct. H.R. (ser. A) at 18 (1987) (invoking
EuropeanConvention on the Legal Status of Childrenbor out of wedlock as evidence of
contemporary trend in the member states). The Council of Europe is the regional
organizationunderwhose auspices the EuropeanCourtoperates.
RIGHTS 1885
common standardscan enable the EuropeanCourt to accommodatediverse

constitutionalconceptions,as illustratedby the abortioncontext.59
However, the EuropeanCourthas not formulatedits inquiryas a search
specifically for converging constitutionalstandards. Converginglegislative
policies can suffice. This broader criterion for evidence of a European
consensusreflects the basic structuralchoice in the internationalhumanrights
regime,applicablealso in Europe. The EuropeanCourtof HumanRightshas
repeatedlymade clear that the memberstates have discretionin choosing the
legal instrumentsby which they implementtheir obligations,so long as they
comply with the convention.60Looking only to constitutionalinterpretations
wouldthereforebe inappropriate.61
Thus the common standardsapproachmay producean interpretation that
gives the right more protection than the constitutionsof most contracting
states.62
The downplayingof the distinctionbetweenconstitutionsandlegislationin
definingcommonstandardsmirrorsa similardeemphasisin evaluatingclaims
of violations. The courtmadethatpoint explicitlyin decidingthatTurkeyhad
violated the conventionby orderingthe dissolutionof a political party that
allegedlypursuedgoals incompatiblewith the nationalconstitution:
The political and institutionalorganisationof the member States must
accordinglyrespectthe rightsand principlesenshrinedin the Convention. It
matterslittle in this contextwhetherthe provisionsin issue are constitutional
or merelylegislative. Fromthe momentthatsuchprovisionsarethe meansby
59. See Open Door v. Ireland, 246 Eur. Ct. H.R. (ser. A) at 29 (1992) ("[N]ational
authoritiesenjoy a wide marginof appreciationin mattersof morals, particularlyin an area
such as the present which touches on matters of belief concerning the nature of human
life."). The majority nonetheless found the injunction in question a disproportionate
restrictionon freedom of expression. The Irish court had prohibitedthe communicationof
information about the availability of abortions outside Ireland as a means of enforcing
Ireland'sconstitutionalban on abortion. Id. at 30.
60. See, e.g., James v. United Kingdom, 98 Eur. Ct. H.R. (ser. A) at 9, 47 (1986);
Swedish Engine Drivers' Union v. Sweden, 20 Eur. Ct. H.R. (ser. A) at 18 (1976). The
Court specifically rejected a claim based on textual divergence between the Gibraltar
Constitutionand the convention in McCannv. UnitedKingdom,324 Eur. Ct. H.R. (ser. A) at
47 (1995).
61. It could be objected,however, that a mere convergence of legislative policies in the
contractingstates on some issue that has humanrights implications,without more, does not
necessarily demonstratea consensus that the currentpolicy should be entrenchedas a human
right. Cf Atkins v. Virginia, 536 U.S. 304, 342-47 (2002) (Scalia, J., dissenting) (arguing
that recent legislative trends do not establish sufficient experience to justify constitutional
entrenchment).
62. The court's interpretationmay even be more protective than the
subsisting
constitutionalstandardsin all the contractingstates. That situation would change
quickly,
however, because some of the states give constitutional status to convention rights, and
others provide for interpretationof constitutional rights in accordance with international
ones.
which the Stateconcernedexercisesits jurisdiction,they are subjectto review

underthe Convention.63
After all, from the international perspective, constitutions come and go at
national will. They can be amended or superseded, and even in postwar Europe
some have been imposed by force. The fact that a rule is entrenched against
simple legislative revision does not guarantee its quality.
2. Savings clauses.
Human rights treaties frequently contain savings clauses, or "most

favorable to the individual" clauses. These are intended to ensure that
international protection operates as a floor, not as a ceiling, for human rights.
For example, the European Convention on Human Rights provides that
"[n]othing in this Convention shall be construed as limiting or derogating from
any of the human rights and fundamental freedoms which may be ensured
under the laws of any High Contracting Party or under any other agreement to
which it is a Party."64 Although this clause-characteristically-does not
specifically mention constitutions, part of its function is to deny that convention
rights conflict with national constitutional rights. It provides an express textual
reconciliation between the two systems.
In fact, however, such clauses may not fully achieve their ostensible
purpose. Conflicts between rights are inevitable, especially between rights that
are understood as imposing both negative and positive duties on the state. The
European Convention indicates the balance to be struck between convention
rights and other rights when they conflict, sometimes by making the convention
right absolute but often by permitting restrictions on convention rights that are
necessary for the protection of the rights of others. The European Court of
Human Rights has construed this necessity standardas imposing a requirement
of proportionality.65 It has not permitted national law, including national
constitutions, to redefine that balance at will. For example, the Greek
63. UnitedCommunist
Partyv. Turkey,1998-IEur.Ct.H.R.1, 18 (citationsomitted).
64. [European] Convention for the Protection of Human Rights and Fundamental
Freedoms, Nov. 4, 1950, art. 60, 213 U.N.T.S. 221, 250 [hereinafterECHR]. See also
ICCPR,supra note 52, art. 5(2), 999 U.N.T.S. at 174 ("Thereshall be no restrictionupon or
derogation from any of the fundamentalhuman rights recognized or existing in any State
Party to the present Covenant pursuantto law, conventions, regulations or custom on the
pretextthat the presentCovenantdoes not recognize such rights or that it recognizes them to
a lesser extent.");ICESCR,supra note 15, art. 5(2), 993 U.N.T.S. at 6 ("No restrictionupon
or derogation from any of the fundamentalhuman rights recognized or existing in any
countryin virtue of law, conventions, regulationsor custom shall be admittedon the pretext
that the presentCovenantdoes not recognize such rights or that it recognizes them to a lesser
extent."); ACHR, supra note 15, art. 29(b), 1144 U.N.T.S. at 153 ("No provision of this
Convention shall be interpretedas... restrictingthe enjoyment or exercise of any right or
freedom recognized by virtue of the laws of any State Party or by virtue of another
convention to which one of the said states is a party ....").
65. See OVEY& WHITE, supra note 24, at 209-10.
RIGHTS 1887
constitution's prohibition of religious proselytizing, defended as a protection of

the religious freedom and sensibilities of the target, does not automatically
prevail over the religious freedom of the proselytizer as protected by the
convention.66
Thus this savings clause does not produce total subordination of
convention rights to national constitutional rights. Were it otherwise, states
would often be free to undercut convention rights by elevating countervailing
interests of individuals to the status of constitutional freedoms. Indeed, given
that the savings clause expressly preserves human rights and fundamental
freedoms ensured under "laws" and not only "constitutions," this goal could be
accomplished by human rights legislation. Excessive protection of the
reputations of politicians, the emotional sensitivities of audiences, the value of
commercial enterprises, and parents' control over the information that reaches
their children could eviscerate freedom of expression. The point is not that
these interests are unworthy of protection, but rather that international human
rights regimes also limit state discretion to favor one right over another.
The reordering of national allocations of rights is especially clear in some
human rights treaties designed for the protection of particular subordinated
groups. The Convention on the Elimination of All Forms of Racial
Discrimination contains no general savings clause.67 The Convention on the
Elimination of All Forms of Discrimination Against Women does have a
savings clause, but it preserves only "provisions that are more conducive to the
achievement of equality between men and women."68 The savings clause of
the Convention on the Rights of the Child addresses only "provisions which are
more conducive to the realization of the rights of the child."69 Protection of
subordinated groups can be expected to make inroads on what were previously
considered rights of members of the dominant groups.
66. See Larissis v. Greece, 1998-I Eur. Ct. H.R. 362, 381, 382 (holding that conviction
of military officers for attempting to convert subordinatesdid not violate article 9, the
religious freedom provision of the convention, but that conviction for attemptingto convert
civilians did); Kokkinakisv. Greece, 260 Eur. Ct. H.R. (ser. A) at 21-22 (1993) (holding that
conviction merely for attemptingto convert without showing of impropermeans violated
article 9).
67. But see InternationalConvention on the Elimination of All Forms of Racial
Discrimination,openedfor signature Mar. 7, 1966, art.4, S. EXEC.Doc. C, 95-2 (1978), 660
U.N.T.S. 195, 220 [hereinafterCERD] (specifying thatprovisionsprohibitingpromotionand
incitement of racial discrimination shall be applied "with due regard to the principles
embodied in the UniversalDeclarationof HumanRights").
68. Convention on the Elimination of All Forms of DiscriminationAgainst Women,
adopted Dec. 18, 1979, art.23, 1249 U.N.T.S. 13, 22 [hereinafterCEDAW].
69. CRC, supra note 15, art.41.
3. Reservations.
The international law institution of reservations to treaties also contributes

to avoiding conflicts between international human rights and constitutional
rights. Reservations enable states to modify the obligations they undertake at
the time of ratifying a treaty, with the acquiescence of other states parties.
Some reservations take the form of understandings, stipulating that a state
agrees to be bound by a particular provision only with a specified
interpretation. Most human rights treaties permit reservations, within certain
limits.70 A background rule prohibits reservations that are incompatible with
the object and purpose of the treaty.71 The significance of that criterion in the
context of human rights treaties is a subject of controversy.72
Some reservations address direct conflicts between human rights treaty
norms and constitutional rights. The United States and several other states
have reserved against one or both of the ICCPR's provisions requiring
prohibition of hate speech and propaganda for war, on the ground that they
violated freedom of expression. For the United States, that reservation was
necessary because the government cannot comply with a treaty obligation that
violates the Bill of Rights.73 The reservation may also reflect a suprapositive
objection to the treaty norms.
70. Some do not. See, e.g., EuropeanConvention for the Prevention of Tortureand
Inhumanor Degrading Treatmentor Punishment,adopted Nov. 26, 1987, art. 21, Europ.
T.S. No. 126, at 6. Some make particularprovisions of the treaty immune from reservation.
E.g., ConventionRelating to the Status of Refugees, July 28, 1951, art. 42(1), 189 U.N.T.S.
150, 182. Some impose formal requirementsfor the validity of a reservation. See, e.g.,
ECHR, supra note 64, art. 57, 213 U.N.T.S. at 250. The EuropeanCourtof Human Rights
has substantialcase law on the formalvalidity of reservations,and treatsa state as bound by
provisions to which it took an invalid reservation. See, e.g., Belilos v. Switzerland,132 Eur.
Ct. H.R. (ser. A) at 28 (1988); OVEY& WHITE,supra note 24, at 379-85.
71. VCLT, supra note 5, art. 19, 1155 U.N.T.S. at 336-37. Note that, where a
reservation addresses a particularprovision of the treaty, the criterion is not whether the
reservationis incompatiblewith the object and purpose of that particularprovision, which
may be peripheralto the treatyas a whole. See Jan Klabbers,Some Problems Regardingthe
Object and Purpose of Treaties, 8 FINNISHY.B. INT'L L. 138, 151-52 (1997); cf FRANK
HORN, RESERVATIONS
AND INTERPRETIVE
DECLARATIONS
TO MULTILATERAL
TREATIES119
(1988) (discussing compatibilityof reservationsthat exclude disputeresolutionprovisions).
72. See LOUIS HENKIN,GERALDL. NEUMAN, DIANE F. ORENTLICHER & DAVID W.
LEEBRON,HUMANRIGHTS789-93 (1999) (discussing controversy over the Human Rights
Committee's General Comment on reservations). There is also some debate on the
consequences of the invalidity of a reservation,which depends in part on the treaty. For
reasons of space, I will omit that issue and assume that the reservationsare valid.
73. Reid v. Covert, 354 U.S. 1, 17 (1957).
It wouldbe manifestlycontraryto the objectivesof thosewho createdthe Constitution, as
well as those who were responsiblefor the Bill of Rights-let alone alien to our entire
constitutional
historyandtradition-toconstrueArticleVI as permitting theUnitedStatesto
exercise power under an internationalagreementwithout observing constitutional
prohibitions.
Id. To be more precise, the governmentcould not comply with those norms under current
interpretationsof the Constitutionwithout an amendment.
RIGHTS 1889
States sometimes take reservations and understandings because of other

constitutional arrangements that may be inconsistent with human rights treaty
norms. For example, an understanding by Ireland accepted a paragraphof the
ICCPR on the assumption that it did not imply any right to divorce (which was
constitutionally prohibited in Ireland).74 A reservation by Italy created an
exception to the ICCPR right to a criminal appeal in cases where the
constitution provided for criminal trial of government ministers before the
constitutional court itself.75 A Mexican reservation to the ICCPR addressed a
constitutional rule denying political rights to ministers of religion.76
Reservations are also used to preserve arrangements that are merely
constitutionally permissible, because the treaty norm is stricter than the national
constitutional right. For example, Venezuela took a reservation to the ICCPR
right to be present at one's trial, because in certain circumstances the
Venezuelan constitution authorized trial in absentia.77 Several of the United
States's reservations to the ICCPR were designed to reduce the protection of
particular rights to the level provided by the United States Constitution. For
example, a reservation to the prohibition against "cruel, inhuman or degrading
treatment or punishment" responded to uncertainty regarding the interpretation
of that phrase by limiting it to conduct forbidden by the Fifth, Eighth, and
Fourteenth Amendments. This reservation was a heavy-handed reaction to the
risk that the ICCPR provision would be interpreted-as the corresponding
European provision had been-to condemn lengthy detention on death row.78
Its phrasing is particularly troubling because, from the international
perspective, it is almost an illusory promise: The category of forbidden
maltreatment will be whatever the United States says it is, from time to time
through its courts.
Reservations can be understood in various ways. Some express a state's
total rejection of a particular human right. Others accept the right in principle
but dissent from its specific formulation, regarding it as too rigid. That
disagreement may reflect a preference for the complex suprapositive content of
the right over a simpler formulation adopted by the consent of the other parties.
Or it may result from an uncritical preference for the state's own existing law,
and withhold consent purely as a matter of sovereign choice. Understandings
74. ICCPRDeclarationsand Reservations(Feb. 5, 2002), http://www.unhchr.ch/

The Irish constitutionwas amendedin 1995 to permit
html/menu3/b/treaty5_asp.htm.
divorce, see JAMESCASEY, CONSTITUTIONALLAWIN IRELAND621 (3d ed. 2000), and Ireland
subsequentlywithdrewthis "understanding."ICCPRDeclarationsand Reservations,supra.
75. ICCPRDeclarationsand Reservations,supra note 74.
76. Id.
77. Id.
78. See David P. Stewart, U.S. Ratification of the Covenant on Civil and Political
Rights: The Significance of the Reservations, Understandingsand Declarations, 14 HUM.
RTS. L.J. 77, 81 (1993) (citing Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A)
(1989)).
may safeguard against future interpretations that would be objectionable on

consensual grounds or suprapositive grounds or both.
Thus reservations, when permitted, offer a means of accommodation to
national constitutional systems. Some reservations exhibit disrespect for
human rights, but others represent conscientious responses to an imperfect
treaty system.
B. National Constitutional Accommodations to International Human Rights
The international human rights regime has limited capacity to

accommodate multiple national interpretationsof national constitutional rights
without abandoning the critical mission of internationalprotection. We should
then ask whether national constitutional regimes take into account the activity
of the international regime. One possibility is for a constitutional court to pay
no special attention to international human rights norms, regarding them as
mere instances of positive treaty norms that the national authorities may ratify
from time to time.
In fact, national constitutional systems afford a variety of accommodations
to the international human rights regime. Some constitutions elevate human
rights treaty norms to the level of constitutional rights; others expressly make
international human rights norms a source of guidance in constitutional
interpretation. Even without such instructions, constitutional courts may
voluntarily take international intepretations of human rights into consideration
in construing constitutional rights. Some constitutional courts adopt this
method as part of a deliberate strategy of institutional coordination with the
international regime, for the mutual strengthening of both. For constitutional
courts in none of the preceding categories, a minimal form of accommodation
remains: to treat international interpretationsas a relevant source of insight on
the human rights issues they address.
1. Giving constitutional status to human rights treaties.
National constitutions often address the relationship of treaties to the

domestic legal order.79 The Supremacy Clause of the U.S. Constitution
expressly made treaties supreme over the constitutions and laws of the several
states,80 but left ambiguous their status at the federal level; subsequent
interpretationhas clarified that treaties are inferior to the Constitution but equal
79. All quotations of non-English-languageconstitutions are from the most recent

releases in CONSTITUTIONS OFTHECOUNTRIES
OFTHEWORLD(Albert P. Blaustein & Gisbert
H. Flanz eds., perm. ed. 1971).
80. U.S. CONST.art. VI, cl. 2.
May 2003] RIGHTS
HUMANRIGHTSAND CONSTITUTIONAL 1891
in rank to federal statutes.81 Some national constitutions go further by giving

treaties supremacy over all statutes in the national legal system. Ordinarily,
however, treaties remain inferior to the constitution in the domestic legal
order.82
Some constitutions that do not make treaties in general supreme over
statutes nonetheless make special provisions for human rights treaties, or for
particular human rights treaties. For example, the Czech Constitution of 1992
made all treaties on human rights and fundamental freedoms ratified by the
Czech Republic superior to legislation.83 In 1994, Sweden adopted a
constitutional amendment requiring laws to comply with the European
Convention.84
An even stronger accommodation-the subject of this section-is to
accord a human rights treaty the same status as national constitutional rights.
The constitution of Argentina, as amended in 1994, in addition to making
treaties in general supreme over statutes, gave constitutional rank (jerarquia
constitucional) to eleven named human rights instruments, and authorized the
addition of other human rights treaties with constitutional rank by
supermajority vote in the legislature.85 These treaties were incorporated into
81. See RESTATEMENT(THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES
? 115 (1987). Where apparentconflicts between federal statutes and treaties cannot be
eliminatedby reasonableinterpretation,the more recently adoptednormprevails. Id.
82. One well-known exception is the Netherlands, where the constitution expressly
authorizesthe governmentto enter into treaties inconsistentwith the constitution,subject to
approvalby two-thirdsvote in both chambersof the parliament. Treaties are not subject to
judicial review for constitutionalityin the Netherlands,but neither are acts of parliament.
See E.A. Alkema, Constitutional Law, in INTRODUCTION
TO DUTCHLAW 291, 319, 322
(J.M.J.Chorus,P.H.M. Gerver,E.H. Hondius& A.K. Koekkoekeds., 3d ed. 1999).
For special cases of particular treaties given constitutional status, see infra. The
supremacy of European Union law as a unique supranationalorder in the member states
raises differentquestions.
83. USTAVNI ZAKONCESHEREPUBLIKY
[USTAVA CR] art. 10 (Czech Rep.); see Eric
Stein, InternationalLaw in Internal Law: TowardInternationalizationof Central-Eastern
European Constitutions?, 88 AM. J. INT'L L. 427, 435 (1994); see also CONSTITUCI6N
POLiTICAart. 93(1) (Colom.); CONSTITUTIA ROMANIEIart. 20(2) (Ronl.).
84. See REGERINGSFORMEN ch. 2, art. 23 (Swed.) ("No act of law or other provision
may be adoptedwhich contravenesSweden's undertakingsunder the EuropeanConvention
for the Protectionof Human Rights and FundamentalFreedoms.");lain Cameron,Sweden,
in EUROPEAN CIVIL LIBERTIES AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS: A
COMPARATIVE
STUDY217, 237-39 (Conor A. Gearty ed., 1997) (explaining the effect of this
provision).
85. CONSTITUCI6N
ARGENTINA[CONSTARG.] art. 75(22) (Arg.). For a discussion of
this provision, and a critical view of its approach, see Janet Koven Levit, The
Constitutionalizationof Human Rights in Argentina: Problem or Promise?, 37 COLUM. J.
TRANSNAT'L L. 281 (1999). The listed instrumentsare: the American Declarationof the
Rights and Duties of Man; the Universal Declaration of Human Rights; the American
Convention on HumanRights; the InternationalCovenanton Economic, Social and Cultural
Rights; the InternationalCovenant on Civil and Political Rights and Its First Optional
Protocol; the Convention on the Preventionand Punishmentof Genocide; the International
Conventionon the Eliminationof All Forms of Racial Discrimination;the Conventionon the
the constitution alongside other express rights, and the provision specified that
the treaties with constitutional rank "do not repeal [other enumerated rights]
and must be understood as complementary of the rights and guarantees
recognized therein."86 As a result, human rights protected by these instruments
are not displaced by other constitutional provisions, but rather they should be
construed in harmony with each other.87 On a more limited scale, Austria has
given constitutional status to the European Human Rights Convention, using a
constitutional procedure by which treaties can become part of the constitution
when ratified by the same supermajority required for a constitutional
amendment.88
Of course, formal elevation of a human rights treaty to constitutional status
does not necessarily have any consequences. In a society where the
constitution is routinely violated, it may be an empty gesture. The effects
depend on many other factors, both social and legal. Among the legal factors,
one relevant question is how constitutionalization affects the available
remedies. Another is whether the right becomes directly applicable (or self-
executing).89
To the extent that constitutionalization does make a human rights norm
judicially enforceable, two objections might be raised from the human rights
perspective. One is the standardobjection to the justiciability of certain social
and economic rights. Courts as institutions may lack the technical capacity to
Eliminationof All Forms of DiscriminationAgainst Women;the ConventionagainstTorture

and Other Cruel, Inhumanor Degrading Treatmentor Punishment;and the Convention on
the Rights of the Child.
Article 75(22) also provides that the listed treaties can be denouncedby the executive
only with a supermajorityvote of the legislature. The supermajority procedure for
conferringand removing constitutionalstatus is less cumbersomethan the ordinarymethod
of constitutional amendment in Argentina, which requires both a supermajorityvote and
adoption by a specially elected convention. CONSTITUCION ARGENTINA [CONST ARG.]art.
30 (Arg.).
86. CONSTITUCION ARGENTINA [CONST ARG.]art. 75(22) (Arg.).
87. Levit, supra note 85, at 326-27.
88. See THEOOHLINGER, VERFASSUNGRECHT 23-25, 79 (4th ed. 1999). More precisely,
the convention achieved constitutionalstatus retroactivelyin 1964 by means of a curative
amendmentafter the constitutionalcourt had found that the procedureused at the time of
ratificationwas defective. See Peter Jann, Verfassungrechtlicherund InternationalerSchutz
der Menschenrechte: Konkurrenz oder Ergdnzung?, 21 EUROPAISCHE GRUNDRECHTE
ZEITSCHRIFT 1, 3 (1994).
The Austrian "constitution"is not a unified document, but ratherconsists of a basic
document(the Bundes-Verfassungsgesetz)supplementedby numerousamendingprovisions,
as well as incorporatedolder provisions dating back to the nineteenth century. OHLINGER,
supra, at 24-25.
89. Levit, supra note 85, at 343-44 (discussing failure of Argentine constitution to
resolve whetherhumanrights with constitutionalstatuswould be self-executing).
CERD, supra note 67, and CEDAW, supra note 68, were also ratified with
constitutional status in Austria, but subject to a condition that made them not directly
applicable. A further constitutional amendment was adopted to implement CERD.
OHLINGER, supra note 88, at 282, 317.
RIGHTS 1893
define and enforce such rights. That objection was previously mentioned in the
context of the South African constitutional court's interpretationof the rights to
housing and medical care. That court's response, supported also by the text of
the constitutional provisions, was to adopt a deferential but still substantial
standardof review of the legislature's chosen implementation measures.90 The
second objection is that international human rights-or some of them-should
inspire broad-ranging societal debate on local practices, and an ongoing politics
of reform. Constitutionalizing the rights and giving a small legal elite final
power to interpretthem may obstruct ratherthan facilitate that debate.
Assuming that these objections have been overcome or avoided, other
concerns may arise in practice. For illustration, Austria has had long
experience with constitutional enforcement of the European Human Rights
Convention, which contains a lengthy (though not comprehensive) list of civil
and political rights.91 The direct applicability and constitutional rank of treaty
rights authorize their use in constitutional review of statutes in the Austrian
constitutional court. The European Convention rights stand alongside other
rights in the Austrian constitution, both older and newer, often with similar
content. In their quality as convention rights, they possess an authoritative
interpreterin Strasbourg.
After an initial period of resistance, the constitutional court has generally
followed the European Court of Human Rights's interpretations of the
convention rights.92 Moreover, the European Court's influence has been
credited with modernizing the constitutional court's methodology of
interpretingand applying the other constitutional rights.93
In one set of cases, however, the Austrian Constitutional Court refused to
accept the European Court's dynamic interpretationof a convention right. The
provision at issue was article 6(1), the fair trial provision, which governs only
the determination of civil rights and obligations and criminal charges.94 The
convention has no general procedural due process clause, and this fact has
fueled suprapositive arguments to expand the scope attributedto the
triggering
factors "criminal charges" and "civil rights and obligations." The European
Court has steadily extended the field of application of article 6(1), while still
90. See supra notes 43-46 and accompanyingtext (discussingGrootboomand

Treatment
ActionCampaign).
91. J6rg Polakiewicz & Valerie Jacob-Foltzer,The European Human Rights
Conventionin DomesticLaw: TheImpactof the StrasbourgCase-Lawin States Where
Direct EffectIs Given to the Convention,12 HUMAN
RIGHTS
L.J. 65, 67-70 (1991).
92. See GeorgRess, TheEffectsof Judgments
andDecisionsin DomesticLaw,in THE
EUROPEAN SYSTEM FOR THE PROTECTIONOF HUMAN RIGHTS,
supra note 8, at 801, 824.
93. See, e.g., OHLINGER,
supra note 88, at 284-85; Jann,supra note 88, at 9.
94. ECHR,supranote64, art.6(1), 213 U.N.T.S.at 228. It requiresa "fairand
public
hearingwithina reasonabletime by an independent and impartialtribunalestablishedby
law." Paragraphs6(2) and6(3) providefurtherrightsin criminalcases. Paragraph 6(1) has
providedthebasisforratherelaboratecaselaw,predicated on ajudicialmodel. See OVEY &
WHITE, supranote 24, at 151-80.
retaining some areas of public law to which it does not apply.95 The growth of
article 6(1) caused difficulties for Austria, where less formal administrative
procedures were predicated on older public law concepts. In 1987 the
constitutional court protested against the European Court's liberalizing
interpretation, insisting that it created too much conflict between the
constitutionalized convention right and other, structural provisions of the
Austrian constitution.96 The constitutional court argued that the European
Court was departing too far from the intention of the convention drafters and
the Austrian ratifiers, and that following the Strasbourg interpretation would
exceed the proper limits of its own interpretive role.97 Only a new
constitutional amendment could impose so broad a vision of article 6(1) on
Austrian administrative procedures. The constitutional court also suggested
that to confer on the European Court creative power to change the content of
Austrian constitutional rights might amount to a "total revision" of the
constitution, which could not be accomplished by the ordinary amendment
procedure.98
Although this particular impasse was resolved by a constitutional
amendment reforming administrative procedures,99 it illustrates a central
dilemma produced by constitutional incorporationof a human rights treaty with
an authoritative interpreter. If incorporation of the treaty does not incorporate
authoritative interpretations, then constitutional review will not guarantee
future compliance with internationalstandards, and the constitutional court will
be authorized to maintain an idiosyncratic version of what is ostensibly the
treaty. The constitution-givers may be deprived of the suprapositive and
consensual expectations that underlay the incorporation. If incorporationof the
treaty does incorporate authoritative interpretations, then the meaning of a
portion of the national constitution is effectively delegated to an international
tribunal. The constitutional court will be bound by discretionary modifications
95. See Ferrazziniv. Italy, App. No. 44759/98 (Eur. Ct. H.R. July 12, 2001) (Grand
Chamber), http://www.echr.coe.int/Eng/Judgments.htm (reaffirming that article 6(1) does
not apply to tax disputes); Pellegrin v. France, 1999-VIII Eur. Ct. H.R. 207, 225 (Grand
Chamber)(redefining exception to article 6(1) for civil service disputes); OVEY& WHITE,
supra note 24, at 140-50.
96. Decision of 14 October 1987, B267/86, reprinted in 15 EUROPAISCHE
GRUNDRECHTE ZEITSCHRIFT
166 (1988). To shorten the tale, I omit details concerning the
effect and implicationsof Austria's reservationsto articles 5 and 6.
97. Id. at 172-73.
98. Id. at 173. Ordinaryamendmentsrequirea two-thirdsparliamentarymajority,but
total revisions require a referendumin addition. See OHLINGER,supra note 88, at 23-24.
The later accession of Austriato the EuropeanUnion was accomplishedby the first-everuse
of the total revision procedure. Id. at 49.
For a critical evaluation of the decision from an Austrian perspective, see Wilfried
Ludwig Weh, Der Anwendungsbereich des Art. 6 EMRK-Das Ende des "Cautious
Approach" und Seine Auswirkungen in den Konventionsstaaten, 15 EUROPAISCHE
GRUNDRECHTE
ZEITSCHRIFT
433, 439-45 (1988).
99. Ress, supra note 92, at 827.
RIGHTS 1895
of case law from time to time by the tribunal, possibly adopted without
significant attention to the institutional setting and expectations of the particular
country. In that case, the constitution-givers' expectations may be frustratedby
the tribunal. Moreover, ventriloquistic jurisprudence may not be conducive to
social respect for the constitutional court, or its own self-respect.100 (Perhaps,
however, that latter concern is exaggerated. In addition to numerous other
factors relating to conditions in the country, it may depend on the range of
issues left to the court's independent determination, including the constitutional
rights of local origin.) Ultimately, if the constitutional provision incorporating
the treaty is ambiguous as to its effect, interpreting that provision is the main
task for the constitutional court, applying some combination of consensual,
suprapositive, and institutional factors.
Far less tension should arise when a constitution incorporates a treaty that
lacks an authoritative interpreter,and does not make the international oversight
body's views more binding in domestic law than they are in international law.
The treaty body's construction of the treaty may be entitled to serious
consideration by the constitutional court, but the court would remain
empowered to disagree for sufficient reason.
2. Mandatory interpretive direction.
A different method for accommodating international human rights within

the domestic constitutional system is for a constitutional provision to command
that the enumerated constitutional rights be interpreted in accordance with the
corresponding international human rights. The Spanish Constitution of 1978
provides one model: "The norms relative to basic rights and liberties which are
recognized by the Constitution, shall be interpreted in conformity with the
Universal Declaration of Human Rights and the international treaties and
agreements on those matters ratified by Spain."101 Note that the benchmarks
are the Universal Declaration-a nonbinding instrument most of whose content
100. ProfessorLevit argues that, in a countrythat is attemptingto strengthenweak rule

of law values, accepting an internationaltribunal's reversal of a constitutional court's
decision "risks undermining the budding legitimacy of [the national]... court system."
Levit, supra note 85, at 331.
101. CONSTITUCION
[C.E.] art. 10(2) (Spain); see also CONSTITUCION
POLiTICAart.
93(2) (Colom.) ("The rights and duties mentioned in this Charterwill be interpretedin
accordance with international treaties on human rights ratified by Colombia.");
CONSTITUICAO art. 16(2) (Port.) ("The Constitutional and legal principles relating to
fundamental rights shall be construed and interpreted in harmony with the Universal
Declarationof Human Rights.");ROM.CONST.art. 20(1) ("Constitutionalprovisions on the
rights and freedoms of citizens shall be interpretedand applied in accordance with the
Universal Declarationon HumanRights, and with othertreatiesand pacts to which Romania
is a party.").
has been operationalizedin later treaties102-andagreementsalreadybinding

on Spain.
Coordinatinginterpretationmay provide some of the same benefits as
giving treatynorms constitutionalstatus,at least with regardto those human
rightswith analoguesalreadypresentin the constitution.Fornew democracies,
the availability of external precedents offers guidance in interpreting
constitutionalrights, and may bolster the authorityof the reviewing court
against other political forces. In established constitutional systems,
coordinationenables the proceduresfor constitutionalreview to assist in the
implementationof internationalhumanrightsobligationsthat might otherwise
lie outsidetheirjurisdiction.Thatmay providea particularlystrongvehicle for
nationalenforcementof internationalnormsthatwouldbe weaklyprotectedby
overburdened internationalcourtsor by tribunalslackingremedialpowers.
Coordinatedinterpretationmay not always function smoothly, however.
First of all, there is not one uniforminternationalhumanrights system with
which to coordinate. The internationalsystem includes global and regional
human rights treaties, and general and particulartreaties with overlapping
content. If interpreting"in conformitywith" a treatymeans interpretingas
identical to the treaty, then multiple references give constitutionalcourts
inconsistentdirections. Perhapsthen, such clauses should be understoodas
makingthe treatiesthe minimumlevel of constitutionalprotection.103In one
notable case, however, the Spanish constitutionalcourt used article 10(2)
restrictively,to borrowa groundof limitationof free expressionnot expressly
containedin the Spanishconstitutionfromthe EuropeanConvention.104
In fact, multiplereferencesmay free the court from the need to equatea
constitutionalrightwith a specifiedtreatynorm,and allow the courtto choose
amongor compromisevaryingtreatynorms. Directingthe courtto interpreta
constitutionalright in accordancewith the authoritativeinterpretationsof a
single treaty, such as the Europeanor American Convention,could create
problemssimilarto those causedby incorporatingthe internationalrightin the
constitution.105
102. See Gudmundur Alfredsson & Asbjmr Eide, Introduction to THE UNIVERSAL
DECLARATION OF HUMANRIGHTS:A COMMONSTANDARDOF ACHIEVEMENT, at xxx-xxxi
(1999). Some principles set out in the Universal Declaration have also passed into
customaryinternationallaw, althoughviews differ on how many. See id. at xxxi-xxxii.
103. One may hope that the internationalhuman rights system has coordinatedall of
the state's obligations, with the help of the savings clauses if necessary, so that they do not
conflict; and then perhapsany additionalrights containedin the nationalconstitutioncan be
construedconsistentlywith the internationalones.
104. See Judgment 62/82 of 15 October 1982, discussed in Polakiewicz & Jacob-
Foltzer, supra note 91, at 134-35. The case involved the "protectionof morals,"a criterion
mentioned in article 10 of the European Convention but not in article 24 of the Spanish
constitution. One might doubt whether the outcome would have been different if the court
had been forced to rely on the criterialisted in article24.
105. See supra PartII.B.1.
RIGHTS 1897
Greater interpretive freedom results from another mandatory interpretive

rule, the requirement to consider international interpretations in construing a
constitutional right. The well-known provision of the South Africa constitution
exhibits a version of this technique:
Wheninterpreting the Bill of Rights,a court,tribunalor forum-
(a) must promotethe values that underliean open and democraticsociety
basedon humandignity,equalityandfreedom;
(b) mustconsiderinternational law; and
(c) may considerforeignlaw.106
The South African constitutional court has viewed this direction as requiring it
to consider international norms, including interpretationsthereof, regardless of
whether they are binding on South Africa or whether they come from other
regional systems.107 The court noted that "the weight to be attached to any
particularprinciple or rule of international law will vary."108
A "must consider" rule gives particularly strong consent to the influence of
international human rights norms, and facilitates their critique of local
practices. At the same time, it affords ample room for examination of
consensual, suprapositive, and institutional factors that may justify a different
interpretationwithin the context of the national constitution.
If the constitution instead provided that the court "may consider"
international law in interpretingconstitutional rights, it would provide adequate
consent, and equally ample leeway. It would give less assurance, however, that
critical capacities would be brought to bear.
Strictly speaking, there is another possibility: The constitution could
expressly forbid the court to consider international law in construing
constitutional rights. I know of no constitution that contains such a clause.
3. Voluntaryconsideration.
In the absence of express textual direction, a constitutional court may

nonetheless choose to include international human rights norms in its
interpretive deliberations.109 Different constitutions may afford different
justifications for doing so.
Some constitutions express a positive attitude toward international
cooperation, through their rhetoric or their operational provisions or both.
106. S. AFR. CONST.? 39(1) (1997).

107. See South Africa v. Grootboom, 2001 (1) SALR 46, 63 (CC). The Grootboom
case involved considerationof the Committee on Economic, Social and Cultural
Rights's
interpretationof the ICESCR,which South Africa had signed but not ratified. Id. & n.29.
108. Id. at 63.
109. Inclusion in the deliberation need not be explicitly reflected in the published
judgment. Cf Slaughter, supra note 54, at 105-06 (discussing "tacit emulation" among
internationaltribunals).
1898 STANFORD LA WREVIEW [Vol. 55:1863
Several provisions of the postwar German constitution, for example, have led
the German constitutional court to speak of a principle of "openness to
international law,"110 and the constitution authorizes participation in regional
integration.111 Although the German constitutional court is influential and self-
confident, it has also accepted the principle that interpretationsof the European
Convention should be taken into consideration in construing constitutional
rights, to the extent that the level of protection would not be decreased.112 A
prominent example has been the elaboration of the presumption of innocence, a
convention right not mentioned in the German constitution but read into its
guarantee of the rule of law. 113
Institutional factors may also favor a constitutional court's consideration of
international interpretations, particularly those that are binding on its state.
Coordination of the mechanisms for enforcing fundamentalrights may improve
compliance with constitutional rights. Evaluating the consequences of
consistent coordination with a particular treaty regime will depend upon the
context. For example, national systems where compliance with constitutional
court decisions is low may benefit from the support of international oversight
mechanisms; stronger international mechanisms may provide more support to
constitutional values than weak ones. Structures of regional cooperation may
justify confidence that interpretations by regional tribunals will approximate
national values.
Even without a will to coordinate, a constitutional court may find practical
institutional advantage in case-by-case consideration of solutions that other
tribunals have adopted to deal with similar problems. They should be
examined with care-even if optimal for their original system, they may not be
effective elsewhere, and they may have been based as much on consensual
constraints as on institutional benefits.
Finally, from the suprapositive perspective, constitutional values may be
well served by consideration of interpretationsfrom other tribunals professing
similar values. Once more, caution is justified because external interpretations
may rest on some mix of consensual, institutional, and suprapositive factors.
110. Literally, "friendliness to international law" (Vdlkerrechtsfreundlichkeit),a

construction comparableto "user-friendly."
111. GRUNDGESETZ [GG] art. 23 (F.R.G.) (added 1990). The earlier basis for
participationin European integration was article 24(1), which speaks more generally of
internationalorganizations.
112. Judgmentof 26 March 1987, 74 BVerfGE 358, 370 (citing the savings clause of
ECHR art. 60); see Paul Kirchhof, Verfassungrechtlicherund internationalerSchutz der
Menschenrechte: Konkurrenz oder Ergdnzung?, 21 EUROPAISCHE GRUNDRECHTE
ZEITSCHRIFT 16, 31-32 (1994); Polakiewicz & Jacob-Foltzer,supra note 91, at 80. (I cite
Judge Kirchhof's article deliberately,because he was also the authorof the court's famous
Maastrichtdecision, 89 BVerfGE 155 (1993), which dramaticallystated the limits of the
court's cooperationwith the Courtof Justice of the EuropeanCommunities,in the course of
construingthe rightto vote underthe Germanconstitution.)
113. See Polakiewicz & Jacob-Foltzer,supra note 91, at 80.
RIGHTS 1899
But a constitutionalcourt that takes seriously the suprapositiveaspect of its

constitutionalrights shouldwelcome the criticaledge of comparison. For this
purpose, the other tribunal's argumentsin favor of its conclusion are as
importantas the conclusionitself. Admittedly,a constitutionalcourtthat sees
its task as purely consent-basedand that ascribesno suprapositivecontentto
constitutionalrightsmay regardsuchinformationas irrelevant.
The consequencesof this analysisfor U.S. constitutionaladjudicationare
fairly straightforward.The United States Constitutionexpresses a degree of
openness to internationalcooperationthat was innovativefor the eighteenth
century,114but that does not indicate a consensual preference regarding
participationin twenty-first-centuryinternationalregimes. In institutional
terms,the U.S. judiciaryperformsfairlyeffectively in enforcingthe individual
rights that it views as constitutionallyprotected. Few weaknessesin judicial
protectionof those rights would be amelioratedby reinforcementfrom the
nonbinding oversight mechanisms of internationaltribunalslike the U.N.
Human Rights Committeeand the Inter-AmericanCommission on Human
Rights. Those tribunals generally contributemore to the monitoring of
situationsin which humanrightsare not guaranteedby U.S. constitutionallaw
thanthey do to strengtheningconstitutionalprotection. The United Stateshas
not ratifiedthe AmericanConventionon HumanRights or submittedto the
jurisdictionof the Inter-American Court;nor has regionalintegrationin North
America proceededto a stage comparableto Europeanintegrationtoday or
even twenty years ago. Thus, institutionalfactors give the United States
SupremeCourtfar less reasonto coordinateits interpretations of constitutional
rights with the interpretationsof the relevantinternational
tribunalsthan they
give to Europeanor LatinAmericancourts.
There remains the strategyof examining the reasoningin international
elaborationsof humanrights for the functionalor normativeinsight that they
contain. United States courts may benefit from the practicalexperienceof
other tribunalsthat have already confrontedhuman rights violations newly
occurring,or newly perceived in the United States. And to the extent that
constitutional adjudication in the United States has any suprapositive
component,and does not consist simply in replicatinggovernmentalusages of
the eighteenthcentury,the normativeargumentsof internationalhumanrights
tribunalsare at least potentiallyrelevant. Such argumentsshouldbe examined
with careanddiscernment,andthey shouldnot be dismissedcategorically.
114. See, e.g., U.S. CONST. art. I, ? 8, cl. 10 (authorizing Congress to "define and
punish... Offences against the Law of Nations"); id. art. VI, cl. 2 (including treaties in
supremelaw of the land).
CONCLUSION
The coexistence of two positive legal regimes for the protection of

fundamentalrights createsboth opportunitiesand challenges. The interaction
of the three aspects of fundamentalrights producesdivergentinterpretations
with competing claims to normativeauthority. Internationalhuman rights
regimes have limited capacity to accommodate local variation without
compromisingtheircentralpurpose.
Liberaldemocraciesrespondto this situationin differentways. Some see
institutional benefit in coordinating constitutional interpretation with
internationaltribunals. That choice may reflect the weaknessof the national
system, the strength of the particulartreaty system, or an internationalist
orientationof the nationalsystem.
Othersmaintaingreaterindependence.The two systemsmay nonetheless
cooperateby seriouslyconsideringone another'sinterpretations, and engaging
in respectfulmutualcritique. Wherethat process does not produceeventual
convergence,it may at least illuminatethe basis of continueddisagreement.

Gerald Neuman

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Stanford Law Review

Human Rights and Constitutional Rights: Harmony and Dissonance

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* HerbertWechsler Professorof Federal

For liberalstatesthatactivelyenforceconstitutionalnorms,the relationship

In this Part, I will distinguishthree importantfeatures sharedby both

3. The EuropeanUnion, however, is neithera treatyregime nor a nationalconstitutional

A. Three Aspects of Fundamental Rights

It is time to definethe consensual,suprapositive,

1. The consensual, suprapositive, and institutional aspects.

Fundamentalrightsprotectedby positive legal regimescommonlyexhibit

5. ViennaConventionon the Law of Treaties,May 23, 1969, art.31, para.1, 1155

objection of individual states. See RESTATEMENT (THIRD)OF THEFOREIGNRELATIONS LAW

13. Predominantly,not exclusively: Most humanrights norms extend both to nationals

Article 14 of the InternationalCovenant on Economic, Social and CulturalRights is a

Similarly, the interpretation of international human rights treaties is also

repeatedlyin the EuropeanHumanRights Convention. These standardsmay then be subject

2. Overlaps and divergence among the three aspects.

Within a system of national constitutional rights, and within the

and coroner's inquest); CLAREOVEY & ROBINC.A. WHITE,JACOBS& WHITE,EUROPEAN

do not. Arguments of each kind may be combined, and a conclusion stated.

B. Potential Dissonance Between the International and Constitutional

The international human rights regime and the national constitutional

27. Inpropercontext,thatis a legitimateformof advocacy.

rights,however,may divergebecauseof theirseparatebases of legitimacyand

1. Divergence within aspects.

The consensualandsuprapositiveaspectsof fundamentalrightseach create

domestic constitutional norms.30 Most importantly for the present context,

their consensual aspect, constitutional provisions recognizing the inviolability

35. See BUNDES-VERFASSUNGSGESETZ [B-VG] [Constitution] art. 50(3) (Aus.);

systemsmay be able to rely upona greaterexistingcommonalityof values,and

constitutional courts seek to achieve the effective implementation of

2. Conflicts across aspects.

The relationshipbetween the internationalhuman rights regime and

Conflictsmay also resultfrominstitutionallybasedinterpretations at either

Thus, interpretation of fundamentalrightsmay divergeat the international

47. See H. LAUTERPACHT, AN INTERNATIONAL BILLOFTHERIGHTSOFMAN (1945).

enforcement, including at a minimum declaratory remedies.49 A U.N. high

Part II.A discusses international efforts to accommodate national

A. International Accommodations to National Constitutional Rights

Interpretation of particular human rights by international tribunals

53. Cf La Expresi6n "Leyes" en el Articulo 30 de la Convenci6n Americana Sobre

be effectively implemented. Tribunals make such suprapositive and

54. See, e.g., Claire L'Heureux-Dube,The Importanceof Dialogue: Globalizationand

The European Court of Human Rights has long engaged in evolutive

H.R. (ser. C) ?? 106, 162-165 (2001); Caso TribunalConstitucional[ConstitutionalCourt

common standardscan enable the EuropeanCourt to accommodatediverse

which the Stateconcernedexercisesits jurisdiction,they are subjectto review

Human rights treaties frequently contain savings clauses, or "most

constitution's prohibition of religious proselytizing, defended as a protection of

The international law institution of reservations to treaties also contributes

States sometimes take reservations and understandings because of other

74. ICCPRDeclarationsand Reservations(Feb. 5, 2002), http://www.unhchr.ch/

may safeguard against future interpretations that would be objectionable on

B. National Constitutional Accommodations to International Human Rights

The international human rights regime has limited capacity to

1. Giving constitutional status to human rights treaties.

National constitutions often address the relationship of treaties to the

79. All quotations of non-English-languageconstitutions are from the most recent

in rank to federal statutes.81 Some national constitutions go further by giving

Eliminationof All Forms of DiscriminationAgainst Women;the ConventionagainstTorture

90. See supra notes 43-46 and accompanyingtext (discussingGrootboomand

2. Mandatory interpretive direction.