The Jurisprudence of Human Rights Law: A Comparative Interpretive Approach (review)

The Jurisprudence of Human Rights Law: A Comparative Interpretive Approach (Theodore S. Orlin, Allan Rosas, & Martin Scheinin eds., Turku, Finland : Institute for Human Rights, Åbo Akademi Univ.; Syracuse, NY: Distributed in the USA by Syracuse Univ. Press, 2000).

This book attempts to capture a snap shot of our human rights discourse at roughly the fiftieth anniversary of the Universal Declaration of Human Rights. In the editors account, "Utilizing a comparative interpretive approach, it selectively considers some rather controversial and contemporary issues important to the jurisprudence of human rights law." ¹ These red button areas include the death penalty, the death row phenomenon, the right to die, holocaust denial, indigenous rights to culture, the right to privacy, and non-discrimination. By the "comparative interpretive approach" the editors and authors refer to the growing cross-fertilization of rights discourse between international instruments and domestic application. At the dawn of the twenty-first century, if there is cause for hope concerning the strength of the international human rights movement, this hope lies in the emerging discourse across the various plains of the human rights movement. This discourse, as the book nicely illustrates, includes a rich emerging tradition of cross-reference, in a comparative sense, between domestic and international tribunals and committees interpreting international human rights requirements. This procedural plain of cross-reference is matched by a rich interdependence within the various substantive rights contained in the international human rights regime. The book aims to highlight this comparative and interdependent rights discourse in the several areas used for illustration. In teaching international human rights we are frequently called upon to focus attention on comparative interpretive approaches. This book will be of interest to students of this comparative approach and also to scholars interested in relevant authority in the substantive areas addressed in the book. Each of the chapters highlights this comparative interpretive approach in the discrete area addressed and, in doing so, teases up the key authority across a variety of decisional venues.

In the opening introductory chapter the editors, Theodore S. Orlin and Martin Scheinin, provide an overview of the various international human rights instruments and institutions. This is followed by a brief account of what they call the comparative interpretive approach. The editors are to be congratulated for their efforts in structuring the book in an approachable and coherent manner. The chapters that follow seem to stick rather well to the books central theme, being rich essays on the variety of comparative sources, both international and domestic, that address the various substantive issues under discussion. In this case, less is more; by confining the list of substantive topics (and chapters--only nine) to a limited number of controversial issues the book avoids the topical drift that often plagues collections of essays. At the same time, any researcher interested in these few discrete topics will find the references very useful.

Three chapters deal with difficult issues relating to the right to life--two of these with the death penalty. In Chapter 2 Manfred Nowak makes the case for the abolition of the death penalty. Nowak acknowledges that the earlier international instruments came up a bit short in this regard but sees the trend, both in a growing international jurisprudence and in the leading edge domestic case of the Constitutional Court of South Africa, toward the elimination of the death penalty. He highlights the various instruments that address the right to life and seemingly permit the death penalty. Both the European and the American regional human rights conventions appear to permit the death penalty while imposing limitations. The ICCPR favors eventual abolition and imposes limitations, including abolition in respect to minors. He notes that protocols to both the European Convention and the International Convention on Civil and Political Rights (ICCPR) would largely abolish the death penalty. This concurs with a political trend toward abolition. He places some 102 states in the abolition camp (as of the end of...