A comment on Professor Carlos Bernal’s thoughts
Reading the most recent publication of Professor Carlos Bernal here on Constitutional Discourse about the fundamental features of American Constitutionalism in light of the 2020 Report on the Commission on Unalienable Rights lead me to dust off an old article I wrote back in 2020 when the Report was originally published. Bernal’s thoughts have induced me to look at the Report’s findings in light of European constitutionalism and its most fundamental features as they may be reflected also by the Report in a comparative point of view. I think that there are numerous grounds for cross-fertilization between American and European ways of thinking about constitutionalism and human rights, and as Bernal argues, “dialogue concerning comparative practices is quintessential to improvement.”
In the spirit of this dialogue, I would like to address some of his thoughts on American Constitutionalism through the eyes of a European constitutional scholar, with some references to the current debates in the realm of European constitutionalism. The particulars of the 2020 Report might already be known to many who are familiar with recent developments of US human rights policy, but it was essentially the product of an independent expert commission comprising 11 experts. Its objective: to provide a basic description of US constitutional thought and human rights perceptions down to the level of defining principles in terms of the natural law origins that define American commitments to innate and unalienable rights. Bernal’s post described the seven basic functions of these rights, so I am not going to focus on those, but rather treat the question what the findings of the Report might offer for thinkers regarding the most recent European debates in terms of shifting policies, which was the intended goal of the Report at the outset, setting examples and providing patterns for other countries.
With the gradual evolution of the human rights framework in the Council of Europe and also more recently in the European Union, the fundamental question that has also been at the heart of the Commission’s mandate is: how can the US preserve its leading role in promoting human rights internationally. In thinking about the future of Europe, many facets of the EU’s role as a global actor have come to the surface and with the continuing influence of the Charter of Fundamental Rights, questions of the EU’s fortitude in global relations also come to the foreground in the human rights context. (Early examples to this can be many forms of human rights dialogue – reinforced by the institutional changes of the Lisbon Treaty – used by the EU (and the EEAS) to influence both European and non-European legal systems via this “foreign policy tool” to harmonize human rights approaches.)
If we talk about the Report’s findings, relating them to European debates, we might notice the many points it makes about the role of subsidiarity. The Report seems to connect the universality of human rights with their pluralism, or as we call this in Europe, particularity via subsidiarity as ‘connective tissue’. Subsidiarity as a principle that permeates human rights thinking and regulation appears in the Report as it traces back to the 1948 UDHR, which is emphatic because it focuses on the “holistic understanding of individual rights in community” – as the Report states. According to the Report, the UDHR set forth a minimal set of rights (adopted by almost complete consensus) thus ensuring that the universal principles laid out therein will be – in every case – concretized in particular contexts, and this is the one and only possible and practical way to allow for such particularity/pluralism establishing an actual common understanding of the nature and content of these rights across cultures and nations.
The Report remains virtually silent on the issue of the changing social contract, which can be experienced by a gradual shift in the world’s political communities from the relinquishment of rights (in order to gain other rights) to increasing and overarching rights claims. What the Report does in this context, is that it evaluates “new rights”, which – if left unchecked – might weaken the force of human rights protection by a continuous and unstoppable translation of changing political preferences into newer and never legal categories. (As it will be also emphasized below, in accordance with the Report’s findings, these checks or this control over this ‘translation process’ is to be exercised by the sovereign nations-state.)
Within this context, the Report also looks at the issue when American foreign policy can take into account the possible support for a new human rights claim. Among all relevant conclusions, I would like to emphasize the one that assigns the baseline for this assessment to the originalist approach to the text and interpretation of the UDHR, then looking for possible answers in comparison with American constitutional principles, moral, political and legal tradition, by finally asking the question whether a new rights-claim can be properly inserted into existing systemic structures of human rights.
In the following, the Report also addresses the expansion of meta-juristic (extralegal) standards, looking at claims originating in such organizations that seem to operate with democratic checks and balances, which could not have been subjected to such necessary debate inherent to democratic processes in a nation state that could have solidified their legitimacy. After stating that promoting unalienable rights in other countries might be fruitful in many ways without infringing upon the sovereignty of these nation states, the Report identifies seven challenges in foreign policy action directed human rights promotion. These are: (i) the lack of human rights culture, (ii) failing international organizations, (iii) “autocracy challenge”, (iv) new technologies and rights, (v) migration, (vi) global health, pandemic, (vii) rise of violations by non-state actors.
Contrary to Bernal’s seven points, which gave rise to my writing of this reply, I am not going to treat each of these seven challenges individually, as they each would be worthy of their own dedicated blogposts. However, I would briefly like to say a few words about what the Report characterizes as the decline of “human rights culture”. The Commission talks about the decline of dignity and a “waning of concern” for basic rights. We are aware how many new rights tend to emerge – especially these days – from the many possible “penumbras” of the human rights universe, and how these rights might be frowned upon by many that are in favor of relying on a common constitutional heritage that embodies the foundation of our human rights culture. These many new details (new rights-claims) are what the Report rightly characterizes as being at fault for diverting the attention of many international organizations, not or no longer being able to fulfill their intended roles. (Let us only consider ongoing talks about UN reform, for instance.) In this context the Report also aptly states: “Diplomacy is always to be preferred but is sometimes inadequate.”
To address these challenges the Report compiles a list of 12 conclusions, and from the point of view of current debates on European constitutionalism, I would like to emphasize only four now.
1. According to the Report, the universality of human rights does not mean uniformity by bringing these rights to life. In other words, there is adequate room for particularity/pluralism until it reaches the threshold of cultural relativism. I think this is one of the strongest conclusions of the Commission’s work.
2. The above particularity is transformed into ‘margin of appreciation’, which the nation states are told to have in basing their human rights policies on their respective national traditions, and
3. National sovereignty is a vital issue of ensuring human rights.
4. As for subsidiarity, already addressed above, the Report states – in obvious reliance on the American model of federalism – that decisions need to be brought on the level closest to the life of the given community, and levels of decision-making above these may only intervene in these processes by assisting and not replacing them.
It is a very peculiar feeling for a European constitutional scholar such as myself to be reading these thoughts in the Report made in the USA any by the USA. It is peculiar because the main findings of the Report seem to echo or resonate the key arguments and keywords, slogans of every-day European (and also Hungarian) debates about European constitutionalism. These keywords are: sovereignty, essential state function, subsidiarity, nation states and their margin of appreciation in shaping legal regulation of human rights, and the ability of inter- (and supra)national organizations in holding them back. And all this in a text, which was compiled with the initial objective of serving as an exhaustive commentary of the American constitutional tradition based on one of the most influential human rights documents of the United Nations, describing why and how the United States can and may support human rights efforts of other countries.
To my mind, this just means, that no matter the context of constitutionalism, the basic debates are exactly the same, whether we are in Europe or in America.
Nil novi sub sole – There is nothing new under the sun. And this is why we can and should talk about these issues to improve our constitutional systems through the migration of constitutional ideas and cross-fertilization, despite all of the “caveats” that Professor Bernal calls attention to, in reference to Binyamin Blum’s work, where he talks about the problems of “external imposition” and “emulation” or foreign ideas, patterns or practices.
Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail: firstname.lastname@example.org