The processes of constitutionalization and internationalization of human rights

Written by Julia Garcia Alvarez, EST Working Group on Human Rights

Introduction

The constitutionalization of fundamental rights was the first process in the historical evolution of human rights. It was a milestone for the recognition of human rights, as it triggered the subsequent processes of generalization, internationalization, and specification of human rights (A. Iglesias Garzón, 2020). This short article will focus on the characteristics of the dual processes of constitutionalization and internationalization of human rights as two fundamental historical moments for the configuration of human rights systems, highlighting the European system as the most developed regional system of human rights protection. Whilst the process of constitutionalization consisted of the positivization of fundamental rights in national constitutions, the process of internationalization focused on the expansion of the recognition of human rights at the international level, building and transforming the core content of international law and consolidating the universality of human rights  (L. Henkin, 1989).

The process of constitutionalisation of human rights

The constitutionalization of human rights took place during the transition to modernity. The liberal revolutions and the French Declaration of the Rights of Man and the Citizen (1789) are starting points to understand the rule of law and the constitutional state today (A. Llamas, 2012). The most important features that define constitutionalism are, on the one hand, the ordinary revocability of power expressed in the constitution, and concretized in the democratic participation of people and on the other hand, the separation of powers and the guarantee of fundamental rights, which are established as a limit to political power (E. Diaz, 2011).

In this context, the constitutionalization of fundamental rights is marked by their positivization, the embodiment of rights in a constitutional text, endowing them with the efficacy and value of supreme norm, which places them at the top of the legal system’s hierarchy. The positivization of human rights must be understood taking into account the dualistic conception of rights, as well as the triangle between morality, law, and democratic power. This dualistic understanding of rights is characterized by the projection of ethical requirements in law through democratic power. The constitutionalization of rights and the confluence of law and morality are only possible in a democratic context because in an undemocratic scenario they become inoperable and non-enforceable (F. J. Ansuátegui, 2014).

Other consequences of the process of constitutionalization of human rights can be highlighted, such as the consideration of human rights as a limit against political power, because they are on the top of the legal hierarchy, above laws elaborated by the Parliament. In this sense, human rights are triumphant over the arbitrary and abusive decision of political power, in other words, triumphs over majorities. Since fundamental rights are a limit against political power, fundamental rights are resistant to power (Dworkin, 2018). In addition, human rights are not absolute, but they present justified limitations. Fundamental rights adapt ethical requirements to a complex reality whose casuistry provokes the collision and conflict of rights with each other, therefore fundamental rights are limited by other rights and subject to the proportionality test in cases of conflict among rights (R. Alexy, 2017). For example, during the Covid-19 pandemic, there was a conflict between the right to health and the freedom of assembly. On many occasions, courts supported the decision to limit the freedom of assembly in favor of the right to health due to sanitary circumstances.

The process of internationalization of human rights and the European system

As mentioned above, the process of internationalization is the continuation of the process of constitutionalization and generalization of human rights. Generalization consists of the expansion of human rights protection towards other groups of society but it is still limited to a national scope and it focuses on ensuring alignment between human rights and the Constitution. The process of internationalization, on the other hand, is a milestone on the achievement of the universality of human rights because this process culminates with the consolidation of a body of international human rights law (A. Iglesias Garzón 2020). This is characterized by the elaboration and ratification of the UN Charter, the Universal Declaration of Human Rights, the UN international covenant on civil and political rights, and the covenant on economic, social, and cultural rights. (O. De Schutter, 2019).

International human rights law is strongly developed at a regional level as well. The regional systems of human rights; the European, Inter-American, and African systems are built as a consequence of the process of internationalization of human rights. Different historical and political factors encouraged each region to be concerned about human rights issues, growing out of regional solidarity developed during movements for independence and after the Second World War (D. Shelton, 2013). The European system of human rights is specially developed, and it counts with two levels of protection. On the one hand, the system of the Council of Europe, that elaborated the European convention of human rights was ratified by 47 European countries. This convention is legally binding and its compliance is monitored by the European court of human rights. On the other hand, the human rights system of the EU, whose legal text is the EU charter of fundamental rights, ratified by all EU member states. The EU has strongly engaged with the protection of human rights since art. 2 TEU recognise human rights as a core value of the EU, thus human rights protection is part of the political identity of the EU. The court of justice of the European Union is in charge of monitoring compliance with the charter (S. White, 2010).

Therefore, the internationalization of human rights has transformed the protection of human rights significantly by increasing their efficacy and promotion worldwide, as a result of the elaboration of international treaties and the establishment of new legal (and non-legal) mechanisms to monitor and interpret those treaties. Furthermore, the internationalization of human rights has transformed international law. The protection of the individual began to be considered an end in itself, above international customs and international relations among States. Thus, the growing importance of the individual and other non-state actors for human rights protection gives rise to a new conception of international law (A. Iglesias Garzón 2020).

Conclusions

To conclude, once the process of constitutionalization of fundamental rights is completed, the process of internationalization aims at the development of these rights at the international level, thus reinforcing the effectiveness in the protection of rights and granting the characteristic universality of human rights. Despite the shortcomings that international human rights law still faces and the skepticism regarding the universality of human rights, the process of internationalization is still in an embryonic stage and will be further developed in time, which may result in new processes of evolution of human rights. Proof of this is the continuous evolution of international law as a consequence of debates for the elaboration of new treaties proclaiming new human rights and recognising new accountable actors in the protection of such rights, e.g., the ongoing negotiations for the elaboration of the UN treaty on the right to development or the UN treaty on business and human rights. On the European side, there is also a continuous development of human rights treaties, regulations, and directives. For instance, the EU general data protection regulation is the most protective international regulation on privacy law. It introduces the recognition of data protection as a new fundamental right and it influences data policy worldwide (C.J. Hoofnagle, B. Van del Sloot, F. Zuiderveen, 2019). 

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