Less mature initiatives exist in Asia and the Arab region, but their relative lack
of development means that citizens of these countries need to rely more on the UN
system.
12.2.5 Constitutional Human Rights
At the domestic level, the Basic Law of the Federal Republic of Germany of 1949
(eventually the constitution of the reunified German state) began a wave of right-
entrenching constitutionalism across the world, with a second wave taking place
after the fall of the USSR in the early 1990s.
Nowadays, most states of the Western world have constitutions that include
enforceable bills of rights with more or less the same content as the ICCPR. Even
traditional bastions of resistance to the idea of legally entrenched and judicially
enforceable human rights, such as the United Kingdom and Canada, have been
influenced by this trend. In the case of the United Kingdom, this has been done
through the domestic incorporation of regional human rights standards (the Human
Rights Act of 1998 incorporated the European Convention of Human Rights into
domestic law), while in Canada this occurred through the development of a home-
grown bill of rights (in particular, the Canadian Charter of Rights and Freedoms of
1982).
Some scholars oppose this trend. Jurists Jeremy Waldron (1953-) and Mark Tushnet
(1945-) for instance, see the increasing proliferation of rights-entrenching constitutionalism
as a threat to participative democracy, replacing the voice of the people with the opinions of
judges as the final word of the legal and political process.
On the tensions introduced by judicial review see Sects.8.2.7and8.2.8.Terminology It must be conceded that constitutions rarely speak of human rights.
Sometimes they do (as in the case of Venezuela), but normally they use a different
terminology, such as “civil rights” in the United States or “fundamental rights” in
Germany, the Netherlands, Italy, and Spain, and other expressions such as “consti-
tutional rights” or “basic rights” are not unknown. The change in terminology is not
necessarily cosmetic, as it may reflect a different, more local, philosophical con-
ception of rights. Nevertheless, this does not affect that, generally speaking,
constitutional rights accrue to persons by virtue of existing and therefore apply
equally to foreigners. Even if domestic rights and international rights have different
inspirations than treaty-based rights, they are sufficiently similar in their functions,
structure, and content to warrant joint treatment.
12.3 The Uses of Human Rights
Human rights are not the monopoly of lawyers. Although the present chapter
focuses on human rights as a legal phenomenon, the legal dimension of human
rights does not exhaust the field, and it might not even be the dominant dimension.
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