Vol. 9 No. 8 (August 1999) pp. 347-350.

JUDICIAL PROTECTION OF HUMAN RIGHTS: MYTH OR REALITY? by Mark Gibney and Stanislaw Frankowski (Editors). Westport, Connecticut: Praeger, 1999. 207 pp.

Reviewed by John C. Blakeman, Department of Political Science, Baylor University.

 

This volume has an ambitious, yet salient theme: "the degree to which judges have (or have not) served as protectors of human rights." Whereas legal scholars, political scientists, and others who study human rights have generally pursued more doctrinal approaches to rights, this volume falls in with other recent scholarship that empirically investigates rights and the extent to which rights are, or are not, realized and protected. The volume’s focus on the judiciary centers around the question concerning "the extent to which courts have merely abided such practices or perhaps have even provided legitimation to repressive regimes—or, on the other hand, the degree to which courts have purposely interceded to attempt to bring about some change in stemming abusive governmental practice."(vii)

In trying to answer this empirical question—do judges protect human rights or not—the editors, Gibney and Frankowski, have selected a broad series of essays covering judiciaries in specific states or geographical areas: Romania and Russian (Europe); Israel and the Occupied Territories; Latin America; India, the Philippines, and China; Australia; and the United States. The book is broadly comparative, as each chapter focuses on one specific state, or region, in order to answer the main question posed by the book.

The first section of the book concerns Europe, and centers on the transformation of two regimes in Eastern Europe: Romania and Russia. Both states, coming out from under Communist dictatorships, pose unique problems for independent judges protecting human rights. Monica Macovei’s chapter on Romania analyzes the drive to develop an independent judiciary and a tradition of respect for human rights in the wake of the collapse of the Ceausescu regime in 1989. The problems for Romania here are immense: how to create a democratic order, with an independent judiciary and support for human rights, when those actually participating in this constitutional revolution are still linked to the former communist regime.

Macovei’s chapter identifies "the most glaring shortcomings" and defines "issues that need correction" in Romania’s transition from dictatorship to democracy. (6) Macovie starts with an analysis of the judiciary, and concludes that the independence of the judiciary is hindered "by the unclear division of power between judges and prosecutors, by the politicization of judicial appointments and by the power of the executive in manipulating judicial proceedings."(6) The slow development of an independent judiciary dampens the drive for more effective human rights protections. Macovie next discusses more doctrinal aspects of human rights, such as the law on freedom of expression and the right to privacy. Although Romania "has reached the point of no return" in its drive towards liberal democracy, as Macovie puts it, "deep structural obstacles to the full protection of human rights" still exist.(22)

Igor Petruchkin’s chapter on Russia follows a similar theme, chiefly the transformation of a former communist dictatorship, in which the judiciary was part of a repressive regime, to a more liberal democratic order in which judges are independent, active protectors of human rights. For Petruchkin, there are two notable developments: the establishment of the Russian Constitutional Court in 1991, and the 1993 Russian Constitution that protects fundamental rights and liberties. The Constitutional Court has emerged as an important policymaker: not only does it receive thousands of complaints against government agencies or officials per year, but it has resolved approximately 70% of these cases in against the government.(33) Yet, even though Russia has a somewhat independent Constitutional Court that polices government policymaking, Petruchkin concludes that there are still structural impediments to the realization of rights. Courts are badly financed by the government; most Russians do not have the economic resources to bring litigation to protect their rights; and the judiciary still comes under pressure from state prosecutors.

Two chapters on Israel follow the chapters on Romania and Russia. One, by Stephen Goldstein, investigates the protection of human rights by Israeli judges within Israel proper, and the other, by John Quigley, concerns the protection of rights in Israeli-occupied territories. Taken together, both chapters form an interesting picture of human rights in Israel and the occupied territories. Regarding Israel, Goldstein points out that Israeli judges, especially on the Supreme Court, fashioned protections for human rights "in a constitutional, and indeed, legislative vacuum."(56) In the absence of a written constitution and statutes guaranteeing basic human rights, Israeli judges mandated that if a government agency interfered with an individual’s rights, the agency must have a clear mandate to do so from the legislature. Thus, "the operative effect of this doctrine is that the courts should not interpret vague or ambitious Knesset legislation as restraining individual liberty but should construe such legislation as not doing so."(59)

In contrast to the somewhat stringent protection of rights by Israeli judges in Israel proper, Quigley’s essay demonstrates that in the Occupied territories protections for rights are virtually non-existent. The Occupied Territories fall under Israeli military governance, which marginalizes indigenous courts to the point that a local judicial system is not evident. The Israeli Supreme Court does have jurisdiction over the military, though, and did offer some protection to Palestinians living in the Occupied Territories. Yet, as Quigley observes, "judicial protection [of rights] is strained to the maximum" because the Israeli Court "shares the values of the Israeli military government" and on the whole "supports the Israeli government in its view that Israel is surrounded by enemy Arab states and that the Palestinians are more loyal to them than they are to Israel."(70) Quigly paints a bleak picture of the ability, or willingness, of courts in Israel to protect the human rights of those living in the occupied territories, and thus gives a stark contrast to the activism of the Israeli Supreme Court in protecting the rights of Israeli citizens.

Subsequent chapters in JUDICIAL PROTECTION OF HUMAN RIGHTS focus on the judiciaries in Latin America (Argentina, Brazil, Paraguay, Chile, and Uruguay), India, The Philippines, and China. Brian Turner’s chapter on judges in Latin America focuses specifically on the Southern Cone states that went through periods of military dictatorship. Turner’s concern lies with "judicial heroes," or judges who try to defend human rights in the face of institutional and political adversity. Turner shows that although judges were complicit to varying degrees in supporting military regimes, nonetheless some were able to question the policies and human rights abuses of military regimes.

In his chapter on India, Vijayashri Sripati discusses the role of the Indian Supreme Court in protecting individuals from torture and cruel, inhuman treatment, and demonstrates how the Court was unwilling "to accept that the values established by the Indian Constitution fall below those of international standards."(117) Thus, Sripati denotes the infusion of international legal standards outlawing torture into Indian domestic law. Following Sripati’s discussion of India, C. Neal Tate’s essay on the Philippine Supreme Court during the Marcos regime compares the careers of two Supreme Court Justices noted for their commitment to human rights: Claudio Teehankee and Cecelia Munoz Palma. As Tate notes, Teehankee and Palma "emerged as the two most prominent players of the judiciary’s role as defender of the rights of citizens against the abuses of powerful rules."(124) Tate analyzes the voting behavior of both Justices and finds, perhaps contrary to expectations, that Justice Palma’s "reputation as a supporter of human rights and opponent of Marcos must rest essentially on her action after her retirement from the Court and not on what she did while a Supreme Court Justice," whereas "Teehanke became, after the imposition of martial law [in 1973], the Court’s most prominent supporter of human rights."(133)

Albert Melone’s and Xiaolin Wang’s chapter on China follows, and includes a very interesting discussion of legal culture and the legal profession in China. For Melone and Xiaolin, "assessing the future of human rights in China can be better understood by focusing instead upon the latent and, in some cases, the manifest conflict between the functionaries of the Chinese Communist Party and the fledgling new professional class of legal professionals."(137) The authors note a significant growth in the number of lawyers in China after the Cultural Revolution reduced their ranks dramatically. Although Communist Party ideology still pervades the system of justice, Melone and Xiaolin posit that this new lawyering class holds a different perspective of the role of the communist party in the legal system, which will become more evident as more of this generation assume senior judicial positions.

The remaining two chapters in JUDICIAL PROTECTION OF HUMAN RIGHTS concern, respectively, the pre-existing land rights of indigenous people in Australia and their protection by the common law, by Garth Nettheim, and the selective protection of human rights by the American judiciary, by Mark Gibney. Nettheim focuses on the Austrian High Court’s decisions in Mabo v. Queensland (1&2) in which the Court paved the way for the recognition of indigenous peoples’ legal rights to land (native title). In response, the Australian government passed the Native Title Act of 1993 that recognizes and protects native title. The legal and political impetus towards protecting native land claims started the reversal of Australian common law doctrine that did not recognize pre-existing land rights, which, as Nettheim notes, "stood in stark contrast to the positions established in the United States, Canada, New Zealand and other parts of the world where the common law had followed the British flag."(165) Nettheim also notes the importance of international human rights norms in appellate court policymaking in this legal area.(168)

The last chapter, by Gibney, focuses on the United States and discusses that "while U.S. courts have proven receptive to cases alleging human rights abuses committed by foreign state actors, these same courts have been unwilling to challenge…the human rights practices in other countries of the U.S. Government or American multinational corporations."(178) Gibney’s specific concern is the expansion, or updating, of the Alien Tort Statute [passed by the First Congress in the 1790s] by federal courts to cover human rights abuses by foreign state actors. Yet, the although aliens can sue in U.S. courts for an international tort, "American law has refused to establish any standards for U.S. corporations operating in other countries." Thus, American corporations have generally avoided mass-tort litigation in the United States, and as Gibney concludes, "U.S. courts have not been willing to consider the possibility of attempting to make whole those harmed by American actors. Until this happens, it is not possible to claim that American courts are staunch defenders of human rights."

	Overall, the chapters in JUDICIAL PROTECTION OF HUMAN RIGHTS are good, and generally answer the question as to whether judges do or do not protect human rights. However, a few shortcomings in the volume are notable. There is no real overarching framework unifying the chapters in the book. While all of the chapters are good "stand-alone" case studies, as a whole they do not really link together. Thus, the overall impact of the volume is lessened to the point that it is more of a collection of case studies than a unifying treatment of the topic. The question as to whether judges do or do not protect human rights might be answered, to a degree, in a specific case study, but it is not really answered in a comparative perspective that integrates all of the chapters. That said, though, each of the individual chapters in the book is well-informed, insightful, and useful. To that end, the volume is perhaps best utilized by scholars focusing on specific areas, such as Israel or the Occupied Territories, instead of those interested in human rights more broadly defined.


Copyright 1995