suggests not. A transplant effect in any event is likely to be tempered by the typical
generality of such norms and the growing availability of mechanisms for their
interpretation and enforcement at the international level. On the other hand, the
same generality leaves scope for variation in understanding and implementing
human rights standards between states, even in the absence of formal reservations.
The inevitability of some variation in the implementation of human rights norms
even between states with significant levels of shared culture is recognised in the use
of a margin of appreciation in some regional human rights systems.^87 There is room
for further empirical work in this area.
One final issue arises from the way in which transplants occur in conditions of
internationalisation. Alan Watson argued that the process of transplants in private
law was framed by legal culture: the way lawmakers think about law, ‘their
knowledge of concepts, and the parameters of legal reasoning that they have
unconsciously set for themselves’.
88
Another obvious criterion was ‘accessibility’
in terms of form, language and availability.
89
As long as these admittedly loose
constraints pertain, transplants tend to occur between jurisdictions that are familiar
to each other, limiting the degree of variation and the element of surprise. Under
present conditions, however, the possibilities are expanded. A vastly wider range
of constitutional arrangements is accessible; sometimes in the disembodied form of
‘systematic information on design options’, complete with ‘constitutional text’.
90
And the choice is not always made by local lawmakers, acting alone or sometimes
at all. The involvement of international actors in constitution-making processes
further diversifies the likely range of transplants and makes it less likely that local
context and culture will be taken into account. While, again, more detailed work is
needed,^91 it seems logical to suppose that, even if this form of internationalisation is
a catalyst for superficial convergence, there may be considerable operational diver-
sity underneath.
Countertrends
The link between constitutions and the state with which, typically, each is associ-
ated is the source of a dynamic that not only explains the kinds of difference in
form and operation described in the two earlier parts but that also, in some cases,
actively works against convergence.
(^87) European Court of Human Rights; African Commission on Human and Peoples’ Rights:
Princev.South Africa 255 / 02 , 7 December 2004.
(^88) Watson,Legal Transplants,atp. 108. (^89) lbid., at pp. 112 – 13.
(^90) Constitutionmaking.org: http://www.constitutionmaking.org/default.html (viewed 23 March
2012 ).
(^91) For recent empirical work, see Benedikt Goderis and Mila Versteeg, ‘The transnational
origins of constitutions: an empirical investigation’, 6 th Annual Conference on Empirical
Legal Studies ( 2011 )http://ssrn.com/abstract= 1865724 (viewed 7 May 2012 ).