International Law for Humankind: Towards a New Jus Gentium by
Antônio Augusto Cançado Trindade (Mague Academy of
International Law: Martinus Nijhoff Publishers / Brill Academic) Professor Cançado Trindade develops his Leitmotiv of
identification of a corpus juris increasingly oriented to the
fulfillment of the needs and aspirations of human beings, of peoples
and of humankind as a whole. With the overcoming of the purely
inter-State dimension of the discipline of the past, international
legal personality has expanded, so as to encompass nowadays, besides
States and international organizations, also peoples, individuals
and humankind as subjects of International Law. The growing
consciousness of the need to pursue universally-shared values has
brought about a fundamental change in the outlook of International
Law in the last decades, drawing closer attention to its foundations
and, parallel to its formal sources, to its material source (the
universal juridical conscience). He examines the conceptual
constructions of this new International Law and identifies basic
considerations of humanity permeating its whole corpus juris,
disclosing the current processes of its humanization and
universalization. Finally, he addresses the construction of the
international rule of law, acknowledging the need and quest for
international compulsory jurisdiction, in the move towards a new jus
gentium, the International Law for humankind.
This volume is an updated and revised version of the General Course on Public International Law delivered by the Author at The Hague Academy of International Law in 2005. Professor Cançado Trindade, Doctor honoris causa of seven Latin American Universities in distinct countries, was for many years Judge of the Inter-American Court of Human Rights, and President of that Court for half a decade (1999-2004). He is currently Judge of the International Court of Justice; he is also Member of the Curatorium of The Hague Academy of International Law, as well as of the Institut de Droit International, and of the Brazilian Academy of Juridical Letters.
Excerpt of table of contents:
Glossary of Abbreviations; Introduction: Preliminary Considerations;
Part I Prolegomena;
Chapter I The Evolution towards a New Jus Gentium: The International Law for Humankind;
Chapter II Time and Law Revisited: International Law and the Temporal Dimension;
Part II Foundations of International Law;
Chapter III Foundations of International Law: The Role and Importance of Its Basic Principles;
Chapter IV The Primacy of International Law over Force;
Part III Formation of International Law;
Chapter V Contemporary International Law-making: A Reassessment of the Theory of Formal “Sources” of International Law;
Chapter VI The Material Source of International Law: Manifestations of the Universal Juridical Conscience;
Part IV Subjects of International Law;
Chapter VII States as Subjects of International Law and the Expansion of International Legal Personality;
Chapter VIII International Organizations as Subjects of International Law;
Chapter IX The Legal Personality of the Individual as Subject of International Law;
Chapter X The Legal Capacity of the Individual as Subject of International Law;
Chapter XI Humankind as a Subject of International Law;
Part V Construction of the International Law for Humankind;
Chapter XII Conceptual Constructions: Jus Cogens and Obligations Erga Omnes;
Chapter XIII Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind;
Chapter XIV Conceptual Constructions: The Right to Peace and The Right to Development;
Chapter XV Conceptual Constructions: Responsibility for International Crimes and Universal Jurisdiction;
Part VI Humanization of International Law;
Chapter XVI Basic Considerations of Humanity in the Corpus Juris of International Law;
Chapter XVII Basic Considerations of Humanity in Relation to Disarmament;
Chapter XVIII Basic Considerations of Humanity in Relation to the Law of Treaties;
Chapter XIX Basic Considerations of Humanity in Relation to State Responsibility;
Chapter XX Basic Considerations of Humanity in Relation to State Succession;
Chapter XXI Basic Considerations of Humanity in Relation to Territory;
Chapter XXII Basic Considerations of Humanity in Relation to Diplomatic and Consular Law;
Chapter XXIII Basic Considerations of Humanity in Relation to the Convergences of Regimes of Protection of the Human Person;
Part VII Settlement of Disputes;
Chapter XXIV Peaceful Settlement of International Disputes: Current State and Perspectives;
Chapter XXV International Rule of Law: The Need and Quest for International Compulsory Jurisdiction;
Part VIII Perspectives;
Chapter XXVI The Legacy of the Recent Cycle of World Conferences of the United Nations;
Chapter XXVII Codification and Progressive Development of a Universal International Law;
Chapter XXVIII Conclusions: International Law for Humankind – Towards a New Jus Gentium;
Select Bibliography; Table of Cases; Index.
Excerpt: The present book derives from the General Course on Public International Law that I delivered at the Hague Academy of International Law, in July-August zoos.' To deliver such a General Course constitutes indeed the greatest honour that can be given to a scholar of International Law, and represents the culmination of an academic life devoted to research and teaching on the discipline. The importance of the General Course is widely recognized, and has been duly stressed in the assessments of the Hague Academy's contribution to International Law, undertaken on the occasion of both its jubilee celebration (1973) and its 75th anniversary (1998).
Since I was in 1999 entrusted by the Curatorium of the Hague Academy to prepare the General Course for zoos, I proceeded to review my own writings and organize my personal recollections, parallel to the research work I promptly started to undertake.6 Having had the privilege to accompany closely the evolution of the great themes of our times, and to work directly on some of them, for more than thirty years, I felt gratified to have been able to transmit, in my zoos General Course, my accumulated reflections on the matter, and my basic message to the new generations of international lawyers.
The delivery of my zoos General Course, which I titled "International Law for Humankind: Towards a New 'us Gentium", will remain in my memory as a most gratifying exercise of transmission of my own basic message or legacy to the new generations, marked by the remarkable and fruitful dialogue that took place at the Hague Academy for three weeks, in July-August zoos, with over 350 participants from all over the world. Almost half a decade later, I proceeded to an updating`of my aforementioned General Course, which conforms now this new volume of this highly selective Monograph Series of the Hague Academy.
Some preliminary remarks are here needed so as to confer precision to the presentation of the contents and object of the present book, just as I did, five years ago, in respect of my General Course. First of all, it is not my intention to present a treatise of International Law, nor an exhaustive account of the current state of all of its chapters in all details. Given the extraordinary expansion of the discipline throughout the last decades, it would be an impossible task for any individual scholar to attempt to provide an in-depth and detailed treatment of all its chapters. Thus, an element of selection has proven ineluctable, and indeed necessary.
Secondly, like it has been done in General Courses at the Hague Academy in recent years, it is my intention to provide an over-all vision of the present state and perspectives of International Law on the basis of a Leitmotiv, which permeates the whole discipline as it stands today, as illustrated by selected areas in which this idee force is particularly manifested. On the basis on my own experience in the handling of the theory and practice of International Law throughout more than three decades, I have come to identify, as the Leitmotiv for this General Course, the basic outlook I have nourished of contemporary International Law as a corpus juris increasingly oriented to the fulfillment of the needs and aspirations of human beings, of peoples and of humankind as a whole.
It goes without saying that, in the pursuance of the consideration of this Leitmotiv, I see no reason whatsoever to limit myself to positive International Law. In fact, it seems to me all the more necessary nowadays to go beyond it, as I have endeavoured to do whenever called upon to pronounce on International Law issues in the last three decades. There is, in my view, a pressing need to do this nowadays in face of the deep crisis currently undergone by our discipline, given the recent and unfortunate attempts of its deconstruction in theory and practice, which reflect a deeper crisis of values in which the world seems engulfed in this first decade of the XXIst century.
This distinguished Monograph Series of the Hague Academy of International Law is an adequate forum to develop a necessarily critical and universalist approach to the current state of affairs in the international legal order. The Hague Academy itself has always been characterized by the pluralism of ideas and the exercise of academic freedom, in pursuance, lex lata and de lege ferenda, of the fulfilment of the "common interests of mankind", so that these latter may prevail over the policies of individual States?
It is, in fact, my basic contention, in the present work, that the purely inter-State dimension of International Law has surely been overcome and belongs to the past; that international legal personality has expanded, so as to encompass nowadays, besides States and international organizations, also individuals — the human person, — as true subjects (and not only "actors") of International Law; that the conditions are met for us to move towards the construction of a new jus gentium, at this beginning of the XXIst century, to the extent that account is taken of the social needs and aspirations of the international community (civitas maxima gentium), of humankind as a whole, so as to provide responses to attempt to fulfill them.
My basic message to the new generations is, thus, one of hope and confidence in the future of International Law, the law of nations, amidst the profound crisis in which we now live. It has been in moments of crisis that advances have been achieved in the past. To that end, it is of the utmost importance to rescue the fundamental principles of our discipline, which appear to have been somewhat neglected and largely forgotten nowadays. It is likewise relevant not to elude the basic question of the foundations of the law of nations, which also seems to have been rather circumvented in contemporary international legal thinking.
The growth of International Law in the lines of the universalist conception which I have been sustaining for years would be well in keeping with the universal outlook proper of the historical origins of the discipline. What are the social needs of the international community of our days? They have been properly identified and described in the final documents of the recent cycle of World Conferences of the United Nations. International Law is to contribute to fulfil those needs. There is nowadays a legitimate concern of the international community as a whole with the conditions of living of people everywhere, and contemporary
International Law cannot remain indifferent to that.
If one contrasts some topics overworked in the past (conditions
of statehood, territory, recognition of States and governments, among
others) with the
new concerns of contemporary International Law (safeguard of human rights,
self-determination of peoples, environmental protection, human development, disarmament, among others), it may be argued that while the former pertained mainly to State interests, the latter disclose the prevalence of concerns with the legitimate needs and aspirations of humankind. This appears to me to be the main feature of the new jus gentium at this early stage of the XXIst century. International Law can no longer be regarded as an international legal order which exhausts itself in the domain of strictly inter-State relations.
The growing consciousness of the need to bear in mind common values in pursuance of common interests has brought about a fundamental change in the outlook of International Law in the last decades. This development has taken place in different ways. First, by the growth of entire areas of International Law wholly devoted to the safeguard of human beings. Secondly, by the invocation of humankind in multiple international treaties and instruments in distinct areas of International Law. Thirdly, by the jurisprudential construction of contemporary international tribunals taking due account of the concerns of human beings and humankind. Fourthly, by the pratice of States and international organizations and other subjects of International Law bearing witness of the needs and aspirations of human beings, of peoples, and of humankind as a whole.
On the basis of the international experience accumulated to date, the international community cannot prescind from universal values. There is an ineluctable feeling of injustice escaping from an international legal system which is unable to provide answers to the pressing needs of protection to whole segments of the world population and to millions of vulnerable and defenceless human beings. Such framework of destitution is incompatible with the very conception of an international community, which assumes the existence of common and superior interests, and of duties incumbent upon all, — States, international organizations, peoples, and human beings.
I purport to portray this new jus gentium of our days as I perceive it, as the International Law for humankind, according to a plan of presentation of the present book which evolves — in its 28 chapters — around eight main areas, namely: the evolution towards a new jus gentium and the temporal dimension in International Law (part I); foundations of International Law (part II); contemporary international law-making, encompassing the formal as well as the material sources of International Law (part III); subjects of International Law, encompassing States, international organizations, the human person (individually or in groups), and humankind (part IV); conceptual constructions of the International Law for humankind (part V); basic considerations of humanity in the corpus juris of International Law, reflecting the humanization of this latter (part VI); the construction of the international rule of law, acknowledging the need and quest for international compulsory jurisdiction (part VII); the legacy of the U.N. World Conferences, the codification and progressive development linked to the universalization of International Law in the evolution towards a new jus gentium, the International Law for humankind (part VIII).
As to the sequence of the presentation itself of the General Course which follows, a word of warning is here called for. The text which features in the present book is but an abridged version of the original text of my General Course of 2005.'° Besides the element of ineluctable selection for its elaboration, already referred to, I further proceeded to condense the original text of my is lectures and 3 seminars, of the summer zoos, and have now also updated my work, in the present book, until mid-2009. I trust the new generations of international lawyers will endeavour to secure the evolution of our discipline in the lines of its continued universalization and humanization," faithful to the thinking of the founding fathers of the discipline and the more lucid doctrine of the law of nations, and attentive to the needs and aspirations of the international community, and of humankind as a whole, in our times.
An Introduction to International Human Rights Law edited by Azizur Rahman Chowdhury, Jahid Hossain Bhuiyan (Martinus Nijhoff / Brill Academic) is designed to provide an overview of the development and substance of international human rights law, and what is meant concretely by human rights guarantees, such as civil and political rights, and economic and social rights. It highlights the rights of women, globalization and human rights education. The book also explores domestic, regional and international endeavors to protect human rights. The history and role of human rights NGOs coupled with an analysis of diverse international mechanisms are succinctly woven into the text, which well reflects the scholarship and erudition of the authors. This lucidly written and timely volume will be of great help to anyone seeking to understand this area of law, be they students, lawyers, scholars, government officials, staff of international and non-international organizations, human rights activists or lay readers.
Preface List of Contributors
Introduction Progressive Nuances in International Human Rights Paradigm
1. The Historical Development of International Human Rights, Michelo Hansungule: 1. Introduction 2. Some Historical Perspectives on Human Rights
3. Universal Rights 4. The European View 5. Human Rights as Moral Ideas in Diverse Societies, Religions, and Cultures 6. Africa 7. Middle East (Islamic World) 8. Asia 9. Post-War Developments 10. Conclusion
2. Civil and Political Rights, Joshua Castellino: 1. Introduction 2. The Covenant
3. The Rights Package 4. Future Challenges
3. An Introduction to Economic, Social and Cultural Rights: Overcoming the Constraints of Categorization through Implementation, Vinodh Jaichand:
1. Introduction 2. Historical Development 3. Similarities and Differences in Content of ICCPR and ICESCR 4. The Norms and Enforcement 5. On Justiciability: An Example of the Protection of ESC Rights in a Region 6. On Justiciability: Domestic Enforcement 7. Conclusion
4. Women’s Rights in International Law, Mmatsie Mooki, Rita Ozoemana, Michelo Hansungule: 1. Introduction 2. Recognition of Women’s Rights: United Nations Charter and the International Bill of Rights 3. Women’s Rights in other United Nations Convention 4. Convention on the Elimination of all forms of Discrimination against Women
5. United Nations Groundbreaking Conferences 6. Violence Against Women 7. Conclusion
5. Globalization and Human Rights, Heli Askola: 1. Introduction 2. Globalization 3. Economic Globalization and Human Rights 4. Political, Social and Cultural Globalization and Human Rights 5. Conclusion
6. Role of the UN in the Promotion and Protection of Human Rights, Elvira Domínguez-Redondo: 1. Introduction 2. From Codification to Efficiency: The Different Phases of the Human Rights Discourse within the United Nations 3. Normative Development of the UN System of Protection and Promotion of Human Rights 4. “Charter-based” and “Treaty-based” Monitoring Mechanisms: Public Special Procedure and the Work of the Committees
7. Attributes of Successful Human Rights on-Governmental Organizations (NGOs) – Sixty Years After the 1948 Universal Declaration of Human Rights, George E. Edwards: 1. Introduction 2. NGOs & Human Rights NGOs 3. Ten Characteristics of Successful Human Rights NGOs 4. NGO Self-Regulation Via Codes of Conduct and Ethics 5. Conclusion
8. Do States have an Obligation under International Law to Provide Human Rights Education?, Paula Gerber: 1. Introduction 2. Human Rights Education (HRE) in International Law 3. Obstacles to the Realization of HRE 4. Conclusion
9. Application of International Standards of Human Rights Law at Domestic Level, Joshua Castellino: 1. Introduction 2. The Codification of International Human Rights Standards as Law 3. Domestic Implementation of Rights: The ‘Engine Room’ of Universal Instruments of Human Rights 4. Conclusion
10. Role of Regional Human Rights Instruments in the Protection and Promotion of Human Rights, Azizur Rahman Chowdhury, V. Seshaiah Shasthri, Md. Jahid Hossain Bhuiyan: 1. Introduction 2. European Human Rights Treaties and Their Implementation 3. The Inter-American Convention on Human Rights, 1969 4. The African Charter on Human and Peoples’ Rights, 1981 5. Concluding Remarks
Excerpt: Progressive Nuances in International Human Rights Paradigm
Writing an introduction to authorial contributions on An Introduction to Inter-national Human Rights Law requires a broad examination of a subject as old as mankind itself, and throughout such time the national and international developments have been many indeed. Themes of the illustrious works included in this discussion comprise of writings on international human rights law relating to civil and political rights; and social, economic and cultural rights. Interestingly, these rights are reiterated time and again as 'first' and 'second' generation human rights. In order to understand their importance, one must also consider issues of specific focus and relevance. For example, the rights of women and human rights education. Further, no understanding of such an endeavor to examine and appreciate the dimensions and developments of international and national significance can be said to be complete unless one understands the implementation mechanisms at the international level as well as the municipal level. Least to be said but the most important facet of such an appreciation is the application of internationally acknowledged standards of human rights within the municipal domains of the nations and challenges involved. Hence, the present endeavor which takes into account focused issues of relevance aims at bridging the gap in terms of the academic resources available to the reader, keeping in mind the vast segment of beneficiaries in the civil society being associated at different levels of human rights education.
The present collection of writings comprises of ten specific chapters carefully chosen by authors of repute and eminence, and these chapters may be broadly classified into three segments from a reader's point of view: (i) The first segment of chapters provides an introductory effort to the canvass of international human rights law, starting from the philosophical and conceptual level to the practical and implementation frameworks; (ii) The second segment of chapters focuses specifically on issues of specific relevance in the contemporary scenario, namely women's rights; human rights education and globalization of human rights; (iii) Importantly, the third segment of this book concentrates on the challenges and priorities before the implementation mechanisms and enforcement instruments.
The first chapter, 7he Historical Development of International Human Rights, demonstrates a great degree of reliance on various authorial viewpoints as the beginning point in the fundamental enquiry on what constitutes international human rights law. Taking the argument that the origin of international human rights law is recent, the author, at the threshold stage, refers to the interventionary roles that were predominantly played during the early twentieth century in developing 'international legal order'. For a greater part, the author looks into and chronologically examines the international instrumental evolutionary developments, but at the same time raises questions and concerns on the philosophical and normative notions in the limited regional developments. Examining the universal nature of human rights and European perspectives, the author takes a reader through an intricate analysis of various philosophers being associated with the analysis of State and individual relationship. Importantly, the author poses a distinct debate on human rights as moral ideas in diverse societies, religions and cultures, and brings into discussion various cultural notions. Special to the reader's interest is the evaluation of evolution of human rights in Africa. The discussion is significant and noteworthy, not merely for its threefold temporal classification, but for bringing into debate the institutions and related value concerns in the context of understanding and appreciating the scope and nature of human rights. For the same reason, the discussion titled Practices, Principles, Norms and Experiences Versus Human Rights certainly requires the reader to re-examine their own fundamental notions of human rights appreciation. At times in brief and at times in elaboration, the author draws parallels with the practices of different countries, interfacing them with religious notions and doctrines of practical importance. Thus, the author demonstrates a rich blend of enquiries, drawing the attentive concern of the reader to find answers to their own imagination.
In the context of "human rights" appreciation, no effort can be complete unless one specifically understands the underlying philosophical notions and the interconnecting rationale. For this reason, the second chapter, Civil and Political Rights, revisits the international and instrumental developments of the early twentieth century. Starting from the Universal Declaration of Human Rights, the author traces out the role and contribution of the United Nations Com-mission on Human Rights, a sub-committee of Economic and Social Council of the General Assembly. The author begins the analysis by referring to what otherwise are the two constantly debated views, namely human rights as inherent part of a liberal State, and human rights as obligations to be delivered upon by an interventionist State. The author follows up the debate further with the dichotomy that dominated the West and East split in the perception towards the importance and implementation of what otherwise are the inherent dimensions of human rights heritage in itself The objective of the author being to provide an informative base to the reader, greater concentration is cast upon the codification of the civil and political rights under the International Covenant on Civil and Political Rights; nature and importance of rights; scope of the freedoms and extents of obligations on States Parties thereto, in addition to the institutional mechanisms with adequate illustrations and relevant case laws provided there under. The author does not leave any stone unturned in the endeavor to discuss the scope and utility of Optional Protocol to the Covenant and the conditionalities that must be complied with, in order that an individual gets the benefit to seek the redress before the recognized institutional mechanisms and the complexities involved there under as well. Merit of the analysis on the part of the author is to link the rights with contemporary State practices. Advocating that the human rights movement has come far from the time of the adoption of the Covenants, the author allows the reader to ponder the challenges in collective actions of States to uphold group rights; the extent to which the scope of rights and freedoms may be compromised, if not neglected; and importantly, how to transform the obligations of monitoring into a meaningful and purposive endeavor on the part of the States.
The third chapter, An Introduction to Economic, Social and Cultural Rights: Overcoming the Constraints of Categorization through Implementation, addresses the challenges and dilemmas involved in the very categorization of human rights into various folds. At the threshold, the author poses an intricate question of enquiry as to whether the international developments have any bearing on the State perception on the importance of implementation of rights through the recognition of individual complaints processes. The appreciation is surrounded by a deep sense of caution. Beginning with an admission on the unlimited con-tours of the subject, the author demonstrates a conviction on the 'false notions of distinctions' of human rights. Through a chronological examination of the developments of historic times and transforming into 20th century developments, the author looks into and evaluates the institutional contribution for the development of human rights. Besides being vehement on the branding and fixation of human rights into `generation-centered notions', the author seeks support and justification from the 1993 Vienna Declaration and Program of Action and the new Optional Protocol to rectify this very contrast. Drawing a great length of similarity in the terminology and nature of obligations of States all the while, the author implores the reader to enquire as to whether 'non-justiciability' is a basis at all. Stating that the degree of implementation of human rights at various levels poses challenges to the State and that it is the very essence of governance, the author poses a question on the role of dispute-resolution systems in the implementation process. Interestingly, for the reader the poser is whether the non-derogation applies more in the context of social, cultural and economic rights as against the much-argued and well-believed notions of civil and political rights. On the functional front, the author forces the reader to consider whether the committee mechanisms designated under the international instruments are for name sake and symbolic reflections of States' non co-operation than due implementation. Referring to a vast variety of case laws spread across a variety of domestic and international jurisdictions and institutional mechanisms, the author finally places for the reader's appreciation the food for thought in the form of distinction between justiciability and enforcement.
The fourth chapter, Women's Rights in International Law, deserves special mention in the context of the present thematic discourse, for the authors effort deal with the rights of a specific segment of civil society often dominated by patriarchal concerns. Taking an introductory recourse as to the beginning discussion of the theme, the authors examine the threshold instruments of the 20th century and their preliminary emphasis upon the protection of rights of women as a specific emphasis, but finds little support in the initial and general instruments. It is for this reason the authors take a distinct discourse and examine a variety of international human rights instruments that have laid stress and emphasis upon the rights of women from a multifarious perspective. Examining the four major instruments of the early 1960s, the authors find support in the Western Feminist movement as the genesis of the assertion of women's rights in their independent sense and institutional mechanisms to facilitate the internalization of the rights and standards, and protection mechanisms to monitor the State responses and State enforcement processes. It is for this reason the authors effort deserve a distinct note of attention. For, in the process of examining the contours of each of these rights and standards, the authors ensure that the standards envisaged are viewed in an independent arena, as well as in the holistic context of the human rights movement. Given the nature of the emphasis the International Convention on the Elimination of All Forms of Discrimination against Women lays upon variety of forms of discrimination, the authors undertake an extensive examination of the rights and their scope, and especially the definition of discrimination and its manifest forms. Noteworthy are the dimensions relating to rights in political and public life, and socio economic aspects. Being inter-woven with the General Assembly resolutions and recommendations, the authors present a holistic view of the essence and content of these rights and protections and at the same breadth provide to the reader a chance to understand the mammoth responsibility cast on the States Parties to implement the same municipal regimes. For this reason, the authors examine the scope and extent of the responsibility of the International Committee specifically established. The authors also provide the inherent limitations of such international monitoring mechanisms in order to appreciate their importance.
For this reason, the authors do not spare the required extent of
demonstrating that for all challenges surrounding women, the Convention in
itself is not the panacea. Yet, one must examine the developments relating to the protection of rights of women in the light of the subsequently development movements and conferences at Cairo. Very important in the context of the authors discourse is the inter-linkage the authors attempt to bring between forms of violence and discrimination. For there is substance in the argument that every form of violence in one way or the other leads to discrimination at different levels and thus affects the human rights parameters in the holistic context. The illustrative effort of the authors is to examine the developments in relation to forms of violence across the globe and the forms of health vulnerabilities women are being exposed to. Hence, the emphasis of the authors on the context of Africa deserves the reader's special attention.
The Fifth Chapter, "Globalization and Human Rights", is noteworthy on the specific count that it not only traces the scope, nature and extent of globalization, but also aims to examine the impact and implications of globalization on human rights. The author advances a critical examination of the established and emerging global economic, social and political processes on human rights concerns, keeping in mind State Obligations to respect and ensure human rights. The author guides the reader through both challenges and opportunities created by globalization. Cautioning on the sprawling effects of economic globalization and deregulation, the author highlights the inescapable obligation of State Parties to protect and ensure human rights. States, while affected by economic globalization, need to weigh the consequences of e.g. trade liberalization against potential adverse effects to human rights and, at times, being more circumspect in order to guarantee human rights in a more globalized environment. The analysis of the author, which evaluates globalization in terms of economic as well as socio-political dimensions, brings to the forefront a series of novel issues amongst which is the challenge posed to politically unstable societies in dealing with pressures and tensions between different social groups. Finally, the author also leaves the reader to ponder the cultural and ecological dimensions of globalization and how these will affect State Obligations.
The sixth chapter, "Role of the UN in the Promotion and Protection of Human Rights", traces the role of the United Nations in the promotion and protection of human rights and places fundamental emphasis upon the States and their sovereignty within domestic jurisdictions. Perhaps, for this reason, the author proposes to identify a 'Model of Co-operation', wherein equal onus is also placed on the International Commission, both at the levels of codification and establishment of monitoring agencies in terms of the States' compliance. Tracing the emphatic point of origin as the conclusion of the Charter of the United Nations, the author extensively surveys the supporting provisions under the Charter. The author takes a threefold approach and examines various ideologies and political considerations that: (i) shaped the development of the UN human rights standards and processes; (ii) molded the normative development of the United Nations in protecting and safeguarding the human rights; and importantly, (iii) influenced the establishment of the Charter and Treaty mechanisms in the implementation of the human rights standards. The chief merit of the chapter is the examination of the developments from a temporal perspective and the identification of the monitoring bodies' establishment and evolving. If the 1960s is an active period for the United Nations Commission to come out of the dominance and bring out Charter-based review procedures, the 1970s through to the 90s is a lull phase in international peace and security which witnessed the proliferation of new armed conflicts, placing institutional restraints and limitations on the United Nations to act proactively. As the author concludes, during the 1980s the international committee started responding more positively through the labels of globalization, wherein the civil society as an important stakeholder made its positive role resulting in the conclusion of new human rights instruments and monitoring mechanisms to strengthen the United Nations system as a whole. 'Thus, the new international order which marked the beginning of the 1990s brought in a new phase in the constructive contribution of the United Nations in promoting and safeguarding human rights. Taking the line of argument further that the International Bill of Human Rights is an important breakthrough in the normative development of the United Nations' protection and monitoring systems, the author examines the feasibility in building the jurisprudential linkages between the efforts and outcomes of the International Court of Justice. An interesting and noteworthy dimension of the author's analysis centres around the key developments that occurred within the United Nations system, namely the adoption of new human rights instruments at the United Nations level; and adoption of the resolutions by the organs of the United Nations. Building further the linkages amongst the Charter-based organs and procedures, the author's endeavor pro-vides the reader space to see and appreciate the appropriateness of the importance and contribution of the domestic mechanisms. Noteworthy for a special reference is the analysis relating to the universal periodic review, which brings in the feasibility of inter-relationship amongst the United Nations Commissioner on Human Rights, national human rights instruments and the relevant human rights non governmental organizations.
The eighth chapter, "Do States have an obligation under International Law to provide Human Rights Education?", is an extremely thought-provoking approach to understanding the obligation to provide education about human rights. Tracing the history of human rights education as a part of the United Nations' mandate, the author argues that there is a link between the provision of human rights education and the development of a culture of human rights. She suggests that the provision of human rights education should be embraced as a proactive measure by the States, rather than seen as a reactive measure to deal with a problem after its occurrence. The author undertakes a scholarly analysis of the nature and extent of the human rights education mandate and a variety of UN instruments before moving to a contemporary examination of the General Assembly's Decade for Human Rights Education and the ongoing World Program for Human Rights Education. The author concludes that while there has been strong international effort to promote human rights education, the domestic implementation by States remains weak. Accepting that there are numerous obstacles and challenges to the full realization of human rights education, the author provides the reader with some realistic approaches designed to overcome the hurdles and increase the level of human rights education in schools.
The ninth chapter, "Application of International Standards of Human Rights Law at Domestic Level'', being a subject of intense debate over a long span of time, addresses to the issues from the contemporary perspectives and the challenges of States at the domestic level. Beginning with the basic argument that human rights as envisaged under the Universal Declaration of Human Rights are really universal in their spirit and content, the author develops the further argument that these propositions of universality required codification from an implementation point of view, which the international community has vigorously addressed in the post-United Nations phase. Referring to the development of international human rights standards codification as a "lag process", the author at the first phase reiterates the importance of States' role in the implementation through the establishment of domestic institutions and mechanisms. Interestingly, the author reiterates the importance of declarations as the first step in the crystallization of international aspirations, although adoption of international conventions with binding obligations is the major step in the codification of human rights standards with the agreements on the part of States Parties on the extents of standards versus State obligations. Delving further into the importance of signature and ratification as the important procedural follow-up steps, the author draws the reader's attention to the divergent State practices when the human rights standards envisaged under the international instruments get to be applicable in the domestic context. The author further analyzes the implications of an important State response relating to the automatic application of international standards versus application through the adoption of specific domestic legislation. Taking the assistance of illustrative analysis of States in the context of the chosen seven international human rights instruments, the author leaves little room for the reader to think of any other alternative examples, for the illustrations are far beyond any uncertainty. Debating on the traditional doctrine of 'State Sovereignty' and 'domestic implementation of international human rights standards', and terming the latter as the 'engine room' of universal instruments on human rights, the author probes the international human rights instruments to examine how affirmative action on the part of States Parties is more an internal aspect of their obligations than as the often-viewed approach of an external prerogative. Terming the internal aspect of State's Obligation as "obligation for positive discrimination", or the "elevator mechanism", the author examines the legitimacy of this State's Obligation through various examples and illustrations. Offering varieties of justifications for the State's responses to implement through domestic mechanisms, the author identifies what could be characterized as the essential contours of the normative transportation into the domestic domain. While illustrating through specific conventions and linking very often to the the State's practices, the author retains the natural flow of cohesiveness and highlights the importance of the State's consent in transforming soft law into the specific domestic legal regime. Thus, the light thrown by the author on the inescapable conclusion of the State's imperative realization towards the domestic application of human rights standards, both in the contexts of effective governance and accomplishment of larger social and political goals, cements one's conviction and belief that in the sphere of international human rights standards application the State's willing role is of crucial significance.
The tenth chapter, "Role of Regional Human Rights Instruments in the Protection and Promotion of Human Rights", being of crucial significance in the effective realization of the State's obligations, begins with a poser to the reader as to how far the manifestations of any supra-national mechanism would go in concomitance to the recognized notions of state sovereignty. At the same time, the authors also try to help the reader realize the international obligations are far superior to the domestic justifications. Taking a three-fold approach in dealing with the subject, the authors outline at the threshold of the analysis, namely, the circumstances leading to the adoption; scope of rights and guarantees contemplated; and, the safeguarding procedures. Keeping the article informative to the reader, the authors with ease and continuing thought-flow highlight the key aspects of each of the regional human rights conventions. In the context of the European Convention on Human Rights and Fundamental Freedoms, 1950, noteworthy issues for the reader are: (i) the complaint-making procedure for an individual to the Commission. As the authors carefully acknowledge, it is more of a history, for the Commission no longer has any role to play. Enumerating the scope of the convention as well as all the protocols exhaustively, the authors provide a holistic view of the rights and characterize as to why the Convention and its protocols stand on a separate footing to any other regional endeavor. One of the interesting features of this article is the effort of the authors to examine the scope of the rights and freedoms guaranteed and powers of the State to impose limitations, wherein the authors provide well-examined case laws. Examining the American endeavor of 1969 at length, the authors trace out as to how, even prior to such an instrumental realization, the American Commission has significantly contributed for the realization of human rights in the American context. Drawing on parallel lines of thematic discussion to the European Convention, the authors provide a clear insight into the significant facets of rights safeguarded and the institutional characteristics. A noteworthy effort of the authors in this regard that deserves a specific mention is the detailed analysis on the role and functions of the Commission and
procedure for individual complaint mechanisms. The graphic description relating to the role and contribution of the Organization of American States Special Rapporteur provides a deep and thought-provoking understanding to the reader as to how the institution over a period of its functioning not only gained credibility for its existence, but even legitimized its contribution. Examining at length the institutional characteristics of the Inter-American Court, the authors provide a holistic overview, prompting a reader further to examine each of the meritorious contributions. The third important component of this exhaustive analysis is the regional effort at the African level. The author raise the reader's understanding to a new level of examination by facilitating as to why the African Charter is being seen as the manifestation of the aspirations of peoples' rights unlike the two earlier instruments. Terming the recognition of individual and collective rights as an 'important breakthrough in the development of the regional human rights instruments', the authors provide another comparative perspective of the institutional similarities, leaving the reader to examine the intricacies in this regard. The authors effort to highlight the African endeavor as an advanced effort is noteworthy, for it not only highlights the characteristics of the African Commission, but also its inherent limitations. Terming the adop-tion of the African Charter as a "challenging and daunting task for the African Community'', the authors outline the imminent realities before the African Community. Thus, as the authors succinctly sum up, while the regional human rights instruments have contributed to the effective realization of the regional relevance, the reader is left with more questions than answers.
'The seventh chapter explores non-governmental organizations (NGOs) focused on human rights. Since the birth of the modern human rights era in the 1940s, human rights NGOs have significantly contributed to promoting and protecting international human rights globally. In this chapter, entitled "Attributes of Successful Human Rights Non-Governmental Organizations (NGOs) — Sixty Years After the 1948 Universal Declaration of Human Rights", the author defines the terms "NGO" and "human rights NGO", places human rights NGOs into various conceptual categories, and then identifies and analyzes traits that tend to be possessed by successful, effective human rights NGOs. The author also identifies numerous codes of conduct and ethics that were created to help ensure human rights NGOs' transparency, accountability, credibility, and efficacy. These codes have been implemented in various countries, and subscribed to by a wide range of NGOs. The author argues that human rights defenders might benefit from adopting the mentioned attributes for successful human rights NGOs, which are invariably incorporated into the codes of conduct and ethics he highlights.
Personal Freedom Through Human Rights Law?: Autonomy, Identity and Integrity Under the European Convention on Human Rights by Jill Marshall (International Studies in Human Rights: Martinus Nijhoff Publishers / Brill Academic) "Article 8 of the European Convention on Human Rights" provides a right to respect for one's private life. The European Court of Human Rights has interpreted this provision broadly to include a right to personal autonomy, identity and integrity. The book examines these concepts by interconnecting case law from the Court with the philosophical debates, including those in feminism, in four parts: personal freedom and human rights law; privacy and personal autonomy; personal identity; and bodily and moral integrity. The author notes, through her analysis of the Court's case law, that different versions of freedom are evident in the jurisprudence, including one which may restrict human freedom rather than enhance it through human rights law. This book will be invaluable to scholars of the Court, human rights and issues of the self.
Excerpt: The analysis in the book is arranged around themes evinced from my interpretations of the court's jurisprudence on private life into personal autonomy, identity and integrity and is divided into four Parts. Part I comprises two chapters, the first of which, chapter two, provides some scene setting by interpreting the different conceptions of personal freedom and showing how they connect to human rights law generally. These ideas are set in their European context which provides an introduction to the ECHR and the Court's jurisprudence in chapter three. Although the interpretative principles mentioned above are not the focus of this book, these are also examined in that chapter. Part II comprising chapters four and five focuses on privacy and personal autonomy. The first of these chapters analyses how scholars and the Strasbourg institutions have defined these notions. Chapter five sets out a chronological development of the Court's jurisprudence on definitions from privacy to personal autonomy. This includes an evaluation of the Court's jurisprudence on the formation of the human personality through and with relationships with other human beings and the outside world, including one's environment. My analysis then moves on to personal identity in Part III which explores the meaning of this concept and picks up on three characteristics crucial to perhaps everyone's identity: sex, knowledge and understanding of one's origins and past experiences, and one's religious or other belief system. After definitions of personal identity and different versions of personal freedom into self-determination and self-realisation are explained in chapter six, the arguably progressive stance of the Court in establishing sexual identity rights is examined in chapter seven. Case law on homosexuality and transsexual persons is analysed while in the following chapter, the importance of access to information about one's origins, childhood and other details thought important to one's personal identity are explored, philosophically and by reference to the case law of the ECtHR. After that analysis, I take up the issue of Article 9 jurisprudence, evaluating and critiquing what I see as the court's different treatment of the importance of religion to many people's identity, with focus in particular on the Islamic headscarf cases. Part IV investigates the perhaps elusive concept of personal integrity which is often categorised into bodily or physical integrity and moral or psychological integrity. Explaining how this is somewhat difficult to do, I then examine the jurisprudence of the Court by reference to unwanted physical intrusions which all have psychological effects such as rape, sexual assault and medical interventions, by the state and by private parties for which the state is increasingly being held to account under international human rights law and through the Court's development of 'positive obligations'. The importance of retaining and assisting the development of integrity, including mental health, availability of abortion, and the way the disabled are treated has also been the subject of the Court's case law and these issues are examined in this chapter.
As already mentioned, the philosophical ideas discussed here — personal freedom, autonomy, identity, and integrity — are huge ones and many may question the possibility of a court of law deciding what these mean. It is often claimed that we have human rights (morally and legally) because we are autonomous, have an identity and integrity as persons: the latter is prior. So human rights law is often interpreted as the guardian of the rights individuals inherently possess. Thus it is assumed that individual rights will be protected when people are left alone, not interfered with, usually by the state. This view assumes that human rights laws are needed to stop state action from abusing individuals' rights. The most obvious examples of such violations are probably torture by government officials or agents and the withdrawal of a free and fair trial. While such protection is fundamental to the protection of the person, as a definition of human rights protection it is unduly limited and based on what Robin West has called "a neurotic understanding of the person": a Hobbesian conception of the existence of the individual as atomistic, self-centred and concerned with his or her own interest first, with a pre-social freedom.' The way the jurisprudence is developing, it is possible to argue that we are autonomous, have identity and integrity because we have the legal human rights to these qualities. This issue of creating conditions to enable human freedom through human rights law is one of the strands running throughout this book. The three ideas of autonomy, identity and integrity are all intertwined with human freedom and the different conceptions of freedom — most notably described as negative and positive by Isaiah Berlin — are explored in the context of providing enabling conditions to make people free. That is, human rights law can be interpreted as part of the social conditions which can enable people to be free to live lives of meaning: to become "conscious of [themselves] as ... thinking, willing, active being[s], bearing responsibility for [their] choices ..." To expand, social conditions enable individuals to shape their identity and to become who they are. Depending on the content of those conditions, people's abilities will be increased or decreased to be more able to make good informed choices for themselves and to live lives of meaning to them. Human Rights law can be used as an enabling tool, by changing the social conditions to enable people to make their own choices or as a restricting tool, preventing certain choices and ways of life through legal prohibitions or bans. Human rights law should importantly be providing legal recognition that everyone is entitled to these rights. If, however, the Court decides that the applicant's way of life is not acceptable, either by not engaging Article 8 at all or, if engaged, ruling that the state's interference with that right is justified, usually by reference to one of the legitimate aims such as public morals or the rights and freedoms of others, this affects that applicant's personality. This occurs by preventing them from living as they wish and also can have a deeper impact on changing their perception of themselves, perhaps a devaluation or demoralisation, through this lack of recognition of their way of life.
Yet a note of caution with this perspective is aired. Often, similar arguments can be interpreted as validating an account of persons as victims, unfree and without agency. This is based on views that those who live in oppressive social conditions will be unable to make their own choices and therefore lack agency. As such, their 'choices' aren't really their choices and should be disregarded. Such 'essentialism' has been a particular concern in feminist work, focusing on the consequences for women if they are presented as victims lacking in agency and needing help in a paternalistic way. It is also evident in some identity politics work if one is categorised as a victim by reference to one's skin colour, ethnicity or race. Two versions of personal freedom can be interpreted as existing in the Court's jurisprudence and they impact in different ways on the relevant applicant's autonomy, identity and integrity. These may to some seem like the traditional negative and positive freedom categories but I show that they can both be variants of positive freedom with the need for social conditions often to be provided by the state. One is self-determination or self-creation: becoming the person you want to be — evolving and changing in line with your choices, self-constituting. The other represents versions of autonomy and personal identity as self-realisation or self-discovery: often described, perhaps misleadingly because it means so many different things to different people, as 'authenticity', entailing the discovery of the 'real you' already there within you and living in line with that. This can sound similar to a restrictive essentialism and to the extent that the self-realization version is becoming more popular, caution needs to be exercised to prevent the re-introduction of imposed standards that have potential to hinder personal freedom.
It has recently been stated that what highlighted the topic of identity more than any other theoretical and political current was feminism. As Elliot puts it, explaining everyday life as a terrain of struggle in the reproduction of unequal power relations, feminists have focused on the historical interplay of sexuality, sex and gender in analyzing constructions and contradictions of personal identity and the self. Although this book is not a detailed feminist analysis of the case law of the ECtHR relating to women's lives, feminist analysis and critiques of the self informs it. Such work has the potential to enhance and improve the lives of everyone. Human rights law's purpose often rests on ideas of equality and justice as well as freedom, ensuring the protection of everyone's rights in society. The ECtHR has stated that "equality of the sexes is ... one of the major goals in the Member States of the Council of Europe' and that very weighty reasons would have to be advanced before the difference in treatment on the ground of sex could be regarded as compatible with the Convention." It has also recently stated that gender equality is "one of the key principles underlying [the] Convention." Yet it appears a self-realising version of equality as sameness and its paternalistic consequences may be evident in at least some of the case law of the Court. What exactly this means for individual applicants who do not neatly fall within the permitted given categories will be critiqued, particularly by reference to case law on Islamic headscarves. Whilst personal freedom is thus enabled through the ECtHR's jurisprudence on Article 8's now protected right to personal autonomy, identity and integrity, it needs to be acknowledged that the two versions, of self-determining and self-realising, can pull in different, and often contradictory, directions.
Conundrums of Humanity by Jonathan Power (The Raoul Wallenberg
Institute Human Rights Library: Brill) Power tries to make the world
a better place for all to live by envisioning an all-inclusive
report of how to comprise the fate of the poor as reliant upon the
universal justification of human rights as necessary not only for
the newly developing world but for general human good.
Sixty years since the end of World War II is two generations. And two generations is long enough to measure whether there has been a substantial change in direction in how mankind orders its affairs. It is clear that it has. Not just in matters of war and peace- there has not been a Third World War- but in its attitude to poverty, economic progress, human rights, its habitat and its relationship to the other sex and its offspring. In all there have been great strides forward that at the time of the ending of the war seemed barely conceivable.
Excerpt: “Conundrums of Humanity” poses eleven questions for our future progress, ranging from “Can we diminish War?” to “How far and fast can we push forward the frontiers of Human Rights?” to “Will China dominate the century?”. The answers to these questions, the author believes, growing out of his long experience as a foreign correspondent and columnist for the International Herald Tribune, are largely positive ones, despite the hurdles yet to be overcome. They all depend for fruition, partly on building on the important work already accomplished, partly on creating a more benign and positive atmosphere in the world order and partly on demonstrating how the world can be even better in the future and thus giving the world’s peoples a sense of forward momentum.
We live in extraordinary times. Change has never been so rapid. Economic opportunity has never been so varied or so world-embracing. Political processes have never been so open or so informed. Communication in all its forms, from transport to the internet, gives billions of people the chance to know what was only until recently the prerogative of the few. Yet throughout the world there is a malaise settling on the mind of mankind. For some people it is the very insecurity of fast change that troubles them. For others it is the loss of personal or institutional power and for some it is the massive and rapid accumulation of wealth. For many it is the fear of being left behind and for an overwhelming majority, despite all the progress made in extending and bettering the living of life, it is the fear that man's devilish capacity for violence and destruction is hell bent on destroying all the benign attributes of progress.
Old problems, the existence of world-wide colonial systems, the ideological and military struggle between East and West and the rigid economic demarcation lines between North and South may now be bygones but new problems set to overwhelm us are in abundance — the drug business, terrorism, the traffic in nuclear materials, the spread of new diseases, growing poverty, the laundering of illicit wealth, the growth in ethnic conflict, the "clash of civilizations", and the disintegration of a number of countries that cannot adequately deal with the strains of modern day life. All these issues beset us and often befuddle us as they explode before we have ready the institutions and the resources to confront and control them. Add to them the problems that have been with us all along but which have now mushroomed to enormous proportions — population growth, over-consumption and the impairment of our delicate life-sustaining habitat — and it becomes obvious we do not have time on our side.
The visible and most dramatic change of our age is in the destructiveness of military power. At the very time delegates were meeting in San Francisco to draft the Charter of the United Nations only i,000 miles away in New Mexico scientists were perfecting the atomic bomb. It is a cloud that has hung over civilisation ever since. In those almost seventy years nuclear weapons have only been used twice — on Japan — but trillions of dollars have been spent on developing massive nuclear arsenals. Although never used they have become the currency of power, to which many countries still aspire. Although the Cold War, the major flashpoint for over 40 years, is over, nuclear weapons in abundance still exist, as do biological and chemical weapons of mass destruction. And the chance that some country will use them at some time remains very real.
Between 1945 and 2002 there were 167 wars, all fought with conventional weapons, which themselves have become ever more sophisticated and deadly. Arms exporting has become a major business for industrial countries, and the five permanent members of the Security Council sell most of them. The frequency of war, the tensions born of confrontation and change and, not least, the rapid spread of sophisticated weapons have helped breed in many parts of the world a culture of violence. War has a brutalizing effect, particularly on children and young people.
The legacy of war is often an arsenal of weapons and a low threshold for violence. In newer nations, undergoing rapid change, violence has become all pervasive, whether it be the urban violence of the US, Brazil and South Africa, the criminal gangs of the former Soviet Union, the ethnic pogroms of central Africa or the terrorist movements of the Middle East.
The world over people lock their doors — security is a fundamental instinct of the human species. Yet where does security end and destructiveness begin? Until the advent of the nuclear bomb the question, though poised, was usually brushed aside by those in power. No longer. World War II made it clear to even the most unlearned that the search for security could not be left to every nation state to pursue its interests without regard for another. The racheting up of war-making machines without any international discipline could only lead to World War III and that war, if fought with nuclear weapons, could well lead to the end of civilization.
The writers of the UN Charter attempted to devise a system that would maintain peace without resort to war. Although the successes of the UN have been limited — it did not avert the nuclear arms race between the superpowers — it did provide a forum for resolving severe moments of superpower tension, such as the Cuban missile crisis. And it did, by its embrace of sovereignty and the inviolability of national boundaries, appear to have markedly diminished the likelihood of one country invading another. Now, 6o years on, we have to seek how to improve the UN's ability to keep the peace, to consider whether it is merely a question of changing mechanisms but of changing attitudes too.
Even though the Cold War is over we live with its inheritance — nuclear, biological and chemical weapons of mass destruction, ballistic missiles, long-range aircraft, inflated military budgets and an over influential military-industrial-academic complex. As more and more countries gain the economic means to build modern military establishments and feel the need to assert their sovereignty, irrespective of any real immediate threat, the less chance there is that the older established military powers will seriously consider disarming. Yet as long as they put such a premium on a strong military few newcomers are going to listen to their advice on how better to apportion their scarce resources.
People have the right to be as secure as states and it is one of the tragedies of modern day life that the objectives and priorities of states undermine the security of individuals. Likewise, the security of our planet as a whole, an intact working organism, can be put at risk by the selfish and narrow short-termism of both states and peoples. When we discuss security we must not only count guns but exhaust pipes. We must not only measure missile trajectories and troop movements but also the depth of traditional aquifers and the density of our forests and plant life. The Conventions on Biodiversity and on the Abolition of Torture stand side by side on the same platform of human well-being as the Conventions on Chemical Weapons and Biological Weapons. All add to our security.
Avoiding conflict is far better than having to deal with it once it has erupted. It is far cheaper too, both in lives lost and money spent. Common sense would suggest we put more store in it. Our practice, however, tells us how bad we have been at it. We have to start looking at underlying trends that if left undoctored can lead to political, social, economic and environmental stress that in the end erupts into murderous violence or serious famine. Governments, however, working under severe budgetary constraints, are loath to look far ahead. But they have to learn that a decision to prevaricate and delay can often catch up with them, in our fast-moving world, remarkably quickly.
Too often governments are media-led. The fickle and fast-moving eye of television can demand attention one minute, only to ignore the issue the next. This is reporting dangerously close to entertainment. The danger is cumulative. As we are fed a random diet of suffering, based on misleading criteria of what is most important, we lose over time not only our discernment but our confidence in out ability to make intelligent priorities.
Governments probably cannot legislate to change the techniques of television. Television, over time, has to acquire its own wisdom. But neither are governments in hock to media simplifications. They have to take the high ground and lead public opinion. They have the resources to pre-empt crises as well as to alleviate them. They need to give far higher priority to looking down the road ahead.
In economic terms we live in a transformed world. In one generation, from 1950 on, per capita income increased in most of Europe as much as it had during the previous century and half. Many Third World countries have moved from rags to riches in a single lifetime. In most of the former communist countries a capitalist revolution is in full swing.
Enormous progress has been made, even in the poorest parts of the world, in improving the quality of life. People live longer, infant mortality rates have fallen and disease is less rampant. Nevertheless, for ever larger numbers of people, progress has not been sufficient to pull them out of poverty. While, in proportionate terms, it may appear that the worst of poverty for most people (even counting in the new numbers of the population explosion) has been conquered, it still leaves well over a billion people living on the margins of existence.
The progress that has been made has certainly been uneven. In the western world there have been major shocks such as the severing of the dollar-gold link, the dramatic rise in oil prices and the on-rush of fast technological change. In Latin America during the 1.98os and 199os, there was the impact of rising interest payments and the debt trap that sent economies into decline from which a number have still not fully recovered. In Eastern Europe there was the ending of the state run economy and the complicated and painful transition to market forces. For westerners this meant increasing unemployment, for a number of Third World countries it meant a "lost decade" of development and for ex-communists it meant a dramatic rise in mortality and criminality.
These changes, military and economic, cannot but throw into relief the social and environmental constraints of our planet. Resources are not infinite and society does not stand still. We bend the world to our will, for both good and ill, not least by the rate at which we populate it. More than twice as many people inhabit the earth today as they did at the end of World War II. Thanks to our inventiveness, a Malthusian crisis has been avoided, although for some regions it may be only a crisis deferred, not avoided. Over-rapid population growth is a terrible burden for the poorest countries and for the most crowded cities.
The pressure on resources mounts in tandem with population, indeed even faster as economic progress produces ever more demanding levels of consumption. We pollute more. We over-graze and over-fish more. We shrink the forests and drain the earth's fertility. In too many places we take out far more than we put back in.
No greater force now exists on earth, other than nuclear weaponry, than the collective might of industrialized economic endeavour. It has moved in half a century from being a localised phenomenon to one that now reaches almost everywhere. Governments, if not exactly helpless before this mighty tide of wealth creation, are in danger of being marginalised by it unless they are clear both about their own priorities and the institutional structures they build to monitor it, guide it, police it and, when necessary, in the interests of the poor and impoverished, to change its direction or to soften its cutting edges.
Economic activity, willy nilly, throws us together. We are linked in our now intense, new found economic life by a continuous umbilical cord which feeds on the womb of individual economic enterprise, nourishing ideas, resources and finance to create a massive explosion in wealth and well-being.
Yet our economic system has a flaw. It seems incapable of relieving destitution, at least for the billion at the bottom of the human pile. Twenty percent of humanity has no safe water or sanitation, are illiterate and underfed. For them life is too often nasty, brutal and short.
The economic life force of accumulation, investment, job creation and increasing reward surges on, changing the life styles of most of the world with unprecedented speed. Tied together by trade, television and the computer revolution, everything moving from market to market, from screen to screen, from bank to bank with an alacrity that the generation of 1945 could never in their wildest imaginations have conceived. Yet we are still bound by the institutions they created. No wonder that our forms of economic governance appear so dated and that the harmonisation that has been initiated between different political societies to tie economies closer together seems so often inadequate for the world we live in. The challenges are immense: to smooth in eastern Europe the rapid transition from communism to capitalism, to incorporate thirty new countries into global and regional institutions and to adapt their economies to global trading rules, to absorb the impact of the surge in economic strength of large parts of the Third World, without ignoring the tribulations of those still in the early stages of development and, not least, to deal with the "old age" of the original industrialized countries with their apparently intractable problems of high unemployment, growing welfare payments and increased immigration.
The world as a whole is opening out, but the danger is that the countries already rich may be closing in, refusing to give the leadership that continues the process of removing the barriers to the free movement of goods, capital and people, while at the same time reinvigorating and expanding the mandate and responsibilities of existing international economic institutions and creating the necessary new ones.
At the present there is too much human waste — the unemployed, their despairing families and their devastated communities in the rich world, the undereducated, hungry, ill and overcrowded in the poor world, women in nearly every society and minorities in too many countries. The world cannot afford to let so much human potential be underutilised. It is irresponsible, it is unfair and it ignores the benefit everyone would gain if those marginalised were full and effective performing members of society.
Just as we do not use people well, neither do we take care of our habitat. Every year, as the world's wealth grows, we put more pressure on it, by far the most of the strain coming from the twenty percent of mankind who are its most prosperous. Fish stocks, tropical forests and watersheds are currently being used at an unsustainable rate. The few international controls that do limit the damage caused by our ever-increasing appetites and habits of consumption are not strong enough to be truly effective.
We have no choice but to change our governing economic institutions, to make them both more expert and sensitive, more democratic but less centralised, more global in scope yet more concerned than they are at present with the "small picture" as well as the "big picture". If we are to harness this remarkable surge of human economic energy so that it develops in a way that most fulfils the potential of humankind then we need effective global institutions. A river cannot run without banks and a train without tracks.
The ones we have in place - the World Bank, the International Monetary Fund, (IMF) the World Trade Organisation and the Group of Eight all are weighted in the interests of the old industrialized countries. Powerful though they are, the distribution of economic muscle is changing fast. China, India, Brazil and Russia must already be counted among the top ten economic powers. Yet they have little influence on international economic decision-making. Neither do Mexico, Indonesia, Taiwan and South Korea which are only a few steps behind.
The major powers, in fact, live with an economic paradox. It was, in significant measure, the practice of democratic participation in their own societies that enabled them to develop their economies so successfully. Yet they deny replicating this experience on the world stage.
Democracy, not so long ago limited to a handful of nations, is now spreading fast to all parts of the world. Even countries that do not practice it give it lip service. It is, perhaps, the most potent of all the forces of change in the new century. Autocrats have been pushed aside, personal power has been relegated to the dustbin of history and people everywhere are winning the power of choice in political matters.
Elections, of course, are the public marker of the new order. But in reality they are but the first step in the pursuit of democratic life. The tradition of democratic behaviour takes decades to inoculate deep enough into the body politic so that it becomes second nature. It also has its dangers — as it allows free expression to those who would seek to constrain and deny the freedom of others. Democracy, as with the Weimar Republic, can be its own undoing, if electorate and leadership take its precepts too lightly and bargain away its essential principles in the process of political manoeuvre.
In international institutions, too, we have to make progress towards democratic participation. In the UN and in other international organs larger and more powerful nations often wield more than a single equally weighted vote, yet the principle of equality of status is as important in the community of states as it is in any national or local community.
Corruption can quickly undo the trust of the peoples however well delivered democracy is. Power confers enormous advantages upon incumbents, power that can and is, increasingly, being turned to personal advantage. Drugs, arms sales and real estate, enterprises where fortunes are quickly made, are all danger zones for the political official. The business community of the industrial world has not set a good example in ensuring that its members follow ethical business practices.
The strength of civil society can be reinforced at both the national and the international level by clearly defined commitments to human rights, democracy, anti-corruption, sovereignty and self-determination.
Most of these are incorporated in the UN Charter. Some have been given added weight by the Universal Declaration of Human Rights, by the conventions on civil and political rights and on economic, social and cultural rights, by regional human rights charters, and by the Declaration on the Rights and Duties of States.
Yet our new sense of civil society raises the question — is it enough to have rights that are almost entirely defined in terms of the relationship between people and governments?
We must think, more and more, of individuals and private groups accepting the obligations to help and protect the rights of others. And into this flows naturally the tributary of the river of rights which is responsibility. We have to give as well as receive, to put in as well as take out, to see the other person's perspective as well as our own.
If one day nations could make use of law in their international dealings, economic and political, as much as they do at home then it would be possible to start conceiving of a world without war, where disputes between countries are adjudicated rather than fought over and where those countries that do wrong are penalised and compelled to ameliorate their practice without military or economic confrontation. This would be civilization of the highest order — ensuring, by the observance of law, that tyranny is kept in check, that liberty and justice prevail and that the strong do not trample on the weak and vulnerable.
The development of international law offers the world its best choice of avoiding war. Indeed if law were observed, military might, or even the enforcement procedures of the Security Council, would become increasingly redundant. Yet if there is no law all the enforcement in the world will not achieve its objective.
It is a question of degree. We have progressed a long way already and many of the norms of international law — particularly on human rights — are already respected by domestic courts. Many regional institutions already exist that practice international law, albeit on a more localised basis, such as the European Court of Justice and the European Court of Human Rights. The World Bank has its own legal tribunal for arbitrating investment disputes. More recently we have the International Criminal Court to try those accused of war crimes and crimes against humanity.
It is a question of attitude — how far we are prepared to go to sublimate our national loyalties before a law that transcends individual cultures and societies but nevertheless wins our respect because it is just and because it avoids conflict.
We live in the most extraordinary times, an age of an enormous potential yet with the capacity to self-destruct still intact. In that we are no different from our forefathers. Yet what is different, as we stand at the onset of a new century, is that never before has there lived a generation that shares so many common aspirations and accepts that humanity is bonded together in a way that their parents and grandparents could have, even with the best imagination, only dimly perceived.
When problems erupt they become everyone's problem. Wherever we are we know about Bosnia or Rwanda or the Sudan or bird flu. We are neighbours, but are we good neighbours? Can we help? How can we help? How can we help better than last time?
If we give in this way we also receive. A world where the raw edges of political and social disputes are softened, even in far away places, is a better place for us. Disruption and mayhem in an age of such fast telecommunications, the aeroplane and the intercontinental missile have the ability, if not contained, to transport themselves to our own backyard. It is the same with our environment. As Barbara Ward said thirty years ago, "we only have one earth" and there is little or nothing that modern society does in one part of the world with its productive energies that does not affect another. The world we inhabit now is too small for that to be avoided.
Blueprints are important. We cannot build anew without careful forethought. But nothing will work out well in practice, even with the best design, unless a quality of leadership is tapped that can give tangible and perceptive direction to those many strands of change now in process.
We need a leadership that knows how to transcend mankind's divisions, to diminish our most primitive instincts and to enhance our nobler ones. It must have the power of personality that inspires the best of us and takes us onward and beyond what we do now so often unsatisfactorily and insufficiently to what we could do if human energies were liberated from the confines of too simple and too narrow a perspective. We need to move beyond country, race, religion, culture, language and life-style to being part of what Martin Luther King called the beloved community. "We seek only", he said "to make possible a world where men can live as brothers."
Leadership, we know, is an intangible quality that can only be described as it is observed. But we can list some of the ingredients it will need if it is to have any chance of working in today's world. It must understand the need to preempt crises as well as have the ability to persist with their resolution once they occur. It must believe that the application of force is the signature of defeat and that true peace comes from careful compromise where no-one is asked to abase themselves before their opponent. It must be inspirational and take us into the reaches of our best performance, even enabling us to move far beyond what we have ever achieved before. It must be practical and down to earth, sifting the essentials and concentrating on what really are the priorities of living. It must be moral, selfless and yet convinced of its own audacity. In the end it will be immensely courageous for the problems it faces can appear at times quite daunting and near to overwhelming.We inhabit a precious but vulnerable planet. We can make the best of it or the worst. We can live by law, respect and a sense of community or we can pull apart from both each other and the habitat of which we partake and live in division and disunity, all the time diminishing the quality and expectation of daily life.
Promoting Justice, Human Rights and Conflict Resolution through International Law / La promotion de la justice, des droits de l'homme et du règlement des Conflicts par le droit international: Liber Amicorum Lucius Caflisch edited by Marcelo G. Kohen (Martinus Nijhoff Publishers / Brill Academic) Bilingual edition: English / French
On 30 September 2006, Judge Lucius Caflisch retired from his position as professor of international law at the Graduate Institute of International Studies, having taught several generations of students from around the world for more than three decades. He had also served as the Director of the same Institute between 1984 and 1990.
To mark this occasion, 73 authors from widely diverse backgrounds have gathered their thoughts in this volume to pay tribute both to the exemplary career of Lucius Caflisch and to his remarkable contribution to international law. The person to whom this work pays tribute is both a successful theoretician and practitioner. His career is marked by excellence in the various activities he has undertaken as a professor and the author of numerous doctrinal works, as a judge, as legal advisor for the Swiss Ministry of Foreign Affairs, as a representative of his country at many international conferences, as counsel and as an arbitrator. This Liber Amicorum covers principally those fields in which Lucius Caflisch made the greatest contribution: human rights and international humanitarian law, the spatial dimensions of international law and the peaceful settlement of disputes. It also deals with other areas which attracted his attention and which concerned his country.
The many students who had the advantage and pleasure of following Lucius Caflisch's courses, as well as his colleagues in the various positions he has held, know the rigour with which he examines every aspect of international law. The many students who had the privilege of having him as thesis director or as a member of their jury, have hugely benefited from his attention to detail and careful advice. All those who come into contact with him appreciate his legendary sense of humour.
In the opening contribution to this volume, Ambassador Mathias-Charles Krafft eloquently retraces Lucius Caflisch's contribution to international law by reference to his activity as legal advisor to the Swiss Ministry of Foreign Affairs. In reality, this tribute goes much further, as it demonstrates the vast amount of work completed by the colleague and friend who is currently being honoured. What emerges in particular is Lucius Caflisch's role as a veritable artisan of key texts of international relations, such as the United Nations Convention on the Law of the Sea, the Ottawa Convention on Anti-Personnel Mines or the Statute of the International Criminal Court, to name but a few examples.
Consistent with his habitual rigour, Lucius Caflisch is loath to depart from a strict analysis of legal phenomena, whilst at the same time manifesting both with his pen, as well as by his acts, a vocation for making international law advance in concrete terms. He knows how to identify major difficulties and to indicate how they can be overcome. From this stems his particular interest in the peaceful settlement of disputes. In his leading course on the question given at The Hague Academy of International Law, Lucius Caflisch illuminates the way forward, one which is unfortunately so often misunderstood: "En suivant K. Ihering, qui a dit que la procedure est la soeur jumelle de la liberté, on peut 'étre tenté d'affirmer que les regles matérielles valent ce que valent les rêgles sur le reglement pacifique des différends qui s'y rapportent. Méme si l'on hésite d'aller aussi loin, on admettra que tout progrès dans l'application effective des règles du droit international passe par l'amélioration des mécanismes de reglement pacifique".'
With Lucius Caflisch on the bench, the European Court of Human Rights has benefited from the input of a subtle "generalist" of international law, a major advantage given the current tendency for heightened specialisation. His colleagues in Strasbourg have been quick to appreciate his incisive analyses which link problems specific to human rights to the broader context of general international law. Contrary to what one could have thought, this has not been done to the detriment of human rights, quite the reverse. The opinions of Judge Caflisch in sensitive areas such as the relationship between State immunities and human rights, poignantly attests to this fact.'
The interest which Lucius Caflisch has shown in questions relative to the law of the sea, international watercourses, Antarctica, the protection of the environment and boundaries, again finds expression both in innumerable works, of which one can mention here his reference work on international watercourses given at The Hague Academy of International Law,' as well as in the specific activities he has undertaken. Switzerland and other countries are grateful for his actions.Lucius Caflisch has always shown his students and colleagues that the abstract theoretical study of international law is insufficient. In this legal discipline, as undoubtedly in no other, knowledge of State practice is essential. He knows how to preach by example; his "Pratique suisse de droit international" which has been compiled under his authority since 1967, is certainly the most comprehensive and detailed of State practice inventories.
The New Challenges of Humanitarian Law in Armed Conflicts edited by Pablo Antonio Fernandez-Sanchez (International Humanitarian Law: Martinus Nijhoff) represents an analysis of and a reflection on the new challenges of humanitarian law in armed conflicts. It covers the jurisprudential dimension not only of the International Court of Justice, but also all the different legal bodies, including the ad hoc tribunals created by the United Nations. It analyses the purely doctrinal dimension of general aspects such as the solutions to world disorder in this field, the relationship between jus in bello and jus ad bellum, the principles of universal and international jurisdiction, and the notion of justice and peace. More concrete aspects include the situation of foreigners and journalists in armed conflicts, terrorist acts in terms of international humanitarian law and sexual violence as a war crime.
Excerpt: International Humanitarian Law has been a predecessor of the protection of human rights in armed conflicts, as proved by the adoption of the 1949 Geneva Conventions and its 1977 Additional Protocols I and II. Subsequently, several treaties on human rights equally protect certain rights, recognized as non-suspendable or non-abolishable, in all circumstances.
Likewise, we'd like to stress that the fight against impunity in armed conflicts has its roots in International Humanitarian Law, without prejudice to the contribution developed to this end by several treaties on human rights adopted by the United Nations and the Organization of American States, reaching its zenith on a universal level with the adoption of the Statute of the International Criminal Court. The problem stems from the fact that International Humanitarian Law does not contain any clear provision to combat impunity in non-international armed conflicts. In spite of this, its silence should not be interpreted as an indication that the Law is in favour of impunity, since the common Article 3 of the 1949 Geneva Conventions seems to hint towards a "no to impunity". In any case, this gap is now covered by the entry in force of the Statute of Rome of the International Criminal Court, since the latter has the power to judge war crimes, committed during international or internal conflicts. All this apart from the fact that ad hoc International Criminal Courts (former Yugoslavia and Rwanda) and the Special Court for Sierra Leone have the power to judge violations included in the common article 3, and therefore also the violations committed in non-international armed conflicts.
International Humanitarian Law did not recognize the "right of access to justice" to the victims of violations (although it did not deny it either) before national or international bodies. It limited itself to determine the duty of the States to judge the persons responsible of "serious offences" committed during international armed conflicts, but it doesn't say anything about internal conflicts, once again emphasizing the scarce importance of these conflicts for this branch of international legislation. This gap as to the access to justice is more or less covered by International Human Rights Law containing provisions applicable in all circumstances, in periods of peace and internal or international armed conflicts. The access to justice of the victims in order to see their rights recognized, is recognized before national bodies and international ones, judicial or not. Nevertheless, what can happen is that the State Party in the treaty, recognizing the right of access to justice before national bodies to victims, suspends this right, since it is not included in the list of non-abolishable rights. If this situation occurs, the victims are absolutely defenceless. If we look at the right of access to justice before international bodies, we see that in this case said right cannot be abolished; notwithstanding, the rights recognized by the treaty in question can be suspended, except the "core rights", which are those considered non-abolishable. In consequence, the right of access to justice of the victims before international bodies is conditioned by the nature of the violated right. As a result we consider that International Humanitarian Law and International Human Rights Law should make an important effort so as to not leave the victims of human rights violations committed during armed conflicts absolutely defenceless.
The international criminal liability of individuals during armed conflicts was codified by the 1949 Geneva Conventions, affirmed by various treaties on human rights and definitively confirmed by the 1998 Statute of Rome. Nowadays, States have the power to judge war crimes, complemented by the International Criminal Court, meaning that the passive legitimation of individuals before the international jurisdiction is not questioned. Nevertheless, International Law does not recognize the right of the victims to exercise penal actions before national criminal courts (although it doesn't deny the right), neither are the victims actively legitimated before the International Criminal Court, which could be considered one of the current failures of International Law. This way,
the "right to justice" is ignored in the sense of the right of the victims to see the authors of violations brought to trial and it is only established as a duty of the State (investigate, judge and punish the authors) in International Humanitarian Law and as a competence of the International Criminal Court in the Statute of Rome.
. Up till now, the "right to truth" is not recognized by any international treaty, nevertheless, this right is an autonomous concept comprised in the right of the victims and their relatives (individual dimension) and of society (collective dimension) to know the truth. Since the 1949 Geneva Conventions determines the obligation of the States to judge and punish the authors of "serious offences", the truth shall be known by the international procedure. But here again we are dealing with the issue that this right only exists for international armed conflicts, so that there is an important gap with regard to victims of human rights violations committed during non-international armed conflicts. This gap is covered by the International Human Rights Law, where applicable, and certainly by the Statute of Rome, since the International Criminal Court has the power to judge war crimes committed during both types of armed conflict and whenever the Court judges a case, the truth shall be known.
Since International Humanitarian Law does not recognize the victims' right of access to justice, it cannot recognize their right to obtain a compensation. This gap is covered by International Human Rights Law, although once again we are dealing with the problem that this right is valid or not in accordance with the State's attitude, no longer being valid if the State decides to suspend these rights. In this sense, the Statute of Rome is a great step forward, since the International Criminal Court can determine compensations (indemnity, restitution or rehabilitation) in favour of victims or their relatives.
The gaps detected when analysing the situation of victims of human rights violations committed during armed conflicts are originated by a possibly erroneous conception of the applicable regulations, because even if it is absolutely true that the Law applied in armed conflicts is the International Humanitarian Law, it is not less true that International Human Rights Law is also applicable, since the latter, apart from establishing a "core" (rights which are not abolishable in any circumstance), contains very strict requisites for the suspension during armed conflicts of rights which are not included in the list of non-abolishable rights.
Finally, we'd like to emphasize the point that although one has to recognize the advances in the protection of victims of human rights violations committed during armed conflicts; it is nevertheless true that many of these advances happened outside International Humanitarian Law, so that we consider that there is still a long way to go. To do this, we shall have to abandon the underlying idea in International Humanitarian Law that the physical person is a legal object worthy of protection (just like material objects), accepting instead the idea of the value and dignity of a human being.
Forging Peace: Intervention, Human Rights and the Management of
Media Space edited by Mark Thompson, Monroe Edwin
Price (Indiana University Press) (PAPERBACK)
Early in October 2001, a
When the `war on terrorism' was declared in September and
bombardment of Afghanistan began the following month, the Bush
administration seemed to see itself as taking America and its
coalition allies across a watershed, away from the confusions of the
previous decade. `Not only is the Cold War over,' Secretary of State
Colin Powell declared, `the post-Cold War period is also over.' The
bombardment of Afghanistan seemed to mark the end of an era of
`limited conflicts fought largely on humanitarian grounds', where
`direct national interests are rarely at stake'. No
longer, it was implied, would the international community find
itself trying to prevent, mitigate, or end violent conflicts in
dysfunctional states. Pursuing those responsible for the 11
September attacks on New York and Washington, the international
community no longer served as a mediator or helpmeet, cleaving to a
sometimes compromised impartiality.
This time, as the traditional US psyops message made clear, it
was a combatant. Reverting to the international broadcasting model
forged early in the Cold War, the administration pumped extra money
into Voice of America, launched Radio Free Afghanistan, and planned
to launch `an Arabic-language satellite television station [...]
aimed at winning hearts and minds in the Muslim world'.
Yet, by the time psyops kicked into action, this appearance of a
reversion to more traditional war-fighting strategies had already
proved deceptive. On 11 October, President Bush reluctantly admitted
that the US `should not just simply leave after a military objective
has been achieved'. In fact, the United Nations should `take over
the so-called nation-building.' This daunting challenge - the most
difficult project of post-conflict reconstruction since Germany
after 1945 - led Washington policy-makers to ponder recent
experiences in the Balkans. The Washington Post counseled a `second
look' at the `extended US and Western effort at nation building' in
Bosnia, particularly. In short, the peace-building agenda is here to
stay. Today, radio stations are demolished with missiles. Tomorrow,
they will have to be rebuilt to operate according to accepted
professional standards, serving a divided society with an unstable
In their immediate aftermath, the atrocities of 11 September
seemed at a stroke to have shifted the risks and causes of major
regional conflicts onto a global ideological or 'civilizational'
plane that was inaccessible to mere incremental progress in
interstate relations. Yet, when the first wave of shock and fear had
passed, not everything had changed after all. The sources of
terrorism and conflict cannot be addressed without
institution-building assistance on an unprecedented scale. Sooner
rather than later, the US-led international coalition will have to
reckon with the fact that terrorism takes root more easily where
media freedom is suppressed with impunity. The approaches developed
in the Balkans and elsewhere may soon be needed, in circumstances
much less propitious, across the vast swathe of territory from the
Caucasus to the Chinese border, posing a scarcely imagined challenge
to international will and resources.
Forging Peace focuses primarily on the problems of media
management in conflict and post-conflict situations. More
specifically it examines situations where Western democracies, the
United Nations, the OSCE and even the North Atlantic Treaty
Organization (NATO) have attempted to transform the media sector in
third party states. By examining the legal and political context of
the new interest in media before, during, and after conflict, the
contributors make current trends more visible and illuminate the
relationship between speech and force in international affairs.
From Alison DesForges's discussion about the impact of hate
Together the contributors consider how international law is
changing to encompass, reflect, and channel intervention practices.
They each from various academic, legal and diplomatic perspectives
look at `information intervention' through the lens of human rights
principles, especially those relating to restrictions on hate speech
and the right to receive and impart information. They examine the
distinctions between State-authorized and rogue uses of media to
incite conflict; between authorized and unauthorized incidents of
information intervention; and between preventive intervention as
opposed to that directed towards resolving conflict. And they test
some of the justifications that are articulated for different forms
of information intervention, actions that range from mere monitoring
of broadcasts to the total reformulation of media laws, and
ultimately the seizure or bombing of transmitters, and full-blown
Refugee Manipulation: War, Politics, and the Abuse of Human
Suffering edited by Stephen John Stedman, Fred
Tanner (Brookings Institution Press) This disturbing new book
focuses on the conditions of civil war, when armed forces exploit
refugee aid and the good faith efforts of international
organizations. Warring factions treat aid camps as recruitment pools
and camps can become safe havens for significant numbers of "refugee
warriors"- those who have participated in genocide and intend to
return to conflict. Many refugee organizations hence face a
difficult dilemma of differentiating between victim and aggressor.
Refugee Manipulation: War, Politics, and the Abuse of Human
Suffering edited by Stephen John Stedman, Fred
Tanner (Brookings Institution Press) This disturbing new book
focuses on the conditions of civil war, when armed forces exploit
refugee aid and the good faith efforts of international
organizations. Warring factions treat aid camps as recruitment pools
and camps can become safe havens for significant numbers of "refugee
warriors"- those who have participated in genocide and intend to
return to conflict. Many refugee organizations hence face a
difficult dilemma of differentiating between victim and aggressor.
The contributors Howard Adelman of York University, Margaret
McGuiness, of Paul, Weiss, Rifkind, Wharton, and Garrison; Frederic
Grare, Centre des Sciences Humaines, New Delhi; and Daniel Unger of
Northern Illinois University-- examine three specific cases:
Cambodian refugees along the Thai border in the 1970s and 1980s,
Afghan refugees in Pakistan in the 1980s and 1990s, and Rwandan
refugees in Eastern Zaire from 1994 to 1996. And they suggest steps
to reduce the occurrence and severity of a growing human rights
issue that has received little attention.
Biodiversity and Human Rights: The International Rules for the
Protection of Biodiversity by Elli Louka (Transnational Publishers)
It is a common belief that species are becoming extinct due to
forest destruction and other threats to the biosphere. Because of
this belief, policies and regulations have been enacted to protect
and preserve biodiversity. Unfortunately these policies are
frequently flawed due to their notion that biodiversity is a static
condition. They conflict with the livelihood of indigenous peoples
and promote nationalistic control over biodiversity resources.
The author of this study proposes a fundamental review of biodiversity protection policies. Instead of conservation/preservation, a shift to attention to ecosystem management with human rights and human dignity at the center is recommended. This study prescribes a comprehensive system for the protection of biodiversity. Human rights standards, free trade in wildlife and regulated free access to plant genetic resources are proposed as the elements of this system.
Practitioners and scholars concerned with environmental issues, human rights, and sustainable development problems will find this work of great interest.
The Prevention of Human Rights Violations edited by Linos-Alexander Sicilianos ; Christiane Bourloyannis-Vrailas (International Studies in Human Rights, V. 67: Kluwer Law) The persistence of human rights violations around the world clearly demonstrates the need to focus more attention on preventive action.
Consequently, international organizations are increasingly strengthening the preventive dimension of their human rights activities. Preventive mechanisms have also emerged and continue to gain ground at the national level.
These new realities, however, seem to have received little attention by the academic community. Yet they raise many important issues, which need to be further explored. The above considerations prompted the Marangopoulos Foundation for Human Rights to mark its twentieth anniversary by organizing an International Colloquy on the topic of the prevention of human rights violations.
The present Volume contains contributions by the participants, based on the reports they presented at the Colloquy, substantially revised and updated. It constitutes the first attempt at a systematic analysis of the subject of the prevention of human rights violations, focusing on the following five aspects: conventional regimes, non-conventional monitoring mechanisms, international commissioners and Ombudsmen, national Ombudsmen and human rights institutions and the development of a human rights culture. It closes with a theoretical synthesis of the various approaches to the prevention of human rights violations, focusing on the context, the concept and function, as well as methods and techniques of prevention. [Review pending]
Contents & Contributors:
Southern Journey: A Return to the Civil Rights Movement by Tom Dent What significant changes, if any, have resulted from the enormous efforts of the 1960s civil rights movement? To find out, in 1991 Tom Dent took a grassroots journey through today's South, revisiting the places where protesters and their supporters took a stand for equality. For Dent, an African American who grew up in New Orleans one generation before desegregation, this journey became a personal one, as he explored his own reasons for leaving the South and for returning home. His interviews with blacks, whites, civil rights workers, and everyday citizens recount their personal experiences of the demonstrations and protests that shaped the movement and the impressions these events left on their communities.
Dent shows how the civil rights movement continues its positive influences on people's lives, but he also demonstrates that equality has not yet been fully realized. Through his portrayal of everyday people and their experiences and through his own memories, Dent offers a story of discovery and hope that invites us to see and feel how the civil rights movement still shapes our world today.
Author: Tom Dent (1932-1998) served as public information director for the NAACP Legal Defense Fund during the civil rights movement and later as executive director of the New Orleans Jazz and Heritage Foundation. He wrote or edited several books, including two volumes of poetry and the play Ritual Murder.
RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE: Religious Perspectives by John Witte Jr. (Editor), Johan D. Van Der Vyver (Editor)($192.50, Hardcover, Martinus Nijhoff, ISBN: 9041101764) PAPER $ 29.95 9041101799
RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE:
Legal Perspectives by J. D. Van Der Vyver (Editor), John Witte (Editor)
($192.50, Hardcover, Martinus Nijhoff, ISBN: 9041101772) PAPER $ 29.95 9041101802
Now that a noninstitutional priced edition is available these useful studies will find more readers. At the close of the second millennium, the world is torn by crisis and tumult by a moral Armageddon, if not a military one. With the memories of world wars, gulags, and the Holocaust still fresh in our minds, we see the bloody slaughter of Rwanda and the Sudan, the tragic genocide of the Balkans, the massive unrest of the Middle East, Western Africa, Latin America, and the former Soviet bloc. On every continent, we see clashes between movements of incremental political unification and radical balkanization, gentle religious ecumenism and radical fundamentalism, sensitive cultural integration and rabid diversification, sensible moral pluralization and shocking moral relativism. Even in the ostensibly peaceful societies of the West, bitter culture wars have aligned defenders of various old orders against an array of social, legal, and cultural deconstructionists. "Cultural conflicts are increasing and are more dangerous today than at any other time in history," Czech President Vaclav Havel declared in 1994. "The end of the era of rationalism has been catastrophic, [for now] the members of various tribal cults are at war with one another.... The abyss between the rational and the internal, the objective and the subjective, the technical and the moral, the universal and the unique constantly grows deeper."
These companion volumes take the measure and test the meaning of religious human rights, using the methods and insights of religion and law, theology and jurisprudence. One volume on the religious sources and dimensions of religious rights, the other volume takes up the legal sources and dimensions of religious rights as human rights. Comprehensive analysis of this topic, of course, properly requires a score of volumes thicker than these two. Selection, truncation, and distillation are necessary evils. The editors have restricted their analysis to the three religions of the Book and the four corners of the Atlantic. In the volume on religion, they focus on religious discussions included in the human rights values, that have thus acquired universal endorsement. These are the ones associated with the notion of religious freedom.
Both volumes offer a religious perspectives as part of an ongoing
project on religion, democracy, and human rights undertaken by the
Law and Religion Program at Emory University. The 22 papers in Legal
Perspectives volume cover a comparative framework and methodological
foundations for discussing religious liberty; the role of the UN,
secular non-governmental organizations, and the media; a draft model
law on freedom of religion; and tensions and ideals. They also
report from a wide range of countries and regions, including
Germany, eastern Europe and the Balkans,
Russia, Africa, Latin and Central America, and the US. Except for the Middle East, Asia is not considered. In the Religious Perspectives volume, written mostly by North American scholars of law or religion, 19 papers examine what sacred texts and church authorities in Christianity, Judaism, and Islam have to say about religious freedom. Among the topics are a historical perspective, Biblical legal thought, human rights in
the church, women and children in the three religions, a Jewish tradition for respecting dissenter rights in religious communities, an apologia for religious human rights, and identity and difference in terms of religious and cultural rights.
It is time for us to take religious rights seriously to shake off our political indifference and parochial self-interest and to address the plight and protection of people of all faiths. It is time to "exorcise the demons of religious intolerance' that have beset both religious and non-religious peoples around the world and to exercise the "golden rules" of religious rights, doing unto other religious believers and beliefs what we would have done to us and ours.
Human rights norms provide no panacea to the world crisis, but they are a critical part of any solution. Religions are not easy allies to engage, but the struggle for human rights cannot be won without them. For human rights norms are inherently abstract ideals, universal statements of the good life and the good society. They depend upon the visions of human communities and institutions to give them content and coherence, to provide "the scale of values governing the exercise and concrete manifestation. Religion is an ineradicable condition of human lives and communities; religions invariably provide universal sources and "scales of values" by which many persons and communities govern themselves. Religions must thus be seen as indispensable allies in the modem struggle for human rights. To exclude them from the struggle is impossible, and indeed catastrophic. To include them to enlist their unique resources and to protect their unique rights is vital to enhancing and advancing the regime of human rights.
The ancient teachings and practices of Christianity, Judaism, and Islam have much to commend themselves, as the chapters in these volumes amply demonstrate. Each tradition has produced a number of the basic building blocks of a comprehensive theory and law of religious human rights conscience, dignity, reason, liberty, equality, tolerance, love, openness, responsibility, justice, mercy, righteousness, accountability, covenant, community, among other cardinal concepts.
These companion volumes are important contributions to understanding of religious human rights throughout the world. With understanding, we hope will come improvement.
Inventing Human Rights: A History by Lynn Hunt (W. W. Norton)
How were human rights invented, and what is their turbulent history?
Human rights is a concept that only came to the forefront during the eighteenth century. When the American Declaration of Independence declared "all men are created equal" and the French proclaimed the Declaration of the Rights of Man during their revolution, they were bringing a new guarantee into the world. But why then? How did such a revelation come to pass? In this extraordinary work of cultural and intellectual history, Professor Lynn Hunt grounds the creation of human rights in the changes that authors brought to literature, the rejection of torture as a means of finding out truth, and the spread of empathy. Hunt traces the amazing rise of rights, their momentous eclipse in the nineteenth century, and their culmination as a principle with the United Nations's proclamation in 1948. She finishes this work for our time with a diagnosis of the state of human rights today.
From Publishers Weekly: This comprehensive work traces the
development of human rights from its conceptual roots in the
Enlightenment to its full expression in the United Nation's 1948
Universal Declaration of Human Rights. Hunt begins with a
wonderfully detailed lexicographical survey of 18th century uses of
rights language ("rights of man," "natural rights," "rights of
humanity") to show the many currents that led to the first modern
declaration of human rights, the Bill of Rights. She then
triangulates the upswing in rights language with both the appearance
of the novel of letters (such as Rousseau's Julie and Samuel
Richardson's Pamela and Clarissa) and the rise of portraiture in the
mid- to late-18th century. These particular art forms, she argues,
fostered a sense of individuality in their audience and empathy for
their subjects, most frequently "regular folks" rather than nobles,
royalty, or saints. She then takes the reader through 250 years of
rights legislation, covering the French Revolution's Declaration of
the Rights of Man and Citizen, various anti-torture measures and
20th century campaigns against human rights violations, among
others. Despite the obvious academic grounding of this sweeping
work, it is aimed at a wider audience and will appeal to most
readers interested either in the history of human rights or in
European or American history.
Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge Studies in International and Comparative Law) by Oren Gross and Fionnuala Ní Aoláin (Cambridge University Press) The terrorist attacks of September 11, 2001, and the ensuing 'war on terror' have focused attention on issues that have previously lurked in a dark corner at the edge of the legal universe. This book presents the first systematic and comprehensive attempt by legal scholars to conceptualize the theory of emergency powers, combining post-September 11 developments with more general theoretical, historical and comparative perspectives. The authors examine the interface between law and violent crises through history and across jurisdictions, bringing together insights gleaned from the Roman republic and Jewish law through to the initial responses to the July 2005 attacks in London. Three unique models of emergency powers are used to offer a novel conceptualization of emergency regimes, giving a coherent insight into law's interface with and regulation of crisis and a distinctive means to evaluate the legal options open to states for dealing with crises.
Reviewed by Therese O’Donnell, Law School, Strathclyde University. Email: therese.odonnell [at] strath.ac.uk in LPBR Revew Essays. All previously published reviews may be obtained at the Law & Politics Book Review web site: http://www.bsos.umd.edu/gvpt/lpbr
“How to allow government sufficient discretion, flexibility, and powers to meet crises while maintaining limitations and control over governmental actions so as to prevent or at least minimize the danger that such powers would be abused? . . . How to balance security and liberty? These questions are as ancient as the Roman republic and as new as the realities wrought by the terrorist attacks on London’s public transportation system on July 7 and July 21, 2005.” (pp.1-2)
And so begins Oren Gross’ and Fionnuala Ní Aoláin’s impressive, richly sourced study of the responses of democratic states to violent emergencies. The book’s structure divides principally into two parts. The focus of Part I is upon the principal models dominating theory and practice concerning responses to acute national crises. Part II considers the relationship between international law and some of its specific legal regimes (e.g. international humanitarian law whereby non-state actors may be held accountable). The structure works well and any overlaps in content are unobtrusive. As Gross and Ní Aoláin comment, violent crises often precipitate a reaction urging that “legal niceties may be cast aside as luxuries to be enjoyed only in times of peace and tranquility” (p.7).
Part I opens with an analysis of the various models of accommodation by which a state may seek to manage a crisis. By acknowledging some element of accommodation, the State is best depicted as a tree bending in a storm; how far it yields will depend on which model it chooses to adopt. The main models posited by Gross and Ní Aoláin are those embodying classical accommodation, constitutional accommodation, legislative accommodation and interpretative accommodation. The assessment of the Roman model of dictatorship is fascinating, particularly when the authors consider Machiavelli’s conclusion that one of the crucial checks and balances in place was the innate incorruptibility of the citizens of Rome (comparing favourably to their Florentine counterparts) (p.24). As the authors note, Lord Acton focuses on absolute power’s impact on the ruler, while Machiavelli focused on the people. This is interesting, but to this cynical reader, a little precarious. The perfect example of the Roman model operating in practice is offered by way of Cincinnatus who, after enjoying awesome power during a siege and winning a significant victory, resigned as dictator. Such self-restraint on the hand of Power ensured his entry into the annals of history. Although not quite on the same scale (and with important distinctions), one cannot help but be reminded of the Leader of the House, [*509] Robin Cook’s, resignation speech on the eve of Operation Iraqi Freedom in 2003. Some time later he enjoyed recounting how a tramp recognised him as a famous resignation saying ‘You . . . you’re great when you resign. You should do it more often’ (Chalmers 2005). It is worth remembering that he was the former UK Foreign Secretary and proudly recalled his role as a significant engineer of the NATO intervention in Kosovo.
The sheer flexibility of models of accommodation seems well captured in the discussion of the French state siege model. Originally intended to confront a military crisis, it morphed into ensnaring political crises. The impotence of the various attempts to rein in the ever-expanding use of the siege concept was finally captured in Article 13 of the French Constitution of 1946 which stingingly stated “The National Assembly alone may vote the laws. It may not delegate this right.” The possibility of constitutional accommodation of emergencies is also explored with a discussion of Lowenstein’s consideration of whether the concept of militant democracy can avoid the dangers of constitutional measures operating as Trojan horses. Gross and Ní Aoláin present an extensive survey of state constitutions, thus, as they acknowledge, revealing problems in the classification and categorization of emergencies and the dangers inherent in creating “scales” of emergencies which may permit states to easily “upgrade” to higher levels with presumably more draconian consequences (pp.45-46). The issue of “necessity” operating as a constitutional principle, making legal what might otherwise be illegal or unconstitutional, and its embodiment in inherent executive powers is considered. The authors include extracts from the infamous Frost/Nixon interview (suggesting unlimited Presidential power) alongside Justice O’Connor’s cautioning from HAMDI v. RUMSFELD that a state of war does not provide a “blank check” for a President. Such ordering of content seems pithy indeed, although even they themselves seem concerned about the actual reality of the Presidential trump (pp.52-54). In terms of legislative accommodation of emergencies including the passing of specialized legislation, the authors make reference to the “piling up” (p.69) of legislation and the craving of governments to be seen to be doing something * anything. They note legislative complicity in such an enterprise, in particular drawing on the example of the massive UK Anti-Terrorism, Crime & Security Act 2001 (ATCSA) which traversed the House of Commons in sixteen hours. Regarding interpretative accommodation, the authors conclude that international and regional courts are no more stringent when judging governmental discretion than the light touch of which domestic courts are accused (p.79). The danger of the various models is well illustrated by the fact that, as this chapter comes to a close, the authors return to Rome. For every Cincinnatus there was a Gaius Julius Caesar who ruled under a republican model of dictatorship in name only. Gross and Ní Aoláin also foreshadow the more modern nightmare which haunts most democracies * that of Weimar and its infamous constitutional Article 48. It went from operating as a [*510] crucial check on the powers of the president to simply acting as a rubber stamp, thus embedding no genuine sense of constitutionalism in Germany * a situation that proved ripe for the Nazis (p.85).
While Chapter 1 considers the models embodying strategies of accommodation, Chapter 2 considers the “Business as Usual” model, characterized as a strategy of resistance (p.98). It reminds one of an aristocrat who refuses to accept that any change in the face of a crisis is necessary. While such detachment can remain reassuringly solid and have its attractions, its Achilles heel is the perception of unreality or even blatant hypocrisy. It denies the need for any emergency powers, maintaining that the ordinary legal system is sufficient to meet the needs of the crisis. Gross and Ní Aoláin observe that in the more hardcore version of this model, substantive outcomes also do not change in times of emergency (p.89). Indeed the historical sources which are drawn upon, notably Benjamin Constant reflecting on French experience after the Revolution, go so far as to suggest that only intellectual pygmies seeking to save a state not worth saving cry out for emergency measures (p. 87). Much attention is given to the US Supreme case of EX PARTE MILLIGAN 71 US (4 Wall.) 2 (1866) and in particular Justice Davis’ famous majority opinion which stresses the role of the constitution as a fixed and unchanging balance between individual liberty and governmental power. However, the authors acknowledge that MILLIGAN was decided after the civil war when it was “safe” to be bold in relation to the operation of power * when it came to be tested as precedent the Supreme Court declined to follow MILLIGAN’s lead (pp.96-97). Given the model’s perceived weakness of unreality, it may be countered that even a mythical model can be worth preserving for its symbolic and educational functions. By not seeking empirical truth, it remains immune from assessment for its (in)correctness (pp.102-103). As such, it may be symbolically powerful in countering an almost inevitable overreaction in the face of crisis.
As Gross and Ní Aoláin note, the similarity between the Business as Usual model and the models of accommodation, lies in their both being rooted in a sense of being constitutional, a point not popular with realists. A more acceptable model to realists is considered in Chapter 3. The Extra-Legal Measures model focuses on an honest executive acknowledging that it has moved toward “illegality,” which it then seeks to purify by way of ex post facto ratification. Here the authors are discussing the Shakespearean possibility of a “little wrong” for a “great right” (p.112). They consider Jewish law’s acknowledging that the Torah may be violated in order to preserve it. An amputation motif seems intrinsic to this reasoning, yet whereas that creates indisputable and permanent change, any violation is envisaged as existing only temporarily. Locke’s work is also analysed, particularly prescient given its influence on the Founding Fathers. The authors consider the ethic of responsibility (drawing on both Weber and Walzer) whereby the public official who acts illegally takes a gamble about [*511] her actions and must throw herself upon the mercy of some arbiters at a later stage to seek ex post ratification of her illegal act. As the authors note, a moral politician in such a situation simply openly admits that her hands are dirty (p.134). The often subtle ways that such ex post facto judgments will be carried out is well illustrated by the authors’ invocation of the social ostracism befalling “Bomber” Harris * denied a peerage which the other commanders received (p.139). Yet for every Cicero who gambles and saves Rome there lurks a dark side of this model which is, as the authors acknowledge, that it potentially enables totalitarianism or even encourages a habit of lawlessness, which goes more broadly than government (pp.143-145). Nevertheless, the Extra-Legal Measures model endeavours to protect the ordinary legal system by operating as a form of quarantine for the emergency and the consequent measures taken. However, as the authors note, this attempt at prevention depends on normalcy and separation being cleanly separated (p.162), and it is indeed hard to accept that no osmosis occurs.
In the final chapter of Part I, the authors focus on this very assumption of separation. The authors are clear that all of the models of crisis management rely on notions of a supposedly clinical, scientifically provable, measurable, assessable separation between times of crisis and “normalcy.” That such a separation-process will facilitate a firewall which protects human rights and civil liberties may well be very optimistic. Indeed Warbrick has noted that what starts as particularly pejoratively titled “terrorism legislation” slowly becomes applicable to wider groups, seeping through to the regular, non-particular, non-emergency situation (Warbrick 2002). Of course, certain legal options may exist which may facilitate separation in time or type. Temporary legislation with sunset clauses is one option. However, by offering the particular example of the US PATRIOT Act, the authors show how quickly this can become the “new normality and benchmark” with sudden permanence (pp.177-179). Another possibility is to create a geographical distinction between a location of normality and one of crisis * a tactic used by the British in relation to the Northern Ireland emergency. Gross and Ní Aoláin point to the specific example of the curtailment of the right to silence, which began by targeting suspected terrorists in 1988 and by 1994 was ready to be applied to the rest of the UK.
The authors present a very interesting analysis of the legislative measures invoked to deal with the Algerian/French emergency, and they note how this resonates with irony. For a “mother country” obsessed with retaining her colony, perceived as less civilized than she, by casting off a variety of constitutional and legal traditions, she became as much part of Algeria as Algeria was part of France (p.200). That the same emergency legislation was resurrected to deal with the grandchildren of immigrants more than fifty years later who were rioting in the banlieues simply makes the irony supreme. The authors also refer to the “torture by proxy” process by which States use a geographical prophylactic to [*512] permit the use of evidence obtained by torture in which their officials did not perpetrate. In the A case ( UKHL 71), the UK Court of Appeal ruled that such evidence could be used, but the decision was mercifully reversed by the House of Lords. That victory was slightly tempered, however, by the split among the speeches as to the standards for assessing whether the evidence had been so obtained.
In terms of domestic differences with attendant legal distinctions, Gross and Ní Aoláin consider the “them and us” phenomenon. Certain groups, often foreigners, are assessed as outsiders and regulated accordingly. Post-9/11 this has become a major legal battleground as witnessed very clearly in the UK in the House of Lords decision in the Belmarsh case ( UKHL 56), where the operation of the ATCSA Part IV was denounced as operating in a racially discriminatory fashion. As well as being normatively problematic, the authors note the shock which gripped Britain (presumably excluding the activists who had so opposed Part IV) when the 7/7 bombers were identified as British born (p.224). In drawing on the work of David Cole, the authors note the shifting sands of the them/us distinction (pp.226-227), and one cannot help but be reminded of Pastor Niemöller’s poetry in this regard.
Perhaps one of the most potent motifs running throughout this book is that associated with addiction * paranoia, dreams and ever increasing dosages. It is in relation to this last aspect that the authors comment on the “normalization of the exception.” A craving develops for new, more radical powers to fight impending crises, and the unthinkable develops into the thinkable with a consequent “tranquilizing effect on the public’s critical approach toward emergency regimes” (p.236), and thus to hidden revolution (p.242). As the authors later note, despite the common understanding of the word “emergency” as sudden, urgent and unforeseen, numerous examples testify to systematic entrenchment of the exception as the norm (p.304).
Part II focuses on the application of the various models in the field of international human rights law, with the authors concluding that there is a gap between theory and practice of emergency powers in international law. In considering the issue of legislative accommodation, they focus on the State’s power to derogate from certain rights in an emergency. Of course, as they acknowledge, this has raised problems in the context of the ICCPR and the UN Human Rights Committee, and the apparent failure to “join up the dots” between the declaration and operation of a derogation and States’ reporting obligations (p.301) (see McGoldrick 1994). The authors are concerned that the required process of proclaiming a state of emergency, given its entirely formal and insubstantial nature, may actually serve as basis for a disingenuous State resort to crisis powers (p.260). As the authors correctly note, most international oversight of the use of emergency powers focuses on ajudging the due process consequences of State responses, rather than the preliminary point of whether there is in fact an emergency (the ECHR [*513] LAWLESS decision afforded it less than two pages). Obviously this might be due to such tribunals lacking fact-finding capacity and the concerns regarding an “explosive situation” (p.267), which as a value judgment apparently goes to the very heart of a state’s decision-making autonomy.
Although acknowledging the importance of the supervision which does occur, the authors consider that the question of whether the resort to emergency powers is justified should come to greater prominence. They are concerned that what appears as robust judicial rhetoric conceals weakness ultimately legitimating governmental narrative * see the IRELAND v UK case (pp.273, 277). They are also concerned about the leeway which international oversight affords to democratic states compared with non-democratic states, and their comparison of the ECtHR responses to the UK and Turkey are interesting in this regard. Gross and Ní Aoláin are more flattering regarding the jurisprudence of the Inter-American Court (which is assisted by the fact-finding capacity of the Inter-American Commission), which they see as adopting a more subtle and deep approach, by recognizing an infinite variety of “crises,” thus at least having the potential to bring that preliminary question closer to the forefront (p.291).
Gross and Ní Aoláin are also disappointed by findings of various celebrated studies on emergencies and their authors’ seeming lack of understanding of how the aberrational nature of emergencies becomes normalized. Consequently, they are blind to the concept of the “permanent emergency,” focusing instead on the nature of measures adopted during such emergencies. Gross and Ní Aoláin continually stress that the notion of a standardized model for emergencies is neither helpful nor borne out by any study of states in emergencies (pp.316-317) and suggest that a “permanent emergency” may not belong in the human rights framework at all, but should be analysed in a debate regarding the problem creating the crisis (p.322). The formal process of state derogation should not be a game played between states and international overseers by which the latter provides the former with a shield against other external critics such as NGOs.
In the final chapter, the authors consider terrorism, emergencies and international responses to contemporary threats. They analyze whether the phenomenon of terrorism goes beyond existing domestic and international regimes, concluding that a more sophisticated derogation system and greater accountability for permanent and complex emergencies would be ideal (p.380). One of the striking things about this section is that the authors notably indicate differences in their respective positions, notably on the issue of torture warrants, perhaps emphasizing how contested the “law and terrorism” terrain is. In analyzing the interface between terrorism and law, particularly post 9/11, the authors are attracted to the relevancy of international humanitarian law, in particular Common Article 3 of the Geneva Conventions regulating internal armed conflict. They identify one benefit of this approach as being its capacity to leave aspects of [*514] human rights law intact (p.391). Gross and Ní Aoláin provide interesting discussion of the hybrid “super-laws” emerging at an international level, which they are concerned permit nefarious regimes to accomplish anti-democratic domestic goals * a point which has been the subject of widespread concern in the human rights community. 9/11 and its birthing of these super-laws (including the demands of UN Security Council Resolution 1373) may challenge the accommodation models’ capacities to constrain state action.
The book is part of the Cambridge Studies in International and Comparative Law series which has been notable for producing extremely high quality scholarship. Most recent examples including Karen Knop’s DIVERSITY AND SELF-DETERMINATION IN INTERNATIONAL LAW and Gerry Simpson’s GREAT POWERS AND OUTLAW STATES, both of which, like this volume, were awarded accolades from the American Society of International Law. This book rightfully takes its place as an important and novel addition to discussions regarding law’s response to crises.
There are a number of images which constantly pervade the book’s
content either explicitly or implicitly.
References to seepage, soaking, the water’s edge, osmosis,
equilibrium, permeability, incontinence and precipitation all
highlight the very fluid nature between normality and emergency,
terror and calm which the authors seek to emphasise.
Similarly the medical terminology of quarantine, immunity and
amputation is evident particularly in the discussion of the fiction
of separation between normalcy and emergency. But
it is the last group of images created by the constant motifs of
addiction, narcotics, phantoms, dreams, sunsets, hazes and,
particularly, twilights which gives the reader most pause for
thought. And concern.
Chalmers, Robert. 2005. “Out of the Wilderness.” THE INDEPENDENT ON SUNDAY (January 30th, 2005).
Knop, Karen C. 2002. Diversity and Self-Determination in International Law (Cambridge Studies in International and Comparative Law). Cambridge: Cambridge University Press. (When does international law give a group the right to choose its sovereignty? In an original perspective on this familiar question, Knop analyzes the ways that many of the groups that the right of self-determination most affects--including colonies, ethnic nations, indigenous peoples and women--have been marginalized in its interpretation. Her analysis also reveals that key cases have grappled with this problem of diversity. Challenges by marginalized groups to the culture or gender biases of international law emerge as integral to the cases, as do attempts to meet these challenges.)
McGoldrick, Dominic. 1994. The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (Oxford Monographs in International Law). Oxford: Clarendon. (The Human Rights Committee is charged with the task of monitoring the implementation of the International Covenant on Civil and Political Rights. This book analyses the institutional characteristics of the Human Rights Committee, how it has developed its practices and procedures under the Covenant and the Optional Protocol, and analyses the jurisprudence of the Committee under selected key articles of the Covenant.)
Simpson, Gerry. 2004. Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge Studies in International and Comparative Law). Cambridge: Cambridge University Press. (From the Congress of Vienna to the "war on terrorism", the roles of "great powers and outlaw states" have had a major impact on international relations. Gerry Simpson describes the ways in which an international legal order based on "sovereign equality" has accommodated the great powers and regulated outlaw states since the beginning of the nineteenth century. Simpson also offers a way of understanding recent transformations in the global political order by recalling the lessons of the past--in particular, through the recent violent conflicts in Kosovo and Afghanistan.)
Warbrick, Colin. 2002. “The Principles of the European Convention on Human Rights and the Response of States to Terrorism.” 3 EUROPEAN HUMAN RIGHTS LAW REVIEW 287. [*515]
A & OTHERS v SECRETARY OF STATE FOR THE HOME DEPARTMENT  UKHL 71.
A & OTHERS v. SEC OF STATE FOR THE HOME DEPT. AND X & OTHERS v. SEC OF STATE FOR THE HOME DEPT  UKHL 56
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).
IRELAND v. UK (1979-80) 2 EHRR 25.
EX PARTE MILLIGAN, 71 US (4 Wall.) 2 (1866).
© Copyright 2007 by the author, Therese O’Donnell.
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