Monday, January 5, 2015

Cherry-picking and human rights: cautionary note from a Canadian perspective

Lieutenant-Commander Mike Madden of the Canadian Forces has an article in the latest issue of the George Washington International Law Review, Comparative Cherry-Picking in a Military Justice Context: The Misplaced Quest to Give Universally Expansive Meaning to International Human Rights. According to the abstract:
This Article identifies, describes, and provides two military justice examples of a phenomenon that is labeled as “comparative cherry-picking,”whereby scholars and jurists rely upon extrajurisdictional law in their efforts to promote more expansive human rights protections. The Article then discusses some of the seemingly overlooked pitfalls of the comparative cherry-picking phenomenon, including treaty denunciation, “cheap talk,” human rights backsliding, and desuetude. All of these may result in counterproductive advocacy strategies by human rights activists when increases to international human rights standards would, in turn, lead to decreases in levels of state protection of human rights. Thus, in addition to demonstrating the flaws with the comparative cherry-picking phenomenon as a matter of positive international law, this Article also demonstrates how the phenomenon can be ultimately damaging to the cause of those who care about human rights protections.
Editor's note: The article argues that "the American court martial system discussed in Tindungan complies with U.S. constitutional law and the ICCPR." That a system meets domestic legal requirements does not mean it meets international human rights standards. U.S. noncompliance with the ICCPR is addressed in this Sept. 5, 2014 submission in connection with the upcoming U.S. Universal Periodic Review. Full disclosure: the editor was an author of that submission and an expert witness for the petitioner in Tindungan.

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