GPSolo Magazine - January/February 2006
International Human Rights in a Nutshell
By Thomas Buergenthal, Dinah Shelton, and David Stewart
International Human Rights in a Nutshell, third edition, by Thomas Buergenthal, Dinah Shelton, and David Stewart ($26.50 from Thomson West, 2002) is a very informative book that fulfills its purpose: to serve as a self-contained introduction to the international law of human rights. Among other reasons, this book is worth reading because of its thorough analysis of the different global human rights institutions and how each works to promote and protect human rights. The book was published in 2002, so it’s a little outdated, but the organizations analyzed in this book are still relevant and should become familiar to every lawyer because of their potential impact on American jurisprudence and foreign policy.
Four of the eight chapters in the book are dedicated to the analysis of the various institutions created to protect and promote human rights throughout the world. For example, Chapter 2 is dedicated to the United Nations human rights system. It’s worth checking out the UN website to read about the Commission on Human Rights and the Office of the UN High Commissioner for Human Rights and become familiar with their roles in enforcing human rights among member states. The authors correctly point out that the Commission on Human Rights has frequently been criticized for its “ineffectiveness and for its politically motivated or selective approach in dealing with charges of human rights violations.” Nevertheless, because of its global political influence, it’s important to become familiar with the organization.
Chapter 3 analyzes the European system for the protection of human rights and the Council of Europe. Don’t confuse the Council of Europe with the European Union—they are separate bodies. It was the Council of Europe that adopted the European Convention on Human Rights and established the European Court of Human Rights. Of course, the European Court of Human Rights has been cited by some justices on the U.S. Supreme Court as a source of support in interpreting U.S. domestic law. This has drawn criticism within our legal system by some commentators and judges, most famously Justice Antonin Scalia in his dissent in Roper v. Simmons, 125 S. Ct. 1183, 1217 (2005).
Chapter 4 discusses the Inter-American human rights system developed by the Organization of American States (OAS), of which the United States is a member. The OAS pillars of enforcement of human rights within the Americas are the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Under the OAS Charter, all member states are bound by the provisions of the American Declaration of the Rights and Duties of Man. In addition, the majority of member states (not the United States) have ratified the American Convention on Human Rights and accepted the jurisdiction of the Inter-American Court to enforce the human rights provisions of the convention.
I found Chapter 5 to be interesting because I was unfamiliar with the African system of protecting and promoting human rights. As the authors explain, the African Charter on Human and Peoples’ Rights differs from the European Convention on Human Rights and the American Convention on Human Rights in a number of respects. For example, the African Charter proclaims not only rights but also duties. To illustrate, Article 29 of the African Charter imposes on the individual the duty “to respect his parents at all times, to maintain them in case of need.” Reading this gave me the idea to post this language on my refrigerator for my kids to read. The African Charter also established the Commission on Human and Peoples’ Rights to enforce the charter’s rights and duties. An additional protocol created the African Court on Human and Peoples’ Rights, which was finally ratified in January 2004—two years after this book was published.
Chapter 6 tackles humanitarian law. As an Air Force judge advocate, I found this to be the most valuable chapter of the book because it discusses the Geneva Conventions. This chapter also discusses the role of the International Committee of the Red Cross in armed conflicts and its special status in many humanitarian treaties. The chapter finishes by talking about the two international criminal tribunals for the former Yugoslavia and Rwanda, and the International Criminal Court (ICC). The ICC was created to prosecute violations of international humanitarian law by the Rome Statute, which entered into force in 2002. State parties grant the ICC authority to try their citizens for war crimes, crimes against humanity, and genocide. The United States is not a state party to the Rome Statute, owing to the fear that U.S. servicemembers and political leaders would be subject to politically motivated prosecutions at the ICC. Unfortunately, the book doesn’t discuss the reasons why the United States did not ratify the Rome Statute.
Chapter 7 discusses the United States and international human rights. I found the section on “Treaties and the U.S. Constitution” particularly informative and interesting. This chapter discusses how federal statutes and treaties ratified by the United States have the same rank under the Constitution. In the case of a conflict between a federal statute and a self-executing treaty provision (a treaty that does not require additional implementing legislation by Congress), the later in time prevails as far as the domestic law of the United States is concerned. Also, a treaty provision may not be given effect as U.S. domestic law if it conflicts with the Constitution. As federal law, a treaty may supersede all inconsistent state laws and may also federalize a subject that was governed by state law. In order for a treaty ratified by the United States (e.g., the UN Charter) to supersede state law, the treaty provisions must be self-executing or be later implemented by congressional legislation. Today, the United States uses its “reservation,” “understandings,” and “declarations” practice to make treaties non-self-executing and ensure it assumes no international human rights obligations not already guaranteed by U.S. law.
The book ends with a short chapter discussing non-governmental human rights organizations. The authors rightly point out that some non-governmental international organizations (NGOs) often resemble domestic pressure groups. Nevertheless, as the authors state, some human rights NGOs have played an important role in the evolution of the international system for the protection of human rights. In the United States, for example, human rights NGOs are very active in promoting U.S. ratification of international human rights instruments.
When one thinks of international human rights, the natural inclination is to think only of the UN. As this book effectively describes, however, there are other regional organizations working hard to promote human rights, and we lawyers must become familiar with them, as well.
Captain Timothy J. Rushenberg is an assistant staff judge advocate in the U.S. Air Force, currently stationed with the Fifth Bomb Wing at Minot Air Force Base, North Dakota. Captain Rushenberg is licensed to practice law in the State of Indiana and the District of Columbia. He can be reached at firstname.lastname@example.org. The views expressed in this product review are the views of Captain Rushenberg and are not intended to be an endorsement by the Department of the Air Force, the Department of Defense, or the U.S. government.
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