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54 Harv. Int'l L.J. 61 (2013)
Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice

handle is hein.journals/hilj54 and id is 67 raw text is: VOLUME 54, NUMBER 1, WINTER 2013

Getting to Rights: Treaty Ratification,
Constitutional Convergence, and Human
Rights Practice
Zachary Elkins, Tom Ginsburg & Beth Simmons*
This Article examines the adoption of rights in national constitutions in the post-World War II period in
light of claims of global convergence. Using a comprehensive database on the contents of the world's
constitutions, we observe a qualified convergence on the content of rights Nearly every single right has
increased in prevalence since its introduction, but very few are close to universal We show that interna-
tional rights documents, starting with the Universal Declaration of Human Rights, have shaped the
rights menu of national constitutions in powerful ways. These covenants appear to coordinate the behavior
of domestic drafters, whether or not the drafters' countries are legally committed to the agreements (though
commitment enhances the effect). Our particular focus is on the all-important International Covenant on
Civil and Political Rights, whose ratification inclines countries towards rights they, apparently, would
not otherwise adopt. This finding confirms the complementary relationship between treaty ratification and
domestic constitutional norms, and suggests that one important channel of treaty efficacy may be through
domestic constitutions.
Two decades ago, Professor Louis Henkin began his magisterial The Age of
Rights with a ringing claim of universality:
Ours is the age of rights. Human rights is the idea of our time,
the only political-moral idea that has received universal accept-
ance. The Universal Declaration of Human Rights, adopted by
the United Nations General Assembly in 1948, has been ap-
proved by virtually all governments representing all societies.
Human rights are enshrined in the constitutions of virtually every
one of today's 170 states-old states and new; religious, secular,
and atheist; Western and Eastern; democratic, authoritarian, and
* Tom Ginsburg is the Leo Spitz Professor of International Law and the Ludwig and Hilde Wolf
Research Scholar and Professor of Political Science at the University of Chicago, and Research Professor at
the American Bar Foundation. Zachary Elkins is a Professor of Political Science at the University of
Texas. Beth Simmons is Clarence Dillon Professor of International Affairs and Director of the
Weatherhead Center for International Affairs at Harvard University. Thanks to Megan O'Neill and
Carolyn Tan for research assistance. We received helpful comments on related work from Fred de Albu-
querque, Curtis Bradley, Jianlin Chen, Harlan Cohen, Larry Heifer, Aziz Huq, James Melton, Frank
Michelman, Gerald Neuman, Beth Simmons, Sidney Tarrow, and audiences at the law schools of the
University of Georgia, Cornell University, Duke University, Harvard University and the University of
Minnesota, and the Law and Society Association. We gratefully acknowledge the support of the National
Science Foundation, Award No. SES-0648288 and our colleague James Melton.

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