Research Matters: Tom Ginsburg on “Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights”

Research Matters is a biweekly feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Professor Tom Ginsburg wrote “Getting to Rights…” with Zachary Elkins, of the University of Texas at Austin, and Beth Simmons, in the Harvard University Department of Government. It was published this year in the Harvard International Law Journal. The paper explores the post-World War II relationship between the rights found in international treaties and the rights protected in national constitutions developed in this time period. The authors used the Comparative Constitutions Project database, which Ginsburg and Elkins co-direct with James Melton, and which recently partnered with Google to launch constituteproject.org.

Q. How did this work come to be?

A. We started working on it about five years ago. It comes out of our Comparative Constitutions Project, a global survey of the contents of all written constitutions for independent states since 1789. One of the natural questions one wants to ask about that is, what are the forces that determine the content of written consitutions? That’s been a particularly interesting question in the case of human rights. There has been a lot of work on international human rights mechanisms, treaties, bodies, and things like that, but very little that has looked at national constitutions as a kind of vehicle for the emergence of the human rights enterprise. If you think about it, rights are found in all kinds of documents, and national constitutions are pretty closely associated with rights, so we wanted to investigate whether national constitutions were affected by the increase in international legal instruments that has occurred after World War II. Understanding how rights come to be and what makes them effective is a pretty important policy question, as is the consideration of the relative role of international instruments versus national ones.

Q. What did you find?

A. First of all, we found the international human rights instruments, not surprisingly, were themselves informed by prior constitutional practice. But then, very interestingly, we found that those international human rights instruments tended to create a kind of convergence for national constitution writers who came thereafter. Imagine you have 50 different restaurants and then one becomes very popular. Others will copy that one, and you might have convergence in the menus of, for example, diners in New York City. And what we showed is that the international treaties have this kind of effect on national constitution writers. The rights that were included in the international instruments, chosen out of a larger pool of possible rights that could have been included, tended to become much more popular in national constitutions. That was an interesting finding that suggested that people who study international human rights ought to be looking at national documents as a way in which these things might get implemented. And it also says that we can’t understand national constitutional practice without really looking at international instruments. It’s all one big sphere of public law.

Then we wanted to find out whether it actually makes a difference on the ground. And what we showed is that including a right in a national constitution adds to the likely efficacy of the right. These two levels of law – international and national – are reinforcing, and that of course does have important implications for policymakers. If you’re a human rights advocate, you ought to push for the inclusion of these rights in both national and international instruments, and that will make a difference on the ground.

Q. How will this research promote human rights?

A. This particular paper is part of a broader book project on rights. We’re trying to figure out the conditions under which formal rights actually work. I think it can make a difference. It will help human rights advocates figure out where to push, the kind of environmental conditions under which their advocacy can be more effective. It can help national constitution writers who want to advance human rights and aid officials who are trying to work on the development of legal schemes. What kind of rights, and in which contexts, are their efforts most likely to be effective?

Q. What was rewarding about this work?

A. There are a gazillion papers on human rights. It’s been a major movement for several decades, and there are really profound questions to explore concerning the history of human rights. There’s a lot of good work on that in the History Department and other places at the University of Chicago. But I think we managed to show something genuinely new, that no one else had ever examined, about the relationship between national and international rights.