JUSTICE - No. 71

10 No. 71 JUSTICE prehistory, with the minorities regimes. The suffering of the Jewish people as a collectivity propelled the world to seek to re-found itself with human rights as a normative core, even as the State of Israel was being formed as a kind of completion of the European project of territorial nationalism that had accelerated after the springtime of nations in 1848. For a moment, at least, there was a vision that general human rights were aligned with a particularist form of liberation. Let me now turn to the postwar period to describe the Age of Rights. At one level, the impact was at the international level − the formation of an ever-denser network of treaties, committees and regional human rights arrangements. The thick set of institutions, special rapporteurs and procedures at the United Nations is one institutional manifestation. Yet in a world of war and abuses, it is frankly hard to know what the impact of these institutions is. Lauterpacht’s frustration remains intact. It is my belief that human rights commitments are best advanced through the creation of national institutions, that they take life through particularist commitments in the life of states. A central mechanism here is national constitutions. As Henkin noted, “human rights are enshrined in the constitutions of virtually every one of today’s … states − old states and new; religious, secular and atheist; Western and Eastern; democratic, authoritarian and totalitarian; market economy, socialist, and mixed; rich and poor, developed, developing and less developed.”14 The age of rights is captured by an expanding set of norms in nation-states, which are the entities best positioned to protect them − and also the most dangerous entities in terms of abuses. Constitutional rights have expanded dramatically since 1948. The average national constitution had 22 rights in 1948; today that number is 49. Figure 1 demonstrates the expansion in textual articulation of rights. Figure 1: The Rise of Rights The growth of rights reflects a kind of technological expansion, in which the conceptual apparatus of rights has been deployed to an ever growing set of beneficiaries. If the minorities regime focused on collective rights, such as language and religion, the Universal Declaration was framed as being directed at every individual on earth. We have seen a great expansion in socioeconomic rights, like those of health care, education and social security, but also rights that require major state apparatus, such as a right to clean environment (now in roughly 40% of constitutions).15 Indeed, in recent years, we have seen rights spread from humans to animals, and, in some constitutions, mother nature itself. Obviously the mere articulation of a right in a national constitution is neither necessary nor sufficient for its enforcement. But one aspect of the age of rights is the spread of concepts, and so I focus on the decisions of constitutional drafters. When a set of drafters get together to write a constitution, they are engaged in a particularist project. Last year I worked with the country of Tuvalu in the middle of the Pacific to reform its constitution. A major issue was balancing rights of equality and religious freedom with traditional customs and practices. In doing so, some of the discussions questioned whether rights were a foreign imposition, but it was agreed that they had over time become Tuvaluan and so should be kept in the Constitution. The particular set they chose is theirs. But how do they decide which ones to consider in the first place? Where does the menu come from? This is where the UDHR comes in. Along with my colleague Zachary Elkins, I have shown that the UDHR formed a kind of menu for national constitution-makers. In a series of statistical analyses, we show how constitutions adopted after the UDHR became more similar to it.16 Using our Comparative Constitutions Project data, we identified a list of 117 rights that are found in constitutions. (There are others that are outside of our ontology, but we believe that all the widely 14. Henkin, supra note 3. 15. See Tom Ginsburg and Zachary Elkins, “Ideation and Innovation in Constitutional Rights,” 16(2) LAW AND ETHICS OF HUMAN RIGHTS 217-44 (2022). 16. Zachary Elkins, Tom Ginsburg and Beth Simmons, “Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice,” 54(1) HARVARD INTERNATIONAL LAW JOURNAL 201-34 (2013).

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